Judgment:
I.A. Ansari, J.
1. By this common judgment and order, I propose to dispose of all the five civil revision petitions, for, all of them involve identical facts and questions of law and, as has been sought for and agreed to by the learned Counsel for the parties, all the civil revisions have been heard together.
2. I have heard Mr. N. Choudhury, learned Counsel for the petitioners, and Mr. N. Dhar, learned Counsel for the opposite party.
3. Put in a narrow compass, the facts leading to the present set of revision petitions may, in brief, be set out as under:
(i) The opposite party herein were all teachers of South Point School, at Silchar, which the present petitioners represent. According to the school management, the appointment of these teachers was subject to a condition that they cannot admit their child in any English Medium School, in the city, unless such admission is refused by the South Point School. Contrary to this condition, which, according to the school management, all the teachers were bound to follow, the present set of teachers admitted their children in different English Medium Schools. Notices were accordingly issued, on 4.5.2005, by the management of the said School informing them that their services would stand terminated with effect from 3.6.2005. This notice was, thus, a notice informing the petitioners that their services would stand terminated on expiry of one month from the date of service of the notice. These teachers, as plaintiffs, then, instituted Title Suit Nos. 55/2005, 56/2005, 57/2007, 58/2005 and 59/2005 in the court of the Civil Judge (Sr. Divn.) No. 1, Silchar, seeking decree for declaration, inter alia, that the notice of termination, dated 4.5.2005, was unjust, improper, unfair, illegal, mala fide, unlawful, inapplicable and not binding upon the parties and that the plaintiffs are not legally bound by any terms and conditions of appointment as contended in the notices aforementioned, for, the said condition of appointment, even if true, is illegal, arbitrary, improper, unjust and against the public policy. The plaintiffs also filed applications, under Order XXXIX, Rules 1 and 2 read with Section 151 CPC, seeking temporary injunction restraining the defendants, i.e., the petitioners herein, from terminating the services of the plaintiffs by giving effect to the notices, dated 4.5.2005, aforementioned till disposal of the suit.
(ii) These applications for temporary injunction gave rise to Misc. Case Nos. 21/2005, 22/2005, 23/2005, 24/2005 and 25/2005. By orders, dated 16.5.2005, passed, in the said miscellaneous cases, learned trial court directed status quo to be maintained by the parties in respect of the subject of dispute until further order. After having received objection against the prayer for temporary injunction, the learned court below heard the learned Counsel for the parties and passed orders, on 30.6.2005, making thereby the orders passed, on 16.5.2005, absolute till disposal of the suit. Aggrieved by the order, dated 30.6.2005, aforementioned, the present petitioners, who were defendants in the suit, preferred appeals. By orders, dated 29.4.2006, passed, in Misc. Appeal Nos. 05/2005, 06/2005, 07/2005, 08/2005 and 09/2005, learned District Judge, Cachar, Silchar, refused to interfere with the order of injunction already granted. It is in these circumstances that the defendants have come to this Court with the help of the present revision petitions.
4. Before proceeding further, it needs to be noted that while it is contended, on behalf of the defendant-petitioners, that granting of injunction in the present case is barred by Section 14 read with Section 41(e) of the Specific Relief Act, 1963, the opposite party, as plaintiffs in the suit, contend that their suit is maintainable and if injunction was not granted, it would have frustrated the suit. In such circumstances, according to the plaintiff-opposite party, the learned courts below committed no error in restraining the management of the said School from terminating the services of the plaintiffs. Countering the submissions so made on behalf of the plaintiff-opposite parties, it is further contended, on behalf of the defendant-petitioners, that at any rate, when Section 41(e) of the Specific Relief Act, 1963, bars the courts from granting injunction to specifically enforce a contract of personal service, the learned courts below committed serious error of jurisdiction in granting injunction.
5. While considering the present set of revision petitions, it is important to bear in mind the distinction between the nature of employment of a government servant, on the one hand, and employment in private sector, which is commonly called private employment, on the other.
6. Though the employment of a Government employee and the employment of a person in a private sector is, originally, contractual in nature, what distinguishes a Government employee from others is that a Government employee acquires, on his appointment to a Government office, a status. As a result of this status, which he acquires, his service conditions are determined on the basis of the relevant provisions of the Constitution and the statute. In consequence thereof, a Government servant's rights and obligations can be determined by the statutory or the constitutional authority concerned and for such exercise of powers, the authority concerned does not, unlike the case of a private employee, require consent from the Government employee concerned. In other words, Government can alter terms and conditions of its employees unilaterally, though, in practice, such alteration may face protest from the employees concerned. This does not, however, mean, I must hasten to add, that the consent of the Government employees is a condition precedent for changing the terms and conditions of his service by the statutory or constitutional authority in terms of the provisions of the relevant statutes and/or the Constitution. A reference may be made, in this regard, to Advocate General of the State of J&K; v. T.N. Khosa : (1974)ILLJ121SC . On the contrary, since a private employee has the choice of agreeing or not agreeing with the terms and conditions of his employment, his relationship with his employer is nothing more than that of a master and servant.
7. Thus, a Government servant's conditions of service are governed by constitutional or statutory provisions, which a Government servant has no option to agree to or differ from; but an employee, in private sector, is free to accept or not to accept the conditions of service offered to him. Similarly, while a Government servant's conditions of service can be changed unilaterally and without his consent, a private employee's terms and conditions of service cannot be unilaterally altered. The relationship between an employer and an employee, other than those, who are Government servants or those, who are appointed by statutory bodies, is largely a relationship of master and servant. Because of such fundamental distinction in the nature of employment between the two protections are provided, in the form of the provisions of Article 311 of the Constitution of India, to the Government servants so that their services are not terminated arbitrarily. As against this, since the condition of service of a private employee is governed by the terms and conditions of his contract, which he may have entered into with his employer at his option, specific performance of such a contract of employment is not possible, for, specific performance of such a contract would involve performance of a continuous duty, which the court cannot supervise. It is for this reason that Section 14(d) of the Specific Relief Act, 1963, makes it clear that a contract cannot be specifically enforced if the performance of the contract would involve performance of a continuous duty, which the court cannot supervise. When a contract cannot be specifically enforced, logical it is to infer that an injunction cannot be granted, which has the effect of specifically enforcing the contract. No wonder, therefore, that Section 41(e) of the Specific Relief Act, 1963, bars the courts from granting injunction to enforce specific performance of contract of personal service. In no uncertain words, states Section 41(e), that an injunction cannot be granted to prevent breach of a contract, the performance of which would not be specifically enforced.
8. In the present set of revision petitions, the question is not whether a person, who is not a Government employee, can challenge termination of his service or not. The limited question, raised in the present revision, is as to whether a court can grant injunction to prevent breach of a contract, performance whereof would not be specifically enforceable. In other words, the question is not as to whether the suit is maintainable, for, even if the suit is maintainable, whether an injunction could have been granted, as in the present case, to prevent breach of performance of contract of personal service is the question, which needs to be answered in this set of revision petitions.
9. While considering the question posed above, it needs to be emphasized that under the common law, courts will not, ordinarily, force an employer to retain the service of an employee, whom he no longer wishes to employ. Hence, when a contract of employment is terminated by the employer, the court cannot declare that the contract of service still subsists, for, the relationship between the employer and the employee, in a case of contractual appointment, stands on the same footing as that of a master and servant and the termination of his employment would not entitle the employee to a declaration by court that his employment has not been validly terminated. This settled principle of law is subject to three well recognized exceptions and these exceptions are : (i) where a public servant has been dismissed from service in contravention of Article 311; (ii) where a reinstatement is sought by a dismissed worker under the industrial law; and (iii) where a statutory body has acted in breach of a mandatory obligation imposed on it by a statute See S.R. Tewari v. District Board, Agra : (1964)ILLJ1SC , Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi reported in : (1970)ILLJ32SC , Airlines Corporation v. Sukhdeo Rai and Bank of Baroda v. Jewan Lola Mehrotra reported in : (1970)IILLJ54SC . Thus, the remedy of a dismissed employee, who does not fall in any of the three categories indicated hereinbefore, lies in suing the employer for damages.
10. Having taken into account a large number of authorities on the subject, the Supreme Court, in Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors. AIR 1976 SC 888, observed and held as follows:
18. On a consideration of the authorities mentioned abdve, 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.
11. From the decision in Lakshmi Narain (supra), it is clear that specific performance of contract of personal service is not possible in law. This rule is, however, subject to three well recognized exceptions as have already been indicated hereinabove. These aspects of the matter have also been succinctly dealt with, and described, in Integrated Rural Development Agency v. Ram Pyare Pandey reported in 1995 LAB. IC. 1636 (SC), which read as follows:
5. The appellant Integrated Rural Development Agency is one registered under Societies Registration Act. It has its own Articles of Association. It has framed its own rules thereunder. There is no plea or material or proof that the appellant-Integrated Rural Development Agency is one constituted under statute or is owned or controlled by the State Government or an instrumentality of the State. The relationship between the appellant-Integrated Rural Development Agency and the respondent is based on contract and is purely one of master and servant. As stated by Jenkins, L.J., in his dissenting judgment, in Vine v. National Dock Labour Board (1956) 1 All ER 1, which was approved in appeal by the House of Lords in (1956) 3 All ER 939:
In the ordinary case of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arise. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be nothing more.
Delivering the judgment of three-member Bench of this court in Nandaganj Sihori Sugar Co. Ltd., Rae Bareli v. Badri Nath Dixit : [1991]2SCR468 Thommen, J. Stated the law, thus:-. (Para 10 of AIR). 'A contract of employment cannot ordinarily be reinforced by or against an employer. The remedy is to sue for damages (See Section 14 read with Section 41 if the Specific Relief Act; see Indian Contract and Specific Relief Acts by Pollock and Mulla, 10th edn. p. 983). The grant of specific performance is surely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence if any statutory requirement, courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer. There are, of course, certain exceptions to this rule, such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution; reinstatement of a dismissed worker under the Industrial Law; a statutory body acting in breach of statutory obligations, and the like. S.R. Tiwari v. District Board, Agra : (1964)ILLJ1SC ; Executive Committee of U.P. State Warehousing Corporation v. C. K. Tyagi : (1970)ILLJ32SC ; Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain (1976) 2 SCC 58 : AIR 1976 SC 888; see Halsbury's Laws of England, 4th edn., Volume 44, paragraphs 405 to 420.
Similarly in Ridge v. Baldwin (1963) 2 All ER 66 : H.L. and Reid stated the law emphatically, thus:
The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question is a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence : It depends on whether the facts emerging at the trial prove breach of contract : But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them.
12. What crystallizes from the above discussion is that when a person's contract of employment is terminated by his employer, he cannot, in the face of the provisions of Section 14(d) read with Section 41(e) of the Specific Relief Act, be allowed to continue in his employment by way of an order of temporary injunction unless such an employee's case falls within any of the three recognized exceptions, i.e., (i) when he is a government servant, whose service conditions are governed by Article 311 or (ii) when his case is governed by industrial or labour laws or (iii) when his employer is a statutory body and termination of his employment is in breach of statutory or legal provisions. The remedy of an employee, who does not fall within the three recognized exceptions, lies in suing his employer for damages if the employee considers the termination of his employment as illegal or contrary to the terms and conditions of the contract of his employment.
13. In the case at hand, the foundation of the right, if any, of the plaintiffs rested on the contract of employment, which they had with their employer. Unless this contract of employment is shown to be governed by any of the exceptions indicated hereinbefore, the termination of their contract cannot give rise to a suit for specific performance of contract and/or for injunction treating the employment as a subsisting one, notwithstanding the termination thereof.
14. Realizing, perhaps, that the relationship between the plaintiffs and the defendants had been that of master and servant and specific performance of such a contract of personal service may not be legally permissible, Mr. Dhar, by referring to Unnikrishnan J.P and Ors. v. State of Andhra Pradesh and Ors. : [1993]1SCR594 has contended that in the light of the decision in Unnikrishnan J.P. (supra), no school can be established or administered unless it is registered as a society. In the present case too, the school must be presumed to be, contends Mr. Dhar, a society registered under the Societies Registration Act, and if it be so, the appointments of the plaintiffs, as teachers, shall be treated as appointments made by a statutory body and such appointments cannot be terminated in the manner as has been done in the present case.
15. While considering the above aspect of the matter, it is pertinent to point out that the scheme and the guidelines, which the Apex Court issued in Unnikrishnan J.P. (supra), were with regard to professional colleges and it is with regard to professional colleges that the Apex Court has held that no professional college shall be permitted to be established or administered except by a society registered under the Societies Registration Act or a public trust registered under the Trust Act, Wakf Act, etc. In the case at hand, the school, in question, is not, admittedly, a professional college. The reference made by Mr. Dhar to Unnikrishnan J.P. (supra) is, therefore, wholly misplaced.
16. Coupled with the above, what is also of immense importance to note is that there is a marked difference between a body or an institution, which is not created under a statute but governed by certain statutory provisions, and a body or institution, which is created by or under a statute and is also governed by statutory provisions. When a body is not created by or under a statute, it is not a statutory body, though it may be governed by certain statutory provisions for proper maintenance and administration. For instance, a company is incorporated under the Companies Act and its performance is governed in accordance with the provisions of the Companies Act. However, since a company is not created under the Companies Act, though registered thereunder, it cannot be regarded as a statutory body. To determine as to whether a given institution is or is not a statutory body, the question to be asked shall be whether or not the institution would exist if the statute ceases to exist. If the answer is that the body or the institution would still survive even if the statute does not exist, the body or the institute cannot be treated as statutory body, for, a statutory body cannot exist in the absence of the statute under which it has been created. In short, thus, there is a difference between a body, which is created by a statute, and a body, which is governed by a statute. A body governed by a statute is not a statutory body. Hence, merely because of a fact that a school is affiliated to by a particular Board of Education, it will not be a statutory body.
17. The above position of law has been made crystal clear in Lakshmi Narain (supra), by the Apex Court in the following words:
It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi : (1975)ILLJ399SC this court clearly pointed out as to what constitutes a statutory body. In this connection my Lord A. N. Ray, C. J. observed as follows: [SCC p. 435 : (L &S;) p. 115, para 25]
A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.
It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words the positions seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body. The High Court, in our opinion was in error in holding that merely because the Executive Committee followed certain statutory provisions of the University Act or the statutes made thereunder it must be deemed to be a statutory body.
18. What emerges from the above discussion is that even if the school, in question, is a school registered under the Societies Registration Act, the school can still not be Regarded as a statutory body and the relationship between the plaintiffs and the defendants still remained essentially that of master and servant and the service of the plaintiffs would not be statutory service, for, their services have not been created under any statute nor are their services governed by any statute. The fact, therefore, that the school, in the present case, is a school, registered under the Societies Registration Act, does not make the services of the plaintiffs specifically enforceable.
19. Drawing attention of this court to Section 23 of the Contract Act, Mr. Dhar has further submitted that the terms and conditions of the service of the plaintiffs are against public policy and for the breach of such terms and conditions, their contract of employment could not have been terminated. Whether the terms and conditions of contract, which existed between the parties to the suit, are or are not against public policy are all questions of fact, which would be decided in the suit. In the present revision, we are only concerned with the question as to whether an injunction can be granted for specific performance of contract of personal service. Since there is a specific bar under Section 41(e) in this regard, recourse cannot be taken by the court to its inherent powers under Section 151 CPC for the purpose of granting an injunction, which is, otherwise, prohibited by law. This aspect of the matter appears to have escaped the attention of the learned courts below. When the law bars the courts from granting injunction in a case of present nature, the court cannot grant injunction on the ground that injunction would frustrate the suit.
20. It has been contended by Mr. N. Dhar that in the learned courts below, the question as to whether Section 41(e) of the Specific Relief Act bars granting of injunction was not raised and considered and, hence, this question cannot be raised in the revision. While dealing with this submission of Mr. Dhar, I notice that in their written statement, the defendant-petitioners have specifically taken the plea that the suit is barred under the Specific Relief Act. This apart, the question, which has been raised in the present revision, goes to the very root of the power of passing the injunction orders, which stand impugned in the present revision petitions. Since the court does not have the power to grant injunction in a case of present nature, the orders, which are against the provisions of law, cannot be allowed to survive.
21. In the result and for the reasons discussed above, these revision petitions succeed. The impugned orders, dated 29.4.2006, passed in Misc. Appeal Nos. 05/2005, 06/2005, 07/2005, 08/2005 and 09/2005, are hereby set aside. Inconsequence thereof, the orders, dated 16.5.2005 and 30.6.2005, passed by the learned trial court, in the suit, can also not survive and must, therefore, be treated as non est in law.
22. With the above observations and directions, these revision petitions shall stand disposed of. The plaintiff-opposite party shall, however, remain at liberty to sue the defendant-petitioners for damages if such a suit is, otherwise, permissible in law.
23. No order as to costs.