M/S. PEARLITE LINERS PVT. LTD. versus MANORAMA SIRSI

ARUN KUMAR, J. The respondent filed a suit for declaration and permanent injunqion against the appellant with the following prayers :

p. 268, margin F

"(a) declaring that the transfer order of the plaintiff dated 11.1.86 issued by the secretary of the first defendant company from its Head Office to the Shankar Rice Mill Godown, Shimoga belonging to M/ s. Bharath Founders is illegal void and inoperative and further declare that the plaintiff is to be in the service of the first defendant company and she is entitled to all the emoluments including her salary.

p. 268, margin F

(b) for permanent injunction restraining the defendants from holding any enquiry against the not complied with the order of transfer guilty of insubordination etc. as

pp. 268–269, margin H

17-1-87 and enquiry indicated

p. 269, margin A

The appellant while denying the an objection that the Civil Court had no court framed various issues in the suit. purpose is :

p. 269, margin A

"Issue No 5 : whether defendant no jurisdiction to try .the suit."

p. 269, margin B

The trial court decided the said held that the court had no jurisdiction maintainable and the plaint was liable respondent-plaintiff against the said judgment unsuccessful. The judgment of the trial court the appellate court while dismissing the a regular second appeal against these judgments. High Court held that the defendant had maintainable before the Civil Court. The of the suit on merits in accordance with present appeal against the judgment of Briefly the facts are :

p. 269, margin C

That the plaintiff was appointed 1976 on a monthly salary of Rs. 535 as a as an Officer with a monthly salary of plaintiff was transferred from the head its sales-office-cum-godown located Shimoga. The said office is within the plaintiff the location of the office was not were available at ihe said office. The transfer order and continued to be unauthorisedly January, 1987, a charge sheet was issued give any reply. The present suit was filed to the defendant the prayers in the suit contract for personal service, a relief Therefore the legal question for consideration which arises is : ''Can a contract of service be specifically enforced?"

pp. 269–270, margin E

The relationship between the parties.is based on a contract between two private parties. Admittedly, there is no written contract. If there had been a written contract, it would have contained terms and conditions governing the relationship between the parties. lnspite of absence of a written contract governing the relationship between the parties, respondent-plaintiff challenged the transfer order by filing the present suit. She raised several grounds in this behalf including that the transfer was illegal as it was to a different Company. The transfer was to a lower post which means it is by way of punishment. Further accor.ding to the plaintiff the place to which she had been transferred was not suitable to work at. The defendant denied all these allegations in the written statement. Apart from challenge to the transfer order, the plaintiff sought a declaration that she continued to be in service of the defendant and was entitled to all emoluments including salary. Further an injunction was prayed to restrain the defendant from holding inquiry against the plaintiff. Significantly, no prayer for damages for breach of contract was made in the suit.

p. 270, margin A

Learned counsel for the appellant argued that the prayers in the suit seek reinstatement of the plaintiff as an employee of the defendant Company which really amounts to specific performance ofa contract of personal service which is specifically barred under the provisions of the Specific Relief Act. It is a well settled principle of law that a contract of personal service cannot be specifically enforced and a court will not give a declaration that the contract subsists and the employee continues to be in service against the will and consent of the employer. This general rule of law is subject to three well recognised exceptions---{i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach of violation of the mandatory provisions of the statute. [Per Executive Commi//ee of Vaish Degree College, Shamli and Ors. v. lakshmi Narain and Ors., [19"i6) 2 SCC 58.

p. 270, margin D

The present case does not fall in any of the three exceptions. It is neither a case of public employment so as to attract Article 311 of the Constitution of India nor the case is under the Industrial Disputes Act. The defendant is not a statutory body. There is no statuie governing her service conditions. The present is a case of private employment which normally would be governed by the terms of the contract between the parties. Since there is no written contract between the parties, the dispute cannot be resolved with reference to any terms and conditions governing the relationship between the parties. The plaintiff has neither pleaded nor there has been any effort on her part to show that the impugned transfer order was in violation of any term of her employment. In the absence of a term prohibiting transfer of the employee, prima facie the transfer order cannot be called in question. The plaintiff has not complied with the transfer order as she never reported for work at the place where she was transferred. As a matter of fact, she also stopped attending the office from where she was transferred. Non-compliance of the transfer order by the plaintiff amounts to refusal to obey the orders passed by superiors for which the employer can reasonably be expected to take appropriate action against the concerned employee. Even though it is a case of private employment, the management proposed to hold an enquiry against the delinquent officer, that is, the plaintiff. In case of su.ch insubordination, termination of service would be a possibility. Such a decision purely rests within the discretion of the management. An injunction against a transfer order or against holding a departmental enquiry in the facts of the present case would clearly amount to imposing an employee on an employer, or to enforcement of a contract of personal service, which is not permissible under the law. An employer cannot be forced to take an employee with whom relations have reached a point of complete loss of faith between the two.

pp. 270–271, margin G

Let us now examine the prayers in the suit in the light of averments contained in the plaint. It is stated in Para 6 of the plaint that the Secretary of the Company warned her about her timings and issued a memo about her attendance. He demanded her resignation on 15th December, 1983. She did not resign as per the request. It is fu11her stated in Para 7 that "she was discriminated against in the matter of providing incentives in May, 1985 .............. She gave a representation to the Directors establish.men! to. consider this aspect of the matter. Secretary in his reply dated 23rd May, 1985 abused her that she was not working properly .......... " In Para 8, it is stated that the Secretary fu11her issued her a notice stating that she had not worked for two years. Then follows the impugned transfer order dated I Ith January, 1986. The plaintiff has further alleged that her representation against the said transfer order was not considered. This was followed by a notice to conduct a11 enquiry against the plaintiff. In the background plaintiff has in the suit made the following prayers :

pp. 271–272, margin E

"(a) Declaring that the impugned transfer order and inoperative.

p. 272, margin A

(b) The plaintiff continues to be in service Company and is entitled all emoluments including

p. 272, margin B

(c) Pemianent injunction restraining the defendant an enquiry against the plaintiff.

p. 272, margin B

The question arises as to whether in the background stated can such reliefs be granted to the plaintiff. Unless the contrary in the contract of service, a transfer order is of se~vice. Further it is to be considered that if the plaintiff with the transfer order it may ultimately lead to termination Therefore, a declaration that the transfer order is illegal amounts to imposing !he plaintiff on the defendant inspite plaintiff allegt:dly does not obey order of her superiors of the defendant Company. Such a relief cannot be granted. in the plaint is for a declaration that she continues to be defendant Company. Such a declaration again amounts to of personal service which is barred under the law. The third the plaintiff is a permanent injunction to restrain the defendant an enquiry against her. If the management feels that complying with its directions it has a right to decide against her. The management cannot be restrained from exercising in this behalf. Ultimately, this relief if granted would indirectly cou11 is assisting the plaintiff in continuing with her employment defendant Company, which is nothing but enforcing a contract service. Thus, none of the reliefs sought in the plaint can plaintiff under the law. The question then arises as to whether should be allowed to continue and go for trial. The answer clear, that is, such a suit should be thrown at the threshold. which is bound to be dismissed for want of jurisdiction the reliefs prayed for, to be tried at all? Accordingly, we court was absolutely right in rejecting the plaint and the lower rightly affirmed the decision of the trial comt in this behalf. was clearly in en-or in passing the impugned judgment whereby

p. 272, margin C

273 •--t restored and remanded to the trial court for being decided on merits. The A judgment of the High Comt is hereby set aside and the judgments of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit stands rejected.

p. 273

The appeal is allowed. The parties are, however, left to bear their respective costs. B

p. 273

N.J. Appeal allowed. 11

p. 273