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Karnataka High Court
Judges : N.Kumar
DR.M.SUMITHRA - Appellant
Versus
BANGALORE UNIVERSITY JNANA BHARATHI - Respondent
Writ Petition 25903 Of 2005
Decided On : 12/22/2005
Advocates Appeared :
H.B.DATAR, H.SUBRAHMANYA JOIS, T.P.RAJENDRA KUMAR SUNGAY, VAGDEVI
Labour & Services -Transfer -Transfer -Rights and duties of employee and employer. [N. Kumar, J]: No Government servant or employee of a public undertaking holding a transferable post has any legal or vested right to be posted forever at anyone particular place or place of his choice. He is liable to be transferred from one place to the other in public interest and efficiency in the public administration. Transfer orders issued by the competent authority do not violate any of his legal rights. It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and the appointing authority has a wide discretion in the matter. The employer is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest.
Labour & Services -Transfer -Transfer -Legality -Allegations of harassment levelled against certain persons by petitioner -Enquiry committee accepted explanation offered by other persons and rejected that offered by petitioner stating that her allegations are baseless -On the other hand the report stated that petitioner misconducted -For the said misconduct petitioner came to be transferred -Hence, decision of Syndicate to transfer petitioner is by way of punishment, though it is camouflaged as in public interest -Unless an enquiry is held into misconduct and proved, transfer by way of punishment cannot be sustained and liable to be quashed. [N. Kumar, J]: It is settled law that for proved misconduct it is open to the employer to impose a punishment. But that misconduct is to be proved in a manner known to law. Before an order of transfer on the ground of misconduct is to be passed, the employer was under a duty to issue a charge sheet setting out the charges/misconduct alleged against the petitioner. After holding an enquiry, if the misconduct was held to be proved, then it was open to the respondents to pass an order of transfer even by way of punishment. Admittedly, in this case, no enquiry is held. Except by issuing a notice without disclosing what is the misconduct alleged against her, by calling upon her to read certain paragraphs in the report of the Committee, she could not have be held guilty of the misconduct. The material on record clearly establish the order of transfer impugned in this writ petition is not an order of transfer simpliciter. It is an order of punishment. It is an order which is passed by taking into consideration totally extraneous matters and therefore it is liable to be quashed.
12Labour & Services -Transfer -Transfer -Rights and duties of employee and employer. [N. Kumar, J]: No Government servant or employee of a public undertaking holding a transferable post has any legal or vested right to be posted forever at anyone particular place or place of his choice. He is liable to be transferred from one place to the other in public interest and efficiency in the public administration. Transfer orders issued by the competent authority do not violate any of his legal rights. It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and the appointing authority has a wide discretion in the matter. The employer is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest.12Labour & Services -Transfer -Transfer -Rights and duties of employee and employer. [N. Kumar, J]: No Government servant or employee of a public undertaking holding a transferable post has any legal or vested right to be posted forever at anyone particular place or place of his choice. He is liable to be transferred from one place to the other in public interest and efficiency in the public administration. Transfer orders issued by the competent authority do not violate any of his legal rights. It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and the appointing authority has a wide discretion in the matter. The employer is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest.
Labour & Services -Transfer -Transfer -Legality -Allegations of harassment levelled against certain persons by petitioner -Enquiry committee accepted explanation offered by other persons and rejected that offered by petitioner stating that her allegations are baseless -On the other hand the report stated that petitioner misconducted -For the said misconduct petitioner came to be transferred -Hence, decision of Syndicate to transfer petitioner is by way of punishment, though it is camouflaged as in public interest -Unless an enquiry is held into misconduct and proved, transfer by way of punishment cannot be sustained and liable to be quashed. [N. Kumar, J]: It is settled law that for proved misconduct it is open to the employer to impose a punishment. But that misconduct is to be proved in a manner known to law. Before an order of transfer on the ground of misconduct is to be passed, the employer was under a duty to issue a charge sheet setting out the charges/misconduct alleged against the petitioner. After holding an enquiry, if the misconduct was held to be proved, then it was open to the respondents to pass an order of transfer even by way of punishment. Admittedly, in this case, no enquiry is held. Except by issuing a notice without disclosing what is the misconduct alleged against her, by calling upon her to read certain paragraphs in the report of the Committee, she could not have be held guilty of the misconduct. The material on record clearly establish the order of transfer impugned in this writ petition is not an order of transfer simpliciter. It is an order of punishment. It is an order which is passed by taking into consideration totally extraneous matters and therefore it is liable to be quashed.
Legal Malice -What is -What is -Stated. [N. Kumar, J]: Malice in law is, however, quite different. Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. It is trite law, that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad, faith. If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law, they have not exercised their discretion.
( 1 ) THE petitioner is working as senior grade lecturer at Kannada Adhyayana Kendra, Centre for kannada Studies, Jnana Bharathi, Bangalore University. She made a complaint against Professor siddalingaiah, Director, Centre for Kannada Studies, to the Hon'ble Minister for Higher education and to the Sub-Inspector, Jnanabharathi Police Station, regarding the alleged sexual harassment, A University Committee for Combating Violence and Sexual Harassment for women at Work Place, held an enquiry on the complaint of the petitioner and after such enquiry it exonerated Professor Siddalingaiah. In other words, it held the allegations in the complaint were not substantiated. In the report it also recorded a finding that the petitioner, Professor siddalingaiah and Ph. D. student C. M. Rajanna have misconducted themselves in the course of their employment. The material produced before Court shows that Item No. 3 of the agenda in the extraordinary meeting held by the Syndicate on 29. 3. 2005, the Vice Chancellor briefed the syndicate about the report submitted by the Committee. After detailed discussion they took a decision to accept the report of the Committee. The said report contained certain adverse comments on the conduct of the aforesaid three persons and therefore a decision was taken to issue showcause notice to the petitioner and an explanation also was sought from Dr. Siddalingaiah. A decision was also taken to furnish a copy of the report to all the three persons. In view of the fact that Dr. Siddalingaiah was exonerated of the charges of sexual harassment levelled against him. A decision was taken to transfer the petitioner to the Department of kannada, PG Centre, Kolar.
( 2 ) ON 16. 8. 2005 yet another meeting of the Syndicate was held where the wordings of Clause (2) of the previous meeting was corrected. Thereafter, a notice was issued in terms of the said decision to the petitioner as well as Siddalingaiah and the student Raj anna. The notice issued to the petitioner is at Annexure-G In the said notice the petitioner was informed that the Committee has submitted its report, the same was placed before the Syndicate on 29. 5. 2005 and 16. 8. 2005 and the Syndicate has accepted the report. As the allegations made by the petitioner were found to be without any basis a decision is taken to transfer the petitioner to Kolar. In the report at pages-24, 27, 30, 31, 32 and 33 there is a reference to the petitioner having contravened clause-a (i), (ii), (iii), (iv), (v) and (vi) of the Disciplinary Rules and therefore she was asked to show cause why action should not be taken against her. On receipt of the said notice, the petitioner gave a reply at Annexure-H. The Syndicate considered the explanations given by all the three persons in the meeting held on 15. 11. 2005. They accepted the explanations offered by siddalingaiah and Rajanna. They found the explanation offered by the petitioner as unsatisfactory. In order to prevent further misunderstanding and mistrust between the petitioner and Siddalingaiah they took a decision to transfer the petitioner to PG Centre at Kolar. It was also stated that the said decision is taken to maintain peaceful academic atmosphere in the kannada Center at Bangalore. Further they also took a decision that as the order of transfer may be challenged before the High Court and in order to see that no interim order is granted without enquiring the University, to prevent the same, to enter a caveat after consulting the legal advisors. Accordingly caveat is entered on 26. 11. 2005. Based on the aforesaid decision the impugned order of transfer at Annexure-A dated 25. 11. 2005 is passed transferring the petitioner to the PG Centre at Kannada Department at Kolar of the Bangalore University. Aggrieved by the said order the petitioner preferred this writ petition before this Court.
( 3 ) ON 2. 12. 2005 the respondents' Counsel who had entered a caveat took notice and sought for time to file objecti
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