PETITIONER: ASHOK KUMAR SRIVASTAV Vs. RESPONDENT: NATIONAL INSURANCE COMPANY, LIMITED & ORS. DATE OF JUDGMENT: 27/04/1998 BENCH: A.S. ANAND, K.T. THOMAS ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
THOMAS, J.
Special leave granted.
Appellant claims to be still in the service of National
Insurance Company Limited (respondent) as a probationary
Inspector on a contention that the order passed by the
respondent on 13.31982 terminating his probation is bad in
law. He succeeded in the trial court where he filed the suit
for a declaratory decree and also in the first appellate
court, but he was non-suited by the High Court in the second
appeal filed by the respondent. Hence he has come up in this
Court with this appeal.
Appellant was appointed as Inspector on probation at
Khalidabad under the Gorakhpur branch of the respondent
Company with effect from 19.91980, initially for a period of
twelve months subject to certain conditions. On 13.3.1982
respondent-company served upon him thirty days notice of
termination of his service on the premise that appellants
falled to achieve the targeted premium amount.
Appellant filed the suit in the Munsif’s Court
Gorakhpur for a decree declaring that the said notice of
termination is illegal and void and that he continues to be
in service of the Company with all the benefits flowing from
the post. Respondent-company contested the suit by filling a
written statement in which it was contended, inter alia,
that the suit is not maintainable under Section 34 of the
Specific Relief Act (for short `the Act’) and that the
notice of termination of the appellant is legal and valid.
However, respondent-company did not participate during
evidence stage and hence the trial court proceeded with the
suit ex-parte and a decree was passed in terms of the plaint
on 25.1.1991. Appellant took out execution proceedings in
which he claimed a sum of Rs. 1,02,861/- as arrears of pay
due to him from the date of notice of termination.
Respondent resisted the execution by putting-forth various
contentions including that the decree in unenforceable and
void as the same was passed without jurisdiction. The
execution court has replied all such objections by its order
dated 7.9.1991.
Respondent challenged the said order by means of a writ
petition filed under Article 226 and 227 of the
Constitution. High Court of Allahabad dismissed the writ
petition holding that the decree was passed by a court
having jurisdiction and, that the suit was maintainable
under Section 34 of the Act.
It was thereafter that the respondent-company preferred
a first appeal before the Court of Civil Judge (Senior
Division) Gorakhpur challenging the decree of the trial
court. When that appeal was dismissed respondent-company
preferred a second appeal before the High Court of
Allahabad. Four questions were formulated by the respondent-
Company in the second appeal and pressed them into service
as substantial questions of law. They are : (1) Whether the
termination order is violative of the contractual term that
one month’s notice or pay in lieu thereof is sine qua non;
(2) whether appellant is entitled to reinstatement without
entering upon a finding that there was statutory violation ;
(3) whether the suit is barred under the Industrial Disputes
Act; (4) whether the suit is barred under section 34 of the
Act.
High Court did not permit the respondent-Company to
pursue with the last two questions on the premise that those
questions were finally decided in the writ petition and such
decision will operate as a bar of res-judicate. However,
learned Single Judge of the High Court proceeded to consider
the other two questions and held that non-payment of one
month’s pay in lieu of the notice would not vitiate the
termination order and that at any rate, appellant is not
entitled to continue as a Probationary Inspector.
Resultantly, the High Court reversed the decree of the trial
court and dismissed the suit.
Learned counsel for the respondent-company once again
convassed for acceptance of the argument that the suit is
not maintainable in view of Section 34 of the Act. But in
view of the clear finding rendered by the High Court in the
judgment dismissing the writ petition that such a suit for
declaration is maintainable before a civil court, the first
appellate court did not go into that question.
In the second appeal, respondent’s counsel repeated the
contention but learned Single Judge of the High Court, who
disposed of the second appeal, did not allow the respondent
to re-agitate the said question on the premise that the
decision rendered in the writ petition on that point would
operate as res judicata. Undeterred by such repeated
repudiation of the contention, learned counsel for the
respondent made an endeavour to convince us that the suit is
not maintainable on the same ground.
It is well neigh settled that a decision on an issue
raised in writ petition under Article 226 or Article 32 of
the Constitution would also operate as res judicata between
the same parties in subsequent judicial proceedings. The
only exception is that the rule of res judicata would not
operate to the detriment or impairment of a fundamental
right. A Constitution Bench of this Court has considered the
applicability of rule of res judicata in writ proceedings
under Article 32 of the Constitution in Daryao & ors. vs.
State of U.P. & ors. [1962 (1) SCR 574] and it was held that
the basis on which the rule rests is founded on
consideration of public policy and it is in the interest of
public at large that a finality should attach to the
binding decision pronounced by a court of competent
jurisdiction and it is also in the public interest that
individuals should not be vexed twice over in the same kind
of litigation.
This was relterated by another Constitution Bench of
this Court in The Amalgamated Coalfields Ltd. vs. The
Janapada Sabha, Chhindwara [1963 Supple (1) SCR 172]. The
following is the ratio : “Therefore, there can be no doubt
that the general principle of res judicata applies to writ
petitions filed under Art. 32 or Art. 226. It is necessary
to emphasise that the application of the doctrine of res
judicata to the petitions filed under Art.32 does not in any
way impair or affect the content of the fundamental rights
guaranteed to the citizens of India.
Though the above has now become an a accepted legal
position [vide G.K. Sharam & ors. vs. S.D. Sharma & ors.
(1986 Supple. SCC 239), the contention raised here is that
since the writ petition was in challenge of an order passed
in execution of a decree, the decisions rendered in such
writ petition would only remain in the reaim of execution
and they would not preclude the parties to the suit from
raising such issues over again when the very decree itself
is challenged in appeal. The Explanation VII, added to
Section 11 of the Code of Civil Procedure as per CPC
Amendment Act 104 of 1976 read thus :
“The provisions of this section
shall apply to a proceeding for the
execution of a decree and
references in this section to any
suit, issue of former suit shall b
e construed as references
respectively, to a proceeding for
the execution of the decree,
question arising in such proceeding
and a former proceeding for the
execution of that decree.”
Though the said explanation may not stricto sensu apply
to the trial stage, the principle couched in it must gain
application thereto. It is immaterial that the writ petition
was filed only subsequently because the findings made
therein became final as no appeal was filed against the
judgement. The basic idea in the rule of res judicata has
sprouted from the maxim “nemo debet bis vexari pro una at
eadem causa” (no man should be vexed twice over for the same
cause). In Y.B. Patil & ors vs. Y.L. Patil [1976 (4) SCC
66] a three-Judge Bench of this Court considered the effect
of a decision rendered in a writ petition at subsequent
stages of the same its. It held : ” The principles of res
judicata can be invoked not only in separate subsequent
proceedings, they also get attracted in subsequent stage of
the same proceedings. Once an order made in the course of a
proceeding becomes final, it would be binding at the
subsequent stage of that proceeding.”
Thus, the legal position is clear and the respondent
cannot now re-agitate the question regarding maintainability
of the suit under Section 34 of the Act. However, learned
counsel adopted an alternative contention before us that the
suit is in effect one for specific enforcement of a contract
and such a suit is not conceived under Section 14 of the Act
and hence it is not maintainable. According to the learned
counsel, the reliefs claimed in the suit, if granted, would
result in specific enforcement of a contract of employment.
Section 14(1)(a) of the Act makes it clear that a contract
of employment is not specifically enforceable since non
performance of can be compensated by money, contended the
counsel.
The said contention is based on a fallacious premise
that the suit was for enforcement of a contract of
employment. Respondent was appointed on certain terms and
pursuant to such appointment he worked within the scope of
such employment. Termination of his employment purportedly
in terms of the same contract is challenged by him by
praying for a declaration that such termination is invalid
and therefore, he continues in the same employment.
Maintainability of a suit cannot be adjudged from the effect
which the decree may cause. It can be determined on the
basis of the ostensible pleadings made and the stated
reliefs claimed in the plaint.
Though Specific Relief Act widens the spheres of the
civil court its preamble shows that the Act is not
exhaustive of all kinds of specific reliefs. “An Act to
define and amend the law relating to certain kinds of
specific relief. It is well to remember that the Act is not
restricted to specific performance of contracts as the
statute governs powers of the court in granting specific
reliefs in a variety of fields. Even so, the Act does not
cover all specific reliefs in a variety of fields. Even so,
the Act does not cover all specific reliefs concievable. Its
preceding enactment (Specific Relief Act, 1877) was held by
the courts in India as not exhaustive. Vide Ramdas Khatavu
vs. Atlas Mills (AIR 1931 Born. 151). In Hungerford
Investment Trust Ltd. vs. Haridas Mundhra & ors . [1972 (3)
SCC 684] this Court observed that Specific Relief Act, 1963,
is also not an exhaustive enactment and it does not
consolidate the whole law on the subject. “As the preamble
would indicate, it is an Act `to define and amend the law
relating to certain kinds of specific relief. It does not
purport to lay down the law relating to specific relief in
all its remifications.”
Chapter II contains a fasciculus of rules relating to
specific performance of contracts, Section 14 falls within
that chapter and it points to contracts which are no
specifically enforceable. Powers of the Court to grant
declaratory reliefs are adumbrated in Section 34 of the Act
which falls under Chapter VI of the Act. It is well to
remember that even the wide language contained in Section 34
did not exhaust the powers of the court to grant declaratory
reliefs. In Veruareddi Ramaraghava Reddy & ors. vs. Konduru
Seshu Reddy & ors. [1966 Supple. SCR 270] and in M/s Supreme
General Films Exchange Ltd. vs. His Highness Maharaja Sir
Srijnath Singhji Deo of Maihar & ors. [1975 (2) SCC 530]
this Court while interpreting the corresponding provision in
the preceding enactment of 1877 (Section 42) has observed
that “Section 42 merely gives statutory recognition to a
well-recognised type of declaratory relief and subjects it
to a limitation, but it cannot be deemed to exhaust every
kind of declaratory relief or to circumscribe the
jurisdiction of courts to give declarations of right in
appropriate cases falling outside Section 42.”
The position remains the same under the present Act
also. Hence the mere fact that a suit which is not
maintainable under Section 14 of the Act is not to persist
with its disability of non admission to civil courts even
outside t he contours of Chapter II of the Act. Section 34
is enough to open the corridors of civil courts to admit
suits filed for a variety of declaratory reliefs.
How the more important question is, whether appellant
is entitled to declaration that he continues to be in the
employment of respondent-company. High Court held that he is
not because the contract of employment does not entitle him
to continue.
Terms and conditions of employment of the appellant
have been incorporated in the letter of appointment dated
2.12.1980. It contains the following :
(1) Initially h e would be on
probation for a period of 12 months
and during that period he has to
achieve a premium of at least Rs.
75,000/- to become eligible for
promotion as Probationary
Inspector, Grade I.
(2) It appellant falls short of the
said target, respondent – company
reserved its right to extent the
period of probation by another 12
months provided the following
conditions are satisfied.
(a) He should have produced a
premium amount of Rs. 50,000/-
during the first 12 months period.
(b) A request should be made by the
appellant in writing for the
purpose of getting extension of the
period of probation.
(c) The company has discretion to
decide whether such request should
be granted or not.
(3) Unless a letter appointing him
as Probationary Inspector (Grade –
I) is issued by the company, before
the expiry of the initial
probationary period or the extended
probationary period (as the case
may be) his service shall stand
automatically terminated.
(4) His service is also liable to
be terminated without assigning any
reason during probationary period
and/or extended period.
Appellant has no case that
respondent-company has issued any
letter appointing him as
“Probationary Inspector (Grade -I)”
before the expiry of the initial
period of 12 months nor has he a
case that initial period of
probation was further extended at
any time.
The above being the admitted
position, appellant cannot get a
declaration that he continues to be
in service. Hence the conclusion of
the High Court that the suit is
liable to be dismissed does not
warrant any interference.
In the result, we dismiss this appeal. No costs.