High Court

Legal Reasoning

(1) SA-150.2022 + 1.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD SECOND APPEAL NO. 150 OF 2022WITH CIVIL APPLICATION NO. 3993 OF 2022WITHSECOND APPEAL NO. 151 OF 2022WITH CIVIL APPLICATION NO. 3994 OF 2022Supreme Industries Ltd. D-101, 102, MIDC Area, Jalgaon.Appellant(original defendant)VersusGirish Prabhakar Mahajan Age : 55 yrs, occ : Nil R/o Plot No.18, Prabhat Colony, JalgaonRespondents (original plaintiff )...Mr. Sanket Kulkarni, Advocate holding for holding for Mr. Y.R. Marlappale, Advocate for the appellant.Mr. Sandesh R. Patil, Advocate for the respondent....CORAM :SANDIPKUMAR C. MORE, J.DATED :22 AUGUST 2022Order :1.The appellant/Company, who is the originaldefendant in Regular Civil Suit No.743/2012, has challengedthe common judgment and order dated 13.10.2021 passed inRegular Civil Appeal Nos. 32/2017 and 37/2017 by learnedDistrict Judge-4, Jalgaon i.e. the learned first appellate (2) SA-150.2022 + 1.odtCourt. Under the aforesaid judgment and order, the learnedfirst appellate Court has not only confirmed the judgment anddecree passed by the learned Civil Judge (Senior Division),Jalgaon (herenafter referred to as the “learned trial Court”) inRegular Civil Suit No. 743/2012, but also modified the samein respect of grant of back salary to the plaintiff from15.11.1997 instead of the date of filing suit. As such, thepresent Second Appeals have filed against concurrent findingof both the learned Courts below.2.Brief facts giving rise to the present appeals are asunder :The present respondent i.e. the original plaintiff,feeling dis-satisfied with his forceful resignation at the handsof the appellant i.e. the original employer Company, filedRegular Civil Suit No. 743/2012 for declaration, perpetualinjunction and arrears of salary on 23.08.2012 in the learnedtrial Court. After conducting the trial, the learned trial Courtpartly allowed the suit by declaring that the appellant/Company had forcibly obtained resignation of respondent /plaintiff on 15.11.1997. The learned trial Court also directedthe appellant/Company to reinstate the plaintiff to his serviceand to pay back salary for the period starting from the date offiling of the suit till it’s decision and to pay him regular salary (3) SA-150.2022 + 1.odtthereafter. The appellant company had preferred RegularCivil Appeal No.32/2017 against the decision of the learnedtrial Court before the learned first appellate Court at Jalgaon.However, the said appeal was dismissed and Regular CivilAppeal No. 37/2017 filed by the present respondent/plaintiffwas allowed and starting point of paying salary to the plaintiffwas modified from 15.11.1997 instead of date of filing of thesuit. Hence, these Second Appeals.3.Learned Counsel for the appellant / Companyvehemently submitted that the learned trial Court was nothaving any jurisdiction to direct the appellant/company forreinstatement of the plaintiff with back wages. According tohim, Civil Court is not empowered for granting such relief.Further, he argued that contract of personal service cannotbe enforced by Civil Court and as per the observation of theHon’ble Apex Court, the only remedy with the respondent /plaintiff was to file a claim for damages and notreinstatement. For this purpose, he relied on the followingjudgments :(i)Integrated Rural Development Agency vs Ram PyarePandey, 1995 Supp (2) Supreme Court Cases 495(ii)Nandganj Sihori Sugar Co. Ltd. Vs Rae Bareli andanother, (1991) 3 Supreme Court Cases 54 (4) SA-150.2022 + 1.odt(iii)Executive Committee of U.P. State Warehousing Corpn.Lucknow vs Chandra Kiran Tyagi, AIR 1970 SC 1244(iv)Chander Shekhar Malhotra vs Nirion Ltd. & others1999 (4) L.L.N. 850(v)Kailash Singh vs Managing Committee, Mayo College,Ajmer and others, (2018) 18 SCC 216(vi)Rajasthan State Road Transport Corporation vsMohar Singh, (2008) 5 SCC 5424.On the contrary, learned Counsel for therespondent/plaintiff strongly opposed the submissions madeon behalf of the appellant/Company. He pointed out thatboth the learned Courts below already dealt with thejudgments relied upon by the appellant/Company. Accordingto him, the plaintiff was neither terminated nor he had givenvoluntary resignation, but in fact the appellant/Companyobtained his resignation forcefully and that is only set asideby the Civil Court. According to him, the issue of jurisdictionof Civil Court for granting reinstatement was not agitated bythe appellant/Company in both the learned Courts below. Assuch, he supported the impugned judgments and prayed fordismissal of the Second Appeals at admission stage. He alsorelied on the judgment in the case of Rajasthan State RoadTransport Corporation vs Bal Mukund Bairwa reported in(2009) 4 SCC 299. (5) SA-150.2022 + 1.odt5.It is significant to note that the learned Counselfor the appellant/Company has raised the followingsubstantial questions of law :(i)Whether Civil Court can grant reinstatement?(ii)Whether the contract for personal service can be enforced by Civil Court?6.Admittedly, the Hon’ble Apex Court in the case ofIntegrated Rural Development Agency vs Ram Pyare Pandey(supra) has observed that relationship between Society andit’s employee being contractual and purely one of master andservant, the relief of arrears of salary is improper and illegal.Further, the Hon’ble Apex Court in the case of NandganjSihori Sugar Co. vs Badri Nath (supra) has observed thatcontract of employment of personal nature is not specificallyenforceable and the only relief available to the aggrievedperson is to claim for damages. The Hon’ble Apex Court inthe case of Executive Committee of U.P. State Vs ChandraKiran (supra) has taken same view. Further, it is specificallyheld in the case of Chander Shekhar vs Nirlon Ltd (supra)that the performance which would not be specificallyenforceable, remedy of plaintiff lies in a claim for damages.Similarly, in the case of Kailash Singh vs Mayo College(supra), the Hon’ble Apex Court has reinstated the aforesaid (6) SA-150.2022 + 1.odtaspect. Further, in the case of Rajasthan State RoadTransport Corp vs Mohar Singh (supra), it has been observedthat if a right is claimed under Industrial Disputes Act orsister laws, the jurisdiction of Civil Court would be barred.Thus, on going through the observations in the aforesaidcases, it is clearly evident that Civil Court is not havingjurisdiction to grant a relief arising out of right claimed underIndustrial Disputes Act or any other sister laws and thatreinstatement and payment of back wages cannot be allowedin case of specific performance of master and servant contractof service and proper remedy for the same is to claimdamages. However, this is not the absolute position becausethe Hon’ble Apex Court has already held in the case ofIntegrated Rural Development Agency (supra) that specificperformance of contract of service can be granted by CivilCourt only in exceptional and rare cases. As such, the CivilCourt can grant such relief by awarding back wages andreinstatement. There is no absolute bar for granting suchrelief for the Civil Court.7.Further, both the impugned judgments are clearlyevident of the fact that the respondent/plaintiff had neithergiven the resignation voluntarily nor the appellant/Company (7) SA-150.2022 + 1.odthad terminated him. On the contrary, it has been establishedon the basis of evidence that the respondent/plaintiff had notresigned from his job, but forceful resignation was obtainedfrom him by the Company officials. Moreover, the learnedtrial Court on the basis of evidence, has observed that theappellant/Company could not establish as to what procedurethey had followed while accepting resignation of plaintiff. Theevidence on record has clearly shown that therespondent/plaintiff had immediately agitated the issue inrespect of his alleged forceful resignation by makingcomplaint to that effect. As such, both the learned Courtsbelow have concurred on the issue of forceful resignation ofrespondent/plaintiff at the hands of the officials of appellant/Company and that too without following any procedure.8.Therefore, considering all these aspects thereappears no substance in these Second Appeals or anysubstantial questions of law as raised by the learned Counselfor the appellant. In view of the same, both the SecondAppeals stand dismissed at admission stage alongwithpending Civil Applications.(SANDIPKUMAR C. MORE, J.)VD_Dhirde