The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (“POSH Law”), though stringent in its efforts to ensure safety of women in the workplace, permits discretion to employers in deciding its execution.
Throughout the POSH Law, several provisions allow employers to set and apply service rules when adjudging concerns of sexual harassment. Some of these are:
- Section 11 states that when conducting inquiry, Internal Committee has to inquire into the complaint in accordance with the provisions of the service rules, in absence of which provisions under the POSH Law to be followed.
- Section 13 states that, in cases of allegations being proved against the Respondent, the Internal Committee shall recommend to the employer to take action against the misconduct as provided in the service rules. The same is reiterated under Rule 9 of POSH Law wherein actions against the Respondent, including written apology, warning, reprimand etc. are advocated, if no such penalties are provided for in the service rules.
- Moreover, the employer is at liberty to punish any wrong-doer, if proven, with respect to false complaint, false evidence as per existing service rules, if any, under Section 14.
- Section 17 allows the employer to punish the malefactor who breaches the confidentiality terms of the sexual harassment proceedings with penalty as provided in the service rules.
- Section 18 provides redressal to any person aggrieved from the recommendations of the Internal Committee to appeal against it to the authority provided under the service rules.
- Lastly, it is the duty of the employer to treat sexual harassment as a misconduct and act against such misconduct in accordance with the service rules as provided under section 19(i) of the POSH Law.
In consonance with the varied interpretation of service rules in private and public sector, POSH Law does not set down a definition of service rules. It is pertinent to note that any internal protocols or policies set forth by private companies with its employees is just a contractual relationship between respective parties and may not be considered as service rules. Whilst central and state government organizations, certain industries and Public Sector Undertakings (PSUs) have legally mandated service rules to abide by.
For example, the Industrial Employment Standing Orders Act 1946 requires employers of certain industrial establishments, to detail the prerequisites of employment including conducts and misconducts of employees and provide a procedure for proceeding against an employee involved in misconduct. Similarly, Central Government employees are governed by the rules of conduct set under Central Civil Service (Conduct) Rules 1964 and Central Civil Service (Classification, Control and Appeal) Rules,1965. Central government vide notification dated 19.11.2014 amended the Central Civil Service (Conduct) Rules 1964 and Central Civil Service (Classification, Control and Appeal) Rules,1965 to be aligned with the POSH Law. State governments also frame their respective service rules such as Kerala Government Servants Conduct Rules 1960, The Maharashtra Civil Services – (Conduct) Rules, 1979 etc.
It is pertinent to note that the 239th Parliamentary Standing Committee report on POSH Law had stated that:
“7.5 The Committee would also like to emphasize that what constitutes misconduct in the context of sexual harassment and what penalties it would attract should be provided in service rules so far as Government and Public Sector bodies are concerned. With regard to private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. The Committee would appreciate if the Ministry takes a pro-active role in the matter and make an assessment about the service rules applicable to all categories of employees and ensure that misconduct relating to sexual harassment is incorporated therein.”
The importance and inclusion of service rules within the ambit of sexual harassment at workplace was established in the Vishaka vs. State of Rajasthan,(1997) judgment. Reiterating the guidelines set forth in that judgment, the Apex court in Medha Kotwal Lele v. Union of India, (2013) repeated that:
“:3. Preventive steps:
(b) The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946….
5. Disciplinary action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.”
The judgment further stated that “Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka’s case will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules.” This Court further directed in the order dated 26.4.2004 that similar amendment shall be carried out in the Industrial Employment (Standing Orders) Rules. As regards educational institutions and other establishments, the Court observed that further directions would be issued subsequently.”
Subsequently, on enactment of the POSH Law, the Supreme Court guidelines were inculcated into the law.
In furtherance of establishing the influence of service rules over the POSH Law, Kerela High Court in LS Sibu vs. Air India Ltd & Ors (2014) held that “the status of the Committee, therefore, deemed to be an Inquiry Committee for disciplinary action under the service rules. Thus when the enquiry is concluded, what is left to the discretion of the employer to take action in accordance with service rules for the proven misconduct. If the Central Civil Services (Classification, Control and Appeal) Rules would apply, the starting point of action referred in Section 13(3) of the Act is from the proceedings under Rule 15 of Part IV of the above rules. Thus, the choice left to the employer is to impose penalty in accordance with the service rules on a proven misconduct. If the service rule provides any punishment for such misconduct, the punishment can be imposed based on such findings.”
The Calcutta High Court in Debjani Sengupta vs The Institute Of Cost Accountants & Ors 2019, adjudged that “the provisions of the said Act cannot be treated to be in supersession of the service rules but, the provisions of the said Act and Rules are an appropriate complaint mechanism created in an organisation or work place to protect the female employees from any gender injustice or harassment at their workplace and for timely disposal of such complaint in order to ensure that the complaints were aptly dealt with. It also provided a forum for the female employees for effective disposal of their grievances. The said Act mandated that sexual harassment, if proved, should be treated as misconduct under the service rules and punishment should be imposed in accordance with the service rules.”
This further suggests the intent of the judiciary to interpret the service rules and the POSH Law coherently and for both to be applied concurrently to any case of sexual harassment. It is pertinent to note that whereas under the POSH Law, the onus of disseminating, creating awareness and publicizing the policy falls upon the employer, no such responsibility is bestowed on the employer with respect to knowledge / awareness about service rules. This was held by the Apex Court in P. Subramaniyam vs. Union of India & Ors (2019) and stated that it was the employee’s responsibility to be aware of the service rules.
In Nutrition & Ors vs Suddhasil Dey & Anr, (2020) Calcutta High Court (Appellete Side) held that “Enactment of the 2013 Act notwithstanding, rule 14 of the CCS (CCA) Rules (providing the procedure for imposing major penalties) and rule 15 (providing for action on the inquiry report) have not been touched. Our reading of the 2013 Act and the CCS (CCA) Rules is that, a synthesis must be brought about between the two while an employer proceeds to inquire into a complaint of sexual harassment at the workplace.”
… At this stage, considering the ambivalence of judicial opinion, it may not be either imprudent or inappropriate to attempt a sketch of the broad procedure [upon synthesizing the provisions of the 2013 Act and the CCS (CCA) Rules] that could be adhered to in given circumstances where a complaint of sexual harassment within the meaning of the 2013 Act is received either by the ICC, if constituted, or by an employer, against an employee to whom service rules, as referred to in section 11 of the 2013 Act and rule 9 of the 2013 Rules, which exist do apply. This could obviate misunderstandings and confusions that quite often arise while giving effect to the extant laws, and adopting the same would expectedly advance the object and purpose of introducing the 2013 Act in keeping with the directives of the Supreme Court by giving fair, reasonable and adequate opportunities to both parties to a proceeding. It cannot be ignored that the CCS (CCA) Rules have their roots in the Constitution and have stood the test of time. We add a caveat here. The procedure we propose to advert to upon our understanding of the laws is not intended to be and may not be operated as hard and fast rules. Their operation and/or application, obviously, would have to depend on the fact situation of each case.
Thus, it can be inferred that in interpreting the intent of the legislature, the judiciary has set forth that there needs to be a symbiotic relationship between service rules and the POSH Law when deciding on complaints of sexual harassment. It is apparent from the intention of the legislature that the service rules applicable to government organizations, PSUs and relevant industries must be updated and read in consonance with the POSH law.