Introduction
In a recent ruling, the Hon'ble Madhya Pradesh High Court has overturned an order transferring a sub-inspector, who faced allegations under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also known as the POSH Act. The court deemed the transfer, which occurred while internal committee proceedings were pending, to be unjustified.
Hon'ble Shri. Justice Vivek Jain, delivering the verdict on September 03, 2024, criticized the transfer, stating:
“The transfer of the petitioner is not on the ground of any administrative exigency like requirement of work at Maihar. The transfer is only on account of pendency of the complaint before the Internal Complaints Committee. The contention of the petitioner seems to have substance in saying that the order amounts to penalizing the petitioner by transferring him to a place almost 150 Km. away just on account of pendency of the enquiry, that too which is in position of indefinite stalemate.”
Thus, considering the facts of the case, the court had no hesitation in holding that the transfer of the petitioner merely on account of pendency of the Internal Committee proceedings is not justified in absence of any recommendations of the committee, and the committee proceedings having been brought to an indefinite stalemate by the intervenor herself.
The transfer amounts to nothing but undue victimization and harassment of the petitioner. Thus, the impugned order of transfer dated July 01, 2024 deserved to be and is hereby quashed, the court remarked.
Facts of the Case
It is the case of the petitioner, who is working on the post of Sub Inspector (Ministerial), challenging the transfer order dated July 01, 2024, whereby the petitioner has been transferred from VIth Battalion SAF, Jabalpur to the Office of Superintendent of Police Maihar, following allegations of sexual harassment made by a lady Head Constable.
The petitioner contested the move as a punitive action rather than a legitimate administrative decision.
It is the case of the petitioner that earlier two inquiries were carried out in the matter of allegations made by the lady Head Constable against the petitioner and in both these inquiries, the petitioner had been given a clean chit. Despite this, his transfer has been proposed due to the interpersonal conflicts between the petitioner and the complainant. Hence, the transfer proposal pales into insignificance.
Moreover, this court had stayed the operation of the transfer order on July 09, 2024. Now reply has been filed by the State as well as the lady Head Constable who has intervened in the said petition.
Argument of the Intervenor (i.e., Lady Head Constable)
On the other hand, the complainant/intervenor contended that the petitioner had been indulging in sexual/gender harassment of the intervenor and the intervenor had moved an application and on the said application proceeding under the POSH Act had been initiated.
The counsel on behalf of the complainant invoked Section 12 of the POSH Act, which provides for the transfer of either aggrieved woman or the accused upon the recommendation of the Internal Committee or the Local Committee, as the case may be, arguing that the transfer of the petitioner was in line with the statutory provisions.
It was further argued by the counsel for the intervenor as well as the State that the continuation of the petitioner at the same place would not be conducive to cordial atmosphere and at workplace and may also affect the enquiry being carried out under the POSH Act.
Argument of the Petitioner
It is the contention of the petitioner that the intervenor had been creating impossible situation for the petitioner in getting the proceedings under the POSH Act pending by her non-cooperation in the proceeding of the Internal Committee as a result of which the Internal Committee is unable to finalize the proceeding and by taking benefit of pendency of the said proceedings, the complainant has sought transfer of the petitioner.
Findings of the Court
From a perusal of the documents placed on record, the court observed that the committee, initially constituted on October 18, 2023 had been repeatedly reconstituted on May 13, 2024 and June 04, 2024. However, the complainant/intervenor expressed a lack of trust in both the Internal and Local Committees vide letter dated July 01, 2024, requesting that the matter be reviewed by a State Level Committee constituted at a Higher Level, without mentioning a single word of reason or apprehension for such mistrust.
“The intervenor has created an impossible situation of stalemate in herself bringing to the proceedings of the Internal Committee at standstill and demanding such a Committee to be constituted which is not contemplated under the POSH Act.”
Thus, it appears to the court that the intervenor had tried to take undue advantage of mere proceedings under POSH Act to get the petitioner transferred and then bringing the proceedings to an indefinite halt.
“Most importantly, the letter expressing mistrust in the committee was submitted on the same date when the impugned transfer order was issued i.e., on July 01, 2024. This strategic selection of date to express mistrust in the Internal Committee indicates that after getting the petitioner transferred, the intervenor only wanted to keep the Complaint pending indefinitely," the court added.
Examining Section 12 of the POSH Act, the court noted that a transfer under this provision must be based on a recommendation from the Internal Committee or the Local Committee, as the case may be. In this case, no such recommendation has been made by the Internal Committee.
Therefore, looking to the allegations in the complaints made against the petitioner and looking to the counter allegations made by either party against other, the Hon'ble Madras High Court delivered a significant verdict on September 03, 2024 quashing the impugned order of transfer dated July 01, 2024 and allowed the petition.
However, noting that it was within the authority of the competent authority to make necessary arrangements to ensure a harmonious work environment, the court grants liberty to the respondents to transfer, post or attach the petitioner to any other office or establishment within Jabalpur City only during pendency of the proceedings under POSH Act so that cordial atmosphere can be maintained in the office and it would not cause any undue disturbance in the life of the petitioner just on account of pendency of proceedings under the POSH Act which have come to an indefinite stand still on account of the stand taken by the complainant/intervenor before the Complaints Committee.
By quashing the transfer, the court highlighted the importance of adhering to the legal framework under the POSH Act and protected the petitioner from undue victimization.
This judgment also serves as a reminder that actions such as transfers should be grounded in administrative need and backed by proper recommendation, rather than being used as punitive measures, especially during the pendency of proceedings.
Current Position under the POSH Act
To address the question of when a transfer can be considered legal and valid under the POSH Act, we turn to Section 12 of the POSH Act which outlines the interim measures that can be taken during the pendency of an inquiry.
A notable case illustrating this is the case of Devender Rai vs. Sangeet Natak Akademi New Delhi on March 14, 20231. In this case, the petitioner approached the Hon'ble High Court of Delhi seeking to set aside the Internal Committee Report that led to his transfer, following a complaint of sexual harassment filed by a lady employee. The complaint alleged that the petitioner had made inappropriate remarks towards her, prompting an inquiry. Consequently, the Internal Committee submitted its report recommending that the petitioner be transferred to an area far away from the Delhi headquarters.
The petitioner argued that he was denied an opportunity to present his explanation before the transfer and that the transfer order should be quashed, thereby resulting him to file an appeal. The petitioner's counsel contended that transferring him before the conclusion of the inquiry under the POSH Act was contrary to law. It was further argued that the transfer did not comply with Section 12 of the POSH Act, which requires a written complaint from the aggrieved woman, a step the petitioner claimed had not occurred in this instance.
After perusing the impugned transfer office order, the court held that the transfer does not seem to be punitive in nature.
“Under Section 12(1)(a) of the Act clearly, the employer has the power to transfer the person against whom allegations may have been made for obvious reasons. Moreover, the impugned action prima facie seems to be in consonance with the spirit of the POSH Act even though no written complaint has been filed by the victim,” the court held.
In addition, the court rejected the contention of the petitioner, stating that the transfer is bad in law as proceedings before the Committee have not been concluded, to be baseless, as section12 of the Posh Act contemplates transfer during the pendency of inquiry. Hence, the court declined to grant any interim relief to the petitioner, reinforcing that transfers during the pendency of an inquiry are valid if they align with the provisions of Section 12.
A similar transfer dispute arose in the case of P S vs. Pensions And Pensioners Welfare on April 15, 20242 before the Hon'ble Central Administrative Tribunal- Mumbai, wherein the court find the transfer order to be malicious.
In this case, the applicant, a Senior Clerk Stenographer in Central Bureau of Investigation (CBI) filed a sexual harassment complaint on January 24, 2022 under the POSH Act against CBI officers alleging sexual harassment in her residential staff quarters. Although her complaint was dismissed on the ground that the residential staff quarter does not come within the ambit of the definition of ‘workplace' under the POSH Act, she subsequently received an immediate transfer order, purportedly issued in the ‘public interest'.
The applicant challenged the transfer order, arguing that it was issued with malafide intent as she had filed number of complaints against CBI officers for mental harassment, criminal intimidation and outraging her modesty. She further contended that instead of taking action against these officers, the respondents have resorted to the shortcut method of getting rid of the applicant by transferring her in public interest.
The applicant relied on the judgment passed in the case of Somesh Tiwari versus Union of India and Others (2009), wherein it was held that:
“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. 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."
Thus, keeping these principles in mind the court dismissed the petitioner's claim that she could not be transferred based on her tenure, ruling that the transfer was not in violation of the transfer policy. However, the court did entertain the applicant's argument that the transfer was motivated by retaliation for her complaints. The court observed that the transfer was issued shortly after the POSH complaint, raising suspicion that the transfer was punitive rather than in the public interest. Concluding that the transfer was, in fact, a retaliatory measure taken as a form of punishment, the court held the transfer to be illegal and set it aside.
Conclusion
These cases illustrate that the legality of a transfer under the POSH Act hinges on several factors, including whether it is punitive in nature or an interim measure during an inquiry. While Section 12 of the POSH Act allows for interim measures such as transfers, courts are vigilant in ensuring that such measures are not misused for retaliatory purposes. In summary, transfers that are intended as punishment, rather than to safeguard the interests of either party during the pendency of an inquiry are likely to be deemed illegal and set aside.
Footnotes
1. https://indiankanoon.org/doc/64626320/
2. https://indiankanoon.org/doc/94996505/
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