M/S MARTIN BURN LTD. AND ANOTHER Vs. LAL BIHARI CHOUDHARY

JUDGEMENT

(1.) The plaintiff -respondent filed a title suit giving rise to this appeal for a declaration that the order dated 13.2.1969 terminating his services is illegal, void and without jurisdiction and that he continued to be in service of defendant no. 1. The suit on contest was decreed by the trial court. The appeal also failed. Thereafter this appeal has been filed. In view of the argument advanced by Mr. Chatterjee in support of the appeal, it is not necessary to mention in any detail the respective cases of the parties. All that need be said is that the plaintiff -respondent was at the relevant time working as T.T.E. under M/s Martin Burn Ltd. (defendant no. 1) when his services were terminated on the ground that he over -stayed the leave granted to him. The suit was contested, inter alia, on the ground that the services of the plaintiff -respondent were terminated in accordance with the provisions of the Standing Order of the Company which provided that in case any employee absented himself beyond the period of leave originally granted or subsequently extended then he shall lose his lien on his appointment and will be treated as an absconder and discharged. The suit was decreed by the trial court and it was held that the order of termination was void. The appellate court also took the same view. It, therefore, dismissed the appeal.

(2.) Mr. K.D. Chatterjee, learned counsel, urged that the suit for a declaration that the termination of the services of the respondent was illegal and void, could not be decreed as the same was not maintainable. According to him, a contract of personal service cannot be enforced by an order for specific performance nor it is open for a servant to refuse to accept the repudiation of contract of service by his master and say that the contract had never been terminated. According to learned counsel, the remedy of the plaintiff was to claim for damages for wrongful termination of his services or for breach of a contract. Mr. Chatterjee urged that the aforesaid general rule is subject to only three exceptions, which are as follows: -