UNNIKRISHNAN Vs. DHANALAKSHMI BANK LTD

JUDGEMENT

(1.) The plaintiff is the appellant. While working as Assistant Manager in the Hospital Road Branch of the third respondent bank, the plaintiff was charge sheeted for forging a draft for a sum of Rupees One Crore and pending enquiry into the charge, he was placed under suspension on 30.9.1985. Subsequently a domestic enquiry was conducted and the Enquiry Officer found the appellant guilty of the misconduct levelled against him. The Disciplinary Authority accepted the finding of the Enquiry Officer and the appellant was dismissed from service. The appeal filed before the Appellate Authority was also dismissed. Thereupon, the appellant filed OS No. 143 of 1988 before the Sub Court, Ernakulam for a declaration that the order of dismissal dated 25.8.1987 passed against him and confirmed by the Appellate Board in order dated 19.1.1988 are null and void and that he is continuing in the service of the third respondent bank (hereinafter referred to as 'the bank') and for a consequential injunction restraining the bank from forfeiting the amounts due to him as Provident Fund and gratuity. The bank entered appearance contending inter alia that the suit is not maintainable on the principle that a contract of personal service cannot be specifically enforced. It is further pleaded that the domestic enquiry was conducted strictly in conformity with the principles of natural justice and the findings entered therein are not liable to be interfered with by the civil court. The Trial Court on appreciation of evidence held that the suit is maintainable, but all the same, non suited the plaintiff by holding that he is not entitled to a declaration as prayed for since the enquiry was conducted by the bank strictly in conformity with the principles of natural justice. On appeal, the lower Appellate Court held in para 8 of the judgment after a review of various decisions of the Supreme Court touching on the subject viz (Executive Committee, U.P. Warehousing Corporation v. Chandra Kiran Tyagi - 1969 (2) SCC 838 , Bank of Baroda Ltd. v. Jeewan Lal Mehrotra - 1970 (3) SCC 677 , Indian Airlines Corporation v. Sukhdeo Rai ( 1971 (2) SCC 192 ), Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others, AIR 1976 SC 888 , Nandganj Sihori Sugar Co. Ltd., Rae Bareli and another v. Badri Nath Dixit and others - 1991 (3) SCC 54 and Saumyendra Nath Mookerjea v. ANZ Grindlays Bank, Bombay - 1992 (2) LLJ 512 ) that the suit is not maintainable and in that view, dismissed the appeal without going into the further question as to whether the appellant is entitled to a declaration as prayed for. Hence this Second Appeal.

(2.) Having heard learned counsel on both sides, I am not satisfied that any substantial question of law arises for consideration warranting interference with the judgment and decree of the court below. It is well settled that a contract of personal service cannot 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 continued 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 Art.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. The appellant has no case that he belongs to either of the above three categories. He is neither a Government servant nor an industrial employee nor an employee of a statutory body in which event, he will not be entitled to a declaration that he continues in service notwithstanding his dismissal. Even if it is found that the termination is illegal, the remedy of the appellant is to sue for damages for wrongful termination of service in contravention of the conditions of service. Admittedly, the suit is laid for a declaration that the appellant continues in service and not for damages. On the principles discussed above, the appellant is not entitled to the declaration as prayed for. The relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the appellant cannot claim it as of right. While exercising the discretionary powers, the court has to keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not the object which can be administered in vacuum. See in this connection Vaish Degree College v. Lakshmi Narain (AIR 1976 SC 888 ) cited supra. The lower appellate court was right in holding that the suit is not maintainable and dismissed the appeal as such. The finding does not call for interference. At any rate, no substantial question of law arises for consideration in this Second Appeal. In the result, the judgment and decree of the lower appellate court are hereby confirmed and the Second Appeal dismissed. However, I make it clear that the dismissal of this appeal will be without prejudice to the appellant's right to sue the bank for damages for the alleged wrongful termination of his service. No order as to costs.