The Sexual Harassment Of Women At Workplace Act, 2013

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THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013


CHAPTER I    PRELIMINARY

1. Short title, extent and commencement.
2. Definitions.
3. Prevention of sexual harassment.

CHAPTER II  CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE

4. Constitution of Internal Complaints Committee.

CHAPTER III  CONSTITUTION OF LOCAL COMPLAINTS COMMITTEE

5. Notification of District Officer.
6. Constitution and jurisdiction of Local Committee.
7. Composition tenure and other terms and conditions of Local Committee.
8. Grants and audit.

CHAPTER IV  COMPLAINT

9. Complaint of sexual harassment.
10. Conciliation.
11. Inquiry into complaint.

CHAPTER V  INQUIRY INTO COMPLAINT

12. Action during pendency of inquiry.
13. Inquiry report.
14. Punishment for false or malicious complaint and false evidence.
15. Determination of compensation.
16. Prohibition of publication or making known contents of complaint and inquiry proceedings.
17. Penalty for publication or making known contents of complaint and inquiry proceedings.
18. Appeal.

CHAPTER VI DUTIES OF EMPLOYER

19. Duties of employer.

CHAPTER VII  DUTIES AND POWERS OF DISTRICT OFFICER

20. Duties and powers of District Officer.

CHAPTER VIII  MISCELLANEOUS

21. Committee to submit annual report.
22. Employer to include information in annual report.
23. Appropriate Government to monitor implementation and maintain data.
24. Appropriate Government to take measures to publicise the Act.
25. Power to call for information and inspection of records.
26. Penalty for non-compliance with provisions of Act.
27. Cognizance of offence by courts.
28. Act not in derogation of any other law.
29. Power of appropriate Government to make rules.
30. Power to remove difficulties.
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THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
ACT NO. 14 OF 2013
[22nd April, 2013]
An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business with includes a right to a safe environment free from sexual harassment;
AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;
AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.
BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows: —

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CHAPTER I PRELIMINARY
1. Short title, extent and commencement.—(1) This Act may be called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.


2. Definitions.—In this Act, unless the context otherwise requires, —

(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) “appropriate Government” means—
(i) in relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly—
(A) by the Central Government or the Union territory administration, the Central Government;
(B) by the State Government, the State Government;

(ii) in relation to any workplace not covered under sub-clause (i) and falling within its
territory, the State Government;
(c) “Chairperson” means the Chairperson of the Local Complaints Committee nominated under sub-section (1) of section 7;
(d) “District Officer” means on officer notified under section 5;

(e) “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;

(f) “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;

(g) “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;

(h) “Internal Committee” means an Internal Complaints Committee constituted under section 4;

(i) “Local Committee” means the Local Complaints Committee constituted under section 6;
(j) “Member” means a Member of the Internal Committee or the Local Committee, as the case may be;
(k) “prescribed” means prescribed by rules made under this Act;

(l) “Presiding Officer” means the Presiding Officer of the Internal Complaints Committee
nominated under sub-section (2) of section 4;

(m) “respondent’ means a person against whom the aggrieved woman has made a complaint under section 9;

(n) “sexual harassment” 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 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;

(o) “workplace” includes—
(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(v) any place visited by the employee arising out of or during the course of employment
including transportation by the employer for undertaking such journey;
(vi) a dwelling place or a house;

(p) “unorganised sector” in relation to a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.


3. Prevention of sexual harassment.—(1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:—
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment ; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.

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CHAPTER II CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE

4. Constitution of Internal Complaints Committee.— (1) Every employer of a workplace shall, by  an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”:

Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

(2) The Internal Committees shall consist of the following members to be nominated by the employer, namely: —
(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:
Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section(1):
Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;
(b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
(c) one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:
Provided that at least one-half of the total Members so nominated shall be women.

(3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.

(4) The Member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.

(5) Where the Presiding Officer or any Member of the Internal Committee, —
(a) contravenes the provisions of section 16; or
(b) 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; or
(c) he has been found quilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance in office prejudicial to the  public interest, such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

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CHAPTER III CONSTITUTION OF LOCAL COMPLAINTS COMMITTEE

5. Notification of District Officer.—The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act.

6. Constitution and jurisdiction of  Local Committee.—(1) Every District Officer shall constitute in the district concerned, a committee to be known as the  Local Committee to receive complaints of sexual harassment from establishments where the [Internal Committee] has not been constituted due to having less than ten workers or if the complaint is against the employer himself.

(2) The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Committee within a period of seven days.
(3) The jurisdiction of the  [Local Committee] shall extend to the areas of the district where it is constituted.


7. Composition, tenure and other terms and conditions of  [Local Committee].

(1) The [Local Committee] shall consist of the following members to be nominated by the District Officer, namely: —
(a) a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women;
(b) one Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district;
(c) two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed:
Provided that at least one of the nominees should, preferably, have a background in law or legal knowledge:
Provided further that at least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government, from time to time;
(d) the concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio.

(2) The Chairperson and every Member of the Local Committee shall hold office for such period, not exceeding three years, form the date of their appointment as may be specified by the District Officer.

(3) Where the Chairperson or any Member of the [Local Committee]—
(a) contravenes the provisions of section 16; or
(b) 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; or
(c) has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance in office prejudicial to the public interest, such Chairperson or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

(4) The Chairperson or Members of the Local Committee other than the Members nominated under clauses (b) and (d) of sub-section (1) shall be entitled to such fees or allowances for holding the proceedings of the Local Committee as may be prescribed.


8. Grants and audit.—(1) The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the State Government grants of such sums of money as the Central Government my think fit, for being utilised for the payment of fees or allowances referred to in subsection (4) of section 7.
(2) The State Government may set up an agency and transfer the grants made under sub-section (1) to that agency.
(3) The agency shall pay to the District Officer, such sums as may be required for the payment of fees or allowances referred to in sub-section (4) of section 7.
(4) The accounts of the agency referred to in sub-section (2) shall be maintained and audited in such manner as may, in consultation with the Accountant General of the State, be prescribed and the person holding the custody of the accounts of the agency shall furnish, to the State Government, before such date, as may be prescribed, its audited copy of accounts together with auditors’ report thereon.

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CHAPTER IV COMPLAINT

9. Complaint of sexual harassment.—(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

10. Conciliation.—(1) The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation:

Provided that no monetary settlement shall be made as a basis of conciliation.

(2) Where settlement has been arrived at under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.
(3) The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent.
(4) Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.

11. Inquiry into complaint.— (1) Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and
any other relevant provisions of the said Code where applicable:

Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at  under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:
Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

(2) Notwithstanding anything contained in section 509 of the Indian Penal Code (45 of 1860), the court may, when the respondent is convicted of the offence, order payment of such sums as it may
consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.

(3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court the Code of Civil Procedure, 1908 (5 of 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.
(4) The inquiry under sub-section (1) shall be completed within a period of ninety days.

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CHAPTER V  INQUIRY INTO COMPLAINT

12. Action during pendency of inquiry.—(1) During the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee or the local Committee, as the case may be, may recommend to the employer to—
(a) transfer the aggrieved woman or the respondent to any other workplace; or
(b) grant leave to the aggrieved woman up to a period of three months; or
(c) grant such other relief to the aggrieved woman a may be prescribed.
(2) The leave granted to the aggrieved woman under this section shall be in addition to the leave she
would be otherwise entitled.
(3) On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.

13. Inquiry report.—(1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.

(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:

Provide that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:
Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or as, the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.


14. Punishment for false or malicious complaint and false evidence.—(1) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (1) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed:

Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section:
Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended.

(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.


15. Determination of compensation.—For the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall have regard to—

(a) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
(b) the loss in the career opportunity due to the incident of sexual harassment;
(c) medical expenses incurred by the victim for physical or psychiatric treatment;
(d) the income and financial status of the respondent;
(e) feasibility of such payment in lump sum or in instalments.

16. Prohibition of publication or making known contents of complaint and inquiry
proceedings.—Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action
taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:
Provided that information may be disseminated regarding the justice secured to any vicitim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.

17. Penalty for publication or making known contents of complaint and inquiry proceedings.
Where any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed.


18. Appeal.—(1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or subsection

(2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.

(3) The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.

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CHAPTER VI  DUTIES OF EMPLOYER

19. Duties of employer.— Every employer shall—
(a) provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace;
(b) display at any conspicuous place in the workplace, the penal consequences of sexual
harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
(c) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
(d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
(e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
(f) make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9;
(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
(h) cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(j) monitor the timely submission of reports by the Internal Committee.

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CHAPTER VII DUTIES AND POWERS OF DISTRICT OFFICER

20. Duties and powers of District Officer.—The District Officer shall, —
(a) monitor the timely submission of report furnished by the Local Committee;
(b) take such measures as may be necessary for engaging non-governmental organisations for creation of awareness on sexual harassment and the rights of the women.

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CHAPTER VIII MISCELLANEOUS

21. Committee to submit annual report.— (1) The Internal Committee or the Local Committee, as the case may be, shall in each calendar year prepare, in such form and at such time as may be prescribed,
an annual report and submit the same to the employer and the District Officer.
(2) The District Officer shall forward a brief report on the annual reports received under sub-section (1) to the State Government.

22. Employer to include information in annual report.—The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the annual report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.

23. Appropriate Government to monitor implementation and maintain data.—The appropriate Government shall monitor the implementation of this Act and maintain date on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace.

24. Appropriate Government to take measures to publicise the Act.—The appropriate
Government may, subject to the availability of financial and other resources, —
(a) develop relevant information, education, communication and training materials, and organise awareness programmes, to advance the understanding of the public of the provisions of this Act
providing for protection against sexual harassment of woman at workplace;
(b) formulate orientation and training programmes for the members of the Local Committee.


25. Power to call for information and inspection of records.—(1) The appropriate Government, on being satisfied that it is necessary in the public interest or in the interest of women employees at a workplace to do so, by order in writing,—
(a) call upon any employer or District Officer to furnish in writing such information relating to sexual harassment as it may require;
(b) authorise any officer to make inspection of the records and workplace in relation to sexual harassment, who shall submit a report of such inspection to it within such period as may be specified in the order.
(2) Every employer and District Officer shall produce on demand before the officer making the inspection all information, records and other documents in his custody having a bearing on the subject matter of such inspection.

26. Penalty for non-compliance with provisions of Act.—(1) Where the employer fails to
(a) constitute an Internal Committee under sub-section (1) of section 4;

(b) take action under sections 13, 14 and 22; and
(c) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder, he shall be punishable with fine which may extend to fifty thousand rupees.

(2) If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to—
(i) twice the 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 licence 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.


27. Cognizance of offence by courts.—(1) No court shall take cognizance of any offence punishable under this Act or any rules made thereunder, save on a complaint made by the aggrieved woman or any person authorised by the Internal Committee or Local Committee in this behalf.

(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

(3) Every offence under this Act shall be non-cognizable.


28. Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.


29. Power of appropriate Government to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a) the fees or allowances to be paid to the Members under sub-section (4) of section 4;
(b) nomination of members under clause (c) of sub-section (1) of section 7;
(c) the fees or allowances to be paid to the Chairperson, and Members under sub-section (4) of section 7;
(d) the person who may make complaint under sub-section (2) of section 9;
(e) the manner of inquiry under sub-section (1) of section 11;
(f) the powers for making an inquiry under clause (c) of sub-section (2) of section 11;
(g) the relief to be recommended under clause (c) of sub-section (1) of section 12;
(h) the manner of action to be taken under clause (i) of sub-section (3) of section 13;
(i) the manner of action to be taken under sub-sections (1) and (2) of section 14;
(j) the manner of action to be taken under section 17;
(k) the manner of appeal under sub-section (1) of section 18;

(l) the manner of organising workshops, awareness programmes for sensitising the employees and orientation programmes for the members of the Internal Committee under clause (c) of section 19;
and
(m) the form and time for preparation of annual report by Internal Committee and the Local Committee under sub-section (1) of section 21.
(3) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
(4) Any rule made under sub-section (4) of section 8 by the State Government shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.

30. Power to remove difficulties.— (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as may appear to it to be necessary for removing the difficulty:
Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

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Foreign Laws

Protection against Harassment of women at the Workplace Act, 2010 [PAKISTHAN] 

2(H)Harassment means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal tocomply to such a request or is made a condition for employment.

2(n)workplace  means the place of work or the premises where an organization or employer operates and includes building, factory, open area or a larger geographical area where the activities of the organization or of employer are carried out and including any situation that is linked to official work or official activity outside the office

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“Violence against women: Good practices in combating and eliminating violence against women”

Expert Group Meeting
Organized by: UN Division for the Advancement of Women
in collaboration with: UN Office on Drugs and Crime 17 to 20 May 2005
Vienna, Austria

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Guidelines and norms laid down by the Hon’ble Supreme Court in Vishaka and  Others Vs. State of Rajasthan and Others (JT 1997 (7) SC 384)


Method of Inquiry in Sexual Harassment case as laid down by Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI
LPA 305/2017 & CM No.15732/2017
Date of decision: 18th August, 2017

ASHOK KUMAR SINGH ….. Appellant
versus
UNIVERSITY OF DELHI & ORS ….. Respondent

CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT
GITA MITTAL, ACTING CHIEF JUSTICE
1. The appellant before us has assailed the judgment dated 16th February, 2017 passed by the ld. Single Judge disposing of WP(C)No.7371/2016. By this writ petition under Article 226 of the Constitution of India, the petitioner had impugned three reports, two dated 30th June, 2015 and the third dated 12th February, 2016 which had been submitted by the Internal Complaints Committee (ICC hereafter) of the respondent no.2, that is, the Dyal Singh Evening  LPA No.305/2017 Page 2 of 15 College.

2. The ICC was constituted under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (referred to as “the Act” hereafter). The appellant had challenged the reports inter alia on the ground that the reports only give a prima facie conclusion of the complaint having substance without formally recording any definite conclusion or holding that the charge against the appellant stood proved. It was contended that these aspects were mandatorily required to be opined upon by the ICC under Section 13 (3) of the Act.

3. The appellant has further contended in the writ petition that in
the inquiry committee proceedings which culminated in the two
reports dated 30th June, 2015 and third report dated 12th February,
2016, the appellant was wrongfully denied opportunity to crossexamine
the witnesses.
4. The other ground which was pressed before the ld. Single Judge
was that in the inquiry proceedings conducted on the reports dated 30th
June, 2015 and 12th February, 2016 upon complaints of respondents
no.4 and 5, the petitioner was also not permitted to lead evidence in
support of his defence. Primarily, it was contended that the inquiry
reports were in gross violation of principles of natural justice as well
as the essential requirements of law and therefore deserved to be set
aside.
5. After a detailed consideration of the rival contentions, by the
impugned judgment dated 16th February, 2017, the ld. Single Judge
has concluded that all the three reports of the ICC, that is, the two
LPA No.305/2017 Page 3 of 15
reports dated 30th June, 2015 and the third report dated 12th February,
2016, falls short of all the essential and mandatory requirements of
sub-section (3) of Section 13 of the enactment inasmuch as they failed
to record a definite conclusion regarding the petitioner being guilty of
commission of alleged acts. In other words, the ICC had failed to
return any categorical finding that the charges against the appellant
stood proved. For this reason, the ld. Single Judge held that the
reports were in violation of sub section (3) of Section 13 of the Act,
and set aside the reports.
We may note that this finding by the ld. Single Judge has not
been assailed by the respondents and has attained finality.
6. We may note that the private respondents no.3 to 5 had been
served with advance notice as caveators were present and represented
by Ms. Vibha Mahajan, ld. counsel. Respondents no.3 to 5 were thus
represented when the matter was first taken up and notice was issued
to the respondent no.2. Mr. Rajiv B. Samaiyan, learned counsel has
put in appearance for the Dyal Singh Evening College respondent
no.2, before us. With the consent of all parties, the matter has been
taken up for hearing.
All counsels have been heard.
7. The appeal has been necessitated inasmuch as after recording
the above finding, the ld. Single Judge has remanded the matter for
consideration and drawing up fresh conclusions by the ICC. The ld.
Single Judge directed that so far as further proceedings before the ICC
were concerned, the ICC was simply directed “to give fresh inquiry
reports on the complaints of respondents no.3 to 5 of the writ
petition”. However, the ld. Single Judge did not agree with the prayer
of the appellant regarding not being granted sufficient opportunity
either for cross-examination of the witnesses or grant of the
opportunity to lead defence.
8. Denial of the opportunity to cross-examine the witnesses of the
complainant as well as to lead defence and the above directions to the
ICC has been assailed by the appellant before us on the ground that
the substantive report is wholly vitiated if he is denied the said
opportunity. It is submitted that a meaningful right to cross-examine
the witnesses of the complainant and to lead defence is an essential
component of a fair inquiry which would be in consonance with the
principles of natural justice. In support of the submission, Mr. Nikhil
Nayyar, learned counsel for the appellant has drawn our attention to
the pronouncement of this Division Bench reported at 2012 (130) DRJ
277 (DB) B.N. Ray vs. Ramjas College & Ors.
9. Having heard ld. counsels for the parties, reference can be made
to Section 11 of The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 which provide for
compliance with the provisions of natural justice. For expediency, the
provision is extracted as below:
“Section 11. …Provided further that where both the
parties arc employees, the parties shall, during the
course of inquiry, be given an opportunity of being heard
and a copy of the findings shall he made available to both
the parties enabling them to make representation against
the findings before the Committee.”
10. We may also extract Rule 7 of the Sexual Harassment of
LPA No.305/2017 Page 5 of 15
Women at Workplace (Prevention, Prohibition and Redressal) Rules,
2013 which reads as follows :
“Rule 7. Manner of Inquiry into Complaint—
(4) The Complaints Committee shall make inquiry into
the complaint in accordance with the principles of
natural justice.”

11. The issue as to whether, in an inquiry under the said
enactments, the respondent has a right to cross-examine the witnesses
deposing before the ICC inquiring into a complaint of sexual
harassment has been the subject of consideration in several cases
(subject to modulation of the procedure of cross-examination).
12. In an order dated 12.01.2010 passed in SLP(C)No.23060/2009,
Bidyut Chakraborty (Prof.) v. Delhi University & Ors., the Supreme
Court laid down the contours of hearing, cross examination and
permissibility of defence to a respondent in a complaint of sexual
harassment in the following terms:
“After hearing the learned counsel for the parties we are
of the opinion that the respondents are entitled to a
hearing and to cross-examine the witnesses produced by
the University. We further direct that as this appears to
be a case of sexual harassment the identity of the
witnesses need not be revealed to the respondent or his
counsel and for this purpose the respondent would be
entitled to submit the questionnaire which will be put to
the witnesses for their answers in writing. Mr. Rao
states that the statements made by the witnesses without
their names will be supplied to the respondents within
two weeks from today. The said documents will also be
supplied to Ms. Binu Tamta, the Advocate-Commissioner
who is being appointed by this court for the purpose of
getting answers to the questions to be supplied by the
respondents. Ms. Tamta will ensure the anonymity of
the witnesses. Mr.Rao, further states that the
respondents would be entitled to produce their entire
defence evidence in addition to the aforesaid
questionnaire and that all annexures which have not
been supplied with the enquiry committee will also be
handed over to the respondent without revealing the
identity of the witnesses.” (Emphasis supplied)

13. This court has also had occasion to deal with this same issue, the judgment reported at 2012 (130) DRJ 277 (DB), B.N. Ray v. Ramjas College & Ors., wherein placing reliance on Bidyut Chakraborty (Prof); it was observed thus :
“13. As regards cross examination of the witnesses, the learned Counsel for the respondents, stated that in view of the order passed by the Supreme Court in the case of Bigyug Chakraborty (Prof.) (supra), they have no
objection to the witnesses answering the questions of the
petitioner through a Local Commissioner, and for this
purpose, the petitioner may submit a questionnaire as
was directed to be done in the case of Bidyug
Chakraborty (Prof.) (supra). They also stated that as was
done in the case of Bidyug Chakraborty (Prof.) (supra),
the Sub-Committee would allow the petitioner to produce
defence witnesses and examine them himself, instead of
their examination by the Committee subject, of course,
to those witnesses being cross-examined by the
Presenting Officer/Department representative.
We take note of the fact that in Bidyug Chakraborty
(Prof.) (supra), the Supreme Court upheld the right of
the delinquent to cross examine the witnesses produced
by the University and the delinquent was asked to
submit a questionnaire to be put to the witnesses, so that
the identity of the witnesses was not revealed to him or to
his Counsel. It was precisely for this reason that the
learned Counsel for the University undertook to supply
the statement of witnesses to Professor Bidyug
Chakraborty without disclosing their names. The Local
Commissioner was also directed to ensure the anonymity
of the witnesses. However, in the case before us, the
Committee/Sub-Committee has already disclosed the
names of the witnesses to the petitioner and has thereby
revealed their identity to him. No useful purpose will,
therefore, be served by asking the petitioner to submit a
questionnaire, to be answered by the witnesses in writing.
Had the University not disclosed the identity of the
witnesses to the petitioner as was done in the case
of Bidyug Chakraborty (Prof.) (supra), the University
would have been perfectly justified in asking for adopting
the same procedure, which it was directed to adopt in the
case of Bidyug Chakraborty (Prof.) (supra). But, no
useful purpose from adopting such a course of action
would be served in a case where the identity of the
witnesses has already been disclosed. However, even
while in requiring the petitioner to submit a
questionnaire containing questions to be answered by
the witnesses, we have to ensure that there is no
possibility of the witnesses getting influenced on
account of the presence of the petitioner at the time of
their cross-examination. In the case of Dr. Pushkar
Saxena (supra), we had directed that the witnesses may
be cross-examined through a female defence assistant,
and that the petitioner would submit a questionnaire,
giving the questions he wanted the witnesses to answer
and the answers to the questions will be obtained by the
Inquiry Committee. We also directed that the petitioner
would not be present at that time, if such a course of
action is adopted. In the case before us, we were
informed, during the course of the arguments, that all the
witnesses, who have yet to depose against the petitioner,
are male witnesses. Hence, instead of a female defence
assistant, they should be cross examined by a male
LPA No.305/2017 Page 8 of 15
defence assistant but the petitioner should not be present
at the time of their cross-examination.” (Emphasis supplied)

14. Our attention is also drawn to a judgment of the Kerala High Court reported at (2016) 2 KLJ 434, L.S. Sibu v. Air India Ltd. wherein the court discussed the statutory provisions holding as
follows:
“12. The power of the ICC is also very clear from the
Section 15 itself. The Committee can also determine the
compensation payable by the delinquent to the victim.
Thus, it is very clear from Sections 11, 13 and 15, the
report of the ICC is the determining factor to take follow
up action by the employer in accordance with service
rules or otherwise.
13. In the background of legal provisions as above, every
Internal Committee constituted under the Act 14 of 2013
necessarily, has to follow the principles of natural
justice in conducting their enquiry. The rules framed
under the Act 14 of 2013 also would indicate that the
Committee shall follow the principles of natural justice
[See the Rule 7(4)]. It is also specifically noted that
Section 18 provides an appellate remedy as against the
recommendation. This also would show that the
conclusive nature of the finding of the fact in the
enquiry to be made by the ICC. Thus, it has to be
summed up that the enquiry conducted by the ICC as to
the fact finding is final unless it is varied in appeal. It
cannot be varied by the employer in a follow up action to
be taken in terms of Section 13.”
“17. The fundamental principles relating to the principles of natural justice is that when a prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and  LPA No.305/2017 Page 9 of 15
contradict. In sexual harassment complaint, sometimes
the complainant may not have courage to depose all that
has happened to her at the work place. There may be an
atmosphere restraining free expression of victim’s
grievance before the Committee. The privacy and
secrecy of such victims’ also required to be protected. It
is to be noted that verbal cross examination is not the
sole criteria to controvert or contradict any statement
given by the aggrieved before any authority.”
(Emphasis supplied)
15. After so observing, with regard to a sexual harassment
complaint, the court prescribed the following procedure :
“Primarily, in a sexual harassment complaint, the
committee has to verify and analyse the capability of the
aggrieved to depose before them fearlessly without any
intimidation. If the Committee is of the view that the
aggrieved is a feeble and cannot withstand any cross
examination, the Committee can adopt such other
measures to ensure that the witnesses statement is
contradicted or corrected by the delinquent in other
manner. The fair opportunity, therefore, has to be
understood in the context of atmosphere of free
expression of grievance. If the Committee is of the view
that the witness or complainant can freely depose
without any fear, certainly, the delinquent can be
permitted to have verbal cross examination of such
witnesses. In cases, where the Committee is of the view
that the complainant is not in a position to express
freely, the Committee can adopt such other method
permitting the delinquent to contradict and correct
either by providing statement to the delinquent and
soliciting his objections to such statement.”
(Emphasis by us)
These principles have to bind the present consideration.

16. Before us, further adjudication has become unnecessary because of the very fair stand adopted by learned counsels for the respondents as noted hereafter.

17. Section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 mandatorily requires that “inquiry under sub section (1) shall be completed within a period of 90 days”. In the present case, more than two years have passed before the impugned reports came to be submitted by the ICC.

18. It has been contended by Ms. Vibha Mahajan, learned counsel
for respondents no.3 to 5 that, in order to obviate any delay in the
consideration of the matter and for reasons of expediency, the
respondents no.3 to 5 would not have serious objection to the grant of
fair and reasonable opportunity to the appellant to cross-examine their
witnesses provided that the same was within a strict time stipulation
by this court.
Learned counsels for respondents no.1 and 2 also submit that
they would not come in the way of grant of such opportunity.

19. In view of the submissions made on behalf of respondents no.3
to 5, we had requested all learned counsel for the respondents to
examine the possibility of us taking such view which while meeting
the requirements of law, dealt with objections and apprehensions of all
the parties. We appreciate the exercise which has been undertaken by
the learned counsels for the parties in enabling us to pass this order
which meets the above. This order would enable the proceedings
before the ICC to be completed meaningfully and expeditiously at the
earliest and would comport with the requirements of law.

20. We may also note hereby that Mr. Rajiv B. Samaiyan, learned
counsel appearing for respondent no.2 has handed over a copy of the
order dated 9th May, 2017 which has been passed by Dr. D.K. Sharma,
Principal of the Dyal Singh Evening College in supersession of the
previous order dated 27th April, 2017 stating that the Chairman of the
Governing Body of the College has constituted an Internal
Complaining Committee afresh for a tenure of one year with effect
from 27th April, 2017 in accordance with the requirements of the
University Grants Commission Act. The following constitution of the
ICC has been thereby notified:
(i) Dr. Anju Sharma, Associate
Professor, Deptt. of Political Science,
Kalindi College & Dy. Dean,
Planning, DU
– Presiding Officer
(ii) Dr. Sushma Bareja – Member
(iii) Dr. Sucheta Chaturvedi Associate
Professor, Department of English,
Laxmi Bai College, DU
– Member
(iv) Sh. S. Shekhar Singh (Secretary, Staff
Council)
– Member
(v) Mr. Sanjiv Sharma (Non-Teaching) – Member
(vi) Mr. R.S. Meena (Non-Teaching) – Member
(vii) Ms. Nikita Parmar (Lawyer, Delhi
High Court)
– Member

21. We may note that so far as inquiry proceedings before the ICC in the present case are concerned, inasmuch as they do not involve any complaint against the student, a student representative in the ICC is
not necessary.

22. Therefore, so far as proceedings before the ICC are concerned, with the consent of all the parties and in consonance with the principles laid down by the Supreme Court in Bidyut Chakraborty (Prof); this court in Bidyut Chakraborty (Prof) and Kerala High Court in L.S. Sibu, it is directed that ICC which is to proceed in terms of the judgment dated 16th February, 2017, shall proceed in the following manner :

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(i) The inquiry in the three complaints made by the respondents no.3 to 5 shall begin within two weeks from today from the stage of cross-examination of the complainant’s witnesses whose examination-in-chief has been tendered in writing to the previous ICC.
(ii) The ICC shall intimate the appellant and the respondents no.3 to 5 in writing as well as by e-mail of the date and time of its proceedings.
(iii) The appellant would be allowed to cross-examine the witnesses of the complainant through a questionnaire which would be submitted to the ICC at the time when the witnesses are produced for their cross-examination.
(iv) The witnesses would be called one by one by the ICC to answer the questionnaire which is put to them. Witnesses would answer questionnaire in the presence of the Committee. Every  LPA No.305/2017 Page 13 of 15 effort shall be made by the ICC to complete the testimony of a single witness the very day on which the recording of the witness cross-examination commences.
(v) So far as witnesses who are common to several complaints are concerned, such common witness shall be cross-examined in one go when the witness appears before the ICC, in respect of all the complaints in which he/she is a witness.
(vi) The appellant and the complainant would not be present at the time when the cross-examination of the witnesses of the complainant is being recorded.
(viii) The ICC shall endeavour to ensure that the witnesses who are being cross-examined, does not confabulate with the witnesses who are yet to be cross-examined.
(ix) The ICC shall make every endeavour to supply a copy of the cross-examination of the complainants’ witnesses to the appellant on the date on which the cross-examination at the earliest, in any case before cross-examination of the next witness.
(x) After completion of the cross-examination of the complainants’ witnesses, the appellant would be permitted to lead defence evidence. The appellant shall submit the examination-in-chief of the defence witnesses to the ICC in writing within one week of completion of the cross-examination of the complainant’s witness. Copies of the statements of the appellant’s witnesses would immediately be made available to respondents no.3 to 5.
(xi) The procedure set out above for cross-examination of the of 15 witnesses of the complainant would be followed in identical terms so far as cross-examination of the appellant’s witnesses by the respondents no.3 to 5.
(xii) We need not to emphasise that the proceedings have to be
expeditiously concluded. In the event any representation is
made by the complainant under Section 12 of the enactment for
any interim redressal, the same would be expeditiously decided
by the ICC, preferably within one week of the representation.
(xiii) After completion of the cross-examination of the witnesses of
the appellant, parties shall be given a personal hearing by the
ICC.
(xiv) After consideration of recording of the inquiry and the
submissions made by the parties, the ICC shall submit separate
reports on each complaint along with their recommendations to
the Competent Authority which is the Governing Body of the
respondent no.2 within 3 days of the conclusion of the
submissions.
(xv) For reasons of expediency, it is directed that the above procedure shall be strictly abided by the ICC.
(xvi) We also deem it necessary to direct that in any case any vacancy in Constitution of the ICC occurs, the same shall be filled within one week from the date when it has arisen. It is made clear that in such eventuality, the inquiry shall resume from the stage on which the erstwhile member of the ICC had left the Committee.
(xvii)It is directed that ICC shall complete the above exercise within  a total period of three months from today.
(xviii)In view of the above, while maintaining the order of the ld. Single Judge so far as findings recorded in para 8 of the judgment dated 16th February, 2017 is concerned, we hereby set aside the directions made in paras 11 and 12 which shall stand substituted by the directions recorded in para 22 hereinabove.
23. We also make it clear that we have not hereby decided the legal issues raised by the writ petitioner which are left open for consideration in an appropriate case. This appeal is disposed of in the above terms. The pending application also stands disposed of.

ACTING CHIEF JUSTICE
ANU MALHOTRA, J
AUGUST 18, 2017
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