TRIBENI TISSUES LTD Vs. DILIP SAMAJDAR

JUDGEMENT

(1.) The opposite party was appointed as a Senior Accountant in the petitioner Company, which was a public limited company, 60% of whose share is held by a British Business Organisation in the U.K and 40% of its share is held by Indian Share holders. The opposite party was appointed as the Senior Accountant with effect from 1st March, 1974 and subsequently was promoted to the post of Chief Accountant with effect front the 1st July, 1979 and till his resignation from his service on 2nd of Aug., 1985 in held the post of Financial Controller of the petitioner-company. When the opposite party was Financial Controller of the petitioner Company, the company provided him with the Company's rented flat at premises No. 310, Jodhpur Park, Calcutta-58, including one garage, one servant room on mezzanine floor at the said premises. The company also provided the opposite party with company's Ambassador Car being No. WMB /123, two Air Conditioners, one Refrigerator, five ceiling fans, one inverter with batteries, two geysers and also a telephone and other amenities attached to the said routed flat. The opposite party submitted his resignation from his service with the company out of his own with effect from 2nd Aug., 1985 and the said resignation was also accepted by the petitioner company on the same date. The opposite party also resigned from the membership of the Board of Trustees of the Company, Provident Fund, Gratuity Fund, Pension Fund, Junior Management Staff Pension Fund etc.

(2.) After his resignation the opposite party approached the company to permit him to stay in the said flat as well as to use the Company's car and other amenities and facilities till 30th Nov., 1985 and the company allowed him to enjoy such facilities till that date on compassionate ground as is done in other cases of the officers who resigned from the service. The petitioner company by its letter dated 30th Aug., 1985 requested the opposite party to make over the company's car and further intimated that if necessary, the company would arrange hired car for his the upto 30th Nov., 1985 Subsequently, however, the opposite party filed Title Suit No. 284 of 1985 in the 4th Court of the learned Munsif at Alipore against the petitioner company inter aha, for declaration that the opposite party was and is in employment of the petitioner company as its Financial Controller and also for cancellation of the letter of resignation dated 2nd Aug., 1985 and for permanent injunction. In the said suit the opposite party also filed an application under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure supported by an Affidavit for temporary injunction restraining the petitioner company, its men and age his from dispossessing the opposite party from the said flat and from removing the Ambassador car being No. WMB 7123 and other movables from the custody of the opposite party and from disconnecting and/or removing the telephone from the said flat and prayed for an ad interim order to that effect.

(3.) The learned Munsif by his order no. 2 dated the 25th Nov., 1985 granted the ad interim order of maintaining status quo in respect of the possession of the said flat Against the said act interim order, to petitioner-company preferred an appeal being Misc Appeal No. 782 of 1985 and in the paid appeal the petitioner company subsequently raised an objection regarding the maintainability of the suit and took a plea that the suit as framed vas barred under the Specific Relief Act and no relief as claimed by the opposite party in the plaint, could be granted as the nature of the pleading and the reliefs sought for in the plaint amounted to specific performance of contract of personal service, which relief cannot be granted by a Civil Court. The learned Additional District Judge, 1st Court at Alipore, 24 Pargenas, however, by his judgment and order dated 16th May, 1986 dismissed the sad appeal inter alia, holding that it was true that under section 14(1)(b) of the Specific Relief Act 1963 the contract for personal service cannot be specifically enforced and the remedy of the employee is only to file a suit for damages for wrongful dismissal or for breach of contract and none' disputed the said proposition of law, but the suit as framed by the opposite party was not a suit for declaration for specific performance of contract of service nor the suit was for declaration that his dismissal order in wrongful and as such the suit was prima facie maintainable as it would, clearly come under Sec. 31 of the Specific Relief Act. Against the said order of the lower appellate court, the petitioner company moved 'his Court Id revision and obtained the present Civil Order.