The Legal Guide

Protection Against Sexual Harassment to Women at Workplace:

In this 21st century, when 50% of the population of our country is formed of women and most of them are seen to be working in different public and private sectors, where do we legally stand as a Country in providing the fundamental laws to them, enumerated in the Constitution, and how far have we practically implemented the laws protecting women at the workplace, is our focal issue in this discussion.

Since the independence of our Country, we have seen several laws being implemented in order to provide rights for women which have strengthened the backbone of our country socially, politically, economically. Though the first instance of sexual harassment at workplace came to the limelight with Vishaka v. the State of Rajasthan (AIR 1997 SC 3011) in the year 1993. Over the years several landmark judgments, like Randhir Singh v. Union of India giving the basic guidelines for equal pay for equal work, and Seema Pecha v. State of Sikkim and others, another one of the cases including sexual harassment at the workplace the likes have shown how an establishment needs to institutionalise the directions as provided not only by the Constitution of India but also through various precedents in notable cases adjudicated by the Apex Court.

Some of the statutory laws, other than the Constitution itself, that safeguards the rights of women at the workplace is Sexual Harassment of Women at Workplace (Prevention, Progobition and Remedies) Act, Maternity Benefits Act, Indecent Representation of Women (Prohibition) Act, Equal Remuneration Act, Factories Act, Minimum Wages Act. India is also a signatory to five human rights conventions under the United Nations including Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) working for the elimination of all forms of discrimination against women.

Though these statutory laws exist, most of them are not thoroughly implemented in the grassroots whereby many women are still under various maltreatment in their workplace unknown to them, be it in a city or a rural area. Thus we shall discuss what are the fundamental laws that a working woman must be aware of? What laws protect their rights and what are the legal measures that may be taken especially focussing on the prohibition of sexual harassment of women at the workplace?

Broadly speaking, there are three main protection that has been legally provided to every woman in India, those are— (1) Equal Pay for Equal Work, through the Constitution [Article 39(d)] and statutory laws like Minimum Wages Act, Equal Remuneration Act; (2) Right to Maternity Benefits, through Maternity Benefits Act, 1961 and it’s present Amendment Act, 2017, and (3) Right against Sexual Harassment, through the POSH Act, 2013 [Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013] and Indecent Representation of Women (Prohibition) Act;

We shall briefly discuss on the above issues relating to what legal remedies are available and what are the penal actions that shall be applicable in case of any contravention, as follows:

Equal Pay for Equal Work:
Equal Pay for Equal Work as provided under Article 39(d) of the Constitution of India, placed as Directive Principle of State Policy, has been implemented under statutes like Minimum Wages Act, Equal Remuneration Act.

In Randhir Singh v. Union of India the Supreme Court held the principle of equal pay for equal work though not a fundamental right is certainly a constitutional goal and therefore capable of enforcing through constitutional remedies under article 32 of the constitution.

Moreover, it has been held in the State of A.P. and others v. G.Sreenivasa Rao and others, that “Equal pay for equal work” does not mean that all the members of the cadre must receive the same pay packet, irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. It was further held that ordinary grant of higher pay to a junior would be ex-facie arbitrary, but the equality doctrine cannot be invoked where there is the justifiable ground of doing so.

In order to implement the aforesaid Article, as enumerated in the Constitution, the ordinance of Equal Remuneration was passed in the year 1975, which was the International Women’s Year as celebrated by the United Nations and the same came into force from 1976.

The Equal Remuneration Act, 1976 aims towards providing equal remuneration to men and women workers and for prevention of discrimination, on the ground of sex, against women in the matter of employment and for matter connected therewith and incidental thereto. Abiding the guidelines of CEDAW whereunder the states are bound to provide an indiscriminate environment for women in all forums.

As per Section 2(c) of the Act, 1976, the word “Employer” has the meaning assigned to it under clause (f) of Section 2 of the Payment of Gratuity Act, 1972. It means, “in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop –
(i) belonging to, or under the control of, the Central Government or a State
Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned,
(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive office of the local
authority,
(iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield,
plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person;”

Under Section 2(h) “same work or work of a similar nature means work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of woman are not of practical importance in relation to the terms and conditions of employment;”

The definition “Worker” means a worker in any establishment or employment in respect of which this Act has come into force;

Remedies:
To make any complaint in case of contravention or for claims arising out of non-payment of wages, one has to approach the Labour Officer of their respective establishment. If dissatisfied with the order of the Labour officer one may approach the Appellate Authority within 30 days.

In case of failure to apply within 30 days with sufficient cause one may be allowed a further period of 30 days and no appeal shall lie thereafter. The whole proceeding shall be governed by Section 33-C of the Industrial Disputes Act.

Penalties:
Section 10 and 11 of the Act provides the penalties in case of willful omission and commission of any act by an employer or company which is against the mandates of the Act of 1976.

Be it mentioned herein, that Code on Wages, 2019 shall repeal Payment of Wages Act, Minimum Wages Act, Equal Remuneration Act, and Payment of Bonus Act with retrospective effect providing a consolidated act for all.

Right to Maternity Benefits:
Under Article 42 of the Constitution of India, has the “provision for just and humane conditions of work and maternity relief The State shall make provision for securing just and humane conditions of work and for maternity relief. With the present Amendment Act of 2017, India has taken a leading step towards providing multiple facilities for women on maternity leave including 12-26 weeks paid leave which may be divided as 8 weeks pre-childbirth and 18 weeks post-childbirth to any women working in an establishment with over 10 regular employees. The leave shall be reduced to 12 weeks in case of women having a child after their 2nd child. In case of adoption also the maternity leave of 12 weeks have been provided to the women. Further, a créche facility with a leave for 4 visits a day, to both male and female employees, has also been provided in establishments with 50 or more employees.

Remedies (Section 17):
In case of failure to provide payment by an employer, one may make a complaint before an Inspector. The inspector may suo motu or on receipt of complaint make an inquiry and after satisfaction with his enquiry, the inspector may direct for payment of the same. If aggrieved by the order of the Inspection, one can appeal before the prescribed authority within 30 days. The decision as made by the prescribed authority or in case of no appeal, by the Inspector, shall be held to be final. The same may be recoverable as Arrear of Lane Revenue.

Penalties:
If any employer contravenes the provisions of this Act or the rules made thereunder he shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both; and where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall in addition recover such maternity benefit or amount as if it were a fine, and pay the same to the person entitled
thereto.

Right against Sexual Harassment:
“Sexual Harassment results in a violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under Article 21 of the Constitution and the right to practice any profession or to carry on any occupation, trade or business which includes a righto a safe environment free from sexual harassment,” says the Act of 2013 in its recital. It further continues “the protection against Sexual Harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of All Forms of Discrimination against Women, which has been ratified on 25th June 1993 by Government of India.”

The act aims at providing a secure environment for women to work, upholding the guidelines as provided by the Supreme Court of India in Vishaka v State of Rajasthan.

The definition of sexual harassment under section 2(n) of the Act is the same as provided by the Supreme Court in the aforementioned landmark judgment i.e. Section 2(n) says, “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

The definition of “aggrieved woman” under Section 2(a) means—
“(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to
have been subjected to any act of sexual harassment by the respondent;
(ii) in relation to dwelling place or house, a woman of any age who is employed in such a
dwelling place or house;”

Remedies:
Complaint:
Any aggrieved woman may file a complaint under Section 9 of the POSH Act, 2013, before the Internal Committee or the Local Committee, as the case may be, within a period of three months from the date of the incident. With sufficient cause, a further period of three months may be granted.

Conciliation: (Section 10)
At the request of the aggrieved women the Internal Committee or the Local Committee, before making an inquiry under section 11, may take actions to settle the matter between the parties through conciliation, provided that no monetary settlement can be the basis of conciliation.

Inquiry:
As per Section 11 of the POSH Act, the Internal Committee or the Local Committee shall make inquiry subject to the provisions of Section 10 and if prima facie case exists then within seven days shall forward the complaint to the police under Section 509 of the Indian Penal Code and any other relevant provision as the case may be.

In case of non-compliance to the conciliation by the respondent under Section 10, the Internal Committee or the Local Committee shall follow the instructions as provided under subsection (1) of Section 11.

If aggrieved by the recommendation one may appeal before Court or Tribunal, as the case may be, within ninety days from the recommendation.

In case of physical, mental incapacity or death or otherwise, legal heirs or such other person, as may be prescribed, may make a complaint.

So what are the steps that an establishment must take to provide a safe and non-hostile environment for their female workers effectively?

Duties of Employer (Section 19):
Every employer shall—
provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under subsection (I) of section 4;
organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;
provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being 45 of 1860. in force;
cause to initiate action, under the Indian Penal Code or any other law for the 45 of 1860, time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
monitor the timely submission of reports by the Internal Committee.

Prohibition against Sexual Harassment Body: Whether it is bounded within the corporate sector or Private establishments should also form such a body as well?

The word workplace as defined under section 2(o) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 says “workplace” includes-—
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 appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
hospitals or nursing homes;
any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such a journey;
a dwelling place or a house;

Section 2(c) of the Indecent Representation of Women (Prohibition) Act, 1986, “indecent representation of women: means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals;”

Penalties (Section 6):
Any person who contravenes the provisions of section 3 or section 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.

In a nutshell, it may be stated that with the rules as provided under the Convention on the Elimination of All Forms of Discrimination against Women as well as Articles 14, 15, 16, 21 and 39(d) of the Constitution of India, women at workplace, though have been provided various statutory and constitutional remedies, we need to progressively work towards further implementation and strictness of maintaining a non-hostile environment for women to work in without any discrimination against their employment both executively as well as judicially for providing equal opportunities to women in their workplace.