Delhi District Court
This Is A Suit For Mandatory Injunction vs Unknown on 19 May, 2007
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IN THE COURT OF SH. SHAILENDER MALIK, CIVIL JUDGE, DELHI
Suit No. : 113/06/03
Sh. Narender Kumar Dhiman
S/o Sh. Sohan Lal Dhiman
M-87 Street No. 5,
Shastri Nagar, Delhi - 52
Versus
(i) M/s Lyka Exports Ltd.
(Lyka Animal Health Care Division)
77, Nehru Road, Vile Parle (E)
Mumbai - 400099
(ii) Sh. R.A.S. Meni Iyear
M. D. M/s Lyka Exports Ltd.
(iii) M/s Lyka Labs Ltd.
(iv) Sh. N. I. Gandhi,
M. D. M/s Lyka Labs Ltd.
EX-PARTE JUDGEMENT
1. This is a suit for mandatory injunction.
2. Facts as averred in the plaint are that plaintiff was
appointed as Veterinary Service Representative vide
appointment letter dated 26.8.88 by defendant no. 3
company and plaintiff was posted and based as Delhi
Headquarter at M-87 Shastri Nagar, Delhi and plaintiff was
absorbed with defendant no. 1 on 01.5.01 with same
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terms and conditions with continuity of services as
defendant no. 1 is a sister concern of defendant no. 3,
vide letter dated 30.4.01 and said absorption of plaintiff
was confirmed by defendant no. 1 company vide letter
dated 30.4.01. Thereafter, plaintiff remained at the
headquarter and continued his services without any break
to the satisfaction of defendant no. 1 & 2. It is stated that
due to some unavoidable circumstances, plaintiff
submitted his resignation from his post vide resignation
letter dated 01.10.02 which was accepted by defendant
no. 1 vide letter dated 8.10.02 and letter of acceptance
was issued by defendant no. 2. Thereafter as per
procedure, plaintiff requested the defendant no. 1
company to release his full and final payment on account
of balance salary, gratuity, expenses upto the date of
resignation and customary bonus since April 1999 till the
date of resignation as well as encashment of privileged
leave and casual leave upto the date of resignation, kit
allowance and other dues. Plaintiff also requested vide his
letter dated 21.1.03 for forwarding his provident fund
documents to concerned provident fund department /
commissioner for releasing the amount credited in the PF
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account of plaintiff. It is stated that defendants being
legally bound to release the payments standing on
account of abovesaid heads to plaintiff and also to
forward the relevant documents regarding settlement of
provident fund account but defendants allegedly in
disregard to their legal requirement, failed to release the
abovesaid amount and send the documents despite
repeated requests and reminders to defendants including
registered letter dated 21.1.03. Ultimately, plaintiff served
upon defendants legal notice dated 25.3.03 but to no
affect, hence the present suit has been filed for relief of
decree of mandatory injunction directing thereby to
defendants to release full and final payment to plaintiff on
account of balance salary, gratuity, expenses upto the
date of resignation as well as customary bonus,
encashment of privileged leave and casual leave, kit
allowance and other legal dues as well as respondent
may be directed to forward provident fund documents of plaintiff to PF Commissioner, Bombay for release of provident fund amount.
3. WS was filed on behalf of defendants taking the objection therein that suit of the plaintiff is ferivolous and is not -: 4 :- maintainable moreover, this court does not have the jurisdiction to entertain the matter because as per the own version of plaintiff, he was the employee of defendants and thus only labour court has got the jurisdiction to entertain the matter. Moreover, suit is vague and ambiguous without specific details of alleged claim, suit is bad for mis joinder of necessary parties and is without cause of action. It is further stated that plaintiff is guilty of suppressing the material facts while accepting the case of the plaintiff to the extent that he was appointed vide appointment letter dated 28.8.89 rather than 8.8.89 and that he was absorbed to defendant no. 1 and was posted at Delhi headquarter. It is pleaded that in fact, due to the negligence and failure on the part of plaintiff, two memos dated 11.03.02 and 12.6.02 was issued against plaintiff and resignation of plaintiff is a matter of record. Regarding the claim of dues under different headings, it is pleaded that claim is vague and without specific details.
4. Replication was filed wherein plaintiff reiterated his case.
5. It appears that completion of pleadings on 27.7.05, following issues were settled :
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(i) Whether the plaintiff is entitled for mandatory injunction as prayed? OPP
(ii) Relief
6. In the course of trial, on behalf of plaintiff, Affidavit of examination of chief of plaintiff was placed on record and PW1 was duly cross examined also and PW was closed on 19.5.06. Thereafter, matter was listed for recording DE and when none had appeared on behalf of defendant, DE was closed and defendant was proceeded ex-parte on 28.3.07.
7. I have heard the counsel for the plaintiff and has gone through the record carefully. My finding on the abovesaid issue is following:
Issue No. (i) Whether the plaintiff is entitled for mandatory injunction as prayed? OPP
8. In order to substantiate the abovesaid issue, plaintiff Narender Kumar Dhiman has appeared in the witness box and in his affidavit of examination in chief has testified all those facts as are averred in the plaint. In cross- examination PW1 has denied all the suggestions and also -: 6 :- deny to have receive the money of provident fund. In such facts of case, question for consideration is whether such relief of mandatory injunction as prayed for can be granted or not. In this regard, first of all, it is appropriate to mention that the claim of the plaintiff in pleadings and in evidence is most vague and lacking material particulars. Beside this, it appears from the facts that plaintiff is seeking arrears of salary and other outstanding allowances till the date of his resignation. Question is whether relief of mandatory injunction can be granted or not. No doubt, on behalf of defendants, suit has not been contested but defendants have taken the objection in their WS that the labour court has the jurisdiction for the claim of plaintiff, if any. In the present case, whence plaintiff himself is admitted to be employee of defendants, in such circumstances, I find that claim of balance salary, gratuity and other bonus etc. claimed by way of mandatory injunction does not lie in the Civil Court. In this regard, in the case of Krishnan and Another v. East India Distilleries and Sugar Factories Ltd., Nellikuppam and Another reported in 1964 (1) LLJ 217, Madras High Court has held that the jurisdiction of the Civil Court is ousted impliedly to -: 7 :- try a case which could form subject-matter of an industrial dispute collectively between the workmen and their employer. In the case of Madura Mills Company Ltd. v. Guruvammal and Another, 1967 (2) LLJ 297, Madras High Court has pointed out that the Act creates a special machinery under Section 33C(2) to enforce specially created rights and that the parties could not, therefore, approach the ordinary Civil Court. In Jitendra Nath Biswas v. M/s Empire of India and Ceylone Tea Co. and Another, (1989) 3 SCC 582, Apex Court held as under:
The scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the Civil Court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act.
9. Supreme Court further held that the Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances, there is an apparent implied exclusion of the jurisdiction of the Civil Court. In -: 8 :- Chandrakant Tukaram Nikam & Ors. v. Municipal Corpn. of Ahmedabad and Anr. I (2002) SLT 697=(2002) 2 SCC 542, Apex Court held as under:
"The Industrial Disputes Act was enacted by Parliament to provide speedy, inexpensive and effective Forum for resolution of disputes arising between workmen and the employers, the underlying idea being to ensure that the workmen do not get caught in the labyrinth of Civil Courts which the workmen can ill-afford. The procedures followed by Civil Courts are too lengthy and consequently, are not an efficacious Forum for resolving the industrial disputes speedily. The power of the Industrial Courts also is wide and such Forums are empowered to grant adequate relief as they think just and appropriate. It is in the interest of the workmen that their disputes, including the dispute of illegal termination are adjudicated upon by an Industrial Forum. The legality of the order of termination passed by the employer will be an industrial dispute within the meaning of Section 2(k) and under Section 17, every award of the Labour Court, Industrial Tribunal or National Tribunal is required to be published by the appropriate Government within a period -: 9 :- of thirty days from the date of its receipt and such award published under Section 17(1) is held to be final. Therefore, having regard to the relief sought for in the suits filed in the Civil Court, it has to be held that in such cases the jurisdiction of the Civil Court is impliedly barred and the appropriate Forum for resolution of such dispute is the Forum constituted under the Industrial Disputes Act."
10. Therefore, in view of my above discussion, I find that plaintiff has failed to establish its case, moreover present suit is not maintainable in the Civil Court. Relief
11. In view of my findings on the abovesaid issue, suit of the plaintiff held to be not maintainable in Civil Court, hence dismissed. File be consigned to Record Room. PRONOUNCED IN OPEN COURT ON 19.05.2007 (Shailender Malik) Civil Judge, Delhi