Bangladesh Sericulture Board & another Vs. Md. Fazlur Rahman Akunjee & another

Bangladesh Sericulture Board & another (Appellants)

Vs.

Md. Fazlur Rahman Akunjee & another (Respondents)

 

 

Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhu­ry J

Shahabuddin Ah­med J

MH Rahman J

ATM Afzal J

Judgment

June 6, 1988

The Code of Civil Procedure, 1908 (V of 1908), Order XXXIX, rule 1.

The plaintiff was reverted to the former post of Assistant Secretary from the ad-hoc promoted post of deputy secretary. Reversion to the original post is not necessarily always penal. A relief of temporary injunction cannot be granted just for the mere asking of it. The principle of exercise of discretion must be performed upon correct judicial principles, which has been violated and the appeal is allowed……………………(9)

Lawyers Involved:

Akram Hossain Amin, Advocate-on-Record— For the Appellants.

Mahbubur Rahman, Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record—For the Respondent No. 1.

Ex-parte— Respondent No. 2

Civil Appeal No. 8 of 1987.

Judgement

A.T.M. Afzal J. — This is a defendant’s ap­peal, by leave, from judgment and order dated Sep­tember 25, 1986 passed by a Single Judge of the High Court Division, (Rangpur Session) in Revi­sion restoring the order of the Munsif granting tem­porary injunction after setting aside that of the Dis­trict Judge vacating the same.

2. Plaintiff-respondent brought O.C. Suit No. 91 of 1986 in the Court of Munsif, Sadar Rajshahi on 9.3.86 praying for a declaration that the order of the defendant-appellant No. 2 reverting the plaintiff to the post of Assistant Secretary from that of the Dep­uty Secretary of the Bangladesh Sericulture Board, Rajshahi was illegal, void and without jurisdiction and he was still the Deputy Secretary of the said Board. The plaintiff prayed for an order of temporary injunction restraining the defendants from giving ef­fect to the said order of reversion and also from tak­ing over charge from him.

3. Defendants opposed the prayer for temporary injunction raising, amongst other, the plea that the impugned order had already taken effect from 3.3.86 when the same was served upon the plaintiff.

4. The learned Munsif by his order dated 12.5.86 granted temporary injunction as prayed for but on appeal the learned District Judge, Rajshahi by his order dated 29.6.86 vacated the said order of in­junction. Plaintiff then went in revision and the learned Judge of the High Court Division, by the im­pugned order, set aside the order of the District Judge and restored that of the Munsif.

5. Leave to appeal was granted to consider whether the order for temporary injunction was passed on sound judicial principles.

It appears from the judgment of the learned Dis­trict Judge that he found from record that the plaintiff was promoted from the post of Assistant Secretary to the post of Deputy Secretary on Ad-hoc basis on 31.1.83 as per recommendation of the M.L. Vigilance Team. Subsequently such promotion was found ille­gal and as per recommendation of the Ministry of Jute and Textiles (Textile wing) the plaintiff-respondent was reverted to his previous post of As­sistant Secretary with immediate effect. The order was communicated to the plaintiff on 3.3.86. The learned District Judge, therefore, took the view that the pur­port and consequence of the order was that the plaintiff was actually reverted to the post of Assistant Secre­tary with effect from 3.3.86 and thus there was no scope to keep him in the post of Deputy Secretary by an order of injunction.

6. The learned Judge of the High Court Division upon a reference to some cases observed that the relief of temporary injunction may be granted to the em­ployee of a statutory body who has brought an action challenging an order of his removal from service or even reversion from higher post to lower post. There cannot be much dispute with this broad proposition but the question in every case will be whether in the facts of that particular case a relief of temporary injunction ought to be given. It is elementary that to claim a relief of that nature the plaintiff must, first of all satisfy as to a prima facie nature of his case. In other words, it must appear to the court that he has a good, arguable case to be considered at the trial. In a case where the order impugned appears to be without jurisdiction on the face of it or in violation of any law or rule governing the employment in service a court can legitimately consider a prayer for tempo­rary injunction pending disposal of the action. In matters of service a court has also to keep in view the difficulties and problems that arc likely to be created in the matter of administration in that partic­ular office or organisation before allowing a prayer for temporary injunction. This is an aspect of the principle of balance of convenience and inconven­ience of the parties before the court.

7. In the instant case the learned Munsif while granting temporary injunction did not at all consider and make any finding as to whether the plaintiff has any prima facie, arguable case. He merely observed that if injunction was not granted the purpose of the suit would be defeated. This is a baseless assumption made by the Munsif, for there will be no difficulty, legal or otherwise, for the plaintiff to obtain a decree prayed for even if there was not any order of tempo­rary injunction. In the judgment of the High Court Division also there is no consideration of this as­pect, which is a vital aspect of the matter. The Dis­trict Judge set aside the order of injunction on the ground, inter alia, that the balance of convenience and inconvenience is in favour of the appellant, namely, the Sericulture Board and that the plaintiff can be compensated by money in the event of his success in the suit. In the impugned judgment the learned Judge of the High Court Division has not given any reason to negative the aforesaid findings but merely held that there was no substance in that contention.

8. It has been noticed that the plaintiff was pro­moted to the post of Deputy Secretary on ad-hoc ba­sis and subsequently on the recommendation of the Ministry he was sent back to his original post, namely, the post of Assistant Secretary. Such orders are not unusual in any administration and an order of reversion to the original post is not necessarily and al­ways penal. It is only in a case of violation of any law, service rule or principle that an employee can make a grievance against such order of reversion. In neither of the judgment of the Trial Court and the High Court Division there is any consideration, as al­ready indicated, of this aspect of the plaintiffs case, if any.

9. A relief of temporary injunction cannot be granted just for the mere asking of it after filing of a suit as has practically been done in this case. The principles governing the exercise of discretion in such matter are well known and have also been indicated above as are relevant for the present purpose. In view of the foregoing discussion we must hold that the exercise of discretion in the instant case has not been made upon correct judicial principles. In the result, therefore, the appeal is allowed without any order as to cost.

Ed.
Source: 41 DLR (AD) (1989) 25

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