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CASE NO.:

Appeal (civil) 5348 of 2002

PETITIONER:

M/s. Pearlite Liners Pvt. Ltd.

RESPONDENT:

Manorama Sirsi

DATE OF JUDGMENT: 06/01/2004

BENCH:

BRIJESH KUMAR & ARUN KUMAR

JUDGMENT:

JUDMENT

ARUN KUMAR, J

The respondent filed a suit for declaration and permanent injunction

against the appellant with the following prayers :

"(a) declaring that the transfer order of the plaintiff dated

11.1.86 issued by the secretary of the first defendant

company from its Head Office to the Shankar Rice Mill

Godown, Shimoga belonging to M/s. Bharath Founders is

illegal void and inoperative and further declare that the

plaintiff is to be in the service of the first defendant

company and she is entitled to all the emoluments

including her salary.

(b) for permanent injunction restraining the

defendants from holding any enquiry against the plaintiff

on the ground that she has not complied with the order of

transfer dated 11.1.86 and she is guilty of insubordination

etc. as stated in the articles of charges dated 17-1-87

and enquiry indicated in the notice dated 2-2-87."

The appellant while denying the averments contained in the plaint

took an objection that the Civil Court had no jurisdiction to try the suit. The

trial court framed various issues in the suit. The relevant issue for the

present purpose is :

"Issue No 5 : whether defendant No.1 proves that this

Court has no jurisdiction to try the suit."

The trial court decided the said issue in favour of the defendant and

held that the court had no jurisdiction to entertain the suit as it was not

maintainable and the plaint was liable to be rejected. The appeal filed by

the respondent-plaintiff against the said judgment of the trial court

remained unsuccessful. The judgment of the trial court on Issue No.5 was

affirmed by the appellate court while dismissing the appeal. The

respondent plaintiff filed a regular second appeal against these judgments.

The appeal succeeded. The High Court held that the defendant had failed

to prove that the suit was not maintainable before the Civil Court. The trial

court was directed to dispose of the suit on merits in accordance with law.

The defendant has filed the present appeal against the judgment of the

High Court.

Briefly the facts are :

That the plaintiff was appointed by the defendant Company in the

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year 1976 on a monthly salary of Rs.535/- as a trainee accountant. She

was promoted as an Officer with a monthly salary of Rs.1605/-. On 11th

January, 1986, the plaintiff was transferred from the head office of the

defendant Company to its sales-office-cum-godown located at Shanker

Rice Mill Compound, Shimoga. The said office is within the same city.

However, according to the plaintiff the location of the office was not good

and no amenities for the staff were available at the said office. The plaintiff

did not comply with the said transfer order and continued to be

unauthorisedly absent from work. On 17th January, 1987, a charge sheet

was issued to the plaintiff to which she did not give any reply. The present

suit was filed on 12th February, 1987. According to the defendant the

prayers in the suit really amount to enforcement of a contract for personal

service, a relief which a civil court cannot grant.

Therefore the legal question for consideration which arises is :

"Can a contract of service be specifically enforced?"

The relationship between the parties is based on a contract between

two private parties. Admittedly, there is no written contract. If there had

been a written contract, it would have contained terms and conditions

governing the relationship between the parties. Inspite of absence of a

written contract governing the relationship between the parties,

respondent-plaintiff challenged the transfer order by filing the present suit.

She raised several grounds in this behalf including that the transfer was

illegal as it was to a different Company. The transfer was to a lower post

which means it is by way of punishment. Further according to the plaintiff

the place to which she had been transferred was not suitable to work at.

The defendant denied all these allegations in the written statement. Apart

from challenge to the transfer order, the plaintiff sought a declaration that

she continued to be in service of the defendant and was entitled to all

emoluments including salary. Further an injunction was prayed to restrain

the defendant from holding inquiry against the plaintiff. Significantly, no

prayer for damages for breach of contract was made in the suit.

Learned counsel for the appellant argued that the prayers in the suit

seek reinstatement of the plaintiff as an employee of the defendant

Company which really amounts to specific performance of a contract of

personal service which is specifically barred under the provisions of the

Specific Relief Act. It is a well settled principle of law that a contract of

personal service cannot be specifically enforced and a court will not give a

declaration that the contract subsists and the employee continues to be in

service against the will and consent of the employer. This general rule of

law 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; (ii) where a worker is

sought to be reinstated on being dismissed under the Industrial Law; and

(iii) where a statutory body acts in breach of violation of the mandatory

provisions of the statute. [Per Executive Committee of Vaish Degree

College,Shamli and ors. Vs. Lakshmi Narain and Ors.{ (1976) 2 SCC 58} ].

The present case does not fall in any of the three exceptions. It is

neither a case of public employment so as to attract Article 311 of the

Constitution of India nor the case is under the Industrial Disputes Act. The

defendant is not a statutory body. There is no statute governing her

service contitions. The present is a case of private employment which

normally would be governed by the terms of the contract between the

parties. Since there is no written contract between the parties, the dispute

cannot be resolved with reference to any terms and conditions governing

the relationship between the parties. The plaintiff has neither pleaded nor

there has been any effort on her part to show that the impugned transfer

order was in violation of any term of her employment. In the absence of a

term prohibiting transfer of the employee, prima facie the transfer order

cannot be called in question. The plaintiff has not complied with the

transfer order as she never reported for work at the place where she was

transferred. As a matter of fact, she also stopped attending the office from

where she was transferred. Non-compliance of the transfer order by the

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plaintiff amounts to refusal to obey the orders passed by superiors for

which the employer can reasonably be expected to take appropriate action

against the concerned employee. Even though it is a case of private

employment, the management proposed to hold an enquiry against the

delinquent officer, that is, the plaintiff. In case of such insubordination,

termination of service would be a possibility. Such a decision purely rests

within the discretion of the management. An injunction against a transfer

order or against holding a departmental enquiry in the facts of the present

case would clearly amount to imposing an employee on an employer, or to

enforcement of a contract of personal service, which is not permissible

under the law. An employer cannot be forced to take an employee with

whom relations have reached a point of complete loss of faith between the

two.

Let us now examine the prayers in the suit in the light of averments

contained in the plaint. It is stated in Para 6 of the plaint that the Secretary

of the Company warned her about her timings and issued a memo about

her attendance. He demanded her resignation on 15th December, 1983.

She did not resign as per the request. It is further stated in Para 7 that

"she was discriminated against in the matter of providing incentives in May,

1985\005\005\005\005.. She gave a representation to the Directors establishment

to consider this aspect of the matter. Secretary in his reply dated 23rd May,

1985 abused her that she was not working properly\005\005\005." In Para 8, it is

stated that the Secretary further issued her a notice stating that she had

not worked for two years. Then follows the impugned transfer order dated

11th January, 1986. The plaintiff has further alleged that her representation

against the said transfer order was not considered. This was followed by a

notice to conduct an enquiry against the plaintiff. In the background of

such facts, the plaintiff has in the suit made the following prayers :

" (a) Declaring that the impugned transfer order is

illegal, void and inoperative.

(b) The plaintiff continues to be in service of the

defendant Company and is entitled all emoluments including

salary; and

( c ) Permanent injunction restraining the defendant

from holding an enquiry against the plaintiff.

The question arises as to whether in the background of facts

already stated can such reliefs be granted to the plaintiff. Unless there is a

term to the contrary in the contract of service, a transfer order is a normal

incidence of service. Further it is to be considered that if the plaintiff does

not comply with the transfer order it may ultimately lead to termination of

service. Therefore, a declaration that the transfer order is illegal and void

in fact amounts to imposing the plaintiff on the defendant inspite of the fact

that the plaintiff allegedly does not obey order of her superiors in the

Management of the defendant Company. Such a relief cannot be granted.

Next relief sought in the plaint is for a declaration that she continues to be

in service of the defendant Company. Such a declaration again amounts

to enforcing a contract of personal service which is barred under the law.

The third relief sought by the plaintiff is a permanent injunction to restrain

the defendant from holding an enquiry against her. If the management

feels that the plaintiff is not complying with its directions it has a right to

decide to hold an enquiry against her. The management cannot be

restrained from exercising its discretion in this behalf. Ultimately, this relief

if granted would indirectly mean that he court is assisting the plaintiff in

continuing with her employment with the defendant Company, which is

nothing but enforcing a contract of personal service. Thus, none of the

reliefs sought in the plaint can be granted to the plaintiff under the law.

The question then arises as to whether such a suit should be allowed to

continue and go for trial. The answer in our view is clear, that is, such a

suit should be thrown at the threshold. Why should a suit which is bound to

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be dismissed for want of jurisdiction of a court to grant the reliefs prayed

for, to be tried at all? Accordingly, we hold that the trial court was

absolutely right in rejecting the plaint and the lower appellate court rightly

affirmed the decision of the trial court in this behalf. The High Court was

clearly in error in passing the impugned judgment whereby the suit was

restored and remanded to the trial court for being decided on merits. The

judgment of the High Court is hereby set aside and the judgments of the

courts below, that is, the trial court and the lower appellate court are

restored. The plaint in the suit stands rejected.

The appeal is allowed. The parties are, however, left to bear

their respective costs.