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1984 DIGILAW 105 (GUJ)

Suganlal Govindram v. General Manager, Western Railway, Bombay

1984-03-29

S.L.TALATI

body1984
JUDGMENT : S.L. Talati, J. The appellant (original plaintiff) challenges his transfer from Kankaria Depot to Ahmedabad, a place which is at a distance of about 3 to 4 kilometres. He filed suit against the Railway Administration and submitted Notice of Motion for obtaining temporary injunction so that the order of transfer may be suspended during the pendency of the suit. 2. It appears from the facts stated that while he was working as Foreman at Kankaria Depot three persons who were working under him had assaulted him and. therefore, criminal case was required to be filed and those three persons were required to be suspended. Departmental inquiry is pending and ultimately as those three persons could not be kept under suspension for a very long period according to the instructions issued by the Government from time to time, those three persons were required to be given postings. It was thought that those three persons might again create some trouble against the plaintiff, the plaintiff was transferred. The plaintiff filed suit and contended that instead of transferring him those three persons could have been transferred. Normally it is for the administration to decide as to who is required to be transferred and at what place. Now therefore, after considering what the administration thought fit the administration came to the conclusion that those three persons were not likely to co-operate with the plaintiff and the department will not work smoothly, the plaintiff came to be transferred. One cannot say that there was any malice in such an Act, Whether those three persons should have been transferred or the plaintiff should have been transferred in a matter which this court cannot decide in absence of several administrative facts which are not before this Court and this Court is not a forum to decide the administrative exigencies of a Government department. Application for injunction of this nature would never fall under O. 39, R. 1. But perhaps one might urge that it falls under O.39. R. 2 which runs as under:- "O. 39, R. 2 (1) "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. But perhaps one might urge that it falls under O.39. R. 2 which runs as under:- "O. 39, R. 2 (1) "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." Now that, therefore, a possible argument could be that the transfer would be covered by phrase "Or other injury of any kind" and it could be argued or suggested that this is an injury caused and, therefore, interim injunction is necessary. I may only say the transfer of a Government servant from one place to another cannot be covered by phrase "injury of any other kind". Normally injury referred to must have some relation with the breach of contract or some Act or omission which is contrary to law and which might result in infringement of right vested in a person. For example where there is an infringement of Copyright or an obstruction to a right of easement or to the exercise of rights to a property or where there is a case where some waste or nuisance is being committed. These are cases where one can complain of injury of any other kind. Right to serve at a particular place in a transferable job is not a right and where there is no right there cannot be any injury arising because of infringement to such right. Normally, therefore, the courts do not interfere with the orders of transfer passed by the executive authorities except in the rarest of rare cases where personal mala fides or legal mala fides are apparent on the face of the record. Normally, therefore, the courts do not interfere with the orders of transfer passed by the executive authorities except in the rarest of rare cases where personal mala fides or legal mala fides are apparent on the face of the record. In absence of such things normally when personal rights are not involved there is no question of injury such as "injury of any other kind" as contemplated by O. 39, R. 2 of the C.P.C. Under these circumstances if the learned trial Judge did not exercise discretion in granting injunction, hardly a case is made out in appeal where any interference in discretionary order of this nature is called for. 3. In the result the appeal fails and is dismissed. 4. The learned Advocate Shri Menon requests that this order may be stayed for a period of six weeks. This request cannot be granted because by such request the administrative machinery would be put to a halt by taking ad interim injunction. The order of transfer which was passed on 5-9-1983 could not be carried out for more than six months. If by such grant of stay the administrative machinery is not allowed to function the courts will be creating a situation where there will be administrative chaos which perhaps one might not have thought would create. However, as the request is made on the ground that the party desires to approach the Supreme Court, this order is stayed for a period of two weeks. Appeal dismissed.