Kerala HC rejects Sessions Judge plea against transfer order

PTI, Sep 1, 2022, 3:21 PM IST

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A plea moved by a Sessions Judge, who made controversial observations in his orders while granting bail to an accused in two sexual harassment cases, against his transfer order was dismissed by the Kerala High Court on Thursday.

Justice Anu Sivaraman said that transfer being a necessary part of service, ”an order of transfer to a post borne on the cadre cannot be challenged by an incumbent on the ground that he is in any way aggrieved by it.” The high court said there was no reason to interfere with the transfer order as the post — of Presiding Officer of Labour Court — that Sessions Judge S Krishnakumar has been transferred to was equivalent to that of a District Judge.

”The post of Presiding Officer of the Labour Court is a post borne on the cadre of District and Sessions Judges in the state of Kerala and the contention of the petitioner (S Krishnakumar) that it is a deputation or a government appointment which requires a consent from the appointee is completely untenable. ”Even in case willingness had been obtained on any earlier occasions, that will not support the contention of the petitioner that such consent of the incumbent is legally required for a transfer,” the high court said.

The high court said that the judge — S Krishnakumar — has not lost any legal rights due to the transfer and he has a responsibility to work at the place of assignment.

”Being a responsible member of the District Judiciary, the petitioner is expected to render his services wherever he is posted. I fail to see what legal right of the petitioner is infringed by the (transfer) order,” the high court said.

It further said that it was evident from the order under challenge itself that the post of Presiding Officer of Labour Court in the state was habitually being filled up by transfer from the Kerala Higher Judicial Service and all that was required was an order of the government, which has also been issued in the instant case.

”The petitioner cannot be said to be prejudiced in any manner by his transfer as a Presiding Officer of the Labour Court, Kollam,” it added. Justice Sivaraman further said, ”I am of the opinion that the grounds raised in the writ petition do not justify the grant of any of the reliefs as sought for. The writ petition fails and the same is, accordingly, dismissed.” Krishnakumar, 59, in his plea had said that he was discharging his duty as a Principal District and Sessions Judge, Kozhikode, from June 6, 2022 and his transfer order issued by the Registrar of the High Court was against the transfer norms.

He had contended that as per transfer norms, he was entitled to continue as Principal District and Sessions judge, Kozhikode, till his retirement on May 31, 2023.

Krishnakumar had said in his plea that transferring him was illegal as it was a deputation post and his consent, which was required for transferring him to that post, was not obtained before taking that decision.

He had also claimed that he has had an unblemished service of 27 years and at the fag end of his career transferring him would tell upon his dedication while discharging duty as a judicial officer.

Krishnakumar had said he can be transferred as per the norms before completing three years of service only if it is necessary in the interest of administration or under special circumstances.

”Wrong order passed while discharging judicial duty cannot be a ground for transfer,” the judge said in the plea.

Krishnakumar’s observations regarding survivors in his two orders on the anticipatory bail pleas moved by accused ‘Civic’ Chandran, who is also a writer and social activist, in two sexual harassment cases had stirred a controversy.

While granting bail to Chandran in the case, Krishnakumar, in his order dated August 2, observed that the accused is a reformist, and against the caste system and it is highly unbelievable that he would touch the body of the victim fully knowing that she belongs to the Scheduled Caste (SC).

The judge had also made controversial observations about the dressing of the survivor while granting bail to Chandran in the bail application moved by the latter in another case of sexual harassment against him.

In its August 12 order, the court had observed that the photograph of the complainant, produced by the accused along with the bail application, would explain that she herself dressed in a sexually provocative manner and it is impossible to believe that a man aged 74 and physically challenged would ever do the offence.

The Kerala government has moved the High Court seeking to set aside the sessions court orders granting bail to ‘Civic’ Chandran in both cases.