“Transfer Order In Contemplation Of Disciplinary Proceedings Cannot Be Disguised As Punishment”: Kerala High Court

The Kerala High Court has held that a transfer order in contemplation of a disciplinary proceedings must be justified and cannot be operated as a disguised punishment.Justice N Nagaresh, was delivering a judgment which set aside the transfer of a Kerala State Road Transport Corporation (KSRTC) employee to Kasaragod over an article in a union house journal discussing the Corporation's financial condition and potential policy changes under a different political dispensation.The petitioner, a KSRTC employee and District Secretary of a trade union affiliated to INTUC, had contributed an article to Transport Veekshanam, a union publication. The article referred to KSRTC's financial distress, operational challenges, and suggested that a change in government might bring professional management reforms and improved labour policies.Following publication, the Corporation issued a memorandum transferring him from Thiruvananthapuram, the southernmost district in Kerala to Kasaragod, the northernmost district, alleging that the article spread misleading information and created unrest among employees.The Corporation relied on a circular prohibiting defamatory publications through media platforms and contended that the conduct amounted to grave misconduct.Relying on Anil Kumar A P v Mahatma Gandhi University and others [2018 (4) KLT 649], the court observed: “If an employee speaks out in the social media in a general perspective which is not inconsistent with the collective interest of the Institution, that is part of his right of free speech. No authority should expect one to be silent. Survival of public Institution depends upon how it accounts for democratic values. Free expression is the corner stone of democratic value. Every functionary of public power therefore must command liberty to their constituents” The Court did not adjudicate on whether there is any prohibition for the KSRTC employee in publishing articles in journals as the petitioner will have an opportunity to present his argument during the disciplinary proceedings. But the Court went on to examine whether an employee can be transferred in contemplation of disciplinary proceedings when there is no likelihood of the employee influencing witnesses or tampering with recordsThe Court reaffirmed that an employer is entitled to transfer an employee pending disciplinary proceedings. The Court noted that it is done to avoid the delinquent employee influencing the witnesses and manipulating the records in order to escape punishment. However, such transfers must serve a legitimate purpose, namely, to facilitate a fair and impartial enquiry.“Without there having any such possibilities, if an employee is transferred, that can be treated as punitive, even if the transfer order does not attach stigma.” Court noted. The Court noted that in the present case, the petitioner had not denied authorship of the article. The proposed disciplinary enquiry would revolve around the legality or propriety of publishing it and not around disputed factual matters requiring witness testimony or documentary scrutiny susceptible to interference.Therefore, the Court found that there was not even a remote chance of the petitioner influencing witnesses or tampering with records. The transfer from Thiruvananthapuram to Kasaragod was held to be punitive in effect and arbitrary in nature.“I am of the firm view that transferring the petitioner from Thiruvananthapuram to Kasaragod is punitive. The transfer can only be treated as a high handed arbitrary action on the part of the respondents.” Court held. The Court thus allowed the writ petition by setting aside the transfer order. Case Title: Sivakumar S v State of Kerala Case No: WP(C) 4110/ 2026Citation: 2026 LiveLaw (Ker) 99Counsel for Petitioner: P Mohandas, K Sudhinkumar, Sabu Pullan, R Bhaskaran Krishnan, Bharath Mohan, Dr. K P Satheesan (Sr.)Counsel for Respondent: Renjith Thampan (Sr.), Deepu Thankan (SC - KSRTC)Click Here To Read/ Download Judgment

“Transfer Order In Contemplation Of Disciplinary Proceedings Cannot Be Disguised As Punishment”: Kerala High Court

Anamika MJ

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