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PETITIONER: VIDYA RAM MISHRA

       Vs.

RESPONDENT: MANAGING COMMITTEE, SHRI JAI NARAIN COLLEGE.

DATE OF JUDGMENT31/01/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN HEGDE, K.S. REDDY, P. JAGANMOHAN

CITATION:  1972 AIR 1450            1972 SCR  (3) 320  1972 SCC  (1) 623  CITATOR INFO :  R          1976 SC 888  (12,32)

ACT: Contract   of  service  Whether  Courts   enforce   specific performance of contract of service-if not, its remedy.

HEADNOTE: The  appellant joined as a lecturer in a College in U.P.  On the  hub ,of certain complaints received by the  Manager  of the  College,  charges  were  framed  against  him  and  his explanation,  was called for.  He submitted an  explanation. The  explanation was found unsatisfactory and  the  Managing Committee  passed a resolution for removal of the  appellant from service.  The relevant statutes governing the  present case  are  Statutes  151,  152  and  153  framed  under  the provisions  of  the  Lucknow  University  Act,  1920.    The appellant  filed  a  writ petition  before  the  High  Court challenging  the  validity of the resolution and  a  learned single  judge finding that the Managing Committee  acted  in violation of the principles of natural justice, quashed  the resolution  and  allowed the writ petition.   On  appeal,  a Division  Bench  set aside the order of the  learned  single judge and dismissed the writ petition on the ground that  no writ  lies in the facts and circumstances of the case.   The remedy of the appellant lay in a suit for damages. On  behalf  of  the  appellant it  was  contended  that  the appel lant  had a statutory status, that his  services  were terminated  in violation of the provisions of  the  statutes passed under the Lucknow University Act, 1920 and therefore, the High Court was wrong in its conclusions that no writ  of certiorari would lie against the respondent.  It was further submitted  that  ,the appellant was not given  a  reasonable opportunity  of  defending  himself  against  the   charges. Statue 151 provides that a teacher of an associated  College shall  be appointed on a written contract and the  contract shall provide the conditions mentioned there in addition  to such other conditions as the associated College may  include in  the agreement.  Clause 5 of the agreement provides  that the  Managing Committee may dispense with the services of  a lecturer  without notice if the Committee is satisfied  that it  is necessary to remove the said lecturer for  misconduct

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or  otherwise, provided, an opportunity is given to  him  by the  Committee to give his explanation before a decision  is arrived at. Dismissing the appeal. HELD  :  (1)  When there is a  purported  termination  of  a contract  of  service,.  a declaration that  a  contract  of service ’still subsisted would not be made in the absence of special  circumstances and courts do not ordinarily  enforce specific  performance of a contract of service.  The  remedy of the victim lies in a claim for damages, not a claim for a declaration  that the contract of service  still  subsisted. [322 E-F] Executive  Committee of U.P. State  Warehousing  Corporation Ltd. v. Chandra Kiran Tyagi, [1970] 2 S.C.R. 250; and Indian Airlines Corporation v. Sukh Dev Rai, A.I.R. 1971 S.C.  1828 followed. (2)  On a plain meaning of statute 151, it is clear that  it only  provides  that  the  terms  and  conditions  mentioned therein must be incorporated in 321 the contract to be entered into between the College and  the teacher  concerned.   It  does not say that  the  terms  and conditions have any legal force, until: and unless they  are embodied  in  an agreement.  The terms  and  conditions  of service  mentioned  in Statute 151 have proprio  vigore,  no force  of law.  They become terms of service only by  virtue of  their  being incorporated in a  contract.   Without  the contract,  they  have no vitality and can  confer  no  legal right.   Therefore,  the appellant cannot find a  cause  of action  of any breach of law, but only on the breach of  the con-tract,  for  which a writ in the nature  of  ceritiorari will not lie [327 H] (3)  A  writ  will  lie when the order is  the  order  of  a statutory  body acting in breach of a  mandatory  obligation imposed by a statute.  The College or the Managing Committee in  question, is not a statutory body and so the High  Court is right is dismissing the petition.[328 D] Further, since the High Court has no jurisdiction, it is not necessary  to  go  into  the  question  as  to  whether  the appellant  was  given  sufficient opportunity  to  meet  the charges against him. [328 G] Prabhakar Ramkrishna Jodh v. A. L. Pande & anr. [1965] 2 S.C.R. 713,  and  Vidyodaya University v. Silva [1964]  A.E.R.  865 discussed and distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: C.A. No. 2 of 1972. Appeal  by Special- Leave from the judgment and order  dated April  13,  1970  of. the Allahabad High  Court  in  Special Appeal No. 1074 of 1968. M.  C. Setalvad, P. N. Tiwari J. B. Dadachanji and  Co.  for the appellant. R. K. Garg and S. C. Agarwal, for the respondents. The Judgment of the Court was delivered by Mathew,  J. The appellant filed a writ petition  before  the High  Court  of Allahabad, Lucknow  Bench,  challenging  the validity  of  a  resolution  passed  on  12-11-1967  by  the Managing  Committee  of  the Jai  Narain  College,  Lucknow, formerly  known as Kanyakubja Degree College, an  associated college of the Lucknow University, terminating his services, and  praying  for  issue of an  appropriate  writ  or  order quashing  the  resolution.  A learned single judge  of  that Court,  finding  that  in  terminating  the  services,   the

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Managing  Committee  acted  in violation  of  principles  of natural justice, quashed the resolution and allowed the writ petition.   The  Managing  Committee  appealed  against  the order.   A Division Bench of the High Court found  that  the relationship between the College and the appellant was  that of  master and servant and that even if the service  of  the appellant has been terminated in breach of the audi  alteram partem rule of natural justice, the remedy of the  appellant was  to  file  a suit for damages and  not  to  apply  under Article 226 of the Constitution for a writ 322 or  order  in the nature of certiorari and that in  fact  no principle of natural justice was violated by terminating the services  of  the appellant as the appellant  was  given  an opportunity  of submitting his explanation to  the  charges. The  Bench,  therefore, set aside the order of  the  learned single  judge and dismissed the writ petition.  It  is  from this judgment that the appeal has been preferred by  special leave. The appellant joined the service of the college as  lecturer in  1946.   He  was  promoted to the post  of  Head  of  the Department  of  Zoology in 1959.  On the  basis  of  certain complaints  against  him  received by  the  Manager  of  the College, charges were framed against him and his explanation was   called  for.   He  submitted  an   explanation.    The explanation  was  found  not  to  be  satisfactory  and  the Managing  Committee  passed a resolution on  12-11-1967  for removal  of the appellant from service.  As already  stated, this  was the resolution challenged by the appellant in  the writ petition. On  behalf of the appellant, Mr. M. C.  Setalvad,  contended that the appellant had a statutory status, that his services were  terminated in violation of the provisions of  statutes passed under the.Lucknow University Act, 1920 and, therefore the  High  Court  was  wrong  in  its  conclusions  that  no application for a writ or order in the nature of  certiorari would lie.  He further submitted that the appellant was  not given a reasonable opportunity of defending himself  against the charges. it  is  well  settled  that,  when  there  is  a   purported termination of a contract of service, a declaration that the contract of service still subsisted would not be made in the absence  of special circumstances, because of the  principle that  Courts do not ordinarily enforce specific  performance of  contracts  of service [see Executive Committee  of  U.P. State   Warehousing  Corporation  Ltd.  v.   Chandra   Kiran Tyagi(1)] and Indian Airlines Corporation v. Sukhdeo Rai(’). If the master rightfully ends the contract, ,there can be no complaint.  If the master wrongfully ends the contract, then the servant can pursue a claim for damages.  So even if  the master  wrongfully  dismisses the servant in breach  of  the contract,  the  employment is  effectively  terminated.   In Ridge v. Baldwin(3), Lord Reid said in his speech :               "The  law regarding master and servant is  not               in   doubt.    There   cannot   be    specific               performance of a contract of service, and  the               master  can  terminate the contract  with  his               servant at any time and for any reason or  for               none.  But if he does so in a manner not (1) [1970] 2 S.C.R 250.       (2) A.I.R. 1971 S.C. 1828- (3) (1965) Weekly Law Reports, Vol 1, 79. 323               warranted by the contract he, must pay damages               for breach of contract.  So the question in  a                             pure case of master and servant does n

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ot at all               depend  on  whether the master has  heard  the               servant  in  his own defence;  it  depends  on               whether the facts emerging at the trial  prove               breach  of contract.  ’But this kind  of  case               can  resemble dismissal from an  office  where               the  body  employing  the man  is  under  some               statutory or other restriction as to the  kind               of  contract which it can make with its,  ser-               vants, or the grounds on which it can  dismiss               them." A  teacher  appointed by a University  constituted  under  a statute  was held not to be holding an office or  status  in Vidyodaya University v. Silva(1).  In that case the services of  the respondent was brought to an end by a resolution  of the University Council set up under the statute establishing the  University.   The  resolution  was  admittedly   passed without hearing the teacher.  Under the statute, the Council was   empowered  to  institute  professorships   and   every appointment was to be by an agreement in writing between the University  and the professor and was to be for such  period and  on  such  terms as the Council  might  resolve.   Under section  18(e)  of  the Act, the Council had  the  power  to dismiss an officer or a teacher on grounds of incapacity  or conduct which, in the opinion of not less than two-third  of the  members  of the Council, rendered him unfit  to  be  an officer  or a teacher of the University.  Such a  resolution with  the  requisite majority was passed.  The Act  gave  no right  to  the teacher of being heard by the  Council.   The Privy  Council  held that the mere  circumstances  that  the University was established by the statute and was  regulated by  statutory enactments contained in the Act did  not  mean that the contracts of employment made with teachers,  though subject to section 18(e), were other than ordinary contracts of master and servant and, therefore, the procedure of being heard invoked by the respondent was not available  to  him and no writ could be issued against the University. The   decision   in  this  case  has  been   criticised   by academic .writers (see Jaffe, English and American Judges as Law  Makers,  p.  26;  S.A. de  Smith,  Judicial  Review  of Administrative  Action,  pp. 214-215; G.  Ganz,  Public  Law Principles  applicable to Dismissal from  Employment,  Modem Law  Review,  Vol. 30 pp. 288291).  Recently  the  House  of Lords  considered  the  question  in  Malloch  v.   Aberdeen Corporation (2) . That case concerned a teacher in  Scotland who was dismissed by the Education Committee for the  reason that  he  was  not registered in terms  of  paragraph  2  of schedule  2  to  the  Teachers’  (Education,  Training   and Registration)  (Scotland)  Regulations,  1967,  made   under section (1) [1964] 3 All F.R. 865. (2) (1971) 1 W.L.R. 1578. 324 2(1) of the Education (Scotland) Act, 1962, and the amending regulation 4(2) of the Schools (Scotland) Code, 1956.  In an action against the education authority, he claimed that  the purported dismissal was a nullity in that it was contrary to natural, justice since he had not been given a hearing.   It was  held (Lord Morris and Lord Guest dissenting)  that  the teacher  had a right to be heard before he was dismissed  as according to the majority he was holding an office.  In  the course   of  his  speech,  Lord  Wilberforce  made   certain observations               "A  comparative  list of situations  in  which               persons   have  been  held  entitled  or   not

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             entitled  to a hearing, or to  observation  of               rules  of  natural justice, according  to  the               master  and servant test, looks illogical  and               even  bizare.  A specialist surgeon is  denied               protection which is given to hospital  doctor;               a University professor, as a servant, has been               denied  the right to be heard, a dock  laborer               and  an  undergraduate have been  granted  it;               examples  can  be multiplied  [see  Barber  v.               Manchester  Regional Hospital Board  (1958)  1               W.L.R.  181,  Palmar  v.  Inverness  Hospitals               Board   of  Management,  [1963],   $.C.   311,               Vidyodaya University Council v. Silva (1965) 1               W.L.R. 77, Vine v. National Dock Labour  Board               [1957]  A.C.  488, Glynn v.  Keele  University               (1971) 1 W.L.R. 4871.  One may accept that  if               there   are   relationships   in   which   all               requirements  of  the observance of  rules  of               natural  justice  are excluded (and I  do  not               wish  to assure that this is  inevitably  so),               these  must  be  confined to  what  have  been               called "pure master and servant cases",  which               I  take  to Mean cases in which  there  is  no               element  of public employment or  service,  no               support  by statute, nothing in the nature  of               an  office  or a status which  is  capable  of               protection.   If any of these elements  exist,               then, in my opinion, whatever the  terminology               used,  and even though in some  inter  parties               aspects the relationship may be called that of               master  and  servant, there may  be  essential               procedural  requirements to be  observed,  and               failure  to  observe  them  may  result  in  a               dismissal being declared to be void." and  then  he  said as regards  the  decision  in  VidyodaYa University, Council v. Silva(1) :               "It  would not be necessary or appropriate  to               disagree  with  the  procedural  or  even  the               factual  basis on which this decision rests  :               but I must confess that I (1) [1964] 3 All E.R. 865. 325               could not follow it in this country in so  far               as  it  involves  a denial of  any  remedy  of               administrative  law to analogous  employments.               Statutory provisions similar to those on which               the  employment rested would tend to show,  to               my  mind, in England or in Scotland,  that  it               was one of a sufficiently public character, or                             one partaking sufficiently of the natu re of an               office,  to  attract appropriate  remedies  of               administrative law." Whether  the  decision in Vidyodaya  University  Council  v. Silva(1)  is correct or not, in this. case, we  think  there was  no element of public employment, nothing in the  nature of an office or status which is capable of protection. In  S.  R.  Tewari v. District Board,  Agra(2),  this  Court formulated  the  exceptions to the general  rule  that  when there  is  a  termination  of  a  contract  of  service,   a declaration  that  the contract of service  still  subsisted would not be made, by saying :               "But  this  rule is subject  to  certain  well               recognised  exceptions.   It is  open  to  the               Courts,  in  an appropriate case,  to  declare

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             that  a public servant who is  dismissed  from               service   in  contravention  of  Article   311               continues to remain in service, even though by               so  doing  the State is in  effect  forced  to               continue  to employ 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 recognised.- The Courts  are  also               invested with the power to declare invalid the               act of a statutory body, if by doing the  act,               the  body has acted in breach of  a  mandatory               obligation imposed by the statute, even if  by               making  the declaration the body is  compelled               to  do something which it does not  desire  to               do." Mr. Setalvad contended that since the college in question is affiliated  to a statutory body, namely, the  University  of Lucknow,and  is  governed  by  the  relevant  statutes   and ordinances framed under the provisions of Lucknow University Act, 1920, any violation of the statute or the ordinance  in the  matter of terminating the services of a  teacher  would attract the jurisdiction of the High Court under Article 226 of  the  Constitution as statutes and  ordinances  have  the force  of law.  In support of this, counsel relied upon  the decision  of this Court in Prabhakar Ramakrishna Jodh v.  A. L. Pande and another(").  The appellant before this Court in that  case  was  a teacher in a college  affiliated  to  the University of Saugar and managed by the Governing Body (1) [1964] 3 All E.R. 865.           (2) [1964] 3 S.C.R. 55. (3) [1965] 2 S.C.R. 713. 326 established  under the provisions of the relevant  ordinance made  under the University of Saugar Act.   Certain  charges were  framed against the appellant by the Principal  of  the College  and  he was asked to submit his  explanation.   The appellant  in  his explanation denied all  the  charges  and requested  for particulars on which one of the  charges  was based.  The particulars were not supplied and the  Governing Body  terminated his services without holding  any  enquiry. The appellant moved the High Court under Article 226 of  the Constitution for a writ quashing the order of the  Governing Body  and  for  his reinstatement.  He  contended  that  the Governing  Body  had  made the order  in  violation  of  the provisions  of Ordinance 20, otherwise called  the  ’College Code,  framed under section 32 of the University  of  Saugar Act  read with section 6 (6) of that Act.  Clause 8 (vi  (a) of the College Code provided that the Governing Body of  the college  shall  not terminate the services  of  a  confirmed teacher without holding an enquiry and without giving him an opportunity of defending himself.  The High Court held  that the conditions of service of the appellant were governed not by  the ’College Code’ but by the contract made between  the Governing  Body  and  the appellant under clause  7  of  the College  Cod&-which stated that all teachers of the  college shall  be  appointed under a written contract  in  the  form prescribed-, that the provisions of the ’College Code’  were merely conditions prescribed for affiliation of colleges and that  no legal rights were created by the ’College Code’  in favour of the teachers of the affiliated colleges as against the  Governing Body.  The High Court,  therefore,  dismissed the petition.  In appeal to this Court it was held that  the ’College  Code’ had the force of law and that it not  merely regulated  the  legal relationship  between  the  affiliated

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colleges and the University but also conferred legal  rights on the teachers of affiliated ,colleges.  The Court  further said               "It  is  true that Clause 7 of  the  Ordinance               provides  that  all  teachers  of   affiliated               colleges  shall  be  appointed  on  a  written               contract in the form prescribed in Sch.  A but               that does not mean that teachers have merely a               contractual remedy against the Governing  Body               of the College.  On the other hand, we are  of               opinion that the provisions of Clause 8 of the               Ordinance  relating to security of the  tenure               of  teachers  are  part  and  parcel  of   the               teachers’ service conditions........" When  once  this  Court  came to  the  conclusion  that  the ’College Code’ had the force of law and conferred rights  on the teachers of affiliated colleges, the right to  challenge the order terminating the services of the appellant,  passed in violation of clause 8 (vi) (a)  of the ’College Code’  in a proceeding under Article 226 327 followed  ’as  the  night the day’ and  the  fact  that  the appellant  had  entered into a contract  was  considered  as immaterial. In  the  case in hand, the position is  entirely  different. The relevant statutes governing this case are statutes  151, 152  and  153, framed under the provisions  of  the  Lucknow University Act, 1920.  Statute 151 provides that teachers of an  Associated  College including the’  principal  shall  be appointed  on written contract and that the  contract  shall inter  alia  provide  the conditions  mentioned  therein  in addition to such other conditions not inconsistent with  the Act and the statutes as an Associated College may include in its  own form of agreement.  Then the conditions as  regards salary,  age  of  retirement,  etc.,  are  enumerated.   The statute  then  goes  on to specify the grounds  on  which  a teacher’s  services can be terminated.  Statute  152  states that  the  form of agreement to be adopted by  each  college shall be approved by the Executive Council before it is  put in  force.   Statute 153 provides for a  form  of  agreement which shall serve as a model.  It may be noted that  statute 151  does  not  provide for  any  particular  procedure  for dismissal or removal of a teacher for being incorporated  in the contract.  Nor does the model form of contract lay  down any  particular procedure for that purpose.   The  appellant had  entered into an agreement when he was employed  in  the college.  Clause 5 of the agreement provided that :               "the  period  of probation shall be  one  year               unless extended by the Managing Committee  and               the  College may at any time during  the  said               period  of  probation  put  an  end  to   this               engagement,  or  if  service  shall   continue               beyond the said term, at any time  thereafter,               dispense   with  the  services  of  the   said               Lecturer  without  notice,  if  the   Managing               Committee  of  the said College  is  satisfied               that  it is necessary to remove the said  Lec-               turer   for  misconduct,  insubordination   or               habitual  neglect of duty on the part  of  the               said   Lecturer  ’or  in  case  any   of   the               conditions  herein specified have been  broken               by  the said Lecturer provided that an  oppor-               tunity  is given to him by the  said  Managing               Committee  to  give his explanation  before  a               decision is arrived at."

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On  a  plain reading statute 151, it is clear that  it  only provides  that  the terms and conditions  mentioned  therein must  be  incorporated in the contract to  be  entered  into between the college and the teacher concerned.  It does  not say  that  the terms and conditions have  any  legal  force, until and unless they are embodied in an agreement.  To put it  in  other  words, the terms and  conditions  of  service mentioned in Statute 151 have proprio 328 vigore no force of law.  They become terms and conditions of service  only by virtue of their being incorporated  in  the contract.  Without the contract, they have no  vitality  and can confer no legal rights. Whereas  in the case of Prabhakar Ramakrishna Jodh v. A.  L. Pande  and another(1), the terms and conditions  of  service embodied in clause 8 (vi) (a) of the ’College Code’ had  the force of law apart from the contract and conferred rights on the appellant there, here the terms and conditions mentioned in   Statute   151  have  no  efficacy,  unless   they   are incorporated  in  a contract.  Therefore,  appellant  cannot found a cause of action on any breach of the law but only on the  breach of the contract.  As already indicated,  Statute 151 does not lay down any procedure for removal of a teacher to  be  incorporated in the contract; So, clause  5  of  the contract can, in no event, have even a statutory flavor  and for its breach, the appellant’s remedy lay elsewhere. Besides,  in order that the third exception to  the  general rule  that no writ will lie to quash an order terminating  a contract  of service, albeit illegally, as stated in  S.  R. Tewari  v.  District  Board,  Agra(2)  might  apply,  it  is necessary  that the order must be the order of  a  statutory body acting in breach of a mandatory obligation imposed by a statute.    The  college,  or  the  Managing  Committee   in question, is not a statutory body and so the argument of Mr. Setalvad  that  the case in hand will fall under  the  third exception  cannot  be accepted.  The contention  of  counsel that  this Court has sub silentio sanctioned the issue of  a writ  under  Article  226  to  quash  an  order  terminating services of a teacher passed by a college similarly  situate in Prabhakar Ramakrishna Jodh v. A. L. Pande and another(1), and,  therefore, the fact that the college or  the  managing committee  was not a statutory body was no hindrance to  the High Court issuing the writ prayed for by the appellant  has no merit as this Court expressly stated in the judgment that no  such contention was raised in the High Court and  so  it cannot be allowed to be raised in this Court. In  this view of the matter, it is quite unnecessary  to  go into the question whether the appellant was given sufficient opportunity to meet the charges against him. We  hold that the High Court was right in its view that  the writ  petition was incompetent.  We, therefore, dismiss  the appeal  but,  in the circumstances, we make no order  as  to costs. S. N.             Appeal dismissed. (1) [1965] 2 S.C.R. 713. (2)  [1964] 3 S.C.R. 655. 329