MANU/RH/0002/2023

Equivalent/Neutral Citation: [2023(177)FLR780], 2023LLR390, 2023(2)RLW1654(Raj.)

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition Nos. 14558/2022 and 11792/2022
Decided On: 03.01.2023
Appellants: Mahendra Singh Rajawat
Vs.
Respondent: Punjab National Bank and Ors.
Hon'ble Judges/Coram:
Arun Bhansali, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Bhavit Sharma
For Respondents/Defendant: Jagdish Vyas
Case Category:
SERVICE MATTERS
ORDER
Arun Bhansali, J.
1. These writ petitions have been filed by the petitioner aggrieved against the action of
the respondents against the petitioner under the provisions of the Sexual Harassment of
Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 ('the Act') and
Rules made thereunder ('the Rules').
2 . CWP No. 11792/2022 was filed questioning the validity of transfer order dated
22.7.2022, consequential relieving order dated 22.7.2022, report of the Internal
Complaints Committee ('ICC') dated 15.7.2022 along with the recommendations made
by it.
3. During pendency of the said writ petition, by order dated 18.8.2022, noticing various
contentions raised by the petitioner and the fact that the representation made by the
petitioner was pending, while issuing notices, the competent authority of the
respondent-Bank was directed by this Court to decide the pending representation of the
petitioner by a speaking order.
4 . On decision of the representation by order dated 25.8.2022, CWP No. 14558/2022
has been filed by the petitioner questioning the validity of all the previous orders i.e.
transfer order dated 22.7.2022, relieving order dated 22.7.2022, report of the ICC dated
15.7.2022 along with order dated 25.8.2022 rejecting the representation of the
petitioner.
5 . It is inter alia indicated in the petition, after giving a background pertaining to the
complaints made by the complaint in the past, that a complaint dated 5.7.2022 (Annex.
4) was filed by the complainant against the petitioner purportedly alleging molestation
and harassment at work place. The competent authority forwarded the complaint to the

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ICC, which visited the branch where the petitioner was serving on 14.7.2022 and held
inquiry including seeking petitioner's explanation.
6 . The petitioner submitted his explanation alleging the complaint as malicious and
false. On the same day i.e. 15.7.2022, a report was submitted by the ICC, which found
the petitioner guilty and recommended that the petitioner be transferred to some other
branch, based on which, order dated 22.7.2022 (Annex. 7) was passed by the
respondent requiring transfer of the petitioner to branch Khara and required that he
must report at the said branch. On the same day vide Annex. 8, the petitioner was
relieved for reporting at branch Khara.
7. The petitioner objected to the action of the respondents in transferring the petitioner
on several grounds including the fact that his wife was suffering from serious ailments
and had been operated for brain tumor and requiring that he may be transferred to any
branch nearby. The petitioner also filed representation seeking copy of the complaint
and the report of the ICC, which formed the basis of taking action against the petitioner.
The petitioner also questioned the passing of the order of transfer in absence of any
administrative exigency or public interest and made reference to the provisions of the
Act, 2013 and Rules, 2013, along with the policy issued by the Bank and alleged that
entire action was in infraction of the said provisions.
8 . The petitioner filed CWP No. 11792/2022 raising all the issues and as noticed on
18.8.2022 order was passed seeking the respondents to decide the pending
representation of the petitioner. The said representation has been decided on 25.8.2022
(Annex. 11) refuting the allegations made in the representation and reiterating that the
prayer made by the petitioner seeking transfer to a branch nearby did not find favour
with the competent authority.
9. Feeling aggrieved, the present writ petition has been filed by the petitioner.
1 0 . Learned counsel for the petitioner made vehement submissions that the entire
action of the respondents is ex facie contrary to the provisions of the Act, 2013 & Rules,
2013 and Policy formulated by the Bank. Submissions have been made that in terms of
second proviso to Section 11 of the Act, during course of inquiry the petitioner should
have been given an opportunity of being heard and a copy of the findings should have
been made available to the petitioner enabling him to make representation against the
findings before the Committee, however, the copy of the findings was never made
available to the petitioner.
11. Further submissions have been made that under the provisions of Section 13 of the
Act, the report of the ICC, which was submitted to the respondent-Bank, said report
should have been made available to the petitioner, however, the same was also not
made available to the petitioner and the recommendations made in the report were
implemented, which is ex facie in violation of principles of natural justice.
12. Submissions have also been made that under provisions of Section 13(3), specific
punishment has been provided on the ICC arriving at the conclusion that the allegations
against the respondent have been proved, wherein, none provides that an employee can
be recommended to be transferred and, therefore, the recommendation made being ex
facie contrary to the provisions of the Act passing of the order transferring the
petitioner is ex facie illegal.
13. Learned counsel also made reference to the provisions of Rule 7 of the Rules of
2013 providing for manner of inquiry into the complaint and submitted that the entire

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exercise is in gross violation of the said provisions and, therefore, the ICC has acted
contrary to the provisions of the Act & Rules and the respondents were not justified in
acting on a report, which was in gross violation of the provisions of the Act & Rules
and, therefore, the entire exercise on part of the respondents deserve to be set aside.
14. Learned counsel for the respondent-Bank made submissions that the action of the
petitioner is writ large on record, wherein, in the past also on complaints being made,
he apologized and that when on complaint made, the ICC has found the petitioner guilty
of the allegations, the action of the respondents in transferring the petitioner, cannot be
faulted.
1 5 . Submissions have been made that the respondents could have taken action far
more harsh, however, based on the recommendation, has only ordered for transfer and,
therefore, the action does not call for any interference.
1 6 . It was not denied that the provisions of the Act & Rules requiring of making
available copy of the findings as well as inquiry report could not be followed by the
ICC, however, it was submitted that, insofar as, taking of action of transferring the
petitioner is concerned, the same is well protected by provisions of Section 12 of the
Act, wherein, during pendency of an inquiry, the transfer of the respondent to any other
work place could be recommended and as such, insofar as, the challenge laid to the
transfer of the petitioner is concerned, it was submitted that the same does not call for
any interference.
17. Reliance was placed on judgments in Dr. P.S. Malik v. High Court of Delhi & Anr.:
MANU/SC/1135/2019 : (2020) 19 SCC 714 and Somesh Tiwari v. Union of India:
MANU/SC/8494/2008 : (2009) 2 SCC 592.
18. I have considered the submissions made by learned counsel for the parties and
have perused the material available on record.
19. The provisions dealing with the Sexual Harassment of Women at Work Place stands
duly codified by enactment of Act, 2013 and Rules 2013.
20. Insofar as, relevant to the present case, the relevant provisions inter alia reads as
under:-
"11. Inquiry into complaint-(1) .....
Provided .....
Provided further that where both the parties are employees, the parties
shall, during the course of inquiry, be given an opportunity of hearing
heard and a copy of the findings shall be made available to both the
parties enabling them to make representation against the findings
before the Committee.
.......
12. Action during pendency of inquiry-(1) During the pendency of an inquiry,
on a written request made by the aggrieved woman, the Internal Committee or
the Local Committee, as the case may be, may recommend to the employer to-
(a) transfer the aggrieved woman or the respondent of any other
workplace; or

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1 3 . Inquiry report.-(1) On the completion of an inquiry under this Act, the
Internal Committee or the Local Committee, as the case may be, shall provide a
report of its findings to the employer, or as the case may, the District Officer
within a period of ten days from the date of completion of the inquiry and such
report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may be,
arrives at the conclusion that the allegation against the respondent has not
been proved, it shall recommend to the employer and the District Officer that
no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may be,
arrives at the conclusion that the allegation against the respondent has been
proved, it shall recommend to the employer or the District Officer, as the case
may be-
(i) to take action for sexual harassment as a misconduct in accordance
with the provisions of the service rules applicable to the respondent or
where no such service rules have been made, in such manner as may
be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable
to the respondent, from the salary or wages of the respondent such
sum as it may consider appropriate to be paid to the aggrieved woman
or to her legal heirs, as it may determine, in accordance with the
provisions of Section 15:"
Rules
"7. Manner of inquiry into complaint.-(1) Subject to the provisions of
section 11, at the time of filing the complaint, the complainant shall
submit to the Complaints Committee, six copies of the complaint along
with supporting documents and the names and addresses of the
witnesses.
(2) On receipt of the complaint, the Complaints Committee shall send one of
the copies received from the aggrieved woman under sub-rule (1) to the
respondent within a period of seven working days.
(3) The respondent shall file his reply to the complaints along with his list of
documents, and names and addresses of witnesses, within a period not
exceeding ten working days from the date of receipt of the documents specified
under sub-rule (1).
(4) The Complaints Committee shall make inquiry into the complaint in
accordance with the principles of natural justice.
(5) The Complaints Committee shall have the right to terminate the inquiry
proceedings or to give an ex-parte decision on the complaint, if the
complainant or respondent fails, within sufficient cause to present herself or
himself for three consecutive hearings convened by the Chairperson or
President Officer, as the case may be:
Provided that such termination or ex parte order may not be passed

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 without giving a notice in writing, fifteen days in advance, to the party
concerned.
(6) The parties shall not be allowed to bring in any legal practitioner to
represent them in their case at any stage of the proceedings before the
Complaints Committee.
(7) In conducing the inquiry, a minimum of three Members of the Complaints
Committee including the President Officer or the Chairperson, as the case may
be, shall be present."
21. A perusal of the above-quoted provisions would reveal that where both the parties
to the complaint are employees, they would be given an opportunity of being heard and
copy of the findings shall be made available to both the parties enabling them to make
representations against the findings before the Committee. From what has been noticed
hereinbefore, at no stage, the petitioner was provided with the copy of the findings by
the ICC enabling him to make representation against the findings of the Committee and
the Committee without seeking representation from the petitioner, made the
recommendation to the Employer.
22. Further, under Section 13, the report made by the ICC should have been made
available to the petitioner, which also was not made available to the petitioner and,
therefore, apparently the making of the report by the ICC as well as the action of the
respondents on the said report is ex facie contrary to the statutory provisions and in
gross violation of principles of natural justice.
23. Further, the Rule 7 of the Rules provides for an elaborate manner of inquiry into the
complaints, from material available on record, apparently none of the stipulations
indicated in the said Rule have been followed by the ICC and as such, the entire
proceedings before the ICC stand vitiated.
24. In view of the above, the entire action of the ICC as well as the respondents in
arriving at a finding against the petitioner based on the allegations made, cannot be
sustained only on account of the violation of the statutory settled procedure.
2 5 . There is further substance in the submissions made by learned counsel for the
petitioner that the ICC by way of final recommendation, could not recommend transfer
of the petitioner from one place to another as the same is beyond the provisions of
Section 13(3) of the Act.
2 6 . However, the submissions made by learned counsel for the Bank in this regard
requires consideration, inasmuch as, once the entire procedure adopted by the ICC, has
been held to be contrary to the provisions of the Act & Rules, the matter will have to be
remanded back to the ICC to follow the procedure as provided and discussed
hereinbefore in terms of the Act & Rules and the Policy of the respondent-Bank and the
recommendation, which has been made by the ICC though in the form of a final
recommendation, may be taken as recommendation during pendency of the inquiry
under Section 12 of the Act, which inter alia provides for making a recommendation to
the Employer to transfer the respondent to any other work place under Section 12(1)(a)
of the Act so as to ensure that the inquiry to be held is not affected and/or that there is
no further perpetuation of the circumstances in this regard.
27. So far as the challenge laid by the petitioner to the transfer based on his family
circumstance, wherein, his wife had been operated, despite directions of the Court

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requiring the respondents to decide the representation to be made by the petitioner, the
same has been dealt with in a wholly cursory manner by the competent authority and,
therefore, to the said extent and specially in view of the fact that due to passage of
time, due to change in circumstances, the competent authority must revisit the said
aspect.
28. Consequently, CWP No. 14558/2022 is partly allowed. The inquiry report of the ICC
dated 15.7.2022 forming part of Annex. 21 to the extent of holding the petitioner guilty,
is quashed and set aside. The matter is remanded back to the ICC to hold the inquiry in
terms of the provisions of the Act, 2013 & Rules made thereunder and the Policy of the
respondent-Bank by following principles of natural justice.
2 9 . The order transferring the petitioner dated 22.7.2022 (Annex. 7) is held to be
within Section 12(1)(a) of the Act, 2013, by way of interim measure and the
respondent-Bank is directed to reconsider the representation made by the petitioner
seeking transfer at a nearby place. It is expected of the ICC to conclude the inquiry with
utmost expedition and it shall not be prejudiced on account of its earlier findings. The
petitioner would cooperate with the inquiry. It is expected of the Bank to do the needful
with regard to the representation of the petitioner in relation to place of posting within
a period of ten days from the date of this order. The petitioner would be free to file a
fresh detailed representation, if so advised.
30. CWP No. 11792/2022 also stands disposed of in light of order passed in CWP No.
14558/2022 (supra).
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