Delhi High Court
Cdr Shruti Dhawan vs Union Of India And Ors. on 15 October, 2018
$~95
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 15th October, 2018
+ W.P.(C) 10617/2018
CDR SHRUTI DHAWAN ..... Petitioner
Through: Mr.Angsuman Ojha and Mr.Rohit
Pratap, Advocates
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms.Maninder Acharya, ASG with
Mr.Vinod Diwakar, CGSC,
Mr.Harshul Choudhary, Mr.Sahil
Sood and Mr.Viplav Acharya,
Advocates.
Cdr. Varun Singh and Lt.Cdr.Chetan
Bagdi
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S. SISTANI, J. (ORAL)
1. Challenge in this writ petition is to the order of the transfer of the
petitioner herein who was commissioned in the Indian Army on
05.07.1999. At present, the petitioner is attached with the
Headquarters Eastern Naval Command, Vishakhapatnam since
01.02.2018. It is strongly urged before us that this order of transfer is
punitive in nature as the petitioner has made several complaints
alleging sexual harassment by the Commanding Officer and Executive
Officer, INS Circars. It is also contended that the Board of Enquiry
conducted the proceedings in gross violation of the Vishakha
guidelines, principles of natural justice and due process of law was
also not followed. It is also contended that the petitioner has made a
statutory representation to Raksha Mantri, which has not been
decided. It is argued that son of the petitioner is in Class VII and in
case transfer orders are not deferred, the child would suffer on account
of midsession transfer of the petitioner.
2. The petition has been opposed by Ms.Maninder Acharya, learned
Additional Solicitor General, who submits that the petitioner herein
approached the Armed Forces Tribunal by filing O.A.1618/2018
which was withdrawn on the ground that the Armed Forces Tribunal
did not have the territorial jurisdiction. Counsel for the petitioner,
however, submits that the OA was withdrawn as the matters relating to
the transfer are to be considered by the High Court and not by the
Tribunal. Ms.Acharya further submits that uniformily, almost all
orders of transfer are issued by the Naval Headquarters at Delhi but
that would not give rise to a cause of action in favour of the petitioner,
who is stationed at Vishakhapatnam; the enquiry was conducted at
Vishakhapatnam and the entire record is also available at
Vishakhapatnam, thus, this Court does not have territorial jurisdiction
to try and entertain this writ petition. Additionally, it is contended that
on the one hand, the order of 27.08.2018, by which the allegations of
sexual harassment were examined and found to be baseless and
unsubstantiated, has not been challenged and on the other hand, it is
contended that the order of transfer is punitive in nature.
3. Learned ASG submits that it is a matter of coincidence that the order
of transfer and order rejecting the allegations were passed on the same
date whereas the order of transfer is routine in nature and the
petitioner has not been punished but the transfer is on account of
exigencies of service. Ms.Acharya further submits that the child would
not suffer on account of transfer as the Kendriya Vidyalayas have
been formed for the benefit of all the families of the officers and the
medium of education syllabus as also the method of teaching is
uniform and identical and thus, there will be no break in session as far
as the child of the petitioner is concerned.
4. Counsel for the petitioner, at this stage, has prayed that till such time,
the statutory representation is decided, the transfer order may be kept
in abeyance, to which Ms.Acharya submits that in case a
representation has been made directly to the Raksha Mantri, it would
be barred in view of Regulation 239 while learned counsel for the
petitioner submits that there is no bar in approaching Raksha Mantri
directly.
5. Be that as it may. Since the order of transfer as stated by the
respondent is not punitive in nature and the same is on account of
exigencies of service and the transfer order is routine in nature, we are
unable to accede to the request of the petitioner for seeking stay of the
order of transfer. Additionally, we do not find any allegations of
malafide against any particular officer in the writ petition except that
since the petitioner had made allegations of sexual harassment, the
order is punitive in nature. As far as the plea of sexual harassment
raised by the petitioner is concerned, the same has been rejected by an
order dated 27.08.2018 against which for the present no appeal has
been filed although it is submitted by the counsel for the petitioner that
copies of Board of Enquiry proceedings have not been provided. As
far as grievance of non-supply of Board of Enquiry proceedings is
concerned, learned ASG submits that the Board of Enquiry
proceedings will be supplied to the petitioner within a week.
Ms.Acharya further clarifies that in case of filing of a representation, a
three tier procedure is to be adopted i.e. a representation firstly is to be
considered by the Command Headquarters and in case, it is rejected it
is to be then considered at the Naval Headquarters, New Delhi and in
case the petitioner is still aggrieved, it is then to be forwarded to the
Central Government. Ms.Acharya submits that the respondent will
ensure that the representation dated 14.09.2018 is considered and
decided within a period of one week from today by the Command
Headquarters and thereafter in case the same is rejected, the same
would be examined by the Naval Headquarters at New Delhi within
15 days and in case, the petitioner is still aggrieved, he may then
approach the Raksha Mantri. Counsel for the petitioner submits that
besides the aforesaid procedure, he would still want his representation
to be decided by the Raksha Mantri. Accordingly, we request the
Raksha Mantri to consider the representation of the petitioner dated
14.09.2018 in accordance with law within a period of three months.
6. The petition stands disposed of with the above directions.
7. Dasti.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J
OCTOBER 15, 2018/rb
