Bar council not an employer, no need for POSH panel: HC
MUMBAI: Bombay high court said on Monday that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 will not apply to complaints by advocates to bar councils as there is no employer-employee relationship between them.
Hearing a petition seeking direction to bar councils to set up committees to address sexual harassment complaints against advocates, a bench of Chief Justice Alok Aradhe and Justice Sandeep Marne said POSH Act will apply to cases where there is an employer-employee relationship, and bar councils cannot be said to be "employer of advocates".
The petition also sought the implementation of the POSH Act and a committee of lawyers, NGOs, and retired women judges to review and look into lacunas in the Act.
The bench were hearing a petition by UNS Women Association seeking direction to the Bar Council of India and Bar Council of Maharashtra and Goa to constitute a permanent grievance redressal committee of female advocates in all state bar council offices and bar associations to address sexual harassment complaints against advocates as per Supreme Court's Oct 2012 directions in Medha Kotwal Lele's case.
The petition also sought the implementation of POSH Act and a committee of lawyers, NGOs, and retired female judges to review and look into lacunas in the Act.
Senior advocate Milind Sathe, for BCMG, and advocate Shekhar Jagtap, for BCI, submitted that there is no employer-employee relationship between advocates and bar councils. Hence, the establishment of an internal complaints committee is not applicable as per POSH Act. They said there is a provision for local committees headed by the district collector to receive complaints of sexual harassment for a workplace having fewer than 10 employees.
However, neither ICC nor the local committees can be invoked by female advocates. Sathe said under Section 35 of the Advocates Act, 1961, there is remedy for professional and other misconduct.
The judges referred to sections of the POSH Act relating to the constitution of ICC and local committees and also considered the definition of employer. In the order, they said it is evident that these provisions will apply to a case where there is a relationship of employer and employee.
Therefore, neither BCI nor BCMG 'can be said to be employer of advocates' and 'therefore the 2013 Act will not apply to advocates', they added.
However, POSH Act will be applicable to employees of BCI and BCMG.
Sathe and Jagtap said BCMG and BCI have constituted ICCs to address grievances of their employees. Additional government pleader Jyoti Chavan said local committees have also been established. The judges noted that as far as the grievance of female advocates is concerned, there is a forum available under Section 35 of the Advocates Act, which provides for lodging complaints tantamount to professional and other misconduct.
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