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IN THE HIGH COURT OF DELHI AT NEW DELHI
CS (OS) 2309 of 2008 & IA No. 13399/08
Reserved on : September 2, 2009Decision on : September 9, 2009
VISHAL GUPTA ..... Plaintiff
Through Mr. Ashish Mohan, Advocate
versus
L & T FINANCE LIMITED .... DefendantThrough Ms. Indu Malhotra, Senior
Advocate with Mr. Vikas Mehta andMr. Praveen Pahwa, Advocates
CORAM:HON'BLE DR. JUSTICE S. MURALIDHAR
1.Whether reporters of the local newspapersbe allowed to see the judgment? No
2.To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT09.09.2009
S. Muralidhar, J.
1. By this order, the preliminary issue in the suit concerning the territorial
jurisdiction of this Court to try the suit as well as the question of grant of
an ad interim injunction are being dealt with.
2. The Plaintiff was appointed by the Defendant L & T Finance Limited by
a letter dated 19th June 2006 as an Assistant Manager in their Corporate
Product Financing Division at New Delhi. Significant among the terms and
conditions of employment were following:
Place of Work:
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You will be assigned to work at our office in New
Delhi at present. However, you will be liable to be
transferred to any of the companys establishment in
India or outside, as and when required by the
management.
Termination of Employment:
The above offer of employment is for continuous
employment. However it may be terminated at any
point of time by either party giving two months notice
in writing. The company has right to pay two months
salary in lieu of such notice to you. The company shall
also have the right to adjust any leave due to you
and/or recover from you such amounts towards notice
pay for the shortfall in the period of notice.
Dispute
Any dispute between yourself and the company
concerning with or relating to or arising out of this
employment, shall be subject to the jurisdiction in
Greater Mumbai only.
3. The said letter was issued from the Corporate Product Financing
Division of the Defendant at Bandra (East), Mumbai. At the foot of the
first page of the appointment letter, the address of the registered office of
the Defendant at Ballard Estate, Mumbai was indicated.
4. On 12th February 2007, the Plaintiff was informed of the confirmation of
his appointment with the Defendant with effect from 3rd January 2007. The
updated Human Resource Manual & Procedure of the Defendant as on 13 th
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October 2008 has been filed by learned counsel for the Defendant. The two
clauses relevant for the purpose of present case are follows:
Abandonment
If unauthorized absence exceeds eight working days
(consecutive), the management at its sole discretion,
strike off the name of the employee from the rolls of
the company on ground of abandonment of
employment and advise him/her accordingly. If within
15 days from receipt of such advise, the employee
presents himself/herself and offers an
explanation/reasons of absence, the management has
an option to review the matter and confirm or
otherwise stand by its earlier decisions.
Exit Policy
An employee who wishes to resign from the services of
the company will be required to give the notice of
resignation as per terms of appointment or subsequent
amendments thereof. An employee will have to serve a
minimum period of 2 month as notice period or agreed
as per the term of employment.
If the employee desires to be relieved earlier than the
notice period, management at its sole discretion may
decide to waive the notice period or otherwise the
employee is required to surrender the equivalent salary(Basic Salary) applicable for the notice period waived.
If the company asks the concerned individual to leave
before the notice period, then the company will pay the
equivalent salary (Basic salary) for the remaining
notice period.
Management at its sole discretion may sanction leave
to the employee during his/her notice period provided
such leave exists to the credit of the individual.
In case an employee leaves within 1 year of service, no
unclaimed leave will be either encashed or
compensated against the settlement of notice period.
However, in case of an employee leaving after
completion of 1 year of service, the unclaimed leave
may be either encashed or compensated or settled
against notice period at the discretion of the
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arrangement. The encashment would be as per leave
Rules (i.e. only Basic salary).
The company may at its sole discretion terminate the
employment without notice and/or salary in lieu ofnotice, if in the opinion of the company, the
continuance of his/her employment is detrimental to
the interest of the company. In the event of such
termination, all benefits/perquisites/ allowances shall
stand forfeited.
All the loans availed by the employee are to be settled
before the date of resignation takes effect. Necessary
clearances on handing over the company assets shouldbe obtained from the respective authorities.
5. On 4th August 2008, the Plaintiff resigned from the services of the
Defendant by sending an e-mail addressed to Mr. Jaspal Singh Ahluwalia.
The said e-mail reads as under:
From: Gupta Vishal
Sent: Monday, August 04, 2008 11:27 AM
To: Ahluwalia Jaspal SinghCC: Kalra Anil; Ramesh V; Samant Biswajit D.; Singh
Niraj Kumar
Subject: Letter of Resignation
Dear Sir,
This is to formally inform that I will not be able to
continue my service for L & T Finance Limited as
Assistant Manager TEG, for Delhi NCR region.For personal reasons I would like to resign from the
aforesaid post. I wish to be relieved by closing hoursof 5/8/2008.
I would like to thank this organization for giving me an
opportunity to work together and imparting a goodexposure in Sales field.
I would request you to please relieve me of my officialduties on 5/8/2008. I am willing to compensate the
organisation as per policy in lieu of my notice period.
Thanking you,
Yours truly,
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Vishal Gupta
Employee N.-735310Assistant ManagerTEG
L&T Finance Ltd
New Delhi.
6. In response to the above e-mail which was sent at 11.27 am Mr. Jaspal
Singh Ahluwalia replied by e-mail to the Plaintiff on the same day at 11.42
am to the following effect:
RE: Letter of ResignationAhluwalia Jaspal SinghSent: Monday, August 04, 2008 at 11.42 AM
To: Gupta VishalCC: Kalra Anil; Ramesh V; Samant Biswajit D;
Sing Niraj Kumar
Vishal, you are required to resolve the Non Starter
Cases done by you after which only you will berelieved from the services of the Organisation.
Regards,
Jaspal Ahluwalia
7. On 5th August 2008, the Plaintiff received an e-mail at 5.59 pm from
another employee Ms. Manju Sachin Chowre attaching an Exit Interview
Form, Clearance Form and the details of the amount to be recovered from
the Plaintiff. According to the Plaintiff, he filled out these forms. As far as
the clearance form is concerned under the column Dues if any it was
indicated No by his own department, by the Admin. Department and
Operations Department. As regards the Fin. & Accts Department the
aforementioned column was left blank. As regards the recovery of the
amount due for two months salary in lieu of notice , the LTA Recovery
and the General Purpose Loan Recovery, a total sum of Rs.2,20,318/- was
indicated.
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8. It requires to be noticed that in response to the e-mail dated 4th August
2008 from Mr. Jaspal Singh Ahluwalia the Plaintiff sent an e-mail on 5 th
August 2008 at 11.53 AM stating that as per the report from the system,
two cases are been shown as non starter cases in which legal action has
been already initiated. On 6th August 2008 at 11.41 am Mr. Jaspal
Ahluwalia sent an e-mail to him that Vishal, you are required to resolve
these cases and ensure No Loss is incurred, till that time your release from
the organisation is withheld. The Plaintiff has placed on record the report
of non starter cases as on 15th October 2008 which shows that there were
two cases of commercial vehicles financing pertaining to one Birender
Singh and the other Sanjay Singh. Birender Singh had given some post-
dated cheques, some of which had been encashed and some dishonoured. It
is stated that legal action has been initiated as regards the dishonoured
cheques.
9. It is not in dispute that on 14st August 2008 the Plaintiff issued to the
Defendant a cheque in the sum of Rs.2,20,318/- and this was encashed by
the Defendant on 21st August 2008. It is, however, contended by the
Defendant that this amount has been placed in a sundry account.
10. The controversy in the present case is that the Plaintiff has not been
issued a relieving letter by the Defendant as a result of which he is unable
to take up employment with any other organization. According to the
Plaintiff, he received an offer for appointment from Axis Bank but was
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unable to join as he could not produce the relieving letter from the
Defendant.
11. Faced with a difficult situation where the Defendant refused to issue a
letter relieving him from its service, despite his clearing the dues, the
Plaintiff wrote to Mr. Anil Kalra, Head (HR) of the Defendant on 2nd
September 2008 an e-mail as follows:
From; Gupta Vishal
Sent : 02 September 2008 11:27To: Kalra Anil
Sub: Re: Letter of resignation_Vishal Gupta
Dear Sir,
This is in reference to my mail sent to you on
25/8/2008 in which I intimated that the cheque of
Rs.2,20,318/- in the name of L&T FINANCE LTD
as my settlement amount is cleared from my bank
account, but till date I have not been relieved from
the organisation. If organisation is not relieving
me, I am ready to join the services of the
organisation (L&T Finance Ltd) and also I
request you to kindly refund the settlement
amount recovered from me through cheque no.
233075 of UTI Bank LTD.
Waiting for your reply at the earliest.
Thanking you,
Regards,Vishal Gupta (emphasis supplied)
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12. In response to the above e-mail, Mr. Anil Kalra wrote to the Plaintiff
on 18th September 2008 as follows:
ToVishal GuptaAsst Manager-EPG-TEG
P.S. No. 735310
Location: New Delhi
Dear Vishal,
Refers to your request of 2nd
September 2008 for
resignation, we would like to put the following on
record:
1. You have already been informed that you have
done irregular lending in 2 cases where no
repayment has come so far and customers and
assets are not traceable.
2. We hereby give you a months time i.e. upto 30 th
October 2008 to find out the customers to whom you
have done the lending and also the assets for which
you have done the lending.
Please note that if the above is not organized by 30th
October 2008 the company will initiate the
appropriate civil/criminal action against you.
For: L & T Finance Ltd.
Anil Kalra
Head HR- L&T Financial Services. (emphasissupplied)
13. The Plaintiff then sent an e-mail on 15th October 2008 to Mr. Anil
Kalra, Head (HR) of the Defendant tracing the developments till then. He
pointed out that his requiring to resolve the non starter cases was not a
condition mentioned in the offer letter. He maintained that his
employment stood terminated when he paid two months salary in lieu of
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notice which was accepted by the Defendant. As regards the documents
collected by him from the borrowers in the two non-starter cases, he
mentioned that the current address proof and photo proof in both cases
were duly forwarded to the Defendant. He further informed that Birender
Singh was still available at the same place mentioned in his loan
application. In the same e-mail, the Plaintiff informed the Defendant of the
other address of Sanjay Singh He called upon the Defendant to
immediately issue him a relieving letter.
14. Thereafter, on 4th November 2008, the present suit was filed. The
prayers, inter alia, are for a declaration that the Plaintiff is entitled to a
letter relieving him from the Defendant with effect from 4th
August 2008;
for a permanent mandatory injunction directing the Company to issue a
relieving letter and other reliefs including refund of an amount of
Rs.32,890/ paid by the Plaintiff to the Defendant as salary in lieu of notice;
reimburse his out of pocket expenses and compensation for the loss of job
with Axis bank. He also sought damages for the loss of mental peace and
for the mala fide actions of the Defendant.
15. The suit was listed for hearing on 5th November 2008. The Defendants
2 and 3 who are officers of Defendant No.1 were not found to be necessary
parties and were struck off from the array of the parties. On 28th April
2009, the following order was passed by this Court:
The suit is ripe for framing of issues. However, there appear
to be some element of settlement and it is deemed expedient to
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give the parties an opportunity for the same.
List on 15th May, 2009. If no settlement is arrived at by the
parties, issues shall be framed.
IA.No.13399/2008(of the plaintiff u/O 39 Rule 1 and 2 CPC)
The plaintiff seeks interim order directing the defendant to issue
the employment relieving certificate to the plaintiff. It is stated
that the said certificate is necessary for the plaintiff to take
employment elsewhere. The counsel for the defendant has
stated that the plaintiff had, in fact, abandonedthe employment of the defendant and contrary to the agreement
with the defendant and has otherwise not given all the
information required to be submitted as to the business
transacted by the plaintiff on behalf of the defendant and owing
to which the defendant is suffering losses. The counsel for the
defendant has stated that if the plaintiff were to cooperate with
the defendant and give the requisite information to the
defendant, the defendant would consider issuing the
relieving certificate without prejudice to its rights and
contentions.
The counsel for the defendant has also contended that this court
does not have the territorial jurisdiction to entertain the suit. Toexplore the possibility of the settlement it has been agreed that
the plaintiff shall visit the office of the defendant at Moti Nagar,
Delhi at 11.00 a.m. on 29th April, 2009 and meet Mr Neeraj
Singh of the defendant and give all the information which is in
his power and possession and as required by the said
Mr Neeraj Singh. If the plaintiff is required to go to the office
of the defendant on subsequent dates also, the plaintiff shall do
so.
List on 15th May, 2009 for further consideration. If no
settlement is arrived at, the arguments on the application shall
be heard on that date.
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16. Pursuant to the said order, the Plaintiff went over to the Defendants
office on two dates i.e. 29th April 2009 and 5th May 2009. What happened
during those meetings is differently described by the Defendant and the
Plaintiff. According to the Plaintiff, instead of asking him about the two
non-starter cases, the Defendant asked him about various other cases and
therefore, they were not acting fairly. According to the Defendant, the
Plaintiff was not cooperating with them and declined to give them the
details regarding the nine loan defaulters whom he had introduced. The
Defendant has placed on record the copy of a letter dated 11 th May 2009
addressed by it to the Plaintiff listing out the 15 cases of defaulting parties
to whom loans were advanced by the Defendant on the recommendation of
the Plaintiff.
17. Despite learned counsel for the parties taking adjournments for
exploring the possibility of a settlement, it was reported finally that no
settlement was possible. The Defendant was prepared to give a letter
stating that the Plaintiff had ceased to be an employee of the Defendant on
account of abandonment of services; that his name stood struck off from
the rolls and that the certificate was being issued without prejudice to the
rights and contentions of the Defendant in the present suit. This kind of a
qualified relieving letter was of course not acceptable to the Plaintiff. The
parties were therefore heard at length on the application for ad interim
injunction as well as the question of territorial jurisdiction of this Court to
try the suit. Mr. Ashish Mohan, learned Advocate appeared for the Plaintiff
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and Ms. Indu Malhotra, learned Senior Advocate and Mr. Vikas Mehta,
learned Advocate appeared for the Defendant.
18. As regards the preliminary issue of territorial jurisdiction, it is
submitted on behalf of the Defendant that if the suit itself was not
maintainable then the question of grant of an ad interim injunction would
not arise. It is submitted by learned Senior Advocate for the Defendant that
in view of the specific clause in the appointment letter that any dispute
between the Plaintiff and the Defendant concerning with or relating to or
arising out of the employment was subject to the jurisdiction in Greater
Mumbai only, the suit filed by the Plaintiff in this court was not
maintainable. It is further pointed out that even for the purpose of Section
20 (a) and (c) CPC, the corporate office of the Defendant which issued the
appointment letter was in Mumbai, the refusal of the acceptance of the
resignation letter was also at Mumbai and therefore, the cause of action
arose only within the jurisdiction of the Court in Mumbai. Reliance is
placed upon the judgments in A.B.C. Laminart Pvt. Limited v. A.P.
Agencies, Salem AI R 1989 SC 1239, Shr ee Subhlaxmi Fabri cs Pvt. Ltd v.
Chand Mal Baradia AIR 2005 SC 2161. It is further submitted that the
granting of any relief of mandatory injunction directing the Defendant to
issue a relieving letter to the Plaintiff would tantamount to granting the
final relief itself and this was impermissible in law. Reliance is placed
upon the judgment of the Supreme Court in Metro Marins v. Bonus Watch
Co. Pvt. Ltd. AI R 2005 SC 1444.
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19. It is then submitted on behalf of the Defendant that when the employee
had a poor track record and had abandoned its services, the Court could not
compel it to issue a relieving letter simpliciter. It is repeatedly pointed out
that at least 15 of the borrowers whom the Plaintiff had recommended for
loan had defaulted. The full details of the borrowers were not available
with the Defendant. Considerable losses were suffered by it on account of
the conduct of the Plaintiff. There was no question, therefore, of the
Defendant being asked to issue a relieving letter to the Plaintiff
unconditionally. It is submitted that in any event a decision on this aspect
would require the case to go for trial. At the same time, it was contended
by the Defendant that there was no question of the Plaintiff being taken
back in its service particularly when the Defendant had lost confidence in
the Plaintiff. Therefore, this was a case where no relief could be granted at
this stage even by asking the Defendant to take the Plaintiff back in
service.
20. On the other hand, it is contended by the Plaintiff that the observations
made in A.B.C. Laminart Pvt. Ltd v. A.P. Agencies(supra) do not
categorically hold that the ouster clause would also apply in the contracts
of employment and that the said judgment was given in the context of a
commercial contract. Reliance has also been placed on certain decision of
the High Courts in M/s. Snehalkumar Sarabhai v. M/s. Economic
Transport Organization AI R 1975 Gujarat 72, M /s. Patnaik I ndustries
Pvt. L td v. Kal inga I ron Works AI R 1984 Orissa 182 and I ndian Rare
Ear ths L imited v. M /s. Unique Buil ders L imited AI R 1987 Orissa 30 . It
is submitted that there are instances where a mandatory temporary
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injunction can be granted and this is one such instance. Reliance is also
placed on the judgment of Dorab Caswaji Warden v. Coomi Sorab
Warden AIR 1990 SCC 867and Sukerma Rani Kapoor v. Om Prakash
Kapoor (2002) 2 AD (Del) 860.
21. As regards the submission regarding the territorial jurisdiction of this
Court, there is an ouster clause in the contract in terms of which only the
courts in Greater Mumbai would have jurisdiction. Learned counsel for the
Defendant clarified that Bandra (E) is in Greater Mumbai and in any event
given the claim made in the present suit, it would have to be filed on the
original side of the Bombay High Court. According to them, therefore, the
Court in Delhi has no jurisdiction.
22. The decisions of the Supreme Court in regard to ouster clause have
invariably been in the context of commercial contracts. In A.B.C.
Laminart Pvt. Ltd v. A.P. Agencies, the Defendant was located in Gujarat
whereas the Plaintiff was in Salem (Tamil Nadu). The objection by the
Defendant as to the jurisdiction of the Court in Tamil Nadu was negatived
by the High Court. The Defendant then appealed to the Supreme Court.
The ouster clause in that case did not use the word only or exclusively.
In that context it was held therefore, that the ouster clause did not manifest
the intention of the parties to exclude the jurisdiction of the Court at Tamil
Nadu. Accordingly, the order of the High Court was not interfered with.
However, the following observations in the said judgment appear to
indicate that the convenience of the parties is also a factor that would have
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to be borne in mind, and that the jurisdiction of the court cannot be said to
be completely excluded:-
16. So long as the parties to a contract do not oust the
jurisdiction of all the Courts which would otherwise have
jurisdiction to decide the cause of action under the law it
cannot be said that the parties have by their contract ousted
the jurisdiction of the Court. If under the law several Courts
would have jurisdiction and the parties have agreed to
submit to one of these jurisdictions and not to other or
others of them it cannot be said that there is total ouster of
jurisdiction. In other words, where the parties to a contract
agreed to submit the disputes arising from it to a particular
jurisdiction which would otherwise also be a proper
jurisdiction under the law their agreement to the extent they
agreed not to submit to other jurisdictions cannot be said to
be void as against public policy. If on the other hand the
jurisdiction they agreed to submit to would not otherwise be
proper jurisdiction to decide disputes arising out of the
contract it must be declared void being against public
policy. Would this be the position in the instant case?
23. In Shree Subhlaxmi F abr ics Pvt. Ltd v Chand Mal Baradia(supra)
again the question was of interpretation of a commercial contract. Again
following the list of judgments from ABC Laminart Pvt. L td v. A.P.
Agencies, it was held in Angile Insulation v. Davy Ashmore India
L imited (1995) 4 SCC 153that the ouster clause using the words only or
exclusively would in fact decide the jurisdiction of other courts. While
the earlier decisions of the High Courts taking a different approach even in
commercial contracts (for e.g., see M/s. Patnaik I ndustr ies Pvt. Ltd v.
Kalinga I ron Works)could be distinguished on the basis that they were
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delivered at a time when the decision in ABC Laminart Pvt. Ltd v. A.P.
Agencies had not been rendered by the Supreme Court, none of the
decisions deal with a contract of employment.
24. In the considered view of this Court the decisions on the ouster clause
in the context of a commercial contract have to be held to be
distinguishable in their application to a case of a contract of employment.
In the employment contract, an employee would not be able to insist that
the disputes, if any, are to be referred only to one court and not the other.
The employee usually accepts the employment with all the attendant terms
and conditions or not at all. In the present case, the letter of employment no
doubt states that it is a transferable job. Still, the Plaintiff was to work
primarily for the Delhi office of the Defendant. He, in fact, rendered
services only in Delhi office. He submitted his resignation at Delhi. For an
employee no longer in service to be asked to go to Mumbai for instituting
and pursuing litigation would render the remedy expensive and
inefficacious for such employee. It would work harshly against him.
Moreover, in a situation like the present one where the prayer is essentially
for a direction to the Defendant to issue a relieving letter, to direct the
employee to go to a different city only because of the ouster clause seems
to be unfair and unjust. Although in commercial contracts, it has been held
that such an ouster clause would not be opposed to public policy (see the
observations in para 18 of the decision in ABC Laminart), in a contract of
employment such a clause could well be held to be opposed to public
policy. To repeat, the courts have thus far had no occasion to examine how
a strict application of the exclusion clause would work for an employee
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who is out of service. As regards the comparative hardship, the Defendant
has an office in Delhi and there will be no difficulty for it to appear before
this Court and defend itself.
25. As far as Section 20 CPC is concerned, in terms of clause (b) thereof,
the Defendant has an office in Delhi. The letter of appointment was
received in Delhi. The email correspondence referred to hereinbefore
shows that the Plaintiffs resignation letter was sent from Delhi and the
refusal of the relieving letter was communicated to the Plaintiff in Delhi.
The result is that the Courts in Mumbai (because of the clause in the
appointment letter) and this court, on account of the substantial part of the
cause of action having arisen here, have jurisdiction to try the case. The
observation in ABC Laminartin para 21 that the intention of the parties to
completely oust the jurisdiction of the court in Delhi will have to be tested
in the above background. The use of the word only in the instant case to
qualify the ouster clause cannot be read as conferring exclusive jurisdiction
on the court in Mumbai.
26. For the above reasons, it is held that the ouster clause in the letter of
appointment of the Plaintiff cannot preclude this Court from entertaining
the present suit. The preliminary objection of the Defendant to the
maintainability of this suit on the said ground is hereby overruled.
27. Turning to the application for an ad interim mandatory injunction , it is
seen that there was no condition in the letter of employment that the
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Plaintiff has to first ensure that the non starter cases are resolved before his
letter of resignation could be accepted. Further, the conduct of the
Defendant in refusing to take the Plaintiff back into service becomes
relevant. When on 2nd September 2009 the Plaintiff offered that in the
event the defendant does not issue a relieving letter, he is prepared to join
back the service, there was no positive response by the Defendant. During
the course of arguments, the learned Senior Advocate for the Defendant
repeatedly stated that since it had lost confidence in the Plaintiff it would
not permit him to join duties. As far as the Defendant was concerned, the
Plaintiff was no longer in their service and yet, they would not issue him a
relieving letter simpliciter. To this Court, it appears that the point of refusal
of the Defendant to take back the Plaintiff into service while at the same
time refusing to grant him a relieving letter is not legally tenable. If the
Plaintiff was indeed responsible for the non starter cases, then consistent
with such plea the Defendant ought to have proceeded to hold an inquiry
against the Plaintiff while he was still in service. At no point in time while
he was in service, did the Defendant initiate any disciplinary proceedings
against the Plaintiff.
28. Even the reason of the Plaintiff having to first resolve the two non-
starter cases appears to have been a ruse to somehow deny him the
relieving letter. It transpired subsequently that the Defendant did not
confine its understanding of the Plaintiffs obligation to the two non-starter
cases. The Defendant has been insisting that the Plaintiff should help it
resolve 15 cases of default whereas only two are shown to be non-starter
cases. The Defendant is, therefore, trying to build a new case which it
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ought not be permitted to do. Even as regards the non-starter cases, the
Plaintiff appears to have given the information to the Defendant. In one of
the cases, the payments have been made in part and, therefore, in a strict
sense it is not a non-starter case. If in fact the Defendant has initiated legal
proceedings to recover the amounts due from both the borrowers, the
Plaintiff cannot be put on hold indefinitely to await the resolution of these
cases.
29. The stand of the Defendant is not consistent with the terms of the
contract of employment. It accepted the payment made by the Plaintiff for
two months notice period as well as the outstanding loan amount which
was a condition of the Plaintiff being relieved from service. It is not in
dispute that this cheque, which includes the loan amount, was encashed.
Therefore, there are no monetary dues as far as the Plaintiff is concerned.
There being no other term of service that requires to be fulfilled for issuing
a relieving letter, the refusal by the Defendant to do so seems unjustified.
The stand of the Defendant that the Plaintiff has abandoned his service is
also not borne out by the correspondence. In fact, the Plaintiffs offer to
join back service has been refused by the Defendant.
30. The only question that remains is whether a mandatory interim
injunction by this Court can be issued at this stage to the Defendant. The
rule that a Court cannot grant an interim relief that would amount to grant
of the final relief at the interlocutory stage is not an inflexible one. It would
depend on the facts of every case. The decision relied upon by the
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Defendant in Metro M arins v. Bonus Watch Co. Pvt. Ltd. was in a
different set of circumstances. That case dealt with a commercial contract.
It cannot ipso facto be applied to the instant case where the dispute arises
out of a contract of employment, and where the dispute is limited to the
employer refusing to issue to the employee, who has resigned, a relieving
letter/certificate. If, for the relieving letter, the Plaintiff has to wait for the
conclusion of the trial, the whole purpose of the Plaintiff coming to the
court would be defeated. The denial of a relieving letter by the Defendant
in the instant case has already prevented the Plaintiff from accepting any
other offer of employment.
31. It was observed in Dorab Cawasji Warden v. Coomi Sorab Warden
AI R 1990 SC 867as under (AIR, p.873-74):
14. The relief of interlocutory mandatory injunctions
are thus granted generally to preserve or restore the
status quo of the last non-contested status which
preceded the pending controversy until the final hearingwhen full relief may be granted or to compel the
undoing of those acts that have been illegally done or
the restoration of that which was wrongfully taken from
the party complaining. But since the granting of such an
injunction to a party who fails or would fail to establish
his right at the trial may cause great injustice or
irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party who
succeeds or would succeed may equally cause great
injustice or irreparable harm, courts have evolved
certain guidelines. Generally stated these guidelines
are:
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(1) The plaintiff has a strong case for trail.
That is, it shall be of a higher standard than a
prima facie case that is normally required for
a prohibitory injunction.
(2) It is necessary to prevent irreparable or
serious injury which normally cannot be
compensated in terms of money.
(3) The balance of convenience is in favour of
the one seeking such relief.
15. Being essentially an equitable relief the grant or
refusal of an interlocutory mandatory injunction shall
ultimately rest in the sound judicial discretion of the
Court to be exercised in the light of the facts and
circumstances in each case. Though the above
guidelines are neither exhaustive or complete or
absolute rules, and there may be exceptional
circumstances needing action, applying them as
prerequisite for the grant or refusal of such injunctions
would be a sound exercise of a judicial discretion.
32. Also relevant are the following observations of the Bombay High
Court in Baba Narayan L andge v. Mahadu Bhikaji Tonchar AIR 1989
Bom 247as under (AIR, p.247)
The subject of temporary injunction is mainly
covered by O. 39, Rr. 1 and 2, C.P.C In cases not
covered by those provisions, an appropriate temporary
injunction can be granted also in exercise of inherent
power of a Court under S. 151, C.P.C. After all O. 39,
Rr. 1 and 2 are not exhaustive of the circumstances
under which interim injunction can be granted. The
controversy on that aspect of the matter is set at rest by
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CS (OS) 2309 of 2008 Page 22 of 24
a majority decision of the Supreme Court in the leading
case ofManoharl al v. Seth H ir alal (AIR1962 SC 527).
But that apart the language employed in those two
Rules is clearly wide enough to include an order in the
form of a mandatory injunction and admits of no
exception with reference to a point of time to which it
can be made. Injunctions are a form of equitable relief
and they have to be adjusted or moulded in aid of
enquiry and justice to the facts and circumstances of
each particular case. Jurisdiction is thus undoubted even
under S.39, Rr. 1 and 2. Even If it cannot be granted
under the said Rules, S. 151, is the source of such
jurisdiction. I see no reason to lay down an absolute
proposition and forge unnecessary and unjustified
fetters on the power of the enquiry Courts to grant
appropriate relief even in a well deserving case and
reduce its position only to a willing but helpless
spectator - a situation not warranted by our enquiry
jurisprudence.
Undoubtedly, power to issue mandatory injunction at an
interlocutory stage is not to be exercised lightly or
commonly. Ordering maintenance of statues quo as on
the date of the suit as an interim measure is rate and
rarer still is the order of maintenance of status quo as on
the date anterior to the institution of suit. But existence
of jurisdiction and its proper exercise are two distinct
topics.
33. In the instant case, a direction to the Defendant to issue a relieving
letter is not the only relief being sought by the Plaintiff in the suit.
Therefore, in issuing such a direction, the suit itself does not become
infructuous. All that the Defendant is required to do is to issue the Plaintiff
a letter stating that he is no longer in their service. Any other qualification
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to such statement might render the cessation of the services of the Plaintiff
stigmatic. In such an event, the resort to a clause of termination simpliciter
by the Defendant would be futile and the Defendant will have to
acknowledge that the Plaintiff is still in their service and proceed against
him disciplinarily. This it refuses to do. Viewed from any angle, therefore,
a case is made out for issuing an interim mandatory injunction to the
Defendant to issue to the Plaintiff a simple relieving letter stating that he is
no longer in their service. The balance of convenience in issuing such an
interim injunction is clearly in favour of the Plaintiff.
34. Accordingly, an interim mandatory injunction is issued directing the
Defendant to issue to the Plaintiff a relieving letter within a period of seven
days stating that he is no longer in their service. The said letter will not
state that the Plaintiff has abandoned the service or any other qualification
that prevents the Plaintiff from taking any other employment.
35. With the above directions, the interlocutory application is disposed of.
CS (OS) 2309 of 2008
36. Pleadings are complete.
37. The suit be listed before the Joint Registrar on 11th November 2009 for
admission/denial of the documents.
38. It is made clear that the parties should complete the admission/denial of
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CS (OS) 2309 of 2008 Page 24 of 24
documents on the date fixed by the learned Joint Registrar for that purpose.
If, for some reason, they are unable to do so, then each party will file an
affidavit within two weeks thereafter indicating in a separate column
alongside the index of documents filed by the other party, which of the
documents is admitted or denied.
39. List before Court on 9th December 2009 for framing of issues.
S. MURALIDHAR, J.
SEPTEMBER 9, 2009
rk