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TMI Blog1999 (8) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... rt-time Chairman. He was so appointed on 29-4-1994. The performance appraisal report of the plaintiff given by the Defendant No. 4 till 1994 was very good. By resolution dated 29-4-1994, the Defendant No. 2 was given all the powers of the earlier Chairman. By a further resolution dated 15-3-1996, all the powers of management of the company earlier vested in the Chairman, were delegated with immediate effect to the defendants No. 3 and 4, the defendant No. 2 had not been given any powers by this resolution. Subsequently, in a meeting dated 29-11-1996, it was observed that the normal procedure of the executive submitting issues for decision to the Executive Vice-Chairman should continue. However, in exceptional circumstances where decisions are delayed adversely affecting the finan-cial functioning of the company, the executive concerned or any of the Executive Vice-Chairman may refer issue to the Chairman who may take the decision in consultation with the Executive Vice-Chairman. If such decisions are not implemented in time, the Chairman should bring it before the Board of Directors, for such action as deem appropriate. On 27-10-1998, the Defendant No. 4 informed the Board of Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the notice of termination of the appellant is legal and valid. 5. However, the respondent-company did not participate during evidence state and hence the trial court proceeded with the suit exparte and a decree was passed in terms of the plaint on 25-1 -1991, The appellant took out execution proceedings in which he claimed a sum of Rs. 1,02,861 as arrears of pay due to him from the date of notice of termination. The respondent resisted the execution by putting forth various contentions including that the decree is unenforceable and void as the same was passed without jurisdiction. The execution court has repelled all such objections by its order dated 7-9-1991. 15. Thus, the legal position is clear and the respondent cannot now reagitate the question regarding maintainability of the suit under section 34 of the Act. However, learned 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 under section 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 contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel has submitted that earlier the relief of reinstate-ment was restricted only to employees who were covered by Article 311 of the Constitution by the Industrial Disputes Act, or if there was a breach of a statutory duty by a statutory body. He submits that these exceptions had been carved out by the Supreme Court on the basis that no specific performance could be granted of a contract of personal service. But according to the counsel, the Courts always have the jurisdiction to grant the relief of injunction in special circumstances. For this proposition, the learned counsel has relied upon a commentary contained in the Law of Termination of Employment, Fifth Edition by Robert Upex, published by London Sweet Maxwell, 1997, Certain cases have been mentioned in the commentary in paragraphs 10.82, 10.87, 10.89, 10.91, 10.92, 10.93. 5. Mr. Tulzapurkar, however, has submitted that the matter is squarely covered by a Judgment of the Supreme Court in the case of Nandganj Sihori Sugar Co. Ltd. v. Badri Nath Dixit AIR 1991 SC 1525 SCC 54. The learned counsel has relied upon paragraphs 8, 9, 10, 11 and 12 of the aforesaid Judgment. These paragraphs are as follows : "8. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, court do not ordinarily force an employer to recruit or retain in service an employee not required by the employer. There are, of course, certain exceptions 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 ( S.R. Tiwari v. District Board AIR 1964SC 1680 Executive Committee of U.P. State Warehousing Corpn. v. C.K. Tyagi Executive Committee of Vaish Degree College v. Lakshmi Narain AIR 1976 SC 888 see Halsubury's Laws of England, 4th edn., Volume 44, paragraphs 405 to 420). 11. On the facts of this case, the High Court was clearly wrong in issuing a mandatory injunction to appoint the plaintiff. Even if there was a contract in terms of which the plaintiff was entitled to seek relief, the only relief which was available in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upporting the cause of the plaintiff. According to the learned counsel, this shows that the management had actually not lost confidence in the plaintiff. Relying on the commentary mentioned earlier, he submits that loss of confidence cannot be imputed to the management arbitrarily. The employer must show to the Court that the loss of confidence is based on reasonable grounds. No such grounds exist in the present case. Therefore, the plaintiff is entitled to the injunction during the pendency of the suit. 7.1 have considered the arguments put forward by the learned counsel at length. In my view, the law has been settled with regard to the grant of declaration and mandatory injunction in the case of contracts for personal service by the Supreme Court in a number of cases. Two of those cases are S.R. Tiwari v. District Board, AIR 1964 SC 1680 and Executive Committee of Vaish Degree College v. Lakshmi Narainin AIR 1976 SC 888. In Vaish Degree College's Case ( supra ) the Supreme Court has held as under: "The relief of declaration and injunction under the provisions of Specific Relief Act is purely discretionary and the plaintiff cannot claim it as of right" It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the Supreme Court in the case of Ashok Kumar Srivastav ( supra ). The Supreme Court has rather held any paragraphs 18 and 19 of the Judgment, that the declaration which can be granted under section 34 is subject to the limits placed by section 14 of the Specific Relief Act. 9. A perusal of the same would show that the Supreme Court has held that the same limitation was applicable to section 42 of the 1877 Act being para materia to section 34 of the present Act. In paragraph 15 the Supreme Court has held as follows : "15. Thus, the legal position is clear and the respondent cannot now reagitate the question regarding maintainability of the suit under section 34 of the Act. However, learned 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 under section 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-perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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