Sudhanshu Shekhar Ganguly, J. - (1.) The facts leading to the present appeal may be summarised in the following way: The Appellant, Ashok Paper Mills, a public limited company having factories at Jogighopa in Goalpara and Rameshwarnagar in Durbhanga and offices at Guwahati and Calcutta, appointed the Respondent as a Sales Officer with headquarters in Calcutta on March 12, 1976. The Appellant -company was a flourishing concern but it fell upon bad days, both its factories were closed in 1982 -83 and it was declared as a Relief Undertaking under the provisions of the Assam State Industries Relief Undertakings (Special Provisions) Act, 1984. Payment of salary became irregular and from October 1982, onwards increments, promotions, D.A., H.R.A. remained suspended. The company issued a circular dated May 30/31, 1988, addressed to all employees informing them that they could voluntarily resign from service and that in that case the company would arrange to pay them all outstanding allowances. On the day this circular issued, the company also issued an order transferring the Respondent from Calcutta to the Jogighopa unit. Thereafter, by another order dated June 9, 1988, the Respondent was released from the Calcutta Office. This led to the Respondent's filing Title Suit No. 999 of 1988 and obtaining an ad interim order of injunction on June 13, 1988, alleging that (i) the order of transfer was an order of degradation of rank since it did not state specifically what was the post which the Respondent was going to fill up at Jogighopa, (ii) that the services of the Respondent will be required in Calcutta for promoting sales if the Jogighopa unit starts functioning and not at Jogighopa where a Sales Officer has practically no function and (iii) lastly, that the order of transfer meant mala fide victimization of the Respondent with the ulterior motive to compel him to resign his job which he was not in a position to do at present with all his dues against the Appellant remaining unpaid and outstanding. The Appellant challenged the ad interim order under Order 39 Rule 4 of the Code of Civil Procedure alleging that the said order had been obtained by misrepresentation and suppression of material facts and further that Appellant would suffer irreparable loss since the services of the Respondent who had no work to do here in Calcutta were transferable and would be better utilized at Jogighopa where an attempt is being made to restart the factory. It was also urged that since the Respondent had already been released from Calcutta office with effect from June 11, 1988, the ad interim order should not have been passed on June 13, 1988. Certain other objections were also taken. Upon hearing both the parties the learned Chief Judge, City Civil Court, Calcutta, passed an order on May. 4, 1989, allowing the Respondent's petition for temporary injunction restraining the Appellant from giving effect to the order of transfer holding that (i) the Respondent had a prima facie case to indicate that in view of the terms of employment he was not liable to be transferred outside Calcutta and further that (ii) even granting that he was liable to be transferred the impugned order was not a bona fide order of transfer. Hence, this appeal.
(2.) Both the conclusions of the learned trial Court are being challenged in this appeal. The Respondent added another dimension to this dispute by challenging the competence of Mr. Krishna Kanta Kalita who filed this appeal on behalf of the two Appellants.
(3.) In the affidavit accompanying the stay petition Mr. Kalita described himself as Chief Officer (Special Duty) and Company Secretary of the Appellant concern and, as such, a principal officer thereof. It is urged that Mr. Kalita does not have the required qualification as under Sec. 2(45) of the Companies Act, 1956, to be a Company Secretary, that he is not a full -time Company Secretary as required under Sec. 383A of the Act and, lastly, that he has not been authorised by the Board of Directors to file this appeal.;