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Ranjit Ghosh Vs. Hindusthan Steel Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 530 of 1969
Judge
Reported inAIR1971Cal100,75CWN721
ActsConstitution of India - Article 226; ;Code of Civil Procedure (CPC), 1908 - Order 19, Rule 1 - Order 39, Rule 1
AppellantRanjit Ghosh
RespondentHindusthan Steel Ltd. and ors.
Appellant AdvocateArun Kumar Dutt, ;Sushil Kumar Biswas and ;Bhagabati Prosad Banerjee, Advs.
Respondent AdvocateNani Coomar Chakraborty and ;Pasupati Nath Chunder, Advs.
DispositionAppeal allowed
Cases ReferredState of Uttar Pradesh v. Singhara Singh
Excerpt:
- .....justice as alleged or at all and on ultimate analysis it would appear that the plaintiff had filed a supplementary affidavit-in-reply affirmed on the 19th march, 1969, in reply to the supplementary affidavit-in-opposition affirmed on the 17th march, 1969 on behalf of the defendants and accordingly it cannot be urged that the plaintiff had no opportunity of meeting the points raised in the supplementary affidavit-in-opposition filed by the defendants. mr. chakraborty in this context further submitted that the impugned order dated the 22nd march, 1969 was not based only on the materials disclosed in the said supplementary affidavit but also on the materials already adduced in the course of the trial. in support of his contention mr. chakraborty referred to several cases viz., the.....
Judgment:

N.C. Talukdar, J.

1. This appeal is at the instance of the plaintiff against an order dated the 22nd March, 1969 passed by Sri A. N. Banerjee, Judge, Second Bench, City Civil Court, Calcutta, in Title Suit No. 821 of 1968, rejecting the plaintiff's application for temporary injunction and vacating the interim order for the same.

2. The facts leading on to the appeal can be put in a short compass. The plaintiff who was, at the material time, employed as the Sales Manager, Hindusthan Steel Limited at its Calcutta Office, instituted a suit for a declaration that the order dated the 2nd November, 1968, issued by the defendant No. 1, Hindusthan Steel Ltd. over the signature of Mr. A.E. Antony for the Chief Personnel and Manpower, transferring the plaintiff from Calcutta to the post Joint Chief (Administration) at Ranchi is illegal, mala fide and without authority of the law and also for a permanent injunction restraining the said defendant and three others from giving effect to the said order of transfer and transferring the said plaintiff from Calcutta to Ranchi. An application praying for a temporary injunction was filed on the 20th December, 1968 and on the 21st December, 1968 a Rule was issued by the court calling upon the defendant to show cause. An order for interim injunction was also passed, restraining the defendants from giving effect to the purported order of transfer in question and from proceeding any further in the matter till the disposal of the Rule or until further orders. The defendants put in appearance and filed objection to the temporary injunction. Another application was also filed by the plaintiff alleging that in violation of the order of ad interim injunction the defendants had disconnected his telephone and were not allowing him to join his post at Calcutta. The learned Judge, Second Bench, City Civil Court. Calcutta, by his order dated the 22nd March, 1969 rejected the application for temporary injunction filed by the plaintiff and vacated the interim order granted in his favour and further rejected the petition filed by the plaintiff for proceeding against the defendants for the violation of the order of interim injunction. This order has been impugned and forms the subject-matter of the present Appeal.

3. Mr. Arun Kumar Dutt, Advocate (with Messrs. Sushil Kumar Biswas and Bhagabati Prosad Banerjee, Advocates) appearing in support of the Appeal, on behalf of the appellant, made a threefold submission. The first contention of Mr. Dutt is that the purported order of transfer is but a mere intimation to the plaintiff to the effect that a proper order would be made subsequently and is not a valid order of transfer passed by a competent authority. Mr. Dutt referred in this context to the decision of the Supreme Court in the case between the Hindusthan Brown Boveri, Ltd. v. Their Workmen, (1968) 1 Lab LJ 571 (SC) wherein Mr. Justice J. M. Shelat delivering the judgment held, in the facts of that case, that the power to pass an order of dismissal and of the lesser punishment in lieu of dismissal are both vested in the company and not in any of its other authorities and that in the absence of a delegation it is the company and not the Works Manager who can exercise the power of punishment under the standing orders 23 and 27. Mr. Dutt next contended that the order impugned is vindictive and mala fide and as such is not maintainable in law. The third and last submission of Mr. Dutt is that the procedure adopted by the learned Judge in disposing of the application for temporary injunction by relying on materials disclosed in a supplementary affidavit by the defendant after the arguments were over on the 15th March, 1969 has been in contravention of the principles of natural justice. Several decisions were cited by him on the aforesaid points.

4. Mr. Nani Coomar Chakraborty, Advocate (with Mr. Pasupati Nath Chun-der. Advocate) appearing on behalf of the respondents Nos. 1 to 3, joined issue. Mr. Chakraborty contended in the first place that the order of transfer is quite a valid order passed by a competent authority and in this context he submitted that the function of transferring an officer is that of the employer and not of the employee and the latter has no right, far less a legal right, to institute a suit excepting in a case where there is apparent mala fide--Mr. Chakraborty next contended that the order is neither vindictive nor mala fide and the allegations at their highest, as incorporated in the plaint, relate to Mt. Subramanium only, ruling out the present allegations of mala fides made out belatedly. Mr. Chakraborty submitted in this connection that the plaintiff having suffered no prejudice, there is no case for injunction and in any event, the plaintiff having submitted to the order of transfer, he should not be allowed to challenge it subsequently, approbating and reprobating at the same time. In support of this contention the learned advocate referred to the office order dated the 2nd November, 1968, marked as annexure 'A' to the affidavit-in-opposition filed by the respondent No. 1 in the application for injunction in the court below wherein it has been clearly stated that the appellant was to be posted to the head office at Ranchi as Joint Chief (Administration) 'on the existing pay and scale of pay'. Mr. Chakraborty next submitted that on merits also no injunction should be granted because there has been no violation of any legal provision or any mala fide and that injunction being an equitable relief it is not available to the plaintiff who had not been diligent in prosecuting the suit. As to the objection taken by Mr. Dutt relating to the procedure followed, Mr. Chakraborty contended that there has been no contravention of the principles of natural justice as alleged or at all and on ultimate analysis it would appear that the plaintiff had filed a supplementary affidavit-in-reply affirmed on the 19th March, 1969, in reply to the supplementary affidavit-in-opposition affirmed on the 17th March, 1969 on behalf of the defendants and accordingly it cannot be urged that the plaintiff had no opportunity of meeting the points raised in the supplementary affidavit-in-opposition filed by the defendants. Mr. Chakraborty in this context further submitted that the impugned order dated the 22nd March, 1969 was not based only on the materials disclosed in the said supplementary affidavit but also on the materials already adduced in the course of the trial. In support of his contention Mr. Chakraborty referred to several cases viz., the case between Canara Banking Corporation Ltd v Vittal (U), (1963) 2 Lab LJ 354 (SC) wherein the Supreme Court held that the order of transfer of a clerk made by the bank should ordinarily be presumed to be proper unless it is proved that it was mala fide or by way of victimization, or because of some ulterior motive, not connected with the business interests of the bank; the case between Lachman Das v. Shiveshwarkar. wherein the Court held that the question about the transfer of an official is primarily for the authority concerned and the court can only interfere if the transfer is violative of any legal provision or is otherwise mala fide; the case between Mangal Prasad Verma v. Bihar Co-operative Marketting Union, Ltd., (1970) 1 Lab LJ 181 = (1969 Lab IC 788 (Pat)) wherein the Patna High Court held that no injunction either permanent or temporary can be issued by the court in suit for the enforcement of the personal contract of service; and the case of Gopaul v. Union of India. : (1968)ILLJ584SC wherein it was held that the transfer of the party aggrieved to a post carrying the same scale of pay and rank but not the status of being a head of department, does not amount to reduction in rank.

5. Affidavits were duly filed. An affidavit-in-opposition affirmed on the 19th February, 1970 was filed on behalf of the respondents Nos. 1 and 2 and an affidavit-in-reply affirmed on the 20th April. 1970 was filed on behalf of the plaintiff. In course of the arguments. Mr. Dutt, appearing on behalf of the appellant, wanted to refer to the records, in support of his submission relating to the procedure adopted by the learned Judge in the court below purporting to contravene the principles of natural justice. He wanted to pinpoint the fact that after the arguments were completed in the court below on the 15th March, 1969, a supplementary affidavit-in-opposition affirmed on the 17th March, 1909 was filed on behalf of the defendants without any previous leave, disclosing fresh and further materials arid the said materials were referred to and relied upon, by the learned Judge for coming to the ultimate findings in his order passed on the 22nd March, 1969. Mr. Chakraborty appearing on behalf of the respondents submitted however that it is not so and also craved leave to refer to the records to establish the same. The records however in such appeals are not usually called for in the first instance and so were not available. The learned Advocates appearing on behalf of the respective parties therefore prayed that the same may be called for to determine the point at issue. This court allowed the said prayer in the interests of justice and called for the records expeditiously from the court of the Judge, Second Bench. City Civil Court, Calcutta. The appeal remained part-heard. On arrival of the said records, the arguments were resumed by the learned Advocates.

6. The third and the last submission made by Mr. Dutt is a material one and should be taken up first, as it touches procedure and goes to the root of the case. Mr. Dutt's broad submission in this context is that the procedure followed by the learned Judge in the court below has contravened the principles of natural justice. The steps of his reasoning are that the affidavits were completed by the 14th March, 1969 on which date a supplementary affidavit-in-opposition affirmed on behalf of the respondent No. 1 was filed, disclosing two documents including a document marked as 'Z' dated 2-11-68 and signed by A.E. Antony, Joint Chief (Personnel and Manpower); that the hearing in the case took place and was completed on the 15th March, 1969 which was a Saturday; that on Monday the 17th March, 1969, however, a further supplementary affidavit-in-opposition on behalf of the respondent No. 1 was filed without obtaining the previous leave of the court annexing the document 'Z', in marked departure from the document 'Z' as annexed to the earlier affidavit affirmed on the 14th March, 1969; that in paragraph 3 of the supplementary affidavit-in-opposition filed on behalf of the respondent No. 1 on the 14th March, 1969, it was clearly and categorically stated that the documents 'Y' and 'Z' 'are true copies of the originals of the said documents and are genuine. This is true to my knowledge;' that in paragraph 2 of the supplementary affidavit-in-opposition on behalf of the respondent No. 1 filed on the 17th March, 1969, however, it was stated that 'But it now appears that through unintentional oversight there was typographical omission in type copying out the text of the office order marked 'Z' in that the handwritten portion containing the endorsements of the Secretary and Chairman therein bearing the date 2-11-68 were not typed. This is true to my knowledge;' that the said affidavit is in direct contradiction to the earlier affidavit which was also true to the knowledge of the deponent; that the new document 'Z' purported to post the plaintiff Ranjit Ghosh to a post which is non-existent: that the language thereof is significant stating that 'it has been decided to post him to Head Office as Joint Chief (Admn.)' and this was for an approval; that the handwritten portion purported to be an endorsement by the Secretary and the Chairman was not originally there; that even in the said handwritten endorsement by the Secretary, it is stated that (1) post of Joint Chief (Admn.) has to be created and (2) functions to be defined; and that, accordingly it will appear that the said document is concocted. In the supplementary affidavit-in-reply affirmed on the 19th March, 1969 by the plaintiff it was averred in paragraph 2 that 'the respondent No. 1 have no right to file affidavit after the hearing was concluded and the court has reserved its judgment .... I have every reason to believe that the document marked 'Z' to the said affidavit is not a genuine document and has been cooked up solely to meet the point raised by the petitioner in his case as well as in the arguments made' and in paragraph 3 that 'I have every reason to believe that the said handwritten portion allegedly containing the alleged endorsement of the Secretary and the Chairman of the Hindusthan Steel originally were not there and the same is now being introduced as a result of after-thought and to meet if possible the arguments made by your petitioner's counsel on 15-3-1969'. Mr. Dutt further referred to the impugned order dated the 22nd March, 1969 and submitted that it will become abundantly dear therefrom that the contents of the supplementary affidavit-in-opposition affirmed on the 17th March, 1969 were considered and formed substantially the basis of the said finding. In this context Mr. Dutt referred to the penultimate part of the order wherein the learned Judge observed as follows: 'In so far as the order of transfer itself is concerned I would like to point out from Annexure 'Z' of the affidavit-in-opposition sworn on behalf of the respondent No. 1 that on 2-11-1968 Mr. A.E. Antony for Joint Chief (Personnel and Manpower) put up a proposal that on the expiry of the leave of the plaintiff on 5-11-1968, his posting was to be made and that it was discussed with the Secretary and Chairman and it had been decided to post him to Head Office as Joint Chief (Administration) in his existing pay and scale of pay and that accordingly the office order had been issued. This was put up for approval before the Secretary and the Chairman and it appears that both of them signed on the same day on such proposal. It means prima facie that the above proposal was approved by both the Secretary and the Chairman and that such proposal was made in accordance with the decision made by them after discussion with the Joint Chief (Personnel and Manpower). I do not find prima facie anything illegal or wrong with the order of transfer'. All these materials were disclosed without the leave of the court in a supplementary affidavit-in-opposition and although the plaintiff filed a supplementary affidavit-in-reply thereto, challenging the authenticity of the said materials, the same was neither considered nor even referred to, by the learned Judge in his order dated the 22nd March, 1969. Mr. Chakraborty appearing on behalf of the respondents joined issue and submitted that the order impugned has not been passed only on the new materials disclosed in the supplementary affidavit referred to but also on other grounds. He further submitted that in any event the plaintiff had the opportunity to meet the same and in fact filed an affidavit-in-reply thereto on the 19th March, 1969, before the 22nd March, 1969, which is the date of the order passed by the learned Judge, Second Bench, City Civil Court. Calcutta.

7. Upon hearing the learned Advocates, appearing on behalf of the respective parties and on going through the record, I find that the order dated the 22nd March, 1969 passed by the learned Judge, in fact refers to materials incorporated in the supplementary affidavit-in-opposition affirmed on behalf of the defendant No. 1 on the 17th March, 1969, after the arguments were completed and without any previous leave of the court. There is even no reference in the order impugned to the supplementary affidavit-in-reply affirmed on behalf of the plaintiff on the 19th March, 1969, far less a consideration of the materials incorporated therein. The plaintiff had thus no opportunity of meeting the points disclosed in the said supplementary affidavit-in-opposition filed on behalf of the defendant and was prejudiced. A decision based on information gathered behind the back of the party affected, without giving him an opportunity to rebut that information or material, is opposed to the principles of natural justice. A reference may be made to the case of Mahadayal Prem Chandra v. Commercial Tax Officer, , wherein , Mr. Justice N. H. Bhagawati delivering the judgment of the Court observed at page 671 that,

'all this was done behind the back of the appellants and the appellants had no opportunity of meeting the point of view which had been adopted by the Assistant Commissioner (C. S.) and the first respondent quietly followed these instructions and advice of the Assistant Commissioner (C. S.) . . . . The whole procedure was contrary to the principles of natural justice.'

I respectfully agree with the said observations. In this context Mr. Chakraborty relied on the case between Khardah & Co., Ltd. v. Its Workmen, : (1963)IILLJ452SC in support of his contention that such a procedure would always vitiate the ultimate findings of the learned Judge. Each case however must depend on its own facts and even in the case cited by Mr. Chakraborty, it was observed by Mr. Justice P. B. Gajendragadkar, (as his Lordship then was) delivering the judgment of the Court, that

'It is perfectly true that in dealing with industrial matters, the tribunal cannot allow evidence to be led by one party in the absence of the other and should not accept the request of either party to admit evidence after the case has been fully argued unless both the parties agree'.

In the peculiar circumstances of the said case however their Lordships of the Supreme Court held that such a procedure did not vitiate the ultimate finding. The abovementioned decision, therefore, does, not lend assurance to Mr. Chakraborty's contention in this respect and I hold that a full and effective opportunity has not been given to the plaintiff to present his point of view, in reply to and by way of meeting the impact of new materials incorporated in the further affidavit filed on behalf of the defendant and the requirements of natural justice have thereby been contravened. Natural justice is not merely a part of natural law or jus naturale but as was observed by H. H. Marshall in his 'Natural Justice', it is 'that part of natural law which relates to the administration of justice'. Evershed, M. R. rightly observed in the case of Abott v. Sullivan, (1952) 1 KB 189 at p. 195 that 'the principles of natural justice are easy to proclaim but their precise extent is far less easy to define'. But in the facts and circumstances of the present case, it is pre-eminently one where there has been a contravention of those redeeming principles of natural justice running like a golden thread through the web of our system of justice. The procedure adopted in this case has been contrary to the principles of natural justice and the resultant order dated the 22nd March, 1969, passed by the learned Judge, stands vitiated.

8. The point at issue may also be approached from another standpoint viz., a nonconformance to the procedure established by law. The order rejecting the petition for temporary injunction is unwarranted and untenable, being hot in accordance with the procedure established by law and as such should be set aside for a proper determination in accordance with law. A reference in this context may be made to the provisions of Order 19, Rule 1 of the Code of Civil Procedure. The provisions are as follows: 'Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions the Court thinks reasonable'. A reference in this context may also be made to Order 39, Rule 1 of the Code of Civil Procedure, dealing with cases in which temporary injunction may be granted, and providing as follows: 'Where in any suit it is proved by affidavit or otherwise ..... The court may by order grant a temporary injunction .....'. It is therefore abundantly clear that in suits for temporary injunction and in interlocutory matters relating thereto, affidavits form the sheet-anchor and the facts in connection therewith are proved by affidavits. In this context the use of the supplementary affidavit-in-opposition affirmed on the 17th March, 1969 assumes importance and the learned Judge having relied on the materials disclosed therein, the order ultimately passed by him has been unwarranted and untenable. In the well-known case of Taylor v. Taylor, (1875) 1 Ch D 426 Jessel, M. R. observed at page 431 that 'when a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted .....' The said principles were approved of and applied by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. King Emperor, 63 Ind App 372 = (AIR 1936 PC 253 (2)) Lord Roche, delivering the judgment of the Judicial Committee observed at pages 381 and 382 that 'the rule which applies is a different and not less well-recognized rule viz., that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden'. In a later decision the Supreme Court again reiterated the said principles when in the case of State of Uttar Pradesh v. Singhara Singh, : [1964]4SCR485 , A. K. Sarkar, J. (as his Lordship then was) delivering the judgment of the court observed at page 361 that 'the rule adopted in (1875) 1 Ch D 426 is well-recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted'. I respectfully agree with the observations referred to above and I hold that the order passed by the court below, rejecting the application for temporary injunction by the plaintiff, is de hors the procedure established by law. The case therefore should be remanded to the court below ex debito justitiae for a proper determination in accordance with law on a consideration of all the materials on record.

9. In view of my above findings it is not necessary to determine the other two points raised by the learned Advocates appearing for the respective parties and I make it quite clear that I make no observations relating to the merits thereof.

10. In the result, I allow the Appeal; set aside the order dated the 22nd March, 1969, passed by Sri A. N. Banerjee. Judge, Second- Bench, City Civil Court, Calcutta, in Title Suit No. 821 of 1968; and I direct that the application for temporary injunction shall be reheard by the learned Judge in accordance with law and expeditiously, on a consideration of all the materials on the record, including the supplementary affidavit-in-opposition affirmed on the 17th March, 1969 and the supplementary affidavit-in-reply thereto, affirmed on the 19th March, 1969.

11. The parties are to bear their own costs.


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