Delhi High Court

Dr. Ajay Kumar vs The Management Of The National ... on 4 July, 2011

Author: Suresh Kait

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment reserved on: 2ndJune,2011
                         Judgment delivered on: 4th July,2011


+                  W.P.(C) 2047/1997

        DR. AJAY KUMAR                   ..... Petitioner

                        Through:   Mr. Rakesh Kumar Dudeja,
                                   Advocate.
                   versus

        THE MANAGEMENT OF THE NATIONAL INSTITIUTE OF
        IMMUNOLOGY & ORS             ...... Respondents
                      Through: Mr. P. Nagesh, Advocate
         CORAM:
         HON'BLE MR. JUSTICE SURESH KAIT


     1. Whether the Reporters of local papers may be allowed
        to see the judgment?   YES

     2. To be referred to Reporter or not?   YES

     3. Whether the judgment should be reported in the
     Digest? YES


SURESH KAIT, J.

1. The petitioner has preferred the instant petition by

challenging orders dated 25.04.1997 by which as alleged

the lawful service of the petitioner have been illegally

terminated w.e.f 26.04.1997.

2. Further prayed, directions be issued to quash malaifide

order dated 28.04.1997 by which the petitioner was

threatened of his dispossession from the flat F-5 allotted to

him by the respondent. Since, the petitioner has already

vacated the said flat, this prayer has become infructuous.

3. The petitioner had joined National Institute of

Immunology on 02.02.1990 vide letter dated 01.02.1990 in

S&T Mission Project as Staff Scientist-II. After two years and

two months of service, in April, 1992, the petitioner was

again appointed as Staff Scientist -III vide letter dated

27.04.1992 in the Core Infrastructure Strength of the

Institute during two years of probation. The petitioner was

asked to make OLIGONUCLEOTIDES (means a short nucleic-

acid chain usu. consisting of up to approximately 20 nucleo

tides) and provide the facility to the other scientists for their

research work.

4. The petitioner submits that he had provided the facility

to the other scientists and successfully completed his

probation. Basically OLIGONUCLEOTIDES synthesis was a

rodent work and was carried out by automated machines.

He was working on the development on the new methods of

synthesis to make DNA probe and he presented a project

development on DNA probes in the detections of

'Flaviviruses' in SAC/RAP meeting in 1993. The probation of

the petitioner was cleared in 1994. He submits, during this

period the petitioner published number of papers in

international journals.

5. The problematic journey starts when he was due to

visit Germany after his review was carried out in the month

of March, 1997 i.e the end of fifth year of his service. Finally

on 25.04.1997, the petitioner received office order, whereby

the service of the petitioner were terminated without

assigning any reason.

6. Due to the aforesaid termination, the petitioner lost a

good opportunity as INSA did not support him to visit

Germany stating that presently he was not employee of NII.

7. Being aggrieved by the aforesaid termination order

dated 25.04.1997, an appeal was made to the Governing

Body but the same was rejected.

8. Learned counsel for the petitioner, Sh. Rakesh Kumar

Dudeja argued that as per the termination letter, petitioner

was not suitable to the respondent without there being any

material on record as no letter or memo was ever issued to

the petitioner, however, he was notified that his services

were not satisfactory, whereas. the Review Committee

observed in its report that the petitioner had completed the

probation period satisfactorily.

9. However, he submits though the respondent was

required to access the suitability of the petitioner after the

completion of four years as per Clause 8.1 of the Bye-Laws

but the respondent did not do so. On the contrary, the

services of the petitioner were terminated vide order/letter

dated 25.04.1997 on the ground that the petitioner was

proved to be unsuitable for continued employment which

amounts to stigma on the career of the petitioner. The

petitioner could not get any employment, career as Scientist

came to an end. In other words, it is punitive termination in

nature.

10. Learned counsel has raised the issue that the

petitioner was denied to his right to be appointed as regular

employee after successfully completing the five years of

period. Additionally, has raised certain legal issues as

under:-

".......1.The Principle of Natural Justice has not been complied with.

3. There is violation of service conditions as the review was not carried out at the end of fourth years of his service. (ii) After completion of four years of service, clause 4.2 cannot be exercised.

(iii) Even as per the clause 4.2, none cannot be terminated by giving three months salary, notice is must.

(iv) Terms for the nonrenewable of the contract (clause 4.3) is that the scientist will be issued a warning at the end of fourth year after the review and will be informed about the shortcomings if any, and will be asked to show the improvement within one year otherwise contract will be terminated.

(v) Review was carried out at the end of 5th year, no reason is given why the review was not carried out at the end of fourth year.

(vi) After the review even after fifth year no warning was given in writing or even orally. No short coming was informed to the petitioner.

(vii) The petitioner was forced not to avail Gemany Fellowship awarded by INSA.

(viii) No individual Report of the reviewers are submitted even in the court.

(ix) All the four reviewers have put the signature on the same report written by NII Director/Senior Manager. No reviewere differed with each other in any matter with the director.

(x) The report might have been made afterward or even may be false as no shortcoming was informed to me on the basis of report.

3. If the petitioner was not suitable how his probation was cleared. How the petitioner got the BOYCAST Fellowship?

4. The petitioner had projects

(i) Development of DNA Probes for the detections of Flaviviruses"

(ii) Triplex Forming oligonucleotides (My BOYSCAST Fellowship project)

(iii) Facicity of Oligonucleotides

5. Again if the petitioner was not good and project was not suitable, how he was nominated for INSA fellowship?

6. Why on award of the INSA fellowship for reverse transcriptase project, director terminated the job of the petitioner?...."

11. On the other hand, learned counsel for the respondent,

Mr. P. Nagesh submits that the petitioner was appointed on

contract basis as Scientist-III in the pay scale of `3000-

4500/- vide OM dated 27.04.1992. Further submits that

Clause 4(ii) of the said OM stipulates that the contract

employment of the petitioner could be terminated by the

Institute as per the provision which states that during the

period of contract, his contract employment could be

terminated by giving him three months' notice in writing or

by paying him a sum equivalent to his pay thereof in lieu of

notice period. Accordingly, the petitioner was terminated

w.e.f. 26.04.1998 and was paid a sum of `28,601/- being

equivalent to his pay thereof in lieu of notice period of three

months.

12. Initially, the petitioner was appointed to the post of

staff Scientist -(II) in S&T Mission Project - I in the pay scale

of Rs.2200-75-2800-EB-100-4000/-. The appointment was on

a contract basis for a term of five years or the termination of

the project, whichever is earlier with an initial probation

period of two years which may be extended or curtailed at

the discretion of the competent authority.

13. After the end of the project, the petitioner was

appointed as Staff Scientist - (III) in S & T Mission and

Project -(I) . This appointment was also on contract basis for

a term of five years with an initial probation period of one

year which could be extended or curtailed on the discretion

of the competent authority.

14. The OM dated 27.04.1992 provides that after

successful completion of probation, the petitioner can be

given three months notice in writing if in the opinion of the

Institute that he has proven unsuitable for continuing the

employment . The respondent may in lieu of notice given

give him salary also.

15. The OM dated 27.04.1992 further provides that end of

the fourth year of the contract employment, if on rough

assignment his performance was found not satisfactory, he

will be issued a warning in writing to show definite

improvement within one year, failing which, the promotion

of his employment will not be reviewed on expiry of five

years.

16. Learned counsel for the respondent, further submits

that the Bye-Laws for administration and management of

the respondents also provide in Clause 8 (i) "that the

appointment would be on contract basis initially for a period

of five years, a review can be carried out at the end of five

years to access the suitability for regular appointment or to

terminate the contract as the case may be. He further

submits that during his continuation as Staff Scientist - III,

the petitioner was assigned the primary responsibility of

synthesis purification and characterization of

OLIGONUCLEOTDE as an infrastructure facility to various

other laboratories.

17. The work of the petitioner was viewed and therefore

reviewed on 21.03.1997. The Review Committee found that

the petitioner had neither developed a scientifically viable

search programme relevant to the respondent nor had he

rendered any useful support to any of the scientific or other

activities of the respondent for the last five years.

Therefore, Committee did not recommend his promotion

and renewal of the contract on the post of Staff Scientist -

III.

18. The learned counsel for the respondent points out that

during his employment as Staff Scientist - (III) there was

some inter office memorandum issued by the respondents

by giving him warning on the ground of some indiscipline. In

fact, the petitioner had made certain allegations against

various officials of the Institute and on enquiry, it was stated

to look at the allegations made by the petitioner. Despite,

the opportunity given to him, the petitioner refused to

appear and finally the Enquiry Committee found that all the

allegations made by the petitioner are not substantial and

baseless.

19. The respondent had also received some comments on

the project proposals of the petitioner which was

recommended by other several prestigious Institutes like

IMTECH, CCMB, Hyderabad and International Centre for

Genetic Engineering of Biotechnology and accordingly the

project of the petitioner was recommended for funding.

20. The petitioner, filed his rejoinder with some more

documents relating to OLIGONUCLEOTDE. The petitioner has

also filed documents to show his period of probation was

extended for a period of one year w.e.f. 01.04.1993

The para 4 of his rejoinder is produced hereinunder which

reads as follows:-

"4. That the contents of para No. 4 of the counter affidavit are fully false/illegal, and misleading, hence strongly denied. It is most respectfully submitted that the employment of the petitioner was not for a fixed term employment, and more over in a fixed term employment there cannot be a provision for probation and further evaluation. The present Writ petition is based on the malafide action of the respondent, as petitioner has been victimized/punished for his good work and no fault on his part and thus the satisfaction of

the respondent is questioned on the ground of the malafide, encubment on those as per settled principles that who support the order to show that the satisfaction is based on certain objective facts and not the outcome of the whims or caprice of the concerned officer".

21. The main issue as raised by the petitioner is that

his service has been terminated illegally, as Clause (ii) of

the OM dated 27.04.1992 does not apply. Stigma has been

caused to the petitioner by issuance of the said termination

letter. The petitioner however has not mentioned in his

reply affidavit about his alternate employment after his

termination in the year 1997. It is, therefore, presumed that

the petitioner had obtained alternate employment and the

question of stigma as alleged by him has not come in the

way.

22. Learned counsel for the Respondent submits that

the version in the letter of termination dated 25.04.1997

that the petitioner has proven unsuitable for continuing the

employment does not amount to stigma because the OM

dated 25.04.1997 must be read as a whole. The petitioner

could be terminated at any time after the completion of

probation period by giving him three months notice or

salary paid in lieu of three months notice.

23. To support the aforesaid averments, the

respondent has referred two cases decided by the Hon'ble

Supreme Court in (2006) 4 SCC 469 titled as Abhjit Gupta

Vs. S.N.B. National Centre, Basic Sciences & Others, it was

contended in para 9 that it is the duty of the Employer to

inform the employee about his deficiency from time to time

so the employee may improve himself.

In Para 14 and 15, it was held as under:-

"in present case, the record makes it clear that every time the appellant‟s attention was drawn to his deficiencies and he has repeatedly advised to improve his behavior, conduct and discharge of work. Although in some of the letters there was intemperate language used, it is not possible to accept the contention of the appellant that the letter dated 07.04.1998 indicated that the appellant was being charged with the misconduct and, therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents after giving a long rope to the appellant, had come to the conclusion that the appellant‟s service was unsatisfactory and there was no hope of his improvement. "

"the real test to be applied in a situation where an employee is removed by an innocuous order of termination is : Was he discharged as unsuitable or was he punished for his misconduct? In facts of the case law, the test of prejudicial effect on future employment solicited by the appellant cannot be accepted."

24. The respondent has referred another case of State

of Haryana and Another Vs. Satyender Singh Rathore

(2005) 7 SCC 518, wherein the employee was appointed as

a Director of Medical Officer in the Directorate of Health

Services on a fixed salary on contractual basis, terminable

at any time without assigning any reason, it was held that

order terminating the employee referring to his mis-conduct

was only a motive and not a foundation - hence termination

order was found valid.

25. In the case of Dipti Prakash Banerjee Vs. Satyender

Nath Bose National Centre for Basis Sciences (1999) 3 SCC

60, it was held as under:-

"21. If findings were arrived at in any enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as „founded on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there wer complaints, it found only be a case of motive and that would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstances, the allegations would be a motive and not the foundation and the simple order of termination would be valid."

26. After hearing both the parties, it has emerged that

the main thrust of the petitioner is on the termination letter

which is a stigmatic one, therefore, the said termination

letter has tarnished his image, therefore, wherever he

would go, he will carry the same image. It would be a big

barrier in his career for his further growth.

27. Learned counsel for the respondent has stated at

bar that the termination letter is not putting any stigma to

the reputation and career of the petitioner, therefore, this is

only an apprehension and nothing else.

28. Admittedly, the service of the petitioner with the

respondent was purely on a contract basis, therefore, the

employer had own right to terminate the services of the

employer as per the terms and conditions of the

employment.

29. The issue in the instant petition is no more res in

tegra, as was decided in case 2005 (6) Scale titled as Binny

Limited and Another V. Sadasivan and Others, the similar

issue was discussed and it was held as under:-

Respondents filed writ petition for a declaration that clause 8 of the Agreement read with order of termination issued by appellant company was void and illegal and violative of Section 23 of the contract Act. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative

decisions and under this jurisdiction High Court can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide.

"Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.

.....the cases those are purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Article 23 of the Contract Act in Contractual matters even in respect of public bodies, the principles of judicial review have got limited application, as was observed in the case of Binny Ltd. (Supra)

as under :-

"29.........The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but , nevertheless, there must the public law element in such action. Sometimes, it is difficult to distinguish between public law and remedies.

30.......A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed the Government or Government Authorities at all levels is increasing employing contractual to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purpose and not unreasonably.

31.........It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in state of U.P. vs. Bridge & Roof Co. (1996) 6 SCC 22 and also in Kerala State Electricity Board vs. Kurien E. Kalathil (2000) 6 SCC 295. In the latter case, this Court retreated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition.

Whether the contract envisages actual payment or not is a question of construction of contract. If a term of contract is violated, ordinarily, the remedy is not a writ petition under Article 226."

30. For the forgoing discussion and the law laid down in

my view, as per Clause 8 of the Agreement, Management

had a right to terminate services without assigning any

reason by giving three months' notice or salary in lieu

thereof. If any damage was caused to the petitioner, he

should have challenged the same before the proper forum

instead of filing the writ petition under Article 226 of the

Constitution of India.

31. I, therefore, leaving all the issues raised by the

petitioner open, dismiss the writ petition with granting

liberty to challenge and sue the respondent before the

appropriate forum, if he is so advised.