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2008 (3) GCD 2343 (Guj)
Hon’ble Mr. Justice M.R. Shah
Ahmedabad Municipal Corporation
Versus
Lilaben Hiraben
Special Civil Application No. 9693 of 20081—Decided on 26/08/2008
Constitution of India, 1950—Article 227—Continuation in service— Suit for declaration and permanent injunction—Dismissal for default—No proceedings remained pending—Order of dismissal from service—Sustainability—Finding of—After departmental inquiry before imposition of final punishment respondent filed a civil suit for declaration and permanent injunction and secured order on application for temparary injunction that if any final order is passed by Corporation same shall not be implemented for a period of 15 days—Subsequently suit was dismissed for default on 24.10.2007—Corporation after waiting upto 25.02.2008, passed order of dismissal of respondent—On service of the said order respondent filed applications for restoration of suit, condonation of delay and for dis-obedience of Court order for non-implementation of order passed on notice of motion—The trial Court before order of condonation of delay and restoration of suit quashed and set aside the order of termination dated 25.02.2008—In facts it is clear that when said order was passed suit was not pending—It was dismissed, therefore, no order below the notice of motion was pending or was even in existence—It automatically ceased to be in operation at the very moment suit was dismissed—Therefore, the order of termination cannot be said to be in breach of the order passed below notice of motion—Contention on behalf of respondent that once the suit is restored ad interim relief would revive cannot be accepted in the case because on the day order of dismissal was passed neither the delay was condoned for restoration nor suit was restored—The apart where action is already taken during the time when the suit was not pending it cannot faulted—In the facts and circumstance impugned order of trial Court quashing and setting aside the termination order dated 25.02.2008 not sustainable—It is set aside.
Held :
Normally any order in interim application passed below application Exhibit 5 and/or notion of motion, is to be confined during the pendency and final disposal of the suit in the present case, the suit came to be dismissed for non-prosecution on 24.10.2007 and thereafter, even after a period of almost five months, no steps were taken by the respondent-original plaintiff to restore the suit. The petitioner Corporation passed order of termination dated 25.02.2008 and dismissed the respondent from service and the said order of dismissal came to be implemented on 26.02.22008. Thus, at the relevant time, when the order was passed on 25.02.2008 and implemented on 26.02.2008, the suit was dismissed for non-prosecution and the suit as not in existence and consequently there was no order below the notice of motion in existence inasmuch as the order passed below notice of motion is automatically ceased to be in operation, moment the suit is dismissed and, therefore, it cannot be said that at the relevant time when the order dated 25.02.2008 was passed and implemented, the interim order was in operation. Therefore, the order of termination can not be said to be in breach of the order passed below notice of motion. [Para 10]
When the suit is restored, ad interim relief would automatically revive, is concerned it s required to be noted that firstly as on today, there is no specific order passed by the learned City Civil Court restoring the suit. Not only that even the delay in submitting the restoration which was prayed by submitting Misc. Civil Application No. 142 of 2008 is also not condoned. Thus, as on toady, neither the delay in preferring the restoration application is condoned nor the suit is restored to file and, therefore, the contention on behalf of the respondent that once the suit is restored, ad interim relief would revive, cannot be accepted and the said question does not arise. [Para 11]
The further question which is required to be considered is that what will happen to the action which is already taken during the time when the suit was dismissed for non-prosecution and the same was not restored and thereafter the suit is restored. As per this Court in such a situation where any action is already taken during the time when the suit is dismissed for non-prosecution and thereafter the suit is restored and if the contention of the respondent as accepted, the ad interim order would revive on restoration of the suit in that case also, any action taken during the time when the suit was dismissed for non-prosecution and was not in existence, the said revival of ad-interim relief on restoration of the suit would not affect the action already taken during the time when the suit was not in existence and consequently it cannot be said that such an action was illegal and/or in breach of ad-interim order/injunction therefore in the present case the action was taken when the suit was dismissed for non-prosecution and, therefore, even if the contention and submission of the respondent that on restoration of the suit, ad interim relief passed below notice of motion would automatically revive, is accepted, in that case also, as stated above, it will not affect any order passed by the Corporation when the suit was dismissed for non-prosecution and when the suit was not in existence. Further, in the present case as stated above, neither there is any order passed by the Court to restore the suit nor even the delay in preferring the restoration application is condoned. [Para 12]
Law Laid Down :
The interim injunction order would cease on dismissal of suit would not automatically revive on setting aside dismissal order and restoration of suit.
Case Law Analysis :
Nagar Mahapalika, Lucknow vs. Ved Prakash, AIR 1976 Allahabad 264 [Para 7]—Relied on.
Ganesh Prasad Sah Kesari and another vs. Lakshmi Narayan Gupta, AIR 1985 SC 964 [Para 8];; Prithwi Nath Ram vs. State of Jharkhand and Others, 2004 (7) SCC 261 [Para 8]—Distinguished
Application Allowed
M.R. Shah, J.—Rule. Mr. M.B. Gandhi, learned Advocate waives the service of notice of admission on behalf of the respondent.
2. With the consent of the learned Advocate appearing on behalf of the respective parties, both these petitions are taken up for final hearing.
3. As both these petitions arise out of the common order passed in the applications between the same parties, the same are being disposed of by this common judgment and order.
4. By way of this petition under Article 227 of the Constitution of India, the petitioner-Ahmedabad Municipal Corporation has prayed for appropriate writ, order and/ or directions, quashing and setting aside the impugned order dated 11.07.2008 passed by the learned City Civil Judge, Ahmedabad (Mr. J.D. Vyas) in Civil Misc. Application Nos. 297 and 141 of 2008, whereby the learned Judge has ordered that the order dated 25.02.2008 passed by the Corporation be treated as cancelled w.e.f. 26.02.2008 and the service of the respondent be treated as continued. By the said impugned order the learned Judge also restrained the petitioner from making any interference or disturbance in the service of the respondent.
5. The respondent was serving as sweeper (Safai Kamdar) with the petitioner Corporation. The mother of the respondent was working as a sweeper and she was declared unfit, and a representation was made by the respondent to the effect that she was the daughter of Hiraben Gendalbhai, even though she is wife of the son of Hiraben Gendalbhai and requested to appoint her as sweeper in place of Hiraben Gendalbhai. Thus, according to the Corporation, from the very initiation of her service, the respondent did not disclose correct facts and by disclosing false relationship, obtained the job with the petitioner as sweeper and, therefore, chargesheet was served upon the respondent and as per the petitioner Corporation, regular inquiry was held and the inquiry officer after following due procedure of law and after giving sufficient opportunity of hearing to the respondent, made a report to the effect that the charges levelled against the respondent are proved beyond doubt. Thereafter, a regular show cause notice dated 09.02.1995 was issued to the respondent for imposing final punishment. At that stage, the respondent herein institution civil suit being Civil Suit No. 3400 of 1995 inter alia praying for a declaration and permanent injunction. In the said suit, the respondent took out a notice of motion wherein temporary injunction was prayed for by her. The said notice of motion came to be disposed of by the learned City Civil Judge holding that if ay final order is passed by the petitioner Corporation, the same shall not be implemented for a period of 15 days. That thereafter, vide order dated 24.10.2007, Civil Suit No. 3400 of 1995 came to be dismissed for default for want of prosecution. As per the petitioner Corporation, no steps were taken by the respondent for getting the aforesaid civil suit restored and, therefore, vide order dated 25.02.2008, the petitioner Corporation dismissed the respondent from service. That after the service of the aforesaid order, the respondent herein original plaintiff filed three different applications namely Misc. Civil Application No. 141 of 2008 for disobedience of the order passed on the notice of motion; Misc. Civil Application No. 142 of 2008 for condonation of delay as well as Misc. Civil Application No. 297 of 2008 for restoration of the suit. It was contended on behalf of the respondent that order of termination dated 25.02.2008 is in clear breach and in violation of the order passed below notice of motion whereby it was observed that if any final order is passed by the petitioner Corporation, the same shall not be implemented for 15 days and submitting accordingly, in the Misc. Civil Application No. 141 of 2008, it was requested to quash the order of termination dated 25.02.2008. Simultaneously, in the Misc. Civil Application No. 297 of 2008 the responde
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