Annual Report must be submitted by January every year to the District Officer nominated by the appropriate government.
WHAT IS THE PROTECTION TO THE COMPLIANANT IN MAINTAINING CONFIDENTIALITY AT ANY AFTER THE REPORT SUBMITTED TO THE EMPLOYER?
Sec.16: Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner.
WHAT ARE THE DETERMINANT FACTORS TO BE CONSIDERED WHILE DECIDING THE SUM TO BE PAID TO THE AGGRIEVED WOMEN AS RELIEF?
Sec.15: The IC shall have regard to •••
IN CASE THE IC ARRIVES AT A CONCLUSION THAT THE COMPLAINT IS FALSE OR MALICIOUS, WHAT ARE THE STEPS TO BE TAKEN ON THE COMPLIAINANT?
Sec.14 authorises the employer to take appropriate disciplinary action against the complainant in line with the service rules/ standing orders of the Company.
WHETHER THE EMPLOYER ON RECEIPT OF THE REPORT HOLDING THE RESPONDENT GUILTY, CAN ALTER THE REPORT OR MODIFIES THE FINDINGS OR ALTER?
NO: The Employer may accept or may not, but so such modifications or alterations or suggest the IC to modify etc are not permissible. The Employer, on receipt of the report, shall act upon the recommendation within sixty days of tis receipt by him.
Sec.13 (3) of the Act provides:
That report of the Committee shall have to be deemed as equally as enquiry report in a domestic enquiry.
It has to be treated as finding in disciplinary enquiry.Finding and report of the IC shall not be treated as a mere preliminary investigation but a finding in enquiry.
Saritha Verma Vs New Delhi Municipal Corporation.2016 LLR 785.Del.HC.
YES: The IC can recommend suitable punishment in line with the standing orders / service rules/ discipline policies of the Company. The IC can not suggest a particular punishment since it is not under their jurisdiction. The IC is empowered to find the respondent guilty or not guilty. Further, the IC is empowered to suggest a particular amount to be paid to the complainant to be deducted from the salary of the respondent as a relief. Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment, it may direct the respondent to pay such sum to the aggrieved woman. And further that in case the respondent fails to pay the sum, the Internal Committee can take up with the concerned District Officer to recover the sum as a debt and pay to the aggrieved women.
DURING THE PROCESS OF ENQUIRY, CAN THE AGGREIVED WOMEN REQUEST FOR SOME RELIEF TO OVERCOME HER EMOTIONAL DISTURBANCES OR ANY HARASSMENTS?
YES: She can seek transfer to different location of work, or grant special leave for three months. The Employer should consider her request and depending on the situations, reliefs to be provide under Sec.12.
CAN THE COMPLIANANT LODGE AN FIR BEFORE THE POLICE EVENTHOUGH THE COMPLIANT HAS BEEN SUBMITTED TO IC?
YES: A compliant can be filed. She can take the assistance of IC Members as well. The proceedings before the Magistrate and the enquiry before the IC are independent & even if the charges are not proved before the Court, this has no effect on the findings of IC.
YES: Under Sec.10 , the IC my suggest whether the complainant is agreeable for a conciliation so that the matter may be mutually settled, but no monetary compromises. In case, the complainant is acceptable and a settlement is reached, the report may be sent to the Employer. Otherwise, the process of enquiry starts.
WHAT ARE THE RESPONSIBILITIES ON THE PART OF THE IC MEMBERS DURING PROCESS OF ENQURY, FINDS THAT THE COMPLIANANT UNABLE TO STAND THE CROSS EXAMINATION OR EMOTIONALLY DISTURBED?
It is the responsibility of the IC Members to understand the status of the aggrieved women and even during cross examination, the IC members can collect the list of questions by the respondent & elicit answers separately and record the same. IC Members need to balance the emotions & reactions by both the parties.
An Enquiry under this Act by IC is not a preliminary one, but a full-fledged enquiry of fact finding.
IC has to conduct the enquiry for proving the misconduct in terms of service rules or standing orders thereof a domestic enquiry.
IC has to fully comply with principles of natural justice.
The Enquiry must be conducted on the same lines of conducting a “Domestic Enquiry”. Strictly in conformity with the principles of natura justice and follow “Procedural Proceedings”, Examination & cross examination, documents, and no proceedings to be conducted in the absence of the Complainant as well as the respondent.
It is the key responsibility of the Employer to conduct training sessions to acquire the skills & knowledge to conduct the proceedings of the enquiry for all the IC members. Ability to create an enabling meeting environment, use body language that communicates, complete attention to the parties, treat the complainant with respect, discard pre-determined ideas& determine the harm to the aggrieved. During a redress process the Internal Committee is required to assure confidentiality, no- retaliation and recommend interim measures as needed to conduct a fair inquiry.
Dealing with workplace sexual harassment complaints is often complex. Must possess the following.
At least 3 IC members to be present to carryon with the enquiry. Chairperson must be present. No enquiry to be held in the absence of the Chairperson.
YES: A fearless environment, confidentiality, support in case the aggrieved wishes to lodge an FIR with the police, a patient hearing to present his case in a non-biased manner, frankness, create mutual trust in eliciting the circumstances and situations that led to the case. May be even, one to one talk.
First step is the IC must study and conduct its own enquiries and discussions with the complainant to ensure that it is a matter of sexual harassment. Because not all the complaints will be sexual harassment.
Following judgement is the judicial view:
“All unwelcome physical contact will not sexual harassment.
Compliant & accused both were working in same establishment. Accused entered the Lab room of complainant, snatched the material in the hands of the complainant, threw the material and pushed her out of room. Complainant took this as an unwelcome physical contact and amounted to sexual harassment. The Complaint Committee enquired into the complaint and concluded that it was a case of altercation in the background of uncongenial environment prevailing there and it was not a sexually determined behaviour .The High Court upheld the decision of the CC.”
Shantha Kumar Vs CDIR &othrs.2018 LLR 8Del.HC.
Trained, skilled and competent Internal Committee, a time bound process, Information confidentiality, assurance of non-retaliation, counselling or other enabling support where needed assistance if the complainant opts for criminal proceedings.
The written complaint should contain a description of each incident(s). It should include relevant dates, timings and locations; name of the respondent(s); and the working relationship between the parties. A person designated to manage the workplace sexual harassment complaint is required to provide assistance in writing of the complaint if the complainant seeks it for any reason.
WHAT ARE THE CIRCUMSTANCES UNDER WHICH THE WOMAN FINDS IT DIFFICULT TO WRITE THE COMPLAINT & WHAT ARE THE ALTERNATE HELPS & GUIDANCES IN REACHING THE IC?
In case of any physical disability, anyone on her behalf, like her friend, relative, Member of State’s women’s Commission, can submit. Any mental disability, Complainant's relative OR friend, Special educator, Qualified psychiatrist or a psychologist, Guardian or authority under whose care she is receiving treatment or care, any person who has the knowledge of the incidence, can submit. And even in case of death, with the consent of the legal heir, any relative or friend can submit.
The aggrieved woman can file the compliant with any of the members of IC within a period of three months. If there is a delay, the IC members can make enquiries as to the reasons for delay and may condone the delay & accept the compliant.
HOW THE EMPLOYER CAN TAKE DISCIPLINARY ACTIONS ON AN EMPLOYEE FOUND GUILTY OF SEXUAL HARASSMENT BY THE IC?
The Employer is mandated to incorporate the acts of sexual harassment in the Standing orders, as per the amended provision under the Industrial Employment [ standing orders] Act, and also to incorporate under the service rules / policies of the Company.
A ‘person familiar with issues relating to women’ would mean such persons who have expertise in issues related to sexual harassment and may include any of the following:
• At least 5 years of experience as a social worker, working towards women’s empowerment and in particular, addressing workplace sexual harassment;
• Familiarity with labour, service, civil or criminal law.
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