Karnataka High Court
Dr. M. Sumithra vs The Bangalore University Jnana ... on 22 December, 2005
Equivalent citations: ILR2006KAR1122, 2006 (2) AIR KAR R 310
Author: N. Kumar
Bench: N. Kumar
ORDER N. Kumar, J.
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 objections to the writ petition as well as to the interim order sought for and submitted that the matter itself can be disposed of finally. Accordingly the case was adjourned to 6.12.2005 and in the meanwhile it was ordered that the order of transfer shall not be given effect to. The respondents have filed a detailed counter traversing the allegations made and they also produced the documents in support of their contentions.
4. The respondents do not dispute the facts set out as aforesaid. They contend that in view of the strained relationship between the petitioner and second respondent and in order to maintain discipline and congenial atmosphere in the Department of Kannada and also in the University, the Syndicate which is the competent authority under the provisions of the Karnataka State Universities Act, 2000, in its wisdom resolved to transfer the petitioner to PG Centre at Kannada Department at Kolar of Bangalore University. It is in accordance with law and in the best interest of the University. They contend that the show cause notice issued to the petitioner calling for objections was against the proposed disciplinary action for the alleged violation of the conduct rules and not for seeking her explanation as to why she should not be transferred. No decision is taken so far regarding the disciplinary action against the petitioner as the proposal for disciplinary action is not dropped specifically so far. The present order is only a first step to establish congenial atmosphere in the educational field and in the public interest which cannot be questioned by the petitioner. Therefore they contend that when an order of transfer is made in public interest this Court is precluded from enquiring into the public interest involved in the transfer of the petitioner.
5. I have heard the Learned Counsel for the paties.
6. The law on the point is well settled. No Government servant or employee of a public undertaking holding a transferable post has any legal or vested right to be posted forever at any one 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. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India cannot go into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions, prohibiting any such transfer, or passed as a punishment, the Courts normally should not interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive, it would amount to mala fide and colourable exercise of power. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose then it is liable to be interfered with.
7. 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.
8. In the back ground of these settled legal position, we have to find out whether a case for interference of this Court is made out under Articles 226 and 227 of the Constitution. As already stated, this Court has no jurisdiction, and cannot go into the question whether the order of transfer is in public interest or not. That is a defence which is taken up by the respondents. What the petitioner contends is, though the respondents are the competent authority who are vested with the jurisdiction and power to transfer the petitioner, the said power being discretionary is not exercised for bona fide reasons. It is a case of colourable exercise of that power. It is actuated with malafides. Malice in law is patent. Therefore, the question is whether the material on record establishes the mala fide exercise of power or malice in law.
9. Though the order of transfer at Annexure-A states that it is made in public interest, it refers to the resolution passed by the Syndicate in its 46 meeting which is the basis for making this order of transfer. The said resolution which is produced by the respondents as Annexure-R4 refers to the report submitted by the Committee constituted to go into the allegations of sexual harassment of petitioner and also refers to the explanations offered by all the three persons to whom show cause notice was issued. After consideration of the said report and explanations offered, the Syndicate accepted the explanation offered by the other two persons and found the explanation offered by the petitioner as not satisfactory. Therefore they have taken a decision to transfer the petitioner. In pursuance to that decision the impugned order of transfer is passed. In the show cause notice issued to the petitioner it is specifically stated that the Syndicate in its meeting held on 29.5.2005 and 16.8.2005 accepted the report of the Committee and in view of the report that the allegations made by the petitioner are without any basis, they took a decision to transfer the petitioner to PG Centre, Kolar. In the said report the Committee found that the petitioner has misconducted herself. Enclosing a copy of the said report her explanation was called for. Her explanations was found not satisfactory. For the misconduct mentioned in the report of the Committee she has been transferred to the PG Centre, Kolar. Therefore, it is clear that the decision of the Syndicate to transfer the petitioner is by way of punishment, though it is camouflaged as in public interest as stated in the impugned order. They have take into consideration the complaint given by the petitioner, report of the Committee which enquired into those allegations, which found there is no substance in the complaint and also the evidence recorded by the Committee holding certain misconducts committed by the petitioner and on that basis, they have taken a decision to transfer the petitioner. If an employer in exercise of his managerial power wants to pass an order of transfer the factors which have to be taken into consideration is public interest, of the organisation and how he should distribute his work force. If he takes into consideration extraneous matters and being influenced by such extraneous matters effects the order of transfer it would be an abuse of the power conferred on him, arbitrary and is called malice in law. When it is alleged that though the order of transfer purports to be in public interest but it is colourable exercise of power the real object is to punish the petitioner for the misconduct and when the material produced on record establishes the said fact, it is clear that the order of transfer is imposed on the petitioner by way of punishment for the misconduct.
10. 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 misconducted 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 to 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 been held guilty of the misconduct. The material on record clearly establishes 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.
11. However, the quashing of this order of transfer does not mean that the petitioner cannot be transferred at all. This order of transfer is quashed as it is passed by way of punishment and stigma is attached. It is always open to the respondents to pass an order of transfer in public interest if the exigencies of service so demands.
Hence I pass the following ORDER Writ Petition is allowed.
The impugned order at Annexure-A is hereby quashed. No costs.
Learned Government Advocate is permitted to file memo of appearance in four weeks.