'Punitive, Stigmatic; Can Have Deleterious Effect On Judicial Officers' Morale': Kerala HC Sets Aside Transfer Of Judge Who Made 'Sexually Provocative' Dress Remark

Setting aside the order transferring Kozhikode Principal District & Sessions Judge, S. Krishnakumar to the post of Presiding Officer of a Labour Court, the Kerala High Court Wednesday said though the observations made by him in a bail order were derogatory to women, the transfer order was punitive in nature and apparently issued on account of the widespread criticism in media.

A Division Bench of Justice A K Jayashankaran Nambiar and Justice Mohammed Nias C P said the transfer order was issued in the "immediate aftermath of media reports" that criticised the judicial officer for certain observations that he made in the order granting bail to an accused.

"There appears to be no other reason that necessitated the transfer. The observations of the appellant in the bail order were indeed derogatory to women and, in our view, wholly uncalled for. That said, the question that arises for our consideration today is 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?" asked the court.

Observations In Judicial Orders

The court said "the propriety of making observations" in a judgement or judicial order would depend upon the issue that arises for consideration before the judge in the particular case. If the judge's observations are derogatory in nature, the judicial officer cannot claim immunity from either public criticism or legal action, said the bench.

"Such immunity, on the other hand, will ordinarily be available to those observations that are made in connection with the issue being considered by the court, whether or not they are in conformity with the popular view held in society. The only remedy available to a person who is aggrieved by such latter order, or the observations made therein, is to seek judicial redress against the same before the higher judicial forum," said the division bench.

Supreme Court Guidelines violated?

Referring to the observations made by DSJ Krishnakumar in the bail order, the court said such remarks were of a kind that was specifically denounced and deprecated by the Supreme Court in Aparna Bhat & Ors. v. State of Madhya Pradesh & Anr.

Observing that there is no doubt it could be argued that the principal district and sessions judge ideally ought to have taken note of the apex court guidelines and also brought them to the notice of the judicial officers functioning under his administrative supervision, the court asked whether he could have been taken to task without ascertaining the circumstances under which he passed the order in question.

"We do not think so. In our view, a distinction has to 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. The latter category of cases, on the other hand, are to be corrected through disciplinary action initiated against the erring officer by the High Court, on its administrative side," said the bench.

The court further said that non-adherence to the guidelines, except when established to be wilful and deliberate, cannot be seen as a misconduct on part of a judicial officer.

"When the non-adherence to the guidelines issued by the higher court, is on account of the ignorance or noncomprehension of the judicial officer, it ought to be viewed as a mistake occasioned by the officer in the discharge of his judicial function, and one that can be corrected by the higher courts in the judicial hierarchy. Holding otherwise could have the deleterious effect of stifling the thought process of judicial officers who have to be accorded sufficient intellectual freedom if they are to function effectively under our legal system," the court observed.

High Court Should Have Called For An Explanation

The court noted that two orders passed by DSJ Krishnakumar were subjected to appeal and revision before the high court and the derogatory observations made therein have since been expunged.

The bench said if the high court administration was of the view that the observations in the judicial orders were of such nature that warranted the initiation of disciplinary action against him, then it ought to have called for an explanation from him first and then established the misconduct in the inquiry,

"It was only thereafter, and after arriving at a finding of misconduct, that an appropriate punishment could have been imposed on him. 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," said the court.

Media Criticism Behind Transfer Order?

The division bench said the counter affidavit filed by the high court "suggests" that it is the widespread criticism of the said order in the media that led to the order of transfer.

It also said 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.

"Viewed in the above backdrop and in the light of the settled practice and convention in the State, therefore, the impugned transfer order does appear to be punitive in nature so far as the appellant is concerned, and one that was not preceded by any valid enquiry," said the court.

Deleterious Effect on Morale of Judicial Officers

Observing that it has been already held that a transfer is liable to be interfered if it is seen as an order by way of punishment without first holding any disciplinary proceedings to establish the guilt of the employee, the court, however, said there may arise cases arise cases where the continuance of an employee in a particular station is detrimental to the maintenance of discipline in that station.

The division bench said the transfer order of DSJ Krishnakumar cannot be clothed with such immunity because in effect it is prejudicial and stigmatic to him as he would be forced to work in a post that that is not perceived by those in the service to be of the same status as that of the Principal District & Sessions Judge.

"We are also of the view that upholding a transfer order such as the one impugned in these proceedings would, apart from meting out injustice to the appellant, also have a deleterious effect on the morale of the judicial officers in the State," said the court.

Dignity Of Employee Can't Be Ignored

Relying on K.S. Puttaswamy and Another v. Union of India and Others, the division bench said an employer including the high court cannot cannot ignore the dignity of the employee concerned, and the possible harm that may be caused to his reputation while in service, while ordering his transfer to another workplace.

"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, has to be respected by the employer," it added.

It further said though the transfer order in question states that the decision was taken on account of "exigencies in 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 in nature and unfair to the appellant."

Relief

Observing it cannot overlook the fact that transfer order comes at a time when the judicial officer has less than a year to retire, the court also noted DSJ Krishnakumar is presently undergoing treatment for various ailments at a hospital in Kozhikode.

"Subjecting him to a transfer under the said circumstances would be unfairly prejudicial to the appellant. We therefore allow this appeal by setting aside the impugned judgement of the learned Single Judge and allowing the writ petition by setting aside the transfer order as legally unsustainable," said the court in conclusion.

Background