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Judgment
S.S. Subramani, J.—Defendants in O.S, No. 690 of 1995, on the file of Sub-Court, Udhagamandalam, are the revision petitioners.
The revision is filed under Article 227 of the Constitution of India.
Respondent herein filed O.S. No. 362 of 1994, on the file of District Court, Udhagamandalam, which was subsequently renumbered as O.S.
No. 690 of 1995, on the file of Sub-Court, Udagamandalam. The suit filed by him was one for a declaration that the order, dated July 5, 1994,
passed by defendants dismissing the plaintiff from service was illegal, non est, baseless unenforceable in law and opposed to principles of natural
justice, and for a consequential mandatory injunction directing defendants to pay plaintiff his gratuity amount of Rs. 94,095 with interest thereon at
24 per cent per annum from the date of suit till date of payment and for all his service-cum-retirement benefits including pension due to him as per
law, and for other reliefs.
It is the case of the plaintiff that he was in the service of the first defendant from 1983, and till his retirement, he was in service for 27 years. It is
further stated that in the normal course, he would have retired on January 15, 1994. On December 22, 1993, defendants issued a letter expressing
their pleasure in extending his services for one year from January 15, 1994, and plaintiff also accepted this extension by his letter, dated December
28, 1993, and requested for a three year extension. But, subsequently, on January 12, 1994, plaintiff again wrote to the defendants, declining the
extension due to health problems, and he wanted himself to be relieved on the normal retiring date, i.e., on January 15, 1994.
On receipt of the said letter, defendants alleged certain irregularities on the part of the plaintiff, and he was requested to provide certain vital
information regarding the so-called irregularities. His request for retirement on the normal course of superannuation was refused. Thereafter, one or
two show-cause notices were served on him. It is the case of the plaintiff that without any further enquiry he received a letter on July 5, 1994,
dismissing him from service. In the body of the plaint, he challenges each and every reason for dismissal as null and void, and he has also taken a
specific contention that no inquiry was conducted before passing the impugned order.
On receipt of summons in the suit, defendants entered appearance and filed written statement. One of the questions raised in the written
statement is, that Civil Court has no jurisdiction to entertain the suit. It is said that one of the reliefs sought for is, recovery of gratuity amount, for
which the Civil Court has no jurisdiction. It is further said that Payment of Gratuity Act is a self-contained code, and the remedy of the plaintiff is
only to move that authority and not by filing a suit.
Thereafter, defendants wanted the issue regarding jurisdiction, to be heard as a preliminary issue.
By the impugned order, the lower Court came to the conclusion that the suit is not barred and that it could be entertained. The legality of the
same is challenged under Article 227 of the Constitution.
Learned counsel for petitioners submitted that the relief regarding payment of gratuity has to be construed as a main relief and, therefore, the suit
is barred, in view of the decision reported in State of Punjab Vs. Labour Court Jullunder and Others, . In that case, for recovery of gratuity, an
application was filed before the lower Court u/s 33 of the Industrial Disputes Act. While considering the question of jurisdiction, it was held thus at
p. 357 of LLJ:
Upon all these considerations, the conclusion is inescapable that Parliament intended that proceedings for payment of gratuity due under the
Payment of Gratuity Act must be taken under that Act and not under any other. That being so it must be held that the applications filed by the
employee-respondents u/s 33-C(2) of the Industrial Disputes Act did not lie, and the Labour Court had no jurisdiction to entertain and dispose of
them. On that ground this appeal must succeed.
It was, therefore, argued that if payment of gratuity, cannot be ordered by Civil Court, which is the consequential relief to the declaration, the suit
for mere declaration is not maintainable. The same is barred u/s 34 of the Specific Relief Act.
As against the said submission, learned counsel for respondent submitted that as between a master and servant, a suit for declaration that the
dismissal is bad, is maintainable, and even if the consequential relief prayed for cannot be granted by Civil Court, the suit cannot be dismissed at
the threshold. It is further said that payment of gratuity depends upon the declaration and once it is found that his dismissal is invalid or void for
non-observance of principles of natural justice, then he will be entitled to get gratuity though the Civil Court may not grant a decree for the same.
On the basis of decree alone, he can move the Civil Court for getting the gratuity amount. It was further argued that merely because he has sought
for such a relief in the suit, that will not make the suit itself not maintainable, since the main relief is one for declaration, which can be granted by a
Civil Court. Learned counsel for respondent also relied on the decision reported in Ishar Singh Vs. National Fertilizers and another, wherein in
Paras. 5 and 6, their Lordships have held thus:
The other question which Sri Ashwini Kumar has raised is as to whether the Civil Court would have jurisdiction to give injunction against
superannuation or the other ancillary reliefs contemplated to a workman against his employer. Law is equally settled that if for part of the reliefs the
suit is maintainable in the forum where it has been laid, it is not open to the forum to shut out its doors to the suitor. In that view of the matter, so far
as the relief of rectification of the record relating to date of birth is concerned, the Civil Court had jurisdiction and the High Court was not right in
saying that the suit was not maintainable at all.
It is unnecessary to go into the other aspect, namely, whether the residuary reliefs were available in the Civil Court inasmuch as the appellant has
by now superannuated, even on the basis of the concerned record the only relief to which be is entitled is one of back wages. We do not think that
is a relief which the Civil Court could have granted. On the basis of the rectification of the date of birth granted by the Civil Court, the appellant is
entitled to work out his remedy in a different forum prescribed by law, but we find that the respondent is public sector undertaking and it would do
well in settling the claim of the appellant instead of driving him to a proceeding u/s 33-C(2) of the Industrial Disputes Act.
After hearing learned counsel for both the parties, I am of the view that the contention raised by petitioners is only to be rejected. Under
common law, relationship between master and servant is governed only by a contract. Against dismissal of such a servant, if it is in breach of that
contract, a suit could be entertained by a Civil Court. Even if the servant may not be in a position to get reinstated, he will be entitled to get a
declaration that the dismissal is invalid. In this case, parties are not governed by any statute, and naturally only common law of contract will arise.
In S.C. BANERJEE''S LAW OF SPECIFIC RELIEF 10th Edn., 1996 at page 522, the learned author has said thus:
Where a suit for a mere declaration is maintainable for wrongful dismissal by non-Government bodies depends upon the intent and purpose of the
suit. In The Andhra University, a Corporate body with its headquarters at Vizakhapatnam Vs. Korada Durga Lakshmi Manoharam,
RAGHAVARAO, J. held that such a suit was maintainable......
At page 523, the learned author has further said thus:
..... But it was held in Prakashwati v. Life Insurance Corporation 1972 (42) C.C. 335 that though contract of personal service cannot be
enforced, a suit for declaration that termination of the services is ultra vires is maintainable......
So, in this case, the main relief is one for declaration that the dismissal order is invalid on various grounds, including the ground that it violates the
principles of natural justice,
The lower Court has relied on the decision in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, . The
said decision came for consideration in Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, . Their Lordships
have summarised the entire law and held thus in at p. 741 of LLJ:
We may now summarise the principles flowing from the above discussion:
(1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in
Civil Court cannot be said to be not maintainable ""even though such a dispute may also constitute an ''industrial dispute'' within the meaning of
Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.
(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial
Disputes Act, the only remedy is to approach the fora created by the said Act.
(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments, like Industrial
Employment (Standing Orders) Act, 1946 which can be called ''sister enactments'' to Industrial Disputes Act and which do not provide a forum for
resolution of such dispute, the only remedy shall be to approach the fora created by the Industrial Disputes Act provided they constitute industrial
disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute be either
treated as an industrial dispute or says that it shall be adjudicated by any of the fora created by the Industrial Disputes Act. Otherwise, recourse to
civil Court is open.........
Section 34 of the Specific Relief Act is not exhaustive. Whether a suit for declaration that the termination is invalid or not, is maintainable came
for consideration in a very recent decision of the Hon''ble Supreme Court in the decision reported in Ashok Kumar Srivastav Vs. National
Insurance Company Limited and Others, . Their Lordships have held thus:
Thus the legal position is clear and the respondent cannot now reagitate the question regarding maintainability of the suit u/s 34 of the Act.
However, counsel adopted an alternative contention before us that the suit is in effect one for specific enforcement of a contract and such a suit is
not-conceived u/s 14 of the Act and hence it is not maintainable. According to the learned counsel, the reliefs claimed in the suit, if granted, would
result in specific enforcement of a contract of employment. Section 14(1)(a) of the Act makes it clear that a contract of employment is not
specifically enforceable since non-performance of it can be compensated by money, contended the counsel.
The said contention is based on a fallacious premise that the suit was for enforcement of a contract of employment. Respondent was appointed
on certain terms and pursuant to such appointment he worked within the scope of such employment. Termination of his employment purportedly in
terms of the same contract is challenged by him by praying for a declaration that such termination is invalid and, therefore, he continues in the same
employment. Maintainability of a suit cannot be judged from the effect which the decree may cause. It can be determined on the basis of the
ostensible pleadings made and the stated reliefs claimed in the plaint.
Though Specific Relief Act widens the spheres of the civil Court its preamble shows that the Act is not exhaustive of all kinds of specific reliefs.
''An Act to define and amend the law relating to certain kinds of specific relief''. It is well to remember that the Act is not restricted to specific
performance of contracts as the statute governs powers of the Court in granting specific reliefs in a variety of fields. Even so, the Act does not
cover all specific reliefs conceivable. Its preceding enactment (Specific Relief Act, 1877), was held by the Courts in India as not exhaustive. Vide
Ramdas Khatau and Co. Vs. Atlas Mills Co. Ltd., . In Hungerford Investment Trust Ltd. v. Haridas Mundhra and Ors. this Court observed that
Specific Relief Act, 1963, is also not an exhaustive enactment and it does not consolidate the whole law on the subject. ''As the preamble would
indicate, it is an Act to define and amend the law relating to certain kinds of specific relief. It does not purport to lay down the law relating to
specific relief in all its ramifications.
Chapter II contains a fasciculus of rules relating to specific performance of contracts. Section 14 falls within that chapter and it points to
contracts which are not specifically enforceable. Powers of the Court to grant declaratory reliefs, are adumbrated in Section 34 of the Act which
falls under Chapter VI of the Act. It is well to remember that even the wide language contained in Section 34 did not exhaust the powers of the
Court to grant declaratory reliefs. In Veruareddi Ramaraghava Reddy and Ors. v. Konduru Seshu Reddy and Ors. and in Supreme General Films
Exchange Ltd. Vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Others, , this Court while interpreting the corresponding
provisions in the preceding enactment of 1877 (Section 42) has observed that:
''Section 42 merely gives statutory recognition to a well- recognised type of declaratory relief and subjects it to a limitation, but it cannot be
deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases
falling outside Section 42.''
The position remains the same under the present Act also. Hence the mere fact that a suit which is not maintainable u/s 14 of the Act is not to
persist with its disability of non-admission Civil Courts even outside the contours of Chapter II of the Act. Section 34 is enough to open the
corridors of Civil Courts to admit suits filed for a variety of declaratory reliefs.
The above said decision of the Hon''ble Supreme Court was followed by the Bombay High Court in the decision reported in Prahlad Vithalrao
Pawar v. Managing Director Kannaded Sahakari Sakhar Karkhana, Ltd. and Anr. 1998-2-LLJ-802 (Bom). The question that came for
consideration before the Bombay High Court was, whether a suit against the termination of an employee governed by the Co-operative Societies
Act is maintainable. The Division Bench held that even though there is a bar under the Co-operative Societies Act for entertaining a suit, a
declaration contemplated u/s 34 of the Specific Relief Act could be granted in a suit filed u/s 91 of the Co-operative Societies Act before the
Tribunal. In para 15 of the judgment, their Lordships held thus in 1998-2- LLJ-802 :
It is well established that the remedy u/s 91(1) of the Co-operative Societies Act is a substitute for the remedy which could have been
available before the Civil Court. In this regard, it will be appropriate to refer to a recent judgment of the Supreme Court in the case of Ashok
Kumar Srivastav v. National Insurance Company Ltd. (supra). The employees who were working in managerial category were removed from
service and the same action of the employer was challenged under the Specific Relief Act, 1963. The suit was resisted by the employer on the
ground that it was not tenable u/s 14 of the said Act. The Apex Court held that Section 34 of the Specific Relief Act was wide enough to open the
corridors of the Civil Court to admit suits filed for variety of declaratory reliefs. Even in the instant case, same ratio would apply inasmuch as the
remedy which would otherwise be available before a Civil Court will be available before a Co-operative Court, u/s 91(1) of the Co-operative
Societies Act as the forum created u/s 91-A of that Act is a substitute for the Civil Court and created under a special legislation........
From the relief sought for, it is clear that the plaintiff is not claiming any relief as provided under the Industrial Disputes Act. What he seeks is
only a declaration that the dismissal is invalid The right created under the Industrial Disputes Act is not claimed. Such a suit is maintainable in view
of the decision of the Hon''ble Court in Rajasthan State Road Transport Corporation v. Krishna Kant (supra). Clause 1 deals with maintainability
of such suits. It must be further understood that one of the grounds for getting a declaration is violation of principles of natural justice. Of course,
how far the Court can grant relief is different. But when there is an allegation that the dismissal is in violation of the principles of natural justice in
such cases a civil suit is also maintainable. All authorities, whether they are statutory authorities or private individuals, have to comply with the
principles of natural justice before taking any action. If the same is violated, that goes to the very root of the jurisdiction of the matter and,
therefore, a civil suit is maintainable.
In Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others, the question raised was whether a writ petition was maintainable
for getting refund of excise duty already paid by mistake. Their Lordships said that the writ petition is not maintainable, nor can a suit be
entertained except in certain categories of cases, and one of the grounds mentioned was, that if there was violation of principles of natural justice, a
civil suit as well as writ petition is maintainable, for, that goes to the very jurisdiction of the authority.
In view of these decisions, it has to be held that for the main relief of declaration, the suit is maintainable. Plaintiff has further said that he is
claiming a mandatory injunction only as a consequential relief. In view of the decision reported in Ishar Singh v. National Fertilizers, (supra), and
also other decisions cited (supra) plaintiff cannot be thrown out merely because part of the claim cannot be entertained by a civil Court.
In this connection, it may also be noted that why the petitioner filed the revision under Article 227 of the Constitution of India is not explained.
There is no manifest injustice caused by the impugned order. There is also no reason stated as to why petitioner cannot file an ordinary revision u/s
115, C.P.C. For that reason also, I do not think that I should invoke my powers under Article 227 of the Constitution of India.
In the result, the civil revision petition is dismissed, however, without any order as to costs. C.M.P. is also dismissed consequently.