Mechanism Against Sexual Harassment at Government Departments
Sexual harassment at the workplace is an issue that has to be dealt with jointly by the employer and the victim. There can be no solution in isolation as it may lead the harassers to believe that they cannot be prosecuted by anyone. The employers have to put in place proper mechanisms to provide proper recourse to the victims of such abuse.
The ambit of the sexual harassment act is very wide and is applicable to the organized as well as the unorganized sector. In the view of a wide definition of ‘workplace’, the statute applies to all governmental bodies, private and public sector organisations, non-governmental organisations, etc. along with the places visited by the employee during the course of employment or for reasons arising out of employment. In the case of government organisations, which are also within the ambit of the Sexual Harassment act, 2013, the compliance with the provisions of this act is done in the most formal manner.
According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013‘sexual harassment will amount to misconduct in employment under all relevant conduct and service rules and regulations, of all government departments both at the centre and the states. Under chapter six of these rules, section 19(i) states the duties of the employer wherein it is provided with that
“Every employer shall treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.”
The Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, under the Government of India is the sole authority for the regulation of central civil services (conduct) rules in India. The central civil services (conduct) rules, 1964 is compliant of the provisions laid down in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 and the Sexual Harassment act, 2013.
Under the provisions of rule 3 (b) (ii) of the central civil services (conduct) rules, 1964, government servants are supposed to observe the government’s policies regarding prevention of crime against women. Further, as per the provisions of section 3(c), sexual harassment of working women is prohibited as per its subsections namely,
- “No government servant shall indulge in any act of sexual harassment of any woman at any workplace.
- Every government servant in charge of a workplace shall take appropriate steps to prevent sexual harassment to any woman at the workplace.”
The department of personnel and training, Government of India had circulated the following provisos to the guidelines regarding prevention of sexual harassment of working women in the workplace by the circular dated 3rd August 2009, namely,
“PROVISIONS OF Rule 14 (2) of the CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1965
Rule 14 (2) – Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. REGISTRAR OF TRADE MARK
Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.”
Further, the government through the personnel department vide the circular dated 16th July 2015 has notified a stepwise guide for the conduct of inquiry in case of sexual harassment complaint under the provisions of rule 14(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965which lays down that the complaints committee established in each ministry or department for the purpose shall hold such inquiry as far as practicable in accordance with the procedure laid down in these rules.
The mechanism for the conduct of inquiry of complaints of sexual harassment can be summarised as follows:
- As the first step, the 2013 act requires every workplace to set up a complaint committee i.e. the internal complaints committee under sec. 4(2), headed by a woman with at least half of its members being women. The involvement of a third party to this committee is also recommended.
- In case of any complain, the Complaints Committee set up in each Ministry or Department etc. for inquiring into such complaints shall be deemed the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules. Complaints Committee, unless a separate procedure has been prescribed, shall hold the inquiry as far as practicable in accordance with the procedure laid down in Rule 14.
- The Complaints Committee when investigating the allegations makes recommendations on whether there is a prima facie substance in the allegations calling for a formal inquiry or not.
- On receipt of the Investigation Report, the Disciplinary Authority examines the report with a view to see as to whether a formal Charge Sheet needs to be issued to the Charged Officer. As per Rule 14(3), Charge Sheet is to be drawn by or on behalf of the Disciplinary Authority.
- In case the Disciplinary Authority decides on that course, the Charged Officer should be given an opportunity of replying to the Charge sheet. As per Rule 14(5), a decision has to be taken after consideration of the reply of the charged officer.
- If the Charged Officer admits the charges clearly and unconditionally, there will be no need for a formal inquiry against him and further action may be taken as per Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
- In case the Charged Officer denies the charges and his reply is not convincing, the Charge sheet along with his reply may be sent to the Complaints Committee for a formal inquiry, and documents mentioned in Rule 14 (6) will be forwarded to the Complaints Committee. As per Section 11(3) of the Act, for the purpose of making an inquiry, the Complaints Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:—
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of documents; and
(c) Any other matter which may be prescribed.
- Section 11(4) of the Act requires that the inquiry shall be completed within a period of ninety days.
- Once the proceeding is formally over the Inquiring Authority then writes the Inquiry Report in which the evidence in support of the charges and against them will be examined. The Report should be a speaking one clearly bringing out as to the evidence-based on which any particular conclusion has been reached.
- Based on this analysis the Inquiring Authority will give its findings on the Articles as proved or not proved. In case any Article of charge is proved only partially, then the Inquiring Authority should record the extent to which that Article has been proved.
- A Government servant may be placed under suspension before or after the issue of charge Sheet where his continuance in office will prejudice the investigation. It is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals. It may be desirable to resort to suspension in case of a misdemeanour involving acts of moral turpitude.