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PETITIONER: EXECUTIVE COMMITTEE OF U.P. STATE WAREHOUSINGCORPORATION, LI

       Vs.

RESPONDENT: CHANDRA KIRAN TYAGI

DATE OF JUDGMENT: 08/09/1969

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. SHELAT, J.M.

CITATION:  1970 AIR 1244            1970 SCR  (2) 250  1970 SCC  (2) 838  CITATOR INFO :  RF         1971 SC1828  (10)  R          1972 SC1450  (4)  RF         1973 SC 855  (20,21,42)  O          1975 SC1331  (26,31,187,189)  R          1976 SC 888  (14,31)  F          1977 SC 747  (17)  RF         1980 SC 840  (7,8,10,11)  RF         1987 SC1422  (10)  RF         1989 SC 341  (11)  RF         1990 SC 415  (16)  RF         1991 SC1525  (10)

ACT: Agricultural    Produce   (Development   and    Warehousing) Corporation  Act  (28 of 1956), s. 54 and  Regulations  made thereunder--Regulation 16(3)--Dismissal of employee  without following  procedure--If employee entitled to  reinstatement or only damages--Specific Relief Act  (1  of 1877). s. 21.

HEADNOTE: Under  s.  28 of the Agricultural Produce  (Development  and Warehousing)  Corporation  Act,  1956,  the  appellant   was established  as the Warehousing Corporation of the State  of U.P.  Section  54 of the Act gives power to  ’a  Warehousing Corporation  to make regulations not inconsistent  with  the Act and the Rules made thereunder and the regulations are to provide for all matters for which provision is necessary  or expedient for the purpose of giving effect to the provisions of  the  Act. Regulation 11 deals with  termination  of  the service  of  an employee other than by  way  of  punishment, while  regulation 16 deals with penalties. Under  regulation 16(3) an employee, on whom the punishment of dismissal is to be imposed, has to be given an opportunity, of tendering his explanation  in writing, for cross-examining  the  witnesses against him, and for producing evidence in his defence.     The  respondent was a warehouseman in the employment  of the appellant.  Certain charges were framed against him  and he  was  suspended pending enquiry into. the charges.  After receiving his explanation,  the Enquiry Officer did not take any  evidence  in  respect of any charge.  Instead,  he  met various  persons  and collected information,  and  gave  his

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findings  on  the  various  charges  on  the  basis  of  the enquiries made by him and the records.  Even the information so  collected was not put to the respondertl.  On the  basis of those findings of the Enquiry Officer the respondent  was dismissed  from service.  He. filed a suit  challenging  the order of dismissal on the ground that there was a  violation of  regulation 16(3) and prayed for a declaration  that  the order’was  null  and  void and that he was  entitled  to  be reinstated  with  full  pay and  other  emoluments.  On  the questions  whether: (1) the dismissal was not in  accordance with regulation 16(3); and (2) the relationship being one of personal   service  the  respondent  was  entitled  to   the declaration for reinstatement.     HELD:   (1) The termination of the  respondents  service was  not under regulation 11, but under regulation  16;  and the  procedure  prescribed  by  regulation  16(3)  was   not followed by the Enquiry Officer in the present case.     (2)  A  declaration to enforce a  contract  of  personal service will not normally be granted.  The! exceptions  are: (i)   appropriate  cases of public servants  who  have  been dismissed  from service in contravention of Art.  311;  (ii) dismissed workers under industrial and labour law; and (iii) when  a  statutory body has acted in breach of  a  mandatory obligation imposed by a statue. [267 G] 251     In the present case, a breach has been committed by  the appellant  of  regulation 16(3) as the  procedure  indicated therein was not followed. The order of dismissal however was passed  by the authority who could pass the order.’ Such  an order  made  in  breach of the  regulations  would  only  be contrary to the terms and conditions of relationship between the appellant (employer) and the respondent (employee), but, it  would  not  be in breach of  any  statutory  obligation, because, the Act does not guarantee any statutory status  to the  respondent,  nor does it impose any obligation  on  the appellant  in  such matters.  Therefore,  the  violation  of regulation  16(3) as alleged and established in  this  case, could only result in the order of dismissal being held to be wrongful, and in consequence making the appellant liable for damages,  but  could  not have the effect  of  treating  the respondent   as  still  in  service  or  entitling  him   to reinstatement.  [271 B--E]     Dr.  S,  B. Dutt v. University of Delhi,  [1959]  S.C.R. 1235 and S.R. Tewari v. District Board, Agra, [1964]3 S.C.R. 55, followed.     Life  Insurance  Corporation  of India  v.  Sunil  Kumar Mukherjee, [1964] 5 S.C.R. 528, distinguished.     Vine  v. National Dock Labour  Board,  [1956] Barber  v. Manchester  Hospital   Board,   [1958]  1  All  E.R.322  and Francis   v.  Municipal  Councillors  etc.  [1962]   3   All E.R.633,  referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 559 of 1967.     Appeal  by  special leave from the judgment  and  decree dated October 25, 1966 of the Allahabad High Court in Second Appeal No. 4275 of 1965. S.T. Desai, Naunit Lal and D.N. Misra, for the appellant.     B.R.L.  lyengar,  S.K. Mehta, and K.L.  Mehta,  for  the respondents. The Judgment of the Court was delivered by     Vaidialingam,  J.  This appeal,  by special  leave,   by the defendant-appellant, is directed against the decree  and

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judgment, dated October 25, 1966 of the Allahabad High Court in  Second Appeal No. 4275 of 1965 holding that  the  order, dated   March  10,  1964  passed  against   the   respondent dismissing him from service,    null and void and that he is entitled to. be reinstated with full pay and emoluments.     The  respondent-plaintiff  originally  entered   service with   the  appellant as a Technical Assistant  in  November 1958  and later he was promoted to the post of  Warehouseman on  October 15, 1959.  He was confirmed in 1962 in the  said post.   Certain charges were framed against  the  respondent and   pending  the enquiry into those charges he was  placed under suspension on 252 September  9,  1963.  After an enquiry  the  respondent  was found  guilty and in consequence dismissed from  service  of the appellant by order dated March 10, 1964.  The respondent instituted Civil Suit No. 201 of 1964 challenging the  order of   dismissal.   According to him the  various  allegations made against him were vague and had not been established and there has been no proper enquiry conducted against him.  The enquiry,  according to him,  was contrary to the  principles of  natural  justice without giving him  an  opportunity  to place  his defence and it was also held in disregard of  cl. 16  of  the Regulations framed by the   appellant.  He  also claimed that he was entitled to the  protection  under  Art. 311 of the Constitution.  On these allegations the plaintiff prayed  for  a declaration that the order, dated  March  10, 1964  .dismissing  him from service, was null and  void  and that  he  was entitled to be reinstated with  full  pay  and other emoluments.     The  appellant-defendant,  in  its  written   statement, pleaded  that the enquiry into the charges leveled  .against the  plaintiff was made properly and in compliance with  the provisions  of the Regulations and the  plaintiff-respondent had  been  given  full opportunity to  participate.  in  the enquiry which he also did.  The  appellant pleaded that the’ respondent  was no.t entitled to the protection of Art.  311 of  the  Constitution.  It also pleaded that  the  order  of dismissal  passed  against  the  respondent  was   perfectly justified  and  that  the  suit was  false  and  had  to  be dismissed with costs.     The  trial  Court  held  that  the  plaintiff  was  no.t entitled   to   the  protection  under  Art.  311   of   the Constitution.   But it held that in conducting the  enquiry, the  Enquiry Officer did not comply with the  provisions  of sub-cl.  (3)  of  el. 16 of the Regulations  framed  by  the appellant  and that there had been a violation of the  rules of  natural  justice.  In consequence the trial  Court  held that the order dismissing the plaintiff was illegal; but  in considering  the  question as to whether the  plaintiff  was also entitled to the further relief claimed by him, viz., of reinstatement with full pay and emoluments, the trial  Court was of opinion that in view of s. 21 of the Specific  Relief Act,  1877  the plaintiff was not entitled to  that  relief. Ultimately  the Trial Court  granted  a declaration, by  its judgment dated March 24, 1965  that  the order of  dismissal dated  March 10, 1964 was void and ineffective  and  decreed the suit with costs.     The appellant challenged this decision in appeal  before the  Civil Judge, Manipuri, in Civil Appeal No. 69 of  1965. The  respondent  filed  a  Memorandum  of  Cross  Objections challenging  the  decree of the trial  Court  declining  his relief  for reinstatement with full pay.  The learned  Civil Judge,   by   his  decree  and judgment dated  September  4, 1951 dismissed  the  appeal  and

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253 allowed  the  Memorandum of Cross-Objections  filed  by  the respondent.   The result was that the plaintiff’s  suit  was decreed, granting both the reliefs as prayed for by him.     The  appellant again challenged the decrees of both  the lower  Courts  before the Allahabad High Court   in   Second Appeal  No.  4275  of  1965.  The High  Court  has,  by  its judgment  dated October 25, 1966 dismissed the  appeal.   It agreed   with  the findings recorded by the two  Subordinate Courts  that  the  enquiry proceedings  are  vitiated  by  a violation  of the principles of natural justice   and   also not   being   in  accordance with Regulation no. 16 (  3  ). Regarding  the  declaration for   reinstatement,   the  High Court was of the view that the rules and  the;   Regulations framed under  the  Agricultural  Produce  (Development   and Warehousing)  Corporations  Act,  1956  (Act  28  of   1956) (hereinafter called the Act) had statutory force and that as there  had  been a violation of Regulation  no. 16 ( 3  )  , the  plaintiff  was entitled to the declaration.     Mr.  S.T.  Desai,  learned  counsel  for  the  appellant Corporation  raised  two contentions: (1 ) A full  and  fair opportunity was given to the respondent in the enquiry  held against  him and there has been no violation  of  Regulation no. 16(3).  The finding on this point by the High Court  and the  Subordinate   Courts  is erroneous.  (2)  Even  on  the basis  that the enquiry is vitiated by  non-complianCe  with the  provisions  of   Regulation  no. 16(3)  framed  by  the Corporation,  the  relief declaring that  the  plaintiff  is entitled  to be reinstated in service with full pay   should not  have  been  granted  as by doing  so  the  Courts  have departed from the normal rule that the specific  performance of  a  contract  of personal service will not  be  enforced. In   any  event,  counsel urged that there are  no.  special circumstances  justifying the grant of that relief  in  this case.     Mr. B.R.L.Iyengar, learned counsel for the   respondent, pointed out that the findings that the enquiry held was  not in  accordance with Regulation no. 16(3) and that there  has been  a violation of the principles of natural justice,  are concurrent  findings recorded by all the Courts  and  those: findings  are  fully supported by the  evidence  on  record. Regarding  the  second contention, Mr. Iyengar  pointed  out that when an order of dismissal has been passed in violation of a statutory provision--as in this case the Regulations--a declaration   granted  in  favour  of  the   respondent   is justified.     The first contention raised by Mr. Desai relates to the: question  as  to  whether  the  enquiry  held  against   the plaintiff was in accordance with sub-el. ( 3 ) of Regulation 16  of the Regulations framed by the appellant  and  whether the enquiry is vitiated by 254 a  violation of the principles of natural justice.  All  the Courts have held that the respondent is not entitled to  the protection under Art. 311 of the Constitution. Therefore the only  question for consideration is whether the enquiry  has been  properly conducted in accordance with  Regulation  no. 16(3).  As pointed out by Mr. Iyengar, the findings on facts on  this  point have been recorded concurrently by  all  the Courts as against the appellant.     It  is  now necessary to briefly refer to  some  of  the provisions  of  the Act under which the appellant  has  been constituted  and  is functioning, as  also  the  Regulations framed  by  the Board.  The Act is one to  provide  for  the incorporation  and   regulation   of  corporations  for  the

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purpose  of  development  and  warehousing  of  agricultural produce   on  cooperative   principles  and   for    matters connected    therewith.    Section   2    defines    certain expressions,  including ’appropriate  Government’,  ’Board’, ’Central  Warehousing  Corporation’,  ’prescribed’,   ’State Warehousing Corporation’ and ’Warehousing Corporation’.  The expression   ’Board’   means   the   National   Co-operative Development  and Warehousing Board established under  s.  3. ’State   Warehousing  Corporation’  (the  appellant  is  one such)   means   a  Warehousing  Corporation  for   a   State established  under  s.  28.   Section  3  provides  for  the establishment by the Central Government of a Corporation  by the   name   of  National   Co-operative   Development   and Warehousing  Board.   Section 17 provides  for  the  Central Government  establishing  a  Corporation by  the   name   of Central   Warehousing Corporation.  Section 28 provides  for the  State Government establishing a Warehousing Corporation for the State.  As pointed out earlier, the appellant is the Warehousing  Corporation  for the State  of  Uttar  Pradesh, established  under this section.  Section 34 lays  down  the functions  of a State Warehousing Corporation.   Section  35 provides for the; composition of the Executive Committee  of a  State Warehousing Corporation.  Section 52 gives power to the appropriate Government to  make  rules  to carry out the purposes  of  the  Act  and  sub-s.  (2)   deals   with  the various  matters in respect of which rules  may  be   framed without prejudice to the generality of the power   contained in  sub-s. ( 1 ).  Sub-s. (3 )  provides  that   all   rules made   by the appropriate Government under s. 52  shall,  as soon  as  may be after they are made, be  laid  before  both Houses of Parliament or the Legislature of the State as  the case  may be.  Section 53 gives power to the Board  to  make regulations not inconsistent with the Act and the rules made thereunder,  and  those  regulations  may  provide  for  all matters  for which provision is necessary or  expedient  for the  purpose of giving effect to the provisions of the  Act. Apart  from  the  generality  of  this  power,   sub-s.  (2) specifies  the various matters regarding  which  regulations may be 255 framed.    Section  54  gives  power  to   the   Warehousing Corporations to make regulations. not inconsistent with  the Act and the rules made thereunder, and those regulations may provide for a11 matters for which provision is necessary  or expedient   for   the  purpose  of  giving  effect  to   the provisions of the Act.  Apart from this general power,  sub- s. (2) enumerates the  various  matters in respect of  which regulations  can  be  framed.  Under  s.  54  the  appellant Corporation had framed regulations.  Those regulations.  are the Uttar Pradesh State Warehousing Corporation Regulations, 1961  (hereinafter  called the Regulations).  We  shall  now proceed to consider the provisions of the Regulations.     Clause  1  (3)  of the  Regulations  provides  that  the Regulations. shall apply to all employees of the Corporation and to the personnel employed on contract in respect of  all matters  not regulated by the  contract.  Clause 2   defines the   various   expressions. Chapter II of  the  Regulations deals   with   the  appointing  authority,   probation   and termination   of   service.   Regulation   11   deals   with termination of service.  Chapter IV deals with  discipline’. Subcl.  (  1  )   of  regulation   16   provides   for   the imposition  of penalties as against an employee found guilty of  the  various  acts mentioned therein.   Sub-cl.  (3)  of regulation 16, which is relevant for the present purpose, is as follows:

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                   "(3)  No  punishment  other  than   that               specified in sub-para (1)(a), (1)(b) or (1)(c)               shall  be  imposed  on  any  employee  without               giving  him  an  opportunity for tendering  an               explanation in writing and cross examining the               witnesses   against  him,  if  any,   and   of               producing evidence in defence:                   Provided that punishment to an employee on                             deputation from the Central Government , a State               Government  or a Government Institution  shall               be   imposed  only  in  accordance  with   the               procedure  and rules laid down in this  behalf               in his parent service." Sub-paras  (1)(a), (1) (b) and (1) (c) referred  to  therein are  the  penalties  of  (a)  fine;  (b)  censure;  and  (c) postponment  or  stoppage of increments  or  promotion.   In this   case  as  the punishment imposed is one of  dismissal of  the  appellant   should  have  followed  the   procedure indicated  in sub-cl. (3) of regulation 16 extracted  above. Under  this sub-clause, it has to be noted that an  employee on whom a punishment other than that specified therein is to be imposed, has to. be given an opportunity of tendering his explanation  in   writing   and   cross-examining  witnesses against him, if any, and producing evidence in defence.  The grievance of the respondent regarding the conduct of the 256 enquiry,  apart  from other objections, is  ’that  materials collected  by the Enquiry Officer behind his back  were  not made: known to him and that information had been taken  into account  for holding him guilty.  His further  objection  is that  he did not get any opportunity to adduce  evidence  in his   defence  and  that  the  various  persons  from   whom information  had been  gathered by the Enquiry Officer  were not  tendered  for   cross-examination by him.   It  is  not necessary  for  us  to  go  elaborately  into  the   various proceedings  connected with the giving of the  charge-sheet, the  explanation  offered  by the appellant  and  the  final conclusions  arrived at by the Enquiry Officer on the  basis of which the respondent has been dismissed from service.  As pointed    out   by  Mr.  Iyengar,  all  the   Courts   have concurrently held that the enquiry is vitiated and has  been held contrary to regulation 16(3 ).  It is enough therefore, in  the circumstances, to note that the Enquiry Officer  Sri F.A. Abbasi who has given evidence has admitted that he  did not  take in evidence in respect of any charge and  that  he considered the records as sufficient for giving findings  on the  charges.   He  has also admitted that  he  met  various persons  and collected information and that information  has been  incorporated  in his enquiry report.  He  has  further admitted  that the information so collected by him  was  not put  to  the  plaintiff, and has stated that  he  based  his findings  in the report against the respondent on the  basis of  the  enquiries  made  by him of  the  police  and  other persons.   In the: face of these admissions, it is idle  for Mr.  Desai to urge before us, that the findings of the  High Court  and  the  Subordinate Courts that there  has  been  a violation  of  regulation 16(3) in the  enquiry  proceedings cannot  be sustained. IOn the other hand, we are of  opinion that  the  finding is amply .justified by  the  evidence  on record.     Mr.  Desai made a feeble: attempt to sustain  the  order dated  March 10, 1964 as one passed under regulation 11  and not under regulation 16.  We have no hesitation in rejecting this contention.  Regulation 11, as we have already  pointed

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out, is in Chapter II, and deals with termination of service simpliciter and, even in such circumstances, it provides  in the  case of a permanent employee that his services  can  be terminated only after apprising the employee of the  reasons therefore  and   asking  him    to furnish  explanation  and after  consideration of the explanation and then giving  the employee  a  final   notice  to.  show   cause  against  the proposed  termination  of  service.   This  clause,  in  our opinion,  deals  with a termination, other than  by  way  of punishment,  and  the procedure indicated therein  is  quite simple.   On      the other hand, regulation 16  appears  in Chapter  IV dealing with discipline.  An order of  dismissal passed   after  following  the procedure indicated  therein, attaches a stigma on the employee concerned.  Having  issued a charge-sheet and made a farce of 257 an enquiry and then dismissed the employee after holding him guilty, cannot certainly be considered to be termination  of the employee’s service under regulation 11.  That action was taken by way of disciplinary proceedings. is clear from  the fact  that an order suspending the respondent,  pending  the enquiry,   was passed on November 9, 1963.  The  same  order further  directed  that  the respondent  will  receive  only subsistence allowance during the period of suspension.   The order of suspension must be related to regulation 17 and the grant   of   subsistence   allowance   must   be    referred to  .regulation  18,  both  of which  occur  in  Chapter  IV relating to discipline.  Therefore it follows that the first contention of Mr. S.T. Desai cannot be accepted.     Mr.  Desai  next urged that even on the basis  that  the order   of  dismissal  had  been  passed  in  violation   of regulation   16(3),  the decree granting a  declaration  for reinstatement of the respondent with full pay and emoluments is  illegal  as  amounting to  enforcing   a   contract   of personal   service.  Alternatively Mr. Desai urged  that  in any  event  there are no special circumstances  existing  in this. case justifying the grant of such a declaration.     Mr.  Desai  developed his contentions  as  follows:  The relationship  between  the appellant and the  respondent  is that of a master and servant.  A breach of regulation  16(3) will  at  the  most result in the order of  dismissal  being wrongful.   The  remedy, if any, of the aggrieved  party  in such  a case will only be a claim for damages for breach  of contract.   The  counsel  further urged  that  Courts  have. jurisdiction  to  declare the decision of a  statutory  body given  in  violation  of a  mandatory  statutory  obligation relating to dismissal of a ’servant as ultra vires and void. Even  in such circumstances, it was urged, the  jurisdiction to  grant  a declaration which will result in continuity  of service  is  granted only under very  special  circumstances which  require  the departure from the general rule  that  a contract  of service  will  not  be  specifically  enforced. According  to the counsel, the rules framed under s.  52  of the  Act  by the appropriate Government may  have  statutory force and effect if they are of such-a nature as to  require mandatory compliance; but, according to him, the regulations framed  by a Warehousing Corporation do not create any  such statutory  obligation  of  a  mandatory  nature.   Hence   a termination  of  service by an employer even  in  breach  of conditions    of service laid down by the regulations  would only  attract  the  general law of master  and  servant  and cannot  result in a declaratory decree about  continuity  of service being granted.  In any event, the counsel urged that a  declaration should not have been granted as there are  no special   circumstances   warranting  the grant  of  such  a

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relief in this case.  Counsel pointed out that the 258 respondent entered service only in November 1958 and he  has been  removed from service in 1964 and it is not claimed  by the  respondent that he will not be able to take up  service elsewhere.  In short, according to Mr. Desai, the  grant  of the.  relief  of  declaration by  way  of  reinstatement  is erroneous.     Mr.   B.R.L.   Iyengar,   learned   counsel   for    the respondent,  urged that the regulations have been framed  by the  Warehousing  Corporation  under s..  54.   One  of  the matters  in  respect  of which regulations may be framed  is in  regard to the conditions    of service of the  employees of a Warehousing Corporation.  It is by virtue of that power that  the  regulations--called Staff  regulations-have  been framed.  By virtue of cl. (3) of regulation 1, they apply to all  employees.  of  the Corporation and  to  the  personnel employed on contract in respect of all matters not regulated by  the  contract.  Those. regulations  deal  with   various matters relating to the service conditions of the employees. Chapter IV deals with discipline and cl. (3)  of  regulation 16   makes  it imperative and obligatory on the  Corporation to   comply  with ’those provisions before punishment  other than those punishments specified therein is imposed  against an  employee.  The  regulations, according to  Mr.  Iyengar, having been framed under the Act, have statutory effect  and they  impose statutory obligation of     a mandatory  nature on the appellant Corporation in respect of the procedure  to be adopted for taking disciplinary  action.  On the findings recorded by all the’ Courts, it is clear that there has been a violation of cl. (3) of regulation 16, in which  case   it follows   that  the  respondent  was  entitled  to   get   a declaration  that     the order of dismissal is void and  of no  effect.  Counsel  also pointed out that the respondent’s services have  been  arbitrarily and mala fide terminated by the   appellant   and  ;therefore,  there   are   sufficient circumstances.  for  departing from the normal rule  that  a contract  of  personal  service  will  not  be  specifically enforced.     The  question as to when and under what circumstances  a relief  by  way  of  declaration  regarding  continuity   of service, after holding that an order of dismissal is void or ultra  vires,  can  be given, has  been  considered  both  m England   and  here.  The leading decision of the  House  of Lords which is generally invoked in support of the view that such  a declaration can be granted is the decision in  Vine’ v.  National Dock Labour Board(1).  This decision  has  also been referred to by this Court in some of its decisions,  to which  we shall refer presently.  The case before the  House of  Lords in the decision referred to above arose under  the following  circumstances.  The plaintiff was  a   registered dock (1) [1956] 3 All E.R. 939. 259 worker  employed in the  reserve pool by the  National  Dock Labour  Board under a scheme set up under the  Dock  Workers (Regulation  of  Employment)  Order,  1947.   In  1948,  the National  Board,  approved  the  delegation  of  powers   to disciplinary  committees  set  up  by  local  boards.    The plaintiff  failed to obey a valid order to report  for  work with a company of stevedores and, in consequence, the  local board  instructed their disciplinary committee to  hear  the case.   The disciplinary committee, having heard  the  case, gave  notice  in writing to the  plaintiff  terminating  his employment.   The plaintiff instituted the  action  claiming

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damages  for  wrongful  dismissal  and  also  prayed  for  a declaration  that the order of dismissal was illegal,  ultra vires and invalid.  The Court of first instance granted both damages  and declaration;  but  on appeal, by  the  National Board,  the  Court  of Appeal struck  out  the   declaration granted   to  the   plaintiff.   The  plaintiff appealed  to the  House  of  Lords  against  the  striking  out  of   the declaration  and the National Board cross-appealed   against the finding that the: dismissal was invalid and also against the  award of damages.  The House of Lords held   that   the declaration granted by the trial Judge was properly made  as the  order of dismissal was a nullity since the local  board had  no power to delegate its. disciplinary functions.   The cross-appeal  filed  by the National  Board  was  dismissed. Viscount  Kilmuir,   L.C.,   in  considering  the   question regarding  the  grant  of  declaration, observes at  p.  943 that  the  discretion in ,,ranting  a  declaratory  judgment should  not  be  exercised save for good  reason  and  then, summarising the reasons for granting the declaration, states at p. 944:                 "First,  it follows from the fact  that  the               plaintiff’s  dismissal  was invalid  that  his               name  was  never  validly  removed  from   the               register, and he  continued  in  the employ of               the  National  Board.  This is   an   entirely               different  situation from the ordinary  master               and  servant  case.   There,  if  the   master               wrongfully   dismisses  the  servant,   either               summarily  or by giving  insufficient  notice,               the  employment  is  effectively   terminated,               albeit   in  breach of  contract.   Here,  the               removal  of  the  plaintiff’s  name  from  the               register   being,  in  law,  a   nullity,   he               continued to have the fight to be treated as a               registered  dock worker with all the  benefits               which,  by  statute,  that status conferred on               him.   It is, therefore, right that  with  the               background  of this scheme, the  court  should               declare his rights."               At p. 948, Lord Keith of Avonholm states:                       "This   is   not   a   straightforward               relationship of master and servant.  Normally,               and apart from the interven-               260               tion  of  statute,  there  would  never  be  a               nullity in terminating an ordinary contract of               master   and  servant. Dismissal might  be  in               breach  of contract and so unlawful but  could               only sound in damages.                   Here  we  are concerned with  a  statutory               scheme  of employment  ....  The scheme  gives               the dock  worker a status.  Unless registered,               he  is   deprived   of   the  opportunity   of               carrying on what may have  been  his  lifelong               employment  as  a dock worker, and  he  has  a               right  and interest to challenge any  unlawful               act   that interferes with this,  status.   If               the actings here complained of were a nullity,               Mr. Vine (hereinafter called ’the plaintiff’),               in my opinion, has a clear right to have  that               fact declared by the court."     It  will  be  noted  that the House  of  Lords,  in  the decision  referred  to above, have  emphasized  that  orders striking  off  the  plaintiff from  the:  register  was  not considered  a  simple  case  of  a  master  terminating  the

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services of the servant, but, on the other hand, was treated as  one  affecting  the status of the  plaintiff  and  whose services  have been terminated by an authority which had  no power to so terminate and, as such, the order was treated as void.   The House of Lords have also emphasised that due  to the intervention o.f the statute which safeguards the  right of  the dock worker, the order not being in accordance  with the  statute,  must be treated as a nullity.  It  was  under those  circumstances  that the House of Lords  restored  the decree of the Court of first instance granting a declaration regarding  the  continuity  of  service  of  the   plaintiff therein.   It must again be emphasised that the  order,  the validity of which was considered by the House of Lords,  was treated as a nullity.     The question whether a dismissed employee can ask for  a declaration  that  his. employment had  never  been  validly terminated,  again came up for consideration in  Barber   v. Manchester  Hospital  Board(1).  In that  case  a   Regional Hospital   Board passed an order terminating the  plaintiffs employment  as  a medical consultant in the  hospital.   The plaintiff  brought  an  action against  the  Board  claiming declaration  that  his  employment had  never  been  validly determined  and  he also claimed damages  for  breach     of contract or wrongful dismissal.  The  Court  held  that  the plaintiff’s contract with the Board was. one between  master and  servant and the order of termination of  his  services. could  not  be  treated  as a nullity.   In  this  view  the plaintiff’s   claim  for  a declaration that his  employment had  never been validly determined was not granted; but  the plaintiff was awarded  damages (1) [1958] 1 All E.R. 322. 261 for breach of contract.  It was  contended on behalf of  the plaintiff  that  when  passing the  order  terminating   his services the procedure indicated in cl. 16 of the terms  and conditions  of  service of hospital medical staff  has  been violated  by :he original hospital Board and  therefore  the order   of   termination   never became  effective  and  the plaintiff continued to be still in service as the order  was a  nullity.  On behalf of the plaintiff reliance was  placed on   the  decision  in  Vine’s  Case(1).    Repelling   this contention, Barry, J., observes, at p. 331:                     "... I am unable to equate this case  to               the circumstances which were being  considered               by the Court of Appeal and the House of  Lords               in  Vine  v.  National Dock  Labour  Board(1).               There   the   plaintiff  was working  under  a               code which had statutory powers, and, clearly,               in  those  circumstances,  all  the  lords  of               appeal who dealt with the case in the House of               Lords took the view that the case could not be               dealt  with  as  though it  were  an  ordinary               master  and servant claim in which the  rights               of  the  parties  were  regulated  solely   by               contract.  Here, despite the strong  statutory               flavor attaching to the plaintiff’s  contract,               I   have   reached   the  conclusion  that  in               essence  it was an ordinary  contract  between               master and servant and nothing more." In  this  view  the  Court finally held that the plaintiff’s only  remedy  was  to  recover  damages  as  for  breach  of contract.     A  similar question regarding the right of  a  dismissed employee  to get a declaration of his right to  continue  in employment  came  up  for  consideration  before  the  Privy

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Council   in   Francis  v. Municipal  Councillors  etc.("’). The  plaintiff  in  that  case was in  the  service  of  the Municipal  Councillors of Kuala Lumpur and, by s.  16(5)  of the  Municipal Ordinance (Extended  Application)  Ordinance, 1948, the President had power to dismiss him.  The plaintiff was  dismissed.  The Privy Council held that  the  plaintiff had  been  wrongly dismissed and that his remedy  lay  in  a claim   for  damages.   The  plaintiff  sought   a   further declaration  that he had a right to continue  in  employment notwithstanding  the  order of  dismissal.   Rejecting  this claim the Privy Council observed, at p. 637:                   "In their Lordships’ view, when there  has               been a purported termination of a contract  of               service  a declaration to the effect that  the               contract of service still subsists will rarely               be  made.   This  is a  consequence   of   the               general principle of law that the courts  will               not grant               (1)(1956) 3 E.R. 939.               (2) [1962] 3 All E.R. 633.               CI/70--5               262               specific performance of contracts of  service.               Special circumstances will be required  before               such a declaration is made and its making will               normally  be in the  discretion of the  court.                             In   their   Lordships’  view  there  are   no               circumstances in the present case which  would               make  it either just or proper to make such  a               declaration." The Privy Council distinguished the particular circumstances that  existed before the House of Lords in Vine’s  case  (1) and finally held at p. 638:                   "In    their    Lordships’    view     the               circumstances  of   the present case  are  not               comparable  with those in Vine’s case (1)  and               are not such as to make it appropriate to give               a declaratory judgment in the manner contended               for   on   behalf  of  the   appellant.    The               appellant’s  employment  must  be  treated  as               having in fact come to and end on Oct. 1, 1957               ’and the appellant’s remedy lay in a claim for               damages."     From  a  review of the English decisions,  referred   to above, the position emerges as follows: The law relating  to master  and  servant  is clear.   A  contract  for  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. The  remedy  of  the employee is a  claim  for  damages  for wrongful  dismissal or for breach of contract.  This is  the normal  rule and that was applied in Barber’s  case (2)  and Francis’ case (2).  But, when a statutory status is given to an employee and there has been a violation of the provisions of  the  statute while terminating the services of  such  an employee, the latter will be eligible to get the relief of a declaration  that  the order is null and void  and  that  he continues  to be in service, as it will not then be  a  mere case  of  a master terminating the services  of  a  servant. This was the position in Vine’s case.(1)     The  question has also been considered by this Court  in certain  decisions, to which we will immediately refer.   In Dr.  S.B. Dutt v. University of Delhi(4) this Court  had  to

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consider the legality of an award directing that an order of dismissal  was ultra vires, mala fide and of no  effect  and that  the  appellant  in   that   case  continued  to  be  a Professor of the University.  The  appellant, Dr. Dutt,  who was  a Professor in the University of Delhi, was  .dismissed from  service  by  the  latter.   He  referred  the  dispute regarding  his  dismissal  and  certain  other  disputes  to arbitration, (1) [1956] 3 All E.R. 939.    (2) [1958] 1 All E.R. 322. (3) [1962] 3 All E.R. 633.    (4) [1959] S.C.R. 1235. 263 under s. 45 of the Delhi University Act.  An award was  made which  decided that the appellant’s "dismissal   was   ultra vires, mala fide, and has no effect on his status.  He still continues  to be a professor of the University".   The  said award was made  a rule of Court by the Subordinate Judge  of Delhi.  The University of Delhi challenged this decision  on appeal and the Punjab High Court, which ultimately heard the appeal,  set  aside  the award on the  ground  that  such  a declaration  amounted to specific enforcement of a  contract of  personal  service  forbidden by s. 21  of  the  Specific Relief  Act and therefore disclosed an error on the face  of the  award.   On  appeal,  this  Court,  agreeing  with  the reasoning of the High Court, observed at p. 1242:                      "There is no doubt that a  contract  of               personal   service  cannot   be   specifically               enforced.    Section   21,  cl.  (b)  of   the               Specific  Relief  Act, i 877, and  the  second               illustration  under this clause given  in  the               section   make  it  so  clear   that   further               elaboration of the point is  not required.  It               seems  to  us  that  the  present  award  does               purport  to  enforce a  contract  of  personal               service when it states that the dismissal  o.f               the  appellant ’has no effect on his  status’,               and ’he still continues to. be a  Professor of               the  University’.   When a  decree  is  passed               according to the award, which if the award  is               unexceptionable, has to be done under s. 17 of               the Arbitration Act after it has been flied in               Court, that decree will direct that the  award               be  carried  out  and hence  direct  that  the               appellant  be treated as still in the  service               of  the  respondent. It would then  enforce  a               contract   Of   personal  service,   for   the               appellant  claimed to be a professor  under  a               contract of personal service, and so  offends.               21 (b)?’ On  behalf  of  the appellant, reliance was  placed  on  the decision of the Judicial Committee in The High  Commissioner for  India  v. I. M. Lall (1) in support of  the  contention that  a declaration that the appellant continued in  service under  the  University  of Delhi in spite of  the  order  of dismissal was a declaration  which  the law permitted to  be made  and was not  therefore  erroneous. Dealing  with  this contention  and  referring to the decision of  the  Judicial Committee, this Court observed at p. 1244:                     "That  was  no.t  a  case  based  on   a               contract    of   personal    service...    The               declaration  did no.t enforce a   contract  of               personal  service but proceeded on  the  basis                             that  the dismissal could only be  eff ected  in               terms of the statute and as that had not  been               done, it was a nullity, from which the  result

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             followed that the respondent had continued  in               service.  All that the Judicial Committee did               (1) (1948) L.R. 75 I.A. 225.               264               in  this case was to make a declaration  of  a               statutory  invalidity  of an act, which  is  a               thing  entirely  different  from  enforcing  a               contract of personal service."     Holding that ’it was not  the  appellant’s  case  before the  arbitrator  that the dismissal was   ultra  vires   the statute   or  otherwise a nullity’,  this  Court  ultimately confirmed  the judgment of the High Court setting aside  the award.     The jurisdiction of the Courts to grant a declaration in a  particular  case that an order of dismissal is  void  and that the dismissed employee continues to remain in  service, again came up for consideration before this  Court  in  S.R. Tewari   v.  District  Board, Agra(1).  In  that  case,  the appellant’s   service  as  an Engineer  under  the  District Board,  Agra,  was terminated by the  latter,  after  giving salary  for three months in lieu of notice.  The  appellant, after having  unsuccessfully  appealed against the order  of termination  to the State Government, initiated  proceedings under Art. 226 before the Allahabad High Court for a writ of certiorari  for quashing the order of  the   District  Board dismissing  him from service and also sought a writ  in  the nature  of  mandamus commanding the District Board  and  the State  of  Uttar  Pradesh  to  treat  him  as  the  lawfully appointed  engineer,  and not to give effect  to  the  order terminating  his service.  The High Court dismissed the writ petition  holding  that  the  employee  had  been   properly dismissed  from  service. The employee came up to this Court in appeal.  On behalf of the District Board, the  respondent therein,   it   was   contended  that  the  remedy  of   the appellant,  if  any,  was only  to   institute  a  suit  for damages  for wrongful termination of employment and that  he was  not  entitled  to  pray  for  a  declaration  that  the termination  of employment was unlawful and a  consequential order  for  restoration in service.  The  decision  in   Dr. Dutt’s     case (2) among other decisions, was relied on  in support  of  this contention.  This  Court  negatived   that contention and stated the position in law as follows:                   "Under  the common law the Court will  not               ordinarily   force  an  employer   to   retain               the    services  of  an employee  whom  he  no                             longer  wishes  to employ.  But  this  rule  is               subject    to    certain    well    recognized               exceptions.   It is open to the Courts  in  an               appropriate  case  to declare  that  a  public               servant  who  is  dismissed  from  service  in               contravention of Art. 311 continues to  remain               in service, even though by so doing the  State               is in effect forced to continue to employ               (1) [1964] 3 S.C.R. 55.               (2) [1959] S.C.R. 1236.               265               the  servant  whom  it  does.  not  desire  to               employ.   Similarly under the industrial  law,               jurisdiction  of  the  labour  and  industrial               tribunals to. compel the  employer  to  employ               a  worker, whom he does not desire to  employ,               is  recognized.  The Courts are also  invested               with the power to declare invalid the act of a               statutory  body, if by doing the act the  body

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             has acted in breach of a mandatory  obligation               imposed  by  statute, even if  by  making  the               declaration  the  body  is  compelled  to   do               something which it does not desire to do." Vine’s  Case(1)  which was relied on before the   Court  was distinguished  on  the ground that the  purported  order  of dismissal  therein which was set aside was a  nullity  since the  local Board in that case had no power to delegate   its disciplinary   function. Again, the decision in  Dr.  Dutt’s Case(2) was stated to be not    case in which the invalidity of  an  act  done by the University on the  ground  that  it infringed  a statutory provision fell to be  determined  and the rights and obligations of the parties rested in contract and therefore the award was declared to  be  one contrary to the  rule contained in s. 21(b) of the Specific  Relief  Act and  hence  void.  This Court, wound up  the  discussion  in Tewari’s Case(3) as follows, at p. 62:                   "The jurisdiction to declare the  decision               of  the Board as ultra vires exists, though it               may  be  exercised  only  when  the  Court  is               satisfied  that  departure  is called for from               the  rule that a contract of service will  not               ordinarily be specifically enforced." On  facts, this Court held that the order of  dismissal   of the appellant before them was proper and justified.     From  the  two. decisions of this  Court,  referred   to above, the position in law is that no declaration to enforce a  contract  of personal service will be  normally  granted. But   there  are certain well-recognized exceptions to  this rule  and  they   are:  To  grant  such  a  declaration   in appropriate  cases  regarding (1) A public servant, who  has been  dismissed from service in contravention of  Art.  311. (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.     The  case  of the respondent before: us  does  not  come under either the first or the second category.  The question then is:  Is he entitled to relief under the third  category ? (2) [1956] 3 All E.R. 939.           (2) [1959] S.C.R. 1236. (3) [1964] 3 S.C.R. 55. 266     Mr.  S.T.  Desai  pointed  out  that  by  the  appellant conducting  an enquiry and passing an order of dismissal  in violation  of regulation 16(3), it cannot be stated that  it has  acted in breach of any mandatory provision of  the  Act resulting  in  the  order being declared as  void  or  ultra vires.   The  non-compliance with the  regulations,  at  the most,  will result in the order of dismissal being  wrongful attracting  the normal rule in such  matters  of making  the appellant liable for damages.  Even otherwise., this is  not a proper case for grant of the declaration asked for by  the plaintiff.   In  our opinion, the position taken up  by  Mr. Desai finds support in the decisions referred to above.     Mr. B.R.L. Iyengar, learned counsel for the  respondent, placed  considerable reliance on the decision of this  Court in  Life  Insurance  Corporation of India  v.   Sunil  Kumar Mukherjee(1).   According to him, in that case, an order  of termination   of  service  passed  by  the  Life   Insurance Corporation  of  India, terminating the services of  certain employees in breach of regulations framed by it under s.  49 of  the  Life Insurance Corporation Act, 1956 (Act  XXXI  of 1956)  (hereinafter called the Insurance Act) has been  held to be void.  Therefore counsel urges  that applying the same

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analogy,  a breach of regulations in the case before us  has the same effect as the breach of a statutory obligation and, if  so,  the  High  Court  was  justified  in  granting  the declaration asked for.  We are of opinion that the  decision relied  on  by  Mr.  Iyengar does not  lay  down  any   such proposition.  In  that  decision,  in  respect  of   certain officers governed by s. 11 (1 ) and 11 (2) of the  Insurance Act,  certain orders terminating their services were  passed by the Life Insurance Corporation of India. The orders  were challenged  by  the employees on the ground that  they  were passed contrary to cls. 1O(a) and 10(b) of the: order passed by the Central Government under s. 11 (2) of the   Insurance Act,  which is called the blue order.  The   contention   on behalf  of  the  Life Insurance Corporation  was  that   the orders were passed in accordance with the regulations framed by  the  Life  Insurance  Corporation under  s.  49  of  the Insurance  Act,  read with. cl. 11 of the blue  order.   The High Court held that the orders of dismissal were in  breach of cls. 10(a) and 10(b) of the blue order, and therefore the orders were invalid. The  result of the grant of this relief was  that  the employees continued to be in  service.   This Court  confirmed  the  decision  of  the   High  Court,  and having considered the rights conferred by s. 11 (1 ) and  11 (2)  of the Insurance. Act, held that the employee:s of  the Insurers  whose  controlled business had  been  taken  over, became  employees  of the Life  Insurance  Corporation   and that  their terms. and conditions of service continued until they were altered (1) [1964] 5 S,C.R. 528 267 by the Central Government and that if the alteration made by the  Central  Government  was  not  acceptable,  they   were entitled to’ leave the employment of the Corporation and for payment  of  compensation  as provided  by  s..  11(2).   In exercise   of   the powers conferred under s. 11(2)  of  the Insurance   Act,   the Central Government issued  an  order, known  as  the  Life Insurance  Corporation  Field  Officers (Alteration  of Remuneration and other Terms and  Conditions of Service) Order, 1957 on December 30, 1957.  In 1962,  the designation ’Field  Officer’  was changed into  ’Development Officer’.   Clauses  10(a) and 10(b)    of this  order  have been set out by this Court in the above decision.  CI. 11 of this  order  prescribed that the pay and allowances  of  the officers  concerned  Was to be determined  in  .  accordance with  the  principle.s that may be: laid down  by  the  Life Insurance Corporation by regulations made under s. 49 of the Insurance   Act.   The  Life  Insurance   Corporation,    as envisaged   under  el. 11 of the order,  framed  regulations under   s. 49  of  the Insurance Act, dealing  with  various matters.  It. also issued a circular which was made part  of the regulations and  it  was     the basis of this  circular that   the  Life  Insurance  Corporation  took  action   and terminated  the   services  of   the   employees  concerned. Tiffs  Court held that the provisions contained in s.  11(2) of  the  Insurance  Act  are  paramount  and  over-ride  any contrary  provisions  contained in the order issued  by  the Central  Government or the regulations framed by  the   Life Insurance Corporation.  Next to the Insurance Act, the rules framed by the Central Government, which  include  the  order issued  under ss. 11 (2) of the Insurance Act, will prevail, but  the   provisions of the Central Government  Order  will have to be  subject  to s. 11 (2) of the Insurance Act. Next in  order  co.me  the  regulations  of  the  Life  Insurance Corporation  under s. 49 and those regulations must  not  be inconsistent  with the Insurance  Act  or  the rules  framed

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thereunder. This Court held that the Circular issued by the Corporation, which  had the effect of a regulation passed by it under  s. 49  of  the  Insurance  Act, must be  read  along  with  the provisions of ss. 11 ( 1 ) and 11 (2 ) of the Insurance  Act and  cl. 10 of the order issued by the  Central  Government; and so read, the conclusion reached by this Court was that a termination of service of an officer, contemplated under the circular  issued  by the Life Insurance Corporation  can  be effected  only  in the manner prescribed by cl.  10  of  the order  issued by the  Central  Government.  In view  of  the fact  that  cl.  10 of the order  issued  by   the   Central Government had not been complied with, the order terminating the services of the employees was held to be invalid.     It  will  be seen that the services, as pointed  out  by this  Court,  of  the  employees  whose  cases  were   under consideration, had been 268 crystallized by the statute--the Insurance Act--in s. 11  (1 )  and 11 (2);  By virtue of the powers conferred by  s.  11 (2), the Central Government issued the order on December 30, 1957.   CI.  10  of this order  had  clearly  indicated  the procedure to be adopted for terminating the services of such employees.   Therefore, the employees had their rights  safe guarded by the  Insurance  Act read with the order issued by the Central Government and it cast a statutory obligation on the  Life  Insurance  Corporation  to  adopt  a   particular procedure  if the services of those  employees  were  to  be terminated.  By not complying with the provisions of el.  10 of  the  order of the Central Government,  which  is  really related to s. 11 of the Insurance Act, the  Life   Insurance Corporation  must  be  considered to  have  acted  in  gross violation  of  the mandatory  provisions  of  the   statute. Therefore,   it was not as if that the employees were  there seeking  to.  enforce a contract of  personal  service,  but their  grievance which was accepted by the Court,  was  that the order terminating their services was a nullity as it had not been effected in terms of the statute.  In our  opinion, therefore,   this    decision   does   not    support    the contention of the respondent.     Mr.  Iyengar  referred us also to the decision  of  this Court  in The State of Uttar Pradesh v. Babu Ram  Upadhya(1) but that decision need not detain us because that deals with a   member  of  the  public  service  who  has  been   given protection under  the Constitution.  Such cases stand apart.     Mr.  Iyengar  referred  us to a decision  of  a  learned Single  Judge  of the Gujarat High Court  reported  as  Tata Chemicals Ltd. v. Kailash(2).  The question that arose   for consideration   was  regarding the validity of an  order  of dismissal  by  an employer of an employee contrary  to’  the standing  orders.  The  learned Judge has expressed the view that a breach of the standing orders constitutes a breach of a statutory provision and  therefore  the order of dismissal is a nullity.  It is not necessary for  us  to consider  the correctness of that  decision  because  the  dispute between the  parties in that case arose under Industrial Law and  we have  already pointed out that one of the exceptions to  the Common  Law  is  under  Industrial  Law  where  Labour   and Industrial Tribunals have jurisdiction to compel an employer to employ a worker whom he does not desire to employ.     Having due regard to the principles discussed above.  we are  of  opinion that the High Court was  not  justified  in granting the declaration that the order dated March 10, 1964 dismissing the (I) [1961] 2 S.C.R. 679.    (2) A.I.R. 1964 Gujarat 265.

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269 respondent  from  service is null and void and  that  he  is entitled to be reinstated in service with full pay and other emoluments.  As pointed out by us, the regulations are  made under the power reserved to. the Corporation under s. 54  of the Act.  No doubt they lay down the terms and conditions of relationship between the Corporation and its employees.   An order made in breach of the regulations would be contrary to such terms and conditions, but would not be in breach of any statutory  obligation, as was the position which this  Court had to deal with in the Life Insurance Corporation  Case(1). In  the instant case, a breach  has  been committed  by  the appellant of regulation 16(3) when passing the said order of dismissal,   inasmuch as the  procedure   indicated  therein has  not  been  followed.  The Act does  not  guarantee  any statutory  status to the respondent, nor does it impose  any obligation on the appellant in such matters.  As to  whether the  rules  framed under s. 52 deal with any  such  matters, does  not  arise  for  consideration in  this  case  as  the respondent has not placed any reliance on the rules and   he has  rested his  case  only on regulation 16(3).  It is  not in dispute that, in  this  case,  the authority who can pass an  order  of  dismissal has passed the  same.  Under  those circumstances a violation of regulation  16(3),  as  alleged and established in this case, can only result in the order     of  dismissal  being  held to  be   wrongful   and,   in consequence,  making the appellant liable for damages.   But the   said   order cannot be held to be one  which  has  not terminated the service, albeit wrongfully, or which entitles the  respondent  to ignore it and ask for being  treated  as still in service.  We are not concerned with the question of damages,  because  no  such  claim  has  been  made  by  the respondent in these proceedings.     In  this view, the judgment and the decree of  the  High Court. in so far as they declare that the order dated  March 10, 1964 is null and void and that the respondent  continues to  be  in the service of the appellant, are set  aside  and this  appeal allowed, to that extent.  In the  circumstances of the case,  there will be no order as to costs. V.P.S.                               Appeal allowed. (1) [1964] 5 S.C.R. 528. 270