In a statutorily grounded and factually driven ruling, the Madhya Pradesh High Court in Shankarlal Namdeo v. State of Madhya Pradesh & Others (W.P. No. 17827 of 2024) set aside a transfer order issued under the guise of Section 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act), highlighting procedural misuse and complainant non-cooperation. Justice Vivek Jain delivered the judgment on 03 September 2024.
Parties and Background
The petitioner was posted as Sub-Inspector (Ministerial) and Head Clerk in the VIth Battalion, SAF, Jabalpur. The intervenor, a lady Head Constable, had been attached to the same unit due to personal hardship—caring for her mentally disabled son. Allegations of sexual harassment were made by the intervenor against the petitioner, which he countered.
Two departmental inquiries were conducted in March and June 2024, both of which exonerated the petitioner. Nevertheless, a transfer proposal was initiated against the petitioner by the Deputy Commandant of the VIth Battalion citing the ongoing discord between the petitioner and the intervenor.
Formal proceedings under the PoSH Act were alsoinstituted by the intervenor against the petitioner.
On 01.07.2024 transfer order was issued transferring the petitioner to Maihar, a distant location about 150 km away.
The petitioner challenged his transfer order as punitive and without legal basis.
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Conduct of the Intervenor and ICC Proceedings
An Internal Complaints Committee (ICC) was constituted as per Section 4 of the PoSH Act. The ICC made attempts to proceed with the inquiry. However, according to the ICC’s interim report dated 18.07.2024, the intervenor consistently avoided recording her statement, despite multiple appearances. The ICC noted that it was unable to carry the proceedings forward due to the non-cooperation of the complainant.
The ICC was constituted on 18.10.2023, but reconstituted on 13.05.2024, and again on 04.06.2024. — yet the intervenor refused to cooperate with the internal complaint committee.
The most critical development occurred on the same day as the impugned transfer order — 01.07.2024 — when the intervenor submitted a letter expressing that she had no trust in either the Internal Committee or any Local Committee and the matter should be inquired by some State Level committee constituted at some higher level.
Significantly, this expression of mistrust:
- Contained a bald assertion that she had no trust in the Internal Committee or in any Local Committee.
- Contained no specificcontention that which member of the committee was biased and in what manner.
- Merely cited her own mental condition as a reason for not recording her statement.
- Mentioned not even “a single word of reason or apprehension for such mistrust.”
Key Statutory Provision – Section 12 of the PoSH Act
Section 12 allows, during pendency of inquiry, and on a written request from the aggrieved woman, the Internal Committee or Local Committee to recommend:
(a) transfer of the respondent or the aggrieved woman,
(b) grant of leave up to three months to the aggrieved woman,Or
(c) other prescribed relief to the aggrieved woman.
Importantly, such a recommendation must come from the ICC/LC. In this case, there was no such recommendation—only a recommendation of the Commandant who had constituted the Internal Complaints Committee.
Submissions and Contentions
The petitioner contended that:
- His transfer was penal, not administrative.
- The ICC had not recommended any such action.
- The complainant had brought the inquiry to a standstill, yet used its pendency to get him transferred.
The State and the intervenor argued that continuation of the petitioner at the same place would not be conducive to cordial atmosphere at workplace and may also affect the inquiry being carried out under the PoSH Act.
High Court’s Findings and Key Observations
The Court made several important findings:
- The transfer was not based on ICC recommendation: “…for the transfer to be statutory transfer in terms of Section 12 of the POSH Act, it has to be on recommendation of the Internal Complaints Committee.”
- The complainant’s conduct was obstructive: “The intervenor has created an impossible situation of stalemate in herself bringing to the proceedings of the Internal Complaints Committee at standstill…”
- Strategic conduct was noted: “Most importantly, the letter expressing mistrust in the Committee was submitted on the same date when the impugned transfer order was issued… only wanted to keep the Complaint pending indefinitely.”
- No administrative exigency was shown: “The transfer is only on account of pendency of the complaint… and the order amounts to penalizing the petitioner.”
Conclusion and Relief
The High Court quashed the transfer order, declaring it a misuse of process and an act of undue victimization. It allowed the writ petition and observed:
“The transfer of the petitioner merely on account of pendency of the Internal Committee proceedings is not justified… the transfer amounts to nothing but undue victimization and harassment of the petitioner.”
However, the Court granted liberty to transfer the petitioner within Jabalpur City to maintain a cordial work atmosphere without disrupting his life.
Legal Takeaways
- Transfers under Section 12 of the PoSH Act require ICC recommendation and cannot be initiated unilaterally.
- Complainant non-cooperation and vague mistrust claims do not justify procedural deviations.
- The Court reaffirmed that statutory mechanisms must not be subverted for strategic advantage.
- The balance between protection of complainants and fairness to respondents must be vigilantly maintained.
- This judgment strengthens safeguards against arbitrary or retaliatory use of PoSH procedures.
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