Delhi District Court
Smt. Vimla Singh vs All India Blind Relief Society & Ors. ... on 1 June, 2016
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Prabh Deep Kaur, DJS
Suit No.187/2016
Unique ID no.02406C0212262016
In the matter of:
Smt. Vimla Singh
Receptionist cum Cashier
W/o Sh. Mahaveer Singh
(Not residing with the plaintiff)
Q No.9, Model Hospital, FBlock
Lajpat Nagar, PartII, New Delhi24 ..........Plaintiff
1. All India Blind Relief Society
FBlock, Lajpat NagarII, New Delhi110024
2. Mr. Laxman Kumar Sagar
E217, GKI, New Delhi110048
(Owner of respondent no.1)
3. Delhi Medical Council
Through its Director or any authorized representative
Room no.308A, third floor, Administrative Block,
Maulana Azad Medical College Bahadur Shah Zafar Marg,
New Delhi110002
4. Delhi Health Ministry
F17, Karkardooma, Maharaja Surajmal Marg
Arjun Gali, Delhi110032
Through its Director/ Secretary representative .........Defendants.
Date of institution of Suit : 25.05.2016
Date on which order was reserved : 01.06.2016
Date of pronouncement of the order : Oral
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ORDER
1. Vide this order, an application under Order 39 Rule 1 and 2 CPC moved by the plaintiff has been disposed off. Plaintiff has filed the present suit with following relief.
"(a) pass a decree of permanent injunction in favour of the plaintiff against defendants to stay / set aside the impugned notice dated 02.05.2016 issued by the defendant no.1 and also pass directions to defendant no.1 not to retire the plaintiff and not to take any action against the plaintiff till the disposal of the suit;
(b) give the direction to the defendant no.1 to 4 that the plaintiff could not be dispossessed from the quarter no.9 situated in the hospital complex for residential complex alloted by hospital / defendant."
2. In the present case, plaintiff has moved an application under Order 39 Rule 1 and 2 CPC with the following prayer:
"to pass an adinterim ex parte injunction order in favour of the plaintiff and against the defendants, not to evict from the Q no.9, from the plaintiff, till the pending disposal of the main suit;
"pass an ex parte order in favour of the plaintiff and against the defendants to stay / set aside the impugned notice dated 02.05.2016 issued by the defendant no.1 and also pass directions to defendant no.1 not to retire the plaintiff and not to take any action against the plaintiff till the disposal of the suit."
3. Plaintiff's averments:
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3.1. The plaintiff is the permanent employee with the management of respondent no.1 w.e.f. 25.08.1981 and initially plaintiff was appointed as dresser cum nursing but later on 05.01.1998 the plaintiff was promoted as a clerk cum receptionist in the society of the defendant no.1 which is from January 1995 and looking to her satisfactory services and she was pleased to appoint the same post in a permanent capacity on 05.01.1998 by Sh. Ghanshyam Singh the then General Secretary. Copy of appointment letter and letter dated 05.01.1998 has been annexed. The defendant no.1 initially known a Model Eye and General Hospital and later on the same was over taken by the present management. The defendant no.2 is owner but is also not clear due to dispute between previous management and between the present management. The defendant no.3 and 4 are the Govt.
department under whom the defendant no.1 is running / wroking. The rules and regulations of defendant no.3 and 4 are applicable upon the defendant no.1 and 2 and the policies and directions which have been issued by the defendant no.3 and 4 time to time.
3.2. On 06.09.1983 the plaintiff was alloted a Q. No.9 in the hospital complex having residential flat having two small rooms with kitchen, bathroom / W/C and verandah with open courtyard for the separate sub meter of electricity. It was also depicted in the letter to vacate the said house within six months after the retirement from the CS No.187/2016 Smt. Vimla Singh vs All India Blind Relief Society & Ors. Page 3 of 10 service and will be liable to pay normal rent in case the plaintiff do not vacate the house for some reason after six months of retirement. On 18.12.1989 the plaintiff also got no objection from the society / defendant no.1 for the installation of electricity meter in her name as a regular employee of the hospital and the electricity meter was accordingly installed at quarter no.9 in the name of plaintiff. The plaintiff is working continuously till today from her appointment honestly, intelligently and have spended all her life in serving the defendant no.1 and no complaint is pending against her and the plaintiff is hard working lady. The plaintiff is residing alone in the premises which was alloted by defendant no.1 because her husband has left her and son has also left her after his marriage and now the plaintiff is alone and no one is there to look after and help her. Plaintiff was enjoying her duty but suddenly the plaintiff received a notice dated 02.05.2016 issued by the defendant no.1 of superannuation from the post of receptionist cum cashier according this letter the defendant no.1 stated in para no.3 on attending superannuation and will be relieved from service w.e.f. 01.06.2016 and as per rules the name of the plaintiff will be struck off from the rolls of the office attendance register w.e.f 01.01.2016. The notice dated 02.05.2016 for removal of the service is illegal and arbitrary because the plaintiff has completed her 58 years and is doing her work and getting salary of Rs.12,662/ CS No.187/2016 Smt. Vimla Singh vs All India Blind Relief Society & Ors. Page 4 of 10 per month from which Rs.11,296/ the plaintiff is receiving through cheque and rest of the amount are deducting in P.F per month. 3.3. Thereafter, receiving the notice dated 02.05.2016 the plaintiff requested the plaintiff not to retire before 60 years. It is also submitted that in the past also many other employees also enjoyed the complete retirement age of 60 years as per the government policy. In past time, some persons have also been retired after 60 years of age the name of some employees of defendant no.1 which have been retired after 60 years of age i.e. Nand Kishore, Mr. Days Chand, Inderjeet, Smt. Kasturi, Shiv Charan Gupta etc. The retirement / removal of the plaintiff before 60 years is totally illegal and unconstitutional and same is based on without any justification. Accordingly, save the rule of law as there is a danger of maintaining doctrine of proportionality by the defendants. Therefore, notice dated 02.05.2016 is bad in the eyes of law and notice dated 02.05.2016 issued by the defendant is malafide with intention to remove the plaintiff. Hence, the present suit.
4. Defendant no.1 and 2 have addressed arguments on application of plaintiff under Order 39 Rule 1 and 2 CPC and it has been argued that a suit filed by the plaintiff is not maintainable in the present form being barred by Section 14 and Section 41 of Specific Relief Act. It has been further argued that plaintiff herself has relied upon the contract dated 25.08.1981 executed between parties which CS No.187/2016 Smt. Vimla Singh vs All India Blind Relief Society & Ors. Page 5 of 10 clearly provides for the following clause that:
"For termination of services one month notice from either side will be essential. If you leave without notice you will forgo one month's pay and if we terminate your services earlier, we shall pay you one month's pay in lieu of termination."
It has been argued that in view of abovesaid clause the contract between parties is determinable by Will and in view of Section 14 (c) of SRA Act the contract cannot be specifically enforced. Moreover, plaintiff is seeking performance of a contract for services but it is only related to the monetary relief and the loss of plaintiff can be compensated in monetary terms and suit is barred under Section 14
(a) r/w Section 41 (e) of SRA Act. It has been further argued that plaintiff is seeking relief that she should not be retired from the services while the services or work profession of plaintiff includes minute details and is defendant upon personal qualification and volition of parties and therefore Court cannot enforce this contract under Section 14 (b) of SRA Act as Court cannot control the day to day affairs under the contract. Moreover, the performance of contract for services of defendant requires continuous and daily supervision of Court which is not possible and therefore the relief is barred under Section 14 (d) r/w Section 41 (e) of SRA Act. It has been further argued that at maximum as per contract between parties, plaintiff can CS No.187/2016 Smt. Vimla Singh vs All India Blind Relief Society & Ors. Page 6 of 10 seek relief of damages and even the damages can be granted only up to the salary of notice period i.e. salary of one month. It has been further argued that allotment of accommodation is consequential relief to the contract of services and once the contract of services cannot be specifically enforced, then plaintiff cannot claim any interim relief regarding the accommodation. It has been further argued that if the relief under Order 39 Rule 1 and 2 CPC is allowed, it would be equivalent to decreeing the suit without granting an opportunity to the defendants to lead evidence. Therefore, the application for interim relief is liable to be dismissed at threshold.
5. Defendant no.4 has filed application stating that defendant no.4 has nothing to do with the present case nor any relief has been claimed against defendant no.4, therefore, the defendant no.4 should be deleted from array of parties.
6. Arguments heard. Record perused.
7. Admittedly, plaintiff is employee of defendant no.1 society and she has been alloted the quarter in question as a part of professional benefits. Vide notice dated 02.05.2016, plaintiff has been served notice of superannuation w.e.f. 01.06.2016. Thereafter, plaintiff sent a letter to the defendant thereby requesting the defendant no.1 to retire her at the age of 60 years instead of 58 years and on 25.05.2016 plaintiff filed the present suit.
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8. Plaintiff has not filed any rule showing that the age of retirement / superannuation is not 58 years of age but 60 years of age. In the plaint, plaintiff has stated that other employees have served the defendant no.1 society till the age of 60 years but only this ground is not sufficient to say that even plaintiff is entitled to superannuation at the age of 60 years. As far as the plea of plaintiff that defendant no.1 has not shown any rule regarding superannuation at the age of 58 years is concerned, it is the obligation upon the plaintiff to show that she is entitled for retirement / superannuation at the age of 60 years and not at the age of 58 years. Therefore, no prima facie case lies in favour of plaintiff.
9. Further, plaintiff has sought the relief that she should not be evicted from suit property till disposal of suit. The possession of plaintiff is an admitted fact but clearly the possession of plaintiff over the suit property is consequential relief to her tenure in the services and she cannot claim any right of possession over the suit property independently, however, plaintiff has filed allotment letter dated 06.09.1983 which provides a clause as follows:
"Further as you are allotted this accommodation in consequence of our employment, your HRA will be discontinued with effect from the date of your occupation of the quarter. You are also requested to vacate the house within six months after your retirement from the services.CS No.187/2016 Smt. Vimla Singh vs All India Blind Relief Society & Ors. Page 8 of 10
If you do not vacate the house for any reason after six months of your retirement you will be liable to pay normal rent."
10. Clearly, as per hte allotment letter, plaintiff is liable to vacate the property within six months from her retirement from the services. As per letter dated 02.05.2016, plaintiff is to retire w.e.f. 01.06.2016, therefore, plaintiff is liable to vacate the property within six months from 01.06.2016. Though in the whole plaint, plaintiff has nowhere stated that defendants have ever forwarded any threat to the plaintiff, however, considering the fact that she is a lady being abandoned by her husband, a liberal view is taken and plaintiff is directed to vacate the suit property within six months from 01.06.2016 and till then defendants are restrained from dispossessing the plaintiff from the suit property without due process of law and she is also directed to pay Rs.1500/ per month as usage charges to defendant no. 1 along with payment of electricity consumption charges till disposal of the suit.
11. In view of above discussion, application of plaintiff under Order 39 Rule 1 and 2 CPC is disposed off and defendants are restrained from dispossessing the plaintiff from the suit property without due process of law before expiry of six months from 01.06.2016 and she is also directed to pay Rs.1500/ per month as CS No.187/2016 Smt. Vimla Singh vs All India Blind Relief Society & Ors. Page 9 of 10 usage charges to the defendant no.1 along with payment of electricity consumption charges on 7th day of every month starting from June 2016 till disposal of the suit.
12. Nothing discussed herein in above shall tantamount to an expression on the merits of the suit.
Pronounced in the open Court (Prabh Deep Kaur)
on this 01st day of June 2016 Civil Judge, South East
Saket Courts, New Delhi
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