Om Parkash Thakur Vs Dr. YS Parmar University of Horticulture and Forestry, Nauni (hphc)

Om Parkash Thakur Vs Dr. YS Parmar University of Horticulture and Forestry, Nauni 29.06.2010 

CWP 1988 of 2010.

Hon'ble Mr. Justice Surjit Singh, Judge.

For the Appellant Mr. Ajay Mohan Goel, Advocate.

For respondent No. 1 Mr. Onkar Jairath, Advocate.

Surjit Singh, Judge.

Petitioner in this case is an employee of Dr. YS Parmar University of Horticulture and Forestry, Nauni, impleaded as respondent No. 1. He joined service as daily wager in the year 1983. His services were regularized as Clerk with effect from 28.1.1988. On 18.10.1998, he was promoted as Senior Assistant. From the very beginning, petitioner has been stationed at Nauni in the campus of University (respondent No. 1). Besides the Campus, which has two colleges in different Specialties, respondent No. 1 has Research Stations at various places in the State.

2. Non-teaching staff of University, stationed at Campus, Nauni has an Employees Welfare Association, of which petitioner has been the President, since June, 2004. Prior to that, he was General Secretary of the said Association. Petitioner, as President of the said Association, had been submitting various memorandums to respondent No. 1, pertaining to demands of the employees posted at Campus and also pointing out irregularities, including financial irregularities in the working of respondent No. 1. Respondent University, with a view to ousting the petitioner from the Campus, devised a scheme. It merged the Department of Fruit Breeding and Genetic Resources in the Department of Fruit Sciences. On account of this merger, University declared that some staff had become surplus and in the garb of this exercise, it transferred the petitioner from Campus to Regional Horticulture Research Station, Bajoura in Distt. Kullu. Simultaneously, it transferred respondent No. 2 Jagdish Sharma, working at Regional Horticulture Research Station, Bajoura to the Campus and posted him in the office of Comptroller of respondent University.

3. It has been alleged that respondent No. 2, who has been transferred to the Campus from Regional Horticulture Research Station, Bajoura is also not happy with his transfer and he has made representation, copy Annexure P-5. Petitioner has challenged the order of transfer, which is Annexure P-4, dated 4.5.2010. Petitioner has alleged that the order of transfer, Annexure P-4, is arbitrary and is passed in colourable exercise of power.

4. Respondent No. 1 has filed reply. It is denied that the petitioner has been the President of the Welfare Association, which is recognized Association since 2004, but it was alleged that his term, along with the term of entire elected body of Association, expired on 30.4.2010 and no fresh elections had been conducted thereafter and so, his claim that he is President of the Association, is not correct. It is denied that merger of the two departments has been ordered to get rid of the petitioner from the Campus or that transfer of the petitioner is arbitrary or made in colourable exercise of University's power. It is stated that no representation of respondent No. 2 has been received by respondent No. 1 and Annexure P-5, alleged copy of representation of respondent No. 2, for cancellation of transfer order, appears to be a forged document.

5. This Court passed an interim order on 11.5.2010, to the effect that in case substitute of the petitioner had not joined, he shall continue, in the meanwhile. This interim order was extended, vide order dated 4.6.2010, with the clarification that in case there is no senior person in the cadre of Senior Assistants continuing at the headquarters of University, it will be open to the University to relieve the petitioner. It appears that since that some person senior to the petitioner in the cadre of Senior Assistants, is there at the headquarters of the University, the petitioner continues to be at the Campus.

6. Writ petition was admitted on 4.6.2010.

7. Counsel for the parties have been heard and record has also been gone through.

8. In the course of hearing of the matter, with a view to verifying the plea of the respondent that Annexure P-5, representation made by respondent No. 2, for cancellation of his transfer, appears to be forged, respondent No. 2 was ordered to be produced. He appeared and stated that he had prepared a draft of representation, copy of which is Annexure P-5, on 5.5.2010 and that on the next following day, he submitted the representation with slight change in the last paragraph, in which prayer for cancellation of transfer is contained. Thus, plea of the respondent that representation, Annexure P-5, appears to be forged is shown to be not correct.

9. Another plea which has been raised by the respondent in their reply, with regard to this representation, is shown to be false to the knowledge of the Registrar of respondent No. 1, who filed reply and supported it by an affidavit. In the reply, it is stated that no request of respondent No. 2 for cancellation of transfer had been received by the respondent University and that in fact respondent No. 2 had already joined at the Campus, pursuant to impugned order of transfer. Reply is dated 24.5.2010 and it is supported by affidavit, sworn on that very day.

However, the record, which was produced during the course of hearing of the case by the officials of respondent No. 2, indicated that the Registrar of respondent No. 1, who has filed reply and sworn the affidavit in support of reply, received representation of respondent No. 2 on 19.5.2010, as it bears his dated initial and the date under his initial is 19.5.2010. A copy of the representation was got placed on record.

10. No doubt, in the order of transfer, Annexure P-4, there is nothing indicating that the transfer of the petitioner has been made in an arbitrary manner or in colourable exercise of power, but attending circumstances do suggest that the respondent wanted the petitioner to be away from the Campus, so that he was no longer the President or any other office bearer of the Employees Welfare Association, which is duly recognized. Two posts of Senior Assistants had become surplus on account of merger of two departments of the University. One Senior Assistant has been transferred to Mashobra. Petitioner has been transferred to Bajoura and in his place, respondent No. 2 has been brought to the Campus from Bajoura.

Respondent No. 2 has been posted in the office of Comptroller, UH & F. It has been stated in the reply that respondent No. 2, Jagdish Sharma, had earlier been working in the office of Comptroller, UH & F about 10 years back and that he, having experience in accounts, has been brought back to the office of Comptroller, UH & F. It has not been stated in the reply that petitioner cannot work as Senior Assistant in the office of Comptroller, which is part of the main campus of respondent No. 1. It has also not been stated that in fact services of an additional hand, having knowledge of working in accounts, were required in the office of Comptroller, UH&F. That means, petitioner could have very easily been accommodated at the Campus, even after two posts of Senior Assistants had become surplus, on account of merger of two Departments, notified on the same day, as the impugned order of transfer.

11. Petitioner has placed on record certain representations and Demand Charters submitted to the authorities of respondent No. 1, in which not only demands of the employees have been highlighted, but also allegations of mismanagement of funds and irregularities in financial matters are indicated, which, it can legitimately be presumed to have annoyed the authorities.

12. Not only this, the respondent, by the conduct of its Registrar in writing a letter, copy Annexure RR/3, filed with the rejoinder, has made it clear that University wants to get rid of the petitioner from the Campus, because of his being head of the Employees Welfare Association. In this letter, Annexure RR/3, which is dated 6.5.2010 and is addressed to all the statutory officers of the respondent University, the addressees have been requested to bring it to the notice of the members of the Employees Welfare Association and to impress upon them, not to attend any meeting of the executive body of the Association.

Reason given is that on account of the tenure of the elected body having expired on 30.4.2010, the executive body ceased to exist. Respondent is not supposed to interfere in the activities of the Association. It was a matter between the members of the Association, i.e. the employees and the alleged non existing executive body, whether to attend the meetings convened by such executive body or not.

Writing letter Annexure RR/3 by the Registrar of the University, clearly indicates that the University was not happy with the members of the executive body, the term of which, per this letter, expired on 30.4.2010 and because of which it became defunct. Learned counsel for the University tried to defend this writing.

He argued that the purpose was that the employees did not attend the meetings during working hours. First, there is no such mention in the writing. Secondly, meetings of employees of Association/ Unions can otherwise also not be held during working hours.

13. There is another letter which was produced during the course of hearing of the matter by learned counsel for respondent No. 1. This letter is addressed to the Registrar of respondent No. 1 by 90 employees of the University, who are the members of the Association. As per this letter, on the expiry of the term of executive body on 30.4.2010, an adhoc committee, consisting of eight employees had been authorized to deal with the respondent University on behalf of the Association, in connection with various demands of the employees Association. Letter is undated, but it was received by the Registrar on 22.5.2010. On behalf of the petitioner, it was pointed out that on 26.5.2010, elections had been held and the present petitioner had been re-elected as President, while several other persons had been elected as office bearers. None of the persons named in letter dated 22.5.2010, except one, has been elected.

14. It was submitted on behalf of respondent No. 1 that petitioner can continue to be a member of the Association and in that capacity, he can be elected President or office bearer, if the employees so desire, even after his transfer to Bajoura. That is not correct.

As per Constitution of the Association, copy of which is available as Annexure P-2, only the employees posted at the Campus of the University, that is at Nauni, can be the members of the Association and it is only the members of the Association, who can be elected as office bearers.

15. In view of the above stated position, I am of the considered view that transfer of the petitioner has been ordered arbitrarily, in colourable exercise of power.

16. As a result of the above discussion, writ petition is allowed and the impugned order, Annexure P-4, transferring the petitioner from the Campus of respondent No. 1 to Regional Horticulture Research Station, Bajoura, Distt. Kullu, is quashed.