JUDGMENT
Vikramajit Sen, J.
1. This Revision is directed against the Order of the Senior Civil Judge, Delhi passed on 22.3.1993 reversing the view taken by the Trial Court which had dismissed the Plaintiff’s application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure.
2. In the Suit the Plaintiff/Respondent had prayed for a Declaration that he be held to continue to work as a Lab-Assistant together with the alleged consequential relief for the passing of an injunction against the Petitioner/Defendant from giving effect to the termination of the services of the Plaintiff. The Plaint appears to have been filed on 29th October, 1991 whereas the memorandum terminating the services of the Plaintiff was to take effect from 1st November, 1991. From a perusal of the impugned Order of the Civil Judge, First Class, it appears that he was influenced by the ad-hoc nature of the Plaintiff’s service as also that the remedy available to the Plaintiff could be found in the Industrial Disputes Act. Prima facie the Civil Judge was of the view that the jurisdiction of the Civil Courts was barred. The First Appellate Court took note of the fact that it was possible that the Civil Court as well as the Industrial Court had jurisdiction to decide the disputes. The First Appellate Court was further mindful of the legal propositions that in the ordinary relationship of Master and Servant, the remedy for wrongful termination would lie in the realm of damages, unless supervening provisions of the Statute existed to the contrary. In my opinion, however, even if the employer is the creation of a statute, this per se does not efface the above mentioned legal proposition that the proper remedy which can be available in such a situation is of damages. The statue must itself state that the employer cannot terminate the services of its employees except in given circumstances. This is not the case which has been put forward by the Plaintiff. Reliance on Roshan Lal Tandon Versus Union of India and another, , rather than advancing the case of the Respondent/Plaintiff militates against the statement made by him. It had been observed by the Apex Court that although the origin of the service was contractual in nature, but as soon as the appointment took effect the protection extended to Government servants would be available to the Petitioners therein. The decision in S. Kumar Versus Institute of Constitutional and Parliamentary Studies, 1981 LAB. I.C. NOC 30 (Delhi), is also of no benefit to the Plaintiff, since it is not his contention that the statutory body, i.e. the Defendant, has acted in breach of any of its mandatory obligations. Again, the ratio in Sukhi Ram Versus State of Haryana, 1982 LAB. I.C. 1282 [F.B.], runs counter to the proposition put forward on behalf of the Plaintiff since it is nobody’s case that the protection of Article 311 of the Constitution can be claimed by the Plaintiff. There can also be no quarrel against the established view that it is open to a party to chose between two possible forms of legal remedy and the right of workman to seek redressal against an infraction of his common law rights is not barred..
3. It is also my understanding that the prima facie view that could have been adopted was that the redressal procedure established under the Industrial Disputes Act alone should have been set in motion. The leading authority still appears to be The Premier Automobiles Ltd. Versus Kamlakar Shantaram Wadke and others, , where the following principles were culled out:
”1. If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil Court.
2. If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
3. If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
4. If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.”
In that very judgment, the following observations have been made which are extremely germane to the question in issue:
”One more difficulty in the way of the sustainability of the order of injunction may also be indicated. Temporary injunction can be granted under sub-section but a decree for perpetual injunction is made under sub-section (2). Grant of perpetual injunction is subject to the provision contained in Chapter 8. Under Section 38(1) a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favor irrespective of the fact whether the obligation arises at common law, under a contract or under a special stature (subject to the point of jurisdiction). But sub-section (2) provides that when any such obligation arises out of contract the courts shall be guided by the rules and provisions contained in Chapter 2. Section 14(1)(c) occurring in that Chapter says that a contract which is in its nature determinable cannot be specifically enforced. The contract in question embodies in the written agreement dated the 31st December, 1966 was in its nature determinable under Section 19(2) of the Act or could be varied by following the procedure under S. 9A. Section 41(a) of the Specific Relief Act says that an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced. Section 42 providing an exception to this is not attracted in this case. The decree or order of injunction made therein, therefore, is not sustainable on this account too.”
4. The decision in Jitender Nath Biswas Versus M/s. Empire of India and Ceylone Tea Co. and another, , appears to sound the death knell so far as the Plaintiff is concerned. It has been reiterated that a contract of employment of personal services cannot be specifically enforced and that an employee whose services are terminated cannot seek the relief of reinstatement and back-wages. At best he could seek the relief damages. It was further observed that the scheme of Industrial Disputes Act clearly excludes the jurisdiction of Civil Courts by implication in respect of remedies which are available under that Act and for which a complete procedure and machinery has been provided in that very statute. The Court kept in perspective Section 10 read with Section 12(5) of the Industrial Disputes Act in holding that adequate remedy is available to a workman in respect of the relief of reinstatement and back-wages which relief could not be taken to be discretionary. .
5. In The Rajasthan State Road Transport Corporation and another etc.etc. Versus Krishna Kant etc. etc., , the Apex Court yet again pronounced that where disputes arise from the general law of contracts, a Civil Suit would be maintainable, even though such a dispute may also constitute an industrial disputes within the meaning of Section 2(k) of the Industrial Disputes Act, 1947. Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
6. In the present case if the Plaintiff fails back on his contract of service alone, there would be no view other than that taken by the First Appellate Court, i.e., that personal services could not be specifically enforced. The injunction would have been denied. Quite obviously the Plaintiff would have a right to continue in service, and therefore claim reinstatement, only if he could rely on any statutory clause protecting his tenure or his services. The same protection could also be claimed from the Industrial Disputes Act, but in that case the jurisdiction of the Civil Courts would be barred. Since the former was not available the latter would have to be taken recourse to. In the absence of both, the embargo of not enforcing personal services would get attracted to render the suit itself as not maintainable, in which circumstances the rejection of a prayer for a temporary injunction would become a foregone conclusion.
7. There is also merit in the contention that the Appellate Court ought not to have granted the injunction as this Order would have had the effect of a mandatory injunction. This is so, even though, the Plaintiff was in service at the time when the Suit had been filed by him. On the date when the impugned Order was passed, his service had already come to an end. .
8. In these circumstances, the First Appellate Court has exercised jurisdiction erroneously in reversing the view taken by the Civil Judge. The impugned Order dated 22.3.1993 is set aside and the Order dated 31.10.1991 declining relief in the application for ad interim injunction is restored.
9. The Revision Petition stands disposed of in the above terms and the parties to bear their respective costs.