Supreme Court of India
PUNJAB AND SIND BANK AND ORS.versusMRS. DURGESH KUWAR
- Citation
- 2020 INSC 225
- Decided
- 25 February 2020
- Disposal
- Disposed off
- Bench
- D Y CHANDRACHUD
Holding
The transfer order was vitiated by mal‑afides and unfair treatment, and the High Court's decision quashing it was upheld.
Summary
Mrs. Durgesh Kuwar, a Chief Manager (Scale IV) of Punjab and Sind Bank, was transferred from the Indore branch to a small rural branch at Sarsawa after she reported serious irregularities in liquor contractor accounts and alleged sexual harassment by the Zonal Manager. She contended that the transfer was retaliatory, violated bank posting rules, and that the bank's Internal Complaints Committee (ICC) was improperly constituted under the Sexual Harassment Act. The High Court quashed the transfer, a decision affirmed by the Supreme Court, which held that the transfer was vitiated by mal‑afides and amounted to unfair treatment violating Articles 14, 15 and 21 of the Constitution. The Court also found a defect in the ICC because the so‑called independent member was a panel lawyer of the bank, contrary to Section 4(2)(c) of the Act. Consequently, the respondent was ordered to be reposted at the Indore branch as a Scale IV officer for one year, after which normal administrative exigencies may apply. The appeal by the bank was dismissed.
Issues considered
- The legality of the order of transfer of a bank officer in view of alleged mal‑afides and violation of service rules
- Whether the transfer infringes the employee's constitutional rights under Articles 14, 15 and 21
- Whether the ICC constituted under the Sexual Harassment of Women at Workplace Act, 2013 was defective for lacking an independent member
- Whether the High Court's quashing of the transfer can be sustained given the principle that transfer is an exigency of service
Legislation cited
Subjects
service lawtransferbankingsexual harassmentInternal Complaints Committeemal‑afidesconstitutional rightsjudicial reviewunfair treatment
Judgment
[2020] 4 S.C.R. 207 207
PUNJAB AND SIND BANK AND ORS. A
v.
MRS. DURGESH KUWAR
(Civil Appeal No. 1809 of 2020)
FEBRUARY 25, 2020 B
[DR. DHANANJAYA Y CHANDRACHUD
AND AJAY RASTOGI, JJ.]
Service Law – Banking Service – Order of transfer – Judicial
review of – Respondent, Chief Manager in Scale IV at Indore Branch
C
of the first appellant-Bank was transferred to Branch Office at
Sarsawa, Jabalpur – Submitted representation to Zonal Manager
for being retained at Indore – Had earlier pointed out irregularities
w.r.t accounts of liquor contractors – Also made sexual harassment
allegations against the Zonal Manager – Single Judge quashed the
order of transfer – Affirmed by Division Bench – Held: Transfer is D
an exigency of service – Unless an order of transfer is established
to be malafide or contrary to statutory provision or has been issued
by an authority not competent to order transfer, the Court in exercise
of judicial review would not be inclined to interfere – In the present
case, respondent wrote repeated communications to authorities
E
drawing their attention to serious irregularities in the course of
maintenance of accounts of liquor contractors and levelled specific
allegations of corruption – Admittedly, the branch to which the
respondent was posted was not commensurate to her position as a
Scale IV officer – Respondent was victimized – Order of transfer
was an act of unfair treatment vitiated by malafides – Decision of F
High Court is affirmed – Respondent be reposted at the Indore
branch as a Scale IV officer for one year from today – Upon the
expiry of said period, if any administrative exigency arises the
competent authority is at liberty to take appropriate decision w.r.t
her place of posting independently in accordance with relevant rules
G
and regulations of the bank, in the interest of fair treatment to the
officer – Respondent be paid costs of Rs.50,000 /- within one month
– Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 – ss.3, 4 and 6 – Constitution
of India – Arts.14, 15 and 21.
H
207
208 SUPREME COURT REPORTS [2020] 4 S.C.R.
A Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 – s.4(2)(c) – Respondent, Chief
Manager in Scale IV at Indore Branch of the first appellant-Bank
was transferred to Branch Office at Sarsawa, Jabalpur – She had
inter alia made sexual harassment allegations against the Zonal
Manager – Constitution of Internal Complaints Committee (ICC)
B
objected by the respondent – Held: 2013 Act was enacted to provide
protection against sexual harassment of women at the workplace
as well as for the prevention and redressal of complaints of sexual
harassment – Sexual harassment at workplace is an affront to the
fundamental rights of a woman to equality u/Arts.14 & 15 and her
C right to live with dignity u/Art. 21 as well as her right to practice
any profession or to carry on any occupation, trade or business–
Clause (c) of s.4(2) indicates that one member of the ICC has to be
drawn from amongst a non-governmental organization or
association committed to the cause of women or a person familiar
with issues relating to sexual harassment– Purpose thereof is to
D
ensure the presence of an independent person who can aid, advise
& assist the Committee – It obviates an institutional bias – In the
present case, such member was a panel lawyer of the bank at the
material time – No justification on the part of the bank not to accede
to the request of the respondent for replacing that person with a
E truly independent third party having regard to the provisions of
s.4(2)(c) – There was a fundamental defect in the constitution of
the ICC set up by the bank – Constitution of India – Arts.14, 15 and
21 – Service Law – Banking Service.
Disposing of the appeal, the Court
F HELD: 1.1 Transfer is an exigency of service. An employee
cannot have a choice of postings. Administrative circulars and
guidelines are indicators of the manner in which the transfer policy
has to be implemented. However, an administrative circular may
not in itself confer a vested right which can be enforceable by a
G writ of mandamus. Unless an order of transfer is established to
be malafide or contrary to a statutory provision or has been issued
by an authority not competent to order transfer, the Court in
exercise of judicial review would not be inclined to interfere. [Para
17][218-C-D]
H
PUNJAB AND SIND BANK AND ORS. v. MRS. DURGESH 209
KUWAR
1.2 The Sexual Harassment of Women at Workplace A
(Prevention, Prohibition and Redressal) Act, 2013 was enacted
to provide protection against sexual harassment of women at
the workplace as well as for the prevention and redressal of
complaints of sexual harassment. Sexual harassment at the
workplace is an affront to the fundamental rights of a woman to
B
equality under Articles 14 and 15 and her right to live with dignity
under Article 21 of the Constitution as well as her right to practice
any profession or to carry on any occupation, trade or business.
Section 4 of the Act requires the constitution of an ICC at all the
administrative units or offices of the work place. Sub-section (2)
of Section 4 of the Act provides for the constitution of the ICC. C
Clause (c) of Section 4(2) indicates that one member of the ICC
has to be drawn from amongst a non-governmental organization
or association committed to the cause of women or a person
familiar with issues relating to sexual harassment. The purpose
of having such a member is to ensure the presence of an
D
independent person who can aid, advise and assist the Committee.
It obviates an institutional bias. During the course of hearing, we
have received a confirmation from the learned senior counsel
appearing on behalf of the bank that Ms. Seema Gupta was, in
fact, a panel lawyer of the bank at the material time. This being
the position, there is no reason or justification on the part of the E
bank not to accede to the request of the respondent for replacing
Ms. Seema Gupta with a truly independent third party having
regard to the provisions of Section 4(2)(c) of the Act. This is a
significant facet which goes to the root of the constitution of the
ICC which was set up to enquire into the allegations which were
F
levelled by the respondent. There was a fundamental defect in
the constitution of the ICC which was set up by the bank. [Paras
20-23][219-F; 220-D; 221-B-D, G]
1.3 The respondent had written repeated communications
to the authorities drawing their attention to the serious
irregularities in the course of the maintenance of accounts of G
liquor contractors and in that context had levelled specific
allegations of corruption. The respondent was posted on 14
December 2017 to a branch, which even according to the bank,
was not meant for the posting of a Scale IV officer. The sanctity
which the bank attaches to posting officers of the appropriate H
210 SUPREME COURT REPORTS [2020] 4 S.C.R.
A scale to a branch commensurate with their position is evident
from the Board’s Resolution. Admittedly, the branch to which
the respondent was posted was not commensurate to her position
as a Scale IV officer. The respondent was victimized. Her reports
of irregularities in the Branch met with a reprisal. She was
transferred out and sent to a branch which was expected to be
B
occupied by a Scale I officer. This is symptomatic of a carrot and
stick policy adopted to suborn the dignity of a woman who is
aggrieved by unfair treatment at her workplace. The order of
transfer was an act of unfair treatment and is vitiated by malafides.
The respondent officer shall be reposted at the Indore branch as
C a Scale IV officer for a period of one year from today. Upon the
expiry of the period of one year, if any administrative exigency
arises the competent authority of the bank would be at liberty to
take an appropriate decision in regard to her place of posting
independently in accordance with law keeping in view the relevant
rules and regulations of the bank, in the interest of fair treatment
D
to the officer. [Paras 24, 26][221-G-H; 222-A-C, F-G]
Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306:
[1991] 2 Suppl. SCR 492; State of UP v. Gobardhan
Lal (2004) 11 SCC 402 : [2004] 3 SCR 337; Rajendra
Singh v. State of UP JT 2009 (10) SC 187 : [2009] 15
E SCR 254 – referred to.
Case Law Reference
[1991] 2 Suppl. SCR 492 referred to Para 12
[2004] 3 SCR 337 referred to Para 12
F
[2009] 15 SCR 254 referred to Para 12
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1809
of 2020.
From the Judgment and Order dated 18.03.2019 of the High Court
G of Madhya Pradesh, Indore Bench in WA No. 377 of 2019.
Sudhir Chandra, Sr. Adv., Sandeep Prabhakar, Amit Kumar,
P.S. Sudheer, Rishi Maheshwari, Ms. Anne Mathew, Bharat Sood, Ms.
Shruti Jose, Advs. for the Appellants.
Colin Gonsalves, Sr. Adv., Ms. Olivia Bang, Satya Mitra, Advs.
H for the Respondent.
PUNJAB AND SIND BANK AND ORS. v. MRS. DURGESH 211
KUWAR
The Judgment of the Court was delivered by A
DR DHANANJAYA Y CHANDRACHUD, J
1. Leave granted.
2. A senior officer of a public sector banking institution
complains that her reports about irregularities and corruption at her B
branch and her complaints against an officer who sexually harassed her
met with an order of transfer. The case involves the intersection of
service law with fundamental constitutional precepts about the dignity
of a woman at her workplace.
3. This appeal arises from a judgment of a Division Bench of the C
Indore Bench of the High Court of Madhya Pradesh dated 18 March
2019 in a Writ Appeal arising out of an order of the learned Single Judge
dated 11 February 2019.
4. The respondent was appointed as a Probationary Officer of
the Punjab and Sind Bank, the first appellant, on 8 October 1998 in D
Junior Management Grade Scale I. She was promoted to the post of
Chief Manager in Scale IV. On 2 September 2011, the respondent was
transferred to the Zonal Office at Mumbai. On 7 October 2011, she
was transferred to the Branch Office at Indore. In September 2016, the
first respondent was promoted to the post of Chief Manager in Scale
IV. On 23 September 2016, the competent authority of the bank decided E
to continue her at the branch in Indore upon promotion. On 11 December
2017, the respondent was transferred from the Branch Office at Indore
to the Branch Office at Sarsawa in the district of Jabalpur. Intimation of
the transfer was furnished to her on 14 December 2017. On 31 January
2018, the respondent submitted a representation to the Zonal Manager, F
recording a reference to the circulars of the bank governing the posting
of women officers. She made a request for being retained at Indore.
Following the earlier representation, she submitted a reminder on 15
February 2018 and a representation on 19 February 2018 to the Executive
Director of the bank.
G
5. In the course of her representations, the respondent submitted
that during the course of the previous two years, she had, as a Branch
Manager, inquired into the concentration of accounts maintained by liquor
contractors at the branch and had detected grave irregularities which
were hazardous to the interest of the bank. The respondent had submitted
a detailed report to the Zonal Manager, Bhopal on 31 December 2016. H
212 SUPREME COURT REPORTS [2020] 4 S.C.R.
A In her report, she made several observations about lapses such as the
existence of duplicate Bank Guarantee registers. She had recorded that
the registers were not identical and some entries are missing from the
new register. She observed that limits were sanctioned to parties not
having any connection to Indore for the execution of liquor contracts.
The Respondent’s grievance was that instead of taking steps to rectify
B
the irregularities, she was being pressurized to cover up the misdemeanors
at the level of the branch. Moreover, she alleged that this was
compounded by the Zonal Manager (who was named) calling her at late
hours at home to discuss business which was not of urgent nature. The
respondent made a specific allegation against the Zonal Manager. For
C the purpose of the present proceedings, it would be necessary to extract
from the representation which was submitted by the respondent to the
Executive Director. It reads thus:
“I was surprised to observe that within a span of last 2 years
during my predecessor time many accounts of liquor contractors
D had shifted to this branch from local branches as well as from far
off places in UP. Many accounts of newly floated firms were
opened and fresh limits of substantial amounts were sanctioned
in a very haphazard manner, where even KYC norms were not
followed. In a very short time concentration of liquor accounts
had reached to such a high level that created a suspicion. When I
E started analyzing these accounts as per banking norms, I found
many grave irregularities hazardous to the interest of the Bank.
Furthermore, high value BGs were issued where copies of such
Bgs were neither available in branch nor at ZO. Guarantees were
issued to the liquor contractors in a manner that facilitated the
F contractors to use the same on different occasion with different
Govt. Departments for different tenders, which caused huge
revenue loss to the bank. I submitted detailed report to ZM Bhopal
vide my letter dated 31.12.2016 (serious irregularities-copy
attached) and followed by many subsequent communications and
discussions from time to time for taking necessary action and
G guidance.
It was shocking to observe that ZO instead of taking necessary
steps to rectify the irregularities or providing desired guidance
and support to me, I was pressurized to keep the things under
cover by various nets and communications which are on record.
H
PUNJAB AND SIND BANK AND ORS. v. MRS. DURGESH 213
KUWAR [DR DHANANJAYA Y CHANDRACHUD, J.]
I had difficult road to travel as it is a well-established fact that I A
have never given up to corrupt practices. When I tried to fix these
issues at branch level, first I was offered bribe, on my refusal,
efforts were made to malign my image by raising many false
complaints. I did my duties honestly unhindered by these events
in safeguard the interest of the bank.
B
I was regularly bringing this to the notice of my next higher
authority Zonal Manager i.e. Mr. Pankaj Dwivedi he started
harassing me personally as well as professionally. First he
called me at late hours at home to discuss not so important
official matters then started insisting me to meet him
personally either in Indore or Bhopal unofficially. Seems C
that my spurring of his advances towards me provoked
him into adopting vengeful attitude towards me.
Finding me not dancing to their tunes for covering up the ill
practices going on in the branch. ZO thought it proper to transfer
me from P.Y. Indore Branch to a far off (Distance about 600 D
Kms) small rural branch.”
(Emphasis added)
6. The respondent also made a grievance of the fact that she had
been transferred to a small rural branch situated at a distance of about E
600 kilometers, which would be headed by a Scale I officer and was
hence not a posting commensurate with her position as a Scale IV officer
of the bank. In response to her representations, the respondent was
informed that her transfer was in accordance with administrative and
service exigencies and that she should join the place of posting
immediately. F
7. The order of transfer was challenged before the High Court of
Madhya Pradesh under Article 226 of the Constitution. During the
pendency of the proceedings, the order of transfer was stayed by a
learned Single Judge. After the pleadings were completed, the writ
petition was heard and by a judgment dated 11 February 2019, a learned G
Single Judge quashed the order of transfer. The learned Single Judge
was of the view that though, as a matter of principle, transfer orders are
ordinarily not interfered with in the exercise of judicial review, the
respondent has been transferred in violation of the circulars of the bank
as well as the guidelines issued by the Ministry of Finance in the
H
214 SUPREME COURT REPORTS [2020] 4 S.C.R.
A Department of Financial Services. The High Court noted that contrary
to the classification which has been made by the bank, the respondent
who is a Scale IV officer, was posted to a branch at which only a Scale
I officer could be posted. That apart, the learned Single Judge also
observed that no reply had been filed by the fourth respondent
controverting the specific allegations which had been levelled by the
B
original petitioner.
8. The judgment of the learned Single Judge has been affirmed in
appeal by the Division Bench of the High Court. Among other things,
the Division Bench has held that the respondent had levelled serious
allegations against the Zonal Manager which were brought to the attention
C of the Executive Director of the bank. The High Court has taken note
of the fact that the respondent had drawn several irregularities to the
notice of the higher authorities and the transfer was mala fide, as a
reprisal to the action which had been initiated by the respondent and the
allegations which she had levelled against the Zonal Manager.
D 9. Proceedings under Article 136 of the Constitution have been
instituted before this Court by the bank as well as its General Manager,
Zonal Manager and Deputy General Manager. The Zonal Manager
against whom allegations have been levelled by the respondent has
since been promoted as Deputy General Manager and is presently posted
E at the head office in New Delhi. The Special Leave Petition under Article
136 of the Constitution has also been filed on his behalf and he is
represented as the fourth petitioner.
10. Assailing the judgment of the High Court, Mr Sudhir Chandra,
learned senior counsel appearing on behalf of the appellants submitted
F that the postings of the respondent indicate that she has been in Indore
for several years. This was sought to be buttressed by relying on a
chart which is annexed to the proceedings and is extracted below:
Place of W.E.F. Total Reason for transfer
posting Tenure
G Branch Office, 08.10.1998 2.5 years Joined the Bank at
Jaipur Jaipur Station at the place of her
Road, Jaipur domicile.
Zonal Office, 11.04.2001 3.1 years Routine transfer and
Jaipur remained posted at her
domicile.
H
PUNJAB AND SIND BANK AND ORS. v. MRS. DURGESH 215
KUWAR [DR DHANANJAYA Y CHANDRACHUD, J.]
Branch Office, 11.05.2004 3.1 years Transferred to spouse's A
Gandhi Road, place of posting.
Ahmedabad
Branch Office, 07.06.2007 1.10 years Routine transfer. Her
Reid Road, husband was also
Ahmedabad posted at Ahmedabad or
nearby. B
Branch Office, 02.04.2009 2.5 years Routine transfer. Her
Pushpak husband was also
Complex, posted at Ahmedabad or
Ahmedabad nearby.
Zonal Office, 02.09.2011 01 month Transfer on promotion
Mumbai from Scale II to Scale III. C
Branch Office, 07.10.2011 08 months Transfer on promotion
PY Road, Indore from Scale II to Scale III.
Branch Office, 29.06.2012 4.1 years Routine transfer to
Nanda Nagar, spouse's place of
Indore posting. D
Branch Office, 05.07.2016 1.5 years Even after the
PY Road, 2nd Man promotion kept at the
Indore as 20.09.2016 same place of posting.
as Incharge
(on promotion
to Scale-IV) E
11. It is urged that during the pendency of the proceedings before
the Division Bench, on 13 March 2019, an offer was made by the bank
by which the respondent was proposed to be transferred to a Scale IV
branch either in Jabalpur, Jaipur or New Delhi. It was urged that despite
the above offer, the respondent did not indicate any choice of posting to F
one of the three branches which were suitable for a Scale IV officer.
During the course of the hearing, it is also urged in the alternative, the
bank is willing to accommodate the respondent at a Scale IV branch in
Bhopal, should she be willing to proceed to the new place of posting.
12. On merits, it was urged by the learned senior counsel appearing G
on behalf of the appellants that in the initial representation that was
submitted by the respondent on 31 January 2018, there was no reference
to either the allegations of irregularities at the branch which had been
detected by her or of sexual harassment by the Zonal Manager. It was
urged that these allegations were set up in the communication dated 19
H
216 SUPREME COURT REPORTS [2020] 4 S.C.R.
A February 2018 addressed to the Executive Director. Learned senior
counsel submitted that the order of transfer was issued by the Executive
Director on the recommendation of three General Manager level officers
and, as a consequence, it would be far-fetched to attribute the malafides
which were urged against the Zonal Manager to the authority which
had effected the transfer. Moreover, it was urged that the Internal
B
Complaints Committee 1 of the bank had, upon enquiring into the
allegations which were levelled by the respondent, found that there was
no substance in those allegations in its report dated 26 February 2019.
The bank has submitted that upon the receipt of the complaint of the
respondent, the bank had carried out a vigilance and special audit. On
C these grounds, it was urged that the settled principle of restraint in matters
of judicial review, where transfer is an exigency of service, must apply
in the facts of this case. In this context, reliance was placed on the
decisions of this Court in Bank of India v Jagjit Singh Mehta2, State
of UP v Gobardhan Lal3 and Rajendra Singh v State of UP4.
D 13. Controverting these submissions, Mr Colin Gonsalves, learned
senior counsel appearing on behalf of the respondent submitted that there
has been a gross suppression of fact on the part of the appellants in
moving this Court. It has been urged that four sets of vital documents
have not been brought to the attention of this Court. The first set of
documents, it has been urged, are those pertaining to the communications
E by the respondent to the higher authorities outlining in detail the
irregularities and corruption that she discovered in the transactions of
the bank after she had taken over as a Branch Officer at Indore. It
was urged that these letters by the respondent commenced from 31
December 2016 and were followed by communications dated 31 January
F 2017, 6 February 2017, 1 March 2017, 3 March 2017 and 15 November
2017. On the basis of these communications, it has been submitted that
it was as a result of the stringent measures which were suggested by
the respondent that she was met with the order of transfer barely a year
after her promotion to Scale IV and continued posting as Chief Manager
at the Indore branch.
G
14. The second set of documents which, according to Mr
Gonsalves, have been suppressed pertain to the report of the Local
1
"ICC”
2
(1992) 1 SCC 306
3
(2004) 11 SCC 402
4
H JT 2009 (10) SC 187
PUNJAB AND SIND BANK AND ORS. v. MRS. DURGESH 217
KUWAR [DR DHANANJAYA Y CHANDRACHUD, J.]
Complaints Committee5. It appears from the record that the respondent A
was not satisfied with the enquiry which was being conducted by the
ICC of the bank. She had moved a complaint before the LCC in terms
of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 20136. According to the submission of
the learned senior counsel, the LCC has concluded that the charge of
B
sexual harassment directed against the fourth appellant by the respondent
has been established. As regards the ICC, the grievance of the respondent
is that the members of the Committee were biased against the respondent
and there was an absence of an independent member as mandated by
the provisions of the Act. The so-called independent member, it was
urged, was a panel counsel drawn from advocates who appear on behalf C
of the bank.
15. The third set of documents is that, according to Mr Gonsalves,
the original order of transfer dated 14 December 2017 had proposed
the transfer of the respondent from Indore to a branch falling under the
Zonal Office at Dehradun. Mr Gonsalves submitted that the original D
order of transfer was subsequently modified so as to provide for a transfer
and posting to a branch at Sarsawa in the district of Jabalpur where the
respondent would continue under the administrative control of the same
Zonal Office.
16. Finally, it has been submitted that the bank has not apprised E
this Court fairly of the Office Memorandum of the Central Vigilance
Commission in regard to rotation of officers in sensitive posts. Mr.
Gonsalves submitted that the manner in which the order of transfer was
effected close on the heels of the allegations of corruption levelled by
the respondent would indicate a clear case of malafides. It was urged
that the respondent who was a Scale IV officer, was posted to a Scale F
I level bank in the teeth of the Board Resolution dated 27 September
2017, approving the policy in regard to the classification of branches. It
has been submitted that the list of branches indicates that the branch to
which the respondent has been transferred is a rural branch at which
Scale I officers are posted. The respondent was functioning as a Chief G
Manager in Indore at an “exceptionally large branch” (deposits of Rs
250 crores and above) being a Scale IV officer. In the circumstances,
Mr Gonsalves submitted that the reason why the respondent is inclined
5
"LCC”
6
“Act” H
218 SUPREME COURT REPORTS [2020] 4 S.C.R.
A to press ahead with these proceedings instead of accepting one of the
suggested places of posting is in order to vindicate her own position as a
matter of principle. Mr Gonsalves submitted that, as a matter of fact,
one of the suggested places of posting is Jaipur, where her maternal
home is situated, but despite this, as a matter of principle, the respondent
would request this Court to determine the validity of the order of transfer
B
in the present case.
17. We must begin our analysis of the rival submissions by adverting
to the settled principle that transfer is an exigency of service. An employee
cannot have a choice of postings. Administrative circulars and guidelines
are indicators of the manner in which the transfer policy has to be
C implemented. However, an administrative circular may not in itself confer
a vested right which can be enforceable by a writ of mandamus.
Unless an order of transfer is established to be malafide or contrary to
a statutory provision or has been issued by an authority not competent
to order transfer, the Court in exercise of judicial review would not be
D inclined to interfere. These principles emerge from the judgments which
have been relied upon by the appellants in support of their submissions
and to which we have already made a reference above. There can be
no dispute about the position in law.
18. The real issue which the Court needs to enquire into in the
E present case is as to whether the order of the High Court quashing the
order of transfer can be sustained, having regard to the above principles
of law. The material on record would indicate that commencing from
31 December 2016 and going up to 15 November 2017, the respondent,
who was posted as Chief Manager in her capacity as a Scale IV officer
at Indore branch, submitted as many as six communications drawing
F attention to the serious irregularities which she had noticed in the
maintenance of bank accounts of and transactions by liquor contractors.
The contents of the complaints raised serious issues. The order of transfer
was served on the respondent within a month of the last of the above
representations, on 14 December 2017. On 19 February 2018, the
G respondent levelled allegations specifically of sexual harassment against
the Zonal Manager. The bank initially constituted an ICC. The
respondent raised an objection to the presence of some of the members
of the Committee. The Committee as constituted initially consisted of
the following persons:
H
PUNJAB AND SIND BANK AND ORS. v. MRS. DURGESH 219
KUWAR [DR DHANANJAYA Y CHANDRACHUD, J.]
(i) Ms Havinder Sachdev, GM (Presiding Officer) A
(ii) Ms Rashmita Kwatra, AGM (Member)
(iii) Ms Abha Sharma, CM (Member)
(iv) Mr Vimal Kumar Attrey, CM (Member & Convenor)
(v) Ms Shountal Singh, SRM (Member) B
(vi) Ms Seema Gupta, Advocate (Independent Member)
19. The report of the ICC contains a reference to the objections
which the respondent raised to the members at serial numbers (ii), (iv)
and (vi) above. These objections were noted in the course of the report
C
of the ICC dated 26 February 2019. The respondent drew the attention
of the Presiding Officer of the ICC to the fact that Ms Rashmita Kwatra,
AGM is the spouse of a retired General Manager, who was part of the
process of the transfer of the respondent. As against Ms Seema Gupta,
who was nominated as an independent member, the respondent noted
that she was a panel advocate of the bank and was regularly contesting D
cases in court involving the bank. The respondent also raised an objection
in regard to the presence of Mr Vimal Kumar Attrey as a member of the
Committee. The report of the Committee contains a reference to the
fact that following the objections which were raised by the respondent,
the Committee was reconstituted, as a result of which Ms Rashmita
E
Kwatra and Mr Vimal Kumar Attrey were substituted by two other
officers of the bank. However, Ms Seema Gupta, Advocate continue to
be a member of the ICC.
20. The Act was enacted to provide protection against sexual
harassment of women at the workplace as well as for the prevention
F
and redressal of complaints of sexual harassment. Sexual harassment at
the workplace is an affront to the fundamental rights of a woman to
equality under Articles 14 and 15 and her right to live with dignity under
Article 21 of the Constitution as well as her right to practice any profession
or to carry on any occupation, trade or business.
Section 3 of the Act provides the following: G
“3. Prevention of sexual harassment-
(1) No woman shall be subjected to sexual harassment at any
workplace.
H
220 SUPREME COURT REPORTS [2020] 4 S.C.R.
A (2) The following circumstances, among other circumstances, if
it occurs, or is present in relation to or connected with any act or
behavior of sexual harassment may amount to sexual harassment:-
(i) implied or explicit promise of preferential treatment in her
employment; or
B (ii) implied or explicit threat of detrimental treatment in her
employment; or
(iii) implied or explicit threat about her present or future
employment or status; or
C (iv) interference with her work or creating an intimidating
or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.”
(Emphasis added)
21. Section 4 of the Act requires the constitution of an ICC at all
D
the administrative units or offices of the work place. Sub-section (2) of
Section 4 of the Act provides for the constitution of the ICC. Section
4(2) is extracted below:
“4(2). The Internal Committee shall consist of the following
members to be nominated by the employer, namely:-
E
(a) a Presiding Officer who shall be a woman employed at a
senior level at workplace from amongst the employees:
Provided that in case a senior level woman employee is not
available, the Presiding Officer shall be nominated from other
F offices or administrative units of the workplace referred to in sub-
section (1):
Provided further that in case the other offices or administrative
units of the workplace do not have a senior level woman
employee, the Presiding Officer shall be nominated from any
G other workplace of the same employer or other department or
organisation;
(b) not less than two Members from amongst employees
preferably committed to the cause of women or who have had
experience in social work or have legal knowledge:
H
PUNJAB AND SIND BANK AND ORS. v. MRS. DURGESH 221
KUWAR [DR DHANANJAYA Y CHANDRACHUD, J.]
(c) one member from amongst non-governmental organisations A
or associations committed to the cause of women or a person
familiar with the issues relating to sexual harassment:
Provided that at least one-half of the total Members so nominated
shall be women.”
22. Clause (c) of Section 4(2) indicates that one member of the B
ICC has to be drawn from amongst a non-governmental organization or
association committed to the cause of women or a person familiar with
issues relating to sexual harassment. The purpose of having such a
member is to ensure the presence of an independent person who can
aid, advise and assist the Committee. It obviates an institutional bias. C
During the course of hearing, we have received a confirmation from the
learned senior counsel appearing on behalf of the bank that Ms Seema
Gupta was, in fact, a panel lawyer of the bank at the material time. This
being the position, we see no reason or justification on the part of the
bank not to accede to the request of the respondent for replacing Ms
Seema Gupta with a truly independent third party having regard to the D
provisions of Section 4(2)(c) of the Act. This is a significant facet which
goes to the root of the constitution of the ICC which was set up to
enquire into the allegations which were levelled by the respondent.
23. The respondent did not participate in the proceedings before
the ICC since, in the meantime, she had moved the LCC in terms of the E
provisions of Section 6 of the Act. Mr Sudhir Chandra, learned senior
counsel urged that the LCC under Section 6 can be set up in a situation
where the ICC has not been constituted or if the complaint is made
against the employer himself. It has been urged that in the present case
there was no complaint against the employer himself and hence the F
LCC would have no jurisdiction under Section 6 of the Act. Be that as it
may, we have a situation in the present case where the appellants did
not participate in the proceedings before the LCC and the respondent
did not participate in the proceedings before the ICC. What, however,
es emerge from the record is that there was a fundamental defect in the
constitution of the ICC which was set up by the bank. G
24. The material which has been placed on record indicates that
the respondent had written repeated communications to the authorities
drawing their attention to the serious irregularities in the course of the
maintenance of accounts of liquor contractors and in that context had
levelled specific allegations of corruption. The respondent was posted H
222 SUPREME COURT REPORTS [2020] 4 S.C.R.
A on 14 December 2017 to a branch, which even according to the bank,
was not meant for the posting of a Scale IV officer. The sanctity which
the bank attaches to posting officers of the appropriate scale to a branch
commensurate with their position is evident from the Board’s Resolution
to which we have adverted earlier. Admittedly, the branch to which the
respondent was posted was not commensurate to her position as a Scale
B
IV officer. There can be no manner of doubt that the respondent has
been victimized. Her reports of irregularities in the Branch met with a
reprisal. She was transferred out and sent to a branch which was
expected to be occupied by a Scale I officer. This is symptomatic of a
carrot and stick policy adopted to suborn the dignity of a woman who is
C aggrieved by unfair treatment at her workplace. The law cannot
countenance this. The order of transfer was an act of unfair treatment
and is vitiated by malafides.
25. In view of the above analysis, we are of the view that the
High Court cannot be faulted in coming to the conclusion that the transfer
D of the respondent, who was holding the office of Chief Manager in the
Scale IV in Indore branch to the branch at Sarsawa in the district of
Jabalpur was required to be interfered with. At the same time, a period
of nearly four years has since elapsed. Despite the order of stay, the
respondent was not assigned an office at Indore and had to suffer the
indignity of being asked to sit away from the place assigned to a Branch
E Manager. Considering the period which has elapsed, it would be necessary
for the Court to issue a direction, which, while sub-serving the interest
of the bank, is also consistent with the need to preserve the dignity of a
woman employee who, we hold, has been unfairly treated.
26. We accordingly direct that Ms Durgesh Kuwar, the respondent
F officer, shall be reposted at the Indore branch as a Scale IV officer for
a period of one year from today. Upon the expiry of the period of one
year, if any administrative exigency arises the competent authority of
the bank would be at liberty to take an appropriate decision in regard to
her place of posting independently in accordance with law keeping in
G view the relevant rules and regulations of the bank, in the interest of fair
treatment to the officer.
27. While affirming the decision of the High Court, the appeal is
disposed of in terms of the above directions. The respondent would be
entitled to costs quantified at Rs 50,000 which shall be paid over within
H one month.
Divya Pandey Appeal disposed of.
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