TMI Blog2004 (1) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... himoga belonging to M/s. Bharath Founders is illegal void and inoperative and further declare that the plaintiff is to be in the service of the first defendant company and she is entitled to all the emoluments including her salary. (b) for permanent injunction restraining the defendants from holding any enquiry against the plaintiff on the ground that she has not complied with the order of transfer dated 11.1.86 and she is guilty of insubordination etc. as stated in the articles of charges dated 17-1-87 and enquiry indicated in the notice dated 2-2-87. 2. The appellant while denying the averments contained in the plaint took an objection that the Civil Court had no jurisdiction to try the suit. The trial court framed various issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the office was not good and no amenities for the staff were available at the said office. The plaintiff did not comply with the said transfer order and continued to be unauthorisedly absent from work. On 17th January, 1987, a charge sheet was issued to the plaintiff to which she did not give any reply. The present suit was filed on 12 th February, 1987. According to the defendant the prayers in the suit really amount to enforcement of a contract for personal service, a relief which a civil court cannot grant. 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. Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. v. Lakshmi Narain and Ors. {(1976)IILLJ163SC }]. 8. The present case does not fall in any of the three exceptions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. 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 15t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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