Sexual Harassment: Composition and Duties of the Internal Complaints Committee

Introduction

More than 50% of working women faced sexual harassment, crude jokes, and unwelcome gestures at least once in their career. Reporting sexual harassment is not easy, sometimes, due to the fear of unlawful termination, unnecessary work pressure, spoiling the team environment.   

The Sexual Harassment of Women under the Workplace (Prevention, Prohibition and Redressal) Act (hereinafter referred to as “Act”) was enacted in the year 2013 with threefold purposes:

1. Providing protection to women against sexual harassment at the workplace,

2. To prevent sexual harassment

3. To provide a redressal mechanism for complaints relating to sexual harassment at the workplace

The Act was enacted after the decision of the Supreme Court in the case of Vishaka and Others v. State of Rajasthan and Others (1997 (7) SCC 323), where the honorable court laid down guidelines relating to sexual harassment of women at the workplace, known as “Vishakha Guidelines”. The guidelines were in force until the enactment of the legislation.

The Act recognizes that sexual harassment of women results in the violation of fundamental rights granted to women under the Indian Constitution. Right to Equality guaranteed under Article 14 and 15 and Right to live with dignity under Article 21(3) are the rights that are affected due to sexual harassment faced by women at the workplace.

Consult: Top Lawyers for Workplace related Issues

What is an Internal Complaint Committee?

The Internal Complaints Committee (ICC) is an obligation under the Act which must be adhered to by an employer of a workplace with more than ten employees as per Section 4 of the Act. The Internal Complaints Committee is the initial in-house body which must be approached for filing of a complaint relating to sexual harassment by the aggrieved women. The Internal Complaints Committee plays an important role in the functioning of the provisions of the Act and to ensure the fulfillment of its objectives. The major functions of the Internal Complaints Committee involve implementing the Policy relating to the prevention of sexual harassment, resolving complaints by the aggrieved and recommending actions to be taken by the employer.

Procedure to Constitute an Internal Complaints Committee

The Internal Complaints Committee must be constituted by an employer at a workplace having more than ten employees. It has to be constituted by an order in writing. In case there are different offices of the workplace, the Committee shall be constituted at every office or unit. The Committee must consist of the following members: -

1. A Presiding Officer

2. Two employee members

3. One member from NGO or Association working for the cause of women

At least one-half of the total members must be women.

What are the Qualifications to be a Member of the Committee?

As per Section 4 of the Act, the following are the qualifications for being a member of the Internal Complaints Committee in the workplace: -

1. Presiding Officer

The Presiding Officer is the Chairperson of the Internal Complaints Committee. The post must be held by a senior-level female employee at the workplace. The Act provides that in case a senior female employee is unavailable, there can be a nomination of senior female employees from other offices or administrative units of a workplace. Even if not available at another office, the act further provides that such presiding officer be nominated from any other workplace. The provisions have been enacted with a purpose to address the concerns of small workplaces, where female employees at senior levels may not be available. In such cases, the employer may nominate a presiding officer from outside the workplace.

2. Employee

The ICC must also comprise of two or more members from its employees. It is desirable that they possess the legal knowledge, are experienced in social work or committed to the women’s cause. These characteristics are not mandatory and merely preferable because it may not be viable to find such employees.

3. Outside Member

The ICC must also include a member who is a person familiar with issues relating to sexual harassment, or is a member of a non-governmental organization or association which is committed to women’s cause. Having an outside member gives room for an outside perspective to the ICC. The requirement was also prescribed by the Supreme Court in the Vishakha Guidelines.

Top Read: Non-Compliance of Sexual Harassment of Women at Workplace

What is the Tenure of the Members of the Committee?

As per Section 4(3) of the Act, the tenure of the members of the Internal Complaints Committee in the workplace, i.e. Presiding Officer as well as other members, must not be more than three years from the date of nomination.

When can a Member of the Committee be Disqualified?

A member of ICC may be disqualified on the following grounds:

1. Disclosing of confidential information. For example, details of proceedings in case of an inquiry.

2. If there is a conviction, or inquiry into an offense under law against the member.

3. If the person is found guilty or disciplinary proceedings are pending against him.

4. If the person has abused the position which is prejudicial to the public interest.

Are the Members of the Committee Eligible for any Remuneration?

As per Section 4(4) of the Act, the members who have been appointed from non-governmental organizations or associations are eligible for remuneration to be paid by the employer. They shall be paid remuneration for holding proceedings of the Internal Complaints Committee.

Further, as per Section 3 of the Rules, the NGO members are entitled to an allowance of Rs. 200 per day for the conduct of proceedings at the ICC. They shall also be reimbursed for the travel costs incurred.

What is the Procedure to File a Complaint with the Committee?

The Act does not prescribe a particular format for filing of a complaint. However, following are the perquisites relating to filing of a complaint relating to sexual harassment:-

Who can file a complaint?

The complaint can be filed by the following persons: -

1. Aggrieved women

2. In case of her physical incapacity, the following persons can file a complaint –

   1. Relative of Complainant

   2. Friends of Complainant

   3. Co-worker

   4. Officer of National Commission for Women or State Commission for Women

   5. Any person who has knowledge of the incident with the written consent of the complainant

3. In case of her mental incapacity, the following persons can file a complaint –

   1. Complainant’s relative

   2. Complainant’s friend

   3. Special educator

   4. Qualified psychiatrist/psychologist

Suggested Read: Meaning of Sexual Harassment at the Workplace, Acts of Sexual Harassment

Time Period

The complaint can be filed within 3 months from the date of the incident of sexual harassment. In case of a series of incidents, the complaint must be filed within 3 months from the date of the last incident. The Act provides that the time period of 3 months may be extended by the Committee after recording reasons.

Other requirements

1. Six copies of the complaint are to be filed

2. Supporting documents and evidence, details of witnesses

3. Details of the incident

4. Details of respondent

Timeline of the complaint

1. After receiving the complaint, within seven days one copy of the complaint is sent to the respondent.

2. Upon receiving the complaint, the respondent has ten days to file a reply to the complaint along with supporting documents.

3. Ninety days period is provided for completion of the inquiry.

4. The issuing of an inquiry report must be within ten days after the completion of inquiry.

5. After inquiry, the employer must act upon the recommendations within ten days.

6. Ninety days period is available for appeal against the decision of the ICC.

Powers of the Internal Complaints Committee

The Internal Complaint Committee is vested with the powers of a Civil Court under the Civil Procedure Code, 1908(1) in the following: -

1. When summoning and enforcing the attendance of a person related to the incident.

2. When it requires discovery or production of documents

3. For other matters relating to the incident of sexual harassment

Upon completion of the inquiry, if the Internal Complaint Committee finds the person guilty, it may prescribe the following actions: -

1. Initiate action against a person in accordance with the service rules

2. In case there are no service rules, take actions like a warning, withholding promotion, termination, community service, etc.

3. Deduct compensation to be paid to aggrieved women from the salary of respondent.

The amount of compensation payable is calculated on the basis of the following factors: -

1. Mental trauma, pain, suffering and emotional distress caused to the aggrieved women

2. Loss in career opportunity due to the incident of sexual harassment

3. Medical expenses incurred by the victim for physical/psychiatric treatment

4. Income and status of the alleged perpetrator

5. Feasibility of such payment in a lump sum or in installments

If the respondent fails to pay the amount of compensation, the ICC may forward the amount to be recovered as an arrear of land revenue with the District Officer.

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What is the power of the committee if the complaint is malicious?

1. order to protect innocent people from false and malicious complaints, a provision has been made under the Act. The committee may recommend an action if the Committee finds after the inquiry that the complaint had been filed with malicious intent or that a false complaint was made or a forged document was submitted during the proceedings.

The Act clarifies that to determine the complaint being the malicious, mere inability to provide adequate evidence is not sufficient. And the malicious intent must be determined after the conduct of an inquiry.

When can the committee forward the complaint to the police?

The Internal Complaint Committee has been empowered to forward the complaints to the police in two circumstances which are as follows: -

1. For registration of a case under section 509 of the Indian Penal Code(2) or other provisions of the criminal law, within the period of seven days.

2. When a settlement is agreed upon between the parties and the respondent does not comply with the condition(s) of the settlement, the Committee may forward the complaint to the police.

What actions can be taken by the Committee during the pendency of the inquiry?

Upon receiving a written request, the Internal Complaints Committee can recommend the following actions to the employer during the inquiry pending: -

1. Transferring the respondent or the aggrieved to any other workplace

2. Granting leave to the aggrieved women up to three months

3. Any other relief as may be prescribed

It is the duty of the employer to implement the recommendations of the Committee and thereafter submit a report of the same.

What are the general duties of the Committee?

The Committee has a major role to play at the workplace where it has been constituted. A general list of duties of the Committee is enumerated as follows: -

1. Implementation of the Anti–Sexual Harassment Policy at the workplace

2. Submit an Annual Report

The employer must include details in the report like number of case files at their disposal.

3. Create awareness at the workplace by way of documents, notices, workshops, seminars, etc.

4. Publicize the policy framework

5. Provide a safe and accessible mechanism of complaint to the victims

6. Initiation of inquiry at the earliest

7. Redress the complaints in the best possible manner

8. Provide for interim relief

9. Provide an opportunity for conciliation

10. Follow the principles of natural justice at all stages of the proceedings

11. Forward the complaint to the police, where required

12. Submit recommendations along with the inquiry report

13. Maintain confidentiality in regard to the proceedings taking place before the Committee

Further Read: Employee Bonds in India

When can an appeal be filed against the recommendations of the Committee?

An appeal can be filed before the court or tribunal against the recommendations of the Committee within a period of ninety days in the following circumstances: -

1. Recommendations made by the Committee under S. 13(2) i.e. no action is to be taken when the allegations have not been proved

2. Recommendations made under S. 13(3) i.e. action is to be taken when the allegation has been proved

3. Recommendations made under S. 14 i.e. action is to be taken against the malicious complaint or false evidence

4. Recommendations made under S. 17 i.e. penalty for publishing confidential information

What are the consequences of non-compliance with the provisions under the Act?

The Act imposes certain mandatory obligations upon the employer which includes constituting the Internal Complaints Committee. In case of failure to do so, the act imposes a penalty of fifty thousand rupees.

Further, the Act provides that repetition of the same offense would lead to double penalty or deregistration or revocation of license of the concerned business enterprise. Also, the offenses under the Act are non-cognizable.

External Links:

1. Civil Procedure Code, 1908 - A detailed view of the Civil Procedure Code, 1908.

2. Section 509 of the Indian Penal Code - A sitemap of section 509 of the Indian Penal Code.

3. Article 14 and 15 and Right to live with dignity under Article 21 - A detailed view of Article 14 and 15 and Right to live with dignity under Article 21.