Delhi District Court
Sos Children'S Villages Of India vs Prem Kumar on 20 December, 2011
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IN THE COURT OF DR. NEERA BHARIHOKE : ADJ1 : SOUTH DISTRICT SAKET
COURT : NEW DLEHI
Suit no.720/11
In the matter of :
SOS Children's Villages of India .... Plaintiff
VERSUS
Prem Kumar .... Defendant
20.12.2011
O R D E R :
1 Vide this order, I shall dispose off the present application filed by the plaintiff under Order 39 Rule 1 and 2 CPC.
2 By way of present application plaintiff prayed for passing interim injunction for restraining the defendants from defaming the plaintiff before any media person/authority/Institution/Agency/person in oral, writing or any other form. 3 Brief facts of the case are that the plaintiff has filed the present suit for permanent injunction. Plaintiff is a Society registered under Societies Registration Act and a prime non Govt. Organization involved in various philanthropic project/work in the field of child care and development, which spearheads various projects/villages spread across the country. It is submitted by the plaintiff that plaintiff organization strives at providing integrated care to the orphaned, destitute, abandoned or children who otherwise cannot live with their parents/guardian for any reason irrespective of their caste, creed, religion or socio economic background. Defendant is a SOS child was brought under the wings of the plaintiff organization at a tender age and assigned to the SOS Children's Villages of India Vs. Prem Kumar Contd....P...1 of 6 : 2 : SOS children's village.
4 It is the case of the plaintiff that in the year 2006, the defendant approached the plaintiff with request to provide him a suitable job and on his request, plaintiff engaged the services of the defendant on contract basis in the year 2006 and appointed him as Supervisor (Transport) and a contract dated 21.04.06, was entered into between the parties. Thereafter on request of the defendant, he was transferred to various places by the plaintiff and vide order dated 20.08.09, plaintiff transferred the defendant to SOS family strengthening Programme at Anangpur w.e.f. 01.09.09 as Security Supervisor.
5 It is further submitted by the plaintiff that in the beginning, defendant was in habit of creating trouble for the plaintiff on account of his errant behaviour. However, owing to the fact that defendant was a SOS child, the competent authorities after issuing minor reminders/ note of cautions to the defendant invariably condoned such misdemeanors on the part of defendant. However, defendant instead of improving his conduct started circulating false, baseless and concocted allegations against the plaintiff organization and its senior functionaries amongst the SOS youth. Plaintiff has referred to dharna by SOS youth outside the office of plaintiff w.e.f 13.11.2009 to 27.11.2009 and 08.12.09 to 10.12.2009, wherein the defendant also participated while he was in active employment of plaintiff. Other instances of defendant trying to defame the plaintiff at various occasions and the plaintiff condoning the same have also been referred. 6 On 23.03.2010, plaintiff passed an order of transfer of services of defendant to SOS children's Village, Nagapattinam w.e.f. 10.04.2010, against which defendant filed the civil suit in Faridabad, which was returned for want of jurisdiction on 16.04.2010. The appeal against the said order of return of plaint was dismissed. SOS Children's Villages of India Vs. Prem Kumar Contd....P...2 of 6 : 3 : Defendant is stated not to have joined the duties at Nagapattinam. Since the plaintiff did not cancel his transfer order, it is alleged that defendant held illegal and unauthorised demonstration outside the office of the plaintiff at Faridabad on 23.08.2010, using anti establishment slogans and burnt Effigy of Sec. General of Plaintiff organization. It is alleged that in violation of service rules, defendant had arranged presence of news correspondence from major media houses to cover the unauthorised demonstration and also gave press interviews to them. He is also stated to have distributed prepared statement containing highly false, baseless, preposterous, ill motivated and defamatory material which was reported in several newspapers.
7 Plaintiff has filed photographs of the demonstration wherein, defendant is prominently visible on 24.08.2010. Plaintiff has alleged that the said defamatory acts of the defendant has lowered the image, reputation, credibility and goodwill of the plaintiff organization in the eyes of the children/ ward under its clear and custody, sponsors/ donors, other social organizations in particular and the public at large in general, thereby causing irreparable loss and damage to the plaintiff organization. Plaintiff issued a legal notice dated 03.09.2010 to the defendant for the defamatory acts calling upon him to tender unconditional apology and withdraw the defamatory allegations. However, the defendant vide his reply dated 26.10.2010, failed to withdraw his allegations against the plaintiff or offer unconditional apology. Plaintiff has also referred to a false, baseless and defamatory allegations leveled by the defendant in the email of 04.04.2010 addressed to the International President of SOS KDI which is alleged to lower the reputation of plaintiff. Hence the suit suit has been filed. Alongwith the suit the application under Order 39 Rule 1 and 2 CPC has been filed, wherein plaintiff prayed for passing interim injunction for restraining the defendants from defaming the plaintiff before any media SOS Children's Villages of India Vs. Prem Kumar Contd....P...3 of 6 : 4 : person/authority/Institution/Agency/person in oral, writing or any other form. 8 Defendant has denied to have written the alleged email and has submitted that said mail was sent by Santosh Singh, Pardeep Singh, Satish Singh through his email ID and has filed their apology mail written to him accepting that the said mail was sent by them through his email ID. As such also, on perusal of that email, it is revealed that the sender of the email has tried to bring to light the financial mal practices going on in the plaintiff organization as well as victimization of SOS children by some staff/ authorities of the plaintiff organization. Plaintiff has failed to point out as to which portion of the said mail is defamatory. As such also, plaintiff in para 4.4 of the plaint has submitted that disciplinary authority has already impost punishment of withdrawal of last increment of the defendant on 08.03.2010. Thus in my considered opinion, in view of documents filed on record i.e. Copy of reply dated 05.02.2010, signed by defendant, email of Santosh Singh, Pardeep Singh and Satish Singh addressed to defendant and contents of email allegedly written by plaintiff to Mr. Helmet Kutin dated 01.01.2010, (wrongly written as 04.04.2010 by the plaintiff in plaint) I find the said allegation of defendant writing defamatory emails against the plaintiff to be unfounded. Therefore, the plaintiff has failed to establish a prima facie case in his favour. Accordingly, I find no reason to pass a restraint order against the defendant with respect to writing of emails, as prayed for.
9 With respect to demonstration/ dharna on 23.08.2010 and issuing oral and written statements making defaming allegations against the plaintiff and its activity to media, it has been observed that newspapers have reported about child abuse of minor children in SOS School and it has been reported therein that defendant was leader of the demonstration. Though the said newspapers reports do not reveal burning of any effigy, SOS Children's Villages of India Vs. Prem Kumar Contd....P...4 of 6 : 5 : plaintiff has filed certain photographs of 23.08.2010 which substantiate the contention of the plaintiff. However, the plaintiff has failed to establish that the newspapers reports were published on being arranged by the defendant as no material on record establishes the same. Defendant was one of the several participants in the demonstration and prima facie it cannot be held that newspapers reported about the plaintiff on the instructions or on instigation or propaganda of defendant.
10 Though the defendant has denied the burning of effigy in his reply, photographs reveal it otherwise. While deciding O.A.NOS.395 To 397 of 2009, Dow Chemical International Pvt. ... vs Nithyanandam on 9 July, 2009, it was observed by Hon'ble High Court of Madras that:
"The Supreme Court in Kameshwar Prasad and others vs. State of Bihar and another reported in AIR 1962 SC 1166 dealt with the question of right of demonstration by the Government employees. In that context, paragraph 13 of the said judgment can be extracted below:
13.The first question that falls to be considered is whether the right to make a demonstration is covered by either or both of the two freedoms guaranteed by Art.19(1)(a) and 19(1)(b). A demonstration is defined in the Concise Oxford Dictionary as an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession. In Webster it is defined as a public exhibition by a party, sect or society ........
as by a parade or massmeeting. Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art.19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended, the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. SOS Children's Villages of India Vs. Prem Kumar Contd....P...5 of 6 : 6 : 19(1)(a) & 19(1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stonethrowing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art.19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances."
It was also observed that:
"The citizens of India have fundamental right to protest. Unless a situation is shown where the life and liberty of an aggrieved individual or an organization is threatened from its very existence or their right to carry on business is curtailed, neither the State Authorities nor the court will rush to prevent such actions through preventive orders or impose prior restrains."
11 In view of these observations, in my considered opinion, the defendant has exceeded his fundamental right of speech and expression. Such act on part of defendant does have the effect of defaming the plaintiff. A just balance has to be maintained between the freedom of speech and expression and social control as envisaged by Article 19 (6) of Constitution. Accordingly, while preserving the fundamental right of defendant to hold peaceful dharna, and to demonstrate or to voice his grievances peacefully, restraint order is passed against the defendant to not to exceed his right of speech and expression so as to amount to defaming the plaintiff and subject to not to exercise the same within 100 meters of periphery of any of the offices of the plaintiff.
Dictated and announced in the open court on 20.12.2011 (Dr. Neera Bharihoke) ADJ1(South) Saket Courts 20.12.2011 SOS Children's Villages of India Vs. Prem Kumar Contd....P...6 of 6