IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 WP(C).No. 25732 of 2010(O) -------------------------- AGAINST THE ORDER DATED 02/08/2010 IN IA 3122 /2010 IN CMA.56/2010 of I ADDL.DISTRICT COURT, ERNAKULAM .................... PETITIONER/APPELLANT-PETITIONER: --------------- EAPEN GEORGE,S/O.N.E.GEORGE,AGED 58 YEARS,SECRETARY OF THE PASTROATE COMMITTEE OF CSI INDUSTRICT MISSION PASTORATE,RESIDING AT E-48,CHANGAMPUZHA NAGAR PO, SOUTH KALAMASSERY, KANAYANNUR TALUK,ERNAKULAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM RESPONDENTS/RESPONDENTS-RESPONDENTS: -------------------------------------- 1. RT.REV.DR.K.P.KURUVILLA,S/O.LATE MR.POTHEN KURUVILLA,AGED 62,BISHOP, DIOCESE OF NORTH KERALA IN THE CHURCH OF SOUTH INDIA,RESIDING AT BISHOP'S PALACE,SHORNUR PO 679 121,SHORNUR 1 VILLAGE,OTTAPALAM TALUK,PALAKKAD DISTRICT. 2. REV.V.L.MICHEAL,S/O.V.S.LEVI,AGED 35 YEARS, C.S.I.PARSONAGE,B STREET,MANANTHAVADY, WAYANAD-670 645 3. REV.P.J.JACOB,S/O.JOSEPH,AGED 57 YEARS, CSI INDUSTRIAL MISSION PARSONAGE, ELOOR , KALAMASSERY-683 104 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/08/2010 ALONG WITH W.P.C.No.26679 OF 2010. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.Nos.25732 and 26679 of 2010 --------------------------------------- Dated this 20th day of August, 2010 JUDGMENT These writ petitions arise from interim orders passed by the learned Additional District Judge-I, Ernakulam on I.A.Nos.3122 and 3539 of 2010 in C.M.A.No.56 of 2010 of that court. That is an appeal preferred by the petitioner in W.P.C.No.25732 of 2010 challenging the order passed by learned Additional Munsiff-I, Ernakulam on I.A.No.3091 of 2010 in O.S.No.542 of 2010. Petitioner in W.P.C.No.25732 of 2010 filed the suit as Secretary of the Pastorate committee of the CSI Industrial Mission, said to be a company registered under Indian Companies Act. Grievance of petitioner is that the Bishop in violation of norms in the matter of transfer and posting of presbyters (pastors) issued an order transferring respondent No.3 from his present post to another station in the State and appointed respondent No.2 in the place of respondent No.3. Petitioner therefore sought for relief of injunction and moved I.A.No.3091 of 2010 seeking an order of temporary injunction. Learned Munsiff after hearing both sides held in paragraph 13 of the order (Ext.P1 in W.P.C.No.25732 of 2010) that there is no such norms as petitioner and respondent W.P.C.Nos.25732 and 26679 of 2010 : 2 : No.3 claimed in the matter of transfer and posting of presbyters and no evidence in that line has also been adduced. It is also observed that what can be concluded is that transfer and postings are subject to the decision of respondent No.1, the Bishop of Diocese concerned. Accordingly learned Munsiff dismissed the application. Petitioner in W.P.C.No.25732 of 2010 challenging that order preferred the C.M.A.No.56 of 2010 and moved I.A.No.3122 of 2010 for an order of temporary injunction as prayed for in the trial court. Respondent No.3, presbyter who is transferred moved I.A.No.3539 of 2010 seeking the same relief. Learned Additional District Judge by separate orders dismissed the applications and posted the C.M appeal for hearing. Those separate orders are under challenge in these writ petitions. Learned counsel for petitioners contend that orders passed by the courts below are unjustified in that the trial court proceeded on the basis that there is no norms in the matter of transfer and posting of presbyters and that the matter come within the power of respondent No.1, while relevant norms were produced before the appellate court but appellate court has not properly appreciated the same. Learned counsel for petitioner in W.P.C.No.26679 of 2010 contends that in so far as the CSI W.P.C.Nos.25732 and 26679 of 2010 : 3 : Industrial Mission is a company registered in accordance with the provisions of the Companies Act, transfer and posting must be governed by the norms prescribed by the Memorandum of Association (clause II(d)). It is argued by learned counsel that executive committee of the Association is to act as its Managing Committee in accordance with the relevant clauses in the Memorandum of Association. Learned counsel placed reliance on the decisions in Joseph Vs. Jose (1964 KLT 234), RSRTC and Ors. Vs. Mohar Singh (2008(5) SCC 542), RSRTC and Anr. Vs. Bal Mukund (2009(4) SCC 299), Biecco Lawrie Ltd. And Anr. Vs. State of West Bengal (2009(10) SCC 32), Malabar Mar Thoma SCEA Vs. Lally Mathew and Anr. (2009(2) KLT 221) and Ambika M.P. Vs. Chief Engineer and Ors. (2010 (2) ILR 186). In Ambika M.P. Vs. Chief Engineer and Ors. (supra). It is argued that principle of promissory estoppel and legitimate expectation should apply on the facts and circumstances of the case. It is also argued that even if it is assumed that respondent No.1 has the power for transfer and posting, it cannot be exercised in an arbitrary manner affecting civil rights of the transferee concerned. 2. Petitioner in W.P.C.No.26679 of 2010 has produced W.P.C.Nos.25732 and 26679 of 2010 : 4 : Ext.P1 which is the decision of executive committee which according to the learned counsel is to act as managing committee of the church concerned. The decision taken on 13-02-2001 is that the committee 'resolved to suggest to the Pastoral and Ministerial Committee that the term of service of Pastors and Church workers in parishes “might be 3 years in general”'. The decision taken on 27-02-2001 is that as per the suggestions of the executive committee pastors and church workers will be in one station 3-5 years “in general”. True, trial court in paragraph 13 of the impugned order stated that existence of norms has not been proved. But, it is admitted in fairness that Ext.P1 in W.P.C.No.26679 of 2010 produced before the appellate court was not produced before the trial court. If that be so, petitioners cannot contend that learned Munsiff was not correct in observing that there was no proof of norms in the matter of transfer and posting. Learned counsel for petitioner in W.P.C.No.26679 of 2010 contends that it was pleaded in the trial court that as per custom, the norms in the matter of transfer and posting is as above stated but as I stated, Ext.P1 in W.P.C.No.26679 of 2010 was not produced before the trial court. 3. So far as the appellate court is concerned, reference W.P.C.Nos.25732 and 26679 of 2010 : 5 : has been made to Ext.P1 (in W.P.C.No.26679 of 2010) and it is stated that the said resolutions only said that tenure of service of pastors and church workers in parishes “might be 3 years in general”as the committee resolved to suggest as decided on 13-02-2001 and “3-5 years in general” as is decided on 27-02-2001. Appellate court observed that transfer and posting in the Diocese is under the control of respondent No.1 who is the Bishop of that Diocese and that fact was not disputed and hence it was within his power to issue orders regarding transfer and posting. So far as the tenure of service of a station is concerned, appellate court observed that what is contained in Ext.P1 in W.P.C.No.26679 of 2010 is suggestion for general observance and not abstract rule. Appellate court has also observed from the submission made on behalf of respondent No.1 that respondent No.2, the new incumbent in the post of respondent No.3 has already taken charge as per order of respondent No.1. It is in the above circumstances that appellate court declined to grant interim order during the pendancy of the C.M appeal. 4. I shall refer to the decisions relied on by learned counsel. In Joseph Vs. Jose (supra) what was concerned was distinction between individual membership right and corporate W.P.C.Nos.25732 and 26679 of 2010 : 6 : membership right. RSRTC and Ors. Vs. Mohar Singh (supra) dealt with power of the civil court under Section 9 of Code of Civil Procedure (for short, “the Code”) to entertain a suit concerning a labour dispute. Power of the civil court in the matter has been dealt with. That decision refers to the right of individual for declaration and other reliefs. In Biecco Lawrie Ltd. And Anr. Vs. State of West Bengal (supra) at paragraph 12 reference is made to the principle of natural justice and it is held that no prejudice shall be caused due to disciplinary action which shall not also affect legitimate expectation of the person affected. Ambika M.P. Vs. Chief Engineer and Ors. (supra) referred to the transfer of Government servants and adherence to norms prescribed on account of public policy. It is stated that generally in the matter of transfer, adherence has to be made to the general policy in the norms adopted on account of public policy involved and there can be no arbitrary exercise of the power. Going by the impugned orders of learned Additional District Judge it would appear that these decisions were not referred to before learned Additional District Judge. I am to presently consider whether interference is required with orders passed by the learned Additional District Judge on interlocutory W.P.C.Nos.25732 and 26679 of 2010 : 7 : applications refusing to grant injunction until disposal of the C.M appeal. Question is whether supervisory jurisdiction under Article 227 of the Constitution is required to be invoked in a case of this nature where appellate court is yet to consider contentions raised by either side to dispose of the C.M appeal. Appellate court has the occasion to consider correctness of the impugned orders passed by the trial court while deciding the C.M appeal. I stated that prima facie, the norms relied on by petitioners only stated about the term of service of presbyters or other persons referred to therein as generally during 3-5 years. That view has been taken by learned Additional District Judge while passing the impugned order. 5. Learned counsel for petitioner in W.P.C.No.26679 of 2010 contended that when petitioner was posted at the particular station he had the legitimate expectation that he can continue at that station for 3-5 years and that has been affected by the impugned order passed by respondent No.1. It is also pointed out by learned counsel that petitioner in W.P.C.No.26679 of 2010 is now placed in a difficult situation since for alleged violation of the order issued by respondent No.1 there could be disciplinary proceedings against him. He is also placed in another difficult W.P.C.Nos.25732 and 26679 of 2010 : 8 : situation that his daughter has recently undergone caesarean and convalescing. I leave these matters to be considered by the learned Additional District Judge. I am not persuaded to think that at this stage this court is required to exercise its supervisory jurisdiction under Article 227 of the Constitution. I make it clear that it will be open to the petitioners to raise all their contentions before the learned Additional District Judge and seek an early disposal of the C.M appeal. I am not expressing any opinion with regard to the acceptability of contentions raised by petitioners based on the decisions referred supra. Learned Additional District Judge shall consider these matters if raised in that court. In these circumstances, I do not think that interference under Article 227 of the Constitution is required. As regards the apprehension expressed by learned counsel for petitioner in W.P.C.No.26679 of 2010 that on account of non observance of the order of respondent No.1 petitioner might be subjected to disciplinary action, I make it clear that it is a matter which respondent No.1 has to consider with all benevolence on his part considering the situation in which petitioner is placed having regard to the fact that the matter was before the civil court and the civil court is to decide upon correctness of the order passed W.P.C.Nos.25732 and 26679 of 2010 : 9 : by respondent No.1. Resultantly directing the learned Additional District Judge to consider the contentions raised by petitioner and decide the C.M appeal untrammeled by any observation contained herein or, the finding already made by learned Additional District Judge in the impugned orders, these writ petitions are dismissed. Learned Additional District Judge is directed to dispose of the C.M appeal as early as possible and at any rate within a month from the reopening of courts on 30-08-2010. (THOMAS P JOSEPH, JUDGE) Sbna/-