Kerala High Court Upholds Transfer In Light Of Pending Sexual Harassment Complaint
Judgement Given On : 11/08/2020
The Kerala High Court, in a case heard on August 11, 2020, addressed a critical question concerning employee transfers in the context of pending sexual harassment complaints. The case of Saikuttan O.N. vs. Kerala State Electricity Board revolved around the validity of an employee’s transfer based on the powers granted to an Internal Complaints Committee (ICC) under Section 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act). The petitioner argued that the transfer was an act of retaliation and should be halted, especially during the pandemic, as it posed a health risk.
The petitioner served as a Driver Grade – I at the Electrical Division, Cherthala, under the Kerala State Electricity Board (KSEB). He initiated a writ petition challenging his transfer, which was dated May 7, 2020, to the Kalamassery Operation Circle. He contended that the transfer was retaliatory in nature, driven by his reporting of irregularities, and posed a health risk amid the pandemic. Furthermore, the petitioner argued that there was no administrative exigency or public interest that warranted his transfer.
KSEB’s primary argument was that the transfer order stemmed from a sexual harassment complaint filed by a senior female officer under the POSH Act against the petitioner. The complaint alleged that the petitioner’s behavior caused distress and mental agony to the complainant and three other female employees. Specifically, they were left waiting in the verandah of a shop late in the evening for over an hour after official duties because the petitioner, who was the driver of the official vehicle, did not respond to their calls. Forced to call a departmental vehicle from another office, they returned to the office only at 9 PM. KSEB maintained that the complaint against the petitioner was pending before the ICC, which had been constituted under the POSH Act to address the sexual harassment complaint. Therefore, the transfer order, issued as an interim measure under Section 12 of the POSH Act, was justifiable and valid.
The Kerala High Court emphasized that established legal principles dictate that employee transfers are inherent to the employment relationship, and courts should refrain from interfering unless such transfers violate the law or are driven by malicious intent. Therefore, the Court’s primary focus was whether the petitioner’s transfer was justified.
The Court examined KSEB’s argument, rooted in Section 12 of the POSH Act, which allows the ICC to recommend actions during the pendency of an inquiry, including transferring the aggrieved woman or the respondent to another workplace. The Court upheld the impugned transfer order as justifiable and not mala fide based on the powers conferred upon the ICC by Section 12. The Court reasoned that during the ICC’s inquiry into the complaint, there was a risk of animosity between the petitioner and the complainant, as well as other female employees in the office. The petitioner might attempt to influence witnesses or interfere with the proceedings. Therefore, posting the petitioner to another office was deemed permissible under the law. The Court emphasized that it would not delve into the merits of the sexual harassment complaint, as it was sub judice before the ICC and should be adjudicated by the ICC. Relying on Section 12 of the POSH Act, the High Court concluded that the transfer order, which was a well-reasoned decision, was not tainted by malice, and accordingly, dismissed the writ petition. This case underscores the evolving role of Indian courts in promoting gender equality and the significance of the POSH Act. The High Court refrained from examining the merits of the sexual harassment complaint and instead upheld the provisions of the POSH Act. It is important to note that the POSH Act’s definition of a “workplace” is comprehensive, encompassing not only public/government companies but also private and unorganized sectors, including dwelling places or houses. Similarly, the Act’s broad definition of an “employer” imposes mandatory duties, including establishing policies against sexual harassment and conducting regular awareness programs to educate employees about the POSH Act’s provisions