Sympathy is uncalled and mercy is misplaced – Judicial dicta.

Introduction-

Two decades ago the Supreme Court came with the “sexual harassment in working place” code of conduct in the lines of CEDAW, which came as a blessing in disguise for the working women folk, still we are in the process of coming out with a Central Act exclusively dealing with “Sexual harassment at the work place” to fill the vacuum. However, there is a “Sexual Harassment of Women at their Work Place (Prevention) Bill, 2006[1]” which is pending for enactment in the Parliament but some State legislature in the nation like Tamil nadu[2] and Karnataka[3] have come out with an exclusive legislation dealing with sexual harassment in the workplace. Apart from these exclusive legislations and precedents there are Service rules[4] which provide that sexual harassment at the work place is misconduct.

An endeavor has been made in this article to go into the judicial inroads after the land mark Vishaka case which has been followed by catena of judgments by the Court’s in India without loosing focus on the scope and implementation of the code with an insight as to the possibility of a dress code in working place.

Implementation of the Code of conduct-

Looking after this landmark judgment many women who were being sexually harassed started breaking their silence and started demanding action from the employers[5]. With the implementation of Vishaka being sparse and challenging, several efforts have been made in the last few years to strengthen its implementation and ensure accountability. One such effort was the Apparel Export Promotion Council case[6], and the other was the Draft Bill of 2006 on Sexual Harassment.

The Apex court mandates it shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and the code of conduct should provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required[7]. Express prohibition of sexual harassment at the work place should be notified, published and circulated in appropriate ways. As regards the private employees steps should be taken to include the prohibition in the Standing orders under the Industrial Employment (Standing Orders) Act, 1946[8].

Enforceability and disciplinary actions-

Code of conduct is certainly enforceable by the Company and the employer has the legal obligation to fulfil the mandate of the Supreme Court judgment. The Supreme Court in the Vishaka case said “these directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field”. There are now many cases wherein the Code of conduct provided by the Vishaka has been implemented successfully by the Companies and / or the employee.

The Company has got the power to take actions against the employee in the event of violation of code and in fact, turning a blind eye would cause serious problem to the management. There are cases where the protector has himself turned into a predator and accordingly punished for sexual harassment and the Court pronounced “protection in terms of the judgment of the Supreme Court and the guidelines issued in the case of Vishaka is to be given to harassed women at workplaces, to prevent exploitation and to provide safeguard to susceptible persons[9]”.

The employee who has committed the offence under the code can be charged for “misconduct” and disciplinary action can be initiated against him. In Apparel case the Supreme Court held that “any lenient action in such a case is bound to have demoralizing effect on working women. Sympathy in such cases is uncalled for and mercy is misplaced[10]”. In Narendra Kumar Khare[11] case the Court justified the action taken by the Company on its employee for the sexual harassment which happened outside Indian in its branch office in Japan. Disciplinary action for “misconduct” is possible. In Apparel case the employee was removed from the service by the Disciplinary Committee of the Company which was upheld by the Supreme Court. The Central government can initiate action against the employee for “unbecoming of a Government servant[12]” when he indulges in sexual harassment in work place.

Consequences of Non-implementation-

The attitude that non-implementation of the code of conduct will not attract any consequences atleast in theory does not seem to exist looking at the various judicial decisions. The employee or her relative can approach the National or State Commission for Women for non-implementation of the code of conduct or seeking suitable relief. The guidelines and directions in Vishaka’s case are to be complied with by the Co-operative Society. The Co-operative Society shall carry out the obligations under this judgment and form the Complaint Committee and Complaint Mechanism[13].

The employees or any public spirited individual can approach the Supreme Court or the High Court for violation of the “gender equality right” enshrined in Article 14 and 21[14] of the Indian Constitution.  The Bombay High Court recently in Arati Durgaram[15] case said that “every employer in the territory of India is bound to abide by the judgment of the Supreme Court which is law under Article 141 of the Constitution. Appointing an Advocate as an Enquiry Officer does not constitute valid or adequate compliance with the judgment of the Supreme Court. The mandate of the law laid down by the Supreme Court is that an employer at the work place must constitute a complaints mechanism to deal with complaints of victims”.

Companies drawing their own Code of conduct- Is it permissible?

Companies can certainly draw up their own code for the implementation of the “code of conduct” incorporating all the principles which are provided in the Vishaka’s case and without conflict with the Service rules and judgments of the Court. In Arati Durgaram[16] case the Company instead of constituting a “Complaint Committee” appointed an advocate the Court held that the company has negated the true spirit of the judgment by not constituting the Committee as envisaged by the Supreme Court in Vishaka’s case.

Therefore, every employer is duty bound to abide by the letter and spirit of the orders of the Supreme Court in Vishaka, the failure of which will land the employer into serious litigations.

The Vishaka judgment says that “employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings”. And also says “Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines in a suitable manner”. The Section 14 (b)[17] Bill of 2006 provides that the work place should “undertake workshops and training programmes at regular intervals for sensitizing the members”. Therefore in the light of the Supreme Court decision and the Bill of 2006 it may be safely said that conducting training programmes and repeating the training programmes at frequent intervals would become mandatory for the employer.

Relationships at work

Moving into a more interesting question is how romantic relationships between employees are considered and whether it is possible for an employer to forbid employees to have a romantic relationship with another employee?

It is pertinent to note that romantic relationships between the employees in the work place may attract misconduct proceedings. It may also attract “conduct unbecoming of a government servant” attracting Rule 3 (1) (iii) of the Central Civil Services (Conduct) Rules, 1964. The term “work place” as interpreted by the Court goes beyond the office place and covers even the Mess were the employees have food and also use for temporary staying purposes[18]. The societal practise does not support any such kind of activities. Nevertheless, things happen and proceedings for misconduct and disciplinary proceedings are initiated against them under the Service rules.

The code of conduct pronounced in Vishaka and other Supreme Court judgments are silent about having a romantic relationship with a fellow employee. However, these acts may attract the India Penal Code which declares adultery and obscenity as a crime which has criminal consequences under the Indian Penal laws.

Dress code in working place-

Employers are now looking for a dress code in the work place and there are very interesting questions as to how far appearances such as tattoos, piercing, hair style can be regulated, also what about the religious attire in the working place?

As there is no law governing employee dress codes in India. Employers may set decent dress guidelines as they wish, so long as they do not discriminate on the basis of gender, caste, race, religion, disability, or any other legally protected status. Nonetheless to remind that employees may go to court about them as a breach of their fundamental rights to “free speech and expression” and “right to equality” enshrined in the Indian Constitution. However decency of the dress is yet another issue which requires some consideration.

Indian citizen have the fundamental right to carry with them their religious symbols, marks as a mark of their religious manifestation which is been guaranteed by the Indian Constitution[19].  The Supreme Court held “When persons following a particular religion carry Trishul, Conch or Skull in a procession, they merely practice which is part of their religion which they wanted to propagate by carrying symbols of their religions such as Trishul, Conch etc., if the conscience of a particular community has treated a particular practice as an integral or essential part of religion, the same is protected by Articles 25 and 26 of the Constitution of India”[20]. Denying the employee the right to wear any religious attire which is the manifestation of their beliefs would lead to unnecessary litigation.

Conclusion-

The Vishaka judgement was a blessing for women workers and a check on the disobedient men in the workplace. However, there are certain lacunae. The Complaint committee is formed only after the Complaint has been made which is a violation of the code of conduct. The committee must already be formed when a woman makes a complaint and thus eliminating bias or delay fulfilling the mandate of Vishaka.

All these code of conducts are basically meant to protect women from sexual harassment in their work place and they are to a certain extent gender biased. We cannot rule out the misuse of such a provision in order take revenge against a male employee or to misuse it for some other purpose. Much thinking has to go into making this Code of conduct a gender neutral one in order avoid the misuse of the provisions or atleast provide some checks on the complaint process. This may prevent back firing which may happen in employing women in their organisations.

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