The party cannot claim compensation after the dismissal of the suit for the specific performance. However, this will not bar the right to sue for any other relief which he may be entitled to by reason of such breach.

Discretion of court as to declaration of status or right
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

PROVIDED that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation: A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.

The declaration is binding only to the parties to the suit and persons claiming through them.

Injunction is a measure of preventive relief. The injunction is a judicial process whereby the parties are ordered to refrain from doing or to do a particular act or thing. The court can grant injunctions, temporary, perpetual, permanent or mandatory.

Temporary injunctions are such as to continue until a specific time or such further order of the court.[Section 37(1)].

Perpetual injunction can only be granted by a decree made at the hearing of both the parties and the defendant is thereby perpetually enjoined from the assertion of a right or from the commission of an act which may be contrary to the right of plaintiff.[Section 37(2)]. The party who disobeys an injunction exposes himself to the charge of contempt of court. The court issuing injunction can deal with its disobedience even after the dismissal of the suit.

Subject to the other provisions contained in or referred to by Chapter VII of the Act, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in favour of the plaintiff either expressly or by implication or where such obligation arises from a contract which can be specifically enforced or when the defendant invades or threatens to invade the right of, or enjoyment of property, inter alia where invasion is such that compensation in money would not afford adequate relief or where there exists no such standard for ascertaining the actual damage caused or likely to be caused by the invasion.(Section 38)

Writ or injunction may take a positive form. It may require a party to do a particular thing. In such case the injunction is described as mandatory. To prevent a breach of obligation, the court may compel the performance of certain act. The court may also grant an injunction to prevent the breach complained of and also to compel performance of the requisite act. In addition or in substitution to perpetual injunction as well as mandatory injunction, the court may also award damages.(Section 39)

An injunction cannot be granted in the following cases

1. to refuse any person from procuring a judicial proceeding unless such restraint is necessary to prevent the multiplicity of proceedings.

2. to restrain any person from instituting or procuring any proceeding in a higher court from which the injunction is sought.

3. to restrain any person from applying to any legislative body.

4. to restrain any person from instituting or procuring criminal proceeding.

5. to prevent the breach of contract, the performance of which cannot be specifically enforced.

6. To prevent an act of which it is not reasonably clear that it will be a nuisance.

7. To prevent a continuing breach in which the plaintiff has acquiesced.

8. when equally efficacious relief can certainly be obtained by any other usual mode of proceeding

9. when the plaintiff has no personal interest in the matter.

10. where the conduct of the plaintiff or his agent has been such as to disentitle him to assistance of the court.

A public servant seeking remedy through the Specific Relief Act, 1963 can file a declaratory suit under Section 34 of the Act. The merits of the remedy under Specific Relief Act have already been explained. While seeking remedy under this section the applicant must keep in view the contents of 'Proviso' to the section " that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so". The prayer has necessarily to be for specific relief (vide Section 20 or 21) plus declaration.

Civil Courts deal with civil rights of persons and they can grant relief only if a legally recognised right of a person is infringed. The sources of right in employment are generally contract, custom and statute. The litigant should seek remedy for the encroachment of any of his rights derived as above.

The dismissal of an employee from service can be contested on two counts, viz.

1. A breach of contract, on the ground that a legally recognised right under a contract has been violated

2. As a tortuous act inasmuch as it results in injury to the feelings and sentiments of the servant and also it bars his future employment.

Wrongful dismissal in tort and wrongful dismissal in breach of contract are separate things. Claims for tortuous relief is to be made under the Law of Torts. A discussion about Law of Torts is beyond the scope of this literature. Those interested may refer to web-site of Government of India, the complete history of development of Law of Torts in India. ( http://ncrwc.nic.in/vsncrwc/panel11.htm ).

However briefly it can be explained that the Law of Torts deals with "the Law of civil liability for the wrongful infliction of injury by one person upon the other. The characteristic claim in Tort is for monetary compensation, or damages, by a plaintiff who has suffered loss by reason of wrongful, or tortuous, conduct of the defendant. This involves an understanding also of the directions, which the courts are taking in the development of common law principles and not merely knowing the outcome of particular recent cases. Students will also have to consider the social purposes which the law of Torts serves and what its role is today when there are other sources of compensation, particularly for personal injuries and the consequences of personal injuries" (http://www.glc.edu/overview.htm

In view of the fact that employee cannot seek reinstatement from Civil Courts, it is clear that a mere declaration that the order terminating the services is wrongful will not serve any useful purpose because even if such a declaration is granted, it will neither amount to decree for reinstatement, nor to a decree for payment of damages. " Even if there is a wrongful dismissal the contract of service cannot specifically be enforced. Ordinarily no suit for declaration will lie in the absence of violation of statutory rules or under Labour Law." [(Principal & Secretary, Maulana Azad College of Technology, Bhopal vs. Nathuram Pandey 1972 LAB IC 1952 (MP HC)]. "Generally the contract of personal employment is not enforceable by specific performance except under industrial law or when termination contravenes Article 311 or provision of any statute"[(Calcutta Electric Supply Corporation Ltd vs. Ram Ratan Mahanto), (1975) I LLJ 94 (CAL HC)] It is for this reason the proviso to Section 34 adds the clause as under:

PROVIDED that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

"A declaration that dismissal is illegal and wrongful cannot be claimed in the absence of claim for consequential claim of damages because the declaration cannot be granted in vacuum" [(General Manager, Delhi Transport vs. Dharam Singh) (1962) FLR 154 (Punj HC)]

When there is a breach of contract, the Court after looking into the terms of the contract may declare the dismissal as unjustified and may grant damages. Even though normally the civil court cannot order re-instatement, yet they can award damages, if they find the dismissal as unlawful or illegal. [(Bharat Electronics Ltd. vs. B. Aswathanarayanan), 30 FJR 205 (Mys HC)]

The relationship between the Government and its employee is contractual and the fundamental rules by which they are governed become part of the contract of service. Such Government servants are, therefore, entitled to damages in case of wrongful dismissal of service. Even if the relationship between the Government and its employee is not considered contractual and the action of dismissal is construed as an action in tort, the decision will not be different and they will be entitled to damages [(Jyotirmani sharma vs. Union of India), AIR 1962 CAL 34]

"Although the Civil Court cannot generally grant declaration regarding continuance of service, but when the termination is itself null and void, instead of being wrongful, then the Civil Court can grant the declaration. The mere fact that termination of services is in breach of contract will not render the termination null and void because a person is competent to breach a contract, although it may result in some civil consequences like damages. The position is entirely different when a statute says that can be terminated by a particular authority, or in a particular manner or subject to specified conditions and the services are terminated in violation of the statute .In that case there is no legal termination at all, and the purported termination order is null and void." [Law and Procedure for Departmental Enquiries" by B.R.Ghaiye]

It is further explained in the following Court decisions: "A thing which is void is a mere nullity and may be ignored even in collateral proceedings. The expression "void" ab initio is used to make it clear tat the word "void" is used in the strict sense of the word. Sometimes these expressions and the expression "nullity" are used to emphasize that the order is clearly illegal and the order is voidable or liable to be set aside.[( Madhavan Pillai vs. State of Kerala)AIR 1966 Ker 212]

If the master wrongfully dismisses the servant either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract, then the removal of the plaintiff's name from the register being, in law, a nullity, he continued to have the right to be treated as a an employee [( Vine vs. National Dock Labour Board), (1956) 3 ALL ER 939]

The various contingencies in which action is treated as void or merely wrongful are given below:

When an action is void:

1. Dismissal contrary to statutory provisions is wrong.

2. Violation of statutory rules will violate the enquiry.

3. Termination in violation of the rules under Article 309 will make the order void

4. When contract of employment is statutory in character? The mere fact that an institution is established by statute and was regulated by statutory enactment does not mean that the contract of employment entered by the Institution with the employees is of statutory nature. When neither the act nor the rules thereunder lay down any obligation or restriction as to the powers of the Corporation to terminate the employment of its employees or any procedural safeguards, subject to which only, such power can be exercised though they ma be provided in the regulations then the employment is contractual in character and no declaration can be granted. Para 521(10) of the Shastri Award has no statutory force and the termination of services contrary to the Award will not amount breach of mandatory obligations imposed by the Statute and, therefore, the aggrieved party cannot ignore the dismissal and pray for leave [(Babulal Ajmere vs. State Bank of Bikaner), 1974 LAB IC 1340 (Raj HC). But if a Company does something contrary to the provisions of the Industrial Disputes Act. Then the Company fails to perform statutory duty and may be compelled by mandamus to perform to perform the duties imposed on it by the statute.

5. Termination by statutory authorities in violation of principles of natural justice is void.

6. Whether termination in violation of the regulations made by statutory authorities is void? In a number of cases the statute permit the authorities to frame regulations of their own. The question is whether the regulations are statutory and the infringement of the regulations in terminating the services will make the order null and void. Earlier cases give conflicting decisions by High Courts. However, in latter cases it is held by the Supreme Court of India that regulations framed by statutory authorities are statutory in character and any termination in violation of the regulations will make the order null and void. Rules are duly made relative to the subject matter on which the statutory bodies act subordinate to the terms of the statute under which they are promulgated. Regulations are in aid of the enforcement of the provisions of the statute. Rules and regulations have been distinguished from orders or determination of statutory bodies in the sense that the orders and determinations are judicial function, which deal with a particular present situation. Rules or regulations on the other hand are actions in which the legislative element predominates. Even assuming that the regulations have no force of law, the employment under these Corporations is public employment; and employee would get the status which would enable him to obtain the declaration for continuance in service if he was dismissed or discharged contrary to the regulations. The employees of the statutory bodies have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions. Rules and Regulations of the Oil and Natural Gas Commission, Life Insurance Corporation And industrial Finance Corporation have the force of law. [(Sukhdev Singh vs. B.S.S.Raghuvanshi,) (1975) I SCC 421 : 1975 SCC (L & S) 101.

7. Dismissal by incompetent authority is void.

8. Dismissal made under invalid statute is void.

9. Punitive action against an employee contrary to constitutional provisions is void

1. Mere irregularity in following the rules will not invalidate the order.

2. Termination in violation of bye-laws not void.

Notice under Section 80 of the Civil Procedure Code must state: (a) name, description and place of residence of the plaintiff, (b) cause of action for the suit and (c) relief. The notice should not be scrutinised in a pedantic manner divorced from commonsense.

The power to grant temporary injunction in case of employment is vested with the Courts in term of Order 39, Rule 1, an injunctive relief cannot be granted when it is prone to operate against real justice of the case. If the employee is wrongly retired from a particular date then he can claim damages measurable by the extent of the emoluments of which he has been unjustly deprived and that will be a complete remedy against the wrongful act of the employer. If, however, the employee is forced on the employer by an order of temporary injunction then the department has no ex post facto remedy against the injunctive fiat of the court. This will mean that in the process of enquiry, the court has by prejudging the case has given him the actual relief, the grant of which was seriously contested. The balance of convenience is therefore, on the side of the employer and not on the side of the employee.[(Union of India vs. Bakshi Ambriksingh) AIR 1963 Punj 104.]

When the employee filed the suit on the ground that the dismissal was unconstitutional and void, then no irrepairable injury could have been caused in the absence of injunction order [(Oil India vs. Bhaghat Singh) (1971) 22 FLR 11 (Pat HC)

1. When the suit was filed for permanent injunction to restrain the defendant from removing the plaintiff from service and also for declaration that order of removal was unconstitutional, null and void, then temporary injunction can be issued if there is prima facie case and the balance of convenience lies in passing the order. [(Union of India vs. Bhuvaneshwar), AIR 1963 Pat 196]

2. The conditions for grant of interim injunction are (i) establishment of prima facie case; (ii) irrepairable loss which cannot be compensated in damages; and (iii) balance of convenience

Under Civil Procedure Code a suit can be filed

1. where the cause of action arises either in whole or part and/or

2. Where the defendant resides.

If necessary parties are not impleaded in the civil suit, then the suit is bad. Necessary party is one without whom no order can be made effectively.

If an applicant is entitled to ask for more than one relief in respect of his cause of action then he must sue for all such reliefs at the same time. If he omits some relief then ordinarily he must not file a suit in respect of such omitted relief subsequently. A person cannot file one suit for declaration that his dismissal is void and another suitor arrears of salary from the date of dismissal because that will be contrary to he provision of Civil Procedure Code.