UNION OF INDIA Vs. KEDAR RAI

JUDGEMENT

(1.) UNION of India has filed this petition under Article 226 of the Constitution challenging the order of the Additional District Judge, Gorakhpur granting temporary injunction in favour of Kedar Rai, Plaintiff -Respondent, restraining the Union of India and the General Manager, North Eastern Railway, Gorakhpur from removing the Plaintiff from service during the pendency of his suit,

(2.) KEDAR Rai is employed as a Clerk in the North Eastern Railway. He was served with charges of misconduct, and after enquiry the appointing authority namely, the Assistant Personnel Officer awarded a minor punishment to the Plaintiff -Respondent by reducing him to a lower scale in the time scale of his pay. The order of punishment was reviewed by the Deputy Chief Personnel Officer, the next higher authority who affirmed the order of the Assistant Personnel Officer. Subsequently the General Manager took cognizance of the matter and issued a notice to the Respondent calling upon him to show cause as to why punishment awarded to him be not enhanced and converted into removal from service. The Respondent on receipt of the show cause notice filed a suit in the Munsif's court for declaration that the order of the Senior Personnel Officer was illegal and void and for the recovery of the arrears of salary and also for the issue of a permanent injunction restraining the Union of India and the General Manager from enhancing the punishment awarded to the Plaintiff Respondent. The Respondent made an application for the issue of a temporary injunction under Order 39 Rule 1 of the Civil Procedure Code restraining the Union of India and the General Manager from removing him from service/ till the disposal of the suit. The Munsif held that the Plaintiff had no prima -facie case and no irreparable loss would be caused to him if the injunction was not granted to him. On these findings the Munsif rejected the interim injunction application. On appeal by the Plaintiff -Respondent the Additional District Judge by his order dated 29 -9 -73 set aside . the order of the Munsif and granted ad -interim injunction to the Plaintiff -Respondent restraining Defendant -Petitioners from removing the Respondent from service.

(3.) SPECIFIC Relief Act, 1963, regulates the Court's power to grant permanent and temporary injunction. While considering the question of granting injunction order to a party, the court must also consider the provision of Chapter VII of the Specific Relief Act, 1963, which regulates the preventive relief. Sections 36 - 42 deal with injunctions. Section 41 of the Specific Relief Act, inter alia, lays down that an injunction cannot be granted to prevent a breach of contract, the performance of which would not be specifically enforced or equally efficacious relief can be obtained by the Plaintiff by any other usual mode of procedure except in the case of breach of trust. In a suit where the Plaintiff seeks relief for permanent injunction restraining the employer from terminating the Plaintiff's services, if the Plaintiff claims temporary injunction restraining the Defendant from terminating his services, the court must address itself to the provisions of Chapter VII of the Specific Relief Act and specially to provisions of Section 41 of the Act. If the court cannot grant permanent injunction by way of final relief under Section 41 of the Act, it has no jurisdiction to grant any temporary injunction during the pendency of the suit. It is well settled principle that whenever there is a termination of contract of the service, a declaration that the contract of service still subsists, cannot be granted in the absence of special circumstances as the courts do not ordinarily grant specific performance of service. The court will not ordinarily force an employer to retain the services of the employee whom he no longer wishes to employ. In that event, it is not permissible to the court to issue any permanent injunction restraining the employer from terminating the services of his employee in accordance with the conditions of contract of service.