Filing writ petitions in the High Court under Article 226 of the Constitution fetches only limited relief. A writ of certiorari at best can quash an impugned order and restore the public servant to the position that prevailed before the passing of the order, which was quashed. But this is no solution, since the employer can reopen the same case and initiate fresh proceedings, taking the additional precaution to avoid the pitfalls or the deficiencies in the inquiry process, which resulted in the quashing of the previous order. If the fresh inquiry results in inflicting the same or other penalty again, the delinquent employee may find it difficult to get further relief under writ procedure. Further a writ petition through a High Court cannot provide the aggrieved officer employee to get other beneficial relief like-

• A categorical direction to the employer that the employee should be deemed to be in office as on the date of the impugned order with a right to continue in the said post till superannuation.

• That he should be given arrears of salary, allowances and other benefits accruing from time to time by way of damages for wrongful dismissal.

• That he should be given the costs incurred by him during the course of the litigation and other incidental benefits/reliefs.

The High Court under Article 226 and the Supreme Court under Article 32 cannot go into the disputed questions of facts leading to the penalty imposed on the public servant. They can only conduct a limited judicial review of the validity of the procedures followed in the process of arriving at the conclusion and can remedy only the apparent and gross violations of natural justice and violations of safeguards under Article 311(2) of the Constitution.

Employees covered under the Industrial Disputes Act have effective recourse to Labour Courts and Industrial Tribunals. Is there no recourse for officer employees not covered by the Industrial Disputes Act? Such employees can get substantial remedies by filing civil suits taking recourse to provisions of the Specific Relief Act, 1963. A declaratory suit under Section 34 of the Specific Relief Act offers a better alternative for a public servant. Specific Relief may in brief is explained as a relief in specie. It is a remedy, which aims at the exact fulfillment of an obligation. The competent court may punish the offender person for invasion of property rights of the applicant or the applicant may pray that the status quo ante may be restored and he may be put back into possession.

"A Public servant has a more convenient, effective and adequate remedy by way a regular suit in a declaration and consequential relief, where there are disputed questions, facts, and other questions which require evidence to be adduced and findings are invited over a number of matters, which cannot be conveniently disposed in writ proceedings. In order to arrive at the truth or otherwise of controversial matters in issue it is essential that the Civil Court alone is the proper forum, where all these matters can be canvassed in their proper perspective by examining witnesses and placing all the documentary evidence in dispute."
[Departmental Enquiries Against Government Servants by Shri P.V.Ramakrishan]

The remedy by way of an application under Article 226 of the Constitution is not a proper substitute for a remedy by way of a suit, especially where the facts are in dispute, and in order to get at the truth it is necessary that the questions should be canvassed in a suit where the parties will have ample opportunities of examining their witnesses and the courts will be better able to judge which version is correct.
[(Bibhuti Bhushan vs. Damoder Valley Corporation ), AIR 1953 CAL.581]

However it is to pertinent to point out that neither by fling a writ petition in the High Court or filing a civil suit in the Civil Court, it will be possible to dispute or reverse or secure the following.

• To question the quantum of punishment imposed on a delinquent officer by way of disciplinary action cannot be reviewed or reduced by either process, when the delinquent officer feels that for a trifling or minor conduct omission, he has been awarded a disproportionately severe punishment. Nor is it open to any Court of Law or the High Court to direct the punishing authority to reconsider the quantum of punishment, when once a prima facie case about the guilt is made out against the public servant

• The remedy by way of writ or by way of suit cannot be availed of by the public servant at any stage before the final order is issued. The employer may indefinitely drag the conclusion of the inquiry and keep the employee under suspense. Thereafter when the DA regulations provide for appeal and/or review these formalities have to be availed and exhausted by the employee before he can approach the judiciary for finally for justice.

To understand the reliefs contemplated by the Specific Relief Act, 1963, It is necessary to learn a few essential facts about the provisions of the Specific Relief Act, 1963. The Act was originally passed during British rule in 1877. It was amended in 1963.

It is described as an Act to define and amend the law relating to certain kinds of specific relief. Section-3 of the Act clarifies as under-

Except as otherwise provided herein, nothing in this Act shall be deemed,-

1. to deprive any person of any right to relief, other than specific performance, which he may have under any contract; or

2. to affect the operation of the Indian Registration Act, 1908, on documents.

Section 4 of the Act cites another important clarification about the scope of the Act as under:

Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

The kinds of remedy available in Specific Relief Act are:-

1. As compensatory [Section 21]

2. Specific [Section 20]

Under the former, the court awards damages for the breach of the obligation. In the later it directs the party in default to do or forbear from doing the very thing, which he is, bound to do or forbear from doing. The Law of Specific Relief is, in its essence is a part of law of procedure. Specific relief is a form of judicial redress. It is adjective law.

The interpretation is of two kinds :

1. "Remedical" - art of finding out true sense of any form of award.

2. "Logical" - called also "construction", the drawing of conclusions respecting subjects which lie beyond the direct expression of the text; conclusions which are in the spirit, though not within the letter of law.

Four things may inter alia be discerned and considered viz.,

1. What was the former law before making of the Act; or

2. What were the ascertained evils to which the former law has given rise or what was the mischief and defect which the former law did not provide for;

3. What remedy the latter Act has provided; and

4. The true reason for the remedy.

"The duty of the court is always to make such construction as shall suppress the evil or the mischief and defect and advance the remedy and to suppress, settle inventions and invasions for continuance of the mischief or evil and per privato commado and add force and life to the cure and remedy according to the true intent of the makers of the pro bono publico.
( http://www.indianlegaleagle.com/laws/general/srelief/)

Cases in which specific performance of contract enforceable

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-

1. when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or

2. when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation: Unless and until the contrary is proved, the court shall presume-

1. that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

2. that the breach of a contract to transfer movable property can be so relieved except in the following cases:

   1. where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

   2. where the property is held by the defendant as the agent or trustee of the plaintiff.

1. Except as otherwise provided in this Act, specific performance of a contract may, in the discretion of the court, be enforced when the act agreed to be done is in the performance wholly or partly of a trust

2. A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced.

Specific performance of part of contract

1. Except as otherwise hereinafter provided in this Section the court shall not direct the specific performance of a part of a contract.

2. Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

3. Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either-

   1. forms a considerable part of the whole, though admitting of compensation in money; or

   2. does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party-

      1. in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause (b), 2[pays or had paid] the consideration for the whole of the contract without any abatement; and

      2. in either case, relinquished all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

   3. When apart of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.

Explanation: For the purposes of this Section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its performance.

The following contracts cannot be specifically enforced:

1. A contract for the non-performance of which compensation in money is an adequate relief

2. A contract which runs into such minute or norms details or which is so dependent on the personal qualification or violation of the parties or otherwise its nature is such that the court cannot enforce specific performance of its material terms.

3. A contract which is in its nature terminable.

4. A contract the performance of which involves the performance of a continuous duty, which the court cannot supervise.

The specific performance of a contract may be obtained by :

1. Any party to the contract

.

2. The representative-in-interest or the principal of any party thereof, provided that where the learning skill, insolvency or any personal quality of such party is a material ingredient in the contract or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract unless such party has already performed his part of the contract or the performance thereof by his representative-in-interest or his principal has been accepted by the other party.

3. Where the contract is a settlement or a compromise of doubtful rights between the principal of the same family, any member beneficially entitled thereunder.

4. Where the contract has been entered into by a tenant for life in due exercise of a power, the remainder men.

5. The reversioner in possession, where the agreement is covenant entered into with his predecessor-in-title and the reversioner is entitled to the benefit of such covenant.

6. Reversioner in remainder, where the agreement is such the covenant and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach

7. When the company has entered into a contract and subsequently become amalgamated with another company, the new company which arises out of amalgamation.

8. When the promoters of the company, if before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company.

Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.

1. The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

2. The following are cases in which the court may properly exercise discretion not to decree specific performance:

   1. where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

   2. where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

   3. where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

   Explanation 1: Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
   Explanation 2: The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

3. The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

4. The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.

Power to award compensation in certain cases

1. In a suit for a specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

2. If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

3. If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

4. In determining the amount of any compensation awarded under this Section, the court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872.

5. No compensation shall be awarded under this Section unless the plaintiff has claimed such compensation in his plaint:

PROVIDED that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.

Explanation: The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this Section

Power to grant relief for possession, partition, refund of earnest money, etc.

1. Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-

   1. possession, or partition and separate possession, of the property, in addition to such performance; or

   2. any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 3[made by] him, in case his claim for specific performance is refused.

2. No relief under clause (a) or clause (b) of sub-Section (1) shall be granted by the court unless it has been specifically claimed:

PROVIDED that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

3. The power of the court to grant relief under clause (b) of sub-Section (1) shall be without prejudice to its powers to award compensation under Section 21.

Liquidation of damages not a bar to specific performance

1. A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving, to the party in default an option of paying money in lieu of specific performance.

2. When enforcing specific performance under this Section, the court shall not also decree payment of the sum so named in the contract.