Delhi District Court
Dr. Shamsher Singh vs Ansal Institute Of Technology on 20 April, 2011
:1:
IN THE COURT OF CIVIL JUDGE-I, NEW DELHI DISTRICT, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 231/10
Unique Case ID No.02403C0311432010
Dr. Shamsher Singh
S/o Late Sh. Chander Bhan
R/o H.No. 23-D, Sec-4, Pushp Vihar, MB Road
New Delhi-110017 ... Plaintiff
Versus
1. Ansal Institute of Technology
through its Chairman
116, Ansal Bhawan,
K.G. Marg, New Delhi-110001
2. The Director
Ansal Institute of Technology
Sec-55, Gurgaon, Haryana
3. The Vice Chancellor
GGS IndraPrastha University
Kashmiri Gate, New Delhi ... Defendants
SUIT FOR DECLARATION AND INJUNCTION
DATE OF INSTITUTION : 25.10.2010
DATE OF ARGUMENTS : 07.04.2011
DATE OF DECISION : 20.04.2011
JUDGMENT
1. The plaintiff has filed the present suit against the defendants, seeking the following reliefs:-
"It is therefore, respectfully prayed that this Hon'ble Court may be pleased to pass in favour of the Plaintiff and against the Defendants:Civil Suit No.231/10 :2:
a) a decree of declaration to the effect that the termination order dated 19.6.2010 passed by Defendant no.1 & 2 is illegal, null and void, mala fide and against the principles of natural justice and the plaintiff is entitled to reinstatement along with arrears and all other consequential benefits including benefit of VI Pay Commission w.e.f. 1/6/2006.
b) Costs of the suit may also be awarded to the plaintiff.
c) Any other order(s) which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be passed."
2. The facts pleaded in the plaint, as part of the cause of action are:-
Date Fact 10.7.2003 The plaintiff joined the services of the defendant no.
1 Institute as Assistant Professor. The plaintiff was offered a pay scale of Rs.8000-275-13500/- and allowances as per Central Government rates.
04.10.2004 The defendant no. 2, who is the Director of the defendant no.1 Institute issued a letter to the plaintiff, stating that his services had been confirmed upon completion of probation of one year and that he had been granted one regular annual increment with effect from 01.08.2004.
30.8.2006 The defendant no.3 approved the post of the plaintiff as a lecturer with effect from 29.8.2006.
Civil Suit No.231/10 :3:14.2.2008 The defendants no.1 and 2 wrote a letter to the plaintiff stating that his request for promotion, review of pay scale, increment etc. would be considered in July 2008.
2.8.2008 The defendants no.1 and 2 promoted the plaintiff to the post of Assistant Professor in the pay scale of Rs. 15000-420-20040/- with one regular increment and other allowances as per the defendant no.1 Institute's norms.
8.8.2008 The defendants no.1 and 2 issued an appraisal letter to the plaintiff and appointed him as Programme Co- ordinator with an honorarium of Rs.2000/- with effect from 1.8.2008 subject to yearly review.
24.6.2009 The defendants no. 2 issued a letter to the plaintiff stating that his services during the period June 2008
-June 2009 were found to be unsatisfactory. The letter gave a detail of the shortcomings in the services of the plaintiff. The letter also stated that the standing committee of the defendant no.1 Institute has decided that the increment of the plaintiff would be deferred till 1.1.2010.
17.7.2009 The plaintiff wrote an explanation in respect of the letter dated 24.6.2009.
21.7.2009 The plaintiff wrote another explanation in respect of the letter dated 24.6.2009.
22.7.2009 In view of the explanation given by the plaintiff, the
defendants no. 1 and 2 restored the annual
increment of the plaintiff with effect from 1.8.2008. 01.08.2009 The defendant no.2 appointed the plaintiff as OSD Civil Suit No.231/10 :4: for Guru Gobind Singh Indraprastha University with effect from 1.8.2009 for the year 2009-2010 with an honorarium of Rs. 4000/- per month.
17.8.2009 The defendant no.2 wrote a letter to the plaintiff. In the letter, it was stated that the plaintiff had been granted new pay scale with effect from 1.8.2009 and that the revised basic pay of the plaintiff is Rs. 15420/- in the pay scale of 15000-420-20040 as per the 6th Pay Commission recommendations of Government of India applicable to regular employees of the defendant no. 1, Institute.
31.12.2009 The defendant no. 2, wrote a letter to the plaintiff. In the letter, the defendant no. 2, after drawing reference to the letter dated 24.06.2009 and the reply of the plaintiff dated 21.07.2008, stated that the defendants had found certain disturbing features in the discharge of duties by the plaintiff. Further, in the letter, the defendant no. 2 stated some of the disturbing features and informed the plaintiff that the defendants would review the plaintiff's case on the strength of the performance of the plaintiff in Spring 2010 semester.
19.06.2010 The defendant no. 2 wrote a letter to the plaintiff, stating that the services of the plaintiff had been terminated with effect from 19.06.2010. In the letter, the defendant no. 2 stated that the services of the plaintiff had been terminated after the reporting officer and the reviewing officer had examined the self-assessment form of the plaintiff for the academic Civil Suit No.231/10 :5: session 2009-10 and had found it to be unsatisfactory.
25.06.2010 The plaintiff wrote a letter to the defendant no. 1,
seeking review of the Order of the Standing
Committee and revocation of the Order of
termination of service.
02.07.2010 The plaintiff wrote a letter to the defendant no. 3
seeking intervention in the matter and directions to the defendants no. 1 and 2 to revoke the termination order dated 19.06.2010.
3. On the aforesaid facts, the plaintiff has claimed that in complete violation of the principles of natural justice, the defendants have illegally and arbitrarily dismissed the services of the plaintiff. Thus, the defendants should be directed to reinstate the plaintiff with arrears and all other consequential benefits including benefit of VI Pay Commission with effect from 1.6.2006.
4. Upon service of summons, the defendants have contested this suit. In the joint written statement filed on behalf of the defendants no.1 and 2, the relevant preliminary objection taken is that no part of cause of action has arisen within the jurisdiction of this Court and that in case, this Court has the jurisdiction to entertain the present suit, the same has been excluded by virtue of clause 15 of the Service Rules and Leave Rules of the defendant no.1 i.e. Ansal Institute of Technology, Gurgaon.
5. In reply on merits, the defendants have averred that the terms and conditions of the employment of the plaintiff are covered Civil Suit No.231/10 :6: by Service Rules and Leave Rules of the Ansal Institute of Technology, Gurgaon and have nothing to do with the defendant no.3, i.e. the Vice Chancellor of the Guru Gobind Singh Indraprastha University; that there was no discrimination against the plaintiff and the management of the defendant no. 1 Institute had rightly rejected the request of the plaintiff for revision in pay scale, increment, incentive etc.; that the plaintiff was vitiating the academic atmosphere at the defendant no. 1 Institute and that the plaintiff was removed from the services of the defendant no.1 Institute on account of low level of performance during academic sessions 2008-09 and 2009-10.
6. In order to substantiate the defence, the defendants have averred that on 24.6.2009, the defendant no.2 had written a letter to the plaintiff, informing him that his assessment report for the academic session 2008-2009 is not up to the standards and that there are certain shortcomings in his conduct as the Senior Associate Professor. The plaintiff had replied to the said letter by writing the letters dated 17.7.2009 and 21.7.2009. In the said letters, the plaintiff had accepted that he had made a mistake by circulating unnecessary and derogatory communication to the Coordinator of the programme and other faculty members and assured that there would be a positive development with regard to his academic performance. However, in the assessment report for the academic session 2009-2010, again certain shortcomings were found in the conduct of the plaintiff. Thus, the defendants no.1 and 2 were constrained to terminate the services of the plaintiff.
7. In addition to the aforesaid, the defendants no.1 and 2 have referred to clause 20 of the Service Rules and Leave Rules of the Civil Suit No.231/10 :7: defendant no.1 i.e. Ansal Institute of Technology, Gurgaon and stated that as per the said clause, the services of the plaintiff have been terminated by the Management Board of the defendant no.1, Ansal Institute of Technology, Gurgaon and that the plaintiff has been issued three months salary in lieu of the termination.
8. In the written statement 1 filed on behalf of the defendant no.3, the relevant preliminary objection taken is that it is not a necessary party to the present suit. In reply on merits, it is stated that the defendant no.3 has no control over the relationship between the defendant no.1 and 2 and its employees.
9. The plaintiff has not filed any replication in respect of the written statement filed on behalf of the defendant no.3. However, in the replication filed in respect of the written statement filed on behalf of the defendants no.1 and 2, the plaintiff has traversed and denied the contents of the written statement and reiterated and reaffirmed the contents of the plaint. Also, the plaintiff has referred to clause 35 of the Service Rules and Leave Rules of the defendant no.1, Ansal Institute of Technology, Gurgaon and claimed that he was entitled to undergo a departmental inquiry before the termination of his services.
10. On the pleadings of the parties, the following issues were framed on 23.3.2011:-
"1. Whether the suit is maintainable in its present form? OPD.
2. Whether this Court has the jurisdiction to entertain the present suit? OPD.
1 It is relevant to note that the written statement filed on behalf of the defendant no.3 has been signed and verified by the Registrar of the Guru Gobind Singh Indraprastha University and not by defendant no.3, Vice Chancellor of the Guru Gobind Singh Indraprastha University.Civil Suit No.231/10 :8:
3. Whether the defendant no. 3 is a necessary party to the present suit? OPD.
4. Whether the plaintiff is entitled to the declaration, as prayed for? OPP.
5. Whether the plaintiff is entitled to the consequential relief of reinstatement alongwith arrears and all other consequential benefit of sixth pay commission with effect from 1.6.2006? OPP.
6. Relief."
11. Upon framing of the aforesaid issues, all the parties were informed about the judgments of the Hon'ble Supreme Court of India in M/s Pearlite Liners Pvt Ltd v Manorama Sirsi, AIR 2004 SC 1373 and Executive Committee of Vaish Degree College, Shamli v Laxmi Narain, AIR 1976 SC 888. Also, all the parties were directed to address arguments on issue no.1, in light of the aforesaid judgments.
12. Thus, in respect of issue no.1, I had heard Sh. SC Jindal, Ld. Advocate for the plaintiff, Sh. Manish Srivastava, Ld. Advocate for the defendants no.1 and 2 and Sh. S. Mahopatra, Advocate for the defendant no.3 on 7.4.2011. The finding on issue no.1 is as follows:-
Issue No.1
13. In support of the case of the plaintiff on the issue, the Ld. Advocate for the plaintiff had made alternate submissions. At the first instance, the Ld. Advocate for the plaintiff had attempted to distinguish the facts and circumstances of the present case from the facts and circumstances of the aforesaid cases and submitted that the law laid down in the aforesaid judgments is not applicable to the facts and circumstances of the present case. At the second instance, the Ld. Advocate had submitted that de hors the aforesaid judgments, this Civil Suit No.231/10 :9: Court in exercise of its powers conferred under Section 9 of the Code of Civil Procedure, 1908, can grant the reliefs sought by the plaintiff.
14. In support of the case of the defendants on this issue, the Ld. Advocates for the defendants had submitted that the law laid down in the aforesaid judgments is squarely applicable to the facts and circumstances of the present and as such, the plaint filed by the plaintiff is liable to be rejected under Order VII, Rule 11(d) of CPC.
15. Before adverting to the rival submissions made by the parties, I find it expedient to refer to the law laid down by the Hon'ble Supreme Court of India in M/s. Pearlite Liners Pvt Ltd v Manorama Sirsi, AIR 2004 SC 1373 and Executive Committee of Vaish Degree College, Shamli v Laxmi Narain, AIR 1976 SC 888.
16. In M/s. Pearlite Liners Pvt Ltd v Manorama Sirsi, AIR 2004 SC 1373, the Hon'ble Supreme Court, after referring to the judgment in Executive Committee of Vaish Degree College, Shamli v Laxmi Narain, AIR 1976 SC 888, had denied the relief of declaration and injunction claimed by the respondent/plaintiff. The relevant part of the Court's conclusions are reproduced below:
"The question arises as to whether in the background of facts already stated can such reliefs be granted to the plaintiff. Unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service. Further it is to be considered that if the plaintiff does not comply with the transfer order it may ultimately lead to termination of service.Civil Suit No.231/10 :10:
Therefore, a declaration that the transfer order is illegal and void in fact amounts to imposing the plaintiff on the defendant, in spite of the fact that the plaintiff allegedly does not obey order of her superiors in the Management of the defendant- Company. Such a relief cannot be granted. Next relief sought in the plaint is for a declaration that she continues to be in service of the defendant-Company. Such a declaration again amounts to enforcing a contract of personal service which is barred under the law. The third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her. If the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her. The management cannot be restrained from exercising its discretion in this behalf. Ultimately, this relief if granted would indirectly mean that he (sic) Court is assisting the plaintiff in continuing with her employment with the defendant-Company, which is nothing but enforcing a contract of personal service. Thus, none of the reliefs sought in the plaint can be granted to the plaintiff under the law. The question then arises as to whether such a suit should be allowed to continue and go for trial. The answer in our view is clear, Civil Suit No.231/10 :11: that is, such a suit should be thrown at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a Court to grant the reliefs prayed for, to be tried at all? Accordingly, we hold that the trial Court was absolutely right in rejecting the plaint and the lower appellate Court rightly affirmed the decision of the trial Court in this behalf."
17. In Executive Committee of Vaish Degree College, Shamli v Laxmi Narain, AIR 1976 SC 888, the facts and circumstances decided by the Hon'ble Supreme Court were similar to the facts and circumstances of the present suit. In the said case, the Hon'ble Supreme Court decided two issues:
a) Whether the appellant institute/college was a statutory body or not?
b) Whether a contract for personal service is specifically enforceable or not?
18. While deciding the first issue, the Hon'ble Supreme Court referred to its earlier decisions in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331 and observed, "It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words the position seems to be that the institution concerned must owe Civil Suit No.231/10 :12: its very existence to a statute which would be the fountainhead of its powers. the question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body."
19. While deciding the second issue, the Hon'ble Supreme Court referred to its earlier decisions in S. R. Tewari v District Board, Agra, AIR 1964 SC 1680, Executive Committee of U. P. State Warehousing Corporation Ltd. v Chandra Kiran Tyagi, AIR 1970 SC 1244, Indian Airlines Corporation v Sukhdeo Rai, AIR 1971 SC 1828, Bank of Baroda v Jewan Lal Mehrotra, (1970) 2 Lab LJ 54, Sirsi Municipality's case AIR 1973 SC 855, and observed, "On a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognized exceptions - (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India;
(ii) where a worker is sought to be reinstated on being Civil Suit No.231/10 :13: dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute."
20. Upon examining case setup by the plaintiff in the present suit, I find that by seeking the reliefs mentioned in paragraph 1 of this Judgment, the plaintiff is practically seeking grant of specific performance of a contract of personal service and the said reliefs cannot be granted to the plaintiff as the case of the plaintiff does not not fall under any of the exceptions illustrated in Vaish Degree College's case (supra).
21. In the plaint, the plaintiff has nowhere contended that the defendant no.1 Institute is statutory body. The only plea taken by the plaintiff is that the defendant no. 1, Institute is governed by the rules and regulations of the Guru Gobind Singh Indraprastha University. In my view, the said plea is insufficient to conclude that the defendant no. 1, Institute is a statutory body. Further, in my view, even if the plaintiff would have contended that the defendant no. 1, Institute is a statutory body, the said plea would have failed as the defendant no. 1, Institute does not owe its existence to any statute / law of this country.
22. Thus, in view of the aforesaid discussion, the issue is decided in favor of the defendants and against the plaintiff.
Relief
23. In view of the finding on the aforesaid issue, the plaint is rejected in terms of Order 7 Rule 11 (d) of CPC and the parties are left to bear their own costs.
Civil Suit No.231/10 :14:24. Before parting with this Judgment, I find it expedient to state that upon conclusion of arguments on the Issue no. 1, the Ld. Advocate for the plaintiff had sought liberty to file an application under Order VI, Rule 17 of CPC for amending the plaint and converting this suit into a suit for recovery of damages. The request made by the Ld. Advocate was declined in view of the judgment of the Hon'ble High Court of Delhi in Marble Art v China Shipping Container Company Limited, ILR (2009) II Delhi 480.
25. After preparation of the decree sheet, the file shall be consigned to the Record Room.
Announced in the Open Court (Jay Thareja)
On 20.4.2011 Civil Judge-I, New Delhi District
New Delhi
Civil Suit No.231/10