Kerala High Court
Biju P.C vs Anoopa C.K on 16 February, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
WA NO. 1965 OF 2023
AGAINST THE ORDER/JUDGMENT WP(C) 33241/2023 OF HIGH COURT OF KERALA
APPELLANT/S:
BIJU P.C
AGED 51 YEARS
EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, SULTHAN BATHERY.
WAYANAD - 673592 (ON ORDERS OF TRANSFER TO PROJECT DIVISION,
KERALA WATER AUTHORITY, KOZHIKODE, PIN - 673004
BY ADVS.
BHARATH MOHAN
P.RAVINDRAN (SR.)(R-341)
RESPONDENT/S:
1 xxxxxx
2 KERALA WATER AUTHORITY
REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN,
THIRUVANANTHAPURAM PIN., PIN - 695033
3 THE MANAGING DIRECTOR
KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM., PIN -
695033
4 INTERNAL COMPLAINTS COMMITTEE
REPRESENTED BY ITS CHAIRPERSON, KERALA WATER AUTHORITY, JALA
BHAVAN, THIRUVANANTHAPURAM., PIN - 695033
BY ADVS.
PRASANTH SUGATHAN
P.M.JOHNY
VARSHA BHASKAR(K/487/2004)
ANUPAMA SIBI(K/698/2019)
N.KRISHNA OZHAKKANAT(K/1518/2019)
MALAVIKA K.(K/002937/2022)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2024, ALONG WITH
WA.232/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.1965/2023 & 232/2024
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
WA NO. 232 OF 2024
AGAINST THE ORDER/JUDGMENT WP(C) 33241/2023 OF HIGH COURT OF KERALA
APPELLANT/S:
BIJU P.C
EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, SULTHAN BATHERY.
WAYANAD - 673592 (ON ORDERS OF TRANSFER TO PROJECT DIVISION,
KERALA WATER AUTHORITY, KOZHIKODE, PIN - 673004
BY ADVS.
BHARATH MOHAN
N.KRISHNA PRASAD
RESPONDENT/S:
1 ANOOPA.C.K
AGED 37 YEARS
D/O C.K.KUMARAN, ASSISTANT ENGINEER, RWS SECTION, KERALA
WATER AUTHORITY, MINI CIVIL STATION, KODUVALLY, KOZHIKODE,
PIN - 673572
2 KERALA WATER AUTHORITY
REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN,
THIRUVANANTHAPURAM, PIN - 695033
3 THE MANAGING DIRECTOR
KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM, PIN
- 695033
4 INTERNAL COMPLAINTS COMMITTEE
REPRESENTED BY ITS CHAIRPERSON, KERALA WATER AUTHORITY, JALA
BHAVAN, THIRUVANANTHAPURAM, PIN - 695033
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2024,
ALONG WITH WA.1965/2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.Nos.1965/2023 & 232/2024
3
AMIT RAWAL & C.S.SUDHA, JJ.
--------------------------------------------------------
W.A.Nos.1965/2023 & 232/2024
-------------------------------------------------------------
Dated this the 16th day of February, 2024
JUDGMENT
Amit Rawal, J.
Yesterday we had, after hearing the arguments, passed a detailed
order, the same reads as under:
"This intra-court appeal is preferred against the order dated 9 th of
October, 2023 of the Single Bench on the ground that an application
for vacation of stay was pending but no action was taken. On 14 th
November, 2023 we passed the following order:
"This Writ Appeal is against the order dated 09/10/2023
granting stay against Ext.P11 order dated 04/10/2023 in the
writ petition whereby the appellant has been ordered to be
transferred.
2. The appellant who was arrayed as respondent no.4 in the
writ petition submitted an I.A.No.1 of 2023 dated 11/10/2023 for
vacation of the stay on various grounds, particularly on the
ground that there is stay of further proceedings in the FIR
bearing Crime No.281/2021 under Section 354 D(i) of the IPC.
Therefore, the order for re-transferring the appellant would not
prejudice the party respondents. The said application is not
being taken up impelling the appellant to approach this Court in
intra-court appeal. We are of the view that the appellant is at
liberty to move an urgent memo in the pending I.A. for relief.
W.A.Nos.1965/2023 & 232/2024
3. It is further contended that owing to Ext.P11, the
petitioner has been left in lurch, neither he can join the place
of Kozhikode nor the previous place of posting. This
predicament of the petitioner appears to be justified for the
time being. Therefore, as an interim measure, transfer of the
petitioner to a place at Kozhikode as per Ext.P11 is ordered
to be kept in abeyance, for a period of one month so that the
appellant is able to get the adjudication of the I.A.
4. Issue notice before admission. Sri. Prasanth Sugathan
takes notice for the first respondent. Sri.P.M.Johny, learned
Standing Counsel for the Kerala Water Authority takes notice
for respondents 2 to 4.
Post this matter on 18/12/2023."
2. By the afore-mentioned order liberty was granted to the
appellant to move an urgent memo in the pending application for
vacation of stay.
3. Today, when the matter came up, we were also confronted
with another writ appeal with objection of filing defect, preferred
against the order dated 12.2.2024 by submitting the following:
An application was filed for vacation of the stay. The matter was
heard by a Single Bench, thereafter released and posted to some other
Single Bench. A request was made for vacation of the stay but instead
matter has been adjourned and stay vide order dated 12.2.2024 has
been extended.
4. Learned Senior Counsel representing the appellant in
W.A.No.1965 of 2023 and the other writ appeal submitted that on the
basis of the claim made by party respondent (Anoopa) of sexual
harassment against the appellant, internal committee of the Head Office
of Public Health Department conducted an enquiry and the enquiry
ultimately culminated vide Ext.P23 dated 26th April, 2021. The afore-
mentioned enquiry indict the appellant, filed a writ petition for
W.A.Nos.1965/2023 & 232/2024
taking action on the enquiry with a further prayer to transfer the
appellant from the place of posting. On 15 th of July, 2022, appellant was
transferred from PA to Superintending Engineer, P H Circle, Kozhikode
to Executive Engineer, P H Division, Sulthanbathery, Vice Narayanan
K. Another writ petition was filed bearing W.P.(C)No.3514 of 2022 to
comply with the initial direction and this Court noticing that the transfer
has been made, vide judgment dated 18th of August, 2023 passed the
following order:-
"The petitioner alleges that, in spite of an enquiry pending
against the 4th respondent based on her complaint against him
relating to sexual harassment which she had to face from him, he
has been retained in the same office as hers and that this is
illegal and unlawfu1.
2. However, when this matter was called today, the learned
counsel for the parties were ad idem that 4 th respondent has now
been transferred to another office; and Sri.Georgie Johny
learned Standing Counsel for the Kerala Water Authority,
submitted that said respondent will not be transferred back to
the office of the petitioner, until such time as the enquiry against
him is completed.
The afore submissions of Sri.Georgie Johny is recorded and this
Writ petition is, therefore closed, without entering into the merits
of any other contentions."
5. In paragraph 2, it was mentioned that the appellant
would not be transferred back to the office of the petitioner. It is
pertinent to mention here the respondent/petitioner at a relevant
point of time was working in the office of Chief Engineer in another
division, Kozhikode.
6. Vide order dated 22nd of August, 2023 (Ext.P10)
respondent/petitioner was transferred to Rural Water Supply
Section, Koduvally.
W.A.Nos.1965/2023 & 232/2024
7. In the mean time, vide order dated 4 th of October, 2023
of the Kerala Water Authority, appellant was transferred from office
of the Executive Engineer, Public Health Division, Sulthan Bathery
to Project Division, Kozhikode vice Arun Kumar A. Aggrieved of
the said transfer order dated 4th of October, 2023
respondent/petitioner filed W.P.(C)No.33241 of 2023 and claimed
the following reliefs:-
i) To issue a writ of certiorari or any any other appropriate writ or
order setting aside Ext.P11 transfer order to the extent of
transferring the 4th respondent;
ii) To issue a writ of mandamus or any other appropriate writ or
order directing the 3rd respondent to finalise the enquiry proceeding
initiated against the 4th respondent based on the complaint given
by the petitioner;
ⅲ) To issue an order exempting the petitioner from filing
translations of documents in Malayalam:
iv) To issue such other appropriate writ, order or direction as
this Hon'ble Court may deem just and proper to issue in the
circumstances of the case.
8. It would not be out of place to mention here that on the
basis of the enquiry report Ext.P23 dated 26th of April, 2021
complainant was advised to approach the police. A crime (C.C.No.305
of 2021) under Section 354(D)(i) of the IPC has been registered
whereby the Supreme Court in SLP (Crl.)No.16502 of 2023 vide order
dated 16th of January, 2024 passed the following:-
"1 Issue notice, returnable in four weeks.
2 List the Special Leave Petition on 12 February 2024.
3 No coercive steps shall be taken against the petitioner till 12
February 2024."
W.A.Nos.1965/2023 & 232/2024
9. It is in this background the appellant has approached by
preferring separate appeal reflecting the predictament and non-
redressal of the grievances.
10. Ms.Varsha, learned counsel appearing on behalf of
respondent/petitioner refuted the afore-mentioned by submitting that
the appellant had been hellbent to come back to the place of original
office where he was working and the incident had taken place resulting
into a complaint. It tantamounts to winning over the witnesses as the
enquiry is still pending, for, Ext.P23, in view of the prima facie, is
preliminary.
11. An attempt has been made by the water authority violating
the undertaking recorded in the order dated 18th of August, 2023
(Ext.P9). It is a contemptuous act.
12. At this stage, counsel for the respondent submitted that
office of the respondent has informed that the matter would be argued
by another counsel tomorrow. Such request was not made at the first
instance when the matter was taken up and all arguments available
under the sky were made on behalf of her. Still in the interest of justice,
we deem it appropriate to defer the matter as sought.
Post tomorrow (16.2.2024)."
2. The prayers sought in the writ petition read as under:
"i) To issue a writ of certiorari or any any other
appropriate writ or order setting aside Ext.P11 transfer
order to the extent of transferring the 4th respondent;
ii) To issue a writ of mandamus or any other appropriate
writ or order directing the 3rd respondent to finalise the
enquiry proceeding initiated against the 4th respondent
based on the complaint given by the petitioner;
ⅲ) To issue an order exempting the petitioner from filing
translations of documents in Malayalam:
W.A.Nos.1965/2023 & 232/2024
iv) To issue such other appropriate writ, order or
direction as this Hon'ble Court may deem just and proper to
issue in the circumstances of the case."
3. As noticed above, the earlier interim order was of
09/10/2023 in W.P.(C)No.33241 of 2023 against which we had, vide
order dated 14/11/2023, passed the following order -
"This Writ Appeal is against the order dated 09/10/2023 granting
stay against Ext.P11 order dated 04/10/2023 in the writ petition
whereby the appellant has been ordered to be transferred.
2. The appellant who was arrayed as respondent no.4 in the writ
petition submitted an I.A.No.1 of 2023 dated 11/10/2023 for
vacation of the stay on various grounds, particularly on the
ground that there is stay of further proceedings in the FIR bearing
Crime No.281/2021 under Section 354 D(i) of the IPC.
Therefore, the order for re-transferring the appellant would not
prejudice the party respondents. The said application is not being
taken up impelling the appellant to approach this Court in intra-
court appeal. We are of the view that the appellant is at liberty to
move an urgent memo in the pending I.A. for relief.
3. It is further contended that owing to Ext.P11, the petitioner
has been left in lurch, neither he can join the place of Kozhikode
nor the previous place of posting. This predicament of the
petitioner appears to be justified for the time being. Therefore, as
an interim measure, transfer of the petitioner to a place at
Kozhikode as per Ext.P11 is ordered to be kept in abeyance, for a
period of one month so that the appellant is able to get the
adjudication of the I.A.
4. Issue notice before admission. Sri. Prasanth Sugathan takes
notice for the first respondent. Sri.P.M.Johny, learned Standing
W.A.Nos.1965/2023 & 232/2024
Counsel for the Kerala Water Authority takes notice for
respondents 2 to 4.
Post this matter on 18/12/2023."
4. We have now been told that today (16/02/2024) SLP was
listed and dismissed. The order reads as under:
"After hearing learned counsel for the parties, at this stage, we
are not inclined to interfere with the order impugned. Accordingly,
the special leave petition is dismissed.
We leave it open to the petitioner to raise all points in defence as
available at appropriate stage before the trial Court.
Interim order passed shall continue to operate for a period of two
weeks. In the meantime, the petitioner would be at liberty to take
recourse of law before appropriate forum seeking bail."
5. Despite having submitted an application a very piquant
situation had arose as the matter was referred for another bench and the
interim order again thereafter on 12/02/2024 was extended and the
same reads as under:
"Interim order is extended by two months.
Post after two moths."
6. Learned senior counsel submitted that the said order
tantamounts to allowing the first relief as sought for in the writ petition
and at the best the transfer order could have been subject to the
outcome of writ petition. Moreover, the place of posting of the
appellant and that of the party respondent, petitioner is 40 kms away,
there is no violation of the undertaking given by the employer. The
counsel representing the employer also submits that the report dated
W.A.Nos.1965/2023 & 232/2024
26/04/2021, ie., Ext.P23 is final and it is not preliminary. Of course it
will be the domain of the Single Bench to decide the controversy while
adjudicating the pending writ. We are of prima facie view that the
respondent/petitioner against the second relief had alternative remedy
under Section 18 of the Sexual Harassment of Woman at Workplace
(Prevention, Prohibition and Redressal) Act, 2013. Keeping in view of
this point, we allow the writ appeal by modifying the interim order
09/10/2023 as well as 12/02/2024 and stay the same. Both the appeals
stand allowed. We are sanguine of the fact parties through their
counsel shall endeavour to argue the writ, pending adjudication.
Registry is directed not to show the name of the party
respondent/writ petitioner in the cause title.
SD/-
AMIT RAWAL
JUDGE
SD/-
C.S.SUDHA
JUDGE
ak
W.A.Nos.1965/2023 & 232/2024
