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2007 DIGILAW 126 (JK)

Surjeet Singh v. Principal, Woodland

2007-07-12

MANSOOR AHMAD MIR

body2007
1. By the medium of this revision petition, petitioner has challenged the order dated 31st October, 2006 passed by 1st Additional District Judge, Srinagar, in appeal titled as Principal Wood Land House School Vs. Surjeet Singh, on the grounds taken in the petition, for short impugned order. 2. Heard. Plaintiff-petitioner filed a suit before the learned Principal District Judge, Srinagar, for declaration and permanent injunction which came to be transferred to the Court of 3rd Additional Munsiff, Srinagar. 3. Alongside the suit, plaintiff filed an application for ad-interim relief. Trial court granted the application and stayed the termination order dated 15th December, 2005 with a command to the respondents-defendants to conduct enquiry under rules. 4. Feeling aggrieved of the said order, defendants-respondents filed a Civil Miscellaneous Appeal which came to be allowed by 1st Additional District Judge, Srinagar, vide impugned order. 5. The question involved in this appeal is whether order passed by appellant court is perverse and illegal and whether interference is required. 6. In order to determine this question, it is necessary to notice the facts of the case herein in nutshell. 7. Petitioner-plaintiff was appointed by the School Authorities-defendants/respondents in the year 1990. In the year 2005 State Board of School Education set-up a centre No.862 for examination of 10+2 in the defendant-school. Defendants asked the petitioner-plaintiff to assist the Superintendent in the examination hall. On 4th November, 2005 plaintiff-petitioner came to be arrested by Vigilance Organization Kashmir on the allegation that he had accepted bribe of Rs.3000/- from one Irshad Ahmad whose daughter was also taking examination in the said centre for facilitating the copying to her. He remained in custody up to 21st November, 2005. He came to be placed under suspension by defendants-respondents and thereafter termination order was served upon him through post. He challenged the termination order by the medium of a civil suit on the grounds that termination order was issued by an incompetent person in gross violation of Rule 9(1) of the Service Rules governing the defendant School. 8. The question is whether the termination order could be stayed during the pendency of the suit, in the given circumstances of the case and would it amount to granting the final relief? 9. The plaintiff has sought decree of declaration declaring the termination order null and void and for decree of injunction. 8. The question is whether the termination order could be stayed during the pendency of the suit, in the given circumstances of the case and would it amount to granting the final relief? 9. The plaintiff has sought decree of declaration declaring the termination order null and void and for decree of injunction. In the application for grant of interim relief he had sought staying of the termination order and allowing him to perform the duties. 10. Virtually, the relief sought in the miscellaneous application amounts to granting of final relief. Learned counsel for petitioner argued that the impugned termination order is bad in law and without jurisdiction and came to be passed by an incompetent person. Further argued that operation of the termination order could be stayed because it came to be passed without jurisdiction. 11. Learned counsel for respondents argued that no irreparable loss will be caused to the petitioner. If he succeeds in the suit he will be taken back and be given all monetary and other benefits but interim relief cannot be granted at this stage because it amounts to decreeing the suit finally. He further argued that the petitioner has indulged in such an act which is against the public interest and public policy and virtually affects the future of the society. 12. The allegation against the plaintiff is that he has aided the student/examinee to go for copying and came to be arrested and released after more than 15 days. Can, in the given circumstance relief prayed for be granted in his favour. The reply is in negative for the reasons that balance of convenience is not in his favour and no irreparable loss will be caused to him because damages can be assessed by way of money and he can be paid the salary and other benefits. 13. The relief sought is virtually a final relief and in the given circumstances, it cannot be granted at this stage. 14. Apex Court in case titled Asstt. Collector, C.E. Chandan Nagar v. Dunlop India Ltd., reported in AIR 1985 SC 330 deprecated the practice of granting interim relief/order which amounts to granting principal relief sought in the main petition. It is profitable to reproduce para-5 of the judgment herein: "5. 14. Apex Court in case titled Asstt. Collector, C.E. Chandan Nagar v. Dunlop India Ltd., reported in AIR 1985 SC 330 deprecated the practice of granting interim relief/order which amounts to granting principal relief sought in the main petition. It is profitable to reproduce para-5 of the judgment herein: "5. We repeat and deprecate the practice of granting interim order which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other relevant considerations................." 15. Divisional Bench of this Court in case titled State Vs. Mohammad Hussain, reported in 1997 SLJ 203 has held that interim relief should not be granted which has the effect of granting the main relief and more so when it affects the public interest. 16. Apex Court in case titled Metro Marins v. Bonus Watch Co. Pvt. Ltd, reported in AIR 2005 SC 1444, has held as under: "9. Having considered the arguments of the learned counsel for the parties and having perused the documents produced, we are satisfied that the impugned order of the Appellate Court cannot be sustained either on facts or in law. As noticed by this Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden (supra) has held that an interim mandatory injunction can be granted only in exceptional cases coming within the exceptions noticed in the said judgment. In our opinion, the case of the respondent herein does not come under anyone of those exceptions and even on facts it is not such a case which cals for the issuance of an interim mandatory injunction directing the possession being handed over to the respondent. As observed by the learned single judge the issue whether the plaintiff is entitled for possession is yet to be decided in the trial court and granting of any interim order directing handing over of a possession would only mean decreeing the suit even before trial. As observed by the learned single judge the issue whether the plaintiff is entitled for possession is yet to be decided in the trial court and granting of any interim order directing handing over of a possession would only mean decreeing the suit even before trial. Once the possession of the appellant either directly or through his agent (caretaker) is admitted then the fact that the appellant is not using the said property for commercial purpose or not using the same for any beneficial purpose or the appellant has to pay huge amount by way of damages in the event of the losing the case or the fact that the litigation between the parties is a luxury litigation are all facts which are irrelevant for changing the status quo in regard to possession during the pendency of the suit." 17. Apex Court has also laid down the same principle in case titled as Dorab Cawasji Warden v. Coomi Sorab Warden, reported in AIR 1990 SC 867. 18. Mr. Qureshi relied on a judgment of this court delivered in CIA No.41/2003 titled State of J&K V. Iffat Alam, date of decision 23.03.2005 in support of his arguments and stated that interim relief can be granted even if it amounts to granting the final relief. In the given circumstances of the case, the said judgment is not applicable to the instant case. 19. Keeping in view the ratio laid down by the Apex Court and this Court in the judgments referred hereinabove, I am of the considered view that interim relief could not have been granted at this stage. The trial court-3rd Additional Munsiff, Srinagar, has fallen in error while passing the order which rightly came to be set-aside by the first appellate court. The trial court has passed an illegal order and virtually has decreed the suit which is not warranted under law. I deem it proper not to make further observations but to exercise restraint. However, Registry is directed to sent copy of this order to learned Munsiff, for information. 20. In view of the above discussion, this petition merits to be dismissed which is accordingly dismissed along with all connected CMP(s).