Veena Kohli vs Family Planning Association Of ...
1993 Latest Caselaw 593 Del

JUDGMENT

Arun B. Saharya, J.

(1) This revision petition under Section 115 of the Code of Civil Procedure, 1908. is directed against an order dated 1st of February 1992, passed by the Trial Court, dismissing an application of the petitioner claiming payment of salary for the period of two years, after attaming the age of 58 years, when she continued to work under orders of the Court, during pendency of her suit for declaration that she was entitled to remain in service till she attained the age of 60 years.

(2) The petitioner Veena Kohli was employed by the first respondent,the Family Planning Association of India (FPAI). Fpai is a Society registered under the Societies Registration Act for promoting the family planning programme as a Field Worker. Fpai is funded by grants-in-aid by the second respondent Delhi Administration.

(3) A dispute arose about the age of superannuation of employees like the petitioner working in the FPAI. The employees claimed that they were entitled to work up to the age of 60 years by virtue of paragraph 42 of the General Rules and Service Regulations, 1984. On the other hand, the Management took up the stand, on the basis of an Office Order dated 26thof December 1988/2nd of January 1969, that their retirement age was 58years. Fpai sought to enforce this order on the employees as and when they attained the age of 58 years.

(4) Two of the employees, namely, Krishna Rani and Satya Singh,jointly filed a suit in January, 1989 for a declaration that they were entitled to continue in service up to the age of 60 years and for an injunction to restrain FPAI from removing them from service before they attained that age.An order dated 2nd of January 1992 retiring Krishna Rani, who was going to attain the age of 58 years on 2nd of February 1989, was stated to be the cause of action. That suit is still pending in a Sub-Judge's Court.

(5) Krishna Rani filed an application along with the plaint for stay of operation of the order of her retirement. Shri 0m Parkash, Sub-Judge,after hearing the parties, by a detailed order dated 28th of February 1989,stayed operation of the retirement order and directed FPAI to pay salary and other allowances to Krishna Rani, subject to decision of her claim in thesuit. FPAI implemented this order without demur.

(6) When Satya Singh attained the age of 58 years, an order dated31st of July 1989 was issued by FPAI for her superannuation as well. She also applied for interim orders on the same lines as were granted to her colleague Krishna Rani. By an order dated 1st of August 1989, FPAI was restrained from giving effect to this order also, and her application was likewise allowed. This tims, however, FPAI moved an application under Order XXXIX Rule 4 Cpc before the Trial Court for vacating the injunctionorder. This application was dismissed. FPAI preferred an appeal. The Senior Sub-Judge stayed operation of the Trial Court's order dated 1st of August 1989 till final decision in the appeal. That appeal also is still pending.

(7) Veena Kohli, the present petitioner was going to complete the age of 58 years on 28th of February 1990. Just a day earlier, she filed a separate suit praying for declaration that office order dt. 26th of December1988/2nd of January 1989 was unlawful; that she was entitled to continue inservice up to the age of 60 years; for an injunction restraining FPAI from dispensing with her services before she attained that age; and turn any other relief that may be deemed fit and proper in the circumstances of the case.She also filed an application under Xxxix Rules 1 and 2 Cpc for interim injunction restraining FPAI from dispensing with her services. This' suit was marked to another Court of Shri D.K. Saini, Sub-Judge, who passed annex parts interim order dated 27th of February 1990 restraining FPAI "from superannuating plaintiff before next date of hearing i.e. 8-3-90". That day,after service of notice on the defendants, the interim order was directed tocontinue. On 24th of April 199U, FPAI filed its written statement along within application seeking vacation of the interim order under Order XXXIX Rule 4 CPC. The interim order, however, was extended from time to time,and Veena Kohli continued in service. Then, by an application dated 14thof May 1990, she complained that the defendants had not paid her salary and allowances inspite of Court's order dated 27th of February 1990 and prayed that the defendants be directed to release the arrears of her salary and also continue to pay her future salary by 1st of each succeeding English Calender month. The Trial Court dismissed this application by the impugned order dated 1st of February 1992.

(8) Now, the peculiar position that has arisen is that Veena Kohli has continuously worked for FPAI, albeit under orders of the Court, she attained the age of 60 years on 28th of February 1992, but without payment of any remuneration for the last two years. Although Fpai bad raised preliminary objection in its written statement to maintainability of the suit,and had also moved the application for vacating the ex parte injunction orderdated 27th of February 1990 under Order Xxxix Rule 4 Cpc much earlier,yet the same remained undecided. Further, what is more disturbing is the fact that two other employees, namely, Krishna Rani and Satya Singh, who are governed by the same set of service conditions and whose suit for similar relief is pending, have been dealt with differently. Even the other two, who had jointly filed the earlier suit, had in store fate different from each other.The result is that Krishna Rani remained in service till she attained the age of 60 years and was paid the salary and other allowances for the disputed period of last two years on executing a bond for restitution, subject to outcome of her suit; Satya Singh worked only till she attained 58 years age; and Veena Kohli, the petitioner herein, has worked up to the date she attained the full age of 60 years, but has not been paid any remuneration for the last period of two years in dispute.

(9) In the impugned order, after noticing the substance of rival pleadings, the learned Trial Judge has very rightly left the question whether Veena Kohli was entitled to be retained in service till the age of 60 years open for trial. He has noted that she had actually performed her duties during the disputed period and that this pertinent fact had "not beenrefuted". But, he did not carry the matter any further. He took a narrow and strict view, without appreciating the consequential part of the relief sought in the suit, and without, feeling concerned about non-payment for work actually done by Veena Kohli as a direct result of orders passed by theCourt, and reached the conclusion stated in the operative part of the orderthus:"This is a suit for declaration and injunction. Relief claimed in the application is that direction for immediate release of salary and allowances to the plaintiff, together with interest be issued and in default initiate contempt proceedings against Mrs. Krishna Puri,President and the Executive Secretary Dr. M.A. Owaisy be initiated. I am of the considered opinion that the relief claimed in the applications cannot be granted. As such I am of the view that the applications are not maintainable and the same are hereby dismissed."

(10) It is clear that the learned Trial Judge felt that the relief sought in the application for payment of salary and allowances etc. was beyond the scope of the suit. This was not even the case set up by FPAI. On thecontrary, Fpai had specifically pleaded in its reply that the grant of relief sought by the application "tantamount to decreeing the suit." Indeed, this plea has been noted in the earlier part of the impugned order. Even otherwise, the conclusion reached by the Trial Court does not stand to reason.The suit is for declaration, injunction and other consequential relief, if the declaration sought by Veena Kohli is ultimately granted, surely, payment of salary and allowances for the disputed period of two years, even if she was not allowed to work, shall have to be given by way of consequential relief.Therefore, it cannot be said that the interim relief sought by Veena Kohli was beyond the scope of the suit. He application should not have been thrown out as not maintainable on this ground.

(11) Mr. Khanna, learned Counsel appearing for Fpai made a strong grievance against the failure of the Trial Court to dispose of the application under Order Xxxix Rule 4 Cpc for vacating the ex parts injunction orderdated 27th of February 1990 right from April 1990 onwards, which has undoubtedly resulted in this anamolous situation. I share his anguish. It may,however, be noted that lawyers were frequently on strike during the saidperiod. Precious little can now be done about it. Veena Kohli has crossed the age of 60 years and she has in fact rendered service for the disputed period of two years on the basis of the interim order of injunction dated 27thof February 1990. Now, in the given circumstances, variation of that order will be meaningless. The application under Order Xxxix Rule 4 CPC moved by Fpai for vacating that order has,, therefore, really become infructuous.

(12) Fpai also is responsible for creating confusion. As pointed outearlier, in similar circumstances, Krishna Rani and Satya Singh met with different fates. Fpai did not pursue the matter in the case of the former asit did in the later case. Not only this, under similar circumstances application moved by Fpai in the case of Satya Singh under Order Xxxix Rule 4CPC also stood rejected by the Trial Court. Since that is a matter pending in appeal, nothing need be said about it here.

(13) In any event, now we are confronted with a fate accompli in the case of Veena Kohli. She has rendered service for two years under orders of the Court. Whether those orders were right or wrong, is not open for discussion at this stage. Fair play and justice demand payment of compensation to Veena Kohli for services rendered by her and availed of by FPAI. She must be placed in the same position as Krishna Rani. That, to my mind,will meet the ends of justice.

(14) The matter may be viewed from another angle. Veena Kohli has lawfully worked for the respondents for two years after she attained the age of 58 years, not intending to do so gratuitously. The respondents have availed and enjoyed the benefit thereof and are, therefore, bound to make compensation to Veena Kohli in respect of the work so done by her. There appears to be no justification for denying the financial benefit for the work done by her for the last two years in dispute. Section 70 of the Contract Act is squarely applicable in the present case.

(15) Accordingly, the impugned order is set aside, and Fpai is directed to pay to Veena Kohli, or deposit in Court for payment to her, within onemonth, salary and allowances, for the period of two years that she continued to work after attaining the age of 58 years, of course, subject to her furbishing security for restitution in the event of ultimate dismissal of the suit.

(16) The revision petition is, therefore, allowed. No costs.