Service Law – Banking Service – Order of transfer – Judicial review of – Respondent, Chief Manager in Scale IV at Indore Branch of the first appellant-Bank was transferred to Branch Office at Sarsawa, Jabalpur – Submitted representation to Zonal Manager for being retained at Indore – Had earlier pointed out irregularities w.r.t accounts of liquor contractors – Also made sexual harassment allegations against the Zonal Manager – Single Judge quashed the order of transfer – Affirmed by Division Bench – Held: Transfer is an exigency of service – Unless an order of transfer is established to be malafide or contrary to statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere – In the present case, respondent wrote repeated communications to authorities drawing their attention to serious irregularities in the course of maintenance of accounts of liquor contractors and levelled specific allegations of corruption – Admittedly, the branch to which the respondent was posted was not commensurate to her position as a Scale IV officer – Respondent was victimized – Order of transfer was an act of unfair treatment vitiated by malafides – Decision of High Court is affirmed – Respondent be reposted at the Indore branch as a Scale IV officer for one year from today – Upon the expiry of said period, if any administrative exigency arises the competent authority is at liberty to take appropriate decision w.r.t her place of posting independently in accordance with relevant rules and regulations of the bank, in the interest of fair treatment to the officer – Respondent be paid costs of Rs.50,000 /- within one month – Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – ss.3, 4 and 6 – Constitution of India – Arts.14, 15 and 21.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – s.4(2)(c) – Respondent, Chief Manager in Scale IV at Indore Branch of the first appellant-Bank was transferred to Branch Office at Sarsawa, Jabalpur – She had inter alia made sexual harassment allegations against the Zonal Manager – Constitution of Internal Complaints Committee (ICC) objected by the respondent – Held: 2013 Act was enacted to provide protection against sexual harassment of women at the workplace as well as for the prevention and redressal of complaints of sexual harassment – Sexual harassment at workplace is an affront to the fundamental rights of a woman to equality u/Arts.14 & 15 and her right to live with dignity u/Art. 21 as well as her right to practice any profession or to carry on any occupation, trade or business– Clause (c) of s.4(2) indicates that one member of the ICC has to be drawn from amongst a non-governmental organization or association committed to the cause of women or a person familiar with issues relating to sexual harassment– Purpose thereof is to ensure the presence of an independent person who can aid, advise & assist the Committee – It obviates an institutional bias – In the present case, such member was a panel lawyer of the bank at the material time – No justification on the part of the bank not to accede to the request of the respondent for replacing that person with a truly independent third party having regard to the provisions of s.4(2)(c) – There was a fundamental defect in the constitution of the ICC set up by the bank – Constitution of India – Arts.14, 15 and
21 – Service Law – Banking Service.
Disposing of the appeal, the Court
HELD: 1.1 Transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. [Para 17][218-C-D]
1.2 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to provide protection against sexual harassment of women at the workplace as well as for the prevention and redressal of complaints of sexual harassment. Sexual harassment at the workplace is an affront to the fundamental rights of a woman to equality under Articles 14 and 15 and her right to live with dignity under Article 21 of the Constitution as well as her right to practice any profession or to carry on any occupation, trade or business. Section 4 of the Act requires the constitution of an ICC at all the administrative units or offices of the work place. Sub-section (2) of Section 4 of the Act provides for the constitution of the ICC. Clause (c) of Section 4(2) indicates that one member of the ICC has to be drawn from amongst a non-governmental organization or association committed to the cause of women or a person familiar with issues relating to sexual harassment. The purpose of having such a member is to ensure the presence of an independent person who can aid, advise and assist the Committee. It obviates an institutional bias. During the course of hearing, we have received a confirmation from the learned senior counsel appearing on behalf of the bank that Ms. Seema Gupta was, in fact, a panel lawyer of the bank at the material time. This being the position, there is no reason or justification on the part of the bank not to accede to the request of the respondent for replacing Ms. Seema Gupta with a truly independent third party having regard to the provisions of Section 4(2)(c) of the Act. This is a significant facet which goes to the root of the constitution of the ICC which was set up to enquire into the allegations which were levelled by the respondent. There was a fundamental defect in the constitution of the ICC which was set up by the bank. [Paras 20-23][219-F; 220-D; 221-B-D, G]
1.3 The respondent had written repeated communications to the authorities drawing their attention to the serious irregularities in the course of the maintenance of accounts of liquor contractors and in that context had levelled specific allegations of corruption. The respondent was posted on 14 December 2017 to a branch, which even according to the bank, was not meant for the posting of a Scale IV officer. The sanctity which the bank attaches to posting officers of the appropriate scale to a branch commensurate with their position is evident from the Board’s Resolution. Admittedly, the branch to which the respondent was posted was not commensurate to her position as a Scale IV officer. The respondent was victimized. Her reports of irregularities in the Branch met with a reprisal. She was transferred out and sent to a branch which was expected to be occupied by a Scale I officer. This is symptomatic of a carrot and stick policy adopted to suborn the dignity of a woman who is aggrieved by unfair treatment at her workplace. The order of transfer was an act of unfair treatment and is vitiated by malafides. The respondent officer shall be reposted at the Indore branch as a Scale IV officer for a period of one year from today. Upon the expiry of the period of one year, if any administrative exigency arises the competent authority of the bank would be at liberty to take an appropriate decision in regard to her place of posting independently in accordance with law keeping in view the relevant rules and regulations of the bank, in the interest of fair treatment to the officer. [Paras 24, 26][221-G-H; 222-A-C, F-G] Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306: [1991] 2 Suppl. SCR 492; State of UP v. Gobardhan Lal (2004) 11 SCC 402 : [2004] 3 SCR 337; Rajendra Singh v. State of UP JT 2009 (10) SC 187 : [2009] 15 SCR 254 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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