Supreme Court on sexual harassment of women at work place
- Part 2 -

A Romen Kumar Singh *

Supreme Court of India at Delhi

3. PREVENTIVE STEPS

All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(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.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. CRIMINAL PROCEEDINGS: Where such conduct amounts to specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

In particular, it should ensure that victims or witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

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.

6. COMPLAINT MECHANISM: Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time-bound treatment of complaints.

7. COMPLAINTS COMMITTEE: The complaint mechanism, referred to in(6) above, should be adequate to provide, where necessary, a complaints committee, a special counsellor or other support service, including the maintenance of confidentiality.

The complaints committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of an undue pressure or influence from senior levels, such complaints committee should involve a third party either NGO or other body who is familiar with the issue of sexual harassment. The complaints committee must make an annual report to the Government Department Concerned of the complaints and action taken by them.

The employers and person-in-charge will also report on the compliance with the aforesaid guidelines including on the reports of the complaints committee to the Government Department.

8. WORKERS' INITIATIVE: Employees should be allowed to raise issue of sexual harassment at workers' meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.

9. AWARENESS: Awareness of the rights of female employees in this regard should be created in particular to prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

10. THIRD-PARTY HARASSMENT: Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and the person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.

12. These guide lines will not prejudice any rights available under the protection of Human Rights Act, 1993.

18. Accordingly, we direct that the above guide lines and norms would be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of working woman. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.

AMENDMENT IN CENTRAL CIVIL SERVICES (CONDUCT) RULES, 1964
Following the directives of the Apex Court, the Central Government has amended the Central Civil Services (Conduct) Rules, 1964 and inserted the following provisions as Rule 3-C.

3-C. PROHIBITION OF SEXUAL HARASSMENT OF WORKING WOMEN.

(1) No Government servant shall indulge in any act of sexual harassment of any woman at her workplace.
(2) Every Government servant who is in-charge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such work place.

Explanation:- For the purpose of this rule, "Sexual harassment" includes such unwelcome sexually determined behaviour, whether directly or otherwise, as –
(a) Physical contact and advance;
(b) Demand or request for sexual favours;
(c) Sexually coloured remarks;
(d) Showing any pornography ; or
(e) Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

AMENDMENT IN CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1965.

Complying with the directives of the Supreme Court, the Central Government has amended the Central Civil Service (Classification, Control and Appeal) Rules, 1965 and has inserted the following proviso to Rule 14(2):

"Provided that where there is a complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Service (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 harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.

Explanation – where the Disciplinary Authority itself holds the inquiry, any reference in sub-rule(9) to sub-rule(20) and sub-rule(22) to the Inquiry Authority shall be construed as a reference to the Disciplinary Authority.

PROVISIONS OF CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1965 ARE NOT APPLICABLE TO POLICEMAN OF SUBORDINATE RANKS (CONSTABLE TO INSPECTOR).

It has been expressly mentioned in Rule 3 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 that there rules shall apply to every Government servant including every civilian Government servant in the Defence services, but shall not apply to :-

(a) any Railway servant, as defined in Rule 102 of Volume-1 of the Indian Railways Establishment Code,
(b) any member of the All India Services,
(c) any person in casual employment,
(d) any person subject to discharge from service on less than one month's notice,
(e) any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions.

In Mewa Ram Ramcharan V. United Provinces, A.I.R. 1954 Allahabad 487 the Allahabad High Court held that the procedure provided in Civil Services (classification, control and Appeal) Rules would not therefore, apply to the departmental trials under Section 7 of the Police Act and they will be governed by the Police Act or by any regulations framed under the Police Act. Again, the Delhi High Court in a case as reported in Rajeshwar Singh V. Union of India, (1989)11 ATLT 621(HC) held that employees governed by CISF Rules, 1969 can not be charge sheeted under the Central Civil Services (Classification Control and Appeal) Rules.

The legal position as discussed above makes it abundantly clear that subordinate ranks of police force from the rank of constable up to the Inspector are to be governed by Section 7 of the Police Act, 1861 and Rules framed there under for dealing with departmentally. Similar amendment as inserted in the Central Civil Services (Classification, Control and Appeal) Rules, proviso to Rule 14, is also required to be inserted in the Police Rules at Police Manuals not only for preventing Sexual harassment of women at the work place in compliance with the directives of the Supreme Court of India so that Disciplinary Authority can act on the reports of the complaints committee but also for uniformly implementing the directives of the Supreme Court.

CONCLUSION: Brave new India must make every woman free spiritually, socially, economically, culturally, politically so that the issue of sexual harassment is erased from the society once for all. Such is the imperative of our independence; such is the commitment to the constitution. Freedom is indivisible as between man and woman. Either both or neither. So woman power shall break its promethean chains and emerge unbound through law.

Concluded....