Bar Association Not 'Employer', Can't Constitute Internal Complaints Committee As Per POSH Act: Kerala High Court

The Kerala High Court recently held that the constitution of an Internal Complaints Committee (ICC) by the Kollam Bar Association was against the objective and requirement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [POSH Act].Justice P.M. Manoj reasoned that a bar association is not an 'employer' within the meaning of the Act and therefore, the ICC constituted is not in accordance with the Act. It observed:“The only mention with respect to the Bar Association is found under the Kerala Advocates Welfare Fund Act, 1980, and that is solely for the purpose of maintaining a roll of persons who are also on the rolls of the Bar Council of Kerala… The authority constituting the employer is essentially the person discharging the contractual obligation with respect to his or her employees. As far as an advocate is concerned, the petitioner's role does not qualify under any of the authorities mentioned in the said provisions. Hence, the formation of the ICC does not qualify under the mandate of Section 4 of the PoSH Act.” The Court was considering a plea preferred by an advocate, who was a member of the Kollam Bar Association. The petitioner was alleged by a junior advocate to have committed a misconduct when she went to his residence for the purpose of discussing notarization of a document. She made a police complaint alleging offences under Sections 354, 354A(1)(i), 354(1)(ii), and 354(1)(iv) IPC.Subsequently, a complaint was made to the Bar Association, which forwarded the same to an ICC constituted as per Section 4 of POSH Act. The ICC conducted an enquiry and submitted a report. It is stated that the petitioner cooperated with the Committee and even cross examined the complainant/3rd respondent. Subsequently, the Association took a decision to suspend the petitioner from his membership until a further decision was made on the ICC report and intimated the same to him. Thereafter, the petitioner submitted a belated explanation, where he did not raise any objection regarding the applicability of the POSH Act.At this stage, the petitioner preferred the writ petition, challenging the ICC constituted by it. He also challenged the ICC enquiry conducted against him as well as the suspension order issued against by the Association.The petitioner contended that the alleged incident took place at his private residence, which not a workplace as defined under the Act. It was also argued that the petitioner and the complainant are not employees of the Bar Association and there is no employer-employee relationship. He relied on various decisions to buttress his arguments.The Bar Association put forth the argument that it was an incorporated company in which the petitioner and the complainant are members. It stated that disciplinary action was taken against the petitioner as per the Articles of Association only upon the misconduct of the petitioner being prima facie established.The ICC represented by its Chairperson also entered appearance and challenged the very maintainability of the writ petition. It was contended that there was non-joinder of necessary parties since the members of the ICC were not impleaded and there is provision providing representative capacity to a Chairperson.Further, it was argued that employer-employee relationship between petitioner and complainant or the complainant and the Bar Association is not a pre-requisite for the applicability of the POSH Act. The ICC's counsel relied on Aureliano Fernades v. State of Goa and Initiatives for inclusion of Foundation v. Union of India to contend that Bar Association was a formal organization, which can constitute ICC, even if there is no formal employer-employee relationship between members. It referred to Women in Cinema Collective and others v. State of Kerala and Others where the Division Bench of the Court and argued that employer-employee relationship is not strictly necessary for the applicability of the POSH Act and the Bar Association can take disciplinary action against the accused person based on the ICC report.They also contended that the place of occurrence cannot be termed as a purely private place or residential dwelling of the petitioner since he was running his office there and was notarising documents.The complainant in the case argued that Kollam Bar Association is not a 'State' within the purview of Article 12 of the Constitution and the writ petition was not maintainable. Further, it was contended that the Bar Association is empowered to conduct an enquiry since it is a body responsible for the welfare of its members and the present action was as per Article 12A of the Articles of Association of the Association.While considering the case, the Court looked into the intent of the Act as well as the several provision that provide the definitions of 'aggrieved woman', 'employer', etc.Initially, the Court considered the question of maintainability of the writ petition against the Bar...

Bar Association Not 'Employer', Can't Constitute Internal Complaints Committee As Per POSH Act: Kerala High Court

K. Salma Jennath

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