Delhi District Court
Sh. Bharat Bhushan Arya vs The Gem & Jewellery Export Promotion ... on 19 August, 2016
IN THE COURT OF SH. TARUN YOGESH,
SCJCUMRC (CENTRAL), TIS HAZARI COURTS, DELHI
Old Doc Filing No. : 30984/16
New No. : 27699/16
Sh. Bharat Bhushan Arya,
S/o Late Sh. Gautam Prakash,
R/o: H. No. 9/91, Subhash Nagar,
New Delhi - 110 027. ..... Appellant.
Versus
1. The Gem & Jewellery Export Promotion Council,
(Through Regional Chairman)
F1718, Flatted Factories Complex,
Jhandewalan,
New Delhi110 055
2. Indian Institute of Gems & Jewellery
(Through Chairman)
F17, Flatted Factories Complex,
Jhandewalan,
New Delhi110 055
3. The Gem & Jewellery Export Promotion Council,
(Through Executive Director)
AW1010, TowerA, GBlock,
Bharat Diamond Bourse,
Next to ICICI Bank Building,
Bandra Kurla Complex,
Bandra East, Mumbai. ..... Respondents.
Date of institution of appeal : 30.04.2016
Date on which order was reserved : 17.08.2016
Date on which order was pronounced : 19.08.2016
Sh. Bharat Bhushan Arya Vs The Gem & Jewellery Export Promotion Council & Ors. Page 1 of 8
ORDER
1. Appellant Sh. Bharat Bhushan Arya (hereinafter referred as plaintiff) has filed miscellaneous civil appeal for assailing order dated 23.03.2016 passed by Ld. Civil Judge12, Central, Tis Hazari, Delhi dismissing an application filed under Order XXXIX Rules 1 and 2 CPC.
2. Precisely stated, facts of the case giving rise to filing of appeal against impugned order are discussed below : 2.1 Plaintiff has filed suit for declaration and mandatory injunction against defendants no.1, 2 and 3 for declaring his termination of work as illegal by declaring him as permanent employee of defendant no.3 and for directing defendant no.3 to reinstate his service in the post of Manager (Accounts) alongwith arrears of payment from 06.09.2011 to 31.03.2014 and back wages from 01.04.2014.
2.2 Plaintiff's case gleaned from plaint reveals that he was working as Manager (Accounts) for defendants no.1 and 2 till his services were illegally terminated by defendants on 05.09.2011. Defendant no.3 being appointing authority is averred to have appointed plaintiff to the post of Steno TypistcumReceptionist as per established procedure for selection vide appointment letter no. GJC/ADMN/PERBB/9798/16616 dated 05.06.1997. Plaintiff claims to have joined service of defendant no.3 w.e.f. 16.06.1997 and was deputed to work with company namely Jewellery Product Development Center at Jhandewalan, New Delhi which Sh. Bharat Bhushan Arya Vs The Gem & Jewellery Export Promotion Council & Ors. Page 2 of 8 establishment was intentionally and deliberately closed down by defendant no.3 and he was thereafter deployed with defendant no.1. 2.3 Plaintiff has mentioned about various companies which were allegedly closed by defendant no.3 for divesting itself from responsibilities as employer but continued to remain as permanent employee / appointee of defendant no.3 having remained on its payroll and governed by Service Rules in terms of appointment letter. He has also averred about successful completion of probation period and confirmation of service in his post vide letter no. GJC/ADMN/PERBB/9798/34465 dated 25.03.1998 after due procedure including production of medical fitness certificate to the satisfaction of defendants.
2.4 Further, plaintiff has also averred about vacancy in the post of Assistant Director (Accounts) upon resignation of Sh. R. Natarajan from his post which additional duties and responsibilites were assigned to him with the direction and concurrence of defendant no.3 vide letter no. GJC/RO(D)/PERS/0809/2962 dated 26.08.2008 and his performance was duly acknowledged by defendants by redesignating his post as Manager w.e.f. 01.04.2011 vide letter no. GJC/PRM/2011/20112012/8 dated 25.07.2011.
2.5 However, despite being permanent employee / appointee of defendant no.3 drawing salary from defendant no.3 throughout the tenure of his service, plaintiff was forced to sign some papers and asked to receive payment of Rs. 4,75,000/ on 05.09.2011 which included gratuity for 14 years, 180 days of leave encashment, exgratia (Diwali Bonus) and 5 days salary of the month.
Sh. Bharat Bhushan Arya Vs The Gem & Jewellery Export Promotion Council & Ors. Page 3 of 82.6 Plaintiff has also mentioned about his continued service with defendants on contract basis w.e.f. 19.09.2011 and office orders no. GJC/RO(D)/00/1213/02364 dated 03.12.2012 issued by defendants no. 1 and 2 for alleging illegal termaination of service for depriving him of long service benefits. He has also disclosed about his case (Writ Petition) filed before Hon'ble High Court of Delhi for grant of status of permanent employee in the company of defendant no.3 which was withdrawn on technical grounds with liberty on 05.10.2015 and thereafter filed his suit for declaration and mandatory injunction in court.
3. Defendants were served through summons and filed their joint written statement for assailing plaintiff's suit by asserting about settlement effected in the meeting with GJEPC held on 16.09.2011 whereby plaintiff accepted a sum of Rs. 4,75,000/ as full and final settlement of all his dues till 05.09.2011. Further, defendants have also averred about plaintiff being entitled to receive Rs. 2,89,425/ only as dues for claiming payment of additional sum of Rs. 1,85,575/ as dissociation package. Defendants, therefore, prayed for dismissal of plaintiff's suit by stating that having accepted Rs. 4,75,000/ as full and final settlement of all his dues which was duly recorded in receipt dated 16.09.2011, plaintiff could not renege from the terms of settlement by seeking reinstatement or back wages.
4. After hearing submissions addressed by their counsels, Ld. Trial Court vide impugned order dated 23.03.2016 observed that plaintiff is essentially seeking enforcement of contract of personal service which cannot be specifically enforced by referring to judgments of Hon'ble Supreme Court of India in case titled "S. Dutt, Dr. Vs. University of Delhi" AIR 1958 SC 1020; "Executive Committee of Vaish Degree Sh. Bharat Bhushan Arya Vs The Gem & Jewellery Export Promotion Council & Ors. Page 4 of 8 College Vs. Lakshmi Narain" AIR 1976 SC 188 and "Nandganj Sirohi Sugar Co. Ltd. Vs. Badri Nath Dixit" AIR 1991 (SC) 1525. Ld. Trial Court therefore concluded that plaintiff could not prove prima facie case by adverting to another judgment of Hon'ble Supreme Court of India in case titled "Kashi Math Samsthan Vs. Srimad Sudhindra Thirtha Swamy"
2010 AIR (SC) 296 and accordingly dismissed his application for interim relief.
5. Aggrieved by order rejecting his application, plaintiff (appellant) has filed present appeal for assailing impugned order dated 23.03.2016 upon following grounds : 5.1 That impugned order is based on surmises and conjectures as Ld. Trial Court has erred in appreciating the correct proposition of law. 5.2 That Ld. Trial Court has wrongly observed about prima facie case; balance of convenience (comparative mischief) and irreparable loss against the plaintiff for declining relief of temporary injunction. 5.3 That Ld. Trial Court has failed to appreciate that defendant no.3 is a statutory body set up by Ministry of Commerce & Industry, Government of India which is exercising its administrative control over defendant no. 3.
5.4 That Ld. Trial Court has failed to appreciate that defendant no.3 being a statutory body is in breach of statutory obligation of its rules and procedures.
5.5 That Ld. Trial Court has failed to appreciate that plaintiff's case is not for specific performance but against breach of rules by defendant no.3 which has resulted in wrong conclusion about absence of prima facie case of the plaintiff.
Sh. Bharat Bhushan Arya Vs The Gem & Jewellery Export Promotion Council & Ors. Page 5 of 85.6 That Ld. Trial Court has failed to appreciate that plaintiff's service was illegally terminated by defendant no.3 without following due process of law / procedure and defendant no.3 has every power under its procedure / rules to terminate plaintiff's services in case plaintiff is reinstated in service by way of temporary relief.
6. Advocate Sh. Shiv Ram Singh for appellant and Advocate Sh. Kunal Vajani for respondents have addressed their submissions and matter is listed for order.
7. Ld. counsel for appellant has adverted to extracts of website of Government of India, Ministry of Commerce and Industry mentioning fourteen Export Promotion Councils under its adminstrative control including Gem and Jewellery Export Promotion Council arrayed as defendant no.3. Next, he has also alluded to appointment letter dated 05.06.1997 mentioning that plaintiff's service would be governed by the Service Rules of the Council by referring to Service Rules for asserting that plaintiff was in permanent employment of the Council and is therefore entiled to be reinstated in the post of Manager (Accounts).
8. Respondents' counsel, per contra, has alluded to Rule 3.6 of Service Rules stipulating that appointing authority is entitled to terminate the service of any employee by giving one month's notice or one month's salary in lieu of notice. Further, he has also referred to statement of full & final settlement and receipt dated 16.09.2011 executed by plaintiff accepting Rs. 4,75,000/ as full and final settlement. Next, ld. counsel for respondent has also adverted to plaintiff's letter addressed to defendant no.2 for forwarding his resume and contracts entered between plaintiff with defendant no.2 for fixed period of employment from 01.04.2012 to Sh. Bharat Bhushan Arya Vs The Gem & Jewellery Export Promotion Council & Ors. Page 6 of 8 31.12.2012 and from 01.04.2013 to 31.03.2014. Finally, respondent's counsel has also relied upon judgment of Hon'ble High Court of Rajasthan at Jaipur Bench in case titled "Sh. Raj Rajeshwar Dadhich Vs. The Gem and Jewellers Export Promotion Council & Anr" S. B. Writ Petition No. 3728/91 pronounced by Hon'ble Mr. Justice Sh. G. S. Singhvi holding that none of the functions of the Council could be described as Governmental functions or functions of public nature and it could not therefore be held to be an agency or intrumentality of the State.
9. Having heard their rival submissions, I am of the view that Ld. Trial Court has rightly observed that plaintiff's suit for declaring his termination of work as illegal and for reinstating his service in the post of Manager (Accounts) is essentially seeking enforcement of contract of personal service which is determinable in nature and compensation in money is adequate relief for nonperformance of such contract under section 14 (1) (a) & (c) of the Specific Relief Act, 1963. Moreover, plaintiff's contention about alleged termination of service in contravention of Service Rules has been refuted by defendants by referring to Service Rule no. 3.6 and receipt dated 16.09.2011 for claiming that plaintiff has accepted full and final settlement including additional sum of Rs. 1,85,575/ as dissociation package.
10. Ld. Trial Court has therefore rightly exercised its discretion against grant of interim injunction by referring to judgments of Hon'ble Supreme Court of India in cases titled "S. Dutt, Dr. Vs. University of Delhi" ; "Executive Committee of Vaish Degree College Vs. Lakshmi Narain" and "Nandganj Sirohi Sugar Co. Ltd. Vs. Badri Nath Dixit"
(supra) wherein Hon'ble Apex Court has held that a contract of Sh. Bharat Bhushan Arya Vs The Gem & Jewellery Export Promotion Council & Ors. Page 7 of 8 employment cannot ordinarily be enforced by or against an employer and the remedy is to sue for damages.
11. Miscellaneous Civil Appeal assailing impugned order dated 23.03.2016 dismissing plaintiff's application under Order XXXIX Rules 1 and 2 CPC is therefore dismissed in the absence of any infirmity or illegality. Parties to bear their own costs.
Trial Court Record be sent back alongwith copy of this order. Appeal file be consigned to Record Room.
Announced in open court (Tarun Yogesh)
Dated 19th August, 2016 SCJCumRC (Central)
Tis Hazari Courts Delhi
Sh. Bharat Bhushan Arya Vs The Gem & Jewellery Export Promotion Council & Ors. Page 8 of 8