During this research the Vishakha guidelines are discussed in detail and analyzed the various legal provisions relating to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was introduced to implement the guidelines given under Vishaka v. State of Rajasthan (Nirbhaya Case) by Supreme Court. The act mainly concerned with the working woman who was sexually harassed at her workplace. The act has received assent from president 22 April 2013 and came into force on 9 December 2013. After amendment in 2019, the act is applicable in whole of India. In case of Punjab and Sind Bank & Others vs. Mrs. Durgesh Kuwar  the Supreme Court held that the act of sexual harassment against woman at her workplace is an insult to her fundamental rights of equality, right to live with dignity and right to practice any profession or to carry on any occupation, trade or business. The features of act are as follows-

1. Definitions:- The act provides following definitions under sec. 2 –

a. “aggrieved woman” 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;

b. “Domestic worker” means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full-time basis, but does not include any member of the family of the employer;

c. “employee” means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the 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 includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name;

d. “employer” means—

i. in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may

be, may by an order specify in this behalf;

ii. in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace.

Explanation.— For the purposes of this sub-clause “management” includes the person or board or committee responsible for formulation and administration of polices for such organisation;

iii. in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;

iv. in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;

e. “sexual harassment” includes any one or more of the following unwelcome acts or behaviour (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;

2. Prevention of Sexual Harassment

Sec. 3 of the act prevents the harassment of woman at workplace. It also gives some circumstances or behaviour which may occur with her, at her employment which amount as sexual harassment as such-

i. Implied or explicit promise of preferential treatment,

ii. implied or explicit threat of detrimental treatment,

iii. implied or explicit threat about her present or future employment,

iv. interfering her work or creating an intimidating or offensive or hostile work environment for her,

v. humiliating treatment which affects her health or safety.

Sec. 7 of the act provides that the committee shall consist the following members by way of nomination, namely–

1. A Chairman- the eminent women in the field of social work shall be the chairman of the committee.

2. One woman member working in block, taluka or tehsil or ward or municipality in the district.

3.Two members amongst the non- governmental organizations or associations which are familiar with issues relating to sexual harassment of whom at least one shall be a woman. At least one of the such member must have a background in law or legal knowledge and the other must be woman belonging to the schedule castes and the schedule tribes or the other background classes or minority community notified by the central government from time to time.

4. A member ex officio dealing with matters of the social welfare or women and child development.

Every member of the committee shall hold office for a term not exceeding 3 years from the date of nomination and the member can be removed, if-

1. Contravenes the provisions of sec. 16,

2. Has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him.

3. Has been found guilty in any disciplinary proceedings or a disciplinary proceeding in pending against him.

4. has so abused his position as to render his continuance in office prejudicial to the public interest.

And the vacancy occurred in such case or any causal vacancy shall be filled by fresh nomination according to the provisions of the act. The fees or other allowances paid up to chairperson or member other than member nominated under sec. 1(b) and (d).

Complaint of Sexual Harassment- Section 9 of the act provides that any aggrieved woman may make a complaint of sexual harassment at workplace in writing to the internal complaint committee or the local complaint committee within the three months from the date of incident and in case of a series of incidents within the three months from the date of last incident. And in case, where such complaint cannot be made in writing, then, the presiding officer or any member of internal committee or a chairperson or any member of local committee shall render all reasonable assistance to the aggrieved women and such complaint may be, committee shall render all reasonable assistance to the aggrieved women and such complaint may be, for reasons to be recorded in writing must not exceed three months and it may extend, if the committee satisfied that she was prevented from filing a complaint within the said period.7 And in case the aggrieved woman is unable to make a complaint by reason of physical or mental incapacity or death or otherwise, her legal heirs or any authorized person under the act can make complaint on her behalf.

Inquiry into Complaints- Subjected to provisions of sec. 10, the committees as the case may be, proceed to make inquiry as per the rules of service relating to complaint when the respondent is employer and when such rules does not exist , then, in such manner as may be prescribed or in case of domestic worker, if prima facie case exist, the local committee shall forward the complaint to the police within the seven days for registering the case u/s 509 of IPC and any other relevant provisions of the said code. Also, the committees shall make inquiry into complaint or forward the same to police when the aggrieved woman informs the committee that the terms or conditions of settlement arrived in sec. 10 are not fulfilled.

And in case, the both parties of the case are employees, then, the parties shall be given an opportunity of being heard during the inquiry period and a copy of findings must be provided to both of the parties to represent their point of views before the committee. For instance if the procedure set for inquiry is not being followed, the court can set aside the order.[1] Also, if the respondent is convicted, then, the committee may order to him pay such sums as it may consider appropriate to the aggrieved woman. The inquiry must be completed within a period of 90 days and the committee shall have the same powers provided to civil courts under the CrPC.

As per sec. 12 of the act, during the pendency of the inquiry, the committees as the case may be, make recommendations to the employer on basis of written request made by the aggrieved woman relating to-

1. transfer the aggrieved woman or the respondent to any other workplace or

2. Grant leave to the aggrieved woman up to a period of three months and this relief will be in addition to the leave for which she would be otherwise entitled or

3. Grant such other relief to the aggrieved woman as may be prescribed.

Hence, it the duty of employer to comply with such recommendations and send a report of such compliance to the committees as the case may be.

On the completion of inquiry, the committees as the case may be shall provide a report of its findings to the employer or district officer within the period of 10 days from the date of completion of such inquiry and also report about it too concerned parties as per sec. 13. And in case the committees as the case may be, found that the respondent is not guilty, then, the committee shall recommend to the employer or district officer to take no any further action in this matter. And where, the committees as the case may be satisfied that the respondent has been guilty, then, it shall make following recommendations to the employer or the district officer, as such-

4. To take action foe sexual harassment s a misconduct as per provisions of service rules applicable on the respondent or where such rules does not exist, then in such manner as may be prescribed.

5. To deduct the such, sum out of salary or wages of the respondent as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs.

And in case of, the employer is unable to make such deduction by reason of absence of respondent from his duty or cessation of his employment, then, it may direct to the respondent to pay such sum to aggrieved woman. Further, if the respondent fails to pay such sum, then, the committees as the case may be, forward the order for recovery of the sum as an arrear of land revenue to the concerned district officer. Also, the employer or district officer shall comply such recommendations within the period of 60 days of its receipt by him.

Determination of Compensation- Sec. 15 of the act provides that the amount of sum payable to aggrieved woman must be determine

1. The mental trauma, pain, suffering and emotional distress caused to the aggrieved woman.

2. The loss on the career opportunity due to the sexual harassment incident.

3. Medical expenses.

4. The income and financial status of the respondent.

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

Duties of employer- Acc. To sec. 19 of the act, it is the duty of every employer-

1. to provide safe working environment at workplace,

2. to display the penal consequences of sexual harassment at any conspicuous place in the workplace,

3. to organize workshops and awareness programmers at regular intervals to aware the employees regarding provisions of the act,

4. to provide necessary facilities to the committees,

5. to assist in securing the attendance of respondent and witnesses before the committees,

6. to make available such information to the committees for filing a complaint,

7. to provide assistance to the woman if she wants to file a complaint under the IPC or any other law for the time being in force.

8. to initiate an action under IPC or any other law for the time being in force relating to sexual harassment,

9. to treat sexual harassment as a misconduct under the services rules initiate action relating to it,

10. to monitor the timely submission of reports by the internal committee.

Duties and powers of district court- Sec. 20 of the act provides that it is the duty of district officer to monitor the timely submission of reports furnished by the local committee and to take steps which are necessary for engaging non- governmental organizations for creating awareness on sexual harassment and the rights of the women.

Powers of Appropriate government- Sec. 23 of the act provides that the appropriate government shall monitor the implementation of this act and maintain record of number of cases relating to sexual harassment filed and disposed of. And acc. To Sec. 24, the appropriate government may subject to availability of financial and other resources, develop relevant information, education, communication and training material and organize awareness programmers relating to sexual harassment at workplace and organize training programs for the members of the local complaint committee. Also, as per sec. 25 of the act, if the appropriate government is satisfied that it is necessary on the public interest or in the interest of women employees at workplace, by an order in writing, it call upon any employer or district officer to furnish in writing such information relating to sexual harassment and to authorize any officer to make inspection of the records and workplaces with in prescribed time in relation to sexual harassment.

Penalty for a non- compliance with the provisions of the act- Sec. 26 of the act provides that where the employer fails to-

a. To constitute an internal committee u/s 4,

b. To take actions u/s 13,14a and 22 and

c. Contravenes or attempts to contravene or abets contravention of other provisions of the act or any rules made under it, he shall be liable with fine which may extend to fifty thousand rupees. And if the employer is previously convicted for an offence under this act and commits subsequent offence and is convicted of the same, then, he is liable for-

i. Twice punishment which might have been imposed on a first conviction subject to the punishment being maximum provided for the same offence: provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;

ii. Cancellation, of his license or withdrawal, or non- renewal, or approval or cancellation of the registration, as the case may be, by government or local authority required for carrying on his business or activity.

Cognizance of offences- Sec. 27 of the act provides that no court shall take cognizance of any offence punishable under this act or any rules made under it, save on a complaint made by the aggrieved woman or any authorized person by the Internal committee or the local committee in this behalf. Further, no court inferior to Metropolitan Magistrate or a judicial Magistrate of the first class shall try offence under this act and every offence under the act is non- cognizable.

Further, the provisions of this act shall be in addition to and not in derogation to the provisions of any other law for the time being in force as per section 28 of this Act.