1. Plaintiff is petitioner herein, who filed a suit for a declaration that he is entitled to continue in service till he completes 60 years of age on 9th September, 1984 and for permanent injunction restraining defendant-Bank from superannuating him with effect from 9th September, 1982, as per superannuation order dated 29th December, 1981. He filed the suit on 4th September, 1982 although the order had been passed 9 months earlier to it. Pending disposal of the suit, he filed I.A. No. 15393/83 for grant of an interim injunction from superannuation him and on its being dismissed, he preferred an appeal in C.M.A. No. 229 of 1982 which was also dismissed relying upon the decision in the Executive Committee of Vaish Degree College, Shamli and Others v. Lakshminarain and others : (1976)IILLJ163SC , and hence he has preferred this revision petition.
2. Mr. A. Ramachandran, learned counsel for petitioner, submits that courts below have overlooked the fact that after several years of devoted service, petitioner was being summarily thrown out without sufficient notice and when the order is so shocking, unfair and unjust even though it may be a contract of personal service, discretion of the court ought to have been exercised in favour of petitioner, who has been deprived of the right to hold the job till he attains 60 years of age which ought not to have been lightly looked at. Believing that, as per Ex. B-8, dated 21st October, 1980 which contains conditions of service, he could continue in service, he had taken a house loan agreeing to pay at the rate of Rs. 1,208/- per month and by the abrupt order of superannuation on his attaining 58 years of age, he is now compelled to part with huge amount every month which acts as one of the penalties imposed upon him. He refers to the decision in Hill v. C. A. Parsons & Co. Ltd. 1971 3 W.L.R. 995, wherein in respects of a breach of contract committed relating to personal service, it was held that an order of interim injunction could issue. Referring to the decision in Vaish Degree College v. Lakshminarain (supra) he submits that Hills case is applicable to the present case, and that was not relied upon by Supreme Court since it was a case wherein the respondent therein had worked only for 2 years. He would further submit that specific Relief Act does not preclude grant of relief pertaining to contract of personal service, if it be made our that employer is a corporate body, wherein the service conditions are such that there would be no question of any individual likes of dislikes existing as to prevent grant of injunction pending disposal of a suit filed, on contract of personal service.
3. Mr. Venkataraman, learned counsel for respondent refers to the decision in U.P.S.W. Corpn., Lucknow v. C. K. Tyagi : (1970)ILLJ32SC , wherein it was held that normally a contract of 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 personal service by his Master and say that the contract has never been terminated, since the remedy lies in award of damages for wrongful dismissal or for breach of contract. It was further held that the exceptions to this normal rule are confined to (1) a public servant who has been dismissed from service in contravention of Art. 311 of the Constitution of India; (2) reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals; and (3) a statutory body when it has acted in breach of mandatory obligation imposed by statute. Referring to this decision in Bank of Baroda Ltd. v. Jewal Lal Mehrotra : (1970)IILLJ54SC , it was held that the law as settled by the Supreme Court is that no declaration to enforce a contract of personal service will be normally granted, and therefore, in granting a declaration of the nature sought for by the respondent therein the Court has acted contrary to law, and that part of the decree could not be upheld. If there is illegal termination or dismissal, all that could be claimed by the employee was confined to claiming damages and he could not ask for or be granted a declaration, that he should be treated as if he was still in service. Again in J. Tiwari v. Jawala Devi Vidya Mandir : AIR1981SC122 it was held, that rights and obligations of an employee of a private institution are governed by the terms of the contract entered into between the parties, and even if the dismissal is wrongful, all that the affected party would be entitled to, is a decree for damages and not an order of reinstatement or a declaration that notwithstanding the termination of his services, he continued to be in service. In First Munic v. Kom Francis : (1973)ILLJ226SC it had been reported that termination or dismissal of what is described as purely a contract of Master and Servant, is not declared to be a nullity, however wrongful or illegal it may be, since, for such breach of contract it is remediable by damages.
4. In the light of the preponderance of authorities above referred to, the refusal to grant interim injunction by courts below relying upon the decision in Vaish Degree College v. Lakshminarain (supra) cannot be got over by relying upon the decision in Hill v. C. A. Parsons & Co. Ltd. (supra). Mr. Venkataraman hastens to point out in that decision it was treated as an exceptional case, because the right claimed by workers was already enshrined in Industrial Relations Act 1971 that had been passed and Part 2 of it alone was yet to be brought into operation. It was at such a juncture, taking into account the law which is to come into force imminently, the court having granted injunction, it cannot be a relief to be relied upon as one which had made a clear departure, pertaining to enforcement of personal contract of service. That apart in view of S. 14(1)(b) and 41(e) of Specific Relief Act and the background of a law as laid down by the Supreme Court in the decision above referred to courts below were justified in holding that petitioner would not be entitled to secure the relief injunction, as prayed for.
5. Yet, courts are not without power to grant such of the reliefs as could be claimable, so that the hardship to be suffered by petitioner, till final determination of the suit, could be mitigated.
6. Believing that petitioner would be retained in service till he attains the age of 60 years, he has secured as loan on 6th October, 1980 agreeing to pay the amount of Rs. 60,000/- in 43 equal monthly instalments, and by being prematurely retired, he is part to considerable hardship in paying the monthly instalment at the rate of Rs. 1,208/-. If, ultimately, he succeeds, he would be secured of full salary and also damages and the amount of loan due by him could be deducted. Or else the houses property, on which loan had been granted, would form the security and hence, till the disposal of the suit, petitioner cannot be compelled to pay the monthly instalments as fixed.
7. Subject to this condition, the revision petition is dismissed. No costs.