AVM Rajeswari Matric. Higher Secondary School v. N.R.Parameswari

discharging her duties to the satisfaction of the appellant and sheapplied for maternity leave for three months from the first week ofOctober 2006 and submitted a letter seeking for maternity leave on10.8.2006 addressed to the correspondent seeking maternity leave from4th October to 1st January 2007 and she was orally informed that hermaternity leave was allowed and having given birth to the child on6.10.2006, she sent a letter dated 21.12.2006 to the Correspondent ofthe appellant School informing that she would be joining duty from3.1.2007. The appellant sent a letter dated 23.12.2006 stating thatthey have not granted any approval for her maternity leave andtherefore, her service was placed under suspension as she hasdiscontinued to attend regular work without any leave. As she wasplaced under suspension from 23.12.2006, she was further directed tosubmit all the documentary evidence before the appellant forconsidering the request of the respondent/plaintiff for reinstatementand the respondent/plaintiff also submitted the medical records andalso stated that she applied for maternity leave during the periodand she was also orally informed about the sanction of leave and onreceipt of the documents, the appellants issued a letter dated17.2.2007 stating that they would consider the respondent as a newrecruit on temporary basis and directed the respondent to join dutyon 20.2.2007 and the respondent informed that she is not willing tojoin duty as a fresh recruit on temporary basis and she is entitledto join duty without any break in continuity of service and requestedthe appellant to cancel the letter dated 17.2.2007 and withoutconsidering her request, the appellant sent letter dated 24.2.2007informing her that she has not joined duty as per the letter dated17.2.2007 and therefore, her certificates were returned and hence,letter dated 24.2.2007 was challenged in the suit by praying fordeclaration that it is null and void and for mandatory injunction asstated therein. 3. The appellant contested the suit stating that the reliefprayed for cannot be granted and there is no termination order andthe respondent/plaintiff was not employed as a regular worker and shewas employed only on temporary basis and without getting permissionto go on maternity leave and without informing the appellant-management, she absented herself and therefore, in her place, anotherteacher was appointed as the studies of the student should not beaffected and after considering the request of therespondent/plaintiff on seeing the medical particulars, themanagement, out of sympathy, decided to consider her as new recruiton temporary basis and asked her to join duty on or before 20.2.2007and as the respondent/plaintiff did not avail the opportunity, theyhave returned the certificates given by the respondent/plaintiff toenable her to seek employment in any other place. It was therefore,contested that the respondent/plaintiff cannot ask for reinstatementwith backwages and the suit is also not maintainable as admittedly,the respondent/plaintiff challenged the order of the so-calledtermination by filing appeal before the appellate authority and https://hcservices.ecourts.gov.in/hcservices/ having availed the appeal forum as per the Rules, it is not open tothe respondent to file the suit for declaration. It was furthercontended that there was no termination of the service of therespondent by the appellant in the letter dated 24.2.2007 and in theabsence of termination, it is not open to the respondent to challengethe same. 4. The Trial Court dismissed the suit holding that there was noorder of termination as per the letter dated 24.2.2007 and therefore,the respondent/plaintiff is not entitled to declaration andconsequently, she is not entitled to the relief of mandatoryinjunction. 5. The first appellate court set aside the findings of the TrialCourt and allowed the appeal and decreed the suit holding thatwithout conducting proper enquiry, the appellant placed therespondent under suspension and also refused to permit her to joinduty and the respondent was not given reasonable opportunity beforeher services were terminated and the respondent has gone on maternityleave which is permitted under the statute and therefore, a personcannot be punished for having gone on maternity leave and as theservice of the respondent was terminated without giving reasonableopportunity, the order of the appellant is liable to be set aside andgranted decree of declaration and mandatory injunction. Hence, thesecond appeal. 6. The following substantial questions of law were framed at thetime of admission:-"1. Whether the lower appellate court is justifiedin decreeing the suit and directing thereinstatement with backwages, continuity ofservice and other attendant benefits in favour ofthe plaintiff holding that the proceedings dated24.2.2007 will amount to termination of service?2. Whether the lower appellate court is justifiedin maintaining the suit holding that theproceedings dated 24.2.2007 is the termination ofservice of the plaintiff?3. Whether the lower appellate court is justifiedin granting permanent status and other benefits tothe plaintiff when admittedly she was working ontemporary basis before the institution of thesuit?4.Whether the lower appellate court is justifiedin applying the provisions of Maternity BenefitsAct, 1961, the Rules and Orders applicable to theGovernment Servants when the appellant school is https://hcservices.ecourts.gov.in/hcservices/ governed by the Code of Regulations applicable tothe Matriculation Schools?5. Whether the lower appellate court is justifiedin decreeing the suit when admittedly therespondent preferred an appeal against the allegedorder of termination dated 24.2.2007 and the sameis pending before the competent authority?6. Whether the lower appellate court is justifiedin ordering reinstatement and other benefits tothe respondent automatically holding that there isviolation of principles of natural justice andwithout remanding the matter to the appellant forfresh consideration?"7. Mr.Kamadevan, learned counsel for the appellant submittedthat the respondent was not appointed on permanent basis though shewas working in the School from 1996 onwards and she absented herselfwithout applying for leave and the management did not receive anyletter as alleged by the respondent and only in December 2006, theyreceived a letter about the date of joining duty by the respondentand thereafter, they have taken steps to conduct enquiry and alsoplaced her under suspension and on seeing the medical records, theytook a sympathetic view and permitted the respondent to join duty ontemporary basis as before and the respondent did not avail theopportunity and therefore, her certificates were returned and thereis no termination order. He further submitted that as per theprovisions of the Matriculation Schools Act, remedy by way of appealto the educational authorities is provided and admittedly, therespondent has availed the opportunity and filed an appeal to theauthorities and therefore, she is not entitled to file a suit seekingfor a declaration and her remedy is to pursue the appeal and get therelief as per the provisions of the Act. He, therefore, submittedthat the suit filed for declaration and mandatory injunction is notmaintainable and the respondent is not entitled to seek the relief ofdeclaration as the letter dated 24.2.2007 cannot be considered as aletter terminating the services of the respondent and this wasrightly considered by the Trial Court and therefore, the suit has tobe dismissed. He also relied upon the judgment reported in VAISHDEGREE COLLEGE v. LAKSHMI NARAIN ((1976) 2 SCC 58), LILLY BAI v.CHINNA THAI (1996 (1) MLJ 131) and SUPERINTENDING ENGINEER,VIRUDHUNAGAR ELECTRICITY DISTRIBUTION CIRCLE v. MURALI RAJA (2008(3)CTC 395) in support of his contention. 8. On the other hand, Mr.Sidharthan, learned counsel for therespondent submitted that admittedly, the respondent was working inthe appellant School from 1996 onwards and she was paid consolidatedsalary and they have also deducted Provident Fund and she was treatedas a regular employee and she having put in more than ten years of https://hcservices.ecourts.gov.in/hcservices/ service, it cannot be stated that the respondent was only a temporaryemployee and having regard to the length of service and the statutorydeductions made by the appellant, the respondent must be consideredas a permanent employee of the appellant School. He furthersubmitted that the respondent submitted maternity leave letter dated10.8.2006 through the Principal and she was also confirmed by theCorrespondent that her leave was sanctioned and on that basis, shewent on leave for delivering a child and that was also known to theappellant and she also sent a letter on 21.12.2006 informing the dateof her rejoining the duty after the leave and only after receipt ofthat letter, the appellant sent a letter dated 23.12.2006 as if therespondent did not inform them about the maternity leave availed byher and placed her under suspension and without conducting enquiry,they also offered to re-employ her and in their letter dated17.2.2007, it was stated that she would be re-appointed on temporarybasis and she was informed that she may not be accommodated in thesame post and she was asked to appear before the Principal withrequest for such appointment on or before 20.2.2007 and thereafter,sent a letter dated 24.2.2007 returning the certificates and theconsequence of events would prove that the letter dated 24.2.2007 isonly a termination letter, as otherwise, there was no necessity forthe appellant to return the certificates. The learned counsel forthe respondent further submitted that if really the respondent hadabsented herself without applying for leave, the appellant would havetaken action immediately thereafter and they would not have keptquiet for three months and only after the respondent informed thedate of joining duty as 3.1.2007, they sent a letter dated 23.12.2006placing the respondent under suspension and even without conductingenquiry, they offered to appoint the respondent on temporary basisand therefore, it is a clear case of violation of principles ofnatural justice and going on maternity leave is statutorilyrecognised and a female teacher cannot be penalised for availingmaternity leave and it cannot be contended that the respondent isonly a temporary teacher and as the service of the respondent wasterminated without conducting any proper enquiry, the suit fordeclaration is maintainable and the respondent is entitled to joinduty with continuity of service and she is also entitled tobackwages. The learned counsel for the respondent also relied uponthe decisions in MUNICIPAL CORPORATION OF DELHI v. FEMALE WORKERS(MUSTER ROLL) AND ANOTHER (AIR 2000 SC 1274), BENJAMIN J. v.MANAGEMENT OF BHARAT EARTH MOVERS LTD. (2006-I-LLJ 975),M/S.HINDUSTAN TIN WORKS PVT LTD. v. THE EMPLOYEES OF M/S.HINDUSTANTIN WORKS PVT. LTD. AND OTHERS (AIR 1979 SC 75), REGISTRAR (ADMN.),HIGH COURT OF ORISSA v. SISIR KANTA SATAPATHY (AIR 1999 SC 3265) andHARI PALACE v. LABOUR COURT (1980-II-LLJ 294) in support of hiscontention.9. Mr.Kamadevan, the learned counsel for the appellant furthersubmitted, on instructions from the appellant management, that theappellant is prepared to take the respondent into service with https://hcservices.ecourts.gov.in/hcservices/ continuity of service without backwages, but, the learned counsel forthe respondent submitted that the respondent was not employedregularly after the termination and she was employed intermittentlyfor some time and unless the appellant takes back the respondent intoservice with backwages, the respondent is not willing to join duty.10. In this case, it is not disputed that the respondent wasappointed in the year 1996 and she was taking classes forkindergarten without any complaint. It was alleged by the appellantthat the respondent absented herself without applying for leave andthe case of the respondent was that she sent leave applicationseeking maternity leave to the Principal and she was orally confirmedby the Correspondent that her leave was sanctioned. 11. The appellant did not examine the Principal to rebut thecase of the respondent that she sent leave letter for maternity leavethrough the Principal and the appellant only examined theCorrespondent. Further, as submitted by the learned counsel for therespondent, if really the respondent had absented herself withoutapplying for leave as contended by the appellant, the appellant wouldhave taken action against the respondent immediately thereafter andthey would not have waited till they received a letter from therespondent in the last week of December 2006. Further, it cannotalso be accepted that the respondent was appointed on temporary basisconsidering the length of service and also the fact that statutorydeductions were made from her salary. Therefore, having regard tothe conduct of the appellant in not examining the Principal, makingstatutory deductions and the length of service put by the respondent,it cannot be stated that the respondent was only a temporary employeeand I hold that she was a permanent employee of the School andtherefore, the third substantial question of law is answered againstthe appellant. 12. It is admitted that the respondent was placed undersuspension and even without conducting any enquiry, the appellantsent a letter dated 23.12.2006 offering to re-appoint the respondentbut, informed her that she would not be placed in the same post.Further, under letter dated 17.12.2007, it was stated that therespondent would be appointed on temporary basis. Therefore, fromthe tenor of the letters dated 23.12.2006 and 17.2.2007, it can beheld that the appellant was not prepared to take back the respondentin service with continuity of service and they offered to re-appointher as a new recruit. Further, under letter dated 24.2.2007, theservice of the respondent was not terminated and the respondent wasonly informed that she failed to avail the opportunity in joining theduty as per letter dated 17.2.2007. Therefore, a reading of thethree letters of the appellant, it can be held that by letter dated24.2.2007, the service of the respondent was not terminated and evenprior to that, the appellant made it clear that they are prepared totake back the respondent into service and they only offered to give https://hcservices.ecourts.gov.in/hcservices/ her new employment. Therefore, it cannot be contended that theappellant terminated the services of the respondent by issuing letterdated 24.2.2007 and that termination is null and void. Even assumingthat the services of the respondent were terminated even prior to theletter dated 24.2.2007 and not under letter dated 24.2.2007, whetherthe respondent is entitled to the relief of mandatory injunction canbe answered having regard to the provisions of the Tamil NaduMatriculation Schools Act and also the judgments rendered by theHonourable Supreme Court in that regard. 13. In the judgment reported in (1976) 2 SCC 58 cited supra, theHonourable Supreme Court held as follows:-"We would first deal with the important question,which has been the sheet-anchor of the argumentsof the learned counsel for the respondent as alsothe main basis of the judgment of the Full Benchof the Allahabad High Court, as to whether or notthe appellant Executive Committee can be said tobe a statutory body in the circumstances of thepresent case. It seems to us that before aninstitution can be a statutory body it must becreated by or under the statute and owe itsexistence to a statute. This must be the primarything which has got to be established. Here adistinction must be made between an institutionwhich is not created by or under a statute but isgoverned by certain statutory provisions for theproper maintenance and administration of theinstitution. There have been a number ofinstitutions which though not created by or underany statute have adopted certain statutoryprovisions, but that by itself is not, in ouropinion, sufficient to clothe the institution witha statutory character. In Sukhdev Singh v.Bhagatram Sardar Singh Raghuvanshi(AIR 1975 SC1331) this Court clearly pointed out as to whatconstitutes a statutory body. In this connectionmy Lord A. N. Ray, C.J., observed as follows: (SCCp.435: SCC (L&S) p.115, para 25)"A company incorporated under the Companies Act isnot created by the Companies Act but comes intoexistence in accordance with the provisions of theAct. It is not a statutory body because it is notcreated by the statute. It is a body created inaccordance with the provisions of the statute."It is, therefore, clear that there is a wellmarked distinction between a body which is createdby the statute and a body which after having come https://hcservices.ecourts.gov.in/hcservices/ into existence is governed in accordance with theprovisions of the statute. In other words theposition seems to be that the institutionconcerned must owe its very existence to a statutewhich would be the fountain-head of its powers.The question in such cases to be asked is, ifthere is no statute would the institution have anylegal existence. If the answer is in the negative,then undoubtedly it is a statutory body, but ifthe institution has a separate existence of itsown without any reference to the statute concernedbut is merely governed by the statutory provisionsit cannot be said to be a statutory body. The HighCourt, in our opinion was in error in holding thatmerely because the Executive Committee followedcertain statutory provisions of the University Actor the statutes made thereunder it must be deemedto be a statutory body. In fact the Full Bench ofthe High Court relied on three circumstances inorder to hold that the Executive Committee was astatutory body, viz., (i) that it was affiliatedto the Agra University which was established bythe statute; (ii) that there were certainmandatory provisions in the Agra University Actwhich were binding on the Executive Committee; and(iii) that the Executive Committee was governed bythe statutes framed by the Agra University. In ouropinion, none of these factors would be sufficientto alter the character and nature of the ExecutiveCommittee and convert it into a full-fledgedstatutory body. To begin with the ExecutiveCommittee had an independent status having beenregistered under the Registration of Co-operativeSocieties Act, 1860 and was a self- governed or anautonomous body. It was affiliated to the AgraUniversity merely for the sake of convenience andmainly for the purpose that the courses of studiesprevalent in the College may be recognised by theUniversity. 11. Statute 14-A of the Agra University Hand-Book (1965-66) runs thus:"Each College, already affiliated or whenaffiliated, which is not maintained exclusively byGovernment must be under the Management of aregularly constituted Governing body (which termincludes Managing Committee) on which the staff ofthe college shall be represented by the Principalof the college and at least one representative of https://hcservices.ecourts.gov.in/hcservices/ the teachers of the college to be appointed byrotation in order of seniority determined bylength of service in the college, who shall holdoffice for one academic year." All that the statute of the Agra Universityrequired was that the Managing Committee of theCollege must co-opt the Principal of the Collegeand one representative of the teachers of thecollege by rotation as members of the Committee.It is manifest that by co-opting these members theManaging Committee did not lose its independentstatus but continued to remain a non-statutory andautonomous body. Similarly the mere fact that thestatutes of the University were adopted by theManaging Committee and it was as a matter ofconvention bound to follow the statutoryprovisions of the Act would not clothe theManaging Committee with a statutory status orcharacter. In fact the adoption of the statuteswas agreed to by the appellant Executive Committeefor the better governance, administration andextension of the educational activities of theinstitution. In fact an identical argument whichforms the basis of the judgment of the Full Benchof the High Court had been advanced before thisCourt and rejected outright. For instance inSabhajit Tewary v. Union of India (AIR 1975 SC1329, 1330) the question was whether the Councilof Scientific and Industrial Research which was asociety registered under the SocietiesRegistration Act, as the present appellant is, wasa statutory body. It was urged that because theCouncil of Scientific and Industrial Research hadgovernment nominees as the President of the bodyand derived guidance and financial aid from theGovernment, it was a statutory body. A.N. Ray,C.J., rebutted these arguments and observed asfollows: (SCC pp.486-487: SCC (L&S) p.100 para 4) "The Society does not have a statutory characterlike the Oil and Natural Gas Commission, or theLife Insurance Corporation or Industrial FinanceCorporation. It is a society incorporated inaccordance with the provisions of the SocietiesRegistration Act. The fact that the Prime Ministeris the President or that the Government appointsnominees to the Governing Body or that theGovernment may terminate the membership will notestablish anything more than the fact that theGovernment takes special care that the promotion, https://hcservices.ecourts.gov.in/hcservices/ guidance and co-operation of scientific andindustrial research, the institution and financingof specific researches, establishment ordevelopment and assistance to special institutionsor departments of the existing institutions forscientific study of problems affecting particularindustry in a trade, the utilisation of the resultof the researches conducted under the auspices ofthe Council towards the development of industriesin the country are carried out in a responsiblemanner.Similar view was taken by this Court in KumariRegina v. St. Aloysius Higher Elementary School(AIR 1971 SC 1920, 1924) where this Court observedas follows:"But it cannot also be gainsaid that as theGovernment has the power, to admit schools torecognition and grants-in-aid, it can, de hors theAct, lay down conditions under which it wouldgrant recognition and aid. To achieve uniformityand certainty in the exercise of such executivepower and to avoid discrimination, the Governmentwould have to frame rules which, however, would bein the form of administrative instructions to itsofficers, dealing with the matters of recognitionand aid. If such rules were to lay downconditions, the Government can insist thatsatisfaction of such conditions would be conditionprecedent to obtaining recognition and aid andthat a breach or non-compliance of such conditionswould entail either the denial or withdrawal ofrecognition and aid. The Management of a school,therefore, would commit a breach or non-complianceof the conditions laid down in the rules on painof deprivation of recognition and aid. The rulesthus govern the terms on which the Governmentwould grant recognition and aid and the Governmentcan enforce these rules upon the management. Butthe enforcement of such rules is a matter betweenthe Government and the management, and a thirdparty, such as a teacher aggrieved by some orderof the management, cannot derive from the rulesany enforceable right against the management onthe ground of a breach or non-compliance of any ofthe rules." https://hcservices.ecourts.gov.in/hcservices/ This is a case which is almost on all fours withthe facts of the present case because there thecase was whether the school after being recognisedby the Government for the purpose of grant wasbound to observe the rules. 12. In Indian Airlines Corporation v. SukhdeoRai ((1971) supp. SCR 510, 514), it was observedas follows:"The fact, therefore, that the appellant-Corporation was one set up under and was regulatedby Act XXVII of 1953 would not take away, withoutanything more, the relationship between it and itsemployees from the category of purely master andservant relationship."13. The Full Bench of the Allahabad HighCourt, however, appears to have placed greatreliance on the decisions of this Court inPrabhakar Ramakrishna Jodh v. A.L. Pande ((1965) 2SCR 713, 718) where this Court held that theGoverning Body of the College in that case was astatutory body. In this connection, this Courtobserved as follows: "On the other hand, we are of opinion that theprovisions of Clause 8 of the ordinance relatingto security of the tenure of teachers are part andparcel of the teachers' service conditions and, aswe have already pointed out, the provisions of the'College Code' in this regard are validly made bythe University in exercise of the statutory powerand have, therefore, the force and effect of law.It follows, therefore, that the 'College Code'creates legal rights in favour of teachers ofaffiliated colleges and the view taken by the HighCourt is erroneous."This case, however, is clearly distinguishablefrom the facts of the present case. To begin with,in P.R. Jodh's case (supra), this Court wasdealing with the College Code which was itself acreature of the statute, namely, the University ofSaugar Act. Under ordinance No. 20 Para 1 theGoverning body was created by an ordinance passedunder the University of Saugar Act. It is,therefore, clear that the statutes are thecreature of the Act. Thus the distinction is thatin P.R. Jodh's case the Governing Body was the https://hcservices.ecourts.gov.in/hcservices/ Council of Management established under the Actwhile here the Managing Committee is not. It isobvious that the Governing Body was created undera statutory provision because the ordinance hadundoubtedly a statutory force having been passedunder the Act. Para 2(i) (c) of the College Coderuns thus: "2. (i) In this ordinance, unless there isanything repugnant in the subject or context:- (c) 'Governing Body' means the Council ofManagement established under this ordinance forthe control and general management of the'College'."The Governing Body was, therefore, establishedunder the ordinance itself and had no independentexistence at all. Similarly under Para 3 of theordinance the constitution of the Governing Bodywas laid down. It is, therefore, clear that notonly was the Governing Body of the Collegeestablished under the ordinance but even theconstitution of the said Governing Body was laiddown by the ordinance itself and the functions ofthe Governing Body were clearly defined by Para 4of ordinance No. 20. The ordinance itself wascalled the "College Code" which came into legalexistence by virtue of the ordinance. In otherwords, the position is that before ordinance No.20was passed under the University Act, the GoverningBody had no existence at all. The same, however,could not be said of the present ManagingCommittee which had its independent existence longbefore it was affiliated to the Agra Universityand had also its own constitution, the onlyexception being that two members had to be takenex-officio in the Managing Committee. There is,therefore, world of difference between the natureand manner of the establishment of the GoverningBody under the University of Saugar Act and theManaging Committee in the instant case.Furthermore, this case was noticed and discussedby a later judgment of this Court in Vidya RamMishra v. Managing Committee, Shri Jai NarainCollege ((1972) 3 SCR 326) and was distinguished.Speaking for the Court, Mathew, J., observed asfollows: (SCC PP.628-629, Paras 9, 11-12) https://hcservices.ecourts.gov.in/hcservices/ "When once this Court came to the conclusion thatthe 'College Code' had the force of law andconferred rights on the teachers of affiliatedcolleges, the right to challenge the orderterminating the services of the appellant, passedin violation of clause 8(vi) (a) of the 'CollegeCode' in a proceeding under Article 226 followed'as the night the day' and the fact that theappellant had entered into a contract wasconsidered as immaterial.* * * *On a plain reading of statute 151, it is clearthat it only provides that the terms andconditions mentioned therein must be incorporatedin the contract to be entered into between thecollege and the teacher concerned. It does not saythat the terms and conditions have any legalforce, until and unless they are embodied in anagreement. To put it in other words, the terms andconditions of service mentioned in Statute 151have proprio vigore no force of law. They becometerms and conditions of service only by virtue oftheir being incorporated in the contract. Withoutthe contract, they have no vitality and can conferno legal rights.Whereas in the case of Prabhakar Ramakrishna Jodhv. A.L.Pande and (supra), the terms and conditionsof service embodied in clause 8(vi) (a) of the'College Code' had the force of law apart from thecontract and conferred rights on the appellantthere, here the terms and conditions mentioned inStatute 151 have no efficacy, unless they areincorporated in a contract."It is, therefore, clear that in P.R.Jodh'scase the College Code was by itself a statutoryCode so that the provisions of the statuteoperated proprio vigore and did not depend on theexecution of the agreement between the employerand the employee in accordance with the statutesof the University. In the instant case, which isvery much like the case in Vidya Ram Mishra(supra) the statute merely enjoined that theagreement between the employer and the employeeshould be incorporated according to the form andconditions prescribed by the statute and until thesaid agreement is executed the provisions of the https://hcservices.ecourts.gov.in/hcservices/ Statute would not apply proprio vigore. TheAllahabad High Court no doubt tried to distinguishVidya Ram Mishra's case, but with due respect, wemight observe that the distinction drawn by theHigh Court is a distinction without anydifference. The High Court has not considered thetwo basic facts which were present in P.R.Jodh'scase but which were not present in the instantcase, viz., (1) that the governing body in thecase dealt with by this Court in P.R.Jodh's casewas in itself a creature of the statute; and (2)that in the instant case the statute did not applyproprio vigore but only after an agreement wasexecuted between the employer and the employee inaccordance with the terms and conditions of thestatute. The High Court also failed to considerthat there was a concurrent finding of fact by allthe Courts below that the plaintiff/respondentnever executed any agreement with the ExecutiveCommittee of the College in the form prescribed bythe statutes of the Agra University Act. 14. Thus in view of the decisions of thisCourt regarding the circumstances under which theinstitution can be treated as a statutory body weare unable to agree with the view taken by theAllahabad High Court that the Executive Committeewas a statutory body merely because it wasaffiliated to the University or was regulated bythe provisions of the University Act or thestatutes made thereunder. We accordingly hold thatthe decision of the Full Bench of the AllahabadHigh Court on this point is legally erroneous andmust be overruled."14. In the same judgment, the Honourable Supreme Court alsoconsidered the question whether the conduct of personal service isspecifically enforced and after referring to various judgments, itwas held as follows:-"15. This brings us to the next point forconsideration as to whether or not theplaintiff/respondent's case fell within theexceptions laid down by this Court to the generalrule that the contract of personal service is notspecifically enforceable. In this connection asearly as 1964, in S.R.Tewari v. District Board,Agra ((1964) 3 SCR 55, 59), this Court observedas follows: https://hcservices.ecourts.gov.in/hcservices/ "Under the common law the Court will notordinarily force an employer to retain theservices of an employee whom he no longer wishesto employ. But this rule is subject to certainwell recognized exceptions. It is open to theCourts in an appropriate case to declare that apublic servant who is dismissed from service incontravention of Art.311 continues to remain inservice, even though by so doing the State is ineffect forced to continue to employ the servantwhom it does not desire to employ. Similarly underthe industrial law, jurisdiction of the labour andindustrial tribunals to compel the employer toemploy a worker, whom he does not desire toemploy, is recognised. The Courts are alsoinvested with the power to declare invalid the actof a statutory body, if by doing the act the bodyhas acted in breach of a mandatory obligationimposed by statute, even if by making thedeclaration the body is compelled to do somethingwhich it does not desire to do."To the same effect is the decision of this Courtin Executive Committee of U.P. State WarehousingCorporation Ltd. v. Chandra Kiran Tyagi ((1970) 2SCR 250, 265), where it was observed as follows:"From the two decisions of this Court, referred toabove, the position in law is that no declarationto enforce a contract of personal service will benormally granted. But there are certain well-recognized exceptions to this rule and they are:To grant such a declaration in appropriate casesregarding (1) A public servant, who has beendismissed from service in contravention ofArt.311. (2) Reinstatement of a dismissed workerunder Industrial Law by Labour or IndustrialTribunals. (3) A statutory body when it has actedin breach of a mandatory obligation, imposed bystatute;"16. In Indian Airlines Corporation v. SukhdeoRai (supra) this Court also observed as follows:(SCC p.193, para 3)"It is a well settled principle that when there isa purported termination of a contract of service,a declaration, that the contract of service stillsubsisted, would not be made in the absence ofspecial circumstances because of the principle https://hcservices.ecourts.gov.in/hcservices/ that courts do not ordinarily grant specificperformance of service. This is so, even in caseswhere the authority appointing an employee wasacting in exercise of statutory authority. Therelationship between the person appointed and theemployer would in such cases be contractual, i.e.as between a master and servant, and thetermination of that relationship would not entitlethe servant to a declaration that his employmenthad not been validly determined." To the same effect is the decision of this Courtin Bank of Baroda v Jewan Lal Mehrotra ((1970) 2LLJ 54, 55), where this Court observed as follows:"The law as settled by this Court is that nodeclaration to enforce a contract of personalservice will be normally granted. The wellrecognised exceptions to this rule are (1) where apublic servant has been dismissed from service incontravention of Art.311; (2) where reinstatementis sought of a dismissed worker under theindustrial law by labour or industrial tribunals;(3) where a statutory body has acted in breach ofa mandatory obligation imposed by statute;"17. In the Sirsi Municipality's case (supra)the matter was exhaustively reviewed and Ray, J.,(as he then was) observed as follows: (SCC p.413:SCC (L&S) p.210, paras 15-17)"The cases of dismissal of a servant fall underthree broad heads, purely by contract ofemployment. Any breach of contract in such a caseis enforced by a suit for wrongful dismissal anddamages. Just as a contract of employment is notcapable of specific performance similarly breachof contract of employment is not capable offounding a declaratory judgment of subsistence ofemployment. A declaration of unlawful terminationand restoration to service in such a case ofcontract of employment would be indirectly aninstance of specific performance of contract forpersonal service. Such a declaration is notpermissible under the Law of Specific Relief Act.The second type of cases of master and servantarises under Industrial Law. Under that branch oflaw a servant who is wrongfully dismissed may bereinstated. This is a special provision under https://hcservices.ecourts.gov.in/hcservices/ Industrial Law. This relief is a departure fromthe reliefs available under the Indian ContractAct and the Specific Relief Act which do notprovide for reinstatement of a servant. The thirdcategory of cases of master and servant arises inregard to the servant in the employment of theState or of other public or local authorities orbodies created under statute."18. On a consideration of the authoritiesmentioned above, it is, therefore, clear that acontract of personal service cannot ordinarily bespecifically enforced and a Court normally wouldnot give a declaration that the contract subsistsand the employee, even after having been removedfrom service can be deemed to be in serviceagainst the will and consent of the employer. Thisrule, however, is subject to three well recognisedexceptions-(i) where a public servant is sought tobe removed from service in contravention of theprovisions of Art.311 of the Constitution ofIndia; (ii) where a worker is sought to bereinstated on being dismissed under the IndustrialLaw, and (iii) where a statutory body acts inbreach or violation of the mandatory provisions ofthe statute."15. Therefore, in the present case also the appellant is aprivate management though they are coming under the provisions of theMatriculation Schools Act and therefore, even assuming that theservice of the respondent was terminated, the respondent cannot seekfor reinstatement of service with backwages. 16. Further, in the judgment reported in 1996 (1) MLJ 131 citedsupra, the learned Single Judge considered the right of a teacher whowas governed by the provisions of the Tamil Nadu Recognised PrivateSchools (Regulation) Act, 1973 and held that a teacher cannot seekfor declaration that she is entitled to continue in the same posteven after termination and the learned Single Judge held that thecivil suit was misconceived and as per the provisions of the TamilNadu Private Schools (Regulation) Act, 1973, which provides forappeal against the termination of service for any other reason andtherefore, the aggrieved teacher has to apply under the provisions ofthe Act against the illegal termination, if any, and she cannot filea suit for declaration. 17. In the judgment in reported in 2008 (3) CTC 395, the learnedJudge has held that when Act provides for appeal remedy against thetermination, the party has to avail the remedy available under theAct and they cannot invoke the jurisdiction of a civil court. https://hcservices.ecourts.gov.in/hcservices/

18. In the judgments relied upon by the learned counsel for therespondent, no doubt, it has been held that the dismissal can bechallenged before Labour Court and the termination without anyenquiry is liable to be set aside and a woman employee is entitled tomaternity leave and she cannot be terminated on that ground. But, thejudgment relied upon by the learned counsel for the respondent didnot say that a civil suit is maintainable when appeal remedy isprovided under the Act. Admittedly, the respondent filed appealagainst the alleged termination before the appellate authority asprovided under the Tamil Nadu Matriculation Schools Act and the Actalso provides for appeal remedy against any illegal termination.Therefore, having regard to the law laid down by the HonourableSupreme Court in (1976) 2 SCC 58 and the judgment in 1996 (1) MLJ131, I hold that civil suit challenging the order of termination andseeking for reinstatement of service is not maintainable and theaggrieved person can only maintain a suit for damages and contract ofpersonal service cannot be enforced in a civil suit when the Actprovides for appeal remedy and when the respondent, admittedly, filedan appeal, she has to pursue the appeal remedy and it is not open toher to invoke the jurisdiction of the civil court by filing a suit.Hence, substantial questions of law 4, 5 and 6 are answered in favourof the appellant and I hold that the lower appellate court committederror in decreeing the suit when the respondent had already preferredappeal against the order of termination and the lower appellate courterred in granting the relief of reinstatement of service withbackwages and the lower appellate court is not justified in invokingthe provisions of Maternity Benefits Act in this case. 19. I further hold that letter dated 24.2.2007 will not amountto termination of service and even prior to that, the appellantreturned the certificates of the respondent and the respondent wasworking as permanent employee of the school and she was not atemporary employee and therefore, substantial questions of law 1 and2 are answered in favour the appellant. Further, having regard tothe answers given for substantial questions of law 5 to 6 that therespondent is not entitled to maintain a suit to enforce the contractof personal service and the Act provides appeal remedy against theillegal termination and that was also availed by the respondent andtherefore, the respondent is not entitled to maintain the suit. 20. In the result, the second appeal is allowed. The judgmentand decree of the first appellate court is set aside and the judgmentand decree of the Trial Court is restored. As stated supra, as perthe submissions of the learned counsel for the appellant, theappellant is permitted to take back the respondent into servicewithout backwages with continuity of service and it is open to therespondent to make use of this opportunity and if the respondentexpresses her willingness to join duty with continuity of servicewithout claiming backwages, the appellant shall take the respondent https://hcservices.ecourts.gov.in/hcservices/ into service as per the assurance given by the appellant before thiscourt. No costs. The connected miscellaneous petitions are closed.Sd/Asst. Registrar/true copy/Sub Asst.Registrarssk. To1. The V Additional Judge, City Civil Court, Chennai.2. The II Assistant Judge, City Civil Court, Chennai.+ 1 cc to Mr.S. Kamadevan,SR.65788+ 2 ccs to Mr.P. Sridharthan, SR.65627S.A.No.1329 of 2010JRG(CO)Eu 9.1.12