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The British India v. D.R.Dogra - SECOND APPEAL No. 1523 of 1990 [2005] RD-AH 6216 (22 November 2005)


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Court No. 23

Second Appeal No. 1523 of 1990

The British India Corporation Ltd.  

Cawnpore Woollen Mills, Branch Kanpur, and another       ...................Appellants


Sri D.R. Dogra and another                                                  ..............Respondents

Hon'ble Umeshwar Pandey, J.

Heard Sri V.K. Tewari, learned counsel for the appellants and Sri R.K. Mishra holding brief of Sri J.N. Singh, learned counsel for the respondents.

This second appeal arises out of the judgment and order dated 31.8.1990 passed by the 13th Additional District Judge, Kanpur Nagar.

The respondent-plaintiff filed a suit for declaration that the termination of his service as Assistant Electrical Engineer with the defendant-British India Corporation Ltd.  w.e.f. 20.8.1979 is illegal and ultra-virus and he is still continuing in service. The plaintiff was in service with the defendant-appellant since 1955 and from time to time he was receiving his promotion in different capacities namely supervisor in electrical department and as Assistant Engineer (Electrical) with due increase in his salary. Lastly, he was receiving salary of Rs.1312.50 per month. He had been awarded for commendable service during his tenure of service with the defendant. During continuance of his service, he had made certain complaints against illegal, arbitrary and highhanded action of the Technical Advisor and Chief Engineer, who were supervising his work and were appointing authorities.  They were biased against him and as such, notice of termination was served by them to the plaintiff-respondent on 20.4.1979 (notice dated 13.4.1979) stating that his service was no longer required and he was seized to work by virtue of that termination notice w.e.f. 20.8.1979. The plaintiff also alleged that the notice is defective and he was not given any opportunity to show cause for his defence. He was a workman in the defendant-company and industry within the meaning of Industrial Disputes Act (here-in-after referred to as the 'Act'). Since the services were terminated illegally and without following the provisions of law, the relief aforesaid for declaration was sought.

The suit was contested by the defendants-appellants and a written statement was filed inter-alia pleading that the plaintiff's service is within the service contract and under the terms of the said contract he was entitled to one month notice and he was given four months' notice, where-after only his services came to an end. The plaintiff was not a workman within the meaning of said Act on account of his being a member of Senior Staff Working in supervisory capacity and drawing Rs. 1312.50 per month as his salary. The termination notice is perfectly valid. The provisions of Article 311 of Constitution of India or the provisions of the said Act are not applicable in the case of plaintiff and the termination notice is not hit by Sections 20-A and 25-G of the same Act. The plaintiff was not entitled for any relief under the Specific Relief act and the suit is misconceived.

On the pleadings of the parties, the trial court had framed certain issues and had decided it on the basis of evidence led before it. The suit was dismissed by the trial court on the basis that the provisions of the said Act or that of the Constitution of India (Article 311) are not applicable in the case. It was further held that the suit was barred by the provisions of Sections 14 and 34 of the Specific Relief Act. The service of the plaintiff-respondent being within a contract, it could not be enforced being barred under Section 14 of the Specific Relief Act and the relief for declaration, as provided under Section 38, thus, could not be granted.

The 1st Appellate Court in its judgment had, however, reversed the judgment of the trial court  and had decreed the suit even after holding that the plaintiff was not a workman within the Act. The terms of services within the contract were covered under the Industrial Employment (Standing Orders) Act, 1946 (here-in-after referred to as '1946 Act') and as such, he could seek the relief of declaration under Section 34 of the Specific Relief Act. Thus, the suit was decreed and the relief of declaration was granted  in favour of the respondent-plaintiff by the impugned judgment.

Aggrieved with the aforesaid judgment and decree passed by the 1st Appellate Court, the appellants-defendants have come up in this appeal.

While admitting this appeal, the following substantial question of law requiring decision by this court was framed:

"Whether the suit was at all cognizable by the Civil Court and also whether the appellant could be taken to be a statutory body when the termination of employment of the plaintiff-respondent took place"

In the arguments advanced by the learned counsel for the parties, it is not disputed that the defendant-British India Corporation Ltd., Kanpur, was not taken over by the Central Govt. of India by the time the cause of action for this suit in the year 1979, arose. It was taken over only in the year 1981. No doubt, the defendant was industrial establishment within the meaning of Industrial Disputes Act, 1947, but the provisions of the Act in the case of the plaintiff could be applicable regarding his service only if he could be held to be a workman within the meaning of the said Act. The lower Appellate Court has very specifically in its impugned judgment held that the respondent-plaintiff was not a workman within the meaning of Section 2 (s) of the Act, as he was working in supervisory and administrative capacity with a monthly pay of Rs. 1312.50  at the relevant time. Still the order of termination of the plaintiff has been held to be one not covered within the ambit of service contract existing between the parties but he termed it as one being within the ambit of provisions of 1946 act. While challenging this finding recorded by the lower Appellate Court, the learned counsel for the defendant-respondent has tried to emphasis that 1946 Act is also applicable only in case the plaintiff could be held to be a workman; otherwise there would be no application of the provisions of this 1946 Act in his case. Learned counsel has drawn my attention to the preamble of 1946 Act, which reads as below:-

"Whereas it is expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them"

On the basis of the aforesaid preamble, it has been stressed that the provisions of even this 1946 Act, would not be applicable in the case of plaintiff, if he is not covered within the meaning of workman, as given within 1946 Act, which is identical to the definition contained in the Industrial Disputes Act, 1947. Learned counsel  has also pointed out that the definition of workman, after amendment in this 1946 Act, has been made the same, as it is in 1947 Act. However, at the relevant time the definition, as contained in Section 2 (i) of 1946 Act, would be applicable in the present case. For ready reference it is given as below:-

"(i) "workman" means any person (including an apprentice) employed in any industrial establishment to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, but does not include any such person-

(i)who is subject to the Army Act, 1950 (46 of 1950) or the Air force Act, 1950 (45 of 1950) or [the Navy Act, 1957 (62 of 1957); or

(ii)who is employed in the police service or as an officer or other employee or a prison; or

(iii)who is employed mainly in a managerial or administrative capacity; or

(iv)who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]"

It is not disputed that the plaintiff-respondent was drawing his salary above Rs. 1300/- per month in the year 1979 when his service on its termination came to an end. Therefore, if he was working in a supervisory capacity with the defendant and was drawing the aforesaid pay, the definition of workman as given in 1946 Act, would not cover him.

Learned counsel representing the respondent-plaintiff has tried to emphasise that the nature of work, as performed by the plaintiff, has to be assessed and then only to decide if he was a workman or working in a supervisory and administrative capacity with the defendant-corporation. In this context, he has placed reliance upon the case law of S.K. Verma Vs. Mahesh Chandra and another, (1983)4 S.C.C. 214 and also the case law of Arkal Govind Raj Rao Vs. CIBA Geigy of India Ltd., Bombay, (1985) 3 S.C.C. 371.

 In both the aforesaid cases, the Hon'ble Apex Court has gone into the nature of the duty performed by the persons claiming themselves to be workmen within the meaning of Industrial Disputes Act and the whole gamut of the work performed by them have been taken into consideration while deciding their status as workman. Here in the present case, the plaintiff himself in his pleadings  has admitted that in the year 1960, he was promoted as Supervisor in the electrical department and in his evidence before the court he has further admitted that in October, 1969, he was promoted as Electrical Engineer in the establishment. Therefore, in any case the status of the respondent-plaintiff was not below that of an Asstt. Engineer, who does not perform the duties of an electrical labour or a mechanic in the said department. His job is definitely that of superior, which is performed by an Engineer, as such, the aforesaid case laws, as cited by the learned counsel, have absolutely no application to the facts of present case. Therefore,  while holding the post of Electrical Engineer, plaintiff's duties in the defendant-corporation was definitely in supervisory capacity and he was drawing over Rs. 1300/- per month as his salary at the relevant time in the year 1979. Since his status was of such nature while working with the defendant, he would not be covered within the meaning of workman, as the persons holding such status in the industrial establishment, are excluded from the workmen in the given definition. Thus, once the respondent-plaintiff has been held not to be a workman even by both the courts and also as held above, the provisions of 1946 Act or 1947 Act cannot be attracted for granting the relief, as has been claimed in the present suit. Nor it could be legally held that the appellant defendant was a statutory body at the relevant time and date.

Section 14 of the Specific Relief Act, 1963, contains certain bars of the suit with regard to its cognisability. The provision for ready reference is extracted as below:-

14. Contracts not specifically enforceable. -- (1) The following contracts cannot be specifically enforced, namely--

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details or which is so dependant on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

(c) a contract which is in its nature determinable;

(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

A perusal of the aforesaid Section 14 of the Specific Relief Act, shows that it does not speak specifically about the bar for a suit for specific performance of contract of a personal service, as it was there in the old Specific Relief Act, 1877. However, in case of Sirsi Municipality by its President, Sirsi Vs. Cecelia Kom Francis Tellis, AIR 1973 S.C. 855 and Vaish Degree College Vs. Lakshmi Narain, AIR 1976 S.C. 888, the Hon'ble Apex Court has repeatedly held that the cases of dismissal of a servant working under the contract of the employment, the court in a suit for specific performance cannot grant a decree and contract of the employment was not capable of founding a declaratory judgment of subsistence of this employment. A declaration of unlawful termination of service and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of employment for personal service. Such declaration is not permissible under the law of Specific Relief Act. In the case of Vaish Degree College (supra), para-17 of the judgment at page 897 is very relevant and is quoted as below:-

"On a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot  ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognized 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 or violation of the mandatory provisions of the statute."

Though, there is no specific bar of such suit for relief of specific performance of contract of personal service within the contemplation of Section 14 of the Specific Relief Act but the settled view of the Hon'ble Court are such, which did not permit to deviate from this proposition that the specific performance of contract of personal service is not enforceable and that even the relief for declaration of subsistence of such employment under contract is not to be similarly granted by the courts. Such suit for specific performance or for declaratory relief are definitely barred within the settled principle of law settled by the Hon'ble Apex Court.

In Vaish Degree College (supra), the principle, as laid down in the case of D. Francisco Vs. Barunm, (1890) 45 Ch.D. 430, has been adopted by the Apex Court, while laying down the aforesaid principle in a suit of declaratory relief or specific relief of contract  in such matters.

Learned counsel for the respondent-plaintiff, while replying to the submissions made from the side of the appellants, has drawn my attention to the observation made by Hon'ble P.N. Bhagwati, J. at page 902 in the judgment of Vaish Degree College (supra) and has tried to emphasise that after omission of the illustration of Section 21(b) of the old Specific Relief Act, 1877, this aspect of the matter of specific performance of a contract for employment of personal service may require reconsideration by the Apex Court. Learned counsel has also emphasised that in all the cases, where relief is sought for employment of personal service, such relief should not be refused. He has also referred to the observation of para-17, quoted above, where the Hon'ble Apex Court has held that "it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer."

Learned counsel has, thus, stressed that ordinarily the courts will not enforce such relief of contract of employment of personal service but in all cases such relief should not be refused. So far as the present case at hand is concerned, I do not find it to be such an exceptional case where this court beyond the settled view of the Apex Court  should go to hold that this would a case where interference of the court is required. The evidence, as has come before the trial court, is that the plaintiff-respondent had absented himself from the duties and that has brought an occasion of his termination from the service after due notice under the contract. Since the backgrounds are such, the court would be loath enough to give indulgence of granting the discretionary relief, which under the settled law of the highest court of this country, is not generally given.  As such, I feel that it is not a case where this court should make a departure from the settled view in such matters.

In the aforesaid view of the matter, it is found that the lower appellate court  has grossly erred in holding that the provisions of Industrial Employment (Standing Orders) Act, 1946, has actually provided jurisdiction to the court to entertain the suit for granting relief of declaration of subsistence of employment of personal service of the plaintiff under the contract. The plaintiff respondent, if was not a workman, as held by the lower appellate court, there was obvious reason and justifiable grounds for the trial court for dismissing the suit and there was no occasion for the appellate court to have reversed the judgment of the trial court. In such circumstances and with such established view of law, I feel just and proper to hold that the lower appellate court should not have taken cognizance of such a suit and the only option available for, was to dismiss it. The judgment of the lower Appellate Court, thus, requires interference in this appeal.

In result, the appeal is allowed. The impugned judgment dated 31.8.1990 passed by the 13th Additional District Judge, Kanpur Nagar, is hereby set aside and the judgment rendered by the trial court is restored.




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