Shri Lakshmi Narayan B vs International Orthopedic ...
2014 Latest Caselaw 2997 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 8th July, 2014

+                         FAO(OS) 298/2014

      SHRI LAKSHMI NARAYAN B                 ..... Appellant
                   Through: Mr. Ashok Gupta & Ms. Laxmi
                             Gupta, Advs.
                        Versus

    INTERNATIONAL ORTHOPEDIC REHABILITATION &
    PREVENTION (INDIA) PVT. LTD & ANR         ..... Respondents
                 Through: Mr. Khalid Arshad, Adv.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Caveat No.566/2014

1.    The counsel for the respondents / caveators has appeared. The caveat

stands discharged.

CM No.10756/2014 (for exemption)

2.    Allowed, subject to just exceptions.

3.    The application is disposed of.

FAO(OS) No.298/2014 & CM No.10755/2014 (for stay)

4.    This appeal under Order XLIII Rule 1 (r) of the CPC impugns the

order dated 06.05.2014 (of the learned Single Judge of this Court exercising

Ordinary Original Civil Jurisdiction in CS(OS) no.1071/2014 filed by the


FAO(OS)No.298/2014                                                 Page 1 of 5
 appellant / plaintiff) of dismissal of the application being IA No.6880/2014

filed by the appellant / plaintiff under Order XXXIX Rules 1&2 of the CPC.

5.    We have heard finally the counsel for the appellant / plaintiff and the

counsel for the respondents at this stage of admission only.

6.    The appellant / plaintiff instituted the suit from which this appeal

arises for the reliefs of, i) declaration that the termination of services of the

appellant / plaintiff as the Administration Manager of the respondent /

defendant no.1 company is null and void; ii) for mandatory injunction

directing the respondent / defendant no.2 being the Chairman & Joint

Director of the respondent / defendant no.1 company to allow the appellant /

plaintiff to continue in employment of the respondent no.1 as Administration

Manager; iii) for permanent injunction restraining the respondents /

defendants from interfering with the appellant / plaintiff so continuing in

employment; and, (iv) for recovery of damages in the sum of Rs.27,00,000/-.

7.    The plaint was accompanied with the application aforesaid for interim

relief restraining the respondents / defendants from interfering with the

appellant / plaintiff so continuing in employment.

8.    The learned Single Judge vide the impugned order has dismissed the

application for interim relief observing that as per the contract of

FAO(OS)No.298/2014                                                    Page 2 of 5
 employment of the appellant / plaintiff with the respondent / defendant no.1

also, the employment of the appellant / plaintiff was terminable by a three

months notice and that a contract of private employment, as the contract of

the appellant / plaintiff with the respondent / defendant no.1 was, is distinct

from public employment.         Reliance in this regard was placed on the

judgment of this Court in L.M. Khosla Vs. Thai Airways International

Public Company Ltd MANU/DE/3868/2012.

9.    The counsel for the appellant / plaintiff has invited our attention to the

"Service Rules for Staff" of the respondent / defendant no.1 company

applicable to all employees whether in managerial position or otherwise and

prescribing the age of retirement of 58 years and has contended that the

appellant / plaintiff is only 55 years of age and has three years of service left.

Attention is also invited to Ahmedabad Education Society Vs. Gilbert B.

Shah (2004)1 SCC 612 holding that the employees were entitled to continue

up to 60 years of age, being the age of retirement in that case.

10.   Both the aforesaid contentions are misconceived. The Service Rules

of the respondent / defendant no.1 Company relied upon, themselves under

the head "Termination of Service" provide that except as may be provided in

the letter of appointment, services of an employee may be terminated at any

FAO(OS)No.298/2014                                                     Page 3 of 5
 time by three months notice in writing or salary in lieu thereof. It is thus not

as if even under the said Rules every employee has a right to continue in

employment up to the age of retirement of 58 years.

11.   As far as the judgment relied upon is concerned, the employment

therein was governed by the Bombay Primary Education (Gujarat

Amendment) Rules, 1978 and cannot be equated with the employment of the

appellant / plaintiff with the respondent / defendant no.1 which is a private

limited company and which has itself drawn up its Service Rules.

12.   Else the legal position is abundantly clear from the plethora of

judgments discussed in the judgment aforesaid of this Court in L.M. Khosla

(supra). Reference in this regard may also be made to Pearlite Liners Pvt.

Ltd. Vs. Manorama Sirsi (2004) 3 SCC 172. The interim relief claimed by

the appellant / plaintiff is in the nature of enforcement of a contract of

personal employment and which is not permissible in law. The remedy if

any of the appellant / plaintiff is of damages only and which has already

been claimed in the suit by seeking damages equivalent to the salary for the

balance period for which the appellant / plaintiff claims to be entitled to

continue in employment.




FAO(OS)No.298/2014                                                   Page 4 of 5
 13.   We therefore do not find any merit in the appeal which is dismissed.

We however refrain from imposing any costs on the appellant / plaintiff.




                                                         CHIEF JUSTICE



                                             RAJIV SAHAI ENDLAW, J.

JULY 08, 2014 „gsr‟