Delhi High Court
Poonam Bhargav vs Union Of India And Ors. on 24 October, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.374/2012
% 24th October, 2013
POONAM BHARGAV ..... Petitioner
Through: Mr. Prafulla Kumar, Advocate with
Mr. Rakesh Kumar Tewari, Advocate.
Versus
UNION OF INDIA AND ORS. ...Respondents
Through: Mr. Ravinder Aggarwal, CGSC with
Mr. Amit Yadav, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Petitioner was appointed in an institute in Nepal known as
Manmohan Memorial Polytechnic, Hattimudha, Nepal. Petitioner was
appointed on contract basis. Petitioner claims that the contractual period
was of three years in terms of the subject advertisement but she was illegally
terminated before expiry of the period which is questioned in this petition.
2. Petitioner however has failed to show any contract of
appointment for a period of three years or more. This case was argued
yesterday when a different counsel appeared, today a different counsel
W.P.(C) No.374/2012 Page 1 of 5
appears for the petitioner and argues the matter. The issues which were
raised in the present case at this stage was not as regards the merits of the
claim (which in any case did not seem to have much substance) but was of
maintainability of this petition on account of existence of three preliminary
objections as stated below:-
(i) Petitioner admittedly was employed and seeks continuation of her
employment with the employer/ Manmohan Memorial Polytechnic,
Hattimudha, Nepal but this entity has not been made a party to the writ
petition.
(ii) The cause of action for appointment and continuation and also to
challenge the termination will arise in Nepal because the appointment of the
petitioner was with Manmohan Memorial Polytechnic, Hattimudha, Nepal.
(iii) Even if the case of the petitioner is accepted at the best that she is
illegally terminated within the three years period, that three years period
expired on 11.11.2012, and therefore, in a case such as the present more so
when there are disputed questions of facts with regard to the validity or
justification of termination of services of the petitioner, the appropriate
remedy would be a suit for recovery of money.
W.P.(C) No.374/2012 Page 2 of 5
3. So far as the first objection is concerned, in spite of repeatedly
putting the petitioner to notice, counsel for the petitioner states that there is
no need to add the employer/ Manmohan Memorial Polytechnic,
Hattimudha, Nepal as a party to this case inasmuch as it is the Government
of India with the Government of Nepal which are controlling the institution.
I find this argument totally misconceived because surely if appointment and
continuation are sought with a particular employer, surely, it is that
employer which necessarily has to be made a party/respondent in the case as
the directions will be issued against that body. May be Government of India
and Government of Nepal have say and arguably a controlling interest in the
institute, cannot still mean that the employer-institute should not be made as
a party to the present case. The writ petition is therefore misconceived and
not maintainable in the absence of the employer being a party-respondent,
and with whom the petitioner seeks continuation of employment.
4. The second aspect was lack of territorial jurisdiction because
petitioner took employment pursuant to the advertisement issued in Nepal,
joined the institute in Nepal, worked in Nepal, was terminated from the
institute in Nepal and seeks continuation of the employment with the
institute in Nepal and therefore entire cause of action has arisen at Nepal.
Merely because Government of India has granted aid to the said institute and
W.P.(C) No.374/2012 Page 3 of 5
which at best can be taken as an aspect with respect to control, yet, the
jurisdiction will be in Nepal because it is not unknown that there are
autonomous organizations which are in fact controlled by the Government
but qua that autonomous organizations a legal case can only be filed where
the cause of action arises with respect to that organization. Merely
Government of India is situated at New Delhi will not mean that so far as the
facts of the present case is concerned, cause of action will accrue here
whether for continuation of employment or whether for challenge to the
termination.
5. Finally, at best the claim with respect to continuation of
employment would be for three years period which has expired and therefore
still the issue of continuation of the employment amounting to specific
performance cannot be granted because if as per the case of the petitioner,
and which has to be proved in a Court of law, that petitioner has been
illegally terminated petitioner now will be able to claim monetary relief for
the balance term of her employment.
6. I may note that the issues with respect to disentitlement of
continuation of employment on merits have been argued on behalf of the
respondent no.1 because actually to the institute at Nepal, certain qualified
Indian persons were deputed of which petitioner was one, and ultimately
W.P.(C) No.374/2012 Page 4 of 5
from time to time when the institute at Nepal had the necessary competent
teachers, persons who were employed from India were not to be continued in
their posts more so without there being a specific term of contract for a
particular number of years, and the petitioner did not have any specific
contract of three years and at best had only a one year contract with one year
extension. It is again however reiterated that since this Court does not have
jurisdiction no observations are made one way or the other on the merits of
the matter.
7. In view of the above, the writ petition is dismissed, leaving the
parties to bear their own costs.
OCTOBER 24, 2013 VALMIKI J. MEHTA, J.
Ne
