Kerala High Court Quashes Order For Transfer Of Sessions Judge Who Made Controversial "Sexually Provocative Dress" Remark

The Kerala High Court on Wednesday set aside the order for transfer of Kozhikode Principal District & Sessions Judge, S. Krishnakumar, who made controversial 'sexually provocative dress' remark Civic Chandran's case.

A Division Bench consisting of Justice A K Jayashankaran Nambiar and Justice Mohammed Nias C P while allowing the judicial officer's writ appeal and quashed the order of Registrar General, transferring him to the post of Presiding Officer, Labour Court, Kollam, observed that:

In the writ appeal, the Sessions Judge challenged the dismissal of his plea against transfer. It was contended that the order of dismissal by Single Judge is not sustainable in law as the finding that transfer norms are only guidelines and that it will not confer any right on the transferred employee is against the dictum laid down by the Apex Court in a recent decision on a similar matter. 

When the matter was taken up, the Senior Counsel appearing for the Appellant, Advocate Sidharthan, submitted before the Court that a judicial officer can be transferred before completing the three-year term in a post only if it is necessary for the administration or if such transfer was warranted in exigencies of service. Therefore, it was submitted that the transfer order issued to him is violative of clauses 3 and 4 of extant transfer norms.

The Senior Counsel contended that the transfer, although disguised as a routine transfer, was, in fact, a punitive transfer in that it was seen necessitated on account of certain observations the appellant had made in an order granting bail to writer-social activist Civic Chandran and therefore is unsustainable since it was not proceeded by any disciplinary proceedings against the appellant. 

While granting anticipatory bail to Civic Chandran in a sexual harassment case, the appellant had observed that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing 'sexually provocative dresses'.

The Senior Counsel, with regards to the transfer of the appellant as Presiding Officer of the Labour Court, pointed out that the said posting had to be seen as a deputation and hence could not have been done without obtaining the consent of the appellant.

Counsel appearing for the Registrar of the High Court, Advocate Elvin Peter, contended 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 in nature or as a deputation. The Counsel contended 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. 

The Court, after considering the contentions raised by the Counsels, noting that 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, remarked that 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, the Court clarified.

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

Noting that the transfer order was passed in the immediate aftermath of an order passed by the appellant in a bail application, which order contained observations that were derogatory to women generally and the victim in particular and that the counter affidavit filed on behalf of the High Court suggested that it is widespread criticism of the said order in the media that led to the order of transfer, the Court observed that:

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.

Furthermore, the Court observed that the transfer order is prejudical and stigmatic to the appellant as he would be forced to work in 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 if it is upheld. 

The Court observed that the order transferring the appellant, although it states that the appellant is being transferred in exigencies of service, the circumstances under which the appellant 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, indicates that the transfer order is punitive in nature. 

The Court, therefore, allowed the Writ Appeal by setting aside the transfer order as legally unsustainable.

The Court also took into consideration the fact that the appellant has less than a year to retire from the service on superannuation and is also undergoing treatment for various ailments at a hospital in Kozhikode while allowing the Appeal. 

Another Single Judge Bench of the Kerala High Court had previously, in a petition moved by the State challenging the anticipatory bail granted to Civic Chandran, expunged the 'provocative dress' remark. The Court, while disposing of the petitions, observed that even though the reason shown by the Court below for granting anticipatory bail cannot be justified, the order granting anticipatory bail cannot be set aside. While passing the order, Single Judge observed that the dressing of a victim cannot be construed as a legal ground to absolve an accused from the charge of outraging the modesty of a woman.

Case Title: S. Krishnakumar v. State of Kerala & Ors.

Citation: 2022 LiveLaw(Ker) 563

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