Mosharraf Hossain Vs. Bangladesh Jute In­dustries Corporation and others, 29 DLR (AD) (1977) 168

Case No: Civil Petition for Special Leave to Appeal No. 57 of 1977

Judge: Kemaluddin Hossain,

Court: Appellate Division ,,

Advocate: Mr. Ahmed Sobhan,,

Citation: 29 DLR (AD) (1977) 168

Case Year: 1977

Appellant: Mosharraf Hossain

Respondent: Bangladesh Jute In­dustries Corporation and others

Subject: Injunction, Procedural Law,

Delivery Date: 1977-3-2

 
Supreme Court
Appellate Division
(Civil)
 
Present:
A.B. Mahmud Husain CJ
Ahsanuddin Chowdhury J  
Kemaluddin Hossain J
Debesh Chandra Bhattacharya J
 
Mosharraf Hossain
………………..Petitioner.
Vs.
Bangladesh Jute In­dustries Corporation and others
….……………Respondents
 
Judgment
March 2, 1977.
 
Civil Procedure Code (V of 1908)
Order 39 rule 1
Temporary injunction should not ordinarily be granted in cases where permanent injunction cannot be granted. — In service matter an employee cannot ask for permanent injunction — If threatened injury can be compensated by monetary payment, temporary injunction cannot be granted.
 
Lawyers Involved:
Ahmad Sobhan, Senior Advocate, instructed by S.M. Huq. Advocate-on-Record.—For petitioner.
Not represented—For the Respondents.
 
Civil Petition for Special Leave to Appeal No.57 of 1977.
(From the Judgment and Order dated the 28th January, 1977, passed by the High Court of Bangladesh in Civil Revision No. 1203 of 1976
 
JUDGMENT
 
Kemaluddin Hossain J.
 
An employee of Bangladesh Jute Industries Corporation, against whom Corporation had started a disciplinary proceeding for alleged  tampering with the rate of work in the tender form, filed a suit in the Court of Munsif, Chittagong, challenging authority of the Corporation to draw the disciplinary proceeding against him without jurisdiction, and prayed for temporary injunction. This leave petition is sequel the prayer for temporary injunction. The trial court granted the temporary injunction, and the first appellate court affirmed the order. On revision by the Corporation, a Bench of the Dacca High Court, reversed the decisions of the courts below and thereby rejected the prayer for temporary injunction.
 
2.  The learned Judges held that the Cor­poration had the jurisdiction to deal with the matter of delinquency of its officer, who is guilty of misconduct and that the learned Sub­ordinate Judge wrongly held that the Corporation had no authority to draw up the discipli­nary proceeding. It was also held by the High Court that there is no allegation that the pro­ceeding has been initiated malafide, and that the learned Subordinate Judge erred in law in holding that the balance of convenience and inconvenience was in favour of the plain­tiff and consequently exercised his jurisdiction wrongly.
 
3. Mr. Ahmad Sobhan challenging the order of the High Court has, first, submitted that the learned Judges of the High Court foll­owing Noman's case, 16 DLR 537, ought to have held, that the Corporation, a nationalised organisation, could not, without framing Rules, start any disciplinary proceeding against the officer. We reserve our opinion on the correct­ness of the decision in Noman’s case. The point submitted is a question of merit of the suit, and so the learned Judges made no error in not adverting to Noman's case.
 
4.  The next submission of Mr. Sobhan, is that the finding of the learned  Judges of the High Court that there is no allegation that the initiation of the proceeding is malafide, is not correct, as the plaintiff has in the plaint made out a case of collusion and malafide. Though the submission of Mr. Sobhan is factually cor­rect yet the alleged error of the High Court is of an inconsequential nature, which has not affected merit of the decision. In any event the observation in an interlocutory proceeding is not binding on the trial court at the trial of the suit.
 
5. Mr. Sobhan has next contended, that refusal to grant temporary injunction, will entail that the plaintiff might be dismissed in "the meanwhile, and so will suffer an irrepara­ble injury. The point is not sustainable on two grounds. In the first place it is a principle for the grant of temporary injunction that, if permanent injunction cannot be granted, tem­porary injunction should not ordinarily be granted. In a suit concerning service matter by an officer of a nationalised organisation no permanent injunction is available to him. The second ground is more formidable, as the balance of convenience and inconvenience, is against the grant of temporary injunction, if the injury sustained could be compensated by monetary damages. The plaintiff's threatened injury, is nothing but a pecuniary loss which can be compensated by monetary damages whereas the loss or damage to the Corporation if temporary injunction is granted, will be in­calculable and irreparable, affecting the smooth working of the organisation, and it may very likely affect the national economy as well. The learned judges of the High Court rightly held that the lower appellate court was wrong in holding that the balance of convenience and inconvenience lay in favour of the grant of temporary injunction. It is to be observed that where the question of the smooth work­ing of public administration or national eco­nomy is involved, the rule of balance of con­venience is to refuse prayer for temporary in­junction.
 
6. Mr. Sobhan has next argued that the learned judges had under section 115 C.P.C., no jurisdiction to interfere with the concur­rent findings of the courts below, and has cited some Privy Council decisions. The enunciation of law by the Privy Council on the subject is now well settled. If the Court below, upon an erroneous finding, has assumed a jurisdic­tion illegally and with material irregularity, the High Court's revisional jurisdiction is attracted. We have already held that the courts below have illegally exercised their jurisdiction in granting temporary injunction, and so the interference by the High Court was justified.
 
Mr. Siobhan’s last contention is that the learned judges of the High Court in refusing temporary injunction has non-suited his client. We fail to see how the impugned order has anything to do with the non-suiting of the plaintiff, if he has an arguable case on merit.
 
For these reasons we find no merit in this petition. It is dismissed.
 
Ed.