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 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 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. CA 1809/2020
4 The respondent was appointed as a Probationary Officer of the Punjab and
Sind Bank, the first appellant, on 8 October 1998 in 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 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, 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.
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. In her report, she made several CA 1809/2020
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 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 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 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 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 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 guidance.
It was shocking to observe that ZO instead of taking necessary steps
to rectify the irregularities or providing desired guidance and support CA 1809/2020
to me, I was pressurized to keep the things under cover by various
nets and communications which are on record. I had difficult road to
travel as it is a well-established fact that I 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.
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 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 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 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.
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 CA 1809/2020
dated 11 February 2019, a learned 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 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 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 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.
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 CA 1809/2020
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 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 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 Tenure Reasons for transfer
posting
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.
Branch Office, 11.05.2004 3.1 years Transferred to spouse’s
Gandhi Road, place of posting.
Ahmedabad
Branch Office, 07.06.2007 1.10 years Routine transfer. Her
Reid Road, husband was also posted
Ahmedabad at Ahmedabad or nearby.
Branch Office, 02.04.2009 2.5 years Routine transfer. Her
Pushpak husband was also posted
Complex, at Ahmedabad or nearby.
Ahmedabad
Zonal Office, 02.09.2011 01 month Transfer on promotion
Mumbai from Scale II to Scale III.
Branch Office, 07.10.2011 08 months Transfer on promotion CA 1809/2020
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 posting.
Indore
Branch Office, 05.07.2016 1.5 years Even after the promotion
PY Road, Indore as 2nd Man kept at the same place of
20.09.2016 posting
as Incharge
(on
promotion
to Scale-IV)
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 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 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 February 2018 addressed to the CA 1809/2020
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 Complaints Committee1 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 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.
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
1“ICC” 2(1992) 1 SCC 306 3(2004) 11 SCC 402 4JT 2009 (10) SC 187 CA 1809/2020
pertaining to the communications 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 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.
14 The second set of documents which, according to Mr Gonsalves, have
been suppressed pertain to the report of the Local Complaints Committee5. It
appears from the record that the respondent 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 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
5“LCC” 6 “Act” CA 1809/2020
Act. The so-called independent member, it was urged, was a panel counsel
drawn from advocates who appear on behalf 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 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 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 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 Manager
in Indore at an “exceptionally large branch” (deposits of Rs 250 crores and CA 1809/2020
above) being a Scale IV officer. In the circumstances, Mr Gonsalves submitted
that the reason why the respondent is inclined 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 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 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 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. CA 1809/2020
18 The real issue which the Court needs to enquire into in the 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 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 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:
(i) Ms Havinder Sachdev, GM (Presiding Officer)
(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)
(vi) Ms Seema Gupta, Advocate (Independent Member) CA 1809/2020
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 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 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 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 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. CA 1809/2020
Section 3 of the Act provides the following:
“3. Prevention of sexual harassment-
(1) No woman shall be subjected to sexual harassment at any
workplace.
(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
(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
(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 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:-
(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
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 other workplace of the same employer or
other department or organisation; CA 1809/2020
(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:
(c) one member from amongst non-governmental organisations
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 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. 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 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 CA 1809/2020
since, in the meantime, she had moved the LCC in terms of the 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 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, does emerge from the record is that there was a fundamental defect in
the constitution of the ICC which was set up by the bank.
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 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 IV officer. There can be no manner of doubt that the CA 1809/2020
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 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 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 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 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 CA 1809/2020
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 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 one month.
[Dr Dhananjaya Y Chandrachud]
[Ajay Rastogi]
New Delhi; February 25, 2020 CA 1809/2020
Civil Appeal No.1809/2020
PUNJAB AND SIND BANK & ORS. Appellant(s)
VERSUS
MRS. DURGESH KUWAR Respondent(s)
(With appln.(s) for appropriate orders/directions, exemption from filing O.T. and permission to appear and argue in person)
Date : 25-02-2020 These matters were called on for hearing today.
CORAM :
For Appellant(s) Mr. Sudhir Chandra, Sr. Adv.
Mr. Sandeep Prabhakar, Adv.
Mr. Amit Kumar, Adv.
Mr. P. S. Sudheer, AOR
Mr. Rishi Maheshwari, Adv.
Ms. Anne Mathew, Adv.
Mr. Bharat Sood, Adv.
Ms. Shruti Jose, Adv.
For Respondent(s) Mr. Colin Gonsalves, Sr. Adv.
Ms. Olivia Bang, Adv.
Mr. Satya Mitra, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted. CA 1809/2020
The appeal is disposed of in terms of the signed
reportable judgment.
Pending application(s), if any, stand disposed of.
(Chetan Kumar) (Saroj Kumari Gaur)
A.R.-cum-P.S. Court Master
(Signed reportable judgment is placed on the file)