UNION OF INDIA Vs. SAILENDRA NATH CHAKRABORTY THAKUR

JUDGEMENT

(1.) This is a petition under Section 115 of the Code of Civil Procedure against an order of the Munsif, 1st Court, Howrah. The Union of India, the General Manager, Eastern Railway and the Divisional Superintendent, Eastern Railway, defendants Nos. 1 to 3 are the petitioners in this Court.

(2.) The plaintiff is a Telegraph Signaller of the Eastern Railway on the Howrah Division. On the 30th December, 1964, the plaintiff was posted at Belur and was transferred and posted at Sahibgunj. The plaintiff did not attend to his duties at Belur. He reported sick and submitted a medical certificate dated 1-1-65. The plaintiff was then asked to resume his duties at Sahibgunj. He was examined by the Divisional Medical Officer and he was not certified unfit for duty and was found fit. The plaintiff however did not resume his duties at Sahibjung; but on the 18th January, 1965 he caused a notice under Section 80 of the Code of Civil Procedure to be served and thereafter filed the aforesaid suit challenging the authority and validity of the aforesaid order for transfer and it was alleged that the order of transfer amounted to penalty and therefore it was bad. It may be said that on his transfer he would get the same pay and grade at Sahibgunj as he was getting at Belur. The plaintiff instituted the suit for a declaration that the order of transfer was illegal and ultra vires and for permanent injunction restraining the petitioners from giving effect to the order. He also applied for temporary injunction restraining the petitioner No. 3 from giving effect to the order of transfer dated 13th December, 1964. Objections were filed by the said petitioners to the said injunction. Thereafter, on the 26th June, 1965 the plaintiff filed an application for an order for paying to him subsistence allowance every month at the rate of Rs. 200 or salaries outstanding from January, 1965 on the ground that he was sick from the 31st December, 1964 to the 28th April, 1965. As such he was entitled to get his salaries under the Leave Rules. The petitioner objected to the said prayer for subsistence allowance. The matter was heard and the Learned Munsif directed the petitioner to pay one-half of the amount, namely, Rs. 107 as subsistence allowance and further directed the defendant to deposit a sum of Rs. 1284 as subsistence allowance for the period from January, 1965 to December, 1965.

(3.) On behalf of the petitioners, Mr. Bose urges that the Code of Civil Procedure makes no provision for granting subsistence allowance by the court. Mr. Bose makes it clear that the Railway never objected to his joining at Sahibgunj and drawing his salary there. According to Mr. Bose, he being posted at Sahibgunj he can get his salaries only at Sahibgunj and the court has no powers under the Code of Civil Procedure to grant subsistence allowance and therefore the order is bad and must be set aside.