IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA L.P.A. No. 30/2011 Date of decision: 23. 3. 2011 Sh. Balak Ram Dhirta …..Appellant Versus State of H.P. and others. …..Respondents. Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes For the Petitioner: Mr. Lalit K. Sehgal, Advocate. For the respondents: Mr. R.K. Sharma, Sr. Addl. A.G with Mr. Rajinder Dogra, Addl. AG for respondent No. 1. Mr. S.C. Sharma, Advocate, for respondents No. 2 and 3. R.B. Misra, J (Oral) The present Letters Patent Appeal is arising from the impugned interim order dated 7.1.2011 passed in CMP No. 7684 of 2010 of learned Single Judge. 2. Appellant herein/writ petitioner while working as Branch Manager in H.P. State Co- operative Agriculture & Rural Development Bank Ltd. (in short called ‘Bank’) Chopal was transferred in the same capacity to the ‘Bank’ in Chowari, District 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Chamba, vide order dated 21.10.2010 of the Managing Director of the Bank. Being aggrieved, the appellant preferred CWP No. 7684 of 2010 with prayers to quash the above said order, inter alia, for issuance of appropriate directions to the respondent-Bank authorities to adjust the appellant herein (writ petitioner) to any other nearby Branch Office of the said Bank. This court (D.B.) on 8.12.2010 was pleased to pass the order which reads as below:- “Petitioner submits that he is on medical leave and on joining duty, he may be allowed to perform his duty as Bank Manager in one of the vacancies available. Since it is submitted that the petitioner has not been relieved as on today, it is for the Bank to retain and accommodate the petitioner appropriately.” 3. After exchange of Affidavit(s), the said writ petition has been admitted. After hearing the said writ petition, learned Single Judge was pleased to pass an order dated 7.1.2011 which reads as below:- “The petitioner wants to implead Chairman of the Bank by name as a party by making allegations of malafide also as - 3 - against him. Necessary application be filed by the next date. The interim order staying the transfer of the petitioner stands vacated since the petitioner may take time for filing the application. He had already completed tenure of 3 years service at the present place of posting. Therefore, no case is made out for extending the interim order passed in favour of the petitioner. The same stands vacated accordingly. Put up on 7.3.2011 Copy dasti.” 4. The appellant herein has already completed much more than 3 years of service as a Branch Manager of the said Bank at Chopal. The appellant/writ petitioner has also arrayed Managing Director of the ‘Bank’ alleging malafide against him at later stage and the writ petition is yet to be adjudicated upon in reference to the pleadings of the parties, materials on record and response of Managing Director therefore, we do not find any illegality in the impugned interim order dated 7.1.2011, passed by the learned Single Judge in CWP No. 7684 of 2010 recalling the interim stay order of transfer. Without expressing anything on the merits of the case of the appellant herein, in our considered - 4 - view the Letters Patent Appeal against the vacation of interim order cannot be allowed. 5. The protection was granted to the appellant herein/writ petitioner, by way of interim order regarding his transfer which however, was vacated by an interim impugned order dated 7.1.2011, therefore, subsequently granting relief by way of staying the impugned interim order, shall tantamount to granting final relief, as prayed for in the writ petition. Such relief, if granted, would restore the appellant in his original position of Branch- Manager in Bank at Chopal, which in our considered view is not justifiable more so, when the allegation of malafide incorporated at subsequent stage of filing the writ petition is yet to be adjudicated upon. 6. Hon’ble Supreme Court has consistently held that the Court should not pass an interim order which amounts to a final relief. Whether the petitioner is entitled for any relief has to be adjudicated upon at the time of final disposal of the writ petition. The Court should not pass an interim order without considering the issues of public interest balance of convenience, as to whether prima facie case is made out; as to whether the party concerned could be compensated in terms of - 5 - money etc., and other relevant consideration. ( Vide Assistant Collector of Central Excise Vs. Dunlop India Ltd., AIR 1985 SC 330, State of Rajasthan Vs. M/s Swaika Properties & Anr., AIR 1985 SC 1289; A.P. Christians Medical Educational Society Vs. Govt. of A.P. AIR 1986 SC 1490, State of Jammu & Kashmir Vs. Mohd Yakoob Khan & Ors., (1992) 4 SCC 167; U.P. Junior Doctors Action Committee & Ors Vs. Dr. B. Shital Nandwani, AIR 1992 SC 671; Guru Nanak Dev University Vs. Parminder Kumar Bansal & Anr., AIR 1993 SC 2412; St. John’s Teachers Training Institute (for Women) & Ors. Vs. State of Tamil Nadu & Ors., (1993) 3 SCC 595; Dr. B.S. Kashirsagar Vs. Abdul Khalik Mohd Musa, 1995 Suppl (2) SCC 593; The Bank of Maharashtra Vs. Race Shipping & Transport Co. (P) Ltd., AIR 1995 SC 1368; Commissioner/Secretary, Government of Health & Medical Education Department Vs. Dr. Ashok Kumar Kohli, 1995 Suppl. (4) SCC 214; Shiv Shankar & Ors. Vs. Board of Directors, U.P. State Road Transport Corporation & Ors., 1995 Supp (2) SCC 726; Union of India Vs. Shree Ganesh Steel Rolling Mills Ltd., (1996) 8 SCC 347; State of Madhya Pradesh Vs. M.V. Vyavsaya and Co., AIR 1997 SC 993; Central Board of Secondary Education Vs. P. Sunil Kumar, (1998) 5 SCC 377; and - 6 - State of U.P. & Ors. Vs. Ram Sukhi Devi AIR 2005 SC 284). 7. The logic behind this remains that ill- conceived sympathy masquerades as interlocutory justice exposing the judicial discretion to the criticism of private benevolence and the Court should not be guided by misplaced sympathy, but should rather pass interim orders making accurate assessment of even the prima facie legal position. The Court should not embarrass the authorities under the Statute by taking over the functions to be performed by them. 8. In Union of India Vs. Era Education Trust, AIR 2000 SC 1573, Hon’ble Supreme Court after considering its large number of judgments held that while passing interim order in exercise of writ jurisdiction under Article 226 of the Constitution, principles laid down for granting interim relief under Order XXXIX of Code of Civil Procedure, 1908 should be kept in mind. It can neither be issued as a matter of right nor it should be in the form which can be granted only as final relief. 9. In Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 SCC 225, Hon’ble Supreme court held that ex-parte injunction could be granted only under exceptional circumstances. The factors which should - 7 - weigh for grant of injunction are- (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex- parte injunction would involve greater injustice than grant of it would involve; (c) even if ex-parte injunction should be granted, it should only be for limited period of time; and (d) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court. 10. In Burn Standard Co.Ltd. & Ors. Vs. Dinabandhy Majumdar & Amr., AIR 1995 SC 1499, Hon’ble Supreme Court deprecated the practice of grant of interim relief which amounts to final relief, observing that High Court should exercise its discretion, while granting interim relief, reasonably and judiciously and, if loss can be repairable or the loss can be satisfied by giving back wages etc., no interim order should be granted. The relevant observations of Burn Standard Co. ltd. (supra) are extracted as below:- “It should be granted only in exceptional circumstances where the damage cannot be repaired, for the reason that if no relief for continuance in service is granted and ultimately his claim ….is - 8 - found to be acceptable, the damage can be repaired by granting him all those monetary benefits which he would have received and he continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief.” (Emphasis added) 11. Similar view has been reiterated in Council for Indian School Certificate Examination Vs. Isha Mittal & Anr., (2000)7 SCC 521.”. 12. In view of the aforesaid analysis we do not find any scope of interference in the L.P.A., therefore, it is dismissed, so also the pending application(s), if any. (R.B. Misra), J, March 23, 2011 (Surinder Singh), J (cm)