N. Sankara Rao, vs The Andhra Pradesh Power ...
2021 Latest Caselaw 1339 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION No.19603 of 2020

ORDER:-

       This Writ Petition is filed under             Article 226 of the

Constitution of India, seeking the following relief:


      ".....to issue a Writ, Order or direction more particularly one in
      the nature of Writ of mandamus, declaring the Memo No.
      CGM(Adm.IS&ERP)/BS/(Adm)/EE(A-II)/AEE-II/D.No.558/ 2020,
      dated 15.10.2020, passed by the 2nd respondent is illegal,

arbitrary and violative of principles of natural justice and amounts to imposition of punishment without enquiry and it is punitive in nature and consequently set aside the same with further direction to the respondents to continue the petitioner as Assistant Engineer/Telecom at Office of Chief Engineer/ O&M/Dr.NTTPS, Ibrahimpatnam, Vijayawada, Krishna District with all consequential benefits"

2. Heard Sri A.Giridhar Rao, learned counsel for petitioner and

Sri M.Vidya Sagar, learned Standing Counsel for APGENCO

appearing for Respondents.

3. The petitioner is appointed as Sub Engineer on 06.12.1996,

later he was promoted and presently working as Assistant

Engineer/ Telecom, working under the control of Chief Engineer/

O&M/Dr. NTTPS, Ibrahimpatnam, Vijayawada and he has an

unblemished record of service. He was also Joint Secretary of A.P.

Power Diploma Engineers Association, APGENCO.

4. It is further alleged that based on the false complaint given

by one of the employees against the petitioner, during pendency of

disciplinary proceedings, the present transfer orders were issued

by the 2nd respondent transferring the petitioner from the office of

Chief Engineer/O&M/Dr.NTTPS, Ibrahimpatnam, Vijayawada to

MHE(Jt)S (Machkund Hydro Electric Station), Orissa, which is at a

distance of more than 550 Kms from Vijayawada.

5. The main contention of the petitioner is that the conduct

regulations governing the employees of APGENCO are issued in

BPMS No.697, dated 10.07.1978, which are called as The Andhra

Pradesh State Electricity Board Employees Conduct Regulations.

With reference to disciplinary action, the regulations are called as

A.P. State Electricity Board Employees Discipline and Appeal

Regulations. An elaborate procedure is prescribed for imposition of

punishment and procedure to conduct disciplinary proceedings

against the employees of the State Electricity Board.

6. In the petitioner's case, no enquiry is completed, but he was

transferred and that indicates the present order is punitive in

nature and such a punitive transfer is not permissible in law as

held by the Apex Court in State Of U.P. And Ors. vs Jagdeo

Singh1. It is further stated that after careful consideration of the

order impugned in this writ petition, the order itself shows that the

petitioner was transferred as a measure of punishment even before

completion of enquiry. As such, the transfer order is punitive in

nature. Hence, the petitioner sought to declare the same as illegal

and arbitrary and consequently requested to set aside the same.

7. Whereas, the respondents filed counter affidavit, while

admitting about the transfer of the petitioner, but the reason for

transfer is that the petitioner involved in sexual harassment of a

woman employee at work place, exhibiting undue intimacy,

misbehaving with woman employee at work place, causing mental

agony, further intimidating her and her husband with dire

AIR 1984 SC 1115 = 1984 (49) FLR 217

consequences. Based on the complaint given by the woman

employee a case was registered against the petitioner in Crime

No.545 of 2020, dated 14.08.2020 by the Irbrahimpatnam Police,

Vijayawada under Sections 341, 509, 506 of IPC. Therefore, the

respondent Corporation issued the impugned order dated

15.10.2020 basing on the preliminary enquiry conducted by the

Department duly considering the explanation submitted by the

petitioner and compromise taken place before the elders, wherein

an undertaking is given by the petitioner herein to maintain

industrial peace, harmony and to avoid unrest among the

employees of the Corporation, and the same is not arbitrary and

unreasonable as alleged in the petition.

8. It is further submitted that on 27.05.2020 one

Smt.R.Leelima, who is working as Junior Engineer under the

control of 3rd respondent has lodged a written complaint against

the petitioner, wherein she stated that the petitioner is

misbehaving with her and causing mental agony to her. Further

she stated that during office hours also he is coming to her office

and causing trouble by following her, taking her photographs and

showing them to her known and unknown persons by making

abusive comments on her. She also asserted that the petitioner is

making phone calls and vulgar messages from his wife's mobile to

her and her husband, thereby causing unrest among them. She

also further asserted that the petitioner threatened to kill her

husband, if she does not come wherever he wants to come.

On 05.06.2020 an explanation was called for from the petitioner

for misbehaving with Smt. R. Leelima, Junior Engineer and

causing mental agony to her.

9. The petitioner has submitted an explanation dated

12.06.2020 by denying the material allegations made against him

and pleaded innocence. Further, on 06.08.2020 a preliminary

enquiry was ordered by the 3rd respondent against the complaint

made by Smt. R. Leelima. As per the Enquiry Report, dated

30.09.2020, the petitioner has been showing undue and

unacceptable intimacy towards Smt. R. Leelima, Junior Engineer,

through his actions and gestures in spite of objections from her

side. Further, the petitioner has also given written commitment to

the CE/O&M/Dr.NTTPS, DSP/SPF/Dr. NTTPS and in the local

police station not to cause any inconvenience to her in future, but

the petitioner is still continuing the same attitude which comes

under 'misconduct' as per the Conduct Rules of the Respondent

Corporation. Smt.Leelima in her letter dated 25.09.2020 explained

the pain and grief, which she is facing due to the harassment of

the petitioner and also his intimidations to her and her husband.

Further, the WhatsApp messages are of vulgar in nature, really

objectionable and derogative nature, which hurts any woman in

the society and shall be dealt with under Sexual Harassment of

Woman at Work Place (Prevention, Prohibition and Redressal) Act,

2013.

10. In spite of all these happenings, the attitude and behaviour

of the petitioner did not change. Therefore, the impugned order

was passed by transferring the petitioner as a measure to keep him

away from causing any disturbances to Smt. Leelima before

proceeding in the enquiry, and thereby the transfer of the

petitioner is not punitive in nature and requested to dismiss the

writ petition.

11. During hearing, Sri A.Giridhar Rao, learned counsel for

petitioner reiterated the contentions urged in the writ petition

contending that when the transfer is punitive in nature, this Court

can interfere with such transfer and set aside the same.

12. Whereas, Sri M. Vidhyasagar, learned Standing Counsel

appearing for the respondents submitted that as the conduct of the

petitioner is serious in nature, it amounts to misconduct,

attracting sexual harassment of a woman at work place, which is

prohibited. Therefore, this Court cannot interfere in normal course

as the transfer of the petitioner is penal in nature and it is not an

administrative order and the imposition of penal transfer order

instead of conducting disciplinary proceedings is justified.

13. Admittedly, the petitioner was working as Assistant

Engineer/ Telecom, working under the control of Chief Engineer/

O&M/Dr. NTTPS, Ibrahimpatnam, Vijayawada, the reason for his

transfer is only harassment of woman co-employee working in the

same office, sexually. A copy of the complaint lodged by

Smt. Leelima to the higher authorities of the Department is placed

on record including a Memo issued by the Chief Engineer calling

for explanation of this petitioner. The petitioner submitted his

explanation to the show cause notice. A copy of F.I.R in Crime

No. 545 of 2020, dated 14.08.2020 is also available on record

along with the counter affidavit, which is based on the complaint

lodged by Smt. Leelima, pending investigation.

14. Prima facie, the material available on record discloses that

the petitioner is guilty of misconduct as he allegedly harassed his

co-employee i.e., harassment of a woman employee at work place,

which is prohibited under law and a discrete enquiry was ordered

against the petitioner. In fact, an enquiry report was submitted by

the respondent authorities, which discloses that the petitioner

prima facie indulged in sexual harassment of a woman employee at

work place. Thus, the petitioner allegedly involved in a serious act

of misconduct, sexual harassment and the complaint is also

pending with the concerned police.

15. The jurisdiction of this Court to interfere with the transfer of

an employee in normal course is limited and this Court cannot

interfere with such transfer orders when it is on administrative

grounds, and if it is punitive in nature, the Court can interfere

with such proceedings as per the judgment of the Apex Court in

Somesh Tiwari Vs. Union of India2, wherein the Apex Court

considered the similar issue and held

"9. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law.

10. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."

16. No doubt, the transfer is appears to be punitive in nature

and hence this Court can exercise its power conferred under

Article 226 of the Constitution of India and interfere with such

(2009) 2 SCC 592

transfer orders, but when the petitioner is facing serious

allegations of misconduct i.e., sexual harassment of a woman at

work place, in such case, the petitioner can be kept away to such

women, so as to avoid chance of such woman employee, winning

over during enquiry and investigation as ordered by the police

against the petitioner based on the complaint. Therefore, the order

of transfer cannot be said to be punitive in nature at this stage,

only to protect the woman employee, who is facing sexual

harassment in the hands of the petitioner.

17. According to Rule 3(c) of CCA Rules, 1991, no Government

employee shall in the performance of his official duties act in a

discourteous and discriminate manner with any working women or

indulge in sexual harassment either directly or by implication,

thereby further says for the purpose of this rule sexual harassment

include such unwell either directly or implication. Sexual

harassment includes any unwelcome sexually determined

behaviour, whether directly or by implication and includes physical

contact and advances, a demand or request for sexual favours,

sexually coloured remarks, pornography or any other unwelcome

physical, verbal or non- verbal conduct of sexual nature.

18. According to Rule 3-D of C.C.A. Rules, 1991 Complaints

Committee will be deemed to be an inquiry committee and the

report submitted by it shall be deemed to be an inquiry report

under A.P. Civil Services (Classification, Control and Appeal) Rules,

1991 (Added by G.O.Ms.No.556, GA (Ser.C) Dept., dated

14.12.2005. Sexual harassment is a form of sex discrimination

projected through unwelcome sexual advances, request for sexual

favours and other verbal or physical conduct with sexual

overtones, whether directly or by implication particularly when

submission to or rejection of such a conduct by the female

employee was capable of being used for effecting employment of

the female employee and unreasonably interfering with her

performance and had the effect of creating an intimidating or

hostile working environment for her. Each incident of sexual

harassment of working women at the place of work, results in

violation of the fundamental right to gender equality and the right

to life and liberty in a case reported in Apparel Export Promotion

Council vs. A.K. Chopra3.

19. Though C.C.A Rules, 1991 and A.P. Civil Services Conduct

Rules are not applicable to the present facts of the case, the same

analogy can be applied even to the employees of the cases of sexual

harassment to the co-employee.

20. Learned counsel for petitioner while contending that when

the transfer is punitive in nature, the Court can interfere with the

proceedings and placed reliance on the Division Bench Judgment

of the Apex Court in State Of U.P's case as follows:-

"We must make it clear that any and every transfer of a police officer from one police station to another will not amount to punishment, even if it involves the loss of a special emolument. If a police officer is transferred from one charge to another in the ordinary course of administrative exigencies, the provisions of Section 7 of the Police Act will not be attracted because a transfer simpliciter is not punishment. It is only when the transfer is made by way of punishment, as in the instant case, that Section 7 would come into play."

21. Similarly, In A.Venugopal Rao v. Executive Engineer4, the

Division Bench of erstwhile High Court held that merely because

1999 (1) SCC 759

2002 Suppl. (1) ALD 147 (DB)

the transfer is stated to have been ordered on administrative

grounds, it is not conclusive The Court can pierce the veil and give

a finding whether the transfer is made on administrative grounds

or by way of punishment.

22. Though the transfer is an incidence of service and cannot be

interfered with by this Court in exercise of powers of judicial

review, in normal course, it cannot be resorted to as a measure of

punishment. If the employee is guilty of any misconduct, the

employer has to take action against him in accordance with law

but the transfer cannot be used as a substitute for punishment.

23. In the present facts of the case, the transfer of this petitioner

is only due to pendency of the disciplinary proceedings against him

to keep him away from interfering with the life and liberty of Smt.

Leelima, Junior Engineer, who is co-employee of the petitioner,

working in the same Department, hence, the same cannot be

considered as punitive in nature.

24. However, transfer of this petitioner to a distant place is not a

measurement of punishment and it is only on administrative

ground to keep him away, to avoid interference of life and liberty of

the complainant Smt. Leelima, Junior Engineer. Normally, when

an employee is subjected to such sexual harassment at work place,

it will have serious consequences and it is violative of right of a

woman to work at a particular place. Hence, it is difficult to hold

that the impugned order in this Writ Petition is punitive in nature

and this Court cannot interfere with such order of transfer during

pendency of disciplinary proceedings. Therefore, I find no ground

to interfere with the order impugned in this Writ Petition, in view of

the limited jurisdiction. Consequently, this writ petition is liable to

be dismissed.

25. In the result, this Writ Petition is dismissed, at the stage of

admission. There shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if any, shall

stands dismissed.

_________________________________________ JUSTICE M.SATYANARAYANA MURTHY

Date: 04.03.2021

KK

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.19603 of 2020

Date: 04.03.2021

KK