Judgment 1. THIS is an appeal against the order dated 2 7th March, 1991 passed by the learned judge, 5th Bench, City Civil Court at Calcutta in Title suit No. 433 of 1991 whereby the court below rejected the prayer for ad-interim injunction restraining the defendant opposite party from proceeding any further with the domestic enquiry in terms of memo of charges dated 31st march The plaintiff/appellant filed a suit against the defendant/opposite party for a mandatory temporary injunction commanding the defendant opposite party to revoke the order of suspension and to pay the difference of the salary and allowances with effect from the date of suspension till the date of revocation, and also for a mandatory temporary injunction commanding the defendant / opposite party to permit the plaintiff / appellant to resume duty. 2. THE defendant/respondent is a Private Limited Company incorporated under the Companies Act. The plaintiff/appellant was appointed as Pharas bearer in the General Department of the respondent company with monthly salary of Rs 502. 1 Op. inclusive of all allowances. The letter of appointment provides condition that the service of the plaintiff / appellant could be terminated by giving one month's notice and in case of misconduct the defendant company reserved the right to invoke the disciplinary power. It also appears that the charge-sheet was issued against the plaintiff/appellant by the respondent company alleging that a sum of Rs.1100/- was stolen from the brief case of one of the directors of the company. It is not necessary to go into the fact in details, inasmuch as, a charge sheet was issued against plaintiff / appellant and the plaintiff/appellant was under suspension and a fact finding enquiry was started. At this stage, the plaintiff/appellant filed a suit for mandatory temporary injunction and also filed an application for injunction with a prayer for ad interim injunction which was refused by the court below. It also appears that for the theft of the said sum from the brief case of one of the directors a FIR was; lodged to the Officer in- Charge, park Street Police Station. It also appears that for the theft of the said sum from the brief case of one of the directors a FIR was; lodged to the Officer in- Charge, park Street Police Station. It is also admitted that the learned Chief Metropolitan Magistrate, Calcutta had passed order on 10th January 1991 discharging the accused and after the appellant was discharged in the said criminal proceeding, the defendant company by the letter dated 13th February 1991 informed the plaintiff / appellant that an enquiry officer has been appointed to hold the domestic enquiry. Mr. Syed Ataunnabi, learned Advocate appearing on behalf of the. appellant contended in the first place that the court below was wrong in not passing the interim order as prayed for, inasmuch as if the interim order was not passed by the court below, in that event, the defendant company would proceed with the enquiry and would conclude the enquiry and if the enquiry was allowed to be concluded and the petitioner could be removed from service, in that event, the suit would become in fructuous. It was further submitted that the plaintiff/appellant had a prima facie case and the balance of convenience was in favour of granting injunction. 3. REFERENCE was made to a decision in the case of Indian Photographic Co. Ltd. vs. Saumitra Modan Kumar, reported in 87 CWN "115. In that case, the Division Bench of this Court held that in a domestic enquiry, an employee was entitled to assistance of a lawyer to defend the case of the employee. In that case, the employer was also private limited company. Relying upon the decision it was submitted by the learned Advocate appearing on behalf of the appellant that the court below was wrong in not passing the interim order as prayed for during the pendency of the suit. 4. MR. In that case, the employer was also private limited company. Relying upon the decision it was submitted by the learned Advocate appearing on behalf of the appellant that the court below was wrong in not passing the interim order as prayed for during the pendency of the suit. 4. MR. Arijit Chowdhury learned Advocate appearing on behalf of the defendant company submitted that the instant suit is not maintainable and referred to the decision of the Supreme Court in the case of Executive Committee of Voish degree College vs. Lakshmi, Narain, reported an AIR 1976 SC 388, wherein the Supreme, Court held 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 recognised exceptions (i) where a public servant is sought to be removed from service in contravention of the provisions of Art. 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. " It was further submitted by Mr. Chowdhury that the decision reported in 87 CWN 1115 does not support the case of the plaintiff/appellant and also is not an authority for the proposition that a suit for specific performance of a contract of service is maintainable. It was further submitted that unless the suit is maintainable, there is no question of granting and/or passing any interim order of injunction during the pendency of the suit. Mr. Chowdhury further submits that the employer is entitled to hold a domestic enquiry for ascertaining of the truth or otherwise of the imputation and that the workman or employee can challenge the same in a proceeding under the Industrial Dispute Act, where the Industrial Court can go into the legality of the fact finding authority. Mr. Chowdhury further submits that the employer is entitled to hold a domestic enquiry for ascertaining of the truth or otherwise of the imputation and that the workman or employee can challenge the same in a proceeding under the Industrial Dispute Act, where the Industrial Court can go into the legality of the fact finding authority. It was submitted that the defendant company is not a statutory body and the case of the appellant does not fall in any of the exception to the general rule that the contract of service cannot be specifically enforced in a court of law, Supreme Court in the case of S. B. Tewari vs. The district Board, Agra, reported in AIR 1964 SC 1680 held that "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 certain 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 continuous to remain in service, even though by so doing the State is in effect forced to continue to employ 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, whom he does not desire to employ is recognised. 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 leisure to do. " 5. SUPREME Court in the case of Dr. " 5. SUPREME Court in the case of Dr. S. B. Dutt vs. University of Delhi, reported in AIR 1958 S C 1050 held that- "an award made by an arbitrator declaring that the dismissal of an employee of the Delhi University was illegal as the rights and obligations of the parties rested in a contract of service which cannot be enforced The said award by which the arbitrator declared that the dismissal of the said employee was ultra vires, malafide and has no effect on his status, was held to be contrary to the rule contained in Section 21 (b) of the Specific Relief Act and was accordingly void." 6. IN Ridge vs. Baldwin (1964) AC 40 it was held that under the ordinary law of master and servant, a suit for specific performance of a contract was not maintainable and the only remedy which a servant can get in case, it is found that the termination was illegal and damage. In this case, a distinction was drawn between office holders to whom natural justice applies and those public servants subject to the ordinary law of master and servant, a distinction founded originally on the concept of certain public positions as 'property' of the holder. The latter class of servants, it was said enjoy no public law protection except perhaps where the authority is under some statutory or other restriction as to the kind of contract which it can make with its servants or the grounds on which it can make with its servants or the grounds on which it can dismiss them. " In Vidyodaya University Council vs. Silya, reported in (1965) 1 WLR 77, it was held that "the courts applied public law doctrines to public servants either on the basis that held a public office or that there was some statutory provisions regulating dismissal "there cases laid down the proposition that where there is a contractual relationship, there must be some special public law element before the court for granting relief otherwise than by way of damages. The English view is also consistent that in case of ordinary law of master and servant, where the employment is based on a contract of service without having any statutory and other restrictions on the power, a suit for specific performance of the contract of service is not maintainable. The English view is also consistent that in case of ordinary law of master and servant, where the employment is based on a contract of service without having any statutory and other restrictions on the power, a suit for specific performance of the contract of service is not maintainable. In the field of contract of service, there is a very little scope of judicial review. Unless it could be shown that in the matter of contract of service, there are some public law doctrines to public servants either on the basis that held a public office or that there was some statutory provisions regulating dismissal. The view taken by the Supreme Court in S. R. Tewari's case (supra) has been consistently followed and it now firmly established principle that unless the exceptions to the general rule are well recognised, a suit for specific contract is not maintainable. The Division Bench judgment reported in 87 CWN had no occasion to consider whether the suit for specific performance of contract for service is not maintainable or not. This decision is silent on this basic principle and it is well established principle that a point is not specifically decided by any decision, that decision cannot be said to be a precedent on that point not decided on the basis of the principles of sub silencio. So the said Division Bench judgment cannot be said to have laid down the principle that ordinary contract of service could be enforced by a suit and reinstatement could be given by the Civil Court. If the suit is not maintainable, the question of granting interim injunction pending disposal of the suit in any form, could not be granted. Before an interim order of injunction could be granted the court has to be satisfied prima facie that a) suit is maintainable, b) the plaintiff has made out a prima facie case for relief, c) the balance of convenience and inconvenience and lastly d) it is discretionary relief, and the court while exercising discretion, must act judiciary. Before an interim order of injunction could be granted the court has to be satisfied prima facie that a) suit is maintainable, b) the plaintiff has made out a prima facie case for relief, c) the balance of convenience and inconvenience and lastly d) it is discretionary relief, and the court while exercising discretion, must act judiciary. In view of the consistent view of the English Court as well as supreme Court of India, there is no scope for holding that such a suit is maintainable on any ground whatsoever and the plaintiff is entitled to any relief by way of injunction: in view of the consistent view of the Supreme Court stated above, in our view, the decision in 87 CWN 1115 in any event is a per incurium decision. The decision of the Supreme Court is binding on all courts in view of the provisions of Article 141 of Constitution of India which make it law of the land. In the case of Punjab Land Development and Reclamation Corporation (P) Ltd. vs. Presiding Officer, reported in (1990) 3 SCC 682 it was held by the Supreme Court that "the Latin expression par incurium' means through in advertance. A decision can be said generally to be given per incurium when a High Court has acted in ignorance of a decision of the Supreme Court, The problem of judgment per incurium when actually arises would present no difficulty as the, Supreme Court can lay down the law afresh even two or more judgments cannot stand together. Article 141 which embodies as a rule of law, the doctrine of precedents, was enacted to declare the law binding on all the courts in the country excluding the Supreme Court itself. " 7. IN view of the law laid down by the Supreme Court following the consistent view of the English Courts in our view, the suit for specific Performance of Contract of same is not maintainable and as such the plaintiff / appellant is not entitled to any relief on the basis of the suit. If the plaintiff / appellant has no. right to move the court for reinstatement after dismissal, in our view, it is not open to the plaintiff / appellant to move the court for any relief pending disposal of the disciplinary proceeding and he cannot stall any domestic enquiry. 8. If the plaintiff / appellant has no. right to move the court for reinstatement after dismissal, in our view, it is not open to the plaintiff / appellant to move the court for any relief pending disposal of the disciplinary proceeding and he cannot stall any domestic enquiry. 8. ACCORDINGLY, we do not find any reason to interfere with the order of the court below and accordingly, the appeal is dismissed without any order as' to costs. All interim orders are vacated. Appeal dismissed.