Delhi District Court
Sh. Dinanath Mahajan vs Wg. Cdr. J.S.K. Mahajan on 13 February, 2012
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADJ1 : SOUTH
DISTRICT SAKET COURT : NEW DLEHI
MCA No. 47/11
In the matter of :
Sh. Dinanath Mahajan
.... Appellant
VERSUS
Wg. Cdr. J.S.K. Mahajan
.... Respondent
13.02.2012
O R D E R :
1 Vide this order, I shall dispose off the present appeal filed by the appellant against the order dated 30.09.2011.
2 Brief facts of the case are that:
Respondent filed the suit for declaration, permanent and mandatory injunction against the appellant thereby challenging the premature and illegal termination of his service as Officer Secretary of the appellant no.2 vide letter dated 31.05.2011. Thereafter, on receipt of notice from the Court, appellant filed a detailed W/S and took various objections in support of its contentions. Ld. Trial Court at the time of hearing the application under Order 39 Rule 1 and 2 CPC, passed the impugned order dated 30.09.2011.
Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...1 of 10 : 2 : 3 Grounds of the appeal are that:
(i) The impugned order passed by the Ld. Trial Court is based on conjectures and surmises and therefore liable to be set aside.
(ii) The respondent is relying upon the alleged letter dated 15.06.2010, issued by Sh. Ramesh Gupta, General Secretary of the Sabha and another letter dated 15.06.2010 in which the terms and conditions of the services of the respondent are mentioned which shows that the alleged respondent was appointed by Sh. Ramesh Gupta, alleged General Secretary of the Sabha as an employee of the Sabha.
(iii) The Sabha is maintaining the attendance register in which the name of the respondent was not mentioned from June 2010 till today. It means that the respondent infact has not worked with the Sabha and the Sabha may be put to strict proof of the same thereby respondent has violated the terms and conditions of the letter dated 15.06.2010.
(iv) The Sabha has registered its office at Malviya Nagar in which Mr. Joginder Pal is working as Office Assistant, Ms. Neetu Dogra is working as Clerk and Mr. Baldev Singh is working as Clerk. It is admitted fact that when Hon'ble High Court of Delhi appointed Mr. Rajiv Bansal a receiver of the Sabha and as per the directions of the Hon'ble High Court of Delhi and Mr. Joginder Pal handed over all the books and other relevant documents to earlier President Sh. Vinay Mitter Mahajan on 15.05.2010. It is submitted that the said Joginder Pal is now filing an affidavit alongwith W/S that the respondent on 16.05.2010 handed over one important information to Sh. Joginder Pal which was duly published in the Mahajan Samachar dated 21.05.2010 27.05.2010, it means that Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...2 of 10 : 3 : respondent has now manipulated his own appointment letter, which is otherwise forged and fabricated document in active connivance and knowledge of the General Secretary.
(v) As per Clause 10 of the constitution office bearers of the Sabha can be appointed by the President and as per Clause 14, the appointment, sanction of leave etc. of all employees requires approval of President. Appellant has submitted that the respondent did not file any document to show that any such written approval was taken.
(vi)The services of the respondent were never terminated, but on the contrary, the respondent was relieved from his services under clause 10 of constitution of Sabha as post of Office Secretary comes in the category of Adhikari and not employee.
(vii) There is difference between employee and Adhikari as employee means Karamchari and Adhikari means Officer. Office Secretary is Adhikari and hence his appointment and relieving order are to be signed by President itself.
(viii) As per prevailing practice of the Sabha, contractual letter of service contracts are never issued to any person and the appointment letter was signed by General Secretary in favour of respondent with mala fide intention.
(ix) There is no record of appointment and contractual letter dated 15.06.2010 in the Head Quarter of Sabha.
(x) As per the terms of order dated 29.04.2010 of Hon'ble High Court of Delhi, General Secretary should have taken attention of both the Presidents.
1. Reliance by Ld. Trial Court on the Judgment AIR 1978 SC 851 is not Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...3 of 10 : 4 : appropriate as the facts and circumstances of the present case are different from the facts and circumstances of that case. 4 Ld. counsel for appellant argued that the decision in AIR 1978 SC 851 does not apply to the facts of the case as if the services of the respondent have been terminated illegally, he is entitled to file a suit for claiming damages. Ld. counsel for appellant referred to judgment of Priti Dash Vs. Abhimanyu Vehera, AIR 2000 Orissa 116. It was also argued that specific performance of contract cannot be served by filing a civil suit in case of contract of employee. Reliance was placed on GD Green Flora Resorts Pvt. Ltd. Vs. KuhnRikon Asia Pvt. Ltd., AIR 1999 Delhi 229; where restraint order was held to be wrong whereby the defendants were restrained from termination case of private contract which was terminable by three months' notice. Attention was also drawn to the judgment of Multichannel (India) Ltd. Vs. Kavitalaya Production, AIR 1999 Madras 59; wherein it was held that relief of injunction should be declined as that implies that the court specifically enforces performance of contract. Appellant also relief on Daulat Singh Vs. Delhi Golf Club Ltd., AIR 2002 Delhi 501; wherein it was held that grant of interim injunction against Club would amount to decreeing the suit itself. Ld. counsel for appellant further argued that the relief of interim injunction granted by impugned order is not sustainable in view of Section 41(h) of Specific Relief Act. 5 Ld. counsel for respondent argued that in the present matter there was no question of filing the suit for damages as the respondent has not Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...4 of 10 : 5 : challenged the termination of services to be illegal rather his services have not been terminated as the letter of termination has not been issued by an authorized person. It was argued that the jurisdiction of the person who terminated the services of the respondent has been challenged. 6 Arguments heard. Record perused.
7 Respondent has relied on appointment letter dated 15.06.10 issued by General Secretary wherein respondent was appointed as Office Secretary of Sabha for two years with immediate effect. It is also provided in the letter that his appointment has the approval of the working President, ABMSS. Terms and conditions of his service have also been given which specifically states that the contract is for two years only and none of the party will terminate the contract before two years. Appellant has challenged this letter of appointment as well as terms and conditions and has submitted that the same are forged documents. At the stage of deciding an injunction application, the court grants or disallows the relief sought through injunction application on prima facie basis and accordingly at the time of passing the impugned order, Ld. Trial Court has granted the relief on the basis of letter dated 15.06.2010 as prima facie the respondent was appointed by General Secretary as per the terms of constitution and his job was not terminable before two years by either of the parties. As regards the letter being forged can only be determined after due trial of the suit. The judgments relied upon by Ld. counsel for appellant do not apply to the facts of the case as in those cases, the contract was terminable by one Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...5 of 10 : 6 : month or three months notice, whereas under the appointment letter of respondent, his job was not terminable before two years. Further, under Section 14 of Specific Relief Act r/w Section 38, Specific Performance of a contract which is in its nature determinable cannot be specifically enforced. However, the contract of service of respondent was not determinable before completion of two years and was for a fixed period. Thus, granting of injunction under Section 41(h) of Specific Relief Act is not prohibited as the respondent had no other efficacious remedy available by any other mode of proceedings. 8 Respondent has also filed the letter dated 31.05.11 issued by president of Sabha i.e. appellant herein whereby the respondent was requested to hand over the complete charge / record of Office Secretary to Sh. Kailash Kumar Langar and respondent was relieved from his post with immediate effect. The respondent had challenged this letter dated 31.05.2011 and has sought a decree of declaration, declaring this letter as null and void and nonest. Respondent had also sought decree of permanent injunction for restraining the appellant from interfering in official discharge of his duties and functions as office Secretary and a decree of mandatory injunction against the appellant to allow him to discharge these functions and duties uninterruptedly. In the injunction application, respondent has prayed for passing an interim injunction order granting status quo ant in his favour in respect of his post and salary apart from other perks and allowances.
9 There are other two main points of controversy mainly whether Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...6 of 10 : 7 : respondent was an employee or the Adhikari and secondly whether he was duly appointed under the constitution of Sabha. Under Clause 10 of the constitution of Sabha, list of office bearers is given which reads as :
"President1, Senior Vice President1, Vice President6, General Secretary1, Additional General Secretary (HQ)1, Cashier / Treasurer1, Assistance Cashier / Treasurer2, Secretary2, Joint Secretary1, Deputy Secretary2, Prachar Mantri5, Legal Advisor2, Auditor1, Chief Editor Mahajan Samachar1, Zonal President5, Deputy Zonal President5, Zonal Secretary5, Joint Zonal Secretary5, Distt. Preisdent1, Deputy Distt. President1, Distt. Secretary1, Deputy Secretary1. (It will depend on the regions made) in additional to the above posts, the President can appoint other officers for the smooth work performance" .
10 It is further given that in addition to these posts, the President can appoint other officers for the smooth work performance. Under Clause 14, General Secretary has the responsibility of appointment, sanction of leave, etc of all the employees but he is directed to seek permission of the President. Appellant has submitted that respondent was an Adhikari and not an employee and thus his services could be dispensed with by the President. 11 A perusal of the list of office bearers reveals that office bearers were persons who have greater power and responsibility attached with their posts and in my considered opinion, the nature of job of respondent i.e. Office Secretary cannot be equated or compared with the office bearers enumerated in the list of clause 10 of Constitution of Sabha, when read with the posts of office bearers on the principle of ejusdem generis. This opinion is further supported with by the own contents of letter dated 31.05.2011 issued by the appellant Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...7 of 10 : 8 : wherein it is provided as "It is to inform you that the undersigned has taken over a charge of Presidentship of Akhil Bhartiya Mahajan Shiromani Sabha. After taken over the charge which has necessitated the reconstitution of the team of office bearers as well as the office secretary of Akhil Bhartiya Mahajan Shiromani Sabha." This letter is written by President i.e. the appellant and its specifically talks of two teams one of Office Bearers other of Office Secretary. In itself it establishes that respondent was an employee and not an office bearer of the Sabha. Clause 10 authorises the President to appoint/remove/terminate office bearers and would not apply to case of respondent. Further, as per contents of this letter, appellant took charge of Presidentship on 31.05.2011 and respondent was appointed on 15.06.2010. Thus, seeking approval of both the Presidents at time of his appointment is not a tenable argument. Further, non filing of any written permission or approval from the President by the respondent alongwith the plaint cannot be a ground for refusal of the relief of injunction or other reliefs as documents, if any, of such approval cannot be in possession of respondent. Rather, the same can only be in possession of appellant. Respondent was appointed under Clause 14 and it only requires the permission of the President for appointing employees. The service of employees could therefore be terminated/relieved only by General Secretary with approval of President and not by President himself. In the present matter, President has signed the letter dated 31.05.2011 which is therefore issued without jurisdiction. It has been rightly observed by the Ld. Trial Court in the impugned order that there are no allegation of dereliction of duty, absence from work, appointment being manipulated etc. in the termination letter and validity of the order must Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...8 of 10 : 9 : be judged by the reasons mentioned in the letter only and cannot be supplemented by passing subsequent orders. Ld. Trial Court has also rightly observed that where a power is conferred by any rule on any authority to perform a duty, it must be performed strictly in accordance with the rule or not at all.(Mohinder Singh Gill Vs Election Commissioner of India, AIR 1978 SC 851.) 12 It is no where provided in the Clause 11 of the Constitution of Sabha that the permission of President has to be in writing. The contention of the appellant that appropriate remedy for respondent was to file a suit for damages for illegal termination is also not tenable as in ground L of the appeal the appellant has stated that the services of the respondent were never terminated.
13 As regards the contentions that contractual letter of service are never issued to any person and the appointment letter was signed by General Secretary in favour of respondent with mala fide intention and there is no record of his appointment and contractual letter dated 15.06.2010 in the H.Q. of Sabha cannot be decided without the trial of the case.
14 In view of the observations made herein before that the respondent was an employee and was appointed under Clause 11 of Constitution and as per the terms and conditions of his employment, his contract was for 2 years from 15.06.2010 not terminable by either of the parties before two years, I find no Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...9 of 10 : 10 : infirmity in the impugned order and find no reason to interfere with the findings of Ld. Trial Court. Hence present appeal is dismissed.
15 Parties are directed to appear before the Ld. Trial Court on 21.02.2012. Let TCR alongwith copy of this order be sent back to the Ld. Trial Court. File be consigned to record room after necessary compliance. Dictated and announced in the open court on 13.02.2012 (Dr. Neera Bharihoke) ADJ1(South) Saket Courts Dinanath Mahajan Vs Wg. Cdr. J.S.K. Mahajan Contd....P...10 of 10