- (1.)This appeal raises some questions relating to the construction of certain provisions of the Industrial Employment (Standing Orders) Act 1946 The facts giving rise to this appeal are few and for the most part undisputed and may be briefly stated as follows. The first appellants are a limited company carrying on business of manufacturing chemicals at Mithapur in Jamnagar District. The second appellant is the Works Manager of the factory of the first appellants at Mithapur while the third respondent is the Divisional Engineer in charge of the power house of the first appellants. The Respondent was employed as a clerk in the establishment of the first appellants since 23rd May 1950 and at the material time he was drawing a basic salary of Rs. 80/per month plus Dearness Allowance of Rs. 69/per month his total emoluments thus being Rs. 149/per month. The industrial establishment of the first appellants being an industrial establishment to which the Industrial Employment ( Standing Orders ) Act 1946 was applicable Standing Orders amongst others for clerks other than workmen employed by the first appellants were certified by the Commissioner of Labour Bombay and Certifying Officer Bombay under section 5 of the Act. the Standing Orders came into force on 27th February 1957 and applied to all clerks employed in the industrial establishment of the first appellants to do clerical labour but excluding all clerks in the employ of contractors. It was not disputed that the respondent was a person to whom the Standing Orders applied. On or about 13th November 1958 the respondent was dismissed from service on the ground that the respondent had committed acts of major misconduct specified in Clauses 9 17 and 25 of Standing Order No. 31. According to the respondent the first appellants did not comply with the procedure set out in Clause 4 of Standing Order No. 32 before passing the order of dismissal as required by Clause 3 of that Standing Order. The respondent therefore filed a suit against the appellants contending that the respondent was dismissed by the appellants without complying with Standing Order No. 32 and that the dismissal of the respondent was therefore ultra vires and that the respondent consequently continued to be in the employment of the first appellants and was entitled to receive from the first appellants emoluments from 14 November 1958 upto the date of reinstatement. The prayers which he claimed in the suit were:- (1) a declaration that the order of dismissal passed by the appellants against the respondent was illegal and ultra vires and the respondent accordingly continued in the employment of the first appellants; and (2) an order for payment of all emoluments from 14 November 1958 upto the date of reinstatement. The suit was resisted by the appellants on various grounds. In this appeal I am concerned only with the grounds which were urged by the appellants as and by way of preliminary objection to the suit and it is therefore not necessary to recapitulate in detail the grounds affecting the merits of the defence. It is sufficient to state that the appellants contended that in dismissing the respondent they had complied with Standing Order No. 32 and that the dismissal of the respondent was therefore not invalid The three main grounds which were urged by way of preliminary objection to the suit were firstly that the suit was barred by the provisions of sec. 9 of the Code of Civil Procedure secondly that the civil Court had no jurisdiction to hear the suit in view of the provisions of the Industrial Disputes Act 1947 and thirdly that the suit was barred under the provisions of the Specific Relief Act. The first two grounds do not survive for consideration in this appeal since they were negatived by the lower appellate Court and they have not been pressed before me by Mr. I. M. Nanavati learned advocate appearing on behalf of the appellants. The only ground out of the aforesaid three grounds which was urged before me was the last ground namely that the suit was barred under the provisions of the Specific Relief Act. The argument under this head was that the suit was in effect and substance a suit to enforce a contract of personal service and was therefore not maintainable by virtue of the provisions of sec. 21(b) of the Specific Relief Act. The trial Court upheld the validity of this argument and dismissed the suit with no order as to costs The respondent thereupon preferred an appeal in the Court of the District Judge Jamnagar. The learned Assistant Judge who heard the appeal took the view that though sec. 21(b) debarred the respondent from asking for reinstatement in service the respondent would in any event be entitled to maintain a claim for damages for wrongful dismissal and that the Court having power to award the relief of damages under the provisions of the Specific Relief Act the suit was not barred by the provisions of the Specific Relief Act The learned Assistant Judge accordingly set aside the dismissal of the suit and remanded the suit to the trial Court for decision on merits. The appellants thereupon the present appeal in this Court.
(2.)There were in the main two contentions urged by Mr. I. M. Nanavati on behalf of the appellants in support of the appeal. The first contention was the same which was advanced before the trial Court and the lower appellate Court namely that the suit was not maintainable by virtue of the provisions of sec 21(b) of the Specific Relief Act since it was in effect and substance a suit to enforce a contract of personal service. I shall immediately proceed to deal with this contention but before I do so I may briefly indicate the second contention urged by Mr. I. M. Nanavati. The second contention of Mr. I. M. Nanavati was based on the provisions of sec. 13A of the Industrial Employment (Standing Orders) Act 1946 He contended that by virtue of the provisions of this section the Labour Court was the only authority which had jurisdiction to adjudicate upon the claim of the respondent in the suit and that the jurisdiction of the civil Court to do so was impliedly barred and that the suit was therefore liable to be dismissed. This contention raised a very interesting question of law relating to the construction of sec. 13A of the Industrial Employment (Standing Orders) Act 1946 and able arguments were advanced upon it. I shall examine these arguments a little later after I have disposed of the first contention of Mr. I. M. Nanavati.
(3.)The first contention was formulated by Mr. I. M. Nanavati in the following manner. He urged that when the respondent claimed in the plaint that the order of dismissal passed against him was illegal and ultra vires and that he continued in the employment of the first appellants what he in effect and substance claimed was specific performance of the contract of employment between him and the first appellants which was a contract of personal service dependent on the personal qualifications or volition of the parties He contended that sec. 21(b) of the Specific Relief Act ruled that a contract which was so dependent on the personal qualifications or volition of the parties or otherwise from its nature was such that the Court could not enforce specific performance of it in material terms could not be specifically enforced and that the contract of employment between the respondent and the first appellants being such a contract the respondent was not entitled to specific enforcement of such contract against the appellants. The relief which was in effect and substance claimed by the respondent was therefore in the submission of Mr. I. M. Nanavati a relief which was barred by the provisions of section 21(b) of the Specific Relief Act and the suit was therefore liable to fail. This contention was urged by Mr. I. M. Nanavati by way of preliminary objection to the maintainability of the suit and was argued on a demurrer as if the allegations made in the plaint were true. Now it was indisputable and could not with any colour of reason be disputed on behalf of the respondent that the contract of employment between the respondent and the first appellants was a contract of personal service which was incapable of being specifically enforced by virtue of the provisions of sec. 21(b) of the Specific Relief Act but the answer given by Mr. K. M. Chhaya learned advocate appearing on behalf of the respondent to this contention of Mr. I. M. Nanavati was that the suit was not a suit to enforce a contract of personal service so as to be barred by the provisions of section 21(b) of the Specific Relief Act. Mr. K. M. Chhaya urged that the dismissal of the respondent could be effected only in terms of the Standing Orders and that since in making the dismissal Standing Order No. 32 was violated the dismissal was a nullity and the suit was therefore merely a suit for a declaration of statutory invalidity of the dismissal and not for enforcing a contract of personal service. The question which therefore arises for consideration on these rival contentions is whether a suit for a declaration that the dismissal is null and void and that the servant continues in the employment of the master on the ground that the dismissal is in violation of the provisions of the Standing Order which prescribes that no dismissal shall be made except after complying with a certain procedure can be said to be a suit to enforce a contract of personal service.