Kerala High Court


Kerala High Court: In an appeal filed against the judgment of a Single Judge transferring the appellant from the post of Principal District and Sessions Judge to the post of Presiding Officer of Labour Court, the division bench of A.K.Jayasankaran Nambiar and Mohammed Nias C.P. viewed that although the post of Presiding Officer of a Labour Court is one that can be filled through the deputation of a District & Sessions Judge, in practice and by convention, persons who have been posted as Principal District & Sessions Judges are not transferred and posted as Presiding Officers of the Labour Courts in the State. Thus, it was held that the impugned transfer order does appear to be punitive in nature and upholding the same would, apart from meeting out injustice to the appellant, will also have a deleterious effect on the morale of the judicial officers in the State.

The issue in this case was whether the appellant was merely discharging his judicial role as a District & Sessions Judge while passing the said order and making those observations, or whether, by making the said observations, he had occasioned a misconduct warranting punitive action?

The appellant submitted that his transfer is 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, unless such transfer was warranted in the exigencies of service.

It was also submitted that his transfer, although disguised as a routine transfer, was in fact a punitive transfer, on account of certain observations he had made in an order granting bail to Civic Chandran of committing offences under Penal Code, 1860, as the observations were perceived as derogatory to women in general and the victim, 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.

Per contra, the respondent stated 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. Further, 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.

The Court reiterated that in matters of transfer of an employee, the Court would ordinarily refuse to interfere with the decision of an employer that is taken in the administrative exigencies of the service concerned; however, the Court cannot remain a silent spectator to actions of an employer that are vitiated by mala fides, either factual or legal, or are otherwise arbitrary in nature, thus, the Court will interfere with the orders of transfer if it finds that the order is punitive in nature and has not been preceded by a disciplinary enquiry as mandated by the service rules.

The Court viewed that though the observations of the appellant in the bail order were indeed derogatory to women and wholly uncalled for, however, the transfer order was issued in the immediate aftermath of media reports that criticized the appellant for certain observations that he had made in an order granting bail to Civic Chandran and it appears to be no other reason that necessitated the transfer.

The Court viewed that a distinction must be drawn between wrong orders passed by judicial officers in the discharge of their judicial function and other conduct that cannot be attributed to a legitimate exercise of their judicial function. The former category of errors are ordinarily to be corrected in proceedings brought by an aggrieved person before the higher courts in the judicial hierarchy and the latter category of cases are to be corrected through disciplinary action initiated against the erring officer by the High Court, on its administrative side.

Further, the Court said that non-adherence to the guidelines issued by the Supreme Court, except when established to be willful and deliberate, cannot be seen as misconduct on the part of a judicial officer.

It also said that if the High Court, on its administrative side, was of the view that the observations of the appellant in the judicial orders passed by him were of such nature as warranted the initiation of disciplinary action against him, then it ought to have called for an explanation from the appellant first and then established the misconduct in a disciplinary enquiry instituted for the purpose and only after arriving at a finding of misconduct, that an appropriate punishment could have been imposed on him; however, no such action was initiated against the appellant by the High Court.

The Court took note of K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, wherein it was said that “the 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, must be respected by the employer” and viewed that although the appellant’s transfer order states that his transfer is in the exigencies of service, however, the circumstances under which he was transferred, and that too to a post that is not perceived by those in the service, to be of the same status as that of the Principal District & Sessions Judge in the Higher Judicial Service in the State, makes the said order punitive in nature and unfair to the appellant.

The Court further viewed that the transfer order comes at a time when the appellant has less than a year to retire from the service, on superannuation. Further he is also undergoing treatment for various ailments at a hospital and subjecting him to a transfer under the said circumstances would be unfairly prejudicial to him. Thus, the Court set aside the impugned transfer order of the Single Judge.

[S. Krishnakumar v. State of Kerala, 2022 SCC OnLine Ker 5526, decided on 2-11-2022]

Advocates who appeared in this case :

For Appellant:

Advocate V.V. Sidharthan;

Advocate Dinesh Mathew J. Muricken;

Advocate Vinod S. Pillai;

Advocate Nayana Varghese;

Advocate Ahammad Sachin K.;

For Respondent:

Government Pleader Bijoy Chandran;

Advocate Elvin Peter P.J..

*Apoorva Goel, Editorial Assistant has reported this brief.

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