- (1.) THE plaintiffs have filed this suit against Mrs. Achamma Mathew, defendant, for the grant of a permanent injunction against the defendant restraining her from continuing in office as the General Secretary of the Young Women's Christian Association plaintiff No. 1 and from interfering and obstructing plaintiff No. 1 and/or its administrator from carrying out the normal functions and duties of the Association and also from handling the finances of plaintiff No. 1 in any manner whatsoever. Alongwith the suit the plaintiff field this application being 1. A. No. 9437/88 for the grant of temporary injunction in the same terms pending the decision of the suit. On this application an ex parte temporary injunction was granted on 28th December, 1988 in favour of the plaintiffs against the defendant restraining her from the duties of the General Secretary of the plaintiff No. 1 society which were being discharged by one Mrs. Zenobia Mehra, the alleged General Secretary of plaintiff No. 1 appointed after the Young Women's Christian Association of Delhi and others vs. Mrs. Achamma Mathew (2. . . Page 2 of 6 g Women's Christian Association of Delhi and others vs. Mrs. Achamma Mathew (2. . . Page 2 of 6 defendant was superannuated as the General Secretary of plaintiff No. 1 society. The case of the plaintiff is that the defendant had attained the age of superannuation on 10th November, 1987 when she completed 58 years of her age. A suit being Suit No. 918/87 cititled Ms. Rani Thomas and others v. Ms. Rasamma Thomas and others, is pending before Mahinder Narain, J. Plaintiff No. 2 Mrs. Grace Joseph of the present suit is defendant No. 4 in that other suit and Mrs. Achamma Mathew, defendant in the present suit is defendant No. 13 in that suit. An application being 1. A. No. 9345 of 1987 was moved by Mrs. Grace Joseph, plaintiff No. 2 of the present suit in the said other suit stating therein that Mrs. Achamma Mathew had attained the age of superannuation on becoming 58 years old on the said date and that Mr. Justice Prakesh Narain, who was appointed the Administrator of the affairs of plaintiff No. 1, may be directed to hold an inquiry about the same to take the necessary action in the matter of superannuating the defendant. No reply to that application was filed by the defendant and the said application was still pending when the present plaintiff filed the present suit. An application being I. A. No. 3 of 1989 was then moved by the defendant in the present suit under Order 39 Rule I. C. P. C. for vacating the ex parte temporary injunction as granted by this court. Both these applications are inter-connected. I shall dispose of both these applications by this single order.
(2.) PLAINTIFF No. 1 society, relying on the material as collected by the Board of Management, in its meeting held on 16th December, 1988 passed a Resolution resolving that the defendant has attained the age of superannuation on 10th November, 1987, according to the date of birth as recorded in her Certification of Baptism, and stands retired from the services of the Wca with effect from that date in terms of para 12 of the Rules and Procedure for Appointment/termination of Service of the Staff of the YWCA. The case of the plaintiffs is that the services of the defendant having attained the age of superannuation as held by the Board of Management of the Ywca in its said meeting, the defendant had no right whatsoever to give out that she continues to be the General Secretary of plaintiff No. 1 and to interfere in any manner in the affairs of plaintiff No. 1 society, but that she has been giving out that she continues to be the General Secretary of plaintiff No. 1 society and tried to interfere with the affairs of plaintiff No. 1. The first question for consideration is that plaintiff No. 1 society, having passed the said resolution holding that the defendant had Young Women's Christian Association of Delhi and others vs. Mrs. Achamma Mathew (2. . . Page 3 of 6 g Women's Christian Association of Delhi and others vs. Mrs. Achamma Mathew (2. . . Page 3 of 6 attained the age of superannuation and having superannuated her in service, can the defendant insist to interfere with the management or working of plaintiff No. 1 society on the plea that she has been wrongly superannuated by the Board of Management of the plaintiff No. 1 society as, according to her, her date of birth is 10th November, 1939 and not 10th November 1929. Mr. V. P. Singh learned counsel for the defendant submitted that the court has to form a prima facie opinion as to what is the correct date of birth of the defendant and if the court finds prima facie that the date of birth of the defendant is not 10th November 1929, but is 10th November 1939 or any date other than 10th November 1929 so that the defendant has not attained the age of 59 years till now, the court in the case should not lend its aid to the plaintiffs in granting the temporary injunction to them as prayed for by them. It was submitted that question as to whether the defendant was born on 10th November 1929 as contended by the plaintiffs or on a later date, namely, on 10th November 1939 or 10th November 1932 as is now being stated by the defendant before the court and pending the decision by the court in the suit and at this stage the petition court has to form a prima facie opinion in the matter and if the prima facie view is in favour of the defendant, no temporary injunction as prayed by the plaintiffs should be granted in their favour. I will go into the question of the correctness or otherwise of this proposition little later, assuming that the court has to see prima facie as to which of the two versions is correct. I am of the clear opinion that the stand of the defendant as taken by her in her written statement is wholly untenable. The defendant in para 9 of her written statement has stated that her actual date of birth is 10th November 1939. This written statement is duly verified and supported by an affidavit of the defendant. The defendant also filed Annexure 'a' with her affidavit in support of her contention that her date of birth is 19th November 1939. This Annexure 'a' is a copy of a declaration made by the defendant to the Employees Provident Fund Scheme Authorities wherein she gave her date of birth as 10th November 1939. I recorded the statement of defendant on oath today wherein the defendant took a complete somersault. She gave her date of birth as 10th November 1932 against her case as disclosed in her written statement that date of birth was 10th November 1939 and not 10th November 1929 as has been taken by the plaintiff. It is obvious that the defendant has been two contrary stands which are wholly irreconcilable. No attempt was made by Mr. Singh, learned counsel for the defendant, to explain as to Young Women's Christian Association of Delhi and others vs. Mrs. Achamma Mathew (2. . . Page 4 of 6 g Women's Christian Association of Delhi and others vs. Mrs. Achamma Mathew (2. . . Page 4 of 6 under what circumstances the defendant has set up her case in her written statement wherein she asserted that her date of birth was 10th November 1939. It appears that the defendant having realised that her stand that the date of birth is 10th November 1939 is not tenable, took up a different stand today when her statement was recorded on oath. Apart from this there is material on the record from which it appears that the correct date of birth of the defendant is 10th November 1929 and not on 10th November 1939 or 10th November 1932. In the Baptism Certificate issued by St. Dominic's Cathedral, Kanjirapally 686507 on 25th July 1987, the date of birth of Catherine daughter of Mathai and Anna Ghoolackel of Ernakulam, is given as 10th November 1929. The Certificate further says that this pupil was baptised on 17th November 1929. It appears from the record that this certificate relates to Achamma Mathew, defendant, and Catherine was the name given to her at her birth. The plaintiffs have also produced a copy of the facts sheet for employed personnel obtained by them from Ywca of Bombay and a copy of letter dated 23rd November 1987 obtained by them from the Headmistress, St. Mary's C. G. H. S. Ernakulam, addressed to the Director of Public Instruction. In the former document the defendant had herself admittedly given her date of birth as 10th November 1932. By the second document the Headmistress informed the Director of Public Instruction that five daughters of one Mathew Choolakkal, Ernakulam, were admitted to her school. The dates of birth and the classes which these five daughters of Mathew Choolakkal had joined in this school are given in this letter. The name of P. M. Chammokutty is mentioned at the fourth serial number in this certificate and her date of birth is given as 25th March 05 of the Malayalam Calendar which is equivalent to 10th November 1929. The defendant in her statement on oath recorded today admitted that P. M. Chammakutty is her name. It has been contended by the defendant's counsel that in the Bapatism Certificate the name of the child given is Catherine, whereas the name of the defendant is Achamma Mathew. Some other documents as placed by the plaintiff on the record go to point out, that Catherine was the name given to the present defendant at the time of her birth. The Director of Public Instruction vide his letter dated 11th December 1987 (copy of page 10 of the documents filed by the plaintiffs today in court) under the subject has mentioned 'date of birth of Miss. Achamma (Catherine)'. This letter was written by the Director of Public Instruction to plaintiff No. 2 in response to his letter asking for the Young Women's Christian Association of Delhi and others vs. Mrs. Achamma Mathew (2. . . Page 5 of 6 g Women's Christian Association of Delhi and others vs. Mrs. Achamma Mathew (2. . . Page 5 of 6 date of birth of Miss. Achamma Mathew Choolakkal. By this forwarding letter dated 11th December 1987 the Director of Public Instruction had forwarded the said copy of letter dated 23rd November 1987 from the Headmistress. St. Mary's C. G. H. S. Ernakulam, addressed to the Director of Public Instruction wherein the name of P. M. Chammakutty, defendant, appears as one of the five students, being the daughters of Mathew Choolakkal posted in the said school. The fact that the Name Catherine was given in brackets against the name of Miss Achamma is a pointer to the fact that Achamma at some point of time was also known as Catherine. On the basis of the material on record as adduced by the plaintiffs, there is a strong prima facie case in favour of the plaintiffs to show that the date of birth of the defendant is 10th November 1929 and not 10th November 1989 or even 10th November 1932. That being so the plaintiffs are entitled to injunction as prayed for by them in the suit. It may now be stated here that even otherwise no relief can be granted in favour of the defendant directing the plaintiffs to keep the defendant in their employment. It is a settled law that a contract of personal service cannot be specifically enforced. In the case of a wrongful termination of employment of a contractual employee, the latter's remedy is only to damages for wrongful dismissal. He however, cannot insist on being allowed to continue to work as an employee of his employer against their wishes. The Supreme Court in the case Executive Committee off Vaish Degree College Shamli and others v. Lakshmi Narain and others (1976-II-LLJ163 at 175) held as below : "on a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot, ordinarily be specifically enforced and court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognised exceptions (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India, (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach of violation of the mandatory provisions of the statute".
(3.) SIMILAR view was taken by the Division Bench of the Calcutta High Court in the case in Subh Narayan Singh v. Hari Singh Havalskha and others 1976 (1) S. L. R. 150. It was held that even if the services of the employee in that case were wrongfully terminated, damages for such wrongful termination could be the proper remedy and the Civil Court was not competent to grant relief of reinstatement in the declaratory suit as filed by the appellant in the case. That being the position of law, I fail to see as to how the defendant could insist on her reinstatement with the plaintiff society even on a final finding being returned in her favour that she has not attained the age of superannuation on 10th November 1987 as contended by the plaintiffs. In view of what has been said above, I allow the application of the plaintiffs. The ex-parte temporary injunction as passed in favour of the plaintiff against the defendant is made absolute till the decision of the suit. The application of the defendant being I. A. No. 3 of 1989 is dismissed. I need hardly say that observations made in this order are for the purpose of deciding the two applications of the parties and they would not prejudice the case of either party at the trial of the suit. The temporary injunction granted in favour of the defendant by order dated January 2, 1989 also stands vested.;