The Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013 (“Act“) defines sexual harassment as any unwelcome act or behaviour (whether directly or by implication) namely, physical contact and advances, or demand or request for sexual favours, or making sexually coloured remarks, or showing pornography, or any unwelcome physical, verbal or non-verbal conduct of sexual nature. The Act was enacted to provide protection to women at the workplace from any kind of sexual harassment and to help with the prevention and redressal of any complaints of sexual harassment.
Recently, the Supreme Court of India (“Supreme Court“), through a bench comprising of Justice Chandrachud and Justice Rastogi, on February 25, 2020 while dismissing Civil Appeal No. 1809/2020 of Punjab and Sind Bank & Others v/s Mrs. Durgesh Kuwar (“Appeal“) held that sexual harassment of a woman at the workplace is an affront to her fundamental rights of equality and right to live with dignity.
Background
Mrs. Durgesh Kuwar (“Respondent“) is the chief manager, a scale IV officer at the Punjab and Sind Bank (“Bank“), Indore branch. The Respondent submitted six communications commencing from December 31, 2016 upto November 15, 2017 drawing attention to serious irregularities noticed by her in the maintenance of bank accounts of and transactions by liquor contractors, thereby raising serious issues. The Respondent recorded that there were duplicate bank guarantee registers and the entries were not the same in the registers and also some entries were missing from the new registers. The Respondent noted that limits were sanctioned to parties not having any connection to Indore for the execution of liquor contracts. The Respondent had submitted a detail report to the zonal manager of the Bank. However, instead of taking steps to rectify the irregularities, the Respondent was pressurised to cover up the misdemeanours. Within one month of submitting the last of the representations, the Respondent, on December 14, 2017 was served with a transfer order to a small rural branch of the Bank which should have been headed by a scale I officer and not someone in her position. The Respondent thereafter submitted a representation to the zonal manager referencing circulars of the bank governing posting of women officers with a request to retain her at the Indore branch.
On February 19, 2018, the Respondent then submitted a detailed report to the executive director of the Bank highlighting the irregularities noticed by her and also laid down allegations of sexual harassment against the zonal manager of the Bank, stating that that due to her refusal to cover up all these irregularities, the zonal manager gave her the transfer order. She accused the zonal manager of calling her late at night to discuss unimportant work, and then later insisting she meet him personally outside. The Bank constituted an internal complaints committee (“ICC“), for which the Respondent raised certain objections regarding the presence of certain members in the ICC and a lack of an independent member in the ICC as the panel lawyer of the Bank had been selected as a member of the ICC. However, the Bank only substituted two of the members of the ICC and did not replace the panel lawyer of the Bank with an independent person. Thereafter, the Respondent on being dissatisfied by the enquiry being conducted by the ICC, approached the local complaints committee (“LCC“) and did not participate in the proceedings before the ICC. While the LCC held that the zonal manager was guilty of sexual harassment, the ICC found no substance in the allegations. The Bank also held that they found no irregularities as stated by the Respondent and that the transfer order was issued by the executive director on the recommendation of three general managers and not the zonal manager.
The Respondent being aggrieved by the conduct of the Bank, filed a writ petition before the High Court of Madras (“High Court“). The learned Single Judge, while quashing the order of transfer, noted that the Respondent was transferred in violation of the circulars of the Bank and the guidelines laid down by the Ministry of Finance. The Bank being aggrieved by the order of the Single Judge, filed an appeal before the Division Bench of the High Court which upheld the judgment passed by the Single Bench.
Supreme Court finding
The Bank, on being aggrieved by the order of the Division Bench, filed the Appeal before the Supreme Court. While passing the judgment, the Supreme Court noted that it would not be inclined to interfere with an order of transfer unless it is malafide or contrary to a statutory provision, or issued by an authority not competent to pass the transfer order. However, in this case, the Supreme Court affirming the decision of the Division Bench of the High Court stated that the Respondent was victimized and her transfer order was in retaliation to her reports about the irregularities in her branch office and allegations of sexual harassment. The Supreme Court held that the transfer order was an act of unfair treatment and was vitiated by malafides.
The Supreme Court further detailed how there was a fundamental defect in the constitution of the ICC by the Bank. It stated that the panel lawyer of the Bank should have been replaced by an independent person belonging to a non-governmental organisation to aid and assist the ICC, as directed under the Act. The Supreme Court held that this provision being an important aspect of the Act, to ensure there is no institutional bias, the Bank should have accepted the Respondent’s request and replaced the panel lawyer. The Supreme Court further stated that the treatment meted out to the Respondent was symptomatic of a carrot and stick policy adopted to suborn the dignity of a woman.
The Supreme Court most significantly held that sexual harassment at the workplace was an affront to the fundamental rights of a woman to equality under Articles 14 and 15 and her right to live with dignity under Article 21 of the Constitution of India as well as her right to practice any profession or to carry on any occupation, trade or business.
Therefore dismissing the Appeal filed by the Bank, the Supreme Court directed the Bank to repost the Respondent at their Indore branch as a scale IV officer for a period of one year. It further stated that at the expiry of the one year, the Bank could take an appropriate decision regarding the Respondent’s posting ensuring fair treatment was meted out to the Respondent and all the relevant rules and regulations of the Bank were followed.
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