In this case, the petitioner was working as Driver – Grade 1 at Electrical Division, Cherthala, Kerala State Electricity Board since 2003. Petitioner had filed the petition before the high court challenging his transfer order.
The respondent i.e. the electricity board argued that the transfer order was issued on account of a complaint filed by the petitioner’s controlling officer (senior female officer) who had complained that the petitioner was irresponsible and harassing in his conduct towards her and various other female staff. This complaint was pending before the internal committee constituted under the POSH Act. Therefore, the transfer order was issued as an interim measure under Section 12 of the POSH Act.
While adjudicating this case the judges upheld the following judgement of The Hon’ble Supreme Court in Shilpi Bose and Others v. the State of Bihar and Others [(1991) Supp 2 SCC 659] the Hon’ble Supreme Court observed as follows:
” 4. In our opinion, the courts should not interfere with a transfer order which is made in the public interest and for administrative reasons (unless the transfer orders W.P.(C)No.12087/2020 ..19”
The court was of the opinion that
“It is settled position of law that transfer of employment is an incidence of service and courts do not generally interfere with such orders unless they are made in violation of law or are mala-fide in nature. Bearing in mind the powers given to an internal committee under Section 12 of the POSH Act, the court held that during the adjudication of the complaint by the internal committee, there is a likelihood of there being animosity between the petitioner and the complainant and other women employees working in the office and that the petitioner may attempt to influence the witnesses as well as interfere with the proceedings. Therefore, it was correct to post the petitioner to another office, which was permissible under law.”
Furthermore, the court upheld the contention of the respondent –
“the chief engineer after examining exhibit P-2 representation and the complaint of the 5th respondent has felt it fit that in the best interest of the board that the petitioner be transferred out from the present office to a nearby office, within the same district, so that the inquiry can be conducted by internal committee, without the interference of the petitioner, which is the mandate under Section 12(1)(a) of the Act.
Section 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 reads thus:
“12. Action during the pendency of inquiry:- W.P.(C)No.12087/2020 ..23..
(1) During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee of the Local Committee, as the case may be, may recommend to the employer to-
(a) Transfer the aggrieved woman or the respondent to any other workplace; or
(b) Grant leave to the aggrieved woman up to a period of three months; or
(c) Grant such other relief to the aggrieved woman as may be prescribed.”
Hence, the court upheld the power of the IC to give an interim order to transfer an employee during the pendency of a case.
Takeaways for the internal committee
- The courts have often upheld the powers of the IC. If the committee members are of the opinion to give out interim orders, they should with due-diligence
- There should be an apparent/upfront reason for passing any interim orders which should be well documented.
Glossary
- Petitioner: a person who presents a petition to an authority in respect of a particular cause.
- Respondent: respondent is someone who has to defend a case in a law court.