Indian Oil Corporation vs Mohd.Asraf Wani

Muzaffar Jan, J.—Aggrieved of the order dated May 29,2001 passed by District Judge, Budgam in an interim application arising in Civil

Suit No. 57, this Civil 1st, Misc, Appeal has been filed by the defendants in the suit.

Facts discernible from the record are that the appellants, desirous of appointing a 'dealer1 for providing services by way of a retail outlet of

Petrol and Diesel, invited applications from eligible candidates. For this purpose advertisement notices were published in two daily News papers,

Hind Samachar and Excelsior on August 24,2000. In response to the notices, it is stated that 20 candidates applied out of whom, 12 were found

to be eligible as per the representations made by them in their respective application forms. After interviewing the eligible candidates by the

Selection Board, select list was prepared. Respondent / plaintiff was placed at serial No. 1 in the select list.

It appears that, after respondent was selected, the information and the documents submitted by him in response to the notice, were taken up for

verification. According to the appellants the information furnished in the application and the documents supporting the application, made

contradictory representations. In his application for dealership, the respondent had mentioned in the application form that the total income of entire

family from all sources was Rs. 1.40 lacs. It appears that besides furnishing the said information, the respondent/plaintiff had also submitted an

affidavit during the process of selection in which he had stated his family income to be Rs. 1.80 lacs. Respondent/plaintiffs own representation

obviously led the appellants to verify the position.

Limited enquiry conducted by them, disclosed the respondent was a serving Lecturer in the Department of Chemistry in SP College and the

total income of the family was more than 2.0 lacs. On the basis of the enquiry, allotment of dealership was refused. It has been stated that

thereafter the candidate mentioned at serial No. 2 of the select list was considered for allotment but dealership could not be allotted to him because

he already held dealership at another point within the District. According to the memo of appeal, the allotment thereafter, was made in favour of the

candidate appearing at serial No. 3 of the select list.

The respondent / plaintiff has called in question, rejection of his dealership in the suit. Byway of an interim application respondent / plaintiff also

sought temporary mandatory injunction. The learned District Judge, after hearing the parties, allowed the interim application and directed appellants

herein to issue letter of intent in favour of respondent/plaintiff within one month. In substance the court below directed the appellants to provide

dealership of the retail outlet (patrol pump) at Rawalpora in District Budgam. It is this order of the district Judge, dated May 29, 2000 which is

questioned i this civil 1st. Misc. Appeal.

Heard the learned counsel for the parties and perused the entire record.

From the perusal of the impugned order of the learned Session Judge, Budgam it is apparently clear that the order has been passed on

erroneous appreciation of facts and on wrong notions of the principles and the law governing the grant of interim relief.

Learned District Judge, seems to have based his findings on the assumption that the respondent was eligible for allotment of leadership because

besides other qualifications, the family income of the plaintiff / respondent was less than Rs. 2.00 lacs as reflected by the Income Certificate issued

by the Tehsildar, Budgam (Annexure AIV) filed with the plaint.

The first aspect which has to be considered and ascertained is whether the plaintiff / respondent had a prima facie case to justify the impugned

order passed by the learned District Judge, Budgam. The facts which are not disputed but are admitted are that in pursuance to the advertisement

notice, dated 24.08.2000 inviting applications for allotment of dealership for retail outlet of sale of patrol and diesel situated at Rawalpora, the

plaintiff/respondent filled his form, and submitted it on 10.10.2000. The interview was conducted at Jammu on 22.01.2000. The plaintiff /

respondent topped the merit list and was selected. As per clause (2) of the advertisement notice dealership; could be given only to those

candidates whose family income, from all sources would be less than Rs. 2.00 lacs per annum. In order to ascertain whether the documents

submitted by the plaintiff / respondent regarding his income were genuine and authentic, an enquiry was conducted in a routine manner by the

appellants. On enquiry it was found that the plaintiff / respondent had not only suppressed the fact that he, at the time of submission of his Form on

10.10.2000 and even at the time of interview on 22.01.2001 was already in Government employment as Lecturer in Chemistry in SP College,

Srinagar drawing a pay of Rs. 6715/ P.M. and the family income of respondent was more than Rs. 2.00 lacs per annum and as such, the plaintiff /

respondent was not eligible to allotment of dealership.

Learned counsel for the respondent Mr. M.A. Qayoom has vehemently argued and attempted to crave out a case to show that the family

income of the plaintiff / respondent at the time of submission of his Form and also interview was not more than Rs. 2.00 lacs. But this submission is

not supported by his own material from the record.

Mr. Qayoom has placed reliance on the Income Certificate (Annexure A IV) issued by the Tehsildar, Budgam filed with the plaint. On the

perusal of this Income Certificate (Annexure A IV) only two out of seven family members of the respondent are shown as earning members. The

monthly income of Gh. Nabi, father of the respondent from his pension is shown as Rs. 4000/ per month. The Tehsildar, Budgam in the Income

Certificate (Annexure A IV) has clearly indicated Mohd. Ashraf respondent as a business man earning income of Rs. 11000/p.m. There is

absolutely no indication in the Income Certificate (Annexure AIV) that the figure of business income of Rs. 11.000/also indicates and includes the

income of Rs. 6715/ of the respondent from his adhoc employment.

The explanation of Mr. Qayoom, Advocate that this is merely an error to be ignored, is neither justified nor acceptable from the material on

record. The certificate (Annexure AIV) apparently has been made on the admission of respondents before the Patwari and Girdawar where he

categorically admitted that he is not any longer in the Government temporary employment, but has left the same. Even if the argument of Mr.

Qayoom is accepted the fact still remains that the respondent made a deliberate false and incorrect statement before the Patwari/ Girdawar that he

has left his adhoc Government employment, when the respondent as per record continued to be in government service since 1991.

Let us examine whether the suppression of information of the government employment was deliberate or an innocent accidental omission.

Mr. M.A. Qayoom, advocate in fairness had conceded that the plaintiff/respondent was not in adhoc service in the year 1991 on the

consolidated pay of Rs. 6715/and continues as Lecturer in Chemistry in SP College on adhoc basis. The learned counsel submitted that as an

adhoc employee the respondent / plaintiff is not subject to any disciplinary, conduct or service rules and is not even a 'public servant' to be

disentitled to do business besides attending to his adhoc employment, therefore, there was no need to suppress the information of employment of

the respondent. The submission only needs to be mentioned to be out rightly rejected.

It is settled position of law that government employees, holding temporary status, are public servants within the meaning of Section 21 of the

Ranbir Penal Code and as such are subject to Section 13 of Public Men and Public Servants Declaration of Assets and other Provisions Act,

1983. All government employees are subject to Conduct Rules of 1971.

The respondent / plaintiff, except for his temporary status, apart from loosing his employment by efflux of the duration of appointment or

termination independent of the disciplinary rules, is in the matter of discipline, also subject to disciplinary rules and regulations as are applicable to

other employees. In my opinion, an employee, holding temporary status, cannot claim immunity from rules and regulations governing disciplinary

matters. These are part of service conditions.

Respondent/Plaintiff, before responding to the notice of the appellants and before putting up his claim for dealership was, I hold prima facie

bound to seek proper permission of the competent authority. In ignoring his service conditions respondent / plaintiff clearly violated the law. Not

only that, he suppressed the fact of his adhoc employment and furnished incorrect details of the income of his family. He did not approach the civil

court with clean hands. He was, therefore, not entitled to the equitable relief of temporary mandatory injunction.

While considering interim relief of injunction a party has to show by his conduct, representation, admission and other relevant material, as is

relied upon that the submissions are true, and based on correct facts. It is essential because the court has to tentatively arrive at a conclusion and

form an opinion of the infringement of an enforceable, existing right. Added duty is cast on the party claiming equitable relief of injunction to be fair

and truthful in his submissions. It is only after the court is satisfied with regard to bonafied conduct and genuineness of the material, that it proceeds

to determine prima facie rights and obligations of the parties and consider grant of relief of interim injunction under 0.39 R. 1. 2 CPC or under Sec.

151 CPC. In the instant case, the plaintiff/respondent has not been fair in his representations. The plaintiff/respondent while submitting details of his

income in response to the advertisement notice suppressed the facts of his adhoc employment and attempted to mould the facts to come within the

eligibility limits by submitting different figures of his family income as reflected above.

The courts have time and again taken serious view of the illegalities committed by the functionaries, instrumentalities and agencies of the State in

allotment of contracts, of the present type. But the matter does not end there. The party expecting or desiring the allotment of contract is also under

an obligation to be fair and truthful while seeking allotments of the contract of present nature. A party cannot be allowed to seek consideration for

allotment of a contract by suppression of vital information. It was within the knowledge of respondent / plaintiff that he is a serving lecturer, drawing

salary and his employment was subsisting and yet he did not disclose it. Non disclose was not an innocent slip but deliberate omission.

Reverting back to the prima facie facts made out from the record, the family income of the respondent can be ascertained from the Income

Certificate (Annexure AIV) submitted by the respondent with his plaint. On the basis of this annexure AIV, the monthly income of his retired father

is Rs.4,000/ and business income of respondent is Rs.11,000/ p.m. and added to this amount the income of Rs.6,715/ from the pay of the adhoc

employment as Lecturer in Chemistry, the total of these figures exceeds Rs. 2.00 lacs per annum, which prima face shows that the respondent did

not qualify for eligibility because of the income exceeding Rs. 2.00 lacs per year.

21; The trial court seems to have causally inspected the figures in the Income Certificate (annexure AIV) and made the observations which are

reflected as under:

It appears that the certificate has been issued by the Tehsildar on the report of Patwari and NiabTehsildar which discloses that the income of the

plaintiff as a Lecturer to the tune of Rs. 6.715/. That matter has been taken into consideration by the Tehsildar on the basis of report of Patwari

and NaibTehsildar.

It is immaterial whether the income of the plaintiff is Rs. 1.40 or Rs. 1.80 thousand, but what is important is whether the income of the plaintiff was

not more than Rs. 2.00 lacs in the year 19992000.

There is nothing on the file which can suggest the fact that the plaintiff was having more than Rs. 2.00 lacs income.

The observations of the trial court that the Tehsildar issued Income Certificate on the basis of the report of Patwari/Girdawar which included

the pay of Rs. 67151 does not seem to be correct. As per the endothersement of the total income shown by the Patwari/Girdwarthe figures are

shown as Rs. 6715/ income from pay, plus Rs. 2200/ income from agriculture, total Rs. 8915/. This figure of Rs. 8915/ is nowhere reflected,

entered or endothersed in the Income Certificate (Annexure AIV) issued by the Tehsildar. The Tehsildar has specifically endothersed Rs. 11,000/

as business income of the respondent and not Rs. 8915/ as worked out by the Patwari/Girdawar. No explanation can be found from the record

and no explanation has been submitted by the learned counsel for the respondent to explain this lacunae. Had the trial court adopted a pragmatic

approach to explain this unexplained aspect of the plaintiffs case, observations on distorted facts as made out by the trial court could have been

avoided. Therefore, from the prima facie facts the respondent / plaintiff is not shown to be eligible on account of his excess income than Rs. 2.00

lacs per annum and as such, does not have a prima facie case from the facts and circumstances as made out from the record.

The trial court has observed that balance of convenience lies in favour of the plaintiff/respondent. The only justification to tilt the balance in

favour of the plaintiff/respondent seems to be the frustration of the plaintiffs/respondent. The trial court seems to have been impressed by the

frustration of the plaintiff which is reflected in the order impugned. The observations made by the trial court reads :

I am of the opinion that it does not lie in favour of the applicant for the reason that a graduate of Master Degree, the plaintiff already has gone

through frustration and is working on the basis of interim orders issued by the High Court.

There is nothing on the record to indicate that the frustration has been pleaded by any party and nothing has been shown to suggest that any

party is frustrated. The balancing of the rights of the parties on the basis of frustration is unknown in law. The balance of convenience at law means

balancing the rights of the parties and to ascertain whether the interim order if passed would cause less inconvenience to the defendant as

compared to the plaintiff.

The courts have to consider grant of interim relief at an interlocutory stage when the existence of the legal right assailed by the plaintiff and its

alleged violation are both contested and remain uncertain till they are established at trial. While considering the grant of interlocutory injunction to

mitigate the risk of injustice, the court has also to weigh, the corresponding need of the defendant to be protected, against injury resulting from his

having been prevented, from exercising his own legal rights, for which he could not be adequately compensated. The balance of convenience has to

be evaluated on said touch stone. Irreparable loss is another condition for grant of interlocutory injunction and constitutes third important principle.

It means that the irreparable injury likely to occur as a result of withholding of injunction must be such that it cannot be adequate compensated by

way of damages. These principles, though well known, apply generally in case of prohibitory injunctions but is the position different when a party

seeks temporary mandatory injunction. I am of the opinion that apart from satisfaction of the aforesaid conditions, a temporary mandatory

injunction can be granted only in rear and exceptional cases, to be judged according to facts and circumstances. The learned District Judge, has

not considered this aspect of the matter. The appellants against the claim of the plaintiff respondent have set out the defence that the verification of

the information, furnished by respondent/plaintiff himself, was not found to be correct, and that upon true evaluation of the total income of the

family of the respondent his income exceeded Rs. 2.0 lacs during the relevent year and, therefore, respondent was ineligible, in terms of the

advertisements notice to apply for allotment of dealership. In the face of this position, the trial court could not have, without investigation, granted

mandatory injunction virtually deciding the whole suit.

In the instant case from the prima facie facts the plaintiff/respondent is not shown to be eligible on account of income being more than Rs. 2.00

lacs. Further the dealership has already been allotted to candidate at S. No. 3 of select list.

From the changing stance of the plaintiff/respondent while revealing his yearly family income at different figures in different documents as

observed above, the appellants cannot be compelled even otherwise to select a person whose bonafides are not fair and who does not come to

the expectations of the employer even after being selected and taken in the select list. It is settled position of law that a candidate cannot ask for

appointment even if he figures in the select list, more so when the employer is not ready to take him on suspected integrity. In these circumstances,

it will be less inconvenient to refuse the order favouring the plaintiff/respondent.

The trial court has observed that simply because the plaintiff has carved out a prima facie case, therefore, all the three ingredients coexist for

grant of interim relief. This is not what is required to assess while adjudicating on the aspect of irreparable injury which may be caused to the

parties.

An observed above, the plaintiff is admittedly in employment of the state on adhoc basis and has a smooth flow of family income and is not

shown either unemployed or totally deprived of income from any source. On the other hand the allotment of dealership has been made in favour of

deserving selected candidate No. 3 and the appellants are also deprived of running their business establishment as per their requirement.

Admittedly, candidate No. 3 is not a party to the present proceedings, but as submitted by the appellants she represents the interests of the

appellants and is an unemployed lady with annual income less than Rs. 2.00 lacs. Moreover, in case the plaintiff/respondent ultimately succeeds in

the suit he can adequately be compensated with pecuniary benefits and also given dealership, without any loss which can be compensated by

normal means.

The trial court while permitting the relief has granted almost the entire relief which is not permissible in law. It is settled principle that interim

relief can be granted in aid of, and as an ancillary to the main relief which may be available to the party on final determination of his rights. The trial

court while granting interim relief has made observations, which are reproduced as under:

The plaintiff has prayed for so may reliefs, thus issuance of interim direction does not amount to granting of final relief. The court cannot shut its

eyes when the plaintiff has been depraved of his legitimate right to which he is entitled to.

Having glanced of the above said discussion, I hereby pass the following direction.

The nonapplicants are commanded by a interim direction to issue a letter of intent to the applicant within one month form today so that he is in a

position to run retail outlet Dealership at Rawalpora.

Let us examine what was prayed in the relief clause and whether the entire relief has been granted or not. The relevant portion of the relief

clauses (i) and (ii) are reproduced as under:

i. Mandatory injunction commanding the defendants to give effect to the decision of the dealers selection board dated 22.1.2001 and permit the

plaintiff to run Retail outlet dealership at Rawalpora, Budgam and also issue a formal letter of intent or other appropriate orders to the plaintiff, be

passed in favour of the plaintiff and against the defendants;

ii. That a permanent injunction/decree perpetually restraining the defendants form running the retail outlet dealership at Rawalpora, Budgam either

directly or through some agent/contractor/servant and from awarding retail outlet dealership for running retail outlet dealership at Rawalpora,

Budgam in favour of any person/Institution or body other than the plaintiff be passed in favour of the plaintiff and against the defendants.

From a plain reading of the relief prayed in the plaint and the relief granted by the trial court, it is manifestly clear that the command to issue

letter of intent to run the retail outlet dealership at Rawalpora, is the only relief prayed in the plaint and the same has been granted by the trial

Court. The second portion of relief flows from the first relief, even if no granted would otherwise take effect. Therefore, the trial court has

substantially granted the entire relief at interim stage which has been depricated by the Supreme Court in case Asstt. Collector of Central Excise

vs. M/s Dunlop India Ltd. AIR 1985 SC 330, In the authority, it has been held that although the plaintiff may show a prima facie case, the practice

of granting principle relief at the interim stage has been depricated without considering the other two important aspects i.e., balance of convenience,

irreparable loss and host of other relevant considerations.

In the instant case, the impugned order for the reasons given above being palpably illegal cannot be sustained. The appeal is accordingly

allowed and the order impugned dated 29.05.2001 is set aside.

The record of the trial court be sent back. The parties through their counsel are directed to appear before the trial court on 29.08.2001.