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Jailal Kapur Vs. Hindustan Zinc Limited - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 952/1982
Judge
Reported in1982WLN(UC)534
AppellantJailal Kapur
RespondentHindustan Zinc Limited
DispositionPetition dismissed
Cases Referred & S. P. Kapoor v. State of H.P.
Excerpt:
civil services - status--determination of--better status is determined with grade & not actual pay--held, post of chief engineer (ts) is not inferior to post of chief of planning & development (mines).;it is the grade and not the actual salary which can determine the question, whether the petitioner is in the higher hierarchy enjoying better status than shri s. ray.;a chief manager of the mines head quarters is normally the boss and top brass executive and numerical strength of staff, here and there, is irrelevant for determining his status. however, on the broad detailed and close analysis of the duties and responsibilities of the two posts and grades and over all importance of work and nature of duties, i am convinced that the post to which he has been transferred, can neither.....guman mal lodha, j.1. jialal kapur, the petitioner, is in employment of hindustan zince limited, udaipur. he was posted as chief of planning and development (mines) on february 5, 1973 and his service were terminated on february 6, 1974. the termination of services was challenged by the writ petition but, the writ petition was ultimately dismissed as withdrawn and the special appeal filed was also rejected.2. the petitioner then filed a suit which was decreed by the district judge, udaipur, on may 24, 1980. the order of determination was quasded and, ceciared void and, the following order was passed:the suit of the plaintiff against the defendant no. 1 is dismissed but it is, however, decreed against the defendant no.2 and with costs and it is further ordered as follows:(1) the order of.....
Judgment:

Guman Mal Lodha, J.

1. Jialal Kapur, the petitioner, is in employment of Hindustan Zince Limited, Udaipur. He was posted as Chief of Planning and Development (Mines) on February 5, 1973 and his service were terminated on February 6, 1974. The termination of services was challenged by the writ petition but, the writ petition was ultimately dismissed as withdrawn and the special appeal filed was also rejected.

2. The petitioner then filed a suit which was decreed by the District Judge, Udaipur, on May 24, 1980. The order of determination was quasded and, ceciared void and, the following order was passed:

The suit of the plaintiff against the defendant No. 1 is dismissed but it is, however, decreed against the defendant No.2 and with costs and it is further ordered as follows:

(1) The order of termination passed by the defendant no. 2 on 6th February, 1974 was illegal & void and as such, it was ineffective as against the plaintiff.

(2) The plaintiff will be deemed to have continued in service of the defendant No. 2 and as such, he shall be immediately reinstated on the same post on which he was working on 6th February, 1974 and he shall be entitled to claim all salaries and other benefits from that particular date till he joins back his duties.

(3) The plaintiff has filed the suit for grant of damages amounting to Rs. 1,00,000/- also but since his termination has been held to be void and his reinstatement has been ordered as such he shall be entitled to claim his salary and all other benefits and as such, if they happen to be m are than Rs. 1,00,000/- then he shall pay proportionate court fees on the excess amount received by him.

3. The petitioner joined duty of 4th August, 1980 as Chief of Planning and Development (Mines) in pursuance of the order dated 2nd August, 1980. Vide order (Ex./Ann. 1) dated the 28th April, 1982, the impugned order, the petitioner has been transferred to Rajpura-Dariba Mires as Chief Manager (TS) & he was ordered to move first for the transfer post and this transfer has been challenged in this present writ petition.

4. The petitioner has made the following prayer:

By an appropriate writ, order or direction the order of transfer of the petitioner dated 28.4.1982 (Ann. 1) may be declared illegal and quashed.

Further by an approprite writ, order or direction the respondent may be forbidden to give to the said order and if any order of tranfer is given effect to during the pendency of this writ petition, the same may be quashed and the respondent may be directed to put back the petitioner on the same post as if the order of transfer has not been made with all consequential benefits in regard to pay, emoluments etc.

5. The case of the petitioner is that the consequences have ensued on account of the transfer. According to the petitioner, if his services has not been terminated, he would have been the first person to be appointed by promotions as Deputy General Manager and that might have been way back on 1st of May, 1974. When after the reinstatement in service, the petitioner was not given his due as per the decree passed dy the District Judge he was constrained to file an execution application in the court of the District Judge, Udaipur, which is pending for consideration there.

6. The petitioner further submitted that filing of an execution application became the turning point in the case and this enraged those in power in the organisation of the respondent company. This would have particularly created apprehensions in the minds of Sarva Shri M. Dutta, H.V. Paliwal, D. Lahiri and S. Ray over whom the petitioner was making a preferential claim in the matter of appointment as Deputy General Manager and this was the reason why the transfer order (Ann/1) was made and consequently he was placed under the direct subordination of Shri S. Ray, a person junior to him by at least four years.

7. The petitioner averred that the petitioner has been placed under Shri S. Ray who is at present drawing a pay packet less than that of the petitioner As per the petitioner's averments made in writ petition. S. Ray is drawing a salary of Rs. 2,650/- whereas he is drawing a salary of Rs. 2,700/- and Rs. 75/- by way of personal pay, which is not being controverted by the respondent.

8. It was further submitted that that the transfer has resulted in the status of the petitioner being reduced substantially, because the post to which he has been transferred is of a much lower cadre & status than the post which the petitioner is holding. The petitioner was origiaally a Unit Head from 1969 year onward and now he is being asked to work under a Unit Head, i. e., Shri S. Ray.

9. Shri M.Mridul, the learned Counsel, appearing on behalf of the petitioner, contended that the order of transfer is malafide and is arbitrary and has resulted in lowering the status of the petitioner.

10. Shri Mirdul contended that the post of Deputy General Manager was required to be filled in by promotion under scheme, which was challenged before this Court in S.B. Civil Writ Petition No. 1765/81 by the petitioner and, a stay order restraining the respondent company for making appointment to the post of Deputy General Manager by direct recruitment was passed by this Court. Shri Mridul submitted that atleast three persons, namely, Shri H.V. Paliwal, Shri M.Dutta, and Shri D.Lahiri, were given appointment by promotion and it is only for knocking out the claim of the petitioner for this purpose that the post was sought to be filled in by direct recruitment while the claim of the petitioner was still there.

11. Shri Mridul further argued that the respondent appears and, in the first nstance, it was contended that the scheme being relied upon by the petitioner to show that the post of Deputy General Manager could not be tilled by direct recruitment, has not received the approval of the Board. When the respondent was directed to file an affidavit in this behalf a complete somersault was taken and an amended scheme was post-haste approved The fact that the scheme approved has been amended, was brought to the notice of this Court at the lime of argument in S B. Civil Writ Petition No. 1765/81, and same has been dismissed as having been rendered infiuctuous and, ultimately it was decided that it should be filled, in by the direct recruitment.

12. The respondents have controverted the above contentions of Shri Mridul. According to Shri H.M.Parekh, the learned Counsel for the respondent, the transfer is an administrative edgency and the present case falls in that category. Shri Parekh pointed out that general and vague allegations of malafide cannot be adjudicated unless individuals are named and they are made parties to reply the allegations of malafides. It was then argued that it appears that whole controversy raised in this writ petition relates to whether the decree granted by the District Judge would result in giving him re rospective promotions and for this, the petitioner has already filed an execution application and the same is being considered by the Executing Court. Whether the contention of the Management would be accepted there or that of the petitioner, would depend upon the interpretation of the decree and the adjudication which would be done by the District Judge. However, this Court cannot become an executing court for that decree and decide, the questions which are being convassed debated and discussed there before the District Judge.

13. Shri Parekh submitted that the transfer has been done in the usual course when 13 officers were transferred and the petitioner was only one of them. Again on 1st May, 1982 vide Ex.Rule/1,20 officers were transferred in Smelters' Wing. In all, about 136 officers have been transferred from 1st January, 1980 to 15th June, 1982.

14. Mr. Parekh contended that these transfers were made on the administrative exigencies and they are not justiciable before the court as such transfers cannot be challenged. The reliance was placed on the following decisions- Shantikumari v. Reg. Dv. Dire. Health Services Patna : (1981)IILLJ312SC ); Shambhu Dayal v. Union of India 1982 SLR 181 (DB): E.P. Rayappa v. State of Tamilnadu : (1974)ILLJ172SC ; Ghisulal v Union of India and Ors. (S.B.Civil Writ Petition No. 1041/81, deeded on December 4, 1981) V.B. Laxmeshwar v. Dy. Chief Auditor 1981(1) SIR 727 Dinkar Shanker Rao v. State of Madh. Pra. (1981(1) SLR 848) Jogenara Mohanty v. State of Orissa 1979(1) SLR 892 KB Shukla and Ors. v. Urion of India 1979(2) SLR 58 Ilyas Ahmed v. Station Director All India Radio and Anr. : AIR1974All471

15. Mr. Parekh then controverted the allegation that, the status should be reduced by the transfer. He pointed out that the petitioner is in the grade of Rs. 1910/-. Rs. 2600/-. whereas Shri S. Ray is in the higher grace namely Rs. 2 50/-. Rs. 2750/-. Shri S.Ray is therefore, holding higher post. Shri Ray is Deputy General Manager and now designated as General Manager and the petitioner is Chief Manager.

16. Mr. Parekh submitted that the submission of Shri Mridul that his client is senior to Shri S.Ray, Shri ML Dutta, Shri H.V. Paliwal, is a flight of imagination and the decree of the District Court never contemplates this in any case. Mr.Parekh submitted that this particular aspect of the controversy is being considered by the District Judge as it is under serious contest in executing proceedings and would be adjudicated there in due course.

17. It was then pointed out that Shri Mridul's contention that, the post of Chief Manager (Technical Services). Rajpura Dariba Mines is inferior to that of the General Manager. Mines, at Headquarters, is equally baseless and untenable being unfounded. Both these posts are in the same cadre and in the same grade and are carrying the same status. The salary and the benefits are the same and there is no difference between two posts.

18. Contrary to it, Shri Parekh pointed out that the services of Chief Manager (Technical) Rajpura Dariba Mines where the petitioner has been transferred, carry greater executive and administrative powers and responsibilities. The petitioner will be in charge of his work (technical services) and will have under his control about 16 executive officers of the grade ranging from Rs 800-1400 to Rs. 1650-2250/-. According to Shri Parekh, this project is going to be commissioned in September or October, 1982 and it would be valued of about 72 crores. The petitioner will then have 26 officers under him and he will be required to discharge the important duties to have the work of plan implementation of the project and, be will have to file the detailed project report of development work including diamond drilling.

19. In contradistinction to the above, high responsibilities of the post, where the petitioner has been transferred, his earlier post of Chief Manager (Mines) Head Quarters is the project of consolidation of reports received from various mining units with a view to prepare the reports for miring activities to be put before the Director (Mining Operations) and assist him in processing files and papers of Units in different departments. His staff consists of only one stenographer and there are no executive officers under him except to junior officers who again are directly under the Director and only sometime they assist the petitioner. It was pointed out that these allegations have not been disputed in the rejoinder and, therefore, it is clear that the post of General Manager (Technical-services) at Rajpura Dariba Mines is not of lower status & the submissions made by Shri Mridul are not tenable.

20. Shri Parekh then challenged the contention regarding the malafides and termed then as unfounded. In this respect, Shri Parekh referred to the earlier history of the litigation. Shri Parekh submitted that the most important prominent point is the history of his termination of his services on account of bias of one Shri A.N. Banerjee by the order dated the 6th February, 1974. Petitioner's writ petition, appeal & special appeal before the Supreme Court he remained unsuccessful and subsequently by filing a civil suit where he has succeeded in obtaining a decree of his re-instatement on 24th May, 1980 which is pending for execution It will not be out of place to submit that according to that decree, the respondent has fully complied with and paid the benefits to which he was entitled according to the decree as understood by the respondents, and he was reinstated. Still the petitioner, for the reasons best known to him, put the decree into execution and, the respondents are contesting the execution, which they consider to be unfounded. This can be, by no case, considered to be a factor of malafide and termed as malafide. The respondent, as a free citizen, has equal right to contest a proceeding which according to him is not warranted oy law. It has been further submitted that the respondent claims that the petitioner could not be senior to Shri S. Ray, Shri M. Dutta and Shri H.V. Paliwal etc. because of the construction he has put on the decree, it will suffice to submit mat the matter is pending before the executing court and this cannot be a factor to show any element of malafides and is wholly unsustainable for the purpose.

21. Shri Parekh then contended that it was strange that the petitioner withdrew his writ petition No. 1765/1981 and, now he wants to base the allegation of malafides on its basis. What is alleged is, that the respondents amended the cadre scheme. The respondents were fully justified, and it was within their powers to amend the cadre scheme and the very fact that the petitioner withdrew the writ petition shows that there was no substance in the writ petition and that cannot be a factor of malafides.

22. Yet another factor alleged for bias according to Shri Parekh is, that Shri A.N. Banerjee was biased against the petitioner & he because of the malice terminated his services on 6th February, 1974. Suffice it to say that Shri A. N. Banerjee has left the respondent's service as far back as in the year 8976 and he is no more in the services of Hindustan Zinc Limited and, therefore, the alleged bias of Shri A.N. Banerjee cannot be taken into consideration.

23. Shri Parekh then pointed out that a heavy responsibility lies on the petitioner alleging malafides & a very heavy burden lies on him & specific allegations have to be made against specific persons in order to prove malafides. The allegations which the petitioner had made cannot be said to be specific by any stretch of imagination and cannot show any malafides.

24. In support of the above contention, Shri Parkeh referred to the decisions in E. P. Rayappa v. State of Ramiladu (1274 (1) S.L.R. 497 (SC) H.N. (H) where in it has been held that a very heavy burden lies on the petitioner to prove malafides & vague allegations cannot prove it. Specific allegations must be made against specific persons. Another decision of the Supreme Court in Tara Khatri v. Delhi Municipality (AIK 77 SC 567) relied upon by Shri Parekh, wherein their Lordships of the Supreme Court observed that unless definite allegations of malafides are made, no investigation can be made into the question of malafides.

25. Placing reliance upon the decision of Division Bench of this Court in Shambhu Dayal Kureel v. Union of India(DB) 1982 R.L.R. 181 H.N. 'B' Shri Parekh argued that the Division Bench of this Court also has reiterated the same proposition that specific allegations must be made against specific persons, regarding malafides and a very heavy burden lies on the petitioner to prove it.

26. Lastly, it was pointed out by Shri Parekh that these transfers vide Ex. 1 have been effected by the Chairman cum-Managing Director, Hindustan Zinc Limited and have been conveyed by the General Manager (Personnel) Hindustan Zinc Limited. It was further averred that there is no allegation of bias against the Chairman or even the General Manager who has communicated the order. Thus, the case of malafides is an attempt to smuggle in a factor so as to make cut a prima facie case for interference in simple routine matter of transfer on account of administrativee xigencies.

27. Yet another objection raised by Shri Parekh was that the relationship between the petitioner and the respondent is contractual and therefore, Articles 14 & 16 have got no application.

28. Shri Mridul tried to meet the above objection of Shri Parekh, in addition to the contentions which I have already referred in the very beginning of this judgment; by submitting that the malafides being a state of mind can seldom be proved by the direct evidence but it is drawing inference from the attitude and/or the circumstances that this can be known. Shri Mridul also denied and controverted the submission of the respondent that the petitioner is in the habit of indulging in litigation and the respondent cannot help it.

29. Shri Mridul further averred that the petitioner had to file a writ petition before this Court when his service were terminated. When his writ petition was rejected, he had to prefer an appeal to the Division Bench and on that being dismissed he had to file a special leave petition before the Supreme Court. When that also did not bring the desired result, the petitioner had to file a suit. All this is described as a case of a person indulging in litigation? Was the petitioner expected to suffer termination of his service quietly? Besides this, the only litigation in which the petitioner had to enter was the one when illegal appointments were sought to be made to the post on which the petitioner was making a claim. If the respondent was so sure that the action being taken by it was absolutely correct, then why did it choose to change the scheme in the midstream The petitioner has narrated the circumstances which compelled him to file the writ petition, in para 12 of the present writ petition, which have not been refuted, as per Shri Mridul's averments. In face of these circumstances, the most unbecoming and uncultured picture as set out in para 8 of the first reply goes a long wav to show as to how the respondent is behaving in the matter, argued Shri Mridul.

30. Shri Mridul further invited my attention to the averments made by the respondent, and averred that the respondent has shamelessly said in para 8 of its first reply,' In fact, as submitted by the petitioner, he had also filed earlier writ petition against the respondent being S.B. Civil Writ Petition No. 1765/1981 and he ultimately remained unsuccessful'. While saying so, the respondent has shamefacedly not told the court that the writ petition became unsuccessful because the respondent, taking advantage of the adjournment, changed the very scheme, argued Shri Mridul.

31. Shri Mridul further contradicted the averments made by the respondent in its reply that the allegations made by the petitioner are vague and, secondly, the petitioner has not named the person who, according to him, might be actuated by malice. According to the Mr. Mridul, it is not always that direct evidence can be found of a particular person acting malafide, against another person, and the matter is to be inferred entirely from circumstances. In this context Shri Mridul submitted that in such a case, the case, of a person cannot fail merely because reference has not been made to the particular person being actuated by malafides nor can the case fail on account of such person not being joined as party to the petition. In support of this contention. Shri Mridul relied upon the decision of the Supreme Court in State of Punjab v. Ramjilal the respondent : 1971CriLJ28 , wherein their Lordships held as under:

Where validity of action taken by the State Government is challneged on the ground that action was malafide then to establish malafide, it is not necessary for the party alleging malafide of State action to prove that any named officer or officers was or were responsible for that officials act. The law does not cost any such burden upon the party challenging the validity of the action taken by the State Government. The State Government has undoubtedly to act through its officers. What matters were considered, what matters were placed before the final authority and who acted on behalf of the State Government in issuing the order in the name of the Governor, are all within the knowledge of the State Government. It would be placing an intolerable burden of proof in a just claim to require a party alleging malafides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose.

32. Lastly, controverting the submissions of the respondents, Shri Mridul averred that, all that the respondent has said by way of reply is that the order of transfer has been made in administrative exigency without saying a word as to what the administrative exigency was. To be specific, it has not been said as to why it became necessary to put the petitioner under a person who is at present drawing less salary than what the petitioner is drawing and, on a post in which the work is almost negligible. Looking to the above position, the case of malafides has been clearly made out, argued Shri Mridul.

33. Yet another submission of Shri Mridul is that the impugned transfer is a case of lowering the status of the petitioner. In support of this submission, Shri Mridul placed reliance upon the decision in E.P. Rayappa, the appellant vs. State of Tamilnadu, the respondent (supra : (1974)ILLJ172SC ) wherein their Lordships of the Supreme Court observed that, if a transfer order results in lowering of status then a complaint about the same can certainly be made Of course while saying so the court observed that in the case which the court was deciding it had not been proved that a case of transfer being effected on she post of lower status had been made ont, submitted Shri Mridul.

34. Reference was also made the following decisions by the learned Counsel for the petitioner C Ramanathan v. Acting Zonal Manager Food Corporation of India 1980 (1) S. L.R. 309; P. Pushpakaran v. Chairman Coir Board Cochin and Anr. 1979 (1) S.L.R. p. 309; N.N. Singh and Ors. v. Gen. Manager Chitranjan Loco Works 1973 (1) S.L.R. 1153; Dr. (Smt.) Pushpika Chatterjee v. State of West Bengal 1972 S.L.R. 910 & S. P. Kapoor v. State of H.P. AIR 1981 S.C. 2181.

35. In view of the prolonged litigation and varied detailed submission of the petitioner and the respondent, I have given a serious and thoughtful consideration to the above rival contentions and the material placed on record by both the parties and the decisions referred to above.

36. The first question to be considered is, whether the petitioner would be placed on lower status on account of this impugned transfer. A careful analysis of the above facts would reveal that the petitioner is in the grade of Rs. 1900-2600/- whereas Shri S. Ray, under whom he has been transferred is having a higher grade of Rs. 2250- 2750/-. In my considered opinion, the actual salary, which one gets, cannot be the sole criteria for determination of status because that can depend upon the length of service. A lower division clerk having put up long tenure of service may get more than an upper division clerk which has been recently appointed to start with. The same applies to all caders in all services. It is the grade A not the actual salary which can determine the question, whether the petitioner is in the higher hierarchy enjoying better status than Shri S. Ray. In my opinion, it is not possible to accept the contention of Shri Mridul that the petitioner is enjoying a higher status than S. Ray even though he is in lower cadre simply because he gets more salary on account of his old service tenure.

37. Closely connected with this is second limb of submission is that he is senior to many other persons including Sarva Shri S. Ray, M. Dutta, H.V. Paliwal on account of the decree passed by the District Judge, Udaipur in a civil suit. The decree passed by the District Judge is pending under due consideration in execution proceedings. It is serious controvery in the execution proceedings whether the reinstatement is meant to give him retorspective promotions over all those promotiont who have been promotea during this period and, whether the promotions could have been given to him even if he would have been in service, because it all depends upon criteria of the promotion and fulfillment of that criteria with which this court is not posted with full facts. 1 am, therefore, of the opinion that during the pendency of the execution proceedings, it would not be proper and fair to either of the parties to decide this issue in writ proceedings, whether on account of the decree passed by the District Judge, the petitioner would be treated as having received automatic promotion and having become senior to Sarva S. Ray, Shri ML Dutta, and H.V. Paliwal etc., As already stated, it would depand on a particular type of factors and circumstances and, involved facts and criteria for promotions which would in their turn require an examination of the service record of all these persons, even if it is held that the petitioner was entitled to be considered for promotion during the period he was not in service but for which he has been reinstated. This much will have to be admitted that the decree in terms no where declares or directs that the petitioner would be treated as senior to Sarva Shri S. Ray, M. Dutta, and H.V. Paliwal and others and, would be given promotions on the basis of which Sarva Shri S. Ray, M. Dutta & H.V. Paliwal etc., have been promoted during this entire period. I also find substantial force in the submissions of Shri Parekh that the post of chief Manager (Technical Service) Rajpura Dariba Mines cannot be treated as perse inferior to the post of General Manager (Mines) Head Quarters Both the posts are of the same cader and the same grade namely, Rs. 1900 2600/-. Though it would be improper to finally decide, whether the administrative powers and responsibility of one post or the other post are equal or, more Yet prime facie, so fur as the writs jurisdiction is concerned, material placed before this Court shows that the administrative powers and responsibilites of the post of Chief Manager Technical Services Rajpura Dariba Mines, where the petitioner has been transferred, is, in no way, inferior. As shown by the respondent-management, the petitioner will have 16 executive officers of senior grade under his control and supervision and, the mines when commissioned in September and October, 1982 would involve a project of about 72 crores value. The assignments of the petitioner for preparing plans for implementation of the project and detailed project reports for development of work including diamond 'drilling' etc., can, in no way, be treated less important than of that post, namely, Chief Manager Mines, Head quarters. The Chief Manager (Mines) Head quarter is not required to do anything more than consolidation of the reports received from the various mining units for the preparation of the report for mining activities to be put before the Director and to assist him in processing of files and papers of units in different departments.

38. I do not attach much more importance to the submission of Shri Parekh that Chief Manager (Mines) Head Quarter has got limited staff of only one stenographer and junior officers who are directly under the Director and occasionally assist the petitioner and, there are no executive officers. This, according to me, is over simplification by Shri Parekh. A Chief Managar of the Mines Head Quarters is normally the boss and top brass executive and numerical strength of staff, here and there, is irrelevant for determining his status. However, on the broad detailed and close analysis of the duties and responsibilities of the two posts and grades and over all importance of work and nature of duties. I am convinced that the post to which he has been transferred, can neither be treated as lower in rank or status, to the post from which he has been transferred, nor it can be said that Shri S. Ray is lower in status to the petitioner and he would be required to work under him inspite of enjoying higher status.

39. In view of the above short but, precise analysis of the controversies raised in this respect, I am not inclined to deal with each & very submission made by the rival parties in this respect and, I held that the transfer of the petitioner would not result in lowering down his status or rank, nor it would result in putting him under an officer of lower status.

40. Now remains the question of adjudication, whether the transfer is had on account of it being malafide The various decisions referred to by Shri Mridul need not be extracted in extenso because, though there can be malafi-des both in fact and in law, yet even for drawing inference of malafides in law, the facts will have to be screened add scrutinised. Much emphasis has been led by Shri Mridul on the history of the litigation and, from that he wants this Court to draw inference that the transfer was a sort of biased action to teach the petitioner a lesson for challenging the actions of the management in the court of law and obtaining a decree against them. Undoubtedly, the allegations of Mridul cannot be termed as frivolous or vexatious because in the civil court, where a decree has been passed, it has been held that Shri A.N. Banerjee, earlier boss, who terminated the services of the petitioner earlier was biased against the petitioner but, it is not in dispute that Shri A N. Banerjee left the services of the respondent-management in the year 1976 and he is no more in service of the respondent-management. That being so, there cannot be any presumption or inference that the present management has inherited or taken in succession the bias or malice which Shri A.N. Banerjee had with the petitioner. In my opinion, each individual acts in his own way, unless there are definite allegations & proofs of the malice against the present management nothing turns upon what has been proved against Shri A.N. Banarjee in the civil suit.

41. The next circumstance to be considered is, that two writ petitions which were filed in the High Court; in the first one, it is admitted case that the writ petition was dismissed and the special appeal also was ultimately dismissed and that resulted in filing of the civil suit. That being eo, nothing turns upon the earlier litigation of the first writ petition. The civil suit filed by the petitioner has resulted in decree and the respondents have reinstated the petitioner without challenge to the decree in the High Court by way of an appeal. It may be that the respondent might have been legally advised that there is no merit in challenging the decree by way of filing the appeal before the High Court &, normally, it must be assumed to be so. But even then prima facie, non filing of the appeal and re-instatement of the petitioner in pursuance of the decree passed by the District Judge, certainly goes to show that the respondents have not acted maliciously by harassing the petitioner by dragging him in appellate court. True it is that the execution is being contested in some other respect and controversy is going on but unless that controversy w Skated finally, it would be premature to say that the contest in the execution proceedings for other relief by the respondent is frivolous or vexatious or malicious.

42. Another litigation between the parties related to the second writ petition which was filed &, subsequently, dismissed as having, become infructous. Shri Mridul has taken the exception to the sudden change of stand during the pendency of the wit petition. The controversy was in relation to appointment to the post of Deputy General Manager. The petitioner filed a writ petition being S.B. Civil Writ Petition No. 1765/981 and got an order restraining the respondents from making the appointment to the post of Deputy General Manager by directed recruitment. The grievance of shri Mridul is that during the pendency of the writ petition an amended scheme was approved in haste so as to knock down the claim of the petitioner made in the writ petition and the writ Petition was made infructuous. The respondents, on the contrary, submitted that so far as the amendment to the cadre scheme is concerned it was for the management to decide and, from the amendment in the cadre scheme, no inference of malafides can be drawn.

43. In my opinion, it all depends upon the facts and cricumstances of each case but, it is difficult to understand as to why the writ petition was withdrawn or got dismissed having become infuictous when the petitioner was of the view that this was being done malafide. It is difficult to appreciate why the petitioner did not amend the writ petition and straight away attack the scheme as a malafide attempt to oust him from the zone of consideration for the post of Deputy General Manager, if the petitioner could not assert at that time, that it was a malafide act, I find it too difficult to accept it now as a malafide attempt in a post mortem to be done at this stage on the basis of the scanty material on record. It would have been proper and appropriate for the petitioner to have attacked the alteration of the cadre scheme as malafide when the issue was alive rather than to suffer it by getting writ dismissed and now challenging it as a link or chain for establishing malafides.

44. It has come on record that the transfer of the petitioner was not an isolated act but it was one of many. It has not been established on record that there is anything unusual about this transfer &, that any individual officer connected with transfer did it malafide having any malice or bias against him. In fact, the petitioner has not come with the case of individual malice and even during the arguments. Shri Mridul submitted and rightly so, that when individual malice or bias is not alleged, it is not necessary to make them as party in the case and the petitioner can succeed if he is able to show that a chain of event or orders proves malice or malafides in law.

45. In my considered opinion, the claim of malice, in the instant case is based on many assumptions and those assumptions are based on expected decision of the executing court. As already stated, it is premature to hold that the petitioner before senior and will be deemed to have been promoted to all including Serva Shri S. Ray, H.V. Palliwal, M. Dutta, D. Lahari etc., Since I (sic)ot have been able to persuade, myself, to accept the contention of Shri Mridul at this stage that the petitioner is senior in rank, status office, post and grade to the above four officers, namely Sarva Shri S. Ray, H.V. Palliwal, M. Dutta, and D. Lahari, the entire bedrock and foundation of the writ petition based on the grievance of lowering down of status, suffering of humiliation and jeopardising the further prospective on account of the transfer promoted and motivated due to malice, bias and consequent malafides, I have gat no hesitation in holding that the transfer of the petitioner has been done as an administrative exigency and the management was within its power to transfer him from one post to the other, without demoting him and degrading him.

46. It is, however, expected that if the execution of the decree of the civil court results in putting the petitioner on senior post to Sarva Shri S. Ray, H V Palliwal, M. Dutta and D. Lahari, then the respondent would immediately revoke the transfer and post the petitioner on a suitable post.

47. With the above observations, I find that though, the petitioner has got a woeful tell to tell on account of his earlier termination and, subsequent reinstatement through the process of law, but so far as the present controversy is concerned, the petitioners grievances are more presumptive in nature than the real and, in any case, are not such which can fall in the category of infringement of any legal light or being vitiated by malafides and consequently, this Court cannot grant him any relief.

48. The history of litigation is unfortunate through out and the fact that, no relief can be granted by this Court may also be unfortunate for the petitioner but, the jurisdiction under Article 226 of the Constitution has got its own fetters and limitations.

49. The result is that, this writ petition is dismissed subject to the above observations. No order as to costs.


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