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Hirendra Nath Bakshi Vs. Ram Jauhar and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Civil
CourtKolkata High Court
Decided On
Case NumberSuit No. 2890 of 1965
Judge
Reported inAIR1973Cal48
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 1
AppellantHirendra Nath Bakshi
RespondentRam Jauhar and ors.
Appellant AdvocateDipankar Ghose, Adv.
Respondent AdvocateJ.N. Roy, Adv.
DispositionPetition dismissed
Cases Referred(Cal.) (Phanindra Nath Gupta v. Life Insurance Corporation of India
Excerpt:
- orders.k. hazra, j.1. this is an interlocutory application for injunction restraining the respondent no. 2, life insurance corporation of india (hereinatfer called the l. i. c.) and its servants, agents, representatives, assigns, employees or otherwise from giving effect to or implementing the notice dated april 1 1972 and the enquiry report dated april 19, 1971 in any manner whatsoever pending the disposal of this suit. the notice dated april 1, 1972 is a show cause notice. by this notice the l. i. c. is calling upon the petitioner to show cause why he should not be dismissed from the service of the l.i.c.2. this show cause notice is given on the findings of the report of the enquiry officer dated april 9, 1971 that the petitioner is guilty of getting a cheque dated november 11, 1966.....
Judgment:
ORDER

S.K. Hazra, J.

1. This is an interlocutory application for injunction restraining the respondent No. 2, Life Insurance Corporation of India (hereinatfer called the L. I. C.) and its servants, agents, representatives, assigns, employees or otherwise from giving effect to or implementing the notice dated April 1 1972 and the enquiry report dated April 19, 1971 in any manner whatsoever pending the disposal of this suit. The notice dated April 1, 1972 is a show cause notice. By this notice the L. I. C. is calling upon the petitioner to show cause why he should not be dismissed from the service of the L.I.C.

2. This show cause notice is given on the findings of the report of the enquiry officer dated April 9, 1971 that the petitioner is guilty of getting a cheque dated November 11, 1966 drawn by the L. I. C. in favour of the respondent No. 1 Shreeram Jauhar for Rs. 1,323.10 encashed through his personal bank account and misappropriating the proceeds of the cheque. On this finding, of the enquiry officer, the L. I. C. proposed to dismiss the petitioner from service in terms of Regulation 39 (1g) of the L. I. C. Staff Regulations, 1960. The petitioner wants that this Court should issue an order of injunction restraining the L. I. C. from dismissing the petitioner. This prayer of the petitioner, prima facie, means that the petitioner wants by an ad interim order to enforce specifically that his employer should not dismiss him but he should be allowed to continue in service. In other words, the petitioner by an ad interim order wants specific performance of his contract of employment Prima facie, this could not be done but the learned Counsel for the petitioner, Mr. Dipankar Ghose relied upon a very recent decision of Lord Denning. M. R. reported in 1971 (3) WLR page 995 = (1971) 3 All ER (Hill v. C. A. Parson & Co.) page 1345 and submitted that very recently the Court of Appeal in England presided over by Lord Denning by a majority judgment has Issued an injunction restraining the employer from treating a notice of termination of service as having determined the plaintiff's employment and thus have indirectly granted specific performance of a contract of personal service by interlocutory injunction. It was submitted that I should follow the principles of this case and similarly grant him injunction,

3. The question is whether I should issue an order of interim injunction in this case as prayed.

4. This application is contested by Mr. Subrata Roy Chowdhury and Mr. J. N, Ghose on behalf of the L. I. C. and Mr. J. N. Roy on behalf of the respondent Shreeram Jauhar and a number of decisions have been cited by both parties. For the purpose of deciding the various points advanced on behalf of the petitioner and the respondent it is necessary to state certain facts which are set out hereunder :

5. The petitioner Hirendra Nath Bakshi joined New India Assurance Co. Ltd. on October 31, 1955. On September 1, 1956, the petitioner's service was transferred to L. I. C.

6. On October 11, 1966 a cheque for Rs. 2,481.10 was deposited by defendant No. 1 Sreeram Jauhar with L. I. C. Out of the said sum. a sum of Rs. 1,158/-was adjusted against his premium in respect of Policy No. 2313237, remaining a balance of Rs. 1,323.10 as unadjusted sum.

7. On November 1. 1966 a cheque for the sum of Rs. 1,323.10 was drawn by the L. I. C. by way of refund and the same was taken by the petitioner who was at the relevant time acting as Assistant Branch Manager. City Branch II for payment of defendant No. 1. The allegation against the petitioner is that he encashed the said sum in his own account, and did not pay the same to the defendant No. 1 Sreeram Jauhar. On October 31, 1968 at the time of internal audit it transpired that the signature of defendant No. 1 on the back of the cheque and the endorsement differed with that appearing on the policy.

8. On January 20, 1969 and on January 28, 1969, two letters were given by and on behalf of the L. I. C. to confirm whether the cheque given by the L. I. C. was received by the defendant No. 1 and whether he has encashed the same. The respondent No. 1 stated that he did not receive the cheque issued by the L. I. C. and as such there is no question of encashing such cheque. On March 14. 1969 a disciplinary proceeding was started against the petitioner under Regulation 36 (1) of L. I. C. Staff Regulation. 1963 and the petitioner was placed under suspension with immediate effect, After the order of suspension subsistence allowance at the rate of Rs. 611.00 per month under Regulation 37 of the Staff Regulation, 1963 was paid and is still being paid by the L. I. C.

9. On April 30, 1969 a charge-sheet containing four specific charges, all relating to defalcation of money was given to the petitioner and he was asked to submit his statement of defence within 15 days from the date of the receipt of the charge-sheet. On May 28, 1960, the petitioner submitted his explanation in reply to the charges. But the case of the petitioner is that on May 12, 1969, he asked for inspection of the records forming the basis of the charge-sheet but such inspection was refused on May 22, 1969 on behalf of the L. I. C. On Juno 11, 1969 the respondent No. 4 N. Balasubramanian was appointed enquiry officer to enquire into the charges contained in the charge-sheet, issued to the petitioner. On July 4, 1969, the enquiry officer informed the petitioner that the enquiry would be held on August 23, 1909 at a particular place. On August 8, 1969, the petitioner by letter to the enquiry officer stated that he intended to file a suit against the order of suspension and that the charge-sheet was illegal and ultra vires. He also asked for inspection of certain documents. It is the case of the petitioner that respondent No. 4, the enquiry officer did not allow inspection but agreed to supply copies of certain documents including the letter of respondent No. 1 mentioned in the payment voucher dated October 31, 1960. The case of the L. I. C. is that copies of relevant documents as available were supplied to the petitioner. On August 23, 1969, at the first hearing of the enquiry, the petitioner asked for adjournment on the plea that he required time for the study of the documents. On September 17, 1969, the petitioner filed the present suit, claiming, inter alia, for a decree against defendant No. 2, L. I. C. and defendant No. 3, Harbanslal Bhatia, the Zonal Manager of defendant No. 2. L. I. C. for setting aside the order of suspension dated March 14, 1969 and directing the defendants Nos. 2 and 3 to reinstate him. The petitioner also claimed injunction restraining the defendants Nos. 2, 3 and 4 from proceeding with the enquiry.

10. On September 19, 1969, by a letter to the enquiry officer, the petitioner stated that he had already filed a suit so that the enquiry proceedings be adjourned till the disposal of the suit. The next date for enquiry was fixed onOctober 6, 1969. On October 3, 1969, the petitioner by a letter requested the enquiry officer to shift the date because he wanted to move an application before the High Court on October 6, 1969. The enquiry officer fixed up the next date of enquiry on October 13, 1969. On October 6, 1969, the petitioner moved an interlocutory application and prayed, inter alia, for (1) injunction restraining the defendants Nos. 2, 3 and 4 from proceeding with the enquiry against the petitioner and from taking any ex parte decision; (2) Status Quo should be maintained in respect of the enquiry against the petitioner.

11. On October 10. 1969, interlocutory application of the petitioner appeared as a new motion in the list of T. K. Basu, J. and it was ordered that the respondents will be at liberty to continue with the enquiry, but no effect would be given to the results of the enquiry pending the disposal of the application.

12. Thereafter the petitioner asked for several adjournments of the enquiry and requested that the proceedings be adjourned till after the disposal of the interlocutory application. After several adjournments the enquiry officer submitted his report on April 19, 1971. On August 24, 1971, the interlocutory application was disposed of by Section C. Ghose, J. and no order was made on the said application except that the ad interim order to continue till October 31, 1971. On September 13, 1971, the petitioner preferred an appeal against the order of S. C. Ghose, J. being Appeal No. 248 of 1971 and moved an application for an order of stay of operation of the order of Section C. Ghose. J. dated August 24, 1971. In the said application, the petitioner alleged facts which were subsequent to the filing of the suit. The petitioner also alleged that he was not given reasonable opportunity of self-defence in the enquiry proceedings and he was not given the opportunity of cross-examining defendant No 1, the important witness in the proceeding. On September 25, 1971, the Zonal Manager by order remitted back the enquiry report to the enquiry officer with direction to give opportunity to the petitioner of cross-examining the witnesses produced before the enquiry officer. On November 25. 1971, the stay application was heard by P. B. Mukharii. C. J. and S. K. Mukherjea, J. and no order for stay was granted by the Appeal Court. After the stay application was refused by the Appeal Court, the petitioner was informed that the enquiry proceedings would be held on February 4, 1972 when he would be given opportunity of cross-examining the defendant No. 1. On February 4. 1972. the defendant No. 1 was present, but the petitioner failed to be present. The enquiry officer confirmed his earlier finding. On April 4. 1972. the second show cause notice was issued to the petitioner.

13. Mr. Subrata Roy Chowdhury, the learned Counsel for L. I. C. took the preliminary point that this application is barred by res judicata or principles analogous thereto. He submitted that the petitioner filed the suit, inter alia, on September 17, 1969 claiming a decree against the L. I. C. and its Zonal Manager directing them to reinstate the plaintiff in his previous post as Assistant Branch Manager at a salary of Rs. 1,200/-per month and also claiming injunction restraining the defendants from proceeding with the enquiry as stated in para-graphs 34 and 35 of the petition. After filing the suit the petitioner moved an interlocutory application on the ground that the charges framed against him are frivolous and the enquiry into the char' ges are unreasonable restriction on fundamental rights and ultra vires the L. I. C. Act. On October 6, 1971, the petitioner moved an interlocutory application, inter alia, for an order of injunction restraining the defendants, their servants and agents from proceeding with the enquiry against the petitioner and other reliefs. On October 10, 1969, T. K. Basu, J. passed an ad interim order that the respondents will be at liberty to continue with the enquiry but no effect would be given to the results of this enquiry pending the disposal of this application. On August 24, 1971, the said application was finally disposed of by Section C. Ghose. J. and no order was made on the application save and except that the ad interim order will continue till October 31, 1970.

14. The petitioner preferred an appeal against the order of Section C. Ghosh, J. and moved an application for an order of stay of operation of the order of Section C. Ghose. J. dated August 24, 1971. On November 25, 1971, the stay application was heard by the Court of Appeal consisting of the Chief Justice and Section K. Mukheriea, J. and their Lordships were pleased to pass the order that this Court doth not think fit to make any order on this application save and except as hereinafter appearing and it was ordered that the costs of the respondents of and incidental to this application will be costs of the appeal. As the Court of Appeal refused the application for stay of the enquiry proceeding, the same was proceeded with by the enquiry officer and the findings against the petitioner were arrived at and the notice dated April 1, 1971 was given by the L. I. C. in terms of the Staff Regulation. Thereafter, on April 11. 1972 this notice of motion was taken out for injunction in respect of the second show cause notice why the petitioner should not be dismissed, Mr. Subrata Roy Choudhury submitted that in the above circumstances, this application is barred by the principles of res nudicata. In any event, these matters cannot be agitated in this application as these matters are beyond the scope of the suit. The suit by the plaintiff is for setting aside the order of suspension made on March 14, 1969 and for injunction restraining the defendants from proceeding with the enquiry but now the petitioner is asking for injunction restraining the defendant L.I.C. from giving effect to or implementing the notice of dismissal or acting upon the enquiry report dated April 9, 1971. This could not be done because these are all matters outside the scope of this suit and these events happened after the institution of the suit. The petitioner wanted to restrain the L.I.C. from holding or proceeding with the enquiry against the petitioner but failed and the Court of Appeal did not pass any order of injunction and now the petitioner cannot again apply for restraining the L.I.C. from giving effect to the report of the enquiry officer.

15. Mr. Dipankar Ghose relied on : [1964]5SCR946 , (Arjun Singh v. Mahindra Kumar) and submitted that principles of res judicata could not be applicable in case of interlocutory orders where new facts have arisen under new situation after the order was made. Therefore, his client is not prevented by res judicata to bring in new facts and ask for injunction.

16. With regard to the point as to whether this application would lie at all, as the facts and circumstances which arc mentioned in the petition arc events subsequent to the suit and, different cause of action, Mr. Dipankar Ghose submitted that the principle of law is well established that a Court may take notice of events which happened since the institution of the suit and afford relief to the parties on the basis of altered condition, in order to shorten the litigation and to do complete justice between the parties. In the petition, of course, his client has prayed that the petitioner has been advised that the plaint should be amended and the petitioner is taking steps for amendment of the plaint.

17. But he submitted that amendment is not necessary in order to grant relief because where the Court feels that in order to shorten the litigation and subserve the ends of justice between the parties it is necessary to consider such facts it can certainly do so. In this connection Mr. Ghose relied on AIR 1945 All 311 at pp. 316, 317 (Joti Bhusan Gupta v. B. N. Sarkar). He also relied on ILR 60 Cal 685 = (AIR 1933 Cal 534), (Priyambada Devi v. Bholanath Basu). The headnote of this case runs thus 'A Court acts with material irregularity in the exercise of its jurisdiction in refusing to look at events subsequent to delivery of possession. It is the duty of the Court, which still retains control of the judgment, to take such action as will shorten litigation, preserve the rights of both parties and best subserve the ends of justice. Courts have gone so far as to hold that in exceptional cases it is not only competent but it is the duty even of a court of appeal to take notice of events, which have happened since the order challenged in appeal was made.' He also relied on AIR 1925 Mad 63 at p. 64. It was submitted that although these matters are not within the scope of this suit yet this Court can grant injunction. With regard to this argument of Mr. Ghose, my difficulty is that I am not hearing the suit. This is an interlocutory application and I can only protect the rights sought to be established at the trial of this suit. The plaintiff has stated in this petition that he will amend the plaint. Before such amendment I cannot grant any relief at the intermediary stage which is not within the scope of this suit. If I do so, I will be granting reliefs which is not within the scope of this suit in the interlocutory stage. Mr. Ghose referred to Order 39, Rule 2 (1) of the Code of Civil Procedure and submitted that the Court may grant temporary inj unction restraining the defendant from committing a breach of contract. The question is whether Order 39, Rule 2 will apply at all in this case where it appears that by way of injunction the petitioner is asking for specific performance of a contract for personal service. The ordinary remedy for breach of contract is damages and no injunction can be granted where damages afford proper and adequate relief.

18. With regard to the point that if injunction is granted effect is really to enforce personal service. Mr. Ghose relied on : (1970)ILLJ32SC (The Executive Committee of U.P. State Warehousing Corporation, Lucknow v. Chandra Kiran Tyagi). In this case, the Supreme Court has enunciated that no declaration to enforce a contract of personal service will be normally granted. But Supreme Court also enunciated there are certain well recognised exceptions to this rule and they are: to grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311 of the Constitution, (2) reinstatement of a dismissed worker under the industrial law by the labour or Industrial Tribunals, (3) a statutory body when acted in breach of a mandatory obligation imposed by the statute.

19. Admittedly, the case of the petitioner does not come within any one of the well-recognised exceptions as set out by the Supreme Court in the above decision, but Mr. Ghose submits that these exceptions are not exhaustive. He says that apart from these exceptions even in the case of contractual relationship of master and servant, there may be an exceptional case when the Court Will grant an injunction restraining the master from dismissing the servant and on this point he relied on the recent judgment of Lord Denning M. R. in Hill v. C. A. Parson and Co. reported in (1971) 3 All ER 1345 = (1971-3 WLR 995). He said that in Hill's case under special circumstances Lord Denning, M. R. granted an injunction restraining the defendants from treating the notice of termination of employment Since this case had been relied upon so much by the learned counsel for the petitioner, it is necessary to see the circumstances under which the injunction was granted in this case by Lord Denning, M. R. and whether there is any such special circumstances in the instant case. Hill is a Chartered Engineer aged 63. He has been employed by C. A. Parson and Co. for the last 35 years and is due to retire in 2 years' time when he becomes 65. His salary is 3,000 a year and is soon to be raised. He is a member of their pension scheme. It is important for him to serve till the end of his time because his pension is determined on his last three years' average salaries. Mr. Hill and other professional engineers were not members of a trade union. Some employees of the company belonged to a trade union called DATA while others belonged to a rival trade union called ASTMS.

20. There were inter-union disputes. DATA determined to make all employees of the company to join their union and eventually forced the company to accede to their demands and the company also agreed with DATA to make all their employees join the DATA. On May 19, 1971, in view of the agreement between the company and the DATA the company wrote to 38 professional staff a circular letter in which the company wanted that Mr. Hill and 37 others arc required to become members of the DATA. Mr. Hill did not agree. In consequence on July 30, 1971, the company gave one month's notice to terminate his employment. Faced with this notice a test action was instituted and there was an application for injunction restraining the company from implementing the notice dated July 30, 1971 purporting to determine the employment of Hill. Lord Denning, M. R. said that the company could not have any power to change the conditions of employment of Mr. Hill without his consent. He also said that the notice of termination is too short a notice because it was conceded that the reasonable notice should be at least six months'. It was held in this case that the Court can in a proper case grant the declaration that the relationship between the master and servant still subsists and the injunction to stop the master treating it as an end. Special circumstances will be required before such a declaration is made. In this particular case, the length of notice is very important because an act, namely, Industrial Relations Act, 1971 which was passed on August 5, 1971 but certain parts of the Act which will confer certain important right on the employees in respect of the membership of the Union would be brought into operation within a short time. When that part of the Act comes into operation, the employees will not have joined the DATA. Having regard to the provisions of Industrial Relations Act, 1971, Lord Denning said that the notice given to Hill and 37 others should not be allowed to terminate their employment. Damages will not at all be any remedy. Lord Denning in the instant case observed 'if ever there was a case where an injunction should be granted against the employers, this is the case. It is quite plain that the employers have done wrong.'

21. Mr. Dipankar Ghose submitted that special circumstance in the instant case was that the petitioner was in service from 1956, and charge-sheet relates to a period in June, 1964. Since then he was promoted. He is now aged 48. He has come to this Court before his dismissal and as such the present case stands on a different footing. His service has not yet been terminated. He is still in service. He wants that the L.I.C. should be restrained from terminating his service.

22. Mr. Subrata Roy Choudhury appearing for the respondent Life Insurance Corporation of India submitted that under Section 41(e) of the Specific Relief Act, 1963 injunction cannot be granted to prevent a breach of contract, the performance of which would not be specifically enforced. He also referred to me Sections 14(a) and 14(c) of the Specific Relief Act, 1963 and submitted that the contract of service is determinable.

23. Mr. Subrata Roy Choudhury then referred to me several decisions of the Supreme Court and submitted that there are only three exceptions when injunction may be granted. He referred to : (1970)ILLJ32SC which decision was also referred to by Mr. Dipankar Ghose. Mr. Roy Choudhury also cited : [1959]1SCR1236 (Dr. S. Dutt v. University of Delhi). In this case what happened was that Professor M. N. Saha, the celebrated scientist as Arbitrator made an award, which provided that removal of one Dr. Dutt, from service was wrongful, ultra vires, mala fide and has no effect on his status and he is still continuing to be the Professor of the University. The Supreme Court set aside the award on the ground that it had disclosed the error on the face of it. The Supreme Court held at page 1054

'as the award in this case, directs specific performance of the contract of personal service, it involves a legal proposition which is clearly erroneous.'

24. Mr. Roy Choudhury also cited : (1964)ILLJ1SC (S.R. Tewari v. District Board, Agra). In this case, it was held that power to appoint ordinarily carried with it the power to terminate appointment and a power to terminate may in the absence of restrictions, express or implied, be exercised subject to the conditions prescribed in that behalf by the authority competent to appoint.

25. The Supreme Court of India in : (1970)ILLJ32SC said :

'From the two decisions of this court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognised exceptions to this rule and they are : To grant such declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311; (2) reinstatement of a dismissed worker under the Industrial Law by Labour or Industrial Tribunal; and (3) a Statutory Body when it has acted in breach of a mandatory obligation imposed by a Statute.'

26. Mr. Roy Choudhury submitted that the Life Insurance Corporation of India is not a department of Government but an autonomous body and provisions of Article 311 of the Constitution of India would not be applicable to his case. This was held in : AIR1961All502 (Ram Babu Rathaur v. Divisional Manager, Life Insurance Corporation of India) and this statement of law is accepted by the Supreme Court in : (1964)ILLJ1SC . Mr. Roy Choudhury then contended that Staff Regulations, 1960 of the Life Insurance Corporation is not a statutory provision. He relied on (1971) 75 Cal WN 26, (Life Insurance Corporation of India v. Nilratan Banerjee) and : (1971)ILLJ496SC (Indian Airlines Corporation v. Sukdeo Rai).

27. In view of the above authorities Mr. Roy Choudhury contended that the case of the petitioner docs not come within the three exceptions laid down by the Supreme Court in : (1970)ILLJ32SC and therefore I have no option but to dismiss this application.

28. The only question is, whether three exceptions to the general rule as laid down by the Supreme Court in : (1970)ILLJ32SC are exhaustive or not.

29. It Is to be noted that before laying down the three well-recognised exceptions, the Supreme Court said

'from the two decisions of this Court referred to above the position of law is that ... ... ... '

Therefore the Supreme Court while laying down the three exceptions had in mind the two decisions referred to above. The two decisions are : [1959]1SCR1236 and : (1964)ILLJ1SC referred to above.

30. In my view the Supreme Court no doubt laid down the three exceptions, but did not say that these exceptions are exhaustive. Indeed, the view of Lord Denning in the aforesaid case reported in (1971) 3 All ER 1345 = (1971-3 WLR 995), (Hill v. C, A. Parson and Co.) has not yet been considered by the Supreme Court. Law is progressing and the society is changing. I do not think, I shall go to the extent to say that there cannot be any imaginable circumstance other than the three exceptions. It may be that the Supreme Court may lay down other exceptions also if the decision of Lord Denning M. R., is placed before the Supreme Court for consideration. But for the purpose of this case, it is not necessary for me to go into this matter further; because, in my view, the special circumstances under which Lord Denning said that the notice by the master was bad notice, is quite different from the circumstances that I have before me in the present case. In my view, there is no special circumstance at all in the instant case to attract the principles laid down by Lord Denning M. R.

31. In this connection I will refer to a passage in the judgment of Jenkins L. J. in Martell v. Consett Iron Co. Ltd., (1955) Ch 363, 414 :

'It is an abuse of authorities to extract from judgments general statements of the law made in relation to the facts and circumstances of particular cases and treat them as concluding cases in which the facts and circumstances are entirely different and which raise questions to which their authors were not directing their minds at all.'

32. Sometime after the argument of the case was over, when I was going to deliver the judgment of this case, my attention was drawn by Mr. Dipankar Ghose to an unreported judgment D/- 30-5-1972 in F. M. A. No. 427 of 1971 (Cal.) (Phanindra Nath Gupta v. Life Insurance Corporation of India) by A. K. Sinha, J. and I was asked to consider this unrcported judgment also and so I will consider the same. This is an appeal against the order passed by the trial Court refusing the prayer for temporary injunction by the appellant resiraining the respondents from giving effect to the order of suspension and from proceeding or continuing with any enquiry proceeding pursuant to the charge-sheet issued against the appellant. The trial Judge although gave an ad interim order of injunction but ultimately dismissed the same on the ground that the enquiry should be held at Asansol and not in Calcutta. The correctness of this decision Was challenged before A. K. Sinha, J. on appeal. It was argued in that case that the trial Court failed to consider the main question in the application as to whether the respondents should be allowed to proceed with the enquiry or to give effect to the order of suspension in the facts and circumstances of that case. It was stated that on the admitted facts of that case, the petitioner was entitled to temporary injunction, inasmuch as the entire amount in dispute had been deposited immediately after the appellant came to know that the cheques were not sent to the Bank for encashment and the amounts so deposited were accepted by the respondents. On behalf of the respondents it was argued that the relationship between the appellant and respondents was that of ordinary master and servant and there cannot be any specific performance of the contract and reference was made to : (1970)ILLJ32SC and : (1971)ILLJ496SC .

33. A. K. Sinha, J. in the said unreported judgment observed :

'The arguments and counter-arguments on several points now raised before me appear to have not been considered or decided by the trial Court. These are undoubtedly substantial questions which ought to have been considered and decided...... ...... and having regard to the facts and circumstances of this case and the questions involved it cannot be said that there is no bona fide contention between the parties.'

With these observations, the learned Judge said that in the facts and circumstances of this case, there are substantial questions to be investigated at the final hearing of the suit. Since these questions now raised before the learned Judge were not decided by the trial Court, the learned Judge thought to remit the case back to the trial Court would cause delay and prolongation of the litigation. So considering all these aspects and the balance of convenience on the facts of the case before him, the learned Judge thought that temporary injunction ought to be issued till the disposal of the suit.

34. In my view, the facts and circumstances under which A. K. Sinha, J. granted temporary injunction is different from the facts and circumstances of the instant case. As I. have already said that in the instant case the petitioner applied for injunction restraining the respondents from proceeding with the enquiry against the petitioner, but it was ordered by this Court that the respondents would be at liberty to continue with the enquiry. The application of the petitioner for injunction was dismissed by the Court taking interlocutory matters. Thereafter there was an appeal and the appellate Court also did not give any order for injunction. This is a second attempt by the petitioner for order of injunction restraining the respondent L.I.C. from giving effect to the notice to show cause why the petitioner should not be dismissed.

35. In my view, this case is distinguishable from the case before A. K. Sinha, J. However, I am bound to follow the decisions of the Supreme Court of India. I have already held that I do not accept the contention of Mr. Dipankar Ghose that there is any special circumstance, under which I can say that the show cause notice given to the petitioner is bad. I do not also agree with Mr. Dipankar Ghose that in this suit before the plaint is amended, injunction as prayed in the petition may be granted although the same would be outside the scope of the suit. In my view, interlocutory injunctions are granted to protect rights sought to be asserted in the suit at the trial and as such there is no question of granting interlocutory injunction in respect of the matters outside the scope of the suit.

36. In view of the above matter, I shall dismiss this application. Having regard to the facts of this case, however, I will make no order as to costs.


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