Dr. Monojit Roy vs Goutam Mukherjee

Sabyasachi Bhattacharyya, J

Affidavit of service filed in Court today be kept on record. The present challenge is directed against an order whereby the petitioner's prayer under Order VII Rule 11 of the Code of Civil Procedure has been rejected.

Learned counsel for the petitioner argues that the suit, as framed, is hit by Section 41(h) of the Specific Relief Act, 1963, since an adequate relief of damages was available to the plaintiff, thereby denying the plaintiff a right to pray for permanent injunction. Moreover, it is argued, the suit is virtually one relating to performance of a contract not specifically enforceable within the purview of Section 14 of the Specific Relief Act, 1963.

It is further submitted, that in paragraph no.1 of the plaint itself, the plaintiff/opposite party has admitted that he is a contractual labour on a daily basis and a formal employee on consolidated basis with entitlement of Gratuity, E.P.F. and Pension. Learned counsel for the petitioner argues that, as per the Payment of Gratuity Act, fifty-eight years is the age when the said entitlement occurs. However, the basis of the suit is a memorandum of the Government of West Bengal, which apparently extends the age of contractual/casual/piece-rated/daily rated workers to sixty years, from which the opposite party would be deprived if superannuated at fifty-eight. Since the opposite party is on the verge of attaining the age of fifty eight and if fifty eight is applied as the age of superannuation, the opposite party would not be entitled to the benefit which may accrue to him if the retirement age was taken to be sixty years.

Learned counsel for the plaintiff/opposite party argues that the basis of the suit is a Government Resolution, which gives additional benefits to the plaintiff in case the date of superannuation is taken to be sixty years which also applies to contractual labour. As such, the trial court was justified in refusing to return the plaint at this juncture, since evidence would have to be led by both parties in support of their respective contentions to come to a specific conclusion on the fate of the suit.

It appears from the averments in the plaint, that the premise thereof is a Government Memorandum which extends the age of superannuation, including those of contractual staff, to sixty years.

The opposite party has challenged in the suit, not merely his termination which is to take effect taking the date of retirement to be fifty eight years, but has gone on a wider premise by relying on the Government Notification, which takes away the very basis of the opposite party's superannuation by extending the retirement age to sixty years.

As such, the present suit is not restricted to termination or enforcement of the contract of employment of the petitioner only and as such cannot be barred by Section 14 of the Specific Relief Act.

Moreover, damages could not be an adequate appropriate relief, since there could be several changes, both statutory and administrative, in the decisions taken in the meantime, till the opposite party attains the age of sixty, which might have the effect of increasing the benefits which may accrue in favour of the opposite party in case he succeeds in the suit. Hence damages, in the present case, even if prayed for, could not be quantified and as such could not afford an alternative relief to injunction.

In such view of the matter, the trial court was justified in refusing to reject the plaint, thereby shutting out the case of the plaintiff/opposite party at the inception. However, needless to say, this order will not preclude the petitioner from taking all objections available to the petitioner at the juncture of hearing of the suit, when trial will take place on evidence being adduced by both sides. It is further made clear that all questions are kept open for adjudication at the time of final hearing of the suit on merits. However, the plaint could not be rejected, as it stands, at the present premature juncture.

Accordingly, C.O. 3275 of 2019 is dismissed on contest, thereby affirming the impugned order, but in the light of the observations made above.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.