SDU TRAVELS PVT. LTD. Vs. VIPIN SHARMA

JUDGEMENT

(1.) This first appeal under Order 43 Rule (1)(r) of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit against the impugned order dated 14.3.2017 by which the trial court has allowed the application under Order 39, Rule 1 and 2 Civil P.C. filed by the respondent/plaintiff. By allowing the application, effectively, the trial court has directed continuation of service in private employment of the respondent/plaintiff with the appellant/defendant. The operative portion of the impugned order dated 14.3.2017 is not happily worded, however, the effect of the impugned order is not only to continue contract of private employment in spite of the same being terminable by a three months notice period, the impugned order also results in granting of the final relief by way of impugned interim order:- "In consideration of above, the defendant is directed to conduct proper inquiry as per clause 22 of the appointment letter. It is also to be noted that subsequent to e-mail dated 17.02.2017 by the defendant, there is another e-mail dated 04.03.2017 intending to terminate the employment henceforth on payment of salary for three months. Both the e-mails above, which would cast misconduct on the plaintiff cannot be made operative without following clause 22 of the appointment letter as rights of the plaintiff would be prejudiced. A prima-facie case is made out in favour of the plaintiff, therefore, the operation of the notices are stayed and the defendant is directed to follow the procedure as per the terms and clauses of the appointment letter. In view of above discussion, application under Order 39, Rule 1 & 2 Civil P.C. disposed off and nothing herein shall tantamount to my expression of opinion on merits of the case. In consideration of above, written statement be filed within three weeks with copies exchange. Put up for filing of replication, original documents, admission-denial of documents and framing of issues on 27.04.2017. (Ms. Vineeta Goyal) ADJ-03(South)/Saket/New Delhi 14.03.2017"

(2.) The subject suit was filed by the respondent/plaintiff for declaration, mandatory injunction and permanent injunction seeking continuation of the respondent's/plaintiff's services as a Grade M2 Manager. The issue in the suit was a challenge by the respondent/plaintiff to the termination of services of the respondent/plaintiff by the appellant's/defendant's e-mail dated 17.2.2017 as also by another e-mail dated 4.3.2017. The relief clauses of the suit filed by the respondent/plaintiff read as under:-

(3.) There is no dispute that the contract between the parties is a contract of private employment i.e a contract is not a contract of public employment i.e a contract of the respondent/plaintiff offering any services to an entity which is a State under Art. 12 of the Constitution of India. With respect to private contracts of personal service it is settled law that contracts of personal service are not enforceable. This conclusion is derived from a reading of Sec. 14 of the Specific Relief Act, 1963. Once there cannot be a decree for specific performance of a contract of personal service no injunction can be granted which has the effect of continuing the personal service vide Sec. 41(e) of the Specific Relief Act. Therefore, in contracts of personal service which fall under the realm of private contracts and not public contracts, even if there is a breach of contract the maximum entitlement of an employee is for damages i.e not for specific performance of continuation of the contract of service.