2001) 1 J & K Law
Reporter 52 Before Hon’ble Mr. Justice Arun Kumar Goel, Judge Chairman Tiger Army School and others
Appellants C.REV 30 / 1994 decided on 31.10.2000. J&K Code of Civil Procedure, Svt. 1977 ( 1920 AD ), S. 11 - Civil Suit - Suit of the plaintiff filed for declaration that notice resignation of the plaintiff was void having been extracted under coercion -Prayer for interim injuction rejected - On appeal, the District Judge reversing the order of rejection - Order passed in appeal set aside and that of Trial Court restored - Held : Suit was not maintainable. Advocates who
appeared in this case : Cases referred : Chronological
JUDGMENT AND ORDER This revision is directed against the order passed by the then learned District Judge, Jammu in File No. 29/Misc.Appeal, dated 20.1.1994, titled as Varinder Jeet Kour Vs Chairman, Tiger Army School & others. By means of this order appeal filed by Varinder Singh, respondent in this revision petition, has been allowed and the order of the trial court dated 3.1.1994 rejecting her application for the grant of interim relief has been set aside. A suit was filed by the respondent-plaintiff for declaration to the effect that the resignation notice 3.11.1993 is void having been extracted under coercion from her by the petitioner No.2, defedent; with a consequential relief of permanent prohibitory injuction restraining the petitioners and their colleagues and superiors from accepting the impugned notice of resignation and thereby terminating her service as teacher in Tiger Army School, Jammu Cantt. Both these communications are there on the record. One is at page 13 and the subsequent is at page 14. Alongwith the suit, an application under section 80 as well as for grant of interim relief was filed by the respondent, exparte interim order was vacated and thereafter in appeal by the respondent, the same has been allowed and the order of the trial court has been set aside. Grounds urged by learned counsel for the parties need to be noted. According to Sh. Goja, respondent was trying to enforce a contract of personal employment, as such suit for injunction was not maintainable. He further submitted that even if it be assumed without being conceded that the resignation was not binding on her, respondent could file a suit for damages for breach of contract. These pleas have been controverted by Shri Kalgotra, learned counsel appearing for respondents. He argued that the order passed by the learned Appellate Court below suffers from no legal infirmity calling for interference in this revision petition, therefore, he urged for dismissal of the revision in question. So far contract of personal service being not specifically enforceable is concerned, the matter has been set at rest by the Supreme Court of India (see"Integrated Rual Dev. Agency v Ram Pyare Pandey, 1995 Lab I.C. 1636 and Nandqanj Sihori Sugar Co.Ltd. & another v. Badri Nath Dixit & others"). In this case, a three judge Bench of Supreme Court of India had found that the contract of personal service is not specifically enforceable. Only exception to this proposition is that a declaration can be given when (a) a public servant has been dismissed from service in contravention of the provisions of Article 311 of the Constitution of India (b) reinstatement of a dismissed worker under Industrial Law of Industrial Tribunal , and (c) a statutory body when it had acted in breach of mandatory obligation imposed by the statutes. None of these exceptions could be pointed out by Shri Kalgotra. For taking this view reference can be made to "Executive Committee of U.P. State Warehousing Corpn. v. Chandra Kiran Tyaqi", AIR 1970 SC 1244. Sh. Kalgotra placed reliance on AIR 1989 SC 1083, "P.N.B. v. P.K.Mittal’. Ratio of this Judgment is wholly inapplicable to the facts of the present case. Bank is an "other authority" within the meaning of Article 12 of the Constitution of India. It is amenable to the writ jurisdiction of the court. How suit was maintainable against the petitioners, Shri Kalgotra was not in a position to explain. Army Public School, Nothern command C/O 56 APO was held to be not an instrumentality of the State under Article 12 of the Constitution of India as per decision of this Court in SWP No.1415/96, "Asha Khosa vs Chairman Army Public School & others", when a reference was made on the following question :
In view of the aforesaid discussion this revision petition deserves to be allowed and the order passed by the then learned District Judge, Jammu is hereby set aside and that the trial court is restored. |
