ORISSA STATE COMMERCIAL TRANSPORT CORPORATION LTD. REPRESENTED BY ITS SECRETARY SRI C.B.S. RAMCHANDRA RAO Vs. SRI SATYANARAYAN SINGH AND ANR.
LAWS(ORI)-1973-11-24
HIGH COURT OF ORISSA
Decided on November 15,1973

Orissa State Commercial Transport Corporation Ltd. Represented By Its Secretary Sri C.B.S. Ramchandra Rao Appellant
VERSUS
Sri Satyanarayan Singh And Anr. Respondents

JUDGEMENT

G.K. Misra, C.J. - (1.) SRI Satyanarayan Singh, Managing Director; Orissa State Commercial Transport Corporation Ltd. (opposite party No. 1) filed Title Suit No. 132 of 1973 on 24 -8 -1973 in the Court of the Subordinate Judge, Cuttack, impleading State of Orissa through the Secretary, Commerce Department (opposite party No. 2) as Defendant No. 1 and the Orissa State Commercial Transport Corporation Ltd. (Petitioner)(hereinafter to be referred to as the Corporation) as Defendant No. 2. All the averments in the plaint are not material in connection with the order of ad -interim injunction. Facts relevant for disposal of the ad -interim injunction may only be stated. A fact which was omitted in the plaint but has been admitted in course of hearing of this revision petition is Notification No. 1926 -PD Bhubaneswar, 24th November, 1970. It runs thus; The Governor of Orissa has been pleased to nominate Sri S.N. Singh at present working as the Mechanical Engineer, Orissa State Commercial Transport Corporation Ltd. as Director of the said corporation In its meeting dated 2nd December, 1970 the Corporation resolved appointing the Plaintiff as the Managing Director in place of Sri R.N. Das, IAS. Plaintiff assumed charge as Managing Director with effect from 22nd of January, 1971. Defendant No. 1 approved the scale of pay of Rs. 1050 -50 -1500 recommended by the Board of Directors for the Plaintiff with effect from the date he assumed charge as Managing Director. The rules of the Orissa Government regarding service conditions of its employees were made applicable to the Plaintiff. The Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 framed under Article 309 of the Constitution are applicable to him. Plaintiff averred that he performed very good service and his character roll was good. In course of time there was a conspiracy amongst the IAS Officers, mainly engineered at the instance of Sri R.N. Das, IAS, to oust the Plaintiff from the post of Managing Director. His character roll was not made available to the Governor and without any disciplinary proceeding being drawn against him, his nomination as a Director was withdrawn by Notification No. 3081 -,PD. Bhubaneswar 22nd August 1973 (hereinafter to be referred to as the impugned notification). The notification runs thus: The Governor of Orissa has been pleased to cancel the nomination of Sri S.N. Singh as Director of the Orissa State Commercial Transport Corporation Ltd. under Article 75 of the Memorandum and Articles of Association (hereinafter to be referred to as the Memorandum) of the said Corporation with immediate effect. The impugned notification is challenged as being illegal and mala fide and not binding on the Plaintiff. On the basis of the withdrawal of nomination Defendant No. 2 is about to prevent the Plaintiff from discharging his official duties as the Managing Director. Any attempt by the Directors of the second Defendant in preventing the Plaintiff in due discharge of his duties is illegal and invalid. Unless Defendant No. 1 is permanently injuncted from enforcing the impugned notification and Defendant No. 2 is injuncted from passing any resolution to remove the Plaintiff he will sustain irreparable loss. In paragraph 18 of the plaint there was an averment to the effect that the Plaintiff apprehending Government action served a notice under Section 80, Code of Civil Procedure on Defendant No. 1 on 3rd May, 1973 and two months time has elapsed since the receipt of the notice by Defendant No. 1. The Plaintiff asked for the following reliefs: (a) for a declaration that the impugned notification of the State Government is illegal and invalid or alternatively for a declaration that the Plaintiff validly continues as the Managing Director of the second Defendant; (b) to issue a permanent injunction restraining Defendant No. 1, its agents and servants from enforcing the impugned notification and restraining Defendant No. 2, its agents and Directors from interfering in any manner with the Plaintiff 's due discharge of his office as the managing Director of the second Defendant; (c) to issue a permanent injunction restraining Defendant No. 2 from passing any resolution in terms of the impugned notification. In paragraph 20 of the plaint the date of accrual of the cause of action was given in the following terms: That the cause of action for the suit arose, within the jurisdiction of this Court on 22 -8 -1973 when the Government order dated 22 -8 -1973 was served on the Plaintiff purporting to terminate his service withdrawing his nomination. For the purpose of Court -fee and jurisdiction the suit was valued at Rs. 2, 100/ -. On the date of filing of the plaint a petition supported by an affidavit for an ad -interim injunction under Order 39, Rules 1 and 2, Code of Civil Procedure was filed which was registered as Misc. Case No. 252 of 1973 on 25 -8 -1973. The learned Subordinate Judge passed an ex -parte ad -interim injunction on 28 -8 -1973 restraining the Defendants from enforcing the impugned notification in any manner whatsoever and from passing any resolution interims thereof or for preventing the Plaintiff to discharge his duties as the Managing Director of Defendant No. 2 (Corporation). Notices were issued to the Defendants to show cause by 21.9 -1973 as to why the order of ad -interim injunction shall not be made absolute till the disposal of the suit.
(2.) DEFENDANTS 1 and 2 respectively filed their counter on 4 -9 -1973 and 3 -9 -1973. They prayed that the ad -interim injunction should be expeditiously heard. In the counters filed by the Defendants in the miscellaneous case several pleas assailing the order of ad -interim injunction were taken. The main pleas were that the suit was not maintainable as there was no service of notice under Section 80, Code of Civil Procedure on Defendant No. 1 in respect of the cause of action mentioned in paragraph 18 of the plaint; the Governor had unrestricted power to cancel the nomination of the Plaintiff as a Director under Article 75 of the Memorandum; the Plaintiff having ceased to be a Director on 22 -8 -1973 by the impugned notification automatically ceased to be the Managing Director of Defendant No. 2; the order of ad -interim injunction was invalid as it was issued at a time when the Plaintiff was no loner the Managing Director; the Plaintiff suffered no irreparable injury; he had no prima facie case and the balance of convenience was in favour of the Defendants; continuance of the employment of the Plaintiff after his removal from service on 22nd of August, 1973 was not capable of specific performance and as such any order of interim injunction is contrary to law; the action of the Defendants was not actuated by any mala fides.
(3.) AFTER hearing the parties on 7th, 8th and 10th of September, 1973 the learned Subordinate Judge made the ad -interim injunction absolute on 17 -9 -1973. The learned Subordinate Judge recorded the following findings: (i) Prima facie, mala fide on the part of the State Government is apparent on the face of the record. (ii) Notice served on Defendant No. 1 under Section 80, Code of Civil Procedure on 30 -4 -1973 is a valid notice in respect of the cause of action involved in the suit in the facts and circumstances of this case. (iii) Since mala fide is patent on the face of the record; the impugned notification appears to be a void one and the question of giving effect to it does not deserve any consideration at this stage. (iv) Breach of employment in this case is capable of specific performance. (v) Plaintiff has a prima facie case and the balance of convenience is in his favour.;


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