STATE OF J&K Vs. GIAN CHAND

JUDGEMENT

(1.) THE State Government has preferred this appeal against the order passed in CMP No. 2086/2002 on 29.08.2002. Ordinarily, while passing an order staying the operation of the order under challenge, the Court is not required to give reasons. In the instant case, learned Single Judge on 29 -08 -2002, in SWP No. 2281/2002, made an order in CMP No. 2086/2002, by directing that the present status of respondent as Director, Indian System of Medicines, shall not be altered. The learned Single Judge disposed of the CMP finally on the same day without issuing the notice to the appellant.

(2.) THE grievance made by the State -appellant is that no notice was issued in the CMP. It is further submitted on behalf of the State, that if an ad -interim order was made and after hearing the State, the order was made, the matter would have been different. It is contended that without hearing the State, the application could not have been disposed of. The Apex Court has pointed out on number of occasions that when an interim order is passed, principles as applicable for grant of injunction are required to be borne in mind as envisaged in Order 39 of the Civil Procedure Code. In the instant case, as pointed out by the learned counsel appearing for the State, that the respondent was merely given the charge on account of urgent situation. He was not even Deputy Director and substantively he was holding the post of Assistant District Medical Officer (Ayurvedic) in the Indian System of Medicines.

(3.) IF the order would have been passed after hearing the State, even if the position would have been altered during that period, it could have been restored by the Court. Without hearing the other side and without recording the reasons, if such relief is granted, looking to nature of relief, it would amount to allowing the petition. The Apex Court in case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Others, (AIR 1985 SC 330) deprecated the grant of ad -interim relief which would constitute the main relief. Their Lordships held as under: - ......There are, of course, cases which demand that interim orders should be made in the interest of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the court to intervene and give appropriate interim relief. In cases, where denial of interim relief may lead to public mischief, grave irreparable private injury or shake citizens faith in the impartiality of public Administration, a Court may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bonafide with due regard to the public interest, a Court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for no better reason than that the parties have come to the court alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima faice case. There is the question of balance of convenience. There is the question of irreparable injury. There is the Question of public interest. There are many such factors worthy of consideration .........