PUNJAB AND SIND BANK AND ORS. versus MRS. DURGESH KUWAR on 25 February 2020

[2020] 4 S.C.R. 207

PUNJAB AND SIND BANK AND ORS.

v.

MRS. DURGESH KUWAR

(Civil Appeal No. 1809 of 2020)

FEBRUARY 25, 2020

[DR. DHANANJAYA Y CHANDRACHUDAND AJAY RASTOGI, JJ.]

Service Law – Banking Service – Order of transfer – Judicialreview of – Respondent, Chief Manager in Scale IV at Indore Branchof the first appellant-Bank was transferred to Branch Office atSarsawa, Jabalpur – Submitted representation to Zonal Managerfor being retained at Indore – Had earlier pointed out irregularitiesw.r.t accounts of liquor contractors – Also made sexual harassmentallegations against the Zonal Manager – Single Judge quashed theorder of transfer – Affirmed by Division Bench – Held: Transfer isan exigency of service – Unless an order of transfer is establishedto be malafide or contrary to statutory provision or has been issuedby an authority not competent to order transfer, the Court in exerciseof judicial review would not be inclined to interfere – In the presentcase, respondent wrote repeated communications to authoritiesdrawing their attention to serious irregularities in the course ofmaintenance of accounts of liquor contractors and levelled specificallegations of corruption – Admittedly, the branch to which therespondent was posted was not commensurate to her position as aScale IV officer – Respondent was victimized – Order of transferwas an act of unfair treatment vitiated by malafides – Decision ofHigh Court is affirmed – Respondent be reposted at the Indorebranch as a Scale IV officer for one year from today – Upon theexpiry of said period, if any administrative exigency arises thecompetent authority is at liberty to take appropriate decision w.r.ther place of posting independently in accordance with relevant rulesand regulations of the bank, in the interest of fair treatment to theofficer – 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 – Constitutionof India – Arts.14, 15 and 21.

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ASexual Harassment of Women at Workplace (Prevention,Prohibition and Redressal) Act, 2013 – s.4(2)(c) – Respondent, ChiefManager in Scale IV at Indore Branch of the first appellant-Bankwas transferred to Branch Office at Sarsawa, Jabalpur – She hadinter alia made sexual harassment allegations against the ZonalManager – Constitution of Internal Complaints Committee (ICC)Bobjected by the respondent – Held: 2013 Act was enacted to provideprotection against sexual harassment of women at the workplaceas well as for the prevention and redressal of complaints of sexualharassment – Sexual harassment at workplace is an affront to thefundamental rights of a woman to equality u/Arts.14 & 15 and herCright to live with dignity u/Art. 21 as well as her right to practiceany 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 bedrawn from amongst a non-governmental organization orassociation committed to the cause of women or a person familiarwith issues relating to sexual harassment– Purpose thereof is toDensure the presence of an independent person who can aid, advise& assist the Committee – It obviates an institutional bias – In thepresent case, such member was a panel lawyer of the bank at thematerial time – No justification on the part of the bank not to accedeto the request of the respondent for replacing that person with aEtruly independent third party having regard to the provisions ofs.4(2)(c) – There was a fundamental defect in the constitution ofthe ICC set up by the bank – Constitution of India – Arts.14, 15 and21 – Service Law – Banking Service.

Disposing of the appeal, the CourtF

Conclusion

Disposing of the appeal, the CourtF

HELD: 1.1 Transfer is an exigency of service. An employeecannot have a choice of postings. Administrative circulars andguidelines are indicators of the manner in which the transfer policyhas to be implemented. However, an administrative circular maynot in itself confer a vested right which can be enforceable by aGwrit of mandamus. Unless an order of transfer is established tobe malafide or contrary to a statutory provision or has been issuedby an authority not competent to order transfer, the Court inexercise of judicial review would not be inclined to interfere. [Para17][218-C-D]

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1.2 The Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013 was enactedto provide protection against sexual harassment of women atthe workplace as well as for the prevention and redressal ofcomplaints of sexual harassment. Sexual harassment at theworkplace is an affront to the fundamental rights of a woman toequality under Articles 14 and 15 and her right to live with dignityunder Article 21 of the Constitution as well as her right to practiceany profession or to carry on any occupation, trade or business.Section 4 of the Act requires the constitution of an ICC at all theadministrative units or offices of the work place. Sub-section (2)of Section 4 of the Act provides for the constitution of the ICC.Clause (c) of Section 4(2) indicates that one member of the ICChas to be drawn from amongst a non-governmental organizationor association committed to the cause of women or a personfamiliar with issues relating to sexual harassment. The purposeof having such a member is to ensure the presence of anindependent person who can aid, advise and assist the Committee.It obviates an institutional bias. During the course of hearing, wehave received a confirmation from the learned senior counselappearing on behalf of the bank that Ms. Seema Gupta was, infact, a panel lawyer of the bank at the material time. This beingthe position, there is no reason or justification on the part of thebank not to accede to the request of the respondent for replacingMs. Seema Gupta with a truly independent third party havingregard to the provisions of Section 4(2)(c) of the Act. This is asignificant facet which goes to the root of the constitution of theICC which was set up to enquire into the allegations which werelevelled by the respondent. There was a fundamental defect inthe constitution of the ICC which was set up by the bank. [Paras20-23][219-F; 220-D; 221-B-D, G]

1.3 The respondent had written repeated communicationsto the authorities drawing their attention to the seriousirregularities in the course of the maintenance of accounts ofliquor contractors and in that context had levelled specificallegations of corruption. The respondent was posted on 14December 2017 to a branch, which even according to the bank,was not meant for the posting of a Scale IV officer. The sanctitywhich the bank attaches to posting officers of the appropriate AB

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Ascale to a branch commensurate with their position is evidentfrom the Board’s Resolution. Admittedly, the branch to whichthe respondent was posted was not commensurate to her positionas a Scale IV officer. The respondent was victimized. Her reportsof irregularities in the Branch met with a reprisal. She wastransferred out and sent to a branch which was expected to beBoccupied by a Scale I officer. This is symptomatic of a carrot andstick policy adopted to suborn the dignity of a woman who isaggrieved by unfair treatment at her workplace. The order oftransfer was an act of unfair treatment and is vitiated by malafides.The respondent officer shall be reposted at the Indore branch asCa Scale IV officer for a period of one year from today. Upon theexpiry of the period of one year, if any administrative exigencyarises the competent authority of the bank would be at liberty totake an appropriate decision in regard to her place of postingindependently in accordance with law keeping in view the relevantrules and regulations of the bank, in the interest of fair treatmentDto 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. GobardhanLal (2004) 11 SCC 402 : [2004] 3 SCR 337; RajendraSingh v. State of UP JT 2009 (10) SC 187 : [2009] 15ESCR 254 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1809of 2020.

From the Judgment and Order dated 18.03.2019 of the High CourtGof 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.Hfor the Respondent.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J

1. Leave granted.

2. A senior officer of a public sector banking institutioncomplains that her reports about irregularities and corruption at herbranch and her complaints against an officer who sexually harassed hermet with an order of transfer. The case involves the intersection ofservice law with fundamental constitutional precepts about the dignityof a woman at her workplace.

3. This appeal arises from a judgment of a Division Bench of theIndore Bench of the High Court of Madhya Pradesh dated 18 March2019 in a Writ Appeal arising out of an order of the learned Single Judgedated 11 February 2019.

4. The respondent was appointed as a Probationary Officer ofthe Punjab and Sind Bank, the first appellant, on 8 October 1998 inJunior Management Grade Scale I. She was promoted to the post ofChief Manager in Scale IV. On 2 September 2011, the respondent wastransferred to the Zonal Office at Mumbai. On 7 October 2011, shewas transferred to the Branch Office at Indore. In September 2016, thefirst respondent was promoted to the post of Chief Manager in ScaleIV. On 23 September 2016, the competent authority of the bank decidedto continue her at the branch in Indore upon promotion. On 11 December2017, the respondent was transferred from the Branch Office at Indoreto the Branch Office at Sarsawa in the district of Jabalpur. Intimation ofthe transfer was furnished to her on 14 December 2017. On 31 January2018, the respondent submitted a representation to the Zonal Manager,recording a reference to the circulars of the bank governing the postingof women officers. She made a request for being retained at Indore.Following the earlier representation, she submitted a reminder on 15February 2018 and a representation on 19 February 2018 to the ExecutiveDirector of the bank.

5. In the course of her representations, the respondent submittedthat during the course of the previous two years, she had, as a BranchManager, inquired into the concentration of accounts maintained by liquorcontractors at the branch and had detected grave irregularities whichwere hazardous to the interest of the bank. The respondent had submitteda detailed report to the Zonal Manager, Bhopal on 31 December 2016.

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AIn her report, she made several observations about lapses such as theexistence of duplicate Bank Guarantee registers. She had recorded thatthe registers were not identical and some entries are missing from thenew register. She observed that limits were sanctioned to parties nothaving any connection to Indore for the execution of liquor contracts.The Respondent’s grievance was that instead of taking steps to rectifyBthe irregularities, she was being pressurized to cover up the misdemeanorsat the level of the branch. Moreover, she alleged that this wascompounded by the Zonal Manager (who was named) calling her at latehours at home to discuss business which was not of urgent nature. Therespondent made a specific allegation against the Zonal Manager. ForCthe purpose of the present proceedings, it would be necessary to extractfrom the representation which was submitted by the respondent to theExecutive Director. It reads thus:

“I was surprised to observe that within a span of last 2 yearsduring my predecessor time many accounts of liquor contractorsDhad shifted to this branch from local branches as well as from faroff places in UP. Many accounts of newly floated firms wereopened and fresh limits of substantial amounts were sanctionedin a very haphazard manner, where even KYC norms were notfollowed. In a very short time concentration of liquor accountshad reached to such a high level that created a suspicion. When IEstarted analyzing these accounts as per banking norms, I foundmany grave irregularities hazardous to the interest of the Bank.Furthermore, high value BGs were issued where copies of suchBgs were neither available in branch nor at ZO. Guarantees wereissued to the liquor contractors in a manner that facilitated theFcontractors to use the same on different occasion with differentGovt. Departments for different tenders, which caused hugerevenue loss to the bank. I submitted detailed report to ZM Bhopalvide my letter dated 31.12.2016 (serious irregularities-copyattached) and followed by many subsequent communications anddiscussions from time to time for taking necessary action andGguidance.

It was shocking to observe that ZO instead of taking necessarysteps to rectify the irregularities or providing desired guidanceand support to me, I was pressurized to keep the things undercover by various nets and communications which are on record.H

I had difficult road to travel as it is a well-established fact that Ihave never given up to corrupt practices. When I tried to fix theseissues at branch level, first I was offered bribe, on my refusal,efforts were made to malign my image by raising many falsecomplaints. I did my duties honestly unhindered by these eventsin safeguard the interest of the bank.

I was regularly bringing this to the notice of my next higherauthority Zonal Manager i.e. Mr. Pankaj Dwivedi he startedharassing me personally as well as professionally. First hecalled me at late hours at home to discuss not so importantofficial matters then started insisting me to meet himpersonally either in Indore or Bhopal unofficially. Seemsthat my spurring of his advances towards me provokedhim into adopting vengeful attitude towards me.

Finding me not dancing to their tunes for covering up the illpractices going on in the branch. ZO thought it proper to transferme from P.Y. Indore Branch to a far off (Distance about 600Kms) small rural branch.”

(Emphasis added)

6. The respondent also made a grievance of the fact that she hadbeen transferred to a small rural branch situated at a distance of about600 kilometers, which would be headed by a Scale I officer and washence not a posting commensurate with her position as a Scale IV officerof the bank. In response to her representations, the respondent wasinformed that her transfer was in accordance with administrative andservice exigencies and that she should join the place of postingimmediately.

7. The order of transfer was challenged before the High Court ofMadhya Pradesh under Article 226 of the Constitution. During thependency of the proceedings, the order of transfer was stayed by alearned Single Judge. After the pleadings were completed, the writpetition was heard and by a judgment dated 11 February 2019, a learnedSingle Judge quashed the order of transfer. The learned Single Judgewas of the view that though, as a matter of principle, transfer orders areordinarily not interfered with in the exercise of judicial review, therespondent has been transferred in violation of the circulars of the bankas well as the guidelines issued by the Ministry of Finance in the A

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ADepartment of Financial Services. The High Court noted that contraryto the classification which has been made by the bank, the respondentwho is a Scale IV officer, was posted to a branch at which only a ScaleI officer could be posted. That apart, the learned Single Judge alsoobserved that no reply had been filed by the fourth respondentcontroverting the specific allegations which had been levelled by theBoriginal petitioner.

8. The judgment of the learned Single Judge has been affirmed inappeal by the Division Bench of the High Court. Among other things,the Division Bench has held that the respondent had levelled seriousallegations against the Zonal Manager which were brought to the attentionCof the Executive Director of the bank. The High Court has taken noteof the fact that the respondent had drawn several irregularities to thenotice of the higher authorities and the transfer was mala fide, as areprisal to the action which had been initiated by the respondent and theallegations which she had levelled against the Zonal Manager.

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9. Proceedings under Article 136 of the Constitution have beeninstituted before this Court by the bank as well as its General Manager,Zonal Manager and Deputy General Manager. The Zonal Manageragainst whom allegations have been levelled by the respondent hassince been promoted as Deputy General Manager and is presently postedEat the head office in New Delhi. The Special Leave Petition under Article136 of the Constitution has also been filed on his behalf and he isrepresented as the fourth petitioner.

10. Assailing the judgment of the High Court, Mr Sudhir Chandra,learned senior counsel appearing on behalf of the appellants submittedFthat the postings of the respondent indicate that she has been in Indorefor several years. This was sought to be buttressed by relying on achart which is annexed to the proceedings and is extracted below:

Place ofW.E.F.TotalReason for transferpostingTenureGBranch Office,08.10.19982.5 yearsJoined the Bank atJaipurJaipur Stationat the place of herRoad, Jaipurdomicile.Zonal Office,11.04.20013.1 yearsRoutine transfer andJaipurremained posted at herdomicile.H

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Branch Office,11.05.20043.1 yearsTransferred to spouse'sGandhi Road,place of posting.AhmedabadBranch Office,07.06.20071.10 yearsRoutine transfer. HerReid Road,husband was alsoAhmedabadposted at Ahmedabad ornearby.Branch Office,02.04.20092.5 yearsRoutine transfer. HerPushpakhusband was alsoComplex,posted at Ahmedabad orAhmedabadnearby.Zonal Office,02.09.201101 monthTransfer on promotionMumbaifrom Scale II to Scale III.Branch Office,07.10.201108 monthsTransfer on promotionPY Road, Indorefrom Scale II to Scale III.Branch Office,29.06.20124.1 yearsRoutine transfer toNanda Nagar,spouse's place ofIndoreposting.Branch Office,05.07.20161.5 yearsEven after thePY Road,2nd Manpromotion kept at theIndore as20.09.2016same place of posting.as Incharge(on promotionto Scale-IV)

11. It is urged that during the pendency of the proceedings beforethe Division Bench, on 13 March 2019, an offer was made by the bankby which the respondent was proposed to be transferred to a Scale IVbranch either in Jabalpur, Jaipur or New Delhi. It was urged that despitethe above offer, the respondent did not indicate any choice of posting toone 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, thebank is willing to accommodate the respondent at a Scale IV branch inBhopal, should she be willing to proceed to the new place of posting.

12. On merits, it was urged by the learned senior counsel appearingon behalf of the appellants that in the initial representation that wassubmitted by the respondent on 31 January 2018, there was no referenceto either the allegations of irregularities at the branch which had beendetected by her or of sexual harassment by the Zonal Manager. It wasurged that these allegations were set up in the communication dated 19

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AFebruary 2018 addressed to the Executive Director. Learned seniorcounsel submitted that the order of transfer was issued by the ExecutiveDirector on the recommendation of three General Manager level officersand, as a consequence, it would be far-fetched to attribute the malafideswhich were urged against the Zonal Manager to the authority whichhad effected the transfer. Moreover, it was urged that the InternalBComplaints Committee[1]of the bank had, upon enquiring into theallegations which were levelled by the respondent, found that there wasno substance in those allegations in its report dated 26 February 2019.The bank has submitted that upon the receipt of the complaint of therespondent, the bank had carried out a vigilance and special audit. OnCthese grounds, it was urged that the settled principle of restraint in mattersof judicial review, where transfer is an exigency of service, must applyin the facts of this case. In this context, reliance was placed on thedecisions of this Court in Bank of India v Jagjit Singh Mehta[2], Stateof UP v Gobardhan Lal[3]and Rajendra Singh v State of UP[4].D13. Controverting these submissions, Mr Colin Gonsalves, learnedsenior counsel appearing on behalf of the respondent submitted that therehas been a gross suppression of fact on the part of the appellants inmoving this Court. It has been urged that four sets of vital documentshave not been brought to the attention of this Court. The first set ofdocuments, it has been urged, are those pertaining to the communicationsEby the respondent to the higher authorities outlining in detail theirregularities and corruption that she discovered in the transactions ofthe bank after she had taken over as a Branch Officer at Indore. Itwas urged that these letters by the respondent commenced from 31December 2016 and were followed by communications dated 31 January F2017, 6 February 2017, 1 March 2017, 3 March 2017 and 15 November2017. On the basis of these communications, it has been submitted thatit was as a result of the stringent measures which were suggested bythe respondent that she was met with the order of transfer barely a yearafter her promotion to Scale IV and continued posting as Chief Managerat the Indore branch.G

14. The second set of documents which, according to MrGonsalves, have been suppressed pertain to the report of the Local1"ICC”2 (1992) 1 SCC 3063 (2004) 11 SCC 402H4 JT 2009 (10) SC 187

Complaints Committee[5]. It appears from the record that the respondentwas not satisfied with the enquiry which was being conducted by theICC of the bank. She had moved a complaint before the LCC in termsof the Sexual Harassment of Women at Workplace (Prevention,Prohibition and Redressal) Act, 2013[6]. According to the submission ofthe learned senior counsel, the LCC has concluded that the charge ofsexual harassment directed against the fourth appellant by the respondenthas been established. As regards the ICC, the grievance of the respondentis that the members of the Committee were biased against the respondentand there was an absence of an independent member as mandated bythe provisions of the Act. The so-called independent member, it wasurged, was a panel counsel drawn from advocates who appear on behalfof the bank.

15. The third set of documents is that, according to Mr Gonsalves,the original order of transfer dated 14 December 2017 had proposedthe transfer of the respondent from Indore to a branch falling under theZonal Office at Dehradun. Mr Gonsalves submitted that the originalorder of transfer was subsequently modified so as to provide for a transferand posting to a branch at Sarsawa in the district of Jabalpur where therespondent would continue under the administrative control of the sameZonal Office.

16. Finally, it has been submitted that the bank has not apprisedthis Court fairly of the Office Memorandum of the Central VigilanceCommission in regard to rotation of officers in sensitive posts. Mr.Gonsalves submitted that the manner in which the order of transfer waseffected close on the heels of the allegations of corruption levelled bythe respondent would indicate a clear case of malafides. It was urgedthat the respondent who was a Scale IV officer, was posted to a ScaleI level bank in the teeth of the Board Resolution dated 27 September2017, approving the policy in regard to the classification of branches. Ithas been submitted that the list of branches indicates that the branch towhich the respondent has been transferred is a rural branch at whichScale I officers are posted. The respondent was functioning as a ChiefManager in Indore at an “exceptionally large branch” (deposits of Rs250 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”

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Ato press ahead with these proceedings instead of accepting one of thesuggested places of posting is in order to vindicate her own position as amatter of principle. Mr Gonsalves submitted that, as a matter of fact,one of the suggested places of posting is Jaipur, where her maternalhome is situated, but despite this, as a matter of principle, the respondentwould request this Court to determine the validity of the order of transferBin the present case.

17. We must begin our analysis of the rival submissions by advertingto the settled principle that transfer is an exigency of service. An employeecannot have a choice of postings. Administrative circulars and guidelinesare indicators of the manner in which the transfer policy has to beCimplemented. However, an administrative circular may not in itself confera vested right which can be enforceable by a writ of mandamus.Unless an order of transfer is established to be malafide or contrary toa statutory provision or has been issued by an authority not competentto order transfer, the Court in exercise of judicial review would not beDinclined to interfere. These principles emerge from the judgments whichhave been relied upon by the appellants in support of their submissionsand to which we have already made a reference above. There can beno dispute about the position in law.

18. The real issue which the Court needs to enquire into in theEpresent case is as to whether the order of the High Court quashing theorder of transfer can be sustained, having regard to the above principlesof law. The material on record would indicate that commencing from31 December 2016 and going up to 15 November 2017, the respondent,who was posted as Chief Manager in her capacity as a Scale IV officerat Indore branch, submitted as many as six communications drawingFattention to the serious irregularities which she had noticed in themaintenance of bank accounts of and transactions by liquor contractors.The contents of the complaints raised serious issues. The order of transferwas served on the respondent within a month of the last of the aboverepresentations, on 14 December 2017. On 19 February 2018, theGrespondent levelled allegations specifically of sexual harassment againstthe Zonal Manager. The bank initially constituted an ICC. Therespondent raised an objection to the presence of some of the membersof the Committee. The Committee as constituted initially consisted ofthe following persons:

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PUNJAB AND SIND BANK AND ORS. v. MRS. DURGESHKUWAR [DR DHANANJAYA Y CHANDRACHUD, J.]

(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)

19. The report of the ICC contains a reference to the objectionswhich the respondent raised to the members at serial numbers (ii), (iv)and (vi) above. These objections were noted in the course of the reportof the ICC dated 26 February 2019. The respondent drew the attentionof 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 theprocess of the transfer of the respondent. As against Ms Seema Gupta,who was nominated as an independent member, the respondent notedthat she was a panel advocate of the bank and was regularly contestingcases in court involving the bank. The respondent also raised an objectionin regard to the presence of Mr Vimal Kumar Attrey as a member of theCommittee. The report of the Committee contains a reference to thefact that following the objections which were raised by the respondent,the Committee was reconstituted, as a result of which Ms RashmitaKwatra and Mr Vimal Kumar Attrey were substituted by two otherofficers of the bank. However, Ms Seema Gupta, Advocate continue tobe a member of the ICC.

20. The Act was enacted to provide protection against sexualharassment of women at the workplace as well as for the preventionand redressal of complaints of sexual harassment. Sexual harassment atthe workplace is an affront to the fundamental rights of a woman toequality under Articles 14 and 15 and her right to live with dignity underArticle 21 of the Constitution as well as her right to practice any professionor to carry on any occupation, trade or business.

Section 3 of the Act provides the following:

“3. Prevention of sexual harassment-

(1) No woman shall be subjected to sexual harassment at anyworkplace.

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SUPREME COURT REPORTS

A(2) The following circumstances, among other circumstances, ifit occurs, or is present in relation to or connected with any act orbehavior of sexual harassment may amount to sexual harassment:-

(i) implied or explicit promise of preferential treatment in heremployment; or B(ii) implied or explicit threat of detrimental treatment in heremployment; or

(iii) implied or explicit threat about her present or futureemployment or status; or C(iv) interference with her work or creating an intimidatingor 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 allDthe administrative units or offices of the work place. Sub-section (2) ofSection 4 of the Act provides for the constitution of the ICC. Section4(2) is extracted below:

“4(2). The Internal Committee shall consist of the followingmembers to be nominated by the employer, namely:-E(a) a Presiding Officer who shall be a woman employed at asenior level at workplace from amongst the employees:

Provided that in case a senior level woman employee is notavailable, the Presiding Officer shall be nominated from otherFoffices or administrative units of the workplace referred to in sub-section (1):

Provided further that in case the other offices or administrativeunits of the workplace do not have a senior level womanemployee, the Presiding Officer shall be nominated from anyGother workplace of the same employer or other department ororganisation; (b) not less than two Members from amongst employeespreferably committed to the cause of women or who have hadexperience in social work or have legal knowledge:

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(c) one member from amongst non-governmental organisationsor associations committed to the cause of women or a personfamiliar with the issues relating to sexual harassment:

Provided that at least one-half of the total Members so nominatedshall be women.”

22. Clause (c) of Section 4(2) indicates that one member of theICC has to be drawn from amongst a non-governmental organization orassociation committed to the cause of women or a person familiar withissues relating to sexual harassment. The purpose of having such amember is to ensure the presence of an independent person who canaid, advise and assist the Committee. It obviates an institutional bias.During the course of hearing, we have received a confirmation from thelearned senior counsel appearing on behalf of the bank that Ms SeemaGupta was, in fact, a panel lawyer of the bank at the material time. Thisbeing the position, we see no reason or justification on the part of thebank not to accede to the request of the respondent for replacing MsSeema Gupta with a truly independent third party having regard to theprovisions of Section 4(2)(c) of the Act. This is a significant facet whichgoes to the root of the constitution of the ICC which was set up toenquire into the allegations which were levelled by the respondent.

23. The respondent did not participate in the proceedings beforethe ICC since, in the meantime, she had moved the LCC in terms of theprovisions of Section 6 of the Act. Mr Sudhir Chandra, learned seniorcounsel urged that the LCC under Section 6 can be set up in a situationwhere the ICC has not been constituted or if the complaint is madeagainst the employer himself. It has been urged that in the present casethere was no complaint against the employer himself and hence theLCC would have no jurisdiction under Section 6 of the Act. Be that as itmay, we have a situation in the present case where the appellants didnot participate in the proceedings before the LCC and the respondentdid not participate in the proceedings before the ICC. What, however,es emerge from the record is that there was a fundamental defect in theconstitution of the ICC which was set up by the bank.

24. The material which has been placed on record indicates thatthe respondent had written repeated communications to the authoritiesdrawing their attention to the serious irregularities in the course of themaintenance of accounts of liquor contractors and in that context hadlevelled specific allegations of corruption. The respondent was posted A

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Aon 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 whichthe bank attaches to posting officers of the appropriate scale to a branchcommensurate with their position is evident from the Board’s Resolutionto which we have adverted earlier. Admittedly, the branch to which therespondent was posted was not commensurate to her position as a ScaleBIV officer. There can be no manner of doubt that the respondent hasbeen victimized. Her reports of irregularities in the Branch met with areprisal. She was transferred out and sent to a branch which wasexpected to be occupied by a Scale I officer. This is symptomatic of acarrot and stick policy adopted to suborn the dignity of a woman who isCaggrieved by unfair treatment at her workplace. The law cannotcountenance this. The order of transfer was an act of unfair treatmentand is vitiated by malafides.

25. In view of the above analysis, we are of the view that theHigh Court cannot be faulted in coming to the conclusion that the transferDof the respondent, who was holding the office of Chief Manager in theScale IV in Indore branch to the branch at Sarsawa in the district ofJabalpur was required to be interfered with. At the same time, a periodof nearly four years has since elapsed. Despite the order of stay, therespondent was not assigned an office at Indore and had to suffer theindignity of being asked to sit away from the place assigned to a BranchEManager. Considering the period which has elapsed, it would be necessaryfor the Court to issue a direction, which, while sub-serving the interestof the bank, is also consistent with the need to preserve the dignity of awoman employee who, we hold, has been unfairly treated.

26. We accordingly direct that Ms Durgesh Kuwar, the respondentFofficer, shall be reposted at the Indore branch as a Scale IV officer fora period of one year from today. Upon the expiry of the period of oneyear, if any administrative exigency arises the competent authority ofthe bank would be at liberty to take an appropriate decision in regard toher place of posting independently in accordance with law keeping inGview the relevant rules and regulations of the bank, in the interest of fairtreatment to the officer.

27. While affirming the decision of the High Court, the appeal isdisposed of in terms of the above directions. The respondent would beentitled to costs quantified at Rs 50,000 which shall be paid over withinone month.H

Divya Pandey