SEXUAL HARASSMENT REGULATIONS UNDER THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946

This article is written by Sahil Mewani of 7^th Semester of ILS Law College, an intern under Legal Vidhiya

Abstract

This paper delves into the Sexual Harassment Regulations under the Industrial Employment (Standing Orders) Act, 1946, examining its impact on preventing and addressing sexual misconduct in Indian workplaces. The rising participation of women in the workforce has heightened concerns about their safety, particularly in the context of sexual harassment. While the primary law addressing this issue in India is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013, the Industrial Employment (Standing Orders) Act of 1946 plays a crucial role by mandating employers to define company policies and workplace rules.

The study explores the provisions of the Industrial Employment (Standing Orders) Act, elucidating its objectives and the requirements for formulating “standing orders” within industrial establishments. It discusses the Act’s role in promoting transparency, industrial harmony, and efficiency by establishing standardized rules for employment conduct. The Act’s applicability, meaning of standing orders, and the definition of sexual harassment are examined, emphasizing its inclusive approach covering both male and female employees.

The paper sheds light on the Complaints Committee, a vital component mandated by the Act to address sexual harassment complaints. The Committee’s composition, procedures for inquiry, and the significance of its annual reports are explored. The study also highlights the Proceedings under the Act, emphasizing the workman’s rights, language preferences, and the time frame for inquiry completion.

The research scrutinizes the disciplinary actions outlined in the Act, including suspension, dismissal, fines, and reduction in rank, based on the gravity of misconduct. It provides insights into the complexities of subsistence allowance, appeals, and the role of the Appellate Authority. The paper concludes by acknowledging the Act’s role in addressing workplace sexual harassment but underscores the need for additional legislation, such as the Sexual Harassment of Women at Workplace Act of 2013, to better protect women’s rights and privacy in employment contexts

Keywords

Sexual Harassment Regulations, Industrial Employment Act, Workplace safety, Sexual Harassment Act, 2013, Inclusive Workplace, Complaints Committee, Disciplinary actions, Workplace privacy

Introduction

Women’s participation in the workforce has increased substantially since the advent of 21st century. In the past, society limited women primarily to domestic roles or minor jobs, but today women work alongside men in nearly every field. This shift away from male-dominated workplaces has raised issues regarding women’s safety and well-being, especially sexual harassment by male colleagues. Sexual harassment encompasses any unwanted, inappropriate behaviours of a sexual nature that target an individual in the workplace. As more women entered fields formerly occupied almost exclusively by men, problems emerged concerning their treatment, including sexual misconduct by male co-workers. Sexual harassment in the workplace is an important issue that can have serious consequences for victims, companies, and society as a whole.

The 2013 Sexual Harassment of Women at Workplace Act is the primary Indian legislation directly addressing sexual misconduct in employment contexts. However, other laws also relate to this issue in the workplace. One example is the 1946 Industrial Employment Standing Orders Act mandating that employers establish clear company policies and rules of conduct. Examining this longstanding Act sheds further light on sexual harassment prevention and response in Indian organizations. It reveals deficiencies in addressing harassment matters alongside provisions aligning with promoting safe, ethical work cultures. An analysis of how the Industrial Standing Orders Act’s focus on codifying workplace standards and disciplinary procedures relates to the goal of tackling sexual harassment provides supplementary perspectives. Though not written with harassment issues in mind, this law’s applications lend additional insights into barriers as well as legislative supports when working to eliminate gender-based workplace aggression in contemporary times.

Industrial Employment (Standing Orders) Act of 1946

The Industrial Employment (Standing Orders) Act of 1946 is a landmark legislation in India that addresses the terms and conditions of employment within industrial establishments. Enacted on April 23, 1946, the primary objective of this statute is to establish clear and standardized guidelines governing the relationship between employers and workers in the industrial sector.

Under the provisions of the Act, industrial establishments meeting specific criteria are required to formulate and define “standing orders.” These standing orders serve as comprehensive written documents that outline various aspects of employment, including working hours, leave policies, disciplinary procedures, and termination processes. The intention behind these standing orders is to provide a transparent and consistent framework for the conduct of employment within the organization.

By defining and communicating these standardized rules, the Act aims to promote industrial harmony, discipline, and efficiency. It plays a crucial role in preventing disputes and conflicts between employers and employees by establishing a clear understanding of their respective rights and obligations.

The provisions of the Standing Orders Act are applicable to industrial establishments within India that currently engage more than a hundred workmen or had such engagement on any day in the preceding year. However, the appropriate Government may determine otherwise for the application of this Act to industrial establishments with fewer than a hundred employees.[1]

Meaning of Standing Orders

Section 2(g) of the Act states that “standing orders” are the rules relating to matters set out in the Schedule, i.e. with reference to:

• Workmen Classification;
• Manner of communication to workers about work and wage-related info;
• Attendance, and conditions of granting leaves, etc.;
• Rights & liabilities of the employer / workmen in certain circumstances; 
• Conditions of ‘termination of’/ ‘suspension from’ employment; and
• Means of redressal for workmen, or any other matter.
• Suspension / dismissal for misconduct, and acts or omissions which constitute misconduct.[2]

The Standing Orders Act mandates the formulation of Model Standing Orders, which function as guidance for employers. If an employer has not created and certified their standing orders, the regulations outlined in the Model Standing Orders will be enforced.

The Standing Orders framed by the employer need to be in conformance with the provisions of the Act and the prescribed schedule as far as practicable and where conformity is not possible, the same shall have to be certified by the Certifying Officer.[3]

Definition of Sexual Harassment as per Industrial Employment (Standing Orders) Act, 1946

Paragraph 14(3) of the Model Standing Orders under lndustrial Employment (Standing Orders) Central Rules, 1946 defines acts or omissions which shall be treated as misconduct.

Sexual harassment is comprehensively defined under Clause (l) under 14(3), covering a spectrum of unwelcome behaviours, whether overt or implied. These behaviours include:

(i) physical contact and advances; or

(ii) demand or request for sexual favours; or

(iii) sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature

 Notably, in cases where a complaint of sexual harassment aligns with the criteria specified in clause (l) of sub-paragraph (3), the responsible entity for inquiry is the Complaints Committee established under sub-paragraph (3B) in each establishment. This committee is tasked with investigating such complaints and, despite the provisions outlined in paragraph 15, is deemed to be the designated inquiry authority appointed by the employer for the purposes laid out in these rules.

It’s noteworthy to observe that the definition of sexual harassment extends beyond the scope outlined in the Vishaka Judgment. It introduces the imperative of establishing a complaints committee to address such concerns. These standing order rules go beyond addressing sexual harassment exclusively against women; they encompass instances of sexual harassment against men as well. This stands in contrast to the POSH Act, which specifically safeguards against sexual harassment of women in the workplace.

Complaints Committee

The Complaints Committee[4] shall consist of—

• a Chairperson who shall be a woman;
• two members representing Non-Government Organisation (NGO) or any other body which is familiar with the issue of sexual harassment or nominees of the National or State Commission for Women familiar with the issue of sexual harassment.

The Complaints Committee is responsible for conducting inquiries, unless a separate procedure has been specified for investigating complaints of sexual harassment. In such cases, the Committee will, to the extent feasible, follow the procedure outlined in these rules.

 The Complaints Committee is obligated to prepare and submit an annual report to the appropriate Government. This report should detail the received complaints, actions taken by the Committee.

 Additionally, The Complaints Committee shall submit a report on the compliance with the guidelines issued by the Central Government in alignment with the Supreme Court’s directives in Vishaka vs State of Rajasthan and others[5]. The report should encompass the findings and activities of the Complaints Committee.

Features Related to Proceedings

• Workman shall be entitled to appear in person or to be represented by an office bearer of a trade union of which he is a member.
• The Proceedings shall be recorded in Hindi or English or official language of the State where the industrial establishment is located in, whichever is preferred by the workman
• The proceedings of the inquiry shall be completed within a period of three months which may be extended for such further period, for reasons recorded in writing, if deemed necessary by the inquiry officer.
• Based on the outcome of an inquiry or criminal proceedings against a workman, if the workman is found guilty, the employer can impose penalties such as dismissal, suspension, fine, stoppage of annual increment, or reduction in rank, after giving the workman an opportunity to represent their case.
• In cases of dismissal, the workman is deemed absent during suspension, and subsistence allowance is not recoverable. If suspension exceeds four days, the workman is entitled to wages for the remaining period.
• If found not guilty, the workman is considered on duty during suspension and entitled to wages.
• The payment of subsistence allowance is contingent on the workman not taking up other employment during suspension.
• The authority imposing the punishment considers the gravity of misconduct, workman’s previous record, and other relevant circumstances.
• A workman dissatisfied with the punishment order can appeal to the appellate authority within twenty-one days, and the appellate authority must provide a decision within fifteen days of receiving the appeal.

Subsistence Allowance

The employer has a responsibility to provide the workman with a subsistence allowance during the suspension period. This allowance is initially set at 50% of the workman’s entitled wages for the initial ninety days of suspension, escalating to 75% for the remaining period if the delay in completing disciplinary proceedings is not attributable to the workman’s conduct. Disputes concerning the subsistence allowance can be brought before the Labour Court by either the workman or the employer, and the decision rendered by the Labour Court is conclusive and binding. Furthermore, if any other state law offers more advantageous provisions for subsistence allowance, those regulations will take precedence in that particular state.

A provision for appeal is afforded to the workman, permitting them to appeal to the appellate authority (Labour Court) within twenty-one days from the date of receiving the order if they feel aggrieved by the punishment. The appellate authority, after providing the workman an opportunity to present their case, will issue a suitable order within 15 days from the receipt of the appeal and communicate it in writing to the workman.

Punishments and Reliefs

A workman can face suspension for a duration not exceeding four days at a time or immediate dismissal without notice or compensation in lieu of notice if found guilty of misconduct as determined by the Complaint Committee. In instances where a disciplinary proceeding against a workman is being considered, pending, or when criminal proceedings related to an offense are under investigation or trial, and the employer deems it necessary or desirable to suspend the workman, the employer may issue a written order, specifying the effective date of suspension.

Furthermore, the employer has the authority to impose fines on the workman, amounting to up to two percent of the monthly wages. These fines are applicable for acts or omissions that the employer may specify, subject to prior approval from the Government or the prescribed authority as per Section 8 of the Payment of Wages Act, 1936.

In cases where the employer deems it appropriate, and the workman has been found guilty, punitive actions may include the stoppage of the annual increment or a reduction in rank. The severity of the punishment is determined by the employer based on the nature and gravity of the misconduct.

Conclusion

Although Industrial Employment (Standing Orders) Act, 1946 provides a way for getting justice against sexual harassment at workplace, the purpose of the act is not to protect women against sexual harassment but merely to establish Standing Orders. The provisions under this Act ignore the impact of sexual harassment on Women and various other factors to take into consideration and fail to protect woman’s privacy and dignity. Hence The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was a necessary law brought into effect which, although has its flaws, is a better path to justice for women in workplaces.

References

1. Nitish Desai and Associates, Prevention of Sexual Harassment at Workplace, (last visited Jan. 18,2024),https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
2. Monesh Mehndiratta, The Industrial Employment Standing Orders Act 1946, ( last visited Jan 18 2024), https://blog.ipleaders.in/the-industrial-employment-standing-orders-act-1946/#Meaning_of_standing_orders
3. Yamini Jain, The Industrial Employment Standing Orders Act 1946, ( last visited Jan 18 2024), https://blog.ipleaders.in/industrial-employment-standing-orders-act-1946/

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[1] Section 1(3) of Industrial Employment (Standing Orders) Act, 1946

[2] Clause 9 of The Schedule of Industrial Employment (Standing Orders) Act, 1946

[3] Section 4(b) read with Section 3(2) of Industrial Employment (Standing Orders) Act, 1946

[4] Sub Paragraph 14(3)(B) of Model Standing Orders of Industrial Employment (Standing Orders) Central Rules, 1946

[5] Vishaka vs State of Rajasthan and others, Writ Petition (Criminal) Nos. 666-670 of 1992

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