SUPREME COURT OF INDIA HOLDS SEXUAL HARASSMENT AT WORKPLACE IS AN AFFRONT TO WOMEN’S FUNDAMENTAL RIGHTS

A Bench of the #SupremeCourt of India comprising of Justices D.Y Chandrachud, and Ajay Rastogi has recently in the case of Punjab & Sind Bank and Others vs. Mrs Durgesh Kuwar, Civil Appeal No 1809 of 2020, arising out of SLP(C) No 11985 of 2019 upheld a Judgment of the Indore Bench of the #MadhyaPradeshHighCourt Judgment dated 18.03.2019 in a Writ Appeal arising out of an Order of the learned Single Judge dated 11.02.2019 wherein it quashed the transfer of a woman Bank employee, who had complained against an officer for #sexualharassment. In the said Complaint she had also reported irregularities and corruption at her branch.

The aforesaid case involves the intersection of service law with fundamental constitutional precepts about the #dignity of a #woman at her workplace.

In brief, the facts pertaining to the present Appeal involves the Respondent herein, who was appointed as a Probationary Officer of the Punjab and Sind Bank, and later promoted to the post of Chief Manager in Scale IV. As a result of which,in and around September 2016, she was transferred to the Indore Branch on promotion.On 11.12.2017, the Respondent was further transferred from the Branch Office at Indore to the Branch Office at Sarsawa in the district of Jabalpur. On 31.01.2018, 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 15.02.2018 and a representation on 19.02.2018 to the Executive Director of the Bank.

The transfer order was challenged before the High Court of Madhya Pradesh under Article 226 of the Constitution of India in which the transfer was stayed by a learned Single Judge and transfer of the officer was quashed by the Judge vide its Judgment dated 11.02.2019.The learned Judge mentioned that the transfer of Respondent violates the circulars of the Bank as well as the guidelines issued by the Ministry of Finance in the Department of Financial Services.

Being aggrieved from the Judgment dated 11.02.2019 the Bank as well as its General Manager, Zonal Manager and Deputy General Manager filed an SLP before the Hon’ble Supreme Court of India.

Observation and Decision

The Hon’ble Supreme Court analyzed the rival submissions by adverting to the settled principle that transfer is an exigency of service. It said that an employee cannot have a choice of postings. The Bank administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, any administrative circular may not in itself confer a vested right which can be enforceable by a writ of #mandamus. The main issue before the Court was whether the Order of the High Court quashing the Order of transfer can be sustained, having regard to the above principles of law.

The Hon’ble Supreme Court after considering all the vital documents on record and submissions of the Parties observed that “how the order of transfer was affected 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 concerning the classification of branches”.

They added that “…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”.

The Bench decided that the Respondent shall be re-posted at the branch office of Indore for a period of one year. Later, if any administrative exigency arises the competent authority of the Bank would be at the liberty to take any appropriate decision concerning her posting. The Hon’ble Court further observed sexual harassment at the workplace is an affront to the fundamental rights of a woman.The Court also allowed her costs of Rs 50,000.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

Edited By

Sushila Ram Varma

Chief Legal Consultant

The Indian Lawyer

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