Is The Complaint Filed Before the Appropriate Authority? Decoding Situations and What the POSH law says..

POSH law lays down elaborative procedures on where and when to file a complaint of sexual harassment. However, team members and the IC members are often faced with the challenge of understanding the appropriate point of contact due to lack of knowledge on the powers of different authorities in the POSH Act. Lack of fundamental knowledge results in delayed proceedings and improper line of communication. 

Fortunately, the Kerala High Court, has in its recent judgment, revisited the fundamental definitions of POSH law thereby clarifying powers of all the authorities under the POSH Act. 

Imagine, you file a complaint against a team member of your organisation before the IC and that member alleges that it is not possible for IC to hear it.  Why ? because the person was never an employee of the organisation but the EMPLOYER. And going strictly by the POSH law, the IC cannot entertain any complaint against this person ! 

What do we do ?

We Look At What The POSH Law Says

The Prevention of Sexual Harassment of Women (Prevention, Prohibition & Redressal) Act, 2013 under Section 6 clearly states that a Local Complaints Committee has to be constituted when the complaint is against the employer himself. Through this, the legislature is clear that whenever there is a complaint against the employer, the complaint has to be filed before the Local Complaints Committee.

Again, if the organisation has ten or more employees and the complaint is against an employee, the IC is empowered to hear the same.

Then we come to an understanding that law creates the power distinction between Local Complaints Committee and Internal Complaints Committee based on a very important definition of an “employer”.

In simple words, POSH law describes an employer under Section 2(g) as any person who is the head of an organisation, department, unit, establishment, etc whether in a government or a private entity, and who is responsible for the management, supervision and control of the same

The Legal Question Before The Court

In the recent judgment before the Kerala High Court in the case of Prof. (Dr.) J. Sundaresan Pillai v. Dr K.K. Seethalakshmi, the petitioner was the director at the Integrated Rural Technology Centre (IRTC) and a complaint of sexual harassment was filed before the IC of the centre by a female employee working there. The petitioner claimed that since he is the director of the institution, he is the employer and so the complaint should be heard by the Local Complaints Committee and not the IC.

The question which the court had to answer here was whether the petitioner as the director of the institution, should be considered as an “employer” as per the  POSH Act. Because when this question gets answered, only then can the court decide if it was the Internal Committee who has the jurisdiction to hear this complaint or is it the Local Complaints Committee.

Why Knowing The Definition of “Employer” Is Important for Us ?

Before understanding the discussion around the definition of “Employer” in this case, it is important to note that these fundamental definitions become the core of all the proceedings that might follow, if a complaint of sexual harassment is filed or if any information in this direction comes to the knowledge of any person working in an organisation.

So, as an IC member and as any member who is a part of an organisation, knowing why words like “employer” have been defined under the law really helps. We know that the law is very clear on complaints that must reach the IC and the complaints that must reach the Local Complaints Committee. But sometimes, facts and circumstances of a case makes it complex to understand if a person will be categorised as an “employee” or as an “employer”.

This confusion further creates a confusion if IC is empowered to look into it or should it not consider it at all. For team members, the confusion leads to delayed filing of complaints and its redressal respectively.

Back To Court’s Observations And Legal Rationale

The Kerala High Court clarified that in such a situation where determining the nature of position held by a person, in terms of being the employer or the employee is necessary, we must look at what the organisation documents like the memorandum of association say in this respect. To understand this, the court examined the definition of employer under Section 2(g) of POSH Act alongside certain clauses of the Memorandum of Association of IRTC.

As previously discussed, the employer under POSH Act is someone who holds the supervision, control and management of the concerned organisation. Contrary to what the appellant alleged, the memorandum of association stated that the control, management and supervision of IRTC vested in the general body and not in the appellant. In fact, the appellant himself was appointed by the executive committee of IRTC. Therefore, it was clear that he is not an employer of the organisation.

Now, when this is clear that the appellant is also an employee, the next step was simple. That the complaint has to be heard by the IC.

Finally, What to Note ?

As an IC member, we must at the very beginning try and clarify if a complaint has to be heard by us or not. This can be very well done if we know the following:

1. If the act complained of, is that of sexual harassment as per POSH law.
2. If the person against whom it is filed, is an employer or an employee as per the POSH law.

As a team member, we must look at the nature of the position occupied by the person against whom we are filing a complaint and approaching the IC. Further, if a complaint has been filed against us, we must again try and determine if IC has the power to consider the complaint or not. This will ensure that the proceedings go on as per law and later on no deficiencies are identified.