Ritu Jhadhav vs Union Of India Thr.
2021 Latest Caselaw 6780 MP

                1                          W.A.No. 256/2021

          HIGH COURT OF MADHYA PRADESH

                      BENCH AT GWALIOR



                       DIVISION BENCH

                             PRESENT

            SHEEL NAGU & ANAND PATHAK, JJ.



                    ( Writ Appeal No. 256/2021 )

                             Ritu Jadhav
                               Versus
                      Union of India & Ors.
==============================================
Smt. Ami Prabal, learned counsel for the appellant.

Shri Praveen Kumar Newaskar, learned Assistant Solicitor

General for respondents No. 1 to 3/Union of India.

==============================================
                    JUDGMENT

(Passed on this 25th Day of October, 2021)

Anand Pathak, J.

1. The present writ appeal has been preferred by the

appellant under Section 2 (1) of M.P.Uchcha Nyayalya

(Khandpeeth Ko Appeal) Adhiniyam, 2005 against the order

dated 2/2/2021 passed in W.P.No. 14048/2020; whereby, the

petitioner preferred by petitioner has been dismissed and

direction is given to the respondents for consideration of her

representation by passing a self contained speaking order settling

all the grievances of the petitioner under due intimation to her.

2. Precisely stated facts of the case are that

appellant/petitioner is a lady Sub Inspector posted at CISF Unit

at Airport, Gwalior and as per her submissions she was

discharging her duties with utmost sincerity, devotion and

honesty at present place of posting since 10/5/2018. On fateful

night dated 31/10/2019 when petitioner was deputed on duty of

NAKA/check post at Airport, she intercepted one Dumper vehicle

carrying Gitty (stone aggregate) to enter the city parking area of

Airport premises, Gwalior without any written permission from

the competent authority and as alleged since the authority and

contractor were in hand in gloves with, therefore, they managed

the entry of vehicle in Airport premises by verbal communication.

3. Since, petitioner did not allow the vehicle and thereafter

when Assistant Engineer of Airport Authority Mr. Negi reached

the spot alognwith respondent No. 3 Mr. Arvind Kumar (posted

as Assistant Commandant, CASO/CISF Unit ASG, Gwalior) and

asked the petitioner to allow the vehicle to move which she did

not allow and being infuriated by her objection to give order in

writing, she was immediately placed under suspension on

1/11/2019. This suspension was made on complaint made by Mr.

Vaibhav Negi to Airport Director, Gwalior Airport and said

authority on the same day vide letter dated 1/11/2019 complained

to respondent No. 3 and mentioned some earlier verbal

complaints from passengers against present petitioner to take

action and result was her suspension on same day 1/11/2019 and

departmental proceedings were instituted.

4. Later on vide order dated 27/11/2019, suspension was

revoked and final order was passed in departmental enquiry vide

order dated 27/11/2019 and punishment was given to the

petitioner which has been challenged by the petitioner separately

by the petitioner by way of a writ petition.

5. It is the allegation of the petitioner that on earlier two

occasions she made complaint of sexual harassment against

respondent No. 3 on dated 16/4/2019 in which enquiry was

conducted and she was subjected to pressure and persuasion and

ultimately complaint could not be proved. It was her submission

that after many years she came to her home centre at Gwalior;

where, her husband is also working as Assistant Sub Inspector

(M.P.Police) and three children require her care and control being

mother. Much prior to the completion of tenure of three years, she

has been removed and transferred to Bhopal all of a sudden. Her

transfer is being guided by mala fide attributed to respondent No.

3 because of his overtures and advancement being objected by the

petitioner.

6. Respondents contested the case with equal vehemence and

after filing a strong reply opposed the prayer made by the

petitioner. In short, version of respondents includes allegations of

indiscipline and insubordination by petitioner as she did not

follow the command. Respondents tried to explain the event

occurred on 31/10/2019, on the ground that permission was

earlier taken by Airport Authority, but it was not available at the

time when incident occurred. But to facilitate the construction

work, it was imperative that petitioner should have allowed the

vehicle to enter into the airport precinct to carry out construction

work. She is in habit of unruly behaviour. Respondents referred

the correspondence made by Airport Director in which he referred

some verbal complaints of passengers regarding misbehaviour of

petitioner. On the basis of different circulars issued by Office of

Director General of CISF (Ministry of Home Affairs, New Delhi)

to bring home the fact that transfer is an incident of service and

she has rightly been transferred on administrative grounds.

7. After considering the rival submissions, learned writ Court

dismissed the petition preferred by the petitioner but given a

direction to respondents to consider the representation preferred

by the petitioner within one month by passing a self contained

speaking order settling all the grievances raised by the petitioner

in accordance with law.

8. Heard learned counsel for the parties at length and perused

the documents appended thereto.

9. It is a case; where, petitioner, a lady Sub Inspector earlier

worked at Airport duty in Gwalior is at loggerheads with the

respondents, specially, respondent No. 3 and 4 (both are same)

because she has impleaded respondent No. 4 in personal capacity

also but he did not prefer to respond to the allegations which were

personal in nature, but reply has been filed by respondents No. 1

to 3. Affidavit of Commandant/CASO at Jaipur is also filed.

10. Although, it is settled in law that transfer is an incident of

service and posting is prerogative of the employer to to post any

employee as per the administrative exigency best suited to the

organization and except violation of statute or mala fide, scope is

very limited. Catena of judgments of Apex Court and this Court

are available in this regard; however, this case appears to have a

different factual slant. Although, this Court cannot go into the

merits of those allegations but those allegations certainly reflect

some light over the issue. Some events, as referred in the present

case need recapitulation:-

(i) Petitioner was posted at Airport, Gwalior on

27/5/2018; whereas, as per the Transfer Policy dated

25/9/2017 (Annexure R/2) and 25/11/2011 (guidelines

for posting in airport sector vide Annexure R/3) and vide

guidelines dated 30/12/2014, all indicate that petitioner

could have been given a chance for home posting.

Therefore, she was posted as per the guidelines and

considerate behaviour of Higher Authority so that

petitioner could have carried her job and her family, as

she has three children (all minor) to rear;

(ii) She made a complaint of sexual harassment on

16/4/2019 in categorical terms against respondent No. 4-

Arvind Kumar. Later on, she withdrew her allegations

at some point of time but now, she alleged foul-play.

According to her, she was compelled by respondent No.

4 to take back the complaint;

(iii) Incident in question occurred on 31/10/2019

between 9 pm to 11pm when she did not allow dumper

carrying Gitti to enter into the premises of Airport

without any documents or written permission. She was

directed to let dumper move inside and direction was

given by none other than respondent No. 4. In reply, he

makes out a point that permission was already given but

it was lying in the office of the terminal, therefore, could

not be produced when she asked for order in writing.

This incident smacks suspicious response of respondent

No. 4 prima facie because of his insistence to let dumper

in on his oral direction;

(iv) Immediately in the morning, Mr. Vaibhav Negi, (in-

charge Civil, Gwalior Airport) makes a long complaint

by way of inter-office note and on same day, Airport

Director referred the letter to respondent No. 3 &4 and

refer some serious verbal complaints from passengers

which were earlier received against the petitioner for her

unruly and rude behaviour and after receiving said letter

on same day, respondent No. 3 placed petitioner under

suspension. Undue haste smacks mala fide;

(v) Immediately after some days, suspension order is

revoked vide order dated 27/11/2019 and departmental

enquiry proceeded which culminated in final order dated

27/11/2019 in which punishment was awarded to the

petitioner of deduction of basic pay of five days;

(vi) In sexual harassment case, in November, 2019, her

complaint got dismissed because in enquiry allegations

were not found proved. Prior to it also, she made a

complaint in year 2018 against the same person but

somehow she withdrew her complaint on 24/6/2018

(vide Annexure R/6);

11. If all these facts and the lengthy pleadings from both sides

(even respondents filed lengthy reply and additional reply) it

appears that both the parties had some element of personal

grievances with each other and this indicates malice prima facie

because petitioner is at the receiving ends.

12. From different guidelines annexed with the reply filed by

respondents, it appears that respondents CISF has very carefully

and methodically prepared guidelines in which welfare of the

employees and working of the Institution has been balanced out.

Said guidelines contemplates posting of an employee, if her / his

spouse is in Govt. job although in different organization and also

to take care of choice of Employee regarding Home Sector.

Guidelines also take care of welfare of children of employees so

that employees can be assured of their welfare and devote

themselves fully to the cause of duty.

13. Therefore, all events of the case, as referred in preceding

paragraphs indicate that although in administrative exigency

anybody can be transferred anywhere, but it should be in fair and

transparent manner and should not be as a punitive measure

because in that condition it may lower down the moral of the

force. Here the case is of a lady Sub Inspector and when females

are standing shoulder to the shoulder to the men to the cause of

Duty and Nation then it is the duty of the employer to take care of

peculiar nature of predicament, faced by the female employees in

any organization, specially Uniform Department like CISF,

Nobody can deny existence of some stray incidents against their

modesty and dignity and those incidents compelled the

promulgation of appropriate legislature also in this regard.

14. Therefore, this Court consider it apposite to refer the matter

to the Director General of CISF, New Delhi to look into it

personally and sympathetically. After requisition of record and

necessary inputs, appropriate decision be taken looking to the

welfare of the organization and addressing the problems faced by

the petitioner and if found suitable for petitioner and if possible

for the organization, then a chance be given to the petitioner to

rejoin at previous place of posting at ASG, Gwalior. This Court

does not intend to burden the Director General for opening the

concluded proceeding but expect fair treatment to all employees

regarding their working conditions in future.

15. Since, it was informed earlier that appellant/petitioner

joined at transferred place of posting at Bhopal and she already

complied the order and writ Court also directed to settle the

grievances of the petitioner, therefore, those observations are

affirmed by this Court and writ appeal is disposed of with

direction as discussed above. Needless to say that case of the

appellant/petitioner be considered and decided in accordance with

law preferably within two months from the date of receipt of

certified copy of this order alongwith copy of all pleadings

contained in petition including petition, reply and rejoinder.

Director General shall pass a speaking order under due intimation

to the petitioner while settling all her grievances, as per law.

16. Appeal stands allowed and disposed of in above terms.

                                                             (Sheel Nagu)                               (Anand Pathak)
                                                                Judge                                       Judge


    jps/-


JAI         Digitally signed by JAI PRAKASH SOLANKI
            DN: c=IN, o=HIGH COURT OF MADHYA
            PRADESH BENCH GWALIOR, ou=HIGH
            COURT OF MADHYA PRADESH BENCH

PRAKASH     GWALIOR, postalCode=474001, st=Madhya
            Pradesh,
            2.5.4.20=287738d30aabaeda9b10cecdf179


SOLANKI
            cec865c7633f4cfb9e38ce14fcbb05b9522a,
            cn=JAI PRAKASH SOLANKI
            Date: 2021.10.25 17:44:42 +05'30'