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Article Published in the Express Magazine Dated
March 04, 2001
General Attorney : Rajiv K. Luthra
A company has offered me a job assignment but
they also want me to sign a service bond for at
least a year. I fear I may lose out on better
options that may come my way. Were I to breach the
bond, can they, through the court, compel me to
carry on with the assignment? Were I to join, does
this bond secure my job with the company for at
least a year?
Manoj, Delhi
A contract of service is not capable of specific
enforcement and hence, need not be specifically
performed. Normally, in a bond of this kind, there
is also a compensation clause. In case you breach
the contract, you may have to pay the specified
amount. The apex court has held that a contract of
personal service cannot ordinarily be enforced by
or against an employer and a court normally would
not give a declaration that the contract subsists.
The rationale is unwillingness of courts to compel
persons who are not desirous of maintaining
continuous personal relations with one another to
continue those relations. The grant of specific
performance is a purely discretionary relief and
can be refused when not warranted by the ends of
justice.
There are certain exceptions to this rule such as
in the case of a public servant who was dismissed
from service in contravention of Article 311 of
the Constitution, reinstatement of a dismissed
worker under industrial law, a statutory body
acting in breach of statutory obligations and the
like. But these do not seem to appear in your
case. The remedy in a cases like yours is to sue
for damages. Such relief can be granted only on
sound legal principles.
As regards your query on the issue of your
security of the job for at least a year, if the
employer rightfully ends the contract, there can
be no complaint, but if the employer wrongfully
terminates the contract, then you can pursue a
claim for damages.
A civil suit was filed against me but the same
was dismissed in default as neither the opposite
party nor their counsel appeared. Does this mean
that I have won the case?
B. G. Bhatia, New Delhi
Dismissing a suit in default is essentially the
discretion of the court and done when the court
thinks that there is sufficient cause to do so. A
suit may be dismissed under Order IX Rule 3 of the
Civil Procedure Code, 1908 (“C.P.C.”), i.e. where
neither party appears. Under these circumstances
the plaintiff may file a fresh suit within a
period as prescribed under the law of Limitation.
Alternatively, he may apply for an order to set
aside the dismissal and if he satisfies the court
that there was sufficient cause for
non-appearance, the court may make an order
setting aside the order of dismissal.
However, where the defendant appears and the
plaintiff doesn't appear, and the defendant does
not admit the claim or any part thereof, the court
may make an order of dismissal under Order IX Rule
8. The plaintiff then can be precluded from
bringing a fresh suit in respect of the same cause
of action, but he may apply for the setting aside
of the dismissal order. If he can satisfy that
there was sufficient cause for his non-appearance,
the court may make an order setting aside the
dismissal upon such terms as to costs or otherwise
as it thinks fit, and may appoint a day for
proceeding with the suit. Hence, it would not be
apt to conclude at this juncture that you have won
the case as the plaintiff still has the above
recourses available to him of either having the
suit restored or to file a fresh suit depending
upon the circumstances under which the suit was
dismissed.
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