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Judgment
G.P. Singh, J.
This appeal arises out of a suit filed by the plaintiff respondent Nathooram against the Board of Governors and the Principal of the Mauiana Azad College of Technology, Bhopa'', for declaration and injunction.
The relevant facts are that the Maulana Azad College of Technology, Bhopal, was established and is run by a registered society bearing the same name. The general superintendence, direction and control of the affairs of the society and of its income and property are vested in the Governing Body of the Society, which is called ''''the Board of Governors, Mauiana Azad College of Technology" and which will hereinafter be referred to as the Board. The Society and the Board both consist of eleven members which include a Chairman and a Secretary. At the relevant time the Governor of Madhya Pradesh was the Chairman. The office of Secretary is held by the Principal of the College. The powers of the Board and other authorities are contained in the rules made by the society. The Board has, inter alia powers to create teaching, administrative, technical, ministerial and other posts under the college and to make appointments thereto for the efficient management of the affairs of the College and to regulate their recruitment and conditions of service; to sue and defend all legal proceedings on behalf of the College; and to delegate to such extent as it may deem necessary, any of its powers to any officer or Committee of the Board. The Chairman exercises such powers as may be delegated to him by the Board. The Principal has certain enumerated powers and also exercises other powers and performs such duties as are delegated or assigned to him by the Board. The Principal in his capacity as the Secretary of the society is the person in whose name the society may sue or be sued.
By Resolution No. 25 of 1963 passed on June 15, 1963, the power to make appointments to all posts bearing a scale of pay below the unrevised scale of pay of 350-850 was delegated to the Principal by the Board. This resolution of the Board finds place in Ex. D-Il, the minutes of the sixth meeting of the Board.
The plaintiff Nathooram was appointed Superintendent of the College on two years'' probation on a salary of Rs. 380 per month in the grade of 300-20-400-EB-500 by the Principal, vide his order dated September 12, 1963, (Ex. P-1). The terms and conditions of service of the plaintiff are contained in Ex, D-5. The material terms and conditions are as follows :
Subject to the provisions of the rules and the Bye-laws, all appointments to post under the college shall ordinarily be made in the first instance, on probation for a period of two years at the end of which period the appointee will either be confirmed or his appointment will be terminated or his probationary period shall be extended.
The appointing authority shall have the power to extend or reduce the period of probation of any employee of the college by such periods as may be found necessary or appropriate. If after the period of probation the official is not confirmed and his probation is also not formally extended, he shall be deemed to have continued on probation."
x x x x
The appointing authority shall have the power to terminate the services of any member of the staff by three months'' notice or by paying three months'' salary in lieu thereof) on invalidation on medical ground, by a medical authority nominated by the Board.
The appointing authority shall have the power to terminate the services of any member of the staff with one month''s notice and without any cause assigned during the period of probation.
The Board will have the power to terminate the services of any member of the staff without assigning any reason or cause by giving the person concerned three months'' notice or three months'' salary in lieu of notice,
A member of the staff may terminate his engagement by giving the appointing authority three months'' notice or three months'' salary in lieu of notice provided that the appointing authority may for sufficient reasons reduce this period.
The plaintiff joined duty on October 7, 1963. By an order passed on December 10, 1964, (Ex P-2, the services of the plaintiff were terminated from the afternoon of that date. It was also ordered that he would be paid one month''s salary in lieu of notice. This order was issued by the Principal as the appointing authority under clause (6) of the terms and conditions of service. The plaintiff then filed an appeal to the Chairman of the Board on December 17, 1964. On February 11, 1965, the Chairman passed an order to the effect that as no reasons for removal were staled, the order of removal could not be confirmed, and that the interim period of absence should be treated as leave that may be admissible to the plaintiff. 1 his order of the Chairman was not in writing communicated to the plaintiff and was not given effect to by the College authorities. No rules or byelaws have been shown which require that an order of termination of services of an employee made by the Principal requires confirmation by the Chairman before it becomes effective, or that an employee has a right of appeal to the Chairman against such an order of the Principal. On April 21, 1965, the plaintiff met the Principal in the office of the Law Secretary, Government of Madhya Pradesh, in presence of the Law Secretary and the Secretary to the Governor. In that meeting the plaintiff submitted a letter of resignation (Ex. D-8). In this letter the plaintiff requested the Principal that his resignation may be accepted with effect from April 30, 1965 ; that he may be sanctioned and paid increment due on October 6, 1965; and that the arrears of pay and allowances may be paid immediately. He also prayed for earned leave with effect from April 21, 1965 to April 30, 1965. The Principal, in the same meeting, issued an order (Ex. P-4) reinstating the plaintiff temporarily until further orders with effect from December 10, 1964, and simultaneously, he accepted the resignation with effect from afternoon of April 30, 1965 and ordered that the period of notice be reduced to April 30, 1965, leave with pay be granted as applied for and pay and allowances with increment may be released. The acceptance of the resignation and the consequential orders appear by way of an endorsement on the letter of resignation Ex. D-8. The entire amount of the arrears of salary was withdrawn by the plaintiff. After the plaintiff returned to his house from the meeting, he wrote another letter (Ex. D-3) on April 21, itself, withdrawing his resignation on the ground that it was given under coercion. He wrote another letter on April 26, 1965 for cancellation of the earned leave granted to him earlier by the Principal.
The plaintiff''s request for withdrawal of resignation was not accepted and he, on April 27, 1965, instituted the suit, which has given rise to this appeal. In this suit, as already stated, the Board and the Principal were joined as defendants. The plaintiff claimed the relief that it be declared that his resignation was nuli and void and he still continued in service. A relief for injunction was also claimed. The stand of the defendants was that the services of the plaintiff were properly terminated ; that the resignation was voluntary and could not be withdrawn after acceptance ; that the plaintiff was no longer in service ; and that in no case he could be granted the relief of declaration and injunction. The Board supported the action of the Principal. The trial Court held that the resignation of the plaintiff was obtained under duress, and that the resignation was properly withdrawn. I: was also held that the suit could be decreed against the Principal alone and not against the Board. On these findings, the suit was decreed as below :
In the light of above discussions I find that the plaintiff is entitled to relief''s of declaration and injunction against defendant No. 2 alone and not against defendant No 1. It is, therefore, ordered and decreed that the order passed by the defendant No 2, No. E. (R) II-11/65 J 82(j dated 21-4-1905 accepting the resignation of the plaintiff is null, void, inoperative and ineffective and the said resignation stands withdrawn and the plaintiff continues to be in service and is entitled to all the benefits attached to his post.
It is further ordered and decreed that the defendant No. 2 is restrained from enforcing the said order accepting the resignation and from obstructing the plaintiff from carrying out his duties in the office.
It is further ordered and decreed that the defendant No. 2 shall pay the costs of the suit to the plaintiff and the suit of the plaintiff as against defendant No. 1 fails to whom the plain till shall pay the costs. Defendant l''s counsel''s fee Rs. 30, plaintiff''s counsel''s fee Rs. 40 if certified.
The Principal, against whom the decree was passed, filed an appeal in the Court of Second Additional District Judge, Bhopal, which was dismissed. Thereafter, the present second appeal was filed by him,
In this appeal, learned counsel for the appellant has raised before me two contentions. First, that even on the facts alleged by the plaintiff he could not be granted a decree for declaration and injunction and his remedy lay only in damages; and secondly, that the plaintiff''s resignation was voluntary and was properly accepted by the Principal and it could not be withdrawn after acceptance.
The normal rule is that a contract of service cannot be specifically enforced. An employee must accept the termination of his services by the employer and he cannot sue for a declaration that his dismissal being wrongful he still continues in service. The only remedy in case of wrongful dismissal is to sue for damages. This normal rule is subject to certain exceptions. In cases where service conditions are regulated by the Constitution or statute or statutory rules, or where a statutory body acts in breach of a mandatory duty imposed upon it by a statute, declaration can be granted. Labour and Industrial Courts have also been recognised to have the jurisdiction of granting reinstatement in certain cases under the Industrial Law. But beyond these well-recognised exceptions, the relief of declaration that the employee still continues in service, when in fact he has been dismissed by the employer, cannot be granted even when the dismissal is contrary to terms and conditions of service and is wrongful. The law on the point was reiterated by the Supreme Court in U. P. S W. Corpn., Lucknow v. G.K. Tyagi AIR 1970 SC 1214, p. 1253 as under :
The position in Jaw is that no declaration to enforce a contract of personal service will be normally grunted. But there are certain well-recognised exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1 ) a public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.
The terms and conditions of the plaintiff''s employment, in the instant case, were not regulated by statute or statutory rules. If on the facts and circumstances of the case, as given out by the plaintiff himself, he was really dismissed from service, it will have to be held that as his case was not within the well-recognised exceptions, he could not be granted the relief of declaration and injunction.
The question then is, whether the plaintiff was dismissed from service? Now, dismissal of an employee may be brought about not only when the employer uses express words to that effect but also when the employer in any other manner, by words or conduct, repudiates the contract of employment or prevents the employee in fulfilling his part under the contract, or refuses to continue the employee on the agreed terms of employment. As stated by Mc. Cardie J. :
dismissal may be effected by conduct as well as words. A man may dismiss his servant if he refuses by words or conduct to allow the servant to fulfill his contract of employment. The refusal must to course he. substantial in the sense that it is not a mere repudiation of some minor rights of the servant, or of non-vital provisions of the contract of employment. The question is ever one of desire. If the conduct of the employer amounts to a basic refusal to continue the servant on the agreed terms of the employment, then there is at once a wrongful dismissal and repudiation of the contract. I see no distinction in such a case as the present between repudiation by the defendants of their contractual obligations and "a wrongful dismissal in the ordinary Erse of that phrase." In Istanbul Bronze Metal Company, Limited and Vos. (1918) 1 K B 315 at p. 323.
The above passage was quoted with approval by a Division Bench of this Court in Parasharsingh v. Hin. Man Mines Ltd. 1968 MPLJ 146. In that case the master decided to change materially the contract of employment which change the servant did not accept and left the service. It was held that the case was not of resignation but of wrongful dismissal. Similar conclusion was reached by the Court of Appeal on somewhat similar facts in Marriott v. Oxford Co-op. Society (1969) 3 All ER 126 (C. A.). A forced resignation on the same principles must be held to amount to dismissal or termination of the contract of employment by the master. Indeed, it was so held by the Court of Appeal :n Stephenson v. The London Joint Stock Bank Ltd. (1903) 20 TLR 8 (C.A.) In that case the Secretary of the Bank wrote to an employee of the Bank "you are required u> resign your appointment in the Bank forthwith", on which the employee concerned wrote to the Secretary resigning his appointment. Lord Halsoury, L. C. in delivering the judgment of the Court observed :
They had to look at the whole of the facts, and. does: so, there could be no doubt but that the plaintiff was dismissed. The use of polite instead of peremptory language did not alter the fact.
The case of Stephenson v. The London Joint Stock Bank Ltd. was followed by the Sindh Judicial Commissioner''s Court in Abraham Reuben v. Karachi Municipality (1928) 113 I C 387, pp. 391, 392, where a municipal employee was asked to resign by the Managing Committee of the Karachi Municipality and it was held that the employee did not resign but was in fact dismissed by the Managing Committee.
Now, the facts of (he instant case as stated by the plaintiff are that on April 21, 1965, the Principal of the College forced him to resign, that he was not allowed to work thereafter, and that the withdrawal of his resignation was not accepted or given effect to by the Principal. The Principal of the College is the appointing authority of the plaintiff under the powers delegated by the Board and he could terminate the plaintiff''s employment at least during the probation period, which at the relevant time was not over. The Principal is also the Secretary of the society and is the person in whose name the society is to sue or can be sued. The stand taken by the Principal is that the plaintiff''s contract of employment was brought to an end and he was no longer in service. The Principal''s is and was approved by the Board in the written statement filed in the case. The Board is a body in whom is vested the general superintendence, direction and control of the society. Indeed, the Board, having regard to its composition and powers conferred upon it under the rules of the society, is virtually the society itself. In these circumstances, there can be no doubt whatsoever that the plaintiff''s employment was terminated by or under the authority of the master. Even if the plaintiff was forced to resign or the withdrawal of his resignation (assuming it to be valid) was not accepted or given effect to by the Principal, all that can be said is that the plaintiff''s employment was wrongfully terminated, but it is in no way possible to hold that the plaintiff still continues in service. On the facts stated and admitted by the plaintiff himself, this is clearly a case of de facto dismissal. In view of the settled legal position under the law of Master and Servant which has already been stated above, the plaintiff was not entitled to sue for declaration and injunction. This legal position was not clearly understood by the lower Courts and the suit was wrongly decreed.
As I have accepted the first contention raised by the learned counsel for the appellant, it is not necessary to consider the correctness of the second contention raised by him.
For these reasons, the appeal is allowed. The judgments and decrees passed by the Courts below are set aside and the plaintiff''s suit is dismissed with costs throughout.