PoSH: Calcutta HC Judgement - Transfer is the incidence of employment, but should the aggrieved person

 

 

XXX
vs.
The State of West Bengal & Or’s.

CALCUTTA HIGH COURT

Key Issues:

 

1.    Whether a complainant can be transferred to another place during pendency
of her complainant under the PoSH Act!

2.    Whether an employee has a vested right to continue to work at any one place!

3.    Whether a request for posting nearby place of residence or work place be
considered !

Ruling:

1)    In complaint of sexual harassment, the authority concerned may transfer the complainant to any other different place to remove her from unhealthy environment since transfer for administrative reasons is an incidence of service and no employee has any vested right to continue to work at any one place.

2)    For making complainant of sexual harassment, the complainant has to approach authority/Internal Complaints Committee/Disciplinary Authority etc.

3)    For dealing with the complainant of sexual harassment, the authority concerned has to constitute an Internal Complaints Committee as per provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

Brief:

1.    The Appellant made complaint of sexual harassment in Gram Panchayat against Executive Assistant –

2.    Appellant was transferred to another Gram Panchayat and she challenged her transfer seeking direction to authorities to consider her complaint –

3.    The Writ Court rejected her challenge to transfer order on the grounds that in such a complaint authority can transfer complainant to remove her from unhealthy environment and transfer which was for administrative reasons as transfer is an incidence of service, giving her liberty to approach Block Development Officer for constitution of an Internal Complaints Committee as per law, for adjudication of issue of sexual harassment in accordance with law –

 

4.    Appellant has challenged order of writ court in appeal – Held, indeed, an employee can be transferred for administrative exigency – No employee has any vested right to continue to work at any one place –

 

5.    Considering transfer at a distant place, the appellant was directed to make such a representation within a week to concerned authorities for considering her posting at some nearby place

 

6.    Meanwhile, the Joining period at new place is extended till January 2023 – Since stay application is not decided, urgent certified photostat copy of this order be given to the parties in accordance with law as expeditiously as possible.

Judgment – 18.01.2023

Apurba Sinha Ray, J. and Arijit Banerjee, J. –By consent of the parties, the appeal and the connected application are taken up together for hearing.

A judgment and order dated January 11, 2023, whereby the appellant's writ petition being WPA 428 of 2023 was disposed of, is under challenge in this appeal.

The appellant had approached the learned Single Judge with a case that she had been sexually harassed while serving as a Gram Rojgar Sevak in Egara Gram Panchayat, District-Paschim Burdwan. Apparently, she had suffered sexual harassment in the hands of the respondent No. 6, who had joined the post of Executive Assistant in January 4, 2022, on transfer from Kajora Gram Panchayat. Soon thereafter the petitioner was transferred to Amrasota Gram Panchayat in the same capacity.

The appellant/writ petitioner challenged the transfer order and also prayed for a direction on the authorities to consider her complaint against the respondent No. 6. The learned Judge rejected the challenge to the transfer order on two grounds. Firstly, the learned Judge observed that under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, as an interim measure the concerned authority can transfer the complainant and remove her from unhealthy environment in which she had been allegedly harassed. Secondly, the transfer was for administrative reasons. Transfer is an incidence of service.

As regards the other prayer of the appellant, the learned Judge granted liberty to the appellant/writ petitioner to approach the Block Development Officer, Raniganj Development Block for constitution of an Internal Complaints Committee as per law, for adjudication of the issue of sexual harassment in accordance with the provisions of the 2013 Act. The learned Judge further directed that if such approach is made, the Committee will be constituted and the consequential steps will follow as per law. The learned Judge directed the appellant to join the transfer post within January 17, 2023.

Being aggrieved, the writ petitioner is before us by way of this appeal.

We have heard learned counsel for the parties. We see no apparent infirmity in the order under appeal. Indeed, an employee can be transferred for administrative exigency. Transfer is no doubt an incidence of service. No employee has any vested right to continue to work at any one place. Further, for the protection of a lady employee who alleges sexual harassment, transfer may also be effected. We do not interfere with the learned Judge's decision on the issue of transfer.

However, learned advocate for the appellant says that the appellant has been transferred to a place which is eight kilometres from her residence. This will cause undue hardship to her. There are posts available much nearer to her residence. The authorities should consider posting her at some place which is near her residence.

We grant liberty to the appellant to make a representation to the concerned Sub-Divisional Officer with a prayer for being posted at a nearby place. If such a representation is made within a week from date, the same shall be disposed of by the Sub-Divisional Officer in accordance with law by passing a reasoned order, after giving an opportunity of hearing to the appellant or her authorized representative, within a fortnight from the date of receipt of the representation. While we do not tie the hands of the Sub-Divisional Officer, we are sure the officer shall consider the representation sympathetically.

In so far as the other limb of the order under appeal is concerned, we modify the order to the extent that instead of approaching the Block Development Officer, the appellant will be at liberty to approach the District Magistrate being the respondent No. 5 herein for taking appropriate steps in accordance with the 2013 Act.

We see from the order under appeal that the appellant was directed to join the new workplace by January 17, 2023, i.e., yesterday. We extend such time till January 20, 2023.

Since we have not called for affidavits, the allegations contained in the stay application are deemed not to be admitted by the respondents.

M.A.T. 67 of 2023 is disposed of along with the application being I.A. No. CAN 1 of 2023.

Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance with all the necessary formalities.

Reference: 2023 LLR 384,

Editors’ Notes:

 

      While it is well established rights and prerogative of the employer to transfer an employee, being incident of service, the essential of fair practice requires that it does not result in mis-carriage of justice

      The very objective the PoSH Act is to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters therewith or incidental thereto.

      The Statement of Objects and Reasons of the Act are self-explanatory.

      To ensure that the victim of sexual harassment is not further put at hardship Section 12.Action during pendency of enquiry,  empowers the ICC or the LCC, inter alia, to recommend to the employer to transfer the aggrieved woman or the respondent

to any other workplace

 

Obviously, the ICC or LCC seldom apply their mind to ensure fair practice or succumb to the pressure of the employer resulting in the transfer of the aggrieved person, the question arises as to why not the respondent is not transferred ???, during the pendency of the enquiry?

Administrative reasons being a ploy is often used as an instrument of harassment of the aggrieved and the HC ought to have missed this vital point!!!