We are further of the prima facie view that when an officer, by virtue of a post, is also a Presiding Officer or Member of the ICC, ordinarily there should be security of tenure. The principles which apply to security of tenure of Judges and Presiding Officers of various quasi-judicial tribunals
would, in our opinion, also apply to Members/Presiding Officers of ICC.
The Supreme Court in Madras Bar Association Vs. Union of India (2014) 10 SCC 1 held that all Courts are Tribunals; any Tribunal to which any existing jurisdiction of Court is transferred should also be a Judicial Tribunal, meaning inter alia that the Members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.
The Presiding Officers and Members of ICC, in our view, are also ‘Judges’ within the meaning of Section 19 of the Indian Penal Code, 1960. PerSection 11 (3) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also, for the purpose of making an inquiry, ICC has the same powers as are vested in a Civil Court under Code of Civil Procedure, 1908 in the matter of summoning and enforcing attendance of any person and examining him on oath and
requiring discovery and production of documents. {Para 8}
9. The counsel for the respondents CRPF appearing on advance notice
has strongly opposed the contention aforesaid and has argued that there is no
hard and fast rule of the tenure at a post being of three years and for
administrative exigencies, officers/personnel can always be transferred even
prior to three years.
10. Undoubtedly, so. However, once the personnel/officer by virtue of a post also occupies the position as aforesaid, the administrative exigencies, in our view, have to be weighed vis-à-vis the consideration of the need for security of tenure, inasmuch as, else there would always be apprehension that on returning unfavourable findings, the sword of transfer would be
brought down.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 6712/2021
NEERAJ BALA Vs UNION OF INDIA & ORS.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
Dated: 19.07.2021
[VIA VIDEO CONFERENCING]
C.Ms. No. 21114/2021 & 21115/2021 (both for exemption)
1. Allowed, subject to just exceptions and as per extant Rules.
2. The applications are disposed of.
W.P.(C) 6712/2021 & C.M. No. 21113/2021 (for interim relief)
3. The petitioner, a Commandant at Central Reserve Police Force
(CRPF) Dwarka, has filed this petition impugning the order of her transfer, prior to the period of three years, to Greater Noida.
4. We have enquired from the Senior Counsel for the petitioner, the
inconvenience if any, in transfer from Dwarka to Greater Noida, inasmuch
as both fall in the National Capital Region and a large part of population
living at one place, on a daily basis travels to other place for work; such
transfer does not cause any prejudice.
5. Though the senior counsel for the petitioner has sought to contend
that son of the petitioner is studying in Delhi and/or that the petitioner has
been allotted official accommodation at Delhi but there are no particulars in
that regard and for the time being we are not convinced with the said ground of challenge.
6. However, the second ground urged by the senior counsel for the
petitioner is, that the petitioner, on being posted as Commandant, CRPF,
Dwarka, was vide order dated 29th May, 2019 (Annexure P-3 to the petition)
also appointed as the Presiding Officer of the Sector Level Internal
Complaints Committee (ICC) of Northern Sector in connection with sexual
harassment of women at work place. It is contended that the transfer of the
petitioner is malafide and/or motivated. Attention is drawn to pages 111 and
112 of the file, being part of the report/memorandum submitted by the
petitioner as a Presiding Officer of the ICC, wherein the petitioner has
returned findings not only against the person against whom that subject
complaint was made but also against another Senior Officer. It is contended
that the real reason for the transfer is to remove the petitioner as the
Presiding Officer of ICC and which she is otherwise entitled to continue till
remains posted as Commandant in CRPF, Dwarka.
7. Prima facie, merit is found in the aforesaid contention.
8. We are further of the prima facie view that when an officer, by virtue of a post, is also a Presiding Officer or Member of the ICC, ordinarily there should be security of tenure. The principles which apply to security of tenure of Judges and Presiding Officers of various quasi-judicial tribunals
would, in our opinion, also apply to Members/Presiding Officers of ICC.
The Supreme Court in Madras Bar Association Vs. Union of India (2014) 10 SCC 1 held that all Courts are Tribunals; any Tribunal to which any existing jurisdiction of Court is transferred should also be a Judicial Tribunal, meaning inter alia that the Members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.
The Presiding Officers and Members of ICC, in our view, are also ‘Judges’ within the meaning of Section 19 of the Indian Penal Code, 1960. PerSection 11 (3) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also, for the purpose of making an inquiry, ICC has the same powers as are vested in a Civil Court under Code of Civil Procedure, 1908 in the matter of summoning and enforcing attendance of any person and examining him on oath and
requiring discovery and production of documents.
9. The counsel for the respondents CRPF appearing on advance notice
has strongly opposed the contention aforesaid and has argued that there is no
hard and fast rule of the tenure at a post being of three years and for
administrative exigencies, officers/personnel can always be transferred even
prior to three years.
10. Undoubtedly, so. However, once the personnel/officer by virtue of a post also occupies the position as aforesaid, the administrative exigencies, in our view, have to be weighed vis-à-vis the consideration of the need for security of tenure, inasmuch as, else there would always be apprehension that on returning unfavourable findings, the sword of transfer would be
brought down.
11. Rather, the counsel for the respondents has drawn our attention to the
part of the report submitted by the ICC, of which the petitioner was the
Presiding Officer and has argued that the petitioner, contrary to all norms
has given the name of DIG against whom observations/findings have been
made in the said report. It is contended that no names ought to have been
given.
12. The aforesaid argument reinforces the fear we have expressed, of the
transfer of the petitioner being punitive. If one of the considerations for
transfer was the factum of the petitioner in her report of the ICC having
named the DIG, then the matter certainly requires consideration.
13. The counsel for the respondents at this stage, states that the petitioner has also pleaded to have given a representation against her transfer and the same be permitted to be decided.
14. Issue notice.
15. Notice is accepted by the counsel for the respondents appearing on
advance notice.
16. A decision on the representation be taken, in the light of our aforesaid
observations, within one week, as sought, and be communicated to the
petitioner.
17. If the decision is against the petitioner, counter affidavit including on
the aforesaid aspects, be filed within two weeks, as sought.
18. Rejoinder thereto, if any, be filed within further one week thereafter,
as sought.
19. List on 25th August, 2021.
20. Till then, the impugned transfer order be not given effect to.
RAJIV SAHAI ENDLAW, J
AMIT BANSAL, J
JULY 19, 2021
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