Sexual Harassment At Workplace Is An Affront to Women's Fundamental Rights: SC [Read Judgment]

Sexual harassment at the workplace is an affront to the fundamental rights of a woman, the Supreme Court remarked while upholding a High Court judgment that quashed a transfer of a woman bank employee.

A woman employee of the Punjab and Sind Bank, who was holding the office of Chief Manager in the Scale IV in Indore branch was transferred to the branch at Sarsawa in the district of Jabalpur. She challenged the said transfer alleging 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 High Court allowed the writ petition and quashed the Transfer order.

While considering the bank's appeal, the bench of Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi at the outset noted the following principles to be adopted while examining validity of transfer order

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.

The Court noted that the employee 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. It noted that the employee had also levelled allegations specifically of sexual harassment against the Zonal Manager. In this context, the bench made these observations on of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It said:

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.

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.

While directing her to be reposted at the Indore branch, the bench also said that she will be entitled to a cost of Rs. 50,000. The bench said:

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 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.  

Case no.: Civil Appeal No 1809 of 2020  Case name: Punjab and Sind Bank vs.  Durgesh Kuwar
Coram: Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi
Counsel: Senior Advocates Sudhir Chandra and Colin Gonsalves

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