Women in Cinema & ors vs State of Kerala &ors
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANIKUMAR (C.J.), SHAJI P.CHALY, J
WP(C) NO. 33994 OF 2018
WP(C) NO. 34273 OF 2018
Facts of the case
Various Public Interest Litigations were filed by various organisations seeking to constitute a grievance redressal mechanism against the sexual harassment as per the directions of the Hon'ble Supreme Court in Vishakha v. State of Rajasthan [(1997) 6 SCC 241] and in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, hereinafter called, 'Act, 2013'. The present judgement decides the moot question whether it is compulsory to form ICC in various organisations having connections with film, Television and other allied activities, and against various political organizations?
These petitions seeks the relief from the court to order various organisations to ensure the compliance of POSH Act and formation of ICC as per rules to deal with the sexual abuse incidents happening in these institutions.
The main contention of the Petitioner is that the various institutions including societies such as 'Women in Cinema Collective' , ‘Centre for Constitutional Rights Research & Advocacy', ‘Association of Malayalam Movie Artists (AMMA)’, and various political parties are require to comply with the provisions of POSH Act.
Directions were also sough to order State Government to conduct an enquiry into the compliance of the provisions of the Act, 2013 in the respondents 3 to 9 organisations viz., Kerala Television Federation, Thiruvananthapuram, Indian Newspaper Society, Kozhikode, Kerala Union of Working Journalists, Thiruvananthapuram, Film Employees Federation of Kerala (FEFKA), Ernakulam, Indian National Congress Party, Kerala Chapter, Thiruvananthapuram,
Contention of the parties
It was contended by one of the respondents, a film production unit is not an 'employer' and it is only an association of Actor Artistes in Malayalam feature films; there is no employer-employee relationship between AMMA and its members. It was stated that it does not have any control over any film production since the artists are individually booked directly by the film producers/film production house and all remunerations are paid by the said film producers/film production house directly to each artists and other technicians and as such, employer of a film production is the film producer/film production house of that particular film production. In such a case, employer will be the suitable body to look into sexual harassment grievances. It was also submitted that they have already formed a Women Cell Grievance Forum consisting of three senior lady artists in Malayalam film industry.
That apart it is specifically stated that in contemplation of section 5 of Act, 2013, the State Government has notified the District Collectors of all Districts as the District Officers to exercise the powers to discharge the functions under the Act, 2013. It is also submitted that the District Officers have constituted a Local Complaints Committee in contemplation of section 6 of Act, 2013 and designated 258 Child Development Project Officers of the Women & Child Development as Nodal Officers as per section 6(2) of Act, 2013.
It was contended by one of the respondents, FEFKA that it is not mandatory on their part of the to set up an Internal Complaints Committee as contemplated under section 4 of the Act, 2013
It was contended by Kerala Film Chamber of Commerce, that so far as the said respondent is concerned, its workplace is only an office in Ernakulam city with a few staff and all of them are male members, so its not mandatory to form ICC.
In one of the writ petition apart from the film industry, allegations of sexual harassment are raised on members of a political party; and so also there are allegations of sexual harassment against women, who are members of Kerala Working Women Journalists and certain paper reports are also referred to.
It was contended by two respondents, Kerala Television Federation, Thiruvananthapuram and Indian Newspaper Society, Kozhikode, that the functioning with the aim of addressing the common interest of its respective members and to enable their unified/collective representation and they do not employ any person for the purpose of its activities and that they are merely a society registered under Societies Registration Act.
Court observations
The court while deciding the various contentions and submissions made by the respondents held the following:
- While discussing the definition of ‘aggrieved woman’ , ‘workplace’ ‘employee’ and ‘appropriate government’ under the POSH Act, it was held by the Hon’ble Court that the definition of employee is very wide. On an analysis of the definition given to 'employee', it is clear that the employee is a person employed at a workplace whether on regular, temporary, ad hoc or daily wage basis, either directly or through an agent including a contractor with or without the knowledge of the principal employer whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and it includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.Therefore, it is clear that the basic requirement to become an employee one should be employed at a workplace. It was also stated “management” includes the person or board or committee responsible for formulation and administration of policies for such organisation.
- The “employee” is defined under section 2(f) to mean, a person employed at a workplace for any work on regular, temporary, daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.
- The court held that these organisations have their own structure, in which employees are there and therefore, if there are any women employees employed by such organisations, they are duty bound to constitute an Internal Complaints Committee, if the employees are exceeding 10 in number.
- The definition of 'employers' in section 2(g) of the Act, 2013 does not cover a voluntary organization like Association of Malayalam Movie Artistes and there is no employer-employee relationship between this Association and Artists in Malayalam Industry, and therefore, the employer and employee relationship does not exist and the Government is constrained to legally compel the Association of Malayalam Movie Artists to form an Internal Complaints Committee as per the statute. But it is also stated that the Government feels that since a large number of women are working in the Malayalam film industry and sometimes some of them have to work at odd places at odd hours, the Association shall voluntarily form guidelines to ensure the safety and security as well as uphold the dignity of all women working in Malayalam film industry. The State Government states that nothing prohibits the Association of Malayalam Movie Artists from forming an Internal Complaints Committee to prescribe and modify the guidelines as well as to inquire into the complaints.
- It can be gathered that even if the respondent organizations are not duty bound to constitute an Internal Complaints Committee, a complaint will lie to the Local Committee constituted under section 6 because the second limb of section 9 makes it clear 16 that where there is no internal committee constituted, the complaint can be preferred to the local committee. Therefore, it cannot be said that even if the respondent organizations have no direct employer relationship with the Actor Artists and consequent to which no Internal Committee is constituted to redress their grievance against the sexual harassment, can be raised against the person or the management, who maintain a workplace.
Conclusion
(1) The production unit of each film industry is an establishment employing Actor Artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee, if they are engaging more than 10 workers, as is contemplated under the Act, 2013.
(2) If any of the respondent organisations, apart from the political parties, are duty bound to maintain Internal Complaints Committee, if they are engaging 10 workers or more for managing the office establishments and wherein women workers are employed for wages or not.
(3) If women workers are employed by any of the respondent organisations related to the film industry in which less than 10 workers are employed, then they are entitled to make suitable complaints to the Local Complaints Committee in accordance with the provisions contained under section 6 read with Section 9 of Act, 2013.
(4) Since the Association of Malayalam Movie Actors has volunteered to appoint a committee to deal with any sexual harassment at its workplace, we record the same and accordingly to take action to notify the members of the Internal Complaints Committee, in accordance with law.
(5) From the discussions made above, we find that the political parties, which are not having any employer-employee relationship with its members and which are not carrying on with any private venture, undertaking, enterprises, institution, establishment etc. in contemplation of a 'workplace' as defined under section 2(o)(ii) of Act, 2013, are not liable to make any Internal Complaints Committee.
(6) In all other cases, a woman employee subjected to sexual harassment is entitled as of right to file any complaint of sexual harassment before the Local Committee in contemplation of the provisions of the act, and under section 9 r/w. Section 6 of Act, 2013.
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