The Court opined that there appeared to be no reason that necessitated the transfer other than the widespread criticism of the judge’s order.
The Court said that ordinarily, the propriety of making observations in a judgment or judicial order would depend upon the issue that arises for consideration before the judge in the particular case.
“If the observations do not have any nexus with the issue that is being considered by the court, the judge’s observations, if derogatory in nature, cannot claim any immunity from either public criticism or legal action. Such immunity, on the other hand, will ordinarily be available to those observations that are made in connection with the issue being considered by the court, whether or not they are in conformity with the popular view held in society,” the Court elaborated.
It went on to say that the only remedy available to a person who is aggrieved by the latter is to seek judicial redress against the same before the higher judicial forum.
In the present case, the Court noted that the High Court had already expunged the controversial observations made by the appellant.
If the High Court, on its administrative side, still was of the view that initiation of disciplinary action was warranted, 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, the Court said. Such action, however, was never initiated against the appellant by the High Court, the bench said.
It also noted that even in the counter affidavit filed by the High Court Registrar General, it was stated that the order of transfer was not punitive but in public interest and in the exigencies of the service. Therefore, the Court concluded that the transfer was unfair and punitive in nature.
Another aspect touched on by the Court was the right to privacy and dignity of the appellant-judge. .
“After the judgment of the Supreme Court in K.S. Puttaswamy and Another v. Union of India and Others, an employer that answers to the description of “State” within the meaning of the term under Article 12 of the Constitution, including the High Court in the discharge of its administrative functions, cannot ignore the dignity of the employee concerned, and the possible harm that may be caused to his reputation while in service, while ordering his transfer to another workplace,” the Court said in its judgment allowing the appeal.
Source: Barandbench
