State of Tripura and Others vs Nilratan Majumder

N.G. Das, J.—This application in revision u/s 115 of CPC is directed against the judgment District Judge, South Tripura Udaipur passed in Civil Misc by the learned Civil Judge (Junior Division) in Misc. Case No. 9/1996 using out of T.S. No. of 1996.

I have heard Mr. M.K. Dutta, the learned Counsel appearing on behalf of the Petitioner and Mr. K.N. Bhattcharjee, learned senior counsel appearing on behalf of the Respondent.

Although thought to dismiss this revision petition in limine on account of some incorrect submissions before the court, I did not do so as Mr. Dutta eited some decision. At the very outset Mr. M.K. Dutta, the learned Counsel for the Petitioners made a submission that this matter wliich relates to some transfer of a doctor was wrongly dealt with by both the courts-below as both of them examined the case from a wrong angle. As the Court desired to know after how many years the Respondent was transferred from his present place of posting Mr. Dutta submitted that the Respondent was transferred after about 4 years which is absolutely an incorrect statement. However, as Mr. Dutta cited some decision in support of his contention I have considered it necessary to deal with all the aspects of the case.

The facts which are relevant for the purpose may succinctly be stated as under:

The Respondent, namely, Dr. Nilratan Majumder, a Junior Medical officer of Grade-V joined service under the Govt, of Tripura in the Tripura Health Service on 2.9.1983. Soon after his joining the Respondent filed an application 12.9.83 for granting him leave for higher studies, But that prayer was rejected. The Respondent, however, left the service on 20.09.1983 on submitting some application for granting him extra-ordinary leave to enable him to complete his higher studies. But after his departure from Tripura his service was terminated by an order dated 21.1.1984. The Respondent, however, completed his M.D. Course and on obtaining the M.D. Degree he joined West Bengal Health Service. After rendering services there for a number of years the Respondent was again appointed by the Government of Tripura as a Junior Medical Officer and the Respondent also joined the service on 30.11.1990 at Amarpur Sub-Division. But just after a year he was transferred to Indira Gandhi Memorial Hospital at Agartala where he joined on 4.1.1992. Thereafter again lie was sent to Udaipur on deputation on 19.10.92. The Respondent therefore sought transfer of his wife from Women''s College. Agartala to Udaipur and his wife also got the transfer. Thereafter the order of deputation was treated to be a regular transfer. But it was alleged by the Respondent that even though he approached the authority no deputation allowance was granted. On the other hand by the impugned order of transfer dated 19.3.1996 he was transferred to Sabroom Hospital.

The Respondent, therefore, filed the suit being T.S. 12/1996 in the court of Civil Judge (Junior Division), Udaipur, South Tripura for a decree declaring the order of termination dated 1.1.1984 as well as the order of transfer dated 19.3.96 illegal and also for a decree of perpetual injunction restraining the Defendants t herein, Petitioners herein from giving effect to the impugned order of transfer dated 19.6.96.

Along with the plaint the Respondent also Tiled an application under Order 39 rules 1 and 2 of Code of Civil Procedure, for temporary injunction restraining, the present Petitioners from giving effect to the impugned order of transfer.

Learned trial court issued notice to the present Petitioners and after hearing learned Counsel for both the parties granted temporary injunction by its order dated 10.6.96. By this order the learned trial court restrained the Defendants, that is, the present Petitioners from giving effect to the impugned order of transfer dated 19.3.96 till disposal of the original suit.

Aggrieved by this order the present Petitioners preferred an appeal before the learned District Judge, South Tripura who by his judgment dated 3.8.96 disposed of the Misc. Appeal up-holding the order of temporary injunction that was granted by the Civil Judge (Junior Division), Udaipur, South Tripura, Hence, this revision ''petition.

The first pointof criticism advanced by Mr. M.K. Dutta the learned Counsel appearing on behalf of the Petitioners is that both the courts-below exercised their jurisdiction illegally. To elaborate his contention Mr. Dutta has submitted that there is no question of mala fide in the present case. But the courts-below after examining the matter from a wrong angle held that there was mala fide intention in passing the impugned order of transfer, it is submitted by Mr. Dutta that the Respondent joined the service i.e. Tripura Health Service on 2.9.1983 and just after 10 days he made an application for granting him extra-ordinary leave to enable him to prosecute his higher studies. It is further submitted that no one is entitled to gel leave just alter 10 days of his service, So, according to law the Respondent was not entitled to get extra ordinary leave, I am, however, not convinced on this point as granting of extra-ordinary leave/leave to enable a Government servant for prosecution of studies docs not require that an employee must render service for a particular period. If it is considered by the Government that higher education will be beneficial for public service then there shall be no bar for granting leave/extra-ordinary leave/without pay ieave to enable an officer to prosecute higher studies.

The next limb of attack by Mr. Dutta is that a bare perusal of the judgment of the courts-below will show that the orders were grossly illegal in the very face of it. In view of his submission I have quite carefully gone through the judgment of the courts-below. On going through the judgment of the trial court I find that the trial court dealt with most of the important points and also made a finding that there was a prima facie case. Similarly the appellate court also made an elaborate discussion holding that the Respondent succeeded in making out a prima facie case. In his application for temporary injunction it was alleged by the Respondent that, there were similarly situated doctors, namely, Dr, Ashis Chakraborty, Dr. Pradyut Basak, Dr. Sudhir Adhikari, Dr. Kantilal Chakraborty etc. who were granted leave for higher studies. That was a clear statement under para 6 of the plaint. But the present Petitioners did not give any adequate reply in respect of this petition. What the present Petitioners replied in respect of he aforesaid statement may be quoted for better appreciation as follows:

That with reference to the paragraph No. 6 of the plaint that the case of the Petitioner is not similar with the case of the Medical Officer mentioned in this para. Some of the Medical Officers are joined in the Trinura Health Service after completion of post graduate Degree Course and some are going to study course which are certified by the authority that the study of the said medical Officer is definitely in public interest. But the Petitioner went on his study for his self interest only.

I do not consider dial this reply is sufficient for denying the statement set forth under para 6 of the plaint. It is not at all explained how higher studies of the other medical officers is for public interest and that of the Petitioner was not for public interest. I am, therefore, unable to accept this contention.

As it would be apparent from the facts stated above that the Respondent was transferred from Amarpur to Indira Gandhi Memorial Hospital, Agartala just after a year, the court desired to know why the Respondent was transferred from Amarpur to Agartala just after a year. But Mr. Dutta could not give any cogent reply. The only reply is that the order of transfer was passed in the interest of public. But it would also appear from the facts I have narrated above that just after about 10 months the Respondent was sent to Udaipur on deputation. It was alleged by the Respondent that even though he repeatedly approached the authority for granting him deputation allowance, no deputation allowance was allowed to him. It is not understandable to me why no deputation allowance was given to the Respondent where it is clear that he was there for a period of about 10 months. The authority however confirmed his transfer to Udaipur and thereafter passed the impugned order of transfer after 3 years 4 months 28 days. The courts-below were of the view that this is a case which comes within the perview of frequent transfer. The trial court, therefore, held that there was mala fide intention behind the order as similarly situated Medical Officers were granted leave for prosecution of their higher studies. But in the case of the Respondent it was not only refused but his service was also terminated without service of one month notice. As there was a specific contention that Respondent was not afforded any opportunity of one month notice this Court desired to know whether there is any proof to show that one month''s notice was served upon the Respondent. But on going through the records available before this Court I do not find any proof to show dial one month''s notice was served upon the Respondent before the order of termination was passed.

Mr. Dutta has, however, cited a decision of the Punjab and Haryana High Court rendered in the case of Ram Kumar and Ors. Petitioners v. Tarn Chand and Anr. Respondents reported in AIR 1978 Punjab and Haryana 153. I have gone through the judgment and am of opinion that that facts are quite distinguishable from the present case and as such this decision is not applicable to the present case. What happened in that case was that a suit was instituted for pre-emption of sale of land. During the pendency of the suit, the vendees applied, for partition of the suit land, to the revenue officer. The Plaintiff in the pre-emption suit thereon applied under Order 39 Rule 1 for restraining the vendees from continuing the partition process. The question was whether such injunction could be granted. The court held that the right to have joint property partitioned by a co-sharer is neither subject to the right of a pre-emptor nor suspended during pendency of a pre-emption suit Therefore, it was held that the court has no jurisdiction to grant an injunction restraining partition proceedings.

It may be pertinant to mention here that this is a matter relating to a temporary injunction. The original suit is still pending. The temporary injunction which the trial court granted was not an exparte order. The trial court after hearing counsel of both the parties granted the temporary injunction which was up-held by the first appellate court.

A temporary injunction consists of two stages, one granted without finaily disposing of the application for injunction to operate immediately till the disposal of the said application and the other granted while finally disposing of the main application to enure generally till the disposal of the suit and while the former is generally classed as ad-interim injunction, the latter is generally called temporary injunction. Neither on principle nor on authority, there is any bar to the courts granting an interim injunction till the disposal of the application for temporary injunction. Here of course, the trial court heard the learned Counsel of both the parties and granted the temporary injunction as sought for by the Respondent after giving the reasons.

It may be re-called here that granting or refusal of the temporary injunction; is covered by three well established principles viz. (1) whether the Petitioner lias made out a prima facie case; (2) whether the balance of convenience is in his favour; and (3) whether the Petitioner would suffer irreparable injury. With the first condition as sine qua non the Petitioner is to prove two conditions conjunctively.

In the instant case, a careful perusal of the facts described above will show that the Respondent was discriminated in the matter of granting leave/extra-ordinary leave for his further prosecution of studies. The Respondent in his application for temporary injunction has also given the names of the doctors who were granted leave for their further prosecution of studies. But the Petitioners did not assign any cogent reason whatsoever, as to why those doctors were granted leave for prosecution of their higher studies. The reply which was given by the present Petitioners has been quoted above and I am of the view that this reply is not at all satisfactory.

Now as regards the concurrent findings Mr. K.N. Bhattacharjee, the learned senior counsel appearing on behalf of the Respondent has submitted that the scope for interference by the High Court to set aside the concurrent finding of the courts-below is very narrow and circumscribed. In support of his contention Mr. Bhattacharjee has referred to a decision of the Supreme Court rendered in the case of Masjid Kacha Tank, Nahan Vs. Tuffail Mohammed, The Supreme Court under para 3 of the aforesaid judgment made the following observation:

It is well settled position in law that u/s 115 of the CPC the High Court cannot reappreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings (sic) there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction.

A similar view is also available in ilk judgment of the Supreme Court in the case of Sher Singh (dead) through LRs. Appellants v. Joint Director of Consolidation and Ors. Respondents reported in AIR 1978 SC 1341. Under para 6 of the judgment the Supreme Court held:

It is now veil settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise of non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate-court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In oilier words, it is not open to the High Court while exercising its jurisdiction u/s 115 of the CPC to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself.

In view of the above proposition of law laid down by the Supreme Court; I am constrained to hold that there is no jurisdictional error calling for interference by this Court. The result is that this revision petition merits no consideration and accordingly it is dismissed. However, there would be no order as to costs.