Delhi High Court
Dr. Ajay Kumar vs The Management Of The National ... on 4 July, 2011
Author: Suresh Kait
Bench: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 2ndJune,2011
Judgment delivered on: 4th July,2011
+ W.P.(C) 2047/1997
DR. AJAY KUMAR ..... Petitioner
Through: Mr. Rakesh Kumar Dudeja,
Advocate.
versus
THE MANAGEMENT OF THE NATIONAL INSTITIUTE OF
IMMUNOLOGY & ORS ...... Respondents
Through: Mr. P. Nagesh, Advocate
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported in the
Digest? YES
SURESH KAIT, J.
1. The petitioner has preferred the instant petition by challenging orders dated 25.04.1997 by which as alleged the lawful service of the petitioner have been illegally terminated w.e.f 26.04.1997.
2. Further prayed, directions be issued to quash malaifide order dated 28.04.1997 by which the petitioner was WP(C) 2047/1997 Page 1 of 16 threatened of his dispossession from the flat F-5 allotted to him by the respondent. Since, the petitioner has already vacated the said flat, this prayer has become infructuous.
3. The petitioner had joined National Institute of Immunology on 02.02.1990 vide letter dated 01.02.1990 in S&T Mission Project as Staff Scientist-II. After two years and two months of service, in April, 1992, the petitioner was again appointed as Staff Scientist -III vide letter dated 27.04.1992 in the Core Infrastructure Strength of the Institute during two years of probation. The petitioner was asked to make OLIGONUCLEOTIDES (means a short nucleic- acid chain usu. consisting of up to approximately 20 nucleo tides) and provide the facility to the other scientists for their research work.
4. The petitioner submits that he had provided the facility to the other scientists and successfully completed his probation. Basically OLIGONUCLEOTIDES synthesis was a rodent work and was carried out by automated machines. He was working on the development on the new methods of synthesis to make DNA probe and he presented a project development on DNA probes in the detections of 'Flaviviruses' in SAC/RAP meeting in 1993. The probation of WP(C) 2047/1997 Page 2 of 16 the petitioner was cleared in 1994. He submits, during this period the petitioner published number of papers in international journals.
5. The problematic journey starts when he was due to visit Germany after his review was carried out in the month of March, 1997 i.e the end of fifth year of his service. Finally on 25.04.1997, the petitioner received office order, whereby the service of the petitioner were terminated without assigning any reason.
6. Due to the aforesaid termination, the petitioner lost a good opportunity as INSA did not support him to visit Germany stating that presently he was not employee of NII.
7. Being aggrieved by the aforesaid termination order dated 25.04.1997, an appeal was made to the Governing Body but the same was rejected.
8. Learned counsel for the petitioner, Sh. Rakesh Kumar Dudeja argued that as per the termination letter, petitioner was not suitable to the respondent without there being any material on record as no letter or memo was ever issued to the petitioner, however, he was notified that his services were not satisfactory, whereas. the Review Committee observed in its report that the petitioner had completed the WP(C) 2047/1997 Page 3 of 16 probation period satisfactorily.
9. However, he submits though the respondent was required to access the suitability of the petitioner after the completion of four years as per Clause 8.1 of the Bye-Laws but the respondent did not do so. On the contrary, the services of the petitioner were terminated vide order/letter dated 25.04.1997 on the ground that the petitioner was proved to be unsuitable for continued employment which amounts to stigma on the career of the petitioner. The petitioner could not get any employment, career as Scientist came to an end. In other words, it is punitive termination in nature.
10. Learned counsel has raised the issue that the petitioner was denied to his right to be appointed as regular employee after successfully completing the five years of period. Additionally, has raised certain legal issues as under:-
".......1.The Principle of Natural Justice has not been complied with.
3. There is violation of service conditions as the review was not carried out at the end of fourth years of his service. (ii) After completion of four years of service, clause 4.2 cannot be exercised.
(iii) Even as per the clause 4.2, none cannot be terminated by giving three months salary, notice is must.WP(C) 2047/1997 Page 4 of 16
(iv) Terms for the nonrenewable of the contract (clause 4.3) is that the scientist will be issued a warning at the end of fourth year after the review and will be informed about the shortcomings if any, and will be asked to show the improvement within one year otherwise contract will be terminated.
(v) Review was carried out at the end of 5th year, no reason is given why the review was not carried out at the end of fourth year.
(vi) After the review even after fifth year no warning was given in writing or even orally.
No short coming was informed to the petitioner.
(vii) The petitioner was forced not to avail Gemany Fellowship awarded by INSA.
(viii) No individual Report of the reviewers are submitted even in the court.
(ix) All the four reviewers have put the signature on the same report written by NII Director/Senior Manager. No reviewere differed with each other in any matter with the director.
(x) The report might have been made afterward or even may be false as no shortcoming was informed to me on the basis of report.
3. If the petitioner was not suitable how his probation was cleared. How the petitioner got the BOYCAST Fellowship?
4. The petitioner had projects
(i) Development of DNA Probes for the detections of Flaviviruses"
(ii) Triplex Forming oligonucleotides (My BOYSCAST Fellowship project)
(iii) Facicity of Oligonucleotides
5. Again if the petitioner was not good and project was not suitable, how he was nominated for INSA fellowship?
6. Why on award of the INSA fellowship for reverse transcriptase project, director terminated the job of the petitioner?...."
11. On the other hand, learned counsel for the respondent, Mr. P. Nagesh submits that the petitioner was appointed on WP(C) 2047/1997 Page 5 of 16 contract basis as Scientist-III in the pay scale of `3000- 4500/- vide OM dated 27.04.1992. Further submits that Clause 4(ii) of the said OM stipulates that the contract employment of the petitioner could be terminated by the Institute as per the provision which states that during the period of contract, his contract employment could be terminated by giving him three months' notice in writing or by paying him a sum equivalent to his pay thereof in lieu of notice period. Accordingly, the petitioner was terminated w.e.f. 26.04.1998 and was paid a sum of `28,601/- being equivalent to his pay thereof in lieu of notice period of three months.
12. Initially, the petitioner was appointed to the post of staff Scientist -(II) in S&T Mission Project - I in the pay scale of Rs.2200-75-2800-EB-100-4000/-. The appointment was on a contract basis for a term of five years or the termination of the project, whichever is earlier with an initial probation period of two years which may be extended or curtailed at the discretion of the competent authority.
13. After the end of the project, the petitioner was appointed as Staff Scientist - (III) in S & T Mission and Project -(I) . This appointment was also on contract basis for WP(C) 2047/1997 Page 6 of 16 a term of five years with an initial probation period of one year which could be extended or curtailed on the discretion of the competent authority.
14. The OM dated 27.04.1992 provides that after successful completion of probation, the petitioner can be given three months notice in writing if in the opinion of the Institute that he has proven unsuitable for continuing the employment . The respondent may in lieu of notice given give him salary also.
15. The OM dated 27.04.1992 further provides that end of the fourth year of the contract employment, if on rough assignment his performance was found not satisfactory, he will be issued a warning in writing to show definite improvement within one year, failing which, the promotion of his employment will not be reviewed on expiry of five years.
16. Learned counsel for the respondent, further submits that the Bye-Laws for administration and management of the respondents also provide in Clause 8 (i) "that the appointment would be on contract basis initially for a period of five years, a review can be carried out at the end of five years to access the suitability for regular appointment or to WP(C) 2047/1997 Page 7 of 16 terminate the contract as the case may be. He further submits that during his continuation as Staff Scientist - III, the petitioner was assigned the primary responsibility of synthesis purification and characterization of OLIGONUCLEOTDE as an infrastructure facility to various other laboratories.
17. The work of the petitioner was viewed and therefore reviewed on 21.03.1997. The Review Committee found that the petitioner had neither developed a scientifically viable search programme relevant to the respondent nor had he rendered any useful support to any of the scientific or other activities of the respondent for the last five years. Therefore, Committee did not recommend his promotion and renewal of the contract on the post of Staff Scientist - III.
18. The learned counsel for the respondent points out that during his employment as Staff Scientist - (III) there was some inter office memorandum issued by the respondents by giving him warning on the ground of some indiscipline. In fact, the petitioner had made certain allegations against various officials of the Institute and on enquiry, it was stated to look at the allegations made by the petitioner. Despite, WP(C) 2047/1997 Page 8 of 16 the opportunity given to him, the petitioner refused to appear and finally the Enquiry Committee found that all the allegations made by the petitioner are not substantial and baseless.
19. The respondent had also received some comments on the project proposals of the petitioner which was recommended by other several prestigious Institutes like IMTECH, CCMB, Hyderabad and International Centre for Genetic Engineering of Biotechnology and accordingly the project of the petitioner was recommended for funding.
20. The petitioner, filed his rejoinder with some more documents relating to OLIGONUCLEOTDE. The petitioner has also filed documents to show his period of probation was extended for a period of one year w.e.f. 01.04.1993 The para 4 of his rejoinder is produced hereinunder which reads as follows:-
"4. That the contents of para No. 4 of the counter affidavit are fully false/illegal, and misleading, hence strongly denied. It is most respectfully submitted that the employment of the petitioner was not for a fixed term employment, and more over in a fixed term employment there cannot be a provision for probation and further evaluation. The present Writ petition is based on the malafide action of the respondent, as petitioner has been victimized/punished for his good work and no fault on his part and thus the satisfaction of WP(C) 2047/1997 Page 9 of 16 the respondent is questioned on the ground of the malafide, encubment on those as per settled principles that who support the order to show that the satisfaction is based on certain objective facts and not the outcome of the whims or caprice of the concerned officer".
21. The main issue as raised by the petitioner is that his service has been terminated illegally, as Clause (ii) of the OM dated 27.04.1992 does not apply. Stigma has been caused to the petitioner by issuance of the said termination letter. The petitioner however has not mentioned in his reply affidavit about his alternate employment after his termination in the year 1997. It is, therefore, presumed that the petitioner had obtained alternate employment and the question of stigma as alleged by him has not come in the way.
22. Learned counsel for the Respondent submits that the version in the letter of termination dated 25.04.1997 that the petitioner has proven unsuitable for continuing the employment does not amount to stigma because the OM dated 25.04.1997 must be read as a whole. The petitioner could be terminated at any time after the completion of probation period by giving him three months notice or salary paid in lieu of three months notice. WP(C) 2047/1997 Page 10 of 16
23. To support the aforesaid averments, the respondent has referred two cases decided by the Hon'ble Supreme Court in (2006) 4 SCC 469 titled as Abhjit Gupta Vs. S.N.B. National Centre, Basic Sciences & Others, it was contended in para 9 that it is the duty of the Employer to inform the employee about his deficiency from time to time so the employee may improve himself.
In Para 14 and 15, it was held as under:-
"in present case, the record makes it clear that every time the appellant‟s attention was drawn to his deficiencies and he has repeatedly advised to improve his behavior, conduct and discharge of work. Although in some of the letters there was intemperate language used, it is not possible to accept the contention of the appellant that the letter dated 07.04.1998 indicated that the appellant was being charged with the misconduct and, therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents after giving a long rope to the appellant, had come to the conclusion that the appellant‟s service was unsatisfactory and there was no hope of his improvement. "
"the real test to be applied in a situation where an employee is removed by an innocuous order of termination is : Was he discharged as unsuitable or was he punished for his misconduct? In facts of the case law, the test of prejudicial effect on future employment solicited by the appellant cannot be accepted."
24. The respondent has referred another case of State WP(C) 2047/1997 Page 11 of 16 of Haryana and Another Vs. Satyender Singh Rathore (2005) 7 SCC 518, wherein the employee was appointed as a Director of Medical Officer in the Directorate of Health Services on a fixed salary on contractual basis, terminable at any time without assigning any reason, it was held that order terminating the employee referring to his mis-conduct was only a motive and not a foundation - hence termination order was found valid.
25. In the case of Dipti Prakash Banerjee Vs. Satyender Nath Bose National Centre for Basis Sciences (1999) 3 SCC 60, it was held as under:-
"21. If findings were arrived at in any enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as „founded on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there wer complaints, it found only be a case of motive and that would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstances, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
26. After hearing both the parties, it has emerged that WP(C) 2047/1997 Page 12 of 16 the main thrust of the petitioner is on the termination letter which is a stigmatic one, therefore, the said termination letter has tarnished his image, therefore, wherever he would go, he will carry the same image. It would be a big barrier in his career for his further growth.
27. Learned counsel for the respondent has stated at bar that the termination letter is not putting any stigma to the reputation and career of the petitioner, therefore, this is only an apprehension and nothing else.
28. Admittedly, the service of the petitioner with the respondent was purely on a contract basis, therefore, the employer had own right to terminate the services of the employer as per the terms and conditions of the employment.
29. The issue in the instant petition is no more res in tegra, as was decided in case 2005 (6) Scale titled as Binny Limited and Another V. Sadasivan and Others, the similar issue was discussed and it was held as under:-
Respondents filed writ petition for a declaration that clause 8 of the Agreement read with order of termination issued by appellant company was void and illegal and violative of Section 23 of the contract Act. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative WP(C) 2047/1997 Page 13 of 16 decisions and under this jurisdiction High Court can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide.
"Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.
.....the cases those are purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Article 23 of the Contract Act in Contractual matters even in respect of public bodies, the principles of judicial review have got limited application, as was observed in the case of Binny Ltd. (Supra) WP(C) 2047/1997 Page 14 of 16 as under :-
"29.........The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but , nevertheless, there must the public law element in such action. Sometimes, it is difficult to distinguish between public law and remedies.
30.......A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed the Government or Government Authorities at all levels is increasing employing contractual to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purpose and not unreasonably.
31.........It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in state of U.P. vs. Bridge & Roof Co. (1996) 6 SCC 22 and also in Kerala State Electricity Board vs. Kurien E. Kalathil (2000) 6 SCC 295. In the latter case, this Court retreated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition.WP(C) 2047/1997 Page 15 of 16
Whether the contract envisages actual payment or not is a question of construction of contract. If a term of contract is violated, ordinarily, the remedy is not a writ petition under Article 226."
30. For the forgoing discussion and the law laid down in my view, as per Clause 8 of the Agreement, Management had a right to terminate services without assigning any reason by giving three months' notice or salary in lieu thereof. If any damage was caused to the petitioner, he should have challenged the same before the proper forum instead of filing the writ petition under Article 226 of the Constitution of India.
31. I, therefore, leaving all the issues raised by the petitioner open, dismiss the writ petition with granting liberty to challenge and sue the respondent before the appropriate forum, if he is so advised.
32. Accordingly, the writ petition is dismissed.
33. No order as to costs.
SURESH KAIT, J JULY 4, 2011 j WP(C) 2047/1997 Page 16 of 16