Hemant S/O Nandkishor Dubey vs The Director, Indian Institute Of ...
2021 Latest Caselaw 12178 Bom

                                          1                         wp3076.20

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH : NAGPUR


                     WRIT PETITION NO.3076 OF 2020


Mr. Hemant s/o Nandkishor Dubey,
aged about 48 years, occupation :
service, r/o Plot No.56-C, Gurudev
Sankul, near NIT Garden,
K.T. Nagar, Katol Road, Nagpur.                        ...     Petitioner

       - Versus -

1)   The Director, Indian Institute of
     Management, Nagpur, VNIT Campus,
     S.A. Road, Nagpur - 440010.

2)   The Chief Administrative Officer,
     Indian Institute of Management,
     Nagpur, VNIT Campus, S.A. Road,
     Nagpur - 440010.                                  ...     Respondents
                -----------------
Shri S.P. Kshirsagar, Advocate for petitioner.
Shri A.S. Kulkarni, Advocate for respondents.
                ----------------

                                    CORAM : SUNIL B. SHUKRE AND
                                            ANIL S. KILOR, JJ.

DATED : AUGUST 31, 2021

ORAL JUDGMENT (PER SUNIL B. SHUKRE, J.) :

Heard Shri Kshirsagar, learned Counsel for the petitioner, and

Shri Kulkarni, learned Counsel for the respondents.

                                        2                          wp3076.20

2)     Rule, returnable forthwith. Heard finally by consent of the

learned Counsel for the parties.


3)     The petitioner has questioned the correctness of the impugned

order dated 30/9/2020 passed by the respondent no.2, thereby

putting an end to the temporary contractual service period of the

petitioner. The ground stated therein is that behaviour of the

petitioner during the said period was totally unsatisfactory as a

contractual member/employee of the IIM, Nagpur. It is the

contention of Shri Kshirsagar, learned Counsel for the petitioner, that

the impugned order is stigmatic and could not have been passed

without following the audi alteram partem rule and it having been

passed in violation of principles of natural justice, it must be quashed

and set aside. Reliance has been placed upon the judgments of the

Supreme Court in the cases of O.K. Bhardwaj vs. Union of India and

others {(2001) 9 SCC 180} and V.P. Ahuja vs. State of Punjab and

others (AIR 2000 SC 1080).

4) Shri Kulkarni, learned Counsel for the respondents, however,

submits that as the petitioner was in contractual service, the

impugned order would not be covered by the rule of audi alteram

3 wp3076.20

partem, rather, the termination order would have to be examined

only in the light of the conditions stated in the appointment order

and when it is done, it would be found that the termination order is

perfect and cannot be assailed on any ground.

5) On going through the impugned order and the appointment

letter dated 12/9/2017, we are of the view that there is a great force

in the argument of the learned Counsel for the respondents and

no merit in the submissions made on behalf of the petitioner.

6) The petitioner was appointed purely on contract for a period

of one year with effect from 13/9/2017 vide appointment letter

dated 12/9/2017. This letter contained a clause regarding

termination of the employment and it is reproduced below :

"(6) Termination of the Employment : Your appointment will be subject to termination by the notice of one month or payment of one-month salary in lieu of such notice."

It is also subject to some general conditions. The above referred

condition of the contractual appointment of the petitioner would

make it clear to us that the service of the petitioner was liable to be

4 wp3076.20

terminated by giving one month's notice or by making payment of

one month's salary in lieu of notice. In the instant case, the

contractual service of the petitioner has been terminated on the

ground that his behaviour in the Campus during the service period

was not found to be satisfactory. The petitioner has also admitted

about his improper behaviour. There is an e-mail sent by the

petitioner to the respondents on 9/10/2020 in which the petitioner

has expressed his regret for his improper behaviour when he stated

that he was extremely sorry for whatever happened in the past two

months and he deeply regretted for all the e-mails and letters

written by him, which were addressed to the respondents. He has

also asserted in the said e-mail that he had withdrawn all the e-mails

and letters and finally he submitted his apology for his "bad

behaviour".

7) In the context of several admissions given by the petitioner,

the impugned order of termination cannot be seen to be stigmatic.

Even otherwise, it does not attribute any mis-conduct to the

petitioner and on the contrary, it says that behaviour of the

petitioner was unsatisfactory as a contractual member/employee of

the IIM. The expression "unsatisfactory behaviour" is attendant with

5 wp3076.20

different meanings. It can be understood as improper behaviour

or it can also be understood as such behaviour, which was not found

to the satisfaction of the Authority or the behaviour, which was not

as per expectations of the Authority or the behaviour, which was not

upto the mark. Of course, in the reply filed by the respondents,

some reasons have been added as the cause for issuing termination

order to the petitioner, but these reasons are not part of the

impugned termination order and, therefore, they cannot be

considered for any purpose in view of the law settled in the case of

Mohinder Singh Gill and another vs. The Chief Election

Commissioner, New Delhi and others (AIR 1978 SC 851). Thus,

we find that the impugned order, even in its own right, cannot be

considered to be stigmatic and it is all the more so, if it is examined

and understood in the light of the admissions given by the petitioner.

8) Even otherwise, if there is any wrongful conclusion of the

contract of service, the remedy for the same would lie not before this

Court, but before the Civil Court having jurisdiction in the matter as

the claim of the petitioner would be required to be proved by

adducing appropriate evidence. Of course, the evidence could also

be adduced before this Court and technically the petition can also be

6 wp3076.20

entertained, but that would be a matter of discretion for this Court.

Having regard to the facts and circumstances of this case, this Court

is not inclined to exercise its discretion for going into the question of

termination of contractual obligation by the respective parties in the

present case.

9) As regards reliance placed by the learned Counsel for the

petitioner upon the judgments of the Supreme Court in the case of

O.K. Bhardwaj (supra) and V.P. Ahuja (supra), we must say that both

these cases had different facts and, therefore, would have no

application to the facts of the present case.

In the case of O.K. Bhardwaj (supra), the appellant was a

regular employee, against whom departmental enquiry was held

wherein a question arose as to whether or not, when minor penalty

is proposed to be imposed, rule of audi alteram partem be applied.

This is not the question involved in the present case as the petitioner

was not a regular employee, but a contractual employee, who would

be governed by the terms and conditions of his contractual

employment and not by any rules relating to procedure of

disciplinary proceedings. Even otherwise, the petitioner had already

7 wp3076.20

admitted his improper conduct and, therefore, there was no question

of granting any opportunity of hearing to the petitioner. The

purpose of audi alteram partem rule is to enable the delinquent

employee to explain his stand in the matter before any adverse order

is passed. In the present case, the petitioner has already explained

his stand by admitting his improper conduct or what he himself

termed as "bad behaviour".

In the case of V.P. Ahuja (supra), the service of the appellant

therein was terminated while he was on probation and the

termination order was stigmatic in nature. Here the facts are quite

different. The petitioner was a contractual employee and not an

employee on probation and, therefore, no assistance could be sought

by the petitioner from the said case of V.P. Ahuja.

10) In the result, we find no merit in the petition. The petition

stands dismissed. Rule is discharged. No costs.

            JUDGE                                                JUDGE

khj