# I.C.I.C. Bank Ltd. & Ors v. Krishna Kumar Gujrati

- **Citation:** (2021) 1 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-03
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/i-c-i-c-bank-ltd-ors-v-krishna-kumar-gujrati-45979
- **Pages:** 8

## Headnote

Service Law - Termination of Service -
Specific Relief Act (47 of 1963),-
Sections 14, 41(e) - Contract of
Service - Contract of service which
essentially is personal contract, is not
enforceable under provisions of S. 14
r.w.
Ss.
41(e),(h)
-
where
the
employer is a statutory body but the
relationship is purely governed by
contract with no element of statutory
governance, the contract of personal
service
will
not
be
specifically
enforceable - for the termination of
such a contract, the remedy for
damages alone would lie before the
competent civil court - Code Of Civil
Procedure, 1908 - Order VII Rule 11,
Rejection of plaint where suit barred
by any law - plaintiff assailed both the
order of transfer from Lucknow to
Hyderabad as well as the order of
termination from service - Held -
employee who freely accepts the
employment inclusive of a clause
contemplating transfer of services
from one place to another, looses his
right to question such a cause - suit
was legally non-maintainable as the
relief
sought
was
to
declare
termination of service as illegal but
the remedy for damages was not
prayed in the plaint (Para 19, 20, 21)

Allowed. (E-4)

List of Cases cited :-

1.Executive Committee of Vaish Degree
College Vs Laxmi Narain & ors. , (1976) 2
SCC 58

2.Nandganj Sihori Sugar Co. Ltd. Vs Badri
Nath Dixit & ors. (1991) 3 SCC 54

3.Integrated Rural Development Agency Vs
Ram Pyare Pandey (1995) Supp. 2 SCC 494

## Text

1 All. I.C.I.C. Bank Ltd. & Ors. Vs. Krishna Kumar Gujrati
195
(2021)01ILR A195
APPELLATE JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 03.12.2020

BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI, J.

First Appeal From Order No.- 60 of 2018

I.C.I.C. Bank Ltd. & Ors. ...Appellants
Versus
Krishna Kumar Gujrati ...Respondent

Counsel for the Appellants:
Sri Prashant Kumar

Counsel for the Respondent:
Sri K.K. Gujrati (In person)

Service Law - Termination of Service -
Specific Relief Act (47 of 1963),-
Sections 14, 41(e) - Contract of
Service - Contract of service which
essentially is personal contract, is not
enforceable under provisions of S. 14
r.w.
Ss.
41(e),(h)
-
where
the
employer is a statutory body but the
relationship is purely governed by
contract with no element of statutory
governance, the contract of personal
service
will
not
be
specifically
enforceable - for the termination of
such a contract, the remedy for
damages alone would lie before the
competent civil court - Code Of Civil
Procedure, 1908 - Order VII Rule 11,
Rejection of plaint where suit barred
by any law - plaintiff assailed both the
order of transfer from Lucknow to
Hyderabad as well as the order of
termination from service - Held -
employee who freely accepts the
employment inclusive of a clause
contemplating transfer of services
from one place to another, looses his
right to question such a cause - suit
was legally non-maintainable as the
relief
sought
was
to
declare
termination of service as illegal but
the remedy for damages was not
prayed in the plaint (Para 19, 20, 21)

Allowed. (E-4)

List of Cases cited :-

1.Executive Committee of Vaish Degree
College Vs Laxmi Narain & ors. , (1976) 2
SCC 58

2.Nandganj Sihori Sugar Co. Ltd. Vs Badri
Nath Dixit & ors. (1991) 3 SCC 54

3.Integrated Rural Development Agency Vs
Ram Pyare Pandey (1995) Supp. 2 SCC 494

4. M/s Pearlite Liner Pvt. Ltd. Vs Manorama
Sirsi (2004) 3 SCC 172

5.S.B.I. Vs S.N. Goyal (2008) 8 SCC 92

6.Nandganj Sihori Sugar Co. Ltd. Vs Badri
Nath Dixit & ors., (1991) 3 SCC 54

7.Integrated Rural Development Agency
Vs Ram Pyare Pandey (1995) Supp. 2 SCC
494

8. Federal Bank Ltd. Vs Sagar Thomas &
ors., (2003) 10 SCC 733

9.Indian Airlines Corporation Vs Sukhdeo
Rai (1971) 2 SCC 192

10. ICICI Bank Vs Lakshmi Narayan 2008
(3) LNN 320 Manu/TN/0056/2003

11.Krishna Kumar Gujrati Vs ICICI Bank
Writ Petition No. 964 (SB) of 2011 dt
26.5.2011

12.T. Avrivandandam Vs T.V. Satyapal
(1977) 4 SCC 467
196 INDIAN LAW REPORTS ALLAHABAD SERIES
13.Dhartipakar Madan Lal Agarwal Vs Rajiv
Gandhi AIR 1987 SC 157

14. Saleem Bhai Vs St. of Mah. (2003) 1
SCC 557

(Delivered by Hon'ble Attau Rahman Masoodi, J.)

1. The checkered history which this
case carries over a period of last about ten
years may be briefly stated as under.

2. The sole respondent-plaintiff who
was an employee of ICICI Bank Limited,
while holding the post of Chief Manager,
Band-I, was transferred from Lucknow to
Hyderabad vide order dated 10.5.2011.
This order was issued from the regional
office (north) of the Bank at Delhi and
served upon the respondent-plaintiff at
Lucknow.

3. The respondent-plaintiff feeling
aggrieved against the order of transfer
approached this Court by filing Writ
Petition No. 964 of 2011 but on the
strength of a preliminary objection that the
ICICI Bank was not a State within the
meanings of Article 12 of the Constitution
of India, therefore, challenge to the transfer
order within the scope of writ jurisdiction
failed and while dismissing the writ
petition on 26.5.2011, this Court left it
open for the respondent-plaintiff to raise
his grievance before the appropriate forum.

4. The respondent-plaintiff chose to
institute a suit i.e. R.S. No. 166/2011
against the order of transfer passed by the
appellant-defendant on 10.5.2011 before
the
Civil
Judge,
Senior
Division,
Mohanlalganj, Lucknow. The suit was
subsequently transferred from the court of
Civil
Judge,
Senior
Division,
Mohanlalganj, Lucknow to the court of
Civil Judge, Senior Division, Lucknow
where it was renumbered as Regular Suit
No.
971
of
2011.
Later
on,
the
appellant/employer proceeded to terminate
the services of the respondent by order
dated 7.6.2011 giving him two months'
salary in lieu of notice. This part of the
cause was also incorporated in the plaint by
filing an amendment application which was
allowed. The record reveals that an
application under Order VII Rule 11 CPC
was filed by the appellant Bank whereby
the very maintainability of the suit in the
light of Section 14 read with Section 41(e)
and (h) of the Specific Relief Act was
questioned. The application was allowed
and
the
suit
was
dismissed
by
judgement/decree dated 2.12.2016.

5. The judgement/decree rendered by
the court of Civil Judge, Senior Division,
Lucknow in Regular Suit No. 971 of 2011
on 2.12.2016 came to be challenged in the
first appeal under Section 96 CPC before
the District Judge, Lucknow where it was
registered as Regular Civil Appeal No. 17
of 2017. The first appeal so filed by the
respondent-plaintiff was allowed and the
proceedings were remitted back to the trial
court for adjudication of the suit on merit.

6. This judgement passed by the first
appellate court remitting the matter back to
the trial court on 17.8.2017 was assailed
before this Court in FAFO No. 306 of
2017. The FAFO filed by the Bank was
allowed on 19.9.2017 remanding the matter
back to the first appellate court for deciding
the Regular Civil Appeal in consonance
with the mandate of Order XLI Rule 31
CPC. The first appellate court below
keeping in view the judgement rendered by
this Court on 19.9.2017 has finally decided
the first appeal by means of the impugned
judgement dated 22.11.2017, whereby, the
1 All. I.C.I.C. Bank Ltd. & Ors. Vs. Krishna Kumar Gujrati
197
matter is remitted back to the trial court
again for decision of the civil suit on merit.

7. The present FAFO under Section
104 read with Order XLIII Rule 1(u)
CPC has questioned the remand order
inter alia on the ground that the suit
instituted by the respondent-plaintiff is
barred by law.

8. In the context of challenge as
above, It may be noted that the amended
plaint prayed for the relief as under:

(i) That a decree be passed in
favour of the plaintiff declaring the
transfer
order
dated
10.5.2011
transferring the plaintiff from Lucknow
to Hyderabad and the impugned order
dated 7.6.2011 terminating the services
of the plaintiff be declared as non est
and illegal and the plaintiff be declared
to be deemed in service w.e.f 1.6.2011;

(ii) That a decree of permanent
injunction be passed in favour of
plaintiff restraining the defendants from
transferring the plaintiff from Lucknow
and proceeding in furtherance of the
impugned order dated 7.6.2011;

(ii-a) A decree of recovery of
the unpaid salary for the months June
2011
to
the
completed
month
of
September 2011 less the amount paid as
two months basic salary towards notice
period besides the pendente lite salary
and
future
salary
with
all
the
promotional and annual increments and
other benefits on being declared to be
deemed in service by this Hon'ble
Court."

9. Heard Sri N.K. Seth, learned
Senior Counsel assisted by Sri Prashant
Kumar, Advocate and the respondentplaintiff who appeared in person at
length.

10. Sri N.K. Seth would contend
that the relief sought in the plaint
essentially seeks to enforce a right
emerging out of a personal contract
which is clearly unenforceable under the
provisions of Section 14 read with
Section 41(e) and (h) of the Specific
Relief Act, hence the suit was rightly
dismissed. The submission in nutshell is
that
a
contract
of
service
which
essentially is personal contract, is not
enforceable under the provisions of
Specific
Relief
Act
and
for
the
termination of such a contract, the
remedy for damages alone would lie
before the competent civil court. The
position of law, according to learned
counsel, is well settled by the apex court
in the following cases:

Sl
Particulars
Citation
1.
Executive Committee of
Vaish Degree College v.
Laxmi Narain & others
(1976)
2
SCC 58
2.
Nandganj Sihori Sugar
Co. Ltd. v. Badri Nath
Dixit & others
(1991)
3
SCC 54
3.
Integrated
Rural
Development Agency v.
Ram Pyare Pandey
(1995)
Supp.
2
SCC 494
4.
M/s Pearlite Liner Pvt.
Ltd. v. Manorama Sirsi
(2004)
3
SCC 172
5.
State Bank of India v.
S.N. Goyal
(2008)
8
SCC 92

11. The second submission urged by
learned counsel for the appellant is that the
ICICI Bank being a private body has
already been held not to be a State within
the
meaning of
Article
12 of
the
198 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India, therefore, the
respondent-plaintiff is not entitled to
the protection of three exceptions
propounded by the apex court in the
case of State Bank of India v. S.N.
Goyal. To impress upon the Court that
ICICI Bank is not a State within the
scope of Article-12 of the Constitution
of India, the following decisions were
cited:

Sl
Particulars Citation
1.
Nandganj
Sihori
Sugar
Co.
Ltd.
v.
Badri Nath
Dixit
&
others
(1991) 3 SCC 54
2.
Integrated
Rural
Developme
nt Agency
v.
Ram
Pyare
Pandey
(1995) Supp. 2 SCC 494
3.
Federal
Bank
Ltd.
v.
Sagar
Thomas &
others
(2003) 10 SCC 733
4.
Indian
Airlines
Corporatio
n
v.
Sukhdeo
Rai
(1971) 2 SCC 192
5.
ICICI Bank
v. Lakshmi
Narayan
2008 (3) LNN 320
Manu/TN/0056/2003
6.
Krishna
Kumar
Gujrati
v.
ICICI Bank
Decided on 26.5.2011
[Writ Petition No. 964
(SB) of 2011]
Allahabad High Court

12. The third submission which
revolves the same point is that the
application filed under Order VII Rule 11
CPC has wrongly been rejected by the
appellate court below once the suit was
legally non-maintainable for the relief
sought therein.

13. In support of this submission, the
following case laws have been cited:

Sl
Particulars Citation
1.
T.
Avrivandan
dam v. T.V.
Satyapal
(1977) 4 SCC 467
2.
Dhartipakar
Madan Lal
Agarwal v.
Rajiv
Gandhi
AIR 1987 SC 157
3.
Saleem
Bhai
v.
State
of
Maharastra
(2003) 1 SCC 557

14. The respondent-plaintiff who
appears in person has ably argued his case
by referring to a large number of cases
needless to mention but in substance the
argument put forth may be noted as under.

15. The respondent-plaintiff has made
a serious effort to impress upon the Court
that he being a regular employee in the
Bank ought to have been understood
differently by the trial court as compared to
those who are appointed for a fixed period,
therefore, the appellate court below has
rightly appreciated the fine distinction in
the nature of employment calling for
remedial protection. According to the
respondent-plaintiff, an employee who is
not
protected
within
the
three-fold
1 All. I.C.I.C. Bank Ltd. & Ors. Vs. Krishna Kumar Gujrati
199
exceptions carved out by the apex court in
Goyal's case (supra) is nevertheless entitled
to maintain a suit for revival of the contract
of employment once his appointment is
regular but not for a fixed period.

16. The respondent-plaintiff argued
vehemently that this material distinction
alters the very essence of express contract
termination whereof by a juristic person, in
violation of the principles of natural justice,
would entitle him for reinstatement in
service. The action against a regular
employee taken in violation of the
principles of natural justice, it is strongly
contended, deserves protection within the
ambit of Article 21 of the Constitution of
India, therefore, the relief sought in the suit
is maintainable for decision of the suit on
merit.

17. For the sake of clarity it may be
relevant to extract the relevant passage of
S.N. Goyal's judgement on the aspect of
personal contract. Para-11 is thus extracted
below:

"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. The
three well recognized exceptions to this
rule are:

(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 non-statutory 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)."
200 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Interestingly, the resting of
authority to transfer an employee from one
place to another or his termination from
service by the appellant-employer is not in
dispute. It is only when the authority is
exercised by way of disciplinary action, the
rule of opportunity becomes significant.
The essence of master and servant
relationship is that of personal contract in
both the situations and it is immaterial
whether the employment is regular or for a
fixed period.

19. As is evident from the relief
clause
extracted
hereinabove,
the
respondent-plaintiff has assailed both the
orders passed by the appellant-defendant
viz the order of transfer from Lucknow to
Hyderabad passed on 10.5.2011 as well as
the order of termination from service issued
on 7.6.2011. This Court may note that as
per the express service contract, the
respondent-plaintiff
was
holding
a
transferable post, therefore, the transfer
order passed by the employer was not a
cause
classified
under
any
of
the
disciplinary measures defined in the rules
applicable to the employees of the ICICI
Bank.

20. The disciplinary action comprises
of three types of measures viz cautionary
action, deterrent action and capital action.
The order of transfer from Lucknow to
Hyderabad is not covered under any of the
three measures mentioned above. Even if
the action of transfer is arbitrary or mala
fide, whether an employee of the Bank
would have a remedy against the transfer of
his services from one place to another, a
question does arise. The answer as per the
plain reading of the rules is in negative.

21. An employee who freely accepts
the employment inclusive of a clause
contemplating transfer of services from one
place to another, looses his right to
question such a cause. There was equally
no impediment pleaded in the plaint subject
to which the employer was bound to
exercise the power of transfer. Therefore,
respondent-plaintiff did not have a cause of
action at all, insofar as the order of transfer
passed on 10.5.2011 is concerned. In the
circumstances of the case, the objection
under Order VII Rule 11 CPC raised on the
strength of the express bar envisaged under
Section 14 read with Section 41 (e) and (h)
of the Specific Relief Act coupled with the
lack of cause of action, was rightly
allowed. An employee whether regular or
for a fixed period can not be subjected to
servitude against his will and it is for this
reason that the relief for reinstatement
consequent upon the termination of master
and servant relationship would not lie. The
remedy for damages available, if any, was
not prayed in the plaint.

22. It is also relevant to note that
termination from service is a measure
classified as capital action. Any order
passed by the disciplinary authority by way
of a disciplinary action is amenable to
appeal within the period of limitation. The
hierarchy of authorities before which the
appeal lies is specified in the rules. The
appellate authority is under a bounden duty
to decide such appeals by a detailed and
speaking order. Finality is attached to the
reasoning
recorded
by
the
appellate
authority.

23.
In
the present
case,
the
termination of employment by order dated
7.6.2011 was not taken up in appeal on any
grounds
whatsoever,
therefore,
the
infringement of procedure or the action
amounting to punishment in the given set
of circumstances was never raised. The
1 All. I.C.I.C. Bank Ltd. & Ors. Vs. Krishna Kumar Gujrati
201
respondent-plaintiff at his own risk had
chosen to challenge the order of transfer
from Lucknow to Hyderabad by filing a
civil suit for which neither there was a
cause nor a remedy. A whistle-blower
employee was as helpless as any other
employee on transfer of his services and
had no right to challenge such an order on
the ground of mala fides or otherwise. The
authority to transfer the employees from
one place to another by a competent
authority was absolute. It is for this reason
that the appellant-defendant decided to
dispense
with
the
services
of
the
respondent-plaintiff on payment of two
months' salary in lieu of notice. The action
taken, according to the Bank, is not
punitive. Even if the order of termination
from service was punitive, the respondentplaintiff never questioned the same on any
ground before the appellate authority.
According to the appellant Bank, the matter
understood as capital action, unless taken
up in appeal by the respondent, the
entitlement for damages on any ground
whatsoever, perished by the self inflicted
injury of the respondent-plaintiff.

24. Insofar as the termination of
master
and
servant
relationship
is
concerned, undoubtedly the power was
vested in the appellant Bank and so long
as the same was questioned through a
notice or appeal, a cause for claiming
damages
would
be
doubtful.
The
amendment application even if allowed
by the trial court prior to the disposal of
application under Order VII Rule 11 was
inconsequential and the objection as to
the maintainability of suit raised by the
appellant Bank was rightly dealt with by
the learned trial court.

25. The appellate court below while
dealing with the three-fold question has
firstly misdirected itself to frame the
points of determination and secondly the
distinction drawn on the aspect of regular
employee and contractual employee is
superfluous. The nature of contract in
either of the situations remains one and
the same. The cause of action was bound
to be considered in the light of the master
and
servant
relationship
and
the
conditions of service which the first
appellate court has failed to appreciate.
To opine that ICICI Bank was a State
within the meaning of Article 12 of the
Constitution of India is clearly in the
teeth of judgements rendered by the apex
court
as
well
as
by
this
Court.
Maintainability of the application filed
under Order VII Rule 11 CPC rightly
concluded
by
the
trial
court
has
erroneously been set naught by the first
appellate
court
below.
Thus,
the
judgement rendered by the first appellate
court impugned herein being erroneous
deserves to be set aside and the
judgement/decree passed by the trial
court dismissing the suit calls for revival.

26. Even if it is assumed that the
action of termination from service was
punitive and resorted to without following
the principles of natural justice, this by
itself was a relevant consideration for the
award of damages which the respondent
has failed to claim but revival of service
contract
on
that
account
and
his
reinstatement
with
all
consequential
benefits as prayed for in the plaint is
misconceived. The trial court had rightly
appreciated the position of law but for the
reasons put on record, the first appellate
court clearly fell in error to upset the trial
court judgement. In my considered opinion,
the impugned judgement passed by the first
appellate court below deserves to be set
aside and is accordingly set aside. The
202 INDIAN LAW REPORTS ALLAHABAD SERIES
judgement passed by the trial court is
upheld.

27. The operative part of this
judgement was pronounced in the open
court for the reasons to follow, hence the
benefit of limitation would be available to
the parties up to the date when this
judgement stands uploaded on the official
website of the High Court.

28. The FAFO stands allowed. Parties
to bear their own cost.
----------
(2021)01ILR A202
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2020

BEFORE

THE HON'BLE KAUSHAL JAYENDRA
THAKER, J.

FAFO No.- 363 of 2018

National Insurance Company Ltd.
 ...Appellant/Claimant
Versus
Smt. Urmila Devi & Ors.
 ...Respondents/Opposite Parties

Counsel for the Appellant:
Sri Sudhanshu Behari Lal Gour

Counsel for the Respondents:
Sri Varinder Singh, Sri Vidya Kant Shukla

Civil Law - Motor Vehicles Act (59 of
1988)- Section 166 - Compensation -
Determination - age of the deceased 59
years - Income of deceased Rs.8,000/-
Held - 1/3rd has to be deducted for
personal expenses which would be
Rs.2,666/- (rounded figure) to which
addition of 10% would be required
instead of 20% for future prospects -
amount
of
love
and
affection
Rs.70,000/- with future addition at
10% per year - Interest at the rate of
7% modified to 7.5% (Para 7, 8)

Partly allowed. (E-4)

List of Cases cited :-

1. National Insurance Company Ltd. Vs
Pranay Sethi & ors. 2017 0 Supreme (SC)
1050

2. National Insurance Co. Ltd. Vs Mannat
Johat & ors. 2019 (2) TAC 705 (SC)

(Delivered by Hon'ble Kaushal Jayendra
Thaker, J.)

1. Heard Sri Sudhanshu Behari Lal
Gour, learned counsel for the appellant and
Sri Vidya Kant Shukla, learned counsel for
the respondent-claimants.

2. Facts giving rise to this appeal is
that on 9.4.2016 Basant Kumar Dixit riding
on his motorcycle bearing registration no.
U.P.78/DD/5182 was going to Kanpur from
M/s Jai Ambe Brick Field, Sarlekhpur,
Ghatampur for realisation of the amount
and as soon as he reached near closed shop
before Raipur bridge, the driver of Truck
No. U.P. 22/T/5888 came rashly and
negligently without blowing horn and
dashed the motorcycle badly on account of
which he fell down on the road and driver
of the truck proceeded ahead crushing him
as consequence of which the deceased
succumbed to his injuries on the spot.

3. The claimants approached the
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.7, Kanpur Nagar (hereinafter referred to
as 'Tribunal' by way of filing M.A.C.P.
No.410 of 2016 claiming compensation of
Rs. 20,00,000/- with 12% annual interest.