in A.S.No.828/2009 and 1st respondent in A.S.No.829/2009
2.The Executive Council of Hebron Schools Association, Udhagamandalam,Tamilnad, Represented by its Chair Person.
3.The Principal M/s.Hebron School, Udhagamandalam, Tamilnad. ...Respondents 2 and 3 in A.S.No.829/2009 These two Appeal Suits have preferred under section 96 of the Code of Civil Procedure against the common judgment and decrees dated 28.04.2009 made in O.S.Nos.21 of 2007 and O.S.No.42 of 2007 on the file of the District Judge, Nilgiris at Udhagamandalam.
These Appeal Suits were filed under Section 96 of the Code of Civil Procedure, challenging the common judgment and decree dated 28.04.2009 in O.S.No.21 of 2007 and O.S.No.42 of 2007 on the file of the District Judge, Nilgiris at Udhagamandalam.
2. Heard the arguments of Mr.S.Periyasamy leading Mr.P.Anbarasan, learned counsel for the appellant and Mr.S.K.Rakhunathan, learned counsel for the respondents.
3. O.S.No.21 of 2007 was filed by the 1st respondent/plaintiff for possession of the flat with furniture described in the plaint and for recovery of damages at the rate of Rs.200/- per day from the date of the plaint till the date of realisation from the appellant/defendant and for costs.
4. The appellant filed a suit against the defendants before the Court of District Munsif at Udhagamandalam in O.S.No.238/2006, praying for a declaration, declaring that the enquiry proceedings initiated against him was illegal, null and void and for further declaration that the School Management was not justified in curtailing the sabbatical leave of the appellant and for the cancellation of the residential status and for a permanent injunction restraining the School Management from disturbing the peaceful access and enjoyment of the premises which is more fully described in the plaint Schedule. Subsequently, the plaint was also amended at his instance and several other reliefs were also sought for. The said suit in O.S.No.238/2006 was ordered to be transferred and taken on file as O.S.No.42/2007 on the file of District Judge, Nilgiris and thereafter, the plaint was also amended and the amended copy of the plaint was filed.
5. A written statement and re-joinder in one suit and written statement and additional written statements in the other suit being filed by the respective parties. On a memo being filed by both parties, two suits were tried together and a common judgment was pronounced.
6. Before the Trial Court, the appellant examined himself as D.W.1. On the side of the Management three witnesses were examined as P.W.1 to P.W.3. The appellant who was shown as defendant filed 17 documents and were marked as Exs.B1 to B17. On the side of the respondent/ School Management, 14 documents were filed and were marked as Exs.A1 to A14.
7. The Trial Court by a common judgment dated 28.04.2009 decreed the suit in O.S.No.21 of 2007 and directed the appellant to vacate and deliver the flat with furniture and also with further direction to pay Rs.5,000/- per month as damages which included electricity and water consumption charges for the use of the flat from the date of plaint i.e. 04.04.2007 to till the date of delivery of possession of the flat with furniture. In O.S.No.42 of 2007 filed by the appellant, the suit was dismissed.
8. Aggrieved by the common judgment and the decrees, the appellant has filed the two appeals.
9. In the suit filed by the School Management in O.S.No.21 of 2007, the plaint averments were as follows:-
The School was registered as an Association. The appellant joined the school in the year 1981 as an Accountant on contract basis. Subsequently, he was appointed as a Public Relations-cum-Liaison Officer on contract basis with effect from 01.10.2003. The contract was for a period of two years and at the expiry of the contract and after evaluation of the performance, the contract will be renewed. At the end of every contract period, employees will be paid 'Contract Completion Allowance'. In the case of the appellant, the contract was renewed on two occasions i.e. for the period from 01.01.2004 to 01.01.2006 and thereafter from 01.01.2006 to 01.01.2008. On each renewal, the appellant received the 'Contract Completion Allowance'. On 01.03.2007, the School terminated the services of the appellant and gave a cheque for Rs.46,300/- being the salary for three months in lieu of notice. The appellant was asked to vacate the Flat as per the terms of the contract. When he failed to vacate the Flat, the said suit was filed claiming for possession and for recovery of damages at the rate of Rs.200/- per day.
10. The appellant in his Written Statement filed in O.S.No.21 of 2007 denied these averments. He further stated that he was not appointed on contract basis. He was regularly promoted from the post of Assistant to that of Accountant and thereafter as a Public Relations-cum-Liaison Officer in December 1999. He was a permanent employee without any break. The contracts were void ab initio. Since the Management made an attempt to terminate his services, he filed a suit in O.S.No.238 of 2006 on the file of District Munsif Court at Udhagamandalam. In that suit, in I.A.No.1019 of 2006, an ex parte order of injunction was granted. In I.A.No.1020 of 2006, a direction was given to conduct a full fledged enquiry. The appellant is deemed to be in continuos service since the termination of service is illegal. The Management has no right to terminate the services of his wife Sarah E.Peters. Both the appellant and his wife are permanent employees and are not liable to vacate the premises.
11. The appellant had also filed additional written statement stating that the present Secretary of the School is also the Principal of Hebron School at Udhagamandalam. Therefore, he cannot be the Secretary of the School being a paid servant of the school. On the basis of these pleadings, the Court below framed 7 issues, which includes the additional Issue No.7.
12. In the suit filed by the Appellant in O.S.No.42 of 2007, a declaratory relief was sought on the basis that the School Management has no right to restrict the sabbatical leave and the enquiry initiated against him was illegal. The cancellation of residential status was also not valid. In the meanwhile, an application I.A.No.341 of 2007 was filed to transfer the suit in O.S.No.238 of 2006 to be heard along with the suit filed by the Management. On such transfer, the suit was re-numbered as O.S.No.42 of 2007 and the plaint was also allowed to be amended.
13. It was further stated that his wife is a British citizen and she joined the school in the year 1983 and worked as house mother and Art Teacher. In the year 1986, he married Sarah E. Peters and they lived int eh premises of the school. Their children are studying in the School. They have got 25 years of long service without any bad remarks. The Asssociation which is running the school comprised of foreigners. The appellant was responsible in exposing several mis-deeds. After availing sabbatical leave, he and his wife went to England on 22.06.2006. When the leave was about to expire, the appellant received a call from the Management that a Board Member one Mr.Don would meet him to deliver something. The said Don met him at England and wanted his signature in an acknowledgment for receiving a sealed envelope. When questioned the details, he was told that it was regarding a complaint given by one Mrs.Gail Newton. He did not sign as requested. Thereafter, he received an E-mail from the Management curtailing his leave and was asked to return to face an enquiry. He was told by the Board Member either he has to leave the school or to face the enquiry. He received a notice to attend the enquiry. The Enquiry Officer did not behave like a neutral person. On 13.12.2006, the appellant was not allowed to enter the house which was under his occupation. The appellant, therefore, filed the suit challenging the enquiry proceedings before the Munsif Court.
14. In the written statement filed by the respondents in O.S.No.42 of 2007, it was stated that suspension made against the appellant was revoked by invoking
Article 1(b) of the Service Contract. Therefore, the suit has become infructuous since the appellant had already been terminated.
15. In the rejoinder filed by the appellant, since an averment was made that the suit had become infructuous and they were seeking for dismissal, he was forced to file the rejoinder. The respondents also filed additional written statement.
16. Based on those pleadings, the Trial Court framed 7 issues. In respect of issue Nos. 1 to 3 in O.S.No.42 of 2007 filed by the appellant, the Court below held that the termination of service of the appellant dated 01.03.2007 was not void ab initio and it was a valid termination. For issue No.2, it was held that the termination of contract was valid and the appellant had only on contractual term of service. In respect of issue No.3, it was held that he is not entitled for any declaratory relief. In respect of Issue No.5, it was held that he was not entitled for grant of permanent injunction. In respect of Issue No.4 in O.S.No.42 of 2007 and Issue Nos.2,3 and 4 in O.S.No.21 of 2007, the Trial Court held that order of injunction obtained by the appellant shall not a bar for granting the relief of recovery of possession of the Flat with furniture.
17. With reference to Issue No.5 in O.S.No.21 of 2007, the Court held that having regard to 25 years of service put in by the appellant in the school, it fixed the damages at the rate of Rs.5,000/- per month. With reference to additional Issue Nos.1 and 7 in O.S.No.21 of 2007, it held that the school was represented by a proper person and that the suit was maintainable. Thus the first suit was held in favour of the school Management and. In respect of the relief claimed by the appellant in the second suit, the same was denied.
18. When the application for interim stay came to be listed before this Court on 28.08.2009, the same was dismissed for want of prosecution. Subsequently, on an application being filed by the appellant, they were restored by an order dated 30.11.2009. In the application for Stay, a counter affidavit was filed by the School Management. With the consent of parties, the main appeals were taken up for hearing.
19. After elaborate arguments on both sides, this Court suggested certain compromise terms for the purpose of arriving at a settlement. Initially, the appellant claimed exorbitant amounts together with his claim for terminal dues for which the school was not willing.
20. Thereafter, on the date of hearing, a memo dated 30.07.2007 was filed by the appellant which may be usefully reproduced:
"The appellant is handing over the key of house to the counsel for the respondent and surrendering the possession today. However, the appellant could not remove his things and all personal belongings (value of Rs.12 lakhs) and may be permitted by the respondent to pack and remove through lorry within one month.
The appellant also requests that the schooling and educational fee for the children of the appellant (which is free as per the terms of the contract) and the rental arrears from 01.03.2007 to till date and also direct the respondents to settle his dues."
21. On taking time on behalf of the respondent, Mr.S.K.Rakhunathan filed the following memo dated 02.08.2010.
"The respondent has received the keys of the house (Suit schedule property in O.S.No.21 of 2007 on the file of the District Court Ootacamund) in the occupation of the appellant on 30th July 2010 in Court. However the appellant has not removed his personal belongings. The respondent is not accepting the statement of the appellant that the value of his personal belongings at Rs.12 lakhs. The request of the appellant to grant one month for removing his personal belongings is not acceptable to the respondent However the respondent is willing to grant 15 days time from 30.07.2010 to the appellant to remove his personal belongings.
The respondent is not waiving the school and educational fees of the children of the appellant and damages awarded by the trial Court in O.S.No.21 of 2007 in view of the termination of the contract with effect from 01.03.2007".
22. As admitted by the appellant, the keys of the house viz.,the suit schedule property in O.S.No.21 of 2007 has been handed over to the counsel for the respondent. In the memo filed by the School, it was stated that the time requested by the appellant cannot be granted but they were willing to give 15 days time and with reference to waiving the school and educational fees of the children and damages awarded by the trial Court they were not giving consent for the same. However, Mr.S.K.Rakhunathan, learned counsel for the School Management fairly submitted that if any reasonable terms are ordered by this Court, they are willing to accept the same.
23. In the grounds of appeal filed by the appellant, it was contended that no permission was taken from the Trial Court which granted injunction from proceeding with the enquiry before terminating the service. The nature of duties performed by the appellant was permanent. The fact of salary being paid directly, PF contribution and the domestic enquiry conducted shows that he was a permanent staff and therefore, the Court below erred in holding that the suit was not maintainable. The court below erroneously held that an injunction by way of specific relief cannot be granted on such contractual matter.
24. The major issue that is to be determined is whether the suit laid by the appellant in O.S.No.42 of 2007 is maintainable. Assuming that there was an interim order directing the Management to conduct fresh enquiry, it does not take away the jurisdiction of the Management from taking recourse to the terms of contract if it is otherwise permissible. If along with the appointment, other facilities and perks are given, it goes without saying that the enjoyment of those perks and facilities will also be coterminous with the terms of appointment. Ultimately, if the suit itself is not maintainable, the question of any further right to continue in the residential quarters and other perks will not be available to a staff. In the present case, the appellant was working in the school only in terms of the contract marked as Ex.A1 dated 01.10.2003. Any breach of the contract can only result in claim for any damages if it is proved that it was a wrongful termination of the contract. A relief of specific performance of contract of personal service as sought for by the appellant is clearly not maintainable.
25. In this context, Mr.S.K.Rakhunathan learned counsel for the respondent relied upon a judgment of the Supreme Court J. Tiwari v. Jwala Devi Vidya Mandir and others reported in (1979) 4 SCC 160. In paragraph 5, the Supreme Court had observed as follows:-
"5. ....Since under those terms the appellants services were liable to be terminated on three months'notice, all that she would be entitled to, even if the dismissal is wrongful, is a decree for damages and not an order of reinstatement or declaration that notwithstanding the termination of her services she continued to be in service. The judgment of this Court in Executive Committee of Vaish Degree College, Shamli v. Lakshmi .N'arain is a direct authority for this conclusion."
26. He also relied upon the judgment of the Supreme Court in Pearlite Liners (P) Ltd. v. Manorama Sirsi reported in (2004) 3 SCC 172 for contending that the contract of service cannot be specifically enforced. The following passage found in paragraph 7 may be usefully extracted below:-
"7. 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 of a 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 Committee of Vaish Degree College v. Lakshmi Narain."
27. It is also necessary to refer to certain other decisions of the supreme Court which may guide the determination of the legal issues raised herein. In Executive Committee, U.P. Warehousing Corporation. v. Chandra Kiran Tyagi reported in (1969) 2 SCC 838, the Supreme Court in Paragraph 23 observed as follows:-
"23. From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognized exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of
Article 311; (2) reinstatment of a dismissed worker under Industrial Law by Labour or Industrial Tribunals; (3) a statutory body when it has acted in breach of a mandatory obligation, imposed by statute."
28. The Supreme Court in Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others reported in (1976) 2 SCC 58 reiterated the same principle. In paragraph 18 and 19, it was observed as follows:
"18. 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 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 or violation of the mandatory provisions of the statute.
19. In view of our finding that the Executive Committee of the college in the instant case was not a statutory body, the present case does not fall within any of the excepted categories mentioned above, and hence prima facie, the plaintiff/respondent is not entitled to any declaration or injunction. The learned Counsel for the respondent, however, placed great reliance on the decision of this Court in Sirsi Municipality case in order to contend that this decision had included within the fold of its exceptions a fourth category, namely, an institution which even though was a non-statutory body, but was a local or a public authority. Reliance was placed particularly on the following observations of Ray, J., as he then was, in that case : [SCC p. 413 : SCC (L&S) p. 210, paras 17, 18] The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute.
In the case of servant of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the statute.
29. Therefore, the finding by the Trial Court in this regard regarding the maintainability of the suit is well founded. Hence, the suit filed by the appellant in O.S.No.42 of 2007 will have to be dismissed as not maintainable.
30. O.S.No.21 of 2007 is for claiming damages for having utilised the flat allotted to the petitioner. The averment that the appellant along with this wife worked for the school for over 25 years and their children also studying in the same school cannot lost sight of. May be the appellant by some wrong advice would have filed the suit for the perpetual injunction. The school in order to safeguard its properties had filed the suit for recovery of possession on getting notice from the Munsif court. In any event, since the appellant on knowing his folly has come forward to hand over the keys, which was also handed over to the counsel for the respondent in the open Court and also that he had vacated the premises and only sought for a short time to remove his things.
31. This Court is of the view that claim for damages for the flat occupied by the appellant may be something like a reprisal. The appellant for reasons best known did not seek for any relief for damages for wrongful termination of his contract in which case a suit would be maintainable. In order to give a quietus to the entire controversy and also the fact that the appellant's wife had worked for a long number of years for the School, this Court is of the view that claim for damages for the flat in which the appellant's family resided need not be sustained. Ultimately the issue will have to be resolved to the satisfaction of both the parties. Therefore, this Court is of the view that the damages claimed by the School Management can be set aside for the gesture of the keys being handed over by the appellant voluntarily and the promise to remove the goods kept inside the flat as per the memo filed by him.
32. In the light of the above, the Appeal in A.S.No.829 of 2009 filed against O.S.No.42 of 2007 stands dismissed. The Appeal in A.S.No.828 of 2009 filed against O.S.No.21 of 2007 will stand allowed. The decree in respect of direction to pay damages with suit costs is also set aside. However, the parties are directed to bear their own costs.
03.09.2010 Index:Yes Internet:Yes svki To The District Court, Nilgiris at Udhagamandalam K.CHANDRU,J.
svki Pre-Delivery Judgment in A.S.Nos.828 and 829 of 2009 03.09.2010