Karnataka High Court: While considering the instant petition filed by a victim of sexual harassment at the hands of a driver of OLA Taxi, expressing her grievance on the inaction on the part of the Internal Complaint Committee (ICC) of ANI Technologies Private Limited (OLA), the Bench of MGS Kamal, J., directed the ICC to hold an enquiry into the complaint of the petitioner dated 30-09-2018 in accordance with the provisions of PoSH Act, 2013 and complete the process as expeditiously as possible within an outer limit of 90 days from the date of receipt of certified copy of the order as per Section 11 of the PoSH Act, 2013 and submit the report to the District Officer as provided thereunder.
The Court further directed ICC and ANI Technologies Pvt. Ltd., (parent company of OLA) to pay a sum of Rs.5 Lakhs to the Petitioner towards compensation and an additional sum of Rs.50,000/- towards litigation expenses within 30 (thirty) days from the date of receipt of certified copy of the instant Order.
Background:
On 23-08-2018 at around 6:30 a.m. the petitioner had requested a taxi using OLA platform to commute. The petitioner was provided with the name and rating of the suggested driver. The petitioner, being a regular user of OLA proceeded to board the OLA Taxi.
During the course of the ride, the petitioner noticed that the OLA driver staring at her through a rear-view mirror in a manner that made her extremely uncomfortable and scared. While the petitioner continued to struggle and deal with the OLA driver’s continuous staring, she was shocked and horrified to realize that the OLA driver was watching pornographic video on his phone and had intentionally held the phone in a manner to ensure that the pornographic video was visible to the petitioner. Furthermore, the petitioner noticed that the said OLA driver was not only watching the video while driving but was also simultaneously masturbating. The petitioner, being extremely frightened, repeatedly requested the driver to stop the vehicle but to no avail, as the driver flatly refused to stop the OLA Taxi and insisted that he would drop the petitioner only at her destination. The petitioner was finally able to exit the OLA taxi close to her workplace.
Upon reaching her office, the petitioner lodged a complaint against the driver on the OLA platform. The petitioner then received a phone call from the OLA executive, who stated that the incident would be investigated. A few hours later, the petitioner received another call from the OLA informing her that the suggested driver had been ‘blacklisted’ and would be sent for counselling and training.
The petitioner was not satisfied with the outcome and made a request to know the details of the purported counselling and training that would be imparted to the driver. Thereafter, the petitioner received another call from OLA seeking her permission to close the complaint, despite her request that substantive action must be taken against the driver. In turn OLA attempted to persuade the petitioner not to take any further action. Therefore, the petitioner was compelled to take legal recourse in the matter.
During investigation, OLA’s law enforcement team identified OLA driver and informed that he was not the suggested Driver who was registered with OLA and was scheduled to ride the OLA Taxi. OLA’s Authorized Representatives confirmed that it was an incident of drivers being swapped.
The petitioner, thereafter, issued a legal notice dated 21-09-2018 to OLA calling upon it to proceed against the driver under the Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act, 2013). By reply dated 27-9-2018, OLA stated that it did not have jurisdiction to take cognizance of the complaint on the ground that as the drivers were not its ”employees” but were “independent contractors”.
Court’s Assessment:
Perusing the matter, the Court noted that case must be adjudicated in the light of provisions of the PoSH Act, 2013 and the law enunciated by the Supreme Court.
Taking note of the legal scheme and relevant precedents, the Court pointed out that writ petition against private entities is maintainable if it is shown that it owes a duty and obligation to public involving the public law element, and such authority is accepted by the public at large. The Court stated that Sections 4, 9, 11, 13 of the PoSH Act, 2013 which vest and impose authority and obligation having public law element, in the person/body as that of ICC and OLA. Under Section 4 of PoSH Act, 2013, OLA being an employer of workplace is obligated to by an order in writing to constitute Internal Complaints Committee which is a duty cast on OLA under the statute which it owes to public at large.
The Court considered Sections 93, 95(1) and 96(1) read with Section 212 of Motor Vehicles Act, 1988, under which the State of Karnataka framed and published Aggregators Rules, 2016. The Court noted that statutory obligations are also imposed on the OLA, which is admittedly an ‘Aggregator’ as defined under the Aggregators Rules 2016, having been issued with licence and thus being a ‘Licensee’ thereunder.
OLA being the ‘Aggregator’ and the ‘Licensee’ as defined under the Aggregators Rules 2016 has been imposed with additional statutory obligation of ensuring safety of the passengers by further ensuring proper use of the Taxi/vehicle and to inform occurrence of any untoward incident to the Licensing Authority and to the jurisdictional police, failure of which entails the Authorities concerned to revoke the license. The Court pointed out that no material was placed on record regarding their statutory compliance in the matter.
In the light of statutory obligations cast on OLA of constituting the Internal Complaint Committee for enquiring into the complaints of sexual harassment and taking further actions under the provisions of the PoSH Act, 2013 as well, as the obligations imposed under Rules 2016 which is undoubtedly a duty and obligation which it owes towards the public at large, ICC and OLA cannot be heard to say that they are not discharging any ‘public duty’ involving ‘public law element’ making them amenable to Article 226 of the Constitution.
Taking note of the Subscription Agreement entered into between OLA and the Transport Provider and Driver-subscriber and definition of “employer” and “employee” in PoSH Act, 2013, the Court noted that, the language clearly and without any ambiguity indicates that they intend to cover all possible means and modes of engagement of a person as an ‘Employee’ by the ‘Employer’ at his/its workplace, for and in furtherance to his/its business and other objectives. The definitions also suggest the vast scope of their applicability in that one can adopt various legally recognised modes, means, methods of working arrangements, contractual or otherwise, for any duration, with or without any remuneration or on voluntary basis or otherwise directly or indirectly, with or without knowledge, with whomsoever he/it wants for the purpose of his/its domestic, business, commercial and other entrepreneurial activities, completely under the responsibility, control, supervision and management of such employer.
Further delving into the terms of the Subscription Agreement, the Court found that whole and entire control of revenue being generated from the business is absolutely vested with OLA. From fixing the ride rates, payment/receipts, commission sharing, deduction, enhancement, change in rates, payment of statutory dues, to determination, resolution and settlement of any disputes including execution and implementation of outcome of such determination is at the sole discretion of the OLA. Another important segment, i.e., payment of incentives by OLA to the Transport Service Provider, is at the sole discretion of OLA.
‘Commercial term segment’ which is integral and essential part of the subscription agreement makes it abundantly clear that the service offered by the ANI Technologies (OLA) and the arrangement arrived at between them and the transport service provider/ driver-subscriber is not only usage of its portal as ‘intermediary’ but has a whole lot of active role to play in the process of management, supervision and control of the entire business.
The clause providing for payment of incentives over and above the charges payable, further establishes beyond any doubt that OLA has indeed employed the transport service provider/ driver subscriber for its commercial activity. “In the light of the aforesaid commercial terms of the agreement the OLA cannot contend that it has no control of any nature over the transport service provider/driver-subscriber which even according to OLA is criteria sine qua non to govern the relationship of ‘employer’ and ‘employee’”.
The Court was thus convinced that for the purpose of the implementation of the provisions of the PoSH Act, 2013 driver-subscriber be construed as an ‘employee’ of OLA. In the instant case, the components of the definition ‘employee’ left no doubt for the Court that the driver-subscriber was rendering his services directly in connection with the commercial activity of OLA for which it is established. In that view of the matter and more particularly for purposes advancement of the intent and object of the PoSH Act, 2013, it is necessary and compelling that the meaning of the term ‘employee’ be extended to cover persons like driver-subscriber. Anything short of this would result in rendering the purpose, intent and object of the PoSH Act, 2013 ineffective in the vast private sector of this nature.
The Court further found that for the purpose of PoSH Act 2013 the Driver-Subscriber is an ‘Employee’ of the OLA and OLA is not merely an ‘Intermediary’.
The Court further highlighted several instances thereby revealing complete and deliberate lack of exhibition of sensitivity, seriousness or the urgency on the part of both ICC and OLA in addressing the repeated pleas and requests of the petitioner under the garb of a pre-concluded notion of its driver—partners not being the employees, even without there being a formal enquiry.
“Petitioner who opted OLA ride acting upon the promise and assurance of safety and protection offered by OLA having withstood this dangerously treacherous moments sought to register her complaint and intervention of ICC only in furtherance to her fundamental, statutory and contractual rights which she was entitled to having entered into and agreement with OLA while downloading OLA cab app, which has been brazenly and without any scant regards breached and violated by ICC and OLA”.
The Court further found that OLA is operating even without renewal of its license as mandatorily required under Aggregators Rules, 2016. Furthermore, KSTA, before whom the alleged application for renewal of license is pending has done nothing in furtherance to its statutory obligations and duties imposed under the Motor Vehicles Act and Rules, 1988 and Aggregators Rules, 2016. “Nothing much to state about the readiness and willingness of the State, its functionaries and instrumentalities to uphold and implement, amongst other, the law relating to prevention and prohibition of sexual harassment of women”.
With the afore-stated assessment, the Court stated that ICC and OLA who are guilty of deliberate negligence and inaction in the matter as narrated above are bound to compensate the petitioner apart from they being liable to be subjected for prosecution under the provisions of PoSH Act, 2013. “The compensation being awarded is not in commensuration to the hardship, agony and mental trauma which the petitioner has undergone. It is only in recognition of breach and violation of her fundamental rights on account of inaction on the part of ICC and OLA”.
[X v. Internal Complaints Committee, WRIT PETITION No.8127 OF 2019, decided on 30-9-2024]
*Judgment by Justice MGS Kamal
Advocates who appeared in this case :
For petitioner: SRI. RITHWICK GANESH, ADVOCATE FOR SRI. MUNDRA KRITIKA AJAY, ADVOCATE
For respondent: SRI. A. MURALI., ADVOCATE FOR R1; SRI. DHYAN CHINNAPPA SR. COUNSEL FOR SMT. PRIYANKA PRASAD., ADVOCATE FOR R2; SRI. H. MALLAN GOUD CGSC FOR R3; SRI. V.G. BHANUPRAKASH., AAG ALONG WITH SRI. RAGHAVENDRA S.H., AGA FOR R4)
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