Delhi District Court
Sh. R.P. Sharma vs Vice Chancellor on 9 April, 2010
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IN THE COURT OF SH. SIDHARTH SHARMA: ASCJ (NORTH) DELHI.
SUIT NO:1084/06/03.
In the matter of:
Sh. R.P. Sharma,
S/o Sh. O.P. Sharma,
R/o C63, Vishwas Park,
Uttam Nagar, New Delhi. ..........Plaintiff
Versus
1. Vice Chancellor
University of Delhi, Delhi07.
2. Chairman
University Grants Commission,
Bahadur Shah Zafar Marg,
ITO, New Delhi.
3. Principal
Maitreyi College,
Bapudham, Chanakaya Puri,
New Delhi. ...........Defendants
Date of Institution of the suit : 26.07.2008
Date on which order was reserved : 12.03.2010
Date of decision : 12.03.2010
SUIT FOR DECLARATION, PERMANENT AND
MANDATORY INJUNCTIONS.
:JUDGMENT:
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1. The plaintiff has filed the present suit for relief of declaration and seeking permanent & mandatory injunction. The facts of the case are that the plaintiff avers himself to be a semiprofessional Assistant in the library with defendant no.3. It is the case of the plaintiff that he pointed out certain irregularities to the earlier principal and therefore, principal started harassing the plaintiff on one pretext or the other. The plaintiff was also asked to seek voluntary retirement or face consequences if he fails to follow the dictates of the principal. It is further averred that defendant no.3 started harassing the plaintiff when the plaintiff applied for medical leave for a period from 26.6.02 to 28.6.02 and submitted the medical certificate issued by CGHS Dispensary. After the lapse of few days, plaintiff was directed to submit medical certificate along with fitness. The plaintiff approached the medical officer to issue the fitness certificate but the medical officer asked him to produce the original prescription so that fitness certificate could be issued. The plaintiff requested the defendant no.3 to give back the medical prescription but the defendant instead of returning the same granted extraordinary leave without pay for the aforesaid period which was in violation of the rules & regulations. The plaintiff also submitted the certificate of medical officer stating that no fitness certificate was required for 3 days' medical leave. It is further the case of the plaintiff that he again availed medical leaves for a period 21.8.2002 to 23.8.2002 and submitted medical certificate along with fitness from a panel doctor of Delhi University but the said medical leave was again declined and he was granted extraordinary leave without pay.
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Hence, the plaintiff filed the present suit claiming for a decree of declaration be passed declaring the acts of defendant no.3 as null & void and consequently declare the period of leave from 26.2.2002 to 28.2.2002, 19.8.2002, 21.8.2002 to 23.8.2002 and from 2.9.2002 to 3.9.2002 as sanctioned from the leave account of the plaintiff and salary of nine days be paid to him without break in service. The plaintiff further prayed for a decree of permanent injunction against the defendant restraining defendants in interfering in legal discharge of the service of plaintiff and not to extend threats of suspension etc. The plaintiff also further prayed for decree of mandatory injunction directing defendant no.1 & 2 to hold enquiry against defendant no.3 and issue necessary direction to defendant no.3 to grant leave to the plaintiff on requirement and also treat the extraordinary leave without pay as sanctioned against the other account of the defendant.
2. Written statement was filed by defendant no.1 & 3 wherein contents of the plaint were denied and preliminary objections were taken stating that suit was without cause of action. It was stated that plaintiff had not been working sincerely and efficiently since the inception of his job. It was further pointed out that the plaintiff was charge sheeted on the complaint of Mrs. Raj Hatter, Lecturer of the college on charges of insubordination and irresponsible behaviour. After conducting departmental enquiry, plaintiff was found guilty of three charges and was given a stern warning and debarred from promotion for a period of six months. In reply on merits, it Suit No.1084/06/03 Page numbers/Statistics Page numbers was denied that defendants ever harassed the plaintiff as alleged. It was also denied that plaintiff was orally or ever asked to take voluntary retirement or face dire consequences. It was denied that plaintiff ever availed the medical leave. It was stated that plaintiff absented himself from 26.2.2002 to 28.2.2002 and applied for medical leave without submitting the medical fitness certificate which is a mandatory requirement as per rules & regulations. The plaintiff was also advised and was given liberty to apply for any other kind of leave in his credit but the plaintiff failed to do so. Therefore, defendant no.3 had no option but to treat the absence as leave without pay. It was further stated that leave could not be granted as a matter of right. It was further stated that plaintiff applied for grant of compensatory leave but as the plaintiff was not having any compensatory leave in his account, the same was declined and the leave was again treated as extraordinary leave without pay from 26.2.2002 till 28.2.2002. The plaintiff again applied for compensatory leave but the same was declined as there was no compensatory leave in his account. It was stated that plaintiff was in the habit of absenting himself on one pretext or the other at his whims & fancies without assigning any cogent reason. The conduct and past record of plaintiff made it abundantly that the plaintiff was not interested in working sincerely as he absented himself without any prior intimation to the defendant no.3. It was further submitted that as per the record of the year 2002 maintained by the defendant no.3, plaintiff availed 96 days' leave either on medical grounds or otherwise. Apart from this, he took 8 days' casual leaves and 2 days' restricted holidays. It was further Suit No.1084/06/03 Page numbers/Statistics Page numbers averred that the plaintiff was warned of his misconduct/negligence of duties on more than 45 occasions. It was further stated that plaintiff was suspended for negligence and misbehaviour from 24.11.1983 and an enquiry was conducted and the plaintiff was found guilty. One increment due on 01.5.1984 was withheld under Rule 67(ii) of the Terms & Conditions of service. Plaintiff was censured under Rule 67(i) of the said terms & conditions. Thus, the defendants denied that the plaintiff was ever victimized at any point of time. It was averred that plaintiff failed to submit the requisite documents and that the compensatory leaves were not available therefore the leave for the period he was absent was treated as extraordinary leave without pay. Hence, the defendant prayed for dismissal of the suit.
3. On the pleadings of the parties following issues were framed on 06.4.2004:
i) Whether the plaintiff is entitled to decree of declaration as prayed for?OPP
ii) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
iii) Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP.
iv) Whether the suit of the plaintiff has been filed without any cause of action?OPD1&3.
v) Whether the suit of the plaintiff is bad for nonjoinder of necessary parties?OPD1&3.
vi) Relief.
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4. The plaintiff himself as PW 1 and defendant examined Sh. Ashok Kapoor, Section Officer (Admin.) Maitreyi College ad DW 1.
5. Written arguments are already on record. I have heard the learned counsel for the defendant. My issuewise finding is as under:
ISSUE NO.1
6. It is well settled that availing leave cannot be a matter of right but is the discretion of the employer. Clause 19 of the Leave Rules as applicable with the plaintiff, it is clear that the grant of leave is discretionary and the word used is 'may'. The plaintiff has to show that the discretion was used malafide. It is also clear that the production of medical fitness certificate is a mandatory condition as per Rule 35(f) & (h) of the Terms & Conditions of the service and it is also the admitted fact that the plaintiff never submitted the fitness certificate to the employer. The burden to prove the present issue that the plaintiff is entitled for declaration is upon the plaintiff who failed to prove that he had any right to avail medical leaves without submitting the medical fitness certificate which is in clear violation of the rules applicable to the plaintiff. The plaintiff also failed to prove that defendant no.3 asked him to voluntarily retire. The plaintiff did not produce any medical certificate or fitness certificate. The plaintiff also did not apply for converting his medical leaves into any other leave admissible to him in Suit No.1084/06/03 Page numbers/Statistics Page numbers the absence of medical certificate. The plaintiff also could not prove that he had compensatory leaves in his account. It is the admitted case of the plaintiff in his cross examination that he joined the services without medical fitness certificate. He also stated in his cross examination that he had not availed any leave on 19.8.2002. The cross examination of this witness is full of contradiction and is not trustworthy. The doctor who wrote that no medical fitness certificate is required when the medical leave is for three days has not been examined by the plaintiff so as to prove under what rule the doctor wrote the same who had no authority to write the same in violation of the service rules.
7. For claiming the relief of declaration under Sec. 34 of the Specific Relief Act, the plaintiff must be a person entitled to any legal character or status and the defendant must be the person denying or interested to deny the plaintiff title to such legal character or right and the said relief is a discretionary relief. It was held in Madan Lal v. State of Madhya Bharat AIR 1955 MB 111 that "Under Section 42 in a suit for declaration the plaintiff must show that he has some legal character or some right to property and that his opponent is denying or interested in denying such legal character or title, and the declaration can only be that the plaintiff is entitled to a legal character or to right of property. Legal character is the same as legal status i.e. a position recognized by law." In Mothey Krishna Rao v. Grandhi Amjaneyulu and Others AIR 1954 Mad. 113, it was observed that a suit for declaration with consequential relief of an Suit No.1084/06/03 Page numbers/Statistics Page numbers injunction restraining the defendants from interfering with plaintiff's exercise of powers and duties as Secretary and Treasurer is really tantamount to specific performance of a contract of personal service which is against the law and thus cannot be so enforced. In Surender Nath Shukla v. Indian Airlines Corp. AIR 1966 CAL. 272, it was held that in case of termination of contract of service, granting of declaration that notwithstanding of termination the contract still subsists is in discretion of court which must be used with great care and caution. Special circumstances will be required before such declaration is made and such circumstances are provided either by Statute or Service Rules. The Hon'ble Supreme Court observed in Executive Committee of U.P. State Warehousing Corpn., Lucknow v. Chandra Kiran Tyagi AIR 1970 SC 1244 that "Normally a contract of personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master ad say that the contract has never been terminated. The remedy of the employee is a claim for damages for wrongful dismissal or for breach of contract. But when a statutory status is given to an employee and there has been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he continues to be in service, as it will not then be a mere case of a master terminating the services of a servant. The exceptions to the normal rule that no declaration to enforce a contract of personal service will be granted are :(1) a public servant who has been dismissed from Suit No.1084/06/03 Page numbers/Statistics Page numbers service in contravention of Article 311; (2) reinstatement of a dismissed worker under Industrial Law or by Labour or Industrial Tribunals; (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute." The said legal proposition was made more clear in Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain AIR 1976 SC 888 when it was held by Majority decision that the relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as of right. The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. A contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. The above judgments have been cited to show that even in case of dismissal or removal from service in the contract of personal service, the courts have hesitated to interfere except when there is a breach or violation of mandatory provisions of statute by a statutory body.
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8. In Pearlite Liners Pvt. Ltd. v. Manorama Sirsi AIR 2004 SC 1373, the employee sought relief of declaration that her transfer order was illegal that she be allowed to continue in service with all emoluments and also permanent injunction restraining employer from holding enquiry against her. It was case of private employment which normally would be governed by the terms of the contract between the parties. It was held that since there is no written contract between the parties, the dispute cannot be resolved with reference to any terms and conditions governing the relationship between the parties. The plaintiffemployee has neither pleaded nor there has been any effort on her part to show that the impugned transfer order was in violation of any term of her employment. In the absence of a term prohibiting transfer of the employee, prima facie the transfer order cannot be called in question. The plaintiff has not complied with the transfer order as she never reported for work as the place where she was transferred. As a matter of fact, she also stopped attending the office from where she was transferred. Non compliance of the transfer order by the plaintiff amounts to refusal to obey the orders passed by superiors for which the employer can reasonably be expected to take appropriate action against the concerned employee. Even though it was a case of private employment, the management proposed to hold an enquiry against the delinquent officer, that is, the plaintiff. In case of such insubordination, termination of service would be a possibility. Such a decision purely rests within the discretion of the management. An Suit No.1084/06/03 Page numbers/Statistics Page numbers injunction against the transfer order or against holding a departmental enquiry in the facts of the present case would clearly amount to imposing an employee on an employer, or to enforcement of a contract of personal service, which is not permissible under the law. An employer cannot be forced to taken an employee with whom relations have reached a point of complete loss of faith between the two. It was also held in Ali Khan v. Bhagwan 1943 Oudh WN 134 that if the declaration is contrary to the provisions of a statute, declaratory decree cannot be passed.
9. Coming to the facts of the present case & applying the law as laid down by the various courts. It is clear that it is the plaintiff himself who is at fault by not submitting his medical fitness certificate. It has been proved by evidence of the defendant's witness that the plaintiff availed a large number of leaves in the year 2002. It is also seen that on an earlier occasion a departmental enquiry was also conducted against the plaintiff and he was found guilty and the proportionate punishment was given to the plaintiff. The plaintiff could not prove anything which showed that the defendant acted malafide or against the rules & regulations governing the service condition of the plaintiff. The plaintiff cannot seek an order of declaration declaring his extraordinary leave period null & void specially in the fact when the plaintiff himself was at fault in not submitting his medical fitness certificate and in view of the fact that the plaintiff had not applied for any conversion of any other leave in his account. The plaintiff cannot claim his leaves as a matter of right and may have them at the discretion of his Suit No.1084/06/03 Page numbers/Statistics Page numbers employer and the courts cannot interfere in such circumstances. It is also clear that grant of extraordinary leave without pay is not break in service and the plaintiff has not been able to show any injury having been caused to him. It is also pertinent to mention that as per the defendant's witness, the plaintiff was granted medical leaves on 16.10.2002 to 18.10.2002 and thereafter from 14.1.2003 to 21.1.2003 when he submitted the proper medical certificate and fitness certificate which clearly proves that there was no malafide against the plaintiff. In these circumstances, plaintiff is not entitled to any declaration in his favour. The issue is decided in favour of the defendants and against the plaintiff.
ISSUES NO.2 & 3
10. The plaintiff has also claimed the relief of injunctions which is also discretionary as in the case of declaratory decree. However, the party seeking discretionary relief has to approach te court with clean hands and is required to disclose all the material facts which may affect one way or the other, the said decision. In K. Venkata Rao v. Sunkara Venkata Rao, 1999(1) R.C.R. (Civil) 399 (Andhra), it was observed as "It is an established proposition of law that a relief of injunction is a discretionary relief. A party before it can ask a Court to exercise such discretion in its favour must show that it has shown equities in its favour which would impel a Court to exercise discretion in its favour. In the alternative, the party seeking injunction must possess some right which the opposite party is trying to invade or there must exist an obligation in its favour whether Suit No.1084/06/03 Page numbers/Statistics Page numbers contractual or otherwise in respect of which the opposite party is trying to commit breach. These principles clearly emerge out of Section 38 of the Specific Relief Act which deals under what circumstances the Court may grant the discretionary relief of perpetual injunction. The plaintiff claiming the relief of perpetual injunction has to establish the breach of obligation or infringement of his legal right. In the instant case, the plaintiff failed to prove the breach of contract by the appellants - defendants but on the other hand it has come on record that the plaintiff himself committed breach of contract by his failure to pay the balance of sale consideration. The conduct of the party in seeking the equitable relief must be fair and equitable and should not be dishonest." In the case of Executive Committee of Vaishya Degree College, Shamli, it was held that the grant of an injunction is within the discretion of court. It is a judicial discretion to be governed by rules and not by humour. It must not be arbitrary, vague and fanciful but must be legal and regular. Grant of relief of injunction is discretionary with the court. Just as specific performance cannot be demanded as of right so also an injunction cannot be granted as of right. Relief of injunction is purely discretionary and relief cannot be claimed as of right. While exercising its discretionary power, court must keep in mind the well settled principle of justice and fair play and should exercise the discretion only if the ends of justice require it. The court is not bound to grant this relief merely because it is lawful to do so. (Joginder Nath Mondal v. Adherchander Mondal AIR 1951 Cal, 412). The court has a duty before granting the relief of injunction to weigh the amount of Suit No.1084/06/03 Page numbers/Statistics Page numbers substantial mischief done, or threat to plaintiff and to compare it with that which the injunction if granted would inflict upon the defendant. Any decree or order of injunction should not escalate the existing heat and tension or possibility of breach of peace. (Sarvar Hussain v. Addl. Civil Judge, AIR 1983 All. 1952). The relief of injunction is a discretionary relief is now well settled. A party before it can ask a court to exercise discretion in its favour must show that it has some equities in its favour which would impel a court to exercise discretion in its favour. In the alternative the party seeking injunction must possess some right which the opposite party is trying to invade or there must exist an obligation in its favour whether contractual or otherwise in respect of which the oppositeparty is trying to commit a breach.
11. Coming to the facts in hand, it is clear that the plaintiff has not shown any case where the discretionary reliefs of mandatory and permanent injunctions can be granted. The plaintiff cannot seek permanent injunction restraining them from interfering in discharge of service or sending threat of suspension. The plaintiff has not proved anything on record or any document that the defendants ever threatened him to suspend except when they conducted an enquiry which was as per rules and no malafide of the defendants had been proved by the plaintiff. Similarly, the plaintiff cannot seek mandatory injunction directing defendant no.1 & 2 to hold enquiry against defendant no.3 as nothing could be established or proved that defendant no.3 acted in violation of the service rules. In this regard, Suit No.1084/06/03 Page numbers/Statistics Page numbers Rule 35 (f) & (h) of the Terms & Condition of the service are clear and in the absence of plaintiff submitting his medical fitness service and in the absence of his not applying for getting his medical leave converting into any other kind of leave, the defendants were left with no other choice but to treat the period of his absence as extraordinary leaves without pay. In these circumstances and in view of the reasons given, the plaintiff is not entitled to discretionary reliefs of injunctions. Hence, both the issues are decided against the plaintiff and in favour of the defendants. ISSUE NO.4
12.As has already been discussed in Issues No. 1, 2 & 3, it has been proved that the suit of the plaintiff is without any cause of action. The issue is decided in favour of the defendants and against the plaintiff. ISSUE NO.5
13. The burden to prove the issue was upon the defendant no.3. However, this defendant is not relevant when no relief has been claimed by the plaintiff against the said Sh. M.P. Mishra and the dispute with the plaintiff has already been decided by a separate suit. There is no necessity of giving any finding on this issue.
RELIEF
14. Keeping in view the observations made in the issues above, the plaintiff Suit No.1084/06/03 Page numbers/Statistics Page numbers has failed to prove his case. The suit of the plaintiff is thus dismissed. Ordered accordingly. Decree sheet be prepared in terms of the order. No order as to costs. File be consigned to the record room.
PRONOUNCED IN THE OPEN COURT
th
ON: 9 April, 2010.
(SIDHARTH SHARMA)
ASCJ/DELHI.
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