Director of institute an employee: Kerala HC allows POSH ICC to continue probe against IRTC Director

The Kerala High Court has observed that when an institution is governed by a Board that exercises overall control and supervision, the director of that institution would be treated as an "employee", not an "employer", under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act)..A Division Bench of Justice Anil K Narendran and Justice Murali Krishna S made the observation while refusing to halt sexual harassment enquiry proceedings initiated by an Internal Complaints Committee (ICC) under the POSH Act against the director of the Integrated Rural Technology Centre (IRTC), Palakkad.Under the POSH Act, complaints against an "employer" are to be examined by the Local Committee (LC), whereas complaints against "employee" are dealt with by the ICC.IRTC's director had challenged the ICC enquiry against him on the ground that he was not an "employee", meaning that the ICC was not authorised to hold enquiries against him. The Court disagreed and ruled that the director, Professor Dr J Sundareshan Pillai, was only an employee under the institution's governing structure..It noted that the designation of a person alone would not determine whether they are an employer or an employee of an institution.Referring to the Memorandum of Association of the IRTC, the Court found that the ultimate authority over the affairs of the institution was retained by the general body and executive committee of the institution, and not the director. The director, too, was subject to the supervision of the executive committee and general body. "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 Court held..The matter concerns a sexual harassment complaint filed by a woman employee of IRTC against its director, Professor Dr J Sundareshan Pillai.Following the complaint, the institute's ICC issued a notice directing him to appear before the committee. Pillai challenged this before the High Court.He contended that he fell within the definition of employer under Section 2(g)(ii) of the POSH Act and therefore the complaint against him could only be examined by the Local Committees as per Section 6(1) of the said Act.Pillai also alleged that the Presiding Officer of the ICC was biased and had a confilict of interest. He claimed that the officer and the complainant had a personal grudge against him and that the complaint was filed only to harass him.A single-judge Bench of the High Court earlier refused to interfere with the ICC proceedings. Pillai then challenged the single-judge order before a Division Bench of the Court..The Division Bench examined the Memorandum of Association of IRTC along with the provisions of the POSH Act and found that even though Pillai was designated as the director of the institution, he was appointed by the executive committee and functioned as per the control and supervision of the Board.The Court found that he did not have ultimate authority over the institution and therefore could not be treated as the 'employer' for the purposes of the POSH Act.The Court further clarified that when a complaint of sexual harassment is raised against an employee, the ICC has jurisdiction to enquire into the matter. Only where the complaint is against the 'employer' or where no ICC has been constituted, would the Local Committee step in.It also noted the IRTC's submission that althoug the complainant would not participate in the ICC's decision-making process, despite being a member of the committee, the Court found no illegality in the proceedings initiated against the appellant or the single judge's decision and dismissed the appeal..The appellant was represented by senior counsel Hariraj MR along with advocates CV Manuvilsan, OA Anju and Alana Mohammed Ali Cholassery.The pressing officer of the ICC and the board of IRTC was represented by advocate Thomas Abraham.Senior government pleader Nisha Bose appeared for the state authorities..[Read Judgment]