The High Court of Delhi recently, on 29th July, 2016, discussed transfer (during pendency of a complaint of sexual harassment) by an internal complaints committee (“ICC”), in accordance with Section 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”) in the case of Rupesh Hari vs. Union of India and Others.

The facts of the case are that Ms. Kusumlata (“Complainant”) filed a complaint against her colleague Rupesh Hari (“Petitioner”) for sending her several unwelcome SMS messages and creating a hostile work environment for her. This complaint was forwarded to the ICC, before which, the Petitioner submitted the response and participated in the enquiry and claimed innocence. During the pendency of this complaint, ICC passed an order recommending transfer of the Petitioner from New Delhi to Jabalpur. The Petitioner filed an appeal and then a review against the order, however, both were rejected. As a result, Petitioner filed the present Writ Petition to get the order quashed.

In this regard, counsel for the Petitioner argued that the complaint appeared to be motivated and the order transferring the Petitioner should be quashed as it is arbitrary, without application of mind and has failed to consider that Petitioner is the only child and has legal obligation to take care of his parents in Delhi. Counsel for Respondent submitted that under Section 12 of the Act, ICC was within its right to recommend the transfer.

Taking into consideration, the findings of the ICC and Section 12 of the Act, the High Court of Delhi concluded that the order was in consonance with law and must not be quashed.

Please Note: Section 12 (1) of the Act states that 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 to any other workplace. It is unclear from the facts of this case whether, the ICC, on its own recommended transfer of the Petitioner or did so, at the written request of the Complainant.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work