The United News of India and Others vs Mr. T.S. Bhagavanulu

S.R. Nayak, J.—These two Civil Revision Petitions arise out of two interlocutory applications filed by the plaintiff in the trial Court in the same suit. Therefore, these two Civil Revision Petitions are clubbed and heard to gather and they are being disposed of by this common order.

CRP NO. 1954/1992 is filed by the defendants in O.S. No. 187/1990 pending on the file of the Court of the Second Asst. Judge, City Civil Court at Hyderabad. The said suit is filed by the respondent herein namely T.S. Bhagavanulu. In the said suit, the plaintiff sought a declaration that the transfer order issued by the defendants dt.26-12-1989 transferring him from Hyderabad to Siligiri in West Bengal is void being tainted by mala fide and made in contravention of Standing Orders etc. In the said suit he filed LA. No. 261/1990 under Order XXXIX Rules 1 and 2 of C.P.C. for restraining the defendants from taking further steps in pursuance of the transfer order dt.26-12-1989. The trial Court made an order on 25-1-1990 restraining the defendants from taking any further steps in pursuance of the impugned transfer order dt.26-12-1989. The defendants after service of summons, sought the vacation of the ex parte order made by the trial Court on 25-1-1990 mainly on the ground that the plaintiff was relieved from duty at Hyderabad office on 1-1-1990 and in that view of the matter the interim order made by the trial Court on 25-1-1990 became infructuous and therefore liable to be vacated. The trial Court rejected the contention of the defendants and made the ex parte interim order granted on 25-1-1990 absolute by its order dt.6-8-1991. That led the defendants to prefer an appeal, C.M.A. No. 208/1991 to the Court of Addl. Chief Judge, City Civil Court at Hyderabad. The appellate Court also dismissed the appeal and affirmed the order made by the trial Court. Hence CRP No. 1954/1992 by the defendants.

Heard the learned Counsel of the parties. Sri C.V. Mohana Reddy the learned Counsel for the petitioners/defendants submitted that there was an error apparent on the face of the order of the appellate Court as well as the order of the trial Court in not noticing the fact that the plaintiff ceased to be an employee of the defendants at Hyderabad with effect from 1-1-1990 on which date the defendants sent the relief order by registered post acknowledgement due. Secondly, Sri Reddy would submit that the trial Court as well as the appellate Court lost sight of the fact that the plaintiff utterly failed to lay any factual matrix to bring home the charge of mala fide against the defendants and the allegations contained in the plaint in that regard is as vague as it could be. Thirdly, Sri Mohana Reddy would submit that the transfer is an incidence of service and who should work where is primarily for the management or the Employer to decide and unless in a given case a transfer order is tainted by mala fide or is made in violation 6f Statutory provisions, normally the Courts should not interfere with the transfer orders and in the present case none of these grounds is available to the plaintiff to assail the transfer order. For all these reasons, Sri Reddy would appeal to the Court to interfere in the matter contending that a case is made out u/s 115 of C.P.C.

On the other hand, the learned Counsel appearing for the plaintiff/ respondent Smt A. Chaya Devi would contend that both the Courts below have recorded the concurrent finding on a question of fact and therefore the present Civil Revision Petition u/s 115 of C.P.C. is incompetent and she would attack that there is no any error of jurisdiction or material irregularity in exercise of the jurisdiction on the part of the Courts below.

It is true that transfer is an incidence of service and who should work where is primarily for the Management or the Employer to decide and the Courts are very slow to interfere with the transfer orders unless in a given case, the impugned order is found to be in violation of Statutory provisions or tainted by mala fide or bad for want of authority. In the instant case, the learned trial Judge as well as the appellate judge have referred to certain previous litigations between the parties ultimately they landing before the Apex Court and the plaintiff succeeding in the earlier legal proceedings. Reference to specifics need not be necessary. Suffice it to state that on an earlier occasion, the plaintiff was removed from the service on 20-12-1986 and he questioned the same before the Industrial Court under the Industrial Disputes Act and he succeeded before the Industrial Court and the award made by the Industrial Court was impugned by the defendants/petitioners in this Court before the learned Judge as well as before the Division Bench and they failed therein and ultimately the matter was carried to the Apex Court. In the Apex Court also, the Management lost its case. When it reached the finality, the defendants reinstated the plaintiff only on 6-5-1989; then came the present impugned transfer order dt.26-12-1989 relatively within a short time. It is settled position in law that when a person who alleges mala fide against another, the discharge of that burden lies on the person who alleges mala fide. At the same time, it is well realised position that proving mala fide in fact (malice in fact) is very difficult thing to do. The Courts by and large, have to take into account all attendant facts and circumstances and decide whether a case of mala fide is made out or not. In the back-drop of facts stated supra, the trial Court as well as the appellate Court were of the opinion that the impugned transfer order was resorted to by the defendants as a measure of punishment or in other words the same is vitiated on account of apparent mala fide. This conclusion is readied by the Courts below after appreciation of evidence on record. The finding recorded by the Courts below is a finding of fact based on acceptable prima facie materials placed before the Court, In that view of the matter, I do not find any justification to reverse that finding concurrently recorded by both the Courts below. The argument of Sri Reddy that there is absolutely no foundation laid in the plaint to bring home the charge of mala fide against the defendants cannot be accepted. I have carefully read the averments in the plaint. The plaintiff-respondent has referred to previous litigations and how he incurred the displeasure of the defendants in pursuing his legal remedies. It is also apparent from the record that even after the dispute reached finality with the disposal of the Civil Appeal filed by the defendants by the Apex Court, the plaintiff had to file one more writ petition in this Court seeking a direction to the defendants to pay the balance of backwages. Therefore, for the purpose of deciding the interlocutory application, I am of the opinion that there was sufficient material before the Courts below to grant relief sought in I.A. No. 261 /1990.1 do not find any error of jurisdiction or any material irregularity or illegality on the part of the Courts below in exercising their discretionary power. Therefore, Civil Revision PetitionNo.1954/1992 is devoid of merits and it is accordingly dismissed. In the facts and circumstances of the case, the parties are directed to bear their own costs.

C.R.P. No. 1500/1994 arises out of the interlocutory application filed by the plaintiff in the trial Court. This application was filed by the plaintiff u/s 151 C.P.C. seeking a direction to the defendants to pay the salary to him up to the date from and inclusive of the salary payable in the month of January, 1990. This application was contested by the defendants-revision petitioners. The learned trial Judge after hearing both the parties allowed the application. Hence this revision.

Assailing the order under revision, Sri Mohana Reddy the learned Counsel for the revision petitioners in the first place would reiterate the same submissions which his counterpart advanced before the Court below while attacking the order made by the trial Court in LA. No. 261/90. In addition to those contentions, Sri Reddy would also add that the plaintiff admittedly went on Medical Leave with effect from 2-1-1990 and thereafter at no point of time, the plaintiff returned to duty; in that view of the matter it is improper and unjust for the trial Court to saddle the defendants with liability to pay the salary and allowances to the plaintiff with effect from January, 1990. Alternatively, Sri Reddy would contend that having regard to the pleadings of the parties, the controversies involving pure questions of facts and the questions relating to the entitlement of the plaintiff to have the salary and allowances for the period commencing from January, 1990 could be resolved only after recording findings on those controversies. Sri Reddy would also further submit that it is totally incompetent for the trial Court to allow the application inasmuch as it amounts decreeing the money suit and it is outside the power of the Civil Court to do the same. On the other hand, Smt. Chayadevi learned Counsel for the plaintiff-respondent would submit that so long as the order made by the trial Court in LA. No. 261/90 and affirmed by the appellate Court stands and operates it should be taken that the plaintiff deemed to have been in service throughout and if it is so, it goes without saying that the plaintiff is entitled to the salary and allowances admissible to the post held by him. Sri Mohana Reddy would further submit that the plea of the defendants that the plaintiff after he went on medical leave with effect from 2-1-1990, did return for duty is totally incorrect and false. The learned Counsel for the plaintiff would place several materials, correspondence telegrams sent by .the plaintiff to the defendants expressing his desire to join the duty and the refusal of the defendants to take him to duty. However, Sri Reddy objected to placing those documents at the time of hearing before the Court. Even ignoring those documents produced before the Court by Smt. Chaya Devi, the plaintiff has made out a prima facie case relating to his entitlement to the salary and allowances during the period commencing from January, 1990. I say this because on 25-1 -1989 the trial Court passed the ex parte interim order restraining the defendants not to take any further steps in pursuance of the impugned transfer order dt. 26-12-1990 and by that time, admittedly, the plaintiff did not report for duty at Siligiri of West Bengal and he was on medical leave. The transfer order issued by the defendants on 26-12-1989, by 25-1-1990 did not spend itself. A transfer order comes to an end only when the transferee reports for duty at the transferred place and till then it obliges the transferee to go to the transferred place and report for duty. When the obligation cast on the transferee under the Transfer order dt.26-12-1989 was in operation and currency, the Civil Court interdicted the operation by ex parte order on 25-1-90. If it is so, the defendants ought to have respected the order made by the trial Court and permitted the plaintiff to report for duty at Hyderabad office. For the reasons best known to them, they have consistently refused to take the plaintiff to duty even after lapse of 5 years. When this matter was heard, the Court suggested to Sri Reddy whether his clients were prepared to take the plaintiff to duty at Hyderabad Office and the answer was ''No''. The only argument is that by the time Civil Court passed the order on 25-1-1990, the transfer order dt.26-12-1989 spent itself and therefore, the order of the Civil Court made on 25-1-1990 had become infructuous. For the reasons stated above, I do not find any merit in the submission and the same is rejected.

I do not find any merit in the contention that the trial court lacked jurisdiction u/s 151 CPC to grant relief now granted by the order under revision. The application was u/s 151 C.P.C. Section 151 C.P.C. is meant for achieving the ends of justice and to prevent the abuse of the process of the Court. It is settled position in law that the Civil Courts in exercise of their inherent power u/s 151 C.P.C. grant any relief which is consequential of the very process of grant of main relief sought in a suit. Therefore, the question before the Court is whether the prayer request of the plaintiff to direct the defendants to pay him the salary and allowances for the period commencing from January, 1990 is a relief consequential of the very process of grant of the main relief sought in the suit or not. Tentatively and prima facie the Courts below have found that the transfer order is illegal and invalid. Of course, the opinion expressed in the LA. by the Courts below will be subject to final adjudication. But for the present purpose, suffice it to state that the relief sought in LA. No. 2690/90 is consequential of the very process of grant of main relief sought in the suit and therefore, such a power is available to the trial Court u/s 151 C.P .C. and this is more particularly so in view of the fact that the order made by the trial Court in I. A. No. 261 / 90 has attained finality in view of the order made by the appellate Court as well as by this Court. Therefore, I do not find any merit in this revision petition also and it is accordingly dismissed. In the facts and circumstances of the case, the parties are directed to bear their own costs.