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2011 DIGILAW 1345 (RAJ)

Banshi Lal Bheel v. Bharat Hotels Ltd.

2011-07-11

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—By this common judgment both the above writ petition and contempt petition are decided. 2. The petitioner preferred writ petition before this Court basically challenging order dated 23.11.2010, Annex. 5 passed by the Civil Judge (Jr. Dn.), Udaipur City (North), Udaipur and order dated 29.1.2011 passed by Addl. District Judge No. 3, Udaipur in Appeal No. 01/2011 filed by the petitioners against order dated 23.11.2010 in Misc. Civil Case No. 152/2010, whereby, temporary injunction application filed by the plaintiff-petitioners under Order 39 Rule 1 & 2 C.P.C., read with Section 151, C.P.C. was rejected. So also, the petitioner has made a prayer for quashing transfer order dated 15.11.2007, Annex. 7. 3. Brief facts of the case are that all the petitioners are employees of the respondents and they were working on various posts with the respondent department. The case of the petitioners is that they are employees of the I.T.D.C. and as per clause 9.4 of Article 9 of the transfer-agreement that the respondents are under obligation to provide all service benefits which were ensured by them but the said benefits were not allowed, therefore, the petitioners preferred an application before the Joint Labour Commissioner, Udaipur for grant of promotion, elevation, merit increment, leave encashment, 50% DA and pay revision since 2002. In that connection, respondent No. 1 called the petitioners at New Delhi for talks and threatened them that either they take back their appeal/application otherwise they will be transferred from the present place of posting to other branches of the hotel. After coming from Delhi, the petitioners received a call from the General Manager to contact him. Upon meeting, they were again threatened by the General Manager that either they should take back their appeal/application otherwise they will be transferred. 4. Contention of the petitioners is that by order dated 15.11.2010 they were transferred and relieved and advised to report on duty at their respective places of transfer. In the circumstances, the petitioners filed a civil suit before the Civil Judge (Jr. Dn.), Udaipur City (North), Udaipur and along with the suit an application under Order 39 Rule 1 & 2, C.P.C. was also filed for temporary injunction. Learned trial Court, however, rejected the application filed by the petitioners under Order 39 Rules 1 & 2, C.P.C., in which, transfer order dated 15.11.2010 was challenged vide order dated 23.11.2010. Dn.), Udaipur City (North), Udaipur and along with the suit an application under Order 39 Rule 1 & 2, C.P.C. was also filed for temporary injunction. Learned trial Court, however, rejected the application filed by the petitioners under Order 39 Rules 1 & 2, C.P.C., in which, transfer order dated 15.11.2010 was challenged vide order dated 23.11.2010. Thereafter, an appeal was preferred against order dated 23.11.2010 and, in appeal, learned Addl. District Judge No. 3, Udaipur upheld the order passed by the Civil Judge (Jr. Dn.), Udaipur City (North), Udaipur dated 23.11.2010 and dismissed the appeal vide judgment dated 29.1.2011. 5. In this writ petition, the petitioners are challenging both orders dated 23.11.2010 and 29.1.2011 as well as transfer order dated 15.11.2010. 6. Learned counsel for the petitioners argued that this writ petition was filed in the month of February 2011 and co-ordinate Bench passed order upon the stay application whereby it was ordered that status quo with regard to place of posting as on the date of impugned transfer order dated 15.11.2010 shall be maintained. But, despite order having been passed by this Court the respondents are not allowing them to work under them and further they are compelling the petitioners to join at the place of transfer. 7. Learned counsel for the petitioners vehemently argued that transfer orders of the petitioners are simply outcome of the appeal/application filed by them for granting the financial benefits before the Labour Commissioner, therefore, it is malafide action on part of the respondents; but, this aspect of the matter was not considered by the civil Courts and solely on the ground that by order dated 15.11.2010 the petitioners were not only transferred but also relieved therefore the temporary injunction application became infructuous. 8. As per learned counsel for the petitioners, the finding of the trial Court upheld by the appellate Courts deserves to be quashed because the petitioners are low-paid employees and, at the time of deciding the temporary injunction application, the civil Court ought to have considered the main ground of the petitioners that they are threatened by the respondent management and when they refused to withdraw the application filed before the Joint Labour Commissioner, Udaipur, then, in consequence, the transfer orders have been issued mala fide, therefore, both the civil Courts below committed error while not granting the temporary injunction in their favour till disposal of the suit. Hence, it is prayed by learned counsel for the petitioners that all the three orders impugned in this writ petition deserve to be quashed. 9. Per contra, Sr. Advocate Mr. P.P. Choudhary, appearing for the respondents, argued that this writ petition has been filed under Articles 226 and 227 of the Constitution of India and this Court was pleased to pass order upon the stay application after lapse of more than two months to maintain status quo which was in existence on the date of passing of the impugned transfer order Annex. 7 dated 15.11.2010; meaning thereby, the Court was of the opinion that effect and operation of the order cannot be stayed because the transfer order was passed before two months and probably it might have been argued before the Court that the petitioners are not relieved, therefore, the order for maintaining status quo was made; but upon perusal of the impugned order dated 15.11.2010 it will be revealed that transfer order and relieving order both were passed simultaneously. Therefore, if on 15.11.2010 the petitioners were relieved, then, obviously the respondents were under obligation to maintain the status quo as it existed on 15.11.2010, the day on which, the impugned order were passed. 10. Learned counsel for the respondents submits that after amendment in the Civil Procedure Code and curtailment of the right to file revision petition before this Court against interim orders, the jurisdiction of this Court under Article 227 of the Constitution of India is very limited. This Court can, be course, interfere if there is complete miscarriage of justice and in rarest of rare cases, in which, interference by this Court is demanded by the situation of the case. But, here, in this case the suit in which transfer orders are challenged is pending and trial Court rejected the temporary injunction application on the ground that application for temporary injunction has become infructuous because the petitioners have already been relieved by the impugned order, therefore, even if this Court passed order to maintain status quo, the petitioners cannot claim continuance of service in compliance of order passed by this Court on 24.2.2011. 11. Learned counsel appearing on behalf of the respondents further argued that for utilizing the services of the petitioners they were deployed in various parts of the country where the branches of the respondents are in existence. 11. Learned counsel appearing on behalf of the respondents further argued that for utilizing the services of the petitioners they were deployed in various parts of the country where the branches of the respondents are in existence. It is true that the petitioners are low paid employees but, at the same time, no employee can be permitted to disturb the business of the respondents. The employees are under obligation to obey the orders passed by the higher authorities but, in this case, with certain allegations of mala fide levelled in the writ petition, the impugned transfer order is sought to be challenged which is not tenable. Further, interference in transfer matter is very limited as per verdict of the Hon'ble Supreme Court, in which, the apex Court has held that transfer is incidence of service and no employee can claim posting at a particular place as a matter of right. In this view of the matter, no case of disobedience of the order of this Court is made out in this case. Hence, it is prayed by learned counsel for the respondents that the contempt petition as well as this writ petition may be dismissed. 12. I have considered rival submissions made by both the parties. 13. Admittedly, against the impugned transfer orders a civil suit was filed by the petitioners in which temporary injunction application was also filed but the trial Court found that in view of the fact that petitioners have already been relieved, therefore, no stay order can be passed. In my opinion, the finding of the civil Court with regard to temporary injunction application having been rendered infructuous does not require any interference because as per order dated 15.11.2010 not only the petitioners were transferred but they were also relieved and this Court passed order on 24.2.2011 to maintain status quo with regard to place of postings of petitioners as on the date of impugned transfer orders dated 15.11.2010, therefore, there is no force in the argument of learned counsel for the petitioners that finding arrived at by the civil Court upheld by the appellate Court is erroneous. 14. In so far as allegations of mala fide are concerned, I am of the opinion that allegations of mala fide can be levelled in personam and no person has been impleaded in this writ petition against whom allegations of mala fide are levelled. 14. In so far as allegations of mala fide are concerned, I am of the opinion that allegations of mala fide can be levelled in personam and no person has been impleaded in this writ petition against whom allegations of mala fide are levelled. In the civil suit also, no person was impleaded, therefore, the ground of mala fide intention is also not tenable. 15. With regard to disobedience of the order passed by this Court on 24.2.2011, I am of the opinion that admittedly the co-ordinate Bench did not pass any order staying effect and operation of the order dated 15.11.2010 and order was passed to maintain status quo as on the date of passing the impugned order it existed; meaning thereby, there was no order passed by this Court directing the respondents not to relieve the petitioners. Therefore, it is not a case of disobedience. 16. In view of the aforesaid discussion, I am of the opinion that no case is made out in this writ petition for interference. 17. However, there is yet another aspect of the matter which ought not to be lost sight of. Admittedly, the petitioners are low paid employees and they preferred civil suit against the transfer orders. Upon perusal of the transfer orders, it is revealed that the petitioners have been transferred to very far places and they are relatively at much low pedestal, therefore, even though upon the facts the writ petition may fail and prayer of the petitioners made in the writ petition may not be accepted, in my considered opinion, shorn of human element, no administrative or management system can be conceived. In this view of the matter, I deem it just and proper to grant liberty to the petitioners that during the pendency of the suit they may file representation to the respondents within a period of 15 days from the date of receipt of certified copy of this order. Upon filing such representation, it is expected from the respondents that they will sympathetically consider the prayer of the petitioners with objectivity and open heart for retaining them at Udaipur and filing of the application by the petitioners for granting them financial benefits as per agreement will be ignored while bestowing consideration upon the representation of the petitioners. 18. This writ petition is dismissed. The contempt petition also stands dismissed.