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1966 DIGILAW 5 (PAT)

R. K. Biswas v. Union Of India

1966-01-10

G.N.PRASAD, R.K.CHOUDHARY

body1966
Judgment Choudhary, J. 1. This civil revision, application by the plaintiff is directed against an order passed in appeal by the Subordinate Judge, First Court, Dhanbad, vacating an or ler of injunction passed by the Munsif. First Court, there. 2. The petitioner alleges to have been appointed to the permanent post of a Special Grade Travelling Ticket Examiner (hereinafter referred to as "T. T. E." for the sake of brevity) at Dhanbad on the 3rd January 1964. On the 7th May, 1964, he was directed to attend the office of the Commercial Superintendent, Dhanbad; and when he went there he received on that very date a I about 5 p.m an order of his transfer to Sealdali Division From the 8th May, 1964 till the 25th May 1964. he was on sick leave. On the 26th May. 1964 and the 27th May, 1964, as appears from the programme for Squad No 4. of which the petitioner was said to be in charge, he was on rest due on the 16th May and the 23rd May, 1964, respectively His name, however, continued to ippear on those two dates in the muster-roll On the 27th May 1964. the petitioner met the Divisional Commercial Superintendent, Dhanbad, who verbalh directed him to join Sealdah Division. His name was removed from the muster-roll at Dhanbad on the 28th May, 1964. It, however, appears that on the 15th May. 1964. the petitioner filed a title suit, being Title Suit No. 323 of 1964, in the First Court of the Munsif at Dhanbad for a declaration that the transfer order was illegal and contrary to rules, and a prayer was made for a permanent injunction restraining the defendants rail- way authorities from giving effect to the transfer order. On the same day, he made an application for issue of an order directing the defendants not to give effect to the transfer order pending the disposal of the title suit. The learned Munsif, on the same day, passed an order of ad interim injunction restraining the defendants from giving effect to the above transfer order. On the same day, he made an application for issue of an order directing the defendants not to give effect to the transfer order pending the disposal of the title suit. The learned Munsif, on the same day, passed an order of ad interim injunction restraining the defendants from giving effect to the above transfer order. After the name of the petitioner was removed from the muster-roll on the 28th May, 1964, the petitioner filed another application on the 24th June, 1964 for issue of a mandatory injunction directing the defendants to put the name of the petitioner in the Duly Roster at Dhanbad and to allow him to perform his duty as a Special Grade T. T. E. at Dhanbad, in view of the order of ad interim injunction passed on the 15th May, 1964. This application was disposed of by the learned Munsif by his order dated the 5th January, 1966, whereunder he passed an order of mandatory injunction directing the defendants to allow the petitioner to resume his duties as a Special Grade T. T. E. at Dhanbad. Against the above order, the defendants preferred an appeal before the District Judge, Dhanbad, which was heard by the Subordinate Judge, First Court, there. The appellate Court allowed the appeal and rejected the petition of the petitioner for issue of a mandatory injunction. Being thus aggrieved, the petitioner has filed the present revision application. 3. The first point raised by Mr. Ghost, appearing for the petitioner, is that no appeal lay against the order of the Munsif to the District Judge, and, therefore, the order of rejection of the application for mandatory injunction passed by the Appellate Court is illegal and void. It has been submitted that the order of mandates injunction was passed by the learned Munsif under his inherent powers under Sec.161 of the Code of Civil Procedure (hereinafter referred to as "the Code") On the other hand, Mr. Bose, appearing for the opposite parlies, has urged that the application for mandatory injunction was made and entertained as being an application under the provisions of Order 39. Rule 2, of the Code; and against an order passed on such application, an appeal lay under the provisions of Order 43. Rule 1(r). of the Code. In order to find out. Bose, appearing for the opposite parlies, has urged that the application for mandatory injunction was made and entertained as being an application under the provisions of Order 39. Rule 2, of the Code; and against an order passed on such application, an appeal lay under the provisions of Order 43. Rule 1(r). of the Code. In order to find out. therefore, the competency of the appeal in the Court below, it has to be seen whether the order of mandatory injunction was passed under Order 39, Rule 2, or under the inherent powers of the Court under Sec.151 of the Code There is no dispute that a Court can pass an order of mandatory injunction under Sec.151 of the Code; but at the same lime it appears to me that such an order could also be passed under the provisions of Order 39. Rule 2. of the Code Order 39. Rule 2(1) states that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. Applying the above provision to the facts of the present case, it is manifest that the plaintiff-petitioner brought the suit for restraining the defendants from committing an injury to the plaintiff by transferring him from Dhanbad to Sealdah Division, and a prayer for injunction was made to direct the defendants not to give effect to the transfer order so that the injury complained of might not be committed. It is, therefore, a case under the privisions of Order 39, Rule 2, of the Code. An order of mandatory injunction directing the defendants not to give effect to the transfer order and to allow the plaintiff to work as a Special Grade T. T. E. at Dhanbad could, in my opinion, very well be passed under the above provision of the Code. An order of mandatory injunction directing the defendants not to give effect to the transfer order and to allow the plaintiff to work as a Special Grade T. T. E. at Dhanbad could, in my opinion, very well be passed under the above provision of the Code. The decision of the question, however, is not free from difficulty, and there appears to be no direct authoritative decision of any Court on this point, though there are decisions which throw some light on the subject. 4. In the case of Rasul Karim V/s. Pirbhai Amirbhai, (1914) TLR 38 Bom 381: (AIR 1914 Bom 42), Beaman, J. expressed his opinion doubting the power of the Indian Courts to issue mandatory injunction under the provisions of Order 39, Rules 1 and 2. of the Code Shah. J . however, did not agree with his view, but did not decide the general question argued, whether the Courts had power, under Order 39, Rule 2, to make an order restraining a defendant from committing the injury complained of Subsequently, in another Bench decision of that Court, in Champsey Bhimji & Co. V/s. The Jamnn Flour Mills Co Ltd., (1914) 16 Bom LR 566 : (AIR 1914 Bom 195), the view taken was in favour of the application of Order 39. Rule 2. of the Code to a case like the present one in that case, the plaintiffs leased certain premises to the defendants for a term of years, the latter covenanting that they would make, keep and maintain at their own expense two roads leading to the, premises. In May, 1914, the defendants, having blocked up one of the roads, the plaintiffs commenced an action to restrain the defendants from keeping any debris on the road and from raising the level thereof to a height greater than before. On the plaintiffs application, the Court granted a mandatory injunction until the hear ing of the suit restraining the defendanls from doing any of the acts threatened. The defendants appealed on the ground that the Court had no jurisdiction to grant the mandatory injunction. It was held in that case that the Court was justified in granting the mandatory injunction, and the appeal was dismissed. The defendants appealed on the ground that the Court had no jurisdiction to grant the mandatory injunction. It was held in that case that the Court was justified in granting the mandatory injunction, and the appeal was dismissed. Davar, Acting C. J., while dealing with the objection to the jurisdiction of the Court to issue a mandatory injunction, observed that Having regard to the very clear wording of Order XXXIX, Rule 2; and to the fact that this Court has always exercised the power of remedying an injury or wrong by a mandatory injunction on an interlocutory application, I have no doubt whatever that this Court has power to make a mandatory order on an interlocutory application". Heaton, J., in his concurring judgment, however, added that whatever view may be taken of the general question of mandatory injunction tinder Order XXXIX, Rule 2. I think this injunction must be maintained." It has been urged on behalf of the petitioner in the instant case that Heaton, J. did not express his opinion about the applicability of Order 39, Rule 2. and Davar, Acting C. J. also did not depend for his decision entirely on Order 39. Rule 2, but also on the practice of the Court in exercising the power of remedying an injury or wrong by a mandatory injunction. The case had gone before their Lordships in an appeal, and it was not suggested that the appeal was incompetent as the impugned order of mandatory injunction could not be passed under Order 39, Rule 2. If the view of their Lordships had been that such an order could not be passed under the provisions of Order 39, Rule 2, of the Code, but only under Sec.151, the appeal itself would have been held to he not maintainable. Their Lordships, however, do not appear to have taken the view that the appeal was not maintainable on the ground that the impugned order was not passed under the provisions of Order 39. Rule 2, of the Code. 5. Subsequently, a similar question arose to be decided by a Bench of the Madras High Court in M Kandaswami Chetly V/s. P. Subramania Chetty, (1918) ILR 41 Mad 208 (AIR 1918 Mad 588) 11 was held in that case that Courts in India can, under Order XXXIX. Rule 2, of the Code issue temporary injunction in a mandatory form. 5. Subsequently, a similar question arose to be decided by a Bench of the Madras High Court in M Kandaswami Chetly V/s. P. Subramania Chetty, (1918) ILR 41 Mad 208 (AIR 1918 Mad 588) 11 was held in that case that Courts in India can, under Order XXXIX. Rule 2, of the Code issue temporary injunction in a mandatory form. In that case their Lord ships pointed out that they were not prepared to adopt the opinion expressed by Beaman, J. in (1914) ILR 38 Bom 381 : (AIR 1914 Bom 42), referred to above: and observed that the description of temporary injunctions in Sec. 53, Specific Relief Act. does not exclude injunctions of a mandatory nature Their Lordships further observed that Shah J. did not agree with the opinion of his learned brother in Rasul Karims case, (1914) ILR 38 Bom 381 : (AIR 1914 Bom 42) and two other Judges of the Bombay High Court look a different view from Beaman, J in (1914) If, Bom LR 566: (AIR 1914 Bom 195), alreadv referred to Taking these decisions into consideration, along with the language of Order 39 Rule 2. of the Code, I have no doubt that a mandatory injunction of the nature as was passed in the case in hand could be passed under the provisions of Order 39, Rule 2. An appeal, therefore, lay to the Court below under Order 43. Rule 1(r). of the Code 6. Mr Ghose has then contended that, even if the appeal in the Court below was maintainable, its order vacating the injunction order passed by the court of first instance was not legally justified, inasmuch as the Court below wrongly held the transfer order to have become effective prior to the order of temporary injunction that was passed on the 15th May, 1964. His contention is that, though the order of transfer was made on the 7th May, 1964, it was actually given effect to on the 28th May, 1964 by removing the name of the petitioner from the muster-roll; and this having been done after the service of the temporary injunction order passed on the 15th May, 1964, the defendants violated the injunction order, and, as such, the Court of first instance was perfectly justified in issuing the mandatory injunction. The contention is based on an argument that the order of transfer became effective on the 28th May, 1964, and not on the 7th May, 1964, as held by the Appellate Court. The question as to when the order of transfer became effective is a question of fact, and this Court, silting in revision, cannot interfere with the finding arrived at on that point by the final Court of fact. It is not, therefore, possible to interfere with the finding of the Appellate Court that the transfer order became effective on the 7th May. 1964. 7. Assuming, however, that such a finding could be examined by the High Court in its revisional jurisdiction, the materials available on the record of the case, in my opinion, fully justify the conclusion to which the Appellate Court has arrived. The transfer order was passed on the 7th May, 1964 and it was received by the petitioner hand to hand on the same day. There is a note of the transfer order, as has been pointed out by Mr. Ghose, that This will hot confer any claim on Shri Biswas for absorption in this Grade in preference (sic) other eligible staff". A good deal of criticism has been made on this note suggestion that by the transfer order the petitioner was going to be reduced in rank. I, however, do not find any substance in this contention, because he was transferred in the same grade in which he was posted at Dhanbad and the effect of the above note was not to place him higher than the other employees of the same grade already posted in Sealdah Division. One thing, however, is of great importance in this transfer order. Item No. 8 of the forwarding memo recites ("Cory to Shri R.K. Biswas, Offg. Spl. Gr. TTF/ Dhanbad (present in office) for information and compliance. He is spared on transfer to Sealdah division with effect from the afternoon of 7th May, 1964"). Thus, his transfer was made effective in the afternoon of the 7th May, 1964 itself and the copy of the order was handed over to him on the same date in the office. He was also spared on the same date in the afternoon. The order of transfer so made, therefore, became effective from the afternoon of the date on which it was passed and communicated to the petitioner Mr. He was also spared on the same date in the afternoon. The order of transfer so made, therefore, became effective from the afternoon of the date on which it was passed and communicated to the petitioner Mr. Biswas, however, in my view, wanted somehow or other to do away with the effective character of this order by at once going on sick leave from the 8th May, 1964 till the 25th May, 1964. On the 26th and the 27th May, 1964, he was on rest, according to the programme (Ex. 2). On the 27th May, 1964 he went to the Head Ticket Collector, when he wag asked to see the Divisional Committed Superintendent, Dhanbad, and when the petitioner went to the Superintendent, he was asked to join Sealdah Division at once and his name was removed from the muster-roll on the 28th May, 1964. On these facts Mr. Ghose has urged that the transfer order did not actually become effective on the 7-5-1964, but only on the 28-5-1964 when the name of the petitioner was removed from the muster-roll of Dhanbad. It has been submitted that, after his sick leave was over he joined his duty on the 26-5-1964 and performed the same till the next day, that is. till the 27th May, 1964, and, therefore, the transfer order could not be said to have been made effective earlier than the 28th May, 1964. But, as already stated, he had no duty to per form on the 26th and the 27th May, as those were his rest days, and on the 27th May, 1964 when he saw the Divisional Commercial Superintendent at Dhanbad, as directed by the Head Ticket Collector, he was asked to join Sealdah Division at once. The question of his joining and performing his duty did not arise at all. The removal of his name from the muster-roll on the 28th May, 1964 was only a clerical job on the administrative side. The petitioner, therefore, could not be said to have continued in service at Dhanbad till the 28th May, 1964. It may be mentioned here that, soon after the transfer order was passed and communicated to the petitioner, his pay slip for the period up to the 7th May, 1964 was sent to Sealdah Division to be paid to him. The petitioner, therefore, could not be said to have continued in service at Dhanbad till the 28th May, 1964. It may be mentioned here that, soon after the transfer order was passed and communicated to the petitioner, his pay slip for the period up to the 7th May, 1964 was sent to Sealdah Division to be paid to him. This clearly indicates that effect to the transfer order was given on the 7th May, 1964 itself. That being the position, the defendants had trade nothing to give effect to the transfer order subsequent to the 7th May, 1964, and the injunction order passed on the 15th May, 1964 restraining the defendants from giving effect to the transfer order had no legal effect so far as the case of the petitioner is concerned. 8. The result, therefore, is that there is no merit in this application, which is, accordingly, dismissed with costs. Hearing fee Rs. 100 (Rupees one hundred only). G.N.Prasad, J. 9 I agree.