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1995 DIGILAW 129 (GAU)

Assam State Electricity Board v. Anjali Phukan

1995-06-23

A.K.PATNAIK

body1995
This is a second appeal under section 100 of the CPC. The brief facts are that the respondent herein filed Title Suit No. 132 of 1984, before the learned Sadar Munsiff, Guwahati. Her case in the plaint was that she was appointed under the Assam State Electicity Board (for short the ASEB) as LDA cum Typist against a vacant post in the Central Store Division, by the Controller of Stores of the ASEB by office order dated 31.10.83. But all of a sudden she was removed from service by order dated 28.3.84 without any reason and without following the procedure laid down in Article 311 of the Constitution of India and in a manner violative of principles of natural justice. In the said suit, the plaintiff prayed that the order dated 28.3.84 removing her from service should be set aside and the Court should declare the plaintiff to be in service from 28.3.84. 2. The aforesaid suit was contested by the appellants who filed their written statement pleading that the suit was not maintainable and that the appointment of the plaintiff was fabricated and was a result of forgery perpetrated by the plaintiff on the defendants. It was stated in the said written statement that the plaintiff filed an application before the Controller of Stores, ASEB for appointment to the post of LDA cum Typist in the office of the SDO, Mechanical Division, Kahilipara, ASEB and the said application was forwarded to the Personnel Manager of the ASEB. Although the Personnel Manager did not direct the Controller of Stores, ASEB to appoint the plaintiff, on the basis of fabricated letter dated 24.9.83 containing a forged signature of the Personnel Manager, addressed to Controller of Stores, the plaintiff was appointed as LDA cum Typist in the Mechanical Stores Division, ASEB by the office order dated 31.10.83 of the Controller of Stores, ASEB. It was further stated in the written statement that normally appointment to the posts of cadre III and cadre IV under the ASEB including the post to which the plaintiff was appointed are made by holding proper test and interview by the ASEB, but in the instant case no such test or interview was held. It was further stated in the written statement that normally appointment to the posts of cadre III and cadre IV under the ASEB including the post to which the plaintiff was appointed are made by holding proper test and interview by the ASEB, but in the instant case no such test or interview was held. As a consequence, the Grade IV Union Employees raised the matter before the Chairman of the ASEB who directed a case to be lodged for forgery against the plaintiff before the police and pursuant to the said direction an ejahar was lodged before the Officer-in-charge, Paltan Bazar Police Station and service of the plaintiff was terminated by order dated 28.3.84. 3. On the aforesaid pleading of the parties, the learned Munsiff framed 5 issues, recorded the evidence led by the parties, and under issue No.2 and 3 held by his judgment and decree dated 12.1.87 that the plaintiff had not been able to establish that her appointment was duly made and that her removal from service was not just and proper and oh the basis of the said findings dismissed the suit. 4. Against the said judgment and decree of the learned Munsiff, the plaintiff preferred Title Appeal No.5 of 1987 and by the judgment dated 2.9.93 the learned Assistant District Judge No. 1, Guwahati allowed the said appeal on contest, set aside the judgment and decree of the learned Munsiff and declared that the plaintiff is deemed to be in service wef 28.3.94 with all pay and allowances and other benefits until she is removed from service on proof of charge against her in a departmental proceeding to be started in accordance with the law if it is so felt expedient by the defendant. It is thus judgment and decree dated 2.9.93 of the learned Assistant District Judge No.l, Guwahati in Title Appeal No.5 of 1987 that has been challenged by the appellants in this second appeal. 5. When the second appeal was taken for admission on 23.2.94 this Court ordered that appeal will be heard on the following substantial questions of law: 1. Whether the suit filed by the plaintiff respondent is maintainable ? 2. Whether civil Court can grant relief by way of reinstatement in a declaratory suit instituted to set aside the order of termination ? 3. Whether the suit filed by the plaintiff respondent is maintainable ? 2. Whether civil Court can grant relief by way of reinstatement in a declaratory suit instituted to set aside the order of termination ? 3. Whether a probationer during the period of probation of his/her service can validly seek for a declaratory decree, that the termination of service is illegal and void ? I do not propose to deal with any question other than the aforesaid 3 questions in this judgment although several additional questions were raised by Mr. NN Saikia, learned counsel for the appellants at the time of the hearing of the appeal. 6. To start with the 3rd substantial question of law formulated above, Mr. Saikia, learned counsel for the appellants submitted that under Regulation 9 of the Assam State Electricity Board Employees Service Regulations, the service of the probationer could be terminated without any notice during the period of probation or on its expiry. Since the plaintiff was a probationer and her service was liable to be terminated at any time without any notice whatsoever, she could not seek a declaration from the Court that the termination of the service was illegal and void. To decide this question raised by Mr. Saikia, the factual question as to whether the plaintiff was a probationer has to be first decided. On a perusal of the written statement filed by the defendants before the learned Munsiff, I find that no such plea has been taken that the plaintiff was a probationer. Accordingly no issue has been framed by the learned Munsiff on this question and consequently no findings have been recorded either by the learned Munsiff in the trial or by the learned Assistant District Judge in the appeal on this question. In the absence of any finding on these factual questions as to whether the plaintiff was a probationer or not, this Court can not in a second appeal decide the question as to whether a probationer could validly seek a declaration that the termination of the service was illegal and void. Accordingly, the contention of Mr. Saikia on this question is rejected. 7. Accordingly, the contention of Mr. Saikia on this question is rejected. 7. Coming to the 1st and 2nd substantial questions of law framed by order dated 23.2.94, namely whether the suit filed by the plaintiff was maintainable and whether the civil Court grant the relief by way of reinstatement in the declaratory suit instituted by the plaintiff to set aside the order of termination, Mr. NN Saikia, learned counsel for the appellant, cited the decisions of the Apex Court in AIR 1976 SC 888 , AIR 1980 SC 16 and (1991) 3 SCC 54 to the effect that a contract for personal service such as the one between the plaintiff and the defendants cannot be specifically enforced in view of the bar under sections 14 and 42 of the Specific Relief Act, 1963 and therefore, the learned Assistant District Judge could not have decreed by the impugned judgment that the plaintiff was deemed to be in service wef 28.3.84 with all pay and allowances and other benefits until she was removed from service on proof of charges against her in a departmental proceeding to be started in accordance with law. 8. Mr.AS Choudhury, learned counsel for the respondent, however vehemently argued that no plea was taken by the appellants before the trial court or the first appellate Court that the suit was not maintainable under the Specific Relief Act, 1963 and the said plea cannot be raised in this second appeal for the first time. He also cited the decisions of the Apex Court in AIR 1991SC 309 in which it was held that before cancelling the regular appointments of the employees on the ground that their appointments were irregular, rules of natural justice should have been followed and the employees should have been given opportunity of hearing. On the basis of the said authority, Mr. Choudhury submitted that since principles of natural justice had not been followed and the plaintiff had not been afforded any opportunity of hearing before she was removed from service by the order dated 28.3.84, the impugned judgment and decree of the learned Assistant District Judge in so far as he declared that the plaintiff was deemed to be in service wef 28.3.84 with all pay and allowances and other benefits until she was removed from service on proof of charges against her in departmental proceedings ought to be substained by this Court. 9. 9. In the leading case of Vaish Degree Colege vs. Lakshmi Narain reported in AIR 1976 SC 888 , the Supreme Court examined at length the question as to whether a contract for personal service could be specifically enforced and after taking note of the earlier decisions of the Apex Court, held in paragraph 17 of the its judgment that a contract of personal service cannot ordinarily specifically be enforced and the Court normally would not give a declaration even after an employee is removed from service that he is deemed to be in service against the will and consent of the employer and to this rule, the only three recognised exceptions were, where a public servant is sought to be removed from service in contravention of the provision of Article 311 of the Constitution of India, a worker is reinstated under industrial law and where a statutory body acts in breach of the mandatory provisions of the statute. The aforesaid law laid down by the Apex Court in the case of Vaish Degree College vs. Lakshmi Narain was reiterated by the Apex Court in Nandganj Sihori Sugar Co. Ltd. vs. Badri Nath Dixit, (1991) 3 SCC 54 and in paragraph 10 of the judgment in the said case it was held : " A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damage (see section 14 read with section 41 of the Specific Relief Act; see Indian Contract and Specific Relief Acts by Pollock and Mulla, 10th Edn, page 983). The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence of any statutory requirement, Courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer. There are, of course, certain exception to this rule, such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution, reinstatement of a dismissed worker under the Industrial Law, a statutory body acting in breach of statutory obligations, and the like. There are, of course, certain exception to this rule, such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution, reinstatement of a dismissed worker under the Industrial Law, a statutory body acting in breach of statutory obligations, and the like. (SR Tiwari vs. District Board, Agra, Executive Committee of UP State Warehousing Corporation vs. CK Tyagi, Executive Committee of Vaish Degree College, Shamli Lakshmi Narain, see Halsbury's Laws of England, 4th Edn., volume 44, paragraph 405 to 420)." In the case of Sitaram Kashiram Konda vs. Pigment Cakes and Chemicals Mfg. Company, AIR 1980 SC 16 the Supreme Court while dealing with a suit with main reliefs for a declaration that the defendant was removed by the plaintiff from service illegally and without any reason and for an order to reinstate the plaintiff to his former job with due benefits and advantages clarified in paragraph 3 of the judgment that while it was not correct to say that such a suit was not maintainable, the main reliefs asked in the suit when granted would amount to specific enforcement of the contract of the service and therefore cannot be granted. 10. Applying the aforesaid propositions of law laid down by the Apex Court to the facts of the present case, respondent-plaintiff has claimed in the suit that the order dated 28.3.84 removing her from service be set aside and she be declared to be in service from 28.3.84 on the ground that the procedure in Article 311 of the Constitution and the principles of natural justice had not been followed before removing her from service. Since the plaintiff was admittedly an employee of the ASEB and was not a civil servant or not holding a civil post, Article 311 of the Constitution which applied to a member of a civil service or to a person holding a civil post under the State did not apply to her. The plaintiff had also not made out a case of her removal from service by the ASEB in breach of any statutory provision. The plaintiff had also not made out a case of her removal from service by the ASEB in breach of any statutory provision. The only case of plaintiff really was that principles of natural justice were not followed by the ASEB before she was removed from service and learned Assistant District Judge has held in the impugned judgment that in order to establish that her appointment was irregular, it was incumbent on the then Personnel Manager or the defendant No.2 to hold a regular departmental enquiry against the plaintiff and others who are involved in the matter. After arriving at the aforesaid findings the learned Assistant District Judge in his impugned judgment decreed that the plaintiff would deemed to be in service with all pay and allowances and other benefits until she was removed from service on proof of charges against her in a departmental proceedings to be started in accordance with the law. In my opinion, even if it is held that the plaintiffs appointment to the post of LDA cum Typist was a regular and valid appointment as made out in the plaint, such appointment being a contract for personal service cannot be enforced because of the bar under section 14 of the Specific Relief Act, 1963, as explained by the Apex Court in the aforesaid decisions. Thus, the answer to the second and third substantial questions of law is that although the suit as filed by the plaintiff was maintainable, the civil Court could not grant the relief of declaration that the plaintiff would be deemed to be in service with effect from 28.3.84 with all pay and allowances and other benefits as such relief would amount to specific enforcement of the contract of personal service. Further, this being a pure question of law relating to the jurisdiction of the Court to grant a particular relief could be raised for the first time even in a second appeal and the contention of Mr.Choudhury that the point cannot be raised at the stage of second appeal thus has no merit. This question also did not arises for determination in the case of Sharawan Kumar Jha & others vs. State of Bihar, AIR 1991 SC 309 , relied on by Mr. This question also did not arises for determination in the case of Sharawan Kumar Jha & others vs. State of Bihar, AIR 1991 SC 309 , relied on by Mr. Choudhury, nor was the aforesaid law down by the Apex Court that a. contract for personal service cannot be enforced save in the three recognised exceptions been altered in the said decision of the Apex Court in the case of Sharawan Kumar Jha & others. 11. When the second appeal was admitted for hearing on 23.2.94 in Misc Case No. 12 of 1994 filed by the appellants for stay of the impugned judgment and decree this Court passed the order dated 23.3.94 directing deposit of Rs.10,000/-by the appellant as a condition of stay of the impugned judgment and decree of the learned Assistant District Judge and allowing the respondent to withdraw the said amount and pursuant to the said order the appellant deposited a sum of Rs. 10,000/-.Considering the facts and circumstances of the case and the interest of justice, it is ordered that the said amount of Rs. 10,000/- may not be refunded to the appellant by the respondent as a consequence of this judgment. 1.2. Subject to the aforesaid observations, this appeal is allowed and the judgment and decree dated 2.9.93 of the learned Assistant District Judge in Title Appeal No.5 of 1987 is set aside. But considering the facts and circumstances of the case, the parties shall bear their own costs.