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2024 Supreme(Gau) 576
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH, (ITANAGAR BENCH)
SUSMITA PHUKAN KHAUND, J.
Smti Mishimbu – Petitioner
Versus
The State of A.P., represented by the Secretary to the Government of Arunachal Pradesh Department of Food and Civil Supplies and Others – Respondents
WP(C) No.456 of 2023
Decided On : 13-05-2024
For the Petitioner: Mr. T. Garam.
For the Respondents: Mr. R.H. Nabam(AAG), Ms. P. Pangu, Mr. C. Modi.
IMPORTANT POINT
The main legal point established is that the transfer of an employee in the context of alleged sexual harassment must adhere to the provisions of the Sexual Harassment of Women at Workplace Act, 2013 and the constitutional rights of the employee.
Headnote:
Sexual Harassment - Transfer of Employee - Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 - Section 12, Articles 14 and 16 of the Constitution of India
Fact of the Case:
The petitioner, an employee, filed a writ petition challenging her transfer following allegations of sexual harassment by a senior official. The petitioner alleged inappropriate advances and subsequent retaliation by the official, leading to her transfer.
Finding of the Court:
The court found that the transfer was in violation of Section 12 of the Sexual Harassment of Women at Workplace Act, 2013 and the rights guaranteed by Articles 14 and 16 of the Constitution of India. The court set aside the impugned transfer order.
Issues: The issues revolved around the alleged sexual harassment, retaliation, and the legality of the petitioner's transfer in light of the relevant legal provisions.
Ratio Decidendi: The court held that the transfer was passed dehors Section 12 of the Act of 2013 and set aside the impugned order. The court also considered the principles of fair inquiry and the petitioner's rights under the Constitution of India.
Final Decision: The court set aside the impugned transfer order and disposed of the writ petition, allowing the respondents to proceed with further action subject to the terms and conditions of the transfer policies.
JUDGMENT :
Heard Mr. T. Garam, learned counsel for the petitioner. Also heard Mr. R. H. Nabam, learned Additional Advocate General assisted by Ms. P. Pangu, learned Government Advocate for the respondent Nos. 1, 2, 3 and 4 and Mr. C. Modi, learned counsel for the respondent No. 5.
2. The petitioner is an employee under the Department of Food and Civil Supplies, Government of Arunachal Pradesh at Mohanbari. The State of Arunachal Pradesh, the Director, Food and Civil Supplies, the Joint Director of Food and Civil Supplies-cum-Additional Resident Commissioner, the Internal Complaints Committee of the same Department are arrayed as respondent Nos. 1, 2, 3 and 4.
3. The petitioner has filed this application under Section 226 of the Constitution of India for issuance of a writ in the nature of Certiorari or Mandamus or any other appropriate writ with a direction to set aside and quash the impugned order of transfer dated 07.08.2023 whereby the petitioner was transferred from the Office of ARC, Mohanbari to the Lower Dibang Valley, Roing. Vide order of transfer dated 11.08.2021 the petitioner was posted at DRC, Mohanbari and she was also In-Charge as the Drawal and Disbursement Officer (DDO for short) at Mohanbari vide order dated 27.04.2022. Meanwhile, the respondent No. 5 vide order dated 11.01.2022 took charge as Joint Director of Food & Civil Supplies-cum-Additional Resident Commissioner (ARC for short) at Mohanbari.
4. It is averred by the petitioner that the respondent No. 5 made several inappropriate advances towards the petitioner. The petitioner avoided the advances. However, to wreak vengeance, the respondent No. 5 who was unsuccessful in his pursuit to harass the petitioner stopped allotting any work to the petitioner. Works were assigned to the employees who were junior to the petitioner, which resulted in the immense mental agony of the petitioner. The petitioner was hesitant to proceed with any formal complaints against the respondent No. 5, who was her senior.
5. It is further contended that vide order dated 21.04.2023, the petitioner was directed to hand over the charges of the DDO to the respondent No. 5 to avenge the resistance of the petitioner towards his indecent advances. As the order was issued with malafide intent, the petitioner did not hand over the charges of DDO but, vide order dated 26.04.2023 the respondent No. 5 through an ex-parte order took over the charges from the petitioner as the DDO. Annexure – D and E are the orders dated 21.04.2023 and 26.04.2023.
6. It is further contended that as the respondent No. 5 ceaselessly pursued with his indecent proposal, the petitioner who was suffering from such harassment, filed a complaint before the Internal Complaints Committee constituted under Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the Act of 2013). The said Committee intimated the respondent No. 5 regarding the complaint filed by the petitioner on 25.05.2023 (Annexure-G). Meeting was held and the enquiry was conducted. As the petitioner did not reciprocate to the advances made by the respondent No. 5, she was kept out of all important official work.
7. Meanwhile, the petitioner took medical leave and was granted leave vide order dated 31.07.2023. Surprisingly, while the petitioner was still on leave, the respondent authorities issued the impugned order dated 07.08.2023 through which the petitioner was transferred from Mohanbari to Lower Dibang Valley, Roing as District Food and Civil Supplies Officer and the respondent No. 5 was transferred from Mohanbari to the Directorate Headquarter, Naharlagun (Annexure-J). It is contended that the order of transfer was illegal and is in violation of the Office Memorandum dated 09.09.2016, which is marked as Annexure-K.
8. The learned counsel for the petitioner has submitted that the Annexure-K i.e. the Office Memorandum dated 09.09.2016 clearly reflects that:
“3. Further, to
