IN THE HIGH COURT OF DELHI AT NEW DELHI CS (OS) 2309 of 2008 & IA No. 13399/08 Reserved on : September 2, 2009 Decision on : September 9, 2009 VISHAL GUPTA ..... Plaintiff Through Mr. Ashish Mohan, Advocate versus L & T FINANCE LIMITED .... Defendant Through Ms. Indu Malhotra, Senior Advocate with Mr. Vikas Mehta and Mr. Praveen Pahwa, Advocates CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1.Whether reporters of the local newspapers be 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 JUDGMENT
09.09.2009 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:CS (OS) 2309 of 2008 Page 1 of 24
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 company‟s 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 month‟s notice in writing. The company has right to pay two month‟s 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 3 rd January 2007. The updated Human Resource Manual & Procedure of the Defendant as on 13th CS (OS) 2309 of 2008 Page 2 of 24 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 CS (OS) 2309 of 2008 Page 3 of 24 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 of notice, 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 should be 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 Singh CC: 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 hours of 5/8/2008.
I would like to thank this organization for giving me an opportunity to work together and imparting a good exposure in Sales field.
I would request you to please relieve me of my official duties on 5/8/2008. I am willing to compensate the organisation as per policy in lieu of my notice period. Thanking you, Yours truly, CS (OS) 2309 of 2008 Page 4 of 24 Vishal Gupta Employee N.-735310 Assistant Manager - TEG 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 Resignation Ahluwalia Jaspal Singh Sent: Monday, August 04, 2008 at 11.42 AM To: Gupta Vishal CC: 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 be relieved 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.
CS (OS) 2309 of 2008 Page 5 of 24
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 5th 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 CS (OS) 2309 of 2008 Page 6 of 24 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 11:27 To: Kalra Anil CC: email@example.com 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) CS (OS) 2309 of 2008 Page 7 of 24
12. In response to the above e-mail, Mr. Anil Kalra wrote to the Plaintiff on 18th September 2008 as follows:
"To Vishal Gupta Asst 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 30 th 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." (emphasis supplied)
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 CS (OS) 2309 of 2008 Page 8 of 24 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 CS (OS) 2309 of 2008 Page 9 of 24 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, abandoned the 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. To explore 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."CS (OS) 2309 of 2008 Page 10 of 24
16. Pursuant to the said order, the Plaintiff went over to the Defendant‟s 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 11th 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 CS (OS) 2309 of 2008 Page 11 of 24 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 AIR 1989 SC 1239, Shree Subhlaxmi Fabrics 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. AIR 2005 SC 1444.
CS (OS) 2309 of 2008 Page 12 of 24
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 AIR 1975 Gujarat 72, M/s. Patnaik Industries Pvt. Ltd v. Kalinga Iron Works AIR 1984 Orissa 182 and Indian Rare Earths Limited v. M/s. Unique Builders Limited AIR 1987 Orissa 30 . It is submitted that there are instances where a mandatory temporary CS (OS) 2309 of 2008 Page 13 of 24 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 867 and 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 CS (OS) 2309 of 2008 Page 14 of 24 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 Fabrics 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. Ltd v. A.P. Agencies, it was held in Angile Insulation v. Davy Ashmore India Limited (1995) 4 SCC 153 that 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 Industries Pvt. Ltd v. Kalinga Iron Works) could be distinguished on the basis that they were CS (OS) 2309 of 2008 Page 15 of 24 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 CS (OS) 2309 of 2008 Page 16 of 24 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 Plaintiff‟s 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 Laminart in 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 CS (OS) 2309 of 2008 Page 17 of 24 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 Plaintiff‟s 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 CS (OS) 2309 of 2008 Page 18 of 24 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 Plaintiff‟s 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 CS (OS) 2309 of 2008 Page 19 of 24 Defendant in Metro Marins 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 AIR 1990 SC 867 as 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 hearing when 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:CS (OS) 2309 of 2008 Page 20 of 24
(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 Landge v. Mahadu Bhikaji Tonchar AIR 1989 Bom 247 as 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 CS (OS) 2309 of 2008 Page 21 of 24 a majority decision of the Supreme Court in the leading case of Manoharlal v. Seth Hiralal (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 CS (OS) 2309 of 2008 Page 22 of 24 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 CS (OS) 2309 of 2008 Page 23 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.
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