Sexual harassment of women at workplace has assumed significant importance in government as well as private sector industries and establishments. A woman employee including a casual worker or even a woman visitor is entitled to safe working environment and can make complaint when encountered with the problem of sexual harassment. Such complaint can be made to an ICC (Internal Complaints Committee) of the organization or to a Local Committee in case of private establishments. SHWW (PPR) Act,2013 provides for constitution of an ICC under Sec. 4(2) and stipulates that there would be a third party member to guard against exercise of undue pressure from senior level. Who should be such a third party member and how she/he is to be chosen? This is an extremely important issue needing attention of the employers. See the article on this topic for knowledge updation.
From India, New Delhi
125From India, New Delhi
Sexual Harassment Of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013 - Nomination and role of Third Party Member in the Internal Complaints Committee:
By: C.M. Lal
Consultant in Service Laws
srivastavacmlal@gmail.com
Internal Complaints Committee is mandated to be constituted under Section 4(1) of the SHWW (PPR) Act, 2013. The aim, objects and functions of the ICC have been defined in the provisions from Section 9 to Section 15 and Section 21 of the Act. Although the Act does not explicitly speak on the minimum or maximum number of members to be nominated in ICC, but provisions in Sections 4(2)(a), (b) and (c) indicate that there shall be minimum four (4) members in the ICC. The qualifying criteria of these four members and the basis of their nomination is described in the aforementioned Sections 4(2)(a), (b) and (c). The Chairperson/Presiding Officer of the ICC has to be a woman employee at senior level from amongst the employees at workplace. Two other members have also to be from amongst the employees of the same workplace who should either be committed to the cause of women or experienced in the field of social work or have legal knowledge. These three members of the ICC have to be nominated from amongst the women employees. It is most relevant to mention that spirit of the Section 4(2)(b) of the Act is that two members have to be nominated from amongst the employees of the same workplace i.e. it does not state that these two members should be women. Therefore there is no bar to nominate any male employee in pursuance to Section 4(2)(b) of the Act. However it is to be noted that qualifying criteria as specified in the section ibid must be fulfilled.
2. Nomination of fourth member is an important and critical requirement of the Act which deserves weightage in consideration by the Employer. The Act prescribes in Section 4(2)(c) that “One member from amongst non governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.” Here the Act contemplates to involve an external member in the ICC with stipulation that such a member should be from an NGO/Association committed to the cause of women or a person familiar with the issues of sexual harassment. If an employer opts for an NGO member, then the requirement is that such an NGO/Association should be dedicated to the cause of women. It would be most appropriate if the NGO/Association is working for the issues related to women in crisis i.e. victims of molestation, women’s exploitation at workplace, sexual assault and domestic violence etc. Although there may be NGOs/Associations engaged in the field of women empowerment i.e. upliftment of women through educational, skill development and financial programs etc.
3. Section 4(2)(c) of the Act, as an alternative to nomination of an NGO member, stipulates that “a person familiar with the issues relating to sexual harassment” can be considered for nomination as an External Member in the ICC. Some employers/organizations think that an advocate can be nominated in the ICC as an External Member. The idea behind such thought may be that an employer considers that an advocate is a legally sound person and he can guide the employer on the legal intricacies during the proceedings of inquiry by ICC. It may be that an advocate has good knowledge of pleadings of cases of sexual harassment in courts, and that he may have acquired an experience in pleading of such cases, but the SHWW (PPR) Act, 2013 does not specifically stipulate in Section 4(2)(c) that an external member may be an advocate. The Section 4(2)(c) lays down that it should be “a person familiar with issues relating to sexual harassment.” This provision has been explained in Rule 4 of the SHWW (PPR) Rules, 2013 which elaborates the provision of Section 4(2)(c) of the Act. Rule 4 clearly stipulates that “person familiar with the issues relating to sexual harassment” shall be a person who has expertise on issues relating to sexual harassment and may include:
(a) a social worker with at least five years experience in the field of social work which leads to creation of societal conditions favourable towards empowerment of women and in particular in addressing workplace sexual harassment;
(b) a person familiar with labour, service, civil or criminal law.
The above provisions help us to make an order of merit for considering the nomination of an External Member on ICC as under:
(1) First preference may be given to an NGO committed to the cause of women,
(2) Second preference may be given to a person working for five years in the field of social work for empowerment of women/addressing workplace sexual harassment,
(3) Third preference may be given to a person having knowledge of labour laws or service law,
(4) Fourth preference may be given to a person familiar with civil or criminal law.
Thus we see that law does not specifically mention nomination of an advocate on ICC. However it stipulates that a person familiar with civil or criminal law can be considered for nomination as an External Member. However there is no specific denial to nomination of an advocate on ICC, as Rule 4(b) of the SHWW (PPR) Rules, 2013 elaborates nomination of a person familiar with civil or criminal law as a last option. Therefore it may be advisable in the interest of fair and transparent administration of justice that an External Member may be nominated according to Rule 4 of the SHOWW (PPR) Rules, 2013 which hands over an order of merit for nomination of a third party member as discussed hereabove.
4. In addition to above facts, a reference to guidelines and norms prescribed by Hon’ble Supreme Court of India in the case of Vishaka & Others vs. State of Rajasthan & Others (AIR 1977 SC 3011) show with reference to constitution of Complaints Committee that “Further, to prevent the possibility of any undue pressure or influence form senior level, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.” Here we find that historical judgment forming the basis of legislation of SHWW (PPR) Act, 2013, also envisaged the issues relating to constitution of ICC and involvement of a third party member on the Committee. Hon’ble Supreme Court has clearly prescribed that third party (i.e. an external member) should be either form NGO or from other body. Here also Hon’ble Supreme Court has given preference to a member of NGO or other body rather than an advocate.
5. Having discussed the spirit of judgment of Vishakha guidelines, it is clear that nomination of a third party member is an important factor in constitution of an ICC as enshrined in SHWW (PPR) Act, 2013. The External Member has to be nominated from the initial stage of constitution of an ICC. In some cases it was seen that name of the External Member was not notified in the order at the stage of constitution of ICC, but it was left open to the ICC to adopt any member as and when required by it. It is emphasized that such an order is not in accordance with provisions of the Act, and it would make the order invalid. The law has conferred the powers of nomination of members on the Employer, and not to any one else. This gives a prudent conclusion that statutory powers conferred upon an employer cannot be delegated to any other Committee or to an officer of the employer. Therefore, it is important factor to be borne in mind that all the members of the ICC, including the Chairperson and the External Member, have to be nominated by the employer at the time of issuing the order.
6. Role of the third party External Member has been also provided in the Act as it mandates in Section 4(2)(c). Although the Act does not elaborate responsibilities of an External Member, but the preamble to the Act refers to the case of Vishaka vs. State of Rajasthan which defines the role of such an External Member. Hon’ble Supreme Court of India in Vishka case decided the guidelines to serve as law under Article 32 of the Constitution, and enshrined the provision of third party “To prevent the possibility of any undue pressure or influence from senior levels.” It is thus evident that an External Member has to guard against exercise of any undue pressure or influence during inquiry and in the inquiry report as well. He has also to guard against undue pressure/influence that may be exercised from a committee member or the Presiding Officer/Chairperson herself. It is further needless to mention that an External Member has also to see that proceedings of inquiry are conducted in accordance with the procedure prescribed in the service rules applicable to the respondent/accused employee.
7. It is thus evident that law has cast greater responsibility both upon the employer and upon the External Member for fair implementation of the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. An employer has to exercise careful discretion in the choice of nomination of an External Member, and the External Member has to fairly comply with the onus imposed upon her/him by the Act in the light of milestone judgment in Vishaka case handed over by the Hon’ble Supreme Court of India.
From India, New Delhi
By: C.M. Lal
Consultant in Service Laws
srivastavacmlal@gmail.com
Internal Complaints Committee is mandated to be constituted under Section 4(1) of the SHWW (PPR) Act, 2013. The aim, objects and functions of the ICC have been defined in the provisions from Section 9 to Section 15 and Section 21 of the Act. Although the Act does not explicitly speak on the minimum or maximum number of members to be nominated in ICC, but provisions in Sections 4(2)(a), (b) and (c) indicate that there shall be minimum four (4) members in the ICC. The qualifying criteria of these four members and the basis of their nomination is described in the aforementioned Sections 4(2)(a), (b) and (c). The Chairperson/Presiding Officer of the ICC has to be a woman employee at senior level from amongst the employees at workplace. Two other members have also to be from amongst the employees of the same workplace who should either be committed to the cause of women or experienced in the field of social work or have legal knowledge. These three members of the ICC have to be nominated from amongst the women employees. It is most relevant to mention that spirit of the Section 4(2)(b) of the Act is that two members have to be nominated from amongst the employees of the same workplace i.e. it does not state that these two members should be women. Therefore there is no bar to nominate any male employee in pursuance to Section 4(2)(b) of the Act. However it is to be noted that qualifying criteria as specified in the section ibid must be fulfilled.
2. Nomination of fourth member is an important and critical requirement of the Act which deserves weightage in consideration by the Employer. The Act prescribes in Section 4(2)(c) that “One member from amongst non governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.” Here the Act contemplates to involve an external member in the ICC with stipulation that such a member should be from an NGO/Association committed to the cause of women or a person familiar with the issues of sexual harassment. If an employer opts for an NGO member, then the requirement is that such an NGO/Association should be dedicated to the cause of women. It would be most appropriate if the NGO/Association is working for the issues related to women in crisis i.e. victims of molestation, women’s exploitation at workplace, sexual assault and domestic violence etc. Although there may be NGOs/Associations engaged in the field of women empowerment i.e. upliftment of women through educational, skill development and financial programs etc.
3. Section 4(2)(c) of the Act, as an alternative to nomination of an NGO member, stipulates that “a person familiar with the issues relating to sexual harassment” can be considered for nomination as an External Member in the ICC. Some employers/organizations think that an advocate can be nominated in the ICC as an External Member. The idea behind such thought may be that an employer considers that an advocate is a legally sound person and he can guide the employer on the legal intricacies during the proceedings of inquiry by ICC. It may be that an advocate has good knowledge of pleadings of cases of sexual harassment in courts, and that he may have acquired an experience in pleading of such cases, but the SHWW (PPR) Act, 2013 does not specifically stipulate in Section 4(2)(c) that an external member may be an advocate. The Section 4(2)(c) lays down that it should be “a person familiar with issues relating to sexual harassment.” This provision has been explained in Rule 4 of the SHWW (PPR) Rules, 2013 which elaborates the provision of Section 4(2)(c) of the Act. Rule 4 clearly stipulates that “person familiar with the issues relating to sexual harassment” shall be a person who has expertise on issues relating to sexual harassment and may include:
(a) a social worker with at least five years experience in the field of social work which leads to creation of societal conditions favourable towards empowerment of women and in particular in addressing workplace sexual harassment;
(b) a person familiar with labour, service, civil or criminal law.
The above provisions help us to make an order of merit for considering the nomination of an External Member on ICC as under:
(1) First preference may be given to an NGO committed to the cause of women,
(2) Second preference may be given to a person working for five years in the field of social work for empowerment of women/addressing workplace sexual harassment,
(3) Third preference may be given to a person having knowledge of labour laws or service law,
(4) Fourth preference may be given to a person familiar with civil or criminal law.
Thus we see that law does not specifically mention nomination of an advocate on ICC. However it stipulates that a person familiar with civil or criminal law can be considered for nomination as an External Member. However there is no specific denial to nomination of an advocate on ICC, as Rule 4(b) of the SHWW (PPR) Rules, 2013 elaborates nomination of a person familiar with civil or criminal law as a last option. Therefore it may be advisable in the interest of fair and transparent administration of justice that an External Member may be nominated according to Rule 4 of the SHOWW (PPR) Rules, 2013 which hands over an order of merit for nomination of a third party member as discussed hereabove.
4. In addition to above facts, a reference to guidelines and norms prescribed by Hon’ble Supreme Court of India in the case of Vishaka & Others vs. State of Rajasthan & Others (AIR 1977 SC 3011) show with reference to constitution of Complaints Committee that “Further, to prevent the possibility of any undue pressure or influence form senior level, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.” Here we find that historical judgment forming the basis of legislation of SHWW (PPR) Act, 2013, also envisaged the issues relating to constitution of ICC and involvement of a third party member on the Committee. Hon’ble Supreme Court has clearly prescribed that third party (i.e. an external member) should be either form NGO or from other body. Here also Hon’ble Supreme Court has given preference to a member of NGO or other body rather than an advocate.
5. Having discussed the spirit of judgment of Vishakha guidelines, it is clear that nomination of a third party member is an important factor in constitution of an ICC as enshrined in SHWW (PPR) Act, 2013. The External Member has to be nominated from the initial stage of constitution of an ICC. In some cases it was seen that name of the External Member was not notified in the order at the stage of constitution of ICC, but it was left open to the ICC to adopt any member as and when required by it. It is emphasized that such an order is not in accordance with provisions of the Act, and it would make the order invalid. The law has conferred the powers of nomination of members on the Employer, and not to any one else. This gives a prudent conclusion that statutory powers conferred upon an employer cannot be delegated to any other Committee or to an officer of the employer. Therefore, it is important factor to be borne in mind that all the members of the ICC, including the Chairperson and the External Member, have to be nominated by the employer at the time of issuing the order.
6. Role of the third party External Member has been also provided in the Act as it mandates in Section 4(2)(c). Although the Act does not elaborate responsibilities of an External Member, but the preamble to the Act refers to the case of Vishaka vs. State of Rajasthan which defines the role of such an External Member. Hon’ble Supreme Court of India in Vishka case decided the guidelines to serve as law under Article 32 of the Constitution, and enshrined the provision of third party “To prevent the possibility of any undue pressure or influence from senior levels.” It is thus evident that an External Member has to guard against exercise of any undue pressure or influence during inquiry and in the inquiry report as well. He has also to guard against undue pressure/influence that may be exercised from a committee member or the Presiding Officer/Chairperson herself. It is further needless to mention that an External Member has also to see that proceedings of inquiry are conducted in accordance with the procedure prescribed in the service rules applicable to the respondent/accused employee.
7. It is thus evident that law has cast greater responsibility both upon the employer and upon the External Member for fair implementation of the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. An employer has to exercise careful discretion in the choice of nomination of an External Member, and the External Member has to fairly comply with the onus imposed upon her/him by the Act in the light of milestone judgment in Vishaka case handed over by the Hon’ble Supreme Court of India.
From India, New Delhi
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FORM-F-NOMINATI ON OF GRATUITY.pdf
Process flow of Nomination.doc
MY PARTY INVITATION.pps