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2008 DIGILAW 469 (JK)

Bank Of India v. Ab. Khaliq Mandoo

2008-12-02

MOHAMMAD YAQOOB MIR

body2008
1. This case has its own history. Institution of the suit in the year 1993 till date has not crossed its infancy stage due to the hectic process of challenging the order passed in the application for temporary injunction. Not only this, the order dated 27.9.1997 passed by the Court of learned City Judge, after hearing both the parties has remained to be implemented. 2. The precise noticing of factual matrix is imperative so as to appreciate the disposal of this revision petition in its right perspective. 3. With the advent of militancy and the consequent turmoil, some of the communities migrated from the valley, same is true about various employees who were working in various institutions including the petitioner Bank of India. In order to make functioning of the various institutions including the Bank of India operational, the Government of India Ministry of Finance Department of Economic Affairs (Banking Division) has issued a communication on 23.4.1990, whereunder it has been emphasized that the Government have considered the serious situation which has arisen in the Kashmir Valley due to migration of officers and staff working in various organizations. In order to ensure that these employees rejoin duty at the respective places of posting, Government has decided to extend certain compensatory facilities to them if they rejoin duty immediately. The decisions taken by the Government are also detailed in the communication whereunder CMDs of Banks having branches in Jammu and Kashmir, were asked to take immediate action to ensure that branches of the Banks in Kashmir Valley start functioning as early as possible. Responding to this communication the Bank of India (petitioner) has extended certain compensatory facilities to the migrant employees as detailed in the communication dated 14/7/1990 issued by the General Manager of the Bank. 4. Responding employees of the petitioner Bank sensing discrimination, have filed a suit captioned Abdul Khaliq Mandoo and others v. Bank of India and others to the effect that they be declared entitled to the incentives in addition to those already being received by them with effect from March, 1990. The additional incentives claimed are: 1) Boarding Allowances as per entitlement. 2) Lodging Allowances as per entitlement and 3) Transport allowances as per entitlement. The additional incentives claimed are: 1) Boarding Allowances as per entitlement. 2) Lodging Allowances as per entitlement and 3) Transport allowances as per entitlement. Alongside suit a motion for grant of interim relief was filed with the prayer that the Bank (non-applicants therein) be directed to release and pay Boarding, Lodging and Transport incentives to the respondents employees as per their entitlement from 01.03.1990. It is this application which has been disposed of vide order 27/9/1997. By virtue of the said order relief has been granted, the operative portion of the order reads as under: "On these grounds it appears that the applicants have prima facie case and they are being discriminated on certain counts. It is as such ordered that till the main suit is disposed of the defendants adopt a policy of parity in respect of the expenses spend on the catering arrangements made for its employees and whatever is being spent per head for migrant employee in this count shall also paid to the plaintiffs and the other employees equally placed. That the defendants shall made available transport facilities to the non-migrant employees for their transportation from the Bank to their residence in Srinagar and back and till the arrangements are made they shall be paid the need based allowances on this count. The plaintiff and the employees who avail all these facilities shall undertake that in case the suit is not decided in their favour they shall return the amount alongwith the interest at which the advanced are made by the Bank. The order shall be of a temporary nature till the disposal of the main suit. The application is accordingly disposed of and shall form part of the main file. " 5. It is the said order, which till date has not been implemented. The petitioner bank challenged the said order in appeal filed on 29.12.1997 which got dismissed for default on 30.11.1998, then application for re-admission of the appeal also got dismissed for default on 23.3.1999, then application for restoration of the application also got dismissed for default on 30.09.1999, then again application for restoration of restoration application dismissed for default on 30.9.1999 also got dismissed for default on 1.1.2000, thereafter, an application filed for recalled/modification of the order dated 27.9.1997 has been filed which also got dismissed for default on 31.10.2001. Petitioner Bank thereafter, after exhibiting lot of indolence appear to have remained silent but the respondents filed application for initiating contempt proceedings for non implementation of the order dated 27.9.1997, same has been considered by the learned Sub Judge (Judge Small Causes) Srinagar, to whom the case had been transferred, who issued show cause notice vide order dated 17/3/2004 to the effect as to why the property of the Bank of India Branch office Moulana Azad Road, Srinagar with its chest, furniture and fixtures be not attached under law. This order was challenged by the petitioner Bank by way of appeal, which has been dismissed vide order dated 9/7/2004 with the direction to the trial court to hear the parties and pass appropriate orders. Subsequent to that learned Sub Judge vide order dated 6/12/2004 has issued warrant of attachment of furniture/fixture and chest of the Bank of India Branch office Moulana Azad Road, Srinagar. Nazir of the court under the orders of the Court went for effecting the attachment, but the officials of the Bank have resisted the action, matter was reported to police and case came to be registered as Crime No. 26/2005 Police Station Kothibagh, Srinagar for commission of offence under Section 353 RPC. The petitioner Bank again filed an appeal against the order dated 6/12/2004 which stand dismissed by the appellate court (1st Additional District Judge, Srinagar) vide judgment dated 17/3/2006. The order dated 17/3/2006 passed by the 1st Additional District Judge, Srinagar was challenged by medium of revision petition, which stands decided by this Court vide judgment dated 14/11/2006, whereunder order was set aside and the respondents (plaintiffs) were directed to file application in terms of Order 39 Rule 2(A) of Code of Civil Procedure. Then again vide order dated 1/12/2006, petitioner Bank had been directed to implement the order dated 27/9/1997. This order was also challenged in appeal which came to be decided by the Court of learned 3rd Additional District Judge, Srinagar as being misconceived, then again vide order dated 17/4/2007 Bank has been asked to implement the order. 6. After exhausting all prevaricative efforts, the petitioner bank has finally filed an application under Order 39 Rule 4 read with Section 151 of the Code of Civil Procedure seeking vacation/ modification of the order dated 27/9/1997. The said application has been dismissed by the trial court vide order impugned. 6. After exhausting all prevaricative efforts, the petitioner bank has finally filed an application under Order 39 Rule 4 read with Section 151 of the Code of Civil Procedure seeking vacation/ modification of the order dated 27/9/1997. The said application has been dismissed by the trial court vide order impugned. Now by medium of this revision petition legality of the order is assailed. 7. Appearing counsel for the petitioners contended that the order dated 27/9/1997 is in tangent with the law declared on the subject by the Apex Court. In support of this contention placed reliance on the judgment reported in 1991 (4) SCC 132, therefore, the order suffers from glaring error of law and jurisdiction so being non-est, shall be set aside. 8. Appearing counsel for the respondents contended that the judgment referred was available and has also been referred and considered by the learned Court of 3rd Additional District Judge, Srinagar while disposing of the appeal against the order of Sub Judge dated 01/12/2006. Now there is no change in the circumstances which would warrant interference with the order dated 27/9/1997 as the same is not permissible in terms of Order 39 Rule 4 of the Code of Civil Procedure. Further added even the judgment of the Apex Court in the given facts and circumstances is of no help to the petitioner Bank. Learned counsel further added that other banks in the valley have extended the benefit of these incentives to all of its employees. It is only the Bank of India who is hell bent not to grant said incentives. 9. While considering the rival submissions at the first instance, it shall be quite apt to reproduce Rule 4 of Order 39 of Code of Civil Procedure. 4. Order for injunction may be discharged, varied or set aside. It is only the Bank of India who is hell bent not to grant said incentives. 9. While considering the rival submissions at the first instance, it shall be quite apt to reproduce Rule 4 of Order 39 of Code of Civil Procedure. 4. Order for injunction may be discharged, varied or set aside. Any order for an injunction for an injunction may be discharged, order varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order: [Provided that if any application for temporary injunction or any affidavit supporting such application a party has knowingly made a false or misleading statement in relation to a material particular and the injunction as granted without giving notice to the opposite party the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interest of justice: Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, various or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by any change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party] 10. Plain reading of proviso 2 is suggestive of the fact that when the order for injunction has been passed after giving to a party an opportunity of being heard, the order cannot be varied/ discharged except where such discharge/variation is necessitated by change in the circumstances or unless the court is satisfied that the order has caused undue hardship to the party. According to the learned counsel for the petitioners, change in the circumstances is the law as has been laid down by the Apex Court in the judgment reported in 1991 (4) SCC 132 but this argument is not available to him because in the order dated 29/3/2007 passed by the learned 3rd Additional District Judge, Srinagar the law laid down by the Apex Court has been taken note of, thereafter opined that the order dated 27/9/1997 passed by the trial court was challenged in the appeal and subsequently taken to High Court, which means that the judgment of the Apex Court had been referred. The order dated 29/3/2007 passed by the learned 3rd, Additional District Judge, Srinagar has not been challenged, so no change in circumstances is noticed which would warrant modification of the order. 11. It is not also established that any undue hardship is caused to the party even on birds eye view of the facts order does not seem to cause any hardship because the benefits ordered to be granted are subject to the outcome of the suit and the interests of the petitioner bank are safeguarded by the order itself whereunder respondents (defendants) have been asked to furnish an undertaking which they have furnished; so worst that can happen if finally suit fails respondents (defendants) shall have to reimburse the entire amount as they will get under the order dated 27/9/1997 alongwith interest. 12. Every case is to be judged in its particular facts and features. The law laid down in the peculiar facts and circumstances is to be applied accordingly. The judgment relied is distinguishable as the facts of the instant case are quite different to the facts of the reported case. As in the instant case employees of the bank had migrated, they were asked to re-join whereas, in the reported case, the officers who had to come from outside and were to be posted in Assam were given incentives in the prevailing circumstances. The employees therein had not migrated. The contention of the learned counsel for the respondents to the effect that other banks are extending the benefit of these incentives to their employees also appear prima facie correct as same is borne out by the records of the trial court, more particularly by the certificates issued by Dena Bank, dated 6/6/1996, Oriental Bank of Commerce dated 6/6/1996 Allahabad Bank Employees Union dated 7/6/1996, Indian overseas Bank dated 6/6/1996, therefore, even on facts no modification is warranted. Viewed thus order under challenge does not call for interference, as no illegality, failure of justice or jurisdictional error is noticed. Thus, the Revision Petition is found devoid of merit, as such, dismissed. Copy of the order alongwith trial court record be sent back forthwith, where the parties shall appear on 17.12.2003.