Delhi High Court
Dr. Swapan Kumar Bhattacharya vs Indian Institute Of Foreign Trade on 18 March, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.3961/1998
% Date of decision: 18th March, 2010
DR. SWAPAN KUMAR BHATTACHARYA ..... PETITIONER
Through: Mr. A.K. De with Mr. Udit Kumar
Chaturvedi, Advocates
Versus
INDIAN INSTITUTE OF FOREIGN TRADE ..... RESPONDENT
Through: Mr. Pramod Gupta, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? YES
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner, appointed as Associate Professor in the respondent
institute on the terms and conditions contained in the letter dated 20th August,
1997 of appointment, seeks a writ of certiorari quashing the order dated 3rd
August, 1998 of the respondent giving him one months notice with effect from
3rd August, 1998 of termination of his appointment; the petitioner also seeks a
writ prohibiting the respondent from terminating the services of the petitioner
before the expiry of contractual period of three years without a just and
reasonable cause and without affording reasonable opportunity of hearing to
the petitioner against such termination. The petitioner soon after the service of
the order dated 3rd August, 1998 of the termination filed this writ petition
along with an application for interim relief seeking stay of the said order. This
Court vide order dated 1st September, 1998, though issuing Rule in the writ
petition, dismissed the application for interim relief, finding no prima facie
case in favour of the petitioner. The said order has attained finality.
Accordingly, the petitioner in terms of the order dated 3rd August, 1998 of the
respondent ceased to be in the employment of the petitioner.
2. The counsel for the respondent has at the very outset contended that the
only relief claimed in the writ petition being of restraining the respondent
institute from terminating the services of the petitioner before the expiry of
contractual period of three years, and no interim relief having been granted to
the petitioner and the period of three years having also expired in the year
2000, the writ petition has become infructuous. Though there is merit in the
said contention of the counsel for the respondent but since the counsel for the
petitioner has addressed on the merits of the matter also, it is deemed
expedient to deal with the same also.
3. The respondent had by publication in the newspaper invited
applications for the post of Associate Professor with specialization in several
subjects. It was inter alia mentioned in the said advertisement inviting
applications that:
"Selected candidates may be inducted on contract/deputation for
a period of 1 to 3 years in regular pay scale with usual
allowances or on a negotiable consolidated amount".
Application having been filed by the petitioner, the institute vide its
letter dated 20th August, 1997 to the petitioner offered appointment on contract
basis as Associate Professor in the institute initially for a period of three years
subject to a review at the end of every year and on the other terms and
conditions contained in the said letter. Clause 3 of the said letter was as
under:-
"During the period of contract appointment, your services will be
terminable without assigning any reason by giving one month's
notice on either side or on payment of salary in lieu thereof in the
first year and three months notice / salary thereafter".
It was also a term that the petitioner will be governed by the general
rules and regulations and office order in force in the institute from time to time
as applicable to other employees in the respondent institute.
4. It is not in dispute that the petitioner accepted the aforesaid terms and
conditions. The petitioner vide his letter dated 8th September, 1997 informed
the respondent that he had served a notice on his then employer and was to be
relieved on 13th October, 1997 and would join the respondent institute on 14th
October, 1997. The petitioner accordingly joined the respondent institute.
5. The respondent vide office order dated 3rd August, 1998 impugned in
this writ petition ordered as under:-
"The undersigned is directed to invite attention to the clause 3 of
the terms & conditions offered to Dr. Swapan K. Bhattacharyya
vide letter No. Admn.2(1)/97 dated August 20, 1997 and hereby
serve one months' notice w.e.f. August 3, 1998 (FN) in accordance
to which his contract appointment with the institute will come to
an end w.e.f. September 2, 1998 (AN)".
6. The counsel for the petitioner has contended that even though the
appointment of the petitioner was contractual, terminable at any time but the
respondent being a State within the meaning of Article 12 of the Constitution
of India is to be guided by reason and none of its actions can be arbitrary or
whimsical; no reason has been stated for the order dated 3rd August, 1998
removing the petitioner before the expiry of even one year from the date of his
joining the employment of the respondent institute. Reliance is placed on
Neelima Misra Vs. Harinder Kaur Paintal (1990) 2 SCC 746, LIC of India
Vs. Consumer Education & Research Centre (1995) 5 SCC 482 and
Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622, I
find the petitioner to have also pleaded that prior to invoking Clause 3 (supra)
of the appointment letter, the respondent was required to comply with the
principles of natural justice; that the action of the respondent is violative of
Articles 14,16, 19 & 21 of the Constitution of India; that the petitioner had
legitimate expectation of continuing in employment for the contractual period
of three years; that Clause 3 supra of the appointment letter vesting unbridled
discretionary powers on the respondent without any guidelines is arbitrary and
opposed to Section 22 of the Contract Act.
7. The counsel for the petitioner has further contended that the respondent
has in the counter affidavit before this Court stated that the petitioner was not
found competent; that there is neither any basis for the same nor any
document in support thereof has been filed; that the order of termination is an
administrative order and must satisfy the Wednesbury's Principles. It is also
sought to be suggested that it being the stand of the respondent in the counter
affidavit that termination was for the reason of incompetence of the petitioner,
inquiry should have been conducted. Though no pleading of mala fides /
imputations have been made but suggestion in that regard are orally given at
the time of hearing.
8. Per contra, the counsel for the respondent has contended that as per the
terms of appointment, the appointment was reviewable every year and the
claim of the petitioner for continuing for a period of three years is also thus
untenable. It is contended that the petitioner did not make any representation
to the respondent against the order dated 3rd August, 1998 and approached this
Court straightaway. It is further contended that even though the petitioner is
not claiming regularization in the petition but the relief claimed by the
petitioner is akin thereto and the appointment of the petitioner being purely
temporary, the petitioner cannot be permitted to make a back door entry.
Reliance in this regard is placed on Indian Drugs & Pharmaceuticals Ltd. Vs.
Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408. The
respondent has also pleaded that the petitioner had accepted the terms and
conditions of appointment of his own volition. Reliance is also placed on the
rules of the respondent where-under every appointee has to undergo probation
followed by temporary service for a period of one year and if found unsuitable
during the period of one year can be discharged. It is also pleaded merely to
show that the termination is not arbitrary, that the respondent institute is
engaged in high professional education/ coaching and expects high standards
from its faculty; that the petitioner was given some teaching assignment and
the feedback received revealed that the petitioner does not have adequate
competence to be a good teacher and thus decision was taken not to continue
him beyond the probation period which would have expired in September,
1998.
9. As far as the contention of the petitioner of an enquiry being required
for the reason of the respondent in its counter affidavit / reply having stated
the reason for termination is concerned, it is found that the order of discharge
impugned in this petition does not give any such reasons whatsoever.
However, the petitioner having challenged the action of the respondent and
having called it whimsical, there was no option with the respondent but to
state the reason for terminating the services of the petitioner. The respondent
having so stated the reason for the first time in the counter affidavit before this
Court, petitioner cannot be permitted to now turn around and state that the
termination is stigmatic requiring an enquiry. The sole purpose of a probation
or a term as Clause 3 aforesaid in the appointment letter is to allow an
employer to adjudge the suitability of the prospective employee. Merely
because the employee has been found to be unsuitable cannot be said to be a
penalty or a stigmatic removal so as to require an enquiry to be conducted. It
is not the case that any enquiry behind the back of the petitioner was
conducted or of which notice was required to be given to the petitioner.
10. Otherwise the termination of employment of the petitioner is in
accordance with the contract between the parties. Only the argument of the
petitioner on the basis of judgments cited aforesaid remains to be considered.
11. In Neelima Misra (supra), the Supreme Court has cautioned that in
matters of appointment in academic field, the court should not generally
interfere and should also be slow in interfering with the opinion expressed by
the experts in the absence of mala fides alleged against the experts. It was
further held that the power exercised by the Chancellor, in that case of
Lucknow University, in the matter of appointment is purely administrative
character and is not in the nature of judicial or quasi-judicial. It was further
held that Chancellor has to act properly and must take a decision in
accordance with the provisions of the Act and Statute and must not be guided
by extraneous or irrelevant considerations. The shift to a broader notion of
fairness or fair procedure in the administrative action was also noticed.
12. In the LIC of India (supra), the court had interfered in the terms of the
insurance policy. It was in that context that observations with respect to the
standard form contracts were made. Similarly, Mansukhlal Vithaldas
Chauhan (supra) is regarding application of mind in administrative action.
13. I am afraid that neither of the aforesaid judgments is applicable to the
facts of the case. The counsel for the petitioner inspite of repeated prodding
has not been able to show any judgment where the Courts have interfered in
the decision taken by an educational institute to confirm or extend the term of
a probationer or not. Even though the word probation has not been expressly
used in the appointment letter of the petitioner but Clause 3 is akin thereto and
in fact wider thereto. If condition of giving a hearing or giving of reasons for
discharge of a probationer are required to be given, the same would vitiate the
purpose of probation. Similarly, the contract in the present case is not a
standard form contract. As noticed above, the advertisement inviting the
applications for Associate Professor only provided that the selected candidate
may be inducted on a contract / deputation for a period of 1 to 3 years and on
negotiable consolidated amount. The respondent had vide letter dated 20th
August, 1997 made an offer to the petitioner and it was unequivocally
accepted by the petitioner. There is nothing to show that the petitioner
objected to any term or was compelled to agree thereto. The freedom in the
matter of contract is also evident from the petitioner having not joined the
respondent immediately, having joined after nearly two months. Thus no
situation as in the LIC of India (supra) is found to exist.
14. The petition therefore fails and is dismissed. However, no order as to
costs.
RAJIV SAHAI ENDLAW
(JUDGE)
March 18, 2010
gsr
