[POSH Act] Transfer Of Accused Merely Due To Pendency Of ICC Proceedings Without Any Recommendations Is Unjustified: Madhya Pradesh High Court

The Madhya Pradesh High Court recently quashed an order transferring a sub-inspector–against whom allegations were made under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act (POSH), observing that the transfer was made merely because the internal complaints committee proceedings were pending is unjustified.

A single judge bench of Justice Vivek Jain, in its order observed, "The transfer of the petitioner is not on the ground of any administrative exigency...The transfer is only on account of pendency of the complaint before the Internal Complaint committee. The contention of the petitioner seems to have substance in saying that the order amounts to penalizing the petitioner by transferring him to a place almost 150 Km. away just on account of pendency of the enquiry, that too which is in position of indefinite stalemate".

It further said that it has no hesitation in holding that the transfer of the petitioner "merely on account of pendency of the Internal Committee proceedings is not justified in absence of any recommendation of the committee", after noting that the committee proceedings had been brought to an "indefinite stalemate by the intervenor (woman) herself".

"The transfer amounts to nothing but undue victimization and harassment of the petitioner," the high court held.

Background

The court's order came in a writ petition filed by one Shankarlal Namdeo, who challenged his transfer order which was recommended following allegations of sexual harassment made by a lady Head Constable, the intervener in this case. In spite of two inquiries clearing the petitioner of the allegations, a proposal was made for his transfer, citing issues between the petitioner and the intervener.

The petitioner contended that the transfer was a penalty rather than an administrative decision. He contended that the Internal Complaints Committee (ICC) proceedings under the POSH Act were stalled due to the non-cooperation of the intervener.

The woman, the intervener before the high court, contended that the petitioner had been "indulging in sexual/gender harassment" of the intervener and she had moved an application on which proceedings under the POSH Act were initiated. Her counsel contended that as per Section 12 POSH Act there is a provision to transfer the aggrieved woman or the respondent of the complaint to any other place upon recommendation of the internal committee or legally committed; hence the transfer was as per the provision.

It was also argued by the counsel for the intervener as well as by the State that the continuation of the petitioner at the same place would not be conducive to the cordial atmosphere and at the workplace and may also affect the enquiry being carried out under the POSH Act.

Findings

Taking note of Section 12 POSH Act the high court said that while the transfer was sought to be justified under these provisions, however "for the transfer to be statutory transfer in terms of Section 12 of the POSH Act, it has to be on recommendation of the Internal Complaints committee". The court then said that in the present matter, there was no proposal of the internal complaints committee.

The high court further noted that as the documents on record, an earlier internal committee was constituted on October 18, 2023, which was "reconstituted time and again" on May 13 and June 4 this year.

"However, the intervener by letter dated 01.07.2024 has expressed that she has no trust in the Internal Complaint Committee and in any Local Committee and the matter should be inquired by some State Level committee constituted at some Higher Level. She has also expressed in the said application...that she has no trust either in the Internal Committee or in the local committee. She has made a bald assertion in the said application...that she has no trust in the Internal Committee or in any Local Committee," the order notes.

Taking note of the facts, the high court said that it was evident that POSH Act proceedings were pending against the petitioner for over a year and it was also clear that the "Internal Committee had recorded that the intervener has not been cooperating in the proceedings" of the committee.

Referring to the July 18 letter placed on record, the high court said that it was evident that the proceedings of the committee "have come to stand still and at stalemate because the intervener has refused to get the matter inquired by the said committee, without assigning a single word of ground of mistrust in the said committee".

The court said that it appeared that the intervenor had "tried to take undue advantage of mere pendency" of the POSH Act proceedings "to get the petitioner transferred and then bringing the proceedings to an indefinite halt".

Quashing the transfer order, the court also took note of the allegations in the complaint against the petitioner as well the counter-allegations in the matter and said that the controlling officer and competent authority are always at liberty to make suitable arrangements to maintain a cordial atmosphere in the office.

"Thus, this Court grants liberty to the respondents to transfer, post or attach the petitioner to any other office or establishment within Jabalpur City only during pendency of the proceedings under POSH Act so that cordial atmosphere can be maintained in the office and it would also not cause any undue disturbance in the life of the petitioner just on account of pendency of the proceedings under the POSH Act which have come to a indefinite stand still on account of the stand taken by the complainant/intervenor before the Complaint Committee," the court said.

Case Title: Shankarlal Namdeo Vs. The State Of Madhya Pradesh And Others.

Case No. WRIT PETITION NO. 17827 OF 2024.

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