In X v. Y (W.A. No. 1596 of 2021) the High Court of Kerala at Ernakulam on 10.08.2022 observed that “The power to transfer an employee in a transferable service is within the prerogative of the employer. Such transfers do not call for interference of the Courts. It is by recognizing this inherent freedom in an employer that courts have generally adopted a hands-off approach in matters of transfer of an employee while in service.”
Background and Facts
The appellant had joined the service of the CISF in the rank of Head Constable/Clerk under a compassionate appointment scheme. She was promoted as ASI/Clerk and posted in Cochin for almost 7 years. In June 2015 when she was transferred to Visakhapatnam, she filed a writ petition before the High Court of Kerala. The respondents considered her representation favorably and cancelled the order of transfer by relying on the applicable guidelines for transfer that envisaged that in cases where a husband and wife were both in Central Government service, they had to be retained in the same station as far as possible. Thus, the appellant continued in Cochin till 2017.
The appellant’s husband is employed in the Fertilisers & Chemicals (Travancore) Limited, a Central Public Sector Undertaking that has offices only in Kerala and hence, if the guidelines are treated as mandatory and invariable, the appellant can never be transferred out of Cochin.
In March 2017, the appellant was transferred to NTPC, Kudigi (Karnataka). She challenged this order through another writ petition, but the representation came to be rejected by the respondents. Therefore, she once again approached this Court through another writ petition. The Court, however, found no reason to interfere with the transfer order since the appellant had been continuing in Kerala for more than 8 years and no mala fides were established by her. The learned Judge, however, directed the respondents to consider her case for a re-transfer to Cochin as and when vacancies were available at the Cochin unit.
The appellant thereafter joined service at Kudigi but was immediately transferred back to the BPCL unit in Cochin. Even during her three-month tenure at Kudigi, she had only worked for three days, as the remaining period was covered by leave and joining time, she had availed during her posting there.
While working at the BPCL unit in Cochin, she was transferred to the CISF Unit attached to the ONGC in Narsapur (Andhra Pradesh). She challenged the same by contending that she was entitled to protection from transfer since her appointment was on compassionate grounds and that the transfer order was punitive in nature since it was in response to a sexual harassment complaint that she had filed against the 8th respondent.
The respondents in their counter affidavit contended that as per the exact guidelines, the appellant is liable to be posted any place within her ‘home sector’ and this included any place within the southern sector and that out of her total service tenure of 13 years, she had spent the entire time in Cochin based units only. Neither did the appellant submit any formal complaint regarding sexual harassment by the 8th respondent nor was the 8th respondent in any way connected with the transfer order of the appellant.
The learned Single Judge dismissed the writ petition by stating that there were no mala fides established in relation to the transfer order and that the allegation of sexual harassment having been raised for the first time only in the writ petition, did not merit consideration. As for the other grounds, the Court held that the provisions in the guidelines would not come to the aid of the appellant in resisting the transfer order, which was found to have been issued in the exigencies of the service.
After the judgment in the writ petition, a submission was made that inasmuch as the appellant had not reported for duty at the transferred station despite expiry of the joining time, the period of absence be treated as eligible leave. Even though the court granted the submission with a further 5 days’ time to comply with the transfer, the appellant did not comply with the transfer order and chose to prefer the present writ appeal.
In the present appeal, the court ordered that the operation and enforcement of the transfer order be kept in abeyance as against the appellant and the respondents were also directed to explore the possibility of provisionally retaining the appellant in Cochin. Accordingly, the appellant has been posted at the CISF unit at Nedumbaserry and is continuing there.
The emphasis on the present appeal is that the learned Single Judge did not consider the gravity of the sexual harassment allegations and the effect it had on the transfer order.
Arguments by the Appellant
- The appellant contended that since the specific allegations of sexual harassment in the writ petition was not rebutted by the 8th respondent, the same have to be seen as accepted by the 8th respondent.
- The reports of a counseling session undergone by the appellant in the presence of the 3rd respondent suggest that the latter had threatened the appellant with a transfer if she did not mend her ways.
- Since the transfer was ordered mid-term, it can be argued that the transfer is punitive in nature since the chain of causation from the raising of allegation of sexual harassment to the transfer order is clearly established.
Arguments by the Respondent
- There have been various instances where the appellant has disobeyed clear instructions by the higher authorities. There was a clear case of undisciplined conduct on the part of the appellant who was a member of a disciplined force.
- A stray mention of an incident of sexual harassment during a telephone conversation with a superior officer that was recorded by the appellant without informing the former or obtaining his consent cannot be relied upon to substantiate her contention, more so when there were no steps taken by the appellant to pursue the matter thereafter. The appellant had not either lodged a formal complaint or mentioned the same in her representation against the transfer order five months later. Therefore, she cannot say that the transfer was passed with mala fide intention. This is more so when the 8th respondent had no role to play in the transfer order.
- The transfer order was passed in the exigencies of service and for administrative convenience, therefore the present writ petition is not maintainable.
The Court held that “it is a well settled principle of law that the power to transfer an employee in a transferable service is within the prerogative of the employer. This is more so in a uniformed service where the exigencies of service include matters relating to the maintenance of discipline within its ranks. Such transfers do not call for interference of the Courts. It is by recognizing this inherent freedom in an employer that courts have generally adopted a hands-off approach in matters of transfer of an employee while in service, and interfered with orders of transfer only in the rare instances where the transfer is seen as vitiated by statutory violations, mala fides, either factual or legal, or where the transfer is seen as ordered by way of punishment without first holding any disciplinary proceedings to establish the guilt of the employee.”
The appellant appeared to have inculcated a certain arrogance while discharging her duties at the workplace. There have been various disciplinary proceedings against her and even in those proceedings, she has remained non-cooperative. The appellant’s allegation of sexual harassment against the 8th respondent was also not one that was ever established. The Court also noted that the appellant did not pursue the sexual harassment allegations, either through lodging of a formal complaint with the concerned authorities or even mentioning the same in her representations against the transfer order. The court concurred with the argument made by the respondent counsel with regards to the sexual harassment allegation.
The Court concluded that the transfer of the appellant is justified and can only be seen as necessitated in the interests of maintaining discipline in the force. The present appeal was dismissed, and the respondent was free to relieve the appellant from her current posting at Nedumbassery and direct her to report for duty at Narsapur.