Dr. Manoj K. Dash vs Federation Of Indian Mineral ...
2011 Latest Caselaw 708 Del

               IN THE HIGH COURT OF DELHI AT NEW DELHI


                           WRIT PETITION(C) NO.2297/2010

                                              Reserved on: 8th December, 2010

                                                    Pronounced on:07-02-2011

         DR. MANOJ K DASH                                   ..... Petitioner
                   Through           Mr. Debasis Mishra, Advocate.

                           versus


         FEDERATION OF INDIAN MINERAL
         INDUSTRIES                                   ..... Respondent
              Through   Mr. Sunil Dogra, Mr. Vivek Vishnoi, Advs.


         CORAM:
         HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


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


SUDERSHAN KUMAR MISRA, J.

1. The instant writ petition has been preferred against the

respondent praying for quashing the letter issued by the respondent

on 11th February, 2010 terminating the services of the petitioner.

2. Pursuant to an advertisement, published on 5 th August,

2009, the petitioner applied for the post of Director (Social and

Community Development) with the respondent. He thereafter joined

the respondent on 9.11.2009. His letter of appointment was issued a

few days later, on 14th November, 2009. This letter also stated that a

monthly salary of ` 1,00,000, along with ` 25,000 as reimbursement

for petrol, vehicle maintenance, driver's salary and telephone

expenses, etc. will be paid to him. Ultimately, the petitioner's service

was terminated by a letter dated 11 th February, 2010 which reads as

follows:

"As we do not require your services, we hereby give you 48 hours notice to dispense with your services w.e.f. the forenoon of 15 th February, 2010.

You can collect your salary for this month till Sunday, the 14th February, 2010."

3. Knowing this fact, on the very next day, i.e. 12th February,

2010, the petitioner also tendered his resignation stating as follows:

"Since I do not think that I am inclined to carry out administrative functions and also because I would like to work on social development issues as an experienced worker in this field, I would not, therefore, like to waste my time as well as the organisation's time just for occupying a position.

Therefore, I tender my resignation w.e.f. 12 th February, 2010 and would like to sincerely request you to consider my resignation from the organisation with immediate effect....."

4. Thereafter, the petitioner sent an e-mail on 14th February,

2010 to the General Secretary of the respondent which reads as

follows:

"I had planned to come to FIMI House on Monday the 15th February 2010 to hand over the charge after putting in my resignation. But I have changed my decision because you being one of the most indecent persons I have ever come across in life, I wouldn't like to suffer further embarrassment of seeing your face again. I feel sorry for your mental sickness too. However, I leave your matter to God since as an ordinary soul I do not possess enough weapons to deal with even a single soul like you.

May God bless you with better sense and improved mental health.

Dr. Manoj K. Dash

Note: All my dues may be sent to my residential address by A/C payee cheque. I will be sending the required papers by courier soon."

5. The respondent sent a letter, dated 15th February, 2010

along with a cheque of ` 50, 000 towards the petitioner's salary for

fifteen days. Later on, another letter, dated 22nd February, 2010 along

with a cheque of ` 25,000 towards reimbursement of personal

expenses, was also sent to the petitioner.

6. On 18th February, 2010, the petitioner again wrote another

letter questioning the basis on which his services were terminated

when he had already resigned on his own, and demanded ` 10,00,000

as compensation. He also alleged that he was neither given a personal

hearing nor a show cause notice before the termination of his services.

7. By way of preliminary objection to the exercise of writ

jurisdiction, counsel for the respondent submitted that the mere

presence of some of Public Sector Companies as members of the

respondent federation does not make the federation a "State" under

Article 12. Further, the federation does not receive any funds or aid

from the Government of India or the State Government. The

activities, functions and internal management of the federation are

controlled by its members according to the Articles of Association and

there is no direct or indirect control of the Government or any

Governmental body over the federation. He also submitted that the

protection of Article 311 is only available to members of the civil

services of the Union or an All-India Service or civil services of a State

or to a person who holds a civil post under the Union or a State.

However, the services of the petitioner in the respondent federation

were not covered under Article 311, hence the question of violation of

Article 311 by the respondent federation also does not arise.

8. Counsel further contends that even otherwise, the

petitioner is not entitled to any relief on the merits. He has referred to

Chapter 1, clauses 1.1 and 1.2 & 1.4 of Service Rules and Regulation

of the respondent/federation, which state the following:

"1.1 A "Probationer" is an employee who has been employed to fill a permanent vacancy in a post and has not completed six months or an extended period of probationary period.

1.2 Probation: All employees shall be on probation for a period of six months from the date of joining, whether it is mentioned in the appointment letter or not."

"1.4 Termination: The federation may however, terminate the services of an employee during the probation with 24 hours notice if it feels that the employee is not coming upto the level expected of him."

He submits that above clauses clearly provide that any

employee appointed by the federation will remain a, "probationer", for

six months, and the service of such an employee can be terminated

with 24 hours notice. On the facts, it is clear that when the

petitioner's services were terminated, he was merely a "probationer"

and not a permanent employee.

9. By an inter office note, dated 8 th January, 2010,

Mr.K.P.Nyati, Head, Environment Confederation of Indian Industry,

informed the Secretary General that the petitioner's work is not

satisfactory and despite his best efforts he has not been able to bring

the petitioner even to a primary level of understanding and working of

the respondent federation.

10. The respondent also denied the allegations of the

petitioner that his work load was increased and that he was made to

do different kinds of work, thereby deviating from his original area of

work. Counsel further states that the petitioner was being told time

and again that he is not performing his duties seriously and sincerely.

It was even recorded and conveyed to the petitioner that he was

wasting time and not carrying out instructions. In other words,

according to the respondent, the petitioner was unsuitable for the

post.

11. The respondent submits that a meeting of the three

principal officers was held on 11th February, 2010, wherein, it was,

inter alia, decided that since the petitioner is unable to perform the

work assigned to him and is not contributing in his domain area, the

services of the petitioner be terminated. Thereafter, on 11th February,

2010, the respondent issued the termination letter to the petitioner.

Counsel for the respondent contends that the procedure, as mandated

by the aforesaid clause 1.4 of the Service Rules and Regulation, had

been complied with.

12. The petitioner contends that the appointment letter did not

specifically state that he was covered by any rules and regulations of

the respondent, and, therefore, those rules and regulations are not

applicable to the petitioner. He further contends that within a few

days of his appointment, the petitioner was "promoted" and was given

additional charges and it was orally communicated to him that the

pay-structure will be revised shortly, but it was never done. He also

contends that thereafter, in January, 2010, the petitioner was given

work which he was not supposed to do, and it was this work that he

was not able to handle.

13. As regards the performance appraisal report, counsel for

the petitioner contends that Mr. K.P.Nyati, the person who did the

appraisal, as would be seen from his appraisal report, is the Head,

Environment of Confederation of Indian Industry, and is associated

with the respondent in an advisory capacity. The petitioner was

reporting only to Mr. R.K.Sharma, Secretary General of the

respondent, and he was the only person who had the responsibility to

make the performance appraisal report. The counsel further contends

that if the termination was in fact based on the appraisal report which

was submitted to the concerned authority on 8 th January, 2010, then

why did the respondent wait till 11 th February to issue the termination

letter. Moreover, if the adverse performance appraisal was the reason

for the termination then why was it not mentioned in the termination

letter. Counsel further states that when the respondent had already

decided to terminate the services of the petitioner on the basis of the

report, why was he sent for an important official meeting held on 11-

12 February, 2010.

14. The above facts show that the appointment of the

petitioner was given a contractual appointment to the post of a

Director (Social & Community Development) and this appointment

came about pursuant to an advertisement by the respondent. The

petitioner was selected and the letter of appointment was issued to

him, which incorporated the service rules and regulations of the

respondent company. In terms of Rule 1.2 of the Rules, he was on

probation for a period of six months and in terms of Rule 1.4, his

services could be terminated with a 24 hour notice by the respondent

if, "it feels that the employee is not coming upto the level expected of

him". The petitioner's services were terminated by a letter dated 11th

February, 2010, which was well within the period of probation. There,

the only reason given was that the respondent does not require the

petitioner's services. The facts show that the reason for the

termination of the petitioner's service was his unsuitability for the post

and nothing more. It was not founded on any allegation of a personal

nature relating to his character or integrity and cannot be said to cast

a stigma on him. It is, therefore, simply a case of termination of the

probationer's service, during the period of his probation because his

work did not come upto expectations and therefore he was not found

suitable for the job, and nothing more.

15. Significantly, on the very next date, the petitioner also

tendered his resignation. Thereafter, the petitioner sent an email on

14th February, 2010 to the General Secretary of the respondent

federation demanding that all his dues be sent to his residential

address by A/c payee cheque.

16. A careful perusal of all the facts shows that it is a case of

termination simpliciter. In any case, the petitioner has already

tendered his resignation thereafter and also sent an email demanding

that all his dues be sent to his residential address. He again wrote on

14th February, 2010, saying that he wanted to hand over the charge

after putting in his resignation. The respondent federation has already

paid all the dues of the petitioner. Counsel for the petitioner has failed

to demonstrate any protest by the petitioner when receiving his dues.

17. To my mind, the letter terminating his services casts no

stigma on the petitioner. The only possible ground could be that his

performance appraisal report, that may have influenced the decision of

the respondent to terminate the petitioner's service, was carried out

by the wrong person. This may not, however, be sufficient by itself to

vitiate the impugned decision. Be that as it may, in view of the fact

that the petitioner had himself tendered his resignation, after which all

his dues have already been received by him without protest, and also

because the impugned order casts no stigma; no useful purpose will

be served by going into the matter any further, and I do not consider

it necessary to exercise jurisdiction under Article 226 of the

Constitution in the matter.

18. The writ petition is dismissed.

SUDERSHAN KUMAR MISRA, J.

FEBRUARY 07, 2011.