Dr.A.Thiagarajan Md(S) v. The Director Of Indian

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.11.2017 CORAM :

THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU W.P(MD)No.4970 of 2011 Dr.A.Thiagarajan ... Petitioner vs.

1.The Director of Indian Medicine and Homeopathy, Arumbakkam, Chennai.

2.The Registrar, Dr. MGR Medical University, Guindy, Chennai.

3.The Interim Administrator, ATSVS Siddha Medical College and Hospital, Munchiral, Pudukkadai Post, Kanyakumari District.

4.The Principal, ATSVS Siddha Medical College and Hospital, Munchiral, Pudukkadai Post, Kanyakumari District.

... Respondents Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order of the 4th respondent dated 05.02.2011 and quash the same and consequently direct the respondents to reinstate the petitioner in service as Lecturer in ATSVS Siddha Medical College and Hospital, Municheral, Pudukadai Post, Kanyakumari District.

For Petitioner : Mr.C.K.M.Appaji For 1st Respondent : Mr.N.S.Karthikeyan Additional Government Pleader For 2nd Respondents : Mr.C.Karthik For Respondents 3 & 4 : Mr.G.Mohankumar

ORDER

The petitioner, who has been working as a Lecturer in the 4th respondent unaided private college has filed this Writ Petition, challenging the order dated 05.02.2011, terminating him from service and has sought for consequential relief of reinstatement in service. 2.Heard Mr.C.K.M.Appaji, the learned counsel appearing for the petitioner, Mr.N.S.Karthikeyan, the learned Additional Government Pleader appearing for the 1st respondent, Mr.C.Karthik, the learned counsel appearing for the 2nd respondent and Mr.G.Mohankumar, the learned counsel appearing for the respondents 3 and 4. 3.

The question, whether the relief of reinstatement in service pursuant to any wrongful termination could be granted, has been considered in a catena of decision of the Hon'ble Supreme Court of India and suffice here to refer to contents of para 11 in State Bank of India and Others v. S.N.Goyal [(2008) 8 SCC 92], wherein it has been held as follows:- "11. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance.

Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement.

(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309);

(ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and (iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules. There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief damages or reinstatement with consequential reliefs is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a nonstatutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is

null and void and that the employee should be reinstated can be granted by courts. (Vide : Dr. S. Dutt vs. University of Delhi [AIR 1958 SC 1050]; Executive Committee of UP State Warehousing Corporation Ltd. Vs. Chandra Kiran Tyagi [1970

(2) SCR 250]; Sirsi Municipality vs. Cecelia Kom Francies Tellis [1973 (3) SCR 348]; Executive Committee of Vaish Degree College vs. Lakshmi Narain [1976 (2) SCR 1006]; Smt. J. Tiwari vs. Smt. Jawala Devi Vidya Mandir AIR 1981 SC 122; and Dipak Kumar Biswas vs. Director of Public Instruction AIR 1987 SC 1422)."

4.In this case, admittedly the fourth respondent is a private unaided college and the employment of the petitioner, which is not governed by statutory provisions, does not fall under any of the aforesaid excepted categories for which the relief of reinstatement in service could be granted. Hence, the Writ Petition seeking such relief against the fourth respondent cannot be entertained and accordingly, the same is dismissed. It is made clear that no views on the merits of the factual controversies between the parties have been expressed by this Court and the rejection of this Writ Petition for the aforesaid reason would not stand in the way for the petitioner to work out his remedies for the eligible relief before the proper forum in the manner recognized by law. No costs. Sd/- Assistant Registrar(CS-III) /True Copy/ Sub Assistant Registrar To The Director of Indian Medicine and Homeopathy, Arumbakkam, Chennai.

+1cc to THE SPECIAL GOVERNMENT PLEADER in SR. No. 90675 +1cc to Mr.C.KARTHIK Advocate in SR. No. 90175 +1cc to Mr.A.K.BASKARAPANDIYAN Advocate in SR. No. 90467 +1cc to Mr.C.K.M.APPAJI Advocate in SR. No. 90394 SJ JS/JC/SAR.1/21.12.2017/3P-6C W.P(MD)No.4970 of 2011 29.11.2017