The Union of India (UOI) and Others vs Sri Karuna Kanta Deka

B.L. Hansari, J.—The opposite party approached the Court of learned Sadar Munsiff at Gauhati for declaration that the deduction of pay for 7.1.82, 12.1.82 and 18.1.82 in respect of the Plaintiff and 21 other is arbitrary, illegal and void. He has also prayed for permanent injunction restraining the Defendants from giving effect of the aforesaid decision. The suit was filed on 5.2.82 and it was accompanied inter alia by an application under Order 39, with Section 151 of the Code of Civil Procedure. On 6.2.82 the learned Munsiff No. III, to whose file the case was transferred restrained the Defendants from giving effect to their decision gala ting to the pay cut. It may be stated that the Plaintiff had also been allowed to file the suit in a representative capacity and leave of the Court was also grante1 to institute the suit as contemplated by Section 80(2) of the Code, feeling aggrieved at the interim order of injunction, the Defendants referred an appeal before the learned Assistant District Judge No. 1, Gauhati which has been dismissed.

The learned Central Government Standing Counsel lists advanced three submissions before me: (1) the order of ad-in-term injunction was without jurisdiction inasmuch as the second part of Section 80(2) of the CPC contains an embargo on giving even an interim relies except after giving to the Government or public career (sic), as the case may be a reasonable opportunity of showing cause in respect of the relied prayed for in he suit; (ii) It was a (sic) case where it could reasonably be halo that any irreparable would have been caused to the Plaintiff and 21 ether member of the Audit Suit Association and (iii) that the pay-cat order was in consonance with the proviso to F.R. 17 which states that an officer "who is absent from duty without any authority" shad not be entitled to any pay and allowance during the period of such absence.

Shri Medhi appearing for the opposite parties refers to Order 39, Rule 3 of the Code which permits a court to grant an interim injunction order if it appears to it that the object of grunting injunction would be defected by the delay. This is a part of the general provision relating to temporary injunction and interlocutory order. But the special provision in this regard made for suits in particular cases with which Part IV deal has to prevail. A perusal of Section 80 of the Code would show that as a general rule no suit can be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer without service of; notice and until expiration of two months thereafter. Sub-section (2) is an exception which permits suits to be instituted if it be "to obtain an urgent or immediate relief". The only requirement for this is obtaining the leave of the Court, But then restriction has been put on the power of the Court by the second part of this Sub-section which states in clear terms that, the court shall not grant relief in the suit, whether interior or, otherwise except after giving to, the Government or public Officer, as the case "may" be a reasonable opportunity of showing case in respect of tin'' relief prayed for in the still. As presently advised from satisfied that the grant of the ad-interim order of injunction was as interim relief in the suit itself. This, however, a court paid not done without giving a reasonable opportunity (sic) showing cause. It is thus a case which would clearly attract Clause (c) of Section 115(1) of the Code.

As to the absence of irreparable loss, Shri Medhi concords ''that as the period of unauthorised absence may even entail an break in service under FR 17(a),it is a case where irrupted loss would have been caused to the incumbents if an order of injunction had not been issued. Learned Standing Counsel submits from the bar that in the present case no break in service has been ordered, nor is contemplated. Be that as it may, it is a matter which lies within the jurisdiction of the (sic) Court to decide.

The final submission of Shri Medhi is that even though the condition in Section 115 (1) may be satisfied, this. Court may not interfere in exercise of its revisional jurisdiction as the impugned order has not occasioned a substantial failure of justice. The learned Counsel has, drawn my attention to Brij Gopal Mathur and Another Vs. Kishan Gopal Mathur and Others, wherein these observations and place. What had happened in that case was that one Baij Gopal had sought to make an award the rule of the Court. for this purpose he had filed an application u/s 17 of Arbitration Act in 1954, which was rejected in 1955. There (sic) he again approached the Court practically for the same purpose after. a lapse of 14 years. The trial Court refuse to press an order in favour of Brij Gopal against which he preferred an appeal to the High Court. But as no appeal lay, the same learned as. revision. The High Court refused to cram relief even revision by observing that Brij Gopal could not apply for a decree again after it was refused to him in the earlier proceeding, This order of the High Court passed in its discretion was not interfered with by the Supreme Court as definitely the order of the Court below had not occasioned a failure of Justice. It was thus not a case where the trial Court had in (sic) way acted illegally in passing the order against which the High Court was approached, or one which was on the teeth any statutory provisions. As in the present case the ad-interim order injunction seems to be in violation of a mandatory requirement of law, it would be difficult to ignore the illegality find that one''s eyes even Hitting in revision.

Because of all the above, the impugned order is the aside by allowing the petition. It would, however, be competent for the learned trial Court to pass an appropriate order in this regard after, the Petitioners have shown cause which would be done within a period of one month from today. Let the records be sent back to the respective, courts at an early date.