G.N. Ray, J.
1. This rule is directed against Order No. 58 dated 18th March, 1978 passed by the learned Judge, 4th Bench, City Civil Court, Calcutta, in Title Suit No. 1727 of 1974. By the aforesaid impugned order the learned Judge disposed of Issue No. 1 framed in the said Title Suit on the prayer of the defendant. The said Issue No. I is to the following effect: 'Issue No. 1--is the suit maintainable in its present form?' By the said impugned order the learned Judge came to the finding that although a personal contract of service sought to be enforced in this suit is not enforceable under the Specific Relief Act but at that stage of the suit it was not possible to hold that the suit was not maintainable in its present form because the question of determination of age of the plaintiff raising thereby a civil dispute could not be determined on merits at that stage of the suit. The learned Judge was also of the view that a civil dispute was raised by the plaintiff in claiming superannuation at a particular age and illegal determination of the age of the plaintiff and the civil Court had jurisdiction to determine the correct age.
The short facts relating to the said suit are as follows:
2. The plaintiff was a subordinate employee in the category of armed guards of United Bank of India Ltd. After the enforcement of the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969, the plaintiff service along with other employees were transferred to the defendant No. 1 Bank on the same terms and conditions as were existing on the date of the enforcement of the said Act, i.e., on and from 19th July, 1969. The plaintiff alleged that under the terms and conditions of service the age of retirement of the plaintiff was fixed at 60 years as per provisions contained in Chapter XVIII, Clause 18-1 of the Tripartite Settlement Agreement dated 19th November, 1966 made by and between the Bank Employees Union and the Indian Bank's Association and the Chief Labour Commissioner, Central, under the Industrial Disputes Act. The plaintiff contended that he was born on 1st February, 1922 and such date of birth is borne out from the entries in the school register where the plaintiff was admitted. A copy of the certificate issued by the school to the plaintiff was also annexed to the plaint. The defendant-Bank by its letter dated 5th June, 1947 informed the plaintiff that he would attain the age of superannuation at 60 years on December 30, 1974 and as such the service of the petitioner under the defendant-Bank would cease after the close of business on the said date. The plaintiff thereafter sent a representation though the defendant No. 1 to the Bank by his letter dated 25th July, 1974 inter alia stating therein that his date of birth was 1st February, 1922 and as such he should retire 8 years later from the date mentioned by the Bank in the said impugned notice dated 30th December, 1974. It appears that the plaintiff was initially an employee of the Hooghly Bank Ltd. and after amalgamation of different Banks, the United Bank of India Ltd, was constituted and the plaintiff became an employee of the United Bank of India Ltd. The defendant-Bank informed the petitioner that from the records of the Hooghly Bank Ltd. viz., the original employer of the plaintiff it transpires that the plaintiff was, 36 years of age on 31st December. 1950 and accordingly the date of birth of the plaintiff was 30th December, 1914 and hence the plaintiff would attain the age of superannuation at 60 on 30th December, 1974. The plaintiff contended that such determination of the age was incorrectly done by the Bank authorises without giving the plaintiff any opportunity of being heard and the defendant-Bank had no authority to determine the age on the basis of the said alleged records and thereafter compelling the plaintiff to retire from service prematurely with effect from 31st December, 1974. The plaintiff contended that the said notice and the proposed action to treat the petitioner's superannuation with effect from 31st December, 1974 were main fide and contrary to the statutory terms and conditions of the service conditions of the plaintiff under the defendant-Bank. The defendants including the defendant-Bank entered appearance in the said suit and filed a joint written statement inter alia denying the allegations made in the plaint. It was contended by the defendants that the suit was not maintainable in the form in which the suit was framed and the plaintiff was not entitled to the relief claimed by the plaintiff in the said unit. Thereafter the defendants made an application for deciding the Issue No. 1 as preliminary issue inasmuch as the defendants contended that the Court had no jurisdiction to entertain and try the suit. The defendants contended that the plaintiff being an armed guard of the defendant No. 1 Bank was a workman as defined in the Industrial Disputes Act and the remedy is available to the plaintiff under the said Act and the civil Court had no jurisdiction to try the suit. It was also contended that the plaintiff's service conditions were not covered by any statutory rules and the conditions of service being matters of contract between the plaintiff and the defendants, the personal service of the plaintiff could not be specifically unforced in the said suit and such suit is barred by the provisions of Specific Relief Act.
3. Mr. Moitra, the learned Counsel appearing for the plaintiff-petitioner, contended at the first instance that the revisional application under Section 115 was not maintainable inasmuch as when a civil suit had been instituted, the learned Judge was competent to decide an issue and such adjudication of Issue No. 1 cannot be challenged in revision under Section 115 of the Code of Civil Procedure even assuming that the learned Judge had decided the said issue wrongly. Mr. Moitra contended that it cannot be held that there was inherent lack of jurisdiction of the civil Court to entertain the said suit and the preliminary issue could be decided by civil Court when the defendants challenged the jurisdiction of the Court to decide the suit on the aforesaid grounds. Mr. Moitra contended that mere illegal decision made by the Court below does not warrant interference in revision by this Court under Section 115 of the Code of Civil Procedure.
4. Mr. Moitra in his usual fairness conceded that under the provisions of the Specific Relief Act, a contract for personal service cannot be enforced and if there is any breach of contract relating to the service of an employee, the aggrieved party is entitled to claim for damages for such breach of contract but he cannot ask for re-instatement for continuance in the service. Mr. Moitra also submitted that if the conditions of service are not controlled by the statutory provisions and if the employee is not a Government servant, the suit cannot be instituted by a private employee for an order of reinstatement in effect and/or for continuance of service. But Mr. Moitra contended that after the nationalisation of the Bank, the employees of the United Bank of India are employees of a nationalised Bank and such employees have acquired a status of public employment and accordingly termination of service of such employee must be done in accordance with the principles of natural justice and the statutory provisions. For this contention Mr. Moitra referred to a Bench decision of the Court made in the case of United Commercial Bank v. Mr. V.J. Vyas (1977) Labour and Industrial cases 1013. It was held in the said case that after nationalisation the Bank employees acquired status of public employment and in such circumstances the termination of such employees must be done in accordance with the principle of natural justice and it was held that an employee of the said Bank could maintain an application under Article 226 of the Constitution on the ground of violation of principles of natural justice. Mr. Moitra also referred to a Bench decisions of the Andhra Pradesh High Court made in the case of P.S. Gceta v. The Central Bank of India (1978) Labour and Industrial cases 1271, It was held in the said case that whatever may have been the position with regard to the validity of the rules before the Banks were acquired under the Banking Companies (Acquisition and Transfer of Under takings) Act, 1970, after such acquisition the Banks had become the State within the meaning of Article 12 of the Constitution. It was held-that formerly rules and regulations framed by the Bank might have resulted in only the contractual obligations between the Bank and the employees but now such rules and regulations continuing by virtue of the provisions of the said Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 would be statutory law, Mr. Moitra also referred to another Bench decision of the Orissa High Court made in the case of Gouri Charan Kanungo v. Presiding Officer, Industrial Tribunal (1977) Labour and Industrial cases 1154. It was held in the said decision that the question as to whether superannuation of the petitioner was legal or justified is entirely different in its scope and ambit from the question whether the said superannuation amounts to termination or retrenchment. Mr. Moitra also referred to a decision of this Court made in the case of Titagarh Jute Factory v. Sriram Tewari (1979) Labour and Industrial cases 513, D.C. Chakraborty, J. held in the said decision that dispute between an employer and employee regarding employee's correct date of birth is not ousted by the Industrial Dispute Act and the civil Court had jurisdiction to try the suit. Mr. Moitra also contended that a civil Court had jurisdiction to try all disputes of Civil nature until and unless a statute expressly or by necessary implication bars the jurisdiction of the civil Court to decide such civil dispute. For this contention Mr. Moitra referred to the Supreme Court decision made in the case of Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai and Ors. : 1SCR785 .
5. Mr. Ganguly, the learned Counsel appearing for the defendants petitioners, contended that the jurisdiction to try the suit by the civil Court was challenged by the defendants and on the prayer of the defendants the said issue as to whether the suit was maintainable in the present form was adjudicated by the learned Judge. The learned Judge had decided that the civil Court had jurisdiction to try the said suit and the institution of the said suit was not barred either by the provisions of the Industrial Disputes Act or by the provisions of the Specific Relief Act. Mr. Ganguly contended that as the Court by deciding the said issue purported to assume a jurisdiction not vested in it and thereby proceeded to decide the suit on merits the defendants are entitled to challenge the said adjudication by the Civil Court in an application under Section 115 of the Civil Procedure Code. Mr. Ganguly contended that the impugned order is not mere decision on a particular issue involved in a suit passed by a Judge having jurisdiction to decide the said issue. In the facts of the case, the suit as framed was not maintainable in law and the civil Court had no jurisdiction to try the suit and grant the relief claimed by the plaintiff in the suit and in such case it cannot be held that a Judge having jurisdiction to decide an issue has decided the said issue and even assuming that such decision is erroneous, interference in revision under Section 115 is not called for. On the contrary, the decision having been made without any jurisdiction whatsoever the defendants are entitled to challenge such assumption of jurisdiction by the civil Court in revisional application under Section 115 of the Code of Civil Procedure.
6. Mr. Ganguly next contended that under the provisions of Section 3(4) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 the Bank in question became a body corporate and under the provisions of Section 12(2) of the said Act, every officer or other employees shall, on the commencement of the said Act hold his office on the same terms and conditions and continue to do so until his appointment is terminated or condition of service is duly altered. Section 19 of the said Act gives powers to the authorities of the Bank to make regulation. Mr. Ganguly contended that unless an institution is created under a statute and owes its existence to a statute, the said institution cannot be called to be a statutory body even if such institution may be governed by some statutory provisions. For this contention, Mr. Ganguly referred to the decision of the Supreme Court made in the case of Executive Committee of Vaish Degree College v. Lakshmi Narain and Ors. 1976-II J.L.J. 163 : A.I.R. 1976 S.C. 888. It was held in the said case that there is distinction between a statutory body and a body not created by a statute but governed by certain statutory provisions. It was also held that before an institution can be said to be a statutory body it must be created by or under the statute and it must owe its existence to a statute. Relying on the aforesaid decision, Mr. Ganguly contended that under the Banking Companies (Acquisition and Transfer of Undertakings) Act it was held that unless duly changed, the employees of the Bank will continue to hold their services on the same terms and conditions as were existing on the date of the enforcement of the Act. Mr. Ganguly contended that in the instant case, the service conditions were not framed under any statute but service conditions emanating from the contract between the employer and employee continued under the said Acquisition and Transfer of Undertakings Act. Mr. Ganguly also referred to a Bench decision of the Bombay High Court made in the case of Ramesh Krishna Rao v. State Bank of India (1975) Labour and Industrial Cases, 175. It was held in the said case that no declaration to enforce a contract of personal service will be normally granted but there are certain well recognised exceptions to this Rule--One of them being a statutory body acting in breach of a mandatory obligation imposed by the statute. In the said case after examining the service conditions of the said employee of the said Bank, the Bombay High Court held that on a prima. facie reading of the relevant provisions of Section 43(1) read with Section 17 of the State Bank of India Act it appears that the appointment of service of the employee in question was a matter of contract and in such circumstances, a pure master and servant relationship was preserved. Relying on the said decision, Mr. Ganguly contended that the United Bank of India may be a nationalised bank but the service conditions of the employees of the United Bank of India are not governed by any statutory provisions and from the pleadings it will appear that the plaintiff is relying on a term arrived at the said tripartite agreement. Mr. Ganguly contended that in such circumstances, it is quite apparent and evident that the service condition relied on by the plaintiff owes its existence to a contract and it is immaterial whether the Bank in question is a nationalised Bank or not. In this connection Mr. Ganguly also referred to a Bench decision of this Court made in the case of Salil Mukherjee v. Hindustan Steel (1978) Labour and Industrial cases, 1708. It was held in the said decision that so far as an employee of Hindustan Steel Ltd. is concerned, such employment was not governed by statutory rules and pure master and servant relationship existed between an employee of Hindustan Steel and Hindustan Steel Ltd. Mr. Ganguly also contended that standing orders made by different companies and institutions under the Standing Orders Act does not make the service condition governed by any statute and such service conditions framed by Standing Orders under Standing Orders Act does not give the employees statute of public employment. For this contention Mr. Ganguly referred to the Bench decision of this Court made in the case of Calcutta Electric Supply Corporation v. Ram Ratan Mahato 78 C.W.N. 628. Mr. Ganguly contended that the plaintiff having relied on the terms and conditions of the service on the basis of tripartite agreement the plaintiff should have asked relief under the Industrial Disputes Act and a suit for enforcing the said terms of the tripartite agreement in the civil Court was not maintainable.
7. In reply to the aforesaid contention of Mr. Ganguly. Mr. Moitra contended that this Court has held in the decision made in the said case of United Commercial Bank v. Mr. Vyas (supra), that after nationalisation, Bank employees acquired a status of public employment and as such a suit for declaration that the impugned order was in violation of the terms and conditions of service of a public employee is maintainable in a civil Court and the bar of such suit under the provisions of Specific Relief Act is not applicable to a person holding status of public employment. Mr. Moitra also contended that the plaintiff may be entitled to raise a dispute against the illegal order of superannuation of the plaintiff under the Industrial Disputes Act but it cannot be held that the plaintiff is precluded from asking the relief before the civil Court . After giving my anxious consideration to the respective contentions made by the learned Counsels it appears to me that a revisional application is quite maintainable against an order passed by a Court when this Court is called upon to decide as to whether the civil Court by such adjudication purported to assume jurisdiction to entertain purported to assume jurisdiction in entertaining a suit although the Civil Court had no jurisdiction to entertain and try the suit and pass the impugned order. In my view, the conditions of the service of the plaintiff do not emanate from any statute and the terms and conditions of the service of the plaintiff are still matters of contract between the Bank administration and the plaintiff. In such circumstances, even assuming that after nationalisation a Bank employee has acquired status of public employment for certain purposes it cannot be held that the plaintiff is enforcing his right under a statute governing the conditions of service of the plaintiff. Accordingly the suit as framed by the plaintiff is not maintainable in view of the provisions of the Specific Relief Act. The rule, therefore, succeeds and is made absolute and the impugned order is set aside. There will be, however, no order as to costs in this Rule.