(1) The defendant is the appellant here. The respondent-plaintiff instituted a suit for declaration that the resolution No. 35 dated 14-3-1950 of the defendant committee is illegal and inoperative and that the plaintiff continues to be their servant and for a mandatory injunction directing the defendant to hold a fresh enquiry giving all facilities to the plaintiff. It was alleged inter alia in the plaint that the plaintiff served as an Accountant in the Guntur Tobacco Market Committee', from 7-7-1939 to 17-1-1943 and subsequently worked as superintendent till 14-3-1950. he came to know during the course of administration that the Secretary of the committee was acting illegally. he therefore complained. The Secretary was naturally embittered and started a counter-attack against the plaintiff by framing a chargesheet against the plaintiff by framing a chargesheet against the plaintiff in pursuance of an anonymous petition. the plaintiff filed explanation to these charges and was demanding some information from the Committee. Before that was supplied to the plaintiff, he was asked to attend the general body meeting of the committee on 4-6-1949. The plaintiff was ready with his written explanation but as the Chairman was not present, the presiding officer bulled the plaintiff. the plaintiff, after the meeting was over, received a copy of the Resolution No. 35 dated 15-3-1950 under which the plaintiff's services were dispensed with. The plaintiff, therefore, contends that the said resolutions is opposed to law, rules and regulations framed for the appointment and punishment of the servants. The plaintiff was entitled to all information in defence of the charges and have his enquiry by the permanent chairman of the committee against whose orders he had a right of appeal. It was contended that the resolution is wrongful, void, illegal and inoperative and that the plaintiff continues to be a servant of the Committee.
(2) The defendant in his written statement raised various pleas. It was contended that the suit is time barred, that the suit is time barred, that the civil court has no jurisdiction to entertain such suit, that reasonable opportunity was provided to the plaintiff that his conduct was most objectionable, that he was guilty of several omissions and commissions which the Committee found against him, that no suit under section 42 of the Specific Relief Act lies and that the plaintiff cannot impose himself on the Committee as a servant.
(3) Upon these pleadings, the trial court framed several issues and after recording the evidence complained of is neither illegal nor void. It was found that the civil court cannot grant a declaratory decree as sought by the plaintiff. he also held that the suit is time barred.
(4) Dissatisfied with that judgment, the plaintiff carried the matter in appeal before the II Additional Subordinate Judge, Guntur. The learned Subordinate Judge allowing the appeal held that the committee had no powers to punish the plaintiff that no reasonable opportunity was provided to the plaintiff and that the resolution is illegal because the matter was not on the agenda at all. It is this view of the learned Subordinate Judge that is now as sailed in the second appeal.
(5) Three contentions are raised before me by Mr. O. Chinnappa Reddy, the learned counsel for the appellant. It was firstly urged that the suit as present constituted is not maintainable both under Sections 21 and 42 of the Specific Relief Act. The second contention was that it is the committee which is the appointing authority and therefore was entitled to punish the plaintiff as he was found to be guilty of the charges. It was finally urged that the plaintiff was given reasonable opportunity and that the Committee took into account the entire record and as the matter was on the agenda disposed it of by inflicting the punishment as is mentioned in the impugned resolution. I will deal with these contentions in the order in which they were canvassed before me.
(6) Now in regard to the first contention relating to the maintainability of the suit the argument is two-fold. It is urged firstly that a suit on behalf of a servant of the Committee for a declaration that he continues to be a servant of the committee does not lie under Section 42 inasmuch as it is not a legal character regarding which a declaration can be given by the Civil court. Secondly, it is submitted that the effect of such a declaration is to compel the committee to continue an unwanted person in their service which is opposed to Section 21 of the Specific Relief Act. It is necessary in my opinion, to deal with these two contentions separately. Under section 42 of the Specific Relief Act, the essential requisites for a declaratory action are : (1) that the plaintiff must at the time of the suit be entitled to any legal character or to any right as to any property 920 the defendant should have denied or be interested in denying the character or title of the plaintiff, (3) the declaration asked for must be a declaration that the plaintiff is entitled to a legal character or to a right to property and (4) the plaintiff is not in a position to claim further relief than a bare declaration of his title or where he is so able to seek further relief, he is seeking such relief also.
A close reading of this section reveals that it is necessary in order to succeed that the plaintiff should satisfy all these conditions. he must first be entitled to a legal character if he wants to get a declaration from the court. What is 'legal character' within the connotation of Section 42 has been elaborately discussed in Shanta Shamsher v. Kamani bros., : AIR1959Bom201 . It is unnecessary to produce what all has been said in the above said decision. It is perhaps enough for the present purposes to state that Mody, j. observed :
'Legal status of a subject may arise in relation to Private Law or in relation to Public Law. A persons franchise or right to vote or right to a public office would constitute his status in relation to Public Law.
Status arises by reason of some peculiarity of the person of inherence or the person of incidence. The person may be a natural person of incidence. The person may be a natural person i.e. a human being or an artificial person i. e. ., a juristic person, like a company or what is known in English law as a corporation sole. The personality of an artificial person is different from that of a normal natural person and it constitutes his status in law.
'Legal Character' as used in Section 42 is equivalent to legal status, and legal status is a legal right when it involves a peculiarity of the personality arising form anything unconnected with the nature of the act itself which the person of inherence can enforce against the person of incidence.'
Referring to Holland (page 351) and in particular to the 8th variety of status among natural persons which is, rank, caste and official position' the learned Judge held :
' A managing director cannot therefore be said to have any legal status Now, amongst the said 16 varieties of legal status mentioned by Holland by way of illustration, the 8th variety is 'rank caste and official position' and Mr. Bhatta contended that 'official position' would include managing directorship. Now, the said 16 varieties of status mentioned by Holland are to be understood in the light of the general principles formulated by Holland, otherwise some of the said varieties having been mentioned generally are liable to create a misunderstanding. Fortunately apart from the said general principles, Holland himself gives (page 3550 illustrations of 'office' as used in used in the said 8th variety as follows :
'8' The king, according to the maxim of English law, can do no wrong. No action can be brought against him, nor indeed against a foreign sovereign, as such or his ambassador. certain high officials are exempted from responsibility for the acts of their subordinates, and various public functionaries are relieved from liability by the Statutes of Limitation at an earlier date than other people.' The King or the high officials mentioned in this illustration have a legal status, as they have a peculiarity of personality as in the case of a minor which exists independently of any particular right which they claim and which they can enforce against the persons of incidence. It is in this sense that 'official position' or 'office' has been used in the said 8th variety and as seen earlier, managing directorship cannot fall with in it. On the test mentioned above, it is clear that when rights were claimed under a contract the same would not amount to 'legal character' under section 42 as held in some of the cases I have referred to above. Nor is the question whether the judgment in a particular case would amount to a judgment in rem a test of 'legal character' as urged by Mr. Munshi, because the division of legal rights into rights in rem and rights in personam is of no relevance in judging legal status or legal character.'
Applying this test to the facts of this case, it is almost obvious that the Accountant's status is not such which constitutes as legal character within the meaning of section 42. No doubt he holds an official position but not of that character which would entitle him to call it as a legal character regarding which he can seek declaration.
(7) Apart from what is stated above, S. 21 of, the specific Relief Act makes a contract, which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms, not specifically enforceable. it is thus clear that the contract of personal service cannot be specifically enforced. No Court can compel any person to continue to employ in service any servant whose service is of personal nature. it cannot be doubt that an Accountant's post depends upon not only the confidence but also the efficiency of the person. The personal qualities of the person with whom the contract is entered into figure prominently in such position it cannot be stated that the Accountant's service is not of trust and confidence. In cases of breach of a contract of such service, therefore, that is where the employer terminates the service of the employee on unreasonable or illegal grounds, the remedy of the aggrieved employed is not to imposed himself through a declaration or a permanent injunction upon the employer but to sue for damages as it is not possible to specifically enforce his service by specific performances. The result of the decree passed by the learned subordinate Judge is to impose the plaintiff upon the committee whether they have confidence in him or not. That is precisely what is prohibited by Section 21(b) of the specific Relief Act.
(8) In Krishna Rao v. Anjaneyulu, : AIR1954Mad113 , a Bench of the Madras High Court observed :
'Where the plaintiff had sued not for damages in breach of contract e. g. for wrongful dismissal, but only for a declaration without any consequential relief, the suit was in a prima facie violation of the provision to Section 42 and the pendency of proceedings under section 145, Criminal Procedure Code, would not make it maintainable.
A suit for declaration with a consequential relief of a injunction restraining the defendants form interfering with the plaintiff's exercise of powers and duties as secretary and treasurer is really tant amount to specific performance of a contract of personal service which comes under S. 21(b) and cannot therefore be specifically enforced.'
(9) In Ram 21(b) read with Section 56(f) makes it clear that a contract to render personal service cannot be specifically enforced . An injunction not to commit breach of contract is only another way to enforce the contract. The theory is that the contract of hiring personal service is of such a personal nature and there cannot be any hope of ultimate and real success by the enforcement of it by law Courts. Assuming that the employer was not justified in demoting the employee, the remedy of the later is to seek damages for breach of contract and not to enforce the contract by getting an injunction.'
(10) In Bindraban v. State of Himachal Pradesh, Chowdhry J. c. Stated :
'A contract of personal service is not specifically enforceable and suit by an employee for the relief of reinstatement is liable to be dismissed.'
(11) The learned Advocate for the respondent relied upon I. M. Lall v. Secy. of State, AIR 1944 Lah 240. It is no doubt true that in the above said case the Lahore High Court held that the Courts can grant the plaintiffs declaration that the order of removal from Indian Civil Service in his case was wrongful, void illegal and inoperative and that he is still a member of the Indian Civil Service. On appeal to the Federal Court, however, their Lordships, Spens, c. J. and Zafrulla Khan, J. held in Secy of state v. I. M. Lall, AIR 1945 FC 47 that Mr. Lall was not entitled to the declaration prayed for and the proper remedy was to sue for damages for wrongful dismissal. On further appeal to the Privy Council their Lordships in High Commr. for India v. I. M. Lall, AIR 1948 PC 121 upheld the view of the Lahore High Court and granted a declaration to Mr. Lall which he had sought in his suit This case, however, has to be understood in the context of the facts involved in that case. The said case was considered by the Bench of the Madras High Court in : AIR1954Mad113 and it was observed :
'We cannot take that decision as an authority for bypassing the provision to Section 42, Specific Relief Act and as general authority for Courts to make declarations where the plaintiff being able to seek further relief omits to do so.'
(12) Similarly, this case fell for a careful scrutiny of the Supreme Court in Dr. S. B. Dutt v. University of Delhi, : 1SCR1236 where the appellant, who was a Professor in the Delhi University was dismissed from service by the respondent . He thereupon referred the dispute as to his dismissal and certain other disputes to arbitration under the provisions of Section 45 of the Delhi University Act. An award was made on the reference which among other things decided that the appellant's dismissal was ultra vires, mala fide, and has no effect on his status and he still continues to be a professor of the University. When the matter reached the High court, it was held that it was not open to the arbitrator 'to grant Dr. Dutta a declaration that he was still a professor in the University which no court or would give him'. the High court obviously felt that the declaration amounted to specific enforcement of contract of personal service which was forbidden by section 21 of the Specific Relief Act. The supreme court said :
'We are in entire agreement with the view expressed by the High court . There is no doubt that a contract of personal service cannot be specifically enforced. Section 21, clause (b) of the Specific Relief Act, 1877 and the second illustration under this clause given in the section make it so clear that further elaboration of the point is not required. it seems to us that the present award does purport to enforce a contract of a personal service when it states that the dismissal of the appellant 'has no effect of his status' and 'He still continues to be a Professor of the University'. When a decree is passed according to the award, which if the award is unexceptionable has to be done under S. 17 that decree will direct that the award be carried out and hence direct that the appellant be treated as still in the service of the respondent. It would then enforce a contract of personal service, for the appellant claimed to be a professor under a contract of personal service, and so offend. Section 21(b). '
Referring to the case of AIR 1948 PC 121 their Lordships observed:
'All that the Judicial committee did in this case was to make a declaration of a statutory invalidity of an act, which is a thing entirely different from enforcing a contract of personal service.'
'All that the Judicial committee did in this case was to make a declaration of a statuary invalidity of an act, which is a thing entirely different from enforcing a contract of personal service.'
(13) A careful and close examination of the provisions of the Specific Relief Act and the cases cited above would reveal that contract of personal service cannot be enforced both because it is not a 'legal character' within the meaning of S. 42 and also because such an enforcement would offend Section 21(b) of the Specific Relief Act. It must be remembered in this connection that the service of the plaintiff depended upon a contract which he had entered into with the committee. The Committee therefore is free to terminate the service of the plaintiff and if such termination of service is in violation of the contract, the only remedy the plaintiff can have is to sue the Committee for damages. Assuming that without affording any opportunity to him, he was dismissed, even then that would amount to a breach of contract which might furnish a cause of action to sue for damages. In the face of Section 42 and Section 21(b) of the specific Relief Act, it is not permissible for the civil Court to grant declaration to the plaintiff that he continues to be in service of the Committee. I am therefore satisfied that the plaintiff cannot get the relief which he is seeking in the present suit.
(14) In regard to the question whether the committee was competent to terminate the services of the plaintiff, what was contended by the learned counsel for the respondent is that according to the rules and bye-laws, it is the Chairman who could punish the servants of the Committee and not the committee. It is contended that the committee is the appellate authority under the rules and bye-laws and cannot therefore usurp the powers of the Chairman. I do not think any effect can be given to this connection. It is not in doubt that the Committee is constituted under the Madras Commercial crops Markets Act, 1933, Section 9 of which is in the following terms :
' 9 (1) Subject to such rules as may be made by the Provincial government in this behalf, a Markets Committee may employ such offers and servants as may be necessary for the management of the market, may pay such officers and servants such salaries as it may think fit and shall have power to control and punish them. The Committee may also provide for the payment to its officers and servants of such leave allowances as it deems proper; and may contribute to any Provident Fund which may be established for the benefit of such officers and servants.
(2) the committee shall, in the case of any servants of the Crown whom it employs, make such contributions towards his pension and leave allowances as may be required by the conditions of his service under the Crown, to be paid by him or on his behalf.
(3) The Chairman, vice-Chairman and every officer or servant of a market committee shall be deemed to be public servants with in the meaning of Section 21 of the Indian Penal Code.'
Another section which requires study is Section 18, which as far as material is as follows :
'18. (1) The Provincial Government may, either generally or specially for any notified area or areas, make rules consistent with this Act for carrying out all or any of the purpose thereof.'
(15) It is not in dispute that no rules were made under Section 18 (1) by the State Government in regard to the conditions of service of the employees of the Committee. What is, however, contended is that the committee itself had framed certain is that the Committee itself had framed certain rules in regard to the terms and conditions of its servants. The rules prepared by the Committee were placed by the Director before the Government and the Government under Exhibit A.47 dated 6th September, 1944 approved generally the conditions of the services of the staff of the market committees proposed by the Director subject to the modification that the authority competent to appoint and punish the staff will be the chairman of the committee. The said G. O., in paragraph 3, states that the Director is requested to advise the market committee to adopt as far as possible the scales of pay and allowances and conditions of services as approved in paragraph 1 and 2 of the said G. O. A reading of that G. O. would satisfy any one that the Government had not proposed to frame any rules regarding the conditions of service under the general power of rule making conferred on it in section 18 (1) of the Madras Commercial Crops markets Act. It is conceded that the said Act does not confer any power on the committee to make rules.
(16) Reliance was then placed on Exhibit A. 58, that is the communication from the Director of Agriculture to the Chairman of the various Market Committees including the Committee. In paragraph 2 of the said letter it is stated :
' Government have also approved generally the conditions of service of the staff of the market committees as proposed by me - Vide annexure-II - Subject to the modification that the authority competent to appoint and punish the staff will be the Chairman of the Committee.
Paragraph 3 runs as follows :
'I am to advise you to adopt as far as possible the scales of pay and allowances and conditions of service as approved by Government.'
(17) This letter of the Director supports the conclusion which I have reached that the government has not framed any rules in regard to conditions of service under their general power of rule making. What the Government decided was to ask the committees to adopt those terms and Conditions of service and that desire of the Government has been communicated therefore could have asked the government to make rules in that behalf in order to clothe them with authority of law or ought to have adopted themselves if they could in their bye-laws. In this case, it is no doubt true that the Committee in one of their bye-laws say that the Chairman will be the authority to punish the servants of the Committee and that the Committee will be appellate authority. But it was not made in pursuance of the advice by the Government and communicated by the Director. It is thus clear that the draft conditions of service annexed to the letter of the Director were not adopted until the date when the plaintiff was removed form service.
It was suggested in the course of the arguments that the Committee has subsequently adopted some of the rules. be that as it may, one questions which leaps to the eye is what is the legal authority of the above said bye-law or the adoption of any such conditions of service by the Committee? I have no doubt that either the Government should have made the rules under Section 18 of the Act or the Committee, if permitted ought to have made the conditions of service a part of their bye-laws In any case, however, those conditions of service could not be inconsistent with section 9 of the said Act. It cannot be ignored that the Act lays down that it is the committee which is the appointing authority and consequently must be the authority to inflict punishment upon its servants and officers. In violation of Section 9, therefore, neither the Government under the rule-making power nor the Committee under the bye-law making power can convert the Committee into an appellate authority and introduce a new authority, that is the chairman who can inflict the punishment on the servants and officers of the Committee.
It is conceded that such a provision would be inconsistent with section 9 of the Act., What section 18 authorises the Government is to make rules not inconsistent with Section 9 of the Act. The Government in this case has not framed any rule but had merely tendered advice to the Committee. The Committee in pursuance of such advice could not adopt or make a bye-law which is inconsistent with section 9. Bye-law 20, clauses 92) and (30 which was then, therefore and which makes the chairman as the original authority to punish the servants and the Committee as the appellate authority to hear appeals if preferred against such an order is clearly inconsistent and therefore ultra vires of Section 9 of the said Act. The committee therefore continues to enjoy the statutory right not only to appoint the servants and officers but also the disciplinary powers rest with the committee.
(18) I had no occasion to consider the validity of such a rule or bye law or resolution on W. P. No. 203 of 1962, D/- 2-3-1964 (Andh Pra). After elaborately considering the statutory and delegated powers in regard to the appointment and dismissal of servants of statutory bodies. it was held that any resolution of the Committee or the rule or bye-law inconsistent with the Act would be ultra vires. I have therefore no hesitation in holding that the Chairman has no power to inflict any punishable upon the servants or officer of the committee . The Committee therefore continues to hold that power. It cannot be clothed with powers only to hear the appeals in case they are preferred and cannot make the orders of the Chairman absolute or final if no appeals are preferred against them. That is obviously contrary to the intention of the Legislature embodied in Section 9 of the Act. The lower court was in error in holding that it is the Chairman who had the power and not the Committee.
(19) Now in regard to the final contention that the matter was not on the agenda of the general body and that the plaintiff was provided sufficient opportunity to defend himself , it is perhaps enough to say that the plaintiff cannot in law seek the relief asked on that ground. Even otherwise, I am satisfied that the matter was on the agenda and the plaintiff was given fuller opportunity not only to gather the necessary material but also to submit his explanation. He did not keep the evidence ready and therefore cannot make a complaint that he was not provided with an opportunity to adduce evidence . His grievance that the Committee did not consider the entire material nor gave a reasoned order is also far from being correct. A reading of the resolution adopted in that committee would disclose that the Committee went through the entire material and the explanation which had already been submitted by the plaintiff and after a careful consideration of the said material had reached the conclusion that it was not desirable to continue the services of the plaintiff and that is why his services were terminated.
Exhibit A-21 indicates that the Chairman of the Committee wrote to the plaintiff that his request to peruse the record will be considered if he submits a list of documents which he would like to peruse in connection with his case. He was directed to attend the office on a particular date at a particular time. Ex. A.22 directs the plaintiff to attend the head office on 25th January, 1950 to peruse the said record. The plaintiff it seems, earlier through his letter dated 24-1-1950 had already submitted a list of the documents which he would like to peruse. On 25th January, 1950 in Exhibit A.23 it is mentioned by the Chairman:
'As you have been given the opportunity to peruse into the documents and take information relating to the charges framed against you pending enquiry, you are now hereby required to submit your final explanation, if you have any, before 12 noon of 28-1-1950.'
(20) He was also informed that his case will be taken by the general body for consideration on 28-1-1950. The matter could not however, the plaintiff wrote to the Chairman that the time granted to him further reasonable time and mentioned that one day more would be enough. It is no doubt true that the said letter again mentions that ' I shall be in the Head office with the details of further information wanted and see records above reference.' but he had already seen the record according to the list which he had submitted. In his letter of 7-3-50 the plaintiff promised to try his best for submitting his final explanation on the day of the ensuing meeting and promised further that he would offer his co-operation to at least start considering his subject during the ensuing meeting. In a letter dated 8-3-1950 in regard, to further information which the plaintiff had asked further information was supplied to him in regard to most of the items.
It is pertinent to note in this connection that when he appeared before the general body meeting on the appointed day, he did not make a complaint to the committee that some further information was necessary. It is seen from the resolution as adopted by the committee that his behaviour before the Committee was objectionable. He was not ready with his additional explanation and was not ready with his evidence . The Committee in those circumstance had no other alternative than to examine the record as it existed then and as the plaintiff did not extend any co-operation although promised, the Committee reached the conclusion on the present record that the plaintiff cannot continue in service. The plaintiff does not seem to have made any grievance thereafter. I have already extracted the grounds on which he wanted to attack the resolution. I am satisfied from the record that not only he was provided with more than reasonable opportunity to gather the information but was also afforded sufficient opportunity to gather the information but also afforded sufficient opportunity to gather the information but was also afforded sufficient opportunity to submit his explanation. he was also provided with opportunity to lead evidence as he wanted.
His attitude however was objectionable. The employed dilatory tactics and was more after gaining time rather than getting himself clear of the charges. It is true that he had made some grievances against the Secretary and Chairman had promised to look into it. But that does not mean that both the cases must be heard together. Nor can he insist that that case should be disposed of earlier. His case was clearly on the agenda and there was no reason for him to suppose that the case relating to his complaint against the Secretary was on the agenda and not the complaint of the committee against him. He clearly understood that it was his case which was on the agenda. he went therefore prepared. In any case, that is not the grievances which he makes in his plaint. I am therefore satisfied that the subject-matter of the suit was on the agenda. He was aware of it. he tried to meet it but the record was entirely against him and therefore his witnesses were dispensed with. The trial Court reached the correct conclusion and in my opinion the lower appellate court has erred in reaching the conclusion that the matter was not on the agenda or that the plaintiff was given reasonable opportunity. There is no material to support this conclusion. I am therefore satisfied that there is no flaw either in the conduct of the enquiry or in passing the impugned resolution. The Committee was competent to dispense with the services of the plaintiff and that he was rightly removed from service.
(21) For all these reasons, I would allow the second appeal, set aside the judgment and decree of the learned Subordinate Judge and restore that of the trial Court. The appellant will be entitled to get costs throughout. No leave.
BI/ VSB/ D. V. C.
(22) Appeal allowed.