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Chiarman of Manging Committee of the Smt. Dev Kunwar Nanalal Bhatt Vaishnav College for Women Vs. Mrs. Aleyamma Thomas - Court Judgment

LegalCrystal Citation
SubjectContract;Service
CourtChennai High Court
Decided On
Reported in(1971)1MLJ76
AppellantChiarman of Manging Committee of the Smt. Dev Kunwar Nanalal Bhatt Vaishnav College for Women
RespondentMrs. Aleyamma Thomas
Cases ReferredN. Vasudevan Thambi and Anr. v. R. Maria Anthony C.R.P. No.
Excerpt:
- - we are satisfied that we have jurisdiction to act under section 115 of the code of civil procedure and to allow this petition. it is well settled that where interference is found necessary in any particular case, the high court may of its own motion call for the record even without an......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, and that the remedy of an employee is a claim for damages for wrongful dismissal or for breach of contract. the supreme court laid down the following three exceptions to the said normal rule that no declaration to enforce a contract of personal service will be granted : (1) a public servant who has been dismissed from service in contravention of article 311; (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 a mandatory obligation, imposed by statute. the relationship between the petitioner and the.....
Judgment:
ORDER

G. Ramanujam, J.

1. The respondent herein was employed by the petitioner as a Physical Directress in the suit College at the first instance for the academic year 1968-69. The appointment was renewed for a further period of one year ending with the academic year 1969-70. The petitioner issued an order dated 24th February, 1970, terminating her services with effect from 31st March, 1970, while the academic year came to a close on 4th April, 1970. Aggrieved against this order terminating her services, the respondent filed. O.S. No. 332 of 1970 on the file of the Court of the District Munsif, Poonamallee, for a declaration that the termination of her services was wrongful and for an injunction restraining the petitioner from giving effect to the order of termination. In that suit she filed an application, I.A. No. 331 of 1970, for an interim injunction restraining the petitioner from giving effect to the said order terminating her services and got an ex parte order of injunction on 1st April, 1970. The petitioner thereafter filed an application, I.A. No. 353 of 1970 for vacating and discharging the said interim injunction granted on 1st April, 1970. In that application the petitioner claimed that the order terminating the respondent's services was quite legal and valid and that in any event, the respondent was not entitled to an order of injunction on the facts of the case. Before the lower Court, at the hearing of the said petition, the respondent filed an affidavit to the effect that she would not claim any salary from the date of the reopening of the said College for the academic year 1970-71 till the disposal of the suit, in the event the Court holding that the termination of her services is legal and lawful. The lower Court took the view that if the interim injunction is vacated, the respondent will loose her hold as a Physical Directress in the College and that the possible injury arising out of the stigma attached to the order of termination of her services should be prevented, in view of her undertaking not to claim salary for the academic year 1970-71 in the event of her loosing the suit, and in that view refused to vacate the ad interim injunction granted earlier. It is against this order of the lower Court refusing to vacate the ad interim injunction, this revision has been filed.

2. The learned Counsel for the respondent raised a preliminary objection to the maintainability of the revision petition. It was urged by him that the petitioner has a right of appeal under Order 43, Rule 1 against an order passed under Order 39, Rule 4 and that the petitioner not having chosen that remedy by way of an appeal, the present revision under Section 115 of the Code of Civil Procedure cannot be maintained.

3. The learned Counsel for the petitioner counters the above argument by stating that Section 115 of the Code only bars cases from which an appeal lies to the High Court, and that it does not bar a revision against an order from which an appeal lies only to the District Court. He relied, for this proposition, on a decision of the Supreme Court in S.S. Khanna v. F.J. Dillon : [1964]4SCR409 and a few rulings of this Court.

4. In S.S. Khanna's case : [1964]4SCR409 , the Supreme Court, while dealing with the scope of Section 115 of the Code traced the historical evolution of the powers of the diverse High Courts' supervisory jurisdiction, and expressed that the revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit that the expression 'in which no appeal lies thereto' occurring in Section 115 is not susceptible of the interpretation that it excludes the exercise of the revisional jurisdiction when an appeal may be competent from the final order and that the use of the word 'in' therein is not intended to distinguish orders passed in proceedings not subject to appeal from the final adjudication from those from which no appeal lies. The learned Judges of the Supreme Court took the view that only in a case where an appeal lies against an adjudication directly to the High Court or to another Court from the decision of which an appeal lies to the High Court, the High Court has no power to exercise Us revisional jurisdiction, but that where the decision itself is not appealable to the High Court directly or indirectly, the exercise of the revisional jurisdiction by the High Court would not be deemed excluded.

5. In Veerappa Thevar v. Kathasvoami Ghettiar I.L.R. (1966) 2 Mad. 546 : (1966) 1 M.L.J. 427, Natesan, J., had held that Section 115 of the Code is available only when there is no appeal to the High Court and that if an appeal lies to the High Court even by way of a second appeal, it could not entertain a revision under Section 115.

6. In Official Receiver Gantur v. Seshayya : AIR1941Mad262 , while rejecting a contention that a revision could not be entertained in a case where the party had a remedy by way of a suit under Order 21, Rule 63, a Division Bench of this Court expressed:

Cases in which this Court has interfered in revision in spite of the fact that the petitioner had another remedy are too numerous to be quoted. The principle that revision should not be allowed where another remedy is available is a principle which may very conveniently be applied at the stage of admission. This revision was admitted by Mr. Justice Varadachariar nearly two years ago and since it has been admitted, we think it would be wrong at this stage to say that it must be dismissed merely because the Official Receiver might have proceeded by way of suit. We are satisfied that we have jurisdiction to act under Section 115 of the Code of Civil Procedure and to allow this petition.

7. In this case, against the order in question, the petitioner has no right of appeal to this Court directly or indirectly. He has only a remedy by way of an appeal to the District Court without any further right of appeal to this Court. In view of this position, I am of the view that there is no bar in entertaining this revision petition under Section 115 of the Code. Even otherwise, as pointed out by the Division Bench in Official Receiver, Guntur v. Seshayya : AIR1941Mad262 , the revision, having been entertained and admitted it is not proper to dismiss it on the ground that it should not have been admitted. I am not inclined to dismiss the revision petition as not maintainable at this stage-even if I were to hold that the revision is not normally to be entertained in cases where a remedy by way of an appeal is-available to the petitioner. It is well settled that where interference is found necessary in any particular case, the High Court may of its own motion call for the record even without an. application by the aggrieved party. I therefore proceed on the basis that the revision is maintainable.

8. Then I come to the merits of the case. In the suit the respondent seeks a declaration that the order terminating her services is wrongful and that the petitioner-management should not be allowed to give effect of the same. It is doubtful whether the respondent will be entitled, to get that relief in the suit, having regard to the provisions of Section 21 of the Specific Relief Act which provides that the Court cannot specifically enforce a contract of personal service. But the lower Court has chosen to pass an interim-order enforcing the contract of personal service much against the wishes of the petitioner-employer. It has been held, in U.P.S.W. Corporation, Lucknow v. C.K. Tyagi : (1970)ILLJ32SC that normally in a case of master and servant 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 service by his master and say that the contract has never been terminated, and that the remedy of an employee is a claim for damages for wrongful dismissal or for breach of contract. The Supreme Court laid down the following three exceptions to the said normal rule that no declaration to enforce a contract of personal service will be granted : (1) a public servant who has been dismissed from service in contravention of Article 311; (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 a mandatory obligation, imposed by statute. The relationship between the petitioner and the respondent in this case is one of master and servant, and the respondent is neither a public servant nor her employment under the petitioner is governed by any statutory provisions. In view of the said categorical pronouncement of the Supreme Court that the Court cannot enforce a contract of personal service as between a master and servant, the lower Court, in this case, should be held to have erred in passing the order in question.

9. I am also fortified in taking the view by the decision in Kalyanasundaram v. Muthuraman (1969) Lab. I.C. 230 and Mangal Prasad v. Bihar Co-op. Marketing Union (1969) Lab. I.C. 788. In a recent decision of mine in N. Vasudevan Thambi and Anr. v. R. Maria Anthony C.R.P. No. 1196 of 1970. I had held that a headmaster of a school who had been suspended pending enquiry into certain charges cannot seek to be in service pending a suit by the employer for an interim injunction restraining the teacher from interfering with the affairs of the school. The order of the lower Court impugned here has, therefore, to be set aside.

10. In the result, the revision is allowed and the order of the lower Court is set aside. There will, however, be no order as to costs.


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