In a Nutshell: Kerala High Court, in the case of Saikuttan O.N. vs Kerela State Electricity Board decided on 11th August, 2020 dismissed Petitioner’s Petition challenging the transfer order during pendency of sexual harassment complaint against him.
The Petitioner worked as a Driver Grade – I at Electrical Division, Cherthala for Kerala State Electricity Board (Respondent 1). During his tenure, Petitioner claimed that he had reported some irregularities committed by Respondent 5. Respondent 5 had filed a complaint of sexual harassment against Petitioner. Thereafter, an order of transfer was passed by Chief Engineer (Respondent 4) transferring Petitioner to a location 60 kilometres away from his house in comparison to the current one which was only 20 kilometres away. He contended that due to Covid-19 and due to living with a family which included his ailing mother, he ought not to have been transferred and such a transfer needed to be quashed.
In response, Respondent 4 stated that complaints against Petitioner included complaints of inappropriate behaviour and insubordination which had caused mental stress and agony to Respondent 5 as well as other female employees. Respondent 4 stated that given pendency of sexual harassment complaint before the Internal Committee, they felt it fit that Petitioner is transferred so that inquiry can be conducted without interference.
The Court, observing on the provisions of Section 12, held that “During the adjudication of the complaint by the Internal Complaints Committee, there is every likelihood of there being animosity between the petitioner and the 5th respondent and other woman employees working in the office, and that the petitioner may attempt to influence the witnesses as well as interfere with the proceedings. Therefore, the 4th respondent has rightly arrived at the conclusion that in the best interests of the Board the petitioner is to be posted in another office, which is permissible in law.” It also said that, “The said action, which is in consonance with Section 12 of the Act, cannot be said to be one vitiated with mala fides.”
Essentially, the Court observed that transfer is a necessary exigency of service and it might be a necessary action as a sexual harassment complaint was pending and dismissed the Petition.
POSH at Work Comment – In this case, there is no mention of IC recommending any interim measure (as per requirement of Section 12). Hence, it is unclear how the decision to transfer the Petitioner was taken i.e. whether Respondent 4 himself decided to do so or whether it was recommended by IC.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work & Adv. Vatsal Chorera – Legal & Compliance