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The Union of India (Uoi) Vs. M.K.C. Kutty - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberAppeal from Order No. 85 of 1974
Reported in(1976)78BOMLR332
AppellantThe Union of India (Uoi)
RespondentM.K.C. Kutty
DispositionAppeal allowed
.....servant -relations between government and employees.;the powers of the court in the matter of interim injunction are regulated by the civil procedure code, 1908 and not by the provisions of the specific relief act, 1963. the court has inherent powers to grant interim injunction under section 151 of the civil procedure code, even if a particular case does not fall under section 94 read with order xxxix of the civil procedure code, 1908.;manohar lal v. seth hiralal [1962] a.i.r. s.c. 527 referred to.;all government authorities have to act within the rules. powers possessed by them can be exercised only for the purpose for which the same are designed and conferred. any mala fide exercise thereof, or exercise thereof for any collateral purpose, can never be tolerated and can never..........been calculated.2. the plaintiff then also took out a notice of motion on august 11, 1972, for an interim injunction restraining the defendants from giving effect to the impugned order. ad-interim injunction was granted and made absolute finally by the learned trial judge by his order dated november 21, 1972. legality of this order is challenged in this appeal.3. mr. bhonsale, the learned assistant government pleader appearing for the appellants, contends that, apart from no good case having been made out by the plaintiff, injunctive relief in the present case is wholly unwarranted. the contention of mr. bhonsale that such relief amounts to thrusting the services of an employee on unwilling master, and that injunction interfering with the duties of the public servants can never be.....

Deshpande, J.

1. The respondent-plaintiff joined Central Railway (the then G.I.P.) as wireless operator on October 11, 1945, after serving in the Navy, and was confirmed therein on January 1, 1946. By an order dated February 24, 1972, he was compulsorily retired with effect from May 24, 1972 under Rule 2046(ii)(H) of the Indian Railway Establishment Code, Volume II, on attaining the age of fifty-five on May 9% 1972. The suit, giving rise to this appeal, is instituted for declaring that the order dated February 24, 1972, is mala fide and, therefore, void and ultra vires, and consequentially for restraining the defendants, Union of India, etc., from giving effect to the same. He also claims a decree for Rs. 24,500 for the alleged monetary loss due to withholding his promotions maliciously and unlawfully. According to the plaintiff, he has been a victim of harassment, since before he was unlawfully dismissed in 1949, which dismissal was declared void on January 28, 1957 in Suit No. 488 of 1953. He was posted to an inconvenient place on reinstatement, his promotion was withheld, and juniors allowed to supersede him. He was denied free railway fare. False charges were framed against him from time to time, impairing his confidential records and his date of birth was falsely shown as May 9, 1917 instead of May 9, 1920 by interpolating the service record to trot out an excuse for compulsorily retiring him under the quoted Rule. This is how the impugned order is claimed by him to be mala fide and outside the rules quoted, and therefore, void. Plaint does not indicate how the monetary claim has been calculated.

2. The plaintiff then also took out a Notice of Motion on August 11, 1972, for an interim injunction restraining the defendants from giving effect to the impugned order. Ad-interim injunction was granted and made absolute finally by the learned trial Judge by his order dated November 21, 1972. Legality of this order is challenged in this appeal.

3. Mr. Bhonsale, the learned Assistant Government Pleader appearing for the appellants, contends that, apart from no good case having been made out by the plaintiff, injunctive relief in the present case is wholly unwarranted. The contention of Mr. Bhonsale that such relief amounts to thrusting the services of an employee on unwilling master, and that injunction interfering with the duties of the public servants can never be granted, is devoid of any substance. It is now well-settled that relations between the Government and its employees are not based merely on contract and are not merely that of a master and servant. Government servants are also possessed of certain statutory 'status' and they are entitled to the protection of law and Courts whenever any violation of the rule of law is alleged. Any order outside or in violation of any law or rules, removing him from service, cannot have any legal effect whatsoever and such orders, cannot be enforced against the Government servants and in the event of being enforced, the Court owes a duty to ensure that the servants are not dealt with excepting in accordance with law. This is the plain incidence of the rule of law and is too elementary to require any elucidation.

4. Secondly, the powers of the Court in the matter of interim injunctions are regulated by the Civil Procedure Code and not by the provisions of the Specific Relief Act. It is equally well-settled that Court has inherent powers to grant injunction under Section 151 of the Code of Civil Procedure, even if a particular case does not fall under Section 94 read with Order XXXIX of the Code of Civil Procedure. It would be enough to refer to the judgment of the Supreme Court in the case of Manohar Lai v. Seth Hiralal : AIR1962SC527 .

5. Thirdly, all Government authorities have to act within the rules. Powers possessed by them can be exercised only for the purpose for which the same are designed and conferred. Any mala fide exercise thereof, or exercise thereof for any collateral purpose, can never be tolerated and can never result in any effective order. The Court has undoubted jurisdiction to step in to ensure that such orders are not enforced and the status of the Government servant is not affected, even temporarily, whenever its attention is drawn towards it.

6. Mr. Bhonsale then contends that interim injunction should not be granted in a case like this, where injury to the plaintiff can be compensated by damages in the event of his success, while injury to the cause of the defendant remains un-compensated in the event of the dismissal of the suit. Now, there is undoubted substance in this contention, though this by itself by no means can be decisive. Interim relief is always intended to maintain the status quo to preserve the rights of the litigants till the dispute is adjudicated by the Court. But more often than not, passage of time with a status quo itself operates for the benefit of the one and results in the irreparable damage to the other. Rejection of the interim relief out-right, only on this ground, however may not always be justified. Comparative hardships and balance of convenience of the parties has got to be weighed, which again admits of no easy solution nor of any inflexible rules for guidance. Considerations necessarily differ from case to case and situation to situation and this is necessarily left, as it ought to, to the discretion of the Court, the result depending on the set of given facts raising variety of considerations and equities. But such discretion, to quote oft repeated passage of Lord Mansfield from Rex v. Wilkes (1770) 4 Burr. 2527 'must be governed by rule and not by humour, and it must not be arbitrary, vague, fanciful, but legal and regular.'

7. Thus the circumstance that damages can compensate the plaintiff but injury to the defendant remains unatoned, ordinarily should weigh against the plaintiff. The contention of Mr. Sabnis, the learned advocate appearing for the plaintiff, that the defendant is put to no injury, because of its getting the services in lieu of salary paid, is untenable. Continuance in service of a person found to be undeserving and unwanted, results in the, defeating of the object of the Rule, frustrating of the policy evolved for improving the administration, blocking the promotions of some, and recruitment of the others, and creating inequities in addition to misuse of the salary amount. It is true, as contended by Mr. Sabnis, that consequent humiliation, immediate loss of source of livelihood and other attending benefits and dislocation caused to the plaintiff cannot always be measured in terms of money. But such a contingency is implicit and not a very uncommon incidence of service whether in private or public sector. On the other hand, the order of injunction may have the effect of blunting the initiative and drive of the authorities concerned, apart from creating unhealthy atmosphere and disharmony in the office which can never be repaired. This is enough to out-weigh the effect of such incidental consequences to the individual. Then in between an individual and the State or statutory corporation or public institutions representing the interest of larger sections of the public, convenience of the former must always yield to that of the latter. This apart, the Court also has to ensure that any laxity in its exercise of discretionary power does not result in its process being abused. It may appear, to be a profitable adventure, to the disgruntled person to seek injunctions by making some plausible averments in the plaint, if in the ultimate analysis, he has nothing to lose. It is not difficult to make out a pretence of existence of a prima facie case in such matters.

8. Strength of the plaintiff's case is another very important factor and can never be divorced from considerations of balance of convenience. Requirements of such strength for interim relief can never be the same, as, for the existence of mere cause of action, as under Order VII, Rule 11 absence of which results in the outright rejection of the plaint. Suits intended essentially to circumvent the decrees and final orders obtained from the Courts and authorities in other proceedings, after completing one round of litigation, and based on supposed errors of procedure or lack of jurisdiction, are not unknown to the lawyers and the Courts. It will not be always difficult to make out some prima facie case and show of cause of action, designed to perpetuate the wrong sought to be removed or corrected under such decrees or orders. Very often than not, such proceedings ultimately turn out to be abuse of the process of the Court, tending in turn to create disrespect therefor. Courts' powers to interfere in such cases as also in cases advisedly left to the subjective opinion of the authorities, like the one under consideration, are extremely limited. The Court has, therefore, to be cautious and careful in assessing the strength of the plaintiff's case, from the pleadings and affidavits filed in support thereof, even at the early stage, to prevent such possible abuse of process and discourage litigation which thrives only on the prospects of interim reliefs. Parties have undoubted opportunity to indicate clearly the nature of evidence, oral or documentary, in their affidavits, if not in pleadings. Good and clear oases seldom fail to reflect its strength even at this preliminary stage. It would be all the more so, where the defendants happen to be the State, statutory corporation or public institution, whose affairs invariably are matters of record. Strength of the case raising high degree of probability may tilt the balance in favour of granting injunction, which would otherwise tilt in favour of refusing it, leaving the plaintiff to his alternate available remedy of damages. A case merely indicating the case of action under Order VII, Rule 11, or depending merely on oral evidence, or merely creating some doubts as to the factual or legal position, or raising oven prospects of success or failure by reference even to documentary evidence, is outside the former rule and Court would be extremely slow to grant interim injunction in such cases, when injury to the defendant is likely to remain uncompensated, but injury to the plaintiff even, without the interim injunction can be compensated by award of damages.

9. Coming to the facts of this case, Mr. Sabnis contends that the facts pleaded and sought to be supported by the affidavit do create high degree of probability in favour of the plaintiff. Unfortunately the plaintiff has not chosen to file any detailed affidavit. He has remained content with merely verifying the contents of the plaint. His main contention is that his confidential and service record is tampered with, with a view to furnish an excuse to chuck him out by availing of the Kule enabling compulsory retirement at the age of fifty-five on the ground of unsatisfactory performance. Mala fides and fabrication of records by the top officers is the foundation of the plaintiff's claim. It would have been a sound exercise of the discretion in favour of the plaintiff, if material sought to be relied had indicated some degree of probabilities of plaintiff's success. I, however, could not find any trace of any such strength even in the kind of the allegations made, not to speak of any evidence. Averments in the plaint do not give any precise picture as to why several top officers should bear any grudge against him and how the same officers could remain in the same office during the period from 1960 to 1972 or even during the period from 1949, since when harassment is alleged to have commenced. It is possible to contend that plaint need not always indicate the evidence, but there is no reason why indication of its strength should not be found in the affidavit. The plaintiff remained content with merely verifying the plaint in a cryptic form without attempting to give any clue as to the details of the case relied on. It is true that the affidavit filed on behalf of the defendant does not indicate the circumstances necessitating such compulsory retirement beyond a bald statement that the order was in accordance with rules. They would have been well advised to do so. But the tenor of the plaintiff's case is not that, papers do not show the existence of any case against him. The case set up is that a pretence thereof is made by creating material, without the existence of such situation. Absence of affidavit on this point in such a case does not make any difference when all allegations are denied.

10. One of the main allegations is that the service record is tampered, with a view to show May 9, 1917 being the plaintiff's birth date instead of the true date May 9, 1920. The plaintiff has only 'suspected' the officers, to have so tampered. The plaint or the affidavit does not give any indication as to on what documents he relies to show that his date of birth is May 9, 1920 and not May 9, 1917. He has not cared to refer to any horoscope, extract of birth register or the matriculation certificate, or any other document in which the date of birth must have been entered even before he entered the service. The learned trial Judge merely relied on the visual appearance of the service record indicating the existence of erasures, over-writing and difference in ink. This, no doubt, may raise reasonable suspicion, but the learned Judge erred in relying on these mere suspicions, in the absence of any contrary record of the date of birth. The learned Government Pleader seems to have drawn his attention, to some other documents in which May 9, 1917 is shown to be the date of birth. The order of the learned Judge does not indicate why these documents were liable to be discarded. In my opinion, such allegations, in the absence of something more, do not warrant the passing of the interim injunction order.

11. As Indicated earlier, the averments with regard to mala fides and malice of the officers are far from specific. Names of the officers or their designations and the period of their continuing in such high posts are not mentioned. It was necessary for the plaintiff to give some indication thereof as harassment is alleged to have been continued from 1949 to 1972. How the officers could have been the same is difficult to understand. The mere allegation that some of his juniors promoted over his head created this trouble, by itself fails to inspire any confidence, in the absence of any indication how they could have any power to poison the minds of several superior officers who must have changed during the period of these several years. Allegation that the adverse reports are inspired and false is neither here nor there. One out of the three adverse reports has been confirmed by the higher officers. On one occasion the plaintiff was fined in departmental proceedings for his certain lapses. It is not indicated why these circumstances themselves could not have led the authorities concerned to make up their mind to exercise their powers under the Rules authorising them to compulsorily retire the plaintiff. In the absence of something more, the kind of averments made in the plaint do not justify the interim injunction.

12. It needs only to be added that the order based on the alleged tampering of the service record has lost its force inasmuch as admittedly the petitioner reached the ago of fifty-five, at any rate, on May 9, 1975, if not on May 9, 1972. I find it difficult to uphold the order of the learned Judge. I think the interests of justice will be served better by vacating the injunction. I accordingly allow the appeal, set aside the order of the trial Judge, and vacate the injunction.

13. In the circumstances of this case, there will be no order as to costs.

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