[Challenge to Transfer Order] Failing To See An 'Infringed Right' from the Order, Court Dismissed Plea Against Transfer

A bench of Justice Sivaraman dismissed a petition challenging a transfer order by the Kozhikode District and Sessions Judge S Krishnakumar.

The Judge (petitioner) had earlier made certain controversial remarks which sparked a heavy controversy.

In a case before him, while granting bail to the accused, the Judge justified why the offences under the ST/SC Act do not prima facie stand. The Court while speaking in defence of the accused said, "it is highly unbelievable that he (accused) will touch the body of the victim fully knowing that she is member of the Scheduled Caste".

Subsequently in another case, while dealing with an offence of sexual harassment, the Court said, "In order to attract Section 354 A (sexual harassment), there must be physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours. There must be a sexually coloured remark. The photographs produced with the anticipatory bail application by the accused reveal that the complainant herself is exposing to dresses which are sexually provocative. Section 354 A will not prima facie stand against the accused”. In the factual matrix, later the Kerala High Court Registrar-General P Krishna Kumar issued a transfer list with his name as Presiding Officer, Labour Court, Kollam.

The Judge (petitioner) thus challenged the transfer list before the High Court.

The petitioner contended that he had an unblemished service of 27 years and the transfer so made in the middle of the term was 'completely untenable and unjustified'. Moreover, a prior consent should have been obtained.

The bench denying all claims of the petitioner was of the opinion that transfer is a 'necessary incident of service' and "an order of transfer to a post on the cadre cannot be challenged by an incumbent on the ground that he is in any way aggrieved by it". And did not consider the situation to be extraordinary for it to interfere with the transfer order within judicial review. .

The Court took note of the fact that the posting as Presiding Officer of the Labour Court, is a post borne on the cadre of District Judge, filled up by the State Government by appointment of District Judges on the recommendation of the High Court. And the petitioner, being a member of the District Judiciary "is expected to render his services wherever he is posted". The Court thus failed to "see what legal right of the petitioner is infringed" by the impugned transfer order.

The Court was further of the opinion that the petition had no justifiable ground on which any relief can be sought for.

Case Title: S Krishnakumar vs. State of Kerala