Full Judgment Text
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PETITIONER:
VIDYA RAM MISHRA
Vs.
RESPONDENT:
MANAGING COMMITTEE, SHRI JAI NARAIN COLLEGE.
DATE OF JUDGMENT31/01/1972
BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
HEGDE, K.S.
REDDY, P. JAGANMOHAN
CITATION:
1972 AIR 1450 1972 SCR (3) 320
1972 SCC (1) 623
CITATOR INFO :
R 1976 SC 888 (12,32)
ACT:
Contract of service Whether Courts enforce specific
performance of contract of service-if not, its remedy.
HEADNOTE:
The appellant joined as a lecturer in a College in U.P. On
the hub ,of certain complaints received by the Manager of
the College, charges were framed against him and his
explanation, was called for. He submitted an explanation.
The explanation was found unsatisfactory and the Managing
Committee passed a resolution for removal of the appellant
from service. The relevant statutes governing the present
case are Statutes 151, 152 and 153 framed under the
provisions of the Lucknow University Act, 1920. The
appellant filed a writ petition before the High Court
challenging the validity of the resolution and a learned
single judge finding that the Managing Committee acted in
violation of the principles of natural justice, quashed the
resolution and allowed the writ petition. On appeal, a
Division Bench set aside the order of the learned single
judge and dismissed the writ petition on the ground that no
writ lies in the facts and circumstances of the case. The
remedy of the appellant lay in a suit for damages.
On behalf of the appellant it was contended that the appel
lant had a statutory status, that his services were
terminated in violation of the provisions of the statutes
passed under the Lucknow University Act, 1920 and therefore,
the High Court was wrong in its conclusions that no writ of
certiorari would lie against the respondent. It was further
submitted that ,the appellant was not given a reasonable
opportunity of defending himself against the charges.
Statue 151 provides that a teacher of an associated College
shall be appointed on a written contract and the contract
shall provide the conditions mentioned there in addition to
such other conditions as the associated College may include
in the agreement. Clause 5 of the agreement provides that
the Managing Committee may dispense with the services of a
lecturer without notice if the Committee is satisfied that
it is necessary to remove the said lecturer for misconduct
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or otherwise, provided, an opportunity is given to him by
the Committee to give his explanation before a decision is
arrived at.
Dismissing the appeal.
HELD : (1) When there is a purported termination of a
contract of service,. a declaration that a contract of
service ’still subsisted would not be made in the absence of
special circumstances and courts do not ordinarily enforce
specific performance of a contract of service. The remedy
of the victim lies in a claim for damages, not a claim for a
declaration that the contract of service still subsisted.
[322 E-F]
Executive Committee of U.P. State Warehousing Corporation
Ltd. v. Chandra Kiran Tyagi, [1970] 2 S.C.R. 250; and Indian
Airlines Corporation v. Sukh Dev Rai, A.I.R. 1971 S.C. 1828
followed.
(2) On a plain meaning of statute 151, it is clear that it
only provides that the terms and conditions mentioned
therein must be incorporated in
321
the contract to be entered into between the College and the
teacher concerned. It does not say that the terms and
conditions have any legal force, until: and unless they are
embodied in an agreement. The terms and conditions of
service mentioned in Statute 151 have proprio vigore, no
force of law. They become terms of service only by virtue
of their being incorporated in a contract. Without the
contract, they have no vitality and can confer no legal
right. Therefore, the appellant cannot find a cause of
action of any breach of law, but only on the breach of the
con-tract, for which a writ in the nature of ceritiorari
will not lie [327 H]
(3) A writ will lie when the order is the order of a
statutory body acting in breach of a mandatory obligation
imposed by a statute. The College or the Managing Committee
in question, is not a statutory body and so the High Court
is right is dismissing the petition.[328 D]
Further, since the High Court has no jurisdiction, it is not
necessary to go into the question as to whether the
appellant was given sufficient opportunity to meet the
charges against him. [328 G] Prabhakar Ramkrishna Jodh v. A.
L. Pande & anr. [1965] 2 S.C.R.
713, and Vidyodaya University v. Silva [1964] A.E.R. 865
discussed and distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: C.A. No. 2 of 1972.
Appeal by Special- Leave from the judgment and order dated
April 13, 1970 of. the Allahabad High Court in Special
Appeal No. 1074 of 1968.
M. C. Setalvad, P. N. Tiwari J. B. Dadachanji and Co. for
the appellant.
R. K. Garg and S. C. Agarwal, for the respondents.
The Judgment of the Court was delivered by
Mathew, J. The appellant filed a writ petition before the
High Court of Allahabad, Lucknow Bench, challenging the
validity of a resolution passed on 12-11-1967 by the
Managing Committee of the Jai Narain College, Lucknow,
formerly known as Kanyakubja Degree College, an associated
college of the Lucknow University, terminating his services,
and praying for issue of an appropriate writ or order
quashing the resolution. A learned single judge of that
Court, finding that in terminating the services, the
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Managing Committee acted in violation of principles of
natural justice, quashed the resolution and allowed the writ
petition. The Managing Committee appealed against the
order. A Division Bench of the High Court found that the
relationship between the College and the appellant was that
of master and servant and that even if the service of the
appellant has been terminated in breach of the audi alteram
partem rule of natural justice, the remedy of the appellant
was to file a suit for damages and not to apply under
Article 226 of the Constitution for a writ
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or order in the nature of certiorari and that in fact no
principle of natural justice was violated by terminating the
services of the appellant as the appellant was given an
opportunity of submitting his explanation to the charges.
The Bench, therefore, set aside the order of the learned
single judge and dismissed the writ petition. It is from
this judgment that the appeal has been preferred by special
leave.
The appellant joined the service of the college as lecturer
in 1946. He was promoted to the post of Head of the
Department of Zoology in 1959. On the basis of certain
complaints against him received by the Manager of the
College, charges were framed against him and his explanation
was called for. He submitted an explanation. The
explanation was found not to be satisfactory and the
Managing Committee passed a resolution on 12-11-1967 for
removal of the appellant from service. As already stated,
this was the resolution challenged by the appellant in the
writ petition.
On behalf of the appellant, Mr. M. C. Setalvad, contended
that the appellant had a statutory status, that his services
were terminated in violation of the provisions of statutes
passed under the.Lucknow University Act, 1920 and, therefore
the High Court was wrong in its conclusions that no
application for a writ or order in the nature of certiorari
would lie. He further submitted that the appellant was not
given a reasonable opportunity of defending himself against
the charges.
it is well settled that, when there is a purported
termination of a contract of service, a declaration that the
contract of service still subsisted would not be made in the
absence of special circumstances, because of the principle
that Courts do not ordinarily enforce specific performance
of contracts of service [see Executive Committee of U.P.
State Warehousing Corporation Ltd. v. Chandra Kiran
Tyagi(1)] and Indian Airlines Corporation v. Sukhdeo Rai(’).
If the master rightfully ends the contract, ,there can be no
complaint. If the master wrongfully ends the contract, then
the servant can pursue a claim for damages. So even if the
master wrongfully dismisses the servant in breach of the
contract, the employment is effectively terminated. In
Ridge v. Baldwin(3), Lord Reid said in his speech :
"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
(1) [1970] 2 S.C.R 250. (2) A.I.R. 1971 S.C. 1828-
(3) (1965) Weekly Law Reports, Vol 1, 79.
323
warranted by the contract he, must pay damages
for breach of contract. So the question in a
pure case of master and servant does n
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ot 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 the man is under some
statutory or other restriction as to the kind
of contract which it can make with its, ser-
vants, or the grounds on which it can dismiss
them."
A teacher appointed by a University constituted under a
statute was held not to be holding an office or status in
Vidyodaya University v. Silva(1). In that case the services
of the respondent was brought to an end by a resolution of
the University Council set up under the statute establishing
the University. The resolution was admittedly passed
without hearing the teacher. Under the statute, the Council
was empowered to institute professorships and every
appointment was to be by an agreement in writing between the
University and the professor and was to be for such period
and on such terms as the Council might resolve. Under
section 18(e) of the Act, the Council had the power to
dismiss an officer or a teacher on grounds of incapacity or
conduct which, in the opinion of not less than two-third of
the members of the Council, rendered him unfit to be an
officer or a teacher of the University. Such a resolution
with the requisite majority was passed. The Act gave no
right to the teacher of being heard by the Council. The
Privy Council held that the mere circumstances that the
University was established by the statute and was regulated
by statutory enactments contained in the Act did not mean
that the contracts of employment made with teachers, though
subject to section 18(e), were other than ordinary contracts
of master and servant and, therefore, the procedure of being
heard invoked by the respondent was not available to him
and no writ could be issued against the University.
The decision in this case has been criticised by
academic .writers (see Jaffe, English and American Judges as
Law Makers, p. 26; S.A. de Smith, Judicial Review of
Administrative Action, pp. 214-215; G. Ganz, Public Law
Principles applicable to Dismissal from Employment, Modem
Law Review, Vol. 30 pp. 288291). Recently the House of
Lords considered the question in Malloch v. Aberdeen
Corporation (2) . That case concerned a teacher in Scotland
who was dismissed by the Education Committee for the reason
that he was not registered in terms of paragraph 2 of
schedule 2 to the Teachers’ (Education, Training and
Registration) (Scotland) Regulations, 1967, made under
section
(1) [1964] 3 All F.R. 865.
(2) (1971) 1 W.L.R. 1578.
324
2(1) of the Education (Scotland) Act, 1962, and the amending
regulation 4(2) of the Schools (Scotland) Code, 1956. In an
action against the education authority, he claimed that the
purported dismissal was a nullity in that it was contrary to
natural, justice since he had not been given a hearing. It
was held (Lord Morris and Lord Guest dissenting) that the
teacher had a right to be heard before he was dismissed as
according to the majority he was holding an office. In the
course of his speech, Lord Wilberforce made certain
observations
"A comparative list of situations in which
persons have been held entitled or not
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entitled to a hearing, or to observation of
rules of natural justice, according to the
master and servant test, looks illogical and
even bizare. A specialist surgeon is denied
protection which is given to hospital doctor;
a University professor, as a servant, has been
denied the right to be heard, a dock laborer
and an undergraduate have been granted it;
examples can be multiplied [see Barber v.
Manchester Regional Hospital Board (1958) 1
W.L.R. 181, Palmar v. Inverness Hospitals
Board of Management, [1963], $.C. 311,
Vidyodaya University Council v. Silva (1965) 1
W.L.R. 77, Vine v. National Dock Labour Board
[1957] A.C. 488, Glynn v. Keele University
(1971) 1 W.L.R. 4871. One may accept that if
there are relationships in which all
requirements of the observance of rules of
natural justice are excluded (and I do not
wish to assure that this is inevitably so),
these must be confined to what have been
called "pure master and servant cases", which
I take to Mean cases in which there is no
element of public employment or service, no
support by statute, nothing in the nature of
an office or a status which is capable of
protection. If any of these elements exist,
then, in my opinion, whatever the terminology
used, and even though in some inter parties
aspects the relationship may be called that of
master and servant, there may be essential
procedural requirements to be observed, and
failure to observe them may result in a
dismissal being declared to be void."
and then he said as regards the decision in VidyodaYa
University, Council v. Silva(1) :
"It would not be necessary or appropriate to
disagree with the procedural or even the
factual basis on which this decision rests :
but I must confess that I
(1) [1964] 3 All E.R. 865.
325
could not follow it in this country in so far
as it involves a denial of any remedy of
administrative law to analogous employments.
Statutory provisions similar to those on which
the employment rested would tend to show, to
my mind, in England or in Scotland, that it
was one of a sufficiently public character, or
one partaking sufficiently of the natu
re of an
office, to attract appropriate remedies of
administrative law."
Whether the decision in Vidyodaya University Council v.
Silva(1) is correct or not, in this. case, we think there
was no element of public employment, nothing in the nature
of an office or status which is capable of protection.
In S. R. Tewari v. District Board, Agra(2), this Court
formulated the exceptions to the general rule that when
there is a termination of a contract of service, a
declaration that the contract of service still subsisted
would not be made, by saying :
"But this rule is subject to certain well
recognised exceptions. It is open to the
Courts, in an appropriate case, to declare
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that a public servant who is dismissed from
service in contravention of Article 311
continues to remain in service, even though by
so doing the State is in effect forced to
continue to employ the servant whom it does
not desire to employ. Similarly, under the
industrial law, jurisdiction of the labour and
industrial tribunals to compel the employer to
employ a worker, whom he does not desire to
employ, is recognised.- The Courts are also
invested with the power to declare invalid the
act of a statutory body, if by doing the act,
the body has acted in breach of a mandatory
obligation imposed by the statute, even if by
making the declaration the body is compelled
to do something which it does not desire to
do."
Mr. Setalvad contended that since the college in question is
affiliated to a statutory body, namely, the University of
Lucknow,and is governed by the relevant statutes and
ordinances framed under the provisions of Lucknow University
Act, 1920, any violation of the statute or the ordinance in
the matter of terminating the services of a teacher would
attract the jurisdiction of the High Court under Article 226
of the Constitution as statutes and ordinances have the
force of law. In support of this, counsel relied upon the
decision of this Court in Prabhakar Ramakrishna Jodh v. A.
L. Pande and another("). The appellant before this Court in
that case was a teacher in a college affiliated to the
University of Saugar and managed by the Governing Body
(1) [1964] 3 All E.R. 865. (2) [1964] 3 S.C.R. 55.
(3) [1965] 2 S.C.R. 713.
326
established under the provisions of the relevant ordinance
made under the University of Saugar Act. Certain charges
were framed against the appellant by the Principal of the
College and he was asked to submit his explanation. The
appellant in his explanation denied all the charges and
requested for particulars on which one of the charges was
based. The particulars were not supplied and the Governing
Body terminated his services without holding any enquiry.
The appellant moved the High Court under Article 226 of the
Constitution for a writ quashing the order of the Governing
Body and for his reinstatement. He contended that the
Governing Body had made the order in violation of the
provisions of Ordinance 20, otherwise called the ’College
Code, framed under section 32 of the University of Saugar
Act read with section 6 (6) of that Act. Clause 8 (vi (a)
of the College Code provided that the Governing Body of the
college shall not terminate the services of a confirmed
teacher without holding an enquiry and without giving him an
opportunity of defending himself. The High Court held that
the conditions of service of the appellant were governed not
by the ’College Code’ but by the contract made between the
Governing Body and the appellant under clause 7 of the
College Cod&-which stated that all teachers of the college
shall be appointed under a written contract in the form
prescribed-, that the provisions of the ’College Code’ were
merely conditions prescribed for affiliation of colleges and
that no legal rights were created by the ’College Code’ in
favour of the teachers of the affiliated colleges as against
the Governing Body. The High Court, therefore, dismissed
the petition. In appeal to this Court it was held that the
’College Code’ had the force of law and that it not merely
regulated the legal relationship between the affiliated
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colleges and the University but also conferred legal rights
on the teachers of affiliated ,colleges. The Court further
said
"It is true that Clause 7 of the Ordinance
provides that all teachers of affiliated
colleges shall be appointed on a written
contract in the form prescribed in Sch. A but
that does not mean that teachers have merely a
contractual remedy against the Governing Body
of the College. On the other hand, we are of
opinion that the provisions of Clause 8 of the
Ordinance relating to security of the tenure
of teachers are part and parcel of the
teachers’ service conditions........"
When once this Court came to the conclusion that the
’College Code’ had the force of law and conferred rights on
the teachers of affiliated colleges, the right to challenge
the order terminating the services of the appellant, passed
in violation of clause 8 (vi) (a) of the ’College Code’ in
a proceeding under Article 226
327
followed ’as the night the day’ and the fact that the
appellant had entered into a contract was considered as
immaterial.
In the case in hand, the position is entirely different.
The relevant statutes governing this case are statutes 151,
152 and 153, framed under the provisions of the Lucknow
University Act, 1920. Statute 151 provides that teachers of
an Associated College including the’ principal shall be
appointed on written contract and that the contract shall
inter alia provide the conditions mentioned therein in
addition to such other conditions not inconsistent with the
Act and the statutes as an Associated College may include in
its own form of agreement. Then the conditions as regards
salary, age of retirement, etc., are enumerated. The
statute then goes on to specify the grounds on which a
teacher’s services can be terminated. Statute 152 states
that the form of agreement to be adopted by each college
shall be approved by the Executive Council before it is put
in force. Statute 153 provides for a form of agreement
which shall serve as a model. It may be noted that statute
151 does not provide for any particular procedure for
dismissal or removal of a teacher for being incorporated in
the contract. Nor does the model form of contract lay down
any particular procedure for that purpose. The appellant
had entered into an agreement when he was employed in the
college. Clause 5 of the agreement provided that :
"the period of probation shall be one year
unless extended by the Managing Committee and
the College may at any time during the said
period of probation put an end to this
engagement, or if service shall continue
beyond the said term, at any time thereafter,
dispense with the services of the said
Lecturer without notice, if the Managing
Committee of the said College is satisfied
that it is necessary to remove the said Lec-
turer for misconduct, insubordination or
habitual neglect of duty on the part of the
said Lecturer ’or in case any of the
conditions herein specified have been broken
by the said Lecturer provided that an oppor-
tunity is given to him by the said Managing
Committee to give his explanation before a
decision is arrived at."
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On a plain reading statute 151, it is clear that it only
provides that the terms and conditions mentioned therein
must be incorporated in the contract to be entered into
between the college and the teacher concerned. It does not
say that the terms and conditions have any legal force,
until and unless they are embodied in an agreement. To put
it in other words, the terms and conditions of service
mentioned in Statute 151 have proprio
328
vigore no force of law. They become terms and conditions of
service only by virtue of their being incorporated in the
contract. Without the contract, they have no vitality and
can confer no legal rights.
Whereas in the case of Prabhakar Ramakrishna Jodh v. A. L.
Pande and another(1), the terms and conditions of service
embodied in clause 8 (vi) (a) of the ’College Code’ had the
force of law apart from the contract and conferred rights on
the appellant there, here the terms and conditions mentioned
in Statute 151 have no efficacy, unless they are
incorporated in a contract. Therefore, appellant cannot
found a cause of action on any breach of the law but only on
the breach of the contract. As already indicated, Statute
151 does not lay down any procedure for removal of a teacher
to be incorporated in the contract; So, clause 5 of the
contract can, in no event, have even a statutory flavor and
for its breach, the appellant’s remedy lay elsewhere.
Besides, in order that the third exception to the general
rule that no writ will lie to quash an order terminating a
contract of service, albeit illegally, as stated in S. R.
Tewari v. District Board, Agra(2) might apply, it is
necessary that the order must be the order of a statutory
body acting in breach of a mandatory obligation imposed by a
statute. The college, or the Managing Committee in
question, is not a statutory body and so the argument of Mr.
Setalvad that the case in hand will fall under the third
exception cannot be accepted. The contention of counsel
that this Court has sub silentio sanctioned the issue of a
writ under Article 226 to quash an order terminating
services of a teacher passed by a college similarly situate
in Prabhakar Ramakrishna Jodh v. A. L. Pande and another(1),
and, therefore, the fact that the college or the managing
committee was not a statutory body was no hindrance to the
High Court issuing the writ prayed for by the appellant has
no merit as this Court expressly stated in the judgment that
no such contention was raised in the High Court and so it
cannot be allowed to be raised in this Court.
In this view of the matter, it is quite unnecessary to go
into the question whether the appellant was given sufficient
opportunity to meet the charges against him.
We hold that the High Court was right in its view that the
writ petition was incompetent. We, therefore, dismiss the
appeal but, in the circumstances, we make no order as to
costs.
S. N. Appeal dismissed.
(1) [1965] 2 S.C.R. 713.
(2) [1964] 3 S.C.R. 655.
329