Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 48 (GAU)

Silchar Collegiate School And Ors. v. Shanta Dutta

2010-01-27

I.A.ANSARI

body2010
1. Heard Mr. N. Choudhury, learned counsel for the petitioners, and Ms. P. Chakraborty, learned counsel, for the respondent. 2. Aggrieved by an order, passed by the Silchar Collegiate School, i.e., the petitioner No. 1 herein, and the authorities of the said school, suspending the respondent's service, while she was working as a teacher, in the said school, the respondent instituted Title Suit No. 32/2009, wherein she sought for, inter alia, relief of a decree declaring that her suspension was illegal. The ground on which such a challenge was posed to the order of suspension is not necessary to be discussed in this case. What is, however, important to note is that in her suit, the respondent also made an application, under order XXXLX, rules 1 and 2 read with section 151 of the Code of Civil Procedure seeking temporary injunction restraining the principal defendants from further proceeding with the charge sheet, dated 2.4.2008, and letter of defendant No. 2. dated 20.11.2008, in making enquiry against the plaintiff-petitioner on the basis of reports of the defendant-opposite party No. 3, namely, the Assistant Head Master, Smt. Manjula Kar, Asstt. Teacher or otherwise, till final dispose of the suit. This application gave rise to Misc. (J) Case No. 39/2009. After institution of the suit, the respondent's service was terminated by an order, passed by the school authorities, on 10.3.2009. 3. The learned trial court, having taken the view that service of the respondent had been terminated after she had already instituted the suit and challenged the suspension order, the order of termination needs to be set at naught. The learned trial court accordingly passed an order, on 12.5.2009, directing the petitioners herein, who were defendants in the suit, to restore status quo ante as on the date of institution of the suit, i.e., on 17.2.2009, till final disposal of the suit. The order, dated 12.5.2009, thus, amounted to restoring the service of the petitioner and treating her services as unbroken notwithstanding the order of termination of her services. The order, dated 12.5.2009, so passed by the learned trial court, was challenged by the present petitioners by way of an appeal, which gave rise to Misc. Appeal No. 14/2009. The order, dated 12.5.2009, thus, amounted to restoring the service of the petitioner and treating her services as unbroken notwithstanding the order of termination of her services. The order, dated 12.5.2009, so passed by the learned trial court, was challenged by the present petitioners by way of an appeal, which gave rise to Misc. Appeal No. 14/2009. By the order, dated 20.10.2009, the learned Civil Judge No. 1, Cachar, Silchar, has dismissed the appeal on the ground that the suit was instituted on 17.2.2009, summons were received by the defendants on 5.3.2009 and despite the fact that they had knowledge of the pendency of the suit, they terminated the service of the plaintiff on 10.3.2009. The order, passed by the learned appellate Court, on 20.10.2009, as well as the order, dated 12.5.2009, passed by the learned trial court stand impugned in this revision. 4. While considering the validity of the impugned orders, it needs to be noted that, admittedly, termination of the plaintiff's service was subsequent to the institution of the suit. This subsequent development has not been put to challenge in the suit. In fact, no application for amendment has even been made till date seeking to incorporate, in the plaint, the fact of termination of the plaintiff's service and challenging the said termination of service as illegal. 5. Hence, when, in the suit, the order of termination does not stand challenged, no relief against the termination of service of the plaintiff can, at this stage, be granted, in the suit, to the plaintiff. Consequently, no relief, by way of interim measure, such as, an order of injunction, can be passed or could have been passed by the learned trial court unless the plaint was properly amended putting to challenge the said order of termination of the petitioner's service and unless upon such challenge being posed, the termination of service was prima facie found to be illegal and interferable by the civil court. 6. 6. In other words, when the main relief against termination of service of the plaintiff has not been sought for and cannot at this stage, be granted by the learned trial court, the question of passing an order, such as, the one, which was passed on 12.5.2009, making the order of plaintiff's termination of service non-existent, was wholly illegal inasmuch as no court can grant, by way of temporary injunction, or interim relief, which it cannot grant, eventually, in the suit. This infirmity appears to have escaped attention of the learned trial court. 7. In short, without challenging the termination order in the suit and without showing prima facie that the order of termination of her service is interferable by a civil court, the plaintiff cannot seek and obtain any order by way of temporary injunction, or otherwise, setting at naught the order of termination as has been done, in the present case, by learned courts below. 8. In the result and for the foregoing reasons, this revision is allowed. The impugned order, dated 12.10.2009, passed in Misc. Appeal No.14/2009, as well as the order, dated 12.5.2009, passed in Misc. (J) Case No.39/2009, are hereby set aside. 9. With the above observations and directions, this revision shall stand disposed of. 10. No order as to costs.