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1999 Supreme(All) 984
IN THE HIGH COURT OF ALLAHABAD
J. C. Mishra, J.
MAULANA AZAD EDUCATIONAL SOCIETY - Appellant
Versus
RAM SURAT GUPTA - Respondents
Second Appeal 1329 Of 1998
Decided On : 07/16/1999
Ashok Khare, S.U.KHAN
A private educational institution, though recognised by or affiliated to a Statutory University, will not become a statutory body since not enacted by or under a statute. And the dismissed employee of such institution cannot get specific performance of service contract.
Headnote:
SPECIFIC PERFORMANCE - CONTRACT OF PERSONAL SERVICE - EDUCATIONAL INSTITUTION - REINSTATEMENT OF TEACHER - MANDAMUS - DAMAGES - NON-JOINDER OF PARTIES - LIABILITY FOR PAYMENT OF SALARY - SALARY PENDENTE LITE AND FUTURE. 1. A contract of personal service cannot ordinarily be specifically enforced and a court would not give declaration that the contract subsist. An employee after having removed from service cannot be deemed to be in service against the will and consent of the employer. 2. However, there are three well recognised exceptions to the rule of non-enforceability of contracts of personal service: (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. (iii) Where a statutory body acts in breach or violation of the mandatory provisions of the statute. 3. A private educational institution, though recognised by or affiliated to a Statutory University, will not become a statutory body since not enacted by or under a statute. And the dismissed employee of such institution cannot get specific performance of service contract. 4. Mandamus can be issued even to private or non-statutory bodies if they are conferred with discharge of public functions. This power is also available to the civil courts and they are entitled to award decree of declaration as also can issue mandatory injunction if the circumstances so warrant. 5. In case of wrongful termination of service, damages are no substitute for reinstatement, especially in economic conditions prevailing in the country and circumstances of the society. 6. Non-joinder of necessary or proper parties is not fatal if the court can decide the controversy between the parties before it without affecting the rights of the absent parties. 7. The State is not liable to pay salary to a teacher whose services have been wrongfully terminated by a private educational institution. The liability to pay salary is that of the institution. 8. Salary pendente lite and future can be awarded as a necessary consequence of reinstatement.
Fact of the Case:
The plaintiff, a trained teacher, was appointed as a lecturer in economics in the defendant educational institution in 1970. In 1973, he was stopped from performing his duties on the basis of a letter of resignation allegedly submitted by him. The plaintiff denied submitting the resignation letter and approached the District Inspector of Schools, who directed the institution to reinstate him. However, the institution refused to reinstate him, claiming that the resignation letter was genuine and that the vacancy had been filled. The plaintiff filed a suit for declaration that he was and continued to be a lecturer in the institution and for arrears of salary.
Finding of the Court:
The trial court and the lower appellate court held that the plaintiff had not submitted the resignation letter and that the institution had acted illegally in terminating his services. The courts decreed the suit and declared the plaintiff to be continuing to be a lecturer and entitled to arrears of salary.
Issues: 1. Whether the plaintiff had submitted his resignation or not. 2. Whether the suit was bad for misjoinder of parties. 3. Whether the suit was undervalued. 4. Whether the court fee was insufficient. 5. Whether the suit was maintainable in view of the paragraph 45 of the Management commitees written statement. 6. Whether the suit was bad for joinder of unnecessary parties. 7. Whether the suit was maintainable.
Ratio Decidendi: 1. The court held that the plaintiff had not submitted the resignation letter and that the institution had acted illegally in terminating his services. 2. The court held that the suit was not bad for misjoinder of parties as the non-joinder of necessary or proper parties was not fatal since the court could decide the controversy between the parties before it without affecting the rights of the absent parties. 3. The court held that the suit was maintainable as the institution was a private body and not a statutory body, and therefore, the rule of non-enforceability of contracts of personal service did not apply. 4. The court held that the plaintiff was entitled to arrears of salary as a necessary consequence of his reinstatement.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS appeal has been filed by the defendants Maulana Azad Educational Society. Usharatha and its Manager Mirza Anwar Beg against the plaintiff Ram Surat Gupta and proforma defendant against the Judgment and decree dated 19. 8. 98 passed by Civil Judge (Senior division) Jaunpur dismissing the Civil Appeal No. 367 of 1984 preferred against the Judgment and decree dated 17. 9. 84 passed by the Munsif City Jaunpur decreeing the suit for declaration that the plaintiff is and continues to be lecturer in Economics in the institution defendant No. 1 and is entitled to the arrears of salary subject to payment of requisite court-fee from the date of working as lecturer.
( 2 ) THE plaintiff respondent No. 1 Ram Surat Gupta was B. A. , B. Ed. and working as a trained teacher in the institution of defendant No. 1 Maulana Azad Educational Society since 1st october. 1966. He had requisite educational qualification and was confirmed at his post as trained teacher on 6th July. 1968 : and thereafter he passed M. A. in Economics. He was appointed as lecturer in Economics on 1st July. 1970 and allegedly performed his duties to the satisfaction of the appellants.
( 3 ) THE cause of action arose in July. 1973 when he was stopped by the administration to perform his duties as lecturer. He, therefore, approached the District Inspector of Schools and sent an application on 17. 7. 73, a copy of which was given to the Principal of the institution. The District inspector of Schools directed the plaintiff to perform his duties. In pursuance of this direction the plaintiff went in the institution but he was thrown out at the instruction of the Principal which said that since he had resigned his services are no more required.
( 4 ) ON these allegations the plaintiff contended that he was validly appointed lecturer and had never resigned. He therefore, sought the relief of declaration that he was and continued to be lecturer in Economics.
( 5 ) THE defendant No. 2 the Manager contested the suit inter alia that the plaintiff had submitted his resignation on 31. 3. 73 on account of his personal problems and had stated that he would not work in the institution from July, 1973. The Principal forwarded the letter of resignation to the management in the meeting dated 24. 4. 73 of the Management Committee. The plaintiff was requested to withdraw his resignation but he declined. The Management reluctantly accepted his resignation and thereafter the vacancy was filled in by appointment of Abdul Husain. The appointment was approved by the District Inspector of Schools. The plaintiff did not go to the institution when the college reopened in July, 1973. The District Inspector of Schools had no power to direct the plaintiff to Join his duties as he had approved the appointment of Abdul hussain at the vacant post of the plaintiff.
( 6 ) IN view of the pleadings of the parties the following issues were framed : 1. Whether the plaintiff continues to be lecturer in Economics department. 2. Whether the plaintiff had resigned from his post. 3. Whether the suit is bad for misjoinder of the parties. 4. Whether the suit is undervalued. 5. Whether the court fee is insufficient. 6. To what relief, if any, the plaintiff is entitled.
( 7 ) WHETHER the defendant No. 6 continued to work as lecturer till July. 1975.
( 8 ) WHETHER the suit is liable to be stayed under Sections 10 and 151. C. P. C.
( 9 ) WHETHER the suit is bad for non-joinder of necessary parties.
( 10 ) WHETHER the suit is barred for want of notice under Section 80. C. P. C.
( 11 ) WHETHER the suit is not maintainable in view of the paragraph 45 of the Management commitees written statement.
( 12 ) WHETHER the suit is bad for joinder of unnecessary parties.
( 13 ) WHETHER the suit is maintainable. Parties were given opportunity to adduce oral and documentary evidence.
7. The learned Munsif decided the issue regarding under valuation of the suit against the defendants. The issues No. 7, 8 and 9 we
