ASHOK KUMAR SRIVASTAV versus NATIONAL INSURANCE COMPANY LTD. AND ORS.

Citation: [1998] 2 S.C.R. 1199 · Decided: 27-04-1998 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Dismissed

Judgment (excerpt)

ASH OK KUMAR SRIV AST AV 
A 
v. 
NATIONAL INSURANCE COMPANY LTD. AND ORS. 
APRIL 27, 1998 
[DR. A.S. ANAND AND K.T. THOMAS, JJ.) 
B 
Specific Relief Act, 1963 : 
Ss. 14 and 34-Suit for a decree declaring that notice of termination 
of services of plaintiff was illegal and he continued in service-Maintainability C 
of-Defendant raising the plea that suit was for enforcement of a. contract 
of employment and was not maintainable-Held, maintainability of a suit 
cannot be adjudged from the effect which the decree may cause-It can be 
determined on the basis of ostensible pleadings made and the stated relieft 
claimed in the plaint. 
Code of Civil Procedure, 1908 : 
D 
S.11-Res judicata-Held, 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 E 
proceedings-Constitution of India-Articles 226 and 32. 
Service Law : 
Termination of service-Plaintiff appointed as Inspector on probation 
in National Insurance Company on certain terms and condition including F 
that within the prescribed period he would achieve the targeted amount of 
premium, which the plaintiff failed to achieve-Notice of termination of 
service issued-Plaintiff filing a suit for a decree declaring that the notice 
was illegal and he continued in service-Held, in view of terms and conditions 
of employment incorporated in the letter of appointment, the suit was rightly 
dismissed by the High Court. 
G 
Maxim: ''nemo debet bis vexari pro una et eadem causa ''-Applicability 
of 
The appellant was appointed as Inspecto~ in the employment of National 
Insurance Company Ltd., the respondent, on 19.9.1980. The terms and H 
1199 
1200 
SUPREME COURT REPORTS 
[ 1998] 2 S.C.R. 
A conditions of employment stated that initially the appellant would be on 
probation for 12 months and in order to be eligible for promotion as 
Probationary Inspector (Grade-I) he was required to achieve the target of 
premium amount prescribed, and unless a letter appointing him as 
Probationary Inspector (Grade-I) was issued by the Company before the 
B expiry of initial probationary period or the extended probationary period, his 
services \\Ould stand automatically terminated. His service was also liable to 
be termin:ated without assigning any reason during probationary period. On 
13.3.1982 the appellant was served with notice of termination of his service 
stating th:at he failed to achieve the targeted premium amount. 
C 
The appellant filed a suit for declaration that the notice of termination 
was illegal and void and he continued to be in service with all benefits flowing 
from the post. The respondent-company filed a written statement contending, 
inter alia, that the suit was not maintainable under s. 34 of the Specific 
Relief Act. 1963. Later, the suit was proceeded with ex-parte and was decreed. 
The appellant sought execution of the decree, which was unsucessfully resisted 
D by the respondent- company on the ground including that the decree was 
unenforceable and void as the same was passed without jurisdiction. The 
order of the execution court was challenged by the respondent-company in 
a writ petition before the High Court, which dismissed the writ petition 
holding th:at the decree was passed by a court having jurisdiction and the suit 
E was maintainable under s. 34 of the Act. The respondent-company then filed 
a first appeal challenging the decree and, on dismissal of the appeal, it filed 
a second appeal before the High Court. The High Court held that the question 
whether tllie suit was maintainable under s.34 of the Act had finally been 
decided in the writ petition and the said decision would operate as res 
judicata. However, the second appeal was allowed by the High Court holding 
F that the termination order was not vitiated for non-payment of one month's 
pay in lien of notice and the appellant was not entitled to continae as a 
Probationary Inspector. 
Aggrieved, the plaintiff filed the present appeal. 
G 
It wa1s once again contended for the respondent-company that the suit 
was not maintainable u/s 34 of the Specific Relief Act. It was argued that 
in the writ petition the order passed in execution proceedings was challenged 
and, therefore, the decision rendered in the writ petition would only remain 
in realm of execution and it would not preclude the parties to the suit from 
raising such issues over again when the ver

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