DAMODAR VALLEY CORPORATION Vs. HARIPADA DAS

JUDGEMENT

(1.) This Rule is directed against an order dated March 22, 1977 passed by the Additional Subordinate Judge, Bur-dwan in Misc. Appeal No. 135/1976 in reversal of the order of the learned Munsif at Durgapur. The opposite party was an employee under the Damodar Valley Corporation, a body corporate, and by a letter dated April 30, 1976 he was released from his service from the afternoon of the said date. The opposite party, according to the Corporation, attained the age of superannuation for which he was released from service. The opposite party as plaintiff thereafter filed the suit on August 20, 1976 praying for a declaration that the order of release made by the Corporation referred to above, was illegal, ineffective and without jurisdiction and further that he was not to be treated as superannuated and that his service subsisted and continued. There was a further prayer for permanent injunction restraining the defendants from interfering with and obstructing the plaintiff in carrying on his service and in discharging his duties in connection with and pertaining to his service and from treating him as superannuated. On the same day the plaintiffs opposite party filed an application for an ad interim injunction restraining the Corporation from interfering with or obstructing him from performing his duties pertaining to his service. On this application the learned Munsif held that there was nothing to show what the plaintiff-opposite party did during this period up to June, 1976 from which it could be said that he was in service of the Corporation. An ad interim order, it was held, would be infructuous at this stage and hence the application for interim order was rejected.

(2.) Against this order the plaintiff preferred an appeal and the learned Subordinate Judge was of the opinion that from the affidavit of the Corporation before the appellate court, it could not be ascertained that the plaintiff had actually been removed from service. Accordingly it was held that the main ground for refusal of the prayer for interim order of injunction by the learned Munsif was not tenable. The appellate court also considered the case on merits taking into consideration the horoscope as also the identity card which disclosed that the date of birth of the plaintiff was May 1, 1922 which did not justify or support the Corporation's case that the plaintiff had attained the age of superannuation on the relevant date. The court also noticed that the defendants did not produce the service record disclosing the age of the plaintiff. In such circumstances, it was held that the plaintiff has been successful in making out a prima facie case and that the balance of convenience also appeared to be lying with the plaintiff appellant. It was further held that the appeal was not incompetent relying on the decision in the case of Motilal Singh v. Shib Chandra Bose, reported in (1971) 75 Cal WN 233. The appeal was accordingly allowed and the order of the learned Munsif refusing to issue an ad interim order of injunction was set aside. The Corporation and its agents were restrained by temporary injunction, till the disposal of the connected Title Suit, from interfering with or obstructing the plaintiff from performing his duties pertaining to his service. This Rule, as already stated, is directed against this decision.

(3.) It will be of interest to refer to a recent decision in American Cyanamid Co. v. Ethicon Ltd., reported in (1975) 1 All ER 504 (HL) on the principle governing grant of interlocutory injunction in an action for permanent injunction. It has been laid down that there is no rule of law that the court was precluded from considering whether on a balance of convenience, an interlocutory injunction should be granted, unless the plaintiff succeeded in establishing a prima facie case or a probability that he would be successful at the trial of the action. All that is necessary is that the court should be satisfied that the claim was not frivolous or vexatious; in other words, there is a serious question to be tried. The Court observed-