Kerala High Court
Csb Bank Limited vs Kerala State Human Rights Commission on 31 August, 2022
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
WP(C) NO. 25628 OF 2022
PETITIONER:
CSB LIMITED, (FORMERLY THE CATHOLIC SYRIAN BANK LTD.), CSB BHAVAN,
ST.MARY'S COLLEGE ROAD, THRISSUR - 680 020, REPRESENTED BY ITS ASSISTANT
GENERAL MANAGER (HR), SHRI SANTHOSH KUMAR P.
BY ADVS.LATHA ANAND
SRI. K ANAND (SR)
M.N.RADHAKRISHNA MENON
SAJIKUMAR.K.K.
S.VISHNU (ARIKKATTIL)
SIDHARTH P.S.
RADHAKRISHNA PILLAI B
RESPONDENTS:
1 KERALA STATE HUMAN RIGHTS COMMISSION
4TH FLOOR TURBO PLUS TOWER, PMG JUNCTION, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN - 695 033, REPRESENTED BY ITS REGISTRAR.
2 JENCY MATHEW, KOICKAL HOUSE, MOLETH ROAD, UNICHIRA,
THRIKKARA P.O., COCHIN, PIN - 682 021.
BY ADV B.MOHANLAL - R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.08.2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 25628 OF 2022 :: 2 ::
JUDGMENT
Dated this the 31st day of August, 2022 S.MANIKUMAR, C.J.
Petitioner herein is a banking company registered under the Companies Act, and is undertaking banking business, through its various branches, all over the country. Petitioner is aggrieved by Ext.P5 interim order dated 3.8.2022 of the Kerala State Human Rights Commission - the first respondent herein, directing the bank to permit the 2 nd respondent to rejoin her earlier post and to regularize her absences.
2. Before the Human Rights Commission, Thiruvananthapuram - respondent No.1, respondent No.2 has filed a complaint alleging harassment against the petitioner herein. The said complaint has been entertained in HRMP No.3164/11/13/2021/TSR. After considering the averments made in the complaint and the report of the bank, the petitioner herein, Kerala State Human Rights Commission, has passed Ext.P5 interim order on 3.8.2022, which is reproduced hereunder:
"Interim Order dated 3rd August, 2022 This petition is filed against the harassment suffered by the petitioner at her work place for the past 6 years. As far as this petition is concerned, Commission primarily taking cognizance only on the allegation of 'harassment at work place' and its allied matter and other part of the petition will be examined on due course.
WP(C) NO. 25628 OF 2022 :: 3 ::
The Respondent bank has filed a report before this Commission stating details of general transfer made recently and the terms and condition for appointment also. In such report it is seen that, the respondent bank has simply treated the harassment incident in a light manner and stated that, a copy or the complaint was forwarded to the Internal Complaint Committee under POSH Act, 2013 to inquire into allegations mentioned in the complaint. Committee is conducting the inquiry into the allegation contained in the complaint as per the provisions of POSH Act, 2013.
It is pertinent to note that whatever actions have been taken under the POSH Act, 2013, the petitioner i.e. the victim is still in dark for her future and for her employment security. In this circumstance, a discussion about the true intention of the Sexual Harrassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is very important. This Act was enacted to provide protection against sexual harassment of women at work place and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. It is also added in said Act that, sexual harassment in violation of the fundamental rights of a women to equality under article 14 and 15 of the Constitution and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, or trade or business with includes a right to safe-environment from sexual harassment. The protection against sexual harassment and the right to work with dignity are universally recognized human rights by international convention and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25 th June 1993 by the Government of India. The POSH Act 2013 is made with the provisions for giving effect to the said convention for protection of women against sexual harassment at workplace. Hence this subject matter is purely under the purview of this Commission.
On perusal of the report submitted by the respondent, it is seen that, nothing has done on the part of the bank to secure even a safe environment for the petitioner for her employment security. Unfortunately it is noted that, the petitioner had sought all possible remedies such as filing of complaint before the Thrissur Town East Police and deposed her statement nothing has been done on the part of the bank to secure even a safe u/s 164 of CrPC before the Hon'ble JFCM-II, Thrissur but no progress has been made in the investigation so far. Moreover, she was put in a dilemma to rejoin her duty without ensuring a conducive atmosphere of safe employment. Hence she seeks the intervention of this Commission and requested for initiating appropriate WP(C) NO. 25628 OF 2022 :: 4 ::
action to render justice to her.
The petitioner was attended the Camp Sitting of Commission held at Thrissur on 26-7-2022 and narrated her sorry state of affairs before this Commission. Accordingly, the Commission has examined all matters in detail and is decided to issue an interim direction to the respondents as follows;
i) The Respondent bank should immediately permit the petitioner to rejoin her earlier post and to regularize her absences without sticking of the formalities since she was abstained from duties on the fear of further harassment and not deliberately. The employer is duty bound to safeguard the working environment from further harassments also.
ii) The station House Officer of the Thrissur Town East Police to urgently inform this Commission about the progress of the investigation upon the Complaint submitted by the petitioner.
Copy of this interim order will be furnished to the petitioner, Managing Director & CEO of the CSB Bank, Thrissur and the Station House Officer, Thrissur Town East Police Station urgently."
3. Mr.K.Anand, learned Senior counsel for the writ petitioner, submitted that Ext.P5 order dated 3.8.2022 in HRMP No.3164/11/13/2021/TSR is in total violation of the principles of natural justice. The petitioner bank was neither given an opportunity of hearing nor issued a notice before the impugned order was passed.
4. By virtue of the impugned order, respondent No.1 - the Kerala Human Rights Commission, has interfered with the transfer of an employee of the petitioner bank, and therefore, has transgressed all the bounds of its jurisdiction.
WP(C) NO. 25628 OF 2022 :: 5 ::
5. Learned Senior Counsel for the petitioner further submitted that the power of the Commission is only recommendatory and an order of the present nature, is not envisaged under the Protection of Human Rights Act, 1993.
6. He also submitted that as per Regulation 17(f) of the Kerala Human Rights Commission (Procedure) Regulations, 2001, cases relating to 'service matters, labour and industrial dispute' are not maintainable before the Commission.
7. Learned Senior Counsel placed reliance on the decision of this Court in Maiyadas v. RDO, Pathanamthitta reported in ILR 2020 (1) Kerala 167. According to the learned Senior Counsel, the impugned order amounts to interference of the right of the petitioner guaranteed under Article 19(1)
(g) of the Constitution of India, to regulate its internal affairs.
8. Mr.B.Mohan Lal, learned counsel for the 2nd respondent, submitted that the complaint filed by the 2nd respondent regarding sexual harassment at workplace, was forwarded to the petitioner bank.
9. He further submitted that immediately thereafter, the complaint was forwarded to the Internal Complaints Committee, which had taken WP(C) NO. 25628 OF 2022 :: 6 ::
cognizance and proceeded to enquire into the complaint. The enquiry of the Internal Complaints Committee is still going on and has not attained finality. The petitioner bank is obliged to await for the outcome of the orders of the Internal Complaints Committee.
10. Learned counsel for the 2nd respondent denied all the averments and allegations in the writ petition and submitted that the writ petition filed by the petitioner is not maintainable under law.
11. It is further submitted by the learned counsel for the 2 nd respondent that the petitioner bank cannot challenge Ext.P5 order in a writ petition under Article 226 of the Constitution of India.
12. It is also submitted that the 1st respondent Commission is vested with the jurisdiction under Section 12 of the POSH Act, 2013 and Section 2(d) of the Protection of Human Rights Act, 1993, to enquire into an alleged Human Rights violations.
13. We have heard learned counsel for the parties and perused the materials available on record.
14. Reading of the complaint filed by the 2nd respondent dated 13.05.2021 (Exhibit-P3), addressed to the Kerala State Human Rights WP(C) NO. 25628 OF 2022 :: 7 ::
Commission, Thiruvananthapuram, and others, prima facie, indicates that the complainant/2nd respondent herein was aggrieved by the transfers effected.
15. At this juncture, it is relevant to extract the relevant paragraphs from the said complaint:
"While working in IT Department Ernakulam, COC (Centralized Operations) - Ernakulum headed by Respondent No.2 made a special request for transfer of Petitioner to his department and accordingly, Petitioner was transferred to COC - Ernakulam on 18.05.2015. After joining CPC, Respondent No.2 started harassing Petitioner. Petitioner had been instructed to work in unethical and irrational manner and to ignore extant rules & regulations in place. Respondent No.2 intimidated Petitioner both mentally and physically and was warned to stay back pretending to be for work until late hours. Moreover, his confidantes. approached Petitioner with advises to give in to his requirements failing which Petitioner have to face dire consequences. When the Respondent No.2 understood the strong stand of the Petitioner, he resorted to other means of venting revenge. Respondent No.2 has manipulated situations to inflict extreme torture and harassment, because of which Petitioner was undergoing deep mental pressure. The Respondent No.2 went on increasing the intensity of harassment day by day and threatened Petitioner that she can do nothing and the only solution is to surrender to his malicious intentions. Petitioner's black days started from there. The Respondent No.2 tactfully managed to get Petitioner issued with a deputation order to a client office (CAMS) at Chennai for an uncertain period with mere mention of 'for a few days' clause in deputation order.
Accordingly, Petitioner was made to join CAMS Chennai on 05.12.20 where she faced a terrible time caught in the political unrest situati due to the demise of then Tamil Nadu Chief Minister Madam Jayalalith Vardha Cyclone and Jellikkattu protests. Moreover being unaware of period of deputation, the Petitioner struggled a lot to find safe a secured accommodation amidst all WP(C) NO. 25628 OF 2022 :: 8 ::
these eventualities. Even the requ of Petitioner for returning from deputation was denied in disdain.
Fed up of anti- humanitarian treatment from the side of Management tactfully driven by Respondent No.2, the Petitioner silently suffered all the atrocities and harassment for the sake of her family. In the meanwhile, the Petitioner received a call from a senior officer of HR Department offering a request transfer to Ernakulam compassionate grounds. Believing his words, Petitioner placed a request upon on 04 01 2020 for transfer to Ernakulam Subsequently Transfer Order dated 06.01.2020 was issued to Petitioner intimating transfer to COC Department Ernakulam Accordingly. Petitioner made all travel arrangements for returning back to Ernakulam and to vacate the Hostel where Petitioner was staying for the entire tenure. But the relieving of the Petitioner had been withheld orally. Meanwhile Hostel authorities asked to vacate the premise on month end and Petitioner struggled to arrange for extension of stay. Gradually National Wide Lock Down was imposed due to Corona Pandemic situation Subsequently on 01.06.2020, the Petitioner received another Transfer Order to ISM (Information Security Management) Department, Ernakulam. Again on 06.06.2020, Petitioner received another Transfer Order to HO Centralized Operations Department, Thrissur, with instructions to get relieved on 12.06.2020 Petitioner made a representation for reconsidering the transfer order to any of the offices in Ernakulam or for allowing to join duty offsite/Work From Home, due to the peak time pandemic spread and associated difficulties. The Petitioner was unable to do inter state travel and find accommodation & quarantine facilities in Thrissur. The request of Petitioner was vehemently rejected and almost every day Petitioner received threatening calls from HR Department asking to join the new place in no time. Further, the Petitioner was relieved in absentia from Chennai on 18.07.2020. Left with no other option and at the verge of osing job, Petitioner by facing great difficulties somehow managed to join HO Centralized Operations Department on 14.09.2020 after mandatory quarantine of 28 days. The Transfer Orders issued to Petitioner is produced herewith as Annexure 2.
By this time, Respondent No.2 also managed to take a transfer to Head Office, Thrissur. After joining Head Office, Thrissur only Petitioner came to understand the evil ploy hatched WP(C) NO. 25628 OF 2022 :: 9 ::
by Respondent No.2 in bringing Petitioner to Thrissur to continue the harassment through his aide Respondent No.3, who is the current departmental head. Respondent No.2 directly told Petitioner that there is no ground for Petitioner to complaint for harassment by a lady superior and the transfer to Ernakulam was intentionally modified to Thrissur.
In continuation of the ongoing harassment by the Management, the Petitioner is issued with Transfer Order dated 12.05.2021 during Lock down asking to immediately join Mallad Branch on 17.05.2021, which is almost 35 kms. away from the present place of posting."
16. Bank has sent a detailed reply dated 19.08.2021 (Exhibit-P4) to the Kerala Human Rights Commission, Thiruvananthapuram, stating that the grievance is relating to transfer, as per the policy. Bank has also stated that as regards the harassment, complaint under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) matter was pending consideration in W.P. ()C No.16734/2021. Said reply is reproduced:
"HR/08/1071/2021 HR Department, Chennai
19/08/2021
To
The Hon'ble Chairperson
Kerala Human Rights Commission,
Turbo Plus Tower, PMG Junction
Vikas Bhavan P.O. Thiruvananthapuram-33
Email: [email protected]
Sir,
Sub: Complaint by Jency Mathew, Manager, CSB Bank Ltd Ref:-3164/2021 dated 30/07/2021.
In the banking industry, general transfers will be released during the month of April/May every year. During the month of WP(C) NO. 25628 OF 2022 :: 10 ::
May 2020, bank issued 352 number of transfers to officers on Pan India basis. Out of the 352 number of transfers, 238 number were issued to male officers and 114 number were issued to female officers. All of them were relieved and reported at the respective places despite Covid-19 pandemic.
During the current year, bank issued 396 number of general transfers on pan India basis. Out of 396 transfers, 259 transfers were given to male officers and 137 transfers were issued to female officers. Among the female officers, we issued transfer to 25 officers outside Kerala State and 31 officers were posted outside the Zone. During the last year, the complainant was transferred to Kerala as per request. Petitioner Joined the Bank as trainee officer on 14/07/2008. After the training period she was given the posting as Asst Manager on 14/01/2009. On 12/09/2012 the petitioner was promoted to Grade II.
During the last 13 years, Petitioner worked in Chennai for 6 years and 6 months including training period and in Ernakulam for 3 years 11 months and 16 days and in Thrissur for 2 years 2 months and 9 days. The recent transfer for which the present petition is filed is given within Thrissur District. The transfer given to the petitioner during 2020 was as per request only. In her complaint she has alleged that being a specialist officer bank cannot transfer her out of administrative office and she cannot be posted to a branch. We reproduce below one of the terms and conditions accepted by her for seeking appointment in the Bank.
"You will be subjected to transfers to any of the branches/administrative offices of the Bank solely at the discretion of the Bank."
Accordingly, she acknowledged and accepted the terms and conditions and joined the Bank. All the officers are liable to be placed anywhere in Bank depending upon exigency. As per the offer of appointment given to the complainant, there is a specific clause authorizing the Bank to transfer her to any of the branches/offices of the Bank.
The petitioner has stated that she shoulders the responsibility of a family of 3 consisting of sick mother and an unmarried younger sister who is out of station. It is known that the WP(C) NO. 25628 OF 2022 :: 11 ::
complainant's younger sister is working in a nationalized bank as Law Officer and she is out of station as a part of her job. The complainant has conveniently suppressed the above fact before the authority to evoke sympathy.
The contention that the petitioner was issued 4 transfer orders in the last 16 months and the latest order was issued only in the interval of hardly 8 months of service in the present place. On verification of the records, it is seen that the complainant made a request for transfer to her native place on 04/01/2020. Immediately on 06/01/2020, a transfer order was issued to her to Centralized Operations Ernakulam. She has not stated anywhere in the complaint why she did not opt and join as per the transfer dated 06/01/2020. Despite of the transfer order she continued in the Core Banking office in Chennai. In spite of above transfer order she did not move to Kerala immediately. As the vacancy at CPC Ernakulam could not be kept open for long and it was internally realigned and consequently she was given another place by modifying the existing transfer on 30/05/2020. The transfer order dated 30/05/2020 was again modified as per the observations of the Department Head. Finally the complainant moved from Chennai only on 18/07/2020. In the complaint she did not mention why she did not move from Chennai immediately on receipt of the first transfer order on 06/01/2020. Actually only two transfers have taken place during the 18 months, i.e. firstly from Chennai to Thrissur based on her request and secondly to Thrissur to Mallad (within Thrissur District).
The contentions that all the recent transfer orders have been issued to the petitioner during the National/state Lockdown imposed periods (2020 & 2021) that too with ulterior motive only to disturb and create havoc not only in the life of the petitioner but also her dependent family. The transfer order dated 30/05/2020 was issued initially and it was modified on 06/06/2020. Both the transfers were issued only after relaxing the nationwide lockdown and after allowing the interstate travel. It is relevant to point out that the petitioner was relieved only on 18/07/2020 considering the availability of the travel facility. The petitioner was transferred from Chennai to Thrissur as per the petitioner's request only. The Bank always advised the officers to travel as per the new place only after complying with Covid restrictions imposed by the Government and local WP(C) NO. 25628 OF 2022 :: 12 ::
authorities. The contentions raised by the petitioner are factually incorrect and wrong.
The contention that petitioner has been denied eligible promotion for 6 years. The petitioner is also denied all opportunities for her career advancement and her career remains stagnated for the past 6 years out of her total service of 13 years are absolutely false and wrong. The petitioner was given promotion from Grade I to II on 12/09/2012. In the bank there is no automatic promotion. It is pertinent to note that the petitioner did not appear for the promotion process which was held during 2020-21. So it is clear that the petitioner is raising false and frivolous allegation against the Bank after abstaining herself from the promotion process.
Based on the copy of this complaint received, as per the existing policy of the Bank, a copy of the complaint was forwarded to Internal Complaints Committee under POSH Act 2013 to inquire into allegations mentioned in the complaint. Committee is conducting the inquiry into the allegations contained in the complaint as per the provisions of POSH Act 2013. Upon receiving the findings of the Internal Complaints Committee we shall forward the same strictly complying with the provisions of the POSH Act.
While the proceedings before the Internal Complaints Committee is pending the complainant filed a Writ Petition before Hon'ble High Court of Kerala vide WP No 16734/2021 against the State of Kerala and 9 others.
Yours faithfully, (Jayashankar T) Head HR"
17. Perusal of the records reveals that the service of all the employees of the petitioner bank is transferable and no employee can claim protection.
WP(C) NO. 25628 OF 2022 :: 13 ::
18. Material on record also indicates that, every year, during April/May, general transfers are issued on the basis of various criteria including exposure in a particular field, career development, suitability, office exigency, promotion, exposure to a particular region, overall performance, etc.
19. It could also be deduced that the 2 nd respondent joined the petitioner as a trainee on 14.7.2008, on the specific condition that she will be subject to transfer to any branch or administrative office of the bank.
20. At this juncture, it is also relevant to note the decision of the Hon'ble Madras High Court in MIOT hospitals v. State Human Rights Commission, Tamil Nadu and others [Judgment dated 24.10.2017 in W.P. No. 17259 of 2003], wherein it is held as under:
"Having found that first respondent has no power to inquire into complaints against petitioner, a private hospital, which does not constitute a public servant, it is not necessary to consider the question of limitation but for purpose of completion, we would state that first respondent is in error in informing that the period of limitation of one year from the date on which the Act constituting violation of human rights is alleged to have been committed provided in Section 36(2) of the Act would not begin to run till the aggrieved party had discovered the fraud 'with reasonable diligence', as Section 36(2) of the Act explicitly is clear that a Commission could not enquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed i.e., it is the date of offending WP(C) NO. 25628 OF 2022 :: 14 ::
act and not the date of discovery thereof which would be determinant on the question of limitation.
The Writ Petition shall stand allowed. The order of first respondent dated 14.5.2003 and proceedings in Case No.219 of 2003/SS shall stand quashed. No costs."
21. That apart, Exhibit-P3 complaint is filed against a bank, represented by its Assistant General Manager (HR), as regards transfer. On the facts and circumstances of this case, this Court is of the view that said issue ought to have been addressed as a preliminary issue. In any event, interim order of the Kerala State Human Rights Commission, Thiruvananthapuram, extracted above, is nothing, but an interference in the matter of transfer made by the bank, and for the reasons stated supra, the same is liable to be set aside.
In the light of the above, interim order made in HRMP No.3164/11/13/2021/TSR dated 3.8.2022, by the Kerala State Human Rights Commission, Thiruvananthapuram, (Exhibit-P5), is set aside. Writ petition is allowed.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P. CHALY
JUDGE
jesXXX
WP(C) NO. 25628 OF 2022 :: 15 ::
APPENDIX
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 19/06/2008 OF THE 2ND RESPONDENT.
Exhibit P2 TRUE COPY OF THE ORDER DATED 07/01/2009 ISSUED BY THE PETITIONER BANK TO THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT DATED 13/5/2021. Exhibit P4 TRUE COPY OF THE REPLY DATED 19/08/2021 SUBMITTED BY THE PETITIONER BANK. Exhibit P5 TRUE COPY OF THE INTERIM ORDER DATED 03/08/2022 ISSUED BY THE 1ST RESPONDENT.
RESPONDENTS' EXHIBITS Exhibit R2(a) THE TRUE CITIZEN COPY OF FIR IN CRIME NO.1189/2021 OF THRISSUR EAST POLICE STATION AND ITS ENGLISH TRANSLATION.
Exhibit R2(b) THE TRUE COPY OF ORDER DATED 24/8/2021 IN WPC NO. 16734/2021 OF THIS HON'BLE COURT.
Exhibit R2(c) THE TRUE COPY OF ORDER NO.HR/O.1794/T.172/2021 DATED 1/7/2021 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.
Exhibit R2(d) THE TRUE COPY OF ORDER NO.HR/0.1794/T-335/2022 DATED 5/4/2022 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.
Exhibit R2(e) THE TRUE COPY OF RELIEVING ORDER SENT BY PETITIONER BANK BY ON E-MAIL. Exhibit R2(f) THE TRUE COPY OF THE APPLICATION DATED 6/4/2022 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE MANAGING DIRECTOR OF THE PETITIONER BANK AMONG OTHERS AND THE 1ST RESPONDENT.
Exhibit R2(g) THE TRUE COPY OF THE ORDER DATED 11/4/2022 ISSUED BY THE PETITIONER BANK TO THIS RESPONDENT.
Exhibit R2(h) THE TRUE COPY OF THE APPEAL DATED 18/4/2022 FILED BY THE 2ND RESPONDENT BEFORE THE MANAGING DIRECTOR AND CHIEF EXECUTIVE OFFICER OF THE PETITIONER BANK.
// TRUE COPY // P.S. TO JUDGE