In the workplace, preventing sexual harassment is paramount, spanning across public and private sectors. This blog explores the foundational frameworks of service rules in public companies and code of conduct policies in private companies, dissecting their role in fostering a harassment-free environment. We delve into their legal underpinnings, examine their applicability across different entities, and compare their approaches to combating sexual harassment. By highlighting important legal cases and practical strategies, we aim to provide organizations with the knowledge they need to strengthen their workplaces against harassment and discrimination.
Genesis of Service Rules
The birth of service rules is intricately tied to Article 309 of the Constitution of India, which grants authority to enact regulations governing the recruitment and conditions of service for individuals employed in public services and posts associated with the Union or any State. This constitutional provision empowers the President or the Governor, as directed, to formulate rules regulating recruitment and service conditions until specific legislation is enacted by the appropriate legislature. In the case of Secretary, State of Karnataka v. Uma Devi & Ors., Appeal (civil) 3595-3612 of 1999 the decision of the Karnataka High Court was contested. The High Court had ruled that daily wage workers were entitled to receive wages comparable to the salary and allowances paid to regular employees of their cadre in government services. The Supreme Court while deciding on this case highlighted the limited power of the state as an employer compared to private employers, emphasizing that it is subject to constitutional limitations and cannot be exercised arbitrarily.
These rules, crafted within the constitutional framework, serve as the foundational framework for establishing standards of conduct, discipline, and accountability within public sector organizations. In the context of preventing sexual harassment in the workplace, service rules play a critical role by establishing guidelines and mechanisms for addressing instances of misconduct, aligning with broader legal mandates such as the Prevention of Sexual Harassment (POSH) Act.
What does the POSH Law say about Service Rules?
The POSH Act, 2013, stands as a pivotal legislation aimed at safeguarding individuals in the workplace from acts of sexual harassment. The specific provisions of this Law outline the role of service rules in addressing and preventing instances of sexual harassment. Some of the examples of such sections are:
- Section 11, Inquiry into complaint: 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.
- Section 13(3), Inquiry report: 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.
- Section 14, Punishment for false and malicious complaint and false evidence:
- (i) 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.
- (ii) On false evidence or witness: 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.
Other provisions that mention about the service rules are sections 17, 18 and 19 of the POSH Act, 2013 and rule 9 of the POSH Rules, 2013. Thus, it can be understood that service rules hold an important mention in the POSH Law.
Under the POSH Act,2013 there is a requirement for every employer to formulate and implement a comprehensive policy against sexual harassment. The provisions for preventing sexual harassment in the workplace are typically embedded within the organization’s service rules. These service rules cover various aspects, including the definition of sexual harassment, the procedure for filing complaints, the establishment of an Internal Committee (IC), and the consequences for perpetrators.
What are the various types of Service Rules?
Various central service rules contain provisions crucial for defining the conduct, discipline, and accountability of employees. These rules, such as the Central Civil Services (Classification, Control, and Appeal) Rules, 1965; Central Civil Services (Temporary Service) Rules, 1965; Central Civil Services (Leave Travel Concession) Rules, 1988; Central Civil Services (Leave) Rules, 1972; and Central Civil Services (Conduct) Rules, 1964, establish the standards of behaviour expected from employees.
Additionally, each state has formulated its respective service rules tailored to its administrative needs and requirements. For instance, states like Karnataka, Maharashtra, and Haryana have their own sets of service rules, such as the Karnataka Civil Service Rules, Maharashtra Civil Service Rules, and Haryana Civil Service Rules 2016, respectively. These state-specific rules complement the central service rules and may include provisions specific to the prevention of sexual harassment in accordance with the POSH Act.
Apart from service rules, industrial establishments also adhere to standing orders, which lay down the terms and conditions of employment, conduct, and disciplinary procedures for workers. These standing orders are governed by the Industrial Employment (Standing Orders) Act, 1946, and are essential for maintaining discipline and order within industrial establishments. Industrial establishments are regulated by Standing Orders and therefore do not need separate service rules. Standing Orders for industrial establishments serve the same purpose as service rules do for public services. Additionally, these Standing Orders incorporate the requirements of the POSH Law, ensuring that industrial establishments comply with all necessary guidelines for addressing sexual harassment.
In contrast, private organizations typically establish their own internal policies and codes of conduct to regulate employee behaviour and maintain a conducive work environment. These may include a code of conduct policy, disciplinary policy, grievance redressal policy, and prevention of sexual harassment policy, among others.
Service Rules v. Code of Conduct Policy
Public and private organizations utilize specific frameworks—service rules and codes of conduct respectively—to prevent sexual harassment. Service rules in public organizations are legally mandated and detail behaviour, disciplinary processes, and procedures in line with the POSH Act. These rules are designed to ensure uniformity and legal compliance across public services, integrating mechanisms like Internal Committees for handling complaints.
In contrast, private companies’ codes of conduct provide flexible guidelines that align with corporate values and the POSH Act, but allow adaptation to company culture. These codes typically define unacceptable behaviours, reporting processes, and penalties, fostering a secure and respectful workplace environment.
Service rules offer consistency and strict compliance in public sectors, while codes of conduct in private sectors allow for adaptability, reflecting each company’s unique culture. Both set clear behavioural expectations, ensure accountability, and support a safe work environment, yet their implementation reflects the inherent differences between public and private governance.
What to do when the Service Rules are not applicable?
The POSH Act, 2013 mentions in multiple places the term “as prescribed”. The term “as prescribed” in the POSH Act, 2013 indicates that the details mentioned can be elaborated upon through rules established by the appropriate government under the POSH Act, 2013. The details are elaborated through the POSH Rules, 2013.
When service rules are unclear or do not address issues of sexual harassment, organizations should rely on the procedures outlined in the POSH Law to conduct inquiries. This Law requires the establishment of an IC to handle complaints effectively, ensuring investigations are carried out with impartiality and confidentiality. Regular training and awareness programs are also crucial, educating employees on their rights and the specifics of reporting harassment. The complaint process under the POSH Act should be transparent and accessible, encouraging the aggrieved person to come forward in a secure environment without fear of retaliation. When violations occur, the organization must enforce the disciplinary actions prescribed by the POSH Act, which can range from reprimands to termination based on the severity of the offense. Additionally, maintaining detailed records of all incidents and investigations is essential for compliance with legal requirements and managing future legal challenges. By adhering to the POSH Act’s procedures when service rules are insufficient, organizations ensure a safe and respectful workplace.
When dealing with sexual harassment in the workplace, it is essential for organizations to align their internal service rules with the POSH Law. This integration ensures a thorough and legally compliant approach to handling such issues. In the case of Debjani Sengupta v. The Institute of Cost Accountants, Writ petition no- 4806 of 2019 the court stressed that while the findings of the IC under the POSH Law are important, they must be consistent with the service rules applicable to the organization, especially in terms of the process of the inquiry and the disciplinary action. This decision highlights the need for organizations to balance following the POSH Law with adhering to their established service rules.
Can the employer draft policies/service rules in absence of one?
Service rules apply exclusively to central and state government organizations and are crafted by the respective governments. Therefore, employers in private organizations do not have the authority to create service rules that govern the employment conditions and conduct of their employees. However, private organizations do have the capability to draft internal policies for their governance. Under the POSH Act, 2013 it is the responsibility of the employer to formulate and administer policies that govern the organization’s operations and employee relations. Drafting such policies is essential for establishing clear expectations and guidelines for employee behaviour, workplace procedures, disciplinary actions, and more.
Conclusion
This blog post has examined the critical role of service rules in public organizations and codes of conduct in private companies in preventing sexual harassment. Through exploring legal frameworks like the constitutional basis of service rules and the mandates of the POSH Act, we understand how these guidelines shape safer workplaces. Both service rules and codes of conduct set clear expectations and ensure accountability, tailored to the distinct cultures of public and private sectors. When service rules fall short, the POSH Act’s procedures provide a necessary safety net. Employers are encouraged to proactively draft or refine policies to foster a respectful and compliant workplace environment.
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