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2018 Supreme(P&H) 4783
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Raj Mohan Singh, J.
Hitachi Plant Technologies India Pvt. Ltd. - Appellant
Versus
Sanjib Kumar Jena And Others - Respondent
CR No. 2085 Of 2018(O&M)
Decided On : 21-12-2018
Suhail Sehgal, Advocate, for the Appellant; Mr. Sanjib Kumar Jena, In Person, for the Respondent No. 1
The central legal point established in the judgment is that a contract of personal service cannot be specifically enforced through a civil court, except in specific exceptions such as public servants' removal, reinstatement under Industrial Law, or breach of statutory obligations.
Headnote:
Specific Relief Act - Contract of Personal Service - Section 41(e), Section 16 - Order 7, Rule 11 CPC - [DECLARATION, INJUNCTION, TERMINATION, CORPORATE RESTRUCTURING, SPECIFIC ENFORCEMENT] - [Section 41(e), Section 16 of the Specific Relief Act, Order 7 Rule 11 CPC] - The court discussed the applicability of Section 41(e) and Section 16 of the Specific Relief Act in the context of a contract of personal service and the bar under Order 7, Rule 11 CPC. It highlighted the general rule that a contract of personal service cannot be specifically enforced, except in specific exceptions such as public servants' removal, reinstatement under Industrial Law, or breach of statutory obligations. The court referred to legal provisions and precedents to support its decision that the plaintiff's case did not fall within these exceptions, and therefore, the suit was barred from enforcement through a civil court.
Fact of the Case:
The defendant/petitioner filed an application for rejection of the plaintiff/respondent's suit for declaration and injunction regarding termination, citing the inapplicability of Section 41(e) and Section 16 of the Specific Relief Act and the bar under Order 7, Rule 11 CPC. The trial court dismissed the application, emphasizing the need for a hearing for the plaintiff.
Finding of the Court:
The court found that the plaintiff's case did not fall within the exceptions allowing for specific enforcement of a contract of personal service, as outlined in legal provisions and precedents. Therefore, the suit was barred from enforcement through a civil court.
Issues: The issues revolved around the applicability of Section 41(e) and Section 16 of the Specific Relief Act, and the bar under Order 7, Rule 11 CPC in the context of the plaintiff's suit for declaration and injunction regarding termination.
Ratio Decidendi: The court's decision was based on the interpretation of legal provisions and precedents, highlighting the general rule that a contract of personal service cannot be specifically enforced, except in specific exceptions, which did not apply to the plaintiff's case.
Final Decision: The revision petition was allowed, and the impugned order was set aside, leading to the rejection of the plaintiff's suit.
JUDGMENT
Raj Mohan Singh, J. - Petitioner has challenged the order dated 26.02.2018 passed by Civil Judge (Junior Division), Gurugram vide which the application under Order 7, Rule 11 CPC filed by the defendant/petitioner for rejection of plaint was dismissed.
2. Respondent/plaintiff filed a suit for declaration and consequential relief of permanent injunction with the following prayers:-
I. declare termination letter dated 16.03.2017 invalid and illegal.
II. order lifting of corporate veil, to unearth real position of respondents;
III. allow the plaintiff to work regularly in the respondent organization and the other group companies with whom the plaintiff is a regular shared resource;
IV. arrange for alternate job in any of the respondent's other units in India or overseas;
V. pay past salary and all other dues immediately;
VI. pay salary and dues regularly and timely in compliance with the law;
VII. to instruct all the respondent's functional heads and Managers of the plaintiff to adhere to the laws of the land, do not threat the plaintiff or exercise any coercion in any manner, shape or format.
3. Defendant/petitioner is a private limited company. Defendant/petitioner filed an application under Order 7, Rule 11 CPC for rejection of the plaint on the ground that the plaintiff/respondent was appointed as 'AGM' by the defendant-Company vide appointment letter dated 03.09.2012. Plaintiff has been terminated under Clause 17 of the appointment letter by giving notice period of 60 days and also by making the payment of salary for the said period. Defendant claimed that the suit is barred in terms of Section 41 (e) read with section 16 of the Specific Relief Act and thus, the suit is also barred under Order 7, Rule 11(d) CPC.
4. Trial Court dismissed the application even while considering that the contract of personal nature cannot be specifically enforced, but the Court opined that an opportunity of hearing must be given to the plaintiff.
5. I have heard learned counsel for the petitioner and the respondent No.1 in person.
6. Respondent No.1 was enrolled as an Advocate with Bar Council of Delhi with an enrolment No.D/1997/2004. This fact has not been denied by respondent No.1, however, he contended that he had never practiced in a Court of law.
7. As per appointment letter dated 03.09.2012, respondent No.1 was appointed as Assistant General Manager/Strategy-Marketing Division Grade (M2). Clause No.17 of the aforesaid letter i.e. "Termination of Contract" is to the following effect:-
"a) During the probationary period, either party may terminate this contract by giving one (1) day written notice or salary in lieu of such notice period. It is clarified that this notice may be given at any time before the expiry of the probationary period. After confirmation of your appointment, either party may terminate this appointment by giving 60 (sixty) days notice in writing or payment of salary in lieu of such notice period.
b) The employee shall be forthwith terminated by IGHPT without notice in any of the following circumstances;
(i) is absent without information for more than seven (7) consecutive days or in case of regular absenteeism.
(ii) commits any act of dishonesty, fraud, willful disobedience, misbehavior or breach of code of conduct.
(iii) misconduct include (but are not limited to) abusive or inappropriate behavior, assault, fighting, fraud, or the commission of any criminal offence involving dishonesty.
c) On termination of his appointment under the Contract (or any amendment hereto);
(i) The employee shall forthwith deliver to IGHPT all documents, papers, materials, credit cards, company assets and other property of IGHPT which may then be in his possession and also will immediately surrender to IGHPT all notes, data, manuals, documents, records, data bases, programs, blueprints, memoranda, specifications, customer lists, financial reports, and all other physical forms of expression incorporating or containing any confidential i
