{"id":234551,"date":"1969-09-08T00:00:00","date_gmt":"1969-09-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/executive-committee-of-u-p-state-vs-chandra-kiran-tyagi-on-8-september-1969"},"modified":"2016-02-27T16:06:59","modified_gmt":"2016-02-27T10:36:59","slug":"executive-committee-of-u-p-state-vs-chandra-kiran-tyagi-on-8-september-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/executive-committee-of-u-p-state-vs-chandra-kiran-tyagi-on-8-september-1969","title":{"rendered":"Executive Committee Of U.P. State … vs Chandra Kiran Tyagi on 8 September, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Executive Committee Of U.P. State … vs Chandra Kiran Tyagi on 8 September, 1969<\/div>\n
Equivalent citations: 1970 AIR 1244, \t\t 1970 SCR (2) 250<\/div>\n
Author: C Vaidyialingam<\/div>\n
Bench: Vaidyialingam, C.A.<\/div>\n
           PETITIONER:\nEXECUTIVE COMMITTEE OF U.P. STATE WAREHOUSINGCORPORATION, LI\n\n\tVs.\n\nRESPONDENT:\nCHANDRA KIRAN TYAGI\n\nDATE OF JUDGMENT:\n08\/09\/1969\n\nBENCH:\nVAIDYIALINGAM, C.A.\nBENCH:\nVAIDYIALINGAM, C.A.\nSHELAT, J.M.\n\nCITATION:\n 1970 AIR 1244\t\t  1970 SCR  (2) 250\n 1970 SCC  (2) 838\n CITATOR INFO :\n RF\t    1971 SC1828\t (10)\n R\t    1972 SC1450\t (4)\n RF\t    1973 SC 855\t (20,21,42)\n O\t    1975 SC1331\t (26,31,187,189)\n R\t    1976 SC 888\t (14,31)\n F\t    1977 SC 747\t (17)\n RF\t    1980 SC 840\t (7,8,10,11)\n RF\t    1987 SC1422\t (10)\n RF\t    1989 SC 341\t (11)\n RF\t    1990 SC 415\t (16)\n RF\t    1991 SC1525\t (10)\n\n\nACT:\nAgricultural\tProduce\t  (Development\t and\tWarehousing)\nCorporation  Act  (28 of 1956), s. 54 and  Regulations\tmade\nthereunder--Regulation 16(3)--Dismissal of employee  without\nfollowing  procedure--If employee entitled to  reinstatement\nor only damages--Specific Relief Act  (1  of 1877). s. 21.\n\n\n\nHEADNOTE:\nUnder  s.  28 of the Agricultural Produce  (Development\t and\nWarehousing)  Corporation  Act,\t 1956,\tthe  appellant\t was\nestablished  as the Warehousing Corporation of the State  of\nU.P.  Section  54 of the Act gives power to  'a\t Warehousing\nCorporation  to make regulations not inconsistent  with\t the\nAct and the Rules made thereunder and the regulations are to\nprovide for all matters for which provision is necessary  or\nexpedient for the purpose of giving effect to the provisions\nof  the\t Act. Regulation 11 deals with\ttermination  of\t the\nservice\t of  an employee other than by\tway  of\t punishment,\nwhile  regulation 16 deals with penalties. Under  regulation\n16(3) an employee, on whom the punishment of dismissal is to\nbe imposed, has to be given an opportunity, of tendering his\nexplanation  in writing, for cross-examining  the  witnesses\nagainst him, and for producing evidence in his defence.\n    The\t respondent was a warehouseman in the employment  of\nthe appellant.\tCertain charges were framed against him\t and\nhe  was\t suspended pending enquiry into. the charges.  After\nreceiving his explanation,  the Enquiry Officer did not take\nany  evidence  in  respect of any charge.  Instead,  he\t met\nvarious\t persons  and collected information,  and  gave\t his\nfindings  on  the  various  charges  on\t the  basis  of\t the\nenquiries made by him and the records.\tEven the information\nso  collected was not put to the respondertl.  On the  basis\nof those findings of the Enquiry Officer the respondent\t was\ndismissed  from service.  He. filed a suit  challenging\t the\norder of dismissal on the ground that there was a  violation\nof  regulation 16(3) and prayed for a declaration  that\t the\norder'was  null\t and  void and that he was  entitled  to  be\nreinstated  with  full\tpay and\t other\temoluments.  On\t the\nquestions  whether: (1) the dismissal was not in  accordance\nwith regulation 16(3); and (2) the relationship being one of\npersonal   service  the\t respondent  was  entitled  to\t the\ndeclaration for reinstatement.\n    HELD:   (1) The termination of the\trespondents  service\nwas  not under regulation 11, but under regulation  16;\t and\nthe  procedure\tprescribed  by\tregulation  16(3)  was\t not\nfollowed by the Enquiry Officer in the present case.\n    (2)\t A  declaration to enforce a  contract\tof  personal\nservice will not normally be granted.  The! exceptions\tare:\n(i)   appropriate  cases of public servants  who  have\tbeen\ndismissed  from service in contravention of Art.  311;\t(ii)\ndismissed workers under industrial and labour law; and (iii)\nwhen  a\t statutory body has acted in breach of\ta  mandatory\nobligation imposed by a statue. [267 G]\n251\n    In the present case, a breach has been committed by\t the\nappellant  of  regulation 16(3) as the\tprocedure  indicated\ntherein was not followed. The order of dismissal however was\npassed\tby the authority who could pass the order.' Such  an\norder  made  in\t breach of the\tregulations  would  only  be\ncontrary to the terms and conditions of relationship between\nthe appellant (employer) and the respondent (employee), but,\nit  would  not\tbe in breach of\t any  statutory\t obligation,\nbecause, the Act does not guarantee any statutory status  to\nthe  respondent,  nor does it impose any obligation  on\t the\nappellant  in  such matters.  Therefore,  the  violation  of\nregulation  16(3) as alleged and established in\t this  case,\ncould only result in the order of dismissal being held to be\nwrongful, and in consequence making the appellant liable for\ndamages,  but  could  not have the effect  of  treating\t the\nrespondent   as\t still\tin  service  or\t entitling  him\t  to\nreinstatement.\t[271 B--E]\n    Dr.\t S,  B. Dutt v. University of Delhi,<\/a>  [1959]  S.C.R.\n1235 and S.R. Tewari v. District Board, Agra,<\/a> [1964]3 S.C.R.\n55, followed.\n    Life  Insurance  Corporation  of India  v.\tSunil  Kumar\nMukherjee,<\/a> [1964] 5 S.C.R. 528, distinguished.\n    Vine  v. National Dock Labour  Board,  [1956] Barber  v.\nManchester  Hospital   Board,\t[1958]\t1  All\tE.R.322\t and\nFrancis\t  v.  Municipal\t Councillors  etc.  [1962]   3\t All\nE.R.633,  referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 559 of 1967.
\n    Appeal  by\tspecial leave from the judgment\t and  decree
\ndated October 25, 1966 of the Allahabad High Court in Second
\nAppeal No. 4275 of 1965.\n<\/p>\n
S.T. Desai, Naunit Lal and D.N. Misra, for the appellant.
\n    B.R.L.  lyengar,  S.K. Mehta, and K.L.  Mehta,  for\t the
\nrespondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    Vaidialingam,  J.  This appeal,  by special\t leave,\t  by
\nthe defendant-appellant, is directed against the decree\t and
\njudgment, dated October 25, 1966 of the Allahabad High Court
\nin  Second Appeal No. 4275 of 1965 holding that\t the  order,
\ndated\tMarch  10,  1964  passed  against   the\t  respondent
\ndismissing him from service,\tnull and void and that he is
\nentitled to. be reinstated with full pay and emoluments.
\n    The\t respondent-plaintiff  originally  entered   service
\nwith   the  appellant as a Technical Assistant\tin  November
\n1958  and later he was promoted to the post of\tWarehouseman
\non  October 15, 1959.  He was confirmed in 1962 in the\tsaid
\npost.\tCertain charges were framed against  the  respondent
\nand   pending  the enquiry into those charges he was  placed
\nunder suspension on
\n252<\/span>
\nSeptember  9,  1963.  After an enquiry\tthe  respondent\t was
\nfound  guilty and in consequence dismissed from\t service  of
\nthe appellant by order dated March 10, 1964.  The respondent
\ninstituted Civil Suit No. 201 of 1964 challenging the  order
\nof   dismissal.\t  According to him the\tvarious\t allegations
\nmade against him were vague and had not been established and
\nthere has been no proper enquiry conducted against him.\t The
\nenquiry,  according to him,  was contrary to the  principles
\nof  natural  justice without giving him\t an  opportunity  to
\nplace  his defence and it was also held in disregard of\t cl.
\n16  of\tthe Regulations framed by the\tappellant.  He\talso
\nclaimed that he was entitled to the  protection\t under\tArt.
\n311 of the Constitution.  On these allegations the plaintiff
\nprayed\tfor  a declaration that the order, dated  March\t 10,
\n1964  .dismissing  him from service, was null and  void\t and
\nthat  he  was entitled to be reinstated with  full  pay\t and
\nother emoluments.\n<\/p>\n
    The\t appellant-defendant,  in  its\twritten\t  statement,
\npleaded\t that the enquiry into the charges leveled  .against
\nthe  plaintiff was made properly and in compliance with\t the
\nprovisions  of the Regulations and the\tplaintiff-respondent
\nhad  been  given  full opportunity to  participate.  in\t the
\nenquiry which he also did.  The\t appellant pleaded that the’
\nrespondent  was no.t entitled to the protection of Art.\t 311
\nof  the\t Constitution.\tIt also pleaded that  the  order  of
\ndismissal  passed  against  the\t respondent  was   perfectly
\njustified  and\tthat  the  suit was  false  and\t had  to  be
\ndismissed with costs.\n<\/p>\n
    The\t trial\tCourt  held  that  the\tplaintiff  was\tno.t
\nentitled   to\tthe  protection\t under\tArt.  311   of\t the
\nConstitution.\tBut it held that in conducting the  enquiry,
\nthe  Enquiry Officer did not comply with the  provisions  of
\nsub-cl.\t (3)  of  el. 16 of the Regulations  framed  by\t the
\nappellant  and that there had been a violation of the  rules
\nof  natural  justice.  In consequence the trial\t Court\theld
\nthat the order dismissing the plaintiff was illegal; but  in
\nconsidering  the  question as to whether the  plaintiff\t was
\nalso entitled to the further relief claimed by him, viz., of
\nreinstatement with full pay and emoluments, the trial  Court
\nwas of opinion that in view of s. 21 of the Specific  Relief
\nAct,  1877  the plaintiff was not entitled to  that  relief.
\nUltimately  the Trial Court  granted  a declaration, by\t its
\njudgment dated March 24, 1965  that  the order of  dismissal
\ndated  March 10, 1964 was void and ineffective\tand  decreed
\nthe suit with costs.\n<\/p>\n
    The appellant challenged this decision in appeal  before
\nthe  Civil Judge, Manipuri, in Civil Appeal No. 69 of  1965.
\nThe  respondent\t filed\ta  Memorandum  of  Cross  Objections
\nchallenging  the  decree of the trial  Court  declining\t his
\nrelief\tfor reinstatement with full pay.  The learned  Civil
\nJudge,\t by   his  decree  and judgment dated  September  4,
\n1951 dismissed\tthe  appeal  and
\n253<\/span>
\nallowed\t the  Memorandum of Cross-Objections  filed  by\t the
\nrespondent.   The result was that the plaintiff’s  suit\t was
\ndecreed, granting both the reliefs as prayed for by him.
\n    The\t appellant again challenged the decrees of both\t the
\nlower  Courts  before the Allahabad High Court\t in   Second
\nAppeal\tNo.  4275  of  1965.  The High\tCourt  has,  by\t its
\njudgment  dated October 25, 1966 dismissed the\tappeal.\t  It
\nagreed\t with  the findings recorded by the two\t Subordinate
\nCourts\tthat  the  enquiry proceedings\tare  vitiated  by  a
\nviolation  of the principles of natural justice\t  and\talso
\nnot   being   in  accordance with Regulation no. 16 (  3  ).
\nRegarding  the\tdeclaration for\t  reinstatement,   the\tHigh
\nCourt was of the view that the rules and  the;\t Regulations
\nframed under  the  Agricultural\t Produce  (Development\t and
\nWarehousing)  Corporations  Act,  1956\t(Act  28  of   1956)
\n(hereinafter called the Act) had statutory force and that as
\nthere  had  been a violation of Regulation  no. 16 ( 3\t)  ,
\nthe  plaintiff\twas entitled to the declaration.
\n    Mr.\t S.T.  Desai,  learned\tcounsel\t for  the  appellant
\nCorporation  raised  two contentions: (1 ) A full  and\tfair
\nopportunity was given to the respondent in the enquiry\theld
\nagainst\t him and there has been no violation  of  Regulation
\nno. 16(3).  The finding on this point by the High Court\t and
\nthe  Subordinate   Courts  is erroneous.  (2)  Even  on\t the
\nbasis  that the enquiry is vitiated by\tnon-complianCe\twith
\nthe  provisions\t of   Regulation  no. 16(3)  framed  by\t the
\nCorporation,  the  relief declaring that  the  plaintiff  is
\nentitled  to be reinstated in service with full pay   should
\nnot  have  been\t granted  as by doing  so  the\tCourts\thave
\ndeparted from the normal rule that the specific\t performance
\nof  a  contract\t of personal service will not  be  enforced.
\nIn   any  event,  counsel urged that there are\tno.  special
\ncircumstances  justifying the grant of that relief  in\tthis
\ncase.\n<\/p>\n
    Mr. B.R.L.Iyengar, learned counsel for the\t respondent,
\npointed out that the findings that the enquiry held was\t not
\nin  accordance with Regulation no. 16(3) and that there\t has
\nbeen  a violation of the principles of natural justice,\t are
\nconcurrent  findings recorded by all the Courts\t and  those:
\nfindings  are  fully supported by the  evidence\t on  record.
\nRegarding  the\tsecond contention, Mr. Iyengar\tpointed\t out
\nthat when an order of dismissal has been passed in violation
\nof a statutory provision–as in this case the Regulations–a
\ndeclaration   granted  in  favour  of  the   respondent\t  is
\njustified.\n<\/p>\n
    The first contention raised by Mr. Desai relates to the:
\nquestion  as  to  whether  the\tenquiry\t held  against\t the
\nplaintiff was in accordance with sub-el. ( 3 ) of Regulation
\n16  of the Regulations framed by the appellant\tand  whether
\nthe enquiry is vitiated by
\n254<\/span>
\na  violation of the principles of natural justice.  All\t the
\nCourts have held that the respondent is not entitled to\t the
\nprotection under Art. 311 of the Constitution. Therefore the
\nonly  question for consideration is whether the enquiry\t has
\nbeen  properly conducted in accordance with  Regulation\t no.
\n16(3).\tAs pointed out by Mr. Iyengar, the findings on facts
\non  this  point have been recorded concurrently by  all\t the
\nCourts as against the appellant.\n<\/p>\n
    It\tis  now necessary to briefly refer to  some  of\t the
\nprovisions  of\tthe Act under which the appellant  has\tbeen
\nconstituted  and  is functioning, as  also  the\t Regulations
\nframed\tby  the Board.\tThe Act is one to  provide  for\t the
\nincorporation  and   regulation\t  of  corporations  for\t the
\npurpose\t of  development  and  warehousing  of\tagricultural
\nproduce\t  on  cooperative   principles\tand   for    matters
\nconnected    therewith.\t   Section   2\t  defines    certain
\nexpressions,  including ‘appropriate  Government’,  ‘Board’,
\n‘Central  Warehousing  Corporation’,  ‘prescribed’,   ‘State
\nWarehousing Corporation’ and ‘Warehousing Corporation’.\t The
\nexpression   ‘Board’   means   the   National\tCo-operative
\nDevelopment  and Warehousing Board established under  s.  3.
\n‘State\t Warehousing  Corporation’  (the  appellant  is\t one
\nsuch)\tmeans\ta  Warehousing\tCorporation  for   a   State
\nestablished  under  s.\t28.   Section  3  provides  for\t the
\nestablishment by the Central Government of a Corporation  by
\nthe   name   of\t National   Co-operative   Development\t and
\nWarehousing  Board.   Section 17 provides  for\tthe  Central
\nGovernment  establishing  a  Corporation by  the   name\t  of
\nCentral\t  Warehousing Corporation.  Section 28 provides\t for
\nthe  State Government establishing a Warehousing Corporation
\nfor the State.\tAs pointed out earlier, the appellant is the
\nWarehousing  Corporation  for the State\t of  Uttar  Pradesh,
\nestablished  under this section.  Section 34 lays  down\t the
\nfunctions  of a State Warehousing Corporation.\t Section  35
\nprovides for the; composition of the Executive Committee  of
\na  State Warehousing Corporation.  Section 52 gives power to
\nthe appropriate Government to  make  rules  to carry out the
\npurposes  of  the  Act\tand  sub-s.  (2)   deals   with\t the
\nvarious\t matters in respect of which rules  may\t be   framed
\nwithout prejudice to the generality of the power   contained
\nin  sub-s. ( 1 ).  Sub-s. (3 )\tprovides  that\t all   rules
\nmade   by the appropriate Government under s. 52  shall,  as
\nsoon  as  may be after they are made, be  laid\tbefore\tboth
\nHouses of Parliament or the Legislature of the State as\t the
\ncase  may be.  Section 53 gives power to the Board  to\tmake
\nregulations not inconsistent with the Act and the rules made
\nthereunder,  and  those\t regulations  may  provide  for\t all
\nmatters\t for which provision is necessary or  expedient\t for
\nthe  purpose of giving effect to the provisions of the\tAct.
\nApart  from  the  generality  of  this\tpower,\t sub-s.\t (2)
\nspecifies  the various matters regarding  which\t regulations
\nmay be
\n255<\/span>
\nframed.\t   Section  54\tgives  power  to   the\t Warehousing
\nCorporations to make regulations. not inconsistent with\t the
\nAct and the rules made thereunder, and those regulations may
\nprovide for a11 matters for which provision is necessary  or
\nexpedient   for\t  the  purpose\tof  giving  effect  to\t the
\nprovisions of the Act.\tApart from this general power,\tsub-
\ns. (2) enumerates the  various\tmatters in respect of  which
\nregulations  can  be  framed.  Under  s.  54  the  appellant
\nCorporation had framed regulations.  Those regulations.\t are
\nthe Uttar Pradesh State Warehousing Corporation Regulations,
\n1961  (hereinafter  called the Regulations).  We  shall\t now
\nproceed to consider the provisions of the Regulations.
\n    Clause  1  (3)  of the  Regulations\t provides  that\t the
\nRegulations. shall apply to all employees of the Corporation
\nand to the personnel employed on contract in respect of\t all
\nmatters\t not regulated by the  contract.  Clause 2   defines
\nthe   various\texpressions. Chapter II of  the\t Regulations
\ndeals\twith   the  appointing\tauthority,   probation\t and
\ntermination   of   service.   Regulation   11\tdeals\twith
\ntermination of service.\t Chapter IV deals with\tdiscipline’.
\nSubcl.\t(  1  )\t  of  regulation   16\tprovides   for\t the
\nimposition  of penalties as against an employee found guilty
\nof  the\t various  acts mentioned therein.   Sub-cl.  (3)  of
\nregulation 16, which is relevant for the present purpose, is
\nas follows:\n<\/p>\n
\t\t    “(3)  No  punishment  other\t than\tthat
\n\t      specified in sub-para (1)(a), (1)(b) or (1)(c)
\n\t      shall  be\t imposed  on  any  employee  without
\n\t      giving  him  an  opportunity for tendering  an
\n\t      explanation in writing and cross examining the
\n\t      witnesses\t  against  him,\t if  any,   and\t  of
\n\t      producing evidence in defence:<\/p><\/blockquote>\n
\t\t  Provided that punishment to an employee on
\n\t\t\t    deputation from the Central Government
\n, a State
\n\t      Government  or a Government Institution  shall
\n\t      be   imposed  only  in  accordance  with\t the
\n\t      procedure\t and rules laid down in this  behalf
\n\t      in his parent service.”\n<\/p>\n
Sub-paras  (1)(a), (1) (b) and (1) (c) referred\t to  therein
\nare  the  penalties  of\t (a)  fine;  (b)  censure;  and\t (c)
\npostponment  or\t stoppage of increments\t or  promotion.\t  In
\nthis   case  as\t the punishment imposed is one of  dismissal
\nof  the\t appellant   should  have  followed  the   procedure
\nindicated  in sub-cl. (3) of regulation 16 extracted  above.
\nUnder  this sub-clause, it has to be noted that an  employee
\non whom a punishment other than that specified therein is to
\nbe imposed, has to. be given an opportunity of tendering his
\nexplanation  in\t  writing   and\t  cross-examining  witnesses
\nagainst him, if any, and producing evidence in defence.\t The
\ngrievance of the respondent regarding the conduct of the
\n256<\/span>
\nenquiry,  apart\t from other objections, is  ‘that  materials
\ncollected  by the Enquiry Officer behind his back  were\t not
\nmade: known to him and that information had been taken\tinto
\naccount\t for holding him guilty.  His further  objection  is
\nthat  he did not get any opportunity to adduce\tevidence  in
\nhis   defence  and  that  the  various\tpersons\t from\twhom
\ninformation  had been  gathered by the Enquiry Officer\twere
\nnot  tendered  for   cross-examination by him.\t It  is\t not
\nnecessary  for\tus  to\tgo  elaborately\t into  the   various
\nproceedings  connected with the giving of the  charge-sheet,
\nthe  explanation  offered  by the appellant  and  the  final
\nconclusions  arrived at by the Enquiry Officer on the  basis
\nof which the respondent has been dismissed from service.  As
\npointed\t   out\t by  Mr.  Iyengar,  all\t the   Courts\thave
\nconcurrently held that the enquiry is vitiated and has\tbeen
\nheld contrary to regulation 16(3 ).  It is enough therefore,
\nin  the circumstances, to note that the Enquiry Officer\t Sri
\nF.A. Abbasi who has given evidence has admitted that he\t did
\nnot  take in evidence in respect of any charge and  that  he
\nconsidered the records as sufficient for giving findings  on
\nthe  charges.\tHe  has also admitted that  he\tmet  various
\npersons\t and collected information and that information\t has
\nbeen  incorporated  in his enquiry report.  He\thas  further
\nadmitted  that the information so collected by him  was\t not
\nput  to\t the  plaintiff, and has stated that  he  based\t his
\nfindings  in the report against the respondent on the  basis
\nof  the\t enquiries  made  by him of  the  police  and  other
\npersons.   In the: face of these admissions, it is idle\t for
\nMr.  Desai to urge before us, that the findings of the\tHigh
\nCourt  and  the\t Subordinate Courts that there\thas  been  a
\nviolation  of  regulation 16(3) in the\tenquiry\t proceedings
\ncannot\tbe sustained. IOn the other hand, we are of  opinion
\nthat  the  finding is amply .justified by  the\tevidence  on
\nrecord.\n<\/p>\n
    Mr.\t Desai made a feeble: attempt to sustain  the  order
\ndated  March 10, 1964 as one passed under regulation 11\t and
\nnot under regulation 16.  We have no hesitation in rejecting
\nthis contention.  Regulation 11, as we have already  pointed
\nout, is in Chapter II, and deals with termination of service
\nsimpliciter and, even in such circumstances, it provides  in
\nthe  case of a permanent employee that his services  can  be
\nterminated only after apprising the employee of the  reasons
\ntherefore  and\t asking\t him\tto furnish  explanation\t and
\nafter  consideration of the explanation and then giving\t the
\nemployee  a  final   notice  to.  show\t cause\tagainst\t the
\nproposed  termination  of  service.   This  clause,  in\t our
\nopinion,  deals\t with a termination, other than\t by  way  of
\npunishment,  and  the procedure indicated therein  is  quite
\nsimple.\t  On\t  the other hand, regulation 16\t appears  in
\nChapter\t IV dealing with discipline.  An order of  dismissal
\npassed\t after\tfollowing  the procedure indicated  therein,
\nattaches a stigma on the employee concerned.  Having  issued
\na charge-sheet and made a farce of
\n257<\/span>
\nan enquiry and then dismissed the employee after holding him
\nguilty, cannot certainly be considered to be termination  of
\nthe employee’s service under regulation 11.  That action was
\ntaken by way of disciplinary proceedings. is clear from\t the
\nfact  that an order suspending the respondent,\tpending\t the
\nenquiry,   was passed on November 9, 1963.  The\t same  order
\nfurther\t directed  that\t the respondent\t will  receive\tonly
\nsubsistence allowance during the period of suspension.\t The
\norder of suspension must be related to regulation 17 and the
\ngrant\tof   subsistence   allowance   must   be    referred
\nto  .regulation\t 18,  both  of which  occur  in\t Chapter  IV
\nrelating to discipline.\t Therefore it follows that the first
\ncontention of Mr. S.T. Desai cannot be accepted.
\n    Mr.\t Desai\tnext urged that even on the basis  that\t the
\norder\tof  dismissal  had  been  passed  in  violation\t  of
\nregulation   16(3),  the decree granting a  declaration\t for
\nreinstatement of the respondent with full pay and emoluments
\nis  illegal  as\t amounting to  enforcing   a   contract\t  of
\npersonal   service.  Alternatively Mr. Desai urged  that  in
\nany  event  there are no special circumstances\texisting  in
\nthis. case justifying the grant of such a declaration.
\n    Mr.\t Desai\tdeveloped his contentions  as  follows:\t The
\nrelationship  between  the appellant and the  respondent  is
\nthat of a master and servant.  A breach of regulation  16(3)
\nwill  at  the  most result in the order of  dismissal  being
\nwrongful.   The\t remedy, if any, of the aggrieved  party  in
\nsuch  a case will only be a claim for damages for breach  of
\ncontract.   The\t counsel  further urged\t that  Courts  have.
\njurisdiction  to  declare the decision of a  statutory\tbody
\ngiven  in  violation  of a  mandatory  statutory  obligation
\nrelating to dismissal of a ‘servant as ultra vires and void.
\nEven  in such circumstances, it was urged, the\tjurisdiction
\nto  grant  a declaration which will result in continuity  of
\nservice\t is  granted only under very  special  circumstances
\nwhich  require\tthe departure from the general rule  that  a
\ncontract  of service  will  not\t be  specifically  enforced.
\nAccording  to the counsel, the rules framed under s.  52  of
\nthe  Act  by the appropriate Government may  have  statutory
\nforce and effect if they are of such-a nature as to  require
\nmandatory compliance; but, according to him, the regulations
\nframed\tby a Warehousing Corporation do not create any\tsuch
\nstatutory  obligation  of  a  mandatory\t nature.   Hence   a
\ntermination  of\t service by an employer even  in  breach  of
\nconditions    of service laid down by the regulations  would
\nonly  attract  the  general law of master  and\tservant\t and
\ncannot\tresult in a declaratory decree about  continuity  of
\nservice being granted.\tIn any event, the counsel urged that
\na  declaration should not have been granted as there are  no
\nspecial\t  circumstances\t  warranting  the grant\t of  such  a
\nrelief in this case.  Counsel pointed out that the
\n258<\/span>
\nrespondent entered service only in November 1958 and he\t has
\nbeen  removed from service in 1964 and it is not claimed  by
\nthe  respondent that he will not be able to take up  service
\nelsewhere.  In short, according to Mr. Desai, the  grant  of
\nthe.  relief  of  declaration by  way  of  reinstatement  is
\nerroneous.\n<\/p>\n
    Mr.\t  B.R.L.   Iyengar,   learned\tcounsel\t  for\t the
\nrespondent,  urged that the regulations have been framed  by
\nthe  Warehousing  Corporation  under s..  54.\tOne  of\t the
\nmatters\t in  respect  of which regulations may be framed  is
\nin  regard to the conditions\tof service of the  employees
\nof a Warehousing Corporation.  It is by virtue of that power
\nthat  the  regulations–called Staff  regulations-have\tbeen
\nframed.\t By virtue of cl. (3) of regulation 1, they apply to
\nall  employees.\t of  the Corporation and  to  the  personnel
\nemployed on contract in respect of all matters not regulated
\nby  the\t contract.  Those. regulations\tdeal  with   various
\nmatters relating to the service conditions of the employees.
\nChapter IV deals with discipline and cl. (3)  of  regulation
\n16   makes  it imperative and obligatory on the\t Corporation
\nto   comply  with ‘those provisions before punishment  other
\nthan those punishments specified therein is imposed  against
\nan  employee.  The  regulations, according to  Mr.  Iyengar,
\nhaving been framed under the Act, have statutory effect\t and
\nthey  impose statutory obligation of\t a mandatory  nature
\non the appellant Corporation in respect of the procedure  to
\nbe adopted for taking disciplinary  action.  On the findings
\nrecorded by all the’ Courts, it is clear that there has been
\na violation of cl. (3) of regulation 16, in which  case\t  it
\nfollows\t  that\tthe  respondent\t was  entitled\tto   get   a
\ndeclaration  that     the order of dismissal is void and  of
\nno  effect.  Counsel  also pointed out that the respondent’s
\nservices have  been  arbitrarily and mala fide terminated by
\nthe   appellant\t  and  ;therefore,  there   are\t  sufficient
\ncircumstances.\tfor  departing from the normal rule  that  a
\ncontract  of  personal\tservice\t will  not  be\tspecifically
\nenforced.\n<\/p>\n
    The\t question as to when and under what circumstances  a
\nrelief\tby  way\t of  declaration  regarding  continuity\t  of
\nservice, after holding that an order of dismissal is void or
\nultra  vires,  can  be given, has  been\t considered  both  m
\nEngland\t  and  here.  The leading decision of the  House  of
\nLords which is generally invoked in support of the view that
\nsuch  a declaration can be granted is the decision in  Vine’
\nv.  National Dock Labour Board(1).  This decision  has\talso
\nbeen referred to by this Court in some of its decisions,  to
\nwhich  we shall refer presently.  The case before the  House
\nof  Lords in the decision referred to above arose under\t the
\nfollowing  circumstances.  The plaintiff was  a\t  registered
\ndock
\n(1) [1956] 3 All E.R. 939.\n<\/p>\n
259<\/span><\/p>\n
worker\temployed in the\t reserve pool by the  National\tDock
\nLabour\tBoard under a scheme set up under the  Dock  Workers
\n(Regulation  of\t Employment)  Order,  1947.   In  1948,\t the
\nNational  Board,  approved  the\t delegation  of\t powers\t  to
\ndisciplinary  committees  set  up  by  local  boards.\t The
\nplaintiff  failed to obey a valid order to report  for\twork
\nwith a company of stevedores and, in consequence, the  local
\nboard  instructed their disciplinary committee to  hear\t the
\ncase.\tThe disciplinary committee, having heard  the  case,
\ngave  notice  in writing to the\t plaintiff  terminating\t his
\nemployment.   The plaintiff instituted the  action  claiming
\ndamages\t for  wrongful\tdismissal  and\talso  prayed  for  a
\ndeclaration  that the order of dismissal was illegal,  ultra
\nvires and invalid.  The Court of first instance granted both
\ndamages\t and declaration;  but\ton appeal, by  the  National
\nBoard,\tthe  Court  of Appeal struck  out  the\t declaration
\ngranted\t  to  the   plaintiff.\t The  plaintiff appealed  to
\nthe  House  of\tLords  against\tthe  striking  out  of\t the
\ndeclaration  and the National Board cross-appealed   against
\nthe finding that the: dismissal was invalid and also against
\nthe  award of damages.\tThe House of Lords held\t  that\t the
\ndeclaration granted by the trial Judge was properly made  as
\nthe  order of dismissal was a nullity since the local  board
\nhad  no power to delegate its. disciplinary functions.\t The
\ncross-appeal  filed  by the National  Board  was  dismissed.
\nViscount  Kilmuir,   L.C.,   in\t considering  the   question
\nregarding  the\tgrant  of  declaration, observes at  p.\t 943
\nthat  the  discretion in ,,ranting  a  declaratory  judgment
\nshould\tnot  be\t exercised save for good  reason  and  then,
\nsummarising the reasons for granting the declaration, states
\nat p. 944:\n<\/p>\n
\t\t“First,\t it follows from the fact  that\t the
\n\t      plaintiff’s  dismissal  was invalid  that\t his
\n\t      name  was\t never\tvalidly\t removed  from\t the
\n\t      register, and he\tcontinued  in  the employ of
\n\t      the  National  Board.  This is   an   entirely
\n\t      different\t situation from the ordinary  master
\n\t      and  servant  case.   There,  if\tthe   master
\n\t      wrongfully   dismisses  the  servant,   either
\n\t      summarily\t or by giving  insufficient  notice,
\n\t      the  employment  is  effectively\t terminated,
\n\t      albeit   in  breach of  contract.\t  Here,\t the
\n\t      removal  of  the\tplaintiff’s  name  from\t the
\n\t      register\t being,\t in  law,  a   nullity,\t  he
\n\t      continued to have the fight to be treated as a
\n\t      registered  dock worker with all the  benefits
\n\t      which,  by  statute,  that status conferred on
\n\t      him.   It is, therefore, right that  with\t the
\n\t      background  of this scheme, the  court  should
\n\t      declare his rights.”\n<\/p><\/blockquote>\n
\t      At p. 948, Lord Keith of Avonholm states:
\n\t\t      “This   is   not\t a   straightforward
\n\t      relationship of master and servant.  Normally,
\n\t      and apart from the interven-\n<\/p><\/blockquote>\n
\t      260<\/span><\/p>\n
\t      tion  of\tstatute,  there\t would\tnever  be  a
\n\t      nullity in terminating an ordinary contract of
\n\t      master   and  servant. Dismissal might  be  in
\n\t      breach  of contract and so unlawful but  could
\n\t      only sound in damages.\n<\/p><\/blockquote>\n
\t\t  Here\twe  are concerned with\ta  statutory
\n\t      scheme  of employment  ….  The scheme  gives
\n\t      the dock\tworker a status.  Unless registered,
\n\t      he  is   deprived\t  of   the  opportunity\t  of
\n\t      carrying on what may have\t been  his  lifelong
\n\t      employment  as  a dock worker, and  he  has  a
\n\t      right  and interest to challenge any  unlawful
\n\t      act   that interferes with this,\tstatus.\t  If
\n\t      the actings here complained of were a nullity,
\n\t      Mr. Vine (hereinafter called ‘the plaintiff’),
\n\t      in my opinion, has a clear right to have\tthat
\n\t      fact declared by the court.”<\/p><\/blockquote>\n
    It\twill  be  noted\t that the House\t of  Lords,  in\t the
\ndecision  referred  to above, have  emphasized\tthat  orders
\nstriking  off  the  plaintiff from  the:  register  was\t not
\nconsidered  a  simple  case  of\t a  master  terminating\t the
\nservices of the servant, but, on the other hand, was treated
\nas  one\t affecting  the status of the  plaintiff  and  whose
\nservices  have been terminated by an authority which had  no
\npower to so terminate and, as such, the order was treated as
\nvoid.\tThe House of Lords have also emphasised that due  to
\nthe intervention o.f the statute which safeguards the  right
\nof  the dock worker, the order not being in accordance\twith
\nthe  statute,  must be treated as a nullity.  It  was  under
\nthose  circumstances  that the House of Lords  restored\t the
\ndecree of the Court of first instance granting a declaration
\nregarding  the\tcontinuity  of\tservice\t of  the   plaintiff
\ntherein.   It must again be emphasised that the\t order,\t the
\nvalidity of which was considered by the House of Lords,\t was
\ntreated as a nullity.\n<\/p>\n
    The question whether a dismissed employee can ask for  a
\ndeclaration  that  his. employment had\tnever  been  validly
\nterminated,  again came up for consideration in\t Barber\t  v.
\nManchester  Hospital  Board(1).\t In that  case\ta   Regional
\nHospital   Board passed an order terminating the  plaintiffs
\nemployment  as\ta medical consultant in the  hospital.\t The
\nplaintiff  brought  an\taction against\tthe  Board  claiming
\ndeclaration  that  his\temployment had\tnever  been  validly
\ndetermined  and\t he also claimed damages  for  breach\t  of
\ncontract or wrongful dismissal.\t The  Court  held  that\t the
\nplaintiff’s contract with the Board was. one between  master
\nand  servant and the order of termination of  his  services.
\ncould  not  be\ttreated\t as a nullity.\t In  this  view\t the
\nplaintiff’s   claim  for  a declaration that his  employment
\nhad  never been validly determined was not granted; but\t the
\nplaintiff was awarded  damages
\n(1) [1958] 1 All E.R. 322.\n<\/p>\n
261<\/span><\/p>\n
for breach of contract.\t It was\t contended on behalf of\t the
\nplaintiff  that\t when  passing the  order  terminating\t his
\nservices the procedure indicated in cl. 16 of the terms\t and
\nconditions  of\tservice of hospital medical staff  has\tbeen
\nviolated  by :he original hospital Board and  therefore\t the
\norder\tof   termination   never became\t effective  and\t the
\nplaintiff continued to be still in service as the order\t was
\na  nullity.  On behalf of the plaintiff reliance was  placed
\non   the  decision  in\tVine’s\tCase(1).    Repelling\tthis
\ncontention, Barry, J., observes, at p. 331:\n<\/p>\n
\t\t    “… I am unable to equate this case  to
\n\t      the circumstances which were being  considered
\n\t      by the Court of Appeal and the House of  Lords
\n\t      in  Vine\tv.  National Dock  Labour  Board(1).
\n\t      There   the   plaintiff  was working  under  a
\n\t      code which had statutory powers, and, clearly,
\n\t      in  those\t circumstances,\t all  the  lords  of
\n\t      appeal who dealt with the case in the House of
\n\t      Lords took the view that the case could not be
\n\t      dealt  with  as  though it  were\tan  ordinary
\n\t      master  and servant claim in which the  rights
\n\t      of  the  parties\twere  regulated\t solely\t  by
\n\t      contract.\t Here, despite the strong  statutory
\n\t      flavor attaching to the plaintiff’s  contract,
\n\t      I\t  have\t reached   the\tconclusion  that  in
\n\t      essence  it was an ordinary  contract  between
\n\t      master and servant and nothing more.”\n<\/p><\/blockquote>\n
In  this  view\tthe  Court finally held that the plaintiff’s
\nonly  remedy  was  to  recover\tdamages\t as  for  breach  of
\ncontract.\n<\/p>\n
    A  similar question regarding the right of\ta  dismissed
\nemployee  to get a declaration of his right to\tcontinue  in
\nemployment  came  up  for  consideration  before  the  Privy
\nCouncil\t  in   Francis\tv. Municipal  Councillors  etc.(“‘).
\nThe  plaintiff\tin  that  case was in  the  service  of\t the
\nMunicipal  Councillors of Kuala Lumpur and, by s.  16(5)  of
\nthe  Municipal Ordinance (Extended  Application)  Ordinance,
\n1948, the President had power to dismiss him.  The plaintiff
\nwas  dismissed.\t The Privy Council held that  the  plaintiff
\nhad  been  wrongly dismissed and that his remedy  lay  in  a
\nclaim\tfor  damages.\tThe  plaintiff\tsought\t a   further
\ndeclaration  that he had a right to continue  in  employment
\nnotwithstanding\t the  order of\tdismissal.   Rejecting\tthis
\nclaim the Privy Council observed, at p. 637:\n<\/p>\n
\t\t  “In their Lordships’ view, when there\t has
\n\t      been a purported termination of a contract  of
\n\t      service  a declaration to the effect that\t the
\n\t      contract of service still subsists will rarely
\n\t      be  made.\t  This\tis a  consequence   of\t the
\n\t      general principle of law that the courts\twill
\n\t      not grant
\n\t      (1)(1956) 3 E.R. 939.\n<\/p><\/blockquote>\n
\t      (2) [1962] 3 All E.R. 633.\n<\/p><\/blockquote>\n
\t      CI\/70–5
\n\t      262<\/span>
\n\t      specific performance of contracts of  service.
\n\t      Special circumstances will be required  before
\n\t      such a declaration is made and its making will
\n\t      normally\tbe in the  discretion of the  court.<\/p><\/blockquote>\n
\t\t\t    In\t their\t Lordships’  view  there
\n are   no
\n\t      circumstances in the present case which  would
\n\t      make  it either just or proper to make such  a
\n\t      declaration.”\n<\/p>\n
The Privy Council distinguished the particular circumstances
\nthat  existed before the House of Lords in Vine’s  case\t (1)
\nand finally held at p. 638:\n<\/p>\n
\t\t  “In\t their\t  Lordships’\tview\t the
\n\t      circumstances  of\t  the present case  are\t not
\n\t      comparable  with those in Vine’s case (1)\t and
\n\t      are not such as to make it appropriate to give
\n\t      a declaratory judgment in the manner contended
\n\t      for   on\t behalf\t of  the   appellant.\t The
\n\t      appellant’s  employment  must  be\t treated  as
\n\t      having in fact come to and end on Oct. 1, 1957
\n\t      ‘and the appellant’s remedy lay in a claim for
\n\t      damages.”<\/p><\/blockquote>\n
    From  a  review of the English decisions,  referred\t  to
\nabove, the position emerges as follows: The law relating  to
\nmaster\tand  servant  is clear.\t  A  contract  for  personal
\nservice\t will  not  be enforced by  an\torder  for  specific
\nperformance  nor will it be open for a servant to refuse  to
\naccept\tthe  repudiation  of a contract of  service  by\t his
\nmaster and say that the contract has never been\t terminated.
\nThe  remedy  of\t the employee is a  claim  for\tdamages\t for
\nwrongful  dismissal or for breach of contract.\tThis is\t the
\nnormal\trule and that was applied in Barber’s  case (2)\t and
\nFrancis’ case (2).  But, when a statutory status is given to
\nan employee and there has been a violation of the provisions
\nof  the\t statute while terminating the services of  such  an
\nemployee, the latter will be eligible to get the relief of a
\ndeclaration  that  the order is null and void  and  that  he
\ncontinues  to be in service, as it will not then be  a\tmere
\ncase  of  a master terminating the services  of\t a  servant.
\nThis was the position in Vine’s case.(1)
\n    The\t question has also been considered by this Court  in
\ncertain\t decisions, to which we will immediately refer.\t  In
\nDr.  S.B. Dutt v. University of Delhi<\/a>(4) this Court  had  to
\nconsider the legality of an award directing that an order of
\ndismissal  was ultra vires, mala fide and of no\t effect\t and
\nthat  the  appellant  in   that\t  case\tcontinued  to  be  a
\nProfessor of the University.  The  appellant, Dr. Dutt,\t who
\nwas  a Professor in the University of Delhi, was  .dismissed
\nfrom  service  by  the\tlatter.\t  He  referred\tthe  dispute
\nregarding  his\tdismissal  and\tcertain\t other\tdisputes  to
\narbitration,
\n(1) [1956] 3 All E.R. 939.    (2) [1958] 1 All E.R. 322.
\n(3) [1962] 3 All E.R. 633.    (4) [1959] S.C.R. 1235.\n<\/p>\n
263<\/span><\/p>\n
under s. 45 of the Delhi University Act.  An award was\tmade
\nwhich  decided that the appellant’s “dismissal\t was   ultra
\nvires, mala fide, and has no effect on his status.  He still
\ncontinues  to be a professor of the University”.   The\tsaid
\naward was made\ta rule of Court by the Subordinate Judge  of
\nDelhi.\tThe University of Delhi challenged this decision  on
\nappeal and the Punjab High Court, which ultimately heard the
\nappeal,\t set  aside  the award on the  ground  that  such  a
\ndeclaration  amounted to specific enforcement of a  contract
\nof  personal  service  forbidden by s. 21  of  the  Specific
\nRelief\tAct and therefore disclosed an error on the face  of
\nthe  award.   On  appeal,  this\t Court,\t agreeing  with\t the
\nreasoning of the High Court, observed at p. 1242:\n<\/p>\n
\t\t     “There is no doubt that a\tcontract  of
\n\t      personal\t service  cannot   be\tspecifically
\n\t      enforced.\t   Section   21,  cl.  (b)  of\t the
\n\t      Specific\tRelief\tAct, i 877, and\t the  second
\n\t      illustration  under this clause given  in\t the
\n\t      section\tmake  it  so  clear   that   further
\n\t      elaboration of the point is  not required.  It
\n\t      seems  to\t us  that  the\tpresent\t award\tdoes
\n\t      purport  to  enforce a  contract\tof  personal
\n\t      service when it states that the dismissal\t o.f
\n\t      the  appellant ‘has no effect on his  status’,
\n\t      and ‘he still continues to. be a\tProfessor of
\n\t      the  University’.\t  When a  decree  is  passed
\n\t      according to the award, which if the award  is
\n\t      unexceptionable, has to be done under s. 17 of
\n\t      the Arbitration Act after it has been flied in
\n\t      Court, that decree will direct that the  award
\n\t      be  carried  out\tand hence  direct  that\t the
\n\t      appellant\t be treated as still in the  service
\n\t      of  the  respondent. It would then  enforce  a
\n\t      contract\t Of   personal\tservice,   for\t the
\n\t      appellant\t claimed to be a professor  under  a
\n\t      contract of personal service, and so  offends.<\/p><\/blockquote>\n
\t      21 (b)?’
\nOn  behalf  of\tthe appellant, reliance was  placed  on\t the
\ndecision of the Judicial Committee in The High\tCommissioner
\nfor  India  v. I. M. Lall (1) in support of  the  contention
\nthat  a declaration that the appellant continued in  service
\nunder  the  University\tof Delhi in spite of  the  order  of
\ndismissal was a declaration  which  the law permitted to  be
\nmade  and was not  therefore  erroneous. Dealing  with\tthis
\ncontention  and\t referring to the decision of  the  Judicial
\nCommittee, this Court observed at p. 1244:\n<\/p>\n
\t\t    “That  was\tno.t  a\t case  based  on   a
\n\t      contract\t  of   personal\t   service…\t The
\n\t      declaration  did no.t enforce a\tcontract  of
\n\t      personal\tservice but proceeded on  the  basis
\n\t\t\t    that  the dismissal could only be  eff
\nected  in
\n\t      terms of the statute and as that had not\tbeen
\n\t      done, it was a nullity, from which the  result
\n\t      followed that the respondent had continued  in
\n\t      service.\tAll that the Judicial Committee did
\n\t      (1) (1948) L.R. 75 I.A. 225.\n<\/p><\/blockquote>\n
\t      264<\/span><\/p>\n
\t      in  this case was to make a declaration  of  a
\n\t      statutory\t invalidity  of an act, which  is  a
\n\t      thing  entirely  different  from\tenforcing  a
\n\t      contract of personal service.”<\/p><\/blockquote>\n
    Holding that ‘it was not  the  appellant’s\tcase  before
\nthe  arbitrator\t that the dismissal was\t  ultra\t vires\t the
\nstatute\t  or  otherwise a nullity’,  this  Court  ultimately
\nconfirmed  the judgment of the High Court setting aside\t the
\naward.\n<\/p>\n
    The jurisdiction of the Courts to grant a declaration in
\na  particular  case that an order of dismissal is  void\t and
\nthat the dismissed employee continues to remain in  service,
\nagain came up for consideration before this  Court  in\tS.R.
\nTewari\t v.  District  Board, Agra<\/a>(1).\tIn  that  case,\t the
\nappellant’s   service  as  an Engineer\tunder  the  District
\nBoard,\tAgra,  was terminated by the  latter,  after  giving
\nsalary\tfor three months in lieu of notice.  The  appellant,
\nafter having  unsuccessfully  appealed against the order  of
\ntermination  to the State Government, initiated\t proceedings
\nunder Art. 226 before the Allahabad High Court for a writ of
\ncertiorari  for quashing the order of  the   District  Board
\ndismissing  him from service and also sought a writ  in\t the
\nnature\tof  mandamus commanding the District Board  and\t the
\nState  of  Uttar  Pradesh  to  treat  him  as  the  lawfully
\nappointed  engineer,  and not to give effect  to  the  order
\nterminating  his service.  The High Court dismissed the writ
\npetition  holding  that\t the  employee\thad  been   properly
\ndismissed  from\t service. The employee came up to this Court
\nin appeal.  On behalf of the District Board, the  respondent
\ntherein,   it\twas   contended\t that  the  remedy  of\t the
\nappellant,  if\tany,  was only\tto   institute\ta  suit\t for
\ndamages\t for wrongful termination of employment and that  he
\nwas  not  entitled  to\tpray  for  a  declaration  that\t the
\ntermination  of employment was unlawful and a  consequential
\norder  for  restoration in service.  The  decision  in\t Dr.
\nDutt’s\t   case (2) among other decisions, was relied on  in
\nsupport\t of  this contention.  This  Court  negatived\tthat
\ncontention and stated the position in law as follows:\n<\/p>\n
\t\t  “Under  the common law the Court will\t not
\n\t      ordinarily   force  an  employer\t to   retain
\n\t      the    services  of  an employee\twhom  he  no
\n\t\t\t    longer  wishes  to employ.\tBut  this
\n rule  is
\n\t      subject\t to    certain\t  well\t  recognized
\n\t      exceptions.   It is open to the Courts  in  an
\n\t      appropriate  case\t to declare  that  a  public
\n\t      servant  who  is\tdismissed  from\t service  in
\n\t      contravention of Art. 311 continues to  remain
\n\t      in service, even though by so doing the  State
\n\t      is in effect forced to continue to employ
\n\t      (1) [1964] 3 S.C.R. 55.\n<\/p><\/blockquote>\n
\t      (2) [1959] S.C.R. 1236.\n<\/p><\/blockquote>\n
\t      265<\/span><\/p>\n
\t      the  servant  whom  it  does.  not  desire  to
\n\t      employ.\tSimilarly under the industrial\tlaw,
\n\t      jurisdiction  of\tthe  labour  and  industrial
\n\t      tribunals to. compel the\temployer  to  employ
\n\t      a\t worker, whom he does not desire to  employ,
\n\t      is  recognized.  The Courts are also  invested
\n\t      with the power to declare invalid the act of a
\n\t      statutory\t body, if by doing the act the\tbody
\n\t      has acted in breach of a mandatory  obligation
\n\t      imposed  by  statute, even if  by\t making\t the
\n\t      declaration  the\tbody  is  compelled  to\t  do
\n\t      something which it does not desire to do.”\n<\/p><\/blockquote>\n
Vine’s\tCase(1)\t which was relied on before the\t  Court\t was
\ndistinguished  on  the ground that the\tpurported  order  of
\ndismissal  therein which was set aside was a  nullity  since
\nthe  local Board in that case had no power to delegate\t its
\ndisciplinary   function. Again, the decision in\t Dr.  Dutt’s
\nCase(2) was stated to be not\tcase in which the invalidity
\nof  an\tact  done by the University on the  ground  that  it
\ninfringed  a statutory provision fell to be  determined\t and
\nthe rights and obligations of the parties rested in contract
\nand therefore the award was declared to\t be  one contrary to
\nthe  rule contained in s. 21(b) of the Specific\t Relief\t Act
\nand  hence  void.  This Court, wound up\t the  discussion  in
\nTewari’s Case(3) as follows, at p. 62:\n<\/p>\n
\t\t  “The jurisdiction to declare the  decision
\n\t      of  the Board as ultra vires exists, though it
\n\t      may  be  exercised  only\twhen  the  Court  is
\n\t      satisfied\t that  departure  is called for from
\n\t      the  rule that a contract of service will\t not
\n\t      ordinarily be specifically enforced.”\n<\/p><\/blockquote>\n
On  facts, this Court held that the order of  dismissal\t  of
\nthe appellant before them was proper and justified.
\n    From  the  two. decisions of this  Court,  referred\t  to
\nabove, the position in law is that no declaration to enforce
\na  contract  of personal service will be  normally  granted.
\nBut   there  are certain well-recognized exceptions to\tthis
\nrule  and  they\t  are:\tTo  grant  such\t a  declaration\t  in
\nappropriate  cases  regarding (1) A public servant, who\t has
\nbeen  dismissed from service in contravention of  Art.\t311.
\n(2) Reinstatement of a dismissed worker under Industrial Law
\nby Labour or Industrial Tribunals. (3) A statutory body when
\nit has acted in breach of a mandatory obligation, imposed by
\nstatute.\n<\/p>\n
    The\t case  of the respondent before: us  does  not\tcome
\nunder either the first or the second category.\tThe question
\nthen is:  Is he entitled to relief under the third  category
\n?\n<\/p>\n
(2) [1956] 3 All E.R. 939.\t     (2) [1959] S.C.R. 1236.
\n(3) [1964] 3 S.C.R. 55.\n<\/p>\n
266<\/span><\/p>\n
    Mr.\t S.T.  Desai  pointed  out  that  by  the  appellant
\nconducting  an enquiry and passing an order of dismissal  in
\nviolation  of regulation 16(3), it cannot be stated that  it
\nhas  acted in breach of any mandatory provision of  the\t Act
\nresulting  in  the  order being declared as  void  or  ultra
\nvires.\t The  non-compliance with the  regulations,  at\t the
\nmost,  will result in the order of dismissal being  wrongful
\nattracting  the normal rule in such  matters  of making\t the
\nappellant liable for damages.  Even otherwise., this is\t not
\na proper case for grant of the declaration asked for by\t the
\nplaintiff.   In\t our opinion, the position taken up  by\t Mr.
\nDesai finds support in the decisions referred to above.
\n    Mr. B.R.L. Iyengar, learned counsel for the\t respondent,
\nplaced\tconsiderable reliance on the decision of this  Court
\nin  Life  Insurance  Corporation of India  v.\tSunil  Kumar
\nMukherjee<\/a>(1).\tAccording to him, in that case, an order  of
\ntermination   of  service  passed  by  the  Life   Insurance
\nCorporation  of\t India, terminating the services of  certain
\nemployees in breach of regulations framed by it under s.  49
\nof  the\t Life Insurance Corporation Act, 1956 (Act  XXXI  of
\n1956)  (hereinafter called the Insurance Act) has been\theld
\nto be void.  Therefore counsel urges  that applying the same
\nanalogy,  a breach of regulations in the case before us\t has
\nthe same effect as the breach of a statutory obligation and,
\nif  so,\t the  High  Court  was\tjustified  in  granting\t the
\ndeclaration asked for.\tWe are of opinion that the  decision
\nrelied\ton  by\tMr.  Iyengar does not  lay  down  any\tsuch
\nproposition.  In  that\tdecision,  in  respect\tof   certain
\nofficers governed by s. 11 (1 ) and 11 (2) of the  Insurance
\nAct,  certain orders terminating their services were  passed
\nby the Life Insurance Corporation of India. The orders\twere
\nchallenged  by\tthe employees on the ground that  they\twere
\npassed contrary to cls. 1O(a) and 10(b) of the: order passed
\nby the Central Government under s. 11 (2) of the   Insurance
\nAct,  which is called the blue order.  The   contention\t  on
\nbehalf\tof  the\t Life Insurance Corporation  was  that\t the
\norders were passed in accordance with the regulations framed
\nby  the\t Life  Insurance  Corporation under  s.\t 49  of\t the
\nInsurance  Act,\t read with. cl. 11 of the blue\torder.\t The
\nHigh Court held that the orders of dismissal were in  breach
\nof cls. 10(a) and 10(b) of the blue order, and therefore the
\norders were invalid. The  result of the grant of this relief
\nwas  that  the employees continued to be in  service.\tThis
\nCourt  confirmed  the  decision\t of  the   High\t Court,\t and
\nhaving considered the rights conferred by s. 11 (1 ) and  11
\n(2)  of the Insurance. Act, held that the employee:s of\t the
\nInsurers  whose\t controlled business had  been\ttaken  over,
\nbecame\temployees  of the Life\tInsurance  Corporation\t and
\nthat  their terms. and conditions of service continued until
\nthey were altered
\n(1) [1964] 5 S,C.R. 528
\n267<\/span>
\nby the Central Government and that if the alteration made by
\nthe  Central  Government  was  not  acceptable,\t they\twere
\nentitled to’ leave the employment of the Corporation and for
\npayment\t of  compensation  as provided\tby  s..\t 11(2).\t  In
\nexercise   of\tthe powers conferred under s. 11(2)  of\t the
\nInsurance   Act,   the Central Government issued  an  order,
\nknown  as  the\tLife Insurance\tCorporation  Field  Officers
\n(Alteration  of Remuneration and other Terms and  Conditions
\nof Service) Order, 1957 on December 30, 1957.  In 1962,\t the
\ndesignation ‘Field  Officer’  was changed into\t‘Development
\nOfficer’.   Clauses  10(a) and 10(b)\tof this\t order\thave
\nbeen set out by this Court in the above decision.  CI. 11 of
\nthis  order  prescribed that the pay and allowances  of\t the
\nofficers  concerned  Was to be determined  in  .  accordance
\nwith  the  principle.s that may be: laid down  by  the\tLife
\nInsurance Corporation by regulations made under s. 49 of the
\nInsurance   Act.   The\tLife  Insurance\t  Corporation,\t  as
\nenvisaged   under  el. 11 of the order,\t framed\t regulations
\nunder\ts. 49  of  the Insurance Act, dealing  with  various
\nmatters.  It. also issued a circular which was made part  of
\nthe regulations and  it\t was\t the basis of this  circular
\nthat   the  Life  Insurance  Corporation  took\taction\t and
\nterminated  the\t  services  of\t the   employees  concerned.
\nTiffs  Court held that the provisions contained in s.  11(2)
\nof  the\t Insurance  Act\t are  paramount\t and  over-ride\t any
\ncontrary  provisions  contained in the order issued  by\t the
\nCentral\t Government or the regulations framed by  the\tLife
\nInsurance Corporation.\tNext to the Insurance Act, the rules
\nframed by the Central Government, which\t include  the  order
\nissued\tunder ss. 11 (2) of the Insurance Act, will prevail,
\nbut  the   provisions of the Central Government\t Order\twill
\nhave to be  subject  to s. 11 (2) of the Insurance Act. Next
\nin  order  co.me  the  regulations  of\tthe  Life  Insurance
\nCorporation  under s. 49 and those regulations must  not  be
\ninconsistent  with the Insurance  Act  or  the rules  framed
\nthereunder.\n<\/p>\n
This Court held that the Circular issued by the Corporation,
\nwhich  had the effect of a regulation passed by it under  s.
\n49  of\tthe  Insurance\tAct, must be  read  along  with\t the
\nprovisions of ss. 11 ( 1 ) and 11 (2 ) of the Insurance\t Act
\nand  cl. 10 of the order issued by the\tCentral\t Government;
\nand so read, the conclusion reached by this Court was that a
\ntermination of service of an officer, contemplated under the
\ncircular  issued  by the Life Insurance Corporation  can  be
\neffected  only\tin the manner prescribed by cl.\t 10  of\t the
\norder  issued by the  Central  Government.  In view  of\t the
\nfact  that  cl.\t 10 of the order  issued  by   the   Central
\nGovernment had not been complied with, the order terminating
\nthe services of the employees was held to be invalid.
\n    It\twill  be seen that the services, as pointed  out  by
\nthis  Court,  of  the  employees  whose\t cases\twere   under
\nconsideration, had been
\n268<\/span>
\ncrystallized by the statute–the Insurance Act–in s. 11  (1
\n)  and 11 (2);\tBy virtue of the powers conferred by  s.  11
\n(2), the Central Government issued the order on December 30,
\n1957.\tCI.  10\t of this order\thad  clearly  indicated\t the
\nprocedure to be adopted for terminating the services of such
\nemployees.   Therefore, the employees had their rights\tsafe
\nguarded by the\tInsurance  Act read with the order issued by
\nthe Central Government and it cast a statutory obligation on
\nthe  Life  Insurance  Corporation  to  adopt  a\t  particular
\nprocedure  if the services of those  employees\twere  to  be
\nterminated.  By not complying with the provisions of el.  10
\nof  the\t order of the Central Government,  which  is  really
\nrelated to s. 11 of the Insurance Act, the  Life   Insurance
\nCorporation  must  be  considered to  have  acted  in  gross
\nviolation  of  the mandatory  provisions  of  the   statute.
\nTherefore,   it was not as if that the employees were  there
\nseeking\t to.  enforce a contract of  personal  service,\t but
\ntheir  grievance which was accepted by the Court,  was\tthat
\nthe order terminating their services was a nullity as it had
\nnot been effected in terms of the statute.  In our  opinion,
\ntherefore,   this    decision\tdoes   not    support\t the
\ncontention of the respondent.\n<\/p>\n
    Mr.\t Iyengar  referred us also to the decision  of\tthis
\nCourt  in The State of Uttar Pradesh v. Babu Ram  Upadhya<\/a>(1)
\nbut that decision need not detain us because that deals with
\na   member  of\tthe  public  service  who  has\tbeen   given
\nprotection under  the Constitution.  Such cases stand apart.
\n    Mr.\t Iyengar  referred  us to a decision  of  a  learned
\nSingle\tJudge  of the Gujarat High Court  reported  as\tTata
\nChemicals Ltd. v. Kailash(2).  The question that arose\t for
\nconsideration\twas  regarding the validity of an  order  of
\ndismissal  by  an employer of an employee contrary  to’\t the
\nstanding  orders.  The\tlearned Judge has expressed the view
\nthat a breach of the standing orders constitutes a breach of
\na statutory provision and  therefore  the order of dismissal
\nis a nullity.  It is not necessary for\tus  to consider\t the
\ncorrectness of that  decision  because\tthe  dispute between
\nthe  parties in that case arose under Industrial Law and  we
\nhave  already pointed out that one of the exceptions to\t the
\nCommon\tLaw  is\t under\tIndustrial  Law\t where\tLabour\t and
\nIndustrial Tribunals have jurisdiction to compel an employer
\nto employ a worker whom he does not desire to employ.
\n    Having due regard to the principles discussed above.  we
\nare  of\t opinion that the High Court was  not  justified  in
\ngranting the declaration that the order dated March 10, 1964
\ndismissing the
\n(I) [1961] 2 S.C.R. 679.    (2) A.I.R. 1964 Gujarat 265.\n<\/p>\n
269<\/span><\/p>\n
respondent  from  service is null and void and\tthat  he  is
\nentitled to be reinstated in service with full pay and other
\nemoluments.  As pointed out by us, the regulations are\tmade
\nunder the power reserved to. the Corporation under s. 54  of
\nthe Act.  No doubt they lay down the terms and conditions of
\nrelationship between the Corporation and its employees.\t  An
\norder made in breach of the regulations would be contrary to
\nsuch terms and conditions, but would not be in breach of any
\nstatutory  obligation, as was the position which this  Court
\nhad to deal with in the Life Insurance Corporation  Case(1).
\nIn  the instant case, a breach\thas  been committed  by\t the
\nappellant of regulation 16(3) when passing the said order of
\ndismissal,   inasmuch as the  procedure\t  indicated  therein
\nhas  not  been\tfollowed.  The Act does\t not  guarantee\t any
\nstatutory  status to the respondent, nor does it impose\t any
\nobligation on the appellant in such matters.  As to  whether
\nthe  rules  framed under s. 52 deal with any  such  matters,
\ndoes  not  arise  for  consideration in\t this  case  as\t the
\nrespondent has not placed any reliance on the rules and\t  he
\nhas  rested his\t case  only on regulation 16(3).  It is\t not
\nin dispute that, in  this  case,  the authority who can pass
\nan  order  of  dismissal has passed the\t same.\tUnder  those
\ncircumstances a violation of regulation\t 16(3),\t as  alleged
\nand established in this case, can only result in the order
\n    of\tdismissal  being  held to  be\twrongful   and,\t  in
\nconsequence,  making the appellant liable for damages.\t But
\nthe   said   order cannot be held to be one  which  has\t not
\nterminated the service, albeit wrongfully, or which entitles
\nthe  respondent\t to ignore it and ask for being\t treated  as
\nstill in service.  We are not concerned with the question of
\ndamages,  because  no  such  claim  has\t been  made  by\t the
\nrespondent in these proceedings.\n<\/p>\n
    In\tthis view, the judgment and the decree of  the\tHigh
\nCourt. in so far as they declare that the order dated  March
\n10, 1964 is null and void and that the respondent  continues
\nto  be\tin the service of the appellant, are set  aside\t and
\nthis  appeal allowed, to that extent.  In the  circumstances
\nof the case,  there will be no order as to costs.\n<\/p>\n
V.P.S.\t\t\t\t     Appeal allowed.\n(1) [1964] 5 S.C.R. 528.\n270<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Executive Committee Of U.P. State … vs Chandra Kiran Tyagi on 8 September, 1969 Equivalent citations: 1970 AIR 1244, 1970 SCR (2) 250 Author: C Vaidyialingam Bench: Vaidyialingam, C.A. PETITIONER: EXECUTIVE COMMITTEE OF U.P. STATE WAREHOUSINGCORPORATION, LI Vs. RESPONDENT: CHANDRA KIRAN TYAGI DATE OF JUDGMENT: 08\/09\/1969 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-234551","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nExecutive Committee Of U.P. 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