Calcutta High Court
Regional Manager, Regional Office, ... vs Kamalendu Ghosh And Ors. on 16 March, 1987
Equivalent citations: AIR1988CAL64, AIR 1988 CALCUTTA 64, (1987) 1 CALLJ 270
Author: G.N. Ray
Bench: G.N. Ray
JUDGMENT G.N. Ray, J.
1. This appeal is directed against an order dated 5th December, 1986 passed by the learned trial Judge disposing of the writ petition moved by the respondent No. 1, Sri Kamalendu Ghosh against the Regional Manager, Regional Office, the National Small Industries Corporation Ltd and other respondents being respondents Nos. 2 to 5 in the instant appeal.
2. It appears that the writ petitioner respondent No. 1 Sri Karmalendu Ghosh moved a writ petition before this Court, inter alia, challenging the order of transfer passed by the Regional Manager, Regional Office of the National SmaNational Small Industries Corporation Ltd. transferring the writ petitioner to Cuttack by an order dated 25th November, 1986. The writ petitioner contended in the writ application that he was earlier transferred to Cuttack where he had served for more than three years and he became very ill there and made representations to come back to Calcutta.' The Executive Director (Development) strongly recommended the case of the writ petitioner for being transferred to Calcutta and it appears that ultimately the writ petitioner was brought back to Calcutta some tune in the year 1983. It also appears that the writ petitioner became the representative of the N.S.I.C., P.T.C. Employees' Union in the Regional Office, Calcutta.
3. It is the case of the writ petitioner that the Regional Manager, Regional Office of the National Small Industries Corporation Ltd. at Calcutta became very displeased with the writ petitioner over the issues raised by the writ petitioner as a representative of the Union and it also appears that against some adverse remarks given by the said Regional Manager in the confidential character roll of the writ petitioner, representation was made by the writ petitioner challenging the propriety and correctness of such adverse remarks and the writ petitioner also asked for leave from the Head Office at Delhi to sue the Regional Manager. Regional Office. Calcutta for making defamatory statement in the confidential character roil. It is also the case of the writ petitioner that previously a Development Officer could be transferred by the Head Office at Delhi. But the Regional Officer had been invested with the power of transferring officers up to the rank of Development Officers and such power was received by the Regional Manager. Regional Office at Calcutta on 25th November. 1986 and on the very same day the writ petitioner was transferred to Cuttack by the Regional Manager. The writ petitioner contended in the writ petition that the said order of transfer was mala fide and was made to wreak vengeance on him without any administrative reason whatsoever.
4. The said writ petition was set down for hearing upon notice to the respondents. No affidavit-in-opposition was filed by any of the respondents including the Regional Manager. Regional Office disputing the allegations made in the writ petition. The writ petitioner also prayed for an interim order of stay of the impugned order of transfer. It appears from the judgment dated 5th December. 1986 passed by the learned trial judge disposing of the writ petition that the learned counsel appearing for the Regional Manager. Regional Office. Calcutta made a submission on the basis of the instructions received by him that within a period of three months some sort of alternative arrangement would be made and the petitioner would be brought back to the Calcutta City Office.
5. The learned Judge on the basis of such submission and in consideration of the facts of the case, disposed of the writ petition without entering into the merits of the case and making any finding on the contentions raised in the writ petition. It was. however, made clear by the learned trial Judge that the proposed order to take back the writ petitioner to the Calcutta Office within three months did not mean and imply that the writ petitioner would not be transferred at any future point of time for administrative exigencies.
6. As aforesaid, the instant appeal has been preferred only by the Regional Manager. Regional Office. Calcutta and other respondents in the writ petition have been impleaded as respondents. An application for stay of the aforesaid order dated 5th December. 1986 passed by the learned trial Judge has also been made by the appellant. It has been contended in the application for stay that the order of transfer was not passed mala fide, and the order of transfer should therefore remain in force without any obligation to take back the petitioner to Calcutta. It has been further submitted that if the writ petitioner is taken back to Calcutta in terms of the order passed by the learned trial Judge, the entire structure will have to be reorganised. It has also been stated that as the learned trial Judge had expressed his prima facie view that the order of transfer was bad and should be stayed it was submitted that the writ petitioner should continue at Cuttack for three months in terms of the impugned order for urgent Works and thereafter he may be brought back to Calcutta.
7. An affidavit-in-opposition has been filed by the writ petitioner to the said application for stay and in paragraph 10 of the affidavit-in-opposition it has been specifically stated by the writ petitioner who is respondent No. 1 in the instant appeal that the learned trial Judge was convinced prima facie that the impugned order of transfer was bad and expressed the view that for the ends of justice, the said order should be stayed till December 23, 1986 so that the respondents could file their affidavits in the meantime and the writ petition could be disposed of on merits before the Christmas Vacation of the Court. It has been contended by the writ petitioner respondent that the learned counsel appearing for the appellant had then submitted before the trial Judge that the writ petitioner being an experienced man having worked at Cuttack on earlier occasion should join the branch office at Cuttack and the Chief Minister of Orissa had also wanted the services of the writ petitioner there and if the transfer order could not be effected, immediately, there would be a deadlock in that office. The learned Counsel had further submitted before the learned trial Judge that the writ petitioner should join the Cuttack office and should be there for three months within which period the office would find out a substitute for him. It has also been stated in the affidavit that such submission had been made by the learned counsel for the appellant on specific instruction from the appellant. It has also been stated that on such submission of the learned c6unsel the Court did not pass any interim order and as a matter of fact had disposed of the writ petition without going into the merits of the case in the manner indicated hereinbefore.
8. It has been contended by the writ petitioner respondent No. 1 that after getting the writ petition disposed of on the basis of the submission made by the learned counsel for the appellant on instruction, the instant appeal preferred by the appellant is not maintainable and the same only indicates that the Regional Manager is bent upon harassing the writ petitioner to the maximum possible extent.
9. It has been further stated in the affidavit-in-opposition to the stay application for stay in the instant appeal that the writ petitioner did not receive his payment of salary for the month of December, 1986 simply for not sending his last pay certificate by the Calcutta Office and he had to suffer a serious prejudice and inconvenience for such nonpayment of salary in time. It was only on the representation of the wife of the writ petitioner to Delhi office, the salary had been paid sometime in the second week of January. 1987. It has also been stated that no table and chair had been allotted to the writ petitioner at Cuttack office initially and the Cuttack office informed the writ petitioner that sanction of such table and chair from the Regional Manager of the Regional office at Calcutta for giving the writ petitioner a place to work at Cuttack had been sought for. The learned counsel appearing for the writ petitioner respondent has drawn the attention of the Court that the said statement made in the affidavit-in-opposition has not been disputed by any affidavit-in-reply filed by the appellant. The learned counsel for the writ petitioner respondent has submitted that the said facts clearly demonstrate that there was no serious urgency for the writ petitioner's working at the Cuttack office as submitted before the trial Judge and as a matter of fact, no arrangement was initially made for him to work there and even to sit on a chair with a table specifically allotted to him. It has been submitted before us that since the Regional Manager was bent upon transferring the writ petitioner to Cuttack and immediately after getting the power of transfer of a Development Officer, the said order was passed under the cloak of an administrative exigency and the said untrue statement was made before the learned trial Judge so that the matter is not heard on comes and an interim order of stay is not suffered by the appellant. Precisely on the basis of the aforesaid submission of the learned counsel of the appellant, the writ petition was disposed of in the manner indicated hereinbefore. The learned counsel of the writ petitioner respondent No. 1 has also contended that as the writ petitioner had attended the Cuttack office in terms of the order of the learned trial Judge, he gave intimation to the Regional Manager. Regional Office at Calcutta about the order passed by the learned trial Judge for bringing him back to the Calcutta office within three months. But no intimation was sent to the writ petitioner thereby flouting the order of this Court.
10. Mr. Sen. learned counsel appearing for the appellant has submitted before us that on 4th March. 1987 a telegram was sent by the Regional Manager, Regional Office at Calcutta, namely, the appellant to the Branch Manager at Cuttack to the following effect :
"Please send Sri Kamalendu Ghosh by tomorrow to work at Calcutta during 5th March, 1987 to 15th March, 1987 in terms of the order of the High Court dated 5-12-86 without prejudice to our rights and contentions in the appeal filed by us against the aforesaid order."
11. Mr. Sen has submitted that unfortunately the said telegram did not reach the destination but the writ petitioner being aware of the order passed by the learned trial Judge should not have left Cuttack for works at other places. As the writ petitioner had left Cuttack for works at outside stations, the oral communication sent to the Branch Manager, Cuttack could not be communicated to rhe writ petitioner.
12. In reply to such submission of Mr. Sen. the learned counsel appearing for the writ petitioner respondent No. 1 has submitted that till 5th March, 1987 no communication was given to the writ petitioner respondent No. 1 that he would be taken back to Calcutta and in connection with his official works he had to leave Cuttack for Keonjhar and Sambalpur and other places. The learned counsel for the respondent No. 1 had submitted that so long the writ petitioner did not receive any order of transfer back to Calcutta, it was his duty to carry on his work at Cuttack and in connection with his official development works he had to leave Cuttack for other places and such action on his part was only just and proper for a responsible employee.
13. Mr. Sen. learned counsel for the appellant has submitted before us that the order passed by the learned trial Judge was not an order passed on consent of the parties and at best the same may be treated as an order passed in the writ petition on the basis of a suggestion made before the learned trial judge that the writ petitioner might be transferred back to Calcutta within three months after finding out a suitable person. He has, therefore, submitted that the instant appeal is quite maintainable and the appeal court should go into the merits of the cases of the respective parties and decide as to whether or not the initial order of transfer of the writ petitioner to Cuttack was justified and the appeal court should also stay the operation of the order of the learned trial Judge so that there is no necessity of taking back the writ petitioner to Calcutta.
14. After considering the respective submissions made by the learned counsel for the parties, it appears to us that the learned counsel appearing for the respondents in the writ petition including the present appellant had made a categorical statement before the learned trial judge on instruction, that the writ petitioner would be brought back to Calcutta within three months and no interference with the impugned order of transfer should be made in the meantime. In view of such submission the learned trial Judge did not think it necessary to go into the merits of the case and to decide as to whether or not the order of transfer was legal and valid. In the affidavit-in-opposition filed to the application for stay made by the appellants in the instant appeal it has been categorically stated by the writ petitioner, respondent No. 1 that the learned counsel of the appellant prayed for the disposal of the writ petition on the basis of the said submission and precisely for that reason the writ petition was disposed of by the learned trial Judge without entering into the merits of the case although till then no affidavit in opposition was filed to the writ petition and the allegations made in the writ petition stood uncontroverted.
15. It may be noted here that the writ petitioner respondent No. 1 has specifically stated on oath in answer to the application for stay before this Court that a submission was made by the learned counsel for the appellant on instruction before the learned trial Judge that because of the acute exigency of the work, the writ petitioner was required to be stationed at Cuttack and he would be brought back to Calcutta within three months and the Hon'ble the Chief Minister of Orissa had also desired that he should go to Cuttack and work there. There is no affidavit-in-reply by the appellant and we are. therefore, inclined to accept that the aforesaid submission was made before the learned trial Judge on behalf of the appellant. In our view, the learned trial Judge was justified in disposing of the writ petition by passing a very short judgment incorporating the case of the department that the writ petitioner should attend Cuttack office for three months for attending urgent works and he would be taken back within three months. Even if the order of the learned trial Judge is not an order passed on consent of parties there is no manner of doubt that the appellant invited the court to dispose of the writ petition without filing any affidavit-in-opposition on a clear assurance given to the writ petitioner that he had been sent to Cuttack for attending to some urgent works and the writ petitioner's stay at Cuttack was intended to be for a short period of three months after which he would be taken back to Calcutta. The learned trial Judge therefore did not pass any interim order as prayed for and he disposed of the writ petition on the basis of the suggestion made on behalf of the appellant. It has been admitted by the appellant that initially the learned trial Judge prima facie held that the impugned order of transfer was improper and was inclined to pass an interim order of stay but because of the aforesaid submission that the said transfer was for a very short period namely for three months, no interim order was passed by the learned trial Judge and the writ petition itself was finally disposed of on the basis of the submissions made before the court. If a party invites the court to dispose of the writ petition on a factual basis represented to the court and the writ petition is ultimately disposed of on the basis of such representation, the party succeeding in the disposal of the writ petition on the basis of a factual representation, in our view, should not be encouraged to challenge the order of the learned trial Judge in an appeal and contend before the court of appeal that the order of the learned trial Judge is not proper. It will be a travesty of justice and fair play if the appellant who had succeeded before the learned trial Judge in not suffering any interim order proposed to be made and in maintaining the impugned order of transfer by inviting the learned trial Judge to proceed on the footing that the order of transfer was intended to be operative for three months only and the writ petitioner would be brought back to Calcutta within three months is allowed to contend before the Court of Appeal that the impugned order of transfer should not be limited to three months but should continue indefinitely. The writ petitioner respondent No. 1 has specifically stated in the affidavit-in-opposition that the appellant had invited the learned trial Judge to dispose of the writ petition without filing any affidavit to the writ petition on the aforesaid factual basis and the appellant has not filed any affidavit-in-reply to such affidavit-in-opposition of the writ petitioner respondent. It also appears to us that the appellant, namely, the Regional Manager, Regional Office. Calcutta had acted improperly in sending a note to the Branch Manager at Cuttack to the effect that the writ petitioner respondent No. 1 should be sent to Calcutta for temporary work from 5th March, 1987 to 15th March, 1987 in terms of the order passed by the learned trial Judge. In our view, such intimation is not in conformity with the order passed by the learned trial Judge. It appears to us that the Regional Manager did not intend to give effect to the order passed by the learned trial Judge and sent an intimation to the Branch Manager, Cuttack at a belated stage for sending the writ petitioner for doing some temporary works at Calcutta for about ten days only. Such an intimation does not and cannot mean that the writ petitioner is being brought back to Calcutta on retransfer subject to the result of the appeal.
16. In the aforesaid circumstances, this appeal is dismissed with costs assessed at 30 G.Ms. treating the same as on day's list. No further order need be passed on the application for stay and the same is also disposed of accordingly.
K.M. Yusuf, J.
17. I agree.