K. N. Goyal, J. - (1.) THIS is plaintiff's appeal from an order of the trial court refusing to grant temporary injunction. The petitioner was a lecturer in a Degree College and he filed a suit for declaration and permanent injunction with the allegations that his services had been sought to be terminated by the Principal of the college who had no authority to do so. The learned Civil Judge had earlier granted an exparte injunction but the same was vacated after hearing objections of the defendant and it is against the order whereby the exparte injunction was vacated that the plaintiff has come to this court.
(2.) APART from the merits of the case it has been contended on behalf of the respondents by their learned counsel Sri K. B. Sinha that no interim injunction could be granted in view of clause (b) of the proviso to Or. 39 R. 2 (2) CPC. This proviso was added by the U. P. Act No. 57 of 1976 and it reads as follows :- " Provided that no such injunction shall be granted- (b) to stay the operation of an order of transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of or taking charge from, any employee including any employee of the Government. " The contention of the learned counsel for the appellant Sri R. N. Gupta is that this proviso would operate only in a case where an order of termination of service has been passed by the competent authority and not where an order has been passed by an authority who had no competence to do so. An employee who prays for the relief of declaration of continuance in service through a civil suit can go to the court only with the allegation that the impugned termination of service is void. Unless the order is void the suit itself would not be maintainable. The nature of such a suit is different" from that of a suit for damages for wrongful dismissal. Admittedly, the present suit is not one for damages for wrongful dismissal but a suit for declaration of voidness of the termination. Although the suit for declaration and permanent injunction may lie on the ground of voidness yet the proviso lays down that a temporary injunction in that regard will not be granted. In our opinion it is immaterial as to what the basis of alleged voidness of the impugned order is. What is material is that the order complained against has become or is likely to become actually effective defacto even though it may be non-est in the eye of law. The sweep of the proviso is so wide that it takes in even an act of taking of charge from any employee. The words "taking charge" clearly indicate that what the legislature intended was that any effective termination which has come into operation de-facto will not be interfered with at the interlocutory stage by the civil court even though it may be finally upset through a decree of the court. It has been contended in this context by the learned counsel for the respondent Sri Sinha that actually the principal has not passed any termination order but he has merely intimated the petitioner that the appointment of the petitioner which was in a leave vacancy has come to an end due to the expiry of the leave of the person in whose place he had been appointed. It is unnecessary for us to consider this factual controversy because in either view of the matter we are of the opinion that the proviso (b) quoted above bars the grant of temporary injunction even in cases where the termination order is alleged to have been passed by an incompetent authority.
(3.) IT may be mentioned here that U. P. Act No. 57 of 1976 by which the said proviso was added had been enacted after the Central Act No. 104 of 1976 and as such the U. P. amendment prevails under Article 254 of the Constituion as held by a Full Bench in Chandra Rani v. Vikram Singh, 1979 AWC 47. Accordingly the appeal is dismissed. No order is made as to costs. Appeal dismissed.;