Gopakumar G.S. v. Ansal Buildwell Ltd. and Others

O.P.(C) No.1586 of 2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** ## **OP(C).No.1586 OF 2019** **AGAINST THE JUDGMENT DATED 6.6.2019 IN CMA 49/2019 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM** **AGAINST THE ORDER DATED 14.2.2019 IN I.A.33/2019 IN OS 13/2019 OF II ADDL. MUNSIFF COURT, ERNAKULAM** ## **PETITIONER/APPELLANT/PETITIONER/PLAINTIFF :** **GOPAKUMAR.G.S. AGED 48 YEARS S/O. LATE SANKARA PILLAI,ASSISTANT ADMINISTRATIVE OFFICER, ANSAL BUILDWELL LTD, ANSAL CITY, PUTHIYAKAVU,RESIDING AT SOURAYUDH HOUSE, S.H. LANE, VYTTILA P.O., POONITHURA VILLAGE, ERNAKULAM, PIN682 019** **BY ADVS. SRI.THOMAS M.JACOB SRI.AKHIL K.MADHAV** ## **RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS :** **1 ANSAL BUILDWELL LTD. A PUBLIC LIMITED COMPANY REGISTERED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT 118,UPPER FIRST FLOOR, PRAKASH DEEP, 7, TOLSTOY MAR, NEW DELHI, PIN-110 001, AND BRANCH OFFICE AT ANSALS RIVERDALE, EROOR P.O., ERNAKULAM, PIN-682 306, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR 2 V.VASANTHAKUMAR, AGED 50 YEARS ADDL. GENERAL MANAGER, ANSAL BUILDWELL LTD, HAVING ITS PROJECT OFFICE AT ANSAL CITY, PUTHIYAKAVU-KUREEKKAD ROAD, KUREEKKAD VILLAGE, KUREEKKAD P.O., ERNAKULAM DISTRICT,PIN-6872 305** O.P.(C) No.1586 of 2019 2 **3 RAKESH LALLA, AGED 50 YEARS GENERAL MANAGER, SALES AND MARKETING , ANSAL BUILDWELL LTD.,118,UPPER FIRST FLOOR, PRAKASH DEEP, 7,TOLSTOY MARG, NEW DELHI,PIN-110 001** **R1-2 BY ADV. SRI.K.PAUL KURIAKOSE R1-2 BY ADV. SRI.K.A.ANISH R1-2 BY ADV. SRI.T.A.RAFEEK (CHERTHALA)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(C) No.1586 of 2019 3 **C.R.** ## **P.B.SURESH KUMAR, J. ----------------------------------------------O.P.(C) No.1586 of 2019 ----------------------------------------------Dated 27[th] August, 2019** ## **J U D G M E N T** This original petition under Article 227 of the Constitution of India is instituted challenging Ext.P13 order of the Munsiff's Court, Ernakulam, and Ext.P15 judgment of the District Court, Ernakulam, affirming Ext P13 order in appeal. 2. The relevant facts are the following: The petitioner is working as Administrative Officer in the Kochi office of the first respondent. The first respondent, a public limited company, hereinafter referred to as 'the company' for short, is having operations at Kochi as also at New Delhi. On 18.12.2018, the company transferred the petitioner from its Kochi office to one of their offices at New Delhi. The petitioner has challenged the order transferring him from Kochi, before the Munsiff's Court, Ernakulam, in O.S No.13 of 2019. Along with the suit, the petitioner preferred an Interlocutory application seeking an order of temporary injunction restraining the company from implementing the order of transfer. The vacation court before which O.P.(C) No.1586 of 2019 4 the application for temporary injunction was moved, passed an _adinterim_ order in the application, as sought for by the petitioner. Later, the application was heard and disposed of by the trial court in terms of Ext.P13 order, granting to the petitioner only time for reporting for duty till 31.3.2019. In so far as the relief sought for by the petitioner has not been granted by the trial court, he challenged the decision of the trial court in appeal. The appellate court, on a re-appraisal of the pleadings and materials on record, dismissed the appeal in terms of Ext.P15 judgment. As noted, the petitioner is aggrieved by Exts.P13 and P15 decisions of the courts below. 3. Heard the learned counsel for the parties on either side. 4. It is seen from the materials on record that the petitioner was appointed initially in the service of the company as a caretaker-cum-cook on 20.1.1997. Ext.P11 is the order of appointment of the petitioner. Ext.P11 contains a condition to the effect that the appointee is liable to be transferred to any of the places of business of the company including places outside New Delhi. It is placing reliance on the said clause that the trial court declined the relief sought by the petitioner. According to the petitioner, the said clause applies only to the employees appointed in the offices of the company at New Delhi and it does not apply to employees like the petitioner who are appointed in the office of the company outside New Delhi. The O.P.(C) No.1586 of 2019 5 appellate court interpreted the said clause as one which enables the company to transfer their employees to any of their offices in terms of the requirements of the company. The appellate court also found that the petitioner is not entitled to the order sought for, as his conduct has been such as to dis-entitle him to the assistance of the court as provided for in Section 41(i) of the Specific Relief Act, 1963. The appellate court took the said view as it found that the grievance voiced by the petitioner when the transfer order was served on him was only as regards the joining time, travelling allowances etc. and it was later that the petitioner has developed a case that the transfer is vitiated by malice and it is an attempt to smoke him out of the company, so as to obtain an order of injunction from the court and to continue somehow in Kochi itself. 5. The learned counsel for the petitioner vehemently argued that it is a case where the petitioner has challenged the order of transfer on the ground that it is malicious, and both the courts have failed to consider the said ground. According to the learned counsel, the materials on record would demonstrate that the impugned transfer order was not a bona fide one, but one issued maliciously with a view to chase the petitioner out of the company. It was contended by the learned counsel that if the courts below had considered the application for temporary injunction in that perspective, the impugned decisions would not have been passed. As the courts below did not consider the O.P.(C) No.1586 of 2019 6 question whether the order of transfer is vitiated by malice, the learned counsel prayed for a remand of the application for temporary injunction to the trial court for fresh consideration. 6. Per contra, the learned counsel for the respondents pointed out that the company is a private entity engaged in real estate business. According to the learned counsel, such companies are entitled to transfer their employees to any of their offices, and such decisions cannot be challenged by the employees in courts on any ground whatsoever. The submission made by the learned counsel, in the circumstances, was that the application for temporary injunction should have been rejected by the courts below on the ground that the petitioner has not made out a prima facie case for an order of temporary injunction. 7. As it was conceded by the learned counsel for the petitioner that the company is a private entity, this court has entertained a doubt as to whether the suit is maintainable. The learned counsel for the petitioner, in the circumstances, was requested to address arguments on that point, before proceeding on the merits of the matter. 8. Placing reliance on the decision of the Apex Court in **Sunil Vasudeva & others v. Sundar Gupta and others** (Civil Appeal No.5140 of 2019) and the decision of this court in **Kanhangad Muncipality v. Amina and another** (2016 (1) KHC 684), the learned O.P.(C) No.1586 of 2019 7 counsel for the petitioner contended that in the absence of any other forum, the malicious decisions of private bodies like the company in the instant case can certainly be challenged before civil courts. 9. I have gone through the decisions cited by the learned counsel for the petitioner. The said decisions do not lay down the proposition argued by the learned counsel for the petitioner. It only lays down the proposition that no party could be left remedy-less of his/her grievances. 10. The principle _ubi jus ibi remedium,_ no doubt, is well settled. It means that where there is a right, there is a remedy. The principle is also understood meaning that there is no wrong without a remedy. The word ' _jus'_ in the maxim signifies the legal authority to do or to demand something and the word ' _remedium'_ signifies the right of action, or the means given by law for enforcement of the right. In other words, whenever the law gives a right or prohibits an injury, it also gives the remedy [See Broom's Legal Maxims-New Eleventh EditionPage 134]. The questions to be examined in the light of the aforesaid principles are whether the petitioner has a right not to be transferred outside Kochi, and whether there are any restrictions or limitations on the authority of the company in transferring its employees from one place to another. It is conceded that the petitioner has no statutory right not to be transferred outside Kochi. It is also conceded that there is no statutory prohibition for the company in transferring its O.P.(C) No.1586 of 2019 8 employees from one place to another. The petitioner has no case that the contract of employment precludes the company from transferring him outside Kochi. It is not pleaded that the petitioner has a right in common law that he shall not be transferred outside Kochi or that common law imposes any restrictions or limitations on the power of the company in transferring its employees from one place to another, leading to a corresponding right to the employees. In so far as the frame of the suit is concerned, it is seen that the order of transfer is challenged on the ground that transfer of the petitioner is mala fide and is, therefore, illegal. Common law does not recognise any such right of the petitioner or limitation on the power of the master to transfer his employees on grounds of mala fides. In other words, even if it is found that the civil court has jurisdiction to entertain a suit challenging the decision of a private entity in transferring one of their employees from one office to another, it cannot be said that the petitioner has made out a prima facie case for an order of temporary injunction. 11. Be that as it may, I shall now deal with the question of jurisdiction. It is well-settled that in the light of the provisions contained in the Specific Relief Act, 1963, a contract of personal service cannot be specifically enforced. If that be so, a court cannot give a declaration as to the correctness of an order transferring an employee in an establishment from one place to another. This general O.P.(C) No.1586 of 2019 9 rule does not, however, apply to public servants governed by the constitutional provisions, employees governed by the industrial laws in force as also to employees of statutory bodies whose terms and conditions of service are governed by the respective statues. The present case does not fall under any of the three exceptions. It is a case of private employment governed by the terms of the contract between the parties. In such cases, even if there is a condition prohibiting transfer of an employee, the court cannot enforce the same and the remedy of the party would be to sue for damages for breach of contract (See **Pearlite Liners (P) Ltd.** v. **Manorama Sirsi** [(2004)3 SCC 172]). In other words, the suit as framed is not maintainable. If that be so, the application for temporary injunction filed in such a suit cannot be entertained by the court. The original petition is devoid of merits and the same is, accordingly, dismissed. ## **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** ## tgs O.P.(C) No.1586 of 2019 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF PLAINT FILED BEFORE THE HONOURABLE DISTRICT (VACATION COURT) AND LATER NUMBERED AS O.S.NO.13/2019,BEFORE THE MUNSIFF COURT, ERNAKULAM** - **EXHIBIT P2 TRUE COPY OF I.A.NO.7416/2018 FILED BEFORE THE HONOURABLE DISTRICT COURT (VACATION COURT) LATER NUMBERED AS IA NO.33/2019 IN OAS NO.13/2019 OF MUNSIFF COURT, ENRAKULAM** - **EXHIBIT P3 TRUE COPY OF IA NO.7416/2018 FIE D BEFORE THE HONOURABLE DISTRICT COURT (VACATION COURT) LATER NUMBERED AS IA NO.33/2019 IN OS NO.13/2019 OF MUNSIFF COURT, ERNAKULAM** - **EXHIBIT P4 TRUE COPY OF COUNTER AFFIDAVIT IN I.A.NO.33/2019 IN OS 13/2019** - **EXHIBIT P5 TRUE COPY OF REPLY AFFIDAVIT IN I.A.NO.33/2019 IN OS 13/2019** - **EXHIBIT P6 TRUE COPY OF INTER OFFICE MEMO DATED 10.12.2018 FROM THE 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P7 TRUE COPY OF EXPLANATION DATED 11.12.2018 SUBMITTED BY PETITIONER** - **EXHIBIT P8 TRUE COPY OF SCANNED TRANSFER ORDER DATED 18.12.2018 ISSUED TO THE PETITIONER** - **EXHIBIT P9 TRUE COPY OF E-MAIL DATED 19.12.2018 OF THE PETITIONER TO THE 1ST RESPONDENT** - **EXHIBIT P10 TRUE COPY OF REPLY MAIL DATED 22.12.2018 RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT** - **EXHIBIT P11 TRUE COPY OF APPOINTMENT LETTER ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT** - **EXHIBIT P12 TRUE COPY OF THE RECEIPT DATED 26.7.2018 ISSUED BY VINESH TO MRS. ACHAMMA JANE MEDHURST** O.P.(C) No.1586 of 2019 11 |**EXHIBIT P13**|**TRUE COPY OF THE ORDER DATED 14.2.2019 IN**| |---|---| ||**IA NO.33/2019 IN OS NO.13/2019**| |**EXHIBIT P14**|**A TRUE COPY OF THE C.M.A 49/2019**| |**EXHIBIT P15**|**TRUE COPY OF JUDGMENT DATED 6.6.2019 IN**| ||**C.M.A.NO.49/2019 OF 2ND ADDITIONAL DISTRICT**| ||**COURT, ERNAKULAM**|