Xavier Institute of Management Vs. Swapna Harrison - Court Judgment

Excerpt:
- sanju panda, j.1. in this writ petition, the petitioner has challenged the order dated 7.5.2009 passed by the learned ad hoc addl. district judge, ftc-2, bhubaneswar in fao no. 17/129 of 2008-2004 confirming the order dated 4.9.2004 passed by the learned civil judge (senior division), bhubaneswar in interim application no. 381 of 2004 arising out of civil suit no. 431 of 2004.2. the tarts, as narrated in the writ petition, are as follows:petitioner is the defendant. opposite party as plaintiff filed civil suit no. 431 of 2004 before the learned civil judge (senior division), bhubaneswar with a prayer to declare the order passed by the defendant as illegal, void ab initio, non est in the eye of law and for a decree of permanent injunction. in the said suit, she filed an application under order 39 rules 1 and 2 read with section 151 of the civil procedure code for injunction. the said application was registered as interim application no. 381 of 2004. the prayer made in the said interim application was to direct the defendant to maintain status quo prior to the passing of the termination order dated 24.7.2004. on hearing both the parties, the learned civil judge on 4.9.2004 directed to maintain status quo as was prevailing between the parties on 20.7.2004 till disposal of the suit and also observed that the order could not be used as a shield or sword against the authorities for all times to come till disposal of the suit because the plaintiff was subjected to the service rules of 1993 and in the event of any misconduct, service deficiency or for illegal act, the authority would be at liberty to take appropriate action against the petitioner. challenging the said order, defendant filed an appeal before the learned ad hoc addl. district judge, ftc-2, bhubaneswar. the learned ad hoc addl. district judge dismissed the appeal filed by the defendant confirming the order of the trial court. being aggrieved by the said order dated 7.5.2009, defendant petitioner has filed this writ petition.3. learned counsel appearing for the defendant petitioner submitted that both the courts below failed to appreciate that by virtue of the interim relief it had granted the main relief prayed for in the suit without adjudicating the claim raised by the parties. therefore, interference by this court in exercise of the jurisdiction under article 227 of the constitution of india is warranted and the order passed by the courts below is liable to be set aside.4. learned counsel appearing for the plaintiff opposite party submitted that on 3.5.1988 the plaintiff was appointed as a stenographer in the defendant-institution. after serving for sometime, she left the job. thereafter she again joined the institution and was continuing as a regular employee of the opposite party institution since 6th september, 1994. the recruitment and condition of service of the management of the defendant institution was framed and known as xavier institute of management staff recruitment and condition of service rules, 1993. the plaintiff was abruptly thrown away from the service with effect from 24.7.2004 by the defendant without any cogent and convincing reasons. he further submitted that such action of the defendant was per se illegal, arbitrary and violative of natural justice. therefore, challenging the said termination order, the plaintiff has filed the suit.5. it may be noted here that in the year 1967 the plaintiff was born in romania out of the wedlock of indian father and romanian mother. she came to india in the year 1981 having a valid passport. the residential permit was granted by the registration officer-cum-superintendent of police, bhubaneswar from time to time. her application for residential permit was under process in the ministry of home, government of orissa as well as the central government and the said permit was granted as a matter of course. while her application was pending before the authorities, defendant issued a letter to her on 29.6.2004 regarding valid residential permit. she replied to the said letter on 5.7.2004 that she was still a romanian citizen and her residential permit had already expired and the same was pending before the authorities for renewal. thereafter on 9.7.2004 again the authorities requested her to furnish all the necessary documents regarding valid residential permit. however, time was allowed till 27.4.2004 but she failed to produce the necessary residential permit. therefore, her service was terminated on 24.7.2004. during pendency of the interim application before the court below, the authorities revalidated her residential permit till 14.1.2005. considering the said facts, the learned civil judge held that the defendant had not followed the procedure prescribed in the service rules, 1993. therefore, the plaintiff had a prima facie case and the termination of her service would cause irreparable loss and injury to her. plaintiff opposite party being the sole earning member of the family, balance of convenience was also in her favour. on these grounds, the learned civil judge allowed the interim application. since the order passed by the learned civil judge had been confirmed by the lower appellate court, the impugned order should not be interfered.6. from the above rival submissions of the parties, it is clear that the plaintiff-opposite party's service had been terminated on 24.7.2004. thereafter, the suit was filed. the plaintiff filed an interim application to get back the position which was prior to filing of the suit. to pass such an order, the court has to satisfy itself higher than the prima facie case, balance of convenience and irreparable loss and injury sustained by the applicant. the apex court in the case of dorab cawasji warden v. coomi sorab warden and ors. reported in : air 1990 sc 867 held as follows :on the facts before the court there should be a strong probability of the plaintiff getting the relief prayed for by him in the suit. the plaintiff's case should be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.xxx xxx xxxit is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. ...7. it is a settled principle that the court should not grant a relief which can be granted at the final stage or which amounts to final relief unless there are special circumstances. only in extraordinary circumstances the court may be justified in granting a relief at the time of considering the interlocutory application, but for that the reasons must be recorded by the court. the apex court has consistently and persistently deprecated the action of courts in granting interim relief which amounts to final relief at the initial stage while considering the interim application. reference in this regard may be made to the decision of the apex court in the case of st. john's teachers training institute (for women), madurai and ors. v. state of tamil nadu and ors. reported in : (1993) 3 scc 595, bank of maharashtra v. race shopping & transport co. pvt. ltd. and anr. reported in : air 1995 sc 1368.8. the logic behind this remains that the ill-conceived sympathy emasculates as interlocutory judgment exposing judicial discretion to criticism to degenerating private benevolence and the court should not be guided by misplaced sympathy, rather it should pass interim orders making accurate assessment of even the prima facie legal position. the court should not embrace the authorities under the state by taking over the functions to be performed by the statutory authorities.9. in the present case, the main prayer and the interim prayer of the plaintiff is the same. while granting the interim order, the court should have considered that it is granting main relief to the plaintiff and before filing of the suit her service had already been terminated. therefore, she should not be reinstated in service before passing of the decree in the suit. the learned counsel for the petitioner defendant also cited the decision of this court in the case of orissa state commercial transport corporation ltd. represented by its secretary sri c.b.s. ramchandra rao v. sri satyanarayan singh and anr. reported in 40 (1974) clt 336 wherein this court has held that irreparable injury cannot be adequately remedied by damages.10. however, if an applicant is reinstated with full back wages, it cannot be said that any irreparable loss would be caused to him. once the plaintiff was not in service, the court had no jurisdiction to issue an injunction prohibiting the defendant from removing her from service or directing the authority to continue the plaintiff in service. therefore, the said order is without jurisdiction.11. since the order passed by the courts below is an error apparent on the face of the record, this court sets aside the impugned order dated 7.5.2009 passed by the learned ad hoc addl. district judge, ftc-2, bhubaneswar in fao no. 17/129 of 2008-2004 as well as the order dated 4.9.2004 passed by the learned civil judge (senior division), bhubaneswar in interim application no. 381 of 2004 arising out of civil suit no. 431 of 2004. as the suit is of the year 2004, this court directs the learned civil judge (senior division), bhubaneswar to dispose of the same as early as possible, preferably within a period of six months from the date of receipt of this order.12. the writ petition is accordingly allowed. no costs.