M.D. Rajan vs I.T.C. Limited and Others

S. Nainar Sundaram, J.—The plaintiff in the suit is the appellant in this second appeal. The respondents are the defendants in the suit. The

plaintiff laid the suit for a declaration that the order of termination dated 16.9.1976 issued by the first defendant is null and void and that the plaintiff

shall be deemed to be in continuous employment under the first defendant company with effect from 1.4.1977 and for an injunction against the first

defendant restraining it from operating the termination order dated 16.9.1976. On contest by the defendants, the plaintiff failed with regard to the

reliefs asked for in the first Court. This result, the first Court arrived at, taking note of the ratio of the Supreme Court in the pronouncement in

Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, . However on additional Issue No. 2 as to

whether the plaintiff''s joining the contributory pension fund would entitle him to be in service till he attains the age of retirement notwithstanding the

terms of contract, the first Court opined that the plaintiff will be so entitled.

The plaintiff appealed because he did not get the reliefs at the hands of the first Court. The lower Appellate Court assessed the facts of the case

in the light of the principle enunciated by the Supreme Court and dismissed the appeal. On behalf of the defendants, it was urged that even the

finding of the first Court on this additional Issue No. 2 is not sustainable in view of the pronouncement of the Supreme Court. This objection has

found countenance before the lower Appellate Court. Ultimately as stated above the appeal by the plaintiff was dismissed by the lower Appellate

Court. Hence this second appeal.

At the time of the admission of the second appeal the following substantial questions of law came to be mooted out for consideration.

Whether the Courts below erred in law in not considering the plea of estoppel put forth by the plaintiff against the defendant?

Whether the Courts below have misconstrued and omitted to construe the material evidence on record when they negatived the case of the

plaintiff? and,

Whether the Courts below are right in holding that the suit is not maintainable in the civil Court?.

Exhibit A-4 dated 22.5.1962 is the contract of personal service entered into between the plaintiff and the second defendant, the Manager of the

first defendant company. As per this document, there is no ambiguity that the contract is a contract of personal service. The order of termination

dated 16.9.1976 as per Exhibit A-7 was issued as per Clause 13 (a) of Exhibit A-4, the contract of personal service. The first defendant company

is not a statutory body. It is only a company incorporated under the Companies Act. The ratio of the Supreme Court in the decision referred to

''above is clear and it has been set out in the following terms:

On a consideration of the authorities mentioned above, it is, therefore, clear 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 Article 311 of the Constitution of

India; Go where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or

violation of the mandatory provisions of the statute.

If the above ratio is kept in mind, it is not possible to bring the case of the plaintiff within any of the exceptions countenanced as above.

However, Mr. P. Ramakrishnan, learned Counsel for the plaintiff, would state that though 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, says that in the present case, special and

extraordinary circumstances do exist. Learned Counsel expatiates this by stating that the special circumstance is that the plaintiff was allowed to

join the contributory pension fund and hence an assurance was made out that the plaintiff will be allowed to be in service until he attains the age of

superannuation and practically this has Become an implied condition of contract of service. Learned Counsel has to frankly admit that even this

could only be a term of the contract of service, though not express, but implied. All said, the matter will come only as a condition of the contract of

personal service and it cannot elevate itself to a position better than that. It is quite clear that while enunciating the ratio, the Supreme Court

delineated three exceptions as the only contingencies which are outside"" the ordinary and normal rule against enforcing a contract of personal

service. The exceptions '' are exhaustive and it is not possible to enlarge them. In this view, I am not able to find fault with the decisions rendered

by the two Courts below, and accordingly this second appeal fails and the same is dismissed. I make no order as to costs.