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Judgment
Hakim Imtiyaz Hussain, J.—This revision is directed against the order dated 4.8.2007 passed by the Principal District Judge, Srinagar in an
appeal against the order dated 22.9.2006 passed by 2nd Additional Munsiff, Srinagar in File No. 27/Misc Appeal of 2006.
The facts leading up to the present revision are shortly as follows: Petitioner was appointed as Jr. Officer on probation in the Bombay
Mercantile Cooperative Bank in the year 1989. He was promoted to the post of Dy. Chief Officer cadre in the year 1997. He was deputed for
training on branch management in Sheikh Mohammad Allabux Urban Banking Development Institute and during such training he was transferred to
Mumbai vide letter No. 64/STF/LVT/2423 dated 2.8.2001. He was dismissed from service on the charge of grave irregularities vide order dated
21.10.2002. He filed an appeal against the order of his dismissal but the same was not considered. In the year 1999 he had taken housing loan of
Rs. 6,48,000 from the bank. In the year 2006 an amount of Rs. 1,47,44 was found outstanding against him. Accordingly vide Communication No.
27/BMC/SGR/06 dated 31.5.2006 he was asked to arrange to deposit the amount. He felt aggrieved of the same and through a suit for
declaration and Injunction filed before the Court of Principal District & Sessions Judge, Srinagar, which was later on transferred to the Court of
2nd Additional Munsiff, Srinagar, he challenged the order of his dismissal dated 21.10.2002 as also order of recovery dated 31.5.2006. He also
prayed for a decree for injunction in his favour and against the defendants directing the defendants to treat the plaintiff to continue uninterruptedly in
service.
Alongwith the suit the petitioner filed an application for interim relief which was considered by the 2nd Additional Munsiff, Srinagar and by
means of an interim order the same was allowed on 22.9.2006. The order impugned was stayed till the final disposal of the main case.
Against this order the Bank filed an appeal before the Court of Principal District Judge, Srinagar which was heard and disposed of by the Court
on 4.8.2007 by means of the order impugned in the present revision petition. The appellate Court found that the trial Court had not properly
considered the matter and had not addressed the question of enforcement of personal contract as also the important question i.e. when party
aggrieved can be compensated if finally succeed then the grant of interim relief has to be declined. The Court while dealing with the matter also
found that the matter pertains to the year 2002 but the Court has failed to take note of the fact as to how could relief regarding the stay of
termination be granted in the year 2006.
By means of order dated 4.8.2007 the Learned Principal District Judge, Srinagar, therefore allowed the appeal and transferred the case to the
Court of Sub Judge (Chief Judicial Magistrate) Srinagar for disposal under law. It is against the said order passed by Principal District Judge,
Srinagar that the present revision petition has been filed.
The petitioner states that the appellate Court has misdirected itself by observing that if the plaintiff succeeds in the suit he can be compensated
by awarding damages which are assessable. The appellate Court has not addressed to the important question as to whether a party canbe fully
compensated finally, not claiming interim relief. The petitioner further states that the observations of the appellate Court are manifestly erroneous
and the impugned order is legally bad and is liable to be set aside.
Heard. I have considered the matter.
Mr. Qayoom Learned Counsel for the petitioner has taken me through the order passed by the Learned trial Court and states that the Court has
properly considered the matter and has found that there was a prima-facie case in favour of the petitioner and the balance of convenience lies in his
favour. The trial Court has taken note of various illegalities committed by the respondents while directing dismissal of the petitioner particularly the
fact that the order has been passed against the petitioner without affording an opportunity of hearing to him. The order, according to the Learned
Counsel, contains due reasons for the conclusions arrived at. These aspects have not been properly appreciated by the appellate Court. The
appellate Court has not dealt with the issue in accordance with the law and has drawn its own conclusions to upset the findings of the Learned trial
Court.
The Learned Counsel further submits that the respondents could not have dispensed with the services of the petitioner without holding an
enquiry into the matter or without providing opportunity of hearing to him and where in a petition the Court finds that an illegality has been
committed by the employer in dismissing the petitioner from service, the Court can by way of interim relief restore the employee back in service.
In this behalf the Learned Counsel has relied on Sree Jain Swetambar Terapanthi Vid.(S) Vs. Phundan Singh and Others, . Uptron India
Limited Vs. Shammi Bhan and Another, , Jammu and Kashmir Bank v. B.K. Sawhney 1988 SLJ 156; Jammu & Kashmir Bank Ltd. v. Moti Lai
Wattal 1995 SLJ 99 and State of J&K v. Iff at Alam CIA No. 41/03 decided on 23.3.2005.
In reply Mr. Attar, Learned Counsel for the respondents has referred to the various averments made in the plaint to show that on his own
admissions the petitioner has accepted the order of dismissal passed in the year 2002 and it was only when the recovery was effected of the loan
taken by the petitipner in 2006 that he fell aggrieved and has approached the court calling in question his order of dismissal. In this behalf he has
referred to the fact that after the notice of dismissal was issued to the petitioner he was paid 3 months salary as per the agreement but the petitioner
informed the respondents that the salary so sanctioned in favour of the petitioner should be adjusted in the loan taken by him. Thus, according to
the Learned Counsel, the petitioner has duly accepted the salary and al*o the dismissal order passed against him by the respondents.
Learned Counsel for the respondents has in support of various pleas raised by him relied on the following authorities. Co-operative Central
Bank Ltd. and Others Vs. Additional Industrial Tribunal and Others, , Vaish Degree College v. Lakshmi Narain AIR 1976 SC 888. Pearlite
Liners Pvt. Ltd. Vs. Manorama Sirsi, , Sham Shankar Kankaria v. State of Maharashtra 2007 (2) SCC 669 : 2004 SLJ 402, State of J. and K.
Vs. Qazi Nazir Ahmad, . J&K Women's Development v. Miss Kawkab Jabeen AIR 2000 KLJ 14, and State of Haryana and Others Vs. Bikar
Singh, .
I have considered the matter and find that this revision cannot be allowed on a very short point that in so far his relief regarding quashment of
order of dismissal is concerned the petitioner has approached the Court after about 4 years of his dismissal as such he is not entitled to any interim
relief in the circumstances of the case.
Petitioner was transferred to Mumbai in the year 2001 and he joined there in January, 2002. The petitioner was dismissed vide Ref. No.
65/STF/TR/12819 dated 21.10.2002. The petitioner alleges that the dismissal was ordered without holding any enquiry. Though he filed an appeal
against the order of his dismissal but the same remained undecided till another impugned dated 31.5.2006 was issued directing the petitioner to
liquidate the unpaid amount of loan. During this an important event took place, the respondents at the request of the petitioner, adjusted the amount
of salary due to the petitioner on his dismissal (notice pay) against the amount of loan taken by him. Both the orders i.e. order of dismissal and
order directing him to pay the loan amount have been challenged by him and through the interim applications seeks interim stay of the orders. The
order of interim stay issued by the trial Court would amount to re-instatement him in the service of the respondent-bank. The interim order allowed
by the trial Court besides being in clear violations of the law laid down by the Supreme Court in Assistant Collector of Central Excise, Chandan
Nagar, West Bengal Vs. Dunlop India Ltd. and Others, and followed by this Court in Surjeet Singh v. Principal Woodland & Ann 2007 (II) SLJ
669, should not have been granted as there has been inordinate delay on the part of the petitioner to seek the relief. Delay may not effect the
maintainability of the main suit, if the same is within limitation but it will definitely disentitle a plaintiff to seek discretionary interim relief.
The grant of interim relief during the trial of a suit falls within the discretion of the Court. Well known tests, recognised by the Courts, for the
exercise of such discretion are: (i) Prima facie case; (ii) Balance of convenience; and (iii) Irreparable injury. The object of the interim injunction is,
to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages.
Power to grant interim relief is purely equitable and, therefore, the Court on being approached, will apart from the considerations mentioned
above, also look to the conduct of the party seeking such a relief, and may refuse to interfere if the party approaches it with inordinate and
unexplained delay. The party has to show that he himself was not at fault and his conduct has remained honest. The grant or refusal of an interim
relief ultimately rests in the judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case and where it is
found that a party has acquiesced for sometime, the Court may not exercise the discretion in favour of such a party.
In the present case the petitioner, as noticed above, seeks interim relief after about four years of his dismissal from service. His explanation in
the plaint that he had filed an appeal against the order of his dismissal which remained pending for a long time is not convincing.
This fact has been referred to by the Learned appellate Court also while disposing of the appeal. The Learned District Judge, has observed
that the trial Court has lost sight of the fact that how could the relief regarding the stay of termination order passed in the year 2002 can be passed
in the year 2006.
The Learned Counsel for the petitioner has relied on a judgment of this Court in CIA 41/03 decided 23.3.2005 to show that the Court can by
way of grant of interim relief stay the order of dismissal/termination of service.
In the circumstances of the case I do not find the said authority is applicable in the present case. Here the petitioner has not challenged the
order of his dismissal for about 4 years and has remained contended with it. True, he may have a cause of action to agitate it in a civil suit, and if
the same is within limitation the delay may not come in his way but the delay will definitely defeat his right to seek any interim relief.
In the circumstances I do not find any irregularity or illegality in the order impugned.
Petition is dismissed.