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SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013: RECENT JUDICIAL TRENDS?

INTRODUCTION

Workplace harassment of women is not limited to a specific country or a region, but is a matter of serious concern globally. Also, it is an issue not only involving the gender justice concerns but is in violation of basic human right to live with dignity. The basic human right to live with dignity and the gender equality rights play a vital role in achieving the economic, social, cultural and political goals of any nation. Time and again many surveys have been conducted at national and international level which have been an eye opener to the world at large towards the issue of sexual harassment at workplace. This article is an attempt to closely examine the statutory framework concerning the sexual harassment at workplace and the judicial trend regarding the same.

SEXUAL HARASSMENT IN INDIA: LEGISLATIVE AND JUDICIAL STAND

The act of sexual harassment can be treated as violation of the women’s fundamental rights to equality under Article 14 and 15 of the Constitution of India, 1950 (“Constitution”). For the first time in the history of the Indian Courts in 1997, the Supreme Court of India in the matter of Vishaka and others v. State of Rajasthan (1997 (7) SCC 323) (“Vishakha Case”) recognized sexual harassment at workplace not only as a violation of human rights but also as a personal injury to the affected woman. Vishakha Case laid down guidelines for the prevention and redressal of the sexual harassment at workplace complaints raised by the women. The Supreme Court of India, through Vishakha judgment entrusted the obligation to provide a safe and women friendly environment on the employer. These guidelines were framed in line with the Convention on Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of the United Nations, in 1979 (“Convention”). India has both signed and ratified the said Convention.

Before the Vishakha Case came into picture, the women had to take matter of sexual harassment at workplace through lodging a complaint under Sec 354 and 509 of Indian Penal Code, 1860 (“IPC”). Moreover, in the year 2013, the Criminal Law (Amendment) Act, 2013 was enforced which criminalized offences such as sexual harassment, stalking and voyeurism. However, considering the increase in number of women in workforce of the country, the Ministry of Women and Child Development, India in order to fill the statutory gap on the specific subject of sexual harassment at workplace brought in force the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”) in the year 2013.

Interpretation of the term “Sexual Harassment” under the Act

The Act defines the term sexual harassment as any unwelcome sexually determined behavior (whether directly or by implication) such as:

1. Physical contact and advances;
2. A demand or request for sexual favors;
3. Sexually colored remarks;
4. Showing pornography;
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Sexual harassment is an unwelcome verbal, visual or physical conduct of a sexual nature that is so severe or pervasive which affects working conditions or creates a hostile work environment. Generally, sexual harassment is a sexually oriented conduct that may interfere with the victim’s work or undermine the victim’s personal dignity. Recently, the Delhi High Court in the matter of Shanta Kumar v. Council of Scientific and Industrial Research (CSIR) and Others (decided on October 31, 2017) has remarked that not all physical contact can be termed as sexual harassment and only a physical contact or advances which are in the nature of an ‘unwelcome sexually determined behavior’ would amount to sexual harassment. Therefore, to fit in the concept of sexual harassment the relevant conduct must be unwelcome i.e. unwelcome to the recipient of that conduct. Accordingly, in order to determine if the conduct was welcome or unwelcome, courts would naturally look to the complainant’s reaction at the time the incident occurred and assess whether the complainant expressly, or by her behaviour demonstrated that the conduct was unwelcome. If the evidence shows that the complainant welcomed the conduct, then the complaint of sexual harassment may fail. Sexual interaction between consenting people at work may be offensive to observers or may also be in violation of the workplace policy, but it may not necessarily qualify as an act of sexual harassment.

Rights of the employees vis-à-vis obligations of the employer under the Act

To ensure the protection of working-women at the workplace from sexual harassment, the Act requires the employers (with 10 or more employees) to constitute an Internal Committee (“IC”). The obligation on the employer to display the repercussions of any kind of indulgence in the act of sexual harassment along with details of the IC members is also a right of every women entering the workplace of an employer i.e. her right to approach to the IC in case of any such incident of sexual harassment. The employers have to ensure that awareness programmes at regular intervals for sensitizing the employees are conducted. An employer is also required to give due assistance to the aggrieved woman in case she chooses to file a complaint under the law for time being in force.

Judiciary Trend

The Indian judiciary in the recent past has witnessed a number of high profile cases of sexual harassment at workplace. In fact, the role of judiciary has not been witnessed to be restricted only to interpretation of the law on sexual harassment but it has taken a step ahead in framing the guidelines to curb such incidents of sexual harassment at workplace. These guidelines have played a guiding role in drafting of law on the subject matter of sexual harassment at workplace. The recent judicial trend depicts clearly that the judiciary is dedicated towards the cause of aggrieved women in cases of sexual harassment at work place, ensuring that stern action is taken against the employers not meeting its liabilities and obligations as required under the Act.

In the matter of U.S. Verma, Principal, Delhi Public School Society v. National Commission for Women and Ors. And Jayshri Kanna and Anr. Vs. U.S. Verma and Ors. (163 (2009) DLT 557), the Delhi High Court directed the Delhi Public School Society (DPSS) to pay Rs 8.50 lakh as compensation to its four former women employees for removing them from their jobs and failing to take action against a school principal who sought sexual favours from them and for non-constituting its own committee to probe the complaints as per the guidelines laid down by the Supreme Court of India in Vishakha Case.

In the case of Gayathri Balaswamy v. ISG Novasoft Technologies Ltd. (MANU/TN/2293/2014) decided on September 02, 2014, the Madras High Court, considering the opportunities that the aggrieved women lost on account of the non-constitution of the IC, awarded damages of Rs.1,68,00,000/- (Rupees One Crore and Sixty Lakhs only) as compensation to the dismissed employee towards non-constitution of committee to inquire into allegations of sexual harassment.

In another recent case of Ms. Renuka Mukherjee v. Vodafone Essar Limited and Others (decided on October 13, 2017), the Bombay High Court even though refrained from ruling on the allegations pertaining to sexual harassment case, imposed a penalty of Rs. 50,000/- (Rupees Fifty Thousand only) on the employer for non-constitution of the sexual harassment at workplace. The Court then observed that even of it is assumed that the Petitioner had complained of sexual harassment only after the termination of her employment, ‘nothing prevented the Respondent No. 1 (Vodafone) from inquiring into her grievance even after her termination’.

In yet another unreported judgment of January 2017, the respondent who was senior manager (HR) was ordered to pay Rs. 50, 000/- per month for 60 months by the appellate authority in Bangalore to the victim. Further, the employer company has also been held responsible for the violation of the Act and asked to pay monetary compensation of Rs. 4,80,000/- to the victim towards her monthly salary between September 2015 and December 2016. It is noteworthy to mention here that the court in this case also directed the employer company to deduct the compensation amount from the money payable by the employer company to the respondent employee and in case of failure of the employer company to do so, the employer company was directed to make payment to the victim on its own.

CONCLUSION

Though the Vishakha Case and the Act have played a significant role in protecting the rights of the women in workforce, however time and again there have been shocking revelations made by the surveys conducted by various organizations. Lately, survey conducted by Indian National Bar Association in 2017 exposed that about 70% of the women do not report sexual harassment by superiors because of fear of corollaries. Additionally, the 2015 research study conducted by the Federation of Indian Chamber of Commerce and Industry, showed that 36% of Indian companies and 25% of multinational companies have not yet constituted their ICs and about 50% of the more than 120 companies that participated in the study admitted that their IC members were not legally trained. In view of the aforesaid surveys and studies, it may be concluded that despite enforcing a legislature being specific to the cause, the purpose of the Act has not been completely achieved. The most visible cause behind the alleged failure may said to be poor implementation of the Act. In addition to the aforesaid, one of the major drawbacks of the said Act is that it is not gender neutral but a gender biased legislation and in the current corporate culture we see a plethora of cases of sexual harassment against the male workforce of the society as well. It appears that the law makers of the Country will await for another Vishaka Case which may act as an eye-opener for them before they could take into consideration the said issues for the purposes of enforcing a balanced legislation.

Despite the said issues being in hand, in view of the stringent stand taken by the judiciary on the subject and keeping in mind the sensitivity attached to such issues, it is advisable for employers to comply with the provisions of the Act in letter and spirit in order to ensure that they are not penalized in terms of monetary damages or reputation.

 
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LAUNCH OF ‘SHe-box’ BY THE MINISTRY

Ministry of Women and Child Development on November 07, 2017 has launched an online portal for registering complaint related to sexual harassment in non-government and government organizations. The comprehensive online complaint system- ‘SHe-box’ (sexual harassment electronic box) will be hosted on the website of the Ministry of Women and Child Development.

DRAFT RATIONALISATION OF FORMS AND REPORTS UNDER CERTAIN LABOUR LAWS (AMENDMENT) RULES, 2017

The Ministry of Labour and Employment vide notification dated October 27, 2017 has notified the Draft Rationalisation of Forms and Reports under certain Labour Laws (Amendment) Rules, 2017 (“Draft Rules”) to amend the existing Rationalisation of Forms and Reports under Certain Labour Laws Rules, 2017 (“Rules”) inviting objections or suggestions. The Draft Rules empowers the central government to notify any person to mandatorily file certain forms (prescribed under certain enactments) online on the Shram Suivdha Portal.  

DRAFT CONTRACT LABOUR (REGULATION AND ABOLITION) CENTRAL (AMENDMENT) RULES, 2017

The Ministry of Labour and Employment vide notification dated October 27, 2017 has notified the Draft Contract Labour (Regulation and Abolition) Central (Amendment) Rules, 2017 (“Draft Rules”) to amend the existing Contract Labour (Regulation and Abolition) Central Rules, 1971 (“Rules”) inviting objections or suggestions. The Draft Rules proposes to mandate principal employer and contractor to file a Unified Annual Return online in Form XIV annexed to the Rationalisation of Forms and Reports under Certain Labour Laws Rules, 2017, on the Shram Suvidha Portal, on or before the 1st day of February following the end of the year to which it relates.

GOVERNMENT RESOLUTION EXTENDING THE BENEFIT OF MATERNITY LEAVE TO CONTRACTUAL EMPLOYEES HAS NO RETROSPECTIVE EFFECT

Bombay High Court in the matter of Laxmi Subhash Yadav v. Office of Directorate through Water and SanitationSupport Organization (WSSO), (Decided on October 13, 2017) observed that the government resolution extending the benefits of maternity leave to the contractual employees cannot be applied retrospectively and since the resolution was passed much after the petitioner’s termination so the benefit of maternity leave cannot be extended to her retrospectively.

TEMPORARY, AD HOC AND CONTRACT STAFF ALSO ENTITLED TO MATERNITY LEAVE

The Central Administrative Tribunal in the matter of Anuradha Arya v. The Principal, Government Girls Secondary School, West Patel Nagar and Others (decided on October 12, 2017) has observed that temporary, ad hoc and contract women employees are also entitled to maternity leave and consequent benefits akin to regular staff under Maternity Benefit Act, 1961.

DOMESTIC WORKERS TO ENJOY MINIMUM WAGES, SOCIAL SECURITY BENEFITS SOON

Ministry of Labour and Employment (“Ministry”) vide its notification dated October 10, 2017 has proposed to launch National Policy for Domestic Workers (“Policy”). The Ministry has invited views of all stakeholders and general comments on the Policy till November 16, 2017. Post introduction of the Policy, the domestic workers across the country will have right to equal and minimum wages, social security cover, skill development programme and forming unions at par with other workers under the existing labour laws.

 
Did you know?

Whether an employer can deny maternity benefits for non-compliance of notice under section 6 of Maternity Benefit Act, 1961 (“MB Act”) to an employee?

Hon’ble Bombay High Court in the matterof Zee News Ltd. v. Sonika Tiwari (Smt.) & Ors. (2017 LLR 912) while observing the non-granting of leave for illness arising out of pregnancy and dismissal during absence due to pregnancy as an unfair labour practice, held that non- service of notice under Section 6 of MB Act is a procedural irregularity which cannot be made a rider to distribute the object of the MB Act as it is a welfare legislation. 

Whether casual or temporary employees are covered under the Employees’ Provident Fund Scheme, 1952 (“EPF Scheme”)?

Hon’ble Orissa High Court in the matter of Regional Engineering College, Rourkela v. Presiding Officer, EPF Appellate Tribunal and Others (2016 LLR 1249) held that any worker working in an establishment either in regular capacity or casual capacity or temporary capacity, for the establishment, being paid directly or indirectly by the establishment will be construed as an employee of the establishment, making the employer liable to pay EPF contributions in respect of such employee.

Whether services of probationer can be terminated without assigning any reason?

Hon’ble Delhi High Court in the matterof St. Thomas School v. Manish Kaushik and Another (2017 LLR 571), while observing that once there is requirement of specific order of confirmation in writing, there can be no deemed confirmation of probationer. The court held that the probationary services of an employee can be terminated without assigning any reason. The court further observed that it is the employer’s prerogative to decide whether or not the services of probationer are satisfactory or not and the court cannot substitute its view for that of the employer.

Whether repeated extensions for fixed period appointment of workmen will amount to unfair labour practice?

Hon’ble Punjab and Haryana High Court while upholding the decision of Labour Court, in the matter of Chief Medical Officer, General Hospital, Bhiwani and Others v. Vijay Kumar and Another (2016 LLR 239) observed that contractual appointment of an employee for a fixed-term, extending it repeatedly for further fixed period, continuously for years together, on a job of perennial nature, is an unfair labour practice.

Whether the appointment letter shall prevail over standing order in cases of conflict?

Hon’ble Bombay High Court in the matter of Wika Instruments India Pvt. Ltd., Pune v. Swati U. Nowgaonkar (Mrs.), Pune (2016 LLR 209) observed that when the model standing order has been applicable upon the employer providing the probation period for 3 months, the period of 6 months’ probation as provided in the appointment letter will not be legally tenable and the probationer after expiry of 3 months will be deemed to be a confirmed employee. The court further held that in case of conflict of period of probation between appointment letter and the model standing order, the latter shall prevail over the former.

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