POSH Act | ICC Can Probe Sexual Harassment Complaint Against Institution's Director If He Is Not In Control Of Affairs: Kerala High Court

The Kerala High Court has said that an institution's Internal Complaints Committee (ICC) can inquire into sexual harassment complaints against the institution's Director if he does not have control over the affairs and management of the institution and is an “employee” appointed by the institution's executive committee. The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. was considering an appeal challenging the decision of the Single Judge, who dismissed a plea by the Director of Integrated Rural Technology Centre (IRTC).The IRTC Director had preferred the writ petition before the Single Judge seeking to set aside a summons notice issued by the Presiding Officer of the institute's ICC in a sexual harassment complaint lodged by a woman employee against him.Referring to the provisions of the POSH Act the court said that they clarify that if a sexual harassment complaint is raised by an employee in the workplace from the hands of another employee, then the matter has to be enquired into by the ICC. If the complaint is against the employer himself or an ICC is not constituted, then the said complaint has to be enquired into by the Local Committee."Though the appellant contends that he will fall under the definition of employer under Section 2(g) of the PoSH Act, a combined reading of Clauses 7, 18 and 23.2 of Ext.R3(a) Memorandum of Association of IRTC would make it clear that the control, administration and management of the affairs of IRTC is vested with the general body and the executive committee and not with the Director.The overall management of the affairs of IRTC mentioned in Clause 23.2.2 by the Director is subject to the control and supervision of the executive committee and the general body. Clause 23.2.1 makes it clear that the Director is also appointed by the executive committee of IRTC. In such circumstances, the appellant can only be treated as an employee in IRTC, and therefore, the ICC constituted has the authority to receive and enquire about the complaint raised against the appellant". The appellant/petitioner stated that the complaint was filed solely to harass him and also that the ICC's Presiding Officer is having a conflict of interest with him.The appellant contended that he, being Director, was the head of the Institution and “employer”. He referred to the Memorandum of Association and Rules and Regulations of the Society for IRTC and contended that the director was vested with the overall management of the affairs and therefore, he was not an employee but an employer.Since a complaint against an employer will only lie before the Local Committee as per Sections 2(g)(ii) and 6 of the Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act), he argued that the present complaint cannot be enquired into by the ICC.He had also made a representation before the District Collector with the same contention prior to approaching the High Court and the same was forwarded to the District Women and Child Development Officer, directing that appropriate action be taken after considering the complaint and the appellant's objection. While this was pending, the notice requiring his appearance was issued by the ICC, compelling him to approach the High Court.The respondents arrayed in the plea were the ICC's Presiding officer, Executive Committee and the Governing Body of IRTC, the District Collector, the District Women and Child Development Officer and the State of Kerala. They contended that the Executive Committee has control, administration and management of the affairs of the IRTC and the Director is merely an employee.The respondents also pointed out that 5 months after the institute's Registrar issued an order constituting ICC, the petitioner/appellant issued an order dissolving the ICC. They further submitted that the appellant's representation before the District Collector was forwarded to the Presiding Officer of ICC stating that the LC has no jurisdiction to enquire the complaints filed before the ICC or to give direction to the ICC.Considering the contentions, the Court went on to examine the provisions of the POSH Act, including Sections 2(f), 2(g), 4, 6 and 9 as well as the Memorandum of Association of IRTC.The Court then observed that the POSH provisions provide that when sexual harassment complaint is made by employee against another, ICC has to conduct enquiry whereas when it is made against an employer or the ICC is not constituted, the LC has to make the enquiry. Further, it was remarked that the Director is not an employer since the overall management of the affairs by Director is subject to control and supervision of the executive committee.Regarding the order dissolving the ICC, the Court remarked that the same is clearly a creature of the appellant. The IRTC's standing counsel submitted that the complainant, who was a member of the ICC, would not be part of the ICC while taking a decision in her ...

POSH Act | ICC Can Probe Sexual Harassment Complaint Against Institution's Director If He Is Not In Control Of Affairs: Kerala High Court

K. Salma Jennath

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POSH Act | ICC Can Probe Sexual Harassment Complaint Against Institution's Director If He Is Not In Control Of Affairs: Kerala High Court

K. Salma Jennath

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