1963 Supreme(SC) 123

SUPREME COURT OF INDIA
15th April, 1963
B.P. SINHA, C.J.I., J.C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.
S. R. Tewari, Appellant
Versus
The District Board Agra now the Antarim Zila Parishad, Agra through its Secretary and another, Respondents.
Civil Appeal No. 304 of 1962.
Advocates Appeared
Mr. S. T Desai, Senior Advocate, (Mr. J. P. Goyal, Advocate, with him), for the Appellant; Mr. C. B. Aggarwala, Senior Advocate. (Mr. C. P. Lal, Advocate, w ith him), for the Respondent No.1, Mr. K. S. Hajela, Senior Advocate, (Mr. C. P. Lal, Advocate, with him). For the Respondent No. 2

Headnote:Contract of personal service enforceability and exceptions

       – under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to well recognised exceptions. It is open to the courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by so doing the State is in effect forced to continue the servant whom it does not desire to employ. Similarly under the industrial law, jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker, when he does not desire to employ, is recognized. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, even if by making the declaration the body is compelled to do something which it does not desire to do, as held in the case of S.R. Tewari v. District Board, AIR 1964 SC 1680 = 1964(3) SCR 55. To the some effect is the decision of the Supreme Court in Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandera Kiran Tyagi, AIR 1970 SC 244 = 1964(3) SCR 250, having observed that the position in law is that no declaration to enforce a contract of personal service will normally be granted. But there are certain well-recognized deceptions to this rule, and they are to grant such a declaration in appropriate case regarding (1) A public servant, who has been dismissed from service in contravention of Article 311,(2) Reinstatement of a dismissed worker under Industrial law by labour of Industrial Tribunals . (3) A statutory body when it has acted in breach of mandatory obligation, imposed by statute. In Indian Air Lines Corporation v. Sukhdeo Rai, AIR 1971 SC 1828, it was observed that it is well settled principle that when there is purported, termination of a contract of service, a declaration that the contract of service still subsisted, would not be made in the absence of special circumstances because of the principle that courts do not be ordinarily grant specific performance of service. This is so, even in cases where the authority appointing an employee was acting in exercise of statutory authority. The relationship between the person appointed and the employer would in such cases be contractual, i.e. as between a master and servant, and the termination of that relationship would not entitled the servant to a declaration that his employment had not been validly determined.

       To the same effect is the decision in Bank of Baroda v. Jewan Lal Malhotra, 1970(2) Lab LJ 54 (SC). In the Sirsi Municipalities v. Cecelia Kom Francis Tellis, AIR 1973 SC 855 = 1973 (3) SCR 348, it was observed that the cases of dismissal of a servant fall under three board heads, purely by contract of employment. Any breach of contract in such a case enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable for founding a declaratoruy ofjudgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of Specific Performance of contract for personal service. Such a declaration is not permissible under the law of Specific Relief Act. The second type of cases of master and servant arises under Industrial Law. Under that branch of law a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial Law. This relief is a departure from the reliefs available under the Indian Contract Act and the Specific Relief Act which do not provide for reinstatement of a servant. The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute. On a consideration of the authorities mentioned above, it is therefore, clear, as held in the case of Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888, that a contract of personal service cannot ordinarily be specifically enforced and a 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 recognized 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 or violation of the mandatory provisions of the statute – see also decision in the case of Dr. Bool Chand v. Chancellor, Kurukshetra University, AIR 1968 SC 292.