P L D 1961 Supreme Court 531 (PLP)

B. Z. KAIKAUS, J.‑This Appeal, by special leave, arises out of a suit filed by Muhammad Shamsul Islam Chowdhury, respon dent No. 1 in this appeal, for a declaration that the order of his discharge as accountant of the Chittagong Branch of the Firm of Messrs Malik and Haq was illegal, unjust, inoperative and void, and he continued to hold the post of accountant of the firm and for an injunction to the defendants to reinstate him, with an alternative prayer for damages for the loss caused to him by a wrongful discharge. The defendants to the suit were the firm of Messrs Malik and Haq who have their head office in Karachi, and branches in Chittagong and Dacca, and who are appellant No. 1 in this appeal; Mr. M. Haq, Managing partner of the firm Messrs Malik and Haq, appellant No. 2 in this appeal; and Mr. Sajjad Ali Nabi and Mr. Sadiq, Managers of the Chittagong and Dacca offices respectively of the firm Messrs Malik and Haq who are pro forma respondents Nos. 2 and 3 in this appeal. Respondent No. 1 alleged in the plaint that while he was serving as an Upper Division Assistant in the office of the Accountant‑General, East Bengal with a monthly salary of Rs. 192‑8‑0 he became acquainted with Mr. M. Haq appellant No. 2, and Mr. M. Sadiq pro forma respondent No. 3 who persuaded him to give up service in the office of the Accountant‑General and to accept the post of Chief Accountant of the Chittagong Branch of the firm at monthly salary of Rs. 200, with a definite prospect of becoming a Branch Manager of the Chittagong Branch at a monthly salary of Rs.

500. They even promised in case he resigned from Government service to pay him one month's salary in lieu of notice to the office of the Accountant‑General, East Bengal. On account of these hopes and assurances he agreed and having resigned his post in the office of the Accountant‑General joined Messrs Malik and Haq on the 4th March 1950. While working as accountant he had to inform Messrs Malik and Haq of some irregularities committed by Mr. Sajjad Ali Nabi, Manager of the Chittagong Branch, with the result that Mr. Sajjad Ali Nabi became inimical to him. Mr. Sajjad Ali Nabi enlisted the support of Mr. M. Sadiq, Manager of the Dacca Branch, for throwing him out of service, and as a result on the 4th of August 1952 Mr. M. Sadiq addressed a letter to him to the effect that he was attending more to his own business of manufacturing oil and was neglecting the accounts of the office, and that his services were terminated. It was mentioned in the letter that one month's salary (Rs. 200) was being paid in lieu of notice. A copy of the letter was endorsed to the Manager of the Chittagong Branch for terminating his services and another copy to the head office at Karachi. Acting on this letter, the Manager of the Chittagong Branch called upon him on the 6th of August 1952 to hand over charge, and he actually handed over charge on that date. He did not accept at that time the sum of Rs. 200 i.e., one month's salary, which was offered to him, but this amount was paid to him subsequently by means of a money order. Respondent No. I continued to say in the plaint that as he had been appointed by Mr. M. Haq, the Managing partner of the firm, and his discharge by the Manager of the Dacca Branch or the Manager of the Chittagong Branch was not in accordance with law, he sent a registered letter to Mr. M: Haq, the Managing partner, saying that there was no a justification or reasonable cause for forcing him out of service but Mr. M. Haq did not reply to his letter; that he sent a number of other letters under registered covers acknowledgement due, to Mr. M. Haq, but still there was no response whatever from him and as he despaired of any justice at the hands of the partners of the firm he was obliged to come to Court; that on account of a breach of contract by the defendants he was entitled to damages from the defendants at the rate of Rs. 192‑8‑0 per mensem for a period of 25 years the period for which he could have served in the office of the Accountant‑General, East Bengal, if he had not resigned. Respondent No. 1 claimed a declaration that his discharge was void and he continued to hold the post of accountant in the office of Messrs Malik and Haq at Chittagong and an injunction directing the defendants to reinstate him as an accountant in the said office. In the alternative he prayed for damages for wrongful discharge. He did not pay any Court‑fee on the relief for damages and prayed that a preliminary decree only may be passed, that a Commissioner be appointed for ascertaining the actual amount of loss, and that final decree may be passed after the ascertainment of the precise sum to which he was entitled, Written statements were filed by M/s Malik and Haq, Mr. M. Haq, the Managing Partner and Mr. Sajjad Ali Nabi, the Manager of the Chittagong Branch. Why a written statement was not filed by Mr. M. Sadiq does not appear. He is now dead, but was presumably alive during the pendency of the suit in the trial Court. In the written statements it was alleged that there was no inducement or persuasion when respondent No. I joined the arm; that respondent No. 1 had been carrying on his own oil business which prevented him from paying proper attention to his work as accountant and therefore his services were terminated; that as there was no contract with respect to the period for which respondent No. 1 was to serve, his services could be terminated at any time on payment of one month's salary; and that in termina ting the services of respondent No. 1, the Manager of the Dacca Branch had acted under the directions of Messrs Malik and Haq. The Munsif, who tried the suit, came to the conclusion that inducement had been offered to respondent No. l ‑to join the, firm and that no serious misconduct having been alleged against him in discharging him the defendants had been guilty of breach of contract. He, at the same time, found that the Manager of the Dacca Branch, Mr. M. Sadiq, had no power to dismiss respondent No.

1. He found the discharge to be void and inoperative. He rejected the claim as to damages as vague and also inadmissible without Court‑fee because this was not a suit for accounts. There was an objection as to the form of suit which the Munsif over ruled. He granted a decree in terms which have led to some argument as to its meaning. The decree clearly stated that the discharge of respondent No. 1 was illegal, unjust, void and inoperative. It said nothing about reinstatement, but it at the same time, said that the suit was decreed with costs, and if one looks to the prayer as well as what was held in the judgment the proper interpretation of the decree would be that the relief for reinstatement was also granted, for in the judgment the Munsif has said that "the other prayer, that is, for restoration of services under the defendants can under the circumstances be allowed". On appeal, the Subordinate Judge held that it was only the Manag ing partner, the appointing authority, who could dismiss respondent No.

1. He dismissed the appeal and confirmed the decree of the trial Court. On second appeal to the High Court, it was urged on behalf of the present appellants that specific performance of the contract in suit was barred by section 21 of the Specific Relief Act. The learned Chief Justice who heard the appeal was of opinion that this was not a suit for specific perform ance of the contract but was a suit for relief against breach of the contract, and therefore. section 21 of the Specific Relief Act was irrelevant. It was argued before him, that the declaration granted in this suit could not be granted under section 42 of the Specific Relief Act, but the learned Chief Justice held that it was a declara tion as to legal character and therefore within section

42. Another argument was put forward that the suit was barred by the proviso to section 42 because further relief could be asked for and had not been asked for. The learned Chief Justice was of the opinion that there was a prayer for further relief in the form of reinstate ment and that relief had in fact been granted by the trial Court. This appeal should succeed for the simple reason that in the absence of any statutory provision protecting the servant it is not possible in law to grant to him a decree against an unwilling master that he is still his servant. A servant cannot be forced upon his master. The master is always entitled to say that he is prepared to pay damages for. breach of contract of service but will not accept the services of the servant. A contract for personal' service as will appear from section 21 (b) of the Specific Relief Act cannot be specifically enforced but it is not even necessary to invoke section 21 (b) for such a contract is unenforceable on account of section 21 (a) wherein it is provided that a contract for the non‑performance of which compensation in money is adequate relief cannot be specifically enforced. In a case where there is a contract between a master and a servant the master agreeing to pay the salary and the servant agreeing to render personal service it is obvious that money compensation is full relief, for all that the servant was entitled to under the contract was his salary. A breach of contract can give rise to only two reliefs: damage or specific performance. If specific performance be barred the only relief available is damages. When a master, in breach of his contract, refused to employ the servant the only right that survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him. A consideration of the implications of this decree will further demonstrate the impossibility of its grant. What .is the meaning of the declaration that respondent No. 1 is still the accountant of Messrs Malik and Haq? Does the decree imply that he has a right to come to once and keep accounts? If we construe the decree as one for re‑statement also as has been done by the learned Chief Justice, then surely this decree entitles respondent No. 1 to act as an accountant in the Chittagong Branch of Messrs Malik and Haq If respondent No. 1 on account of this decree goes to that office and begins keeping accounts any interference with him would be a disobedience of the order of the Court and therefore a contempt. Even if the decree be regarded as one for a declaration only it does declare respondent. No. 1 as a person entitled to act as accountant. But had respondent No. 1 any such right as is granted to him by this decree? As has already been observed in the agreement between the parties the master under took to pay only a salary. That is all the duty that has to be performed by the master. On his side, respondent No. 1 under took to render personal service, but this personal service was the duty of respondent No. I under the contract and not his right, and by Messrs Malik and Haq were not by this contract bound to have their account kept by respondent No.

1. If it be contended on behalf of the respondent that the decree does not at all grant to respon dent No. 1 any right to act as accountant and that the only effect of the decree is to establish the right of the respondent to a recurring salary of Rs. 200, the relief is one which cannot be granted under section 42 of the Specific Relief Act. That section cannot be availed of merely to establish a pecuniary relationship between the parties. If a plaintiff is entitled to money from the defendant he cannot claim a declaration as to his being so entitled. He must sue for money. In any case, the only right that survived to respondent No. 1 on account of breach of contract was the right to sue for damages. The Court below have proceeded on the basis that there was in this case no discharge at all by the person who was empowered to discharge and therefore respondent No. 1 continued to hold the post of accountant. There are a number of objections in the acceptance to this plea of respondent No. 1, the first being that the plea is inconsistent with his plaint. In the plaint while he has said that the Manager of the Dacca Branch or the Manager of the Chittagong Branch bad no authority to dismiss him, he has, at the same time, stated that he had written a number of registered letters, acknowledgement due, to the Manag ing partner, but without any response, and that it was only when he despaired of the attitude of the master themselves that he came to Court. He then stated that Messrs Malik and Haq as well as the Managing partner had committed a breach of contract which clearly meant that they had put an end to his service. While stating the date of his cause of action respondent No. 1 had referred to the date when the Managing partner failed to give him any relief in respect of the discharge. The judgments of the lower Courts too have proceeded on the ground that there has been a breach of contract by Messrs Malik and Haq and the Managing partner. The Munsif said in his judg ment that there was "a breach of contract by the defendants. The Subordinate Judge did not specifically deal with the breach, but he expressly confirmed the judgment as well as the decree of the trial Court. In the High Court the reasons which the learned Chief Justice gave for not applying section 21 of the specific Relief Act was that the suit was one for relief against breach of contract. If according to the findings of the Courts themselves breach of contract had been committed by the master it was not possible to say that as yet respondent No. 1 continued to hold the post of an accountant. The conduct of respondent No. 1 was that he handed over charge to another person appointed by the firm. In the registered letters which he sent to the Managing partner the complained that he had been improperly and unjustifiably discharged. It is not his case that in those letters he took the plea of discharge by the person not competent to discharge. But really it is not at all necessary to, refer either to the plaint or to the judgments or to the conduct of respondent No.

1. It is quite sufficient that the master when he files the written state ment or appears in Court takes up the position that, the servant is no longer his servant and that his services have been terminated by him. Assuming that before suit there was no valid termina tion of services there is a breach of contract when the master appears and the relationship of master and. servant necessarily ends. What we have to consider is that the master is a defendant to the suit. He is contesting the suit. He contends that respondent No. 1 is not his servant. No decree for a declaration that the servant holds a post can be passed against the master. It is possible to conceive of a case where the legal position as to which person can dismiss is not clear, for instance, where there are rival parties in a limited company and a suit is filed by a servant asserting his rights as a manager or agent with certain powers and he is supported by the person who appointed him. It may be that a decree for a declaration can be granted in such a case but such a decree can never be granted against the person who admittedly is the master in the absence of some special provision protecting the servant. The decree passed in this ‑suit has to be set aside. It is contended that we should remand the case for a decision as to the right of respondent No. 1 to damages, for there was an alternative prayer for damages though Court‑fee had not been paid on it. We are of the opinion that no useful purpose will be served by a remand. No period of service was provided in the contract in suit and. therefore the termination of service on payment of one month's salary was proper. This appeal is allowed, the decree of the High Court is set aside and the suit dismissed, but the parties shall bear their own costs throughout. A. H. Appeal allowed.