Case: A K Srivastava Vs. National Insurance Co

3. Appellant was appointed as Inspector on probation at Khalidabad under the Gorakhpur branch of the respondent Company with effect from 19.9.1980, initially for a period of twelve months subject to certain conditions. On 13.3.1982 respondent-company served upon him thirty days, notice of termination of his service on the premise that appellant failed to achieve the targeted premium amount.4. Appellant filed the suit in the Munsifs Court Gorakhpur for a decree declaring that the said notice of termination is illegal and void and that he continues to be in service of the Company with all the benefits flowing from the post. Respondent-company contested the suit by filing a written statement in which it was contended, inter alia, that the suit is not maintainable under Section 34 of the Specific Relief Act (for short of `the Act) and that the notice of termination of the appellant is legal and valid.5. However, respondent-company did not participate during evidence stage and hence the trial court proceeded with the suit ex parte and a decree was passed in terms of the plaint on 25.1.1991. Appellant took out execution proceedings in which he claimed a sum of Rs. 1,02,861/- as arrears of pay due to him from the date of notice of termination. Respondent resisted the execution by putting forth various contentions including that the decree is unenforceable and void as the same was passed without jurisdiction. The execution court has repelled all such objections by its order dated 7.9.1991.6. Respondent challenged the said order by means of a writ petition filed under Articles 226 and 227 of the Constitution. High Court of Allahabad dismissed the writ petition holding that the decree was passed by a court having jurisdiction and, that the suit was maintainable under Section 34 of the Act.7. It was thereafter that the respondent-company preferred a first appeal before the Court of Civil Judge (Senior Division) Gorakhpur challenging the decree of the trial court. When that appeal was dismissed respondent-Company preferred a second appeal before the High Court of Allahabad. Four question were formulated by the respondent-Company in the second appeal and pressed them into service as substantial questions of law. They are: (1) Whether the termination order is violative of the contractual term that one months notice or pay in lieu thereof is sine qua non; (2) whether appellant is entitled to reinstatement without entering upon a finding that there was statutory violation; (3) whether the suit is barred under the Industrial Disputes Act; (4) whether the suit is barred under section 34 of the Act.8. High Court did not permit the respondent-Company to pursue with the last two questions on the premise that those question were finally decided in the writ petition and such decision will operate as a bar of res judicata. However, learned Single Judge of the High Court proceeded to consider the other two questions and held that non-payment of one months pay in lieu of the notice would not vitiate the termination order and that at any rate, appellant is not entitled to continue as a Probationary Inspector. Resultantly, the High Court reversed the decree of the trial court and dismissed the suit.

Reasoning:
11. It is well nigh settled that a decision on an issue raised in a writ petition under Article 226 or Article 32 of the Constitution would also operate as res judicata between the same parties in subsequent judicial proceedings. The only exception is that the rule of res judicata would not operate to the detriment or impairment of a fundamental right.Though the said explanation may not stricto sensu apply to the trial stage, the principal couched in it must gain application thereto. It is immaterial that the writ petition was filed only subsequently because the findings made therein became final as no appeal was filed against the judgment.Thus, the legal position is clear and the respondent cannot now re-agitate the question regarding maintainability of the suit under Section 34 of the Act. However, learned counsel adopted an alternative contention before us that the suit is in effect one for specific enforcement of a contract and such a suit is not conceived under Section 14 of the Act and hence it is not maintainable. According to the learned counsel, the reliefs claimed in the suit, if granted, would result in specific enforcement of a contract of employment. Section 14(1)(a) of the Act makes it clear that a contract of employment is not specifically enforceable since non-performance of it can be compensated by money, contended the counsel.Though Specific Relief Act widens the spheres of the civil court its preamble shows that the Act is not exhaustive of all kinds of specific reliefs. " An Act to define and amend the law relating to certain kinds of specific relief." It is well to remember that the Act is not restricted to specific performance of contracts as the statute governs powers of the court in granting specific reliefs in a variety of fields. Even so, the Act does not cover all specific reliefs conceivable.