Lord Krishna Bank Ltd. vs T.B. Reghuraman

M.R. Hariharan Nair, J.—The revision petitioner-Bank is aggrieved that ignoring the objection raised by it before the Additional Munsiff''s Court, Ernakulam, the Court has found O.S. No. 816/1992, brought by the present respondent, who was the former Manager of the bank to be maintainable.

The learned Counsel for the petitioner submits that admittedly it is the master and servant relationship that subsists between the revision petitioner and the respondent and that as such, a suit, as filed in the aforesaid Court, was clearly not maintainable. Though notice was served on the respondent, he was not represented during hearing today. The reliefs prayed in the plaint were the following :-

"(i) A declaration declaring that the termination of the services of the plaintiff as per order dated 21.4.1990 of the second defendant is illegal and void and consequently declaring that the plaintiff is deemed to have been continuing in service.

(ii) A decree of mandatory injunction against the defendants commanding the defendants to reinstate the plaintiff in service with all back wages and other attendant benefits.

(iii) A declaration declaring that Rule 23 and Clause (e) of Rule 24 of the Lord Krishna Bank Officers'' Service Code are oppressive and opposed to public policy and hence violative of Section 23 of the Indian Contract Act and therefore are void and illegal.

(iv) An order granting such other or further reliefs as may be deemed just and proper by this Hon''ble Court in the circumstances of the case."

The fact that the plaintiff had worked as Manager of the defendant-Bank is admitted in the plaint. The relief aforementioned, in effect, is for enforcement of a contract of service which subsisted between the master and servant. Nandganj Sihori Sugar Co. Ltd., Rae Bareli and another Vs. Badri Nath Dixit and others, is the authority for the proposition that a contract of employment cannot ordinarily be enforced by or against an employer and the remedy available is only to sue for damages. The aforesaid bar is subject to 3 well recognised exceptions only. They are : (1) Where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (2) where the worker is sought to be reinstated for being dismissed under the Industrial Law and (3) where a statutory body acts in breach of violation of mandatory provisions of the statute. The case set up in the plaint does not come within the aforesaid exceptions and the suit obviously was not maintainable before the particular civil court.

A perusal of the impugned order shows that the suit was found to be maintainable relying on the decision of this Court in N.P. Mathai v. Federal Bank Ltd. ILR 1993 Ker. 479. A perusal of para 10 of the said judgment shows that the appellant therein had sought a declaration from the Court that he was continuing in service and also prayed for an injunction restraining the defendant-Bank from obstructing the functioning of the appellant in office. Alternatively, appellant claimed for damages for wrongful termination of the services. On the basis of statistics and calculation, a sum of Rs. 2,09,684.54 was claimed. Suit was dismissed. However, when the matter was argued before this Court the relief of reinstatement was not pressed and the compensation itself was reduced. It was in the backdrop of this development that this Court went into other contentions on the merits. There is nothing contained in the judgment which would show that a suit for declaration of continuance of service would be maintainable before the civil court.

In the present suit, there is no alternative claim for damages. As already quoted in one of the preceding paras, what is prayed for in the instant case are reliefs 1 and 2 which are in effect for enforcement of personal service. At the same time, prayer 3 seeks a declaration that Rule 23 and Clause (e) of Rule 24 of the Lord Krishna Bank Officers'' Service Code arc oppressive and opposed to public policy and hence violative of Section 23 of the Indian Contract Act and therefore arc void and illegal. There is nothing brought to my notice which would stand in the way of the said relief being considered by the civil court. The position reached therefore is that the suit as framed is not maintainable in toto though one of the prayers can be maintained.

In the circumstances, the impugned order is set aside and the matter is remitted to the trial court with a direction to give an opportunity to the plaintiff to seek appropriate modifications in the plaint and to proceed with the suit in accordance with law.

The C.R.P. is disposed of as above.

Order on C.M.P. No. 4076/99 in C.R.P. No. 1961/99 dismissed.