Skip to content


Union of India (Uoi) and ors. Vs. Bapu Chundaman Patil - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR196
AppellantUnion of India (Uoi) and ors.
RespondentBapu Chundaman Patil
Cases ReferredSiyaram Sharma v. Bholanath
Excerpt:
- - he further placed reliance upon rules 66 and 70 of the central industrial security rules, 1969 (herein after referred to as 'the rules'). (4) both the court failed to exercise jurisdiction inasmuch as in not taking into consideration (a) the option form signed be the plaintiffs, (b) the letter dated 6-7-72 written by the chief administrative officer, ipcl to cisf stating the conditions of absorption wherein it is nowhere mentioned that security guards were not liable to be transferred. it is true that it is well established law that the high court cannot interfere under section 115 of the civil procedure code against an order passed by the first appellate court even if it may be erroneous or it may be or may not be in accordance with law. now in this case the petitioners have.....m.b. shah, j.1. being aggrieved and dissatisfied by the common judgment and order dated march 29, 1985 passed by the second extra assistant judge, vadodara in civil misc. appeals nos. 85 to 94 and 219 to 237 of 1983 confirming the order of interim injunction dated may 13, 1983 passed by the civil judge, senior division, baroda on ex. 5 filed by the opponents for interim injunction, the petitioners (defendants) have filed the revision applications.2. the opponents-plaintiffs have filed various suits before the civil judge senior division, baroda contending that they were inducted in service as members of central industrial security force (hereinafter referred as 'cisf') on the promise that they will not be transferred in any other state unless they are promoted to the higher post. it is.....
Judgment:

M.B. Shah, J.

1. Being aggrieved and dissatisfied by the common judgment and order dated March 29, 1985 passed by the Second Extra Assistant Judge, Vadodara in Civil Misc. Appeals Nos. 85 to 94 and 219 to 237 of 1983 confirming the order of interim injunction dated May 13, 1983 passed by the Civil Judge, Senior Division, Baroda on Ex. 5 filed by the opponents for interim injunction, the petitioners (defendants) have filed the revision applications.

2. The opponents-plaintiffs have filed various suits before the Civil Judge Senior Division, Baroda contending that they were inducted in service as members of Central Industrial Security Force (hereinafter referred as 'CISF') on the promise that they will not be transferred in any other State unless they are promoted to the higher post. It is their say that this arrangement was made in the presence of Mr. J.J. Mehta, Chairman of Indian Petrochemical Corporation Limited (hereinafter referred to as 'IPCL') Senior Sergeant Col. N.A. Dave, Sergeant Mr. Barar and Chief Administrative officer Mr. S.H. Shah and in the presence of Mr. D.H. Bist, Inspector General of CISF and Mr. Mankodi, Chief Personel Officer of CISF. It is their, say that prior to 1972 they were serving as members of the security force in the IPCL. In 1972 the Director of CISF proposed to the management of the IPCL to amalgamate, security staff of the IPCL with CISF. IPCL informed the plaintiffs and other watchmen about this. The plaintiffs and other employees objected to such amalgamation on the ground that the employees of CISF are liable to be transferred any where in India while the employees of the IPCL are not subject to transfer. It is the say of the plaintiffs that thereafter the Director General of CISF had come to Vadodara for discussion with IPCL management. At the time of discussion, the Chairman of IPCL and other officers above mentioned were present. It is further alleged that during the said discussion it was agreed that employees of IPCL objecting to join CISF will not be transferred out of IPCL till they are promoted and reach the rank of Inspector. It is their case that an agreement was arrived at and that was published in the Journal known as 'Prerua' of I.P.C.L. Relying upon this agreement the plaintiffs had opted to join CISF and it is their case that but for this promise they would not have joined CISF. It is their contention that in view of the promise given by the Inspector General of CISF, the defendants cannot transfer the plaintiffs out of Gujarat State because of principle of promissory estoppel.

3. All the plaintiffs had filed applications Ex. 5, for interim injunction contending that if injunction was not granted the plaintiffs would suffer irreparable loss which cannot be compensated in terms of money and that the plaintiffs would be thrown out from the residential quarters allotted to them as members of the security force. The learned Civil Judge, Senior Division, granted ad interim injunction as prayed for after hearing both the parties. The said order reads as under:

Interim injunction restraining the defendants from transferring the plaintiff of each suit pending the disposal of each suit is granted. It is further directed that the defendants should not effect the transfer order or get the residential premises vacated from any of the plaintiffs pending the disposal of each suit.

A copy of this order be put in each suit and this order disposes of all the interim applications in all the suits that are referred to in the heading.

Against the said judgment and order, the petitioners preferred Civil Misc. Appeals Nos. 85 to 94 and 219 to 237 of 1983 before the District Court at Baroda. The said appeals came up for hearing before the Second Extra Assistant Judge at Baroda and the learned Judge, by his common judgment and order dated March 29, 1985 dismissed the said appeals. The learned Judge held that even though, there is no written agreement to show that the Inspector General of CISF had agreed with that those persons who were inducted from IPCL would not be transferred, yet considering the article which is published in Prerna Magazine it was clear that something must have taken place between the parties at the time of meeting and some promise must have been given and there is no reason to believe that whatever is published in Prema is absolutely false. Prerna magazine is published by I.P.C.L. and the issue of August 1972 of the said magazine mentions how the induction of security department of IPCL took place and what concessions were given to the persons who opted for joining CISF. It mentions that optees will not be posted out of Baroda and would continue with the IPCL till a person reaches the rank of Inspector. Relying upon this the learned Judge held that there would be bar of promissory estoppel and that the petitioners cannot transfer the opponents-plaintiffs. With regard to he contention of the petitioners that in view of the provisions of Section 15 of the Central Industrial Security Force Act, 1968 (hereinafter referred case or not is doubtful.) This he has observed in paragraph 17 of the judgment. The learned Judge has not at all discussed the effect of the option form filled in by the opponents or has not dealt with the contention of the petitioners that normally Civil Court should not interfere with any transfer orders.

4. At the time of admission of these matters, my learned Brother A.P. Ravani, J. passed the following order:

Rule. Ad-interim relief staying the operation of the order of stay granted by the lower Courts. The mandatory direction prayed for in para 8(B) is refused. In case the order of transfer is not obeyed by the respondent-plaintiff, it will be open to the department to take suitable departmental action. No such mandatory relief can be granted at this stage as prayed for 30-4-85.

In view of the aforesaid order passed by this Court staying the operation of the injunction order issued by the trial Court and confirmed by the lower appellate Court the opponents were relieved from service and they were directed to report at the place where they were transferred. Some of the plaintiffs refused to accept the order of movement and remained absent from duty immediately. The aforesaid ad-interim relief granted by this Court was confirmed after hearing the opponents and the applications filed by the opponents for vacating ad-interim relief were rejected by me by passing a speaking order on June 20,1985.

5. Against the said judgment and order opponents preferred Special Leave Petitions before the Supreme Court. The Special Leave Petitions were dismissed by the Supreme Court by holding that they were only against interlocutory order. But the Court observed that the Civil Revision Applications should be heard within three weeks from the date of the order and the High Court shall determine the question whether Civil Revision Application will lie under Section 115 of the Code of Civil Procedure against an order of stay or injunction granted by a Civil Court and affirmed by the first appellate Court. Thereafter these matters were placed for final hearing. But at the request of either party the matters were adjourned from time to time.

6. At the time of hearing of these revision applications, the learned advocate for the petitioners submitted that the orders passed by the assistant Judge call for interference in revision under Section 115 of the Civil Procedure Code on the following grounds:

(1) Civil Court cannot sit in appeal against transfer orders passed by administrative authority and normally Civil Court cannot interfere and grant injunction against transfer orders. He submitted that the appellate Court had flouted the law laid down by this Court in the case of Suganlal Govindram v. Western Railway and another reported in 1984 G.L.H. 581 wherein it has been held that transfer of a Government servant cannot be covered by phrase 'injury of any other kind' as contemplated under Order 39, Rule 2(1) of the Civil Procedure Code. He also relied upon the Division Bench judgment of this Court in the case of Taragauri Kalyanji v. District Panchayat, Jamnagar reported in 1984 G.L.H. 589 wherein the Court had administered caution to the civil courts not to interfere with transfer orders and the Court has deprecated the practice of staying such transfers by subordinate civil courts. He also relied upon the judgment reported in Union of India v. J.S. Bhatt reported in 26 G.L.R. 509.

(2) The learned Judge has acted with material irregularity in exercise of his jurisdiction by not referring to and relying upon binding judgment of Justice P.D. Desai (as he then was) delivered on September 1980 in Special Civil Application No. 2039 of 1980 filed by three of the plaintiffs herein against their transfer orders and by granting interim injunction in violation of the said judgment. The said Special Application No. 2039 of 1980 was dismissed after taking into consideration all the arguments advanced by the opponents.

(3) The learned Judge acted with material irregularity in exercise of his jurisdiction by not taking into consideration the fact that under Section 15(1) of the Central Industrial Security Force Act, 1968, the opponents were liable to be employed at any place within India. He further placed reliance upon Rules 66 and 70 of the Central Industrial Security Rules, 1969 (herein after referred to as 'the Rules').

(4) Both the Court failed to exercise jurisdiction inasmuch as in not taking into consideration (a) the option form signed be the plaintiffs, (b) the letter dated 6-7-72 written by the Chief Administrative Officer, IPCL to CISF stating the conditions of absorption wherein it is nowhere mentioned that security guards were not liable to be transferred.

(5) On 15-6-83 the Central Industrial Security Force Act, 1968 was amended and the security guards were considered to be 'military force'. At that time also option was given to the employees to retire and nobody had opted for retirement.

(6) Suits filed by the plaintiffs were not maintainable because no notice as prescribed under Section 21, Sub-section (3) of the Central Industrial Security Force Act, 1968 was given and, therefore, Civil Court had no jurisdiction to grant interim injunction.

7. As regards ground No. 1 it should be noted that the learned Second Extra Assistant Judge has not bothered to refer to the reported judgment of this Court in the case of Taragauri Kalyanji v. District Panchayat Jamangar 1984 G.L.H. 589. Chief Justice P.S. Poti (as he then was) speaking for the Division Bench has observed that subordinate Civil Courts take matters of transfers lightly and quite often interfere making a casual approach in passing orders staying such transfers. Governmental administration calls for transfers from time to time and it is not for the Court to sit in judgment over every transfer. The Government machinery must be allowed to play at the joints. It is not for this Court exercising jurisdiction under Article 226 of the Constitution of India, much less for the subordinate Courts in civil suits to weigh in golden scales the propriety or otherwise of a transfer as that must necessarily be left to the authority passing the order of transfer. The Division Bench has deprecated the practice of staying such transfers by subordinate courts. The Division Bench has further observed that it has become so rampant that it is time that we consider whether this does not amount to an abuse. In spite of this caution administered by the Division Bench of this Court, the learned Judge has not bothered to refer to the said decision.

8. Futher, in the case of Suganlal Govindram v. Western Railway and Anr. reported in 1984 G.L.H. 581 in a transfer matter the Court has held that 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. The Court has further held that 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. It was further held that normally 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. Inspite of the aforesaid law laid down by this Court the learned Judge has not referred to or relied upon it and has stayed the implementation of the transfer order by granting injunction.

9. The learned Judge has granted the injunction order solely on the ground that there would be promissory estoppel against the petitioners because the Inspector General or Director of CISF in his dealing with the subject with which he was authorised to deal with gave some promise under the authority of the Government and, therefore Government was bound by the said promise. For that purpose he relied upon the article published in the August 1972 issue of Prerna Magazine of IPCL. As per the said article, at the time of induction of the security staff of IPCL to CISF, concession was given that the optees will not be posted out of Baroda and would continue with IPCL till a person reaches to the rank of an Inspector. He relied upon the affidavit of Narendra Chimanlal Dave, who was working as Security Officer on June 14, 1972 in the IPCL and also of Mr. R.T. Barar who was working as Security Sergeant in the Security Division of IPCL. Both of them have stated on affidavit that on 14-6-72 an agreement was arrived at between CISF authorities and IPCL authorities that persons who were working as watchmen in IPCL will be taken in CISF and that they would not be transferred from Baroda to any other district or any other State unless the watchman reaches to the post of Inspector.

10. Now it is an admitted fact that there is no written agreement between the parties with regard to the aforesaid concession alleged to have been given by the Inspector General or Director of CISF. On the contrary on record there is a letter dated July 6, 1972 written by H.S Shah, Chief Administrative Officer IPCL to the Inspector General, Central Industrial Security Force, which deals with induction of CISF in IPCL. The relevant part for discussion is under the heading 'Posting of the Force Personnel'. The relevant part thereof is an under:

The Screening Committee should meet on or before 15th July 1972 to finalise the case of optees and all those who are selected will continue with the Force posted to IPCL. It was confirmed by you that the selected optees below the rank of Inspector will normally be posted out to any of your contingents elsewhere.

Therefore, this letter in terms falsifies the say of Mr. N.C. Dave and Mr. Barar. The learned Judge has not bothered to refer to and rely upon the said letter. He has not discussed and overlooked the said inconvenient piece of evidence. Apart from this aspect, the whole approach of the learned Judge in considering the provisions of the Central Industrial Security Force Act is nothing but perverse. The learned Judge has held that the plaintiffs cannot be said to be appointed as enrolled members of the force under Section 5 of the Act and, therefore, they cannot be said to be members of the force in accordance with the Rules made under the Act and, therefore, the provisions of Section 15(1) of the Act would not be. applicable. It is an admitted fact that under Section 15(1) of the Act every supervisory officer and member of the force, for the purpose of the Act, be considered to be always on duty, and shall, at any time, be liable to be employed at any place, within India. Rule 66 of the Central Industrial Security Force Rules provides for transfer which reads as under:

66. Transfers: Transfers of supervisory officers shall be made by the Inspector General with the concurrence of the Central Government. Transfers of the members of the Force within a battalion may be made by the Commandant and from one battalion to another in a Zone by the Dy. Inspector General and from one Zone to another by the Dy. Inspector General (Hqrs.).

Section 2(aa) defines 'Enrolled member of the force' and it says that 'Enrolled member of the force' means any subordinate officer, under officer or any other member of the Force of the rank lower than that of an under officer. In this case, along with the petition a copy of the notice dated May 15, 1972 is produced which in terms provides for absorption of security guards in the CISF. To all the plaintiffs this notice was given wherein it is stated that copies of the Central Industrial Security Force Act and Central Industrial Security Force Rules were enclosed for information and guidance. Inter alia they were asked to fill in the option form enclosed with the said notice and it was stated that the optees who get absorbed in the CISF as Inspectors or in the lower ranks will be entitled to rent-free accommodation or house rent allowance in lieu thereof in terms of the provisions of Rule 59 of the CISF Rules when deployed in the undertaking and the optees who join CISF will be entitled to all the benefits of the Central Government employees. The said option form reads as under:

OPTION FORM

With reference to the form of Notice served on me on 15th May 1972, 1 hereby give my option, to join the Central Industrial Security Force. 1 fully understand that in the event of my absorption in the CISF, 1 shall be liable to serve anywhere in India and that 1 shall be governed by the CISF Act, 1968 and CISF Rules, 1969 and any rules/regulations made therein.

My application form is enclosed.

In view of the option form it cannot be said by any stretch of imagination that the plaintiffs are not enrolled members of the force. No reason is given by the learned Judge why the plaintiffs cannot be said to be enrolled members of the force once they are absorbed by the CISF. Once they were governed by the provisions of CISF Act they are liable to be employed at any place in India under Section 15 (1) of the Act. This aspect is evidently made clear in the option form filled in by the plaintiffs. If really the Inspector General of CISF had given any assurance that plaintiffs would not be transferred, then there was no necessity of sending the option forms to the plaintiffs and for the plaintiffs also there was no necessity to fill in the said option forms. This option form falsifies the story that the Inspector General of CISF had given a promise that optees who opt for joining CISF would not be transferred or were not liable to be transferred out of Baroda district. In any case prima facie, at this stage it can be said that in view of the clear provisions of Section 15 read with Rule 66 plaintiffs were liable to be transferred and that provisions of CISF Act would be applicable to them. Therefore, on the face of it the order passed by the learned Judge is illegal and he has acted with material irregularity in exercise of his jurisdiction.

11. However, the learned advocate for the opponents vehemently submitted that this Court has no jurisdiction to interfere in revision against an interlocutory order granting or refusing to grant injunction. He relied upon the decision of the Supreme Court in the case of Hindustan Aeronatics v. Ajit Prasad reported in : (1972)ILLJ170SC . Wherein the Supreme Court has observed as under:

In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong, may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to take that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity.

It is true that it is well established law that the High Court cannot interfere under Section 115 of the Civil Procedure Code against an order passed by the first appellate Court even if it may be erroneous or it may be or may not be in accordance with law. But at the same time if the appellate Court has not considered the provisions of the Act and the Rules framed under it and that it has not taken into consideration the relevant documents produced by the parties then certainly it can be said that the appellate Court exercised its jurisdiction either illegally or, with material irregularity. It is apparent that the lower appellate Court has ignored the provisions of Section 15 of the CISF Act and has assumed jurisdiction not vested in it of sitting in appeal over transfer orders.

12. The learned advocate for the opponents further submitted that the plaintiffs have established prima facie case because of the affidavit filed by two officers of IPCL and the article published in 1972 August issue of Prerna Magazine and as against this no affidavit is filed by the petitioners or their officers. Now in this case the petitioners have produced all the relevant documents showing, as stated above, that the plaintiffs have opted and signed the option form which leaves no doubt that they knew fully well that once they opt for joining CISF they were liable to be transferred at any place within India. Therefore, the affidavits of these two persons or the article in Prerna magazine cannot be relied upon against the statutory provisions as well as against the admission made by the plaintiffs in the option forms signed by them.

13. The learned advocate for the opponents submitted that in view of the article published in August issue of Prerna magazine and in view of the affidavits of the aforesaid two persons it would be clear that the petitioners cannot transfer the opponent in view of the promissory estoppel. In my view this submission is totally ill-founded in view of the decision of the Supreme Court in the case of Jit Ram Shiv Kumar v. State of Haryana reported in : [1980]3SCR689 where it has been held that the doctrine of promissory estoppel cannot be invoked for preventing the Government from discharging its functions under law.

14. The learned advocate for the opponents further submitted that even on humanitarian ground the Court should not interfere against the transfer orders. He submitted that lands belonging to some of the plaintiffs were acquired where buildings for I.P.C.L. were constructed and at that time they were employed by IPCL. This submission of the learned advocate for the plain-tiffs was vehemently opposed by the petitioners' learned Counsel. He submitted that only lands belonging to three plaintiffs out of twenty-eight were acquired and at that time also IPCL had not given any promise that they would be kept in service at this very place. In any case, he submitted, that when they were inducted in CISF they were given option and they opted for joining service in CISF and as CISF is para military force if such injunction is granted by the civil Court then it would cause lot of hardship and there would be gross indiscipline in the force. He submitted that as per the provisions of the Rules members of the force are provided with suitable residential accommodation at the place where they are transferred. Considering the facts as they stand, (in my view), civil Court has not jurisdiction to sit in appeal against the transfer orders and, therefore, there is no question of granting any interim injunction on the humanitarian ground.

15. Apart from the aforesaid aspect of the matter, it was the bounden duty of the learned Judge to refer to and rely upon the binding decision of Justice P.D. Desai (as he then was) in Special Civil Application No. 2039 of 1980 which was filed by three of the plaintiffs. It would be worthwhile to quote the following part of the said judgment:

It would appear from what has been stated above that the question as to whether there was any agreement between the C.I.S.F. and the I.P.C.L. with regard to non-transferability of the security staff below the grade of Inspector is a highly disputed question of fact, apart from the consideration whether such agreement would be legal, having regard to Section 15 of the Central Industrial Security Force Act, 1968. The option forms signed by the petitioners themselves also indicate the condition with regard to transferability. It is significant to note that the option forms are in English language and that three of the petitioners have signed them in English, which raises a presumption that they know fully well the contents of the option forms. The respondents have also produced a copy of the letter dated July 6, 1972 addressed by the Chief Administrative Officer of the I.P.C.L. to the Inspector General of the C.I.S.F. In the said letter also it has been, inter alia, stated that the Inspector General had confirmed that the selected optees below the rank of Inspector will normally be posted out to any of your contingents elsewhere. Having regard to all the circumstances of the case, it is not possible to grant any relief to the petitioners in this proceeding on the basis of the alleged agreement.

This judgment clearly shows that in view of the option form signed by the plaintiffs the Court held that they knew fully well the contents of the option form which provided that they can be transferred at any place in India. The Court also relied upon the letter dated July 6, 1972 written by the Chief Administrative Officer of IPCL to the Inspector General of CISF wherein it has been inter alia stated that the selected optees below the rank of Inspector will normally be posted out to any of their contingents elsewhere. Even with regard to the contention of humanitarian ground the Court has observed as under:

I do not think this Court should issue such a direction in the context of a security force. If any transfer is made which is amenable to challenge on the ground of malafides or arbitrariness, that can certainly be examined, but a general direction of this kind would not ordinarily be given especially in the context of a security force. Ordinary considerations which weigh in transfer of persons borne on the regular civil staff may not always be relevant in the context of such a security force, which has to be manned on a different basis and on different considerations.

16. It is painful to note that this binding decision of this Court was not followed or relied upon or referred by the learned Judge. It is, therefore, clear that the learned Judge has acted with material irregularity in exercise of jurisdiction which calls for interference without any hesitation. It cannot be said that because lands of some of the plaintiffs were acquired they should not be transferred. Once they are absorbed as members of CISF they are bound by the terms and conditions of the service rules.

17. It is further the contention of the learned advocate for the petitioners that before the learned Judge unreported decision of the Madhya Pradesh High Court in the case of Siyaram Sharma v. Bholanath s/o. Mahadevnath Civil Revision. Application No. 116 of 1982 decided on 12-3-1982 was cited wherein the High Court dealt with a similar case and set aside the temporary injunction order granted by both the Courts below. In that case also the security staff of IPCL was absorbed in CISF and similar contentions were raised. The Madhya Pradesh High Court relied upon the provisions of Section 15 of the Act and the option form filled in by them and also relied upon the decision of Justice P.D. Desai in the aforesaid Special Civil Application No. 2039 of 1980. Surprisingly the learned Judge has not considered or dealt with it.

18. In the above view of the matter it is clear that the lower appellate Court has committed palpable error in not following the decision of Justice P.D. Desai (as he then was) and also has acted in disregard of the provisions of Section 15 of the Act. Therefore it has acted with material irregularity and/or illegality in exercise of its jurisdiction which calls for interference in this revision application. In this view of the matter, the other contention of the petitioners that as no notice under Section 21(3) of the Act was given, therefore the Civil Court had no jurisdiction to grant interim injunction, is not required to be considered or dealt with.

19. In the result, these revision applications are allowed. The judgment and order passed by the Second Extra Assistant Judge, Vadodara on March 29, 1985 confirming the injunction granted by the Second Joint Civil Judge, Senior Division, Vadodara in Regular Civil Suit Nos. 171/81, 265/81, 984/81, 41/82, 1521/82, 711/83 to 715/83, 731/83, 900/83 to 909/83, 999/83, 1000/83 to 1003/ 83, 1144/83 to 1146/83 are quashed and set aside. However, considering the facts and circumstances of the present case and particularly the fact that the plaintiffs have not joined their service at the place where they are transferred inspite of the fact that by an ad-interim injunction this Court has vacated the injunction order, the learned Judge is directed to decide the suits of the plaintiffs within three months from the date of the receipt of the writ of this Court to avoid any complications in the matter. During that time the petitioners would not take any action, against the plaintiffs for breach of the orders issued by them. Rule absolute with no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //