1994 Supreme(Bom) 167

IN THE HIGH COURT OF BOMBAY
R.G. Vaidyanatha, J.
Devi Kewalram Madrani of Bombay .... Plaintiff.
Versus
Premier High School and others .... Defendants.
Short Cause Suit No. 332 of 1978, decided on 4-8-1994.
Advocates appeared :
S.A. Gandhi with Ms. Jayashree Nambiar i/b Vinod Mistry Company, for plaintiff.
Satish Shah with Ramesh Chandra, for defendants

Headnote:Section 73- Teacher-Termination of from service-Compensation for -When three years salary be adequte?

       Held-In the present case, there is no pleading much less evidence of the plaintiff to show as to what she has done to mitigate the damages. The plaint is blissfully silent on this point. We cannot expect the Plaintiff to sit idle for all these 20 years. She must have done some job and she must have earned some money and then she could have asked for the loss suffered by her as a result of the illegal termination. The plaintiff is not even a married woman but a spinster naturally she would have done some job to earn her livelihood.

       The Court must also take into consideration about the allegations made in the written Statement against the plaintiff about her indulging in strike etc. that is additional ground for not considering the question of reinstatement. Then we must also take into consideration that we are concerned with a private management which, is running a school. He may take judicial notice that the salaries of the employees have been raised from time to time and the present salary of a teacher which the Court can take judicial notice is about Rs. 4,000/- and odd. If the plaintiff is to be paid arrears of salaries for these 20 years and that too taking into account the revised salary from time to time, it will work out to Rs. 6 to Rs. 8 lacs which may ruin the first defendant school. Hence such a drastic step cannot be taken.

       In the circumstances three years salary would be just and reasonable to compensate for illegal termination of her service.

       In the Schedule to the plaint at page 33, Plaintiff has shown arrears of salary for last three years including rise in salary as per the Wages Commission at Rs. 20,554.98 p. In Court view this amount should be granted rounding it off to Rs. 30,000/-.

       The Plaintiff is entitled to compensation of Rs. 30,000/- for illegal termination of her services in addition to current interest from the date of suit. Issue No.5 is answered accordingly.

       LIMITATION ACT, 1963

       Section 3, Article 55- Teacher-Limitation for termination of service of-Late registration-Its effect-Limitation goes back to suits filing date.

       SECONDARY SCHOOLS CODE

       Rule 75, 13.

       Teacher-Service of-His termination be governed by Code in case institution getting grant in aid-Effect of absence of teacher without proper application for leave.

       Held, according to the pleadings the plaintiff says that her service conditions were governed by the Code for Recognition of and Grant-in-aid to Secondary Schools thereinafter referred to as the Code. According to the defendants, the school is governed by its own Rules and conditions in one breath the defendants want to say that they were governed by their own Rules but in another breath they say that they have taken action against the plaintiff for abandonment of service under Clause 75.13 of the Code. Having realised this inconsistent stand taken by defendant at the time of final hearing, the learned Counsel for the defendants fairly conceded that the school is governed by the Code.

       Therefore, it is common ground that services of all the teachers including the plaintiff were governed by the Code which was in force in 1975. Court is using this word about existing of this Code in 1975 since there are number of amendments subsequently in 1976 and 1978.

       The first part of the rule says that application for leave or extension of leave should be made well within time. The Court is for a moment not concerned with the first part. The second part under which great stress has been laid by the principal to hold that the plaintiff has abandoned the service provides that if an employee does not apply for leave within seven days of the expiry of leave, for further leave, it amounts to abandonment of service. Held the second part comes into picture only when an employee has already gone on leave and remains absent after the expiry of leave for 7 days or more and without applying for leave before the expiry of the leave period,

       The second part of the Rule which provides for abandonment of service cannot and does not apply to the first application for leave. The reason is obvious. The Rule is that a teacher who goes on leave may indefinitely not return at all and therefore, a duty is cast on employee who goes on leave that the should not remain absent for more than 7 days after the expiry of leave unless he files an application for extension of leave before the expiry of leave.

       By any stretch of imagination, the second part of the Rule on which the Management is relying cannot be applied to the first application for leave. Therefore, the theory of abandonment of service when an employee was absent for 5 days or 6 days cannot be pressed into service at all, It is not as if the Management has no remedy at all. If a teacher remains absent unauthorized then the Management can issue a show cause notice and hold an inquiry and take necessary action according to the Code,

       As rightly argued by the Counsel for plaintiff, the principles of natural justice require that a show cause notice to be issued to the teacher as why she should not be held to have abandoned the service within the meaning of Rule 75.13 of the Code and on getting reply from the teacher, necessary action should be taken.

       The Rule audi alteram partem applies even to administrative matters.

       The Supreme Court has stated even if there is no express provision in a statute, still the rules of natural justice require that an opportunity must be given before any action is taken on the administrative side.

       Section 14-Secondary Schools Code, Rule 74.13-Scope of.

       The relief asked for by the plaintiff amounts to enforcement of a contract of service. It is a relief of specific performance of a contract of service. There is a bar to grant such a relief as a court could see from Section 14 of the Specific Relief Act, 1963. The section says that certain contracts cannot be specifically enforced and one such contract is mentioned in Section 14 (1) (b).

       The law therefore, is clear that Court cannot enforce a contract of service in common law. In case of relationship between master and servant, a master has no doubt powers to terminate he service of a servant at any time and without giving any reason. A servant cannot get a decree for specific performance of a contract of service against the matter. Of course if the order of termination is illegal or bad in law, the servant is not without a remedy, he can sue the master for damages for breach of contract. He can be compensated by granting damages for the breach of contract. But he cannot specifically enforce the contract of service.

       In recent times, the trend of judicial opinion is that this bar against specific performance of a contract of service does not apply to certain categories of service. The exceptions are when it pertains to a Government servant since he is covered by Article 311 of the Constitution, regarding Industrial Labourers who are covered by the Industrial Law and then employees covered by certain statutes the like University Act Local Municipalities Act etc. Except these three categories no others can claim the relief of specific performance of a contract of service. Even then the employees whose services are terminated illegally can always maintain an action for damages for breach of contract.