"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.", held Supreme Court Bench comprising of Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi in one recent judgement delivered.
The verdict came out in one case tilted as Punjab and Sind Bank and Others vs Mrs. Durgesh Kuwar.
CASE BACKGROUND
The respondent who is a Senior Officer of a public sector banking institution had claimed that her transfer order by the authority was a result of her reporting of the irregularities and corruption at her branch and her complaints against an Officer who sexually harassed her. She was of the view that her concerns were not taken into consideration and that the authorities blatantly informed her that the transfer was in accordance with administrative and service exigencies.
In her assertion to the High Court in which she challenged her Transfer Order under Article 226 of the Constitution, it was further contended that her transfer haad been made to a small rural branch which would be headed by a Scale I Officer and was hence not a posting commensurate with her position as a Scale-IV Officer of the bank.
The High Court eventually allowed the writ petition and quashed her Transfer Order.
Aggrieved by the judgement, the Bank approached the Supreme Court.
SUPREME COURT PROCEEDINGS
The case made by the Bank was that on Internal Complaints Committee had taken due diligence of her complaint and found no substance in the allegations. It was thus urged by the Learned Counsel appearing on behalf of the Bank that the settled principle of restraint in matters of judicial review, where a transfer is an exigency of service, must apply in the facts of this case and the High Court judgement must be set aside.
He placed reliance on the decisions of this Court in Bank of India v Jagjit Singh Mehta, State of UP v Gobardhan Lal and Rajendra Singh v State of UP.
The Learned Counsel of the respondent on the other contended that there had been a gross suppression of fact on the part of the appellants in moving this Court. He alleged that some sets of vital documents had not been brought to the Court's notice that contains communications by the respondent to the higher authorities regarding her concerns, her dissatisfaction with the inquiries, her complaint before the LCC in terms of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in which the LCC had established the charges, document revealing modification of her transfer.
He further submitted that the case was a case of malafides.
Observing the submissions, the Top Court noted on the part of the validity of the transfer:
"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."
The Bench agreed that the respondent had seriously communicated her concerns regarding the irregularities and also complained about the sexual harassement she faced.
The Bench in regard to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 noted:
The 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 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.
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.
The Apex Court thus insisted on delivering a direction which, while sub-serving the interest of the bank, shall also be consistent with the need to preserve the dignity of a woman employee who, we hold, has been unfairly treated. In light of this, it ordered the reposting of the respondent back to her branch.
The Bench also added that she will be entitled to a compensation cost of ₹50000.
The Court concluded:
"There can be no manner of doubt that the respondent has been 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 law cannot countenance this. The order of transfer was an act of unfair treatment and is vitiated by malafides."
The Counsels in the case were Senior Advocate Sudhir Chandra and Senior Advocate Colin Gonsalves.
The judgement had been delivered by Bench comprising of Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi on 25-02-2020.
Read Judgement Here:
