Vishal Gupta vs L & T Finance Limited
2009 Latest Caselaw 3635 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI

                       CS (OS) 2309 of 2008 & IA No. 13399/08

                                         Reserved on : September 2, 2009
                                         Decision on : September 9, 2009

        VISHAL GUPTA                                     ..... Plaintiff
                                   Through Mr. Ashish Mohan, Advocate

                       versus

        L & T FINANCE LIMITED                      .... Defendant
                           Through Ms. Indu Malhotra, Senior
                           Advocate with Mr. Vikas Mehta and
                           Mr. Praveen Pahwa, Advocates

        CORAM:
        HON'BLE DR. JUSTICE S. MURALIDHAR

         1.Whether reporters of the local newspapers
           be allowed to see the judgment?                             No

         2.To be referred to the Reporter or not?                      Yes

         3. Whether the judgment should be reported in the Digest? Yes

                                JUDGMENT

09.09.2009 S. Muralidhar, J.

1. By this order, the preliminary issue in the suit concerning the territorial

jurisdiction of this Court to try the suit as well as the question of grant of

an ad interim injunction are being dealt with.

2. The Plaintiff was appointed by the Defendant L & T Finance Limited by

a letter dated 19th June 2006 as an Assistant Manager in their Corporate

Product Financing Division at New Delhi. Significant among the terms and

conditions of employment were following:

"Place of Work:

You will be assigned to work at our office in New Delhi at present. However, you will be liable to be transferred to any of the company‟s establishment in India or outside, as and when required by the management.

Termination of Employment:

The above offer of employment is for continuous employment. However it may be terminated at any point of time by either party giving two month‟s notice in writing. The company has right to pay two month‟s salary in lieu of such notice to you. The company shall also have the right to adjust any leave due to you and/or recover from you such amounts towards notice pay for the shortfall in the period of notice.

Dispute

Any dispute between yourself and the company concerning with or relating to or arising out of this employment, shall be subject to the jurisdiction in Greater Mumbai only."

3. The said letter was issued from the Corporate Product Financing

Division of the Defendant at Bandra (East), Mumbai. At the foot of the

first page of the appointment letter, the address of the registered office of

the Defendant at Ballard Estate, Mumbai was indicated.

4. On 12th February 2007, the Plaintiff was informed of the confirmation of

his appointment with the Defendant with effect from 3 rd January 2007. The

updated Human Resource Manual & Procedure of the Defendant as on 13th

October 2008 has been filed by learned counsel for the Defendant. The two

clauses relevant for the purpose of present case are follows:

"Abandonment

If unauthorized absence exceeds eight working days (consecutive), the management at its sole discretion, strike off the name of the employee from the rolls of the company on ground of abandonment of employment and advise him/her accordingly. If within 15 days from receipt of such advise, the employee presents himself/herself and offers an explanation/reasons of absence, the management has an option to review the matter and confirm or otherwise stand by its earlier decisions.

Exit Policy

An employee who wishes to resign from the services of the company will be required to give the notice of resignation as per terms of appointment or subsequent amendments thereof. An employee will have to serve a minimum period of 2 month as notice period or agreed as per the term of employment.

If the employee desires to be relieved earlier than the notice period, management at its sole discretion may decide to waive the notice period or otherwise the employee is required to surrender the equivalent salary (Basic Salary) applicable for the notice period waived. If the company asks the concerned individual to leave before the notice period, then the company will pay the equivalent salary (Basic salary) for the remaining notice period.

Management at its sole discretion may sanction leave to the employee during his/her notice period provided such leave exists to the credit of the individual.

In case an employee leaves within 1 year of service, no unclaimed leave will be either encashed or compensated against the settlement of notice period. However, in case of an employee leaving after completion of 1 year of service, the unclaimed leave may be either encashed or compensated or settled against notice period at the discretion of the

arrangement. The encashment would be as per leave Rules (i.e. only Basic salary).

The company may at its sole discretion terminate the employment without notice and/or salary in lieu of notice, if in the opinion of the company, the continuance of his/her employment is detrimental to the interest of the company. In the event of such termination, all benefits/perquisites/ allowances shall stand forfeited.

All the loans availed by the employee are to be settled before the date of resignation takes effect. Necessary clearances on handing over the company assets should be obtained from the respective authorities."

5. On 4th August 2008, the Plaintiff resigned from the services of the

Defendant by sending an e-mail addressed to Mr. Jaspal Singh Ahluwalia.

The said e-mail reads as under:

"From: Gupta Vishal Sent: Monday, August 04, 2008 11:27 AM To: Ahluwalia Jaspal Singh CC: Kalra Anil; Ramesh V; Samant Biswajit D.; Singh Niraj Kumar

Subject: Letter of Resignation

Dear Sir, This is to formally inform that I will not be able to continue my service for L & T Finance Limited as Assistant Manager - TEG, for Delhi - NCR region. For personal reasons I would like to resign from the aforesaid post. I wish to be relieved by closing hours of 5/8/2008.

I would like to thank this organization for giving me an opportunity to work together and imparting a good exposure in Sales field.

I would request you to please relieve me of my official duties on 5/8/2008. I am willing to compensate the organisation as per policy in lieu of my notice period. Thanking you, Yours truly,

Vishal Gupta Employee N.-735310 Assistant Manager - TEG L&T Finance Ltd New Delhi."

6. In response to the above e-mail which was sent at 11.27 am Mr. Jaspal

Singh Ahluwalia replied by e-mail to the Plaintiff on the same day at 11.42

am to the following effect:

"RE: Letter of Resignation Ahluwalia Jaspal Singh Sent: Monday, August 04, 2008 at 11.42 AM To: Gupta Vishal CC: Kalra Anil; Ramesh V; Samant Biswajit D; Sing Niraj Kumar Vishal, you are required to resolve the Non Starter Cases done by you after which only you will be relieved from the services of the Organisation. Regards, Jaspal Ahluwalia"

7. On 5th August 2008, the Plaintiff received an e-mail at 5.59 pm from

another employee Ms. Manju Sachin Chowre attaching an Exit Interview

Form, Clearance Form and the details of the amount to be recovered from

the Plaintiff. According to the Plaintiff, he filled out these forms. As far as

the clearance form is concerned under the column „Dues if any‟ it was

indicated „No" by his own department, by the Admin. Department and

Operations Department. As regards the „Fin. & Accts‟ Department the

aforementioned column was left blank. As regards the recovery of the

amount due for two months‟ salary in lieu of notice, the LTA Recovery

and the General Purpose Loan Recovery, a total sum of Rs.2,20,318/- was

indicated.

8. It requires to be noticed that in response to the e-mail dated 4th August

2008 from Mr. Jaspal Singh Ahluwalia the Plaintiff sent an e-mail on 5th

August 2008 at 11.53 AM stating that "as per the report from the system,

two cases are been shown as non starter cases in which legal action has

been already initiated." On 6th August 2008 at 11.41 am Mr. Jaspal

Ahluwalia sent an e-mail to him that "Vishal, you are required to resolve

these cases and ensure No Loss is incurred, till that time your release from

the organisation is withheld." The Plaintiff has placed on record the report

of non starter cases as on 15th October 2008 which shows that there were

two cases of commercial vehicles financing pertaining to one Birender

Singh and the other Sanjay Singh. Birender Singh had given some post-

dated cheques, some of which had been encashed and some dishonoured. It

is stated that legal action has been initiated as regards the dishonoured

cheques.

9. It is not in dispute that on 14st August 2008 the Plaintiff issued to the

Defendant a cheque in the sum of Rs.2,20,318/- and this was encashed by

the Defendant on 21st August 2008. It is, however, contended by the

Defendant that this amount has been placed in a sundry account.

10. The controversy in the present case is that the Plaintiff has not been

issued a relieving letter by the Defendant as a result of which he is unable

to take up employment with any other organization. According to the

Plaintiff, he received an offer for appointment from Axis Bank but was

unable to join as he could not produce the relieving letter from the

Defendant.

11. Faced with a difficult situation where the Defendant refused to issue a

letter relieving him from its service, despite his clearing the dues, the

Plaintiff wrote to Mr. Anil Kalra, Head (HR) of the Defendant on 2nd

September 2008 an e-mail as follows:

"From; Gupta Vishal Sent : 02 September 2008 11:27 To: Kalra Anil CC: [email protected]

Sub: Re: Letter of resignation_Vishal Gupta

Dear Sir,

This is in reference to my mail sent to you on 25/8/2008 in which I intimated that the cheque of Rs.2,20,318/- in the name of L&T FINANCE LTD as my settlement amount is cleared from my bank account, but till date I have not been relieved from the organisation. If organisation is not relieving me, I am ready to join the services of the organisation (L&T Finance Ltd) and also I request you to kindly refund the settlement amount recovered from me through cheque no. 233075 of UTI Bank LTD.

Waiting for your reply at the earliest.

Thanking you,

Regards, Vishal Gupta" (emphasis supplied)

12. In response to the above e-mail, Mr. Anil Kalra wrote to the Plaintiff

on 18th September 2008 as follows:

"To Vishal Gupta Asst Manager-EPG-TEG P.S. No. 735310 Location: New Delhi

Dear Vishal,

Refers to your request of 2nd September 2008 for resignation, we would like to put the following on record:

1. You have already been informed that you have done irregular lending in 2 cases where no repayment has come so far and customers and assets are not traceable.

2. We hereby give you a months time i.e. upto 30 th October 2008 to find out the customers to whom you have done the lending and also the assets for which you have done the lending.

Please note that if the above is not organized by 30 th October 2008 the company will initiate the appropriate civil/criminal action against you.

For: L & T Finance Ltd.

Anil Kalra Head HR- L&T Financial Services." (emphasis supplied)

13. The Plaintiff then sent an e-mail on 15th October 2008 to Mr. Anil

Kalra, Head (HR) of the Defendant tracing the developments till then. He

pointed out that his requiring to resolve the non starter cases was not a

condition mentioned in the offer letter. He maintained that his

employment stood terminated when he paid two months‟ salary in lieu of

notice which was accepted by the Defendant. As regards the documents

collected by him from the borrowers in the two „non-starter‟ cases, he

mentioned that the current address proof and photo proof in both cases

were duly forwarded to the Defendant. He further informed that Birender

Singh was still available at the same place mentioned in his loan

application. In the same e-mail, the Plaintiff informed the Defendant of the

other address of Sanjay Singh He called upon the Defendant to

immediately issue him a relieving letter.

14. Thereafter, on 4th November 2008, the present suit was filed. The

prayers, inter alia, are for a declaration that the Plaintiff is entitled to a

letter relieving him from the Defendant with effect from 4th August 2008;

for a permanent mandatory injunction directing the Company to issue a

relieving letter and other reliefs including refund of an amount of

Rs.32,890/ paid by the Plaintiff to the Defendant as salary in lieu of notice;

reimburse his out of pocket expenses and compensation for the loss of job

with Axis bank. He also sought damages for the loss of mental peace and

for the mala fide actions of the Defendant.

15. The suit was listed for hearing on 5th November 2008. The Defendants

2 and 3 who are officers of Defendant No.1 were not found to be necessary

parties and were struck off from the array of the parties. On 28th April

2009, the following order was passed by this Court:

"The suit is ripe for framing of issues. However, there appear to be some element of settlement and it is deemed expedient to

give the parties an opportunity for the same.

List on 15th May, 2009. If no settlement is arrived at by the parties, issues shall be framed.

IA.No.13399/2008(of the plaintiff u/O 39 Rule 1 and 2 CPC) The plaintiff seeks interim order directing the defendant to issue the employment relieving certificate to the plaintiff. It is stated that the said certificate is necessary for the plaintiff to take employment elsewhere. The counsel for the defendant has stated that the plaintiff had, in fact, abandoned the employment of the defendant and contrary to the agreement with the defendant and has otherwise not given all the information required to be submitted as to the business transacted by the plaintiff on behalf of the defendant and owing to which the defendant is suffering losses. The counsel for the defendant has stated that if the plaintiff were to cooperate with the defendant and give the requisite information to the defendant, the defendant would consider issuing the relieving certificate without prejudice to its rights and contentions.

The counsel for the defendant has also contended that this court does not have the territorial jurisdiction to entertain the suit. To explore the possibility of the settlement it has been agreed that the plaintiff shall visit the office of the defendant at Moti Nagar, Delhi at 11.00 a.m. on 29th April, 2009 and meet Mr Neeraj Singh of the defendant and give all the information which is in his power and possession and as required by the said Mr Neeraj Singh. If the plaintiff is required to go to the office of the defendant on subsequent dates also, the plaintiff shall do so.

List on 15th May, 2009 for further consideration. If no settlement is arrived at, the arguments on the application shall be heard on that date."

16. Pursuant to the said order, the Plaintiff went over to the Defendant‟s

office on two dates i.e. 29th April 2009 and 5th May 2009. What happened

during those meetings is differently described by the Defendant and the

Plaintiff. According to the Plaintiff, instead of asking him about the two

non-starter cases, the Defendant asked him about various other cases and

therefore, they were not acting fairly. According to the Defendant, the

Plaintiff was not cooperating with them and declined to give them the

details regarding the nine loan defaulters whom he had introduced. The

Defendant has placed on record the copy of a letter dated 11th May 2009

addressed by it to the Plaintiff listing out the 15 cases of defaulting parties

to whom loans were advanced by the Defendant on the recommendation of

the Plaintiff.

17. Despite learned counsel for the parties taking adjournments for

exploring the possibility of a settlement, it was reported finally that no

settlement was possible. The Defendant was prepared to give a letter

stating that the Plaintiff had ceased to be an employee of the Defendant on

account of abandonment of services; that his name stood struck off from

the rolls and that the certificate was being issued without prejudice to the

rights and contentions of the Defendant in the present suit. This kind of a

qualified relieving letter was of course not acceptable to the Plaintiff. The

parties were therefore heard at length on the application for ad interim

injunction as well as the question of territorial jurisdiction of this Court to

try the suit. Mr. Ashish Mohan, learned Advocate appeared for the Plaintiff

and Ms. Indu Malhotra, learned Senior Advocate and Mr. Vikas Mehta,

learned Advocate appeared for the Defendant.

18. As regards the preliminary issue of territorial jurisdiction, it is

submitted on behalf of the Defendant that if the suit itself was not

maintainable then the question of grant of an ad interim injunction would

not arise. It is submitted by learned Senior Advocate for the Defendant that

in view of the specific clause in the appointment letter that any dispute

between the Plaintiff and the Defendant "concerning with or relating to or

arising out of" the employment was "subject to the jurisdiction in Greater

Mumbai only", the suit filed by the Plaintiff in this court was not

maintainable. It is further pointed out that even for the purpose of Section

20 (a) and (c) CPC, the corporate office of the Defendant which issued the

appointment letter was in Mumbai, the refusal of the acceptance of the

resignation letter was also at Mumbai and therefore, the cause of action

arose only within the jurisdiction of the Court in Mumbai. Reliance is

placed upon the judgments in A.B.C. Laminart Pvt. Limited v. A.P.

Agencies, Salem AIR 1989 SC 1239, Shree Subhlaxmi Fabrics Pvt. Ltd v.

Chand Mal Baradia AIR 2005 SC 2161. It is further submitted that the

granting of any relief of mandatory injunction directing the Defendant to

issue a relieving letter to the Plaintiff would tantamount to granting the

final relief itself and this was impermissible in law. Reliance is placed

upon the judgment of the Supreme Court in Metro Marins v. Bonus Watch

Co. Pvt. Ltd. AIR 2005 SC 1444.

19. It is then submitted on behalf of the Defendant that when the employee

had a poor track record and had abandoned its services, the Court could not

compel it to issue a relieving letter simpliciter. It is repeatedly pointed out

that at least 15 of the borrowers whom the Plaintiff had recommended for

loan had defaulted. The full details of the borrowers were not available

with the Defendant. Considerable losses were suffered by it on account of

the conduct of the Plaintiff. There was no question, therefore, of the

Defendant being asked to issue a relieving letter to the Plaintiff

unconditionally. It is submitted that in any event a decision on this aspect

would require the case to go for trial. At the same time, it was contended

by the Defendant that there was no question of the Plaintiff being taken

back in its service particularly when the Defendant had lost confidence in

the Plaintiff. Therefore, this was a case where no relief could be granted at

this stage even by asking the Defendant to take the Plaintiff back in

service.

20. On the other hand, it is contended by the Plaintiff that the observations

made in A.B.C. Laminart Pvt. Ltd v. A.P. Agencies (supra) do not

categorically hold that the ouster clause would also apply in the contracts

of employment and that the said judgment was given in the context of a

commercial contract. Reliance has also been placed on certain decision of

the High Courts in M/s. Snehalkumar Sarabhai v. M/s. Economic

Transport Organization AIR 1975 Gujarat 72, M/s. Patnaik Industries

Pvt. Ltd v. Kalinga Iron Works AIR 1984 Orissa 182 and Indian Rare

Earths Limited v. M/s. Unique Builders Limited AIR 1987 Orissa 30 . It

is submitted that there are instances where a mandatory temporary

injunction can be granted and this is one such instance. Reliance is also

placed on the judgment of Dorab Caswaji Warden v. Coomi Sorab

Warden AIR 1990 SCC 867 and Sukerma Rani Kapoor v. Om Prakash

Kapoor (2002) 2 AD (Del) 860.

21. As regards the submission regarding the territorial jurisdiction of this

Court, there is an ouster clause in the contract in terms of which only the

courts in Greater Mumbai would have jurisdiction. Learned counsel for the

Defendant clarified that Bandra (E) is in Greater Mumbai and in any event

given the claim made in the present suit, it would have to be filed on the

original side of the Bombay High Court. According to them, therefore, the

Court in Delhi has no jurisdiction.

22. The decisions of the Supreme Court in regard to „ouster clause‟ have

invariably been in the context of commercial contracts. In A.B.C.

Laminart Pvt. Ltd v. A.P. Agencies, the Defendant was located in Gujarat

whereas the Plaintiff was in Salem (Tamil Nadu). The objection by the

Defendant as to the jurisdiction of the Court in Tamil Nadu was negatived

by the High Court. The Defendant then appealed to the Supreme Court.

The ouster clause in that case did not use the word „only‟ or „exclusively‟.

In that context it was held therefore, that the ouster clause did not manifest

the intention of the parties to exclude the jurisdiction of the Court at Tamil

Nadu. Accordingly, the order of the High Court was not interfered with.

However, the following observations in the said judgment appear to

indicate that the convenience of the parties is also a factor that would have

to be borne in mind, and that the jurisdiction of the court cannot be said to

be completely excluded:-

"16. So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the Court. If under the law several Courts would have jurisdiction and the parties have agreed to submit to one of these jurisdictions and not to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy. Would this be the position in the instant case?"

23. In Shree Subhlaxmi Fabrics Pvt. Ltd v Chand Mal Baradia (supra)

again the question was of interpretation of a commercial contract. Again

following the list of judgments from ABC Laminart Pvt. Ltd v. A.P.

Agencies, it was held in Angile Insulation v. Davy Ashmore India

Limited (1995) 4 SCC 153 that the ouster clause using the words „only‟ or

„exclusively‟ would in fact decide the jurisdiction of other courts. While

the earlier decisions of the High Courts taking a different approach even in

commercial contracts (for e.g., see M/s. Patnaik Industries Pvt. Ltd v.

Kalinga Iron Works) could be distinguished on the basis that they were

delivered at a time when the decision in ABC Laminart Pvt. Ltd v. A.P.

Agencies had not been rendered by the Supreme Court, none of the

decisions deal with a contract of employment.

24. In the considered view of this Court the decisions on the „ouster clause‟

in the context of a commercial contract have to be held to be

distinguishable in their application to a case of a contract of employment.

In the employment contract, an employee would not be able to insist that

the disputes, if any, are to be referred only to one court and not the other.

The employee usually accepts the employment with all the attendant terms

and conditions or not at all. In the present case, the letter of employment no

doubt states that it is a transferable job. Still, the Plaintiff was to work

primarily for the Delhi office of the Defendant. He, in fact, rendered

services only in Delhi office. He submitted his resignation at Delhi. For an

employee no longer in service to be asked to go to Mumbai for instituting

and pursuing litigation would render the remedy expensive and

inefficacious for such employee. It would work harshly against him.

Moreover, in a situation like the present one where the prayer is essentially

for a direction to the Defendant to issue a relieving letter, to direct the

employee to go to a different city only because of the ouster clause seems

to be unfair and unjust. Although in commercial contracts, it has been held

that such an ouster clause would not be opposed to public policy (see the

observations in para 18 of the decision in ABC Laminart), in a contract of

employment such a clause could well be held to be opposed to public

policy. To repeat, the courts have thus far had no occasion to examine how

a strict application of the exclusion clause would work for an employee

who is out of service. As regards the comparative hardship, the Defendant

has an office in Delhi and there will be no difficulty for it to appear before

this Court and defend itself.

25. As far as Section 20 CPC is concerned, in terms of clause (b) thereof,

the Defendant has an office in Delhi. The letter of appointment was

received in Delhi. The email correspondence referred to hereinbefore

shows that the Plaintiff‟s resignation letter was sent from Delhi and the

refusal of the relieving letter was communicated to the Plaintiff in Delhi.

The result is that the Courts in Mumbai (because of the clause in the

appointment letter) and this court, on account of the substantial part of the

cause of action having arisen here, have jurisdiction to try the case. The

observation in ABC Laminart in para 21 that the intention of the parties to

completely oust the jurisdiction of the court in Delhi will have to be tested

in the above background. The use of the word "only" in the instant case to

qualify the ouster clause cannot be read as conferring exclusive jurisdiction

on the court in Mumbai.

26. For the above reasons, it is held that the ouster clause in the letter of

appointment of the Plaintiff cannot preclude this Court from entertaining

the present suit. The preliminary objection of the Defendant to the

maintainability of this suit on the said ground is hereby overruled.

27. Turning to the application for an ad interim mandatory injunction , it is

seen that there was no condition in the letter of employment that the

Plaintiff has to first ensure that the non starter cases are resolved before his

letter of resignation could be accepted. Further, the conduct of the

Defendant in refusing to take the Plaintiff back into service becomes

relevant. When on 2nd September 2009 the Plaintiff offered that in the

event the defendant does not issue a relieving letter, he is prepared to join

back the service, there was no positive response by the Defendant. During

the course of arguments, the learned Senior Advocate for the Defendant

repeatedly stated that since it had lost confidence in the Plaintiff it would

not permit him to join duties. As far as the Defendant was concerned, the

Plaintiff was no longer in their service and yet, they would not issue him a

relieving letter simpliciter. To this Court, it appears that the point of refusal

of the Defendant to take back the Plaintiff into service while at the same

time refusing to grant him a relieving letter is not legally tenable. If the

Plaintiff was indeed responsible for the „non starter‟ cases, then consistent

with such plea the Defendant ought to have proceeded to hold an inquiry

against the Plaintiff while he was still in service. At no point in time while

he was in service, did the Defendant initiate any disciplinary proceedings

against the Plaintiff.

28. Even the reason of the Plaintiff having to first resolve the two non-

starter cases appears to have been a ruse to somehow deny him the

relieving letter. It transpired subsequently that the Defendant did not

confine its understanding of the Plaintiff‟s obligation to the two non-starter

cases. The Defendant has been insisting that the Plaintiff should help it

resolve 15 cases of default whereas only two are shown to be non-starter

cases. The Defendant is, therefore, trying to build a new case which it

ought not be permitted to do. Even as regards the non-starter cases, the

Plaintiff appears to have given the information to the Defendant. In one of

the cases, the payments have been made in part and, therefore, in a strict

sense it is not a non-starter case. If in fact the Defendant has initiated legal

proceedings to recover the amounts due from both the borrowers, the

Plaintiff cannot be put on hold indefinitely to await the resolution of these

cases.

29. The stand of the Defendant is not consistent with the terms of the

contract of employment. It accepted the payment made by the Plaintiff for

two months‟ notice period as well as the outstanding loan amount which

was a condition of the Plaintiff being relieved from service. It is not in

dispute that this cheque, which includes the loan amount, was encashed.

Therefore, there are no monetary dues as far as the Plaintiff is concerned.

There being no other term of service that requires to be fulfilled for issuing

a relieving letter, the refusal by the Defendant to do so seems unjustified.

The stand of the Defendant that the Plaintiff has „abandoned‟ his service is

also not borne out by the correspondence. In fact, the Plaintiff‟s offer to

join back service has been refused by the Defendant.

30. The only question that remains is whether a mandatory interim

injunction by this Court can be issued at this stage to the Defendant. The

rule that a Court cannot grant an interim relief that would amount to grant

of the final relief at the interlocutory stage is not an inflexible one. It would

depend on the facts of every case. The decision relied upon by the

Defendant in Metro Marins v. Bonus Watch Co. Pvt. Ltd. was in a

different set of circumstances. That case dealt with a commercial contract.

It cannot ipso facto be applied to the instant case where the dispute arises

out of a contract of employment, and where the dispute is limited to the

employer refusing to issue to the employee, who has resigned, a relieving

letter/certificate. If, for the relieving letter, the Plaintiff has to wait for the

conclusion of the trial, the whole purpose of the Plaintiff coming to the

court would be defeated. The denial of a relieving letter by the Defendant

in the instant case has already prevented the Plaintiff from accepting any

other offer of employment.

31. It was observed in Dorab Cawasji Warden v. Coomi Sorab Warden

AIR 1990 SC 867 as under (AIR, p.873-74):

"14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

15. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

32. Also relevant are the following observations of the Bombay High

Court in Baba Narayan Landge v. Mahadu Bhikaji Tonchar AIR 1989

Bom 247 as under (AIR, p.247)

"......The subject of temporary injunction is mainly covered by O. 39, Rr. 1 and 2, C.P.C In cases not covered by those provisions, an appropriate temporary injunction can be granted also in exercise of inherent power of a Court under S. 151, C.P.C. After all O. 39, Rr. 1 and 2 are not exhaustive of the circumstances under which interim injunction can be granted. The controversy on that aspect of the matter is set at rest by

a majority decision of the Supreme Court in the leading case of Manoharlal v. Seth Hiralal (AIR1962 SC 527). But that apart the language employed in those two Rules is clearly wide enough to include an order in the form of a mandatory injunction and admits of no exception with reference to a point of time to which it can be made. Injunctions are a form of equitable relief and they have to be adjusted or moulded in aid of enquiry and justice to the facts and circumstances of each particular case. Jurisdiction is thus undoubted even under S.39, Rr. 1 and 2. Even If it cannot be granted under the said Rules, S. 151, is the source of such jurisdiction. I see no reason to lay down an absolute proposition and forge unnecessary and unjustified fetters on the power of the enquiry Courts to grant appropriate relief even in a well deserving case and reduce its position only to a willing but helpless spectator - a situation not warranted by our enquiry jurisprudence.

Undoubtedly, power to issue mandatory injunction at an interlocutory stage is not to be exercised lightly or commonly. Ordering maintenance of statues quo as on the date of the suit as an interim measure is rate and rarer still is the order of maintenance of status quo as on the date anterior to the institution of suit. But existence of jurisdiction and its proper exercise are two distinct topics."

33. In the instant case, a direction to the Defendant to issue a relieving

letter is not the only relief being sought by the Plaintiff in the suit.

Therefore, in issuing such a direction, the suit itself does not become

infructuous. All that the Defendant is required to do is to issue the Plaintiff

a letter stating that he is no longer in their service. Any other qualification

to such statement might render the cessation of the services of the Plaintiff

stigmatic. In such an event, the resort to a clause of termination simpliciter

by the Defendant would be futile and the Defendant will have to

acknowledge that the Plaintiff is still in their service and proceed against

him disciplinarily. This it refuses to do. Viewed from any angle, therefore,

a case is made out for issuing an interim mandatory injunction to the

Defendant to issue to the Plaintiff a simple relieving letter stating that he is

no longer in their service. The balance of convenience in issuing such an

interim injunction is clearly in favour of the Plaintiff.

34. Accordingly, an interim mandatory injunction is issued directing the

Defendant to issue to the Plaintiff a relieving letter within a period of seven

days stating that he is no longer in their service. The said letter will not

state that the Plaintiff has abandoned the service or any other qualification

that prevents the Plaintiff from taking any other employment.

35. With the above directions, the interlocutory application is disposed of.

CS (OS) 2309 of 2008

36. Pleadings are complete.

37. The suit be listed before the Joint Registrar on 11th November 2009 for

admission/denial of the documents.

38. It is made clear that the parties should complete the admission/denial of

documents on the date fixed by the learned Joint Registrar for that purpose.

If, for some reason, they are unable to do so, then each party will file an

affidavit within two weeks thereafter indicating in a separate column

alongside the index of documents filed by the other party, which of the

documents is admitted or denied.

39. List before Court on 9th December 2009 for framing of issues.

S. MURALIDHAR, J.

SEPTEMBER 9, 2009 rk