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Manninkal Krishna Kurup Vs. Swamiyar Avergal and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 803 of 1964
Judge
Reported inAIR1969Ker36
ActsSpecific Relief Act, 1877 - Sections 42
AppellantManninkal Krishna Kurup
RespondentSwamiyar Avergal and anr.
Appellant Advocate V.R. Venkitakrishnan, Adv.
Respondent Advocate D. Narayanan Potti, Adv.
DispositionAppeal partly allowed
Cases ReferredReddy v. K. Seshu Reddy
Excerpt:
- - it has not been contended that section 49 of the act is bad, and that being so, it follows that the order of dismissal made against the plaintiff having been set aside by an authority duly empowered by the statute to do so. 4. i have already pointed out that the order of dismissal, although issued by the 2nd defendant manager, was really made by the trustee, and i see no force in the argument that the order of suspension and dismissal are bad in that, under subsection (1) of section 49 of the act, the person competent to suspend or dismiss is the trustee......on 22-10-1959, the plaintiff brought the present suit for a declaration that the orders of suspension and dismissal made by the 2nd defendant were void and for a mandatory injunction directing the defendants to reinstate the plaintiff in office with back wages. the suit having been dismissed by the courts below, the plaintiff has come with this second appeal.2. notwithstanding that section 49 of the act affords the servants of religious institutions some measure of protection in the matter of punishment, there can be no doubt that the plaintiff's right to the office derives from a contract for personal service. the courts below were therefore quite right in declining to order his reinstatement, and his prayer for reinstatement with back wages was hi effect a prayer not merely for.....
Judgment:

P.T. Raman Nayar, J.

1. The appellant plaintiff was a clerk in a religious institution governed by the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951. The hereditary trustee of this institution had been removed from office and the management of the institution taken over by the Endowments Board which acted through an executive officer, and it would appear that the plaintiff was first appointed as clerk by the executive officer. However, consequent to the provisions of the Act authorising such assumption of management having been struck down, the management was restored to the trustee, the 1st defendant herein who appointed the 2nd defendant as a manager under him. On application made by him to the 2nd defendant on 1-7-1956, the plaintiff was appointed as a clerk on probation, and, that being so, it is clear that the plaintiff's right to the office of clerk depends solely on his appointment under the 1st defendant and cannot in any way relate to his previous appointment by the executive officer,

On 20-11-1956, the 2nd defendant placed the plaintiff under suspension, and, after framing charges against him and holding an inquiry, made the order Ext. B-l (c) dated 7-5-1957 dismissing the plaintiff from service. It is the finding of the Courts below that the dismissal was in fact ordered by the 1st defendant trustee and that all that the 2nd defendant manager did was to issue the order which the 1st defendant had authorised. Under Section 49(2) of the Act any office-holder or servant punished by a trustee may appeal against the order to the Deputy Commissioner. The plaintiff accordingly appealed to the Deputy Commissioner against his dismissal, and, on 16-9-1957, the Deputy Commissioner made the order, Ext. A-3, setting aside the order of dismissal passed against the plaintiff and remanding the case to the 1st defendant trustee for fresh disposal in accordance with the procedure laid down by the Act and the rules framed thereunder.

This order of the Deputy Commissioner, the defendants admittedly ignored and they have kept the plaintiff out of office, paying him no salary and making not the least attempt whatsoever to hold a fresh inquiry. Therefore, on 22-10-1959, the plaintiff brought the present suit for a declaration that the orders of suspension and dismissal made by the 2nd defendant were void and for a mandatory injunction directing the defendants to reinstate the plaintiff in office with back wages. The suit having been dismissed by the Courts below, the plaintiff has come with this Second Appeal.

2. Notwithstanding that Section 49 of the Act affords the servants of religious institutions some measure of protection in the matter of punishment, there can be no doubt that the plaintiff's right to the office derives from a contract for personal service. The Courts below were therefore quite right in declining to order his reinstatement, and his prayer for reinstatement with back wages was hi effect a prayer not merely for reinstatement but for arrears of salary without paying court-fee therefor and without regard to the question of limitation. But I do not think that the courts should have refused the plaintiff the declaration he sought in so far as it relates to the order of dismissal. It has not been contended that Section 49 of the Act is bad, and that being so, it follows that the order of dismissal made against the plaintiff having been set aside by an authority duly empowered by the statute to do so. that order is no longer in force. I think that the plaintiff is entitled to a declaration to that effect.

I do not think that the proviso to Sec-tion 42 of the Specific Relief Act stands in the way, for, in the first place, I doubt whether a declaration that the order of dismissal is void would be a claim to a legal character so as to attract the section. It is now put beyond doubt by the decision in Vemareddi Ramara-ghava Reddy v. K. Seshu Reddy, AIR 1967 SC 436 that Section 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made by the Court, and, since the order of dismissal affects the plaintiff's civil rights, I think it only proper that the Court should make a declaration in his favour. Secondly, the plaintiff did ask for the further relief of reinstatement, and, that the Court found that he could not be given this further relief would not, to my mind, attract the proviso to the section unless it be further found that this prayer for a further unavailable relief was a mere subterfuge to evade the provisions of the section. Thirdly, I am not sure that there is any further relief that the plaintiff ought to have sought. It is suggested that the plaintiff ought to have asked for arrears of salary, but this, I should think, was not really consequential on the declaration for which he has asked.

3. So far as the order of suspension is concerned that, it would appear, has not been set aside by the Deputy Commissioner in appeal.

4. I have already pointed out that the order of dismissal, although issued by the 2nd defendant manager, was really made by the trustee, and I see no force in the argument that the order of suspension and dismissal are bad in that, under subsection (1) of Section 49 of the Act, the person competent to suspend or dismiss is the trustee. In fact, in this case, the appointment also was issued by the 2nd defendant manager whereas, under Section 48 of the Act, the power of appointment is vested in the trustee. I am not going into the question whether the trustee of an institution can or cannot delegate his powers of appointment and punishment, for, it seems clear that as a matter of fact, in making the appointment and the suspension and the dismissal in this case the 2nd defendant manager was act-log under orders of the 1st defendant trustee. I do not think that the plaintiff can afford to press his case that the orders of suspension and dismissal made against him are void in that they were made by the manager whereas under Section 49 (i) of the Act the powers of suspension and dismissal are vested in the trustee. For, if that contention be upheld, his very appointment would go since, on his own showing, it was made by the manager and not by the trustee whereas under Section 48 of the Act the power of appointment is with the trustee.

5. I allow this appeal in part and grant the plaintiff a declaration that the order of dismissal made against him has been duly set aside and is not in force. The defendants will pay the plaintiff his costs throughout.


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