Ganendra Narayan Ray, J. - (1.) This Rule is directed against the Order dated 24th January, 1979 passed by the learned Additional Subordinate Judge, Burdwan in Misc. Appeal No. 147 of 1978 affirming the Order No. 7 dated 4th of July, 1978 passed by the learned Munsif, 2nd Court, Burdwan in Title Suit No. 115 of 1978 The said Title Suit No. 115 of 1978 was instituted by the opposite party, Sri Jawarharlal Mukherjea challenging the legality and validity of the order of transfer passed by the Central Bank of India on 6th of March 1978. By the aforesaid order, the Burdwan Branch of Central Bank of India where Sri Mukherjee was acting at the relevant time, was directed by the regional office of the Central Bank of India at Calcutta that the said Sri Mukherjee should be released with instruction to report at Paragraph Branch of the said Bank and one Sri N.G. Maik, a clerk attached to Panagarh Branch, would fill up the vacancy caused by the aforesaid transfer of said Sri Jawarharlal Mukherjee. In the said suit, the plaintiff Sri Jawarharlal Mukherjee also made an application for temporary injunction and the learned Munsif by the aforesaid order No. 7 dated 4th of July, 1978 allowed the said application for temporary injunction made by the said Sri Jawarharlal Mukherjee. As a result, the Bank was restrained from giving effect to the said order of transfer until the disposal of the said Title Suit No. 115 of 1978. It appears that the defendant Bank thereafter preferred an appeal, being Misc. Appeal No. 147 of 1978 and as aforesaid by order dated 24th of January, 1979, the learned Additional Subordinate Judge, Burdwan dismissed the said appeal and affirmed the order of injunction passed by the trial court. The defendants thereafter moved this revisional application before this court and the Instant Rule was issued on such application.
(2.) Mr. Mukherjee, the learned Counsel appearing for the defendants-petitioners in the instant Rule contended that the impugned order of transfer was not paired for victimising the said employee Sri Jawarharlal Mukherjee and there is no allegation by the plaintiff Sri Mukherjee that the said order was parsed malafide or for any collateral purpose. Mr. Mukherjee submitted that it will appear from the order of transfer itself that as the wife of the said employee Sri Mukherjee was also an employee in the very same Branch, the Bank Administration thought it desirable to transfer Sri Mukherjee so shat husband and wife do not work in the Branch. Mr. Mukhetjse submitted that the said transfer was made on the basts of a policy decision taken by the Bank that near relations should not work in the same Branch. Mr. Mukherjee submitted what whether the said decision was wise or not, is not to be questioned by the court but the Bank Administration has the right to take such decision to the best of the judgment for the better administration of the banking business. Mr. Mukherjee contended that the said order of transfer was made to give effect to a policy decision taken by the Bank at the highest level and the Bank Administration thought that it would not be desirable in the interest of the Bank that two close relations should work in the same Branch. Mr. Mukherjee submitted that an employer is the beet judge are to how he should distribute his employees between different jobs and unless the decision is patently malafide, the wisdom of such decision is not justiciable in a court of law. For this contention, Mr. Mukherjee referred to a decision of the Madhya Pradesh High Court made in the case of Shaw Wallace and Company Limited v. The Central Government Industrial Tribunal-cum-Labour Court and others, reported in 1970 Labour and Industrial Cases, page 90. The Division Bench of the Madhya Pradesh High Court held to the said decision that employer is the best judge to decide as to how he will distribute his employees between different jobs. Mr. Mukherjee contended that the transfer from one Branch to another Branch of the Batik is a condition of service of the employee and even in the Shastri Award so much relied on by the plaintiff and also by the courts below, it has been recognised that the Bank has a power to transfer the employees to different Branches. In this connection, Mr. Mukherjee drew the attention of the court to the relevant provision of Shastri Award which goes to the effect that in general, the policy should be to limit the transfers to the minimum consistent with banking needs and efficiency. It was also directed in the said Award that in the case of workman not belonging to the subordinate stiff, as far as possible there should be no transfer outside the State of the languages areas In which an employee has been serving except of course with his consent. In all cases the number of transfers to which a workman is subject should be strictly limited and normally it should not be more than once in a year. Mr. Mukherjee contended that it is an undisputed fact that the plaintiff is not a member of the subordinate staff but a workman of the bank and no order of transfer has been effected on the said employee within the course of a year. Mr. Mukherjee submitted that on the face of the said Shastri Award which was relied on by the plaintiff and also relied on by the Courts below in passing the order of injuction it is quite evident and apparent that the Bank has a right to effect transfer of a workman. Mr. Mukherjee contended that the court of appeal below did not consider at all the casa of the defendants that the Bank Administration has power to transfer its employees to different branches and such exercise of power was not inconsistent with the Shastri Award. He submitted that the court of appeal below did not decide the said contention of the defendants that the Bank had power to transfer its employees but without such consideration it upheld the order of interim injunction on an utterly erroneous view that the directive of the Bank that near relations should not work in one branch did not find place in the printed bock when such printed book was prima fade binding on the plaintiff. Mr. Mukherjte drew the attention of this Court of the relevant portion of the judgment of the court of appeal which turn to the following effect : "Assuming that the appellant has a right to transfer the employee, still the directive of the letter Annexure-A arid Annexure 2 having not found place is the printed book that is prima fade not binding on the plaintiff". In this connection Mr. Mukherjee referred to a decision of the Supreme Court made in the case of Canara Banking Corporation Ltd. v. Vittal. reported in (1963) 3 S.C.R at page 268. Over a transfer of a Bank employee of the Canara Banking Corporation Limited, an industrial dispute arose and the question arose as to whether by the Shastri Award the transfer of an employee or more precisely the transfer of a workman not belonging to the subordinate staff could be made or not. It was held by the Supreme Court that the Shastri Award makes a distinction between the workmen belonging to the subordinate staff and others. While time was absolute prohibition against the transfer of the subordinate staff from their language area, there was no such absolute prohibition with regard to other workman. The Shastri Award had laid down that "as far as passible" the other workmen were not to be transferred outside their la lavage area but that left discretion with the Banks to transfer employee of the category of workmen if the best inter CITI of that Bank so required. It was for the Bank to decide how to distribute its man power in its best nearests. Relying on the said decision of the Supreme Court, Mr. Mukherjee submitted that the Shastri Award since relied on by the Courts below was taken into consideration by the Supreme Court in the matter of a transfer of an employee and it was held by the Supreme Court categorically that under the said Shastri Award, the Bank was the best judge to decide who should be transferred in the interests of the Bank and there was no prohibition of transferring a workman under the Shastri Award. Mr. Mukherjee submitted that this basic question of Bank's power to transfer its employees was not considered by the Court of appeal below, and as such there has been material irregularity in the exorcise of jurisdiction by the Court of Appeal below and for such material irregularity interference in revision is called for.
(3.) Mr. Chatterjee, the learned Counsel appearing for the plaintiff opposite party submitted that the said Shastri Award has a force of law and no order of transfer can be made which is inconsistent with the provisions of Shastri Award. Mr. Chatterjee in his fairness submitted that it cannot be contended that under the Shastri Award, a Back has been prohibited from passing any order of transfer on the workman but he submitted that the order of transfer must be consistent with the provisions of the Shastri Award. He submitted that it was directed in the Shastri Award, that the general policy of transfer should be to limit the transfers to the minimum consistent with banking needs and efficiency. Mr. Chatterjee contended that in the order of transfer, it was not stated that the said transfer was suffered for banking needs or to promote efficiency of the Banking Administration. He further submitted that it is quite apparent sad evident from the order of transfer itself that because the wife of the employees concerned had been working in the same branch, the plaintiff war transferred from the Burdwau Branch to Paoagar Branch. Mr. Chatterjee submitted that so long it is not established by the Banking Administration that the order of transfer was made consistent with the Braking needs and efficiency, such order of transfer cannot be made simply because a close relation of an employee was also working in the same Branch Mr. Chatterjee contended that a bound volume was produced at the hearing by the Braking administration containing different circulars relating to the service condition of the employees but the circular relied on by the Banking administration for giving the impugned order of transfer on the score of close relations working in the same branch did not find place in the said bound book and the learned Judge was quite justified in not placing reliance on the said circular. Mr. Chatterjee also contended that, in any event, even if it is assumed that the learned Judge had made an erroneous decision such erroneous decision cannot be interferred with in the Revisional jurisdiction of this Court under Section 115 of the C.P C. For this contention, Mr. Chatterjee referred to a few decisions of the Supreme Court. Once of such decisions was made in the case of Mahindra Land & Bulking Corporation v. Bhutnath Banerjee reported in A.I.R, 1964 S.C. at page 1336. It was hold in the said decision that it is not open to the High Court in the exercise of power under Section 115 to question the finding of fact recorded by subordinate Court. Section 115 C.P. Code applies to cases involving question of jurisdiction but it is not directed against conclusion of law or fact in which questions of jurisdiction is not involved. In the decision of the Supreme Court made in the case of M.S. Sethi v. R.P. Kapur, reported in A.I.R. 1972 S.C. at page 2379, a similar view was expressed by the Supreme Court in the decision made in the esse of Hindusthan Aeronaulles v. Ajit Prasad, reported in A.I.R. 1973 S.C. at page 776. Relying on the said decision, Mr. Chatterjee contended that the Court has jurisdiction to decide the application for interim injunction and the court gave the parties opportunities of being heard and came to a finding that in the absence of circulars being annexed to the bound book relied on by the Banking Administration, the plaintiff cannot be held to be bound by the said circulars. Mr. Chatterjee submitted that such finding of the court of appeal below may be erroneous findings but certainly the same was not without jurisdiction and as such no inference in Revision is called for.;