IN THE SUPREME COURT OF INDIA
PUNJAB AND SIND BANK AND ORS. v. DURGESH KUWAR
AIR 2020 SC 3040
Aoutherd By - Anuj Agrawal
Bench:- Jst. D.Y. Chandrachud & Jst. Ajay Rastogi
BACKGROUND AND FACTS
The Respondent in the year 1998 was appointed as the probationary officer and was promoted to Chief Manager in Scale IV and was transferred to Zonal Office at Mumbai and then was called to the branch office at Indore.
On 11 December, 2017 the respondent was again transferred from Indore to the branch office at Sarsawa in the district of Jabalpur. The same was furnished to her on 14th December, 2017.
On 31st January 2018 she submitted a representation to the zonal manager, recording a reference to the circulars of the bank governing the posting of women officers.
She made a request to let her retain in Indore and a representation was made on 19th February 2018 from her side to the Executive Director of the bank.
During her representation to the Executive Director of the Bank she made clear to the director about the act being committed under the veil by the authorities in the bank. Being on a post of Branch Manager, the respondent had inquired into the concentration of accounts maintained by the liquor contractors at the branch and had come across grave irregularities which are hazardous in the interest of the bank. The same have been reported to the Zonal Manager at Bhopal on 31st December, 2016.
Instead of actions on the whistle blown by the respondent, she was asked and pressurized to cover up the irregularities at the branch level.
Also, was asked by the Zonal Manager to come at his house for the discussion regarding the business which is not urgent in nature and can be dealt out later. He started harassing personally as professionally.
The respondent mentioned that she has made Zonal Manager aware of the irregularities she is coming across. After the denial of the respondent to handle the irregularity at her own level she was transferred from Indore branch to a 600 Km away rural area branch at the post which would be headed by the Scale I officer and was hence not a pose commensurate with her position as a Scale IV officer of the bank.
The order of transfer was challenged before the High Court of MP at Indore Bench, where the transfer order was put on stay and it was further held that- Though, as a matter of principle, transfer orders were ordinarily not interfered within the exercise of Judicial review, the respondent had been transferred in violation of the circulars of the bank as well as the guidelines issued by the Ministry of Finance in the department of financial services. The judgement of the learned Single Judge has been affirmed in appeal by the division bench of the high court.
Among other things the division bench had held- that the respondent had levelled serious allegations against this Zonal Manager which were brought to the attention of the executive director of the bank. The high court had taken note to the fact that the respondent had drawn several irregularities to the notice of the higher authorities and the transfer was mala fide, as a reprisal to the action which had been initiated by the respondent and the allegations which she had levelled against the zonal manager.
- That, it is urged that when the case was pending before the division bench on 13th March 2019, an offer was made to the respondent by the bank, which proposed respondent to be transferred to a scale IV branch in either of these 3 cities Jabalpur, Jaipur or New Delhi.
- It was urged that despite the above offer, the respondent did not indicate any choice of posting to one of the three branches which was suitable for a scale IV officer. Moreover, the alternative is provided by the bank and was willing to accommodate the respondent at a scale IV branch in Bhopal.
- That, in the initial representation it was submitted by the respondent on 31st January 2018, that there was no mention of either the accusations of irregularities at the branch that she had discovered or sexual harassment by the Zonal Manager. These accusations were said to have been made in a communication sent to the executive director on February 19, 2018.
- That, the executive director issued the order of transfer on the recommendation of three general manager level officers and as a consequence, It would be a stretch to blame the authority who oversaw the move for the wrongdoings committed against this Zonal Manager.
- That, it was that the Bank's internal complaints committee, after reviewing the respondent's claims, concluded that they were without basis, according to its report dated February 26, 2019. The bank claims that after receiving the respondent's complaint, it conducted a caution and special audit.
- That, they also questioned the formation of LCC (LOCAL COMPLAINT COMMITTEE) since there is already ICC (INTERNAL COMPLAINT COMMITTEE) is in existence.
- As per section 6 of the Act, LCC can be set up in a situation where the ICC has not been constituted or if the complaint is made against the employer himself and hence the LCC would have no justification and the jurisdiction under section 6 of the Act.
- That, the Counsel for the respondent has mentioned that the appellant didn’t submit four sets of important records to the attention of this court. It has been suggested that the first series of records be those relating to the respondent's emails to higher officials detailing in depth the irregularities and misconduct she found in the bank's transactions since she took over as a branch officer at Indore. It was also urged that these letters by the respondent started from the date 31st December 2016 and was followed by different letters on the date such as 31st January 2017, 6th of February 2017 till 15th November 2017.
- That, in the second set of documents it was mentioned by the counsel on behalf of respondent that she was silenced in response to the local complaints committee's findings. According to the record, the respondent was dissatisfied with the investigation undertaken by the bank's internal complaint committee. She had lodged a case with the local complaint committee under the 2013 Act on Sexual Harassment of Women at Workplace.
- That, it was also mentioned that the local complaint committee had concluded that the charge of sexual harassment directed against the fourth appellant by the respondent has been established. The respondent's point about the internal complaint committee is that the members of the committee were biased against the respondent, and there was no inter-independent member as required by the act's provisions
- That, it was also submitted by the Council from the respondent, said that the original order of transfer of was subsequently modified. As the original order of the transfer dated 14th of December 2017 had proposed the transfer of the respondents from Indore to a branch falling under the zonal office at Dehradun but in the order served to the respondent she was transfer and posted to a branch at Sarsawa in the district of Jabalpur where the respondent would continue under the administrative control of the same zonal office.
- That, the bank has not adequately informed this court of the Central Vigilance Commission's office Memorandum on the rotation of officers in sensitive positions. The manner in which the order of transfer was made, near on the heels of the respondent's allegations of corruption, the counsel argued, indicated a strong case of malafide.
- That, it was also made into mention that it is the respondent who was an officer of scale IV and was posted to a post owned by scale I level Bank in the heat of the board resolution approving the policy in regard to the classification of branches.
- That, also it has been submitted that the list of the branches indicates that the branch to which the respondent has been transferred is a rural branch at which scale I officers are posted. The respondent was functioning as a chief manager in Indore at an exceptionally large branch which have deposits of rupees 250 crores and above.
- That, it was also made in the statement given by the Council that as a matter of fact one of the suggested places of posting is Jaipur, where her maternal home is situated but despite this as a matter of principle, the respondent would request this code to determine the validity of the order of transfer in the present case.
- In the para 20 of the judgment, the observation was made on the which is enacted for the protection of women against the sexual harassment at work place and the justification was given that how sexual harassment is an affront to the fundamental rights enshrined under Article 14, 15 and 21.
- The court held that- the Respondent in the question has tried to make aware the authorities regarding the irregularities being committed. Also, the respondent was posted to the branch where the bank itself knows that that post is not for the officer of scale IV.
- There could be no scope of doubt that the Respondent was victimized.
- She met with reprisal due to her reports of irregularities made to the authorities. All these facts can easily conclude that “this was symptomatic of carrot and stick policy adopted to suborn the dignity of a woman who was aggrieved by unfair treatment at her workplace.
- The law could not countenance this. The order of transfer was an act of unfair treatment and was vitiated by malafides.”
- The order of High Court was upheld. Also, after looking into the fact that the period of four years has been elapsed and the respondent is sitting at her house which is suffering indignity and was not assigned an office at Indore, then the court had provided Respondent with a job on the same post i.e. of the scale IV officer for the period of 1 year at the Indore Branch and mentioned that if any exigency arises, the competent authority would be at liberty to take an appropriate decision in regard to her place in accordance with the law.
- Also, provided with Rs.50,000 as the costs which shall be paid over within the one month.
It’s hard to find or we seldom see the whistle blowers around us. Some are being pressurized or being bribed to keep themselves silent. As in this case where the respondent was asked to remain silent and was even tried to be bribed by the authorities in question.
The Supreme Court had in this case provided an strength to those people who encounters the same situation like respondent has gone through. In this case both the courts have identified that yes the respondent was victimized of sexual harassment as well as of the presence of malafide in the transfer orders that were issued against the respondent.
The only setback of the judgment that I have concluded is that irrespective of what court has directed the re-allotment of the post of her in the Indore branch, the amount allowed by the court i.e. Rs.50000 as the compensation is not sufficient to what she has suffered after spending 4 years without job.