Himachal Pradesh High Court on Transfer of Complainant pending inquiry and Retaliation

Transfer of Complainant pending inquiry

In a Nutshell: The Himachal Pradesh High Court, in the case of Sunita Kumari Vs. State of Himachal Pradesh decided on 10th September, 2020, dismissed Petitioner’s Petition which alleged that she was transferred from her posting as retaliation because she had filed a sexual harassment complaint

FACTS:

The Petitioner was serving as a Health officer in the Health and Family Welfare Department at Community Health Center (CHC) in Syri, District Solan, Himachal Pradesh (“Respondent Organization”). On 19th September 2019, she filed a complaint against the Block Medical Officer, Syri (“BMO”) alleging sexual harassment.  On 4th December 2019, she was transferred from CHC Syri to CHC Sillai. She argued that she was transferred in retaliation as she had filed a complaint against the BMO.

In response, the Respondent Organization stated that various complaints had been filed against Petitioner – alleging character assassination and mental torture (filed by BMO) and absenteeism, non-cooperation and misbehavior with general public. An IC was constituted to inquire into the complaints and on 17th October, 2019, a preliminary inquiry report was filed by IC. Pending inquiry, Petitioner made a request to transfer the BMO from CHC Syri to a different location so that fair and just inquiry could be conducted. Basis preliminary report, BMO was transferred on 21st November 2019. Petitioner also made a request seeking her transfer. After examining her request, she was transferred from CHC Syri to CHC Sillai.

Under these circumstances, the Respondent Organization claimed, it cannot be said that transfer order was issued to harass Petitioner.

HELD:

The Court, dismissing the Petition reiterated the observation by several judges in various Courts throughout the country that “Transfer of an employee is the exigency of service and prerogative of the employer. Employee has no vested right to get a posting at a particular place for a particular time. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee as these matters fall within the exclusive domain of employer.

The Court then considered several previous judgements passed by the Courts and reiterated the observations of the Himachal Pradesh High Court in a recent judgement dated 14th July 2020 being Puran Chand vs. State of H.P. which laid down the following guidelines –

  1. Transfer is a condition of service.
  2. It does not adversely affect the status or emoluments or seniority of the employee.
  3. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time.
  4. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required.
  5. Transfer order should be passed in public interest or administrative exigency and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure.
  6. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.
  7. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
  8. The person against whom allegations of malafide is made should be impleaded as a party by name.
  9. Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Department personnel.
  10. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer.
  11. If the transfer order is made in mid-academic session of the children of the employee, the Court/Tribunal cannot interfere. It is for the employer to consider such a personal grievance.

The Court, in view of this legal position, observed that the impugned order of Transfer of Complainant pending inquiry cannot be said to be suffering from any illegality.

POSH at Work Comment – A similar view has been taken by various courts. We have summarised few. For example, in Abhilasha Dwivedi vs Department of Women & Child Development NCT of Delhi and Ors the Delhi High Court observed that “Insofar as the Petitioner’s prayer for quashing the notice transferring the Petitioner to Alipur is concerned, this Court is unable to accept that any interference with the same is called for in these proceedings. The question as to how an organisation deploys human resources available to it, is a matter of internal management and warrants no interference by this Court. However, it will be open for her to make a representation to the concerned authorities setting out her apprehension regarding the work environment at Alipur. Needless to state that if any such representation is made, the same would be considered by the concerned authorities”

In Punjab Sind Bank vs Durgesh Kunwar, the Supreme Court observed that “transfer is an exigency of service. 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.”