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1995 DIGILAW 19 (GAU)

Oil and Natural Gas Commission and Ors. v. Prafulla Chandra Phukan

1995-01-19

J.N.SARMA

body1995
A suit being Title Suit No.2 of 1994 was filed before the learned Assistant District Judge, Sibsagar challenging the legality and validity of the transfer order dated 4.12.93 issued by the authority of the defendant. The order of transfer was challenged on the ground of malafide and on the ground of personal inconvenience of the plaintiff. The petitioner was earlier posted at Moran and thereafter he was transferred to Sibsagar which will be a distance of about 35 KMs. Be that as it may, on a separate application filed, the learned Assistant District Judge, Sibsagar granted an ad-interim injunction and that was made absolute by the impugned order dated 16.7.94. The learned Judge in granting the order of injunction, inter alia, found as follows : (1) That it is found that without handing over charge, there cannot be formal release order. (2) Formal handing over charge did not take place. Without it, no release order can be issued. (3) Representation was filed and the same was not disposed of. (4) 'Malafideness' on the part of the defendant is proved. (5) Fifthly, the learned Advocate for the defendant has not pointed out anything about the three ingredients of granting injunctions 2. Curiously enough, after this order was passed, the Court directed to enforce the order of injunction through police help. No doubt, Court can direct to enforce an interim order inasmuch as and when an order of injunction is passed, the Court should not allow it to be a mere scrap of paper but it should he enforced in cautious and prudent manner and not in a mechanical way as was done in the instant case. Be that as it may, I leave the matter and do not pursue the same. 3. I have heard Mr. BK Goswami, learned counsel for the petitioner and Mr. AK Goswami, learned counsel for the respondent. First, I take up the last ground mentioned by the learned Judge for making an order of injunction absolute. He has placed burden for establishing the three ingredients of injunction on the defendant. But burden is on the plaintiff in respect of the three ingredients for the grant of injunction. 4. In the order, the learned Judge nowhere mentioned regarding prima facie, balance of convenience and irreparable loss or injury. He has placed burden for establishing the three ingredients of injunction on the defendant. But burden is on the plaintiff in respect of the three ingredients for the grant of injunction. 4. In the order, the learned Judge nowhere mentioned regarding prima facie, balance of convenience and irreparable loss or injury. The question of release and/or handing over charge is an official matter for the authority and that cannot be a consideration regarding grant of injunction. Further, the learned Judge also failed to consider the settled aspect of law that in a case of transfer, the power of the Court to interfere is absolutely limited. The Court can interfere only when a clear case of malafide is made out and/or the order of transfer is against some statutory rule and executive instructions binding on the employer. Mere allegation of malafide is not sufficient. The malafide should be brought home by cogent evidence which will entitle the Court to reach a prima facie finding regarding malafide. That was also absent in the instant case. Be that as it may, the law on the point of transfer is settled. The latest case of the Supreme Court in question is NK Singh vs. Union of India, (1994) 6 SCC 98 wherein the Supreme Court in paragraph 23 laid down the law as follows : "The tendency of anyone to consider himself indispensable is undemocratic and unhealthy. Assessment of worth must be left to the bonafide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierachical superiors to make that decision. Unless the decision is vitiated by malafides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the Courts lack the necessary expertise for personnel management of all Government departments. Unless the decision is vitiated by malafides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the Courts lack the necessary expertise for personnel management of all Government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated." 4. This being the settled position, the revision application is allowed and the order of injunction passed by the Court below is quashed. 5. Mr. AK Goswami submits that the plaintiff-opposite party has not received salary from the month of February, 1994. If the plaintiff-opposite party is working, the authority is duty bound to pay him the salary. The authority is directed to pay the salary to the plaintiff-opposite party in accordance with rules and laws if the plaintiff-opposite party is really working in the post at Moran.