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Union of India (Uoi) and ors. Vs. Sailendra Nath Chakraborty Thakur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 4 of 1966
Judge
Reported inAIR1966Cal603
ActsCode of Civil Procedure (CPC) , 1908 - Sections 94 and 151
AppellantUnion of India (Uoi) and ors.
RespondentSailendra Nath Chakraborty Thakur
Appellant AdvocateBhabesh Narayan Bose, Adv.
Respondent AdvocatePrasanta Kumar Khan and ;Narendra Nath Samaddar, Advs.
DispositionPetition allowed
Excerpt:
- orderp. chatterjee, j.1. this is a petition under section 115 of the code of civil procedure against an order of the munsif, 1st court, howrah. the union of india, the general manager, eastern railway and the divisional superintendent, eastern railway, defendants nos. 1 to 3 are the petitioners in this court.2. the plaintiff is a telegraph signaller of the eastern railway on the howrah division. on the 30th december, 1964, the plaintiff was posted at belur and was transferred and posted at sahibgunj. the plaintiff did not attend to his duties at belur. he reported sick and submitted a medical certificate dated 1-1-65. the plaintiff was then asked to resume his duties at sahibgunj. he was examined by the divisional medical officer and he was not certified unfit for duty and was found fit......
Judgment:
ORDER

P. Chatterjee, J.

1. This is a petition under Section 115 of the Code of Civil Procedure against an order of the Munsif, 1st Court, Howrah. The Union of India, the General Manager, Eastern Railway and the Divisional Superintendent, Eastern Railway, defendants Nos. 1 to 3 are the petitioners in this Court.

2. The plaintiff is a Telegraph Signaller of the Eastern Railway on the Howrah Division. On the 30th December, 1964, the plaintiff was posted at Belur and was transferred and posted at Sahibgunj. The plaintiff did not attend to his duties at Belur. He reported sick and submitted a medical certificate dated 1-1-65. The plaintiff was then asked to resume his duties at Sahibgunj. He was examined by the Divisional Medical Officer and he was not certified unfit for duty and was found fit. The plaintiff however did not resume his duties at Sahibjung; but on the 18th January, 1965 he caused a notice under Section 80 of the Code of Civil Procedure to be served and thereafter filed the aforesaid suit challenging the authority and validity of the aforesaid order for transfer and it was alleged that the order of transfer amounted to penalty and therefore it was bad. It may be said that on his transfer he would get the same pay and grade at Sahibgunj as he was getting at Belur. The plaintiff instituted the suit for a declaration that the order of transfer was illegal and ultra vires and for permanent injunction restraining the petitioners from giving effect to the order. He also applied for temporary injunction restraining the petitioner No. 3 from giving effect to the order of transfer dated 13th December, 1964. Objections were filed by the said petitioners to the said injunction. Thereafter, on the 26th June, 1965 the plaintiff filed an application for an order for paying to him subsistence allowance every month at the rate of Rs. 200 or salaries outstanding from January, 1965 on the ground that he was sick from the 31st December, 1964 to the 28th April, 1965. As such he was entitled to get his salaries under the Leave Rules. The petitioner objected to the said prayer for subsistence allowance. The matter was heard and the Learned Munsif directed the petitioner to pay one-half of the amount, namely, Rs. 107 as subsistence allowance and further directed the defendant to deposit a sum of Rs. 1284 as subsistence allowance for the period from January, 1965 to December, 1965.

3. On behalf of the petitioners, Mr. Bose urges that the Code of Civil Procedure makes no provision for granting subsistence allowance by the court. Mr. Bose makes it clear that the Railway never objected to his joining at Sahibgunj and drawing his salary there. According to Mr. Bose, he being posted at Sahibgunj he can get his salaries only at Sahibgunj and the court has no powers under the Code of Civil Procedure to grant subsistence allowance and therefore the order is bad and must be set aside.

4. The learned Advocate for the opposite party admits that there is no specific provision in the Code of Civil Procedure for payment of subsistence allowance during the pendency of such a suit; but he says that the court below had enough power under Section 151 of the Code of Civil Procedure to make any such order. It may be made clear that I have not yet been referred to any order of injunction granted by the lower appellate court by which the defendants have been restrained temporarily or pending the hearing of the suit from giving effect to the order of transfer. Therefore, the order of transfer is still good and therefore he is expected to serve at Sahibgunj and draw his salaries at Sahibgunj. If the petitioner i.e. the Railway Department does not pay his salary at that place he has other remedies. The scope of the suit is very limited one namely, for declaring that the order of transfer was void, and the suit has nothing to do with the payment of any money that may be due to the opposite party plaintiff. If money is due to him on account of salaries he can institute a proper suit for recovery of that sum and that is no part either of the prayer for declaring that the order of transfer was bad or of the injunction restraining the defendants from giving effect to the order of transfer. In any case, that is no matter which comes within the scope of the suit. Supplementary proceedings are covered by Section 94 of the Code of Civil Procedure and the Court's powers with regard to the supplementary proceedings are completely covered by Part VI of the Code of Civil Procedure which includes Sections 94 and 95. There is no doubt that the application for subsistence allowance does not come under Clauses (a), (b), (c) and (d) of Section 94 and the only question relates to Clause (e) where the court in order to prevent the ends of justice being defeated has power to make such interlocutory order as may appear to the court to be just and convenient. The trial Court seems to think that in order to prevent the ends of justice from being defeated the court can make such other interlocutory orders as may appear to the court just and convenient and it is urged that interlocutory order for granting subsistence allowance is one which comes under Clause (e) to Section 94 of the Code of Civil Procedure. But there is one proviso the Court may make such order provided 'it is so prescribed' Evidently this means if the Rules under the Code of Civil Procedure prescribe for such other inter-locutory order, the court would then have power to make an order prescribed by the Code itself. But there is no provision in the Code prescribing that during the pendency of a suit for declaration that an order for transfer is void, the court would be entitled to grant subsistence allowance. Subsistence allowance or salary is not the subject matter of the suit and as it is not the subject matter of the suit it cannot come under Order 39. Therefore, the court below has no power under Section 94 of the Code of Civil Procedure to make any interlocutory order regarding subsistence allowance. It is urged that the court has enough power under Section 151 of the Code of Civil Procedure; but Section 151 does not apply to such interlocutory order which goes beyond the scope of the suit. Section 151 of the Code of Civil Procedure says as follows:--

'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such order as may be necessary for the ends of justice or to prevent the abuse of the process of the court.'

It is well-known principle that this power relates to matters of procedure and the court can ex debito justitiae make such orders as it thinks proper but the right to get subsistence allowance is not relating to a matter of procedure. The plaintiff is claiming a right to get subsistence allowance pending the hearing of the suit when that right is not the subject matter of the suit. If the plaintiff has been deprived of his salary, he has rights to sue for the salary and that would be a different suit. His salary is not dependent upon his transfer but upon his employment. Therefore, a prayer for salary is not incidental to a prayer relating to transfer but is incidental to employment and his employment is not in dispute in this suit. The petitioners before us accept the position that the plaintiff is employed and he may draw his salary from Sahibgunj and if he has causes for action for salary that would naturally arise at Sahibgunj. None of the petitioners in the present suit has denied the plaintiff's claims to salary.

5. I, therefore, think that the Court below had no power under Section 151 of the Code of Civil Procedure or under Section 94 of the Code of Civil Procedure to make order for subsistence allowance in the present suit. The order of the court below is set aside and the Rule is made absolute. I make it clear anything stated in this judgment will not prevent the plaintiff from taking appropriate steps for realisation of any salary that may be due to himself.

6. The Rule is made absolute, hearing fee being fixed at one gold mohur.

7. Let the records be sent down as earlyas possible.


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