2/4/22, 11:27 PM Gebr Pfeiffer (India) Pvt Ltd.

vs Pradeep Sharma on 5 September, 2019

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Delhi High Court
Gebr Pfeiffer (India) Pvt Ltd. vs Pradeep Sharma on 5 September, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P. No. 8/2017 and CM APPLN. No. 1602-1603/2017

Judgment reserved on : 18.07.2018

Date of decision : 05.09.2019

GEBR PFEIFFER (INDIA) PVT LTD. ..... Petitioner

Through: Mr. Davesh Bhatia, Advocate

versus

PRADEEP SHARMA ..... Respondent

Through: Mr. Sanjeev Kumar, Advocate

CORAM:

HON'BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

ANU MALHOTRA, J.

CM No. 1602/2017
CM No.1602/2017 an application filed on behalf of the
petitioner seeking
condonation of delay of 24 days in filing the
petition.

In the interest of justice, the application is allowed and the delay

of 24 days in filing the petition is
condoned.

The application is disposed.

CRP 8/2017 and CM No. 1603/2017 (Stay)

1. The petitioner vide this petition under Section 115 read with
Section 151 Code of Civil Procedure,
1908, as amended seeks the
setting aside of the order dated 7.9.2016 of the learned
ACJ/CCJ/ARC(W),
Tis Hazari Courts, Delhi in CS No. 8569/2016
vide which an application under Order 7 Rule 11 CPC
filed by the
petitioner herein as the defendant to the said suit seeking rejection of
the plaint was
declined with it having been observed to the effect:

" I have considered the contentions of both sides.

Admittedly, plaintiff joined the defendant
company as
Manager at Level 4 on 17.11.2000 vide letter of
appointment dated
17.11.2000. Subsequently, he was
terminated from service by the defendant, vide
termination letter dated 02.09.2013. It is the case of
the plaintiff that no notice of two
months as required
by the agreement/letter of appointment dated
17.11.2000 was ever
served on him and that his
service was not contractual but it was permanent. On
the other
hand, as per the defendant, the very fact that
the plaintiff accepted the salary cheque in lieu
of two
months' notice was sufficient to have terminated the
service of the plaintiff. The
present case appears to
involve various mixed questions of law and fact,
which can be
determined only after the parties are
allowed to lead their evidence. Prima facie cause of
action in favour of the plaintiff appears to be made
out from the plaint. The judgments
relied on by the
counsel for defendant do not help his case as they are
based on a different
factual matrix. Accordingly, I do
not find any merit in the application of the defendant
moved under Order 7 Rule 11 CPC. The same stands
dismissed."

2. The petitioner and the respondent to whom notice was issued

vide order dated 16.1.2017 have both
been heard qua the petition.
Vide order dated 16.1.2017 itself it had been directed to the effect that

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during the pendency of the petition no order disposing of the suit

could be passed which is under
operation till date.

3. Submissions were made on behalf of either side.

4. A bare perusal of the copy of the plaint submitted before the

learned Trial Court indicates that it was
averred therein to the effect:

" 2. That on 17.11.2000, the plaintiff was appointed

as a Manager through a letter ref:
PI/PERS/APT/04.
In the said letter, the defendant also described the
other benefits,
facilities to the plaintiff."

5. It was also submitted by the plaintiff i.e. the respondent herein

that because of his good
performance, dedicated efforts and extra-
ordinary service and dynamic leadership, he was repeatedly
promoted
and was even inter alia awarded ex gratia wages by the defendant
company i.e., the
petitioner herein till 8.3.2013. The plaintiff therein
further averred vide paragraphs 26,27,28,29, 30 and
31 to the effect:

"26. That as per the letter dated 02/09/2013, videi Ref. - No.
PI/A&T/04/8332, the then
President illegally, unilaterally and
without assigning any plausible reason whatsoever,
terminated
the plaintiff from his service, which is absolutely illegal and
against the rule of
law.

It becomes necessary to mention here that the main

intention of the defendant was/is to
think about their own
benefit and interest, which further establishes by the Clause
no.4 of
the Letter of Appointment given by the defendant, which
states " The COMPANY OR
YOU, THE EMPOYEE, MAY
TERMINATE WITHOUT ASSIGNING ANY REASON
THIS
CONTRACT OF APPOINTMENT BY GIVING TWO MONTHS
NOTICE IN
WRITING. On the other hand, the clause no. 6 of
the appointment of letter, it states " YOU
SHALL NOT
ENGAGE IN ANY OTHER BUSINESS OR EMPLOYMENJT
DIRECTLY
OR INDIRECTLY WITH ANOTHER COMPANY/
AGENCY/ ORGANIZATION
DURING YOUR TENURE WITH
THIS COMPANY AND THE CONTRACT OF
APPOINTMENT
IS MADE ON THE BASIS THAT YOU SHALL BE A WHOLE
TIME
EMPLOYEE OF THE COMPANY". Thus, the defendant
cannot act unilaterally and they
have no right to overlook the
devoted service of the plaintiff, who did not even think about
other job while working with the defendant.

The plaintiff has never ever imagined that he would have

to face a date with such type of
insult and malicious/unkind
treatment given by the company/defendant to a founder
employee/member and forth employee of the company, who had
attached with the
company since its commencement (i.e.
01.12.02), when there were hardly six
persons/engineers and
due to his illegal termination, his entire future prospect has
been
ruined.

27. That the plaintiff, who has been the founder employee and
4th appointee of the
defendant since its commencement
(01.12.2000 with a group of only 6 persons/engineers
and' the
company flourished their business only due to sincere, devoted
and honest service
of the plaintiff, which is further substantiated
as aforesaid and during his entire period of
service of more
than 13 years, the plaintiff never gave, any kind of complaint to
the
defendant and thus, his termination
from, his service is absolutely illegal, which further
clearly
establishes, when the defendant company went on their high
position, they kicked
out the plaintiff from the company without
considering the fact had the plaintiff not given
his utmost, the
defendant would not have gone its high status. The plaintiff has
got
overwhelming documents/letters issued by the defendant
from time to time, which clearly
establishes that the defendant
was very much pleased from the service rendered by the
plaintiff and those letters are adequate to favour the case of the
plaintiff against the
defendant. Had the plaintiff been negligent
in his service under the defendant, then it is not

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understood as
to why the defendant issued several appreciation and reward
letters to the
plaintiff and it is further not understood as to what
circumstance was with the defendant so
that they illegally
terminated the unblemished service of the plaintiff. The
defendant was
required to consider those appreciation
letters/reward letters before illegal termination of
the plaintiff.
Had those letters been taken into consideration by the
defendant, then the
defendant would definitely gone at other
conclusion, which would have further definitely
suited the
business prospect of the defendant.

28. That the plaintiff asked the defendant as to why he was

illegally terminated his
unblemished service but to tangible
reason whatsoever was given by the defendant and as
such,
their illegal and nefarious act has brought serious mental pain
to the plaintiff. The
termination order dated 02.09.2013 is
absolutely illegal as the defendant did not follow the
due
procedure before his termination from his service. Without
prejudice to the right and
contention of the plaintiff, the
defendant was required to give show cause notice and/or to
issue charge-sheet, if any, but the defendant did not adopt the
legal way, which act of the
defendant is highly objectionable
and questionable and they have no right to terminate the
service
of anyone including the plaintiff in absence of any complaint,
charge etc. and more
so, when the plaintiff was never charge-
sheeted due to his any wrongs, which could have
given any
reason to the defendant to take any suitable legal action against
the plaintiff.
Here, no such legal produce has been adopted by
the defendant. When the defendant did
not given any
satisfactory reply to the plaintiff, he got served a legal notice
dated
06/11/2013 thereby calling upon the defendant to recall
the order of termination dated
02.09.2013 and to reinstate him
in his old service but despite receipt of the said legal
notice, the
plaintiff neither gave any reply nor comply with the said notice.
Since the date
of illegal termination of the plaintiff, he did not
apply anywhere for his job due to the
clause mentioned in the
appointment letter and as such, he has been constrained to
remain
jobless and he was constrained to encash the cheque of
Rs.4,70,000/- and he has suffered
huge damage at the hands of
the defendant for which, the plaintiff reserves his right to
initiate separate legal action against the defendant. The
plaintiff, in order to avoid any
litigation with the defendant, did
not initiate any legal action against the defendant and
finally
got served a reminder dated 21.4.2014 but again the defendant
did not respond at
all. Instead of complying with the legal
notice dated 06/11/2013 and 21/04/2014, the
defendant sent a
false and frivolous reply dated 28.5.2014 to cause more and
more
harassment to the plaintiff.

29. That thus, the fact of the matter remains that the plaintiff
has been illegally terminated
from his service. It is not out of
place to mention here that the termination order is not only
perverse and arbitrary but the same is illegal and as such, the
same is liable to be set aside
and further considering the
aforesaid genuine facts of the plaintiff and further since the
defendant has illegally and unilaterally terminated the plaintiff
from his devoted service
and since despite receipt of the legal
notice dated 06/11/2013, the defendant has failed to
do the
needful, therefore, the plaintiff has got no other efficacious
remedy available to him
except to approach before this Hon'ble
court thereby declaraing termination order dated
02/09/2013 is
absolutely illegal, hence this suit for declaration.

30. That plaintiff also requested the officials of the defendant to

take back him in his old
service and since the defendant has
refused to take the service of the plaintiff, therefore, it
is highly
necessary to direct the defendant to take the plaintiff in his
service, hence this is a
suit for mandatory injunction.

31. That the cause of action arose in favour of the plaintiff

and against the defendant, when
the defendant illegally and
without assigning any plausible reason whatsoever terminated
the plaintiff from his service on 02/09/2013 and further when
despite repeated requests of
the plaintiff, the defendant failed to
do the needful and further when the plaintiff was
constrained to
serve a legal notice upon the defendant and further when
despite receipt of
the legal notice of the plaintiff, the defendant
again failed to do the needful and further

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when the plaintiff was

constrained to serve a reminder dated 21/04/2014 upon the
defendant but the defendant again did not pay any heed and
sent a false and frivolous reply
dated 28/05/2014. The cause of
action is still recurring one."

6. The letter of appointment dated 17.11.2000 issued by the

defendant of the suit i.e., the petitioner
herein to the
plaintiff/respondent vide clause 4 thereof states to the effect:

" Termination of Appointment

The Company or you, the Employees may terminate
without
assigning any reason this contract of
appointment by giving two months notice in writing."

7. A bare perusal of the said letter of appointment indicates that on

the respondent i.e., the plaintiff
having accepted the said offer of
appointment, the same culminated into a contract with the petitioner
with the terms and conditions detailed in the said letter of
appointment. The said appointment of the
plaintiff i.e., the respondent
herein with the petitioner company was apparently a contractual
assignment inter se between the parties i.e., the plaintiff and the
defendant i.e., the petitioner company.
The petitioner company in no
manner falls within the domain of the State in terms of the Article 12
of
the Constitution of India.

8. Clause 4 of the letter of appointment issued to the respondent

herein i.e., the plaintiff made it clear
that the company or the plaintiff
could terminate without any reason the contract of appointment by
giving two months' notice in writing.

9. Vide letter dated 2.9.2013, the petitioner company i.e., the

defendant in terms of clause 4 i.e.
'Termination of Appointment' in
terms of letter dated 17.11.2000 terminated the employment of the
plaintiff i.e., the respondent herein stating to the effect:

"Clause No.4 Termination of Appointment

The Company or you, the Employee, may
terminate without
assigning any reason this contract of appointment by giving two
months
notice in writing.

The. management has decided to terminate your employment

with the company w.e.f. 2nd
September, 2013. In lieu of the
notice period of two months and full & final settlement
please
find attached, a Cheque No, 008847 Amount-354097/- dated
02.09.2013 Drawn on
Deutsche Bank equivalent to two months'
salary and full & final Settlement.

You are also directed to contact the, HR and Admin with a prior
appointment to settle for
gratuity on or before 30 days."

10. In terms of the letter dated 2.9.2013, the petitioner company

also sent the gratuity settlement
received from the LIC vide a cheque
of Rs.4,70,000/- bearing No. 861906 dated 4.10.2013 towards the
gratuity settlement account.

11. The averments made in the plaint vide paragraph 28 of the

plaint referred to herein above bring
forth clearly that the said cheque
of Rs.4,70,000/- was encashed by the plaintiff i.e., the respondent
herein though undoubtedly the respondent has sought to contend
through the plaint that he got the
same encashed because of his having
remained jobless, the same does not detract from the contents of
the
terms of the letter of appointment, clause 4 thereof, which permitted
the parties to the contract to
terminate the contract without any reason
by giving two months notice in writing and in the instant
case in as
much as the notice in writing of two months had not been granted to
the respondent by the
petitioner herein, the petitioner company had
made the payment of the two months' salary to the tune
of
Rs.354097/- vide a cheque bearing No. 008847 dated 2.9.2013
equivalent to the two months' salary
as full and final settlement.

12. It is apparent that in the facts and circumstances in the instant

case that in terms of the contract
between the petitioner/defendant and
the respondent/plaintiff the contract entered into was a contract of
personal service to which the principles of Section 41 (e) of the
Specific Relief Act, 1963 wholly
apply. Section 41(e) of the Specific
Relief Act, 1963 provides to the effect:

" 41. Injunction when refused.-- An injunction

cannot be granted--
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(a) .....

(b) ....

(c) ....

(d) .....

(e) To prevent the breach of a contract the

performance of which would not be specifically

enforced;

........"

13. On behalf of the petitioner reliance was placed on the verdict of

the Hon'ble Supreme Court in
Pearlite Liners (P) Ltd. v. Manorama
Sirsi; (2004) 3 SCC 172, to submit that where the contract falls
within
the domain of a contract for personal services, the prayers of the kind
as made through the plaint
filed by the respondent herein i.e.. the
plaintiff of the suit seeking a declaration that the termination
order
dated 2.9.2013 was illegal and invalid and was not binding upon him
and the grant of further
injunction against the employer company
directing him to reinstate the plaintiff back in his later
service with all
consequential relief was specifically barred in terms of the provisions
of the Specific
Relief Act, 1963. The observations in paragraph 5 to
10 of the Hon'ble Supreme Court in the said
verdict read to the effect:

"5. Therefore the legal question for consideration which

arises is :

"Can a contract of service be specifically enforced?"

6. The relationship between the parties is based on a contract

between two private parties.
Admittedly, there is no written
contract. If there had been a written contract, it would have
contained terms and conditions governing the relationship
between the parties. Inspite of
absence of a written contract
governing the relationship between the parties, respondent-
plaintiff challenged the transfer order by filing the present suit.
She raised several grounds
in this behalf including that the
transfer was illegal as it was to a different Company. The
transfer was to a lower post which means it is by way of
punishment. Further according to
the plaintiff the place to
which she had been transferred was not suitable to work at. The
defendant denied all these allegations in the written statement.
Apart from challenge to the
transfer order, the plaintiff sought a
declaration that she continued to be in service of the
defendant
and was entitled to all emoluments including salary. Further an
injunction was
prayed to restrain the defendant from holding
inquiry against the plaintiff. Significantly, no
prayer for
damages for breach of contract was made in the suit.

7. Learned counsel for the appellant argued that the prayers in

the suit seek reinstatement
of the plaintiff as an employee of the
defendant Company which really amounts to specific
performance of a contract of personal service which is
specifically barred under the
provisions of the Specific Relief
Act. It is a well settled principle of law that a contract of
personal service cannot be specifically enforced and a court will
not give a declaration that
the contract subsists and the
employee continues to be in service against the will and
consent
of the employer. This general rule of law is subject to three well
recognised
exceptions (i) where a public servant is sought to be
removed from service in contravention
of the provisions
of Article 311 of the Constitution of India; (ii) where a worker is
sought
to be reinstated on being dismissed under the Industrial
Law; and (iii) where a statutory
body acts in breach of violation
of the mandatory provisions of the statute. [Per Executive
Committee of Vaish Degree College,Shamli and ors. Vs.
Lakshmi Narain and Ors.{ (1976)
2 SCC 58} ].

8. The present case does not fall in any of the three

exceptions. It is neither a case of public
employment so as to
attract Article 311 of the Constitution of India nor the case is
under
the Industrial Disputes Act. The defendant is not a
statutory body. There is no statute
governing her service
contitions. The present is a case of private employment which
normally would be governed by the terms of the contract
between the parties. Since there is

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no written contract between

the parties, the dispute cannot be resolved with reference to
any
terms and conditions governing the relationship between the
parties. The plaintiff has
neither pleaded nor there has been any
effort on her part to show that the impugned transfer
order was
in violation of any term of her employment. In the absence of a
term prohibiting
transfer of the employee, prima facie the
transfer order cannot be called in question. The
plaintiff has not
complied with the transfer order as she never reported for work
at the
place where she was transferred. As a matter of fact, she
also stopped attending the office
from where she was
transferred. Non-compliance of the transfer order by the
plaintiff
amounts to refusal to obey the orders passed by
superiors for which the employer can
reasonably be expected to
take appropriate action against the concerned employee. Even
though it is a case of private employment, the management
proposed to hold an enquiry
against the delinquent officer, that
is, the plaintiff. In case of such insubordination,
termination of
service would be a possibility. Such a decision purely rests
within the
discretion of the management. An injunction against
a transfer order or against holding a
departmental enquiry in
the facts of the present case would clearly amount to imposing
an
employee on an employer, or to enforcement of a contract of
personal service, which is not
permissible under the law. An
employer cannot be forced to take an employee with whom
relations have reached a point of complete loss of faith between
the two.

9. Let us now examine the prayers in the suit in the light of

averments contained in the
plaint. It is stated in Para 6 of the
plaint that the Secretary of the Company warned her
about her
timings and issued a memo about her attendance. He demanded
her resignation
on 15th December, 1983. She did not resign as
per the request. It is further stated in Para 7
that "she was
discriminated against in the matter of providing incentives in
May, 1985..
She gave a representation to the Directors
establishment to consider this aspect of the
matter. Secretary in
his reply dated 23rd May, 1985 abused her that she was not
working
properly." In Para 8, it is stated that the Secretary
further issued her a notice stating that she
had not worked for
two years. Then follows the impugned transfer order dated 11th
January, 1986. The plaintiff has further alleged that her
representation against the said
transfer order was not
considered. This was followed by a notice to conduct an enquiry
against the plaintiff. In the background of such facts, the
plaintiff has in the suit made the
following prayers :
" (a) Declaring that the impugned transfer order is illegal, void
and
inoperative.

(b) The plaintiff continues to be in service of the defendant

Company and is entitled all
emoluments including salary; and (
c ) Permanent injunction restraining the defendant from
holding an enquiry against the plaintiff."

10. The question arises as to whether in the background of

facts already stated can such
reliefs be granted to the plaintiff.
Unless there is a term to the contrary in the contract of
service, a
transfer order is a normal incidence of service. Further it is to be
considered that
if the plaintiff does not comply with the transfer
order it may ultimately lead to termination
of service. Therefore, a
declaration that the transfer order is illegal and void in fact
amounts
to imposing the plaintiff on the defendant inspite of the
fact that the plaintiff allegedly does
not obey order of her
superiors in the Management of the defendant Company. Such a
relief cannot be granted. Next relief sought in the plaint is for a
declaration that she
continues to be in service of the defendant
Company. Such a declaration again amounts to
enforcing a
contract of personal service which is barred under the law. The
third relief
sought by the plaintiff is a permanent injunction to
restrain the defendant from holding an
enquiry against her. If the
management feels that the plaintiff is not complying with its
directions it has a right to decide to hold an enquiry against her.
The management cannot be
restrained from exercising its
discretion in this behalf. Ultimately, this relief if granted
would
indirectly mean that he court is assisting the plaintiff in
continuing with her
employment with the defendant Company,
which is nothing but enforcing a contract of
personal service.
Thus, none of the reliefs sought in the plaint can be granted to the
plaintiff under the law. The question then arises as to whether
such a suit should be allowed
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to continue and go for trial. The

answer in our view is clear, that is, such a suit should be
thrown
at the threshold. Why should a suit which is bound to be dismissed
for want of
jurisdiction of a court to grant the reliefs prayed for,
to be tried at all? Accordingly, we hold
that the trial court was
absolutely right in rejecting the plaint and the lower appellate
court
rightly affirmed the decision of the trial court in this behalf.
The High Court was clearly in
error in passing the impugned
judgment whereby the suit was restored and remanded to the
trial
court for being decided on merits. The judgment of the High Court
is hereby set aside
and the judgments of the courts below, that is,
the trial court and the lower appellate court
are restored. The
plaint in the suit stands rejected."

14. On behalf of the respondent reliance was placed on the verdict

of the Hon'ble High Court of
Madras in the case of V.Sadasivan and
Others v. Binny Ltd. (represented by its Chairman and
Managing
Director) Madras & Anr.; 1998 LLR 228 to contend to the effect that
in as much as the
services of the plaintiff i.e., the respondent had not
been terminated on account of any charges of
misconduct or as a
sequel to any finding recorded against him in any properly constituted
or conducted
inquiry, the termination of his services was not proper
and the workman in that case was directed to be
reinstated with it
having been observed that the employees were at liberty to seek their
consequential
reliefs and remedies as available in law in relation to the
grant of backwages or damages.

15. Reference was made in this verdict of the Hon'ble High Court
of Madras in V.Sadasivan and Others
v. Binny Ltd. (represented by
its Chairman and Managing Director) Madras & Anr (supra) in
1986-II
LLN 1051 titled O.P.Bhandari v. Indian Tourism
Development Corpn. Ltd. and Others; (1991 Supp (1)
SCC 600) and
1991-I LLN 613 titled Delhi Transport Corporation v. Delhi
Transport Corporation
Mazdoor Congress; (1986) 4 SCC 337.

16. It is essential to observe that the employers in the said cases i.e.,
the Indian Tourism Development
Corporation Ltd. and the Delhi
Transport Corporation are public sector undertakings covered under
Article 12 of the Constitution of India in relation to which it is laid
down that by merely giving a notice
or pay in lieu of notice cannot co-
exist with Articles 14 and 16(1) of the Constitution of India in as
much as such a rule has the effect of setting at naught the guarantee
enshrined in Articles 14 and 16
thereof and it is essential to observe
that the verdict of the Hon'ble Supreme Court in Delhi Transport
Corporation v. Delhi Transport Corporation Mazdoor Congress
(supra) takes into account that the DTC
is a public sector undertaking.

17. Likewise, the verdict in V.Sadasivan and Others (supra) as

observed by the Hon'ble High Court of
Madras itself indicates that it
relates to contentions wherein the petitioners in that case had sought to
contend that they were workmen falling within the ambit of the
Industrial Disputes Act, 1947. In the
facts and circumstances of the
instant case, the respondent plaintiff was clearly employed in terms of
the letter of appointment dated 17.11.2000 to the post of a Manager
and thus does not fall within the
ambit of definition of a workman in
terms of Section 2(s) of the Industrial Disputes Act, 1947.

18. In the circumstances, the reliance that has been placed on behalf
of the respondent on the verdict of
the Hon'ble High Court of Madras
is wholly misplaced and further more, it is essential to observe as
has
already been observed elsewhere herein above that the verdicts of the
Supreme Court in
O.P.Bhandari v. Indian Tourism Development
Corpn. Ltd. and Others; (1991 Supp (1) SCC 600) and
1991-I LLN
613 titled Delhi Transport Corporation v. Delhi Transport
Corporation Mazdoor Congress;
(1986) 4 SCC 337 relate specifically
to the public sector undertakings which clearly fall within the
ambit of
the State in terms of Article 12 of the Constitution of India.

19. The verdict of the Hon'ble Supreme Court in Pearlite Liners

(P) Ltd. v. Manorama Sirsi, (supra) in
the instant case relied upon on
behalf of the petitioner herein makes it apparent that the reliefs sought
by the plaintiff as under:

" i. Pass a decree of declaration in favour of the plaintiff and

against the defendant thereby
declaring the termination order
dated 02/09/2013 as illegal and invalid as well as is not
binding
upon the plaintiff.

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ii. Pass decree of mandatory injunction in favour of the plaintiff

and against the defendant
thereby directing the defendant to take
back/reinstate the plaintiff in his old service with all
consequential
relief.

iii. Award cost of the suit in favour of the plaintiff,

apparently cannot be granted in view of the Clause
4 of the contract
entered into between the petitioner and the respondent. Significantly,
as in Pearlite
Liners (P) Ltd. v. Manorama Sirsi, (supra) in the
present case also there has been no prayer made by
the Plaintiff /
Respondent herein in the suit for damages for breach of contract.

20. In the circumstances it is apparent that in as much as the

contract of personal service that had been
entered into between the
respondent/plaintiff and the petitioner/defendant in the instant case
could not
have been specifically enforced in terms of Section 41 (e) of
the Specific Relief Act, 1963, the relief
that had been sought by the
respondent plaintiff in suit CS No.8569/2016 cannot be granted in as
much
as none of the exceptions to the non-enforcement of a contract
of personal service exists in the instant
case in as much as the
respondent herein is not a public servant sought to be removed from
service in
contravention of Article 311 of the Constitution of India in
as much as the respondent herein is not a
workman i.e., a workman in
terms of Section 2(s) of the Industrial Disputes Act, 1947 who could
seek
to be reinstated on being dismissed under the industrial law in as
much as the petitioner herein is not a
statutory body which falls within
the ambit of Article 12 as an instrumentality of the State which has
committed any act in breach of violation of the mandatory provisions
of the Statute.

21. In view thereof, it is apparent that the learned Trial Court has
failed to exercise the jurisdiction
vested in it and has acted in the
exercise of its jurisdiction with material irregularity in having
observed
that the case appears to involve various mixed questions of
law and facts which could only be
determined after the parties were
allowed to lead their evidence.

22. In view thereof, the impugned order dated 7.9.2016 of the

learned Trial Court is set aside and
consequentially the plaint in the
suit CS No. 8569/2016 is rejected.

23. The petition and the accompanying application CM No.

1603/2017 are disposed of accordingly.

24. A copy of this order be sent to the learned Trial Court.

ANU MALHOTRA, J.

th
SEPTEMBER 5 , 2019/SV

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