Delhi District Court
Smt. Ram Devi vs Mahanagar Telephone Nigam Ltd on 6 March, 2014
IN THE COURT OF SHRI M. P. SINGH: SENIOR CIVIL JUDGE : RENT
CONTROLLER: KARKARDOOMA COURTS (EAST), DELHI
Suit No. 757/06
Unique Case ID No. 02402C0492602005
1. Smt. Ram Devi
w/o Late Ram Sewak
r/o E441, Gali no. 8, Jagjeet Nagar,
Kartar Nagar, Ghonda, Delhi
2. Sh. Sushil Kumar
s/o Late Ram Sewak
r/o E441, Gali no. 8, Jagjeet Nagar,
Kartar Nagar, Ghonda, Delhi ........... Plaintiffs
Versus
1. Mahanagar Telephone Nigam Ltd.
Through its General Manager (East)
10, Darya Ganj, New Delhi
2. The Chief Account Officer
MTNL, 10, Darya Ganj, New Delhi.
3. The A.G.M. (Administration)
MTNL, 10, Darya Ganj, New Delhi.
4. The Divisional EngineerI
MTNL, IdGaah, Delhi.
5. The Divisional EngineerI
MTNL, Laxmi Nagar, Delhi. ......... Defendants
CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 1 of 21 pages
SUIT FOR PERMANENT INJUNCTION AND DECLARATION
Case filed on 22.09.2005
Arguments heard on 21.02.2014
Date of decision - 06.03.2014
JUDGMENT
1. Vide judgment and decree dt. 14th May, 2010, the suit was partly decreed and the defendants were directed to consider plaintiff no. 2 Sushil Kumar for services on compassionate grounds having regard to his eligibility for any suitable post. An appeal was preferred. Ld. Appellate Court vide its judgment dt. 21.02.2013 set aside the judgment and decree dt. 14th May, 2010 and remanded back the matter for fresh consideration. It is thus that this suit is coming up for judgment once again.
2. Facts, as set out in the plaint, may be recounted. One Ram Sewak was employed with Mahanagar Telephone Nigam Limited (for short 'MTNL') as labour vide service no. Q276/9394/SDOIV. He was discharging his duties under SubDivisional Officer (Phones) (IV), IdGaah, SubDivision, New Delhi. As per the plaintiffs, he was later on transferred to SubDivision office, Laxmi Nagar, Delhi. He left for his heavenly abode on 03.04.2004 leaving behind his spouse Smt. Ram Devi (plaintiff no. 1), sons Sushil Kumar (plaintiff no. 2) and Jagmohan and daughter Ms. Meena.
3. After his demise, plaintiffs moved many applications for receiving services benefits of late Ram Sewak. But the defendants allegedly took no CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 2 of 21 pages action on their applications and were not ready to give all the benefits of salary, GPF, gratuity, pension and other benefits of late Ram Sewak to them. Application of plaintiff no. 2 Sushil for job on compassionate grounds was also refused. It is alleged that defendants are instead desirous of giving service on compassionate grounds to their near and dear ones, who applied much after the plaintiff no. 2 Sushil. Plaintiffs aver that they are on verge of starvation and have no source of income. Hence this suit, wherein plaintiffs seek reliefs of the following nature:
(a) Declaration in plaintiffs' favour and against the defendants to the effect that the plaintiffs are the rightful persons to get the amount of benefits of late Ram Sewak from the defendants being his legal heirs.
(b) Declaration to the effect that plaintiff no. 2 Sushil Kumar is the rightful candidate to get service/job on compassionate grounds prior to junior applicants /candidates.
(c) Permanent injunction in plaintiffs' favour so as to restrain the defendants from giving service to applicants/candidates other than plaintiff no. 2 Sushil Kumar who are juniors to him.
4. Defendants filed their written statement. It is submitted that the relief of declaration, in view of section 34 of Specific Relief Act, cannot be granted as the consequential relief of payment of benefits of services rendered by late Ram Sewak has not been sought for. In addition thereto, the suit is stated to be bad for noncompliance of section 80, CPC. Plaintiffs stand accused of concealing material facts for not disclosing that late Ram Sewak had abandoned his services voluntarily in 1995 and drew no salary from MTNL CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 3 of 21 pages after April, 1995. According to the defendants, he never ever claimed any rights, amounts or benefits from MTNL thereafter. Late Ram Sewak, it is stated, did not report for his duties and remained irregular since 1991 and did not give any application or tender any intimation of his absence. It is thus urged that the suit is time barred. Defendants also aver that the suit discloses no cause of action.
5. Defendants further allege that late Ram Sewak concealed material facts about registration of following two FIRs against him: (a) FIR no. 60/91 dt. 01.02.1991 u/s 363/366/376 IPC, and (b) FIR no. 489/91 dt. 04.09.1991 u/s 509/506 IPC. In the first case (FIR no. 60/91), it is submitted, late Ram Sewak was convicted and sentenced to 10 years rigorous imprisonment by the court of Sh. I. C. Tiwari, Ld. ASJ, Delhi on 23.09.1998. It is further stated that late Ram Sewak was arrested and after being tried for these offences, involving moral turpitude, perhaps also remained behind bars for some period. It is submitted that had the aforesaid facts not been concealed from the defendants, disciplinary action would have been initiated against late Ram Sewak and his services terminated. It is claimed that plaintiffs are intending to commit fraud upon MTNL by concealing the aforesaid facts.
6. Defendants deny that plaintiffs are the legal representatives of late Ram Sewak and submit that plaintiffs have not produced any proof of their relationship with him. Defendants go on to deny that late Ram Sewak left behind only the plaintiffs and the persons mentioned in the plaint as his legal CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 4 of 21 pages representatives. They further deny that plaintiffs are entitled to receive the benefits. Defendants aver that family of plaintiffs was never dependant upon late Ram Sewak for their subsistence since 1995. They also deny having received any application from the plaintiffs. Plaintiffs were instead, it is stated, required to move an appropriate application to the competent authority giving necessary details and particulars therein whereafter only their request could have been considered. It is stated that during late Ram Sewak's lifetime no claim was made in respect of any payments or dues from the defendants which shows that latter were not liable to pay any amount to late Ram Sewak. It further tantamounts, it is averred, to waiver of any claim which late Ram Sewak may have had against the defendants. Defendants go on to state that plaintiffs' claim is far fetched, belated and an afterthought. Defendants further deny that plaintiffs were made to run from pillar to post to receive the dues on account of salary, GPF, gratuity and pension of late Ram Sewak. Defendants deny that any amount under the aforesaid heads is payable to the plaintiffs. They state that they have no record of any interaction or representation made by the plaintiffs. Defendants assert that late Ram Sewak, at the time of his demise in 2004, was not under employment of MTNL. Defendants seek dismissal of the suit.
7. In their replication, plaintiffs reaffirmed and reiterated the contents of their plaint and refuted those made by the defendants in their written statement. It is stated that late Ram Sewak's services never stood terminated CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 5 of 21 pages by MTNL and he continued to discharge his services to his employer's full satisfaction. Plaintiff refute the allegation that any relevant fact has been concealed from the defendants. It is averred that late Ram Sewak was acquitted in appeal and never remained absent from his services.
8. Issues, framed on 18.05.2007, are as follows:
1. Whether the plaintiff is entitled to a decree of declaration as prayed for in the plaint? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in the plaint? OPP
3. Whether the suit of the plaintiff is barred under section 80 of CPC?
OPD
4. Relief.
9. Plaintiffs Smt. Ram Devi and Sh. Sushil Kumar examined themselves as PW1 and PW2 respectively. On behalf of defendants, one Idris Ahmed, Senior Manager with MTNL, was examined as DW1. Ct. Dayal Chand from PS Seelampur was examined as DW2 and he brought the summoned record of FIR no. 60/91 and FIR no. 489/91, both PS Seelampur, and exhibited them as Ex. DW2/1 and DW2/2 and also exhibited a status report as Ex. DW2/3.
10. I have heard arguments at Bar and perused the record.
11. The issuewise findings are as follows.
12. Issue No. 3 - This issue is whether the suit is bad for noncompliance of section 80, CPC. According to section 80, CPC no suit can be instituted CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 6 of 21 pages against the 'Government' or against 'a public officer' in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at any of the offices mentioned therein.
13. In the instant case, plaintiffs did not issue any such notice to defendant MTNL or any of its officers before instituting the suit. The moot question, however, is whether MTNL and its officers were required to be served with the notice under section 80, CPC. Defendant MTNL is a corporate entity being a limited company. Being a corporate entity it can sue and be sued in its own name. When incorporated, it was a government company within the meaning of section 617, Companies Act, 1956. It continues to be a government company. Now, government is not the same as a government company for the purposes of section 80, CPC. In the case reported as P. S. Pillaswamy vs. Ms Karnatka Silk Marketing Board Limited, 1993 (3) LJR 184 : 1993 (2) Civ.C.C. 436 it has been held by Hon'ble Karnatka High Court that a government company is not government so as to attract provisions of section 80, CPC.
14. In the context of State electricity Boards, there are few judicial decision to hold that they may be instrumentalities of the State within the meaning of Article 12, Constitution of India, but they would not answer the description of government as understood in the context of section 80, CPC. {Smt. Minakshi Patra vs. Secretary, Irrigation & Power, Govt. of Orissa, CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 7 of 21 pages AIR 1999 Orissa 137 and V. Padmanabhan Nair vs. Kerala State Electricity Board, AIR 1989 Ker 86}. On similar footing, MTNL may be an instrumentality of the State within the meaning of Article 12, Constitution of India. It nevertheless would not answer the description of government as understood in context of section 80, CPC.
15. Furthermore, in the context of Food Corporation of India (FCI), it has been held in Kamta Prasad Singh vs. Regional Manager, Food Corporation of India & Ors., AIR 1976 Pat 376 that it is not government for the purpose of section 80 CPC. It was observed, "The fact that the capital of the Corporation may be provided by the Central Government or that the working of the Corporation can be supervised or directions may be issued by the Government does not, in my view, constitute it a "government" within the meaning of section 80 of the Code." Further, visavis the officers of FCI, Hon'ble Patna High Court went on to observe, "Here the officers of the Corporation are not in the service or pay of the Government. They are in the service of the Corporation and are paid out of the funds of the Corporation. In this view of the matter, I do not think that the officers of the Corporation are public officers within the meaning of section 80 of the Code of Civil Procedure." Therefore, on similar footing the fact capital of MTNL may be provided by the Central Government or that its working may be supervised or directions may be issued by the Government would not constitute it a CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 8 of 21 pages 'government' within the meaning of section 80 CPC. Similarly, the MTNL officers are not in the service or pay of the Government. They are in the service of MTNL and are paid out of its funds. In this view of the matter, it cannot be said that MTNL officers are public officers within the meaning of section 80, CPC.
16. To conclude the discussion on this issue, for the aforesaid multiple reasons it is held that defendant MTNL or its officers were not required to be served with the notice under section 80, CPC. And as such this issue is answered in plaintiffs' favour and against the defendants.
17. Issue No. 1 - Declaration to the effect that plaintiff no. 2 Sushil Kumar is the rightful candidate to get service/job on compassionate grounds in place of late Ram Sewak prior to other junior applicants/candidates is sought for in the plaint.
18. According to section 34, Specific Relief Act, declaratory decrees may be issued when any person is 'entitled to any legal character' or to any right as to any property and the adverse party is denying or interested to deny his title to such character or right. A bare reading of section 34 makes it manifest that any person could file a suit for declaration in case he, inter alia, is 'entitled to any legal character'. 'Legal character' indicates 'legal status'.
19. The moot question is whether the plaintiff no. 2 Sushil Kumar is 'entitled to the legal character' of being declared the rightful candidate to get service/job on compassionate grounds in place of late Ram Sewak. To put it CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 9 of 21 pages in simple words, the issue is whether there inheres a legal entitlement in plaintiff no. 2 Sushil Kumar to be declared to get job on compassionate grounds in place of late Ram Sewak. There are many judicial rulings to hold that compassionate appointment is not a legal right and rather it is a concession. In Steel Authority of India Ltd. vs. Madhusudan Das & Ors. AIR 2009 SC 1153 it was observed, "This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules." Further, in State of Chhattisgarh & Ors. vs. Dhirjo Kumar Senger, AIR 2009 SC 2568, it was held, "Appointment on compassionate ground is an exception to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. Nobody can claim appointment by way of inheritance." In General Manager, State Bank of India & Ors. vs. Anju Jain, JT 2008 (9) SC 272, it was observed in para 29 of the Judgment, "We are of the view that both the Courts were wrong in granting relief to the writ petitioner. Appointment on compassionate ground is never considered a right of a person. In fact, such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution." Hon'ble Delhi High Court in Smt. Kamla vs. Union of India & Ors., MANU/DE/3825/2013 made the following observations, "It is now settled law that compassionate employment is not a source of recruitment. Compassionate appointment can only be in CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 10 of 21 pages terms of an applicable policy. The following important observations have been made by the Supreme Court recently in the case of State Bank of India and Anr. vs. Raj Kumar MANU/SC/1192/2010 : 2010 (3) SCALE 635 with respect to compassionate employment.
6. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand, it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme."
20. Therefore, the legal position that emerges is that claim for compassionate appointment is traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. It is in the light of this legal position that the present case is to be examined.
21. Insofar as the fact that plaintiff no. 2 Sh. Sushil Kumar is the son of late Ram Sewak, there is hardly any doubt. Plaintiff Satish (PW2) has categorically deposed that late Ram Sewak was his father. His deposition in this regard was corroborated by plaintiff Smt. Ram Devi (PW1). There is CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 11 of 21 pages nothing in the crossexamination of these two witnesses which could create a doubt on this score. In addition thereto, the election card (Ex. PW1/K) of Sushil Kumar and the ration card Ex. PW1/1 also lend credence to the fact that plaintiff no. 2 Sushil Kumar is the son of late Ram Sewak.
22. However, the mere fact that plaintiff no. 2 Sushil Kumar is the son of late Ram Sewak, who at some point of time was working with MTNL, would not ipso facto entitle him to claim compassionate employment unless there is a scheme framed by MTNL in this regard. In defendants' evidence, DW1 Idris Ahmed in his testimony led into evidence a document Ex. DW1/D. This document Ex. DW1/D is a letter dt. 08.03.2004 under the signatures of N. K. Chokker, GM (HR I) whereby and whereunder a decision banning all types of recruitments, including those on compassionate grounds, except in key areas in MTNL, was conveyed to Executive Director of MTNL. The relevant extract of this letter is as follows:
"The position regarding pending cases of Delhi Unit for grant of approval on compassionate ground was put up to The Board of Directors vide 192nd meeting held on 16.02.2004.
The Board examined the proposal in its entirety and concluded that MTNL is making honest attempts to downsize and optimize the Organisational structure, by way of introduction of Voluntary Retirement Scheme. It was, therefore, felt that it would be counterproductive if we go ahead in making recruitment on Compassionate Grounds, Sports Quota etc. Accordingly, approval of Board of Directors is conveyed to impose a ban on all types of recruitment except in CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 12 of 21 pages the key areas where posts have to be manned by professionally qualified personnel. Copy of Agenda Note alongwith minutes are also enclosed for your perusal."
23. Therefore, when MTNL as a matter of policy has banned employment on compassionate grounds, plaintiff no. 2 Sushil Kumar cannot claim the same. Consequently, a legal entitlement of plaintiff no. 2 Sushil Kumar to be declared to get job on compassionate grounds in place of late Ram Sewak does not exist. And as such, a decree of declaration to this effect cannot be passed.
24. There is yet another reason as to why this sort of a declaration cannot be granted. In the instant case, there is no resignation letter of late Ram Sewak. There is neither any order from his employer terminating his services. However, it does appear from the record, on the basis of preponderance of probabilities, that late Ram Sewak had abandoned his services. It is an admitted fact that late Ram Sewak drew his salary only till April, 1995. Plaintiffs' counsel, in this regard, put a suggestion to DW1, which was replied as follows, "It is correct that Ram Sewak had accepted the salary upto April 1995." Thus, late Ram Sewak having drawn his salary only till April, 1995 is not at all in doubt. An employee, who attends his job regularly, in the event of not getting his monthly salary continuously, would of course send some sort of representation to his employer. He may also avail of his legal remedies. But it appears that late Ram Sewak neither sent any representation to his employer nor took recourse to any legal remedy for nonpayment of his CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 13 of 21 pages monthly salaries ever since May, 1995. He passed away in 2004. Thus, it appears to be highly unusual for the employee late Ram Sewak not to do anything about nonpayment of his monthly salary for as long as 09 years, if he indeed had been attending his job. It only goes to show that there was perhaps was a case of abandonment of service on the part of late Ram Sewak. This view is further fortified by the fact that MTNL had issued a letter dt. 04.01.1994 (Ex. PW1/F) to late Ram Sewak thereby informing him that he had been absenting himself from duty, without any intimation, with effect from 19.05.1993, and that he must report for duty within three days from receipt of the letter, lest disciplinary action would be initiated against him. If late Ram Sewak was reporting for his duty regularly, as claimed, then there was no occasion for his employer to issue such a notice. Conversely, if MTNL issued the letter Ex. PW1/F without any basis, then from the standpoint of a reasonable and prudent person, the employee late Ram Sewak ought to have protested to the same by responding that he was in fact attending his duty on regular basis or he could have sent some sort of reply thereto wherein he could have offered some explanation for his absence. But he did nothing in response to the letter Ex. PW1/F. Therefore, it is apparent that late Ram Sewak accepted or consented by silence or by omitting to object to the letter Ex. PW1/F that he had been absenting himself from duty, without any intimation, with effect from 19.05.1993. There is yet another circumstance that corroborates the fact that late Ram Sewak had abandoned CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 14 of 21 pages his service. Document Ex. PW1/E was led into evidence by the plaintiffs. This document is General Provident Fund (GPF) statement of account. This document shows that transaction in GPF account of late Ram Sewak was only till 1994 and not thereafter. Furthermore, conviction and sentence of late Ram Sewak in FIR no. 60/91 PS Seelampur by Ld. Sessions Court in year 1998 is not in doubt. This FIR (Ex. DW2/1) was under sections 363/366/376/34 IPC. Ex. DW2/3 is a document dt. 11.12.2013 under the signatures of the concerned Station House Officer stating therein the aforesaid facts about his conviction and sentence. Even the plaintiffs do not dispute this. The following extract out of crossexamination of DW1 would show that plaintiffs do not dispute this.
"Volt. He was convicted in a criminal case in the year 1998 and he was behind bars. There are documents on record to show his imprisonment in judicial custody. It is incorrect to suggest that Ram Sewak was not in judicial custody for even a single day in the criminal case to which I referred to earlier. I have no knowledge of the fact that Ram Sewak was acquitted in appeal by the High Court."
25. Therefore, what emerges is that plaintiffs have taken the position that late Ram Sewak was later on acquitted in appeal in the case wherein he was handed down a conviction by the Ld. Sessions Court. But the plaintiffs have not proved this. The onus shifted to the plaintiffs to prove that in appeal he was acquitted. But, besides a stray suggestion to DW1 nothing has been brought on record to back up the claim that he was acquitted in appeal. That CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 15 of 21 pages apart, no particular(s) of the judgment of Ld. Appellate Court, viz., the criminal appeal number, the date, month or even the year of decision, the name the Judge who penned the acquittal judgment, have been pointed out by the plaintiffs. It is therefore, clear that late Ram Sewak was handed down a conviction in FIR no. 60/91 PS Seelampur of offences involving moral turpitude. His conviction may perhaps have been one of the reasons for his abandoning the service.
26. All these circumstances, on preponderance of probabilities, go to show that late Ram Sewak had abandoned his services by absence for a very long period (more than 09 years). In Vijay vs. Indian Airlines & Ors., (2013)10 SCC 253, the Apex Court has held, "9. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
10.In Jeewanlal (1929) Ltd., Calcutta vs. Its Workmen, AIR 1961 SC 1567 this Court held as under:
.....there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee. (see also Shahoodul Haque vs. The Registrar, Cooperative Societies, Bihar and Anr., AIR CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 16 of 21 pages 1974 SC 1896)"
27. Late Ram Sewak by absenting himself from duty for quite a long time, had voluntarily abandoned his service and in that eventuality, his bonds of service came to an end automatically without requiring any order to be passed by his employer MTNL. And consequently, when he died in 2004 he had no service bond with his employer. And he was not an MTNL employee at the time of his demise. What therefore follows is that Sushil Kumar (plaintiff no. 2) cannot claim appointment on compassionate ground as his father's service bond with employer MTNL had snapped by the time he left for his heavenly abode in 2004. For this additional reason, the decree of declaration to the effect that plaintiff no. 2 Sushil Kumar is the rightful candidate to get service/job on compassionate grounds has to be declined.
28. It was the argument of plaintiffs' counsel that late Ram Sewak cannot be said to have abandoned his service for the reason that MTNL did not take any action, much less any disciplinary action, against him. This argument lacks merit. In Vijay vs. Indian Airlines & Ors. (supra), the Apex Court has held that when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. It is therefore clear that when an employee absents himself for a very long period, it may amount to voluntarily abandonment of service and the bond of service break automatically and the employer is not CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 17 of 21 pages required to pass any order in this regard. The fact that MTNL did not initiate any action against late Ram Sewak or terminate his service by passing an order is hardly of any consequence in view of the dicta of law as laid down by the Apex Court.
29. Plaintiffs also seek declaration in their favour to the effect that they are the rightful persons to get the amount of benefits of late Ram Sewak being his legal heirs.
30. To begin with, this sort of a declaration is hit by section 34, Specific Relief Act. A mere declaration to the effect that plaintiffs are entitled to receive the payment cannot be granted without seeking the specific relief of payment of the dues or alternatively, subject to all just exceptions, decree in the nature of directions to the defendants to pay the same.
31. Furthermore, as already held hereinabove, late Ram Sewak had abandoned his service. The last drawn salary by him was in April, 1995. During his lifetime, late Ram Sewak never laid any claim to his service benefits for the period after April, 1995. After a long gap of 10 years of his last drawn salary, his service benefits are sought to be claimed. In view of the fact that late Ram Sewak had abandoned his service, the plaintiffs are not entitled to any service benefits for the period after April, 1995. After April, 1995, late Ram Sewak was not in service of his employer. After April, 1995, late Ram Sewak was not the employee of MTNL. An employer cannot be asked to pay the monetary benefits to an employee or his legal CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 18 of 21 pages representatives for the period after abandonment of service in the face of the fact that his service has already come to an end long ago on account of voluntary abandonment. Legal representatives of late Ram Sewak cannot lay any claim to his monthly salary for the period after April, 1995 for the simple reason that he was not in service of his employer on account of voluntary abandonment. Therefore, the plaintiffs' claim to the service benefits of late Ram Sewak from April, 1995 up to the year 2004 has to be declined. On similar footing, the plaintiffs could not be granted the family pension.
32. It does appear from the record that for the period prior to April, 1995, the employer MTNL has already paid the service benefits. DW1 in his examinationinchief deposed, "However, defendants already given all the pension/service benefit to the plaintiff till late Ram Sewak was in service i.e. April, 1995." In his cross examination, DW1 stated, "The department MTNL has paid the service benefits to Ram Sewak with effect from 10.04.1980 to April, 1995." It is not the case of the plaintiffs that for the period prior to April, 1995, the service benefits are not paid. No suggestion was put to DW1 to the effect that service benefits for the period prior to April, 1995 was not paid. Therefore, in the face of the fact that service benefits for the period prior to April, 1995 stand paid, no decree of declaration in this regard is required to be passed.
33. The upshot of the above discussion is that the plaintiffs are not entitled to any decree of declaration as claimed. Issue no. 1 is answered against the CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 19 of 21 pages plaintiffs and in favour of the defendants.
34. Issue No. 2 Plaintiffs seek a decree of permanent injunction in their favour in order to restrain the defendants from giving jobs to those applicants /candidates, who are junior to plaintiff no. 2 Sushil Kumar. A decree of permanent injunction can be issued under section 38, Specific Relief Act, to prevent breach of obligations existing in plaintiffs' favour. That is to say, in order to avail of a permanent injunction decree, it is obligatory upon the plaintiffs to show breach of an obligation existing in their favour. It bears repetition to state that there exists no legal right in plaintiffs to seek appointment on compassionate ground. Under the law, appointment on compassionate grounds is not a legal right. And as such, when the legal right, as claimed, does not exist, there cannot arise any question of breach of any obligation existing in plaintiffs' favour. Moreover, no blanket injunction order can be passed against MTNL from recruiting any person from outside. Furthermore, there is no material to show that MTNL adopted any pick and choose method, in an arbitrary fashion, to recruit employees. In their cross examination, both the plaintiffs (PW1 and PW2) admitted that they had no data to support their allegations that the defendants gave employment by pick and choose.
35. Therefore, the plaintiffs have miserably failed to establish their entitlement to the relief of permanent injunction. This issue is decided against the plaintiffs and in defendants' favour.
CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 20 of 21 pages
36. Relief In the light of findings upon the foregoing issues, this suit is liable to be dismissed. It is ordered accordingly. Decree sheet be prepared. Parties are left to bear their own costs. File be consigned to record room.
Announced in the open court (M.P. SINGH)
Dated: 06.03.2014 SCJ/RC (East)
Karkardooma Courts, Delhi
CS no. 757/06 Ram Devi & Anr. Vs. MTNL & Ors. Page 21 of 21 pages