Ola tells Karnataka High Court it can't act against drivers under POSH Act as they are not employees

ANI Technologies, the company that runs Ola cabs, urged the Karnataka High Court on Tuesday to dismiss a petition filed by a woman passenger seeking action against a driver under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act)..Senior Advocate Dhyan Chinnappa, who appeared for the cab aggregator company, told Justice MGS Kamal that Ola drivers were not employees of the company, and therefore, cannot be proceeded against under the POSH Act, 2013 in such scenarios..Chinnappa further said that the driver concerned had already been blacklisted by Ola and that he deserved to be “brought to book.” However, he added that the company cannot be held responsible for the driver’s actions.“Based on the terms of contract (with the driver), it is not Ola’s cab. The lease holder has a right over it. I am an intermediary. If I train the drivers, or place some terms and conditions, that does not take away the fact that I am merely an intermediary. The driver is independent,” Chinnappa told the Court.“The petition for prosecution under POSH Act is not maintainable. Labour legislations cannot be applicable when the drivers are independent. In terms of the relief sought, action has already been taken against the driver. Beyond this, to introduce a definition of a driver as an employee will be an extreme stretch, and therefore, the petition should be dismissed,” he added..The Court proceeded to reserve orders in the matter..Justice Kamal was hearing a plea filed by a woman in 2019 alleging that she was sexually harassed by an Ola driver in August 2018, and that Ola had failed to take appropriate action following her complaint.She contended that during her cab ride, the driver kept staring at her through the rear-view mirror and watching a pornographic video on his mobile phone in a manner that it was visible to her. The driver had also been masturbating and refused to stop the cab before the destination, the petitioner said.Following the woman's initial complaint, Ola told her that the driver had been blacklisted and would be sent for counselling. The company, however, did not take any further action, prompting the petitioner to lodge a formal police complaint. Ola through its ICC contended that the cab drivers were not company employees, and therefore, not amenable to actions under provisions of the 2013 Act.This prompted the woman to move the High Court. She made the Central and State governments, ANI Technologies, and the Internal Complaints Committee (ICC) of Ola parties to her petition and sought action against the driver under provisions of the POSH Act..On Tuesday, counsel for the petitioner objected to the cab company’s claim that it was not accountable for a driver’s actions.“Take the example of a woman like me. The trust we entrust on a large entity like Ola...I chose to book an Ola cab instead of hailing a random cab on the road because I felt Ola would be safer. Now, if Ola tells me it is not responsible for my safety, what am I supposed to do? Had I known this, I would never have entered that cab in August 2018.".Chinnappa countered that a customer, even someone who consciously chooses to take an Ola cab, “cannot assume that Ola owns the cab and owns the driver.”The senior counsel reiterated that the aggregator company was merely an intermediary like “Amazon or Flipkart.”.Justice Kamal, however, said that a cab aggregator cannot compare itself to an online marketplace such as Amazon.“Intermediary simplicitor doesn't apply in this case. Amazon acts as a marketplace. In case of consumerism, there is hardly any scope for these kinds of allegations to come...physical/sexual harassment. Someone wants to buy coriander, doesn't have any contact with the intermediary physically,” the judge observed.The Court also pulled up the State government for failing to take adequate action on the woman’s complaint made at the Cubbon Park Police Station in Bengaluru.