Punjab-Haryana High Court
Charitable Trust vs State Of Haryana And Others on 26 November, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CWP No. 20900 of 2012 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 20900 of 2012
Date of Decision: November 26, 2013
Management Board of Ansal Institute of Technology of Charanjiv
Charitable Trust, Gurgaon,
.....Petitioners
Vs.
State of Haryana and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.Aashish Chopra, Advocate
for the petitioner.
Mr. S.S. Goripuria, DAG, Haryana.
Mr. R.K. Malik, Sr. Advocate with
Mr. Vijay Dahiya, Advocate
for respondent No.2.
-.-
M.M.S. BEDI, J.
The Management Board of Ansal Institute of Technology of Charanjiv Charitable Trust, Gurgaon has preferred the present writ petition under Articles 226/227 of the Constitution of India for quashing of order dated August 14, 2012 (annexure P-19) passed by the Appellate Authority Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [2] setting aside the termination order dated May 4, 2010 directing that respondent No.2 will be entitled to be reinstated with all consequential benefits from the date of filing of the appeal. Respondent No.2 was appointed as Assistant Professor on probation for a period of one year by the petitioner on May 23, 2007 in the basic pay of Rs.16400/- per month in the pay scale of Rs.16400-450-20000 with all allowances such as Dearness Allowance, House Rent Allowance, CCA and TA etc. admissible as per the norms for a period of five years. After annual review her services were confirmed on August 2, 2008 w.e.f. June 1, 2008 with one annual increment in the said scale. In the month of June 2009, her annual increment was to be reviewed when the Management found certain short-comings and weaknesses in her conduct. She was due for delivery in the month of September 2009, when a letter dated June 24, 2009 was sent to her alleging that her commitment for the academic/ institutional duties was far below the expectations and her general behaviour in dealing with the projects of student was autocratic; she had constant conflict with the fellow colleagues and others in discharging her duties and assigned tasks. Respondent No.2 submitted a reply on August 13, 2009. Another letter dated September 22, 2009 pointing out some short-comings was again issued. She was not granted annual increment or any benefit of 6th Pay Commission in revision of pay scales. Her services were terminated vide letter dated May 4, 2010 without any notice to her. The writ petition filed by respondent No.2 in Delhi High Court was withdrawn to enable her to avail alternative remedy Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [3] before appropriate forum. Respondent No.2 filed a civil suit in Civil Court at Delhi but said suit was dismissed under Order 7 Rule 11 CPC vide order dated April 20, 2011. The petitioner preferred an appeal against the order of termination. The learned Additional District and Sessions Judge, Gurgaon vide order dated August 4, 2012 has set aside the order of termination, inter-alia on the ground that the appeal against the order of termination is maintainable despite the fact that the petitioner institute is not a statutory body and that her services have been terminated on payment of salary of three months in lieu of three months' notice without serving any notice and affording any opportunity of being heard.
The petitioner has filed the present writ petition on the following grounds:-
i) The petitioner institute is not getting any grant-in-
aid from Government and the relationship of the petitioner and respondent No.2 is purely contract of personal service and rights, if any, under the contract of personal service are not enforceable in the Court of law under Sections 14, 10, 34 and 36 of the Specific Relief Act, 1963.
ii) Respondent No.2 had been warned by notice regarding her misconduct as such no opportunity of hearing was required. The appeal before the Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [4] Additional District Judge is not maintainable for enforcement of contract of service.
iii) Additional District Judge had got no jurisdiction and the appeal before him was barred by principle of res judicata as the writ petition filed by respondent No.2 before the Delhi High Court and Civil Court at Delhi had been dismissed.
iv) Services of respondent No.2 had been terminated in accordance with contract of service as per Clause 20 of the Service Rules. Any employee can be terminated by issuing three months' salary in lieu of termination. No notice is required to be given and no cause is required to be assigned.
Three months' salary had been given to respondent No.2. The Additional District Judge had acted without jurisdiction as the purpose for which the Hon'ble Supreme Court had directed to constitute a specialized Tribunal, as an interim measure, to bar employees to invoke jurisdiction of Civil Court but in the present case respondent No.2 had already approached Civil Judge, District Court, Delhi.
Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [5] Learned counsel for the petitioner in support of his contention as placed reliance on Ram Piari Vs. Municipal Committee and another, AIR 1956 Punjab 220; Executive Committee of Vaish Degree College Shamli and others Vs. Luxmi Narain and others, AIR 1976 SC 888, Smt.J.Tewari Vs. Smt. Jawala Devi Vidya Mandir and others, AIR 1981 SC 122, M/s Pearlite Liners Pvt. Ltd. Vs. Manorma Sirsi, 2004 (2) CCC 44 (SC).
In Ram Piari's case (supra), where a municipal employee had been reduced in rank on account of his misconduct and rules of natural justice had not been followed, it was held that contract to render personal service cannot be specifically enforced holding that the theory is that the contract of hiring personal service is of such a personal nature that there cannot be any hope of ultimate and real success by the enforcement of it by law Courts. Assuming that the employer was not justified in demoting the employee, the remedy of the latter is to seek the damages for breach of contract and not to enforce the contract by getting an injunction from the Court. Similarly in Luxmi Narain's case (supra), the Executive Committee of College registered under the Registration of Cooperative Societies Act and affiliated to the University had terminated the services of the family member. It was held that decree for declaration and injunction in favour of the plaintiff cannot be granted. Smt.J. Tewari's case (supra), was a case of an employee of a private institution who had been employed by a contract entered into between the parties. It was held that termination though Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [6] unlawful, the aggrieved person was entitled only to the decree for damages and not for declaration of continuing in service. In Deepak Kumar Biswas Vs. Director of Public Instruction and others, 1987 (3) SLR 65 (SC), it was held that on wrongful termination of service of a Lecturer of private aided college, he was not entitled to claim reinstatement with continuity of service and back wages, only wrongful termination benefit could be granted. Similarly in M/s Pearlite Liners' case (supra), it was held that contract of personal service cannot be specifically enforced. The judgment in Bank of India Vs. Lekhimoni Das and others, (2000) 3 SCC 640 was cited in support of the contention that where the pleadings of malice are absent, a party has got no right to claim even damages.
In the light of the abovesaid judgments, learned counsel for the petitioner has vehemently urged that neither an appeal against the termination order of respondent No.2 was maintainable before the Appellate Tribunal constituted by the High Court under the directions of the Supreme Court in T.M.A. Pai Foundation and others Vs. State of Karnataka and others, nor respondent No.2 could have challenged the order of termination, the petitioner Management being a private Management having engaged respondent No.2 on a personal contract of service.
I have considered the contention of learned counsel for the petitioner. It is pertinent to observe here that in CWP No. 9570 of 2011, the petitioner Management had challenged the re-instatement of their Accounts- cum-Office Clerk whose services have been terminated without any notice. Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [7] The said order had been set aside by the Appellate Authority on the ground that the said order had been passed without disclosing any reason in violation of principles of natural justice. The writ petition was dismissed on May 27, 2011 by a single Bench of this Court. The petitioner Management had preferred LPA. The plea raised by the Management that the services of the employee had been terminated as per terms and conditions of his letter of appointment and that the Management was within the ambit of its jurisdiction to terminate the services without a notice was not accepted by the Division Bench also taking into consideration the judgment of Central Inland Water Transport Corporation Vs. Brojo Nath Ganguly, 1986 (2) SLR 345 holding that the conditions of dispensing with the services without an opportunity of hearing as unconscionable and ultra vires the Articles 14 and 16 of the Constitution of India, vide judgment dated July 22, 2011 holding that the appeal was maintainable. In the judgment in Management Board of Ansal Institute of Technology Vs. State of Haryana and others, LPA No. 1215 of 2011, decided on July 22, 2011, it has also been held that termination of an employee of the Ansal Institute of Technology, Gurgaon under the Service Rules, copy of which has been appended as annexure P-1 does not debar the judicial review. A reference to the order of termination passed against respondent No.2 annexure P-9 indicates that the said order is stigmatic and has been passed by way of penalty having the civil consequences affecting the rights of respondent No.2. The termination letter addressed to respondent No.2 dated May 4, 2010 annexure P-9 reads Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [8] as follows:-
"Dr.Sunita Tanwar, Associate Professor, AIT, Gurgaon.
Sub:- Termination of Service.
Dear Dr. Tanwar, We have duly received your self-assessment form for the academic session 2009-10 and have carefully gone through it. As per the procedure laid down by the Institute , Annual Review Report has been carefully examined by the reporting officer and the reviewing officer on 1st May 2010. Give you the main highlights of the review/ comments of the concerned faculty under whose administrative control you are performing your academic duties as per the directive of the Director to organize academic programs during the session 2009-10. Performance of Duties as Associate Professor
1. You had refused to take marketing research paper in the summer term 2009. While preparing faculty list for summer 2010 courses, you had opted for the courses in Second Summer Term 2010 as you wanted to go on leave in the first summer term 2010 and a course was accordingly allocated to you for Summer II-2010 but you Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [9] retracted saying that you may extend your leave by ten days thus putting the entire planning of summer schedule in disarray and setting bad example for other faculty members and upsetting the work of the School of Management Studies. This type of wavering attitude is not conducive to the academic health of the Management School for which we have very high aspirations and goals to achieve.
2. It has been reported that you had not accepted the duties assigned whether it is course allocation, project, invigilation duties, counseling duties for admission to GGSIP University programs or getting filled OMR sheet from GGSIP University. You have serious attitudinal problems but with faculty members as well as students. You have always complained whenever some duties have been assigned to you. You have been found to show favoritism in activities during students competition. In group responsibilities, you were always resorted to be non-cooperative.
3. You have not bothered for the overall institute's interest and have refused to take substitute class as per the institute policy under the pretext that you were busy preparing your lecture for the later classes. Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [10]
4. The students feedback has been below the expectations of performance of a faculty member at a senior level like yours.
5. You have not been able to overcome self imposed barrier to perform due to which your full commitment towards academic growth could not be achieved. Many times, you were not able to comprehend the students needs and problems.
6. It has been reported that you have hardly attended the Friday Seminars which, in our opinion, is very important part of your academic duties and commitment. Contribution to Institute's Growth:
1. Your contributions towards the institute as a senior faculty member are not worth mentioning rather it sets bad example for other senior faculty members.
2. You have not shown any interest in the institute's progress towards achieving its objectives both in terms of academic as well as extra curricular activities. Your contribution listed in your assessment report pertains to the previous year's attainments and none significant has been reported as your contribution during the current session 2009-10.
Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [11]
3. You have only interested with a few although you are occupying a very senior level position of Associate Professor and have been found to be reserved rather than interacting actively with the students and the peers.
4. It is reported that you have serious attitudinal problems and it has deteriorated after you have joined in Dec. 2009.
All above shortcomings have been brought to your notice verbally from time to time but there has been deterioration instead of improvement. In fact, in our last communication to you dated 24th June 2009, and duly received by you on 15th July, 2009, you had been advised to be careful and to show marked improvement in your performance failing which you could be liable to be terminated.
Due to the above shortcomings, the Management is constrained to terminate your services w.e.f. closing hours of 4.5.2010 as per Institute rules for any regular member or staff (academic or non-academic) which was accordingly conveyed to you in the letter of confirmation dated 2.8.2008 and received by you on 29.8.2008 in conformity with the service rule 20.2.
Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [12]
Accordingly, as per the terms of appointment of regular staff, you will be paid salary for three months w.e.f. 5.5.2010. You are requested to clear your dues, if any, from the various departments before we can give you experience certificate. Accordingly, you are not required to report for duty w.e.f. 5.5.2010.
For getting no dues certificate and related documentation, you are requested to contact the Registrar in advance who would facilitate your entry for the requisite purpose.
This is issued with the approval of competent management body of the AIT."
A perusal of the above said order indicates that the rules of natural justice have been given a go by, by the petitioner Management.
So far as the judgments cited by counsel for the petitioner regarding availability of only relief of damages to respondent No.2 is concerned, there is no dispute regarding the proposition of law that in view of principle of Ubi Jus Ibi Remedium i.e. there is no wrong without a legal remedy. No doubt, respondent No.2 has got a right to claim damages for the wrong by establishing that a wrong had been done to her but at the same time, the availability of said alternative remedy will not debar respondent No.2 to the remedy of impugning the order of termination which has been passed without giving an opportunity of hearing. It is not out of place to Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [13] observe here that the petitioner Institute is affiliated to a University and is governed by the Guru Gobind Singh Indraprastha University Act, 1998. As per the definition of Section 2 (i) 'College' means an academic institution maintained or admitted by the University to its privileges and includes an affiliated college. The 'approved teacher' has been defined under Section 2
(d) as follows:-
"2(d): "approved teachers" means persons working in any approved institution or in any institution associated with the University and approved by the University for the purpose of imparting instruction, or conducting research, or both;"
Section 22 of the said Act deals with removal of employees of the University, which reads as follows:-
"Section 22: Removal of employees of the University:- Where there is an allegation of serious misconduct against a teacher, a member of the academic staff or any other employee of the University, the Vice- Chancellor may, in the case of a teacher or a member of the academic staff, or the authority competent to appoint (hereinafter referred to as appointing authority) in the case of any other employee, as the case may be, by order in writing, place such teacher, member of the academic staff or other employee as the case may be, under Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [14] suspension and shall forthwith report to the Board of Management the circumstances in which the order was made.
(2) Notwithstanding anything contained in the terms of the contract of appointment or in a other terms of conditions of service of the employees, the Board of Management in respect of teachers and other academic staff, and the appointing authority, in respect of other employees, as the case may be, shall have the power to remove a teacher or a member of the academic staff or other employee, as the case may be, on grounds of misconduct.
(3) Save as aforesaid, the Board of Management or the appointing authority, as the case may be, shall not be entitled to remove any teacher, any member of the academic staff or any other employee except for a justified cause and after giving three months' notice to the person concerned or on payment of three months' salary to him in lieu thereof.
(4) No teacher, member of the academic staff or other employee shall be removed under clause (2) or clause (3) unless he has been given a reasonable opportunity of Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [15] showing cause against the action proposed to be taken in regard to him.
(5) The removal of a teacher, a member of the academic staff or other employee shall take effect from the date on which the order of removal is made.
(6) Notwithstanding anything contained in the foregoing provisions of this Statute, a teacher, a member of the academic staff or other employee may resign--
(a) if he is a permanent employee, only after giving three months' notice in writing to the Board of Management or the appointing authority, as the case may be, or by paying three months' salary in lieu thereof; or
(b) if he is not a permanent employee, only after giving one month's notice in writing to the Board of Management or the appointing authority, as the case may be, or by paying one month's salary in lieu thereof:
Provided that such resignation shall take effect only from the date on which the resignation is accepted by the Board of Management, or the appointing authority, as the case may be."
Since Ansal Institute of Technology is an approved institute of Guru Gobind Singh Indraprastha University and employees of the approved institutions are governed by the abovesaid Act, termination of service of an Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20900 of 2012 [16] employee in violation of the Statute cannot be said to be beyond the judicial review of the Appellate Tribunal or this Court.
In view of the above circumstances, I do not find any infirmity in the order passed by the Additional District Judge, Gurgaon exercising the powers of the Appellate Tribunal setting aside the termination order of respondent No.2. The writ petition is dismissed. The order of termination dated May 4, 2010 passed against respondent No.2 is held to be illegal. Order annexure P-19 is upheld. Respondent No.2 will be entitled to be reinstated with all consequential benefits. It is made clear that this order will not, in any manner, prejudice the rights of the petitioner Management to take any action against respondent No.2 by following the rules of natural justice as per Guru Gobind Singh Indraprastha University Act, 1998 read with Ansal Instituted of Technology Service Rules and Leave Rules governing the rights of respondent No.2.
November 26, 2013 (M.M.S.BEDI)
sanjay JUDGE
Gupta Sanjay
2013.12.21 13:03
I attest to the accuracy and
integrity of this document
High Court Chandigarh