Shalini Kwatra vs State Of NCT Delhi And Ors

Aradhana Johri, Member (A)

The applicant, Ms. Shalini Kwatra, Assistant Teacher (Primary), posted in Patrachar Vidyalaya on diverted capacity and drawing salary from SKV No. 2, Punjabi Bagh was transferred to SKV, A Block, Vikaspuri vide order dated 29.12.2017. She has filed this O.A for cancellation of the said transfer order.

The specific reliefs claimed are follows :-

"a. Quash and cancel the impugned office order dated 29.12.2017 issued by the Respondent authorities for transfer of the Applicant;

b. Issue directions to the Respondent No.3 to allow the Applicant to work in her current school; or alternatively

c. Transfer the Applicant to the office of Directorate of Education, Old Secretariat, Delhi;

d. Pass such further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

It is the contention of the applicant that she highlighted several irregularities being committed by Mr. Sanjay Kumar Sharma, Incharge Lecturer, Geography and made several complaints in the matter. The said Mr. Sanjay Kumar Sharma started harassing her and indulging in indecent and obscene behaviour. An internal inquiry was held in the matter but, no final report has been communicated so far. She has also alleged that the Inquiry Committee has not been established as per rules and regulations.

In their reply, the respondents have said that the applicant has already been issued relieving orders which have been duly served on her but she has refused to accept the same. Thereafter, attempts were made to serve her and her family and finally the same was affixed outside her house. They have filed copies of relieving order dated 01.01.2018. They have averred that on the basis of the compliant of the applicant, an internal inquiry committee was constituted to conduct preliminary inquiry. Mr. Sanjay Kumar Sharma refused all the allegations but, Ms. Shalini Kwatra stood by the allegations she has made. As per their contention, the applicant is a habitual trouble maker. She was issued a charge sheet earlier and imposed penalty of reduction by three stages. She was issued another charge sheet on 24.04.2017 which, amongst other charges, also included the charge of beating the father of a student. The applicant's complaint of sexual harassment was forwarded to the Chairperson/Presiding Officer Internal Complaint Committee vide order dated 07.03.2018.

The applicant did not appear before the committee. Therefore, the committee recommended to file complaint of the applicant.

As per the respondents' contention, the applicant was unauthorisedly absent from duty with effect from 01.01.2008 till date. The respondents have also informed that Mr. Sanjay Kumar Sharma has also been transferred and has joined the new place of posting.

The respondents have informed that the applicant has also been relieved ex-parte on 01.01.2018. Therefore, there is no question of placing the applicant back to the original place of posting.

Heard Mr. Umesh Joshi, learned counsel for applicant and Ms. Esha Mazumdar, learned counsel for respondents.

There is no doubt that it is the prerogative of the Government to transfer its employees but, there should be no mala fide in the transfer.

They have cited the case of Ms. Shilpi Bose & Ors. Vs. State of Bihar, AIR 1991 SC 532, whereunder the Hon'ble Supreme Court held as follows :-

"4. ....A Government servant holding a transferrable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department."

Moreover, in S. C. Saxena Vs. Union of India and anr., 2006 SCC (L & S) 1890, it has been held that :-

"A government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a Court to ventilate his grievances. It is his duty to first report for work where he is transferred and made a representation as to what may be his personal problems."

The above two judgments uphold the right of the employer to transfer an employee and the fact that a Govt. servant must first report at place of transfer and then make a representation.

As far as the complaint of sexual harassment is concerned, it is a very serious matter and a proper inquiry should be done. No doubt, Mr. Sanjay Kumar Sharma, the person against whom the complaint is made, has been transferred from the said school but a full and proper inquiry needs to be done as per the guidelines of the Hon'ble Apex Court in Medha Kotwal Lele And Ors. Vs. Union of India & Ors.(2013) 1 SCC (L&S) 159, in accordance with Vishakha guidelines. In this inquiry, the applicant should be given full opportunity to present her case. This enquiry should be completed within 6 weeks.

With the above directions, the O.A is dismissed. No order as to costs.