Calcutta High Court
Nirmalendu Sekhar Karmakar And Ors. vs The Basumati Corporation Ltd. And Ors. ... on 9 June, 1992
Equivalent citations: (1992)2CALLT194(HC)
JUDGMENT Anandamoy Bhattacharjee, J.
1. Basumati Corporation Ltd., Respondent No. 1 in both the appeals, proposes to come out with the publication of its Newspaper, till now published from Calcutta only, from Siliguri also and with that end in view has ordered some of its officers and employees, including the appellants in these two appeals, to be transferred to Siliguri. The fourteen appellants in Appeal No. 423 and the sole applicants in Appeal No. 424 filed two separate Writ Petitions, giving rise to these two appeals, challenging the aforesaid Orders of transfer.
2. After hearing both the petitioners and the respondents, the learned Judge on 5.5.92 passed interim Order staying the operation of the Orders of transfer assailed by appellants/writ-petitioners. The writ petitions were thereafter heard analogously in due course for about 3 days and these were listed for Judgment the day after, i.e., on 29.5.92. On that date, however, the learned Judge thought it fit to set down the matters for further hearing on 25.6.92; this is the learned Judge could obviously do. But he also modified and in effect discharged the interim Orders already passed. This was again not beyond the competence of the learned Judge. But we are afraid, and this we say with respect, that the learned Judge could not do so in the manner he did for the reasons stated hereunder.
3. The learned Counsel for the appellants has addressed us at length on the illegality of the Orders of transfer, on the propriety and expediency of the interim Order passed and its continuance till the disposal of the Writ petitions and the illegality of the impugned Order modifying and virtually discharging the interim Order. Even when the appeal is not against the interim Order, but against variation or modification thereof, the legality or the propriety of the interim Order may still be relevant; for if the Original interim Order could not in law be made in any view of the materials on record and the law applicable thereto, an appellate Court would not strike down the discharge thereof by the Court below and countenance its continuance, even if the Court below was wrong in matters of procedure in the manner in which the discharge was made. But since there was an interim Order, and the same continued till and during the hearing of the main lis, and the hearing was also once concluded and the matters were listed for Judgment and have now again been adjourned for further hearing about two weeks' hereafter, we do not, as we should not, pronounce upon the legality, propriety or otherwise of the original interim Order. But we have no doubt that the Court shall not, except for compelling reasons of exceptional nature, make an interim Order, allow it to continue till and during the hearing of the main lis, post the lis for Judgment on a date and then, without delivering the Judgment and adjourning the matter for further hearing, vary, modify or discharge the interim Order. We have not been able to glean from the matters on record any compelling circumstances of exceptional nature and, as far as we can see, nothing of that sort has been adverted to by the learned Judge.
4. Notwithstanding the Explanation to Section 141 of the Code of Civil Procedure rendering the provisions of the Code inapplicable ex proprio vigoro to the proceedings under Article 226 of the Constitution, the procedure relating to Suits in the Code has nevertheless been made applicable to such proceedings by Rule 53 of the Rules framed by this Court in exercise of its legislative powers under Article 225 and other relevant provisions. The question of modification, variation or discharge of an "interim Order by way of injunction" (being the expression used in Article 226(3) of the Constitution) should, therefore be governed by the provisions of Rule 4 of Order 39 of the Code. Under the second proviso to that Rule, "where an Order of injunction has been passed after giving to a party an opportunity of being heard, the Order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or section aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the Order has caused undue hardship". Admittedly, the interim Order by way of injunction was passed after hearing both the parties. Admittedly again, there was no application by any party for variation, or discharge of that Order. The only ground adverted to by the learned Judge in justification of the variation or modification is the Respondent concern being "under serious Financial Stress". Assuming the same to be so arguendo, the "change in the circumstances" to justify variation, modification or discharge must obviously be a change occurring subsequent to the passing of the Order and the "undue hardship" that may justify any modification or discharge must also be one caused by the Order in question. There is nothing in the impugned Order to show that there has been any change of circumstances subsequent to the interim Order or causing of any undue hardship by the said Order.
5. Assuring that in a given case, the Court can vary or discharge an interim Order without any application and independently of the provisions of Rule 4 under the inherent powers, no Court can obviously do so without giving the party concerned an opportunity of being heard against such variation or discharge. For it is trite that any such Order would at once violate the fundamental principles of natural Justice enshrined in the maxim Audi Alterant Partem. It is obvious, and that is also apparent from the written notes of argument filed by the appellant/writ-Petitioners before the learned Judge, that the hearing before him, culminating in the impugned Order on 29.5.92, related solely to the main proceeding and not to any modification of any interim Order.
6. As pointed out by the Supreme Court in Sangram Singh , our Laws of Procedure are grounded on a principle of natural Justice which requires that no one should be affected unheard and no decision affecting one shall be reached behind his back and without giving him an opportunity of participating in the proceeding in question. Except where there are specific and clearly defined exceptions, our Laws of Procedure must be construed, wherever possible, in the light of that principle.
7. Both in the Order dated 5.5.92 granting the interim Order and also in the impugned Order, the learned Judge has virtually found question for his serious and further consideration "in depth" and he adjourned the matters to 25.6.92 for further hearing. In that backdrop, we cannot but regret our inability to appreciate as to what led the learned Judge to modify and virtually set aside the interim Order already granted, when the Writ Petitions themselves were reasonably expected to be finally disposed of within few weeks.
8. The interim Order, as originally granted by the Order dated 5.5.92 was to operate for a limited period till 25.5.92. It, therefore, expired on 26.5.92 when the main Writ proceedings were being heard by the learned Judge on that date :-
"This matter is in the midst of hearing. Learned Advocate General has appeared for the respondents. It is submitted that nothing is going to happen during course of hearing. The matter will be taken up to-morrow at 2 P.M."
9. The learned Advocate-General appearing for the respondents has urged that on 29.5.92 when the impugned Order was passed, there was no interim Order in operation which could in law be modified or discharged and, therefore, the present appeals against any such purported modification or discharge of any non-existent interim Order are not maintainable. Mr. Mukherjee has, however, contended on the strength of the Order extracted above that an interim Order to maintain status quo very much started operating as a result of the assurance given by the Advocate-General which was also accepted and recorded by the Court. An undertaking to the Court to do or to abstain from doing something, obviously operates in effect as an Order of the Court or something analogous to an Order made by the Court. The expression used in the Order dated 26.5.92 could have been much more precise and definite to allay all possible doubts. But at any rate, when there is doubt or dispute as to what happened in or before a Court, we always go by the version of the Court concerned, unless the same is demonstrated to be wrong. Since the learned Judge, after recording the aforesaid Order himself proceeded on the basis of that some sort of interim prohibitory Order was in operation and expressly proceeded to modify the same, the matter should no longer detain us, specially in the absence of any assertion on the side of the Respondents to the effect that no such stand was taken or no such assurance was given by them.
10. Mr. Mukherjee has, also urged that even, if there is some doubts as to the scope or effect of the Order recorded on 26.5.92 and two view are possible as to whether there was some sort of prohibition against the Respondents from taking any further action against the appellants resulting from the assurance given, the view in favour of the appellants-employees must be accepted. Though Mr. Mukherjee has not referred to any decision on the point, we have no doubt that the same is the true position in law as pointed by this Court in a series of Division Bench decisions in State Bank of India v. A.K. Sen (1988 Labour & Industrial Cases 1585), in, Sudhansu Sekhar v. Life Insurance Corporation of India (92 Calcutta Weekly Notes 1092), in Divisional Railway Manager v. Satyajit Majumdar (1991 Labour & Industrial Cases 1062) and other cases and it has been ruled that if any action, legislative, executive or Judicial, can yield to two views, the one in favour of the weaker or the poorer party ought to be accepted so that Social Justice can be secured to those who are in dire and greater need therefor. The employees locked up in a forensic battle against the employer are surely the weaker party, notwithstanding their power of collective bargaining and ail that. But as already noted, we entertain no doubt that as a result of the submissions made and assurance given by the Respondents, as recorded by the learned Judge on 26.5.92, the Respondents submitted to and incurred a prohibitory obligation not to disturb the status quo as; on that date vis-a-vis the appellants employees and the learned Judge has, by the impugned Order, expressly modified the same. It should also be noted that even if there was no interim: Order in formal frame, there was in substance a clear obligation on the part of the Respondents to maintain status quo as on 26.5.92 and, as pointed out by the Supreme Court in Pratap Singh , tendency of modern Court is to look, not to the letters, but to the object and to deprecate technicalities as it is the substance that counts and must take precedence over mere forms.
11. We would accordingly allow the appeals and set aside the Order of the learned Judge modifying or discharging his earlier Order staying the operation of the Orders of transfer and directing the Writ Petitioners to proceed to the place where they were ordered to be transferred by the Orders assailed. We sincerely hope that the writ petitions would be taken up for further hearing by the learned Judge on 25.6.92, as proposed by the learned Judge and would be concluded with expedition. And we would direct that the Original interim Order directing stay of operation of the Orders of transfer assailed in the two Writ Petitions shall operate till the disposal of those two Petitions by the learned Judge. No costs.
Sunil Kumar Guin, J.
12. I agree.