Indiscipline in forces may be dealt with by transferring erring personnel: Kerala High Court

The Kerala High Court on Thursday held that it is permissible to deal with indiscipline of employees, especially in disciplined forces, by transferring the erring officers. [Divyamol v The Director General].A division bench of Justices AK Jayasankaran Nambiar and Mohammed Nias CP observed that the intention behind such transfers is not to punish an employee but to relocate him/her in order to maintain discipline within the force."In a disciplined force such as the CISF, there may arise cases where the continuance of the employee in a particular station is detrimental to the maintenance of discipline at that station, and in such cases it may seem prudent to the employer to transfer the employee to a different station so that the twin objectives of maintaining discipline at one station, whilst simultaneously availing the service of the employee at another station, are achieved without casting any aspersion on the character or conduct of the employee," the Court observed in its judgment..The bench further held that such transfers need not be interfered with by the court."Such transfers, in our view, do not call for interference from courts because they are merely measures taken by an employer in the exigencies of the service and for efficient administration thereof. There is no prejudice caused to an employee in such cases because there is no stigma cast on him/her through the order of transfer, which would affect his/her future prospects in the particular service," the judgment stated..The Court was considering an appeal moved by one Divyamol (appellant), a Central Industrial Security Force (CISF) officer, against the judgment of a single-judge upholding her transfer from Cochin to Narsapur.Ever since the appellant joined the CISF in 2007 under a compassionate appointment scheme, she had ensured that she would be posted in Cochin, for 13 years and 4 months of her 13 years and 11 month long career, by approaching the Court several times over the years and getting judgments in her favour. As her husband was posted in Kerala since the beginning, she relied on a guideline for transfer which said that in cases where a husband and wife are both in Central government service, they have to be retained in the same station as far as possible..In this round of litigation as well, she relied on the said guideline and further contended that the transfer order was punitive in nature as she had preferred a sexual harassment complaint against the Assistant Commandant. .The respondents, however, pointed out that as per the guidelines the appellant was liable to be posted at any place within her ‘home sector’ and this included any place within the southern sector comprising the States of Andhra Pradesh, Karnataka, Kerala, Telengana, Tamil Nadu and the Union Territories of Puducherry and Lakshadweep.The Court was taken through the details of the disciplinary proceedings to show that the appellant had disobeyed clear instructions from higher authorities and had not challenged the penalty orders before any authority either. It was also submitted that the appellant had not logged a formal complaint or mentioned any sexual harassment in her representation against the transfer order..At the outset itself, the Court summed up the the case in the following manner:"The facts of the instant case bring to the fore a classic instance of how a litigant, with the help of clever lawyers, can successfully tweak the law and the legal system in her favour, and avoid transfers and postings that form an integral part of her conditions of service.".The Court observed that it is a fairly well settled principle of service law that the power to transfer an employee in a transferable service, is within the prerogative of the employer, and more so in a uniformed service which requires maintenance of discipline within its ranks.It is for this reason that courts have kept a hands-off approach in such matters, except in 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 bench said..However, there is no need for an employer to first conduct an enquiry and ascertain if there was misbehaviour or conduct unbecoming of an employee. To hold otherwise would frustrate the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity. .On an analysis of the facts in the instant case, the Court concurred with the respondents and said that the decision of the employer warranted no interference from it, regardless of the appellant's constant attempts to portray herself as a victim. "We do not think that merely because the respondents took note of the misconduct of the appellant at the workplace, the transfer order issued to her can be seen as punitive in nature and therefore vitiated. On the contrary, we are inclined to view the transfer as a prudent measure taken by the respondents to maintain discipline at the workplace. This is especially so when we find that the respondents herein are charged with administering a disciplined force", the Court said as it dismissed the appeal..Senior Advocate Joseph Kodianthara and advocate R Kishore represented the appellant.Assistant Solicitor General of India Manu S and advocate P Benny Thomas appeared for the respondents..[Read Judgment]