Delhi District Court
Sh. Manzoor Ul Haque vs Bombay Mercantile Co-Operative Bank ... on 20 October, 2014
IN THE COURT OF CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Presiding Officer : Ms. AANCHAL, DJS
Civil Suit No. : 444/13/05
Unique ID No. : 02401C0916092005
Sh. Manzoor Ul Haque,
S/o Late Mohd. Usman Ul Haq,
R/o H. No. 2191, M.P. Street,
Kucha Chalan, Darya Ganj, New Delhi.
.......Plaintiff
vs
1. Bombay Mercantile Co-operative Bank Ltd.
78, Mohammedali Road,
Mumbai-400003.
Through its administrator
2. Deputy General Manager,
Bombay Co-operative Bank Ltd.,
32, Darya Ganj, New Delhi-110002. ....... Defendants
Date of Institution of suit : 06.10.2005
Date on which reserved for judgment : 20.10.2014
Date of Judgment : 20.10.2014
Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 1
JUDGMENT
(1) Vide this judgment, this court shall dispose off the aforesaid suit filed by plaintiff for declaration with consequential relief of mandatory injunction.
(2) In brief, the facts as pleaded in the plaint are following :-
(a) The plaintiff was working in Bombay Mercantile Co-
operative Bank Ltd. as Officer and was lastly posed at Jaipur branch. Earlier the plaintiff was appointed as Officer in the said bank in February, 1999 and was posted at Delhi branch till 26th March, 2002. Thereafter, the plaintiff was transferred to Mumbai Branch. However, the plaintiff represented for the change of the said place of posting as the plaintiff was facing lot of difficulties and plaintiff also filed two civil suits challenging the said transfer order from Delhi to Mumbai. However, both the said civil suits were withdrawn by the plaintiff as during the pendency of the said suits, the defendants changed the place of posting of the plaintiff from Mumbai to Jaipur.
(b)The plaintiff joined the Jaipur branch pursuant to the routine transfer order dated 26.03.2002 and since the date of his posting the plaintiff was working at Jaipur. The plaintiff is a permanent resident of Delhi and is having his family settled at Delhi. The plaintiff is suffering from heart ailments and acute leg pain and is under constant medical treatment at Delhi. There is no one to look after the family of plaintiff at Delhi. The wife of the plaintiff is also suffering Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 2 from hypertension, acute blood sugar and arthritis as a result of which she is constantly required to be provided with medical treatment. The plaintiff has made several requests/ representations to the defendant no. 1 praying for his transfer to Delhi branch or in any branch near Delhi but the defendants have not considered the representation of the plaintiff. Since the day the plaintiff joined Jaipur branch of defendant no. 1, the plaintiff was subjected to worst kind of harassment, torture and mental agony by the defendant no. 1 on one pretext or another.
(c)The plaintiff has been further requesting the defendant no.
1 to transfer him from Jaipur as plaintiff was facing the conspiratorial activities of the management who is bent upon to malign him in either some disciplinary case or in mismanagement case deliberately and mischievously. These apprehensions of the plaintiff came to on 14.05.05 at about 1:30pm when one bundle containing 50 clearing cheques which were in the custody of the plaintiff and were lying in the custody of the lady dealing clerk Mrs. Renu Kalra were found missing. The plaintiff immediately talked to the Branch Manager of the defendant no. 1 about the missing of the said bundle of cheques and shows his strong protest against the deliberate acts on the part of some of the officials to malign the plaintiff. At about 2:00pm the purse of said lady dealing clerk Ms. Renu Kalra containing the said cheques was found at 2nd floor though she was working at 1st floor. The plaintiff requested the branch Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 3 Manager to order a detailed inquiry and to initiate appropriate disciplinary action against the culprit but the branch Manager told him that so long he is post in Jaipur branch, he has to face the similar circumstances. On 17.05.05, the plaintiff submitted the representation to defendant no. 1 requesting for immediate action. As no reply was received he sent another representation on 31.05.05 and thereafter sent a legal notice dt. 17.06.05 to defendant no. 1 and 2 through his counsel thereby calling upon the defendants to restrain themselves from taking any hasty, illegal action in violation of the rules and regulations and without affording any opportunity to the plaintiff.
(d)On 18.06.2005, the plaintiff read a news item in the Daily Rastriya Sahara Urdu, New Delhi about his dismissal on the false charges of misappropriation of Rs. 24 Lacs and causing loss to the plaintiff. The plaintiff immediately contacted to defendant no. 2 about his dismissal and appraised the defendant no. 2 that no notice or dismissal order or the cheque relating to the salary of three months has been received by him but the defendant no. 2 did not give any specific reply and avoided the query of plaintiff. On 20.06.2005, the plaintiff served a legal notice dt. 20.06.2005 to the Chief Executive Officer, Printer & Publisher of the Daily Rastriya Sahara Urdu, New Delhi as well as to the defendant no. 1 and 2. Despite service, none respondent. However on 10.07.05, plaintiff received a copy of press release issued by Assistant General Manager Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 4 (HRD and Personal) containing defamatory allegations against him. On 19.07.05, plaintiff received a copy of letter dt. 11.06.05 through ordinary post whereby plaintiff was informed that the management has decided to terminate the services of plaintiff with immediate effect and that pay order dt. 11.06.05 for Rs. 63,117/- being his three months pay and allowances is being sent. Therefore, the Plaintiff filed a Civil Writ Petition before the Hon'ble High Court of Delhi against the said termination order. However the said writ petition was withdrawn by the plaintiff with liberty to file appropriate civil suit in appropriate Court of law as the Hon'ble High Court was of the opinion that the defendant no. 1 is not a state instrumentality and as such no writ petition is maintainable against the defendant no. 1. On 13.09.2005, during the course of hearing the counsel for the defendants handed over the original letter dt. 11.06.2005 whereby the services of the plaintiff were terminated alongwith the said cheque to the counsel of the plaintiff. The Hon'ble High Court incorporated this fact in its order dt. 13.09.2005.
(e)It is further stated that defendant no. 1 and 2 has been pressuring him to pursue his elder brother Sh. Zia ul Haq not to proceed further with Writ petition bearing no. 3527/02 titled " Sh. Zia Ul Haq Soz Vs. Central Registrar Cooperatives and others" but plaintiff had refused for the same and this infuriated the defendant no.1 and 2 and they started harassing and torturing him in one or other manner.
(f) The letter dt. 11.06.05 terminating his services is stated to Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 5 be the final culmination of systematic acts of defendant no.1 and 2 in harassing and torturing the plaintiff, issued malafidely, inviolation of principles of natural justice, without conducting any inquiry, in retaliation to the action taken by his brother Sh. Zia Ul Haq Soz, illegal against the proprietary, based upon extraneous consideration, in gross misuse of discretionary power and causing immense miscarrage to the justice to the plaintiff.
With these averments the plaintiff has prayed for the following : -
(a) A decree of declaration declaring to the effect that the letter bearing no. 68/STF/IR/2020 dated 11.06.2005 issued by the defendant no. 1 is illegal, void ab-initio and the same be set aside.
(b) As a consequential relief, pass a decree of mandatory injunction against the defendants thereby directing the defendants to reinstate the services of the plaintiff as an Officer in the Bombay Mercantile Co-operative Bank Ltd.
with all service benefits including the payment of the salary for the intervening period and continuity of the services and maintenance of seniority, promotion etc. as per rules.
(3) Defendants filed the WS where in the suit of the plaintiff is preliminary objected on the ground that the suit is hit by the provisions of section 115 of Multi State Cooperative Societies Act, 2002 and that this court does not have the territorial jurisdiction to entertain the matter and that suit is Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 6 without cause of action and that the suit is bad for mis-joinder of defendant no. 2. On merits the averments made in the plaint are denied in totality and the suit is prayed to be dismissed.
(4) From the pleadings of the parties and hearing, following issues were framed vide order dated 23.01.2006 by Ld. Predecessor of this Court :-
1) Whether the suit is hit by the provisions of section 115 of Multi State Cooperative Societies Act,2002 as per preliminary objection No. 1?OPD
2) Whether this court does not have the jurisdiction to entertain the matter and plaint is liable to be returned as per the preliminary objection No. 2?
3) Whether the suit is without cause of action as per the preliminary objection No. 3 ? OPD
4) Whether the suit is bad for mis-joinder of the parties as per preliminary objection No. 4 ? OPD
5) Whether the plaintiff is entitled for declaration as prayed for ?
OPP
6) Whether the plaintiff is entitled for mandatory injunction as prayed for ? OPP
7) Relief.
(5) In order to substantiate his case, plaintiff examined himself as PW1 and he relied upon the following documents:-
(a) The memos issued by the Bank dated 02.09.2003, Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 7 09.10.2003 and 12.12.2003 to the plaintiff are Ex. PW1/1 to PW1/3.
(b) Copy of the order dt. 13.09.05 passed by Hon'ble High Court in Writ Petition no. 12746/05 and C.M. No. 9517/05 are Ex. PW1/4.
(c) The termination letter dt. 11.06.2005 is Mark 5.
(d) Letter dt. 03.10.05 by plaintiff to the Assistant General Manager, HRD is Ex. PW1/6.
(e) Letter dt. 08.06.2000 by defendant to the plaintiff to promote the plaintiff is Ex.PW1/7.
(f) Copy of Daily Rastriya Sahara Urdu, New Delhi alongwith its English translation is Mark 8.
On the other hand, Sh Mohd. Ubaidu-ullah is examined as DW1 on behalf of the defendants and he relied upon the following documents :-
(a) The letter dt. 09.10.03 is already exhibited as Ex. PW1/1.
(b) The documents dt. 02.09.03 is already exhibited as Ex.
PW1/2.
(c) The original termination letter dt. 11.06.05 as Ex. DW1/2.
(d) The original memorandum of settlement dt. 24.03.1986 is Ex. DW1/3.
(6) Final arguments heard and record is perused carefully. Now the issue-
wise findings of this court are as under :
Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 8 ISSUE No. 1 Whether the suit is hit by the provisions of section 115 of Multi State Cooperative Societies Act,2002 as per preliminary objection No. 1?OPD The onus to prove this issue lies upon the defendant. It is not disputed by the plaintiff that defendant no.1 is one of the society on which Multi State Cooperatives Societies Act 2002 (hereinafter called as the Act) is applicable and no notice stating the fact mentioned in Sec. 115 of Multi State Cooperatives Societies Act 2002 is delivered or left at the Office of Central Registrar. The disputed question between the parties is whether the act of termination of employee by the plaintiff is the act which touches the constitution or management or business of the society for which notice u/s 115 of the Act is necessary to file the suit.
Chapter 5 of this Act deals with direction and management of Multi State Cooperative Societies. Sec. 38 (3) of this Act provides that Multi State Cooperative Society shall be represented by administrator where there is no Board of such society. Sec. 49 provides the power and functions of Board and it includes the power to make the provisions of regulating the appointment of employees and other conditions of their service including disciplinary action against such employees. It infers that disciplinary action against and employee or decision as to the conditions of service of an employee are the acts which are included in functions of board necessary for the management of Multi State Cooperative Society . Thus the act of termination of the service of an employee which is under challenge in the present suit is one of the act which is performed by board/administrator where there is no board, for the management of the society. It necessitates Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 9 the notice stating the fact mentioned in Sec. 115 to be delivered or left at the office of Central Registrar and the expiry of requisite period of 90 days thereafter is one of the pre-condition to be fulfilled before the institution of the suit. As it is admitted on behalf of plaintiff that no such notice is delivered or left at the office of Central Registrar, the present suit filed by the plaintiff is held as premature and the issue under consideration is decided in favour of defendants and against the plaintiff.
ISSUE No. 2Whether this court does not have the jurisdiction to entertain the matter and plaint is liable to be returned as per the preliminary objection No. 2?
The onus to prove this issue lies upon defendants as the same is asserted by defendants. It is admitted case of the plaintiff that he was working at Jaipur branch at the time when he was allegedly terminated and the office of defendant No.1 with which he is employed, is located at Mumbai. It is stated in the plaint by the the plaintiff that defendant no. 2 is the controlling administrative office for managing, supervising and controlling the functioning of all the branch of defendant no. 1 in northern India and all the service matters of the plaintiff are rotated through defendant no. 2 and other staff or the defendant no. 1 working in any branch of Northern India can not submit any representation directly to defendant no. 1 and in such manner the office of defendant no. 2 is the administrative and controlling office of the plaintiff but in his examination in chief, the plaintiff as PW-1 does not depose that defendant no. 2 is the administrative and controlling office of the plaintiff or all the service matters of the plaintiff are rotated through defendant no. 2 or every representation sent to defendant no. 1 has to be submitted to Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 10 defendant no. 2 but he only deposes that defendant no.2 is the administrative head who makes necessary order for transfer and posting of officials with in its zone. Further, during his cross examination, plaintiff as PW-1 admits that the letter in question and his transfer letter was bearing the signature of Managing Director of defendant no. 1 and it was not bearing the signatures of defendant no. 2 and further, he had been sending his representations against transfer to Jaipur to administrator. The plaintiff has also not produced anything on record to establish that defendant no. 2 has any role in order to affect the conditions of his service. From the pleadings of plaint and deposition given by plaintiff, it is inferred that the plaintiff has himself not pressed upon the assertion that defendant no. 2 is the administrative or controlling office for service matters. Thus it is deemed admitted on the part of plaintiff that defendant no. 2 is not the administrative or controlling office as to the service matters of the plaintiff and the defendants have otherwise succeeded to prove that the office of defendant no. 2 has no role to play in the proceedings of termination which lead to the letter in question and no cause of action has arisen within the local limits of this Court where it exercises its jurisdiction.
In view of the same the present issue is decided in favour of defendants and against the plaintiff.
ISSUE No. 3Whether the suit is without cause of action as per the preliminary objection No. 3 ? OPD The onus to prove this issue lies upon the defendants. It is the Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 11 case of the defendants that the service of the plaintiff have been terminated as per clause 4 (vi) of Bombay Mercantile Co-operative Bank Officers (discipline and Appeal) Rules 1986. On the contrary, it is the contention of the plaintiff that the plaintiff was not even given the right of hearing before terminating his services, therefore, his termination is illegal.
Rule 4 of Bombay Mercantile Co-operative Bank Officers (discipline and Appeal) Rules 1986 enumerates the penalties which may be imposed on an Officer employee for acts of misconduct or any good and sufficient reasons and its explanation (vi) excludes the termination of the employment of a permanent Officer employee by giving him 3 months notice or on payment of 3 months pay and allowances in lieu of notice. Once the termination is not categorized as penalty, the defendant no. 1 was not required to hold the proceedings of inquiry as per rules applicable. It is admitted on the part of the plaintiff that earlier he had been issued a few memos and he was not inclined to accept the posting at Mumbai and thereafter at Jaipur which infers that he was not intending to work anywhere except in Delhi. The plaintiff has cited the reasons of his disinclination as the medical attention required by him and his wife. But he has not produced any document to support this reason. It is strange that at one hand he says that his wife is not a working lady and on the other hand he does not appear to opt for getting his family shifted at a place where he is posted for his work which is nothing but a source of livelihood for him and his family. It infers that the plaintiff was not willing to work in the best interest of the institution in which he was working. Further his admitted case is that he has been sending representations as he was apprehensive for being a victim of conspiratorial activities of the management i.e. defendant no. 1 which were Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 12 also due to failure on his part to cause his brother to stop persuasion of a writ filed against defendant no. 1. But during trial, the plaintiff has not brought any independent or corroborative evidence to substantiate these averments. Hence these allegations are proved as only a bald statement without any support. This being the admitted position, this court is of the view that defendant no. 1 was right to its wisdom to terminate the employment of plaintiff by paying him 3 months pay and allowances.
Further, it is the admitted case of plaintiff that on 19.07.05, he had received the copy of letter in question through ordinary post whereby he was informed that management has decided to terminate his services with immediate effect and that a pay order dt. 11.06.05 for Rs. 63,117/- being his 3 months pay and allowances is being sent and the pay order handed over by defendant's counsel before the Hon'ble High Court of Delhi was bearing the date as 11.06.05. The plaintiff admittedly being on leave and present at Delhi, was not present at Jaipur in his office or at local address when his employment was decided to be terminated by payment of 3 months pay and allowances. It is also not the case of the plaintiff that he had personally visited to his Jaipur office where he was lastly posted even after reading the news of termination of his employment as published in Daily Rashitray Shara Urdu dt. 17.06.05 on 18.06.05. In such circumstances, defendant no. 1 can not be expected to effect the delivery of the pay order to plaintiff personally and the draft prepared on 11.06.05 for the 3 months pay and allowances in the name of plaintiff is accepted as sufficient act of tendering the same to plaintiff and the delay caused in actual delivery of same to the plaintiff is solely attributed to the plaintiff only.
Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 13 Thus for the aforesaid reasons, it can not be said that there exists any cause of action in favour of plaintiff to file the present suit and the issue under consideration is decided in favour of defendants.
ISSUE No. 4Whether the suit is bad for mis-joinder of the parties as per preliminary objection No. 4 ? OPD The onus to prove this issue lies upon defendants. The suit of the plaintiff was preliminary objected in para no. 4 of preliminary objection on the ground that defendant no.2 has been wrongly impleaded as one of the defendants. For the reasons discussed while deciding the issue no. 2, the office of defendant no. 2 is held to have no role to play in the proceedings of termination which lead to the letter in question. Hence it is proved that defendant no.2 is neither a necessary nor a proper party in the present suit and the suit is held bad for mis-joinder for defendant no. 2 as a party.
Accordingly, this issue is decided in favour of defendants and against the plaintiff.
ISSUE No. 5Whether the plaintiff is entitled for declaration as prayed for ?OPP ISSUE No. 6 Whether the plaintiff is entitled for mandatory injunction as prayed for ? OPP As discussed while deciding the issue no.3, the suit of the plaintiff is without cause of action hence the plaintiff is neither entitled for declaration nor for mandatory injunction prayed for. Accordingly these 2 issues are Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 14 decided in favour of defendants and against the plaintiff.
Relief.
In view of the above discussion, the plaintiff is not held entitled for any relief and the the present suit stands dismissed.
No orders as to cost.
Decree Sheet be prepared accordingly. Thereafter file be consigned to Record Room.
Announced in Open Court on 20.10.14 at 4:30pm AANCHAL CIVILJUDGE-07(CENTRAL) DELHI/20.10.2014 Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 15 CS No. 444/13 Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd.
20.10.2014 Present : Ld counsel for plaintiff with plaintiff in person.
None for defendant.
Clarification is made on behalf of ld. counsel for plaintiff.
Vide separate judgment passed on even date, the plaintiff is not held entitled for any relief and the the present suit stands dismissed. No orders as to cost.
Decree Sheet be prepared accordingly. Thereafter file be consigned to Record Room.
AANCHAL Civil Judge-07 Delhi/20.10.2014 Manzoor Ul Haque Vs Bombay Mercantile Co-operative Bank Ltd. 16