Court upholds validity of transfer

Delhi High Court upholds validity of transfer, pending an IC inquiry

Recently, in a judgment dated 1st July 2019, the Delhi High Court in the case of Dinesh Chandra Mishra v. Trilochan Mohapatra and Ors. held that that transfer of a respondent to any other workplace of the employer based on the recommendation of an internal committee, pending an inquiry, so to bring immediate relief to the aggrieved person is valid.

Facts: Dinesh Chandra Mishra (“Petitioner”), an employee of the National Bureau of Plant Genetic Resources (“Employer“) filed the present contempt petition, alleging that the Transfer Order dated 26.09.2018 (“Second Transfer Order”) passed by the Employer violated an earlier judgment of this Court dated 11.08.2017 (“Earlier Judgment”), which had quashed the transfer order dated 02.08.2014 (“First Transfer Order”). The brief operative portion of the Earlier Judgment was that the Court directed the Employer to pass a fresh posting order depending upon exigency, administrative requirement, and keeping in mind the Petitioner’s qualification and area of work.

Subsequently, the Second Transfer Order was passed by the Employer transferring him from the headquarters to a farm at Isapur, New Delhi in compliance of the directions of the Internal Committee (“IC”), which was investigating a complaint of sexual harassment against the Petitioner.

Arguments: The contention of the Petitioner, who appeared in person, was that the Second Transfer Order violated the Earlier Judgment, as his qualifications and area of work were not kept in mind by the Employer. He contended that he was only qualified to work in a laboratory and not in a field/ farm environment, and his present posting at Isapur Farm was not commensurate with his qualifications or area of work. Further, his representations from 26.09.2018 to 22.11.2018 to the Employer had not been dealt with by a speaking order and were thus, liable to be treated as having been admitted by the Employer.

The learned counsel for the Employer submitted that the Earlier Judgment was followed and the Petitioner was transferred to an appropriate division of the Employer. He further submitted that the Second Transfer Order had no relation to the Earlier Judgment and was passed solely in compliance with directions of the IC. The allegation of sexual harassment was made in August 2018 and the IC recommended his transfer by a communication dated 24.09.2018.  The learned counsel further contended that the present Contempt Petition was an abuse of process of the court, as similar petitions for quashing the Second Transfer Order were raised and dismissed by a lower Court (“Tribunal”), as well as a Division Bench of this Court.

Held: The Petitioner failed to make out any grounds for initiation of contempt proceedings and has failed to show that the Second Transfer Order was passed without keeping in mind the factors mentioned in the Earlier Judgment. The Earlier Judgment cannot be read as a mandate which operates in perpetuity and in all circumstances. Those directions were with regard to the factors which the Employer was required to keep in mind while re-examining the necessity of posting the Petitioner in terms of the First Transfer Order. Further, his contention regarding speaking order is misplaced as it does not apply during correspondence between parties.

The Second Transfer Order specifically refers to the proceedings pending before the IC and was based on a recommendation of IC to transfer the Petitioner to any other workplace, as it was apparent through emails examined by the members of the IC that he could cause harm to anyone, and the complainant felt scared and threatened. The Court endorsed the Tribunal’s observations while dismissing the Petitioner’s claim that since he had only been transferred from one place of posting to another within Delhi itself, there was no need to interfere.

With reference to the Petitioner’s claim that no request for transfer was made by the Complainant, the Court endorsed the Division Bench’s observation that “the right of the employer to transfer the employee who is facing inquiry or even otherwise, is not dependent upon such a request being made by the complainant; and, secondly, counsel for the respondent, points out that such a request had indeed been made. Further, in relation to the Petitioner’s contention that no inquiry is called for in the present case since he had already tendered an apology for the conduct alleged against him, the Court affirmed the Division Bench’s observation that “the mere tendering of apology is no ground to drop the proceedings. The proceedings have to be taken to a logical conclusion and it shall be for the competent authority to examine the conduct of the petitioner and recommend appropriate action in the matter.

Therefore, the Court dismissed the contempt petition and ordered the Petitioner to pay costs of Rs. 5,000 to each of the respondents, as the suppression of previous proceedings filed by the Petitioner, was considered to be an attempt to abuse the process of the court.

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