Karnataka High Court
Ms (X) vs Internal Complaints Committee on 30 September, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE Mr. JUSTICE M.G.S. KAMAL
WRIT PETITION No.8127 OF 2019 (GM-RES)
BETWEEN:
MS (x)
...PETITIONER
(BY SRI. RITHWICK GANESH, ADVOCATE FOR
SRI. MUNDRA KRITIKA AJAY, ADVOCATE)
AND:
1. INTERNAL COMPLAINTS COMMITTEE
ANI TECHNOLOGIES PRIVATE LIMITED,
REGENT INSIGNIA NO.414, 3RD FLOOR,
4TH BLOCK, 17TH MAIN, 10 FEET ROAD,
KORAMANGALA, BENGALURU-560 034
REPRESENTED BY ITS CHAIRPERSON.
2. ANI TECHNOLOGIES PRIVATE LIMITED
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
REGENT INSIGNIA NO.414, 3RD FLOOR,
4TH BLOCK, 17TH MAIN, 10 FEET ROAD,
KORAMANGALA,
BENGALURU-560 034
REPRESENTED BY ITS MANAGING DIRECTOR.
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3. THE UNION OF INDIA
MINISTRY OF WOMEN AND CHILD DEVELOPMENT,
SHASTRI BHAWAN, NEW DELHI-110 001,
REPRESENTED BY ITS SECRETARY.
4. THE KARNATAKA STATE TRANSPORT AUTHORITY
1ST FLOOR, "A" BLOCK,
TTMC BUILDING, SHANTINAGAR,
BENGALURU-560 027,
REPRESENTED BY ITS COMMISSIONER.
...RESPONDENTS
(BY 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)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 -
THE INTERNAL COMPLAINTS COMMITTEE, AND TECHNOLOGIES
PRIVATE LIMITED TO INQUIRE INTO THE PETITIONER'S COMPLAINT
DATED:30.09.2018 (AT ANNEXURE-F) IN ACCORDANCE WITH THE
PROVISIONS OF THE SEXUAL HARASSMENT OF WOMAN AT
WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT,
2013;
THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS
ON 20.08.2024, COMING ON FOR PRONOUNCEMENT THIS DAY,
M.G.S. KAMAL J., MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
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CAV ORDER
[CURIA ADVISARI VULT-ORDER]
Petitioner, a victim of sexual harassment at the hands of a
driver of OLA Taxi, is before this Court being aggrieved by the
inaction on the part of the Internal Complaint Committee (ICC)-
respondent No.1 of ANI Technologies Private Limited (OLA)-
respondent No.2, in considering her request to enquire into her
complaint against the driver under the provisions of The Sexual
Harassment of Women at Work place (Prevention, Prohibition
and Redressal) Act, 2013 on the purported premise of it lacking
jurisdiction to enquire into the complaint, for the said driver not
being the `employee' of OLA, seeking to;
(a). Issue a writ of mandamus or any other appropriate
writ order or direction directing the respondent No.1-
The Internal Complaints Committee, ANI Technologies
Private Limited to enquire into the petitioner's complaint
dated 30th September 2018 produced at Annexure-F in
accordance with the provisions of Sexual Harassment of
Woman at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.
(b). Issue a writ of mandamus or any other appropriate
writ order or direction directing respondent No.3-the
Ministry of Women and Child Development Union of
India to ensure that the respondent Nos.1 and 2 strictly
comply with the provisions of the Sexual Harassment of
Woman at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.
(c). Issue a writ of mandamus or any other appropriate
writ order a direction directing respondent No.4 to issue
such rules as may be necessary to protect women and
children availing taxi services and ensure their safety
and security.
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(d). Issue a writ of mandamus or any other appropriate
writ order or direction directing respondent No.4 to
suspend the licence issued to the respondent No.1
under aggregators rule.
2. Case of the petitioner is that;
(a) On 23.08.2018 at around 6:30 a.m. she had
requested for a taxi using OLA platform to commute from her
residence in Yelahanka to her office in J.P. Nagar, Bangalore. In
response, a taxi bearing registration number KA-53-C-9192
(OLA Taxi) along with a suggested driver was allotted to the
petitioner by OLA. The petitioner was provided with the name
and rating of the suggested driver. Petitioner being a regular
user of OLA proceeded to board the OLA Taxi.
(b) During the course of the ride, 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.
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Thereafter, petitioner noticed that the said OLA driver was not
only watching the video while driving, but was also
simultaneously masturbating. 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. Petitioner was finally able to exit the OLA taxi close
to her workplace.
(c) That upon reaching her office, petitioner lodged a
complaint against the driver on the OLA platform. Petitioner
then received a phone call from the OLA executive, who stated
that the incident would be looked into. Few hours later,
petitioner received another call from the OLA informing her that
the suggested driver had been 'blacklisted' and would be sent
for counselling and training. Petitioner not being satisfied with
the response of blacklisting the driver and sending him for
counselling and training, made a request to know the details of
the purported counselling and training that would be imparted
to the driver. Thereafter, petitioner received another call from
OLA seeking her permission to close the complaint, despite her
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request that the substantive action had to be taken against the
driver. In turn OLA attempted to persuade the petitioner not to
take any further action by stating that the driver would be
compelled to attend the training and counselling course apart
from repeatedly requesting the petitioner to close the
complaint. In the circumstances, petitioner was constrained to
initiate criminal action against the OLA driver and accordingly
filed a complaint dated 25.08.2018 before the Cubbon Park
Police Station, Bengaluru.
(d) On 07.09.2018, the petitioner and OLA's law
enforcement team members were contacted by the Cubbon
Park Police Station to identify the OLA driver. The petitioner
identified the OLA driver and recorded her statement before the
concerned Police. One Mr.Suresh E. Venkataswamy and
Mr.Ajinkya from 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. It was also informed by the
OLA that the instances of drivers swapping were common with
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the OLA drivers and most of the cases filed against the OLA
were of such instances of Sexual Harassments due to such
driver swapping.
(e) The petitioner thereafter got 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 (hereinafter
referred to as ''PoSH Act, 2013'') and to provide documentary
proof of OLA having informed respondent No.4 of the incident
as mandated under Rule 10(3) of Karnataka on Demand
Transportation Technology Aggregator Rules, 2016 (hereinafter
referred to ''Aggregator Rules, 2016''). That the OLA did not
inform the relevant authorities about the incident.
(f) That by reply dated 27.09.2018, 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
the ''independent contractors''.
(g) Petitioner thereafter filed a complaint under section 9
of the PoSH Act 2013 by an e-mail dated 30.09.2018 to the
ICC. The said e-mail bounced as the email address provided in
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OLA's Policy on Sexual Harassment at workplace did not permit
non-employee to file the complaint. Petitioner was therefore
constrained to cause issuance of an email dated 01.10.2018
intimating OLA's Chief Executive Officer and the Director of
Legal Affairs regarding the failure in reporting the complaint and
requested action be taken forthwith. In the meanwhile, the
petitioner also issued counter-replies dated 05.10.2018 and
09.10.2018 to OLA's reply dated 27.09.2018, explaining the
applicability of the PoSH Act, 2013 and calling upon it to
accordingly initiate action against OLA driver in accordance with
Section 11 of the PoSH Act, 2013. By an email dated
09.10.2018, the petitioner received a response to her complaint
from the ICC stating that prior to initiating the enquiry process
under the PoSH Act, 2013 ICC sought preliminary advise and
clarity from its external counsel as to whether it had jurisdiction
to take cognizance of the complaint and that it was
subsequently advised that it did not have jurisdiction to
entertain the complaint.
(h) The petitioner received a response dated 11.10.2018
from OLA to the counter-replies stating once again that OLA's
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drivers were not its 'employees' but were 'independent
contractors' and ICC had no jurisdiction to initiate any enquiry
under the PoSH Act, 2013. The petitioner thereafter received
yet another e-mail from ICC on 12.10.2018, in response to her
email dated 09.10.2018, ICC reiterated its position and claimed
that it did not have jurisdiction to proceed with the complaint.
Being highly aggrieved by the same petitioner has approached
this Court seeking the above reliefs.
3. The statement of objections by ICC- Respondent No.1:
ICC in its statement of objections has contended that:
(a) It is an independent body constituted under the PoSH
Act, 2013 whereby its jurisdiction is prescribed and is bound by
those prescribed limits.
(b) That ICC sympathises with the petitioner for the
episode she faced. ICC is committed to redress the complaint
raised by the petitioner in exercising of the power vested in it
by the PoSH Act, 2013. However, in view of the facts of this
case, ICC is restrained from exercising its jurisdiction as vested
by the PoSH Act, 2013 inasmuch as the case of the petitioner
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falls beyond the prescribed jurisdiction of ICC as such, it is
unable to enquire into the complaint of the petitioner.
(c) That despite there being limitations, ICC being
committed to its statutory obligation was keen to ascertain if
the members could act upon the complaint of the petitioner, as
such, it sought the advice from the independent external
Counsel to determine whether ICC had jurisdiction to entertain
the complaint in the facts of the present case. That the said
external counsel categorically stated that since the driver in the
complaint was not an `employee' of the OLA, the jurisdiction of
the ICC was not made out. That respondent-ICC could only
enquire into the complaints under section 11 of the PoSH Act,
2013 in cases where the respondent was an 'employee' under
Section 2(g) of the PoSH Act 2013.
(d) In the present case, the driver was neither an
`employee' nor a `contractor' of OLA and as the facts indicated
the actual perpetrator of the act was an impostor who was
unauthorisedly driving the vehicle in which the incident had
occurred, ICC could not proceed with the enquiry under the
PoSH Act, 2013 against the perpetrator. That the ICC being a
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statutory authority had already issued a well-reasoned order as
to why it could not entertain the complaint. ICC would have
transgressed its jurisdiction, if it had proceeded to hold the
enquiry as prescribed under the PoSH Act, 2013.
(e) That the petitioner is not deprived of her right to civil
and criminal remedies under the appropriate provisions of law
and that in view of the complaint having been filed for the
offences punishable under the provisions of the Indian Penal
Code, this is not a case for a petition under Article 226 of
Constitution of India.
(f) ICC being an independent statutory body is mandated
to conduct an enquiry when a complaint is initiated against a
'respondent' who is an 'employee'. OLA onboards its drivers by
entering into a Subscription Agreement with them, which
explicitly states the Driver Partners would not be construed as
employees of the organisation and the relationship is that of
principle-to-principle basis. Petitioner filed the complaint against
the person driving the vehicle at time of the incident who was
neither in the knowledge of the complainant nor in the
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knowledge of the OLA that the said person was not the
suggested driver. He was an impersonator.
(g) As regards the relief sought against ICC, it is
contended that, nature of an enquiry under section 11 of the
PoSH Act cannot empower ICC to conduct enquiry by
transgressing its prescribed jurisdiction. The guilt of the
respondent in the complaint is uncontested at this point. When
ICC neither has the jurisdiction nor the requirement to establish
the liability of respondent in the complaint, the mandatory
nature of section 11 cannot be invoked when there is no
possible outcome of such an enquiry.
On these broad grounds, amongst others, the petition is
sought to be dismissed.
4. Statement of objections by ANI Technologies Pvt. Ltd.
(OLA)-Respondent No.2:
OLA in its statement of objections, apart from reiterating
the averments made by ICC in its statement of objections, has
further contended that:
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(a) ANI Technologies Private Limited Company is a Private
Limited Company, which is commonly known through its trade
mark and brand name 'OLA'. That it is carrying on the business
in providing the technology based platform, which facilitates in
connecting interested rider-subscriber with the driver-
subscribers associated with OLA for the purpose of hiring taxis
from point-to-point commute or for time-based use within city
limits and also for inter-city travel within India.
(b) that the services provided by OLA is registered with
the Ministry of Communication, Information Technology,
Government of India, as a technology company. Such
registration of OLA is under the other service providers category
under the New Telecom Policy, 1999 and the Ministry of
Communication and Information Technology has issued all
relevant certificates in this regard.
(c) A preliminary objection is also raised with regard to
maintainability of the writ petition against the OLA as it is a
private limited company registered under the Companies Act,
1956, and did not qualify as an instrumentality of the State,
which would be amenable to the writ jurisdiction. It is
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contended that OLA is not engaged in the exercise of the public
duty or performance of any public function, as such there is no
statutory obligation cast upon OLA to provide taxis services.
(d) That, if the writ petition were to be entertained, it is
necessary to mention that OLA had complied with all the
applicable provisions of the PoSH Act, 2013. It had even duly
constituted ICC, which is arrayed as respondent No.1 in the
present proceeding. Thus, the relief sought by the petitioner
with respect to issuance of direction to OLA regarding
compliance with the provisions of the PoSH Act 2013, was of
no consequence.
(e) That the driver-subscribers associated with OLA,
cannot by any stretch of imagination be construed as its
employees and consequently an enquiry under the PoSH Act,
2013 against the driver-subscriber would be dehors the
jurisdiction of ICC. Drivers-subscribers associated with OLA do
not satisfy the classical factors required to be fulfilled for the
purpose of establishing an `employee-employer' relationship.
OLA does not have an exclusive arrangement with its drivers-
subscribers, and as such the drivers-subscribers associated with
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the platform of the OLA are free to work for competing
businesses simultaneously. Entitlement of driver-subscribers to
be associated with multiple competing businesses is evident
from the fact that most of the driver-subscribers are plying
taxis with more than one aggregator platform, which is a
leading indicator that the driver-subscribers associated with the
OLA are independent contractors and not its employees. As
there is no exclusive nature of relationship between OLA and
the driver-subscriber, there is no economic dependency of the
driver-subscriber and OLA for their continued employment, and
the driver- subscriber are fully competent to seek and avail
opportunities corresponding to their economic aspirations.
(f) It is further contended that the driver-subscribers
associated with OLA are free to determine their working hours
and do not have to report at any specific place, time, days or
perform any such other acts which may qualify as 'punching the
clock'. As such, driver-subscribers are completely free to
determine the working hours they wish to be available online at
the mobile application of the OLA for the purpose of offering the
ride. Therefore, features such as discontinuity, indefinite period
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of duration and non-exclusivity in relationship between OLA and
driver-subscribers are all indicative of fact that driver-
subscribers are not the employees of OLA and are independent
contractors associated with OLA platform out of their own free
will and the OLA does not have the right to control the manner
in which the driver-subscribers operate at its platform.
(g) That the drivers-subscribers operate the taxis with the
cars which they own or the cars which they have hired from the
third party. In any event, the subject vehicle is not owned by
OLA and the driver is an independent contractor on the principle
to principle basis. As such, it is evident that the PoSH Act,
2013 has no application whatsoever to the petitioner.
(h) Being responsible corporate it conducts a
comprehensive background verification of every driver in the
form of Police Verification and Court Record Verification and
anyone with criminal background will be 'blacklisted'.
(j) That despite having a robust mechanism for checking
the background of potential drivers-subscribers, the unfortunate
incident in the fact of the instant case is irrefutably a result of
"driver impersonation". As such, OLA has not failed in its
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responsibility of verifying the antecedent driver-subscriber for
the purpose of ensuring the safety of its passenger. That since
it was the original driver-subscriber who had approached the
OLA for registration on the OLA platform, OLA conducted a
thorough background check-up by way of PVC and CRS.
(k) The issue of driver impersonation is a situation
wherein instead of the original drivers-subscribers who is
registered with the aggregator platform, another driver is found
driving the motor cab at the aggregator's platform
impersonating the driver-subscriber as the original driver-
subscriber. It is further contended that OLA does not permit
such misrepresentation of the driver-subscriber and such
misrepresentation is not only in breach of the terms and
condition of the agreement under which the driver-subscriber is
allowed to operate under the platform, but also regarded as a
serious misdemeanor leading to the imposition of a perpetual
embargo upon the driver-subscriber from operating on the OLA
platform.
(l) OLA has put in place several remedial measures to
tackle the threat of driver impersonation. Such as an
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intermittent identification check by the requesting drivers-
subscribers to provide their selfies and providing enlarged
photographs of the drivers-subscribers at the mobile application
of OLA to ensure that a passenger can easily identify whether
the original driver-subscriber has arrived in the taxi at the time
of pick-up.
(m) It is also contended that the feature of providing an
enlarged photograph of the drivers-subscribers ensures that a
passenger can identify a driver-subscriber easily even before
getting inside the taxi and prior to the commencement of the
ride. It further provides the passenger with an opportunity to
confirm whether the correct driver-subscriber has arrived at the
time of pickup. In case the driver-subscriber other than the
one displayed in the photograph at the mobile application of the
OLA has arrived for pickup, the passenger was entitled to cancel
the scheduled ride without incurring any cancellation charges
and report the incident of driver swapping or impersonation to
OLA.
(n) OLA has an exhaustive grievance redressal
mechanism for receiving the passenger's feedback and
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grievance, which envisages catering to all possible complaints
which a passenger may raise in connection with the operation of
OLA. In this regard, it is contended that the OLA mobile
application has a dedicated phone number for the purpose of
raising any concern relating to safety at any time, which
ensures immediate action at the end of OLA. That in addition,
the OLA mobile application has an in-built emergency alert
mechanism, which can be used by the passenger to raise an
alert in case of any threat of safety and emergency, which
connects the passenger to the OLA safety response team
immediately. The safety response team is available around the
clock and takes stock of the ground reality and in cases where it
perceives that the passenger is under any kind of imminent
threat, it instantly intimates the nearest police station and
dispatches its own local team for helping the passenger in any
manner whatsoever. OLA also provides a passenger with an
option to report any safety issue in relation to a ride taken
earlier by the passenger using the Ola platform.
(o) As such, it is contended that the OLA had taken all
precautions towards the safety of its passengers. That the
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sincerity of the OLA is evident from the fact that the OLA
provided full assistance to the Police Authorities in
apprehending the original driver-subscriber, which eventually
revealed the factum of impersonation or swapping of the driver-
subscriber. That the assistance and support provided by OLA is
not restricted to apprehending the actual perpetrator and the
OLA would provide all assistance.
(p) Thus, on these broad grounds and while denying the
averments made in the petition attributing negligence on the
part of OLA, sought for dismissal of the petition.
Petitioner has filed the re-joinder to the statement of
objections filed by the ICC and OLA .
5. Objection statement filed by the Karnataka State
Transport Authority- Respondent-4:
Respondent-4 in its statement of objection dated
20.08.2024 has contended that:
(a) The prayer sought against it is for direction to issue
rules as may be necessary to protect the women and children
availing taxi service and ensure the safety and security and any
21
necessary direction issued by the Court would be duly complied
with.
(b) OLA is an aggregator as per the provisions of the
Aggregator Rules, 2016 and that it had been issued licence to
provide taxi aggregation service in Karnataka. It is further
contended that the owners and drivers of the taxis are
registered with the platform and bookings are confirmed subject
to passengers and drivers GPS location. That the fact of filing
up the complaint was not brought to the notice of respondent
No.4 as required under Rule 10(3) of the Aggregator Rules,
2016. That the OLA has not brought its notice regarding the
complaint against the driver even after receiving the complaint
from the petitioner in this regard. It is further contended that
fact of filing the complaint before the Cubbon Park Police
Station by the petitioner was also not brought to the notice
respondent No.4 by OLA. That the petitioner learnt about filing
of the said complaint only when it received summons in this
writ petition. That there is a violation of provisions of the
Aggregator Rules, 2016 by the OLA in not informing the
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respondent No.4 about the incident, enabling the respondent
No.4 to take necessary action as contemplated under law.
(c) OLA being Licensee is required to look into the
allegation made by the petitioner regarding the heinous act
committed by its driver without any violation to the Rule 10(3)
of the Aggregators Rules 2016. OLA has deliberately failed to
comply with the said provisions only to avoid the consequences
of enquiry and action to be taken if violation was proved. It was
mandatory for the OLA to have intimated about the incident to
the Respondent No.4. No report was received by this
respondent from OLA in the matter.
(d) That the petitioner at paragraphs 14 to 29 of the writ
petition averred several instances of driver swapping and sexual
harassment to female passengers. If such instances were
noticed it was the duty of OLA to take action against such
violators and report such instance to respondent No.4 under
Rule 10(3) enabling it to take action under Rule 11 of the
Aggregators Rules 2016. OLA has never brought even one
incident of drivers swapping to the notice of the respondent
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No.4, thereby has breached the provisions of Aggregator Rules,
2016.
(e) That the respondent No.4 on learning about the said
incident has caused the issue of notice dated 16.08.2024,
through a registered post acknowledgment due to the OLA
seeking to submit explanation within a period of 7 days from
the date of receipt of the said notice. Thus, respondent No.4
has taken action as contemplated under law and as such no
direction could be issued against the respondent No.4 in this
matter. Hence, sought for dismissal of the petition.
6. Submissions of the learned counsel for the
petitioner:
Learned Counsel for the petitioner reiterating the grounds
urged in the memorandum of the petition submitted that;
(a) The writ petition can be maintained against a private
entity if such entity is discharging public duties or functions. It
is contended that OLA is operating an online platform in its
name, which facilitate members of general public to hire taxis.
Services of OLA are not offered to certain identified or limited
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clientele and it is available to public at large without any
distinguishing or pre-requisite criteria. The customers of the
OLA are required to have only mobile phone with internet
connectivity and open an account. That as per the recent
survey there are approximately 800 million users of mobile with
internet usage in India and OLA is offering services to all of
them if they are in location where the OLA services are offered.
That even as per the press release of OLA as on 30.01.2018, it
has over 125 million users in India, which includes women and
children. That the wide reach of OLA in providing the basic
requirement of transportation service is indeed a public
function. It is contended that the OLA is providing an essential
service to the general public seeking to fulfil the basic need of
transportation. That because of the transportation service are
accessed by public at large, the aggregators such as OLA are
not permitted to offer such services without obtaining a licence
from the State authorities. That services provided by OLA is in
compliance with the applicable law, rules and regulation
providing collective benefit to the public at large.
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(b) The role of the OLA providing transportation service
has been accepted by members of public to such an extent, the
word `OLA' is widely used interchangeably with the word 'taxi'
and 'cab'. Thus it is contended there is a public duty to be
fulfilled by the OLA to provide safe and secure mode of
transport to its large number of users on OLA platform. That, if
the OLA is permitted to abdicate this duty, severe harm would
be caused to the member public.
(c) Relying upon the Judgment of the Hon'ble Apex Court
in the case of St. Mary's Education Society Vs Rajendra
Prasad Bhargava reported in (2023) 4 SCC 498 wherein the
Apex Court has affirmed the relief under Article 226 of the
Constitution of India may be granted against the bodies which
are performing functions of public nature, he submitted the
nature of functions being discharged by OLA have to be
considered as discharging/performing of public function.
(d) He further relied upon the Judgment of the Hon'ble
Apex Court in the case of Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust and others. Vs. V.R. Rudani and others
26
reported in (1989) 2 SCC 691 to contend that under Article
226 relief must not be denied on mere technicalities and the
judicial approach must remain flexible to address the injustice
whenever it is found. Thus, he submitted the functions being
performed by OLA are in the nature of discharging public
functions. As such, OLA is amenable to the jurisdiction of this
Court under Article 226 of the Constitution of India.
(e) Referring to the Judgment in the cases of:(i)
INITIATIVES FOR INCLUSION FOUNDATION AND ANOTHER
VS. UNION OF INDIA AND OTHERS reported in (2024)1 SCC
779, (ii) PROFESSOR GIRIDHAR MADRAS VS. INDIAN
INSTITUTE OF SCIENCE REPRESENTED BY ITS CHAIRMAN AND
OTHERS reported in 2019 SCC online KAR 3508 and (iii)
KAUSHAL KISHOR VS. STATE OF UTTAR PRADESH AND
OTHERS reported in (2023) 4 SCC 1, he submitted that sexual
harassment constitutes violation of various fundamental rights
of women guaranteed under Articles 14, 15, 19(1)(g) and 21 of
the constitution of India which may be enforced against private
persons. That PoSH Act, 2013 imposes a public duty on OLA to
ensure prevention, prohibition and redressal of sexual
harassment.
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(f) Referring to the notification dated 02.04.2016 by
which the State Government has published Aggregator Rules,
2016 he submitted unless and until OLA is registered and issued
the licence as contemplated therein, the OLA would not be able
to discharge the functions of providing taxi services sufficient
enough to hold that the OLA is indeed discharging the public
function.
(g) Responding to contention raised by OLA that the
driver-subscriber was not its employee learned counsel for the
petitioner referred to definition of 'employee' as provided under
Section 2(f) of the PoSH Act 2013 and contends that the said
definition has wide ambit and must be interpreted to include
drivers using OLA platform. Referring to clauses in Subscription
Agreement which is produced as Annexure- R1 along with the
statement of objections filed by ICC learned counsel for the
petitioner submitted that the perusal of these clauses would
leave no doubt that the OLA is having complete control and
authority over the driver-subscriber, including termination of
services of the Driver if found to be violating the terms of the
said agreement. Thus, he submitted that the bare reading of
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the clauses of the agreement would qualify the driver to be
termed as an 'employee' under the PoSH Act, 2013. He also
referred to foreign case laws namely (i). UBER BV AND ORS
VS. ASLAM AND ORS reported in UKSC/0002/2021 UKSC
DATED:19.02.2021, (ii). UBER TECHNOLOGIES INC., A
DELAWARE CORPORATION VS. BARBARA BERWICK, Inc.,
case No.11-46739 EX, (iii). RUCHIKA SINGH CHHABRA
VS. M/S AIR FRANCE INDIA AND ANOTHER reported in
2018 SCC online DEL 9340, to contend that issue regarding
the status of drivers of similar taxi service providers has already
been decided to hold them as 'workers' under such taxi service
providers.
(h) He also brought to the attention of this Court
Annexure-R4 which is produced along with the statement of
objections in that it is contended that the subject taxi bearing
registration No. KA-53-C-9192 belonged to ''OLA Fleet
Technologies Pvt Ltd'', which is a subsidiary/associate
company of the OLA. Thus, he submitted there is material
enough to indicate that the OLA had complete control not only
over the driver but also over the vehicles. Thus, he submitted
29
that there is a breach of statutory obligation on the part of the
OLA requiring cognizance at the hands of this court.
(j) He also referred to reply which was issued by OLA, in
response to the legal notice that was issued by the petitioner on
21.09.2018. In the said reply at paragraphs 5 and 6, OLA has
admitted about its responsibility of checking the antecedent of
its drivers. He further referred to terms and conditions of OLA
Cab in which the terms of the payment to be made to the
drivers, refund policy etc., which provides for the control of the
OLA over its driver, he further submitted without OLA's
intervention, there is no way one can get in touch with the
driver-subscriber. Thus, he submitted that the ICC and OLA
could not shy away from the responsibility of discharging the
statutory obligation of conducting the enquiry upon the
complaint filed by the petitioner.
(k) That since the OLA drivers are the employees within
the meaning of Section 2(f) of PoSH Act, 2013 in terms of
Section 9 of the PoSH Act 2013 the ICC of OLA was required to
receive the complaint of sexual harassment faced by petitioner
at the hands of OLA's employee.
30
(l) That, in terms of Section 11 of the Act, ICC shall
enquire into any complaint that may be filed before it. The
enquiry was mandatory under the scheme of the Act. That
since the complaint sent by the petitioner through e-mail was
bounced by an email addressed by OLA contending that the
policy of sexual harassment at the workplace did not permit
non-employees to file a complaint there was violation of Rule
13 of the PoSH Rules, 2013.
(m) That ICC, being an independent statutory and quasi-
judicial body, is mandatorily required to inquire into any
complaint before entering into any finding on jurisdiction and
such enquiry must be in accordance with the principles of
natural justice. That ICC, despite being an independent body
constituted pursuant to the statute, appears to be acting under
the directions of OLA. Thus, it is contended that there was
inaction on the part of the ICC in discharging its statutory
obligation.
7. Submissions on behalf of ICC:
Sri.Murali, learned counsel for the respondent No.1
submitted that;
31
(a) ICC is vested with certain powers, functions, and
jurisdiction under the PoSH Act, 2013 which are required to be
performed within the limitations prescribed under the statute
and cannot exceed its powers so prescribed. The ICC is required
to enquire into complaints under Section 11 of the PoSH Act,
2013 only when the respondent in the said complaint is an
`employee' within the definition of Section 2(f) of the PoSH Act,
2013. Since in the present case, respondent in the complaint
filed by the petitioner before the ICC was neither an `employee'
nor `contractor' of OLA and was an impostor who was
unauthorisedly driving the vehicle, at the time of incident, the
ICC did not proceed with the inquiry or issue any direction
under the PoSH Act, 2013 against such a person.
(b) That petitioner is entitled to seek remedies provided
under the criminal justice system. That since the petitioner has
already set the criminal proceedings in motion by filing the
complaint before the jurisdictional police, who have already filed
a charge sheet against the impostor the writ petition seeking
relief of this nature is not maintainable.
32
(c) That the driver-Subscriber is not the `employee'
within the meaning of the definition 'employee' provided under
the PoSH Act, 2013. That OLA onboard drivers have entered
into a Subscription Agreement in terms of which the driver
partners would not be construed as employees of OLA
organization. There is no relationship of `employer' and
`employee'. On the other hand, the relationship between the
parties will be on principle to principle basis.
(d) That upon the receipt of complaint and emails by the
petitioner, the ICC had sought the advice of their external legal
counsel, who had advised the ICC that it cannot conduct the
enquiry due to lack of jurisdiction. As such the relief sought for
by the petitioner seeking direction to the ICC to enquire into the
petitioner's complaint cannot be granted. Even if such an
inquiry was conducted, no consequence would follow as
contemplated under Section 13 of the PoSH Act, 2013.
Therefore, seeks for dismissal of the petition.
33
8. Submissions on behalf of ANI Techonlogies
Pvt. Ltd., (OLA)-respondent No.2:
Sri.Dhyan Chinappa, learned Senior counsel appearing on
behalf of learned counsel appearing for OLA submitted:
(a) That OLA is a Private Limited Company which is not
involved in performing any sovereign function does not qualify
as a State or its agency or its instrumentality within the
meaning of Article 12 of the Constitution of India. OLA is simply
engaged in a commercial activity without any element of
performing a public function or discharging any public duty.
Business of offering a technology based platform to rider-
subscribers and driver-subscribers for hiring of taxis with a
commercial motive cannot be held to be a public function or a
public duty. There is no statutory obligation upon OLA to
provide such a platform. Hence, writ does not lie against it. In
this regard he relied upon the judgments in the cases of
(i) Federal Bank Limited. vs. Sagar, Thomas and others
reported in 2003. 10 SCC. 733, (ii) R.S.Madireddy and
another vs. Union of India and others reported in 2024.
SCC Online SC 965, (iii) Smita Arora vs. Chief Executive
34
Officer Vs Nokia Corporation Pvt. Ltd. in
W.P.No.23713/2016.
b) That the driver- subscribers are not employees of OLA.
That there is no relationship of `employer' and `employee'
between OLA and the driver-subscribers. That under Section 11
of PoSH Act, 2013 respondent in a complaint of sexual
harassment has to be an `employee' for the Internal
Complaints Committee to conduct an enquiry into the complaint
of an 'aggrieved woman'. In the present case, offender accused
person was not even the original driver-subscriber who had
registered with OLA and it is a case of driver impersonation
wherein an individual other than the original driver-subscriber
was found driving the taxi on aggregators platform.
(c) That the definition of `employee' under PoSH Act,
2013 is not applicable to the facts of the present case. There is
no scope for any individual to be associated as a driver-
subscriber with the platform without the knowledge of the OLA.
There are no terms of employment either expressed or implied
and the offender accused person was driving the taxi belonging
to the driver-subscriber without having any association with
35
OLA. As such offender accused person cannot under any stretch
of imagination, be deemed to be employed with the OLA either
directly or indirectly through an agent or contractor.
(d) Driver-subscribers associated with the technology
platform of OLA are free to operate on competing business
platforms simultaneously. There is no economic dependence.
The drivers-subscribers are free to determine their own working
hours. They do not have to report to any specific place, time or
days or perform any other act.
(e) Taxis used for providing transport services by driver-
subscribers are not owned by OLA and are either owned by
driver-subscribers themselves or taken on hire from third
parties, as such applying test of 'ownership of instrumentalities'
shows that the driver-subscribers are not employees of OLA. In
support of these contentions he relied upon the Judgments in
the cases of (i). Indian Overseas Bank vs. Workmen
reported in 2006 3 SCC 729, (ii). Shankar Balaji, Waje vs.
State of Maharashtra, reported in AIR 1962 SC 517, (iii).
Silver Jubilee Tailoring House and Others vs. Chief
36
Inspector of Shops and Establishments and Another
reported in 19743 SCC 498.
(f) That the Delhi High Court in the case of ANI
Technologies Private Limited versus Rajdhani Tourist
Driver Union and others has already observed that the
driver- subscriber associated with the platform of OLA have
purely a contractual relationship with the OLA and cannot make
any demands from aggregators. That the said Observation of
the Delhi High Court recognises that there exists no relationship
of `employer' and `employee' between driver-subscriber and
OLA.
(g) Scheme of Posh Act 2013 does not envisage
conducting an inquiry or acting against individual who is not
associated with the employer in any manner whatsoever. Even
if such an inquiry is conducted, ICC could not have
recommended any penal consequences as provided under
Section 13(3) of PoSH Act, 2013.
(h) That OLA is merely an 'Intermediary' as defined under
the provisions of Information Technology Act, 2000 which has
no role to play in any of the acts or omission either on the part
37
of driver-subscriber or the rider-subscriber except storing and
sharing their data. It neither controls nor regulates the business
terms between the driver-subscriber and the rider-subscriber.
User of OLA service is free, without any compulsion, to utilise
its services, like the user has an option to utilise similar services
offered by any other platform or even by any other normal and
ordinary means of transport service. He drew an analogy with
the On-line business pattern being followed by Amazon, Flipkart
etc., and an analogy of various malls in the present day to
submit the OLA has merely created a platform as that of these
business modules available for anyone and everyone to use.
Thus he submitted that except providing a platform, OLA has no
control of any nature whatsoever over the business activities.
(j) That OLA carries out intermittent identification check
of drivers-subscribers by requesting them to provide selfies to
ensure that the driver subscribers registered with the platform
is providing transport service. Dedicated phone number for
raising any safety concern are provided and in addition to such
number Mobile application has an inbuilt emergency alert
mechanism which can be used by a rider subscriber to raise
38
alert in case of any threat. With the safety response team, OLA
takes its responsibility towards safety of rider-subscriber very
seriously and does not attempt to absolve itself of such
responsibility even after completion of ride.
(k) OLA has not violated Rule 7 of the Aggregators Rule
2016. OLA has not caused or allowed a taxi to be used in any
manner which may not be authorised by permit or any
prohibition mentioned therein which may make OLA jointly and
severally liable along with the driver-subscriber. As such, it is
not in violation of Rule 10. That the petitioner has an alternate
remedy under Rule 11 of the Aggregators Rules, 2016.
(l) As far as its prayer regarding direction to respondent
No.4, Karnataka State Transport Authority to suspend the
licence of OLA is concerned it is contended that the Division
Bench of this Court in W.A.No.4789 of 2016, by its order dated
07.12.2016, has directed authorities not to take any coercive
action against appellants therein for violation of rules during the
pendency of appeal. The said order is extended from time to
time. As such, the respondent No. 4 cannot take any coercive
39
action against the respondent No.2 during the pendency of said
writ appeal. Hence sought for dismissal of writ petition.
9. Submissions on behalf of the Karnataka State
Transport Authority -Respondent No. 4:
(a) Learned AGA submitted that since a prayer is sought
against the respondent No.4 to frame rules necessary to protect
the women and children who avail taxi services ensuring, their
safety and security, any direction given to be duly complied by
the respondent No.4 in the interest of safety of women and
children.
(b) It is submitted that, respondent No.4 was not aware
of petitioner filing a complaint before the Cubbon Park Police
Station which was learnt only after filing the present writ
petition.
(c) OLA has been issued with Licence under Aggregators
Rule 2016. The OLA has deliberately failed to comply the said
Rule to avoid consequences of inquiry and the action that would
to be taken, if violation was proved, in accordance with law. It
was the duty of OLA to have brought to the notice of the
concerned authority. The averments made in the statement of
40
objections more particularly, admitting the incidents of driver-
swapping and sexual harassment to the female passengers
would reveal that the OLA has not complied with the
Aggregators Rule, 2016. That after learning about the facts of
the present case the respondent No.4 has issued notice dated
16.08.2024 calling upon explanation from OLA within 7 days
from the date of receipt of the notice. Thus respondent No.4
has taken necessary action against the OLA and would ensure
compliance with the required Rules, 2016. Hence seeks for
dismissal of the petition.
ANALYSIS AND DISCUSSION:
10. Facts of the case having been narrated in detail as
above, require no further repetition except to state that the
petitioner was admittedly subjected to sexual harassment by
OLA taxi driver, albeit, allegedly an impersonator. Compliant
lodged by the petitioner before the ICC constituted by OLA
seeking enquiry as required under the PoSH Act 2013, has met
with refusal and denial on the premise of ICC not having the
jurisdiction in the matter, for want of relationship of 'employer'
and 'employee' between OLA and the accused driver-
41
subscriber/impersonator which is a sine-qua non to subject
itself the provisions of PoSH Act, 2013.
11. While the petitioner in this petition seeking
enforcement of her constitutional and statutory rights, ICC and
OLA on the other hand strenuously defend her claim,
questioning the very maintainability of the writ petition against
them on the premise of they being private entities not
amenable to the writ jurisdiction. Besides, contending that the
OLA is merely an `Intermediary' providing technology based
platform for driver-subscribers and the rider-subscribers
without having control of any nature whatsoever over either
them.
12. The above assertion by the petitioner and denial by
the ICC and OLA needs to be adjudicated in the light of
provisions of the PoSH Act, 2013 and the law enunciated by the
Apex Court relevant for the purpose of facts and circumstances
of the case at hand. Thus on consideration of the averments
made in the writ petition, objection statements and re-joinder
42
and on consideration of submissions made by the learned
counsel for the parties, following points arise for consideration;
1. Whether in the facts and circumstance of
the case ICC- the respondent No.1 and ANI
Technologies Pvt. Ltd.,(OLA)-the respondent
No.2 respectively, are amenable to the writ
jurisdiction of this Court under Article 226 of
the Constitution of India?
2. Whether in the facts and circumstance of
the case driver-subscriber is an 'employee'
of ANI Technologies Pvt. Ltd.,(OLA)-the
respondent No.2 as defined under Section
2(f) of the PoSH Act, 2013?
3. Whether in the facts and circumstances of
the case ANI Technologies Pvt. Ltd.,(OLA)-
the respondent No.2 can be construed only
as an `Intermediary' as contended?
4. Whether the ICC-respondent No.1 and ANI
Technologies Pvt. Ltd.,(OLA)-the respondent
No.2 respectively have committed breach of
their statutory obligation as alleged by the
Petitioner?
5. Whether the petitioner is entitled for the
reliefs as sought for in the petition?
POSITION OF LAW BEFORE AND AFTER PoSH ACT, 2013:
13. Considering points involved in the matter apposite
hereto refer to the Judgments of the Apex Court prior to and
subsequent to the promulgation of the PoSH Act 2013. The
43
Hon'ble Apex Court in the case of Vishaka and others Vs.
State of Rajasthan and others reported in (1997) 6 SCC
241 involving an incident of brutal gang rape of a social worker
in a village of Rajastan, recognising the eminent requirement of
providing protection and enforcement of fundamental and
human rights of working women, in the absence of suitable
legislation, while laying down certain guidelines at paragraph
No.3 of the said Judgment has observed as under:
'' 3. Each such incident results in violation of the
fundamental rights of 'Gender Equality' and the 'Right of
Life and Liberty'. It is clear violation of the rights under
Articles 14, 15 and 21 of Constitution. One of the logical
consequences of such an incident is also the violation of
the victim's fundamental right under Article 19(1)(g) 'to
practice any profession or to carry out any occupation,
trade or business'. Such violations, therefore, attract the
remedy under Article 32 for the enforcement of these
fundamental rights of women. This class action under
Article 32 of the Constitution is for this reason. A writ of
mandamus in such a situation, if it is to be effective,
needs to be accompanied by directions for prevention; as
the violation of fundamental rights of this kind is a
recurring phenomenon. The fundamental right to carry on
any occupation, trade or profession depends on the
availability of a "safe" working environment. Right to life
means life with dignity. The primary responsibility for
ensuring such safety and dignity through suitable
legislation, and the creation of a mechanism for its
enforcement, is of the legislature and the executive.
When, however, instances of sexual harassment resulting
in violation of fundamental rights of women workers
under Articles 14, 19 and 21 are brought before us for
redress under Article 32, an effective redressal requires
that some guidelines should be laid down for the
protection of these rights to fill the legislative vacuum.
14. Then came a self contained code by way of The
Sexual Harassment at Workplace (Prevention, Prohibition and
44
Redressal) Act, 2013 and The Sexual Harassment at Workplace
(Prevention, Prohibition and Redressal) Rules, 2013 (PoSH Act
and Rules, 2013) to remedy the mischief. It is premised on
Article 11 of the International Convention on Elimination of All
Forms of Discrimination Against Women to which India is a
party, requiring State Parties to take all appropriate measures
to eliminate discrimination against women in the field of
employment as well as on the grand concept of 'Right to live
with dignity' enshrined under Article 21 of the Constitution of
India. However there remained challenges in effective
implementation of the provisions of the said Act and Rules
requiring the Apex Court, in the case of Aureliano Fernandis
Vs. State of Goa reported in (2024) 1 SCC 632, to issue
following directions:
"87. To fulfill the promise that the PoSH Act holds out to working
women all over the country, it is deemed appropriate to issue the
following directions :
87.1 The Union of India, all State Governments and Union
Territories are directed to undertake a time bound exercise to
verify as to whether all the concerned Ministries, Departments,
Government organizations, authorities, Public Sector Undertakings,
institutions, bodies, etc. have constituted ICCs/LCs/ICs, as the
case may be and that the composition of the said Committees are
strictly in terms of the provisions of the PoSH Act.
87.2 It shall be ensured that necessary information regarding the
constitution and composition of the ICCs/LCs/ICs, details of the e-
mail IDs and contact numbers of the designated person(s), the
procedure prescribed for submitting an online complaint, as also
the relevant rules, regulations and internal policies are made
readily available on the website of the concerned
45
Authority/Functionary/ Organisation/ Institution/Body, as the case
may be. The information furnished shall also be updated from time
to time.
87.3 A similar exercise shall be undertaken by all the Statutory
bodies of professionals at the Apex level and the State level
(including those regulating doctors, lawyers, architects, chartered
accountants, cost accountants, engineers, bankers and other
professionals), by Universities, colleges, Training Centres and
educational institutions and by government and private
hospitals/nursing homes.
87.4 Immediate and effective steps shall be taken by the
authorities/ managements/employers to familiarize members of
the ICCs/LCs/ICs with their duties and the manner in which an
inquiry ought to be conducted on receiving a complaint of sexual
harassment at the workplace, from the point when the complaint is
received, till the inquiry is finally concluded and the Report
submitted.
87.5 The authorities/management/employers shall regularly
conduct orientation programmes, workshops, seminars and
awareness programmes to upskill members of the ICCs/LCs/ICs and
to educate women employees and women's groups about the
provisions of the Act, the Rules and relevant regulations.
87.6 The National Legal Services Authority(NALSA) and the State
Legal Services Authorities(SLSAs) shall develop modules to conduct
workshops and organize awareness programmes to sensitize
authorities/managements/employers, employees and adolescent
groups with the provisions of the Act, which shall be included in
their annual calendar.
87.7 The National Judicial Academy and the State Judicial
Academies shall include in their annual calendars, orientation
programmes, seminars and workshops for capacity building of
members of the ICCs/LCs/ICs established in the High Courts and
District Courts and for drafting Standard Operating Procedures
(SOPs) to conduct an inquiry under the Act and Rules.
87.8 A copy of this judgment shall be transmitted to the Secretaries
of all the Ministries, Government of India who shall ensure
implementation of the directions by all the concerned Departments,
Statutory Authorities, Institutions, Organisations etc. under the
control of the respective Ministries. A copy of the judgment shall
also be transmitted to the Chief Secretaries of all the States and
Union Territories who shall ensure strict compliance of these
directions by all the concerned Departments. It shall be the
responsibility of the Secretaries of the Ministries, Government of
India and the Chief Secretaries of every State/Union Territory to
ensure implementation of the directions issued.
87.9 The Registry of the Supreme Court of India shall transmit a
copy of this judgment to the Director, National Judicial Academy,
Member Secretary, NALSA, Chairperson, Bar Council of India and
the Registrar Generals of all the High Courts. The Registry shall also
46
transmit a copy of this judgment to the Medical Council of India,
Council of Architecture, Institute of Chartered Accountants, Institute
of Company Secretaries and the Engineering Council of India for
implementing the directions issued.
87.10 Member-Secretary, NALSA is requested to transmit a copy of
this judgment to the Member Secretaries of all the State Legal
Services Authorities. Similarly, the Registrar Generals of the State
High Courts shall transmit a copy of this judgment to the Directors
of the State Judicial Academies and the Principal District
Judges/District Judges of their respective States.
87.11 The Chairperson, Bar Council of India and the Apex Bodies
mentioned in sub-para (ix) above, shall in turn, transmit a copy of
this judgment to all the State Bar Councils and the State Level
Councils, as the case may be.
87.12 The Union of India and all States/UTs are directed to file their
affidavits within eight weeks for reporting compliances. List after
eight weeks.
15. Thereafter, in the case of INITIATIVES FOR
INCLUSION FOUNDATION AND OTHERS VS. UNION OF
INDIA and Others 2024 1 SCC 779 issued additional
directions which are as under:
''25. Having regard to the above discussion, it is appropriate for this
Court to issue the following directions (under the relevant heads) to
ensure the effective implementation of the PoSH Act, and render it
workable:
A. Coordination between Union Government and State/UT
Governments
(1) The Women and Child Development Ministry of every State/UT,
through its Principal Secretary, should consider identifying a "nodal
person" within the Department, to oversee and aid in coordination as
contemplated under the PoSH Act. This person would also be able to
coordinate with the Union Government on matters relating to this Act
and its implementation.
(ii) Each State/UT Government is to submit a consolidated report of its
compliance with the below directions to the Union Government within
8 weeks. The latter is hereby directed to consolidate the various
reports, identify any lapses in the compliance by the State and try to
remedy it, before filing a consolidated affidavit of compliance- detailing
the States' compliance, and the Union Government's action taken in
regard to the direction within 12 weeks from the date of this
judgment.
47
B. Appointment of public authorities
(iii) The Principal Secretary concerned of the State/UT Ministry of
Women and Child [or any other Department, subject to amendment of
the Rules as per Direction (vii) below] will personally ensure
appointment of a District Officer in each district within their territorial
jurisdiction, as contemplated under Section 5 within four weeks from
the date of this Judgment.''
iv. Thereafter, each appointed district officer
(a)must in compliance of Section 6(2) appoint nodal officers in every
block, taluka and tehsil in rural or tribal area and ward or municipality
in the urban area;
(b)must constitute a LC, as contemplated under Section 6 and 7 of the
Act; and (c) ensure the contact details of these nodal officers, and LCs,
shall be forwarded to the nodal person within the State Government,
Ministry of Women and Child Development within 6 weeks from the
date of this judgment.
v. Thereafter, a circular/bulletin containing names of all district officers,
and their contact details (phone, address, and email), along with a
district wise chart of the various nodal officers and their contact details,
must be uploaded on the department's website (or in the absence of
one, on the main State government website) in a conspicuous location,
along with a compiled version of the Act, Rules, and simple
charts/explainers on the basics of the Act, within 6 weeks from the date
of this judgment.
C. Amendments and gaps in Rules that State must fill
vi. The Union Government ought to consider amending the Rules, so as
to operationalise Section 26 of the Act, by recognising a reporting
authority, and/or a fine collecting authority. This direction must be read
in light of the discussion in paragraph 9 (role of district officer with
regards to annual compliance reports) and paragraph 24 (on the
penalty regime contemplated in the Act and resulting lacunae in the
Rules) above.
vii. The Union Government may also consider amending the Rules so as
to identify one Department (preferably the Women and Child
Department), and creating a 'nodal person' post within the said
Department to be responsible for the coordination required in the
implementation of the Act [see direction (i)]. This will ensure greater
uniformity in the implementation of the Act across the country.
D. Training and capacity building
viii. The District Officers and LCs should be mandatorily trained
regarding their important responsibilities. Given their position in the
redressal framework contemplated in the Act, they must first be
sensitised to the nature of sexual harassment, the gendered
48
interactions that occur in the workspace, etc. The State Governments,
must organise periodic, and regular training sessions at the District
level which are to be attended by the District Officer, members of the
LC, and nodal officers [ref: Section 24(b)].
E. Larger efforts towards awareness
ix. In furtherance of Section 24, the State/UT Governments, and Union
Government are hereby directed to set out the financial resources
allocated and/or needed, to developing educational, communication and
training material for spreading awareness of the provisions of this Act
to the public, and formulate orientation and training programmes as
elaborated in direction (viii) above. This plan of action, must form part
of the compliance affidavit filed by each State. The discussion in
paragraph 19 is to be read along with this direction.
x. The District Officers, once nominated by the State are hereby
directed to identify the non-governmental organisations working with
women and their protection within the district, and take action pursuant
to their duty under Section 20(b) for creation of awareness.
xi. The appropriate government or district officers in question, must
also undertake effort to spread awareness on the existence of LCs, and
make them approachable for the unorganized sector - thus
operationalizing the horizontal import of this Act.
xii. The directions 87.4 and 87.5 passed in Aureliano Fernandes v. State
of Goa & Ors.28 (supra) cover specifically the direction to authorities,
management and employers to familiarize the members of the ICCs and
LCs of their duties and detailed step-wise manner in which an enquiry
ought to be conducted on receiving a complaint of sexual harassment;
conduct orientation programmes, workshops, seminars, awareness
programmes, etc. and to educate women employees and women
groups about the Act, Rules, and regulations are reiterated. The
modules prepared by NALSA [as per direction 87.6 in Aureliano
Fernandes] to conduct workshops and organize awareness programmes
to sensitise authorities, managements, employers could be used in this
regard.
xiii. It is relevant to add here that the Ministry of Women and Child
Development, Government of India, has prepared a Handbook for
implementation of POSH Act, which serves as a useful guide for not just
employees seeking information, but also more pertinently those who
are nominated or appointed as members of the ICs (by the employer)
or LCs (by the District Officer). It is hereby directed that a targeted
effort be made to share this information with each District Officer, who
may in turn disseminate it to their respective LCs, the nodal officers
appointed under Section 6(2), and employers who constitute their own
ICCs.
F. Annual Compliance Reports
xiv. Due compliance with Section 21(1) and (2), and Section 22, must
be undertaken by each District Officer, of the State - including
collecting the reports from the IC/employers (or information where no
report is available), and from the LC, and preparation of a brief report
49
to be shared with the State government. The State/UT Governments is
hereby directed to create a Standard Operating Procedure (SOP)
including the procedure, and timelines for this process, so as to enable
it to, in turn, comply with Section 23 of the Act, i.e., monitoring
implementation and maintaining data. This direction may be read in
light of the discussion contained in paragraph 21 above.
G. Monitoring of ICs and compliance by employers
xv. The directions passed in Aureliano Fernandes v. State of Goa & Ors.
(supra) address most specifically, the constitution of ICs - in public
establishments [falling broadly within Section 2(o)(i)] and some private
establishments - such as bodies governing professional associations,
etc.; those directions are hereby reiterated, to avoid multiplicity or
overlap of efforts. It is however further, directed that efforts made must
be in line with the scheme of the Act, and through the authorities so
designated for the various roles.
xvi. Similarly, directions are hereby made to hospitals, nursing homes,
sports institutes, stadiums, sports complex, or competition or games
venues [as defined in Section 2(o)(iii) and (iv)] to establish ICs, and
report compliance as per the duties under this Act.
xvii. The District Officer must be supplied a list of establishments
(compiled by the relevant departments of the State/UT Government)
that fall within the scope of Section 2(o), so that they may write to
them and ensure that they are well versed with the provisions relating
to employers, and their duties (including constitution of ICC under
Section 4, duties under Section 19, etc.) and are implementing them in
letter and spirit.This will also enable collection of annual reports, as
contemplated under Section 21. The consequent direction to all private
sector workplaces under Section 2(o)(ii) can be passed once the District
Officer is able to discern an exhaustive list of entities.
16. The aforesaid guidelines issued by the Hon'ble Apex
Court in the case of Vishaka (Supra), consequent
promulgation of PoSH Act, 2013 and Rules 2013 though
considered to be 'self contained code', required further impetus
in the nature of issuing 'directions' and 'further directions' by
the Apex Court as extracted hereinabove to ensure effective
implementation, enforcement and workability of the PoSH Act
50
2013 and Rules 2013. Present case puts in issue yet another
challenge when it is to be implemented in the private sectors as
in the case at hand. It is in this background the points raised in
the present case requires to be answered.
REG: POINT NO.1:
17. Petitioner in her first prayer has sought direction to
ICC to enquire into her complaint dated 30.09.2018 produced
at Annexure-F in accordance with the provisions of the PoSH
Act, 2013 which is resisted by ICC and OLA by questioning the
very maintainability of the writ petition against them.
18. Apex Court in the case of St.Mary's Education
Society and Others (Supra) at paragraph No.75.1 has held
as under:
''75.1. An application under Article 226 of the Constitution is
maintainable against a person or a body discharging public
duties or public functions. The public duty cast may be
either statutory or otherwise and where it is otherwise,
the body or the person must be shown to owe that duty or
obligation to the public involving the public law element.
Similarly, for ascertaining the discharge of public function, it
must be established that the body or the person was seeking to
achieve the same for the collective benefit of the public or a
section of it and the authority to do so must be accepted by
the public.''
51
and in the case of Andi Muktha Sadhguru Shree Mukta Vs.
V.R.Rudani and others (Supra) at paragraph No.20 held as
under:
''20. The term ''authority'' used in Article 226, in the
context, must receive a liberal meaning unlike the term in
Article 12. Article 12 is relevant only for the purpose of
enforcement of fundamental rights under Article 32. Article
226 confers power on the High Courts to issue writs for
enforcement of the fundamental rights as well as non-
fundamental rights. The words ''any person or
authority'' used in Article 226 are, therefore, not to be
confined only to statutory authorities and
instrumentalities of the State. They may cover any
other person or body performing public duty. The
form of the body concerned is not very relevant .
What is relevant is the nature of the duty imposed on
the body. The duty must be judged in the light of
positive obligation owed by the person or authority to
the affected person. No matter by what means the
duty is imposed, if a positive obligation exists
mandamus cannot be denied.''
( Emphasis added)
19. The above enunciation of law by the Apex Court
makes it clear that writ petition against private entities is
maintainable if it is shown that it owe a duty and obligation to
public involving the public law element and such authority is
accepted by public at large. Broadly, public law refers to a law
governing relationship between the State and its subjects as
well as their conduct concerning the society. In this regard it is
relevant at this juncture to refer to Sections 4, 9, 11, 13 of the
PoSH Act, 2013 which vest and impose authority and obligation,
52
having public law element, in the person/body as that of ICC
and OLA, which reads as under:
4. Constitution of Internal Complaints Committee.--
(1) Every employer of a workplace shall, by an order in
writing, constitute a Committee to be known as the
"Internal Complaints Committee":
Provided that where the offices or administrative units of
the workplace are located at different places or divisional or
sub-divisional level, the Internal Committee shall be
constituted at all administrative units or offices.
(2) The Internal Committees shall consist of the following
members to be nominated by the employer, namely: --
(a) a Presiding Officer who shall be a woman employed at a
senior level at workplace from amongst the employees:
Provided that in case a senior level woman employee is not
available, the Presiding Officer shall be nominated from
other offices or administrative units of the workplace
referred to in sub-section(1): Provided further that in case
the other offices or administrative units of the workplace do
not have a senior level woman employee, the Presiding
Officer shall be nominated from any other workplace of the
same employer or other department or organisation;
(b) not less than two Members from amongst employees
preferably committed to the cause of women or who have
had experience in social work or have legal knowledge;
(c) one member from amongst non-governmental
organizations or associations committed to the cause of
women or a person familiar with the issues relating to
sexual harassment: Provided that at least one-half of the
total Members so nominated shall be women.
(3) The Presiding Officer and every Member of the Internal
Committee shall hold office for such period, not exceeding
three years, from the date of their nomination as may be
specified by the employer.
(4) The Member appointed from amongst the non-
governmental organisations or associations shall be paid
such fees or allowances for holding the proceedings of the
Internal Committee, by the employer, as may be
prescribed.
(5) Where the Presiding Officer or any Member of the
Internal Committee, --
(a) contravenes the provisions of section 16; or
53
(b) has been convicted for an offence or an inquiry into an
offence under any law for the time being in force is pending
against him; or
(c) he has been found guilty in any disciplinary proceedings
or a disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance
in office prejudicial to the public interest, such Presiding
Officer or Member, as the case may be, shall be removed
from the Committee and the vacancy so created or any
casual vacancy shall be filled by fresh nomination in
accordance with the provisions of this section.
9. Complaint of sexual harassment.--(1) Any aggrieved
woman may make, in writing, a complaint of sexual
harassment at workplace to the Internal Committee if so
constituted, or the Local Committee, in case it is not so
constituted, within a period of three months from the date
of incident and in case of a series of incidents, within a
period of three months from the date of last incident:
Provided that where such complaint cannot be made in
writing, the Presiding Officer or any Member of the Internal
Committee or the Chairperson or any Member of the Local
Committee, as the case may be, shall render all reasonable
assistance to the woman for making the complaint in
writing: Provided further that the Internal Committee or, as
the case may be, the Local Committee may, for
the reasons to be recorded in writing, extend the time limit
not exceeding three months , if it is satisfied that the
circumstances were such which prevented the woman from
filing a complaint within the said period.
(2) Where the aggrieved woman is unable to make a
complaint on account of her physical or mental incapacity or
death or otherwise, her legal heir or such other person as
may be prescribed may make a complaint under this
section.''
11. Inquiry into complaint.-- (1) Subject to the
provisions of section 10, the Internal Committee or the
Local Committee, as the case may be, shall, where the
respondent is an employee, proceed to make inquiry into
the complaint in accordance with the provisions of the
service rules applicable to the respondent and where no
such rules exist, in such manner as may be prescribed or in
case of a domestic worker, the Local Committee shall, if
prima facie case exist, forward the complaint to the police,
within a period of seven days for registering the case under
section 509 of the Indian Penal Code (45 of 1860), and
any other relevant provisions of the said Code where
applicable:
54
Provided that where the aggrieved woman informs the
Internal Committee or the Local Committee, as the case
may be, that any term or condition of the settlement
arrived at under sub-section (2) of section 10 has not been
complied with by the respondent, the Internal Committee or
the Local Committee shall proceed to make an inquiry into
the complaint or, as the case may be, forward the
complaint to the police: Provided further that where both
the parties are employees, the parties shall, during the
course of inquiry, be given an opportunity of being heard
and a copy of the findings shall be made available to both
the parties enabling them to make representation against
the findings before the Committee.
(2) Notwithstanding anything contained in section 509 of
the Indian Penal Code (45 of 1860), the court may, when
the respondent is convicted of the offence, order payment
of such sums as it may consider appropriate, to the
aggrieved woman by the respondent, having regard to the
provisions of section 15.
(3) For the purpose of making an inquiry under sub-section
(1), the Internal Committee or the Local Committee, as the
case may be, shall have the same powers as are vested in a
civil court the Code of Civil Procedure, 1908 (5 of 1908)
when trying a suit in respect of the following matters,
namely:--
(a) summoning and enforcing the attendance of any person
and examining him on oath;
(b) requiring the discovery and production of documents;
and
(c) any other matter which may be prescribed.
(4) The inquiry under sub-section (1) shall be completed
within a period of ninety days.
13. Inquiry report.--(1) On the completion of an inquiry
under this Act, the Internal Committee or the Local
Committee, as the case may be, shall provide a report of its
findings to the employer, or as the case may be, the District
Officer within a period of ten days from the date of
completion of the inquiry and such report be made available
to the concerned parties.
(2) Where the Internal Committee or the Local Committee,
as the case may be, arrives at the conclusion that the
allegation against the respondent has not been proved, it
shall recommend to the employer and the District Officer
that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee,
as the case may be, arrives at the conclusion that the
allegation against the respondent has been proved, it shall
55
recommend to the employer or the District Officer, as the
case may be--
(i) to take action for sexual harassment as a misconduct in
accordance with the provisions of the service rules
applicable to the respondent or where no such service rules
have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules
applicable to the respondent, from the salary or wages of
the respondent such sum as it may consider appropriate to
be paid to the aggrieved woman or to her legal heirs, as it
may determine, in accordance with the provisions of section
15:
Provided that in case the employer is unable to make such
deduction from the salary of the respondent due to his
being absent from duty or cessation of employment it may
direct to the respondent to pay such sum to the aggrieved
woman:
Provided further that in case the respondent fails to pay
the sum referred to in clause(ii), the Internal Committee or
as, the case may be, the Local Committee may forward the
order for recovery of the sum as an arrear of land revenue
to the concerned District Officer.
(4) The employer or the District Officer shall act upon the
recommendation within sixty days of its receipt by him.''
20. Thus 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. There
is no dispute that ICC has been constituted by OLA in
furtherance to statutory obligation imposed in terms of the
Section 4 of provisions of the PoSH Act, 2013, to receive the
complaints of sexual harassment from the aggrieved women, to
enquire into the said complaints and to carry out and discharge
the obligations contemplated under sections 9, 11 and 13 of
56
the PoSH Act, 2013 extracted hereinabove. In fact, it is the
specific case of the ICC and OLA that they are in complete
compliance with the aforesaid provisions of the PoSH Act, 2013.
Needless to emphasise the very object of the PoSH Act, 2013 is
to ensure safety and security of the women at workplace which
is recognised as their statutory and fundamental rights.
Employers like that of OLA and their internal complaint
committee as that of ICC are thus have a corresponding `public
duty and obligation' which is undoubtedly involving a `public
law element' and existence of 'such authority is accepted by
public at large'.
21. Another aspect of the matter is that Government of
Karnataka in exercise of its powers conferred under Sections
93, 95(1) and 96(1) read with Section 212 of Motor Vehicles
Act, 1988, framed and by notification dated 02.04.2016
published Aggregators Rules, 2016. This is also in furtherance
to the advisory that was issued by the Central Government to
all the State Governments. The purpose of framing such rules
as stated in the notification reads thus:
"Whereas it is necessary to promote and ensure the
compliance with law and safety of passengers who use I.T.
57
based on demand transportation technology aggregator
platforms within a particular jurisdiction and to ensure a
greater integrity of process and operation of the on demand
transportation technology aggregator platforms."
22. 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 `Licencee' thereunder. Appropriate here to extract
relevant provisions of Aggregators Rules, 2016 which has been
published as required under (1) of 212 of Motor Vehicle Act,
1988 which are as under:
2(2) "Aggregator" means a person who is an aggregator or operator
or an intermediary/market place who canvasses or solicits or
facilitates passengers for travel by a taxi and who connects the
passenger/intending passenger to a driver of a taxi through phone
calls, internet, web-based services or GPS/GPRS based services
whether or not any fare, fee, commission, brokerage or other charges
are collected for providing such services.
''(4) ''Licence" means a Licence issued to an aggregator under these
Rules.
(5) "Licencee" means an aggregator who holds licence issued under
these Rules.
(6) Conditions for grant or renewal of a licence.- The applicant for
a licence shall satisfy that
(a) he has a fleet of minimum 100 taxies either owned or
through an agreement with individual Taxi permit holders.
(b) he has facilities for monitoring the movement of
taxies with the help of GPS, GPRS, along with a control
room facility.
7. Vehicle Profile.- Every taxi, for the purpose of inclusion in a
licence, shall,-
58
(a) be covered with a contract carriage permit issued under section 74
or under sub section of Section 88 of the Act.
(b) have a display board inside the Taxi containing vehicle permit and
the driver's details such as photograph, name, Driving licence and
badge particulars and ID card issued by police authorities. The display
board shall be clearly visible to the passengers in the taxi.
(c) be capable of being tracked continuously with GPS/GPRS facility
with a provision of a panic button for the use of the passengers,
capable of alerting the control room of aggregator as well as local
Police without any hindrance or interference by the driver.
(d) be fitted with single integrated GPS / GPRS capable vehicle
tracking unit with Printer, display panel and digital fare meter, as per
the specifications detailed in Appendix-II, capable of generating a
printed receipt to be given to the passengers.
(e) be fitted with an yellow coloured display board with words "Taxi"
visible both from the front and the rear. The board shall be capable of
being illuminated during the night hours.
8. Driver's qualifications.
(1) Driver of a Taxi shall have the following qualifications.-
(a) He shall be holder of a licence to drive light motor vehicles
(transport) and the holder of a badge to drive motor cabs.
(b) He shall have a minimum driving experience of 2 years.
(c) He shall be a resident of Karnataka for a minimum period of two
years.
(d) He shall have a working knowledge of Kannada and any one other
language, preferably English.
(e) He shall be of a good moral character without any criminal record.
(f) He shall be a holder of KYC compliance bank account in accordance
with the norms prescribed by Reserve Bank of India.
(2) The driver of a Taxi shall behave in a civil and orderly manner with
the passengers or intending passengers and shall not give room for
any complaints from them and shall not indulge in any touting
activities or force or compel customers to use his services.
(3) The driver of a taxi shall not have been convicted within the past
seven years, for the offence of driving under the influence of drugs or
alcohol, or any cognizable offence under the Criminal Procedure Code,
1973, including fraud, sexual offences, use of a motor vehicle to
commit a cognizable offence, a crime involving property damage or
theft, acts of violence, or acts of terror.
59
10. General Conditions to be observed by a licencee.-
(a) provide an address within the area of operation in the jurisdiction
of the Licensing Authority along with details of the person-in- charge
of the affairs.
(b) neither shift his place of business, nor any of his branches as
mentioned in the licence or open a new branch without a written
permission from the licensing authority.
(c) maintain records, in digital form of all the taxies at his control,
indicating on a day to day basis, the trips operated by each vehicle,
details of passengers who travelled in the vehicle, origin and
destination of the journey and the fare collected. The records so
maintained shall be open for inspection by an officer nominated by the
licensing authority at any time.
(d) provide a list of drivers, their Licence numbers, the vehicle
registration numbers and the chassis and engine numbers and permit
details of Taxis operated by him to the licensing Authority on a
quarterly basis.
(e) maintain the copies of following up-dated records relating to the
drivers (after verification with the originals):
i) a photograph of the driver;
ii) driving Licence;
iii) Present home address with proof of residential address;
iv) RBI compliance KYC bank account details;
v) Self-attested copies of EPIC card and PAN card.
Vi) Contact details and addresses of two family members.
f) maintain the copies of the following up-dated records relating to the
driver's vehicle (after verification with the originals):
i) Certificate of Registration;
ii) Certificate of Fitness;
iii) Permit of the vehicle;
iv) Chassis and engine numbers and
v) Commercial insurance policy covering for third party risks as
prescribed in the Act.
vi) Pollution under control certificate.
g) implement a zero tolerance policy on the use of drugs or alcohol
applicable to any driver, provide notice of the zero tolerance policy on
its website, as well as the procedure to report a complaint about a
60
driver when a passenger reasonably suspects that the driver was
under the influence of drugs or alcohol during the course of the ride.
The licencee shall immediately deactivate or suspend such driver's
access to the platform upon receipt of a passenger's complaint alleging
violation of the zero tolerance policy. The suspension shall last or
continue during the period of investigation by the licencee.
h) ensure that the antecedents of every driver of a Taxi is verified by
the police authorities before the driver is allowed to use the licencee's
platform.
i) arrange at least once in a year structured refresher training
programme for the drivers not only for safe driving skills but also for
gender sensitization and etiquette towards passengers etc. Conduct of
all such training programmes shall be documented and preserved at
least for one year. The driver shall not be allowed to work beyond the
maximum number of hours as stipulated under Motor Transport
Workers Act 1961.(Central Act No 27 of 1961)
j) periodically check and maintain a register regarding the details of all
the documents of all taxies at his command.
k) ensure that all the taxies at his command maintain uninterrupted
contact with the control room. The control room shall be in a position
to monitor the movements of all the vehicles at his command.
l) ensure adequate mechanism for receiving passengers feedback and
grievances. This may be ensured through feedback register kept in the
taxi, easily accessible to the passengers always and also by providing
toll free phone numbers.
m) ensure that the grievances or complaints of passengers or any
other persons received by him shall be attended by the grievance
officer appointed by him and they must be made available to the
inspecting authorities on demand.
n) provide the taxies covered with a permit issued under section 74 or
under sub-section (8) of section 88 of the Act as per the requirement
of the passengers.
o) ensure that the vehicles entered in his licence do not operate
independently or accept bookings directly.
p) give liberty to the permit holder who is in operation under his
company to operate his vehicle simultaneously with any other
aggregator as per his discretion.
q) ensure that the Taxi service is available all the time 24 X 7 without
any interruption.
r) on termination or end of the agreement with permit holder, remove
all the equipments or brand stickers and confiscate the identity card or
authorization issued to the driver.
61
s) maintain a web portal containing all details regarding the owners of
the vehicles, services offered, fare structure, insurance liabilities,
control room number, name and contact details of a duly appointed
grievance redressal officer.
t) send photo of the driver along with vehicle registration number and
other details of the driver to the customer's mobile before boarding.
u) publish beforehand its policy on taxi fare, registration of taxis and
drivers with its platform or app, sharing of fares with taxi owners
and/or drivers, safety of passengers, grievance redressal mechanism
for passengers etc.
v) store datas of all passengers and drivers travelled in their vehicles
upto one year and make them available to the inspecting authorities
on demand.
(2) If the licencee uses or causes or allows a Taxi to be used in any
manner not authorized by the permit or provisions mentioned herein,
the licencee and the driver shall be jointly and severally responsible for
such defaults and for payment of penalty under the provisions of the
Act and Rules.
(3) If any untoward incident occurs during the course of a ride, the
licencee shall inform the same to the licensing authority as well as to
the jurisdictional police immediately.
(4) The licensing authority may, after notice of not less than 30 days
to the licencee, vary any conditions or may add fresh conditions.
11. Power of the licensing authority to suspend or cancel the
Licence.- (1) The licensing authority may, after giving an opportunity
of being heard to the licencee, suspend the licence for a period which
shall not be less than 30 days and which shall not exceed 6 months at
a time or may cancel the licence, if,-
a. the licencee fails to comply with any of the requirements or
conditions of these rules, or
b. any Taxi operated by the licencee fails to comply with any of the
requirements or conditions of these rules, or
c. any driver of a Taxi operated by him violates any requirements or
conditions of these rules, or
d. a passenger's complaint of misbehaviour or misdemeanour on the
part of the driver or the licencee or any of his employees is found to be
correct after enquiry or
e. a criminal complaint is filed against the licencee or his employee or
the driver.
(2) Where a licence is suspended or cancelled, the licencee shall
surrender the licence to the licensing authority within three days of
62
receipt of order of suspension or cancellation and shall immediately
stop all operations under the licence.
(3) Where the licence is liable to be suspended or cancelled and the
licensing authority is of the opinion that it would be expedient to
impose a fine on the licencee in lieu of suspending or cancelling the
licence, the licensing authority may require the licencee to pay a fine
which shall not be less than Rs. 5,000 but not exceeding Rs. 10,000.
(4) Without prejudice to an order of suspension or cancellation
passed by the licensing authority, the security provided by way of
bank guarantee may also be forfeited either in part or in full,
depending upon the gravity of the violation.
(5) The licencee may, at any time, voluntarily surrender the licence
for cancellation. On such surrender of the licence, the security by way
of bank guarantee if any shall be returned to the licencee after the
payment of outstanding dues if any.
23. Reading of the aforesaid Aggregators Rules, 2016 in
the light of the objects and purpose of the PoSH Act, 2013
indicate that OLA being the `Aggregator' and the `Licencee' 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
Licencing Authority and to the jurisdictional police, failure of
which entails the Authorities concerned to revoke the licence in
the manner enumerated thereunder.
24. Admittedly in the instant case neither the ICC nor
the OLA have discharged the obligation imposed on them under
63
the Aggregators Rules 2016. However relying upon a letter
dated 26.08.2017 produced at Annexure R4 produced along
with the statement of objection by the ICC it is contended that
it has rendered and willing to render all required assistance and
co-operation before the jurisdictional police in the process of
investigation. Except that no material is placed on record
regarding their statutory compliance in the matter. This aspect
of the matter is further dealt with while answering Point.No.3.
25. Though it is vehemently urged on behalf of Petitioner
that since the OLA is into the business of providing transport
service of such a huge magnitude across the country it partakes
the character of it discharging a public function, which is denied
with equal vehemence by the learned counsel for the ICC and
OLA, this court is of the considered view that, 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 referred to hereinabove as
well the obligations imposed under Rules 2016 which is
undoubtedly a duty and obligation which it owe towards the
64
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 of India. It is now well settled that sexual
harassment constitutes violation of various fundamental rights
of women guaranteed under Articles 14, 15, 19(1)(g) and 21 of
the Constitution of India which may be enforced against private
persons with corresponding duty imposed by a statue.
26. Reliance placed on by learned Senior counsel
appearing for the OLA on the judgments in the case of;
a) Sanchit Gupta Vs Union of India and anr
(supra) is of no avail to the facts of the present case
as the respondent X-Corp in the said case against
whom the said writ was filed alleging violation of
constitutional rights, was found to have been
operating privately without specific Governmental
delegation or statutory obligations to perform any
public duty (para 10 of the said Judgment).
65
b) As regards to the principles of law laid down in the
cases of Zee Telefilms, Andi Mukta Sadguru,
Basireddy, R.S.Madireddy and Federal Bank
(Supra) there cannot be any other contrary view or
opinion. However, in the light of specific provisions
made under the PoSH Act, 2013 mandating OLA- the
employer to constitute the ICC which is a statutory
obligation of discharging public duty involving public
law element as already noted above, OLA may not
draw much help from the said Judgments. In fact, the
law laid down in the said Judgments would support
the case of the petitioner than the OLA on the point
being discussed regarding maintainability of the writ
petition.
c) In the case of Smitha Arora (supra) what was
being considered was a challenge to the order of
termination of service of petitioner by a private entity
as well as a challenge to the report of Internal
Complaint Committee of certain M/s.Alcatel Lucent
India Ltd. There has been no question raised or view
66
taken as to whether ICC therein was discharging a
public duty involving public law element. All that was
adverted to was the nature of business being carried
on by the private entities named therein. Further
petitioner in the said case herself being an employee
and aggrieved person was held to have had an
alternate remedy of preferring an appeal. Thus, facts
and issues involved in the said case are different and
distinct from the one which are at hand.
27. For the above reasons and for the purpose and to the
extent mentioned above this Court is of considered view that
the writ petition under Article 226 is maintainable. Point No.1
is answered accordingly.
Point Nos.2 and 3:
28. One of the main contentions vehemently urged on
behalf of ICC and OLA is want of relationship of 'employer' and
'employee' between the OLA, driver-subscriber and the
impersonator, enabling the ICC to initiate enquiry upon the
complaint filed by the petitioner. This calls for a close scrutiny
of the terms of Subscription Agreement which is admittedly
67
entered into between OLA and the Transport Provider and
Driver-subscriber in the light of statement of objects and
reasons which the PoSH Act 2013 seeks to achieve. The
definition of the term `employee' as provided under Section
2(f) of the POSH Act, 2013 reads as under:
''(f) "employee" means a person employed at a workplace for any work
on regular, temporary, adhoc 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 includes a co-worker, a
contract worker, probationer, trainee, apprentice or called by any other
such name;''
29. It is also relevant to refer to the definition of term
'employer' as defined under Section 2(g) of the POSH Act, 2013
which reads as under:
''Employer has been defined to mean any person responsible for the
management, supervision and control of the workplace and
management includes the person or board or committee responsible
for formulation and administration of polices for such organisation.''
30. For better understanding the definition of the term
`employee' its components are encapsulated as under:
`Employee' means - (i) a person employed at a work place,
(ii) for any work
(iii) on regular, temporary, adhoc or
(iv) daily wage basis
(v) either directly or through an agent,
(vi) including a contractor
(vii) with or without knowledge of principal employer
68
(viii) whether for a remuneration or not,
(ix) or working on a voluntary basis or otherwise,
(x) whether the terms of employment are express or
implied
xi) and includes a co-worker,
xii) a contract worker,
xiii)probationer, trainee, apprentice or
xiv) called by any other such name.
31. Similarly the components of term `Employer' can be
encapsulated as under;
'Employer' means: i)any person responsible for the
ii) management,
iii) supervision and
iv) control of
v) the workplace and
vi) management includes the person or board
or committee
vii) responsible for formulation and
administration of polices for such
organisation.
32. The above definitions of 'Employee' and 'Employer' as
read in their plain and simple language clearly and without any
ambiguity indicate that they intend to cover all possible means
and modes of engagement of a person as an 'Employee' by the
'Employer' at his/its work place, 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
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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.
33. Appropriate here also to extract definition of the
terms 'aggrieved women' and 'work place' as defined under
Section 2(a) and 2(o) which reads as under:
a) "aggrieved woman" means-
(i) in relation to a workplace, a woman, of any age whether employed
or not, who alleges to have been subjected to any act of sexual
harassment by the respondent;
(ii) in relation to a dwelling place or house, a woman of any age who is
employed in such a dwelling place or house;
(o) "workplace" includes -
(i) any department, organisation, undertaking, establishment,
enterprise, institution, office, branch or unit which is established,
owned, controlled or wholly or substantially financed by funds provided
directly or indirectly by the appropriate Government or the local
authority or a Government company or a corporation or a co-operative
society;
(ii) any private sector organisation or a private venture, undertaking,
enterprise, institution, establishment, society, trust, non-governmental
organisation, unit or service provider carrying on commercial,
professional, vocational, educational, entertainmental, industrial,
health services or financial activities including production, supply, sale,
distribution or service;
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(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or
games venue, whether residential or not used for training, sports or
other activities relating thereto;
(v) any place visited by the employee arising out of or during the
course of employment including transportation provided by the
employer for undertaking such journey.
(vi) a dwelling place or a house;
34. There is no dispute to the fact that in the instant case
petitioner is an 'aggrieved women'. 'Work Place' on the other
hand being an inclusive definition includes 'transportation' as
well.
35. Learned Senior Counsel for OLA however referring to
the word `employed' used in the above definition of
'Employee' emphatically insisted that unless the term
`employed' is established in relation to OLA and its drivers, the
remaining part of the definition cannot be thrusted upon OLA.
It is further vehemently contended even if such attempt is
made it would lead to disastrous results across the country as
the OLA has millions of driver-subscribers, leading to extremely
anomalous situation which is neither the intent of the PoSH Act
2013 nor is it desirable to give such a construction.
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36. Though at the first blush there appears to be
considerable force in the said submissions being made, however
before accepting the same, the context and purpose for which
the present legislation namely PoSH Act, 2013 has been
promulgated needs to be kept in mind. The mischief which this
legislation seeks to remedy is to provide protection to women
against sexual harassment, which is recognised as her
fundamental right guaranteed under the Constitution of India
with an international obligation on the member States to the
Convention on Elimination of All Forms of Discrimination Against
Women to take appropriate measures, with a corresponding
duty on the employers to ensure her safety at domestic and
non domestic work places in organised as well as unorganised
sectors.
37. There is no denial that OLA is an 'Employer' within
the meaning of the definition provided under the PoSH Act
2013. There is no dispute that the OLA is into profit making
commercial activity of providing varied technology based and
other services in transportation sector which is being used by
general public. There is also no dispute that it has its intent,
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purpose and object of earning profits from its business. By its
own declaration on its website OLA has displayed information
that apart from its core business of offering mobility platform it
extends its consumer offerings like micro-insurance and credit
led payments through Ola Financial Services and a range of
owned food brands through India's largest network of kitchens
under its Food business.
38. Following is the information regarding the business
network of OLA as made available on its Website:
Ola is India's largest mobility platform and one of the world's largest
ride- hailing companies, serving 250+ cities across India, Australia,
New Zealand, and the UK. The Ola app offers mobility solutions by
connecting customers to drivers and a wide range of vehicles across
bikes, auto-rickshaws, metered taxis, and cabs, enabling convenience
and transparency for hundreds of millions of consumers and over 1.5
million driver-partners.
Ola's core mobility offering in India is supplemented by its electric-
vehicle arm, Ola Electric; India's largest fleet management business,
Ola. Fleet Technologies and Ola Skilling, that aims to enable millions of
livelihood opportunities for India's youth. With its acquisition of ridlr,
India's leading public transportation app and investment in Vogo, a
dockless scooter sharing solution, Ola is looking to build mobility for
the next billion Indians. Ola also extends its consumer offerings like
micro- insurance and credit led payments through Ola Financial
Services and a range of owned food brands through India's largest
network of kitchens under its Food business.
39. It cannot therefore be heard to say that the OLA
would be able to run its vast business across the globe on its
own without assistance, association or involvement of the
driver-subscribers howsoever far remotely connected. Usage of
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the terms/language such as `driver-partner', 'driver-
subscriber', 'independent contractor', 'principle-to-principle
basis' may be a façade which requires to be lifted and pierced.
Ingenious drafting of deeds and documents as that of
Subscription Agreement at hand may also have to be viewed in
the light of object of the PoSH Act 2013. The purpose of such
an effort is only to advance the object of the PoSH Act, 2013.
Though grave apprehensions of such an effort giving rise to
purported absurd and anomalous results are sought to be
insisted upon, it is however not made clear as to what are those
absurd and anomalous results which are apprehended of?.
Nonetheless such apprehensions, even if any, alone shall not
be the reason to scuttle and shut the avenues for effective
implementation of the provisions of the PoSH Act, 2013 and
provide a safe passage to find excuses from discharging the
Public Duty. It is in this background the terms of Subscription
Agreement require a close scrutiny.
40. Before undertaking the exercise of scrutinising the
Subscription Agreement, it may also be relevant at this juncture
to keep in mind the emphatic submissions made by the learned
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Senior counsel for OLA contending that OLA is merely an
'Intermediary' which is not having any control over either the
driver-subscriber or rider-subscriber except providing
technology based platform for both to come together. It is also
his contention that there is no factor of 'ownership of
instrumentalities' present in the matter to determine the
'employee' and 'employer' relationship. In other words, it does
not own or possess the OLA taxi as driver-subscribers get
connected to OLA platform either with their own vehicle or the
vehicle which they have hired from third party. It is relevant to
note the definition of 'Intermediary' as provided under Section
2(w) of the Information Technology Act, 2000 which is as
under:
"Intermediary", with respect to any particular electronic records,
means any person who on behalf of another person receives,
stores or transmits that record or provides any service with
respect to that record and includes telecom service providers,
network service providers, internet service providers, web-
hosting service providers, search engines, online payment sites,
online-auction sites, online-market places and cyber cafes.''
41. It is also necessary to extract provisions of Section
79 of the Information Technology Act, 2000 which reads as
under:
"79. Exemption from liability of intermediary in certain cases - (1)
Notwithstanding anything contained in any law for the time being in
force but subject to the provisions of sub-sections (2) and (3), an
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intermediary shall not be liable for any third party information, data,
or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if -
(a) the function of the intermediary is limited to providing access to a
communication system over which information made available by
third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not -
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in
the transmission;
(c) the intermediary observes due diligence while discharging his
duties under this Act and also observes such other guidelines as the
Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if -
(a) the intermediary has conspired or abetted or aided or
induced, whether by threats or promise or otherwise in the
commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the
appropriate Government or its agency that any information, data or
communication link residing in or connected to a computer resource,
controlled by the intermediary is being used to commit the unlawful
act, the intermediary fails to expeditiously remove or disable access
to that material on that resource without vitiating the evidence in any
manner."
42. Questions as to Whether there exists 'Employer' and
'Employee' relationship between OLA and Driver-subscriber?;
whether OLA is merely an 'Intermediary' with its functions
limited to providing access to a communication system over
which information made available by third parties is transmitted
or temporarily stored or hosted?; and whether OLA is having no
say or control in and over the manner of service that is to be
provided by the Transport Service provider and or the driver-
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subscriber for the purpose of the PoSH Act 2013, or otherwise?,
need to be answered with reference to the terms and conditions
of the Subscription Agreement which is entered into between
OLA and the Transport Service Provider who is a Taxi operator
or a driver, as found at Annexure-R1 to the statement of
objections filed by the ICC.
43. Relevant Recitals of the said agreement are as
under:
WHEREAS, OLA owns and operates an online market place called ''OLA
CABS'' an online booking platform and any upgrades from time to time
and any other software that enables the use application are such other
URL as may be specifically provided by OLA ("portal") that lists and
aggregates the cab service provider and motor cab registered with it.
And whereas, on the basis of the representation and warranties
provided by the transport service provider, OLA had agreed to list the
transport service provider and the vehicle(s) on the portal (Service
Provider App) to enable the transport service provider to provide
transport services (transport services) through service provider app in
accordance with terms and conditions hereinafter provided.
NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS:
I Scope and Obligations:
1. The execution of this agreement and providing the details
in Exhibit A (hereinafter referred to as "Registration Data") shall
effect in the registration of Cab Service Provider and Vehicle(S) with
OLA and shall make the Cab Service Provider eligible for an online
account on the Service Providers App ("Account") for providing
Transport Services through the Service Provider's App.
2. The Transport Service Provider and vehicle(s) registration
with OLA shall at all times be subject to compliance with the
requirements set out in Exhibit-D and Exhibit B respectively. The
Transport Service Provider and the vehicle(s) registration with OLA
shall further be subject to such other details and documents in
respect of the Transport Service Provider and the vehicle(s) as is
morefully described in Exhibit-A. The Transport Service Provider
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hereby understands and consents to the collection, storage and
sharing of Aadhar Card and any information extracted therefrom with
third party vendors and/or Government authorities, for the process of
on boarding and background verification.
3. The Transport Service Provider acknowledges and
agrees that all rights, obligations and liabilities of the Transport
Service Provider and OLA shall be governed in accordance with this
agreement and the Transport Service Provider terms and conditions
available at the office of OLA ("Transport Service Provider T & C" )
and, copy of which is annexed as Exhibit B to this agreement. The
Transport Service Provider hereby represents that the Transport
Service Provider has read and understood this agreement and the
Transport Service Provider T & C fully and the terms contained
therein are agreeable to the Transport Service Provider.
44. The above recitals of the agreement give broad
indication of OLA providing "technology based Online Booking
Platform". The agreement then proceeds to provide details of
OLA and Non-OLA Device which is an essential and integral part
of the whole business module which is as under:
II. Device
For registration on the Service Provider App, the device of such model
and functionality as may be specified and notified by OLA to the
Transport Service Provider, more specifically set out under the
Commercial Term Segment in Exhibit C, may be either provided by
OLA or the Transport Service Provider may bring his own device. The
Transport Service Provider hereby agrees that OLA Device or Non-OLA
Device (both the terms defined hereunder), as the case may be, shall
be switched on during the performance of the Service without being
any exceptions whatsoever. The provisions relating to OLA Device /
Non-OLA Device shall be as set out below-
1. Non-OLA Device: For registration on the Service Provider App, the
Transport Service Provider may bring his own Non-OLA Device, of such
model and functionality as may be specified and notified by OLA to the
Driver ("Non-OLA Device"). In such event OLA will assist the Transport
Service Provider in installing the Service Provider App in the Non-OLA,
Device brought by the Transport Service Provider after OLA verifies
that the Non-OLA Device meets the requirements and specifications as
required by OLA. OLA shall also instruct the Transport Service Provider
in the use of the Non-OLA Device in respect of the Service Provider
App and Portal, if required. If the Non-OLA Device is stolen, the
Transport Service Provider shall ensure that the Service Provider App
and his Account is immediately blocked, suspended or deactivated. In
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such event, the Transport Service Provider shall approach OLA's
designated offices with a new Non-OLA Device for installation of the
Service Provider App in the new Non-OLA Device and charge such fee
as may be determined by OLA under clause II(4) of this Agreement.
2. The Transport Service Provider shall not use the Non-OLA Device for
any illegal or unlawful purposes and shall use the Non-OLA Device
solely in accordance with the terms of this Agreement. The Transport
Service Provider shall solely be responsible and liable for any violations
of law committed by the Transport Service Provider, misuse of the
Non-OLA Device and misuse of the sim card used in the Non-OLA
Device.
3. In the event the Service Provider App is not functioning properly on
the Non-OLA Device, the Transport Service Provider shall immediately
deposit the Non-OLA Device only at OLA's designated offices for any
malfunctions with the Service Provider App and compatibility of the
Non-OLA Device with the Service Provider App.
4. If the Non-OLA Device is damaged and is not repairable due to any
act or omission of the Transport Service Provider, the Transport
Service Provider shall immediately approach only OLA's designated
offices with a new Non-OLA Device for installation of the Service
Provider App on the new Non-OLA Device. In this connection, OLA may
charge such fees as may be determined by OLA for re-installation of
the Service Provider App in the Non-OLA Device. Additionally, the
Transport Service Provider may also request OLA to provide an OLA
Device, as set out in clause II(5) below. If the Transport Service
Provider is unable to bring a new Non- OLA Device or obtain an OLA
Device in accordance with clause II(5) below, OLA shall be entitled to
terminate this Agreement along with the Exhibits with immediate
effect.
''5. OLA Device: For registration on the Service Provider App, if the
Transport Service Provider does not have a Non-OLA Device, OLA will
provide a device, of such model and functionality as may be required
by OLA. Further, OLA may provide other additional devices to the
Transport Service Provider including but not limited to devices for 'OLA
Play', the usage and purposes of which will be determined and notified
by OLA to the Transport Service Provider from time to time. All the
devices provided by OLA to the Transport Service Provider shall be
collectively referred to as "OLA Device(s)". "OLA Play' means a
proprietary in-car and cloud technology platform owned and operated
by OLA, which is intended to provide a fully connected interactive
experience to the Customer.
6. OLA will assist the Transport Service Provider in installing the
Service Provider App and other programs including but not limited to
software, application, and content, as may be solely determined by
OLA, in the OLA Device(s) provided by OLA. OLA will instruct and train
the Transport Service Provider for use of the OLA Device(s), if
required.
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7. The Transport Service Provider shall not use the OLA Device(s) for
any illegal or unlawful purposes including but not limited to playing/
watching pornographic content on the OLA Device and shall use the
OLA Device(s) solely for purpose determined by OLA and strictly in
accordance with this Agreement. The Transport Service Provider shall
solely be responsible and liable for any violations of law committed by
the Transport Service Provider, misuse of the OLA Device(s) and
misuse of the sim card provided, if any, with the OLA Device(s).
8. The Transport Service Provider shall ensure that the OLA Device(s)
is maintained in his possession in a proper manner. OLA may, at its
sole discretion, charge such amounts as may be determined by OLA,
as a non-interest bearing security, for the OLA Device(s) provided to
the Transport Service Provider. Further, OLA may, at its discretion,
return the security amount to the Transport Service Provider at the
expiration or termination of this Agreement.
9. In the event the OLA Device(s) is not functioning properly or if there
is any technical or safety issue in relation to the OLA Device(s), the
Transport Service Provider shall immediately deposit the OLA
Device(s) only at OLA's designated office for checking the OLA
Device(s) for any malfunctions. If the OLA Device(s) is damaged and is
not repairable due to any act or omission of the Transport Service
Provider, the Transport Service Provider shall pay to OLA amounts, as
may be determined by OLA. In order to resolve whether the OLA
Device(s) is damaged due to any act or omission of the Transport
Service Provider, OLA will enquire and investigate the matter in the
manner determined by OLA and in this connection, OLA's decision shall
be final and binding. Upon payment of the foregoing amount, OLA shall
provide the Transport Service Provider with a new OLA Device(s). If
the Transport Service Provider is unable to pay such amount as
specified above, the Transport Service Provider shall return the
damaged OLA Device(s) and OLA shall be entitled to terminate the
Agreement with immediate effect.
10. In the event the OLA Device(s) is misplaced by the Transport
Service Provider or if it is stolen from Transport Service Provider's
Vehicle, the Transport Service Provider shall promptly notify OLA in
writing and immediately proceed to file an FIR in the police station
within the jurisdiction. Once FIR is filed, Transport Service Provider
shall submit the FIR copy along with amounts, as may be determined
by OLA. The Transport Service Provider shall fully cooperate with OLA
and the authorities during investigation process in relation to the
misplaced or stolen OLA Device(s). In the event Transport Service
Provider fails to file an FIR for loss of OLA Device(s) or if in OLA's
opinion, fails to cooperate with OLA and authorities, OLA shall be
entitled to terminate the Agreement with immediate effect, without
prejudice to OLA's rights under this Agreement and under applicable
law.
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45. Aforesaid clauses in the Agreement speak about the
indispensable requirement of having a "Device" for the purpose
of the service intended to be provided. Be it "OLA Device" or
"Non-OLA Device", from its installation, to maintenance, to
repair, to lost complaint and all incidental and ancillary
matters, it is OLA which has the final say indicating its complete
control. Consequence of failure in adhering to the terms would
result in termination of agreement with immediate effect.
Reasons for this are not far to seek. Its only this device which
enables the transport business to run and continue. One of the
conditions for grant of or renewal of a licence under Rule 6 of
the Aggregators Rules, 2016 as noted above is OLA having
facilities for monitoring movement of Taxis with the help of
GPS, GPRS along with a control room facility. Thus, in its
absence there cannot be any possibility of this module of
business to operate.
46. Though in the entire Agreement there is reference to
the 'Transport Service Provider" which makes one to think
whether a driver-subscriber would fit into the said terms?, the
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said question is answered in Exhibit B annexed to the
Agreement, relevant portions of which read as under ;
EXIHIBIT -B
TRANSPORT SERVICE PROVIDER TERMS AND CONDITIONS
DRIVERS TERMS AND CONDITIONS
1. These Terms and Conditions (as defined) shall be
applicable as set out below-
1. If the Transport Service Provider (as defined in the
Subscription Agreement) is an Operator providing Services to
the Customers through the Drivers employed by the
Operator, these Terms and Conditions shall be interpreted in
the manner so as to apply to the Operator as well as to the
Drivers employed by the Operator; and
2. If the Transport Service Provider is an individual providing
Services to the Customers directly, these Terms and
Conditions shall be interpreted in the manner so as to apply
to an individual Transport Service Provider Operator.
DEFINITIONS:
All of the defined and capitalized terms in these Driver T&C
will have the meaning assigned to them herein below. Any
term not defined here shall have the meaning assigned to it in
the Subscription Agreement.
"Acceptance" means your affirmative action of clicking on the
box against the words "ACCEPT & CONTINUE" provided at the
end of these Driver T&C, by which action, you unequivocally
accept the Driver T&C and any modifications thereof.
"Account" refers to the account created by OLA at its sole
discretion, for the Driver subsequent to the Driver submitting
and OLA verifying the Registration Data.
"Applicable Laws" shall mean and include all applicable
statutes, enactments, acts of the legislature or the
Parliament, laws, ordinances, rules, by-laws, regulations,
notifications, guidelines, policies, directions, directives and
orders of any Governmental authority, tribunal, board, or a
court, in India.
"Booking" shall mean the allotted Service Request.
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"Business Day" means a day on which banks are open for
business in the City of Operation.
"Cancellation Fee" shall mean the fare payable by the
Customer towards cancellation of a Booking made by a
Customer.
"City of Operation" shall mean the city in which the
Subscription Agreement is executed by and between the
Driver and OLA.
"Commercial Term Segment" shall mean Exhibit C of the
Subscription Agreement, which contains the commercial
terms for Service provided by the Drivers.
"Content" shall have the meaning given to it in 7.1.
"Convenience Fee" shall mean the fee payable by the
Customer for availing the technology services offered by OLA.
Convenience Fee will be charged for each Service Request
placed by the Customer on the Portal.
"Customer" shall mean such person, who places a Service
Request on the Portal and has accepted the Customer Terms
of Use and Privacy Policy of the Portals (as applicable).
"Customer's Terms of Use" shall mean the Customer Terms
and Conditions as provided on the OLA Portal for availing the
Service.
"Device" shall mean OLA Device or Non-OLA Device, as the
case may be, used for performance of the Services.
"Driver" or "You" or "Your" or "Yourself" shall mean an
individual, who has an Account with OLA and in the event of
Operator Drivers, shall include the operator, drivers for
purposes of compliance with these terms and conditions.
OLA and in the event of Operator Drivers, shall include the
Operator Drivers for purposes of compliance with these Terms
and Conditions.
"Driver App" means the electronic interface on the OLA Portal
from where the Driver's Account is accessible to the Driver.
Login credentials (User ID and Password) for the Driver App
shall be provided by OLA.
"Driver Proceeds" shall mean the net amount receivable by
the Driver after deduction of OLA's commission and such
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other amounts as may be provided in the Commercial Terms
Segment or notified otherwise.
"Fare" shall mean the Fare payable to the Transport Service
Provider as is also reflected on the Device after completion of
the Service. The Driver permits OLA to review and revise the
Fare as per the market conditions.
"Force Majeure" shall have the meaning given to in Clause
16.4.
"Information" shall mean the details furnished by the Driver
at the time of signing the Subscription Agreement and/or
otherwise during and after the Drivers registration on the
Driver App on the Portal and successful creation of an
Account.
"OLA" or "We" or "Us" or "Our" shall mean ANI Technologies
Private Limited, a company incorporated under the
Companies Act 1956, and having its registered office at
Regent Insignia, #414, 3rd Floor, 4th Block, 17th Main, 100
Feet Road, Koramangala, Bangalore 560 034, India, which
expression shall, unless it be repugnant to the context or
meaning thereof, be deemed to mean and include all its
successors, affiliates and permitted assigns.
"OLA Play" shall mean a proprietary in-car and cloud
technology platform owned and operated by OLA, which is
intended to provide a fully connected interactive experience
to the Customer.
"Operator" shall mean a transport service provider who has
listed himself / itself and his/its fleet of vehicles on the Portal
to provide Services to the Customers through the Drivers
employed by the Operator.
"Operator Drivers" shall mean the Drivers employed by the
Operator for providing Services to the Customers.
Parties" shall mean, collectively, the Driver and OLA and
"Party" shall refer to any one of them.
"Portal" shall mean such features of the OLA mobile
application or other programs, software, mobile applications
including but not limited to OLA Play, OLA Tunes and Driver
App, owned by, licensed to and controlled by OLA, and other
URLs as may be specified by OLA from time to time.
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"Posted Content" shall have the meaning given to in Clause
7.4.
"Service" means the service of picking a Customer from the
pick-up point as prompted on the
Device and dropping the Customer at the drop point entered
by the Customer at the time of
placing his/her Service Request and accepted by the Driver.
"Total Ride Fee" shall include the Fare, the Convenience Fee,
Additional Fee (if any) and the
Cancellation Fee (if any), reflected on the Device and such
other fee, as may be applicable.
"Service Request" means a request placed by the Customer
on the Portal to avail the Service offered by the Driver.
"Subscription Agreement" shall mean the agreement entered
into between OLA and the Driver / Operator pursuant to
which the Driver/Operator has agreed to provide transport
Services in accordance with these Driver T&C, as amended
from time to time.
"Subscription Amount" shall mean the amount paid by the
Driver at the time of subscription to Portal of OLA, if any.
"OLA Policies" means the "Privacy Policy", Zero Tolerance
Policy & such other policies (including any amendments
thereof), which OLA may issue and make applicable to Driver
from time to time and make available to the Driver on the
Driver's request.
"Term" means the period commencing from the date of
acceptance of the Driver T&C by the Driver up to the date of
termination of the Subscription Agreement and/or these
Driver T&C.
"Terms and Conditions" or "Driver T&C" refers to these Driver
T&C which are available at the Portal, as may be amended
from time to time.
"Vehicle" shall mean 'Motorcabs' as defined under the Motor
Vehicles Act, 1988.
"Wallet" shall mean the prepaid payment instruments
available for payments in the OLA Portal.
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"Zero Tolerance Policy" shall mean the policy of OLA as
detailed under the Annexure to these Driver T&C, as may be
amended from time to time.
1. APPLICABILITY OF DRIVER T&C
These Driver T&C together with the Subscription Agreement,
Commercial Term Segment, Zero Tolerance Policy, OLA Policies,
shall be deemed to be incorporated by reference into these Driver
T&C and shall form the complete understanding between the Parties.
By accepting the Driver T&C, You acknowledge and agree to the
Subscription Agreement and various Exhibits to the Subscription
Agreement, OLA Policies and any other policy that OLA makes
applicable to You from time to time, to the fullest extent possible.
Additionally, you hereby understand and consent to the collection,
storage and sharing of Aadhaar card and any information extracted
therefrom with Third Party Vendors and/or Government Authorities,
for the process of on boarding and background verification.
47. Thus by virtue of the above definitions and
clauses, the provisions of the Subscription Agreement are
extended to govern the relationship between OLA and
DRIVER-SUBSCRIBER. The Agreement further proceeds to
record the scope of service, manner and method to be
adopted by the Driver while rendering the service, as
under;
2. SCOPE OF SERVICES
2.1. You agree that OLA's role is limited to being a market place
solely for managing and operating the Portal for the display of the
Service in the manner decided by OLA unilaterally, payment
collection through cash, or Wallet to facilitate the transactions
between You and the Customers. Accordingly, OLA is merely an
intermediary providing online marketplace services and the Portal is
only a platform where You shall offer Service to the Customers. The
contract for availing the Service shall be a contract solely between
You and the Customer. At no time shall OLA have any obligations or
liabilities in respect of such contract.
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2.2 The Driver confirms and undertakes that OLA does not own or in
any way control the Vehicle used by a Driver rendering the said
Service to the Customer. OLA shall not be held liable or responsible
in any manner whatsoever for any insufficiency or deficiency of the
Service rendered by the Driver to the customer. OLA does not make
any representations or warranties regarding the quality of the
Service provided by you.
3. SERVICE REQUESTS
3.1 On receipt of a Service Request, Booking will be allotted to the
Driver on the Device or in such other manner as may be agreed
between the Driver and OLA from time to time.
3.2 The Driver shall duly complete all Bookings allotted in connection
with the Services and promptly notify OLA immediately by means of
short message service/ telephonic calls of any changes/deviations to
the Booking, which may affect the provision of the Service.
3.3 In the event the Driver requires any assistance in connection
with the Portal, Service Requests, Service etc. therein, he / she
should contact the OLA call centre. If the assistance pertains
specifically to the Device, Driver App, Portal or anything therein,
then such issue may be directed to the call centres of OLA.
3.4 Upon a Service Request being allotted to the Driver on the Driver
App, OLA may provide to the Customer, the picture of the Driver,
details of the Vehicle including vehicle number and model, mobile
phone number of the driver and such other information as required
under applicable Laws or as OLA may deem fit, as the case may be,
required by the Customer to identify the Driver and Vehicle.
3.5 Once a Booking is allotted, OLA will provide the Driver with the
necessary Customer information in order to enable the Driver to
satisfactorily provide the Service. Such information shall be treated
as confidential information in terms of Clause 13 below.
3.6 In the event, the Driver is a female; the Driver shall not accept
Service Requests from 20:00 hours in the evening to 08:00 hours in
the morning.
4. COMMUNICATION
4.1 When You use the Driver App on OLA's Portal or send emails or
other data, information or communication to OLA, You agree and
understand that You are communicating with OLA through electronic
records and You consent to receive communications via electronic
records from OLA periodically and as and when required. OLA may
communicate with You by email or by such other mode of
communications, electronic or otherwise.
4.2 You hereby expressly consent to receive communication from
OLA through Your registered phone number and/or e-mail id. You
consent to be contacted by OLA via phone calls/ SMS notifications.
You agree that any communication so received by You from OLA will
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not amount to spam, unsolicited communication or a violation of
Your registration on the 'national do not call registry'.
4.3 By registering with OLA, You hereby agree to (i) provide
Information that OLA has a legal duty to request from a Driver on
account of the Know Your Customer norms under Applicable Laws
including without limitation your Permanent Account Number (PAN);
and (ii) undertake due diligence and update Yourself on Applicable
Laws that may have implications on Your liability as a Driver.
4.4 You acknowledge and agree that Your Information may be
transferred or stored in a Server outside India or the country where
You are located in order to perform OLA's obligations under these
Driver T&C.
5. OBLIGATIONS OF THE DRIVER
5.1 The Driver shall ensure and confirm that he understands the
language of the Driver App/ Portal and shall ensure that he/she
chooses the language that he bests understands from amongst the
languages that the Driver App/Portal supports.
52 The Service provided through the Portal by the Driver shall be of
the highest quality as per industry standards and in accordance with
the oral and written requirements of OLA. The Driver shall be liable
for any loss caused to OLA and/or the Customer due to negligence of
the Driver in the performance of the Service.
5.3 The Driver be deemed to be informed and shall also strive to
stay informed about conditions such as bandhs, strikes, curfews,
traffic disruptions, weather conditions and the like that could affect
the Service. The Driver shall, immediately intimate OLA, and disclose
any such aforesaid calamity that he may become aware of.
5.4 The Driver shall provide the Service to the Customers in a
courteous, effective and timely manner.
55 The Driver shall ensure registration of Vehicle at all times and
shall hold and keep updated/renewed all licenses, insurance and
permits necessary for the use of Vehicle on the Portals.
5.6 The Driver shall not undertake or assist in any unlawful or illegal
activity while performing Services.
5.7 The Driver, or any Transport Service Provider shall not allow
unauthorized persons to drive the Vehicle. OLA reserves the right to
take any action at its sole discretion for any violation by the Driver
or the Transport Service Provider, which may extend to but not
limited to termination an/or other legal action.
5.8 The Driver or any Transport Service Provider shall ensure the
safety and security of the Customers, his own self and that of the
vehicle at all times.
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The Driver shall immediately bring to the notice of OLA any deviation
from the provision of the Service/s as required under the terms of
these Driver T&C, including but not limited to any accidents, damage
to life or property.
5.9 The Driver agrees that any breach of the Subscription
Agreement or these Driver T&C by him/her is likely to cause OLA
substantial and irreparable damage and therefore, in the event of
any such breach, in addition to such other remedies which may be
available OLA shall have the right to specific performance and
injunctive relief.
5.10 The Driver shall ensure comprehensive insurance including
without limitation third party Insurance of Vehicles and such other
insurance as may be required by Applicable Law is obtained and
always maintained, and the Customer and/or OLA shall not be liable
for taking insurance or paying premium thereof in respect of the
Vehicle or any liability arising out of plying of such Vehicle.
5.16 In the event any Customer leaves his/her property in the
Vehicle, the same shall not be pilfered or tampered with by the
Driver and shall be reported immediately by the Driver directly to
OLA. In the event the Driver pilfers or tampers with the property of
the Customer, the Driver shall be solely liable for any damages
claimed by the Customer and OLA may at its sole discretion
terminate the Driver's registration and disable the Driver's access to
the Portal. OLA shall in no event be liable for loss of or damage
caused to the property of the Customer.
5.17 Driver hereby acknowledges and agrees that OLA shall alone be
responsible for settling any payment related issues between
Customer and Driver. In case of any conflict, the Driver shall seek
instructions from OLA. The Driver agrees that the decision taken by
OLA shall be final and binding on the Driver in the aforesaid case.
5.18 The Driver shall make himself/ herself available for such
trainings as OLA may be required to organize pursuant to Applicable
Law or as OLA may deem necessary from time to time.
5.19 The Vehicle shall be the sole responsibility of the Drivers and
the Driver shall be liable or responsible for any loss or damage to the
Vehicle caused by a Customer or any other third party for any
reason whatsoever.
5.21 Any cancellation of the allotted Booking is prohibited except in
exceptional circumstances based on a justifiable explanation
provided by the Driver. The Driver shall immediately inform OLA in
case of any cancellation or refusal of allotted Booking. Further, the
Driver hereby agrees such cancellation or refusal to provide Service
may, lead to a deduction in form of withholding of part or whole of
the Driver Proceeds.
5.22. The Driver agrees that the costs associated with the
maintenance of the Vehicle shall be borne by the Driver.
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5.23.The Driver shall be solely responsible for:
i. any failure to complete a Service Request accepted by the
Driver;
ii. any failure to pick up Customer(s) at the allotted time and/or
place;
iii. any act or commission on the part of its Drivers including any
rash and negligent driving, verbal, physical or harassment of any
nature;
iv any violation or non-adherence to the Applicable Law by it;
v. any nuisance or damage caused to the property of OLA by the
Driver or any misbehaviour causing physical harm and making
indecent gestures;
vi. any physical an/or mortal danger caused to the Customers whilst
using or in connection with the services;
vii. any delay of more than 10 (ten) minutes caused to the
Customer(s); and
viii. charging excess Total Fee from the Customer or charging the
Customer more than what is displayed on the meter; and
5.24. The Driver, shall not either directly or indirectly:
i. engage in any conduct that damages the reputation or causes
inconvenience in any manner, to OLA; or
ii. be the reasons for OLA to be a part of any negative publicity.
5.26 Driver will maintain all relevant books, records and accounts
relating to the Services provided by Driver and payments collected.
Upon reasonable notice, Ola may audit, or may appoint a qualified
independent auditor to audit, the books and records of the Driver to
verify the accuracy of the amount of payments collected by the
Driver. If such audit reveals any discrepancies with respect to the
payment collected and submitted to Ola, then in addition to Ola
retaining the right to exercise other remedies, may require the
Driver to promptly pay Ola an amount equal to the discrepancy and
may ask for an additional amount as fine from the Driver. The
audits will be conducted at Ola's expense; provided, however, that if
the audit reveals an underpayment by the Driver with respect to
collection and submission of payments to Ola in excess of 5% (five
percent), then Driver, in addition to payment obligations described
above, will promptly reimburse Ola for all reasonable, third party
audit fees
5.27. OLA may require the Driver to affix OLA brand including but
not limited to its logo/ sticker on the Vehicle. In such event, Driver
shall extend all necessary support and assistance to OLA for affixing
OLA brand on the Vehicle. It is hereby clarified that Driver will not be
entitled for any additional payments for the OLA logo/ sticker
affixed on the Vehicle, if any. OLA logo/ sticker/brand will be affixed
subject to the provisions of Clause 14.4(v) of these Driver T & C.
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In Addition to the above clause 7 of the Agreement
imposes conditions and restrictions on the Driver with
regard to usage and maintenance and upkeep of all and
every possible contents on the portal/Drivers App.
Under Clause 9 OLA retains all control over the
information of the Driver, sharing and disclosing to the
authorities and to its group companies at its absolute
discretion.
Clause 13 makes Driver liable for all losses,
damages, liabilities, claims, costs, penalty and expenses
incurred by reasons of any breach on his part in
performance of his terms of the contract.
Clause 14 provides for termination of driver's
registration by OLA without assigning any reasons.
Clause 15 provides for arbitration for dispute
resolution.
Under its ZERO TOLERANCE POLICY as provided
under the agreement, OLA has enlisted as many as 32
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items requiring the Driver to strictly follow them, in that
following few amongst others require mention in the
context;
3. Personal hygiene:
Driver shall wear neat Ola cabs uniform & badge (if provided by ANI
Technologies Private Limited) at all times during duty hour. Driver
shall maintain personal hygiene.
12. Driver should keep his mobile 'ON' while he is logged into OLA
Portal and he should receive every call of the customer. Driver
should not make any deliberate attempt to park the vehicle in 'non-
network' are while a Customer is away for his /her personal work
13. Vehicle Branding:
Ola Sticker, if any, on the Vehicle Should not be removed till Vehicle
is active on the Platform.
14.Rude behavior with female customer:
Driver Shall not under any circumstance argue with the customer
etc.,
15. Mobile Phone usage;
Driver shall no use the mobile Phone while driving with Exception to
the calls from OLA representatives and Customer.
16. Reporting to OLA:
Driver shall not lie about Vehicle's position to the OLA
representative. Driver shall not report meter readings incorrectly.
Driver shall provide opening and closing readings of the odometer on
time as and when such reading is required to be provided by the Ola
representatives.
17. Rash Driving:
Driver shall not exceed the speed limit of:
(i) 50 Kms per hour within the city;
(ii) 60 Kms per hour on state highways; and
(iii) 80 Kms per hour on National highways.
If any other speed limits prescribed for any road which is lower than
the speed limits specified in (i), (ii) and (iii) above, the Driver shall
follow the said prescribed lower speed limits. Driver should not apply
sudden breaks and should not take sharp turns that may cause
inconvenience to the Customer. ''
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However the contract also includes a clause defining
its limited role as under;
16.2 Independent Contractor Status: The relationship created by
Driver T&C is that of independent contractors, and not partners,
franchisees or joint ventures. No employees, consultants, sub-
contractors or agents of one party is or will be deemed to be
employees, consultants, contractors or agents of the other party, nor
do they have any authority to bind the other party by contract or
otherwise to any obligation, except as expressly set forth herein. The
Driver shall not be deemed for any purpose to be an employee of
OLA or any of its Affiliates. OLA shall not be responsible to the Driver
or any governing body for any payroll-related taxes related to the
performance of Services hereunder, including but not limited to,
withholding or other taxes related to central or state income tax,
social security benefits or unemployment compensation.
48. Aforesaid terms and conditions as detailed in Exhibit-
B annexed to the Subscription Agreement governing relationship
between OLA and its Drivers elaborately set out management,
supervision and control which OLA has over the manner, method
and mode of rendering services by the driver and also the
consequence of breach of these terms by the driver. It covers
and restricts driver from having any option or liberty of
whatsoever in booking, deciding the route, having any
conversation or discussion with the user, to the extent restricting
his own mobile usage while rendering the service etc. Though
clauses in the nature of so called 'limited role of OLA' as sought
to be introduced including declaring the relationship/status of
93
OLA and the Driver as that of 'INDEPENDENT CONTRACTORS',
same in the considered opinion of this Court cannot take the
status of 'Driver' found in the Agreement away from the
definition of 'Employee' under PoSH Act, 2013. This is for the
reason that the said definition also includes employing some
one on CONTRACT BASIS, and/or a CONTRACT WORKER.
49. Clause V of the Agreement contains important aspect
of Agreement namely the `consideration' part and the
understanding regarding the revenue sharing which is as under:
V. Payment Terms
In consideration of OLA providing the Transport Service Provider's
and the Vehicle's information on the Portal, and for enabling the
Transport Service Provider to provide Transport Services through
Service Provider App on the Portal, various payments, more
particularly set out in the Commercial Terms Segment annexed
hereto as Exhibit C, between the Transport Service Provider and OLA
("Fees") shall be settled in the manner set out and paid in the
manner set out in the Commercial Terms Segment annexed hereto
as Exhibit C.
50. Thus payment of Fee to OLA is not just for hosting
information on its Portal but for enabling the service to be
provided through the service provider App on the Portal which
can be done only through the `Device' referred to above.
Exhibit-C of the Agreement referred to in the aforesaid clause
"Payment Issues" is extracted which read as under:
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EXHIBIT-C
COMMERCIAL TERMS SEGMENT
Details of the following commercial terms will be informed by Ola
from time to time:
Description of Commercial Terms
1. Transport Service Provider Device Model & Serial No.
2. Platform Subscription Fees for the use of OLA technology platform
(Rs.)
3. Incentives
4. Commission Payable to OLA (Percentage) [Ola Cabs]
5 Commission Payable to OLA (Percentage) for Ola Share Rides (if
applicable)
6. Security Deposit for OLA Device
Details:
To be informed by OLA from time to time.
Key Terms:
(i) All payments due to the Transport Service Provider shall be made
through NEFT/RTGS etc., as mutually agreed from time to time.
(ii) Incentive (if any) may be given to the Transport Service Provider
by OLA from time to time. The Incentives shall be determined after
taking into consideration all dues, fines, charges, interest, claims,
costs, expenses etc. For the sake of clarity, both the parties
acknowledge and agree that the foregoing amounts are only for
limited purposes of arriving at the value of Incentives.
(iii) You authorize OLA to make deductions from the Transport
Service Provider Proceeds which includes the following:
(a) Tax Deduction at Source (TDS) as per the Income Tax Act, 1961,
where applicable;
(b) service tax and other applicable taxes; and
(c) and any other amounts due and payable by the Transport Service
Provider to OLA as per applicable law.
(iv) The terms in this Commercial Terms Segment is subject to
change and will be communicated to the Transport Service Provider
via SMS/call to registered mobile number.
(v) The Transport Service Provider hereby agrees that discounts
given to the users of the Portal, if any, will be decided by OLA on a
case-to-case basis which shall be informed to the Transport Service
Provider by OLA, and the Fee finally appearing on the Device
configured by OLA for settlement between the Transport Service
Provider and OLA shall be final and binding on the Transport Service
Provider. The Transport Service Provider shall agree to the same
without demur or protest.
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(vi) OLA reserves the right to change the rates and payment terms
between the Transport Service Provider and OLA mentioned in the
Commercial Term Segment at any given point in time, which shall be
notified to the Transport Service Provider.
(vii) Notwithstanding anything contained in this Agreement, where
OLA has reason to believe that any charges/debits in respect of the
Fee have been fraudulently incurred ("Suspect Charge"), OLA will
always be entitled to deduct an amount equivalent to Suspect
Charge from the Subscription Amount or in the event of insufficient
Subscription Amount, OLA will be entitled to require the Transport
Service Provider to remit the Suspect Charge in cash with OLA.
(viii) Credit Limit: The Transport Service Provider shall be allowed an
amount of Rs. 2,000 as the Credit Limit for each vehicle registered
to operator on Ola platform. "Credit Limit" means allowable
outstanding receivables of OLA from the Transport Service Provider.
The Transport Service Provider shall ensure that the Credit Limit
shall not exceed Rs 2.000 at any point in time. However, OLA shall
at its sole discretion change the allowable Credit Limit for the
Transport Service Providers from time to time and shall notify the
same to the Transport Service provider.
(ix) OLA shall notify the Transport Service Provider as soon as the
Credit Limit is reached. Once, the Credit Limit exceeds the above
specified limit, the Account will become inactive without any further
notification. The Vehicle(s) will not be allotted any further bookings
till the Transport Service Provider pays the outstanding amount
exceeding the specified credit limit. The Transport Service Provider
can pay the outstanding amount via cash, cheque or NEFT.
(x) Settlement: Pursuant to any settlement ("Settlement") that the
Transport Service Provider is required to make with OLA, under the
terms of this Agreement and/or these the Transport Service Provider
T&C, whether for a breach of this Agreement and/or the Transport
Service Provider T&C or otherwise, OLA shall send a report of the
Settlement by short message service (SMS)/email/post, giving full
details of the amounts and reasons thereof, forming part of the
Settlement, to the Transport Service Provider. The Transport Service
Provider shall make payment of the amounts mentioned in the
Settlement to OLA within 7 (seven) days from the date of receipt of
such Settlement details. If the Transport Service Provider fails or
refuses to make payment in respect of such Settlement within such
seven 7 (seven) days, OLA shall have the right thereafter without
any reference to the Transport Service Provider, to deduct the
amounts mentioned in the Settlement details from the Subscription
Amount. If the Subscription Amount is insufficient to meet the
Settlement amount, then the balance shall be recoverable forthwith
from the Transport Service Provider by OLA".
51. Bare perusal of the above commercial terms indicate
that whole and entire control of revenue being generated from
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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. One
important aspect of this segment requiring highlight is payment
of incentives by OLA to the Transport Service Provider, yet
again at the sole discretion of OLA.
52. The aforesaid `commercial term segment' which is
integral and essential part of the subscription agreement makes
it abundantly clear that the service offered by the respondent
No.2 and the arrangement arrived at between the respondent
No.2 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 entire business. The clause providing for payment
of incentives over and above the charges payable as agreed
hereinabove further establish beyond any doubt that OLA has
97
indeed employed the transport service provider/ driver-
subscriber for its commercial activity.
53. Having agreed and provided in the agreement as
above, following clause defining the inter se relationship of the
Parties, which is heavily relied upon by ICC and OLA in their
defence requires to be taken note of, which is as under;
XIII. Relationship between Parties
i. During the Term of this Agreement, the Transport Service Provider
shall operate as and have the status of an independent contractor
and shall not act as, be or construed to be an agent or employee of
OLA. The relationship between the Parties is on a principal-to-
principal basis, and none of the provisions of this Agreement shall be
interpreted as creating the relationship of employer and employee
between the Transport Service Provider and OLA at any time, under
any circumstances or for any purpose. Therefore, the Transport
Service Provider will not be entitled to any employee benefits,
statutory or otherwise, offered by OLA to its employees including but
not limited to wages, vacation pay, sick leave, retirement benefits,
social security, worker's compensation, health or disability benefits,
or employee benefits of any kind. The Transport Service Provider
shall be responsible for the payment of all applicable taxes to which
he may be subject as an independent contractor.
ii. The Transport Service Provider agrees not to assume or create
any obligation or responsibility, express or implied, on behalf of or in
the name of OLA. The Transport Service Provider does not have the
authority to create, modify or terminate a contractual relationship(s)
between OLA and any third party or act for or bind OLA in any
respect. Any act of the Transport, Service Provider on behalf of OLA
which may be regarded as over and above the duties and
responsibilities as provided in this Agreement, shall be deemed to be
unauthorized, unlawful and the Transport Service Provider shall be
personally liable for the same.
54. The above clause though attempts to describe
Transfer Service Provider as an Independent Contractor, he
hardly has any independent discretion in the matter once he
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subscribes to the terms of the Subscription Agreement. In any
event the said clause cannot be read in isolation to the other
clauses and terms of Agreement to construe lack of relationship
of `employer and employee' or OLA not having any control over
the business as sought to be made out by ICC and OLA.
55. 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'.
56. Yet another important aspect of the matter at hand is
that the vehicle in question involved in the incident bearing
registration No.KA 53 C 9192 admittedly belongs to `OLA Fleet
Technologies Private Ltd, an admitted subsidiary of OLA. A
letter correspondence which is produced by respondent No.1 at
Annexure-R-4 reads as under:
99
OLA
Date: 26.08.2017
To,
The Station House Officer,
Cubbon Park Police Station,
Bangalore.
Dear Sir,
Subject: Details with reference to the vehicle number
KA53C9192 in reference of FIR number 157/2018,
We would like to bring in your kind notice
that, at the outset the cab bearing number
KA53C9192 is originally owned by OLA Fleet
Technologies Pvt. Ltd..
Further, by the virtue of the said ownership,
the OLA Fleet Technologies Pvt. Ltd have leased out
the cab bearing number KA53C9192 to one Mr.
Deepak Garg on 01.07.2018 vide a lease agreement
and introduced the driver Mr. Dev Samoliya. The
lessee of the cab is independent and to abide by
certain terms and conditions to use company cabs
and the execution of the work according to his or
her/lessee's own processes and methods; the lessee
is not subject to another control. Further, the lessee
has subscribe ANI Technologies Pvt. Ltd. (Ola cabs)
software in order to accept booking request form
Ola's rider/customer. The cab is question was leased
the lessee and the company has no liabilities on
lessee's act.
As per the process, we have also obtained the
driving license of the said Mr. Deeps along with all
other required documents.
Details of Mr. Deepak Garg
Lease Mr. Deepak Garg
holder
name
Address #36, Room No.306, Narendra Comfort Pg,
Vaibhavi complex, N.S. Palya, 4th Main, BTM
2nd Stage, Bannerghatta Road Bangalore,
Bangalore - 560 076.
Mobile 9731242819
number
Details of Mr. Dev Samoliya
Driver name Mr. Dev Samoliya
100
Address #3, Electronic city Main Road,
Bettadasanapura, Begur Hobli,
Bangalore South, Bangalore - 560
068
Mobile number 8105286684
Kindly find the below given attachment for your
further assistance.
a) ANNEXURE A-Driving license of lessee with license
bearing number MP0720080105538.
b) ANNEXURE B-Aadhar card of lessee with Aadhar
bearing number 3577 3177 9083.
c) ANNEXURE C-Driving license of driver with license
bearing number MP0720140000135.
d) ANNEXURE D-Aadhar card of driver with Aadhar
bearing number 4650 6205 3756.
e) ANNEXURE E-RC of the vehicle bearing number
KA53C9192
Please allow us to assist you with any further
information as you may require in respect of the
alleged offence.
Thanking you,
Sd/-
Iktear Uddin Anik
Associate Director &
Head-Law Enforcement and Compliances
OLACABS
57. In view of this admitted position the averments made
in the statement of objections filed by ICC and OLA that the taxi
in question was hired by the Driver through a third party is
incorrect. Nothing prevented the ICC and OLA to disclose its
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business relation with OLA FLEET TECHNOLOGIES PVT LTD,
which owned the vehicle.
58. Term ' Employee' defined under the PoSH Act, 2013
has a specific object to achieve. It is with this intent and purpose
seek to cover every kind of relationship which the employer has
with another in connection to his/its business activities. Thus in
the light of the aforesaid clauses of the Subscription Agreement
and the admitted position of the fact that the vehicle which was
used at the time of incident was belonging to the group
companies of the OLA, this Court is 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.
59. Relevant here to refer a few case laws rendered by the
Apex Court interpreting the terms 'Employee' and 'Workman' by
applying various tests, under some of the labour law statutes.
In the case of Silver Jubilee Tailoring House and others Vs
Chief Inspector of Shops and Establishments and anr
reported in (1974) 3 SCC 498 referring to its various earlier
judgments in the case of Dhrangadhara Chemicals Works Ltd.,
Vs State of Saurashtra (1957) SCR 152, Birdhichand Sharma Vs
102
I Civil Judge, Nagpur and others (1964) 3 SCR D.C.Diwan
Mohinuddin Saheb and sons Vs industrial Tribunal, Madras
(1964) 7 SCR, Shankar Balaji Waje Vs State of Maharashtra
(1962) Supp 1 SCR 249 etc. at paragraphs 27, 28, 29, 30, 32
to 37 has held as under:
"27. It is, therefore, not surprising that in recent years the control test
as traditionally formulated has not been treated as an exclusive test.
28. It is exceedingly doubtful today whether the search for a formula
in the nature of a single test to tell a contract of service from a
contract for service will serve any useful purpose. The most that
profitably can be done is to examine all the factors that have been
referred to in the cases on the topic. Clearly, not all of these factors
would be relevant in all these cases or have the same weight in all
cases. It is equally clear that no magic formula can be propounded,
which factors should in any case be treated as determining ones. The
plain fact is that in a large number of cases, the Court can only
perform a balancing operation weighing up the factors which point in
one direction and balancing them against those pointing in the
opposite direction.
29. During the last two decades the emphasis in the field has shifted
and no longer rests so strongly upon the question of control. Control is
obviously an important factor and in many cases it may still be the
decisive factor. But it is wrong to say that in every case it is decisive.
It is now no more than a factor, although an important one.
30. The fact that generally the workers attend the shop which belongs
to the employer and work there, on the machines, also belonging to
him, is a relevant factor. When the services are performed generally in
the employer's premises, this is some indication that the contract is a
contract of service. It is possible that this is another facet of the
incidental feature of employment. This is the sort of situation in which
a court may well feel inclined to apply the 'organisation' test suggested
by Denning, L.J. in Stevenson Jordan and Harrison v. Macdonald and
Evans.
32. That the workers work on the machines supplied by the proprietor
of the shop is an important consideration in determining the nature of
the relationship. If the employer provides the equipment, this is some
indication that the contract is a contract of service, whereas if the
other party provides the equipment, this is some evidence that he is
an independent contractor. It seems that this is not based on the
theory that if the employer provides the equipment he retains some
greater degree of control, for, as already seen, where the control
arises only from the need to protect one's own property, little
significance can attach to the power of control for this purpose. It
103
seems, therefore, that the importance of the provision of equipment
lies in the simple fact that, in most circumstances, where a person
hires out a piece of work to an independent contractor, he expects the
contractor to provide all the necessary tools and equipment, whereas if
he employs a servant he expect to provide them himself. It follows
from this that no sensible inference can be drawn from this factor in
circumstances where it is customary for servants to provide their own
equipment. (15)
33. Section 220(2) of the American Restatement, Agency 2d. includes
among the relevant factors:
"(e) Whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person doing the
work."
The comment on the first part of this paragraph is in these words:
["Ownership of instrumentalities. The ownership of the
instrumentalities and tools used in the work is of importance. The fact
that a worker supplies his own tools is some evidence that he is not a
servant. On the other hand, if the worker is using his employer's tools
or instrumentalities, especially if they are of substantial value, it is
normally understood that he will follow the directions of the owner in
their use, and this indicates that the owner is a master. This fact is,
however, only of evidential value."]
It might be that little weight can today be put upon the provisions of
tools of minor character as opposed to plant and equipment on a large
scale. But so far as tailoring is concerned, I think the fact that sewing
machines on which the workers do the work generally belong to the
employer is an important consideration for deciding that the
relationship is that of master and servant.
34. Quite apart from all these circumstances, as the employer has the
right to reject the end product if it does not conform to the instruction
of the employer and direct the worker to restitch it, the element of
control and supervision as formulated in the decisions of this Court is
also present.
35. The reputation of a tailoring establishment depends not only on
the cutter but also upon the tailors. In a many cases, stitching is a
delicate operation when the cloth upon which it is to be carried on is
expensive. The defect in stitching might mar the appearance not only
of the garment but also of its wearer. So when the tailor returns a
garment, the proprietor has got to inspect it to see that it is perfect.
He has to keep his customers pleased and he has also to be punctual,
which means that the stitching must be done according to the
instruction of the employer and within the time specified. The degree
of control and supervision would be different in different types of
business. If an ultimate authority over the worker in the performance
of his work resided in the employer so that he was subject to the
latter's direction, that would be sufficient. In Humberstone v. Norther
Timber Mills (16), Dixon, J. said:
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"The question is not whether in practice the work was in fact done
subject to a direction and control exercised by an actual supervision or
whether an actual supervision was possible but whether ultimate
authority over the man in the performance of his work resided in the
employer so that he was subject to the latter's order and directions."
36. That some of the employees take up the work from other tailoring
establishments and do that work also in the shop in which they
generally attend for work, as spoken to by the proprietor in his
evidence, would not in any way militate against their being employees
of the proprietor of the shop where they attend for work. A person can
be a servant of more than one employer. A servant need not be under
the exclusive control of one master. He can be employed under more
than one employer.
37. That the workers are not obliged to work for the whole day in the
shop is not very material. There is of course no reason why a person
who is only employed part time, should not be a servant and it is
doubtful whether regular part time service can be considered even
prima facie to suggest anything other than a contract of service.
According to the definition in Section 2(14) of the Act, even if a person
is not wholly employed, if he is principally employed in connection with
the business of the shop, he will be a 'person employed within the
meaning of the sub-section. Therefore, even if he accepts some work
from other tailoring establishments or does not work whole time in a
particular establishment, that would not in any way derogate from his
being employed in the shop where he is principally employed".
60. In the case of Royal Talkies Hyderabad and
others Vs Employees State Insurance Corporation
reported in (1978) 4 SCC 204 while dealing with the definition
of "employee" provided under the Employees State Insurance
Act 1948 Apex Court at paragraphs 11 to 18 has further
elaborated the process of the term "employed" which is
extracted here under:
11. Before us counsel have mainly focussed on the definition of
"employee" since the short proposition which creates or absolves
liability of the appellants depends on the canteen workers and the
cycle stand attendants being 'employees' vis-a-vis the theatre owners.
There is no doubt that a cinema theatre is an 'establishment' and that
105
the appellants, as theatre owners, are principal employers, being
persons responsible for the supervision and control of the
establishment. Admittedly, the canteens and cycle stands are within
the theatre premises. Within this factual matrix let us see if the
definition in S. 2(9) will fit.
12. We may read the definition of "employee" once again before
analysing the components thereof - 2(9) "employee" means any
person employed for wages in or in connection with the work of a
factory or establishment to which this Act applies, and
(i) who is directly employed by the principal employer or any work of,
or incidental or preliminary to or connected with the work, of the
factory or establishment, whether such work is done by the employee
in the factory or establishment or elsewhere; or
(ii) who is employed by or through an immediate employer on the
premises of the factory of establishment or under the supervision of
the principal employer or his agent on work which is ordinarily part of
the work of the factory or establishment or which is preliminary to the
work carried on in or incidental to the purpose of the factory or
establishment, or
(iii)whose services are temporarily lent or let on hire to the principal
employer by the person with whom the person whose services are so
lent or let on hire has entered into a contract of service; and includes
any person employed for wages on any work connected with the
administration of the factory or establishment or any part, department
or branch thereof or with the purchase of raw materials for, or the
distribution or sale of the products of, the factory or establishment;
but does not include:-
(a) any member of the Indian naval, military or air forces;
or
(b) any person so employed whose wages (excluding
remuneration for overtimes work) exceed five hundred
rupees a month:-
Provided that an employee whose wages (excluding remuneration for
overtime work) exceed five-hundred rupees a month at any time after
and not before, the beginning of the contribution period, shall continue
to be an employee until the end of that period.
13. The reach and range of the definition is apparently wide and
deliberately transcends pure contractual relationships. We are in the
field of labour jurisprudence, welfare legislation and statutory
construction which must have due regard to Part IV of the
Constitution. A teleological approach and social perspective must play
upon the interpretative process.
14. Now here is a break-up of Sec. 2(9). The clause contains two
substantive parts. Unless the person employed qualifies under both he
is not an 'employee'. Firstly he must be employed "in or in connection
with the work of an establishment. The expression "in connection with
the work of an establishment" ropes in a wide variety of workmen who
may not be employed in the establishment but may be engaged only
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in connection with the work of the establishment. Some nexus must
exist between the establishment and the work of the employee but it
may be a loose connection. 'in connection with the work of an
establishment' only postulates some connection between what the
employee does and the work of the establishment. He may not do
anything directly for the establishment; he may not do anything
statutorily obligatory in the establishment; he may not even do any
thing which is primary or necessary for the survival or smooth running
of the establishment or integral to the adventure. It is enough if the
employee does some work which is ancillary, incidental or has
relevance to or link with the object of the establishment. Surely, an
amenity or facility for the customers who frequent the establishment
has connection with the work of the establishment. The question is not
whether without that amenity or facility the establishment cannot be
carried on but whether such amenity or facility, even peripheral may
be, has not a link with the establishment. Illustrations may not be
exhaustive but may be informative. Taking the present case, an
establishment like a cinema theatre is not bound to run a canteen or
keep a cycle stand (in Andhra Pradesh) but no one will deny that a can
teen service, a toilet service, a car park or cycle stand, a booth foresail
of catchy film literature on actors, song hits and the like, surely have
connection with the cinema theatre and even further the venture.
On the other hand, a book-stall where scientific works or tools are A
sold or stall where religious propaganda is done, may not have
anything to do with the cinema establishment and may, therefore, be
excluded on the score that the employees do not do any work in
connection with the establishment, that is, the theatre. In the case of
a five- star hotel, for instance, a barber shop or an arcade, massage
parlour, foreign exchange counter or tourist assistance counter may
be run by some one other than the owner of the establishment but
the employees so engaged do work in connection With the
establishment or the hotel even though there is no obligation for a
hotel to, maintain such an ancillary attraction. By contrast, not a
lawyer's chamber or architect's consultancy. Nor indeed, is it a legal
ingredient that such adjunct should be exclusively for the
establishment, if it is mainly its ancillary.
15. The primary test in the substantive clause being thus wide, the
employees of the canteen and the cycle stand may be correctly
described as employed in connection with the work of the
establishment. A narrower construction may be possible but a larger
ambit is clearly imported by a purpose-oriented interpretation. The
whole goal of the statute is to make the principal employer primarily
liable for the insurance of kindred kinds of employees on the
premises, whether they are there in the work or are merely in
connection with the work of the establishment.
16. Merely being employed in connection with the work of an
establishment, in itself, does not entitle a person to be 'employee'. He
must not only be employed in connection with the work of the
establishment but also be shown to be employed in one or other of
the three categories mentioned in Sec. 2(9).
17. Sec. 2(9) (i) covers only employees who are directly employed by
the principal employer. Even here, there are expressions which take
107
in a wider group of employees than traditionally so regarded, but it is
imperative that any employee who is not directly employed by the
principal employer cannot be eligible under Sec. 2'(9) (i) . In the
present case, the employees concerned are admittedly not directly
employed by the cinema proprietors.
18. Therefore, we move down to Sec. 2(9) (ii). Here again, the
language used is extensive and diffusive imaginatively embracing all
Possible alternatives of employment by or through all independent
employer. In such cases, the 'principal employer' has no direct
employment relationship since the 'immediate employer' of the
employee, concerned is some one else. Even so, such an employee, if
he works (a) on the premises of the establishment, or (b) under the
supervision of the Principal employer or his agent '`on work which is
ordinarily part of the work of the establishment or which is
preliminary to the work carried on in or incidental to the purpose of
the establishment", qualifies under Sec. 2(9) (ii). The plurality of
persons engaged in various activities who are brought into the
definitional net is wide and considerable; and all that is necessary is
that the employee be on the premises or be under the supervision of
the principal employer or his agent. Assuming that the last part of
Sec. 2(9) (ii) qualifies both these categories, all that is needed to
satisfy that requirement is that the work done by the employee must
be (a) such as is ordinarily (not necessarily nor statutorily) part of the
work of the establishment, or
(b) which is merely preliminary to the work carried on in the
establishment, or (c) is just incidental to the purpose of the
establishment. No one can seriously say that a canteen or cycle stand
or cinema magazine booth is not even incidental to the purpose of the
theatre. The cinema goers ordinarily find such work an advantage, a
facility an amenity and some times a necessity. All that the statute
requires is that the work should not be irrelevant to the purpose of
the establishment. It is sufficient if it is incidental to it. A thing is
incidental to another if it merely appertains to something else as
primary. Surely, such work should not be extraneous or contrary to
the purpose of the establishment but need not be integral to it either.
Much depends on time and place, habits and appetites, ordinary
expectations and social circumstances. In our view, clearly the two
operations in the present case, namely, keeping a cycle stand and
running canteen are incidental or adjuncts to the primary purpose of
the theatre."
61. Even in the instant case as noted above, OLA Device
is supplied by OLA. Even the non-OLA device has to be to its
specification. Installation of such device and its maintenance by
driver-subscriber is in furtherance to the business activities of
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the OLA. OLA has retained its power and control with regard to
information regarding name, contact details, intended
destination of the passenger. It has retained power to
negotiate the fares. It is only the OLA which has the discretion
to allot the bookings for the customers or to the drivers and the
drivers have no choice either in choosing the customer, their
location or the fares payable. The driver is required to
complete all bookings allotted by OLA. They are prohibited
from cancelling the booking allotted to them except under such
circumstances based on explanation. If the cancellation is
without explanation OLA would withhold part or the entire
proceeds payable to the driver. The driver is also required to
notify OLA in the event of he deviating or changing the routes.
The driver is required to keep the OLA device in the switch on
mode while performing the services of OLA at all times. That
apart from these aspects of the agreement providing control of
manner of rendering service, the OLA has also mandated speed
at which the vehicle should be driven by the driver.
62. The Judgment relied upon in the case of Indian
Overseas Bank (supra) was with respect to claim of certain
109
persons who were rendering their service as `Jewel appraisers
for loans' in its branches at different States claiming their rights
as part time workers. The Apex Court at paragraph 17 while
taking note of the principles laid down in its earlier Judgments
has in fact observed that "where the contractors were
substantially responsible for the main and sole business, they
would be treated as Workers" and further at paragraph 18 while
listing out the distinctions between `Jewel appraisers' and
`regular employees' of the bank has held that they were not
the employees of the bank. Judgments in the case of Shankar
Balaji Waje and Silver Jubilee Tailoring house and others
lay down the principle which supports the case of the petitioner
as noted hereinabove.
63. Thus from the analysis of terms of the Subscription
Agreement which is admittedly entered into between OLA and
Transport Service Provider and the driver- subscriber read in
the light of the enunciation of law by the Apex Court as
extracted hereinabove it is clear that the definition of term
`employee' provided under section 2(f) of PoSH Act, 2013
embraces all possible connection which employer would have
110
with the employee. In the instant case the components of the
definition `employee' which is encapsulated hereinabove leaves
no doubt that the driver-subscriber is 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 the
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.
Position of International Law on the subject:
64. Learned counsel for the petitioner has placed reliance
on some of the decisions rendered by the Courts at United
Kingdom, State of California and France. In that, Supreme
Court of United Kingdom in an identical fact situation of the
matter in the case of Uber BV and others Vs Aslam and
others reported in (2021) UKSC5 involving a question as to
whether employment status of people who work on contract
basis would qualify for the national minimum wages, paid
111
annual leave, and other workers right, and while considering
the contention of Uber that the drivers do not have these rights
because they work for themselves as independent contractors
performing services under contracts made with the passengers
through Uber as the booking agent (as contended in the instant
case by ICC and OLA), on analysing the terms of agreement
that was entered into between the Uber and the drivers
thereunder has held that the services offered by the drivers
were controlled and defined by the Uber and that the drivers
would therefore qualify as workers employed by Uber.
65. Similar conclusion has been arrived at by the
Commissioner of State of California in Barbara Berwick
Vs Uber technologies case No.11-46739 EX. wherein it has
been held that a driver would qualify as an employee under
Uber. This conclusion has been arrived at by the Labour
Commissioner on the basis of the terms of the agreement under
which Uber retains power to monitor and control the services
offered by its driver and also has retained power to terminate
the driver's access to platform if the driver's customer rating fell
below certain level.
112
66. In another matter in the case of Uber France Vs
Mr.A.X Court of Cassation in France case
No.ECLI:FR:CCAS:2020:SO 00374 has held drivers using Uber
platform are the employees of Uber. The Court arrived at such
conclusion based on the relationship that existed between Uber
and its drivers due to the fact that the terms and conditions
governing the arrangement placed the driver in a permanent
legal subordination to the Uber.
Contract which is entered between OLA and its
customers like that of the petitioner:
67. Learned counsel for the petitioner furnished a copy of
Terms and Conditions (OLAcabs India) which is admittedly
updated by OLA on its website effective from 08.11.2022.
These electronically generated terms and conditions are
required to be accepted by any person intending to use OLA
services by clicking `I ACCEPT' button or by using OLA services
indicating acknowledgement and consent to use the OLA
services which would then form into a binding agreement
between the OLA and the user. The relevant portion of the said
agreement are extracted hereunder to analyse the extent of
113
management, supervision, control and involvement of the OLA
in the process of providing its services:
Terms and Conditions (Olacabs India)
OLA/ ANI Technologies Private Limited/ Ola Cabs
Updated effective from 08th November, 2022
This Site/ Application/ Services is/are operated /provided by ANI
Technologies Private Limited ("Ola").
These terms and conditions ("User Terms") apply to Your visit to and use
of the Site whether through a computer or a mobile phone, the Service
and the Application, as well as to all information, recommendations and
or services provided to You on or through the Site, and the Application.
This document is an electronic record in terms of Information
Technology Act, 2000 and rules thereunder as applicable and the
provisions pertaining to electronic records in various statutes as
amended by the Information Technology Act, 2000. This electronic
record is generated by a computer system and does not require any
physical or digital signatures.
By clicking on the "I ACCEPT" button or by using Ola's services, You are
acknowledging and consenting to be bound by these User Terms.
PLEASE ENSURE THAT YOU READ AND UNDERSTAND ALL THESE USER
TERMS BEFORE YOU USE THE SITE. If You do not wish to accept any of
the User Terms, then please do not use the Site or avail any of the
services being provided therein. YOUR AGREEMENT TO THESE USER
TERMS SHALL OPERATE AS A BINDING AGREEMENT BETWEEN YOU AND
OLA IN RESPECT OF THE USE AND SERVICES OF THE SITE. Your access
and use of the Services constitutes your agreement to be bound by
these Terms, which establishes a contractual relationship between you
and OLA. These Terms expressly supersede prior agreements or
arrangements with you. OLA may immediately terminate these Terms or
any Services with respect to you, or generally cease offering or deny
access to the Services or any portion thereof, at any time for any
reason. Supplemental terms may apply to certain Services, such as
policies for a particular event, activity or promotion, and such
supplemental terms will be disclosed to you in connection with the
applicable Services. Supplemental terms are in addition to, and shall be
deemed a part of, the Terms for the purposes of the applicable Services.
Your acceptance of the User Terms shall be deemed to include your
acceptance of the privacy policy available
at https://www.olacabs.com/info/faqs/#privacyPolicy. By accepting
these User Terms, You also allow Ola to send you promotional emails
and SMS alerts from time to time.
IT IS HEREBY EXPRESSLY CLARIFIED THAT THESE USER TERMS WILL
NOT APPLY TO CORPORATE ENTITIES WHO ARE GOVERNED BY THE OLA
CORPORATE TERMS OF USE. HOWEVER, ALL AUTHORIZED USERS
TAKING 'OLA CORPORATE RIDES' I.E., FOR CUSTOMERS WHO ARE
114
AVAILING RIDES UNDER THE DIRECT ARRANGEMENTS BETWEEN
CORPORATE ENTITIES AND OLA SHALL ALSO BE GOVERNED BY THESE
USER TERMS.
1. DEFINITIONS
All of the defined and capitalized terms in these User Terms will have the
meaning assigned to them here below:
(i) "Account" shall mean the account created by the Customer on the
Application for availing the Services provided by Ola.
(ii) "Additional Fee" shall mean any toll, duty, inter-state taxes, etc. that
may have been incurred in providing the Services and payable to any
third party/ government authorities for undertaking the Ride under
Applicable Law.
(iv) "Application" shall mean the mobile application "Ola Cabs" updated
by Ola from time to time.
(v) "Convenience Fee"/" Access Fee" shall mean the fee payable by the
Customer to Ola for the Service i.e., for availing value added services
including but not limited to technology services, door to door service,
customer support and cashless payment options. Convenience Fee may
also include any such fee that may be charged by third parties towards
providing access to a particular location such as airports, railway stations
etc.
(vi) "Cancellation Fee" shall mean a fee payable by You, towards
cancellation of a Ride or a booking as detailed in Clause 7 of these User
Terms and the Cancellation policy.
(viii) "Customer/ You" means a person who has an Account on the
Application.
(ix) "Driver" shall mean and include such individuals as may be
evaluated, appointed and trained by an operator associated with us to
provide the transportation services and persons who are registered with
Ola and own such Vehicles with necessary city taxi permits and other
applicable transport vehicle permits and licenses to provide
transportation services within the City of Operation.
(x) "E-Wallet" shall mean a pre-paid instrument, which can be used to
make payments.
(xi) "Fare" shall mean such amount payable by You in Indian Rupees,
which is reflected on the Application, as the fare payable towards the
distance traveled and time taken for the specific Ride. Fare may depend
on several factors such as the availability of the Driver(s) on the
platform at the time, city and may also reflect the fares that may have
been stipulated by the respective Governments from time to time. It
may include components to reflect any promotions carried out by Ola.
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(xii) "Force Majeure Event" shall mean any event arising due to any
cause beyond the reasonable control of Ola.
(xiii) "Ola" or "us" or "we" or "our" shall mean ANI Technologies Private
Limited, a company incorporated under the provisions of the Companies
Act, 1956 and having its registered office at Regent Insignia, #414, 3rd
Floor, 4th Block, 17th Main, 100 Feet Road, Koramangala, Bangalore -
560 034 India, which expression shall, unless it be repugnant to the
context or meaning thereof, be deemed to mean and include all its
successors, affiliates and permitted assigns.
(xiv) "Registration Data" shall mean and may include the present, valid,
true and accurate name, email ID, phone number and such other
information as may be required by Ola from the Customer from time to
time for registration on the Application.
(xv) "Ride" shall mean the travel in the Vehicle by the Customer
facilitated through the Site.
(xvi) "Service(s)" means the facilitation of the services by Ola through
the Application or via a telephone request at the call centre of Ola, or
booking on the Site.
(xviii) "Substitute Vehicle" shall mean another vehicle arranged for
transporting the Customers to his/her destination, in the event of a
Vehicle breakdown.
(xix) "Peak charge" shall mean additional charge applied in the situation
where the demand is more than the available supply.
(xx) "Total Ride Fee" may comprise one or more of the following
components that shall be levied to the ride based on various parameters
including but not limited to distance travelled, time taken for the ride,
city in which the ride is hailed, time of the day, availability of drivers
nearby -
• Minimum fare
• Base fare
• Per kilometer fare (based on the total distance of the ride)
• Per minute charges (based on the time taken to complete the ride)
• Pre-wait charges (if any)
• Third party charges like insurance premium (if applicable)
• peak charges (when applicable)*
• Past dues (if any); and
• Applicable taxes.
*Both fares and peak charges may vary on the basis of various market
dynamics such as cost of living, fuel pricing, vehicle maintenance costs,
interest rates, demand and supply situation, etc
116
3. REGISTRATION AND ACCOUNT
3.1 You understand and acknowledge that You can register on the Site
only after complying with the requirements of this Clause 3 and by
entering Your Registration Data.
3.2 You shall ensure that the Registration Data provided by You is
accurate, complete, valid, true and is updated from time to time. We
shall bear no liability for false, incomplete, old or incorrect Registration
Data provided by You.
3.3 You are solely responsible for maintaining the confidentiality of Your
Registration Data and will be liable for all activities and transactions that
occur through Your Account, whether initiated by You or any third party.
Your Account cannot be transferred, assigned or sold to a third party.
We shall not be liable for any loss that You may incur as a result of
someone else using Your password or Account, either with or without
Your knowledge.
3.4 We reserve the right to suspend or terminate Your Account with
immediate effect and for an indefinite period, if We have a reason to
believe that the Registration Data or any other data provided by You is
incorrect or false, or that the security of Your Account has been
compromised in any way, or for any other reason We may find just or
equitable.
3.5 Except for the Registration Data or any other data submitted by You
during the use of any other service offered through Site ("Permitted
Information"), Ola does not want You to, and You should not, send any
confidential or proprietary information to Ola on the Site or otherwise,
unless otherwise is required by Applicable Laws. In accepting these User
Terms You agree that any information or materials that You or
individuals acting on Your behalf provide to Ola other than the Permitted
Information will not be considered confidential or proprietary.
4. SERVICES
The Services constitute a technology platform that enables users of
OLA's mobile applications or websites provided as part of the Services
(each, an "Application") to arrange and schedule transportation and/or
logistics services with independent third party providers of such services,
including independent third party transportation providers and
independent third party logistics providers under agreement with OLA
("Third Party Providers"). YOU ACKNOWLEDGE THAT OLA DOES NOT
PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS
A TRANSPORTATION CARRIER AND THAT ALL SUCH TRANSPORTATION
OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD
PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY OLA OR ANY OF ITS
AFFILIATES.
4.1. The Services allows You to send a request through Ola to a Driver
on the Ola network. The Driver has sole and complete discretion to
accept or reject each request for Service. If the Driver accepts a request,
117
Ola notifies You and provides information regarding the Driver-including
Driver name, Vehicle license number, telephone contact details of the
Driver and such other details as Ola may determine.
4.2. Ola shall procure reasonable efforts to bring You into contact with a
Driver, subject to the availability of Driver in or around Your location at
the moment of Your request for such services.
4.3. By using the Application or the Service, You further agree that: (i)
You will only use the Service or download the Application for Your sole,
personal use and will not resell or assign it to a third party; (ii) You will
not use an account that is subject to any rights of a person other than
You without appropriate authorization; (iii) You will not use the Service
or Site for unlawful purposes; (iv) You will not try to harm the Service,
Site or our network in any way whatsoever; (v) You will provide Ola with
such information and documents which Ola may reasonably request; (vi)
You will only use an authorized network to avail the Service; (vii) You
are aware that when requesting Services, whether by message, via Site
or calling the call center of Ola, standard messaging charges, data
charges, voice charges, as applicable, of the Your and Our phone
network service providers, will apply: (viii) You will comply with all
Applicable Law from Your country of domicile and residence and the
country, state and/or city in which You are present while using the Site
or Service; and (ix) You are aware of and shall comply with the
Information Technology Act, 2000 and the rules, regulations and
guidelines noted thereunder.
4.4. Ola reserves the right to immediately terminate the Service and the
use of the Application in the event of non-compliance with any of the
above requirements. Further, Ola will store the information provided by
You or record your calls for contacting You for all Service related
matters. You shall promptly inform Ola on any change in the information
provided by You.
4.5. Ola or an authorized representative of Ola, shall provide information
regarding services, discounts and promotions provided by Ola or a TPSP
to You on the Ola App or by way of an SMS or email to Your registered
mobile number/registered email ID. You also have the option to
discontinue receiving such information at any point of time. To
discontinue receiving such information, You may at any point of time
visit the specific link provided in the Site to discontinue the same.
4.6. OLA WILL BE ENTITLED TO PROCESS AND TRANSFER YOUR
INFORMATION AS AND WHEN IT DEEMS FIT AND IT MAY STORE OR
TRANSFER YOUR INFORMATION IN A SERVER OUTSIDE INDIA OR THE
COUNTRY WHERE YOU ARE LOCATED IN ORDER TO PERFORM OLA'S
OBLIGATIONS UNDER THESE CUSTOMER T&C.
4.7. You agree to grant Ola a non-exclusive, worldwide, perpetual,
irrevocable, royalty free, sub-licensable (through multiple tiers) right to
exercise the copyright, publicity, database rights or any other rights You
have in your information, in any media now known or not currently
known, with respect to Your information. YOU AGREE AND PERMIT OLA
TO SHARE YOUR INFORMATION AND/OR PERMITTED INFORMATION,
WITH THIRD PARTIES.
118
4.8. You agree and permit Ola to share any information provided by You
with third parties in order to facilitate provision of certain value-added
services offered by such third parties to You and/or to provide certain
value-added services to You by Ola. You hereby expressly consent to
receive communications from Ola/ third parties offering value-added
services to You through Your registered phone number and/or e-mail id
and/or the Site. You agree that
You will not hold Ola responsible for any such communications received
from third parties, nor will any such communication amount to spam,
unsolicited communication or a violation of Your registration on the
national do not call registry.
4.9. Ola will be entitled to enter into any tie-up in terms of joint-venture
or otherwise with any other institution engaged in the business of
providing services analogous and/or similar to those herein contained. In
such case, depending upon the modality and the mechanism as may be
devised, You will be provided with the services by Ola jointly and/or
severally with the party/ies in joint venture. You hereby give Your
irrevocable consent and permission to such a tie-up. In the event of such
a tie-up, the terms and conditions herein contained will. mutatis
mutandis, become applicable in respect of such tie-up arrangement also.
4.10. In the event Ola provides You any device as a part of the Services
including but not limited to OLA Play ("OLA Device"), You shall comply
with the following. 'OLA Play' means a connected car platform using
multiple devices in-car and cloud technology platform owned and
operated by Ola, which endeavours to provide an interactive experience
to You - (i) You shall not tamper, pilfer or misuse the OLA Device(s) or
allow, induce or assist a third party to indulge in such activity. (ii) You
shall not transcribe. distribute, download, store, duplicate and reproduce
the content forming part of the OLA Device(s) ("Content"), in whole or in
part, through any medium including, but not limited to, tape, disc, hard
disk, computer system, or other electronic recording or transmission
device. (iii) You shall not (i) license, sublicense, sell, resell, transfer,
assign, distribute or otherwise commercially exploit or make available to
any third party, in any way, the OLA Device(s) and/or any Content; (ii)
modify or make derivative works from the Content; (iii) create Internet
"links" to the Content or "frame" or "mirror" any Content on any other
server or wireless or internet based device; (iv) reverse engineer or
access the OLA Device(s) and/or Content in order to
(a) design or build a competitive product or service, (b) design or build a
product using similar ideas, features, functions or graphics of the OLA
Device(s) and/or Content, or (c) copy any ideas, features, functions or
graphics of the OLA Device(s) and/or Content, or (v) launch an
automated program or script, including, but not limited to, web spiders,
web crawlers, web robots, web ants, web indexers, bots, viruses or
worms, or any program which may make multiple server requests per
second, or unduly burdens or hinders the operation and/or performance
of the OLA Device and/or Content (iv) You shall not use the OLA
Device(s) for any illegal or unlawful purposes including but not limited to
playing / watching pornographic content on the OLA Device and shall use
the OLA Device(s) solely for purposes determined by Ola and strictly in
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accordance with these User Terms. You shall solely be responsible and
liable for any violations of law committed by You and misuse of the OLA
Device(s), if any, with the OLA Device(s). (v) You shall ensure that the
OLA Device(s) is maintained in Your possession in a proper manner. Ola
may, at its sole discretion, charge such amounts from You as may be
determined by Ola for use of the OLA Device(s) by You.
(vi) In the event the OLA Device(s) is not functioning properly or if there
is any technical or safety issue in relation to the OLA Device(s), You shall
immediately inform the Driver about any such issue. (vii) You shall use
the OLA Device(s) with due care and caution and not do anything or
permit anything to be done that may cause damage to the OLA
Device(s). If the OLA Device(s) is damaged and is not repairable due to
any act of You, You shall pay amounts to Ola, as may be determined by
Ola. If You fail or are unable to pay the amounts determined by Ola, Ola
shall be entitled to suspend / terminate Your Account with Ola without
prejudice to Ola's rights under these User Terms and under Applicable
Laws.
4.11. In the event Ola provides You any Vehicle for testing as a part of
the Services including but not limited to OLA CARS ("OLA CARS"), You
shall comply with the following: (i) You will ensure no damage is caused
to the Vehicle in the course of your use/ testing the same and the same
is returned in good condition; (ii) You agree that Ola can charge you for
any such damage caused to the Vehicle while being used by You; (iii)
You will not use the test Vehicle only for the purpose of testing and shall
not exceed the predetermined time/ distance.
4.12. In the event of breakdown of the Vehicle, which is beyond repair,
before completion of the Ride, Ola on a best effort basis and at its sole
discretion may arrange for a Substitute Vehicle for completion of Your
Ride to Your destination. However, the arrangement of Substitute
Vehicle shall be subject to its availability.
4.13. You acknowledge and agree that Substitute Vehicle may not be
necessarily of the same type as the original Vehicle booked by You from
the Site.
4.14. Ola bears no responsibility and liability for delays and losses
suffered by You or caused to You as a consequence of the breakdown of
the Vehicle or the Substitute Vehicle.
5. CONFIRMATION OF BOOKING
5.1. Ola shall, upon receiving the booking request from You in the
manner set out above, proceed to confirm or decline the booking based
on the availability of Vehicles at the pickup time and location, which shall
be informed to You vide the application or SMS or email. In the event
the booking is confirmed, You shall check the booking details including
but not limited to pick up time and pick up place, and if there is incorrect
detail, the same needs to be informed to us immediately by calling our
call center.
5.2. Upon confirmation of booking, a One Time Pin (OTP) shall be
provided on the Application which shall be further shared by the
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Customer with the Driver. In the event that the Customer does not
provide OTP to the Driver, Driver shall not be responsible for not starting
on the services.
5.3. You shall bear the consequences and damages for any delay that
may be caused to You due to Your failure to check the confirmation
message via the application, SMS or email or failure to inform Ola of the
incorrect details immediately.
5.4. Certain selective customers will be eligible to avail the Service
under a 'Guest Booking' feature, provided by Ola. Such customers will
also be bound by the terms and conditions set out herein.
6. PAYMENT
6.1. Ola shall provide an estimate of the Total Ride Fee to You at the
beginning of every Ride. Such an estimate provided by Ola shall be
subject to change on account of several factors and shall be different to
the actual Total Ride Fee levied at the end of ride. The Customer shall
pay the actual Total Ride fee shown at the end of the ride in accordance
with terms mentioned herein.
6.2. You understand and accept that the Total Ride Fee, including the
applicable taxes, shall be payable by You to Ola immediately upon
completion of the Ride. Any difference arising at the end of the ride from
the estimate shall be payable by You to Ola immediately upon
completion of the Ride.
Convenience Fee / Access Fee charged by Ola towards the value added
services provided by Ola, as part of the Ride or otherwise, shall be
determined and amended at the sole and absolute discretion of Ola.
6.3. You understand and agree to pay such Additional Fee, which will
form part of the receipt of the Total Ride Fee.
6.4. You shall be required to pay such Cancellation Fee in terms of
Clause 7, which will form part of the receipt of the Total Ride Fee.
6.5. Ola shall provide a receipt of the Total Ride Fee payable by You at
the end of the Ride, however, invoices from Ola, Driver or TPSP shall be
provided to You on request. You may raise a request for a copy of the
invoices from our Site.
6.6. You understand and agree to pay all applicable taxes included as
part of the Total Ride Fee.
6.7. You shall choose to pay the Total Ride Fee by the modes of payment
available to You by Ola on the Site, in addition to Cash payment to the
Driver after the completion of the Ride.
6.8. You may choose to pay the Total Ride Fee payable by You, in cash
directly to the Driver upon completion of the Ride, only if the chosen
method of payment is Cash or in such other case the Application may
permit you to pay Cash.
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6.9. You will be required to provide relevant payment details including
Credit Card / Debit Card/Net Banking details ("Card Details") to process
payment of the Total Ride Fee and You authorize Ola and an entity
authorized by Ola for providing payment gateway/processor services
("Payment Processor") to access the Card details for processing the
payment of Total Ride Fee. In this respect, it is clarified that the
Payment Processor whose services are utilized for the purposes of the
Site and/or Application and/or Services shall be compliant with PCI-DSS
(Payment Card Industry Data Security Standard) or such other standard
notified by the relevant authority from time to time. By using the
services of the Payment Processor, You understand and agree to the
Terms and Conditions of the Payment Processor as may be issued by the
Payment Processor from time to time. Your authorization-permits Ola
and the Payment Processor to debit or credit the bank account or
debit/credit card account associated with Your payment details;
• permits Ola and the Payment Processor to use Your Card Details for
the processing of transactions initiated by You by accessing you account;
subject to the prevalent laws, will remain in effect as long as You
maintain an Account (and if You delete Your Card Details or Account,
OLA or the Payment Processor will not be able to process any further
transactions initiated by You); and is subject to any other terms and
conditions of the Payment Processor specified through the Application,
SMS or other methods from time to time.
6.10. Ola offers You the facility of making an online payment through an
E-Wallet powered by a third party payment processor ("Wallet Service
Provider"). E-Wallet money will not be applicable on bookings made
through the phone or while the user is not logged into his/her Account
on the Site. The processing of payments, in connection with Your use of
the E- Wallet will be subject to the terms, conditions, and privacy
policies of the Wallet Service Provider that Ola engages for the purpose.
Ola will not be responsible for any errors by the Wallet Service Provider
in any manner and any dispute arising out of such errors shall be directly
settled between You and the Wallet Service Provider. Further, even in
cases of E Wallet payments, all Additional Fee (defined below) shall have
to be paid by You in cash, to the authority or person concerned or if
already paid by the Driver, to the Driver. When You choose to make an
E-Wallet payment, Ola shall collect the Total Ride Fare or any part of the
Total Ride Fare on behalf of the Driver/ TPSP who will be responsible for
providing the such Services.
6.11. Payment for the Total Ride Fee can be made to Ola on credit
subject to the terms provided at Ola Credit TNC, Further, even in cases
of Ola Credit payments, all Additional Fee shall have to be paid by You in
cash, to the authority or person concerned or if already paid by the
Driver, to the Driver. When You choose to make an Ola Credit payment,
Ola shall collect the Fare on behalf of the Driver/ TPSP who will be
responsible for providing the transportation services.
6.12. Any payment related issue, except when such issue is due to an
error or fault in the Site, shall be resolved between You and the Payment
Processor. Ola shall not be responsible for any unauthorized use of Your
E-Wallet during or after availing the Services on the Site.
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6.13. Subject to these Customer Terms, the Total Ride Fee paid by You
is final and non- refundable, unless otherwise determined by OLA. If any
amount paid by You is fully or partially refundable for any reason, such
amounts will be refunded to You by OLA to the same account from which
the payment was made or if the same could not be processed
successfully then as vouchers to be used in the Application. You may
contact OLA and/or its Affiliates for any issues arising therefrom.
6.14. Any payment processing-related issue not caused by an error or
fault with the Application must be resolved by You and the relevant
Payment Processor.
6.15. You agree that use of certain Promo Codes/ Vouchers may result in
different charges for the same services and shall not have a bearing on
charges applied to You unless the Promo Codes have been specifically
made available to You.
6.16. In the event of a default or failure to pay the Total Ride Fee for
any reason by You: (i) OLA may restrict You from booking a new Ride
through the Application until the outstanding Total Ride Fee in respect of
the previous Ride(s) has been paid by You;
(ii) You agree and acknowledge that OLA shall recover any outstanding
monies payable by You for Ride(s) in respect of which Total Ride Fee has
not been paid; and
(iii) You will be responsible, and must pay, for all costs incurred by OLA
(including costs for which OLA may be contingently liable) in any
attempt to collect any monies owed by You to OLA's Drivers under these
Customer Terms including debt collection agent costs, repossession
costs, location search costs, process server costs and solicitor costs on a
solicitor/client basis.
7. CANCELLATION POLICY
7.1. Ola will notify on the Application a Cancellation fee upon
cancellation of a Ride. You agree and acknowledge that You may cancel
Your request for Services at any point of time subject to a Cancellation
Fee which is explained
at https://www.olacabs.com/info/faqs/Cancellations. You shall be
notified of the applicable Cancellation Fee in advance whenever You
attempt to cancel a booking/service request. The notification shall be on
the Application and/or the Site. You understand and agree to pay such
Cancellation Fee as per the payment terms in Clause 6 of these Terms as
part of the Total Ride Fee of the subsequent Ride or pay such
outstanding Cancellation Fee before availing the subsequent Ride.
7.2. Ola shall provide a receipt of the Cancellation Fee, if any, payable
by You for every cancellation in terms of the table above for such
cancellations, however, separate invoices raised by the TPSPs for the
Cancellation Fee, and Ola for the Convenience Fee on cancellations shall
be provided to You on request. You may raise a request for a copy of the
invoices from the Support page.
7.3. The Cancellation Fee shall be payable by You immediately upon
levy. However, Ola may, at its sole discretion, include such Cancellation
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Fee payable by You as part of the Total Ride Fee payable from Your
subsequent Ride.
7.4. The mode of payment of the Cancellation Fee shall be in terms of
Clause 6 of these User Terms.
7.5. This Clause 7 shall not apply to corporate rides availed pursuant to
the terms and conditions.
8. USER VIOLATION OF USER TERMS
8.1. You shall not smoke, drink or carry any contraband substances in
the Vehicles or misbehave with the Driver or distract the Driver or act in
violation of Applicable Law. In the event You are found to be involved in
the activities set out above. You shall be liable to pay a fine to us and we
shall also have the right to terminate the Ride. In the event You fail to
pay fine after the completion of the Ride, we may at our discretion, take
such steps as may be available to us under Applicable Law. You shall
also be blacklisted as a result of non-payment of the fine or misbehaving
as the case may be, and in such event, Your Account may be terminated
by Ola.
9. CUSTOMER RELATIONSHIP MANAGEMENT
9.1. All issues, opinions, suggestions, questions and feedback while
availing our Services can be communicated to us via several modes such
as self serve app or website or email. After completion of the ride, you
are entitled to give a suitable rating for the service and ride. You agree
to be fair, accurate and non-disparaging while leaving comment,
feedbacks, testimonials or reviews on or about the Rides or Services.
9.2. Reporting of any issue needs to be within 30 (thirty) days of the
happening of the issue, failing which, such issue will not be addressed.
9.3. Any issue reported on channels other than the above may be
addressed by Ola only on a best-effort basis. Ola takes no liability for
inability to get back on other channels.
9.4. Ola shall endeavor to respond to Your issues within 2 (two) working
days of Your reporting the same and endeavor to resolve it at the
earliest possible. It is hereby clarified that issues are resolved on
severity basis.
10. EMERGENCY SERVICES TO CUSTOMER
10.1 By accepting these User Terms and on pressing the SOS button on
the Ola App, You consent to Ola using its best endeavors to provide You
with assistance during a safety incident, emergencies or distress, as per
Ola's internal policies on emergency response. Ola may undertake
remedial action(s), including, but not limited to the following:
10.1.1 When you press the SOS button and report a safety incident, the
Ola representative may escalate the incident internally or liaise with any
third party security service providers to assist You and/or deploy
response teams to Your location.
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10.1.2 Ola may inform any government authorities, such as the
concerned police station, about the incident and seek their assistance;
Ola may also provide such authority(ies) with your personal information
including but not limited to your exact GPS location, your registered
email ID and mobile number to enable them to take appropriate steps to
assist You.
10.1.3 Ola may engage third party security providers to assist You and
Ola in addressing the incident. For this purpose, Ola may share your
personal information, including but not limited to, your exact GPS
location, your registered email ID and mobile number with third parties
such as a security services provider, to enable them to take appropriate
steps to assist You and solely to resolve the incident.
10.1.4 Further to the above, You may receive telephone calls from an
Ola representative and/or the relevant response team at the time of
pressing the SOS button and in the duration that the incident is being
resolved, and the same shall not be construed as breach of TRAI
guidelines, in as much as these would be made for Your security and
safety purposes.
10.2 Under this clause. You give Your express consent to permit Ola to
undertake the above along with any ancillary actions that may be
required to facilitate an effective emergency response.
10.3 Ola will not be liable for any deficiency of service, provided to You
under this clause on a best efforts basis, and this clause does not, in any
manner, restrain You from seeking any other form of assistance from
any other party.
11. FORCE MAJEURE
11.1 We shall not be liable for any failure to perform any obligations
under this User Terms, if the performance is prevented, hindered or
delayed by a Force Majeure Event and in such case our obligations under
this User Terms shall be suspended for so long as the Force Majeure
Event continues.
12. INDEMNIFICATION
12.1 By accepting these User Terms and using the Service, You agree
that You shall defend, indemnify and hold Ola, its affiliates, their
licensors, and each of its officers, directors, other users, employees,
attorneys and agents harmless from and against any and all claims,
costs, damages, losses, liabilities and expenses (including attorneys' fees
and costs) arising out of or in connection with: (a) Your violation or
breach of any term of these User Terms or any Applicable Law or
regulation, whether or not referenced herein; (b) Your violation of any
rights of any third party, including the TPSPs or (c) Your use or misuse
of the Application or Service.
13. LIABILITY
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13.1. The information, recommendations and/or Services provided to
You on or through the Site, the Application and Ola call center are for
general information purposes only and do not constitute advice. Ola will
reasonably keep the Site and its contents correct and up to date but
does not guarantee that (the contents of) the Site is free of errors,
defects, malware and viruses or that the Site is correct, up to date and
accurate.
13.2. Ola shall not be liable for You missing trains/flights/events or
delays etc. as the Service is dependent on many factors not in Ola's
control. You must book Your Ride after taking into account the check-in
time, traffic and weather conditions, political rallies, natural calamities,
traffic barricades, car breakdowns and other unexpected delays.
13.3. In the event, there is a delay by the Vehicle in reaching the pickup
location beyond 30 (thirty) minutes of the pickup time, Ola shall only
endeavour to get You in touch with the Driver assigned for Your Ride.
13.4. Ola shall not be liable for any damages resulting from the use of or
inability to use the Site, including damages caused by wrong usage of
the Site, error in call center number, network issues, malware, viruses
or any incorrectness or incompleteness of the Information or the or
Application.
13.5. You shall take full responsibility of Your items and luggage. In case
of lost items inside the Vehicle during the journey, Ola will try to locate
the items on a "best-effort" basis but is not responsible for the same in
case of loss or damage to the same. If You leave any goods in the
Vehicle or have any complaint in respect of the Services or the use of
the Vehicle, You have to inform Ola of the same in writing within 24
(twenty four) hours of using the Vehicle or the Services of Ola.
13.6. Ola shall not be responsible for any loss of communication /
information of status update and benefits. All this information will be
sent on mobile number and/or email ID registered with Ola. Ola will not
be responsible for appropriateness of mobile or email or any other
communication medium. You shall be responsible for immediately
reporting the errors, if any, occurred in the information sent to You
regarding booking confirmation.
13.7. IN NO EVENT SHALL OLA BE LIABLE FOR ANY DIRECT, INDIRECT,
PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR
FOR ANY DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT,
TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF OLA
HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
13.8. IN ADDITION, AND WITHOUT LIMITING THE FOREGOING, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL
OLA'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION
WITH THESE USER TERMS OR THE SERVICES RENDERED HEREUNDER,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT
LIABILITY, OR OTHER THEORY), WARRANTY, OR OTHERWISE, EXCEED
THE AMOUNT OF Rs. 1000/- (Rupees One Thousand only).
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13.9. If Applicable Law does not permit the exclusion of certain
warranties or the limitation or exclusion of liability, the scope and
duration of such warranty exclusions and the extent of the liability of Ola
shall be the minimum permitted under Applicable Law.
18. TERM AND TERMINATION OF LICENSE AGREEMENT
18.1. Unless terminated explicitly, the agreement between Ola and You
is perpetual in nature upon downloading the Application and for each
Service booked through the Site.
18.2. You are entitled to terminate the agreement at all times by
deletion of Your Account, thus disabling the use by You of the Site. You
can close Your Account at any time by following the instructions on the
Site.
18.3. Ola is entitled to terminate the agreement at all times and with
immediate effect (by disabling Your use of the Site and the Service) if
You: (a) violate or breach any term of these User Terms, or (b) in the
opinion of Ola, misuse the Application or the Service. Ola is not obliged
to give notice of the termination of the agreement in advance. After
termination Ola will give notice thereof in accordance with these User
Terms.
18.4. Termination of this agreement will not prejudice accrued rights of
either Ola or You.
18.5. Clauses 11 (Indemnification), 12 (Liability), 13 (Application
License), 14 (Contents posted on Site/ Application), 15 (Intellectual
Property Ownership). 17 (Term and Termination), 22 (Notice) and 24
(Applicable Law and Dispute Resolution) and such other provisions which
are intended to survive the termination, shall survive the
expiry/termination of these User Terms in accordance with their terms.
19. INVALIDITY OF ONE OR MORE PROVISIONS
19.1. The invalidity of any term of these User Terms shall not affect the
validity of the other provisions of these User Terms. If and to the extent
that any provision of these User Terms is invalid, or is unacceptable in
the given circumstances, a provision shall apply between the parties
instead that is acceptable considering all the circumstances, taking into
account the content and the purpose of these User Terms.
20. CONFLICT
In the event of any contradiction or inconsistency between this User
Terms and any other agreement executed between You and Ola, the
terms of the User Terms shall prevail unless the exception has been
expressly agreed to in writing by making reference to the relevant
Clause sought to be modified under this User Terms.
21. DISCLAIMER
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21.1. You agree that Ola is merely an electronic platform to facilitate
aggregation of Vehicles and does not in any manner provide
transportation services. Ola does not endorse. advertise, advise or
recommend You to avail the Services of any Driver. Ola also does not
guarantee or provide assurance in respect of the behaviour, actions or
data of the users posted on the Site.
21.2. We do not authorize anyone to make a warranty on Our behalf and
You shall not rely on any statement of warranty as a warranty by Us.
21.3. Ola and their representatives, officers, employees, agents and
contractors shall not be liable for any loss, damage, claim, expense, cost
(including legal costs) or liability arising directly or indirectly from Your
use or non-use of the Service or the Site, or Your reliance upon the
Service or the information contained upon the Site (whether arising from
Ola or any other person's negligence or otherwise).
21.4. This Site, Application and all content on the Site and the
Application are provided on an "as is" basis without warranties of any
kind, either express or implied, including without limitation warranties of
title or implied warranties of merchantability or fitness for a particular
purpose. You acknowledge, by Your access of the Site and/or
Application, that Your access of the Site and/or Application and availing
of Services is at Your sole risk, that You assume full responsibility for
Your access and use of the Site and/or Application, and that Ola shall not
be liable for any damages of any kind related to Your access and use of
this Site and/or Application.
21.5. All images, audio, video and text in the Site and/or Application are
only for illustrative purposes. None of the models, actors or products in
the images, if any is endorsing the Services in any manner. Any
resemblance of any matter to anybody or anything is purely
unintentional and/or coincidental.
21.6. Ola is not engaged in the insurance business and does not provide
any insurance services. Ola has facilitated provision of insurance services
for the benefit of Customers, under group travel insurance policies
availed from insurance companies, whereby Ola is acting as the group
manager of the policy. Ola does not guarantee or make any promise in
relation to the insurance policy/ insurance company, including but not
limited to any benefits from use of the insurance services provided by
the insurance companies, such as coverage, claims and settlements. Any
claim or servicing of insurance policies, raised through the Application,
remains a matter between the Customer and the insurance company,
and Ola shall not be responsible for the actions of the insurance
company or the Customer. It is to be noted that the insurance policy
number, claim certificate, invoice for the insurance premium/ fee
collected from the Customer is not be issued by Ola, but will be issued
by the respective insurance company. Any issues in receiving tax
invoices or issues faced in claiming the insurance are not the
responsibility of Ola. Ola disclaims all and all liability in relation to the
services of the insurance company. Please reach out to the insurance
company in case of any questions/ issues.
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22. MODIFICATION OF THE SERVICE AND USER TERMS
22.1. Ola reserves the right, at its sole discretion, to modify or replace,
in part or full, any of these User Terms, or change, suspend, block,
discontinue or restrict your use to all or any feature of the Service or
Application at any time.
22.2. Ola shall not be required to notify You of any changes made to
these User Terms. The revised User Terms shall be made available on
the Site. You are requested to regularly visit the Site to view the most
current User Terms. You can determine when Ola last modified the User
Terms by referring to the "Last Updated" legend above. It shall be Your
responsibility to check these User Terms periodically for changes. Ola
may require You to provide Your consent to the updated User Terms in a
specified manner prior to any further use of the Site and the Services. If
no such separate consent is sought. Your continued use of the Site,
following the changes to the User Terms, will constitute Your acceptance
of those changes. Your use of the Site and the Services is subject to the
most current version of the User Terms made available on the Site at the
time of such use.
23. NOTICE
23.1. Ola may give notice by means of a general notice on the Service or
Application, or by electronic mail to Your email address or a message on
Your registered mobile number, or by written communication sent by
regular mail to Your address on record in Ola's account information.
23.2. In case any query or complaint is unresolved or if you did not
receive a satisfactory response from the 24*7 support, you can escalate
the matter to our
Grievance Officer by sharing the details of the complaint ticket created:
Details of the Grievance officer Jagadishwar Subramani Prestige
Startech, Block C, Ola Campus, Hosur Rd, Koramangala Industrial
Layout, Koramangala, Bengaluru, Karnataka-560095 email
id: [email protected] Phone: 080 3710 1828
24. ASSIGNMENT
Details of the Nodal officer Pradeesh U R
Prestige Startech, Block C, Ola Campus, Hosur Rd. Koramangala
Industrial Layout, Koramangala, Bengaluru, Karnataka-560095 email
id: [email protected] Phone: 080 3710 1828
24.1. You shall not assign Your rights under these User Terms without
prior written approval of Ola. Ola can assign its rights under the User
Terms to any affiliate.
25. APPLICABLE LAW AND DISPUTE RESOLUTION
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These User Terms are subject to the laws of India. Any dispute, claim or
controversy arising out of or relating to these User Terms or the breach,
termination, enforcement, interpretation or validity thereof or the use of
the Site, the Service or the Application (collectively, "Disputes") the
parties shall attempt to settle the same amicably, through negotiation
and consultation at such offices of Ola as Ola may designate. In the
event the dispute is not resolved internally between after at least 30
(thirty) days of negotiation, in good faith, the same shall be subject to
binding and final arbitration in accordance with the Arbitration and
Conciliation Act, 1996 as amended from time to time or in case the
Arbitration and Conciliation Act, 1996 is no longer in force, as per any
law relating to arbitration in force at the time of such reference. The
reference shall be made to a sole arbitrator mutually appointed by Ola
and You. The place of the arbitration shall be Bengaluru, Karnataka,
unless otherwise mutually agreed by Ola and You in writing. Subject to
the above, any Dispute will be subject to the exclusive jurisdiction of
courts in Bangalore, India.
68. From a conjoint reading of terms and conditions of
the Subscription Agreement and the terms of the Agreement
between OLA and the rider-subscriber, and in light of the
analysis of the same as made above it cannot be said that OLA
is just in the business of receiving, storing or transmitting the
electronic records on behalf of another or providing service
only with respect to that record which includes telecom service
providers, network service providers, internet service
providers, web-hosting service providers, search engines,
online payment sites, online-auction sites, online-market places
and cyber cafes as envisaged in the definition of the term
"Intermediary", as defined under the Information Technology
Act, 2000. OLA is also not merely discharging the function of
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an intermediary limited to providing the access to a
communication system over which information made available
by third parties is transmitted or temporarily stored or hosted
as envisaged under clause (a) of sub-section (2) of Section 79
of the said Act. Though a disclaimer is given at clause 21 of the
agreement stating that
'OLA is merely an electronic platform to facilitate aggregation of
vehicles and does not in any manner provide transportation services
and it does not endorse, advertise or recommend to avail service of
any driver and that it does not guarantee or provide assurance in
respect of the behaviour, action, data of users etc.,'
the contents of forgoing clauses of the agreements
extracted hereinabove would abundantly make clear that OLA
is not just an 'Intermediary' as sought to be canvassed.
69. On other hand unbridled and unilateral power and
control which is retained exclusively by the OLA and which it
wields over the Driver-Subscriber and the rider-subscriber with
regard to every aspect of the contract terms including but not
limited to determining rates of various fees, charges for the
ride contemplated under the aforesaid agreements, nature,
extent and manner of service offered, usage, maintenance of
devices provided by OLA during the service as well as power
and control with regard to receiving and declining the bookings,
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payments of the consideration, manner and method of
payment, cancellation policies, emergency service offer to the
customers, disclaimers, indemnifications, applicable laws in the
event of disputes and the saving clauses in the aforesaid
agreement would manifestly indicate that the OLA is in
complete control of the entire business of providing
transportation though it claims that it is only providing a
technology platform to arrange and schedule the
transportation. There is hardly any bargaining power or option
left either with the rider-subscriber or with the driver-
subscriber in the matter of drafting the terms of those
Agreements. The only option is to accept the whole contract as
it is and there is no other, however fair or unfair may be the
terms.
70. Another aspect which cannot be lost sight of is the
competency and ability of a common rider-subscriber and
driver-subscriber to understand the language, purport, terms
and effects of these contracts, which are being entered into
and becoming a 'BINDING CONTRACT' by mere click of a
button even as indicated by OLA. Argument canvassed on
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behalf of OLA is that there is no compulsion to utilise its service
and one is free and at liberty to choose or not to choose. True
it is, that though such an option is available same cannot be
used as an excuse not to adhere to the statutes and directives,
as held by the Apex Court in the case of LIC OF INDIA AND
ANOTHER VS. COMSUMER EDUCATION AND RESEARCH
CENTRE AND OTHERS (1995) 5 SCC 482 at paragraph 49
of the said judgment which reads as under ;
'The authorities or private persons or industry are bound by the
directives contained in Part IV, Part III and Preamble of the
Constitution. It would thus be clear that the right to carry on trade is
subject to directives containing the Constitution, the Universal
Declaration of Human Rights and Convention on Right to
Development for Socio-Economic Justice. Social security is a facet of
socio-economic justice to the people and means to livelihood'
71. For forging reasons and analysis this court is of the
considered view that for the purpose of PoSH Act 2013 the
Driver-Subscriber is an ' Employee' of the OLA and OLA is not
merely an 'Intermediary' as contended. Point Nos.2 and 3 are
answered accordingly.
POINT NO.4
72. 'Gender' as generally understood and represented,
refers to socio-culturally defined roles, relationships,
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responsibilities, expectations, privileges, behaviours and
characteristics including dress codes and attitudes attributable
to girls and boys, women and men which are susceptible of
evolution and changes.
73. 'Gender Sensitization' is a process which involves,
amongst other, bringing awareness of gender sensitivity in the
society and to encourage its members to recognise,
acknowledge, accommodate, respect and treat everyone equally
and honourably irrespective of their differences and diversities
which are largely due to their socio-cultural backgrounds.
74. Process of gender sensitization especially with regard
to equality, respect, honour and dignity of women and with
regard to protection and prevention of women against sexual
harassment requires an absolute indiscriminate and unbiased
approach and conviction by one and all, to condemn and
eradicate the evil, wherever and whenever it is found to exist.
Lest, it encourages and emboldens the evil monger, who is out
there to seize every opportunity to achieve the devilish desire.
Virtuous and righteous sensitivity of a Society is essential for
creation of an inclusive and a healthy living space. Gender
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sensitivity would remain incomplete if sense of protection,
equality and safety is not pervading at every space and walk of
life.
75. 'Zero Tolerance Policy' means an absolute and total
refusal to accept any conduct or behaviour, by anyone
whosoever and for any reason whatsoever, which is contrary to
the law especially governing protection and safety of women
and children. It should not only mean that the perpetrator of
the offence alone, if found guilty, be deprived of any leniency
except as permissible under law, but it should also mean that
those persons, institutions and bodies which are vested by a
statue with a duty and responsibility of implementation of its
provisions, specially enacted to protect and preserve the human
dignity of women and children, be subjected to the 'zero
tolerance policy' and held accountable in the event of their
proven deliberate failure, to uphold the purity and sanctity of
the duty cast on them.
76. No doubt despite there being numerous statutes,
guidelines, advisories, instructions and awareness programmes
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with regard to gender sensitization, implementation of the
concept of 'zero tolerance policy' is still a distant dream.
Perhaps this is for the reason that the 'zero tolerance policy' is
being focused only against the perpetrators of the offence and
there is hardly and or no accountability at all of the people at
the helm of affairs. Necessary that all the stakeholders be made
accountable, should there be any deliberate laxity on their part
in implementation of provisions of the PoSH Act 2013. In fact
sub section (1) of Section 26 of the PoSH Act 2013 provides for
imposition of penalty on the employer failing to constitute
Internal Complaint Committee (ICC) under Section 4, or to
conduct enquiries under Sections 13 and 14 and to submit
annual compliance report under Section 22 or contravenes or
attempts to contravene or abets contravention of any other
provisions of the Act or Rules made thereunder. The penalty
prescribed is Rs.50,000/-. Further Aggregator Rules 2016
provides for actions for their breach including cancellation of
licence issued in favour of Aggregators thereunder.
77. Following are the instances of non compliance and
contravention by ICC and OLA not only of the provisions of the
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PoSH Act 2013 and Aggregators Rules 2016 but also their own
'zero tolerance policy' which finds mention in the terms and
conditions applicable to the driver-subscribers under the
Subscription Agreement;
(a) First of all ICC distanced itself from even accepting the
complaint and conducting inquiry on the premise of there being
no `employer' and `employee relationship' between the driver-
subscriber and OLA;
(b) Without even adverting to complaint filed by the
petitioner, ICC takes up the plea of it lacking jurisdiction to
conduct the enquiry purportedly on the advise of its external
counsel. Seeking such an opinion and closing the complaint
based on such advise is neither permissible nor contemplated
under the PoSH Act 2013;
(c) In the statement of objections ICC has referred to a
letter correspondence issued by it purportedly assisting the
jurisdiction police in conducting the investigation pursuant to
the complaint lodged by the petitioner. In the said letter it is
contended that Ola Fleet Technologies Private Limited, which
admittedly one of the group companies of OLA, was the owner
of the vehicle bearing number No.KA-53-C-9192 involved at the
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time of incident. ICC was least expected to examine and inform
the complainant that the vehicle was owned by the subsidiary of
OLA and ought to have examined the liability of OLA Fleet
Technologies Private Limited and its Driver in the matter,
instead of flatly denying and refusing on the premise of both
the vehicle and the driver being complete strangers;
(d) Perusal of notices and email correspondence produced
by the petitioner on the other hand reveal that; by notice dated
21.09.2018 petitioner through her counsel had called upon OLA
seeking confirmation of compliance with the requirements of
Motor Vehicles Act, 1988 and the Rules framed thereunder
including Aggregators Rules, 2016. She had called upon to
furnish the steps which OLA had taken to support the safety of
women and to initiate sexual harassment proceedings under the
PoSH Act, 2013. In the reply dated 27.09.2018 OLA had stated
that since the driver partner was not an `employee' of OLA and
was an independent contractor, PoSH Act, 2013 was not
applicable and even any complaint was filed before ICC of OLA
the same could not be proceeded with as it lacked jurisdiction.
It is further stated that OLA did not have power to take
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disciplinary action against driver except blacklisting/terminate
the driver partner and co-operate with the authorities of OLA
diligently. Petitioner by e-mail dated 30.09.2018 had sought to
submit the complaint to ICC through mail which was bounced.
The reply mail stated that the group which the petitioner was
trying to contact was not existing or the petitioner may not
have permission to post the message to the group. The said
reply mail has asked the petitioner to seek answers to the
questions on any other Google group or visit the help centre at
https://support.google.com/a/olacabs.com/bin/topic.py.?.
78. Following the same petitioner caused issue of
another notice on 05.10.2018 requesting OLA to initiate the
proceedings on the complaint under the PoSH Act, 2013. Since
there was no response to the same, petitioner caused issue yet
another communication in the nature of reminder to OLA on
09.10.2018. An email dated 09.10.2018 has been forwarded to
the petitioner by ICC stating that external legal counsel of ICC
had advised that ICC had no jurisdiction to take up the
complaint and that the OLA had been taking few steps to assist
the criminal investigation which they will continue to assist;
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(a) The aforesaid exchange of notices and email
correspondences indicate that repeated demands and requests
being made by the petitioner to furnish the details of the
compliance made by OLA with relevant provisions of law
imploring to enquire into the complaint which has been refused
and declined for the reasons of offender being an
impersonator;
(b) Rules 7, 8, and 10 of the Aggregators Rules, 2016
imposes statutory obligation on OLA to ensure compliance with
the conditions enumerated thereunder;
(c) Rule 10(2) mandates that if the licencee uses or
causes or allows a taxi to be used in any manner not authorised
by the permit or provisions mentioned therein, the licencee and
driver shall be jointly and severally responsible for such defaults
and for payment of penalty under the provisions of the Act and
Rules;
(d) Rule 10(3) further provides that any untoward
incident occurring during the course of a ride, licensee shall
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inform the same to the licensing authority as well as to the
jurisdictional police immediately;
(e) Failure to comply with the Aggregators Rules, 2016
would result in suspension or cancellation of licence.
Admittedly, OLA being an aggregator and licencee under Rule
2016 has not placed material as to compliance made with
respect to the aforementioned rules;
79. From the aforesaid instances it is clear that there is a
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.
80. It may be necessary to note nowhere in the
Subscription Agreement or in the customers agreement
available on the website of OLA, is there any categoric mention
that OLA would not take any complaint or be responsible with
regard to any untoward incident during the ride as its `driver
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partner' were not its employees. On the other hand repeated
assurances/representations made by the OLA in the
agreements namely clause No.10 under the heading
'Emergency Services of the Customer' which is extracted
hereinabove, OLA has held itself out that it is its responsibility
to provide for and ensure safety and security of the customers
with absolute 'zero tolerance policy'. Reading of the definition
of the `Driver' who is the only person which the rider with
whom the rider will be in contact indicate that the said drivers
are the individuals evaluated, appointed and trained by the
operator associated with OLA. Relevant also at this juncture
also to note that in the reply notice dated 27.09.2018 that was
issued on behalf of OLA in response to the legal notice dated
21.09.2018 that was caused issued by the petitioner, at
paragraphs 5 and 6 following is stated:
"5. We, at Ola, carryout sanity checks of our driver partners at
the time of engaging such individuals or transport service provider
followed by PVC/CRC (ie., Police Verification Check and Court records
check.) Upon receiving any complaint in relation to safety incidents our
customer care personnel and safety response team conduct thorough
detailed investigation while fully co-operating with law enforcement
agencies.
6. Consist with our objective to curb and nullify threats against
our women passengers, and being responsible corporate having utmost
concern for the safety of its women passengers, Ola has implemented a
robust safety mechanism to check cases of harassment and
misdemeanour to women. To address your concern relating to our
commitment to ensure women's safety, various steps implemented by us
till date in this regard, are enumerated herein below:
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a) Gender Sensitization:
i At the time of commencement of operation with Ola, each
driver-partner undergoes a formal training which tackles many
behavioural aspects, especially with respect to women
customers. This training covers aspects such as avoiding
unnecessary conversation, avoid staring at women passengers,
being cautious to avoid physical contact even while exchanging
currency amongst other issues.
ii Further, we are also in talks with industry experts in gender
sensitization to provide on going digital training for all active
driver-partners on our platform."
81. The aforesaid contents of the reply notice makes it
clear that OLA has indeed given the petitioner to understand
that it has taken the responsibility of providing necessary
training as above, to its 'driver partners' and it is safe to use its
services. But now it transpires that these assurances have
remained only on its portal without there being any action on
the ground except expressing sympathies. These assurances
and representations made by OLA without any intention or
actions to implement, as is evident in this case, are nothing
short of inducing customers to opt for the travel using its
services on empty assurance of OLA owning complete
responsibility of safety and security of the customer, only to
remain non-communicado and non-responsive when it matters
the most. Material produced by the petitioner with regard to
similar incidents occurring elsewhere not denied by the OLA and
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its acceptance of Driver Swapping incidents being a common
phenomenon and OLA admittedly neither taking any steps to
curb the same nor bothering to bring the same notice of the
authorities would further indicate that OLA has least priority in
the matter.
82. The horrific and inexplicable ordeal which the
petitioner has undergone has its own telling on the person's
psychology and personality. Situation of a person as that of the
petitioner who was seized and captivated in a moving vehicle
with a person, unauthorised/impersonator, having devilish
intent, motive and design cannot even be comprehended. Any
vulnerable person could have been in that position. 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 OLAcab app, which has been brazenly and without
any scant regards breached and violated by ICC and OLA. The
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facts and circumstances of the case therefore warrants
petitioner be suitably compensated for the trauma she has
undergone.
83. Also requires to be noted that though the
Aggregators Rules 2016 more particularly Rule 10 (2) and (3)
impose obligation on the OLA not to allow or cause to allow the
taxi to be used in any manner not authorised by permit or
provisions mentioned thereunder and to inform the licensing
authority regarding any untoward incident, Respondent No.4
being the licensing authority in the instant case has taken no
steps in the matter though it is vested with the power and
responsibility of enquiring into the matter and passing orders
including suspending and cancellation of the licence. The
grounds urged for inaction by the authority is OLA not informing
it about the incident.
84. This petition was filed on 14.02.2019. Notice of this
petition has been accepted by a counsel on behalf of the
respondent No. 4 on 06.03.2019. Respondent No.4 did not even
bother to file its version even after lapse of five years. Its only
when this court by order dated 09.08.2024 directed learned
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Additional Government Advocate to furnish the details of the
officers/authorities who are in-charge and responsible to ensure
the compliance of the Aggregators Rules 2016, the officers
concerned woke up from their deep slumber. On the direction of
this court, the names of the officers who were holding the
position at the relevant period, that is, between 09.08.2018 and
01.07.2024 is furnished by learned Additional Government
Advocate.
85. Thereafter, on 13.08.2024 affidavit of officer
currently in charge has been filed offering explanation and
stating about the promulgation of Aggregators Rules, 2016 and
the amendment brought to Rule 130 (A) of the Karnataka Motor
Vehicle Rules providing of disabling the child lock in the
motorcabs vide notification dated 14.12.2018. In the
statement of objections filed on 20.08.2024, that is on the last
date of hearing of the matter respondent No.4 has attempted to
salvage itself of its inaction by producing a copy of notice dated
16.08.2024. In the said notice it is stated that OLA had applied
for licence under the Aggregators Rules 2016 and was granted
the same for a period of 5 years and the said period of 5 years
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has expired and its renewal application is still pending before
the respondent No.4 for its consideration and that since OLA
had not complied with the Rule 10(3) of the Aggregators Rules,
2016 it has called upon the respondent No.2 to submit the
explanation within seven days. The contents of the said notice
are even more shocking. In that now it is revealed that the OLA
is operating even without renewal of its licence as mandatorily
required under Aggregators Rules, 2016. Respondent No.4
before whom the alleged application for renewal of licence 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.
86. It is inexplicable as to how OLA is operating its vast
business even without possessing a valid Licence as
mandatorily required under the Aggregators Rule 2016. The
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issuance of Notice dated 16.08.2024 by respondent No.4 under
the circumstances referred to above is nothing but an eyewash.
87. Respondent No.4 and the officers in-charge are
equally guilty of deliberate inaction and negligence in
discharging their statutory obligations. The guilt of inaction
equally lies at the threshold of the respondent No.4 and the
officers who are expected to discharge the obligations and the
public trust reposed in them, requiring to be mulcted with costs.
88. Now it is well settled that under Article 226 of the
Constitution of India, High Courts can mould the relief granting
compensation to the victim of the injuries caused on account of
negligence, inaction and indifference of public functionaries or
for proven violation of fundamental rights.(Rudul Shah vs.
State of Bihar (1983) 4 SCC 141. Delhi Domestic Working
Women Forum vs. Union of India (1995) 1 SCC 14,
D.K,.Basu Vs. State of West Bengal (1997) 1 SCC 416
Common Cause, a registered Society vs. Union of India
(1999) 6 SCC 667 , Chairman , Railway Board vs.
Chandrima Das (2000)2 SCC 465).
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89. Sexual harassment has been defined under Section
2(n) of the PoSH Act, 2013 which is as under;
" 2(n) "sexual harassment" includes any one or more of the following
unwelcome acts or behavior (whether directly or by implication) namely:--
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual
nature;"
90. Admittedly petitioner has been subjected to the
sexual harassment falling within the components of the
aforesaid definition resulting in violation of her fundamental,
statutory and contractual right to safety, protection,
preservation of her dignity.
91. Observations of Apex Court that "Under Our
Constitutional Scheme the State is not merely under an
obligation to respect fundamental rights guaranteed by Part III
but under an equal obligation to ensure conditions in which
those rights can be meaningfully and effectively enjoyed by one
and all [Secretary, Ministry of Information and
Broadcasting, Government of India and others Vs Cricket
Association of Bengal and others (1995) 2 SCC 616] and
"The requirement of efficiency is an overriding mandate of the
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constitution and inefficient administration betrays the present
as well as future of the nation." (Indra Sawhney Vs Union of
India and others -AIR 1992 SC 477) as aptly applicable to
the facts and circumstance of the instant case.
92. 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 as noted hereinabove. In
addition, petitioner is at liberty to seek redressal of her civil
rights before appreciate forum as may be permissible under law
if so advised.
Point No.4 is answered accordingly.
POINT No.5:
93. In the light of the aforesaid analysis and discussion
it is clear that the writ petition as filed by the petitioner against
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ICC and OLA for the reliefs as sought against them is
maintainable under Article 226 of the Constitution of India.
94. That ICC being under statutory obligation to accept
the complaint filed by the petitioner, to enquire into allegations
of sexual harassment against her by the driver of OLA taxi has
failed in discharging its statutory obligation on the erroneous
premise of it lacking jurisdiction in the matter.
95. Petitioner is entitled for the reliefs sought in the writ
petition for the reasons and with necessary modifications as
indicated hereunder:
a) As regards the relief sought for by the petitioner in the
nature of issuance of writ of mandamus directing ICC
to enquire into the complaint of the petitioner dated
30.09.2018 as per Annexure-F in accordance with the
provisions of PoSH Act, 2013, since this Court has
come to the conclusion that there exists relationship of
`employer' and `employee' between OLA and the
driver and also for the reason of the taxi admittedly
belonging to 'OLA Fleet Technologies Pvt. Ltd.' a
subsidiary of OLA, ICC is required to conduct the
enquiry as the offender is ascertainable and the
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criminal proceedings against the said impersonator is
still pending consideration. Besides, as already noted
above the definition of the term 'employee' includes
person employed on contract with or without the
knowledge of the principal employer, the impersonator
in the instant case who was admittedly allowed to
operate the OLA taxi by the driver-subscriber contrary
to the terms of Subscription Agreement and the
Aggregators Rules 2016 cannot be allowed to go scot
free merely because ICC and OLA contend that they
have no control either over the driver-subscriber or the
impersonator, which is contrary to material on records.
The facts and circumstances of the case analyzed and
discussed hereinabove would not allow but to grant the
relief as sought for in this regard by the petitioner.
b) As regards the second relief directing respondent No.3
as the Ministry, Women and Child Development Union
of India to ensure strict compliance with the provisions
of PoSH Act, 2013 by ICC and OLA and direction to
respondent No.4 to issue such rules as may be
necessary to protect women and children availing taxi
service and to ensure their safety and security is
concerned, it is necessary to note that the Apex Court
in the cases of AURELIANO FERNANDIS VS. STATE
OF GOA reported in (2024) 1 SCC 632 and
INITIATIVES FOR INCLUSION FOUNDATION AND
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ANOTHER VS. UNION OF INDIA AND OTHERS
reported in (2024)1 SCC 779 has issued several
directions under various requirements. The said
directions cover governmental and non-governmental
organizations and also a few private establishments
such as bodies governing professionals enumerated
thereunder. The Apex Court in its direction at
paragraph 25.G.(xvii) issued in the case of Initiatives
for Inclusion Foundation(supra) has already
indicated that "consequent directions to all the
private sector workplaces under Section 2(o)(ii)
can be passed once the District Officer is able to
discern an exhaustive list of entities." Since the
matter is seized before the Apex Court no directions in
this regard are required.
c) As regards relief in the nature of direction to the
respondent No.4 to suspend the licence issued to the
respondent No.2 under the Aggregator Rules, 2016
respondent No.4 in its statement of objections stated
that it has issued a notice on 16.08.2024 seeking
explanation within a period of seven days. Though OLA
at present does not possess valid licence mandatorily
required under the Aggregators Rules, 2016, the
respondent No.4 shall proceed with the matter taking
into consideration the observation made herein above
and shall complete the process within an outer limit of
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90 (ninety) days from the date of receipt of certified
copy of this order.
96. Accordingly, the following;
ORDER
Writ petition is partly allowed.
I. Internal Complaint Committee- the respondent No.1 of ANI Technologies Pvt. Ltd., (OLA)-the respondent No.2 shall hold an enquiry into the complaint of the petitioner dated 30.09.2018 as per Annexure-F in accordance with the provisions of PoSH Act, 2013 and complete the process as expeditiously as possible within an outer limit of 90 (ninety) days from the date of receipt of certified copy of this order as per Section 11 of the PoSH Act, 2013 and submit the report to the District Officer as provided thereunder.
II. No directions are required to be issued to Respondent No.3 with regard to prayer No.(b) for the reasons recorded at paragraph 95(b) hereinabove.
III. Karnataka State Transport Authority-Respondent No.4 which has already issued the Notice dated 16.08.2024 seeking explanation from ANI Technologies Pvt. Ltd., (OLA)-the Respondent No. 2, shall proceed with the matter taking into consideration the observation made 154 herein above and shall complete the process in accordance with law after affording sufficient opportunity to the ANI Technologies Pvt. Ltd., (OLA)-
the Respondent No. 2 within an outer limit of 90(ninety) days from the date of receipt of certified copy of this order. It is made clear that before initiating any consequent action pursuant to the out come of such proceeding it shall bring to the notice of the Division Bench of this Court which is seized of the matter in writ appeal in W.A.No.4789/2016.
IV. For the reasons recorded while answering point No.4 Internal Complaint Committee-the respondent No.1 and ANI Technologies Pvt. Ltd., (OLA)- the Respondent No. 2 are hereby directed to pay a sum of Rs.5,00,000/- 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 this Order;
V. For the reasons recorded while answering point No.4 the concerned of the Additional Commissioner for Transport and Secretary of Respondent No.4 Authority shall personally pay a sum of Rs.1,00,000/- payable to the Karnataka Legal Service Authority within 30 (thirty) days from the date of receipt of certified copy of this Order;
155VI. Respondents and all concerned are directed to ensure compliance of provisions of Section 16 of the PoSH Act, 2013 in not publishing the identity and addresses of the persons involved in the matter.
Copy of this order be communicated to Respondent No.3 and concerned Chief Secretary, Government of Karnataka for necessary action.
The assistance rendered by Kum. Subiya Tasneem, Law Clerk cum Research Assistant is appreciated and placed on record.
Sd/-
(M.G.S. KAMAL) JUDGE SBN/RU/RL