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Case Details

- 1 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 2398 OF 2007 (DEC/INJ) BETWEEN: M/S BANGALORE CLUB, FIELD MARSHAL K.M. CARIAPPA ROAD, CIVIL STATION BANGALORE-560 001. REP. BY ITS SECRETARY SRI COL K.D. MURTHY. (BY SRI PRABHULING.K NAVADGI, SENIOR COUNSEL FOR SRI NIKIT BALA & SRI SUJA SURENDRAN, ADVOCATES) ...APPELLANT AND: H.N RAMCHANDRA, S/O LATE NANJAPPACHAR, AGED ABOUT 55 YEARS, R/O 481, "SAMPRATHI", 20TH H-CROSS, EJIPURA, BANGALORE-560 047. Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA (BY SRI CHANDAN.K & MISS MEENA, ADVOCATES) …RESPONDENT THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 01.10.2007 PASSED IN OS.NO.8218/2001 ON THE FILE OF THE XVII ADDL.CITY CIVIL JUDGE, BANGALORE CITY, CCH-16, DECREEING THE SUIT FOR DECLARATION AND INJUNCTION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, THROUGH VIDEO CONFERENCING AT KALABURAGI BENCH, THE COURT DELIVERED THE FOLLOWING: - 2 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 CORAM: HON'BLE MR. JUSTICE C M JOSHI CAV JUDGMENT 1. This appeal is filed by the defendant- Bangalore Club, challenging the judgment in OS No.8218/2001 by learned XVII Additional City Civil and Sessions Judge, Bangalore, CCH 16, dated 01-10-2007, whereby the suit came to be decreed. 2. The parties would be referred to as per their rank before the trial Court for the sake of convenience. 3. The factual matrix of the case that is relevant for the purpose of this appeal is summarized as below: (a) The defendant- appellant herein is Bangalore Club and is an unregistered body. It has a membership of nearly 2000 permanent members, 3200 other members, etc, and the affairs of the Club is looked after by the General Committee, which is an elected body. The plaintiff- H.N.Ramachandra, was working as a Secretary of the defendant-Club as per Rule 23.10 of the Club Rules. He - 3 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 was appointed as Secretary by Appointment Letter dated 10-11-1999, which was issued pursuant to a resolution passed by the Recruitment Committee Meeting dated 25- 10-1999. The job description and the service conditions were also intimated to him under the said letter. The pay scale of the plaintiff was Rs.15,000/- with an annual increment of Rs.1,500/- per annum. The plaintiff was to look after the various activities of the Club, which are narrated in Para 6 of the plaint. (b) The plaintiff further stated that he was appointed first as a Section Manager, Beverages, on 12-09-1979 and his appointment was confirmed on 08-10-1979. Thereafter, he was promoted as Section Manager in 1980 and later as Assistant Secretary on 01-01-1981, which post he held for about 18 years. Thereafter, he was promoted as a Senior Assistant Secretary on 05-05-1989 and then was promoted as a Deputy Secretary on 29-09-1993. The plaintiff remained as a Deputy Secretary till he was promoted as a Secretary - 4 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 on 09-11-1999. His service was uninterrupted, continuous and he served with utmost integrity, honesty and sincerity. Inspite of that, the plaintiff was served with a Caveat dated 19-10-2001, wherein, it was disclosed that the

Facts

plaintiff was terminated from the services. There was no such exclusive communications to the plaintiff as regards the reasons for such termination. Evidently, the Caveat was filed with an anticipation that the plaintiff may initiate a legal proceedings. The plaintiff had applied for leave for 03 days from 12th to 14th October 2001, which was approved by the President and on 11-10-2001 he was informed to remain on compulsory leave till 31-10-2001 without quoting any reasons in whatsoever manner. The letter written by the plaintiff on 15-10-2001, seeking the reasons for compulsory leave remain unanswered. Thereafter, he received an order dated 19-10-2001 intimating his termination from the service. (c) The plaint further states that the Governance of the Club by the General Committee is basically marred - 5 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 with the primitive political instincts which are manifested by acts of retortion enacted by each General Committee over the preceding General Committees. The plaintiff is one of the victims of said ego clashes. It is stated that, in

Legal Reasoning

approached this Court in appeal. 9. On service of notice, the plaintiff/respondent has appeared through his counsel. - 16 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 10. During pendency of this appeal, the appellant/ defendant has filed an application under order 41, Rule 27 of CPC seeking to produce 13 documents. The affidavit, filed in support of the application contends that the applicant, who is the Secretary of the Bangalore-Club became aware of the existence of a considerable amount of evidence which has greater relevance and bearing in the disposal of the appeal. Inadvertently, it was not produced in the proceedings when they were pending in the trial Court. It is stated that in view of listing of the case for hearing, he made searches in the records of the appellant- Club and he has discovered a series of documents which were not made use during the trial before the trial Court. The predecessors of the applicant-Club were not aware of the existence of the same and the lack of opportunity to consider the records would prejudicially affect the club. It is stated that it was only on the previous day of filing the application that he became aware of these records with the Bangalore Club, which go to very root of the matter. It is contended that the Club will succeed if the documents - 17 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 are produced and these documents are essential for a just decision in the matter. 11. The said application is opposed by the respondent/plaintiff by filing counter. In counter, the plaintiff contended that the documents which now are sought to be produced were in the custody of the appellant-Club at the time of the trial. Nothing prevented the appellant from producing the same during the proceedings. It is contended that the provisions of Order 41 Rule 27 of CPC do not entitle a party to produce additional documents without satisfying the conditions enumerated therein. The affidavit filed in support of the application do not throw any light in respect of any of the grounds that are available under Rule 27 of order 41 of CPC. After stating so, the plaintiff/respondent goes on to comment on each of the documents produced by the appellant and contend that these documents are only to cover up the lacunae of the defendant during the trial. Therefore, he has sought for dismissal of the application. - 18 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 12. On admitting the appeal, the trial Court records have been secured and the arguments by Sri Prabhuling K. Navadgi, learned Senior Counsel for Sri Nikit Bala and Sri Suja Surendran, for appellant/defendant and Sri Chandan K., for respondent/plaintiff were heard. 13. The learned Senior counsel Sri Prabhuling K. Navadgi, submits that the Specific Relief Act, bars the enforcement of the personal services. In this regard, he contend that Section 14(a) and (e) of the Specific Relief Act is relevant. In this regard, he relies upon the judgment in the case of Nandganj Sihori Sugar Co., Ltd., Rae Bareli and another Vs. Badri Nath Dixit and others1. In the said judgment, it is held as below: "……Courts do not ordinarily enforce performance of contracts fo a personal character, such as a contract of employment. In the words of Jessel, M.R: "The courts have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreements of hiring and service, being the common relation of master and servant… 1 (1991) 3 SCC 54 - 19 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 10. A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages. (See Section 14 read with Section 41 of the Specific Relief Act; see Indian Contract and Specific Relief Acts by Pollock and Mulla, 10th edn., page 983). The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence of any statutory requirement, courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer. There are, of course, certain exceptions to this rule, such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution; reinstatement of a dismissed worker under the Industrial Law; a statutory body acting in breach of statutory obligations, and the like.” It was a case wherein the appellants who are the officers of the Nandganj Sihori Sugar Co., Ltd., were the defendants. The plaintiff -Badri Nath Dixit instituted a suit for mandatory injunction to enforce the contract alleged to have been entered into between them to the post of Instrumentation Foreman in the Company. There was a dispute as to whether it is contractual or otherwise. While dealing with the said matter, the Apex Court observed that the Courts do not ordinarily enforce the performance of - 20 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 the contracts of a personal character and such as contract of employment. It is pertinent to note that it is a case of contractual employment, but not a promotional one. 14. He further relied on another judgment in the case of Integrated Rural Development Agency Vs. Ram Pyare Pandey2, wherein, in Para 6 it was held as below: is one "6. The appellant — Integrated Rural Development Agency — registered under Societies Registration Act. It has its own Articles of Association. It has framed its own rules thereunder. There is no plea or material or proof that the appellant — Integrated Rural Development Agency — is one constituted under statute or is owned or controlled by the State Government or an instrumentality of the State. The relationship between the appellant — Integrated Rural Development Agency — and the respondent is based on contract and is purely one of master and servant. As stated by Jenkins, L.J. in his dissenting judgment in Vine v. National Dock Labour Board [(1956) 1 All ER 1] , which was approved in appeal by the House of Lords in Vine v. National Dock Labour Board [(1956) 3 All ER 939] : “In the ordinary case of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arise. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be nothing more.” 2 1995 Supp.(2) SCC 495 - 21 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 Delivering the judgment of three-member Bench of this Court in Nandganj Sihori Sugar Co. Ltd., Rae Bareli v. Badri Nath Dixit [(1991) 3 SCC 54] Thommen, J. stated the law thus: “A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages. (See Section 14 read with Section 41 of the Specific Relief Act; see Indian Contract and Specific Relief Acts by Pollock and Mulla, 10th Edn., page 983). The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence of any statutory requirement, courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer. There are, of course, certain exceptions to this rule, such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution; reinstatement of a dismissed worker under the Industrial Law; a statutory body acting in breach of statutory obligations, and the like.” Similarly in Ridge v. Baldwin [(1963) 2 All ER 66] , Lord Reid stated the law emphatically thus: “The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing - 22 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 is under some statutory or other the man restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them.” 15. It is evident that, there cannot be a specific performance of a Contract of Service and the Master can terminate the Contract with his Servant at anytime and for any reason or for none. But if he does so in a manner not warranted by the contract, he must pay the damages for Breach of Contract. It is pertinent to note that in Para 7, the Apex Court observes that "by affording relief of a reinstatement or back wages, the Courts will, in fact, be granting specific performance of the Contracts of Service, which can be done only in the exceptional or rare cases." No doubt, the specific performance of contract in the nature of personal services are not permissible, but it is not an absolute Rule as held by the Apex Court. 16. Per contra, learned counsel appearing for the respondent/plaintiff submits that the plaintiff was appointed in the year 1979 under the Appointment Letter which is produced at Ex.P1. The terms and conditions of - 23 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 the appointment do not mention about any procedure to be followed for termination. Even the Club Rules also do not have any provision for termination. He contends that DW1 in the cross examination admits the said facts. It is contended that the letter of the Club at Ex.P7 speaks of dereliction of duty. The first punishment was by way of admonishment. The second punishment was, reduction of the allowances of Rs.5,000/- for a period of one year and the third punishment was, withholding the increment and lastly, the forth punishment was, termination. It is contended that for none of these actions, at any point of time, the plaintiff was heard. All these actions were unilateral and without following the Rules of natural justice. Let alone a domestic enquiry which was to be held, a Report of 03 Member Committee which looked into the various businesses of the Club and then it was to suggest remedial measures, opined that, a punishment has to be imposed and the earlier punishment are inadequate. Without a charge being levelled against the plaintiff and without affording an opportunity to him, such a report - 24 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 could not have been acted upon. Moreover, the Report itself says that it has to be tabled before the General Body of the Club. But, the General Committee, without tabling the same before the General Body has acted in its own way and has imposed 04 punishments to the plaintiff. Therefore, he contends that the act of the Club is unknown to law and is illegal. The various letters issued by the plaintiff to the defendant seeking the protection of the salary and the reason for asking him to go on leave, were never answered. It is contended that the defendant then filed a Caveat, wherein they intimate the termination and the alleged letter of termination reaches the plaintiff subsequently. It is contended that, except the insurance and gratuity, no amount is paid to the plaintiff. He further submits that the enforcement of the personal services are barred under Section 14 of the Specific Relief Act, only if there is any personal skills are involved. In the case on hand, it was not a contractual work, but the plaintiff had served the Club for more than 22 years and therefore, it - 25 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 cannot be said that the provisions of Section 14 of the Specific Reliefs Act are applicable to the case on hand. 17. Adverting to the application filed under order 41 Rule 27 of CPC, he submits that there is absolutely no acceptable reason which falls within the Scope of Rule 27 of Order 41 CPC. Regarding the merits of the case, it is contended that the reliefs claimed is based on common law and in this regard, he relies on the judgment in the case of Rajasthan SRTC and others Vs. Mohar Singh3. In this judgment, it was held that in para 11, as below: “11. Civil Court may have a limited jurisdiction in service matters but it cannot be said to have no jurisdiction at all to entertain a suit. It may not be entitled to sit in appeal over the order passed in the disciplinary proceedings or on the quantum of punishment imposed. It may not in a given case direct reinstatement in service having regard to Section 14(1)(b) of the Specific Relief Act, 1963 but, it is a trite law that where the right is claimed by the plaintiff in terms of common law or under a statute other than the one which created a new right for the first time and when a forum has also been created for enforcing the said right, the Civil Court shall also have jurisdiction to entertain a suit where the plaintiff claim benefit of a fundamental right as adumbrated under Article 14 of the 3 MANU/SC/7522/ 2008 = AIR 2008 SC 2553. - 26 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 Constitution of India or mandatory provisions of statute or statutory rules governing the terms and conditions of service.” 18. Then he relied on the judgment in the case of Rajasthan State Road Transport Corporation and others Vs. Bal Mukund Bairwa4. In this judgment it was held as below: “13. We must also notice the distinction between a right which is conferred upon an employer under a statute for the first time and also providing for a remedy and the one which is created to determine the cases under the common law right. Only in a case of the former, the Civil Court's jurisdiction may be held to be barred by necessary implication. The question came up for consideration before a Three Judge Bench of this Court in The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke & Ors. [AIR 1975 SC 2238]. The distinction as noticed hereinbefore, was noticed therein. xxxxxx Having analysed the other ratio of decisions, it was summed up: "To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus: (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act and the remedy lies only in the civil Court. 4 MANU/SC/0181/2009 = (2009) 4 SCC 299 - 27 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 (2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.” (4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be." xxxxxx 28. In a case where no enquiry has been conducted, there would be violation of the statutory Regulation as also the right of equality as contained in Article 14 of the Constitution of India. In such situation, a civil suit will be maintainable for the purpose of declaration that the termination of service was illegal and the consequences flowing there from. However, we may hasten to add if a suit is filed alleging violation of a right by a workman and a corresponding obligation on the part of the employer under the Industrial Disputes Act or the Certified Standing Orders, a civil suit may not lie. However, if no procedure has been followed as laid down by the statutory Regulation or is otherwise imperative even under the common law or the principles of natural justice which right having arisen under the existing law, subpara (2) of paragraph 23 of the law laid down in Premier Automobiles Ltd. (supra) shall prevail.” - 28 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 19. Further, he also relied on the judgment in the case of Gargi Banerjee Vs. The State of West Bengal and others5 where again, in para 15 it was held as below: “15. Notwithstanding the general judicial sanctity accorded to a contract of personal service, such a contract, in appropriate situations, is ring- fenced with stipulations/prescriptions that have the effect of treating the ruptures in the contractual relationship holistically in the perspective of the controlling regulations, in this case the SR and the Code. In other words, the Court has the power to declare contractual relationship as a nullity particularly, in a situation such as the present, where non-adherence to the mandatory controlling regulations is admitted and the MC does not pretend the authority to overshoot the SR and Code which also bind it.” repudiation of the the 20. In the light of the above submissions, the points that arise for my consideration in this appeal are: (i) Whether the application filed under Order 41 Rule 27 of CPC deserves to be allowed? (ii) Whether the suit was barred by Section 14 of the Specific Relief Act? (iii) Whether the judgment of the trial Court is perverse, arbitrary and deserves any interference? 5 MANU/WB/1146/ 2019 - 29 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 21. Re. point No.1:-The affidavit filed in support of the application states that the applicant came across the documents now sought to be produced while he was searching for the records only on the previous day of filing of the application when the case was listed before this Court. Para 3 of his affidavit shows that these documents were not made use of when the matter was before the trial Court, during trial. The affidavit does not mention as to why DW1, while he came to Court to depose in the matter on 14.11.2006 could not produce these documents. It is trite law that Court and the Law will only come to the aid of a person who is diligent in prosecuting his rights. The affidavit no where mention as to why the defendant- Club did not search for the documents while an opportunity was granted to it to do so by the trial Court. It is also a settled proposition of law that invoking of the provisions of Order 41 Rule 27 of CPC is only in exceptional circumstances, that fall within the scope and ambit of Order 41 Rule 27 of - 30 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 CPC. In this regard, the judgment of the Apex Court in the case of Union of India Vs. Ibrahim Uddin6 has laid down the principles under which such applications are to be dealt with. 22. Order 41 Rule 21 of CPC reads as below: “27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if — (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 6 (2012) 8 SCC 148 - 31 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 23. The judgment in the case of Union of India Vs. Ibrahim Uddin referred supra, is clear enough in stating as to what are the circumstances under which, such applications are to be considered. It also lays down that the provisions of Order 41 Rule 27 of CPC cannot be invoked as a right. However, wide discretion is given to the Court to secure the documents/evidence if such evidence is necessary for pronouncement of the judgment in the matter. Keeping in view the above principles laid down by the Apex Court, if we examine the factual matrix of the case, it cannot be said that the appellant was diligent in prosecuting the case. 24. The documents now sought to be produced pertain to the resolutions of the General Committee dated 25.10.1999, 10.10.2001 and the events that occurred subsequent to it. None of these documents show anything that would depict that an enquiry was held, wherein, the plaintiff was given an opportunity to put forth his case. - 32 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 Therefore, none of these documents are of any relevance at this juncture. The discussions made in the following paragraphs would show that the fundamental principle of Audi alteram partem was not followed prior to termination of the services of the plaintiff. Therefore, none of the requirements contemplated in Order 41 Rule 27(1) are satisfied by the appellant/defendant. Hence, the said application being devoid of merits is liable to be rejected. Accordingly, it is rejected. 25. Re.Point Nos.2 and 3-The affidavit evidence of the plaintiff as PW1 is nothing but reiteration of the averments made in the plaint. The perusal of the cross- examination of the PW1 shows that he has denied the suggestion that the appointment to the post of the Secretary was made pursuant to an advertisement in the Newspaper as per the bye-laws. The copy of the resolution dated 25.10.1999, which allegedly the defendant wanted to rely show that there was no such advertisement which was published. It was further elicited - 33 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 in the cross-examination that the plaintiff was in fact not appointed afresh, but he was promoted from the post of the Deputy Secretary. He admits that he had appeared before the 03 Members Committee, but deny that he had admitted about his dereliction of duty. There is nothing in the cross-examination which shows that the plaintiff had appeared before any enquiry committee which went into the misgivings of the plaintiff. Though he states that he appeared before the 03 Member Committee, obviously, the said 03 Member Committee Report produced at Ex.D1 was to give Report in respect of the terms of reference given to it. 26. Ex.P1 is the Appointment Letter dated 10.11.1999. This document clearly mention that the appointment as a Secretary to the Club is on the promotional basis. The salary is stated to be a basic pay of Rs.15,000/- with annual increments of Rs.1,500/-. Nowhere, it states that while terminating his employment, a notice of three months would suffice. But it says that for - 34 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 all purposes the service is governed by the Rules and Bye- Laws of the Club. Obviously, it not the contention of the appellant that such 3 months notice was given to the plaintiff. 27. Ex.P1(a) is the job description of the plaintiff and Ex.P2 is the Letter of Reporting to Duty on 06.10.1999. Ex.P3 is an acknowledgment for having the plaintiff reported to duty. Ex.P4 is a letter dated 08.10.2001, where the plaintiff was sanctioned leave for three days. Ex.P5 is the letter where the plaintiff was directed to remain on leave till 31.10.2001. As per Ex.P6, the plaintiff sought reasons for asking him to be on compulsory leave. Ex.P7 dated 12.06.2001 is a letter whereby the General Committee, as per its discussion and decision, admonished the plaintiff for dereliction of duty. It mentioned that it was in connection with the misgivings of Mr. V.M. Baindur. Again, as per letter dated 13.07.2001 at Ex.P8, the plaintiff was informed of a punishment of reducing the allowance by Rs.5,000/-. It - 35 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 refers to the previous letter dated 12.06.2001 which is at Ex.P7. Thereafter, the plaintiff was not given the increment, for which he sought reasons as per letter dated 08.08.2001 at Ex.P10. Then on 30.08.2001 as per Ex.P9 he again wrote a letter. On 08.11.2001 as per Ex.P11 the plaintiff requested for payment of the salary. According to plaintiff, only on 19.10.2001, he came to know about his termination from the copy of caveat petition served upon him and then the termination letter as per Ex.P12 was communicated to him. 28. These documents clearly show that the contention of the plaintiff that he was punished four times for the same dereliction of duty is correct. On the first occasion by way of admonition, on the second occasion, by asking him to go on compulsory leave, on the third occasion, by reducing the allowance by Rs.5,000/- and on the fourth occasion by termination from service. It is evident that none of the letters of notices issued by the plaintiff show that he was asked to give an explanation or - 36 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 was made to appear before any Enquiry Committee to look into the misdeeds of the plaintiff. Therefore, the entire discussion regarding the dereliction of duty by the General Committee was one sided, without following the principles of natural justice. 29. The testimony of DW1 shows that on various occasions the plaintiff was warned by the defendant Club. In support of this contention, there is absolutely no documents which are produced. He says that now the plaintiff is gainfully employed and therefore, he is not entitled for any relief. The cross-examination shows that he is deposing only on basis of the documents and he do not have any personal knowledge. There is no satisfactory reply by him as to why the punishment will be imposed on four occasions for the same alleged dereliction of duty in the matter Mr. V.M. Baindur. 30. So far as the documents of the defendant – Club is concerned, the report of 03 Member Committee - 37 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 produced at Ex.D1 is of importance. The opening words of the report read as below: “ We record our deep sense of gratitude to the President and other members of the General Committee for having reposed their confidence in the members of the Committee to hold an impartial inquiry into the case of Mr. V.M. Baindur. The terms of reference to the Committee were as follows: a. Why procedures were not followed? b. Who is responsible for not following the procedures? c. How to prevent further occurrences of such lapses in future?” 31. It is pertinent to note that the Committee was not required to go in to the involvement of the plaintiff herein. It was only a fact finding committee, which was asked to suggest the remedial measures to prevent the acts of the kind of Mr. V.M. Baindur. In the course of their enquiry, plaintiff is one among the various persons, who were examined. Therefore, Ex.D1 is not of any help to the defendant – Club. The Committee nowhere gave an opportunity to the plaintiff to explain any of the allegations made against him. Therefore, the documents produced by - 38 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 the defendant are not of relevance in the matter of termination of the plaintiff from service. 32. The above evidence on record categorically indicates that the Rule of Audi-Alteram-Partem was never followed by the defendant. Four punishments were given to the plaintiff and that too, without giving him an opportunity to reply. He was never summoned before the General Committee to answer the charges leveled against him. None of the members of the General Committee had informed the plaintiff that he would be subjected to an enquiry. Therefore, the entire procedure followed by the defendant – Club in the matter of termination is one sided and falls short of any quasi-judicial proceedings. 33. Coming to the question of law, the learned counsel for the appellant-defendant has placed reliance on the provisions of Section 14 of the Specific Relief Act, which reads as below: "14. Contracts not specifically enforceable.— The following contracts cannot be specifically enforced, namely:— - 39 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 (a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20; (b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.” 34. It is to be noted that, Clause – c prohibits enforcement of the terms of the contract which is dependent on the personal qualifications of the parties. In this regard, the learned counsel for the appellant has placed reliance on the judgment in the case of Nandganj Sihori Sugar Co.,Ltd., Rae Bareli and another referred supra. It is pertinent to note that, in Para 10 the judgment, the Apex Court observes that there are certain exceptions to the rule. The Apex Court is clear enough in saying that the grant of specific performance is clearly discretionary in nature. Ordinarily, a contract of employment cannot be enforced against the employer. - 40 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 However, the Apex Court mention the exceptions to the Rule in the judgment. Hence, it cannot be said that the Rule as absolute. 35. The judgment in the case of Integrated Rural Development Agency Vs. Ram Pyare Pandey, referred supra, refers to a contractual employee. In the case on hand, it is not a contractual employment which is based on the skill of the plaintiff. Rather, he was appointed in the year 1979, promoted on four occasions and then he was appointed as a Secretary. The Appointment Letter is clear enough in saying that it is on promotional basis. Clause-2 of the Appointment Letter at Ex.P1 reads as below: “1. Your appointment as the Secretary of the Club is on a promotional basis from your present designation as Deputy Secretary,” Therefore the appointment was not contractual in nature. 36. The learned counsel for the respondent – plaintiff has relied on the judgment of the Apex Court in the case of Rajasthan SRTC and others Vs. Mohar - 41 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 Singh, referred supra, wherein, in Para 13 and 28, it was observed that the suit is maintainable. 37. Later, in the year 2019, Calcutta High Court reiterated the above view in its judgment in the case of Gargi Banerji Vs. The State of West Bengal and others (referred supra). 38. In view of the above propositions of law, it is evident that a suit before a Civil Court is maintainable when the employee under an unregistered Club faces issues of violation of fundamental rights under Art 14 of the Constitution, statutory regulations or rule of natural justice regarding employment. Obviously, the Club is not governed by the State or is an instrumentality of the State. It neither is governed by the Industrial Disputes Act. The nature of the employment is not contractual, but by way of promotion. It is governed under the Bye-Laws of the Club. Therefore the suit is maintainable. 39. The said Bye-Laws is produced at Ex.P13. Clause – 23.10 (9) reads as below: - 42 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 “23.10 (ix). If, in the opinion of the General Committee the conduct of any Member of the Club whether in or out of the Club is injurious to the reputation and interest of the Club or is likely to disturb the order and harmony of the Club, the General Committee shall cause a written notice to be sent to him at his last known address by registered letter stating that on a date fixed, the General Committee will consider an explanation or defence of his conduct, which he may choose to submit to them. The General Committee may however, suspend such Member from Membership of the Club, if in their opinion the gravity of the case so warrants, before the notice is sent. On that day at a Meeting specially convened or at any adjournment of such meeting, the General Committee, shall decide by two thirds of the Members of the General Committee voting at the Meeting whether the Member concerned has merited a reprimand, suspension or expulsion. A notice of the decision shall be sent to him by the Secretary immediately. Any Member expelled shall be ineligible for future re-election and any subscription he may have paid in advance shall be refunded.” 40. Obviously, the procedure contemplated therein was not followed by the Club. Evidently, the plaintiff was an employee but not a Member. Therefore, the termination of the plaintiff from the employment of the defendant – Club is illegal and is not sustainable in law. 41. The learned trial Judge has rightly come to the conclusion that the termination is illegal. The - 43 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 consequences thereof would be the reinstatement. The trial Judge in his discretion directed that there being evidence to show that plaintiff was gainfully employed from the year 2001 to 2007, the plaintiff is not entitled for back-wages. No fault can be found with the said discretion exercised by him. 42. Now it is submitted that had the plaintiff continued in service, he would have retired by way of superannuation in the year 2013. In other words, he would have been entitled for salary till 2013. It will be nothing but 50% of the emoluments that he would have got. Therefore, by way of moulding of the relief, this Court holds that no interference is required in the impugned judgment. There is scanty evidence as to what emoluments the plaintiff is entitled from the date of the decree and the date of superannuation. Counsel for the plaintiff has filed a memo of calculation indicating such emoluments at Rs. 44,79,370/-. But that cannot partake the character of evidence. An effort made earlier by this - 44 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 Court by referring the matter for mediation has failed. Therefore, an enquiry has to be made by the trial Court under Order XX of CPC in this regard. Consequently, the point Nos.2 and 3 are answered in the negative. In the result, the appeal fails. Hence, the following:

Arguments

September 2000, the Manager Accounts, Mr. Ashok S. Solapurkar, committed a default in not accounting to a factor of default committed by a Member of the General Committee Mr. V.M. Baindur, in payment of his dues for the month of June 2000. It is stated that the Members, when availing the facilities of the Club are required to pay certain charges for using the facilities and such charges were due from the said Mr. V.M. Baindur. As per the Rules, if the bill remains unpaid till the end of the month, 02 reminders are to be sent in the span of 60 days and if the charges are not cleared, then the name will be notified on the Notice Board of the Club. The defaults committed by Mr. V.M. Baindur, was looked after by the said Accounts Manager, Mr. Ashok S. Solapurkar, but, there was a tacit and unwritten Rule not to issue and ignore such accruals and liabilities of a Member who is in the General - 6 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 Committee as well as the past presidents of the Club. The plaintiff was unaware of such liability of V.M. Baindur. (d) The plaint further states that, in case of default committed by the Members of the General Committee Member who has prevalent liability cannot contest for the Office Bearer at the Annual Elections. The default committed by Mr. V.M.Baindur was cleared before such Elections and then he contested for the Election for the year 2001- 2002. The General Committee scrutinized with the nomination forms before notifying the candidates for the Elections and in the said Election, the said Mr. V.M. Baindur was elected as Office Bearer. (e) Then, in January 2001, a Post of Finance Controller was created and the Finance Department which was hitherto handled by Mr. Ashok S. Solapurkar, was entrusted to the Finance Controller. Aggrieved by this, Mr. Ashok S.Solapurkar approached the Finance Sub- Committee, Chairman, Mr. Amarnath Kamath, who is an elected Office Bearer and made references in magnanimity - 7 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 and in deliberately not issuing notices to the defaulting Members of the General Committee and past Presidents, and brought to the his notice that Mr. V.M. Baindur was one among them. The Finance Sub-Committee, took cognizance of the said fact and the default committed by member of the General Committee and later the said Mr. V.M. Baindur, resigned from the General Committee. So also in a special meeting of the General Committee on 24-05-2001, the Assistant Secretary, Accounts was found guilty and he was asked to resign or to face a domestic inquiry, and he was placed under suspension. (f) In the said meeting, it was also resolved that as a Secretary was the Administrative Head, he was morally held responsible and for this, administrative lapse, the Secretary (Plaintiff) , was to be admonished and warned. (g) It was contended that the plaintiff was punished by the written admonishment and warning by letter dated 12-06-2001. The said letter of punishment by way of admonishment, was conveyed to the plaintiff, he was - 8 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 admonished and advised to ensure that Cub Rules are to be followed, etc., and the plaintiff accepted the punishment gracefully as everyone in the Meeting was aware that the plaintiff was in no way directly responsible for the lapses. It was further contended by the plaintiff that after culmination of the said issue, an informal Meeting of the General Committee, was held on 08-06-2001 and it was decided to constitute a 03 Member Committee to inquire into the said case of defaults committed by the Members of the General Committee in paying the bills and suggest as to the ways and means to avoid such occurrences in future. (h) In pursuance to the resolution of General Committee, a 03 Member Committee, which consisted of Justice Sri M.P. Chandrakant Raj Urs, Sri K. Bhaskaran Nambiar and Sri M.S. Haji Jafar, was constituted and it conducted an inquiry into the delayed payments by Mr. V.M. Baindur and others and suggested certain measures. The said Committee also summoned all the - 9 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 concerned, including the Assistant Secretary- Ashok S. Solapurkar, plaintiff and several others. The mode of inquiry was against the principles of natural justice and equity and is fundamentally violative of the basic principles of adducing evidence. In the said inquiry, Mr. Ashok S Solapurkar reversed his stand which he had earlier taken on 24-05-2001 before the General Committee, and stated that he had not issued notice to Mr. V.M. Baindur at the instance of the plaintiff. The said 03 Member Committee concluded that the consequences of the default as prescribed under Rule 24 should automatically follow and that the plea of not issuing notice to the Committee Members and to the past Presidents is not cogent. It further recommended to the General Body to review the punishment meted out to the plaintiff and Mr. Ashok S.Solapurkar and as it was convinced that the plaintiff was let out with a very light punishment. (i) Though the 03 Member Committee in its Report had stated that the Report has to be tabled before the - 10 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 General Body Meeting and due to lack of quorum, the Report was not tabled. Then the General Committee decided to print the Report and circulated among the Members on 06-07-2001. Thereafter, the Special General Committee Meeting was held and the draft of the Report was approved. The General Committee also decided to determine the punishment of the plaintiff which the Report had suggested to be insufficient. But said Report was not approved by the General Body. Accordingly, the General Committee decided to reduce the allowances of the Secretary by Rs.5,000/- per month for a period of 12 months with effect from July 2001 and the same was informed to all the Members by a Circular dated 13-07-2001. The said reduction in the allowances was the second punishment to the plaintiff. (j) The plaintiff had no option to accept the said reduction in the allowances by Rs.5,000/- per month and even then, he kept mum. Then the plaintiff was surprised to note that his annual increment, which was contracted in - 11 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 terms of the employment was not given and therefore, he wrote a letter on the 30-08-2001 to the President of the Club. The Club communicated through Minutes of the Special General Committee meeting held on 12-09-2001 that the increment was refused. There was no reason for refusal of the increment to the plaintiff since two punishments were already given to him. (k) It is contended that the plaintiff’s office was shifted from the office of the Secretary to be located in the records room and the said act was maliciously motivated. Ultimately, the service of the petitioner was terminated. The notice of termination from service was issued to him, which the plaintiff came to know through the copy of the Caveat served upon him. (l) It is contended that the General Committee has no explicit powers to terminate the services of the plaintiff for the purported reason of loss of confidence, without explaining what actually constituted. There was no such inquiry which was conducted following the Rule of natural - 12 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 justice and the 03 Member Committee had a broader reference at its disposal and the inquiry was not in respect of the charges levelled against the plaintiff. It is contended that the alleged letter, dated in 19-10-2001 not only revokes the plaintiff’s contractual right of employment and revoke the right of the plaintiff as member of the defendant’s Club even though the plaintiff had several commendations for him in the past years of service. It is contended that the plaintiff has a right to secure such invaluable right and contractual right and therefore, he was constrained to file this suit. Thus, the plaintiff sought to declare that the order passed by the defendant Club terminating the services of the plaintiff to be void and to grant an order of mandatory injunction to direct the defendant to allow the plaintiff to work as contracted the Secretary of the defendant's Club and to grant any other relief which the Court deems fit. 4. The defendant- Club, through its President, filed a written statement contending that the suit is not - 13 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 maintainable and is bad, illegal void, etc. It was stated that the relief of specific performance of a contract of service is not susceptible and the plaintiff entered the service agreeing to be governed by the Appointment Order Rules, Regulations and the Standing Order of the defendant-Club. It was contended that having agreed to abide by the Rules, now he is estopped from contending that the defendant -Club has no power to terminate the service of the plaintiff. It was contended that the specific enforcement of the service is barred under Section 14 (a) and (e) of the Specific Relief Act and the contracts for personal service are not specifically enforceable and as such, the suit is not maintainable. The defendant further contended that the averments in the plaint are self serving and there is no cause of action. It was contended that the defendant-Club on various occasions had warned the plaintiff for misconduct and there were innumerable complaints against the plaintiff from various other Clubs and Members about his abnormal behavior and attitudes. It was stated that the plaintiff during his tenure was the - 14 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 Custodian and the Trustee of the documents and properties of the Club and he has illegally taken possession of innumerable documents of the Club, unauthorizedly and surreptitiously, to file unjust litigation against the defendant, i.e., the Club, his Employer. 5. By way of additional written statement, it was contended that the letter dated 19-10-2001 at no point of time came into existence, and it is a figment of imagination. It was contended that the allegations made by the plaintiff are with malafide intentions and that the suit deserves to be dismissed. However, the defendant admitted that Meetings were conducted, 03 Member Committee was constituted and it had given the Report. It was stated that the defendant has the power to terminate the plaintiff from service without explanation. 6. On the basis of the above pleadings, the trial Court framed the following issues; - 15 - NC: 2025:KHC:13454 RFA No. 2398 of 2007 1. Whether the plaintiff proves that termination of the plaintiff by the defendant is illegal and void ab-intio? 2. Whether the plaintiff is entitled for the declaration sought for? 3. Whether the plaintiff is entitled for the mandatory injunction sought for? 4. What order or decree? 7. The plaintiff was examined as PW1 and Ex.P1 to P13 were marked in evidence. The Deputy Secretary of the Defendant- Club was examined as DW1 Ex.D1 and D1A were marked in evidence. After closing both the sides, the arguments were heard by the trial Court and answering issue Nos. 1 to 3 in the affirmative, the suit came to be decreed. 8. Being aggrieved by the judgment and decree passed by the trial Court, the defendant-Club has

Decision

ORDER i) ii) IA No.1/2023 is dismissed. The appeal is dismissed with costs. iii) Instead of reinstatement, the plaintiff having attained the age of superannuation, would be entitled for the wages admissible from the date of the judgment of the trial Court till his age of superannuation. Sd/- (C M JOSHI) JUDGE tsn* Sl No.: 2

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