Sexual Harassment at Workplace

Dr. Rajen Mehrotra*

1. We are all well aware of the Hon. Supreme Court of India

Judgment by Justice Mrs. Sujata Manohar on 13 August
1997 in Vishaka and others v/s State of Rajasthan where
the Hon. Supreme Court of India laid down guidelines to be
followed by enterprises and the Government of India for the
prevention and redressal of sexual harassment and their due
compliance under Article 141 of the Constitution of India, until
such time appropriate legislation was enacted by Parliament.
While there have been amendments in the Industrial
Employment (Standing Orders) Act 1946 to cover Sexual
Harassment as a misconduct and also there are some
enterprises in India following these guidelines by having set up
the committees and informing employees about the same.
However, most of the state governments and enterprises have
done little to ensure implementation of these guidelines in
spite the fact that a large number of women have entered the
employee work force in the last fifteen years and more so in
the service sector. By and large cases of sexual harassment
that occur at work place do not necessarily get reported,
because of the fear of social stigma at times being perceived
by the complainant , hence there is need for these cases to be
very carefully handled . In my corporate career of over four
decades I have handled some of these cases and there is need
for enterprises to ensure following the guidelines laid down by
the Hon. Supreme Court of India Judgment of 13 August

1997 in the Vishaka case, till such time legislation is in

place.
2. There have been two important milestone events in the
last two months with reference to the issue of Sexual
Harassment of Women at Workplace. These are The Hon.
Supreme Court of India Judgment on 19 October 2012 and
the Lok Sabha passing Bill Number 144-C of 2010 on The

Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal ) Bill ,2012 on 03rd September
2012. Details of the same are dealt with in the subsequent
paragraphs.
3. Justice R M Lodha , Justice Anil R Dave and Justice Ranjan
Gogai on 19th Oct 2012 in the Supreme Court of India in
Writ Petition Nos. 173- 177 of 1999 in the case of Medha
Kotwal Lele and others V/s Union of India and others have
mentioned that in one of these matters which is Medha
Kotwal Lele, this Court passed certain orders from time to time
i.e. on 26 April 2004 and 17 Jan 2006 the Court directed ,
Complaints Committee as envisaged by the Supreme Court in its
judgment in Vishakas case will be deemed to be an inquiry
authority for the purposes of Central Civil Services (Conduct) Rules,
1964 (hereinafter called CCS Rules) and the report of the complaints
Committee shall be deemed to be an inquiry report under the CCS
Rules. Thereafter the disciplinary authority will act on the report in
accordance with the rules. This Court further directed in the

order dated 26 April 2004 that similar amendment shall be

carried out in the Industrial Employment (Standing Orders)
Rules. As regards educational institutions and other
establishments, the Court observed that further directions
would be issued subsequently. On 17 Jan 2006, this Court in
couple of these matters passed the following order: These
matters relate to the complaints of sexual harassment in working
places. In Vishaka vs. State of Rajasthan, (1997), this Court issued
certain directions as to how to deal with the problem by all the State
Governments. The Court observed that the directions issued in
Vishaka case were not properly implemented by the various
States/Departments/Institutions. Based on the affidavits of the
State Governments it was clear to the court that States of

Orissa, Meghalaya, Himachal Pradesh, Goa, Arunachal

Pradesh and West Bengal amended the Rules relating to
duties, public rights and obligations of the government
employees but have not made amendments in Civil
Services Conduct Rules. Similarly, the States of Sikkim,
Madhya Pradesh, Gujarat, Mizoram, Orissa, Bihar, Jammu
& Kashmir, Manipur, Karnataka, Rajasthan, Meghalaya,

Haryana, Himachal Pradesh, Assam, NCT of Delhi, Goa,

Nagaland, Arunachal Pradesh, Jharkhand and Tamil Nadu
have not carried out amendments in order passed by this
Court on 26 April 2004 quoted above. The States which
have carried out amendments in the Civil Services
Conduct Rules and the Standing Orders have not provided
that the report of the Complaints Committee shall be
treated as a report in the disciplinary proceedings by an
Inquiry Officer. What has been provided by these States is
that the inquiry, findings and recommendations of the
Complaints Committee shall be treated as a mere
preliminary investigation leading to a disciplinary action
against the delinquent. The States like Rajasthan,
Meghalaya, Himachal Pradesh, Assam and Jammu and
Kashmir seem to have not formed Complaints committees
as envisaged in the Vishaka guidelines. Some States have
constituted only one Complaints Committee for the entire
State. The Union Territories of Andaman and Nicobar
Islands, Daman and Diu, Lakshadweep, Dadra and Nagar
Haveli and Puducherry have not made amendments in the
Standing Orders. The Union Territory of Chandigarh does
not seem to have carried out amendments in the Civil
Services Conduct Rules. Some of the Union Territories like
Dadra and Nagar Haveli and Chandigarh are reported to
have not yet formed Complaints Committees. Daman and
Diu have formed one Complaints Committee for the Union
Territory. The court further stated that guidelines in Vishaka
should not remain symbolic and the following further directions
are necessary until legislative enactment on the subject is in
place.
(i)
The States and Union Territories which have not yet
carried out adequate and appropriate amendments in
their respective Civil Services Conduct Rules (By
whatever name these Rules are called) shall do so
within two months from today by providing that
the report of the Complaints Committee shall be
deemed to be an inquiry report in a disciplinary
action under such Civil Services Conduct Rules. In

(ii)

(iii)

(iv)

(v)

other words, the disciplinary authority shall treat the

report/findings etc. of the Complaints Committee as the
findings in a disciplinary inquiry against the delinquent
employee and shall act on such report accordingly. The
findings and the report of the Complaints Committee
shall not be treated as a mere preliminary investigation
or inquiry leading to a disciplinary action but shall be
treated as a finding/report in an inquiry into the
misconduct of the delinquent.
The States and Union Territories which have not
carried
out
amendments
in
the
Industrial
Employment (Standing Orders) Rules shall now
carry out amendments on the same lines, as noted
above in clause (i) within two months.
The States and Union Territories shall form adequate
number of Complaints Committees so as to ensure that
they function at taluka level, district level and state level.
Those States and/or Union Territories which have
formed only one Committee for the entire State
shall now form adequate number of Complaints
Committees within two months from today. Each of
such Complaints Committees shall be headed by a
woman and as far as possible in such Committees an
independent member shall be associated.
The state functionaries and private and public sector
Undertakings/organizations /bodies/institutions etc. shall
put in place sufficient mechanism to ensure full
implementation of the Vishaka guidelines and further
provide that if the alleged harasser is found guilty, the
complainant victim is not forced to work with/under
such harasser and where appropriate and possible the
alleged harasser should be transferred. Further provision
should be made that harassment and intimidation of
witnesses and the complainants shall be met with severe
disciplinary action.
The Bar Council of India shall ensure that all bar
associations in the country and persons registered
with the State Bar Councils follow the Vishaka
guidelines. Similarly, Medical Council of India,
Council of Architecture, Institute of Chartered

Accountants, Institute of Company Secretaries and

other statutory Institutes shall ensure that the
organisations, bodies, associations, institutions and
persons registered /affiliated with them follow the
guidelines laid down by Vishaka. To achieve this,
necessary instructions/circulars shall be issued by all the
statutory bodies such as Bar Council of India, Medical
Council of India, Council of Architecture, and Institute of
Company Secretaries within two months from today. On
receipt of any complaint of sexual harassment at any of
the places referred to above the same shall be dealt with
by the statutory bodies in accordance with the Vishaka
guidelines.

4. From the above judgment of the Hon. Supreme Court it is

clear that enterprises both in Private Sector and Public
Sector, State Governments, State Bar Councils, Medical
Council of India, Council of Architecture, Institute of
Chartered Accountants, Institute of Company Secretaries
and other statutory Institutes will have to ensure
compliance as laid down in paragraph 3 on or
before 18th Dec 2012.
5. The Lok Sabha on 03rd September 2012 has passed
Bill Number 144-C of 2010 which is The Sexual
Harassment of Women at Workplace (Prevention,
Prohibition and Redressal ) Bill ,2012 and the same will
now go to the Rajya Sabha. In this bill the definition of
Employee means a person employed at a workplace for
any work on regular, temporary, ad hoc or daily wages
basis, either directly or through an agent ,including a
contractor, with or, without knowledge of the principal
employer ,whether for remuneration or not, or working on
a voluntary basis or otherwise, whether the terms of
employment are express or implied and include a coworker, a contract worker, probationer, trainee, apprentice
or called by any other such name. The definition of

workplace is wide and covers practically every

place of work including a dwelling place or house
and also covers domestic worker and people
working in the informal sector. The definition of
Sexual Harassment in the bill is similar to the definition
given by the Supreme Court in the Vishaka Case Judgment
on 13 August 1997 i.e. 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 favors; or
(iii) making sexually colored remarks ; or (iv) showing
pornography; or (v) any other unwelcome physical, verbal
or non verbal conduct of sexual nature; . The bill is fairly
exhaustive and deals with constitution of an internal
complaints committee in each enterprise and also
constitution of local complaints committee in every
district. As per section 26 of the bill where an employer
fails to constitute an internal committee or take action
based on the decisions of the internal committee or the
local committee or report the number of cases filed, if any,
and their disposal under the act in the annual report to the
District Officer then the employer shall be punishable with
a fine which may extend to fifty thousand rupees. Further
if any employer, after having been previously convicted of
an offence punishable under this act subsequently
commits and is convicted of the same offence then he is
liable to twice the punishment and cancellation, of
his license or withdrawal, or non-renewal, or approval, or
cancellation of the registration, as the case may be, by the
Government or local authority required for carrying on his
business or activity. One can clearly see the stringent
measures laid in the bill on failure to comply.
6. There is need for enterprises in the manufacturing sector
and the service sector ,statutory
institutions
(for
example State Bar Councils, Medical Council of India, Council
of Architecture, Institute of Chartered Accountants, Institute of

Company Secretaries ), professional bodies , academic

institutions , irrespective of them being large or small to

understand the implications of the Hon. Supreme Court of
India Judgment and the implications of the Bill just passed
by the Lok Sabha and act immediately ,so as to ensure
compliance as laid down and make all out efforts on
prevention,
prohibition
and
redressall
of
sexual
harassment of women at workplace. The number of
women entering the labour market is increasing, and it is
the responsibility of employers to ensure that the work
place is safe and secure for all, and if there are any
incidents of sexual harassment at workplace, then the
same need to be investigated as per the guidelines, and
action taken. While the Bill passed by the Lok Sabha on
03rd September 2012 is referring to sexual harassment of
women at workplace, however there can be instances of
sexual harassment of men at the workplace and these also
need to be dealt with, based on the guidelines to be
followed by enterprises and the Government of India in the
Vishaka Case.

*President Industrial Relations Institute of India (IRII), Former Sr. Specialist on Employers
Activities for South Asia with International Labour Organization (ILO) and Former
Corporate
Head
of HR of ACC Ltd. and Novartis India Ltd., EMail:rajenmehrotra@gmail.com

Published in Current Labour Reports & Arbiter issue of November 2012.