Offending Officer Can Be Transferred In Case Of Indiscipline In Forces: Kerala High Court
The Kerala High Court on Wednesday ruled that it is permissible to deal with indiscipline in disciplined forces by transferring the deviant officers. A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. added that such transfers would ensure that discipline is maintained within the force while simultaneously assuring that no aspersion is cast on the...
The Kerala High Court on Wednesday ruled that it is permissible to deal with indiscipline in disciplined forces by transferring the deviant officers.
A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. added that such transfers would ensure that discipline is maintained within the force while simultaneously assuring that no aspersion is cast on the officer's character or conduct.
"In a disciplined force such as the CISF, there may arise cases where the continuance of the employee in a particular station is detrimental to the maintenance of discipline at that station, and in such cases it may seem prudent to the employer to transfer the employee to a different station so that the twin objectives of maintaining discipline at one station, whilst simultaneously availing the service of the employee at another station, are achieved without casting any aspersion on the character or conduct of the employee."
The Bench also opined that such transfers need not be interfered with by the court since they are merely measures taken by an employer in the exigencies of the service and for efficient administration thereof.
" There is no prejudice caused to an employee in such cases because there is no stigma cast on him/her through the order of transfer, which would affect his/her future prospects in the particular service."
The appellant was employed in the Central Industrial Security Force (CISF) and had been working in Cochin-based units for over a decade. She had approached the Court challenging the judgment of a single judge upholding her transfer from Cochin to Narsapur.
The appellant joined CISF in 2007 under a compassionate appointment scheme. Throughout her almost 4-year-long career, she had managed to ensure that she was posted in Cochin except for 7 months. The appellant achieved this by moving the Court several times over the years and securing judgments in her favour.
Her husband who is also in the Central government service was posted in Kerala from the beginning. The appellant used this to rely on a transfer guideline which said that where a husband and wife are both in Central government service, they have to be retained in the same station as far as possible.
Senior Advocate Joseph Kodianthara assisted by Advocate R. Kishore appearing for the appellant relied on this guideline again to challenge her transfer. They also added that the transfer order was punitive for she had preferred a sexual harassment complaint against the Assistant Commandant.
On these grounds, they sought the Court's interference since according to them, the chain of causation from the raising of the allegation of sexual harassment to the transfer order stood clearly established.
However, ASGI S. Manu appeared for CISF and pointed out that as per the guidelines the appellant was liable to be posted anywhere within her 'home sector', which includes any place within the States of Andhra Pradesh, Karnataka, Kerala, Telengana, Tamil Nadu and the Union Territories of Puducherry and Lakshadweep.
Further, he furnished details of the disciplinary proceedings pending against the appellant for disobeying instructions from higher authorities. It was added that punishment orders were passed against her, none of which were challenged by her in appellate proceedings.
Similarly, the ASGI highlighted that she had not lodged a formal complaint or mentioned any sexual harassment in her representation against the transfer order, adding that she did not pursue the matter thereafter.
The Court commenced the judgment commenting on how a litigant can avoid transfers by tweaking the legal system in her favour.
"The facts of the instant case bring to the fore a classic instance of how a litigant, with the help of clever lawyers, can successfully tweak the law and the legal system in her favour, and avoid transfers and postings that form an integral part of her conditions of service."
The Bench recalled that it is well settled in service law that the power to transfer an employee in a transferable service is within the prerogative of the employer, particularly in a uniformed service. The judiciary has often kept a hands-off approach in such matters, except in rare instances where the transfer is seen as vitiated by statutory violations, mala fides, etc.
However, the employer is not required to conduct an enquiry and ascertain if there was misbehaviour or conduct unbecoming of an employee since that would frustrate the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum.
The Court also opined that the transfer did not seem to be punitive in this case, rather, it appeared to be necessary to maintain discipline in the forces.
Further, it was held that in a well-disciplined force like the CISF, the superiors are empowered to take appropriate decisions and transfer officers. Such transfers cannot be considered punitive measures and that the Court cannot interfere with the same.
The Bench added that no officer shall have the right to remain indefinitely at the place of interest.
Observing that the appellant had circumvented all the transfers by repeatedly filing cases, the Bench ruled that the authorities have the power to transfer any officer if there are suitable reasons and it should be considered as part of the service
As such, the appeal was dismissed and the transfer was upheld.
Case Title: Divyamol R. S. v. The Director General and others
Citation: 2022 LiveLaw (Ker) 426