POLICE COMMISSIONER VADODARA CITY Vs. KIRITBHAI MAHOBBATSINH BRAHMBHATT

JUDGEMENT

(1.) . By means of filing this Civil Revision Application, the petitioners-State of Gujarat seek to challenge the order dated 22nd June, 1998 passed by the learned Civil Judge (Sr. Division), Vadodara in Regular Civil Suit No. 317 of 1998 granting ad interim relief against the transfer order dated 25th April, 1998 of the respondent No. 1. The petitioner had earlier challenged the order passed by the learned Civil Judge (S.D.), Vadodara in Regular Civil Suit No. 317 of 1998 dated 22nd June, 1998 in Misc. Civil Appeal No. 277 of 1998. The learned Asstt. Judge, Vadodara has heard the matter and decided the same on 15th September, 1998 wherein the said appeal which has been filed by the petitioner-State has been rejected. Against that, the present Revision Application has been filed under Sec. 115 of the Civil Procedure Code. The respondent No. 1 working as a Police Inspector in D.C.B at Vadodara since 3rd January, 1997 is ordered to be transferred by the petitioner vide Order dated 25th April, 1998. By the said transfer order, the petitioner is sought to be transferred from Vadodara to Junagadh S.R.P. Chowki as an armed S.R.P. The said order of transfer has been challenged by the respondent No, 1 on the ground of mala fide political pressure and extraneous considerations. The learned Civil Judge (S.D.), Vadodara while entertaining the Regular Civil Suit No. 317 of 1998 filed by the respondent No. 1 herein had granted interim stay against the said transfer order which order ultimately has been confirmed in Misc. Civil Appeal No. 277 of 1998 vide order dated 15th September, 1998 made by the learned Asstt. Judge, Vadodara.

(2.) . Mrs. Manisha Lavkumar, the learned A.G.P., appearing on behalf of the petitioners submitted that in case of transfers, the Civil Court has no jurisdiction to interfere. She read over the entire judgment and order made by the appellate Court and pointed out that the transfer in question has been made by the petitioners entirely in public interest and due to administrative exigencies. She stated that there is no malafide exercise of power nor there is any colourable exercise of power at the hands of the petitioners. In fact, according to the learned A.G.P., it is a simple routine transfer made in the interest of the administration, however, the Civil Court has interfered with such transfer order and granted ad interim relief which has been ultimately confirmed and appeal against the same has also been rejected. She referred various paragraphs of the appellate Court's judgment and order and pointed out that there was no prima facie case proved by the respondent No. 1 before the Civil Court which requires relief in favour of the respondent No. 1. She also submitted that the findings recorded by the trial Court as well as lower appellate Court are baseless, perverse and uncalled for and no reasonable prudent man can come to such a conclusion. She also pointed out that some of the documents which have been relied upon by the respondent No. 1 are unilateral documents solely produced by the respondent No. 1, and in such circumstances, reliance cannot be placed by the Civil Court, and therefore, the order passed by the Civil Court is illegal and contrary to the principles of the settled law. She also pointed out that in such transfer matters, the Civil Court shall have to restrain itself in interfering with the same; unless and until after recording the entire evidence by both the parties it comes to a conclusion that a clear case of mala fide is proved, then only the Civil Court can interfere, otherwise such orders cannot be made merely on the basis of some unilateral documents. She referred to paragraph Nos. 3, 9, 14, 18, 20, 27, 31 and 32 of the judgment delivered by the lower appellate Court. She also submitted that because of the transfer, there was no monetary loss to the respondent No. 1, and there is nothing on record produced by the respondent No. 1 which adversely affects the service conditions of the respondent No. 1. She also submitted that if there being any grievance against the transfer order in that case, the respondent No. 1 is required to make a representation to the authorities concerned, however. Court cannot interfere with the transfer. She also submitted that the powers under Order 39 Rule 2 has been wrongly exercised by the Civil Court and the finding that the order of transfer is mala fide is not based upon any evidence. She also submitted that the respondent No. 1 has not proved the allegations levelled against the petitioners. According to the learned A.G.P., transfer is an incident of service and it is within the powers of the petitioners to transfer the respondent No. 1. In support of her arguments, she has placed reliance upon some of the decisions delivered by this Court as well as the Hon'ble Apex Court. The first authority amongst the same being in the matter of K. Ashok Reddy v. Government of India & Ors., AIR 1994 SC 1207, the case of Judges' transfer relating to Art. 222 of the Constitution wherein the public interest has been defined. The next authority being the decision of this Court in the matter of District Superintendent of Police, Vadodara Rural & Ors. v. Chhatrasinh Chandrasinh Vadajiya. 1986 (2) GLR 1211 wherein a transfer of a Government servant made on administrative grounds is held to be legal and justified, with an observation that the Court should not interfere in such transfers. The next authority relied upon by the learned A.G.P., being in the matter of Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna & Ors., AIR 1981 SC 1577. She submitted that while granting the interim orders, the Civil Court ought to have exercised extra care and merely based upon allegations made in the plaint, no order could have been made by the Civil Court, particularly when the allegations have not been proved by the respondent No.l. She further submitted that both the Courts below have committed grave error in passing such orders which are contrary to the settled principles of law.

(3.) . Countering the submissions made by the learned A.G.P., Mr. Yatin Oza, learned Sr. Advocate appearing on behalf of the respondent No.l submitted that the Civil Court has power to grant the interim order under Order 39, Rule 2 of the Civil Procedure Code. The Civil Court has jurisdiction to pass such orders in case when prima facie on the basis of material, records, pleading and submissions, if the Court is satisfied that the order of transfer is mala fide and result of the colourable exercise of powers and/or arbitrary, then in such circumstances, it is the duty of the Court to protect such employee who has been victimized at the hands of the employer. Mr. Oza has submitted that the respondent No. 1 herein had produced sufficient evidence before the trial Court at Mark 25/1 to 25/6 in support of the allegations made in the plaint. These documents have been referred to and relied upon by the Courts below. Mr. Oza has also submitted that the entry made in the Police Station Diary at Mark 4/17 & 4/18 has been produced by the respondent. According to the learned Advocate, the trial Court as well as the appellate Court both have applied its mind and considered the relevant records and allegations made against the present respondent No. 2 and the same have not been specifically denied by him before the trial Court, therefore, the conclusion of the trial Court as well as the appellate Court is legal and valid which does not require any interference by this Court while exercising the revisional jurisdiction under Sec. 115 C.P.C. Mr. Oza has relied upon decision of the Apex Court in the matter of the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria & Anr., AIR 1976 SC 2621. In the said decision, the Apex Court has held that the Order 39, Rule 2 - interim injunction granted by the trial Court, confirmed by the appellate Court having concurrent finding - interference by the High Court under Sec. 115 C.P.C., in the circumstances, was unjustified. Mr. Oza has also relied upon the decision of the Apex Court in the matter of M/s. D.L.F Housing & Construction Co. (P) Limited v. Samp Singh & Ors., AIR 1971 SC 2324, wherein the Apex Court has observed that, 'while exercising the jurisdiction under Sec. 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Merely because the High Court would have felt inclined, had at it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Sec. 115 of the Code when there was no illegality or material irregularity committed by the the lower Court. It seems to us that in this matter, the High Court treated the revision virtually as if it was an appeal.' Mr. Oza has relied upon the decision of the Apex Court in the matter of the Managing Director (M.I.G.) Hindustan Aeronautics Limited, Balanagar, Hyderabad & Anr., v. Ajit Prasad Tarway, Manager (Purchase & Stores), Hindustan Aeronautics Limited., AIR 1973 SC 76, wherein the Apex Court has observed that the High Court; under Sec. 115 of C.P.C., had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court had exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Sec. 115 of C.P.C., relying upon the decisions of the Apex Court in the matter of D.L.F Housing & Construction Company (P) Limited v. Sarup Singh., AIR 1971 SC 2324, and Pandurang Dhani v. Maruti Hari Jadhav., AIR 1966 SC 153.