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2008 DIGILAW 1334 (ALL)

RALLIS INDIA LIMITED v. GOPALJI SHUKLA

2008-07-15

PANKAJ MITHAL

body2008
JUDGMENT Hon’ble Pankaj Mithal, J.—Office has reported that there is a defect in the appeal as the valuation clause has not been worded in accordance with Chapter IX Rule VII (h) of the Rules of the Court. 2. Learned Counsel for the appellants prays for and is permitted to correct the wordings of the valuation clause. Accordingly, as there is no other defect in the presentation of the appeal, office is directed to allot a regular number to this appeal by treating the defect as having cured. 3. The plaintiff instituted a suit against the defendants alleging that he was an employee of the defendants and was working as Sales Promoter Assistant w.e.f. 21.6.1986 on the basic salary of Rs. 750/- per month but the defendants have stopped taking work from him allegedly by obtaining his signatures on blank paper and accordingly he prayed for the following reliefs in the plaint : “(a) That it be declared that the alleged termination of the service of the plaintiff by the defendants from 24.10.1989 is illegal and inoperative and not binding on the plaintiff and the plaintiff still continues in service of the defendants. Rs. 25000/- (b) That the defendants be directed to pay the entire salary and other emoluments to the plaintiff since 24.10.1989 and onwards and the C.F. is 500/- is being paid on madimums (sic) and the tentative valuation is Rs. 10,000/-. (c) Cost of the suit be awarded to the plaintiff. (d) Any other and further relief which the Hon’ble Court may deem fit and proper be also awarded to the plaintiff against the defendants.” 4. The relief claimed in the plaint amply demonstrates that the petitioner is seeking a declaration that his termination from service w.e.f. 24.10.1989 be declared illegal, he be allowed to continue in service and be paid arrears of salary and other emoluments. 5. The suit after contest was decreed by the Court of first instance vide judgment and order dated 29.3.2004. The appeal of the defendants has been dismissed by the lower appellate Court vide judgment and order dated 29.3.2004, thus, the defendants have come up in the second appeal. 6. Heard Sri P.N. Saxena, Senior Advocate assisted by Sri Amit Saxena learned Counsel for the appellants and Sri B.B. Paul alongwith Sri A.P. Paul, learned Counsel for respondent. 7. The appeal of the defendants has been dismissed by the lower appellate Court vide judgment and order dated 29.3.2004, thus, the defendants have come up in the second appeal. 6. Heard Sri P.N. Saxena, Senior Advocate assisted by Sri Amit Saxena learned Counsel for the appellants and Sri B.B. Paul alongwith Sri A.P. Paul, learned Counsel for respondent. 7. Only one substantial question of law has been argued and raised in this appeal. The said substantial question is as follows : Whether the civil suit for the reliefs as claimed in the plaint was barred and not maintainable ? 8. The submission of the learned Counsel for the appellants proceeds on the basis of the three Judges decision of the Supreme Court in AIR 1991 SC 1525 , Nandganj Sihori Sugar Co. Ltd. Raebareli and another v. Badri Nath Dixit and others, and it is being contended that the suit stand specifically barred by Section 14 of the Specific Relief Act and as such was not maintainable. To counter the above submission, Sri B.B. Paul, learned Counsel for the respondent submitted that no specific plea with regard to the maintainability of the suit was taken by the defendants in the written statement, no specific issue to this effect was framed and no such plea or ground was taken by the defendants even in appeal. On the contrary on issue No. 6 which was to the effect as to whether the Court has jurisdiction to hear the suit was got not pressed before the lower Court. Therefore, with the consent of the parties the lower Court was allowed to proceed on merit and as such the defendants-appellants cannot be permitted to take up this plea or issue for the first time at the stage of the second appeal. 9. Notwithstanding, that the specific plea about the maintainability of the suit was not raised by the defendants in the Court below and the issue with regard to the jurisdiction was not pressed, nonetheless the question of lack of jurisdiction of the civil Court goes to the root of the matter and even the consent of the parties cannot confer any jurisdiction upon the Court if the same is not there. The aforesaid plea of the maintainability of the suit is purely of the legal nature which does not involve any factual controversy and leading of evidence. The aforesaid plea of the maintainability of the suit is purely of the legal nature which does not involve any factual controversy and leading of evidence. Accordingly, in view of the ratio laid down in AIR 1961 SC 604 , M.K. Ranganathan v. Government of Madras, in my opinion such a plea can be permitted to be raised even in the second appeal. 10. Now for the purposes of examining the maintainability of the suit before the civil Court it is proper to have a glance at Section 9, C.P.C. which reads as under : “9. Courts to try all civil suits unless barred.—The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I.—A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II.—For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.” 11. It provides that all suits which are not barred either expressly or even impliedly by any provision of law are cognizable by civil Court. 12. Now it is to be examined whether the present suit is barred by Section 14 of the Specific Relief Act as alleged. 13. Section 14 of the Specific Relief Act provide as under : “14. Contracts not specifically enforceable.—(1) The following contracts cannot be specifically enforced, namely : (a) a contract for the non-performance of which compensation in money is an adequate relief; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition on the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms; (c) a contract which is in its nature determinable; (d) a contract the performance of which involves the performance of a continuous duty which the Court cannot supervise. (2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit. (3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub- section (1), the Court may enforce specific performance in the following cases : (a) where the suit is for the enforcement of a contract,— (i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once : Provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or (ii) to take up and pay for any debentures of a company; (b) where the suit is for,— (i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or (ii) the purchase of a share of a partner in a firm; (c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land : Provided that the following conditions are fulfilled, namely : (i) the building or other work is described in the contract in terms sufficiently precise to enable the Court to determine the exact nature of the building or work; (ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and (iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.” 14. It is not disputed by the parties that the plaintiff is claiming continuance in employment of the defendants on the basis of contract. It is not disputed by the parties that the plaintiff is claiming continuance in employment of the defendants on the basis of contract. Such a contract of service on which the plaintiff is claiming the reliefs is determinable in nature i.e. to say it is not perpetual in nature and can be brought to an end at the option of either of the parties depending upon the volition of the parties. Besides the above, in case of such determination of the contract for any reason or for the breach of the terms and conditions if any party suffers a loss, then in that event such party has an adequate remedy of seeking a relief for compensation/damages for the loss so suffered by him on account of such determination of the contract, breach of the conditions of the contract or for the non-performance of the same. Therefore, in view of the Section 14 such a contract cannot be enforced under law. 15. The reliefs claimed in the plaint virtually seeks for enforcing such a contract of employment which is prohibited by Section 14 of the Act. Once such a relief is prohibited by Section 14 of the Act, a civil suit for such kind of relief is ex facie barred in view of Section 9, C.P.C. In the case of Nandganj Sihori Sugar Co. Ltd. (supra) the Apex Court clearly laid down that a contract of employment cannot ordinarily be enforced by or against an employer, the only remedy available in such a case is to sue for damages. In such a private contractual relationship of the employee and employer neither the principle of law nor equity vests the employee with any enforceable right to continue with the privity of such relationship. The Court further emphasised that there are only three recognised exception to such a rule that is (1) where a public servant is sought to be removed from service in violation of the provision of Article 311 of the Constitution of India; (2) where a worker is sought to be dismissed under the Industrial Law; and (3) where the statutory body acts in breach of any mandatory provisions of the statute. This is not the position in the present case. This is not the position in the present case. The plaintiffs’ case does not fall in any of the above three recognised exception to the rule that a contract of employment cannot be enforced under law in view of Section 14 of the Act. 16. The above view has also been expressed by the Supreme Court in the case of M/s Pearlite Liners Pvt. Ltd. v. Manorama Sirsi, JT 2004 (1) SC 58. In the said case the plaintiff was an employee with the defendant company and was transferred from head office to sales office in the same city. He failed to comply with the transfer order and as such he was charge-sheeted and removed. Thereupon he filed suit for declaring the transfer order as illegal and void and to continue him in service after reinstating him. The suit was dismissed by both the Courts below as not maintainable. However, the High Court directed that the suit be decided on merits as the defendant failed to prove that it was not maintainable. The Apex Court held that the relief for continuance in service amounts to enforcing the contract of personal service which is specifically barred under law. The Court further observed that such a suit should not be allowed to continue and to go for a trial and should be thrown out at the thresh hold. 17. On the other hand reliance has been placed by Sri B.B. Paul, learned Counsel for the plaintiff-respondent upon AIR 1976 SC 2037 , R.C. Sharma v. Union of India and others, to contend that the jurisdiction of the civil Court is not totally ousted in such matter. I have gone through the above decision. It was a case of challenge to the departmental proceedings by way of a suit in respect of an employee (L.D.C.) of the Income Tax Department. The Apex Court held that only if the departmental proceedings are null and void, the relief claimed for can be awarded in a civil suit. Apparently it was a case of an employee of the statutory body and not that of a private concerned and as such it fell within the exceptions provided in Nandganj Sihori Sugar Co. Ltd. (supra). Therefore, the said case is totally distinguishable on facts and is of no help to the plaintiff-respondent. 18. Apparently it was a case of an employee of the statutory body and not that of a private concerned and as such it fell within the exceptions provided in Nandganj Sihori Sugar Co. Ltd. (supra). Therefore, the said case is totally distinguishable on facts and is of no help to the plaintiff-respondent. 18. The other two decisions AIR 1968 SC 169 , Custodian, Evacuee Property, Punjab and others v. Jafran Begum and 1995 (5) SCC 75 , Rajasthan State Road Transport Corporation and another v. Krishna Kant and others, also operates in different field and are of no relevance in the present context. In the earlier case, the Supreme Court laid down that by statute jurisdiction of the civil or revenue Court can be barred but the statute cannot bar the jurisdiction of the High Court under Article 226 of the Constitution of India. In the later case it was held that the jurisdiction of the civil Court in the matters concerning Industrial Dispute is barred but where the dispute involves reliefs based on general law of contract, civil Court can act as an alternative forum for the redressal of the grievances. Accordingly, the plaintiff-respondent derives no benefit on the basis of the above case law. 19. No other contrary decision has been cited. 20. In view of the aforesaid facts and circumstances, I hold that the suit of the plaintiff was barred by Section 14 of the Specific Relief Act and the decree passed by the Court of first instance as upheld by the lower appellate Court is totally/completely without jurisdiction. Accordingly, the appeal is allowed. The judgment, order and decree of the lower Court dated 29.3.2004 passed by Civil Judge (Sr. Div.) Allahabad in O.S. No. 167 of 1993 (Gopal Ji Shukla v. Rallis India Ltd. and others) and the appellate judgment and order dated 8.3.2007 of the Additional District Judge, Court No. 1 Allahabad in Civil Appeal No. 50 of 2004 are hereby set aside and the suit of the plaintiff stands dismissed as not maintainable. However, the plaintiff is free to avail any other legal remedy available to him under law for the redressal of his grievance. Cost upon the parties. ————