Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2678 (HP)

Subhash Chand v. Rajinder Thakur

2016-12-19

CHANDER BHUSAN BAROWALIA

body2016
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present petition is maintained by the petitioner/plaintiff (hereinafter referred to as “the petitioner”) against the order of learned District Judge, Bilaspur, H.P. passed in Civil Miscellaneous Appeal No. 1/14 of 2016, dated 25.04.2016, whereby the order passed by the learned Civil Judge (Junior Division) Bilaspur, H.P. in CMA No. 67/6 of 2015, dated 02.01.2016, was set aside. 2. Briefly stating the facts giving rise to the present petition are that petitioner maintained a suit in the Court of first instance seeking permanent prohibitory injunction against the respondents/defendants (hereinafter referred to as “the respondents”). The petitioner also maintained an application under Order 39, Rules 1 and 2 read with Section 151 CPC and the learned Civil Judge (Junior Division) Bilaspur, H.P. vide order dated 02.01.2016, restrained the respondents from interfering, transferring and changing the nature of job of the petitioner from his primary job, i.e., Operator of Hydra Crane and Fork Life for which he was trained and appointed till disposal of the main suit. The said order was assailed by the respondents in the Court of learned District Judge, Bilaspur, H.P., successfully. As per the petitioner, on 14.02.1994, he was appointed as Beldar in ACC, Barmana. Subsequently, on 01.04.2009, he was promoted and trained to operate the Hydra Crane. Respondent No. 1, who is General Manager, ACC Barmana, belongs from the native place of the petitioner. Owing to some family feud, respondent No. 1 is harassing the petitioner. The petitioner has further contended that he has not been trained to work in the mining department to which he is to be transferred. Special medical fitness is necessary to work in the mining department and he is not medically fit, as he is suffering from disk/back problem. His transfer to the mining department is mala-fide action of respondent No. 1. The petitioner is being compelled to work in the mining department, operate a dumper and climb ladder having more than five steps. In the mining department he has to climb on a running Starker, which is hazardous and risky. As per the petitioner, Starker is an electrical instrument and computerized machine and he has no knowledge of the same and likewise Dumper moves on treacherous roads resulting into bumpy drive. In the mining department he has to climb on a running Starker, which is hazardous and risky. As per the petitioner, Starker is an electrical instrument and computerized machine and he has no knowledge of the same and likewise Dumper moves on treacherous roads resulting into bumpy drive. The petitioner sought interim orders restraining the respondents from interfering, transferring or changing the nature of his job/work from his primary job for which he was appointed and trained by the respondents. 3. The respondents, by way of filing reply to the application, raised preliminary objections qua maintainability, locus standi, estoppel, jurisdiction etc. On merits it was averred by the respondents that respondent No. 1 is not inimical towards the petitioner. As per the respondents, the petitioner started working as Mazdoor in Grade-E w.e.f. 14.02.1994 and Clause- 7 of appointment letter provides “it is understood and agreed that you are liable to be transferred to work in any of our works including quarries, departments or offices managed by this company or subsidiary company. If you are transferred permanently to and of the company's other units, your remuneration will be governed by the terms and conditions obtaining at that unit.” The respondents have further averred that the petitioner was promoted as Machinery Attendant w.e.f. 01.01.2008 and as an Operator w.e.f. 01.04.2009 and was shifted from kiln department to motor vehicle department and he was subsequently transferred therefrom to mining department on 21.03.2014. The petitioner himself declined to undergo training in dumper operation and was willing to operate Hydra Crane only. As per the respondents, the petitioner was then shifted to crusher section for operating stacker/crusher and was to undergo training, but he again refused. The petitioner did not perform his duties and remained idle; hence he was charge-sheeted on 18.02.2015. The petitioner is medically fit and as per the terms and conditions of appointment, any employee of the company can be transferred anywhere in the company. 4. The learned Civil Judge (Junior Division) Bilaspur, H.P. allowed the application under Section 39, Rules 1 and 2 read with Section 151 CPC. However, the learned Lower Appellate Court quashed and set aside the order passed by the learned Civil Judge (Junior Division) Bilaspur, H.P., hence the present petition. 5. 4. The learned Civil Judge (Junior Division) Bilaspur, H.P. allowed the application under Section 39, Rules 1 and 2 read with Section 151 CPC. However, the learned Lower Appellate Court quashed and set aside the order passed by the learned Civil Judge (Junior Division) Bilaspur, H.P., hence the present petition. 5. The learned counsel for the petitioner has argued that the learned Lower Appellate Court has failed to take into consideration the fact that the petitioner has a prima facie case in his favour and balance of convenience also lies in his favour. He has further argued that by rejecting the application under Section 39, Rules 1 and 2 read with Section 151 CPC, the petitioner is suffering irreparable loss. In the interest of justice, the order passed by the learned Lower Appellate Court rejecting the application of the petitioner may be set aside. 6. Conversely, the learned counsel for respondents No. 1 to 4 has argued that the petitioner has no prima facie case in his favour. As an employee, the petitioner cannot choose where he wants to work. He has also referred to the appointment letter and other documents, which are on record. 7. In rebuttal, the learned counsel for the petitioner has argued that the petitioner is suffering from back ache and the work which he is being directed to perform is hazardous and he is not in a position to perform the same. 8. In order to appreciate the rival contention of the parties, I have gone through the record in detail and the pleadings of the parties, which are on record. 9. It is clear from the letter dated 21st March, 2014, that the petitioner was transferred to mining department and his services were urgently required in the said department. Vide another communication dated 25.03.2014, the petitioner was required to undergo training in dumper operation on and w.e.f. 26.03.2014 with some Senior HEMMO of mining department for a month. However, the petitioner refused to undergo the training and he wrote a letter dated 26.03.2014 to the authorities expressing that he has no interest to run heavy machinery, including dumper and he be allowed to operate Hydra Crane, which he was operating earlier. The petitioner nowhere highlighted his back problem to the authorities. Subsequently, vide letter dated 14.06.2014, the petitioner was transferred to crusher section. The petitioner nowhere highlighted his back problem to the authorities. Subsequently, vide letter dated 14.06.2014, the petitioner was transferred to crusher section. The said letter further revealed that the petitioner was required to operate the stacker/crusher and he was advised to report to HOD Crusher on 16.06.2014, but he did not do so. Thus, he was charge-sheeted on 18.02.2015 and the inquiry is still pending against him. Admittedly, the petitioner approached the Civil Court by filing suit for permanent prohibitory injunction coupled with injunction application on 20.03.2015. The petitioner approached the Civil Court much later to his last transfer. Earlier the petitioner did not highlight his ill-health to his employer. An employee can be posted anywhere by the employer in order to sub-serve the administration of work and the choice of the employee is always secondary. From the facts of the case it can be easily gathered that the petitioner is not interested to operate on a particular machine or undergo the training, he just wanted to continue on a specific machine only. 10. From the record it is not clear that the petitioner is having any major problem qua back ache. Although, he has produced the prescription slip on record, but the same nowhere justifies that the petitioner is not in a position to work. The appointment letter of the petitioner is amply clear that he can be posted anywhere. The petitioner cannot deny the orders of his superiors, as he is required to work and discharge duties as per the orders of his superiors. 11. In these circumstances, this Court finds that prima facie case does not exist in favour of the petitioner and balance of convenience is also not in his favour. In case interim order is granted in favour of the petitioner, other employees will also start disobeying the orders of their superiors and it will be difficult to run the administration for the respondents/defendants. The interests of justice demand that the petitioner should perform his duties as he is serving with the respondents. 12. In view of the above, I do not find any reason to interfere with the well reasoned order of the learned Lower Appellate Court. Accordingly, the petition, being devoid of merits deserves dismissal and is accordingly dismissed, however, with no orders as to costs. 13. The parties are directed to appear before the learned Trial Court on 12th January, 2017. In view of the above, I do not find any reason to interfere with the well reasoned order of the learned Lower Appellate Court. Accordingly, the petition, being devoid of merits deserves dismissal and is accordingly dismissed, however, with no orders as to costs. 13. The parties are directed to appear before the learned Trial Court on 12th January, 2017. The learned Trial Court will try to dispose of the Civil Suit as early as possible. 14. The petition stands disposed of as also pending application (s), if any.