Dear All,
Now a days there are lot of females are working. It is mandatory on the part of management to form Sexual Harrassment Prevention Committee. If any of the employee has found guilty on sexual harrassment case at workplace, then we need to conduct domestic inquiry.
I have query about conducting the domestic enquiry. We need to give the charge sheet, have an ind. inquiry office, MR and DR. (every thing has been done as per other domestic inquiry)
Some of my collegue differ in the opinion that here the onus of proving innocence lies on the employee, the management need not have to prove any thing.
Need your input at the earliest.
Regards,
Avinash K.
From India, Mumbai
60Now a days there are lot of females are working. It is mandatory on the part of management to form Sexual Harrassment Prevention Committee. If any of the employee has found guilty on sexual harrassment case at workplace, then we need to conduct domestic inquiry.
I have query about conducting the domestic enquiry. We need to give the charge sheet, have an ind. inquiry office, MR and DR. (every thing has been done as per other domestic inquiry)
Some of my collegue differ in the opinion that here the onus of proving innocence lies on the employee, the management need not have to prove any thing.
Need your input at the earliest.
Regards,
Avinash K.
From India, Mumbai
Dear Sir
I am extracting below a portion of the Judgment of the Honourable Supreme Court in Vishaka's case.
"In view of the above, and the absence of enacted law to provide fro the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted
for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.
The GUIDELINES and NORMS prescribed herein are as under:-
HAVING REGARD to the definition of 'human rights' in Section 2(d) of
the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the
present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual
favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of
sexual nature.
Where any of these acts is committed in circumstances where
under the victim of such conduct has a reasonable apprehension that
in relation to the victim's employment or work whether she is
drawing salary, or honorarium or voluntary, whether in government,
public or private enterprise such conduct can be humiliating and may
constitute a health and safety problem. It is discriminatory for
instance when the woman has reasonable grounds to believe that
her objection would disadvantage her in connection with her
employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Steps:
All employers or persons in charge of work place whether in the public
or private sector should take appropriate steps to prevent sexual
harassment. Without prejudice to the generality of this obligation
they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action:
Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. 6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly."
Please see the portion in BOLD letters. In view of this the regular procedure adopted for any other misconduct has to be followed in the case of sexual harassment case also.
From India, Madras
I am extracting below a portion of the Judgment of the Honourable Supreme Court in Vishaka's case.
"In view of the above, and the absence of enacted law to provide fro the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted
for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.
The GUIDELINES and NORMS prescribed herein are as under:-
HAVING REGARD to the definition of 'human rights' in Section 2(d) of
the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the
present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual
favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of
sexual nature.
Where any of these acts is committed in circumstances where
under the victim of such conduct has a reasonable apprehension that
in relation to the victim's employment or work whether she is
drawing salary, or honorarium or voluntary, whether in government,
public or private enterprise such conduct can be humiliating and may
constitute a health and safety problem. It is discriminatory for
instance when the woman has reasonable grounds to believe that
her objection would disadvantage her in connection with her
employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Steps:
All employers or persons in charge of work place whether in the public
or private sector should take appropriate steps to prevent sexual
harassment. Without prejudice to the generality of this obligation
they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action:
Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. 6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly."
Please see the portion in BOLD letters. In view of this the regular procedure adopted for any other misconduct has to be followed in the case of sexual harassment case also.
From India, Madras
Onus/ responsibility to prove the charges or disprove it can not be one sided. Moreover, a charge need not be confined only against an employee but it can be against an employer also. So, if the charges of sexual harassment is against an employer himself or a member of management himself, there is no validity in the point that onus to prove (innocence) lies with the employee only. In any domestic enquiry bothy the parties have to place evidences against the charges. Then only a conclusion can be arrived at.
Regards,
Madhu.T.K
From India, Kannur
Regards,
Madhu.T.K
From India, Kannur
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Domestic Inquiry.pdf
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