2004 Supreme(SC) 23

2004(1) Supreme 56
SUPREME COURT OF INDIA
(From Karnataka High Court)
Brijesh Kumar & Arun Kumar, JJ.
M/s. Pearlite Liners Pvt. Ltd. -Appellant
versus
Manorama Sirsi -Respondent
Civil Appeal No. 5348 of 2002
Decided on 6-1-2004
Counsel for the Parties :
For the Appellant : Rajeev Dhavan, Sr. Advocate, S.N. Bhat, D.P. Chaturvedi, Rishi Raj Baruah, Advocates.
For the Respondent : Ms. Kiran Suri, Advocate.

IMPORTANT POINT
A contract of personal service cannot be specifically enforced and Court will not give a declaration that contract subsists and employee continues to be in service against the will and consent of employer.

Headnote:Specific Relief Act, 1963-Contract of personal service-Specific performance cannot be enforced-Court will not give a declaration that contract subsists and employee continues to be in service against will and consent of employee-Respondent plaintiff employed in appellant company was transferred to other office of Company and she failed to comply with transfer order-Charge-sheet was issued-Suit for declaration that transfer order was illegal, void and injunction to restrain defendant from holding any inquiry-No written contract of service between parties and no pleadings that transfer order was in violation of any term of employment-Prayer in suit would amount to imposing an employee on employer which was not permissible in law-Trial Court was right in rejecting the plaint.

       Held : It is a well settled principle of law that a contract of personal service cannot be specifically enforced and a court will not give a declaration that the contract subsists and the employee continues to be in service against the will and consent of the employer. This general rule of law 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. [Per Executive Committee of Vaish Degree College, Shamli and Ors. vs. Lakshmi Narain & Ors. {(1976) 2 SCC 58}]. The present case does not fall in any of the three exceptions. It is neither a case of public employment so as to attract Article 311 of the Constitution of India nor the case is under the Industrial Disputes Act. The defendant is not a statutory body. There is no statute governing her service conditions. The present is a case of private employment which normally would be governed by the terms of the contract between the parties. Since there is no written contract between the parties, the dispute cannot be resolved with reference to any terms and conditions governing the relationship between the parties. The plaintiff has neither pleaded nor there has been any effort on her part to show that the impugned transfer order was in violation of any term of her employment. In the absence of a term prohibiting transfer of the employee, prima facie the transfer order cannot be called in question. The plaintiff has not complied with the transfer order as she never reported for work at the place where she was transferred. As a matter of fact, she also stopped attending the office from where she was transferred. Non-compliance of the transfer order by the plaintiff amounts to refusal to obey the orders passed by superiors for which the employer can reasonably be expected to take appropriate action against the concerned employee. Even though it is a case of private employment, the management proposed to hold an enquiry against the delinquent officer, that is, the plaintiff. In case of such insubordination, termination of service would be a possibility. Such a decision purely rests within the discretion of the management. An injunction against a transfer order or against holding a departmental enquiry in the facts of the present case would clearly amount to imposing an employee on an employer, or to enforcement of a contract of personal service, which is not permissible under the law. An employer cannot be forced to take an employee with whom relations have reached a point of complete loss of faith between the two. (Paras 7 and 8)

       Therefore, a declaration that the transfer order is illegal and void in fact amounts to imposing the plaintiff on the defendant inspite of the fact that the plaintiff allegedly does not obey order of her superiors in the Management of the defendant Company. Such a relief cannot be granted. Next relief sought in the plaint is for a declaration that she continues to be in service of the defendant Company. Such a declaration again amounts to enforcing a contract of personal service which is barred under the law. The third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her. If the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her. The management cannot be restrained from exercising its discretion in this behalf. Ultimately, this relief if granted would indirectly mean that he court is assisting the plaintiff in continuing with her employment with the defendant Company, which is nothing but enforcing a contract of personal service. Thus, none of the reliefs sought in the plaint can be granted to the plaintiff under the law. The question then arises as to whether such a suit should be allowed to continue and go for trial. The answer in our view is clear, that is, such a suit should be thrown at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, to be tried at all? Accordingly, we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf. The High Court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits. (Para 9)