Dr.V.J.F.Kumar v. Tamil Nadu Agricultural University & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.08.2009CORAMTHE HONOURABLE MR.JUSTICE S.NAGAMUTHUW.P.No.6876 of 2008 andM.P.Nos.1 and 2 of 2008Dr.V.J.F.Kumar.. Petitioner vs.1.The Registrar,Tamil Nadu Agricultural University,coimbatore – 641 003.2.The Dean,Agricultural Engineering College &Research Institute,Tamil Nadu Agricultural University,Coimbatore – 641 003.3.Dr.R.Kavitha4.Dr.M.M.Pandey. .. RespondentsPrayer:- Writ Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of Certiorarified Mandamuscalling for the records relating to the reversion order dated18.09.2007 passed by the first respondent in proceedingNo.A2/4493/2007 and quash the same and direct the first respondent torestore original post of Professor and Head of the Department inTNAU, Coimbatore to the petitioner.For Petitioner: Mr.S.J.JagadevFor RR1 and 2: Mrs.D.GeethaFor R.3: Mr.K.RajasekaranFor R.4: Mr.Rajendran Raghavan O R D E RThe petitioner was working as Professor and Head, ICAR-Coordinated scheme on Res. & Dev., Agrl. Machinery Research Centre,AEC&RI, Coimbatore from 09.05.2006 onwards in the AgriculturalEngineering College & Research Institute, Tamil Nadu AgriculturalUniversity, Coimbatore. The first respondent by his proceedings inNo.A2/4493/2007 dated 18.09.2007, transferred and posted the https://hcservices.ecourts.gov.in/hcservices/ petitioner as Professor (Farm Machinery), Department of Food andAgricultural Process Engineering, AEC&RI, Coimbatore agaisnt the postof Associate Professor (Agrl.Engg.) under Plan-NARP-I, scheme fromthe Department of Farm Machinery, AEC&RI, Coimbatore [Post occupiedby Dr.D.Asokan, Professor (Farm Machinery)]. Challenging the saidorder, the petitioner has come forward with the present writ petition.2.According to the petitioner, the third respondent who isworking as an Associate Professor made certain allegations of sexualharassment and misconduct against the petitioner during the month ofSeptember 2007. But the petitioner made a counter complaint againstthe third respondent in respect of misconduct allegedly committed byher. An Enquiry Committee headed by Dr.V.Valluvaparidasan, Controllerof Examination, Tamil Nadu Agricultural University was constituted togo into the said allegations. The Committee submitted a report dated18.09.2007 holding that the allegations cannot be substantiated. Onthe same day, the impugned order of transfer was effected.3.According to the petitioner, the impugned order of transfercannot be termed as an order of transfer, simplicitor, as it has gotthe effect of reversion to the lower post. The learned counsel forthe petitioner would submit that the functions of the Head of theDepartment are governed by the Tamil Nadu Agricultural UniversityStatues. According to which, (a) the Head of the Department shall beresponsible to the Dean/Director of the University foradministrative, academic and all other activities of theDepartment/Station; (b) he shall report on the teaching, research andextension education works of the Department/Station to theDean/Director of the University; (c) he shall have generalsupervision of the work of students in the Department; (d) he shallprepare in time the Budget of the Department/Station; (e) he shall beresponsible for distribution and expenditure of Departmental fundsand for the care of Department’s/Station’s property; (f) he shallprovide for protection against theft, fire and other damages and (g)he shall carry out any other functions as may be directed by theDean/Director and the Vice-Chancellor.4.The said powers are not available to an Associate Professor orProfessor who is not the Head of the Department. Though technically,according to the learned counsel, there is reversion in the post,there is actual lowering of status and thus, it amounts to reversion.Therefore, the impugned order according to the learned counsel, isliable to be set aside.5.In the counter filed by the first respondent, inter alia, itis contended that the transfer does not amount to any punishment orreversion. The counter further states that there is neither aseparate post sanctioned as Head of the Department nor specific rulesand regulations for appointment and service conditions etc., for the https://hcservices.ecourts.gov.in/hcservices/ Head of the Department. Further, it is neither a promotion norelevation to higher position nor carries any increase in theemoluments. Similarly, the relief from the responsibility of the Headof the Department neither reduces the rank of the incumbent norreduces the emoluments. It is only the assignment of theresponsibility to exercise administrative and financial powers forthe administration of the Department. The delegation of power to aProfessor/Associate Professor/Assistant Professor shall be decided bythe Vice Chancellor from time to time based on the capability andcontribution of an individual, for the functioning and development ofthe Department and the assignment of powers is not for a specificperiod, since there is no such regulation and order at the time ofconferment of such responsibility. 6.In respect of the above contentions, I am in full agreementwith the said stand taken by the first respondent. As far as theservice conditions in terms of the regulations are concerned, theProfessor and Professor cum Head of the Department are of the samecadre. A person who is now today functioning as Head of theDepartment can be tomorrow made as Professor and vice versa at thewill and pleasure of the Vice Chancellor based on the capability andcontribution of an individual and other requirements. Admittedly,there is no reduction in emoluments etc. Though, it is true that thepost of Head of the Department has got more powers as enumeratedabove, it does not mean that it is a promotion post. Therefore, thecontention of the petitioner that the impugned order of transferamounts to reversion cannot be accepted.7.At the same time, the order of transfer impugned in this writpetition needs to be interfered with for the following reasons:-(i)It is a well settled proposition that in matters of transfer,the power of this Court under Article 226 of the Constitution ofIndia is very limited to examine whether the order of the transfer iseither punitive or malafide or without jurisdiction or violates anystatutory provisions.(ii)In the case on hand, though it is stated that the impugnedorder is made only on administrative grounds, in paragraph No.3(e) ofthe counter, it has been stated that the petitioner was transferredbased on the lapses reported against him on the misconduct committedby him. It is stated that the third respondent made allegations ofsexual harassment. The counter further proceeds to say that theEnquiry Committee conducted enquiry and dismissed the counterallegations made by the petitioner and also held that the petitionerhas committed dereliction of duty and failed to take action againstthe workers, who committed irregularities in the department norreported the irregularities to the higher authorities. https://hcservices.ecourts.gov.in/hcservices/ (iii)The counter further states that “Complaints Committee”constituted under the guidelines of the Hon’ble Supreme court ofIndia in “Vishaka Case” to enquire the allegation of sexualharassment has also reported that there is long-standingmisunderstanding between the petitioner and the third respondent,which has reflected in the official career and spoiled the calmatmosphere and environment of the Department. 8.For these reasons, according to the counter, the petitionerwas transferred. The narration of events and allegations made in thecounter would go to show that the transfer impugned in this writpetition is not a transfer simplicitor on administrative grounds, butit has been made on certain allegations constituting seriousmisconduct. Thus, the impugned order of transfer is by way of apunitive measure. It is well settled that an order of transfer cannotbe made by way of punitive measure without affording sufficientopportunity; without framing charge and without holding theindividual guilty of the charges. On this ground alone, I am inclinedto set aside the impugned order of transfer.9.The learned counsel for the third respondent would submit thatbecause of the pendency of the present writ petition, the complaintsmade by the third respondent in respect of the sexual harassment madeby the petitioner have not been processed further by the authoritiesconcerned. In my considered opinion, if the third respondent has gotany grievance that the petitioner harassed her sexually, eitherinside or out side the work place, she can work out her remediesbefore the appropriate authority. Hence, the third respondent is atliberty to work out her remedies, dehors, the interference made bythis Court in respect of the impugned transfer order. 10.The learned counsel for the fourth respondent wouldvehemently oppose the writ petition. According to him, the fourthrespondent has been unnecessarily dragged to this Court by makingseveral allegations against him though he acted impartially duringpast in respect of certain administrative matters relating to thepetitioner. 11.The learned counsel for the petitioner would submit that thepetitioner is prepared to give up the fourth respondent as he is nota necessary party to this writ petition. The said statement isrecorded. If the fourth respondent has got any grievance against thepetitioner, he is at liberty to work out his remedies in the mannerknown to law.12.In the result, the writ petition is dismissed in so far asthe fourth respondent is concerned. However, in respect of therespondents 1 to 3 are concerned, the writ petition is allowed andthe impugned order of transfer is set aside. It is made clear that https://hcservices.ecourts.gov.in/hcservices/ the first respondent is at liberty to pass fresh order of transfer onadministrative grounds as against the petitioner, if so advised. Itis further clarified that as stated in the counter, in paragraphNo.3, the first respondent is at liberty to initiate disciplinaryproceeding against the petitioner, if there are materials for thesame. No costs. Consequently, connected miscellaneous petitions areclosed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarjbmTo1.The Registrar,Tamil Nadu Agricultural University,coimbatore – 641 003.2.The Dean,Agricultural Engineering College &Research Institute,Tamil Nadu Agricultural University,Coimbatore – 641 003.3.The Director, Central Institute of Agricultural Engineering, Nabi Bagh, Berasia Road, Bhopal-462 038, M.P.+1 cc to Mr.S.J.Jagadev, Advocate, SR.No.39637+1 cc to Mr.K.Rajasekaran, Advocate, SR.No.40000+1 cc to Ms.D.Geetha, Advocate, SR.No.40445W.P.No.6876 of 2008PKB {CO}TP/28.8.2009.