Punjab-Haryana High Court
Seema Sethi vs Dayanand Anglo Vedic College Trust And ... on 27 August, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CWP No. 5170 of 2010 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 5170 of 2010
Date of Decision: August 27, 2013
Seema Sethi
.....Petitioner
Vs.
Dayanand Anglo Vedic College Trust and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.P.K. Dutt, Advocate
for the petitioner.
Mr.L.R. Sharma, Advocate.
-.-
M.M.S. BEDI, J. (ORAL)
Petitioner has invoked the jurisdiction of this Court under Articles 226/227 of the Constitution of India seeking a writ in the nature of Mandamus directing the respondents to allow the petitioner to attend her duties as Head of Department of Cosmetology and Personality Development at DAV College for Girls, Yamuna Nagar and to release her salary for the months of August 2009 onwards. The petitioner has pleaded that the respondent Dayanand Anglo Vedic College Trust and Management Society Gupta Sanjay 2013.09.25 15:29 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5170 of 2010 [2] is a registered Society and it is one of the largest Educational Society of the area running over 700 Educational Institutions and having annual budget of over Rs.200 crores. It has employed ten of thousands of employees and is performing a function of public character. The DAV College of Girls is one of the institutions being run by the respondent Society under the name of DAV Polytechnic for Women. The petitioner was appointed pursuant to an advertisement vide annexure P-2 as Part Time Instructor for Cosmetology in the Cosmetology Department at consolidated salary of Rs.1800/- per month and she joined her duties w.e.f. September 10, 2001. In July 2003, she was placed in regular grade of Rs.3000-250-5000-300 . She claims that she holds all the essential qualifications and eligibility being B.A., B.Ed. having one year Diploma in Health and Beauty Culture. She was given the status of Head of Department of Cosmetology w.e.f. 2004-2005 after Ms.Shashi Kumar the then Head of the Cosmetology Department relinquished the charge. She was given special rise of Rs.1000/- per month in her salary vide letter dated February 1, 2007. Petitioner has appended salary certificate issued by respondent No.3 for income tax purposes for the years 2005-06, 2006-07, 2007-08 and 2008-09. The name of the petitioner was specifically mentioned in the names of teaching faculty for the year 2008-09. After the month of August 2009, respondent No.2 started delaying the payment of salary to the petitioner. Except for an amount of Rs.15000/- paid vide cheque dated October 11, 2009 by Principal DAV College for Girls of HDFC Bank at Yamuna Nagar, no salary has been paid to the Gupta Sanjay 2013.09.25 15:29 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5170 of 2010 [3] petitioner after the month of September, 2009. Petitioner submitted an application annexure P-11 for release of her salary for the month of September, October and November 2009 but on January 8, 2010, when the petitioner went to the college as usual, she was not allowed to mark her presence in the prescribed register. When petitioner met respondent No.2 she was told that she ought to leave the college. Petitioner sent a telegram to respondent No.2 to record the fact that petitioner has not been allowed to mark her presence and take classes. Copy of the telegram dated January 8, 2010 is appended as annexure P-12.
In nut-shell the grievance of the petitioner is that the action of the respondents is illegal and that no show cause notice has been issued to her for any indiscipline, lack of professional competence or any other deficiency against the rules of natural justice has been given and she has been deprived of her fundamental rights under Articles 14, 16 and 19 (i) (g) of the Constitution of India.
The claim of the respondents is that the petitioner was appointed on temporary basis against consolidated salary for a specific course i.e. Cosmetology. The course has been closed by the Management vide resolution of February 21, 2009. The said course had come to an end and as such the petitioner has got no cause of action for filing the writ petition. The salary which was being paid to the petitioner was out of the funds of respondent No.3. The course of Cosmetology was being run by respondent No.2 as Add-on-Course in the DAV College but she did not opt Gupta Sanjay 2013.09.25 15:29 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5170 of 2010 [4] for working in the said College. It has been denied that she was ever appointed on regular post after following the due procedure. The applications were invited vide notice dated May 30, 2009 for filing up the vacancies in the year 2009-10 and 2010-11 as the Cosmetology course was started by respondent No.2 as Add-on-Course but the petitioner never applied as instructor and as such she does not have any cause of action. The petitioner had received two months salary in advance in lieu of the notice in the month of September 2009 without doing any job.
Counsel for the petitioner has contended that the nature of employment of petitioner was of regular nature and that she was entitled to the protection under the Haryana Affiliated Colleges (Security of Service) Act, 1979 and can be removed only after an inquiry.
I have considered the facts and circumstances of this case. The foremost claim which is required to be determined is the nature of the employment of the petitioner. It is an admitted fact that the petitioner was initially appointed on a consolidated salary. She was not appointed on regular basis. No doubt, her services have been availed of by the respondents till the course lasted but vide resolution annexure R-1 it was decided to close down the polytechnic after the academic session of year 2008-09 was over. Copy of the resolution passed by the Governing Body of the DAV Polytechnic for Women dated February 21, 2009 has been appended as annexure R-1.
Gupta Sanjay 2013.09.25 15:29 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5170 of 2010 [5]
The petitioner has worked for the respondents from the year 2001 till 2009 and received salary for her services. A communication annexure P-2 dated September 7, 2001 indicates that she was appointed as part time Instructor for Cosmetology at a consolidated salary of Rs.1800 per month. It was specifically mentioned that her services were purely on temporary basis and could be terminated at any time without any notice or without assigning any reason. The appointment was for tenure from September 10, 2001 to May 15, 2002. The petitioner accepted the said offer. The petitioner having worked for 5 years till 2006 indulged in teaching and planning and managing (man and material) in her Department. She was involved in practical and treatment under the guidance and assistance of Head of the Department. The students during the sessions 2003-04, 2004-05 and 2005-06 scored high percentage of marks i.e. 82%, 86% and 86% respectively. She had got additional income by working in different sessions in treatment cell of the classes and short term courses as detailed in annexure P-4. As per certificates annexure P-6, the petitioner had received salary of Rs.41250/- for the sessions 2005-06. She had withdrawn Rs.43500/- as salary for the session 2006-07. For the sessions 2007-08 she had received salary of Rs.59400/- and for the session 2008-09 she had received salary of Rs.76200/-. Her name had been reflected in the teaching faculty. From the above said circumstances, the petitioner claims that she had been working as a regular employee and was entitled to the benefits of Haryana Affiliated Colleges (Security of Service) Act, 1979 that Gupta Sanjay 2013.09.25 15:29 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5170 of 2010 [6] she could not be removed without following the procedure prescribed under the rules.
The respondents have contested the claim of the petitioner that she being on temporary basis could be terminated without any notice. She is estopped to claim to be a permanent employee on the principle of estoppel having agreed to the initial proposal that her services could be terminated at any time. The petitioner was appointed for a specific course of Cosmetology on a consolidated salary. She was not appointed in regular manner. It has been pleaded in the written statement that applications were invited vide notice dated May 30, 2009 for filling up the vacancy for the session 2009-10 and 2010-11 as the Cosmetology course was started by respondent No.2 as Add-on-Course but the petitioner never applied as Instructor for that course. A copy of the advertisement notices have been appended with the written statement as annexures R-2 and R-3. It is not the claim of the petitioner that she was appointed by adopting due procedure on the basis of an advertisement by an open competition. No doubt, she has worked for the respondents for a period of 8/9 years but she had not availed an opportunity to be appointed on regular basis in response to the advertisements annexures R-2 and R-3.
Counsel for the petitioner has submitted that the petitioner may not be entitled to the protection of Article 311 of the Constitution of India but the institutions run by the respondent Management are affiliated to the Kurukshetra University, under the Kurukshetra University Act and the Gupta Sanjay 2013.09.25 15:29 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5170 of 2010 [7] petitioner being employee of an affiliated college would be entitled to the protection under the Haryana Affiliated Colleges (Security of Service) Act, 1979, hereinafter referred to as 'the Act'.
The documents placed on the record by the petitioner and the respondents indicate that the petitioner had never been appointed on regular basis by following the procedure of selection by the Managing Committee after undergoing selection process under the Act. She was never interviewed by the Selection Committee of DAV Polytechnic for Women, Yamuna Nagar. It is a glaring example of exploitation of the services of the petitioner by the respondents. The contract of employment clearly indicates that the respondents are in a position to avail the services of the petitioner on terms and conditions dictated by them. The petitioner did not have any alternative except to succumb to every unreasonable term and condition. The contract was apparently between two unequals and apparently unconscionable a wrong has been done to the petitioner but in view of the petitioner having not been recruited by adopting due procedure and she having not been regularized she is not entitled to the statutory protection of Article 311 of the Constitution of India and the Act, her appointment being contractual. The reason for dispensing with her services as disclosed in the written statement is that the respondents have closed the course of Cosmetology vide resolution dated February 21, 2009. The validity of said resolution has not been questioned by the petitioner. The petitioner thus cannot seek any redressal of her grievances against the respondents. Gupta Sanjay 2013.09.25 15:29 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5170 of 2010 [8] Though the Court feels that a wrong has been suffered by the petitioner as the petitioner has been abruptly removed from the service by closing the course of Cosmetology, she cannot claim to be posted in the Department of Cosmetology, the course having already been closed w.e.f. February 9, 2009. The petitioner does not have an actionable claim against the respondents but at the same time, it cannot be ignored that the petitioner had a legitimate expectation from the respondents who are public functionaries expected to act reasonably. The rules of natural justice required that the petitioner should have been given an advance notice about the decision of the respondents to close the course of Cosmetology. The respondents are, no doubt, private authorities but admittedly discharging public functions and their action is contrary to the legitimate expectations of the petitioner. Though the petitioner is not entitled to the continuation of service or regularization of her service but in view of the law that equity regards substance than form and that equity will not suffer a wrong to be without a remedy, the petitioner is held entitled for reparation i.e. she is entitled to compensation which would be satisfaction for a wrong or loss inflicted. Except for the financial compensation in view of the shape of reparation, the petitioner is not entitled to any relief.
The petition is thus dismissed. While dismissing the writ petition, in the interest of justice, equity and fair play and the unreasonable attitude of the respondents for the injustice which the petitioner was compelled to suffer on account of the wrong act, the petitioner is held Gupta Sanjay 2013.09.25 15:29 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 5170 of 2010 [9] entitled to compensation of Rs.50000/- to be paid by the respondents. The said amount will be redressal for the wrong act of the respondents which might not fall under legally actionable wrong technically but for setting right an unjust situation for the unreasonable gains of the respondents for wrongs suffered. The said amount is held symbolic compensation. The said amount will be paid by the respondents to the petitioner within a period of three months after the receipt of a certified copy of this order.
August 27, 2013 (M.M.S.BEDI)
sanjay JUDGE
Gupta Sanjay
2013.09.25 15:29
I attest to the accuracy and
integrity of this document
High Court Chandigarh