Delhi District Court
R/O C-713 vs Church'S Auxiliary For Social Action on 28 January, 2008
Suit No.568/07 1
IN THE COURT OF SH. MUNISH MARKAN, CIVIL
JUDGE/ DELHI
Suit No.568/07
RUP B. SINGH,
Statistician,
Church's auxiliary for Social Action,
Rachna Building,
2, Rajendra Place, Pusa Road,
New Delhi - 110008
R/o C-713, Lane No.3,
Ganesh Nagar - II,
Shakarpur, Delhi - 110092 ..... Plaintiff.
V/S
1. Church's auxiliary for Social Action,
(Registered under the Societies Act XXI of 1860)
(through its Director)
Rachna Building,
2, Rajendra Place, Pusa Road,
New Delhi - 110008
2. The Chairman,
CASA National Board,
Mar Thoma Church,
Near Gole Market,
New Delhi - 110001
3. The President,
National Council of Churchses in India,
1, Christian Lodge,
Nagpur -1, Maharashtra ...... Defendants.
Suit No.568/07 2
ORDER
1. Vide this common order I shall dispose off the interim application of Plaintiff u/o 39 rule 1 and 2 CPC as well as application of the defendant u/o 7 rule 11 CPC.
2. The case of the Plaintiff in brief is that Plaintiff is serving the defendant for the last 40 years and joined the service of the defendant as Junior Assistant w.e.f. 01/04/1966. Plaintiff was promoted from Class -IV to Class III post in the year 1969 and was further promoted in the year 1982 as Assistant Food Co-ordinator. Plaintiff claims to have done commendable work in the service of defendant since the beginning of his service. It is stated that since 1982, defendant has simply changed the designation of the Plaintiff instead of giving him promotion and the designation has been changed from Assistant Food Co- ordinator IRDP and as statistician. It is stated that Plaintiff has been down graded all of a sudden and his claim of promotion is being withheld for the last 25 years. It is further stated that vide letter dated 23/03/06 with the subject Suit No.568/07 3 "compensation re-structuring and review in CASA", the defendants down graded the plaintiff from grade 'B 3' to grade 'E'. Though the basic salary of the Plaintiff has been enhanced from Rs.15,286 to Rs.18,343/-. The grudge of the plaintiff is that though Plaintiff is benefited from the upward revision of the pay scale but there is no justification in down grading the plaintiff from 'B 3' to 'E'. It is also stated that defendant organisation works for social cause and for general public good at large. In the plaint Plaintiff also dwells on the holy Bible. It is further stated that Plaintiff has now come to know that defendants are going to terminate the services of the Plaintiff and that too without giving him opportunity of hearing. Plaintiff is 62 years old and his retirement is due at the age of 65 years. It is alleged that the defendants are giving step-motherly treatment after 1986 though the Plaintiff has enhanced his academic qualification since then. Hence the present suit for declaration to the effect that the impugned order dt. 23/03/06 be declared as illegal in part in respect of the plaintiff's grade being Suit No.568/07 4 changed from B-3 to E.
3. Plaintiff further prays for decree of permanent injunction praying to restrain the defendants not to terminate the service of Plaintiff without following principle of natural justice as well as departmental disciplinary rules and Plaintiff further prays for a declaration to the effect that inaction of the defendant not to shower the fact of promotion be declared as illegal and the plaintiff may be promoted with an open mind and further prayer for mandatory injunction to direct the defendants to assign the duty to the Plaintiff of at least statistician. Plaintiff has moved the interim application praying to stay the operation of the order dated 23/03/06 in respect of grade and also prays for restraining the defendants from terminating the services of the Plaintiff in the meanwhile.
4. On the other hand, defendant has contested the suit of the plaintiff and written statement has been filed on behalf of defendant no.1 and has also moved an application u/o 7 rule 11 CPC for dismissal of the suit. Ld. counsel for Suit No.568/07 5 defendant has vehemently argues that the suit is devoid of any cause of action and also argues that the suit is hit by section 41(h) of the Specific Relief Act. It is further argued that Plaintiff has no vested right in holding the position or working in a particulars position or to continue in the service. It has been argued that the suit of the plaintiff is an abuse of process of law. Defendant counsel also prays for awarding costs u/s 35A CPC.
5. Ld. counsel for Plaintiff has relied on BCCI v/s Netaji Cricket Club cited as 2005 (4) (SCC) 41 and Ld. counsel for Plaintiff has argued that society like defendant are bound to follow the doctrine of fairness and goodfaith and to act reasonably and not arbitrarily, whimsically or capriciously.
6. On the other hand, Ld. counsel has relied on a number of judgments. Ld. counsel for defendant submits that the service of the Plaintiff is a contract for personal service is not enforceable. Defendant counsel relies on Pearlite Liners (P) Ltd. V/s Manorama Sirsi (2004) 3 Suit No.568/07 6 SCC 172, Executive Committee of Vaish Degree College, Shimla & Ors v/s Lakshmi Narain & Ors. - AIR 1976 SC 888, Dr. Bool Chand v/s Chancellor, Kurukshetra University AIR 1968 SC 292.
7. Ld. counsel for Plaintiff argues that no cause of action has arisen in the present case as contract of personal service cannot be specifically enforced and submits that no decree of declaration can be passed as prayed for by the plaintiff. Heavily relying on Pearlite Liners (P) Ltd. V/s Manorama Sirsi (2004) 3 SCC 172 Ld. counsel for defendant argues that there are three exceptions to the rule of enforcement of contract for personal service (i) Where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India. (ii) Where a worker is sought to be reinstated on being dismissed under the Industrial Law and
(iii) where a statutory body acts in breach of violation of the mandatory provisions of the statute.
8. It is argued that there is no statute governs the Suit No.568/07 7 service conditions of the defendant. Further relying on Executive Committee of Vaish Degree College, Shimla & Ors v/s Lakshmi Narain & Ors. - AIR 1976 SC 888 Ld. counsel for plaintiff submits that defendant is not a statutory body. In response to the allegations by the plaintiff being unfairly treated by the defendant, Ld. counsel for defendant has argued that allegations of malafide has to be specifically pleaded and separately proved.
9. It has been argued that allegations leveled by the Plaintiff are vague suggestions and insinuation. Further, Ld. counsel for defendant has also relied on AIIMS v/s Sh.R. K. Upadhyay 2006 IV AD (Delhi) 242, and Ld. counsel for defendant argues that appointment/ promotions etc are executive functions and it is not proper to judiciary to encroach into execution domain. Ld. counsel for defendant further relies on Sirsi Municipality v/s Cecelia Kom Francis Tellis 1973 (1) SCC 409.
10. Further, on merit Ld. counsel for defendant has Suit No.568/07 8 argued that in the given facts, no cause of action has arisen in favour of Plaintiff and against the defendant and submits that suit is hit by latches and delay as the impugned order is dated 23/03/06 whereas the present suit has been filed by the Plaintiff on 23/10/07. Further, it is argued that contrary to the contention of the Plaintiff, compensation re-structuring and review has been done by the defendant equitably and in a fair proportion and Plaintiff has been granted additional benefits. Ld. counsel for defendant further argues that even as per letter dated 23/03/06 it has been made clear that terms and conditions of the appointment of the plaintiff remains unchanged. For the purpose of deciding the application u/o 7 rule 11 CPC the court primarily is concerned with the plaint and the documents filed therewith. Considering the pleas raised by the plaintiff, there does not appear to be any prejudice being caused to the plaintiff. On the contrary the salary of the plaintiff has been enhanced. The contention of the Plaintiff is that his grade has been changed to B-3 to E Suit No.568/07 9 tantamounts to degrading the plaintiff holds no ground. Even perusal of the letter dated 23/03/06 and other documents filed by the plaintiff shows that defendant is a society registered under the Society Registration Act and the relationship between the plaintiff and the defendant is a contractual relationship, further more, no specific allegation regarding any malafide on the part of defendant has been brought out in the plaint so as to warrant interference by the court, therefore, considering the totality of the facts and circumstances of the case, it appears that Plaintiff has no cause of action as far as change of grade of the plaintiff is concerned and as far as the other relief regarding permanent injunction to restrain the defendant not to terminate the services of plaintiff without following the principle of natural justice as well as departmental/ disciplinary rules is concerned, in the absence of any malafide being specifically pleaded and in view of the reasons given above, the relief claimed by the plaintiff is not sustainable in law. Accordingly, suit of the plaintiff is rejected as being devoid Suit No.568/07 10 of any cause of action u/o 7 rule 11 (a) CPC. Perusal of the file shows that an application u/o 6 rule 17 CPC has been moved by the Plaintiff praying to amend the plaint, particularly the prayer clause whereby, Plaintiff claims damages to the tune of Rs.1 lac to the plaintiff.
In view of the plaint being devoid of any cause of action so as to warrant judicial intervention, the amendment application seeking amendment of the prayer clause is also dismissed. Suit of the plaint is rejected u/o 7 rule 11 (a) CPC. File be consigned to Record Room.
Announced in the open court.
Munish Markan) C.J./Delhi/28/01/08