Prevention of Sexual Harassment of women at the workplace

Prevention of Sexual Harassment of women at the workplace : Hon’ble Supreme Court guidelines and norms

Updated on 04.11.2022

Government of India
Ministry of Personnel, Public Grievances and Pension
Department of Personnel & Training
Establishment Division
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Prevention of Sexual Harassment of women at the workplace

In the case of Vishaka and Ors Vs State of Rajasthan and Ors (JT 1997 (7) SC 384), the Hon’ble Supreme Court had laid down the guidelines and norms to be observed to prevent sexual harassment of working women. In pursuance to the pronouncement of this judgement, Department of Personnel and Training took the following steps:

(i) Guidelines/ Norms of the Hon’ble Supreme Court were circulated by Department of Personnel & Training vide OM 11013/10/97-Estt.(A) dated 13.02.1998 for strict compliance by the Ministries/ Departments.

(ii) Amendments in Central Civil Services (Conduct) Rules, 1964 were also carried out by inserting the Rule 3-C declaring Sexual Harassment of Working Women as a misconduct, vide Notification 11013/10/97- Estt.(A) dated 13.02.1998 published in Gazette of India as G.S.R. 49 dated 07.03.1998

(iii) Subsequently, Central Civil Services (Classification, Control & Appeal) Rules, 1965 were also amended by inserting a provision below sub-rule 2 of Rule 14 in connection with treatment of the Complaint Committee as Inquiring Authority and to follow the procedure as laid down in these Rules to hold inquiry into the complaints of Sexual This was notified vide Notification No. 11012/5/ 2001-Estt.A dated 01.07.2004 published in Gazette of India vide G.S.R. No. 225 dated 10.07.2004

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013

2. Later on, the ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’ {SHWW (PPR) Act} was promulgated on 04.2013. The ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013’ were notified on 09.12.2013. The Act and the Rules framed thereunder provide a redressal mechanism for handling cases of sexual harassment of women at workplace.

Prevention of Sexual Harassment of women at the workplace defined

3. Thus, the provisions relating to handling cases of sexual harassment of women at workplace are scattered across SHWW (PPR) Act, Central Civil Services (Conduct) Rules, 1964, Central Civil Services (Classification, Control and Appeal) Rules, 1965, In addition, a number of executive instructions covering different aspects of this issue have been issued from time to time. Now, with a view to facilitate the Ministries/Departments and other stake holders in proper implementation of these provisions, a need has been felt to consolidate these provisions and place the same in the public domain for easy access as and when required. Accordingly, the relevant provisions of the Act/Rules/executive instructions have been compiled as under:

(A) DEFINITION “WORKPLACE” OF “SEXUAL – HARASSMENT” AND WORKPLACE”

Section 2(n) and 2(o) of the SHWW (PPR) Act defines “Sexual Harassment” and “Workplace” respectively. The same have been incorporated through an amendment in the CCS (Conduct) Rules, 1964 as under:

“Rule 3C – Prohibition of sexual harassment of working women

(1)No Government servant shall indulge in any act of sexual harassment of any woman at any work place.

(2)Every Government servant who is incharge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such work place.

Explanation- 1 For the purpose of this rule,

(a) ”sexual harassment” includes any one or more of the following acts or behaviour, (whether directly or by implication), namely:-

(i) physical contact and advances; or
(ii) demand or request for sexual favours; or
(iii) sexually coloured remarks; or
(iv) showing any pornography; or
(v) any other unwelcome physical, verbal, non-verbal conduct of a sexual nature.

(b) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment: –

(i) implied or explicit promise of preferential treatment in employment; or
(ii) implied or explicit threat of detrimental treatment in employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.

(c) “workplace” includes, –

(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Central Government;
(ii) hospitals or nursing homes;
(iii) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(iv) any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;
(v) a dwelling place or a house”

(Rule 3-C of the CCS (Conduct) Rules, 1964)

(B) COMPLAINTS COMMITTEE:

Complaints Committees have been set up in all Ministries/Department and organizations under them in pursuance to the judgement of the Hon’ble Supreme Court in the Vishakha case. As per Section 4(1) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”), the Internal Complaints Committee (referred to as “Complaints Committee” hereafter) is to be set up at every workplace.

As per Section 4(2), this will be headed by a woman and at least half of its members should be women. In case a woman officer of sufficiently senior level is not available in a particular office, an officer from another office may be so appointed. To prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committees should involve a third party, either an NGO or some other body which is familiar with the issue of sexual harassment.

[Para 1 of OM No. 11013/2/2014-Estt.(A-III) dated 16.07.2015]

Section 4 of the SHWW (PPR) Act-

”4. Constitution of Internal Complaints Committee.- (1) Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the ”Internal Complaints Committee’·

Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

(2) The Internal Committees shall consist of the following members to be nominated by the employer, namely: –

(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:

Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub­ section(1):

Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;

(b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;

(c) one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:

(3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employe.

(4) The Member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.

(5) Where the Presiding Officer or any Member of the Internal Committee, –

(a) contravenes the provisions of section 16; or

(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or

(c) he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or

(d) has so abused his position as to render his continuance in office prejudicial to the public interest,

such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.”

[Section 4 of the SHWW (PPR) Act]

Seniority of the Chairperson of the Complaint Committee-

There is no bar either in the CCS (CCA) Rules or under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to the Chairperson of the Complaints Committee being junior to the suspect officer or the charged officer. Hon’ble Allahabad High Court has in Smt Shobha Goswami vs State of U.P. and 2 Ors, in WRIT – A No. – 31659 of 2015 observed as follows:

”In my opinion, there is nothing in the Scheme of the section which requires the lady member to be senior in rank to the officer against whom the allegation of sexual harassment are brought The language of Section 4 of the Act only requires the lady member to the Senior Level”.

This also does not in any way cause any prejudice to the charged officer.

[Para 2 of OM No. 11013/2/ 2014-Estt.A-III dated 09.09.2016]

Complaints Committee to be Inquiring Authority

As per Proviso to Rule 14(2) of CCS (CCA) Rules, 1965, in case of complaints of sexual harassment, the Complaints Committee set up in each Ministry or Department etc. for inquiring into such complaints shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules. Complaints Committee, unless a separate procedure has been prescribed, shall hold the inquiry as far as practicable in accordance with the procedure laid down in the Rule 14.

[Para 6 of OM No. 11013/2/2014-Estt.CA-III) dated 16.07.2015]

Proviso to Rule 1 4C2l of the CCS CCCA) Rules. 1965

”Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.”

[Proviso to Rule 1 4(2) of the CCS (CCA) Rules, 1 965 ]

(C) INQUIRY INTO COM PLAINT [FIRST STAGE]

The Complaints Committees may act on complaints of sexual harassment when they receive them directly or through administrative authorities etc, or when they take cognizance of the same suo-moto. As per Section 9 (1) of the Act, the aggrieved woman or complainant is required to make a complaint within three months of the incident and in case there has been a series of incidents, three months of the last incident. The Complaints Committee may however extend the time limit for reasons to be recorded in writing, if it is satisfied that the circumstances were such which prevented the complainant from filing a complaint within the stipulated period.

As mentioned above, the complaints of sexual harassment are required to be handled by Complaints Committee. On receipt of a complaint, facts of the allegation are required to be verified. This is called preliminary enquiry/fact finding enquiry or investigation. The Complaints Committee conducts the investigation. They may then try to ascertain the truth of the allegations by collecting the documentary evidence as well as recording statements of any possible witnesses including the complainant. If it becomes necessary to issue a Charge Sheet, disciplinary authority relies on the investigation for drafting the imputations, as well as for evidence by which the charges are to be proved. Therefore this is a very important part of the investigation.

[Para 7 and 8 of OM No. 11013/2/2014-Estt.CA-III) dated 16.07.2015]

Section 9 of the the SHWW (PPR) Act

“9. Complaint of sexual harassment – {l) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident·

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.”

[Section 9 of the SHWW (PPR) Act]

Rule 6 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013

“6. Complainant of Sexual Harassment – For the purpose of sub-Section (2) of Section 9,-

(i) Where the aggrieved women is unable to make a complaint on account of her physical incapacity, a complaint may be filed by –

(a)her relative or friend; or
(b)her co-worker; or
(c) an officer of the National Commission for Women or State Women’s Commission; or
(d)any person who has knowledge of the incident, with the written consent of the aggrieved women;

(ii) where the aggrieved women is unable to make a complaint on account of her mental incapacity, a complaint may be filed by-

(a) her relative or friend; or
(b) a special educator; or
(c) a qualified psychiatrist or psychologist; or
(d) the guardian or authority under whose care she is receiving treatment or care; or
(e) any person who has knowledge of the incident jointly with her relative or friend or a special educator or qualified psychiatrist or psychologist, or guardian or authority under whose care she is receiving treatment or care;

(iii) where the aggrieved women for any other reason is unable to make a complaint, a complaint may be filed by any person who has knowledge of the incident, with her written consent;

(iv) where the aggrieved women is dead, a complaint may be filed by any person who has knowledge of the incident, with the written consent of her legal heir”

Section 11 of the the SHWW (PPR) Act

“11. Inquiry into complaint -(1) Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, f01ward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable:

Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, f01ward the complaint to the police:

Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

(2) Notwithstanding anything contained in section 509 of the Indian Penal Code (45 of 1860), the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.

(3) For the purpose of making an inquiry under sub-section {l), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:-

(a)summoning and enforcing the attendance of any person and examining him on oath;
(b)requiring the discovery and production of documents; and (c) any other matter which may be prescribed.

(4) The inquiry under sub-section (1)shall be completed within a period of ninety day”

Rule 7 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013

“7. Manner of Inquiry into complaint – (1) Subject to the provisions of section 11, at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witness.

(2) On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub­ rule(1) to the respondent within a period of seven working days.

(3) The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses within a period not exceeding ten working days from the date of receipt of the documents specified under sub-rule(1).

(4) The Complaints Committee shall make inquiry into the complaint accordance with the principles of natural justice.

(5) The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an exparte decision on the complaint, if the complainant or respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings convened by the Chairperson or Presiding Officer, as the case may be:

Provided that such termination or ex-parte order may not be passed without giving a notice in writing, fifteen days in advance, to the party concerned.

(6) The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the Complaints Committee.

(7) In conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present.”

On the completion of an inquiry under this Act, the Complaints Committee shall provide a report of its findings to the employer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.

[Section 13(1) of the SHWW (PPR) Act]

Where the Complaints Committee arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer that no action is required to be taken in the matter.

[Section 13(2) of the SHWW (PPR) Act ]

Where the Complaints Committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent.

[Section 13(3)(i) of the SHWW (PPR) Act ]

(D) INQUIRY UNDER CCS CCCA) RULES, 1965 [SECOND STAGE]

Dual Role

In the light of the Proviso to the Rule 14 (2) mentioned above, the Complaints Committee would normally be involved at two stages. The first stage is investigation already discussed in the preceding para. The second stage is when they act as Inquiring Authority. It is necessary that the two roles are clearly understood and the inquiry is conducted as far as practicable as per Rule 14 of CCS (CCA) Rules, 1965. Failure to observe the procedure may result in the inquiry getting vitiated.

As the Complaints Committees also act as Inquiring Authority in terms of Rule 14(2) mentioned above, care has to be taken that at the investigation stage that impartiality is maintained. Any failure on this account may invite allegations of bias when conducting the inquiry and may result in the inquiry getting vitiated. As per the instructions, when allegations of bias are received against an Inquiring Authority, such Inquiring Authority is required to stay the inquiry till the Disciplinary Authority takes a decision on the allegations of bias. Further, if allegations of bias are established against one member of the Committee on this basis, that Committee may not be allowed to conduct the inquiry.

In view of the above, the Complaints Committee when investigating the allegations should make recommendations on whether there is a prima facie substance in the allegations which calls for conducting a formal inquiry. They should avoid making any judgmental recommendations or expressing views which may be construed to have prejudiced their views while conducting such inquiry.

[Para 9 to 11 of OM No. 11013/2/2014-Estt.(A-III) dated 16.07.2015]

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