Case Title: S. Krishnakumar v. State of Kerala & Ors
The Kerala High Court overturned the decision to transfer Kozhikode Principal District & Sessions Judge S. Krishnakumar, who made the controversial comment about Civic Chandran's "sexually provocative dress."
While allowing the judicial officer's writ appeal and quashing the Registrar General's order transferring him to the post of Presiding Officer, Labour Court, Kollam, a Division Bench composed of Justice A K Jayashankaran Nambiar and Justice Mohammed Nias C P noted that:
"… although his transfer order states that his transfer is in the exigencies of service, 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, persuades us to view the same as punitive and unfair to the appellant."
The Appellant, re-iterated the contentions urged before the writ court and added that the circumstances leading to the transfer order pointed to the order being punitive 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) L.R’s v. State of Bihar & Ors. wherein it was held 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 administrative control.’
The learned counsel appearing for the Registrar of the High Court points out that the transfer of the appellant to Kollam and his posting there as the Presiding Officer of the Labour Court cannot be seen as punitive or as a deputation. He contends that deputation normally arises when a person is transferred to a post in a different service and not when, as in the instant case, the appellant was transferred to another post in the same service and borne in the same cadre. He also relied on the case of Aparna Bhat & Ors. v. State of Madhya Pradesh & Anr. where the court issued directions regarding how bail applications were to be disposed of, especially in matters relating to sexual violence. In particular, he refers to the direction therein that mandates that bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society and that discussion about the dress, behaviour, or past conduct or morals of the prosecutrix, should not enter the verdict granting bail. He contends that the appellant could not feign ignorance of the said directions of the Supreme Court and ought to have avoided making the observations that he did in the bail order that attracted public criticism.
The Court, after considering the contentions raised by the Counsel noted that the court cannot remain a silent spectator to actions of an employer that are vitiated by mala fide, either factual or legal, or are otherwise arbitrary. This court would also interfere with the orders of transfer if it finds that the order is punitive and has not been preceded by a disciplinary inquiry as mandated by the service rules in vogue. Also, 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 an accused. There appears to be no other reason that necessitated the transfer since the transfer order was invalid under the law, and the Court granted the Writ Appeal. Viewed in the above backdrop and the light of the settled practice and convention in the State, therefore, the impugned transfer order does appear to be punitive so far as the appellant is concerned, and one that was not preceded by any valid inquiry.
While allowing the appeal, the court also took into account the fact that the appellant has less than a year before retiring from the service on superannuation and is also receiving treatment for several ailments at a hospital in Kozhikode.