Theme: Labour & Employment

Workplace Guide for Persons with Disabilities

How can the guide help you?

The Nyaaya Guide for Persons with Disabilities at the Workplace helps persons with disabilities (PwDs) understand their employment rights and associated remedies.

What are the laws being discussed in the guide?

This guide discusses the rights of persons with disabilities outlined in the Constitution of India, 1950, The Rights of Persons with Disabilities Act, 2016 (PwD Act), The Rights of Persons with Disabilities Rules, 2017, and the Income Tax Act, 1961.

Who is a ‘person with disability’?

A person with disability is a person with long-term physical, mental, intellectual or sensory impairment, which restricts their full and effective participation in society equally with others.

Who is a person with “benchmark” disability?

A person with benchmark disability is someone who has at least 40% of a specified disability.

Specified types of disabilities include:

1.   Physical Disability

  • Locomotor Disability: Inability to perform activities associated with movement. People with locomotor disability include those with cerebral palsy, dwarfism, muscular dystrophy, acid attack victims, etc.
  • Visual Impairment: A condition of blindness or low vision.
  • Hearing Impairment: Deafness or loss of hearing.
  • Speech and language disability: Permanent disability affecting speech and language.

2. Intellectual Disability

Significant limitations in intellectual functioning (reasoning, learning, problem solving) and adaptive behaviour (everyday social and practical skills) including specific learning disabilities and autism spectrum disorder.

3. Mental Illness

Substantial disorder of thinking, mood, perception, orientation or memory that severely impairs judgement, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life. This does not include mental retardation.

4. Disability caused due to

  • Chronic neurological conditions: Multiple sclerosis, Parkinson’s disease
  • Blood disorders: Haemophilia, Thalassemia, Sickle cell disease Multiple Disabilities: More than one of the above specified disabilities.
  • Any other type of disability specified by the Central Government.

Disability Certificate

Why should you apply for a Disability Certificate?

A Disability Certificate gives you the right to apply for facilities, concessions and benefits under schemes put in place by the Government, and Government-funded

NGOs for persons with disabilities. The disability certificate is valid throughout India.

How can you apply for a Disability Certificate?

The Government specifies qualified and experienced people as certifying authorities competent to issue the Disability Certificate. Anyone with a specified disability can apply (using Form-IV) for a certificate of disability to:

  • a medical authority or other competent authority in the district where the applicant lives (according to the proof of residence in their application); or
  • the concerned medical authority in a government hospital where they are undergoing or have undergone treatment for their disability.

A legal guardian or concerned registered organisation can apply on behalf of a minor or a person unfit or unable to make the application themself.

For disability certificate form download, refer “Form-IV” in References here.

Find the nearest medical authority here.

What are the documents required with the application?

Attach the following with the application:

  • proof of residence;
  • two recent passport size photographs; and
  • Aadhaar number or Aadhaar enrollment number, if any.

Decision of the authority

The concerned authority will verify the information and assess the disability. If the authority thinks the applicant is a person with disability, they will issue a certificate of disability within a month. This could be a permanent certificate of disability, or a certificate with a validity period if the disability might vary over time. For example, if an employee has a hand injury which would take one year to heal, the authority could issue a temporary certificate of disability valid for one year.

If the authority finds the applicant ineligible, they will communicate this to them in writing within one month.

To check disability certificate or UDID card status, you can track it here by entering your enrolment/UDID card number/Request Number/Mobile Number/Aadhar number.

For disability certificate download, log in here using your enrolment number/UDID card number and date of birth.

Unique Disability ID (UDID)

What is a Unique Disability ID (UDID)?

You can now apply for a Unique Disability ID (UDID) in the form of the

Swavlamban Card. A Swavalamban/UDID Card contains all necessary details and is a single document for identification and verification of a person with disability for getting various benefits.

You can use the UDID card online portal to:

  • Apply for Disability Certificate and UDID Card online
  • UDID Card renewal
  • Apply for a lost UDID Card
  • Download e-Disability Card and e-UDID Card

How to apply for UDID Card online if you do not have a Disability Certificate

Fill an online application and attach scanned copies of the required documents. Choose the option “No” to “Have Disability Certificate?” in the Disability Details Tab while filling up the application, and submit the application.

How to apply for UDID Card online if you have a Disability Certificate

If your  data has been migrated to the UDID Portal, click “Already having Disability Certificate” and provide Beneficiary ID/State ID or Aadhaar Number (if linked), other details, fill up the application and submit.

If your data has not been migrated to the UDID Portal, fill up a fresh application and select the “Yes” option to the question “Have Disability Certificate?” In the Disability Details Tab, fill up other details and submit the application.

For UDID card download, log in here using your enrolment number/UDID number and date of birth.

Rights of PWD

 

What are the Employment-related Rights for a

Person with Disability  under the Constitution?

Right to Equal Opportunity

All citizens must have an equal opportunity in matters related to employment or appointment to Government positions. The Government can also make provisions for reserving appointments or posts for any backward class of citizens who are not adequately represented in Government services.

Government’s responsibility

The Government should try to make effective provisions and provide public assistance for persons with disabilities to secure employment.

What are the Employment-related Rights under the PwD Act?

Right to Vocational Training and Self Employment

Under Government schemes and programmes, persons with disabilities can get loans at concessional rates to support their employment, especially vocational training and self employment.

These schemes try to:

  • Include persons with disabilities in all mainstream formal and non-formal vocational and skill training schemes and programmes;
  • Ensure that a person with disability has adequate support and facilities to avail specific training;
  • Provide exclusive skill training programmes for persons with disabilities with active links with the market, for those with developmental, intellectual, multiple disabilities and autism;
  • Market products made by persons with disabilities; and
  • Maintain data on the progress made in the skill training and self employment of persons with disabilities.

Right against Discrimination

Government establishments should not discriminate against persons with disabilities in employment. However, depending on the type of work, the Government might exempt an establishment from this requirement. For employees with disability, Government establishments:

 

SHOULD  SHOULD NOT
Make reasonable adjustments and provide an appropriate barrier-free environment which is helpful for persons with disabilities. This involves designing physical spaces and information systems in such a way that persons with disabilities can easily access them. Deny promotion only on the ground of disability, or sack an employee who acquires a disability during their service.

 

If an employee is not suitable for the post after acquiring a disability, the employer can shift them to some other post with the same pay scale and service benefits. If it is not possible to adjust the employee against any post, the employer can keep them on an additional post until a suitable post is available, or till the age of retirement (whichever is earlier).

The Bombay High Court ordered a government employer to pay back wages to employees with disabilities from the date that their respective services were discontinued until the date that they were provided with an alternative position.

Right to Reservation in Employment and Promotion

Every Government establishment should keep aside at least 4% of total vacancies in the cadre strength in each group of posts for persons with benchmark disabilities. However, depending on the type of work, the Government might exempt an establishment from this requirement.

Out of the 4%, 1% each must be reserved for the following categories:

  1. blindness and low vision;
  2. deaf and hard of hearing;
  3. locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy.
  4. autism, intellectual disability, specific learning disability and mental illness, multiple disabilities.

If a suitable person with benchmark disability is not available for recruitment in a year, the employer will carry forward their vacancy to the succeeding recruitment year. If they are unavailable in the succeeding recruitment year also, the employer can take the Government’s approval to first fill the vacancy by interchange among the different categories. The employer can fill up the vacancy by appointing someone other than a person with disability only if there is no person with disability available for the post that year.

The reservation in promotions will be according to Government instructions.

Special Employment Exchange and Unemployment Allowance

The Government maintains offices or places as “Special Employment Exchange” for collecting and giving information about—

  • employers who want to employ persons with disabilities;
  • persons with benchmark disability seeking employment;
  • vacancies for persons with benchmark disabilities seeking employment.

For the Special Employment Exchange, the Government can order private and Government employers to give information about their vacancies for persons with benchmark disability.

The Government can make schemes for providing unemployment allowance to persons with disabilities registered with Special Employment Exchange for more than two years and not placed in any gainful occupation.

Employment in the Private Sector

The Government tries to provide incentives to private sector employers to ensure that at least 5% of their workforce is composed of persons with benchmark disability.

For example, a Government scheme under which employers need not deposit the EPF/ESI contribution for their PwD employees.

What are the Rights of a Person with Disability under Income Tax laws?

Under Section 80 DD, any expenditure by an individual or Hindu Undivided Family resident in India on the medical treatment (including nursing), training and rehabilitation etc. of dependants with disability can be deducted,  up to Rs. 75,000, or Rs. 125,000 in case of severe disability (80 %).

Under Section 80U, a person with disability resident in India can claim a deduction of up to Rs. 75,000, or Rs. 125,000 in case of severe disability (80 %).

How to file a complaint for violation of rights?

Anyone who feels that a Government establishment is discriminating against persons with disabilities can file a complaint with the Grievance Redressal Officer (GRO) (appointed in every Government Establishment).

The GRO will investigate the issue within two weeks and take up the matter with the establishment for corrective action. The GRO will also maintain a register of complaints.

If someone is not satisfied with the action taken on their complaint, they can approach the District-Level Committee on Disability.

What is the punishment for violating the law?

 

CRIME PUNISHMENT
Violating any provision of the PwD Act or Rules First offence – Fine up to Rupees ten thousand

Subsequent offences – Fine of Rupees fifty thousand to five lakh
Fraudulently getting benefits meant for persons with benchmark disabilities Jail time up to two years and/or fine up to Rupees one lakh
Atrocities such as:

●     Intentionally insulting or intimidating a PwD to publicly humiliate them

●     Assaulting a PwD to dishonour them, or outraging the modesty of a woman with disability

●     Using one’s position to sexually exploit or dominate the will of a child or woman with disability

●     Voluntarily injuring, damaging, or interfering with the use of any limb or sense or supporting device of a PwD

 Jail time of six months to five years and a fine

Resources

Schemes

  • Divyangjan Swavalamban Yojana: Providing concessional credit to start any income-generating, pursuing vocational or skill development, etc.
  • Prerna: Marketing assistance for products made by persons with disabilities
  • State-wise schemes here

Source of Information

Rights of Persons with Disabilities Act, 2016

Rights of Persons with Disabilities Rules, 2017 http://www.swavlambancard.gov.in/

http://disabilityaffairs.gov.in/content/

Glossary Terms

Person with Disability: A person with disability is a person with long-term physical, mental, intellectual or sensory impairment, which restricts their full and effective participation in society equally with others.

Sample Forms

Form IV for applying for Disability Certificate

Guide for Survivors of Sexual Harassment at the Workplace

 

How can the guide help you?

This guide by Nyaaya and Ungender helps those who have faced sexual harassment at the workplace to navigate the legal process in such situations. The guide clarifies legal aspects including what constitutes sexual harassment, remedies or safeguards available to the survivor, investigation procedure, punishments, etc.

The guide’s objective is to help survivors of sexual harassment secure a safe  work environment and enable them to take action against sexual harassment by a colleague, visitor, or anyone else at a workplace.

What are the laws being discussed in the guide?

This guide discusses the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”) and the  Indian Penal Code, 1860, (“IPC”) which criminalizes offences such as sexual harassment, stalking, and voyeurism and provides alternative criminal complaint mechanism.

 

What is sexual harassment at the workplace?

Sexual harassment at the workplace is any unwelcome sexual advance, request for sexual favours, or other kinds of unwelcome sexual behaviour which would make you feel offended, humiliated, or intimidated.

‘Sexual Harassment’ includes  unwelcome sexual behavior (directly or by implication) such as:

Physical contact and advances 

  • Forceful or unwanted, unnecessary physical touch, physical assault, or molestation
  • Forceful and repeated invitations for dates
  • Forceful or unwanted kisses or hugs
  • Unwanted, unwarranted touching of any body part
  • Stopping or blocking movements within a workspace
  • Sitting too closely and making you feel uncomfortable (if you move away the person moves closer to you again).

Sexual favours

  • A demand or request for sexual favours
  • Any favour or advantage granted in return for a sexual favour from you

Note: Sexual favors could mean requests for lewd conversations, interactions, engaging in perverse talks, entertaining similar conversations, and the actual physical act of indulging with a person sexually.

 Sexually coloured remarks

  • Derogatory comments about your body or dress, slurs, epithets, or sexually suggestive jokes
  • Comments on your personal life with sexual undertones
  • Subtle innuendos or open taunting about your physical appearance or body shape
  • Sexual metaphors, obscene jokes, or jokes causing or likely to cause awkwardness or embarrassment.

Showing pornography or other sexually offensive or derogatory material

  • Displaying sexually suggestive objects or pictures, cartoons, calendars, or posters
  • Sending nude pictures or pornography
  • Showing lewd images or jokes or offensive material to anyone in your presence
  • Sharing lewd images or jokes or offensive material on company/team Whatsapp groups or on virtual meetings.

Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

  • Making sexual gestures like leering, whistling, staring
  • Gender-based insults and/or sexist remarks
  • Eve-teasing
  • Stalking, whether physically or on social media
  • Repeated friend requests on your social media
  • Calling you persistently at odd hours or beyond working hours
  • Insisting on your video mode to be turned on at all times in virtual meetings, even when company rules do not require it
  • Persistent questions about your personal life
  • Calling you names such as ‘sweetie’, ‘darling’ or ‘honey’
  • Making someone expose their private parts to you or repeatedly staring at your  body parts
  • Written communications of a sexual nature distributed in hard copy or via a computer network, suggestive or obscene letters, notes, or invitations
  • Text messages or emails which are sexual in nature.

Quid Pro quo

Indirect or direct promises of benefits to an employee in return for sexual favours,  also known as Quid Pro Quo. Quid pro quo (literal meaning “this for that”) is an exchange proposition that may reflect in one or more of the following situations:

  • Hiring
  • Payment of salary or compensation
  • Promotion
  • Retention decision
  • Relocation or transfer
  • Allocation of job, responsibility, or work

Indirect or direct threats to harm employment unless sexual favours/dates are granted, including: 

  • Loss of promotion
  • Loss of employment
  • Negative performance evaluation
  • Undesirable work allocation
  • Denial of equal opportunities

Hostile Work Environment

Sexual harassment at workplace is not limited to one single situation, experience or incident. The entire experience of a woman’s experience at work over a short/long period of time can be created as an environment which is hostile towards her as a specific person of a gender. This may reflect in the form of interference with work or creating an intimidating, offensive, or hostile work environment through:

  • Lewd, unwanted acts including sexually coloured remarks, staring, forcible physical contact
  • Displaying pornography
  • Gender-based insults or sexist remarks
  • Not including a person in projects or meetings on account of gender
  • Refusing to acknowledge someone’s presence in meetings or work on account of gender
  • Sexist comments during meetings.

Humiliating treatment likely to affect an employee’s health or safety, such as:

  • Physical confinement or behaviour which violates privacy
  • Creating a work environment where the situation forces a woman to be in an uncomfortable and inappropriate company of a male colleague or associate
  • Making queries and gossip related to a woman’s private and personal life.

 

 

What is a ‘workplace’?

Sexual harassment has to occur at a ‘workplace’  and can happen inside your workplace, in the cafeteria, any common rooms, etc. This also includes an  ‘extended workplace’, meaning any place that you visit for work or during your employment. For example, you can complain if you face sexual harassment in transportation provided by your employer for commuting to and from the place of work, external conference avenues, etc.

There are three categories of workplace that are important to understand:

  1. Primary workplace: These could be virtual, remote, or physical work spaces that everyone including you recognise as a place where you visit or are present for work;
  2. Extended workplace: These are the places which are visited by you, or where you are present for the requirement of your work. Example of extended workplaces are transportation to and fro from work and for work reasons, conferences, events, coffee houses, hotels, client sites, and more;
  3. Virtual workplace: All the platforms and modes of communication used for the purpose of delivering on your work duties. Examples of virtual workplaces are emails, phone calls, Whatsapp, Slack, video meetings, audio meetings, online forums, and more.

What kind of organisations or workplaces are covered under the law?

The POSH law applies to all workplaces in India – both the organized and unorganized sectors.

A common understanding easily confuses the requirement of this law with a minimum number of employees. It is important to acknowledge that the law is applicable for organizations mentioned below of any team strength, however, the requirement of having an Internal Committee kicks in with 10 or more members.

The law applies to organizations including:

  • Government bodies or institutions
  • Private and public sector organizations
  • Non-Governmental organizations
  • Organizations carrying out commercial, vocational, educational, entertainment, industrial, financial activities
  • Hospitals and nursing homes
  • Educational institutes
  • Sports institutions and stadiums
  • Dwelling places or houses.

 

Working from home is considered an extension of the workplace and gets covered under the POSH law even if you are working from a remote location.  Some kinds of inappropriate online behaviour can also be crimes under the Information Technology Act, 2000, also known as online abuse or online violence. Courts of India have clarified that virtual workplaces and homes are workplaces for the purposes of the POSH Act. Read more on the Ungender Blog.

 

Who can complain against sexual harassment at the workplace?

Gender of the Complainant and Respondent

The law states that the complainant should be a woman. Also, the Transgender Persons (Protection of Rights) Act, 2019 clarified that any person associated with a workplace who identifies themself as a woman, is eligible to file a complaint under the POSH law.

A complaint can be filed against a person of any gender.

Recently, the Calcutta High Court clarified that same-gender complaints are allowed under the POSH law. The Court held that people of the same gender could complain of sexual harassment against each other. Read more in the Nyaaya Daily and Ungender Blog.

 

Association of the Complainant and Respondent

Female employees working at the organization or workplace, visiting the organization, and even interns have a right to complain against workplace sexual harassment. POSH complaints can be filed by:

  • Domestic workers
  • Regular employees
  • Temporary employees
  • Employees hired for a specific purpose
  • Daily wage employees
  • Contractual employees
  • Employees on probation
  • Employees from agencies
  • Trainees and apprentices.
All employees, regardless of whether they are working for a salary, on a voluntary basis or otherwise have a right to complain under the POSH law. Further, if any woman visiting an organisation gets harassed by any of the employees of such organisation, she can file a complaint with the Internal Committee of that organisation.

 

Complaint Filing Process

How can you complain against sexual harassment?

Follow the steps given below to file a complaint to the Internal Committee (“IC”) or Local Committee(“LC”) :

  • You can file a sexual harassment complaint in writing with the IC. You need to submit six copies of the complaint. However, most companies nowadays are also accepting complaints by email or a scanned copy of the written complaint sent on email.
  • You cannot file an anonymous complaint. You have to disclose your name and relevant details to allow the respondent to provide a proper response. Read more at the Ungender Blog.
  • Try to make the  complaint  concise, and write it in simple language which can be understood easily.
  • The complaint must be submitted within three months from the date of the incident. If there are a series of incidents, it should be submitted within three months from the date of the last incident. If there is sufficient reason for a delay in filing the complaint, the IC or LC may extend the time for filing the complaint by an additional three months, after recording the reasons for the extension  in writing.
  • Submit the written complaint and any supporting documents along with the witnesses’ names and addresses to the IC or LC. You can add as many documents as possible in any format i.e., relevant emails, screenshots of SMSs/Whatsapp messages, call details, photographs, recordings, etc., to the complaint.
The law also allows friends, relatives, co-workers, psychologists and psychiatrists, etc., to file the complaint on your behalf if you cannot make the complaint due to physical incapacity, mental incapacity, or even after your death.

 

Do take reference from the sample forms section for the format of the complaint. While you may be aggrieved and in a lot of emotional trauma at the time of filing the complaint, it is crucial that you provide the following details  as specifically as possible:

  • Name of the Respondent, their place of work, and designation.
  • Details of the incident/s (as explanatory as possible). No detail is irrelevant.
  • Dates of each and every incident mentioned.
  • Place where the incident/s happened.
  • Relief that you want from the employer, including transferring the accused, compensation, etc.

While the above are a must for the IC to accept a proper complaint, you can also support the complaint with the following details:

  • Members who were present at the time of the incident/s happening.
  • Any person to whom you have mentioned the incident in the past.
  • Screenshots, images, audios, videos, phone records, or anything that will provide support to your complaint.
  • Any information even remotely related to the complaint information, like the working relationship between the survivor and accused, if any (whether subordinate, colleague, or superior).

What temporary relief measures can the survivor get during a pending inquiry? 

During a pending inquiry, the survivor can make a written request to the IC or LC to recommend the following measures to the employer:

  • Transfer of the survivor or accused to any other workplace.
  • Granting leave to the survivor up to three months in addition to her regular leave entitlement.
  • Any other relief requested.
  • Restraining the accused from reporting on the work performance of the survivor or writing her confidential report.

        Authorities and Complaint Forums

Who should you complain to against sexual harassment at the workplace?

Every employer must set up an ‘Internal Committee’ (“IC”) to hear and redress complaints relating to sexual harassment, at each office or branch of the organization  having ten or more employees. An employer will be fined if the IC is not set up at such workplaces.

What is the role of the Internal Committee?

The IC looks into complaints of sexual harassment in the workplace, and decides on complaints after analysing  the facts and evidence. An IC has the same powers as a civil court,  including the power to:

  • Summon or call individuals and ensure their attendance
  • Question those involved in the complaint under oath
  • Ask for production of documents.

Who are the members of the Internal Committee?

An IC must have:

  • A senior-level female employee  as a Presiding Officer.
  • Two members from amongst the employees, preferably committed to women-centric causes or having experience in social work or legal knowledge.
  • An external member from an NGO or association working for women, or someone familiar with sexual harassment issues.

At least half of the IC members must be women. The members can remain on the IC for up to 3 years. For every inquiry into a complaint, a minimum of 3 members of the IC, including the Presiding Officer, have to be present.

What is a Local Committee?

Every district has a Local Committee (LC) which receives complaints of sexual harassment:

  • From establishments which do not have an IC due to having less than ten workers; or
  • If the complaint is against the employer themself.

The members of an LC include:

  • A female Chairperson from the field of social work or working for women.
  • A woman representative working in the block, taluka, tehsil, ward or municipality in the district.
  • Two  members from an NGO or association for women’s rights, or familiar with sexual harassment issues (out of which at least one must be a woman).
  • The concerned officer dealing with social welfare or women and child development in the district.

At least one LC member should be a woman belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes or a minority community, and at least one member should preferably have a background in law.

The LC also has the same powers as a civil court and their powers are similar to the IC.

What are the mechanisms for organizations without an IC?

  • If the organization has 10 or more employees, and has still not constituted an IC, write a letter to the employer/head of the organization educating them about the same (a format is given below).
  • If the organization refuses to do so, send a copy of the same to the District Officer informing them of the status (a format is given below).
  • Alternatively, you may also submit your complaint on the SHe-box portal and the portal will reach out to your employer on the same.
  • Reach out to the LC for filing a complaint with them. Technically, you should just contact your employer and it is their duty to find the LC for you (if they have less than 10 members).

What are the alternative complaint options?

Apart from the IC in your workplace, you can file a sexual harassment complaint with any of the following authorities:

Police 

Sexual harassment violates not only the POSH law but also the Indian Penal Code, 1860 (IPC), which criminalizes offences such as outraging a woman’s modesty, sexual harassment by a man, assaulting a woman with the intention to disrobe, voyeurism, stalking, and insulting the modesty of a woman. Read more in the Nyaaya explainer on Sexual Crimes.

National Commission for Women and State Commissions for Women 

Complaints can be filed online, via post, and in person with the National or State Commissions for Women. Go to the resources section below to read more.

“SHe-Box” by Ministry of Women and Child Development (WCD)

“SHe-Box” is an online complaint platform by the Indian Ministry of Women and Child Development (“WCD”). SHe-Box allows female employees or visitors to raise complaints of sexual harassment at the workplace. It is a platform available for both the private sector and public sector. It aims at providing speedy redressal of sexual harassment complaints.

If a formal complaint is lodged with SHe-Box, based on an assessment of the complaint, the WCD will direct the complaint to the employee’s IC or the LC. The WCD also monitors the progress of inquiry conducted by the IC/LC and keeps the complainant updated. Any information given on this platform is kept confidential.

Note: You can file parallel complaints with the SHe-box, Women’s Commission, IC, and Police. Please remember that once you reach out to the Women’s Commission or SHe-box, they will focus on ensuring that the IC/LC starts an official investigation, whereas police procedure is a parallel process and is not mutually exclusive.

 

Redressal Process

How does the Internal Committee look into the complaint?

The IC or LC must complete their inquiry into every complaint of sexual harassment within ninety days from the submission of the complaint. After completing an investigation, they must prepare a report of findings.  If sexual harassment is proved, the IC may recommend that the employer  take action against the accused.

What are your rights as the Internal Committee investigates your complaint?

  1. Right to Information: The IC must educate you on the investigation procedure details with timelines, responsibility of all parties to maintain confidentiality, methodology, etc. at all stages of the investigation, be it when you file the complaint or any time during the investigation when you want clarity.
  2. Right to Confidentiality: The IC is bound to ensure that all the information that you are sharing with them as part of the complaint and during the course of investigation is kept confidential to the purpose of investigation. Only the IC members, Respondent, witness/es and authorities who need to know certain information will be made privy to it. Additionally, the IC also needs to take necessary measures to maintain confidentiality. This may include getting all parties, including you, to sign non-disclosure undertakings and more.
  3. Right to Transparency: The IC, as part of the investigation process, must share all information with you as well as the Respondent in order to provide both parties an equal opportunity to defend their complaint/rebuttal.
  4. Right to Fairness: The IC is bound to ensure that both you and Respondent are provided a fair and just treatment from the beginning till conclusion of  the investigation with absence of any form of bias and judgment. These are called ‘principles of natural justice’. Read more at the Ungender Blog.
  5. Right to Conciliation: As a part of your right to be fully informed of the investigation procedure, the IC has to inform you of the right to conciliate matters between you and the Respondent. However, money cannot be a part of such conciliation.
  6. Right to a Non-Retaliatory Environment: The IC is bound to ensure that all necessary measures are undertaken to redress any retaliation/victimisation that you might have to face because of your complaint.
  7. Right to File a Police Complaint: At any given point in time, if you wish to file a police complaint, the IC will need to extend all necessary support to you.
  8. Right to Interim Relief: During an on-going investigation, which starts at the time and day of you filing a complaint, the IC can and should educate you on the possible options you have as interim relief and extend the same to you.

What is the timeline for addressing the complaint?

Given below is the timeline for addressing complaints:

  • When the IC or LC receives the complaint, it should send one copy of the complaint  to the accused within seven working days.
  • The accused should reply to the complaint along with a list of supporting documents and names and addresses of witnesses within ten working days. 
  • The IC’s or LC’s inquiry  must be completed within  ninety days of receiving the complaint.
  • The IC or LC must make the inquiry report within ten days  of completing the inquiry.
  • The employer must act on the IC’s or LC’s recommendations within sixty days of getting the inquiry report.
  • Anyone not satisfied with the IC’s or LC’s decision can appeal against them  within ninety days.

Can the case be settled or conciliated? 

Yes, conciliation or settlement of the case can happen in IC or LC complaints made at workplaces. Conciliation is an informal method of resolving complaints before the complaint escalates into a formal inquiry.

Appeal Process

An appeal against the decision of the IC can be filed under following circumstances:

  • In case you are aggrieved with the decision of the IC; or
  • Aggrieved with non-implementation of the decision given by IC; or
  • Punished for filing a false/malicious complaint; or
  • If there has been a breach of confidentiality.

An appeal has to be filed with the ‘appellate authority’ under service rules. For example, many public sector organisations and government entities under their rules have an appellate body. If no such service rules exist, then an appeal has to be filed to the office notified by the State government. For instance, in the NCT of Delhi and Maharashtra, the Industrial Courts have been identified as appellate authority. Depending upon which State you are in, the appellate authority will be required to be identified.

This appeal has to be filed within ninety days of the decision of the IC. You can engage a lawyer for such appeals.

Types of Reliefs and Punishments

What are the punishments for committing sexual harassment at the workplace?

A person guilty of workplace sexual harassment can be punished as per the service rules of the organization, and other disciplinary actions  (if there are no service rules), including:

  • Written apology to the survivor
  • Warnings, reprimands, censure
  • Withholding of promotion
  • Withholding of pay rise or increments
  • Termination from service
  • Undergoing a counseling session
  • Carrying out community service
  • Deduction of compensation payable to the survivor from the wages of the accused
  • Compensation to the survivor.

The proportionality of the consequences and punishment decided for each allegation/set of allegations vary on various factors. IC’s are required to consider aspects pertaining to the authority/seniority of the perpetrator, duration, frequency, degree of offence, category, and ONLY at the end of an independent investigation decision, may also incorporate if there are any prior warnings given to the perpetrator.

How is the compensation amount decided? 

The compensation payable by the accused is decided by the IC or LC based on:

  • The mental trauma, pain, suffering, and emotional distress caused to the survivor
  • The loss in career opportunity due to the incident of sexual harassment
  • Medical expenses incurred by the survivor for physical/ psychiatric treatment
  • The income and financial status of the accused
  • Whether the accused can pay the compensation in a lump sum or installments.

Resources

Contact Information 

  1. SHe-Box Application http://www.shebox.nic.in/
  2. National/State Commission of Women Complaint Mechanisms:
  • Call 1091: Call 1091 and describe the crime in detail. Give your address and contact number. A police unit will then be sent to the address given to assist the survivor with the steps that need to be taken.
  • Online: The National Commission for Women has an online complaint system known as Complaints Registration and Monitoring System where a survivor can fill in details and file a formal complaint. The following information has to be given:
  • Details of the complainant (the person who is filing the complaint),
  • Details of the survivor (woman who has faced the violence),
  • Details of the accused and
  • Details such as:
    • Particulars of the Incident
    • Date and Time
    • Place of incident
  • Email: You can file a complaint with National Commission for Women  by sending an email to complaintcell-ncw@nic.in with any details regarding the sexual assault, such as the description of the person who allegedly commited sexual violence, or the description of the incident.
  • Post/ Letter/ Messenger: You can write a letter  to the National Commission for Women, to this address: National Commission for Women, Plot-21, Jasola Institutional Area, New Delhi- 110025

Checklists

  1. Draft a written complaint.
  2. Clearly mention the details of the incident(s) along with the circumstances preceding and following the incident.
  3. Mention details of the accused including name, designation, reporting structure between complainant and accused if any (whether subordinate, colleague or superior).
  4. Make six copies of the complaint.
  5. Submit any supporting documents with the complaint.
  6. Submit the names and addresses of any witnesses who are supporting your complaint.
  7. Mention relief sought by you.
  8. Submit your complaint to the IC within three months of the sexual harassment. If there is a delay, the IC may hear your case after giving written reasons.
  9. Submit requests for any interim measures required while the IC is investigating the complaint.
Note: It is a prevalent reaction by a woman to delete obscene messages and details from their phone, mailboxes, or message windows. A common mistake in hindsight when a woman decides to file a complaint is that it becomes difficult for her to procure evidence/s that will substantiate the content of her complaint. Even if you do not possess certain evidence/s, but you believe they can be procured by someone in authority, or because of their knowledge, please inform the IC at the time of filing your complaint. It is then their responsibility to ensure that that evidence is retrieved.

Women generally worry about the lack or absence of evidence/s and witness/es, and thereby refrain from filing a complaint. Lack of evidence/s and witness/es does not mean that your complaint is false or without any merit. Please do not be concerned too much about this. As long as incidents alleged by you happened, be truthful and detail everything to the IC.

 

Sample Forms

Source of Information

Legislation:

  • Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  • Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.
  • Indian Penal Code, 1860.
  • The Criminal Law (Amendment) Act, 2013.

Resources:

Handbooks:

Glossary Terms

  1. Conciliation: A mutual agreement between parties to settle a problem between themselves peacefully.
  2. Interim measure: Actions taken during the pendency of an enquiry (90 days period) by the IC to provide some relief to the aggrieved.
  3. Ex-parte decision: Decision taken in the absence of one party.
  4. Witness: Any individual who was present at the time of a specific incident occurring or was privy to the happening of the said incident.
  5. Cross-examination: A process of questioning the statement, facts, and narrative by an individual with challenging enquiry
  6. Confidentiality: A mandated protection under the law provided for all individuals involved in a specific case investigation for their identity, content of a case/allegations, and output of the investigation.
  7. Inquiry report: A final document summarizing all details pertaining to a specific complaint with observations, minutes of meetings, conclusions, findings, and recommendation.
  8. Aggrieved: A person, cis-woman, or a person who identifies as a woman, who has experienced a sexual misconduct in a workplace.
  9. Complainant: A person, cis-woman, or a person who identifies as a woman, who has experienced a sexual misconduct in a workplace and filed an official complaint with the IC.
  10. Respondent: A person, irrespective of their gender, against whom a complaint of sexual misconduct has been filed.

Read and Understand the Employment Contract

To ensure that your rights as an employee in the private sector are protected, you must carefully read and understand the terms of your employment contract. It will not only mention the basic terms like salary and your job description but also provide further details of the rights and duties of both the employer and employees. Therefore you must always insist on getting a written contract and read it carefully before signing it as it will be hard to change any of the terms after it has been signed.

Whom does the law apply to?

The Code applies to all employees and employers in establishments, i.e., workplaces carrying on any industry, trade, business, manufacture or occupation, including Government offices(( Section 2(m), Code on Wages, 2019.)). However, the provisions on payment of wages and bonus do not apply to Government establishments unless the concerned Government makes them applicable through a notification.

Employee(( Section 2(k), Code on Wages, 2019.))

An employee is anyone who an establishment employs and pays wages to do work for hire or reward (this includes Government employees). It does not matter whether the terms of employment are clearly stated (like in a contract) or just implied.

The nature of the work could be:

  • Skilled
  • Semi-skilled or unskilled
  • Manual
  • Operational
  • Supervisory
  • Managerial
  • Administrative
  • Technical
  • Clerical

The following people are not considered employees:

  • Members of the Indian Armed Forces
  • Apprentice engaged under the Apprentices Act, 1961
  • People hired on a retainership basis

Employer(( Section 2(l), Code on Wages, 2019.))

An employer is someone who employs at least one employee in their establishment. It does not matter whether they employ the person directly or through anyone else, or employ someone on behalf of another person.

 

Type of establishment/work Employer
State or Central Government Department Authority specified by the head of the department. If not specified, it is the concerned chief executive of the department
Factory Occupier or manager of the factory
Any other establishment Person or authority having ultimate control over the establishment, such as a manager or managing director
Contract labour Contractor

 

A legal representative of a deceased employer is also an employer.

Who is an Advocate?

An Advocate is a person who argues  for the cause of another person in front of any other judicial authority. This could be a civil matter such as a contractual dispute between two individuals, or a criminal matter where the State punishes those who commit crimes with imprisonment etc. The majority of India’s  legal professionals represent clients in courts and other judicial bodies.

Qualifications needed to be an advocate(( Section 24(1), Advocates Act, 1961))

An advocate is simply  someone who is enrolled in any roll under the Advocates Act.(( Section 2(1)(a), Advocates Act, 1961))

A roll is a list prepared and maintained by the State Bar Councils, which contains the names of all advocates registered under the specific Council. The respective State Bar Councils have the duty to prepare and maintain rolls, and admit advocates to be listed on the roll.(( Section 6(1)(a); 6(1)(b), Advocates Act, 1961)) To qualify, the person applying to be an advocate should:

  • Be a citizen of India. However, foreign nationals can also be advocates if they come from countries where Indian citizens can practice law.(( Section 24(1)(a), Advocates Act, 1961))
  • Be at least 21 years of age.(( Section 24(1)(b), Advocates Act, 1961))

Degree in Law

The person applying should have a degree in Law:

  • Before 12th March 1967, from any University in India (Includes Pre-Independent India before 15th August 1947).(( Section 24(1)(c)(i); Section 24(c)(ii), Advocates Act, 1961))
  • After 12th March 1967, from any University in India recognized by the Bar Council of India, after undergoing a three-year course in law.(( Section 24(1)(c)(iii), Advocates Act, 1961))
  • After undergoing a course of study in law (at least two academic years) from the academic year 1967-68 or any earlier academic year from any University in India recognised by the Bar Council of India.(( Section 24(1)(c)(iiia), Advocates Act, 1961))
  • From any University outside India whose degree is recognized by the Bar Council of India.(( Section 24(1)(c)(iv), Advocates Act, 1961))
  • As a Barrister who has been a member of the Bar before 31st December, 1976.(( Section 24(1)(c)(iv), Advocates Act, 1961))
  • After passing the examinations specified by the High Courts of Bombay or Calcutta for enrolling as an Advocate in that High Court.(( Section 24(1)(c)(iv), Advocates Act, 1961))
  • Any other foreign qualification recognized by the Bar Council of India.(( Section 24(1)(c)(iv), Advocates Act, 1961)) See here for the list of recognized foreign universities.

Other conditions

For the purpose of enrolment, the applicant has to pay the required stamp duty to the State Bar Council. The applicant also has to pay an enrolment fee of Rs. 150 to the Bar Council of India, and Rs. 600 to the respective State Bar Council.(( Section 24(1)(f), Advocates Act, 1961; Rule 15(1), Part IX, Bar Council of India Rules, 1975))

Moreover, persons wanting to enrol as advocates may also need to fulfil any other conditions put forward by their respective State Bar Councils.(( Section 24(1(e), Advocates Act, 1961)) For example, the Bar Council of Delhi requires advocates to make a declaration that they are not engaged in any other trade, business, or profession. In case they are involved in something, they have to disclose the full information about it at the time of enrollment.(( Rule 104, The Rules of the Bar Council of Delhi, 1963))

Who is a Manual Scavenger?

Any person who has been employed to handle undecomposed human waste from an insanitary latrine, open drain or pit or railway track is a manual scavenger. The person could have been employed by anyone – say someone from their village or by an agency or contractor. It does not matter if they were given regular employment or engaged on contract basis.

Any person who has been employed to clean human waste and does so with the help of the appropriate protective gear and equipment will not be considered a manual scavenger.

Safai-Karamcharis

Another group of people called ‘safai karamcharis’ (“cleanliness workers”) are also sometimes considered as manual scavengers – however, they usually refer to people working as sweepers or cleaning workers in the municipalities, government or private organisations.