Karnataka High Court
Rt.Rev S Vasantha Kumar vs Mrs Princess Franklyn on 2 June, 2010
Author: V.Jagannathan
Bench: V.Jagannathan
AND: IN M.F.A.No.3901/2010: MRS PRINCESS FRANKLYN, W/O MR FRANKLYN, AGED ABOUT 55 YEARS, PRINCIPAL, | 8 BISHOP COTTON GIRLS SCHOOL, | ST MARK'S ROAD, BANGALORE. IN M.F.A.No.3902/20 10: COL. JOHN ELLIS," | AGED ABOUT 57 YEARS, PRINCIPAL, _ ; BISHOP COTTON BOYS' SCHOOL, ST MARK'S ROAD, -- : BANGALORE. = .. RESPONDENTS
(By Sri ISAAC MOHANLAL, SENIOR ADV. FOR SRI JAGADEESHA H, ADV. FOR C/R IN MFA Ne. 8801/2010 oo SRIEG SUKUMARAN & ASSOCIATES, ADV.
FOR C/R IN MFA No.3902/2010.) MFA No. 3901/2010 FILED U/S 104 AND ORDER "43° RULE -l(r) OF CPC, AGAINST THE ORDER DATED: 14.05.2010 PASSED ON LA.NO.2 IN ~.0.8.NO.3161/2010 ON THE FILE OF THE IST "ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, "BANGALORE CITY (VACATION COURT, ALLOWING LA.
NO.2 UNDER ORDER 39 RULE 1 & 2 OF cok SECTION eRe 151 OF cPc FOR TI.
Boys' School and Bishop Cotton Girls' School respectively. The defendants therefore call, in question the said common order in these two appeals and in view of the commor "grounds "urged and . common order being passed by the trial 'court, these :
two appeals are also disposed of by this common judgment.
2, Col. John' Ets was appointed as the Principal of Bishop Cotton Boye' School. Bangalore by an appointment order dated 26.5.2006. Likewise, Princess B ranglyn was S appointed as the Principal of Bishop 'Sargant 'School Tumkur by appointment order dated 3.5.03, but was transferred as Principal . to the' Bishop Cotton Girls' School, Bangalore by | 'transfer order dated 16.4.2005. Both the aforementioned Principals were transferred by order dated 7.5.2010. Col. John Ellis was transferred to Cathedral High School, Bangalore and Princess Franklyn was transferred to St. John's High School,
6. The basis for the suit as well as 'the application filed by the respective Principals viz., LA 2 , senior counsel Smt. Nalini Chidambaram appearing for the appellants i.e. de endant Noi referring to the transfer of the Principal 'of, Bishop Cotton Girls' School, at the outset, submitted that the trial court erred in relying on the Constitution and the bye-laws of the Bishop Cotton Girls Schiool, but it lost sight of the Constitutien. bye-laws. of KCD and the latter Constitution | empowers the Executive Committee to transfer the Heads of all institutions and therefore the trial court couid not have lost sight of the said
-bye-law which is to be found in Chapter II {IV) (6). It 'is argued in this context that the power to appoint heads "of all Diocesan institutions within its own . jurisdiction and, have final authority in matters of "confirmation of service, transfer, discipline, dismissal, termination and suspension of such -- :
appointees and as such, the transfer of the Principal of Bishop Cotton Girls' School is well within 'the powers of KCD headed by the Executive Committee" submitted that, in the course of its entire order, the trial court did not even make a reference to the Constitution and bye-laws of KCD in particular.
7. As far as ~ the transfer effected is concerned, ; submission madé by | the learned senior counsel]. is : that the transfer was effected for administrative . reasons 'and merely because no specific reason was. mentioned in the composite transfer order, it cannot be said that the transfer order is vitiated. Reference was also made to "condition: No.1] of the appointment order of the Principal of Bishop Cotton Girls' School to submit : that the said condition makes it clear that the > Principal is liable to be transferred. The trial court did not take these materials into account and erred 10 not deal with the mala fide aspect of the matter in the course of its order. Placing reliance heavily 'on the.
school's bye-laws V {b) is totally erroneous and the"
Committee not only to appoint the heads of Diocese institution, but also have the final authority in the matter of confirmation of service, transfer, dismissal, termination 'and susperision "of such appointees. Under the said circumstances, the impugned order of the court below cannot he sustained in law and the plaintiff has failed io make out a prima facie case for grant of injunction in her favour.
10, Learned senior counsel Sri. S. Nanjunda "Reddy for 'the appellant in the case of transfer of Principal of Bishop Cotton Boys' School, while reiterating the aforementioned submissions made by the learned senior counsel Smt. Nalini Chidambaram, OY. 'also contended that, being a minority institution, the 12 should be minimal regulatory measure of control and the management should have the freedom and there should not be any external controlling, agency, 7 However, a rational procedure' for the selection. of. teaching staff and for taking disciplinary action has | to be evolved by the management itself. Therefore it is contended by the learned senior counsel that the transfer order issued in the instant case in respect of the Principai gt Bishop Cotton Boys' School is concerned, ihe 'said' order. cannot be found to be wtf unless, it 13. shown: that the order itself bas Taba a ack 'ot susisa! ction or is the result of a maia fide intention or "mala fide exercise of power by _ 'the 'Management, Unless either of the two 7 ; requirements is satisfied, the order of transfer cannot be interfered with.
i2. In support of the above submission, earned senior counsel. placed reliance on the 13 decisions reported in (1993)4 SCC 357, (2001) 5 S.C.C 508, (1993) 1 S.C.C 54, (2002) 5 S.C.C.769. ° | force from 1.1.2006 is concerned, referring to the said amendment which gave the Executive Committee to transfer the Heads of institutions, it is. argued that, as on the date of the transfer order, 'the amendment had already come into force and secondly even in the order of appointment issued tu the Principal, there is a condition that the "Principal is also liable to be transferred ; : . Under . these circumstances, the question of amendment having no application to the instant case, does not arise.
- 14, "AS far as the ground of mala fide taken up by the Principal concerned in the suit, it is argued os that it is a matter of trial and only when the plaintiff is able to establish by placing proper material as to _ the mala fide exercise of power by the Executive Committee headed by the 1*' appellant, the question oe 14 of considering the ground of mala fide act on the part of the appellant does arise and the plaintiff, if he succeeds in establishing the ground of mala 'fide :
the plaintiff can always be compensated by the 'tial | court by awarding damages: but vat th e "stage of hearing the 1.A for grant of injunction, the trial court ought to have seen "whether there existed a prima facie case in favour of the plaintiff when the transfer order has been passed by che appellant, who is alsoa Chairman of the Executive Committee and the said transfer being int accordance with the bye-laws of KCD, the question of | there being no power to transfer ~~. the Principal, does not arise.
15. "As far as the balance of convenience is concerned, it is argued by the learned senior counsel : that the trial court ought to have seen that the 'balance of convenience lies in favour of the Management rather than the plaintiff, in as much as, :15
the plaintiff was transferred from one institution to another institution in Bangalore and as such. the said transfer was effected much prior to "the:
commencement of the academic year and it such an. order is not given effect to, the institution would be.
put to loss, inconvenience > rativer than the plaintif.
16. In the light. of the" aforementioned submission and the décision referred to, learned senior counsel sough! for setting 'aside the impugned order of the inal court, Learned senior counsel also referred i int the course of his argument to the Minutes of Meeting held on. Vy 5.2010 to submit that the decision to transfer the Heads of institutions was | taken by the Executive Committee which comprises of 26 "pers sons and the said decision was not untiateral decision of the 1st appellant herein.
17. Sri. Isaac MohanLal arguing in MFA 3901 /10 which concerns the transter of the Principal 7 from Blehop. Cotton Girls' School, supported the 17 the Bishop Cotton Girls' School in place of. the plaintiff Princess Franklyn, happens to be the. cousin | of the 1st appellant and though the said Lydia Joshua : :
was not selected at the first instance. now by virtue of the present order, the said Lydia Joshua has been | given entry into Bishop Cotten Girls' School, This shall also be read in 'the context of a 4 complain being filed against the 1st - appeliant + and. it. is the said complaint and. the consequent events that prompted the st appellant to th ansfer the plaintiff Princess Franklyn to another school.
19. Further : submission made is that a demand was s made by the 1s' appellant Bishop to transfer Rs.5 . Jakhs to the personal account of the Bishop and as 'the Principal did not agree to the said demand, the order 'of | transfer has been passed. As far as the _ Executive Committee of the KCD. is concerned, it is argued that it is - not the wight authority to. transfer "the | Heads of institutions, but 4 it 1s y Only the » final 2 ;19
21. As far as the matter being referred to arbitration is concerned, learned counsel Sri Isaac Mohanlal contended that the present case is not tie .
one which can be brought within the 'ambit "of. 7 specified case as can be found in the said arbitration clause and transfer is not one such item which can be brought within the folder of Said expression and as such, question of the thatter.. being referred to arbitration also' does riot" arise. Hence, learned counsel sought for affirming the order of the trial court.
22. Sri, | x Sukumaran, learned counsel appearing for the Principal of Bishop Cotton Boys' = , adogh . School, while admailting the submission made by the yeamed counsel Sri. Isaac Mohanlal, in so far as the interpretation of the bye-laws of the school and that
--_ ase lsucermned, of the KCD, contended that the order of transfer is nothing but an exercise of mala fide - intention « on the part of the st appellant. The transfer order itself (has 20 been signed by the Bishop who is the 1st defendant and it is not signed by the Chairman of the KCD Executive Committee. Therefore, the impugned order of transfer is illegal. --
23. Referring to the reasons assigned by the learned trial Judge, it is submitted that the earned trial Judge was right in holding that there is no bye- laws to transfer the Principal from one school to another and 1 reerning to the minutes of the KCD held on 11.5. 2007, it is argued. that the Members of the Executive Committee have not decided on_ the question of transfer of the Heads of institutions, but only indicated that there shall be a clear policy for transfer of Heads of institutions.
24. Another submission made is that the
- . conseitt of the Heads of institutions also will have to be obtained before effecting the transfer and for this reason also, the order of transfer cannot be sustained in law. 'Yet, another submission made byt the learned 22 referred to arbitration does not arise as Civil Court has got jurisdiction to entertain u/s 9 an application for interim measure. Therefore, relying on many decisions referred to by the learned counsel Sr, Isaac Mohanlal, it is argued by Sri. "Sukumaran that the order of the trial court does not call for interference.
26. In the light of the atoresaid submissions made by the learned counsel for the parties and the decisions referred to by them, 'the only point for consideration is, is, whether the appellants have made out a ease for vhis. 'court to interfere with the impugned or der the trial court.
27 It is the transfer order dated 7.5.2010 that Aah hv Ano hoa. .
"the. suit being filed by the two Principals of the respective schools viz., Bishop Cotton Boys : Schoo and Bishop Cotton Girls School, and the / interim order of the trial court is also passed allowing | LANo. 2 filed by the respective Principals seeking an order of. "temporary Injunction, . vet the : -23
appellants from preventing the them from functioning in their respective schools. It is a well settied iaw that an order of transfer is an incident tee Sore while considering the cases in. which an "order "of . transfer was called in question. It would be proper to keep in view the principles: laid down by the Apex Court and from the 'decisions cited by the learned counsel for both the parties, the following position in law becomes 'clear:
28. in Union of Indic Vs. S.L.Abbas, reported (1993)4 se 2c 357. dealing with a case of transfer, Lo ii Court laid down the following principle:
"AN order of transfer is an incident of Government service. Who should be transferred where, is a matter for the
- appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or, is made. in. violation of any
- statutory provisions, the court. cannot ttre witht ee fe
29. An order of transfer of an employee is a part of his service conditions and such. "order af ., transfer is not required to be interfered with' lightly b y :
a court of law in exercise of - "discretionary jurisdiction, unless the court finds NS the order is mala fide or that "the service rules prohibit such transfer or thai t tae . aut norities: who issued the order, had net the competence to pass ss the order. is leas the propesivion of law laid down in the case of State Bank of India 'Ss. Anjan Sanyet reported in (2001)5 SCC 508.
30. Dealing with a case where malice is
- alleged in | the act of transfer, the Apex Court, in the " "case of M, Shankaranarayanan Vs. State of Karnataka, reported in {1993)1 SCC 54, has held that _ the inference of mala fides cannot be drawn from "mere differences of opinion between the > officer ee transferred and the: authority transferring and fi furt her, it was held that it may be permissible i in an am appropriate case to draw reasonable inference of mala fide from the facts pleaded and established but, such an inference must be drawn or based on om fatal» realm of insinuations, conjectures and surmis es.
31. In Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Panciey, reported in (2004) 12 SCC 299, the Apex Court has observed that, in the absence of ar a ariitrartness, mala fides or violation of any operative vaidetinies or rules, court's interference with order of transfer is not called for.
82. on ihe case of Somesh Tiwari Vs. Union of
-- India, reported in (2009}2 SCC 592, referred to by S 'eared co couns sel Shri Isaac Mohanlal, the Apex Court has held that an order of transfer is an administrative os order and transfer, which is ordinarily an incident of "service should not be interfered with, save in cases where inter alla mala fides. on: 'the part of the
- authority is proved a and mala 'fides « are oof two kinds - ~ S : .
26first, malice in fact and second, malice in law. 'The order in question would attract the principle of malice | in law as it was not based on any factor germans to passing of an order of transfer and 'pased on . an. irrelevant ground i.e., on the allegations made against | the appellant in an anonymous complaint i is one thing to say that the employer is entitled to-pass an order of transfer in administrative exigencies but it is another thing. to say that the: order of transfer is passed by way of, or in tie of punishment. When the order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. No vigilance enquiry was initiated against appellant.
- 'Transfer 'order was passed on material which was 7 "non-existent. The order suffers not only from non- application of mind but also suffers from malice in law.
33. It is, therefore, clear that transfer is an incident of service and cannot be interfered with by aos 27 courts unless two of the factors indicated above are brought into picture and established by the aggrieved person.
34. As far as grant of injunction is concerned. . the law is well settled and in the case of 'Hindustan Petroleum Corporation Ltd. Vs. _siman Narayan, reported in (2002)5-- SCC 760, 'the Apex Court held that, grant of. an | interlocutory injumetion during the pendency . of the legal _ proceedings is a matter requiring the "exercise. of discretion and the court normally applies the following tests:
(i) whiether the plaintit has a prima facie case;
(i). whether the bs balance of convenience is in favour ma 7 of the plaintiff and 'Git | whether the plaintiff would suffer an irreparable | ; infury if his prayer for interlocutory injunction is disallowed.
35. Therefore, the plaintiff seeking an order of temporary injunction will have to establish a prima 28 facie case in his/her favour and if no prima facie case is made out, it would not be necessary for the court. to consider the other factors like balance. ot convenience, hardship, etc. ae
36. Keeping the above paraineters of law in view, we will have to see whether the impugned order of the trial court granting injunction can be held to be sustainable in law in the hight of the 'piaterial placed by the respentive parties.
The : Principal of the - Bishop Cotton Girls School viz., Mrs. Princess: Frankiyn, was appointed as the Principal of f Bishop Sargant School, Tumkur, by os appoiniment order dated 3.5.2003. Among the terms " '¢ and condit ions of the appointment order, condition No.1) will have to be taken note of and it reads as wader:
"11. You are liable for transfer to another school of similar coming under the control 29 of the Karnataka Central Diocese, if the need arises."
In respect of the other Principal Col. John Ellis, the :
appointment order was issued.-on 26.5.2006 and he - was appointed as the Principal of Bishop Cotton Boys | School, Bangalore, and among the 12° terms and conditions, condition. No. IZ is as under: | "You are liable - for transfer to another schocl of. similar coming under the control of the. 'Karnataka Central Diocese. if the need arises.
38. woe urged before the trial court by the respective Principals and also contended a by the igerned counsel appearing for the respective Ss, ; plaintiffs in "these appeals is that the Executive Comniiitee of the KCD has no power to transfer the Os Principals of the institutions. The trial court laid 7 finieh emphasis on bye-law V(2) of the Constitution and Bye-laws of the Bishop Cotton Girls School and : the similar. one in n respect of f Boys § School and the sald. a .30
bye-laws provide that the control and management of the institution shall be vested with the Executive Committee of the Karnataka Central Diocese of the Church of South India and the institution shail be _ administered by the Board of Management under the | general policies laid down by . the 5 Executive Committee of the Diocese, anid in particular, the Diocesan Executive Committee shall have the power among others to have the power to confirm, suspend, terminate the services of ihe Principal. It is this bye- law that was taken into consideration by the trial court while accepting the contention put forward on behalf of 'the respective plaintiffs that the Executive
- Committee of the KCD has no power to transfer the ~ heads of the institution.
: 39. The trial court did not bestow its attention : to the Constitution and the Bye-laws of the KCD which provides under Chapter H{IV)(6) thus:
be 32 bye-law was referred to by the learned counsel appearing for the respondents-plaintiffs, the said bye- | law only provides that the Executive Committee shail 7 be an appellate authority on. 'all appeals. on the decision taken by the Board of Management of . the | Institutions in relation to staff matters, * in "other words, it is only in respect of the decision taken by the Board of Management of the particular institution that the Executive Committee of . the KCD functions as an appellate authority but, however, insofar as transfer is concemned, it is governed by Bye-law (IV)(6) of the Constitution and. Bye-laws of the KCD. The learned trial judge lost sight of this material placed
- by the appellants. :
Al. Notwithstanding the aforesaid power conierred on the Executive Committee of the KCD by the Constitution and Bye-laws of the KCD, it is also very relevant to mention that, in the appointment orders issued to the respective Principals, it has been 35 admission of students and the fees to be charged. In the very same decision, while answering . "the questions, referring to question No.5S{(c). 'the Ape Court made the following observations: ;
"@. 5. (c). Whether the statutory :
provisions which regulate the. faccts ot : administration. like ~ control over educational agencies, - contrel over governing bodies, conditions of affiliation including recognition/ wither: awal thereof, and appointment of. staff. employees, teachers aid principies "including their 2 service conditions and regulation of fees ete. would' interfere with the right of administration of minorities?
A. So far as the statutory provisions reg ilating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as. well as conditions of affiliation to a university or board have to be complied with, but in the 36 matter of day-to-day management, like appointment of staff, teaching and non 7 .
teaching and administrative control over...
them, the management should have, the | freedom and there shouid not be any external controlling agency, - However, a rational procedure . for | selection | . of :
teaching staff and for> taking ciseipinay :
action has to be evolved by management itselt. ~ For redressing the grievances of . such employees who are subjec ted. to punishment or termination from service, a mechanism will have to be : evolved and in our opinion, appropriate "tribunals" 'ould be constituted, and till then, such. 'tribanal could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of 'un educations institution.
_ Regulations: ean be framed. es ing "service ; conditions: for teaching ee and other staff for whom aid is provided | by the State without interfering with 7 .
overall administrative control - of...
management over the "staif, -_ be associated with the ; ue Committee and the gizidelines. for : selection can be laid down. In regard to unaided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare ¢ oF: 'teachers could be fr aimed.
- There could... be appropriate "mechanism to ensure that no capitation fee is charged. ard profiteering is not resorted. to, | : The extent of regulations will not be the "-same for aided and unaided institutions."
44. _ Therefore, when the Executive Committee of the KCD takes the decision to transfer not t only the _ respective plants but several others. along with .
them as could | be seen | bos the i sfer order, it ds 38 not for the courts to sit in judgment over the facets of administration and the management should have the | freedom and there should not be any external"
controlling agency. Therefore, when the management decides to transfer several | pers :ons by issuing composite transfer order, it is needless to say that a need must have arisen for the Executive Committee to take such a decision. .
45, | 'The trial sourt, unfortunately. went a in a tangent and, ignoring the Constitution and the Bye- laws of the KCD and 'the Sowers conferred on the KCD, only took note of the Constitution and Bye-laws of the schools concerned and committed serious error
- _ in hoiding that the plaintiffs have made out a prima facie case. : At the cost of repetition, it has to be mentionied that not only the Executive Committee has SS got the authority to transfer the heads of the.
| : institutions but, even in the very appointment orders issued to the € respective plaintifis, there isa condition nO | 7 oS 39 that they will also be liable for transfer. In the face of such material, even if the amendment is said' to .
have come into force on 1.1.2006, that only goes to .
the contention of the learned | counsel for the respondents that the amendinent came into force only in 2006 and that the appointment orders were issued much prior" to tha date pales into insignificance. Even looked from another angle, the amendment was in force as on the date of transfer. Under these circumstances, the reasoning of the trial court cannot but be termed as unreasonable and "capricious."
46. Insofar the contention put forward by the ~ learned counsel for the respondents that in the
- history of the Bishop Cotton Schools, both 'girls' and + boys', there has never been an instance of the 40 Principal of the respective school being transferred and that all the past Principals retired while | functioning as the Principal of the Bishop Cotton Boys' and Girls' Schools respectiv ely, is concerned, when the Executive Committee decides that oven the heads of the institutions will have to be transferred and to that effect, the-decis ston I is also taken by all the 26 members of the Executive Committee when they met on 7.5.20 10, with & vine theinbet dissenting, and when in the very appoitstment orders it is mentioned that the respective « Principals are liable to be transferred and when. transfer itself is an incident of service, the question of the Executive Committee not
- having the. power to transfer the Principals of any of \ 'the institutions including that of Bishop Cotton Boys' Schoci 'anid Bishop Cotton Girls' School does not "47. The respondents' counsel have not been.
41bye-law which lays down the rule that the Principals of the Bishop Cotton Boys' School and Bishop Cotton Girls' School can never be transferred at all. The have to be rejected as not having force behind it. In fact, it must be said. at this: juncture that "what is. permanent is change"and merely. yevause of a long- standing history of the Principals of the respective schools having retired ro Principals of the said schools, that itself is not sufficient to hold that the Executive Committee of the KCD does not have the power to transfer the Principals.
48. As far as the ground of mala fides alleged 'is "concerned, though the learned counsel for the respondents argued by referring to certain material : that the transfer order of the appellants is ill-
motivated and is on account of a complaint being | a ae lodged against the first appellant herein, the trial = 42 court, in the course of its order, has not whispered a word about the transfer order being tainted with mali . fides. That apart, the respective Principals h have been a Bangalore and if the respective Principals : are "able to establish in their suits alo rial that their tr ansfers were affected because of mala fides, they will be entitled to damages at the hands of the trial court. But, that can anly happen only after trial and if the plaintiffs ; are able to" establish that their transfers were affected with mala fide intention.
49. Insofar "the. decision upon which the learned counsel Shri Isaac Mohanlal relies is . concerned viz., the Full Bench decision of the High Court of Judicature, Madras, (The Correspondent, Malankara Syrian Catholic School, Marthandam, ~ Kanyakumari District Vs. J.Rabinson Jacob, reported --
in 1998(3) MLJ 595), though it was contended by"
referring to the said decision that the 'management a 45 Principal to join the institution to which he has been posted and for this, learned counsel Shri B. MAb, for the appellants submits that the Principal is at"
liberty to join at the earliest, preferably tomorrow he.
3.6.2010, as the schools have started functioning.
53. In the result, both the appeals stand allowed and the impugned order « of the trial court on LA.No.2 is set aside. it. is also made clear that the above observations shall not vave any bearing on the merits of the case. | Sd/-
JUDGE » Der/eke: