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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. JAYASANKARAN NAMBIAR, MOHAMMED NIAS C.P., JJ.
S. KRISHNAKUMAR S/O R. SUKUMARAN NAIR – Appellant
Versus
STATE OF KERALA – Respondent
W.A. No. 1381 of 2022
Decided On : 02-11-2022
Indian Penal Code, 1860 - Sections 354A(2), 341 and 354 - Criminal Procedure Code, 1973 - Constitution of India, 1950 - Article 12 and 21 - Transfer Order - Punitive Transfer - Transfer, although disguised as a routine transfer, was in fact a punitive transfer in that it was seen necessitated on account of certain observations he had made in an order granting bail to a person accused of committing offences - Such action, however, was never initiated against the appellant by the High Court, which even in the counter affidavit filed before us maintains that the order of transfer was not punitive but in public interest and in the exigencies of the service.
Findings of the Court:
Judgment of the Supreme Court in K.S. Puttaswamy and Another v. Union of India and Others - an employer that answers to description of “State” within meaning of term under Article 12 of Constitution, including High Court in discharge of its administrative functions, cannot ignore dignity of employee concerned, and possible harm that may be caused to his reputation while in service, while ordering his transfer to another workplace - Reputation of an employee, as perceived by his fellow employees in service, is an important aspect of his dignity, which as a fundamental right traceable to Article 21 of Constitution, has to be respected by employer - In case of appellant, although his transfer order states that his transfer is in exigencies of service, circumstances under which he was transferred, and that too to a post that is not perceived by those in service, to be of same status as that of Principal District & Sessions Judge in the Higher Judicial Service in State, persuades Court to view same as punitive in nature and unfair to appellant - Court cannot also overlook fact that transfer order comes at a time when appellant has less than a year to retire from service on superannuation - He is also presently undergoing treatment for various ailments at a hospital - Subjecting him to a transfer under said circumstances would be unfairly prejudicial to appellant.
Result: Appeal is allowed.
JUDGMENT :
A.K. JAYASANKARAN NAMBIAR, J.
“If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly.”
[Ishwar Chand Jain vs. High Court of Punjab and Haryana and Another, (1988) 3 SCC 370]
1. The appellant before us is the Principal District and Sessions Judge at Kozhikode, and he is aggrieved by the judgment dated 01.09.2022 of a learned Single Judge who dismissed his writ petition that impugned an order transferring him from the post of Principal District and Sessions Judge, Kozhikode to the post of Presiding Officer, Labour Court, Kollam.
2. The appellant states that he was posted as the Principal District and Sessions Judge at Kozhikode with effect from 01.06.2022 and that, contrary to clause 3 and 4 of the extant transfer norms, that stipulated that a judicial officer would not ordinarily be transferred from a station before he completed three years therein unless such transfer was warranted in the exigencies of service, he was transferred out of his present station to Kollam. It is his case that his transfer, although disguised as a routine transfer, was in fact a punitive transfer in that it was seen necessitated on account of certain observations he had made in an order granting bail to a person accused of committing offences under Sections 354A(2), 341 and 354 of the Indian Penal Code. The observations were perceived as derogatory to women in general, and the victim in particular, and were met with severe criticism in the print, visual and social media and the transfer order is stated to have been issued as a response to such public criticism.
3. Per contra, the counter affidavit filed on behalf of the High Court on its administrative side states that the transfer was one that was necessitated in the exigencies of service and that in ordering so there was no violation of the extant transfer norms. It is pointed out that it was usual for District Judges to be posted as Presiding Officers of the Labour Courts in the State since they all formed part of the same cadre of posts in the Higher Judicial Service in the State. Referring to the orders passed by the appellant in certain bail applications, it is stated that the said orders point to the cussedness of the approach of the appellant and portrayed the entire judiciary in a poor light among the general public, and also had the propensity to erode public confidence in the institution.
4. The learned Single Judge who considered the writ petition found that the appellant could not be said to be prejudiced in any manner by his posting as a Presiding Officer of the Labour Court since that was a post borne on the cadre of District Judge, and the State Government was admittedly filling the post by appointing District Judges on the recommendation of the High Court. The transfer was also seen as necessitated in the exigencies of service and therefore not liable to be interfered with.
5. In the appeal before us, the learned senior counsel Sri. Sidharthan, duly assisted by Sri. Dinesh Mathew J. Murikan, the learned counsel on behalf of the appellant, re-iterated the contentions urged before the writ court and added that the circumstances leading to the transfer order clearly pointed to the order being punitive in nature and therefore legally unsustainable since it was not preceded by any disciplinary proceedings against the appellant. He placed reliance on the judgment in Krishna Prasad Verma (D) through LRs. vs. State of Bihar and Others, AIR Online 2019 SC 2686 to remind us that action should not be taken against judicial officers only because wrong orders are passed by them and that the High Court should also take on the role of protectors and guardians of the judges falling within their administra
Reputation of an employee, as perceived by his fellow employees in the service, is an important aspect of his dignity, which as a fundamental right traceable to Article 21 of the Constitution, has to....
The transfer order based on allegations should be followed by a detailed investigation and disciplinary action, and the individual should be provided an opportunity to defend against the allegations ....
Courts cannot interfere with transfer orders unless shown to be an outcome of malafide exercise or in violation of statutory provisions prohibiting such transfer.
Point of law: Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, ....
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