ORDER
Shivashankar Bhat, J.
1. Rejection of an application to reject the plaint under Order VVI Rule 11 of the Code of Civil Procedure is challenged by the defendant in CRP No. 1053/93. The defendant is as Bank kin the private sector. Plaintiff (respondent) is a General Manager in the said Bank. Plaint alleges that the plaintiff received a Memo dated 3.3.1994 informing him that the Board of Directors by its Resolution No. 63 dated 2.3.1995 had resolved to suspended him on the ground of insubordination and therefore pending disposal of the domestic enquiry into the charge-sheet dated 8.1.1993, he was to be kept under suspension. This Resolution is attacked as vitiated by mala fides, arbitrariness and lack of competence. The reliefs sought for in the suit read as follows :-
' (a) For a declaration that the resolution No. 63 passed by the Board of defendant Bank suspending the plaintiff with mala fide intention and motivated and hence it is null and void and illegal and consequently for a permanent injunction restraining the Bank from acting upon the said resolution.
(b) For a declaration that the discipline enquiry now pending against the plaintiff on charge of bigamy or refusal to acknowledge to sign the delivery register on 6.1.1993 and consequential alleged insubordination is vitiated, null and void and consequently for a permanent injunction restraining the defendant from processing with the said enquiry.'
The basic question is whether such a suit is maintainable
2. The learned Munsiff held that there is no particular legal bar against the maintainability of the suit as stated in Order VII Rule 11 of the Code of Civil Procedure and that the question of the maintainability of the suit on other grounds 'is a matter to be decided at the time of disposal of the main suit.' According the learned Munsiff legal bar contemplated by Order VII Rules 11 (d) CPC is a bar referred to in such legal provisions like Section 80 CPC or the Law of Limitation.
3. The above view assumes that Order VII Rule 11 CPC is exhaustive of the circumstances in which a plaint has to be rejected. But, Order VII Rule 11 CPC is held to be not exhaustive of the grounds to reject a plaint (vide : Rada Kishen v. Wali Mohammed AIR 1956 Hyderabad 133).
4. If the Court's jurisdiction is not available to grant the relief's sought for in the plaint on the basis of the entire plaint averments considered as a whole, it will be technically, a case of non-availability of cause of action for the civil suit. Even otherwise, an inherent lack of jurisdiction to entertain the suit, necessarily includes a jurisdiction in the Court to reject the plaint, at the threshold of the proceedings.
5. When the plaint is represented Court has to assume all the allegations made in the plaint as correct and if on that basis, it is realised that the Court cannot grant the relief sought for in plaint, it will be futile exercise to keep the suit pending so as to undergo the formalities of a trial, before facing a dismissal. It is well known that the allegations made in the plaint decide the forum and jurisdiction does not depend upon the defence taken by the defendant in a written statement - (vide : Abdulla Bin Ali & Ors. v. Galappa & Ors. : AIR1985SC577 .
6. Whether the Court should postpone its decision regarding maintainability of the suit, depends on the facts of the case. If the entire plaint averments are accepted and with reference to them the relief prayed for in plaint cannot be granted by the Civil Court, it will not be in the interest of public to keep such a suit. Further, keeping such a suit pending will lead to unnecessary harassment of the defendant; it will be permitting the abuse of the process of the Court at the behest of a plaintiff who is not entitled to any relief, ultimately. In such a situation, as this, the approach to be adopted is to consider the maintainability of the suit at the earliest. In T. Arivandandam v. T. V. Satyapal & Anr. AIR 1977 SC 2421 the Supreme Court observed :
'We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the Court repeatedly and unrepentantly resorted to. From the statement of the fact found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsiff's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsiff must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C. P. C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage.
If on the facts alleged, the suit is manifestly meritless if has to be thrown out at the earliest.
7. Here is a case, where, a private employer has resolved to initiate disciplinary proceedings against its employee; the employer has also resolved to keep the employee under suspension. These decisions are challenged by seeking declaratory reliefs against their validity and the enforcement of the decisions are sought to be restrained by a decree of permanent injunction. Plaint nowhere relies on any statutory provision governing the rights of the plaintiff nor of any provision controlling or regulating the exercise of its power by the employer. Therefore, the question is whether the suit is maintainable in the Civil Court and whether the Civil Court is competent to grant the reliefs sought for on the facts alleged in the plaint.
8. It is a managerial function vested in an employer to take disciplinary action against the employee; it is for the employer to decide to initiate disciplinary action or not. Similarly, an employer can always keep his employee under suspension, provided, the emoluments payable to the employee under the terms of employment are paid (subject to any other conditions of service as to the reduced emoluments, like payment of subsistence allowances). The validity or invalidity of the action of the employer, so long as the employer's action an the relationship between the parties are not governed by statutory provisions, cannot be examined by the Court, except, in a case where compensation or damages is awardable. In the case of wrongful dismissal, a private employee (not governed by any statutory provisions) can seek a declaration of the invalidity of the dismissal not for the purpose of reinstatement, but only for compensation.
9. As a corollary to the above principle, it should follow that, an employer cannot be restrained from initiating an action for the purpose of deciding whether the employee should be dismissed or punished in any manner. If the ultimate order of dismissal cannot be challenged so as to get a decree for reinstatement, can it be that, the said object can be realised in advance by restraining the employer from proceeding to dismiss an employee. In fact, at the initial stage, when employer resolves to hold an enquiry, if cannot be held that the employee is bound to be dismissed. Intention of the employer at this initial stage, is relevant, unless, this intention continues to pervade the entire proceedings leading to a mala fide order of dismissal (or of any punishment). On proof of such an intention, vitiating the proceedings, the employee can always seek damages. The basic principle is that, Civil Court is preclude from enforcing a contract of service.
10. In Sirsi Municipality by its President Sirsi v. Cecelia Kom Francis Tellis : (1973)ILLJ226SC an employee of a Municipality sued for a declaration that her dismissal was illegal and void. Since service conditions were statutory, such a suit was held as maintainable and the remedy of an employee of a statutory body is not confined to damages. In this connection, the scope of the relevant principle was stated by the Supreme Court. At page 857, the Court held :
'The cases of dismissal of a servant fall under three broad heads. The first head relates to the relationship of master and servant governed purely contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the law of Specific Relief Act.
The second type of cases of master and servant arises under Industrial Law. Under that branch of law a servant who is wrongly dismissed may be reinstated. This is a special provisions under industrial law. This relief is a departure from the reliefs available under the India Contract Act and the Specific Relief Act which do not provide for reinstatement of a servant. 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.
Termination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongfully or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages. In the cases of servant of the State or of local authorities or statutory bodies, Courts have declared kin 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 Statutes. Apart from the intervention of statute there would not be declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies.'
The Supreme Court clearly laid down that breach of contract of employment is not capable of founding a declaratory judgment of subsistence of employment. I am of the view that if the entire terror of the plaint is to protect the subsistence of a private employment and nothing more, no purpose will be served by entertaining such a suit.
11. Again the Supreme Court in Executive Committee of Vaish Degree College, Shamli & Ors. v. Lakshmi Narain & Ors. AIR 1976 SC 888 after referring to Sirsi Municipality's case held at page 897 :
'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 Constitutions 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.
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'.
12. However, Mr. K. Subba Rao, the learned counsel for the plaintiff relied on the observations of Bhagwati, J. (as he then was) in the above case. The learned Judge suggested a change from the traditional approach to such cases, where, in reality, the contract is not a contract of personal service, as the in the case of a large scale industry or enterprise. At page 902, the learned Judge observed :
'This rationale obviously can have application only where the contract of employment is a contract of personal service involving personal relations. It can have little relevance to conditions of employment in modern large-scale industry and enterprise or statutory bodies or public authorities where there is professional management of impersonal nature. It is difficult to regard the contract of employment in such case as a contract of personal service save in exceptional cases. There is no reason why specific performance should be refused in cases of this kind where the contract of employment does not involve relationship of personal character. It must be noted that all these doctrines of contract of service as personal non-assignable, unenforceable, and so on, grew up in an age when the contract of service was still frequently a personal relation between the owner of a small workshop or trade or business and his servant. The conditions have now vastly changed and these doctrines have to be adjusted and reformulated in order to suit needs of a changing society. We cannot doggedly hold fast to these doctrines which correspond to the social realities of an earlier generation far removed from ours. We must rid the law of these anachronistic doctrines and bring it in accord with the felt necessities of the times.'
But this observations was confined to the case of employment under a statutory body or public authority as could be seen from the observations at page 903 :
'It is, therefore, necessary and I venture to suggest, quite possibly, within the limits of the doctrine that a contract of personal service cannot be specifically enforced, to take the view that in case of employment under a statutory body or public authority, where there is ordinarily no element of personal relationship, the employee may refuse to accept the repudiation of the contract of employment by the statutory body or public authority and seek reinstatement on the basis that the repudiation is ineffective and the contract is continuing.'
13. Again in Smt. J. Towari v. Smt. Jawala Devi Vidya Mandir & Ors. : AIR1981SC122 it was reiterated that in the case of a private employment remedy of the employee in the case of a wrongful dismissal, is to seek damages. The fact that the employer was an educational institution, governed by the Regulation of the University was held, as insufficient, to permit the relief of a declaration that the termination was illegal and therefore employee is entitled to continue in service.
14. It was held in Jitendra Nath Biswas v. M/s. Empire of India & Ceylon Tea Co. & Anr. that the Civil Court had no jurisdiction to grant the relief of reinstatement and back wages, since the case was covered by the provisions of the Industrial Disputes Act. The principle is reiterated at page 257 :
'It could not be disputed that a contract of employment for personal service could not be specifically enforced and it is also clear that except the industrial law, under the law of contract and the civil law, and employee whose services are terminated could not seek the relief of reinstatement or backwages. At best he could seek the relief of damages for breach of contract. The manner in which the relief has been framed by the appellant plaintiff in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstatement and backwages.'
15. Therefore, in the cases not covered by the Industrial Disputes Act, or by another statute and the employment is a private employment, remedy of the employee will be to sue for damages in the case of an illegal termination of services; he cannot insist before the Civil Court that he should be continued in service; he cannot achieve the same result of subsisting in service unhindered, by recourse to an action to restrain the employer from proceeding in a manner that may lead to the termination of service. Civil Court's jurisdiction to grant such a relief is barred by necessary implication.
16. Mr. Subba Rao contended that, it is open to the plaintiff to amend the plaint to bring it within the jurisdiction of the Civil Court and therefore, at this stage, plaintiff should not be non-suited. I fall to understand this submission. This is not a case of defective plaint. The very subject matter of the litigation is outside the purview of the Civil Court. A suit cannot be kept pending in the pious hope that an future date, plaintiff may seek amendment of the plaint.
17. Mr. Subba Rao referred to a Decision of this Court in K. S. R. T. C. & Anr. v. Aron, T. I. 1983 (1) KLJ 555, Driver of K. S. R. T. C. (a statutory corporation) sought a declaration that the order dismissing him from service was void and as such he continued in service. Suit was held as maintainable, in spite of the availability of the provisions of the Industrial Dispute Act. This decision is clearly distinguishable, because, employee was seeking enforcement of his service conditions under a statutory corporation. It is unnecessary to express any opinion as to the effect of the Decision of Supreme Court in Jitendranath's case (supra).
18. Mr. Subba Rao relied on United Theological College v. Sunny Kulathakkal : ILR1989KAR3320 . In this case of United Theological College, an employee of the College filed a suit for declaration that the Resolution passed by the Executive Committee granting him eight months leave and that his services would not be continued beyond 30.4.1977, was not void, illegal, etc. and for a declaration that the plaintiff continued in services. Plaintiff also sought recovery of arrears of salary and damages. It was not a simple suti for declaration to enforce the contract of service at all. In such a situation where, salary and damage are sought due to the invalidity of the termination of service, civil suit is maintainable. Therefore, whatever may be the ratio of the Decision rendered in the said United Theological case, the ultimate conclusion is based on the principle, which I have derived from the several decisions of the Supreme Court. In fact, the ultimate decree in the said case did not reinstate the plaintiff, but awarded him a sum of Rs. 4,000/- maintainability of the suit, as such was not raised as an issue and relied of reinstatement not sought for (see at page 2328).
19. Subsequently I hold that the suit as filed, is not maintainable and the plaint is liable to be rejected. It is so ordered.
C. R. P. No. 2910 of 1983 is against the order made by the Court of the Civil Judge, refusing to vacate an interim order dated 21-4-1993, whereby the 'disciplinary charges' against the plaintiff was stayed. As per I. A. No. III in the suit before the Trial Court, the plaintiff has sought stay of the discipline proceedings; Trial Court rejected this I. A. against which the plaintiff filed M. A. No. 29 of 1993. Plaintiff has also filed IA No. II in the Trial Court seeking an order of temporary injunction against enforcing the order of suspension; this was rejected. Both I. A. Nos. II and III were rejected by the Trial Court by a common order. M. A. 21 of 1993 is against the said order. It seems, plaintiff filed a Memo in the lower Appellate Court confining M. A. No. 21 of 1993 to the order on I. A. No. II and subsequently filed M. A. No. 29 of 1993, against the order on I. A. No. III in C. R. P. No. 1053 of 1993 this Court had stayed all further proceedings in the suit in the Trial Court and M. A. No. 21/1993 in the Lower Appellate Court. This was on 15.4.1993; this interim order continued from time to time. It seems on 12.4.1993 itself, the plaintiff had filed a Memo in the lower Appellate Court confining the appeal M. A. No. 21 of 1993 to the order of the Trial Court made on I. A. No. II. Therefore, the learned Civil Judge held that interim order of this Court staying further proceedings in M. A. No. 21 of 1993 did not preclude him from making an order in M. A. No. 29 of 1993.
21. Technically he may be correct. But, the learned Civil Judge should have pondered over the matter for a while, which would have made him to realise that this Court clearly indicated that when the suit and M. A. No. 21 of 1993 were stayed, indications are that, the Court should not have ventured to consider the prayer to stay the disciplinary proceedings. Anyhow, discussion on this aspect has become academic, in view of my order rejecting the plaint. The order made by the Court of the Civil Judge in M. A. No. 29 of 1993 is accordingly set aside.
22. In the result, both the Civil Revision Petitions are allowed and the impugned orders are set aside. Consequently, the plaint in O. S. No. 293 on the file of the Additional Munsiff, Mangalore, is rejected. No costs.