Abha Dave vs Director, Army Institute Of ...
2009 Latest Caselaw 2302 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+ Writ Petition (Civil) No. 9347/2009 & CM No.7266/2009 (stay)


                                     Date of Decision : 28.5.2009

ABHA DAVE                                        ...... Petitioner
                                   Through : Mr.V.Shekhar with
                                   Mr.Abhigya, Mr.A.Kaushik and
                                   Ms.Vandana Sharma, Advs.


                               Versus

DIRECTOR, ARMY INSTITUTE OF MANAGEMENT &
TECHNOLOGY & ORS.              ...... Respondents
                      Through          :     Col.
                      R.Balasubramanian, Adv. for
                      respondents 1 to 3.
                      Mr.G.D.Goel with Mr.Sanjiv
                      Goel, Advs. for respondent
                      no.4.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                   YES
2.    To be referred to the Reporter or not ?        NO
3.    Whether the judgment should be reported
      in the Digest ?                                NO

V.K. SHALI, J. (Oral)

1. The petitioner in the instant writ petition has challenged

the letter dated 01.5.2009 issued by Dr. M.K.Kushwaha,

Director, Army Institute of Management & Technology (AIMT),

Greater NOIDA. In addition to this, the petitioner has sought

other consequential reliefs.

2. Briefly stated the facts leading to the filing the present writ

petition are that the petitioner was appointed as an Assistant

Professor at Army Institute of Management & Technology

(NOIDA) vide letter dated July, 2007. The said appointment

letter in Clause 4 laid down that initially she would be on

probation for the period of one year which period may be

extended further by another year by the appointing authority. It

was also envisaged in the said appointment letter that the

services of the petitioner could be terminated during probation or

the extended period of probation by giving one month's notice or

salary in lieu thereof without assigning any reason by the

appointing authority. Likewise, the petitioner was also given

power to resign from the said post by giving one month's notice.

Clause 5 envisaged that after successful completion of probation

or the extended period of probation the petitioner would be

confirmed. In the absence of such communication of

confirmation, it was envisaged that the term of the petitioner will

come to an end of its own and she cease to be an employee of the

College.

3. The petitioner alleged that after successful completion of

one year, the petitioner was advised that her probation was

completed and she was asked to continue as Assistant Professor

on regular basis. It is alleged that in January, 2009, the

respondent no.1 took over as the Director of the Institute and

from the beginning itself, he started harassing the petitioner for

one reason or the other. It is alleged that on 1st May, 2009, the

said Director/respondent no.1 terminated the services of the

petitioner citing administrative reasons. It is alleged that prior

to the termination of the services, the petitioner was issued a

letter on 30.4.2009 to show cause with regard to certain alleged

acts which were attributed to her and for which the respondent

was contemplating to initiate the disciplinary proceedings. In

response to the said show cause, the reply was to be submitted

by 04.5.2009 and the petitioner submitted her reply on 2.5.2009

but before the submission of the reply by the petitioner, the

services of the petitioner were sought to be terminated by the

letter dated 1.5.2009 w.e.f. 1.6.2009 by giving her one month

notice. Accordingly, it was stated that since the services were

sought to be terminated illegally, the petitioner had no other

alternative but to seek redressal of her grievance by filing the

present writ petition.

4. The respondents have appeared in response to the advance

copy of the writ petition having been served on them. I have

heard the learned senior counsel for the petitioner and counsel

for respondents 1 to 3. I have also gone through the record. The

main contention of the learned counsel for the petitioner with

regard to the challenge to the termination letter dated 01.5.2009

is too fold. Firstly, it was contended that in terms of

appointment letter dated July, 2007, the petitioner was put on

probation for a period of one year and since she had completed

the said period of probation she was confirmed and her services

were regularized, though no formal letter of regularization was

issued to her.

5. It is contended by the learned counsel for the petitioner

that originally the respondent had issued a show cause notice on

30.4.2009 asking the petitioner to complete the results of

internal exams of MBA-5 Batch held in April, 2009 and also the

Draft information to be put up on Institute Website as mandatory

disclosure. The explanation of the petitioner was called by 4th

May, 2009 failing which she was directed to show cause as to

why the disciplinary proceedings may not be initiated against

her. It was also alleged in the said letter that the petitioner was

on actual leave from 17.4.2009 without intimation. Since the

reply was required to be submitted within 4/5 days, it was the

case of the petitioner that she had submitted her reply on

2.5.2009 but on 1.5.2009 itself, the purported illegal letter of

termination of services of the petitioner w.e.f. 1.6.2009 was

issued. The case of the petitioner is that the letter dated

1.5.2009 is therefore, punitive in nature and issued only to

scuttle the due processes of law which the respondents were

contemplating to take for initiating the disciplinary action against

the petitioner.

6. The second submission of the counsel for the petitioner was

that since the services of the petitioner were being sought to be

terminated without resorting to the disciplinary proceedings,

when an objection was raised with regard to the validity of the

termination itself the respondents took the plea that the services

of the petitioner were being terminated on administrative ground.

In this regard, the counsel for the petitioner drew my attention to

Clause 6 of the offer of appointment wherein it was stated in

Clause 6 (b) that on administrative ground, the services of a

confirmed employee can be terminated by giving three months

notice or payment of salary in lieu thereof. It was stated that if

the stand of the respondent is accepted that the services of the

petitioner were sought to be terminated on administrative

grounds then they were under an obligation to give three months

notice while as the notice dated 1.5.2009 which is given by the

respondent is only a month's notice and therefore, it could not be

said to be a notice under Clause 6 (b) of the letter of

appointment. This stand of the respondent was also said to be

in contravention of the appointment letter inasmuch as on

administrative grounds, the services could be terminated

according to the Army Welfare Educational Society (AWES) Rules

and Regulations on grounds of inefficiency, delinquent behavior

and redundancy.

7. It is urged by the learned Senior counsel for the petitioner

that none of the three grounds were actually the grounds

mentioned either in the letter of termination dated 1.5.2009 or

were actually the grounds on which the services of the petitioner

were sought to be terminated.

8. As against this, the counsel for respondents 1 to 3 raised a

preliminary objection with regard to the maintainability of the

writ petition itself on the ground of territorial jurisdiction. It was

contented by the learned counsel for the petitioner that no part

of cause of action has arisen within the territorial limits of this

Court. The learned counsel has drawn my attention to the fact

that the institute is situated in Greater Noida and the letter of

appointment is issued by the Director/respondent no.1 at

Greater Noida to the petitioner which is accepted by her at

Greater Noida. The letter of termination as well as the show

cause notice of the reply is furnished at Greater Noida. The reply

dated 2.5.2009 is also submitted by the petitioner at Greater

Noida. Therefore, all these acts clearly shows that substantial

part of cause of action has arisen in Greater Noida and that no

part of cause of action has arisen in Delhi. Merely because The

Chairman, All India Council for Technical Education (AICTE),

Army Institute of Management & Technology (Noida), Army

Welfare Educational Society (AWES) has its office at Delhi

Cantonment, New Delhi would not give jurisdiction to the Delhi

Court.

9. I have considered the submission of the counsel for the

respondent. I feel that the facts of the case have been set out by

the petitioner in the petition including the documents which have

been placed on record clearly shows that no part of the cause of

action has arisen in Delhi. The letter of appointment has been

issued by Greater Noida. The show cause notice has been issued

at Greater Noida by the Director of Institute. Reply has been

filed by the petitioner to the said show cause notice in Greater

Noida. The letter of termination has been issued by the Director

of Greater Noida and accepted by the petitioner on that address

only. Therefore, all these facts clearly show that no part of the

cause of action has arisen in Delhi and the petitioner cannot be

permitted to file the writ petition in Delhi High Court merely on

account of the fact the Chairman of the Institute or the Army

Welfare Educational Society has its office in Delhi Cantonment.

The factum of the University being affiliated in academic

purposes to Guru Gobind Singh Indraprastha University,

Kashmere Gate, Delhi or the permission having been granted by

The Chairman, All India Council for Technical Education (AICTE)

which has office in Delhi would not confer the jurisdiction of this

Court. It has repeatedly been laid down by the Courts that the

Courts, which will have the jurisdiction are those Courts where

the substantial part of the cause of action has arisen. In the

instant case admittedly the cause of action has not arisen in

Delhi and merely because a representation has been sent

through proper channel that is through the Director of the

institute to the Chairman having its office in Delhi, they would

not cloth this Court with the jurisdiction. The judgment in case

titled Bernard D'Mello Vs. Industrial Finance Corporation

Ltd. & Ors. 112 (2004) DLT 500, which has been cited by the

learned counsel for the petitioner with a view to canvass a point

that the Delhi Court has the jurisdiction is distinguishable on

the facts of the case.

10. The second preliminary objection which has been raised by

counsel for respondent 1 to 3 is that the Army Institute of

Management & Technology (Noida) which is being run by Army

Welfare Educational Society is not a state within the definition of

Article 12 of the Constitution of India and therefore, cannot be

subjected to the writ jurisdiction. Reliance in this regard is

placed by the learned counsel for the respondents 1 to 3 on the

Division Bench judgment in LPA No.606/2008 titled Army

College of Medical Sciences (ACMS) Vs. UOI and Mrs. Asha

Khosa Vs. Chairman, Army Public School, Northern

Command & Ors. MLJ 1997 J&K 71 and Smt. Asha Vij & Ors.

Vs. The Chief of the Army Staff and Ors. in CWP1722/99

decided on 7.11.2001 by the learned Single Judge of this Court

clearly shows that any institute which is being run by Army

Welfare Educational Society (AWES) cannot be termed to be a

state within the definition of Article 12 of the Constitution of

India and therefore, cannot be subjected to the writ jurisdiction.

11. In the instant case, there is not an iota of averment in the

writ petition as to how the Army Institute of Management &

Technology (Noida) which is being run at Greater Noida by the

Army Welfare Educational Society is amenable to the writ

jurisdiction of this Court. There is no averment that it is

receiving any grant in aid from the Central Government or

particular authority. Therefore, this argument of counsel for

respondents 1 to 3 also has the merit. Since this Court is of the

view that the petitioner has not been able to cross the initial

hurdle of establishing that the writ petition is maintainable on

the question of territorial jurisdiction as well as on the question

of the Army Welfare Educational Society being a State the

definition of Article 12 of the Constitution of India, therefore, the

writ petition is not maintainable accordingly, the same is

dismissed in limine. Since the main writ petition is therefore not

maintainable in this Court, therefore, no order is called for on the

stay application.

V.K. SHALI, J.

MAY 28, 2009 RN