Oil and Natural Gas Corporation Ltd. and Others vs Prafulla Chandra Phukan

J.N. Sarma, J.—A suit being Title Suit No. 2 of 1994 was filed before the learned Assistant District Judge, Sibsagar challenging the legality and validity of the transfer order dated 4.12.93 issued by the authority of the Defendant. The order of transfer was challenged on the ground of mala fide and on the ground of personal inconvenience of the Plaintiff. The Petitioner was earlier posted at Moran and thereafter he was transferred to Sibsagar which will be a distance of about 35 kms. Be that as it may, on a separate application filed, the learned Asstt. District Judge, Sibsagar granted an ad-interim injunction and that was made absolute by the impugned order dated 16.7.94. The learned Judge in granting the order of injunction, inter alia, found as follows:

(1) That it is found that without handing over charge, there cannot be formal release order.

(2) Formal handing over charge did not take place, Without it, no release order can be issued.

(3) Representation was filed and same was not disposed of.

(4) ''Mala fideness'' on the part of the Defendant is proved.

(5) Fifthly, the learned advocate for the Defendant has not pointed out anything about the three ingredients of granting injunction.

Curiously enough, after this order was passed, the Court directed to enforce the order of injunction through police help. No doubt, Court can direct to enforce an interim order inasmuch as and when an order of injunction is passed, the Court should not allow it to be mere scrap of paper but it should be enforced in cautious and prudent manner and not in a mechanical way as was done in the instant case. Be that as it may, I leave the matter and do not pursue the same.

I have heard Mr. B.K. Goswami, learned Counsel for the Petitioner and Mr. A.K. Goswami, learned Counsel for the Respondent First, I take up the last ground mentioned by the learned Judge for making an order of injunction absolute He has placed burden for establishing the three ingredients of injunction on the Defendant But the burden is on the Plaintiff in respect of the three ingredients for the grant of injunction. In the order, the learned Judge nowhere mentioned regarding prima facie, balance of convenience and irreparable loss or injury. The question of release and/or handing over charge is an official matter for the authority and that cannot be a consideration regarding grant of injunction. Further, the learned Judge also failed to consider the settled aspect of law that in a case of transfer, the power of the Court to interfere is absolutely limited. The Court can interfere only when a clear case of mala fide is made out and for the order of transfer is against some statutory rule and executive instructions binding on the employer. Mere allegation of mala fide is not sufficient. The mala fide should be brought home by cogent evidence which will entitle the Court to reach a prima facie finding regarding mala fide. That was also absent in the instant case. Be that as it may the law on the point of transfer is settled, The latest case of the Supreme Court in question is N.K. Singh Vs. Union of India and others, wherein the Supreme court in paragraph 23 laid down the law as follows:

The tendency of anyone to consider himself indispensable is undemocratic and unhealthy. Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a government servant in a transferable service is a necessary incident of the service career Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of those hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the Court lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.

This being the settled position, the revision application is allowed and the order of injunction passed by the Court below is quashed.

Mr. A.K. Goswami submits that the Plaintiff-opposite party has not received salary from the month of February, 1994. If the Plaintiff-opposite party is working, the authority is duty-bound to pay him the salary. The authority is directed to pay the salary to the Plaintiff-opposite party in accordance with rules and laws if the Plaintiff-opposite party is ready working in the post at Moran.