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PETITIONER: ASHOK KUMAR SRIVASTAV

       Vs.

RESPONDENT: NATIONAL INSURANCE COMPANY, LIMITED & ORS.

DATE OF JUDGMENT:       27/04/1998

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS, J.      Special leave granted.      Appellant claims to be still in the service of National Insurance Company  Limited (respondent)  as  a  probationary Inspector on  a contention  that the  order  passed  by  the respondent on  13.31982 terminating  his probation is bad in law. He succeeded in the trial court where he filed the suit for a  declaratory decree  and also  in the  first appellate court, but he was non-suited by the High Court in the second appeal filed by the respondent. Hence he has come up in this Court with this appeal.      Appellant was  appointed as  Inspector on  probation at Khalidabad under  the Gorakhpur  branch  of  the  respondent Company with effect from 19.91980, initially for a period of twelve months  subject to  certain conditions.  On 13.3.1982 respondent-company served  upon him  thirty days  notice  of termination of  his service  on the  premise that appellants falled to achieve the targeted premium amount.      Appellant  filed   the  suit   in  the  Munsif’s  Court Gorakhpur for  a decree  declaring that  the said  notice of termination is  illegal and void and that he continues to be in service of the Company with all the benefits flowing from the post. Respondent-company contested the suit by filling a written statement  in which  it was  contended, inter  alia, that the  suit is  not maintainable  under Section 34 of the Specific Relief  Act (for  short ‘the  Act’)  and  that  the notice of termination of the appellant is legal and valid.      However, respondent-company  did not participate during evidence stage  and hence the trial court proceeded with the suit ex-parte and a decree was passed in terms of the plaint on 25.1.1991.  Appellant took  out execution  proceedings in which he  claimed a  sum of Rs. 1,02,861/- as arrears of pay due  to   him  from  the  date  of  notice  of  termination. Respondent resisted  the execution  by putting-forth various contentions including  that the  decree in unenforceable and void as  the  same  was  passed  without  jurisdiction.  The execution court has replied all such objections by its order dated 7.9.1991.      Respondent challenged the said order by means of a writ

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petition  filed   under  Article   226  and   227   of   the Constitution. High  Court of  Allahabad dismissed  the  writ petition holding  that the  decree was  passed  by  a  court having jurisdiction  and, that  the  suit  was  maintainable under Section 34 of the Act.      It was thereafter that the respondent-company preferred a first  appeal before  the Court  of  Civil  Judge  (Senior Division) Gorakhpur  challenging the  decree  of  the  trial court. When  that appeal  was  dismissed  respondent-company preferred  a   second  appeal   before  the  High  Court  of Allahabad. Four questions were formulated by the respondent- Company in  the second  appeal and pressed them into service as substantial  questions of law. They are : (1) Whether the termination order  is violative of the contractual term that one month’s  notice or  pay in lieu thereof is sine qua non; (2) whether  appellant is  entitled to reinstatement without entering upon a finding that there was statutory violation ; (3) whether the suit is barred under the Industrial Disputes Act; (4)  whether the suit is barred under section 34 of the Act.      High Court  did not  permit the  respondent-Company  to pursue with the last two questions on the premise that those questions were finally decided in the writ petition and such decision will  operate as  a bar  of res-judicate.  However, learned Single Judge of the High Court proceeded to consider the other  two questions  and held  that non-payment  of one month’s pay  in lieu  of the  notice would  not vitiate  the termination order  and that  at any  rate, appellant  is not entitled  to   continue   as   a   Probationary   Inspector. Resultantly, the High Court reversed the decree of the trial court and dismissed the suit.      Learned counsel  for the  respondent-company once again convassed for  acceptance of  the argument  that the suit is not maintainable  in view  of Section  34 of the Act. But in view of  the clear finding rendered by the High Court in the judgment dismissing  the writ  petition that such a suit for declaration is  maintainable before a civil court, the first appellate court did not go into that question.      In the second appeal, respondent’s counsel repeated the contention but  learned Single  Judge of the High Court, who disposed of  the second appeal, did not allow the respondent to re-agitate  the said  question on  the premise  that  the decision rendered  in the  writ petition on that point would operate  as   res  judicata.  Undeterred  by  such  repeated repudiation of  the  contention,  learned  counsel  for  the respondent made an endeavour to convince us that the suit is not maintainable on the same ground.      It is  well neigh  settled that  a decision on an issue raised in  writ petition  under Article 226 or Article 32 of the Constitution  would also operate as res judicata between the same  parties in  subsequent judicial  proceedings.  The only exception  is that  the rule  of res judicata would not operate to  the detriment  or impairment  of  a  fundamental right. A Constitution Bench of this Court has considered the applicability of  rule of  res judicata  in writ proceedings under Article  32 of  the Constitution  in Daryao & ors. vs. State of U.P. & ors. [1962 (1) SCR 574] and it was held that the  basis   on  which   the  rule   rests  is   founded  on consideration of  public policy and it is in the interest of public at large that a finality should attach to the binding  decision   pronounced  by   a  court  of  competent jurisdiction and  it is  also in  the public  interest  that individuals should  not be vexed twice over in the same kind of litigation.      This was  relterated by  another Constitution  Bench of

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this Court  in  The  Amalgamated  Coalfields  Ltd.  vs.  The Janapada Sabha,  Chhindwara [1963  Supple (1)  SCR 172]. The following is  the ratio  : "Therefore, there can be no doubt that the  general principle  of res judicata applies to writ petitions filed  under Art.  32 or Art. 226. It is necessary to emphasise  that the  application of  the doctrine  of res judicata to the petitions filed under Art.32 does not in any way impair  or affect  the content of the fundamental rights guaranteed to the citizens of India.      Though the  above has  now become  an a  accepted legal position [vide  G.K. Sharam  & ors.  vs. S.D.  Sharma & ors. (1986 Supple.  SCC 239),  the contention raised here is that since the  writ petition was in challenge of an order passed in execution  of a  decree, the  decisions rendered  in such writ petition  would only  remain in  the reaim of execution and they  would not  preclude the  parties to  the suit from raising such  issues over  again when the very decree itself is challenged  in appeal.  The  Explanation  VII,  added  to Section 11  of the  Code  of  Civil  Procedure  as  per  CPC Amendment Act 104 of 1976 read thus :      "The  provisions  of  this  section      shall apply to a proceeding for the      execution   of    a   decree    and      references in  this section  to any      suit, issue  of former suit shall b      e    construed     as    references      respectively, to  a proceeding  for      the  execution   of   the   decree,      question arising in such proceeding      and a  former  proceeding  for  the      execution of that decree."      Though the said explanation may not stricto sensu apply to the  trial stage,  the principle  couched in it must gain application thereto. It is immaterial that the writ petition was  filed  only  subsequently  because  the  findings  made therein became  final as  no appeal  was filed  against  the judgement. The  basic idea  in the  rule of res judicata has sprouted from  the maxim  "nemo debet  bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). In   Y.B.  Patil &  ors vs. Y.L. Patil [1976 (4) SCC 66] a  three-Judge Bench of this Court considered the effect of a  decision rendered  in a  writ petition  at  subsequent stages of  the same  its. It  held : " The principles of res judicata can  be invoked  not only  in  separate  subsequent proceedings, they  also get attracted in subsequent stage of the same  proceedings. Once an order made in the course of a proceeding  becomes  final,  it  would  be  binding  at  the subsequent stage of that proceeding."      Thus, the  legal position  is clear  and the respondent cannot now re-agitate the question regarding maintainability of the  suit under  Section 34  of the Act. However, learned counsel adopted an alternative contention before us that the suit is in effect one for specific enforcement of a contract and such a suit is not conceived under Section 14 of the Act and hence  it  is not maintainable. According to the learned counsel, the  reliefs claimed in the suit, if granted, would result in  specific enforcement of a contract of employment. Section 14(1)(a)  of the  Act makes it clear that a contract of employment  is not  specifically  enforceable  since  non performance of  can be  compensated by  money, contended the counsel.      The said  contention is  based on  a fallacious premise that  the   suit  was  for  enforcement  of  a  contract  of employment. Respondent  was appointed  on certain  terms and pursuant to  such appointment  he worked within the scope of

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such employment.  Termination of  his employment purportedly in terms  of the  same contract  is  challenged  by  him  by praying for  a declaration  that such termination is invalid and  therefore,   he  continues   in  the  same  employment. Maintainability of a suit cannot be adjudged from the effect which the  decree may  cause. It  can be  determined on  the basis of  the  ostensible  pleadings  made  and  the  stated reliefs claimed in the plaint.      Though Specific  Relief Act  widens the  spheres of the civil  court   its  preamble  shows  that  the  Act  is  not exhaustive of  all kinds  of specific  reliefs. "An  Act  to define and  amend the  law  relating  to  certain  kinds  of specific relief.  It is well to remember that the Act is not restricted to  specific  performance  of  contracts  as  the statute governs  powers of  the court  in granting  specific reliefs in  a variety  of fields.  Even so, the Act does not cover all  specific reliefs in a variety of fields. Even so, the Act does not cover all specific reliefs concievable. Its preceding enactment  (Specific Relief Act, 1877) was held by the courts  in India  as not exhaustive. Vide Ramdas Khatavu vs.  Atlas   Mills  (AIR  1931  Born.  151).  In  Hungerford Investment Trust  Ltd. vs. Haridas Mundhra & ors . [1972 (3) SCC 684] this Court observed that Specific Relief Act, 1963, is  also  not  an  exhaustive  enactment  and  it  does  not consolidate the  whole law  on the subject. "As the preamble would indicate,  it is  an Act  ‘to define and amend the law relating to  certain kinds  of specific  relief. It does not purport to  lay down  the law relating to specific relief in all its remifications."      Chapter II  contains a  fasciculus of rules relating to specific performance  of contracts,  Section 14 falls within that chapter  and  it  points  to  contracts  which  are  no specifically enforceable.  Powers  of  the  Court  to  grant declaratory reliefs  are adumbrated in Section 34 of the Act which falls  under Chapter  VI of  the Act.  It is  well  to remember that even the wide language contained in Section 34 did not exhaust the powers of the court to grant declaratory reliefs. In  Veruareddi Ramaraghava Reddy & ors. vs. Konduru Seshu Reddy & ors. [1966 Supple. SCR 270] and in M/s Supreme General Films  Exchange Ltd.  vs. His  Highness Maharaja Sir Srijnath Singhji  Deo of  Maihar &  ors. [1975  (2) SCC 530] this Court while interpreting the corresponding provision in the preceding  enactment of  1877 (Section  42) has observed that "Section  42 merely  gives statutory  recognition to  a well-recognised type  of declaratory  relief and subjects it to a  limitation, but  it cannot  be deemed to exhaust every kind  of   declaratory  relief   or  to   circumscribe   the jurisdiction of  courts to  give declarations  of  right  in appropriate cases falling outside Section 42."      The position  remains the  same under  the present  Act also.  Hence  the  mere  fact  that  a  suit  which  is  not maintainable under  Section 14  of the Act is not to persist with its  disability of  non admission  to civil courts even outside t  he contours  of Chapter II of the Act. Section 34 is enough  to open  the corridors  of  civil courts to admit suits filed for a variety of declaratory reliefs.      How the  more important  question is, whether appellant is entitled  to declaration  that he  continues to be in the employment of respondent-company. High Court held that he is not because  the contract of employment does not entitle him to continue.      Terms and  conditions of  employment of  the  appellant have been  incorporated in  the letter  of appointment dated 2.12.1980. It contains the following :      (1)  Initially  h  e  would  be  on

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    probation for a period of 12 months      and during  that period  he has  to      achieve a  premium of  at least Rs.      75,000/-  to  become  eligible  for      promotion      as      Probationary      Inspector, Grade I.      (2) It appellant falls short of the      said target,  respondent -  company      reserved its  right to  extent  the      period of  probation by  another 12      months   provided   the   following      conditions are satisfied.      (a)  He   should  have  produced  a      premium  amount   of  Rs.  50,000/-      during the first 12 months period.      (b) A request should be made by the      appellant  in   writing   for   the      purpose of getting extension of the      period of probation.      (c) The  company has  discretion to      decide whether  such request should      be granted or not.      (3) Unless  a letter appointing him      as Probationary  Inspector (Grade -      I) is issued by the company, before      the   expiry    of   the    initial      probationary period or the extended      probationary period  (as  the  case      may be)  his  service  shall  stand      automatically terminated.      (4) His  service is  also liable to      be terminated without assigning any      reason during  probationary  period      and/or extended period.      Appellant   has    no   case   that      respondent-company has  issued  any      letter    appointing     him     as      "Probationary Inspector (Grade -I)"      before the  expiry of  the  initial      period of  12 months  nor has  he a      case   that   initial   period   of      probation was  further extended  at      any time.      The  above   being   the   admitted      position, appellant  cannot  get  a      declaration that he continues to be      in service. Hence the conclusion of      the High  Court that  the  suit  is      liable to  be  dismissed  does  not      warrant any interference.      In the result, we dismiss this appeal. No costs.