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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 9th 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 14th 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.
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.
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.
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.”
By the afore-mentioned order liberty was granted to the appellant to move an urgent memo in the pending application for vacation of stay.
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 12.4.2024 has been extended.
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 did not entitle the appellant, filed a writ petition for taking action on the enquiry with a further prayer to transfer the appellant from the place of posting. On 15th 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.
However, when this matter was called today, the learned counsel for the parties were ad idem that 4th 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.”
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.
Vide order dated 22nd of August, 2023 (Ext.P10) respondent/petitioner was transferred to Rural Water Supply Section, Koduvally.
In the mean time, vide order dated 4th 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.
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, 2023 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.”
It is in this background the appellant has approached by preferring separate appeal reflecting the predictament and non-redressal of the grievances.
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.
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.
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).”
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:
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.”
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.
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.
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.
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.”
We have now been told that today SLP was listed and disposed of with a liberty to move for discharge before the trial court in two weeks and no coercive action against the petitioner for four weeks.
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.”
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 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.