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Shanabhai Desaibhai Patel Vs. Chhotabhai Shankerbhai Patel - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR256
AppellantShanabhai Desaibhai Patel
RespondentChhotabhai Shankerbhai Patel
Cases ReferredViswanath Tukaram v. G.M. Central Rly
Excerpt:
.....to above (vide sir municipality). it was open to the appellant to ask for a relief of damages for wrongful dismissal. as he has failed to do so, it is not open to him to for a relief which is contrary to the provisions of the specific relief act merely on the above grounds put forward by the learned advocate for the appellant......type of cases of master and servant arises under the industrial law. under that branch of law, the servant whose services are wrongfully terminated, may be reinstated in view of the special provisions under the industrial law. the above relief is a departure from the reliefs available under the indian contract act and the specific relief act which do not provide any reinstatement in service. looking to the facts of the case of brooke bond india (p) ltd.'s (supra), it appears that it falls under the second type of cases of master and servant arising under the industrial law. under these circumstances, the decision in that case would not be relevant for the purpose of deciding the point at issue in this appeal.7. as observed above, the plaintiff's case falls under the first head which'.....
Judgment:

C.V. Rane, J.

1. The plaintiff-appellant was appointed as an Accountant by deceased defendant No. 1 Chhotabhai Patel on a monthly salary of Rs. 150/- on 17th July 1959. Deceased Chhotabhai was the manager of three other firms who were impleaded as defendants Nos. 2, 3 and 4 in Civil Suit No. 41 of 1965 filed by the plaintiff-appellant in the City Civil Court, Ahmedabad. He was also appointed as an Accountant in defendants Nos. 2, 3 and 4 firms, each of whom paid salary separately to the plaintiff. The second defendant was paying him a salary of Rs. 100/- per month. Each of defendants Nos. 3 and 4 Was paying him Rs. 75/- per month. According to the plaintiff, the first defendant who was also managing the affairs of the remaining three defendants, terminated h is services on 7th August 1964 without assigning any reasons or holding any inquiry. The above order of the defendants was in contravention of the provisions of Section 66 of the Bombay Shops and Establishments Act, 1948 (hereinafter referred to as the Act) and hence, the order terminating his services was null and void. He, therefore, filed the above suit to obtain a declaration that, the order in question was illegal, null and void and that he continued to be in service of the defendants.

2. The defendants contested the above suit. It appears from the purshis given by the learned advocate for the defendants in the trial court that, the contention that the Civil Court had no jurisdiction to hear the suit, was given up at the trial. The learned trial Judge framed the following issues as preliminary issues:

(1) Is the suit for a mere declaration without a prayer for a consequential relief not maintainable?

(2) Is the suit bad for mis-joinder of parties and cause of action?

(3) If issue No. 4 is answered in favour of the plaintiff, does the plaintiff prove that he is entitled to the declaration sought?

His finding on the issue No. 1 was that the suit was maintainable. His findings on each of issue Nos. 2 and 3 was in the negative. In pursuance of the finding on issue No. 3 he dismissed the suit and being aggrieved by his decision, the plaintiff has come in appeal.

3. It is not disputed that, the services of the plaintiff were terminated without giving him any notice or wages in lieu of notice or holding any inquiry. In the trial court, the above order of the defendants was challenged only on the ground that, it was in contravention of the provisions of Section 66 of the Act. The provisions of the above section, which are relevant for the purpose of this appeal, are:

No employer shall dispense with the services of an employee who has been in his continuous employment-

(a) for not less than a year, without giving such person at least thirty days' notice in writing, or wages in lieu of such notice;

(b) for less than a year but more than three months, without giving such person at least fourteen days' notice in writing, or wages in lieu of such notice:

Provided that such notice shall not be necessary where the services of such employee are dispensed with for misconduct.

The first question, therefore, to be decided in this appeal is whether, the above order is illegal, null and void as contended by the appellant. The learned trial Judge has taken the view that, the above order is not void. While coming to the above conclusion, he has inter alia observed in his judgment:

What is provided by Section 66 is merely what would be a reasonable notice that a master is supposed to give to an employee whose services he desires to terminate. That being so, I am of the opinion that Section 66 of the Act is not mandatory or obligatory but is directory.

It has been specifically provided in Section 66 of the Act, the language of which is unambiguous and plain, that no employer shall dispense with the services of any employee who has been in his continuous employment for more than three months without giving him notice of specified duration or wages in lieu of such notice as indicated in Clauses (a) and (b) of that section. The use of the word 'shall' in the above Section and the manner In which the Section is worded clearly show that, the provisions thereof are mandatory. This shows that, according to the provisions of Section 66 of the Act, the services of an employee who has been in continuous service for not less than a year cannot be terminated without giving him atleast thirty days' notice in writing or wages in lieu of such notice. Similarly, the services of an employee who has been in continuous employment for less than a year but more than three months cannot be terminated without giving him atleast fourteen days' notice in writing or wages in lieu of such notice. According to the proviso to ice. 66, the only exception to the above restriction on the employer's right to dispense with the services of an employee is that, no such notice as provided in Clauses (a) and (b) of Section 66 would be necessary where the services of an employee are dispensed with for misconduct. In the present case, it is common ground that, the services of the appellant were dispensed with not on account of any misconduct on his part. It is thus proved that, the order in question is in contravention of the provisions of Section 66 of the Act and that position is not disputed by the learned Advocate for the respondents. It is, however, argued by him that merely because, the order in question has been passed in contravention of the provisions of Section 66 of the Act, it cannot be said that, it is null and void. According to him, the order can be said to be illegal in view of the above provisions of the Act, but it cannot be said to be null and void. It appears that, the provision as regards giving of notice has been incorporated in the above Section in order to give the employee, whose services are sought to be terminated, a reasonable time to find out some other employment before the expiry of the period of notice. Similarly, the object of the provisions in the above Section as to payment of wages in lieu of notice seems to mitigate the hardship on an employee by ensuring the immediate payment of wages in lieu of notice, in case, his services are dispensed with without giving him any notice. It appears that, it is in order to achieve the above object of Section 66 of the Act, that the provisions thereof have been made mandatory. This shows that, if the provisions of the above Section are not complied with strictly, the very object of that Section would be frustrated. Thus, looking to the plain language as well as the object of Section 66, it should be held that, the order in question is not only illegal but, also void. In this connection, I may however hasten to add that, as the language of Section 66 is plain and unambiguous, the interpretation of that Section even independently of the object thereof leads to the same conclusion.

4. The above view is supported by the decision of the Supreme Court in the case of Sr. Supdt. R.M.S. Cochin v. K.V. Goptnath : (1972)ILLJ486SC . In the above case the services of the respondent were terminated on the basis of the provisions of Rule 5 of the Central Civil Services (Temporary Service) Rules 1965, which runs as under:

5. Termination of temporary service-

(1)(a) The services of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;

(b) the period of such notice shall be one month:

Provided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which h was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.

It was admitted that payment of the salary and allowances was not made to the respondent on the date on which the above order was passed. The order was quashed by the learned Single Judge of the Kerala High Court and his decision was upheld by the Division Bench in appeal. While dismissing the appeal, their Lordships of the Supreme Court observed:

Apart from the authorities which were cited at the Bar, it appears to us that the rule is capable of the only interpretation that the order of termination can be upheld if the requisite amount in terms of the rule was paid into (he hands of the employee or made available to him at the same time as he was served with the order. Rule 5(1Xa) gives the Government as well as the employee a right to put an end to the service by a notice in writing. Under Rule 1(b) the period prescribed for such notice is one month. The proviso to Sub-rule (b) however gives the Government an additional right in that it gives an option to the Government not to retain the service of the employee till the expiry of the period of the notice; if it so chooses to terminate the service at any time it can do so forthwith 'by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.' At the risk of repetition, we may note, that the operative words of the proviso are 'the services of any such Government servant may be terminated forthwith by payment'. To put the matter in a nutshell, to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. We need not pause to consider the question as to what would be the effect if there was a bona fide mistake as to the amount which is to be paid. The rule does not lend itself to the interpretation that the termination of service becomes effective as soon as the order is served on the Government servant, irrespective of the question as to when the payment due to him is to be made. If that was the intention of the framers of the rule, the proviso would have been differently worded. As has often been said that if 'the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense', 'and not to limit plain words in an Act of Parliament by considerations of policy if it be policy, as to which minds may differ and as to which decisions may vary', see Crates on Statute Law, 6th Edition, pages 86 and 92.

For the reasons already mentioned and in view of the above decision of the Supreme Court the finding to the contrary of the learned trial Judge cannot be sustained.

5. The next question that arises for consideration is whether the appellant is entitled to the relief sought. The learned trial Judge has taken the view that, in view of the provisions of Section 14(1)(b) of the Specific Relief Act, 1963, relief of declaration as prayed for by the plaintiff cannot be granted to him. The learned advocate for the appellant has argued that, as the services of the appellant have been dispensed with in contravention of the statutory provisions, a declaration that, the order in question is null and void and that the plaintiff continued to be in the service of the respondents can be granted. In support of his above argument he has relied on the decisions in the cases of Sirsi Municipality v. Cecelia Kom Francis Tellh (1973) 1 S.C.R. 409, and Brooke Bond India (P) Ltd. v. Y.K. Gautam 1973 II L.L.J. 454. In the case of Sirsi Municipality the question to be decided was whether, the respondent was entitled to a declaration in a suit filed by her that her dismissal by the appellant Municipality was illegal and void. The respondent was an employee of the Municipality. Her services were terminated by a resolution dt. March 23, 1955. The Municipality was governed by the Bombay Dist. Municipalities Act, 1901. Section 46 of the above Act provides that, the Municipality shall make rules in the matter enumerated in that section. Clause (g) of Section 46 empowers the Municipality to frame rules regulating inter alia the period of service, conditions of service etc. According to Rule 143 of the rules, no officer or servant shall be dismissed without a reasonable opportunity being given to him for being heard in his defence. The above rule further 'provided that every order of dismissal or confirming dismissal should be in writing and it should further specify the charge or charges brought, the defence and the reasons for the order. It was found that, the order of dismissal of the respondent was in contravention of Rule 143 of the rules. In the appeal the High Court maintained the declaration that, the respondent was deemed to have continued in service from the date of dismissal to the date of the suit. In the Supreme Court it was contended by the Counsel for the municipality that, the respondent was not entitled to any declaration. According to him, if the dismissal was wrongful the remedy lay in damages. While dealing with the above contention their Lordships of the Supreme Court have inter alia observed:

The cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment of subsistance of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the Law of Specific Relief Act.

The second type of cases of master and servant arises under Industrial law. Under that branch of law a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial law. This relief is a departure from the reliefs available under the Indian Contract Act and the Specific Relief Act which do not provide for reinstatement of a servant.

The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute.

Termination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages. In the case of servant of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the statute. Apart from the intervention of statute there would not be a declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies.

The courts keep the State and the public authorities within the limits of their statutory powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements or on grounds which are not sanctioned or supported by statute the courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant.

It is obvious that, the case of the respondent in the above case fell in the third category of cases. While dealing with the points raised on behalf of the appellant-Municipality, the Supreme Court further observed:

In the present appeal, the pre-eminent question is whether the dismissal is in violation of Rule 143. Rule 143 imposes a mandatory obligation. The rules were made in exercise of power conferred on the municipality by statute. The rules are binding on the municipality. They cannot be amended without the assent of the State Government. The dismissal of the respondent was rightly found by the High Court to be in violation of Rule 143 which imposed a mandatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence. The dismissal by the municipality was without recording any written statement which might have been tendered. The dismissal by the municipality was without written order. The dismissal was ultra vires.

In the present case, the plaintiff's case falls under the first category which relates to the relationship of master and servant governed purely by contract of employment and as pointed out by the Supreme Court in the case of Sirsi Municipality (supra) any breach of contract in such cases is enforced by a suit for wrongful dismissal and damages. This shows that, the decision in the case of Sirs Municipality does not in any way help the appellant but, on the contrary, shows that he is not entitled to the relief sought.

6. In the case of Brooke Bond India (P) Ltd. (supra) the respondent was appointed by the appellant company as a salesman on probation. His services were terminated during the probationery period. An industrial dispute was raised and it was referred to the Government of Rajasthan for adjudication. The tribunal held that, the respondent's services were terminated before the expiry of the period of probation without giving him any opportunity to show cause for his discharge and that since the services of the respondent were terminated during his probationery period when he was ill, without any inquiry, it was unjustified and illegal and accordingly the order of termination was set aside. The appellant was further directed to reinstate the respondent to his former job. The above direction of the tribunal was upheld by the Supreme Court. In this connection, it should be remembered that, as observed by the Supreme Court in the Sirsi Municipality's case, the second type of cases of master and servant arises under the industrial law. Under that branch of law, the servant whose services are wrongfully terminated, may be reinstated in view of the special provisions under the Industrial law. The above relief is a departure from the reliefs available under the Indian Contract Act and the Specific Relief Act which do not provide any reinstatement in service. Looking to the facts of the case of Brooke Bond India (P) Ltd.'s (supra), it appears that it falls under the second type of cases of master and servant arising under the Industrial law. Under these circumstances, the decision in that case would not be relevant for the purpose of deciding the point at issue in this appeal.

7. As observed above, the plaintiff's case falls under the first head which' relates to the relationship of master and servant governed purely by contract of employment. Now, according to the decision in the Sirsi Municipality's case (supra) 'any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment of subsistance of employment'. It is needless to add that, a declaration as prayed in the suit on hand would amount to the specific performance of the contract for personal service and such a declaration is not permissible under Section 14(1)(b) of the Specific Relief Act, 1963.

8 It is, however, argued by the learned advocate for the appellant that unless a declaration as prayed is granted to the appellant, he cannot get any adequate relief, under the Industrial Disputes Act, 1947. According to him, the appellant can take appropriate action for the recovery of wages due from the respondents under Section 33-C of the Industrial Disputes Act 1947) only n case a declaration as prayed is granted to him in this suit' While advancing the above arguments, the learned advocate has overlooked the mandatory provisions of Section 14(1)(b) of the Specific Relief Act according to which the declaration as prayed cannot be granted.

9. The law on the point is well settled in view of the decisions of the Supreme Court one of which has already been referred to above (Vide Sir Municipality). It was open to the appellant to ask for a relief of damages for wrongful dismissal. As he has failed to do so, it is not open to him to for a relief which is contrary to the provisions of the Specific Relief Act merely on the above grounds put forward by the learned advocate for the appellant. In the circumstances of the case, it is hardly necessary to consider his contention as regards the scope of Section 33-C of the Industrial Disputes Act, 1947.

10. The learned advocate for the appellant has also referred to the provisions of Section 22 of the Payment of Wages Act, 1936 the according to which, a suit for the recovery of wages or of any deduction from wages is barred, in support of his arguments that, relief by way of a declaration as prayed can be granted in this suit. It is, however, difficult to understand the logic of the above arguments. For the reasons already mentioned, no relief in contravention of the provisions of Specific Relief Act can be granted to the appellant in this suit. As observed above, it was open to him to ask for damages for wrongful dismissal from service and Section 22 of the Payment of Wages Act is no bar to a suit for wrongful dismissal and damages. If any authority is needed on the point is provided by the decision of the Full Bench of the High Court of Bombay in the case of Viswanath Tukaram v. G.M. Central Rly : (1957)IILLJ250Bom . Thus, considering the question from all points of view, I find that there is no merit in this appeal which is therefore dismissed. In the peculiar circumstances of the case, there would be no order as to costs of this appeal.


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