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Electronics Corporation of India Vs. Government of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1977)IILLJ86AP
AppellantElectronics Corporation of India
RespondentGovernment of Andhra Pradesh and anr.
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......b.j. divan, c.j.1. this appeal has been filed under clause 15 of the letters patent against the decision of our learned brother, jeevan reddy, j., in writ petition no, 1575 of 1976.2. the petitioner in the writ petition is a public limited company registered under the companies act and the 2nd respondent was an employee of the petitioner-company. he was originally appointed as a labour. welfare officer in the scale of rs. 700-1,250 on 23rd. october, 1967. the 1st respondent in the writ petition is the secretary to government, employment and social welfare (t) department, government of andhra pradesh, hyderabad, the appointment of the 2nd respondent as a labour. welfare officer was duly notified to the chief ins-inspector of factories as required by rule 76a of the andhra pradesh factories.....
Judgment:

B.J. Divan, C.J.

1. This appeal has been filed under Clause 15 of the Letters Patent against the decision of our learned brother, Jeevan Reddy, J., in Writ Petition No, 1575 of 1976.

2. The petitioner in the writ petition is a public limited company registered under the Companies Act and the 2nd respondent was an employee of the petitioner-company. He was originally appointed as a Labour. Welfare Officer in the scale of Rs. 700-1,250 on 23rd. October, 1967. The 1st respondent in the writ petition is the Secretary to Government, Employment and Social Welfare (T) Department, Government of Andhra Pradesh, Hyderabad, The appointment of the 2nd respondent as a Labour. Welfare Officer was duly notified to the Chief Ins-Inspector of factories as required by Rule 76A of the Andhra Pradesh factories Rules, 1950, it is the case of the petitioner that, in the same scale of pay, there were several posts of Assistant Personnel Managers in the petitioner-company. These posts had further avenues of promotion, whereas there was no avenue of promotion for the post of Labour Welfare Officer. Because of the better opportunities for promotion in the cadre of Asst. Personnel Managers, the 2nd respondent requested the petitioner-company in September, 1969, that the designation of the post held by him should be changed to that 'Assistant Personnel Manager. On receiving the said representation, the petitioner-company consulted the Chief Inspector of factories in that behalf and in a letter addressed by the petitioner-company ob 2nd November, 1970, in this connection, it was stated that the 2nd respondent was a senior executive officer in the scale of Rs. 700-1,250 and that, in addition to his normal welfare duties, he had been designated as in-charge of the Transport Section and the Estate Management of the Corporation, which duties were stated to be akin to the welfare activities of the employees of the petitioner-company. Hence the proposal to designate the 2nd respondent as Asst. Personnel Manager (Welfare) was also mooted in the same letter and the approval for the said change of designation was sought for from the Chief Inspector of Factories. By his letter dated 1st March, 1971, the Chief Inspector of Factories informed the petitioner-company that he had no objection to the company re-designating the post of the Labour Welfare Officer as Assistant Personnel Manager (Welfare) in the circumstances set out in the petitioner-company's letter, dated 2nd November, 1970. After the approval was accorded by the Chief Inspector of Factories, the 2nd respondent was designated as Assistant Personnel Manager (Welfare). Subsequently, the said designation was again changed to Assistant Personnel Manager (Establishment) on 9th July, 1974. It is the contention of the petitioner-company that, after the 2nd respondent was designated as Assistant Personnel Manager (Establishment), he was not discharging any duties connected with the well are of Labour. On 1st November, 1975, the 2nd respondent Was promoted as Personnel Manager (Establishment). On 14th January, 1976, the 2nd respondent's services were terminated by the petitioner-company. It is the petitioner's case that the termination of the services of the 2nd respondent was not by way of any punishment, but was without any stigma of punishment.

3. The 2nd respondent appealed to the Government of Andhra Pradesh under Rule 76A(4)(v) of the Andhra Pradesh Factories Rules (hereinafter referred to as the rules). The Government allowed the appeal of the 2nd respondent and, by its order dated 1st May. 1976, set aside the order of the petitioner-company terminating the services of the 2nd respondent and directed that he should be reinstated in service with immediate effect. It is this order that has been challenged by the petitioner-company in this writ petition.

4. Before our learned brother, Jeevan Reddy, J., the petitioner-company had taken three contentions. The first contention was that with effect from 9th July, 1974 the 2nd respondent had ceased to be a Labour Welfare Officer and hence there was no question of any appeal being filed by the 2nd respondent to the State Government against the order of termination of service passed by the petitioner-company on 14th January, 1976. The next contention was that, even after the 2nd respondent was a Labour Welfare Officer working with the petitioner-company, the appeal to the State Government was not competent since the order of termination of service was not by way of any punishment. The third and the last contention was that, in any event, it was not competent to the Government to reinstate the 2nd respondent in service, since the relationship between the petition's-company and the 2nd respondent was that of master and servant and there was no question of any status so far as the 2nd respondent was concerned. Our learned brother, Jeevan Reddy, J., held that the 2nd respondent was a Labour Welfare Officer. He, however, held that the appeal to the State Government was not competent. He, further held that Article 226 of the Constitution could not be availed of for the purpose of continuing en injustice and even though the State Government had no jurisdiction to hear the appeal, the jurisdiction under Article 226 of the Constitution should not be utilised, as that would perpetrate an injustice to the 2nd respondent. He further held that the order of reinstatement was a proper order and that it was not necessary to quash the order of the Government on the appeal filed by the 2nd respondent. He, therefore, dismissed the writ petition tiled by the petitioner-company. Thereafter, the petitioner-company bus filed this writ appeal against the order and judgment of our learned brother, Jeevan Reddy, J.

5. On the first point, it must be borne in mind that the fact finding, authority as to whether the 2nd respondent was or was not a Labour Welfare Officer working with the petitioner-company was the Government and it is for the Government, as a fact-finding authority, to decide whether the 2nd respondent was or was not a Labour Welfare Officer. At the same time, if, by a wrong decision on that point, the Government assumed jurisdiction to itself, then the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, can examine for itself the materials which were placed before the Government and come to its own independent conclusion whether the 2nd respondent was or was not a Labour Welfare Officer. We must point out that our learned brother, jeevan Reddy, J., has carefully examined the materials on record and has come to the conclusion that the 2nd respondent, till the date of his dismissal, was a Labour Welfare Officer.

6. In order to appreciate the contentions urged in this writ appeal, it is necessary to refer to a few of the provisions of the Factories Act and the Andhra Pradesh Factories Rules. The Rules were framed by the State Government, in exercise of the powers conferred upon it by Section 112 of the Factories Act, 1948. Under Section 112, the State Government may make rules providing for any matter which, under any of the provisions of the Act, is to be or may be prescribed or which may be considered expedient in order to give effect to the purposes of the Act. Prior to 1st November, 1956, the Madras Factories Rules, 1950, were in force in the Andhra region and the Hyderabad Factories Rules, 1952, were in force in the Telangana region of Andhra Pradesh. For achieving uniformity, the Madras Factories Rules were adopted with certain amendments for the entire State and the Hyderabad Factories Rules were superseded in 1960. They are now called as Andhra Pradesh Factories Rules, 1950. Under Section 49 of the Factories Act, provision is made for appointment of Welfare Officers and in every factory wherein 500 or more workers are ordinarily employed, the occupier shall employ in the factory such number of Welfare Officers as may be prescribed : and the State Government may prescribe the duties, qualifications and conditions of service of officers employed under Sub-section (1) of Section 49. Rule 76A provides for Welfare Officers and under Sub-rule (1), the occupier of every factory, where 500 or more workers are employed, shall appoint at least on Welfare Officer and where the number of workers exceeds 2,000, one additional Welfare Officer shall be appointed for every additional 2,000 workers or fraction thereof over 500 and where there are more than one Welfare Officer, one of them shall be called the Chief Welfare Officer and the others Assistant Welfare Officers. Under Sub-rule (4) of Rule 76A conditions of service of Welfare Officers have been prescribed and we are concerned in this case with Clauses (iii), (v) and (v) of Rule 76A(4). Under Sub-rule (3) of Rule 76A the post of Welfare Officer has to be advertised in two newspapers having a wide circulation in the State, one of which should be an English newspaper. Selection for appointment to the post of Welfare Officer has to be made from among the candidates applying for the post by a committee appointed by the occupier of the factory. The appointment, when made, has to be notified by the occupier to the Commissioner of Labour and the Chief Inspector giving the details of the qualifications, age, pay, previous experience and other relevant particulars of the Officer appointed and the terms and conditions of his service. The required number of Welfare Officers have to be appointed within 120 days from the date on which such appointments are due to be made under Sub-rule (1) of Rule 76A or from the date of resignation, dismissal or termination of services of any Welfare Officer.

7. Rule 76A (4) provides for conditions of service of Welfare Officers. Clause (iii) is in these terms:

The service of a Welfare Officer shall not be dispensed with, nor shall he be reverted, without the written concurrence of the Commissioner of Labour, Hyderabad, who shall record his reasons therefor.

Clause (iv) provides:

No punishment such as withholding of increments, including stoppage at any efficiency bar, reduction to a lower stage in the time-scale, suspension, dismissal or termination of service, except censure, shall be imposed by the management on a Welfare Officer, except with the previous concurrence of the Labour Commisioner.

Clause (v) provides.

A Welfare Officer, who has been dismissed from service or whose services have been terminated in any other manner than as provided in Clause (iv) above may within 30 days from the date of receipt of the order by him, appeal to the State Government against the order of punishment made by the management with the concurrence of the Commissioner of Labour and the decision of the State Government thereon shall be final.

8. It is, therefore, clear that, unless the 2nd respondent was a Welfare Officer, the protection afforded to a Welfare Officer by Clauses (iii) and (iv) of Rule 76A(4) would be of no avail to him and that, if he was not a Welfare Officer, the appeal filed by the 2nd respondent to the State Government would not be competent. The crucial question in this case is whether on 14th January, 1976, when the order terminating the services of the 2nd respondent was passed by the petitioner-company, the 2nd respondent was a Labour Officer in the employment of the petitioner-company.

9. It is common ground that, at any rate, till 9th July, 1974, the 2nd respondent was working as a Labour Welfare Officer, but, in our opinion, one of the important documents in this case is the letter of 16th March, 1971, by which the Chief Inspector of Factories accorded approval to the change of designation of the post held by the 2nd respondent from Labour Welfare Officer to 'Assistant Personnel Manager (Welfare)'. Apparently the petitioner, company had written a letter on 2nd November, 1970, asking for such approval and the letter of 16th March, 1971, from the Chief Inspector of Factories reads as follows:

In response to your letter cited I am to inform you that this office has no ob lection to re-designate the post of the Labour Welfare Officer of your factory as Assistant Personnel Manager (Welfare) in the circumstances explained therein and subject to the conditions of service already formulated not being altered.

10. Thus, even though, the designation was to be changed from Labour Welfare Officer to Assistant Personnel Manager (Welfare), it was not permissible to the petitioner-company to alter the conditions of service-of the 2nd respondent, which conditions had already been formulated prior to 16th March, 1971. It must be pointed out that, when the 2nd respondent's designation was changed from Assistant Personnel Manager (Welfare) to that of Assistant Personnel Manager (Establishment) on 9th July, 1971, and subsequently when he was promoted with effect from 1st November, 1975, as Personnel Manager (Establishment) by the order, dated 3rd January. 1976, no intimation was sent by the petitioner-company to the Chief Inspector of Factories nor was the Chief Inspector of Factories informed whether there was any alteration in the conditions of service of the 2nd respondent.

11. One of the contentions of the petitioner-company is that, as on 9th July, 1974 and even subsequently, the work of welfare was being looked after by another officer, viz., M. Rama Raju who was appointed on 4th April, 1972 with the concurrence of the Chief Inspector of Factories and sub. sequently i.e., after 4th April, 1972, two other Welfare Officers, viz., Srinivasa Rao and Rayappa Raju, were appointed, It is the contention taken up in the reply-affidavit that, as required by Sub-rule (1) of Rule 76A upto the financial year 1971-72, the number of workers was less than 2,000 and hence the company was not obliged by law to have more than one Welfare Officer. However, in 1971-72, though the number of workers was only 1923, in less than 2,000 there were two duly qualified Welfare Officers, viz., Rama Raju and Srinivasa Rao. In the year 1972-73, the number of workers exceeded 2,000 but did not exceed 4,000 and Rama Raju and Srinivasa Rao continued to hold their office as Welfare Officers. In 1973-74. the number of workers did not reach 4,000 ; but the petitioner-company had taken an overall view of the responsibilities towards its workers and appointed Rayappa Raju as one more. Welfare Officer. Thus, the total number of Welfare Officers was three. In 1974-75, the number of workers also did not exceed 4,000. But in 1975-76, the number of workers was 4,507. Since there was already the requisite number of officers, no further addition was necessary in view of the provisions of Rule 76A(1). It is the contention of the petitioner-company that, when the Chief Inspector of Factories inspected the factory in or about January, 1975, he was satisfied with the position regarding the Welfare Officers and in the letter of 15th January, 1975, the Chief Inspector of Factories did not mention the name of the 2nd respondent as one of the Welfare Officers. Our learned brother, Jeevan Reddy, J., has reproduced the material portion of the inspection note dated 15th January, 1975, of the Chief Inspector of Factories. Under the said inspection note, the Chief Inspector of Factories endorsed that, in view of the total number of employees in the said factory, it should have one Chief Welfare Officer and two Welfare Officers, whereas it was having only one Welfare Officer, namely, M. Rama Raju, and even the said person was said to have been assigned some other functions, which was said to be highly irregular. He, therefore, advised the petitioner-company not to give any other duties to the Said M. Rama Raju and to appoint one Chief Welfare Officer and one more Welfare Officer immediately. It is true, as Mr. Ramachandra Rao, the learned Counsel for the petitioner-company, urged before us, that the 2nd respondent was not in terms mentioned in this inspection note. But we cannot accept his further contention, that from the omission of the name of the 2nd respondent from the inspection note of 15th January, 1975, it should be inferred that he had ceased to be a Welfare Officer, It is clear from the materials set out in the reply-affidavit that, at the time of the inspection, the number of workers was 4,000 and hence, in accordance with Rule 76A(1), it was obligatory on the petitioner-company to have at least two Welfare Officers. The inspection note does not mention the name of either Srinivasa Rao or Rayappa Raju as Welfare Officers and it is, therefore, not unreasonable to infer that Rama Raju, being one of the Welfare Officers the other Welfare Officer required to be appointed under the rules must have been the 2nd respondent.

12. Srimathi Amareswari, the learned Government Pleader, has pointed out to us that no intimation regarding the appointments of either Srinivasa Rao, or Rayappa Raju as Welfare Officers was notified to the Chief Inspector of Factories as is required to be done under Rule 76A(3). Moreover, in our opinion, at no date subsequent to 16th March, 1971, was any intimation sent or concurrence obtained from the Chief Inspector of Factories to alter the conditions of service of the 2nd respondent. It is obvious that, by change of designation or even purported promotion, the protection granted to the 2nd respondent by the provisions of Rule 76A(4) particularly Clauses (iii) and (iv) of Rule 76 A(4) could not be taken away by such change of designations or purported promotions or even alteration in the nature of work which the 2nd respondent was called upon to attend to. A considerable argument appears to have been advanced before our learned brother Jeevan Reddy, J.; regarding the nature of the work which 2nd respondent was attending to after 9th July. 1974. But in our opinion, the material question is not the nature of work that he was doing but whether the protection, which was afforded to him by law, was in any way taken away by any action on the part of the petitioner-company or even by mutual consent of the petitioner-company and the 2nd respondent. No such mutual consent can be spelt out from the materials placed before us and no unilateral action on the part of the petitioner-company in changing the designation of the post held by him or even by alteration in the type of work allotted to the 2nd respondent or even the promotion granted to him can take away that protection. Under these circumstances, we hold that the 2nd respondent was originally appointed as a Welfare Officer with due intimation to the Chief Inspector of Factories, continued to enjoy the protection afforded to a Welfare Officer since alteration in the conditions of service, which would take away that protection from the 2nd respondent, was never brought about with the concurrence of the Chief Inspector of Factories and there was no intimation in any event to the Chief Inspector of Factories about any such alteration in the conditions of service. Under these circumstances, we hold that the Government of Andhra Pradesh and our learned brother Jeevan Reddy, J., were right in holding that the 2nd respondent was a Welfare Officer as on 14th January, 1976 and we further hold that the protection afforded by Clauses (iii), (iv) and (v) of Rule 76A(4) was not at all taken away.

13. We now come to the second contention urged on behalf of the petitioner-company. The main reliance in this connection by Mr. Ramachandra Rao, the learned Counsel for the petitioner-company, is on the decision of the Supreme Court in Associated Cement Co. Ltd. v. P.N. Sharma. In that case, the Supreme Court was concerned with the competency of an appeal filed by a Welfare Officer appointed in accordance with the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952. These rules were framed under Section 49(2) and 112 of the Factories Act, 1948 and are similar of Rule 76A of the Rules before us. Under Sub-rule (3) of Rule 6 of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, provision was made for imposition of punishment on a Welfare Officer and the punishment could be dismissal of termination of services in any other manner. But the proviso to Rule 6(3) stated that no order of punishment shall be passed against the Welfare Officer unless he has been informed of the grounds on which it is proposed to take action and given a reasonable opportunity of depending himself against the action proposed to be taken in regard to him and provided further that the management shall not impose any punishment other than censure except with the previous concurrence of the Labour Commissioner, Punjab. Under Sub-rule (6) of Rule 6, it was provided that a Welfare Officer upon whom the punishment mentioned in Clause (v) of Sub-rule (3) is imposed may appeal to the State Government against the order of punishment within thirty days from the date of receipt of the order by him and that the decision of the State Government shall be final and binding. It must be pointed out that, in Rule 6 of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, there was no provision similar to Clause (iii) of Rule 76A(4) under which even for dispensing with the services of a Welfare Officer or for revision, the written concurrence of the Commissioner of a Labour, Hyderabad, has to be obtained and at the time of granting such concurrence, the Commissioner of Labour has to record his reasons. Clause IV of Rule 76A(4) provides for punishment and the punishment can only be imposed by the management with the previous concurrence of the Labour Commissioner. There is no requirement in Clause (iv) of Rule 76A(4) about the reasons to be recorded in writing. No clause similar to Clause (iii) of Rule 76A(4) is to be found in any of the clauses of Rule 6 of the Punjab Welfare Officers Recruitment and Conditions of Service Rules. It is clear that the observations of the Supreme Court in Associated Cement Co. Ltd. v. P.M. Sharma (supra) were mode in the content of the provisions of Rule 6(3) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules and in paragraph 37 at page 1607 of the report, Gajendragadkar, C.J., speaking for himself, Hidayatullah, Shah and Sikri, JJ. pointed out that the appeal by the Welfare Officer in that particular case was not competent because the termination of services was not by way of punishment, but was termination simplicitor. It was pointed out by Gajendra-gadkar, C.J. that in terminating the services of the Welfare Officer in that particular case the employer was merely exercising his right to put an end to the Welfare Officer's services with one month salary in lieu of notice and that such an order could not be said to amount to any punishment at all; but it was an order of discharge served by the employer on his employee strictly within the terms of the employee's conditions of service. The learned Chief Justice further observed:

There is no doubt that when Rule 6(3)(v) rules to dismissal or termination of service in any other manner, it takes in dismissal or termination of service which is in the nature of a punitive termination of service. Rule 6(3) makes it clear that Clauses (i) to (v) refer to punishments which could be imposed on Welfare Officers by the management; and so, before Rule 6(3)h) can be invoked by respondent No. 1, it must be shown that the termination of his services was in the nature of a punishment.

14. The scheme of Andhra Pradesh Rules is altogether different from the scheme of the Punjab Rules before the Supreme Court in Associated Cement Companies case (supra) and we cannot accept the contention of Mr. Ramachandra Rao, that, applying the reasoning of the Supreme Court in Associated Cement Companies case (supra) we should also hold, in the case of Rule 76A particularly Clauses (iii), (iv) and (v), that the appeal was not competent. With great respect to our learned brother, Jeevan Reddy, J., we are unable to accept his conclusion based as it was on the decision of the Supreme Court in Associated Cement Companies case supra that the appeal before the Government of Andhra Pradesh in the instant case was not competent. The scope of Clause (v) of Rule 76A(4) is much wider than the scope of Rule 6 before the Supreme Court. In the first place, under Clause (iii) of Rule 76A(4), the services of a welfare officer cannot be dispensed with without the written concurrence of the Commissioner of Labour and this clause is quite distinct from Clause (iv) which provides for punishment and Clause (v) clearly gives a right of appeal to the Welfare Officer, who has been dismissed from service or whose services have been terminated in any other manner than as provided in Clause (iv), i.e., otherwise than with the previous concurrence of the Labour Commissioner. If the order terminating his services is by way of punishment, he can appeal against the order of punishment; but the right of appeal conferred by Rule 76A(4)(v) is not confined merely to the order of punishment made by the management, because the operative portion of Clause (v) confers a right of appeal on the Welfare Officer, who has been dismissed from service or whose services have been terminated in any other manner than as provided in Clause (v), The fact that, in the subsequent portion of Clause (v), it is mentioned that he can appeal against the order of punishment made by the management without the concurrence of the Commissioner of Labour does not in any way curtail the writ of appeal which is given by the earlier portion of Clause (v). In our opinion, therefore, the conclusion reached by our learned brother, Jeevan Reddy, J. that the appeal to the State Government was not competent is not correct.

15. Even assuming for the sake of argument that the appeal to the State Government was not competent under Rule 72A(4)(v), in our opinion, in view of the settled position that the provisions of Article 226 of the Constitution are made for the advancement of ex-debito justitiae, it would be proper to refuse to the petitioner-company the relief that it is seeking against the order of the State Government. It is obvious that the services of 2nd respondent, who was a Welfare Officer, have been dispensed with without the written concurrence of the Commissioner of Labour and to that extent, the petitioner-company has violated the provisions of Rule 76A(4)(iii) and in justice has been done to the 2nd respondent. Under these circumstances, it is in the fitness of things that the special powers conferred upon the High Court by Article 226 of the Constitution should not be exercised in favour of the petitioner-company, who does not come to Court with clean hands.

16. As regards the third contention, Mr. Ramachandra Rao, the learned Counsel for the petitioner-company, relied upon the decision of the Supreme Court in the well-known case Of U.P. State warehousing Corporation Lucknow v. C.K. Tyagi [1970] I L.L.J. 32 : : (1970)ILLJ32SC . He contended that, in paragraph 23 at page 1253 of the report, the Supreme Court his laid down certain well-recognised exceptions to the general rule that no declaration to enforce a contract of personal service will be normally granted. Vaidialingam, J. delivering the judgment of the Supreme Court, after considering the earlier decisions of the Supreme Court in S.R. Tewari v. District Board, Agra : (1964)ILLJ1SC , Dr. S.B. Dutt v. University of Delhi and in C.K. Tyagi's case at page 1253 of the report observed:

From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognised exceptions to this rule and they are To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service incontiavention of Article 311(2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals (3) A statutory body when it has acted in breach of a mandatory obligation imposed by statute.

17. However, we may point out that, in this very decision, Vaidialingam, J., in paragraph 20 at page 1251, after considering the decision of the House of Lords in Vine v. National Dock Labour Board [1956] 3 All E.R. 939 and the decision of Barry, J., in Barbar v. Manchester Hospital Board [1958] 1 All E.R. 322, as also the decision of the Privy Council in Fracis v. Municipal Councillors [1962] 3 All E.R. 633, observed:

From review of the English decisions referred to above the position emerges as follows : The law relating to master and servant is clear. A contract for personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master and say that the contract has never been terminated. the remedy of the employee is a claim for damages for wrongful dismissal or for breach of contract. This is the normal rule and that was applied in Bar bar's case (supra) and fracis's case (supra). But when a statutory status is given to an employee and there has been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he continues to be in1 service, as it will not then be a mere case of a master terminating the services of a servant. This was the position in Vine's case (supra).

18. Thus, the summary of the legal position in paragraph 23 at page 1253 particularly exception No. 3 set out therein, is merely a summary of what the Supreme Court approved from Vine's case (supra). Hence when a statutory status is given to an employee and there has been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he continues to be in service, as it will not then be a mere case of a master terminating the services of a servant In such a case, it is a question of statutory status as distinguished from a mere case of relationship of master and servant and the master repudiating a contract of employment. In the instant case, though the petitioner-company is not a statutory body in the sense explained by the Supreme Court in Vaish Degree College v. Lakshmi Narain 1976-II L.L.J. 163; the Welfare Officer is given a statutory status by Section 49 and by the statutory rules in Rule 76A(4). There has been a violation of provisions of the statute, viz., Rule 76(4)(iii) while terminating the service of the 2nd respondent, the Welfare Officer and, therefore, he became eligible to get the relief of a declaration that the order passed by the petitioner-company is null and void and that he continues to be in service. It is, therefore, clear that the order of the Government setting aside the order of termination of the services of the 2nd respondent and directing the petitioner-company to reinstate him in service was in accordance with law set out by the House of Lords in Vine's case (supra) which was approved by the Supreme Court in U.P. State Warehousing Corporation. Lucknow v. C.K. Tyagi : (1970)ILLJ32SC . Under these circumstances, the third contention urged on behalf of the petitioner-company also fails.

19. Under these circumstances, we agree with the final conclusion reached by our learned brother, Jeevan Reddy, J., though the process of reasoning which has appealed to us, is slightly different from the process of reasoning which was appealed to our learned brother, Jeevan Reddy, J.

20. The writ appeal, therefore, fails and dismissed with costs throughout. Advocate's fee Rs. 150.


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