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CASE NO.: Appeal (civil)  5348 of 2002

PETITIONER: M/s. Pearlite Liners Pvt. Ltd.                   

RESPONDENT: Manorama Sirsi

DATE OF JUDGMENT: 06/01/2004

BENCH: BRIJESH KUMAR  & ARUN KUMAR

JUDGMENT: JUDMENT

ARUN KUMAR, J  

       The respondent filed a suit for declaration and permanent injunction  against the appellant with the following prayers :          "(a)  declaring that the transfer order of the plaintiff dated  11.1.86 issued by the secretary  of the first defendant  company from its Head Office to the Shankar Rice Mill  Godown, Shimoga belonging to M/s. Bharath Founders is  illegal void and inoperative and further declare that the  plaintiff is to be in the service of the first defendant  company and she is entitled to all the emoluments  including her salary.

       (b) for permanent injunction restraining the  defendants from holding any enquiry against the plaintiff  on the ground that she has not complied with the order of  transfer dated 11.1.86 and she is guilty of insubordination  etc. as stated in the articles of charges dated 17-1-87  and enquiry indicated in the notice dated 2-2-87."  

        The appellant while denying the averments contained in the plaint  took an objection that the Civil Court had no jurisdiction to try the suit.  The  trial court framed various issues in the suit.  The relevant issue for the  present purpose is :         "Issue No 5 : whether defendant No.1 proves that this  Court has no jurisdiction to try the suit."

                The trial court decided the said issue in favour of the defendant and  held that the court had no jurisdiction to entertain the suit as it was not  maintainable and the plaint was liable to be rejected.  The appeal filed  by  the respondent-plaintiff against the said judgment of the trial court  remained unsuccessful.  The judgment of the trial court on Issue No.5 was  affirmed by the appellate court while dismissing the appeal.  The  respondent plaintiff filed a regular second appeal against these judgments.   The appeal succeeded.  The High Court held that the defendant had failed  to prove that the suit was not maintainable before the Civil Court.  The trial  court was directed to dispose of the suit on merits in accordance with law.   The defendant has filed the present appeal against the judgment of the  High Court.

       Briefly the facts are :         That the plaintiff was appointed by the defendant Company in the

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year 1976 on a monthly salary of Rs.535/- as a trainee accountant.  She  was promoted as an Officer with a monthly salary of Rs.1605/-.  On 11th  January, 1986, the plaintiff was transferred from the head office of the  defendant Company to its sales-office-cum-godown located at Shanker  Rice Mill Compound, Shimoga.  The said office is within the same city.   However, according to the plaintiff the location of the office was not good  and no amenities for the staff were available at the said office.  The plaintiff  did not comply with the said transfer order and continued to be  unauthorisedly absent from work.  On 17th January, 1987, a charge sheet  was issued to the plaintiff to which she did not give any reply.  The present  suit was filed on 12th February, 1987. According to the defendant the  prayers in the suit really amount to enforcement of a contract for personal  service, a relief which a civil court cannot grant.

       Therefore the  legal question for consideration which arises is :         "Can a contract of service be specifically enforced?"          The relationship between the parties is based on a contract between  two private parties.  Admittedly, there is no written contract.  If there had  been a written contract, it would have contained terms and conditions  governing the relationship between the parties.  Inspite of absence of a  written contract governing the relationship between the parties,  respondent-plaintiff challenged the transfer order by filing the present  suit.   She raised several grounds in this behalf including that the transfer was  illegal as it was to a different Company. The transfer was to a lower post  which means it is by way of punishment.  Further according to the plaintiff  the place to which she had been transferred was not suitable to work at.   The defendant denied  all these allegations in the written statement.  Apart  from challenge to the transfer order, the plaintiff sought a declaration that  she continued to be in service of the defendant and was entitled to all  emoluments including salary. Further an  injunction was prayed to restrain  the defendant from holding inquiry against the plaintiff.  Significantly, no  prayer for damages for breach of contract was made in the suit.

       Learned counsel for the appellant argued that the prayers in the suit  seek reinstatement of the plaintiff as an employee of the defendant  Company which really amounts to specific performance of a contract of  personal service which is specifically barred under the provisions of the  Specific Relief Act.   It is a well settled principle of law that a contract of  personal service cannot  be specifically enforced and a court will not give a  declaration that the contract subsists and the employee continues to be in  service against the will and consent of the employer.  This general rule of  law is subject to three well recognised exceptions  (i) where a public  servant is sought to be removed from service in contravention of the  provisions of Article 311 of the Constitution of India; (ii) where a worker is  sought to be reinstated on being dismissed under the Industrial Law; and  (iii) where a statutory body acts in breach of violation of the mandatory  provisions of the statute. [Per Executive Committee of Vaish Degree  College,Shamli and ors. Vs. Lakshmi Narain and Ors.{ (1976) 2 SCC 58} ].         The present case does not fall  in any of the three exceptions.  It is  neither a case of public employment so as to attract Article 311 of the  Constitution of India nor the case is under the Industrial Disputes Act.  The  defendant is not a statutory body.  There is no statute governing her  service contitions. The present is a case of private employment which  normally would be governed by the terms of the contract between the  parties.  Since there is no written contract between the parties, the dispute  cannot be resolved with reference to any terms and conditions governing  the relationship between the parties.  The plaintiff has neither pleaded nor  there has been any effort on her part to show that the impugned transfer  order was in violation of any term of her employment.  In the absence of a  term prohibiting transfer of the employee, prima facie the transfer order  cannot be called in question.  The plaintiff has not complied with the  transfer order as she never reported for work at the place where she was  transferred.  As a matter of fact, she also stopped attending the office from  where she was transferred.  Non-compliance of the transfer order by the

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plaintiff amounts to refusal to obey the orders passed by superiors for  which the employer can reasonably be expected to take appropriate action  against the concerned employee.  Even though it is a case of private  employment, the management proposed to hold an enquiry against the  delinquent officer, that is, the plaintiff.   In case of such insubordination,  termination of service would be a possibility.  Such a decision purely rests  within the discretion of the management.  An injunction against a transfer  order or against holding a departmental enquiry in the facts of the present  case would clearly amount to imposing an employee on an employer, or to  enforcement of a contract of personal service, which is not permissible  under the law.  An employer cannot be forced to take an employee with  whom relations have reached a point of complete loss of faith between the  two.

       Let us now examine the prayers in the suit in the light of averments  contained in the plaint.  It is stated in Para 6 of the plaint that the Secretary  of the Company warned her about her timings and issued a memo about  her attendance.  He demanded her resignation on 15th December, 1983.   She did not resign as per the request.  It is further stated in Para 7 that  "she was discriminated against in the matter of providing incentives in May,  1985\005\005\005\005..  She gave a representation to the Directors establishment   to consider this aspect of the matter.  Secretary in his reply dated 23rd May,  1985 abused her that she was not working properly\005\005\005."  In Para 8, it is  stated that the Secretary further issued her a notice stating that she had  not worked for two years.  Then follows the impugned transfer order dated  11th January, 1986.  The plaintiff has further alleged that her representation  against the said transfer order was not considered.  This was followed by a  notice to conduct an enquiry against the plaintiff.  In the background of  such facts, the plaintiff has in the suit made the following prayers : " (a)  Declaring that the impugned transfer order is  illegal, void and inoperative.

(b)     The plaintiff continues to be in service of the  defendant Company and is entitled all emoluments including  salary; and

( c ) Permanent injunction restraining the defendant  from holding an enquiry against the plaintiff.

       The question arises as to whether in the background of facts  already stated can such reliefs be granted to the plaintiff.  Unless there is a  term to the contrary in the contract of service, a transfer order is a normal  incidence of service.  Further it is to be considered that if the plaintiff does  not comply with the transfer order it may ultimately lead to termination of   service.  Therefore, a declaration that the transfer order is illegal and void  in fact amounts to imposing the plaintiff on the defendant inspite of the fact  that the plaintiff allegedly does not obey order of her superiors in the  Management of the defendant Company.   Such a relief cannot be granted.   Next relief sought in the plaint is for a declaration that she continues to be  in service of the defendant Company.  Such a declaration again amounts  to enforcing a contract of personal service which is barred under the law.   The third relief sought by the plaintiff is a permanent injunction to restrain  the defendant from holding an enquiry against her.  If the management  feels that the plaintiff is not complying with its directions it has a right to  decide to hold an enquiry against her.  The management cannot be  restrained from exercising its discretion in this behalf.  Ultimately, this relief   if granted would  indirectly mean that he court is assisting the plaintiff in  continuing with her employment with the defendant Company, which is  nothing but enforcing  a contract of personal service.  Thus, none of the  reliefs sought in the plaint can be granted to the plaintiff under the law.   The question then arises as to whether such a suit should be allowed to  continue and go for trial.  The answer in our view is clear, that is, such a  suit should be thrown at the threshold. Why should a suit which is bound to

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be dismissed for want of jurisdiction of a court to grant the reliefs prayed  for, to be tried at all?  Accordingly, we hold that the trial court was  absolutely right in rejecting the plaint and the lower appellate court rightly  affirmed the decision of the trial court in this behalf.  The High Court was  clearly in error in passing the impugned judgment whereby the suit was  restored and remanded to the trial court for being decided  on merits.  The  judgment of the High Court is hereby set aside  and the judgments of the  courts below, that is, the trial court and the lower appellate court are  restored.  The plaint in the suit stands rejected.  

       The appeal is allowed.  The parties are, however, left to bear  their respective costs.