COUNCIL OF BAPTIST CHURCHIES IN NORTH EASTERN INDIA Vs. SUBHRAJYOTI DAS

JUDGEMENT

(1.) This appeal is so preferred by the appellants/defendants under Order 43 Rule 1 (r) read with Section 151 of the CPC against the order dated 2.6.97 passed in Misc (J) Case No. 157/96 arising out of Title Suit No. 94/96 by virtue of which, the learned Civil Judge (Senior Division) Jorhat made the order so passed in the said Misc (I) Case on 13.11,96 granting ad-interim injunction so sought for by the respondent/plaintiff absolute till the disposal of Title Suit No.94/96.

(2.) The appellants of this appeal are the General Secretary, Chairman of Medical Board and other office bearers of the Council of Baptist Churches in North-Eastern India Region (hereinafter for brevity called as CBCNET), a charitable institution specialising in rendering medical treatment and care to the suffering humanity in the entire North- Eastern India having hospitals in various parts of North-East India including one at Jorhat under the name and style The Jorhat Christian Medical Centre" (hereinafter referred to as JCMC). It is on behalf of this Institution that the appellants have filed this Miscellaneous Appeal. This will not be out of place to mention that the respondent/plaintiff Dr. Subhrajyoti Das had filed a Title Suit against the present appellants/defendants being aggrieved by the order of his transfer dated 14.6.96 from JCMC to Kangpokpi Christian Hospital. In the said Title Suit a petition for grant of ad-interim injunction was also so filed under Order 39 Rule 1 & 2 of the CPC which was so initially granted by the learned Court below on 13.11.96 ex-parte and subsequently, on 2.6.97 the same was made absolute after hearing both the sides lawyers and in the said Misc (J) Case No. 157/96 even the present appellants had filed objections.

(3.) Heard Mr. A.R.Borthakur, the learned senior counsel assisted by Mr. P. Borthakur, the learned Sr. counsel appearing on behalf on the appellants and Mr. N.M. Lahiri. the learned senior counsel assisted by Mr. N. Choudhury, the learned counsel, appearing on behalf of the respondents/Plaintiffs. On behalf of the appellants, it is pointed out that the transfer so made by the respondent/ plaintiff dated 14.6.96 was in connection with looking into the greater need of the public in general, feeling the necessity of the respondent's transfer from Jorhat to Kangpokpi Christian Hospital which was so done by the Medical Board duly constituted by the Institution of repute and vide Resolution No.ME 96-27. It is also pointed out that the respondent was so appointed as to render his service under CBCNEI and was posted at JCMC Hospital on the date of his appointment in the year 1988 and his services also got confirmed in the year 1996 by the order dated 11.6.96. It is one of the conditions of the service so prevalent even in the scheme of CBCNEI Hospitals as to transfer the employees including the doctors from one hospital to other for which the Board is duly authorised and the transfer under challenge was so made in public interest as to utilise his best skilled services in another hospital at Kangpokpi. The representation so filed by the respondent/plaintiff was also rejected and even the review petition so filed later on was also not considered favourably which was so also rejected and duly communicated to him vide letter dated 12.11.96. It is after the rejection of his review petition that on the next date i.e. 13.11.96 Title Suit bearing No. 94/96 was so filed by the respondent/plaintiff on flimsy grounds with a separate petition for grant of ad-interim injunction which was so granted and made absolute on 2.6.97, which is the order under challenge. Mr Borthakur. the learned counsel for the appellants, submitted that on no account the respondent/plaintiff can take any advantage that since the terms and conditions of the appointment did not specifically refer with regard to the transfer of the doctor from one place to another, that being the position, he would not have been transferred. It is pointed out that even if the bye laws of the said Institution do not specifically mention with regard to the transfer of their employees from one place to another but that is implied and the employer i.e. the said Institution is within its limit as to transfer even the doctors from one hospital to another spread over at so many places in the North- Eastern Region known as Baptist Churches Christian Medical Hospitals, The transfers are being made by the Board of CBCNEI, scrutinising the need of the employee to the best utilized as to render charitable services to the public in general and suffering humanity by extending medical treatment which is so done in these Christian Hospitals. In support of his contention, attention is drawn particularly to para 16 of the written statement so filed on behalf of the present appellants figuring as defendants in the said Title Suit and in the objection so filed in Misc (J) Case No. 157/96 and in that background, it is submitted that there are good number of examples as detailed in para 16 of the written statement with regard to the doctors being transferred from one Christian Hospital to another lor public interest and this case under challenge was, thus, not a singular case at all. It is, further, pointed out that Kongpokpi Christian Hospital in Manipur where the present respondent/plaintiff is transferred, is a 60 bedded hospital having the required facilities for surgical operations where the reputed Surgeon like Dr. A. Hrassel worked for several years and operated innumerable cases. It is also submitted that Kongpokpi is a throbbing down in Manipur having a population of more than 1 lakh within the radius of 5 km. and therefore, the respondent/ plaintiff transferred there can best be utilised in the said hospital where the need is great as felt by the Board to post an experienced Surgeon. It is also submitted that the grounds so taken for not transferring the respondent/ plaintiff because of his mother being old and ailing cannot be availed by him because as per his own case. she is not residing with him at Jorhat but she is residing at Tinsukia which is at a distance of about 100 km. from Jorhat where at Trinsukia also there are good doctors. It is submitted that once his representation is disallowed,the review petition also rejected, it was incumbent on the part of the respondent/ plaintiff as to join his new assignment instead filing Title Suit with a prayer for grant of injunction belatedly and which is so granted cryptically without exercise of proper judicious mind. Furthermore, it is submitted that the respondent/plaintiff by order dated 8.10.96 has already been released from JCMC on 15.10.96 and has gone on leave extending the same on one ground or the other to the great in convenience and annoyance on the employer CBCNEI and in a case like this, now, the appellants may even take disciplinary action against the employee Dr. Subrojyoti Das which has so not been initiated because of the impugned order. It is also submitted that on no account in the instant case the impugned order of transfer can be said to be malafide. No law requires employee to be heard before transfer if the transfer is made for the exigencies of the administration keeping into consideration the public interest and the best utility of the employee at a different place. If the malafide is so claimed by the transferred employee, the onus is heavily upon him as to prove the same with strong and convincing reasons which, in the instant case has not at all been done seeking grant of ad interim injunction and in support of his contention, on behalf of the appellants, two of the reported cases are so cited and they are - 1994 Supplementary (2) SCC Page-666, particularly its para-2, Director of School Education Vs. O. Karuppa Theven & Ors. and 1995 Supplementary (2) SCC Page-151, State of Uttar Pradesh Vs. Dr V.N. Prasad. In this connection, it is also added that in absence of prima facie material to establish malafides of the transfer order, the interim injunction staying the operation of the transfer, in such circumstance, would not have been granted, which is unjustified and liable to be set aside. Hardship caused to the employee is also not a ground for judicial review of transfer of an employee in the instant case the respondent/plaintiff may have some personal inconvenience because of his being transferred but for that, instead knocking the door of the Court it was expected of him to make representation, and in the present case when such representation was made and disallowed, no door seeking any relief would have been sought. In support of his contention, on behalf of the appellants, a reported case is also cited which is 1995 Supplementary (3) SCC Page- 270, State of Uttar Pradesh and Ors. Vs. S.S. Kourav and Ors., particularly its head note 'C' and paragraph 6 is referred. Mr. Borthakur, the learned counsel, appearing on behalf of the appellant, has submitted that malafide can be drawn only on the basis of the factual martrix and not on the basis of conjectures and surmises, rather, the malafide claimed must be based on firm foundation of facts and thereby as to make out a case for grant of injunction. In case of the transfer in service matter and in this connection, the learned counsel for the appellants claimed himself to be fortified by two of the reported cases, they are - 1993(1) SCC Page- 54, M. Sankar Narayan Vs. State of Karnataka, para-12 and 1993(1) SCC Page- 148, Rajendra Roy Vs. Union of India. In this connection, the learned counsel for the appellant, has referred to para-7 of the said Judgment which is so read over. It has also been submitted that the right of the Government servant or an employee of a private organisation as to raise voice against the order of transfer can only be considered when it is found malafide, arbitrary or in violation of any specific condition of the terms and conditions of the service. In the instant case, it is submitted that the order of transfer thus on no account can be said to be malafide or arbitrary or in violation of the terms and conditions of the service because so many doctors appointed in the said reputed and esteemed Institution got transferred and obeyed the orders of transfer for the public interest in general. Thus, the validity of the transfer so challenged, also seeking ad-interim injunction, was baseless and on no account it can be said that the said order of transfer suffers from any malice or any vindictive attitude so adopted by the employer in this case. In support of all these broad principles governing while deciding the matter with regard to grant of ad-interim injunction in a case of transfer, the learned counsel for the appellant has also referred to the following reported cases :- a) 1994(1) GLJ, page-307, Sibupada Bhattacharya Vs. State of Assam; b) AIR 1993 SC Page-1236, Rajendra Roy Vs. Union of India which is equal to 1993(1) SCC Page-54 (Supra) and 1994(1) GLJ Page-503, Biren Chandra Das Vs. State of Assam.