Karnataka High Court
Mr. Ajay Merchant vs The Union Of India on 6 May, 2022
Bench: P.S.Dinesh Kumar, M G Uma
W.P No.32335/2017
C/W W.P No.36004/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MAY, 2022
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON'BLE MRS. JUSTICE M.G. UMA
WRIT PETITION No.32335 OF 2017
C/W
WRIT PETITION No.36004 OF 2017 (S-CAT)
IN W.P. No.32335 OF 2017
BETWEEN :
1. INDIAN COUNCIL FOR
CULTURAL RELATIONS
THROUGH IS DIRECTOR GENERAL
AZAD BHAVAN
INDRAPRASTHA ESTATE
NEW DELHI-110 002
REPTD: BY ITS DIRECTOR GENERAL
2. THE DEPUTY DIRECTOR GENERAL
INDIAN COUNCIL FOR CULTURE
RELATIONS, AZAD BHAVAN
INDRAPRASTHA ESTATE
NEW DELHI-110 002
3. THE UNION OF INDIA
MINISTRY OF EXTERNAL AFFAIRS
SOUTH BLOCK
NEW DELHI-110 001
REPTD. BY IT SECRETARY ... PETITIONERS
(BY SHRI. K.S. BHEEMAIAH, CGC FOR P1;
SHRI. ROYCHAYDHARI FOR
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C/W W.P No.36004/2017
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SHRI. P. KAMALESAN, ADVOCATES FOR P2;
SMT. GOWHAR UNNISA, CGC FOR P2 & P3)
AND :
1. MR. AJAY MERCHANT
S/O LATE DR. KRISHNARAJ MERCHANT
AGED ABOUT 36 YEARS
R/AT NO.27-28, SHANTI LAYOUT
JALAHALLI WEST
BENGLAURU-560 015
2. THE DIRECTOR SOUTH INDIA
BRITISH COUNCIL DIVISION
BRITISH DEPUTY HIGH COMMISSIONER
737, ANNA SALAI
CHENNAI-600 002 ... RESPONDENTS
(BY SHRI. A.R. HOLLA, ADVOCATE FOR R1;
R2-SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 16.02.2017 PASSED BY THE
CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH
IN O.A.17000354/2015 VIDE ANNEX-A.
IN W.P. No.36004 OF 2017
BETWEEN :
MR. AJAY MERCHANT
S/O LATE DR. KRISHNARAJ MERCHANT
AGED ABOUT 37 YEARS
RESIDING AT NO.27-28
SHANTI LAYOUT
JALAHALLI WEST
BENGLAURU-560 015 ... PETITIONER
(BY SHRI. A.R. HOLLA, ADVOCATE)
W.P No.32335/2017
C/W W.P No.36004/2017
3
AND :
1. THE UNION OF INDIA
BY SECRETARY
MINISTRY OF EXTERNAL AFFAIRS
SOUTH BLOCK
NEW DELHI-110 001
2. INDIAN COUNCIL FOR
CULTURAL RELATIONS
AZAD BHAVAN
INDRAPRASTHA ESTATE
NEW DELHI-110 002
BY ITS DIRECTOR GENERAL
3. THE DEPUTY DIRECTOR GENERAL
INDIAN COUNCIL FOR CULTURE
RELATIONS, AZAD BHAVAN
INDRAPRASTHA ESTATE
NEW DELHI-110 002
4. THE DIRECTOR
SOUTH INDIA
BRITISH COUNCIL DIVISION
BRITISH DEPUTY HIGH COMMISSIONER
737, ANNA SALAI
CHENNAI-600 002 ... RESPONDENTS
(BY SHRI. K.S. BHEEMAIAH, CGC FOR R1 TO R3;
R4-SERVED)
....
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THAT PORTION OF THE ORDER DTD.16.02.2017
PASSED BY THE CAT IN OA/170/00354/2015, ANNEX-A
READ WITH THE ORDER DTD.05.06.2017 IN
RA/170/00022/2017, ANNEX-F, SO FAR IT DENIES BACK
WAGES TO THE PETITIONER DURING THE INTERREGNUM
FROM THE DATE OF HIS TERMINATION TILL HIS
REINSTATEMENT AND PERMITS THE APPOINTING
AUTHORITY TO ISSUE A FRESH CHARGE MEMO AND HOLD
AN INQUIRY IN TO THE SAME
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THESE WRIT PETITIONS, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.04.2022, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, P.S.DINESH
KUMAR. J, PRONOUNCED THE FOLLOWING:-
ORDER
These two writ petitions are directed against
CAT's order dated February 16, 2017. W.P.
No.32335/2017 is filed by ICCR and W.P.
No.36004/2017 is filed by the applicant before the
CAT.
2. For the sake of convenience, parties
shall be referred as per their status in the CAT.
3. We have heard Shri.A.R. Holla, learned
Advocate for the applicant and Shri.
K.S.Bheemaiah, learned CGC for ICCR.
4. Though served, none appeared for the
fourth respondent, British Council.
5. Brief facts of the case are, the British
Council Division of the British High Commission has
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its Libraries in various places in India. The ICCR and
British High Commission have entered into an MOU1
for collaboration and administration of British
Libraries. As per Clause III of the MOU, the British
High Commission has agreed to pay 3% of annual
budgetary amount through ICCR for British
Libraries. In terms of the MOU, ICCR offered the job
of Manager in the British Library, to the applicant
Ajay Merchant, on the terms and conditions
mentioned in the Offer letter dated September 1,
2008 and he was appointed as a Manager with the
British Library in Hyderabad. During 2012, certain
allegations such as making inappropriate comments
to women colleagues were levelled against the
applicant. Both ICCR and British Council conveyed
this to the applicant. A Memo of charges dated
June 7, 2012(Annexure-A12) was issued. Applicant,
took a stand that British Council was not his
Memorandum of Understanding (Annexure -R1)
dated April 7, 1988
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employer and refused to respond. In his letter
dated July 5, 2012 (Annexure-A16), addressed to
Mr. Paul Sellers, Director, South India British
Council Division, he has stated thus:
"As per legal advice, since you are not my
Employer, your letter asking me to appearing
before the Investigating authority is illegal."
6. Subsequently, as per Annexure-A17, the
British Council called upon the applicant to appear
for an enquiry on July 10, 2012. He was permitted
to be accompanied with a co-employee. Applicant
did not appear in the enquiry proceedings.
7. In 2013, applicant approached the
Employment Tribunal in England. By its judgment
dated September 27, 2013 (Annexure-A19), the
Tribunal has ruled that British Council was not
applicant's employer and the Tribunal had no
jurisdiction to hear the claim.
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8. On October 16, 2014, the ICCR
terminated applicant's services and paid one
month's salary in addition to all dues till that date.
Applicant has challenged the said order before the
CAT, Bengaluru. By the impugned order, CAT has
held the termination as irregular, set-aside the
same. It has directed the ICCR to reinstate the
applicant without backwages. Liberty has been
given to the respondents to initiate Disciplinary
proceedings in respect of the misconduct.
9. Feeling aggrieved by CAT's order setting-
aside the termination, ICCR has filed its writ
petition. Feeling aggrieved by the denial of
backwages, applicant has filed his writ petition.
10. Shri. Holla, learned Advocate for the
applicant submitted that applicant has been
terminated without holding a proper enquiry.
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Therefore, that portion of the CAT's order denying
backwages is bad in law.
11. Shri. Bheemaiah, for the ICCR contended
that:
• ICCR is not the employer;
• Applicant was appointed as Manager with
British Council;
• ICCR only facilitates the British Council in
terms of the MoU. Therefore, the direction
against ICCR to reinstate is unsustainable in
law.
12. We have carefully considered rival
contentions and perused the records.
13. Undisputed facts of the case are, ICCR
has offered the job to the applicant with the British
Library. It is the case of ICCR that it is not the
employer. The CAT has directed ICCR to reinstate.
Therefore, following points arise for consideration:
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(a) Who is the employer?
(b) Whether termination is bad in law?
Re: Point(a)
14. The ICCR and British High Commission
have entered into a collaboration for administration
of British Libraries in India. In the Offer letter, the
ICCR has stated thus:
"I have pleasure in offering you an
appointment with the British Library,
Hyderabad for the post of Manager (SMB). The
appointment is subject to:
a. The terms and conditions contained in this
letter.
b. Such other terms and conditions of service
for British Library Staff in India as may be in
force from time to time.
c. Adherence to British Library Standing
Instructions (BLSI);
d. Our receiving satisfactory references and
Medical Report.
15. Thus, it is clear that applicant was
appointed with British Library. In terms of the
Facilitation MoU and the British Library Standing
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Instructions, ICCR has offered the job for and on
behalf of the British Library.
16. So far as the tenure of employment is
concerned, parties have agreed as per Clause 7 of
the Offer letter that either the employee or the
ICCR could exercise their option to terminate the
service by giving one month's notice in writing or
making payment of one month's salary in lieu of
notice.
17. On March 26, 2012, ICCR informed the
applicant that British Council had contemplated an
investigation into the complaints. Further, on April
2, 2012, British Library informed the applicant that
it was investigating a number of disciplinary issues
relating to applicant's conduct arising from
complaints from a number of staff members in the
Hyderabad office which indicated serious instances
of misconduct, such as inappropriate references to
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staff members and sexual harassment. The
summary of complaints was attached to the
communication. Applicant was called upon to
appear for a Disciplinary interview on March 5,
2012 at Hotel Taj Deccan, Hyderabad. It was also
informed that applicant could bring a person of his
choice and typically an employee representative or
other staff member. Applicant replied to the said
communication stating that no charge sheet was
issued to him, nor his explanation was called for
and the enquiry commences only after issuing the
charge sheet.
18. In the meanwhile, there were exchange
of correspondence between the applicant and ICCR.
On June 7, 2012, Memo of charges (Annexure-A12)
were sent by British Council. Applicant submitted
his reply as per Annexure-A13. Applicant was asked
to appear for enquiry on July 9, 2012. He did not
attend the enquiry proceeding, but sent a letter
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stating inter alia that proper procedure was not
followed, investigation was not maintainable, the
venue of investigation was not acceptable to him.
19. In the meanwhile, the applicant
approached the Employment Tribunal in England.
By its judgment dated September 27, 2013, as per
Annexure-A19, the Tribunal in England has ruled
that British Council was not applicant's employer
and Tribunal had no jurisdiction to hear the claim.
20. Thus, applicant has taken inconsistent
stands. When British Council called upon the
applicant as per Annexure- A15, dated July 2, 2012
to appear on July 9, 2012 at the British Council
Library, applicant took a specific stand in his reply
dated July 5, 2012 (Annexure-A16) that as per
'legal advice' British Council was not his employer.
Yet he indulged into various correspondence. In
2013, applicant took a contrary stand and
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approached the Employment Tribunal in England
against British Council which has ruled that British
Council was not the employer. The applicant
appears to have not pursued the matter any
further and the finding of the Employment Tribunal
has attained finality.
21. After he was terminated, applicant has
challenged the order of termination before the CAT.
22. The CAT has held in para 17 of its order
that irrespective of the MoU between ICCR and the
British Council, ICCR is the appointing and
Disciplinary Authority, because, the formal
appointment order was issued by the ICCR. It is
relevant to note that unlike the 'employee-
employer' relation in other cases, in the instant
case, the appointment has been made for the post
of Manager in British Library. The British High
Commission and the ICCR have entered into an
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MoU for Management of British Libraries. The British
High Commission has agreed to disburse the
budgetary amount through ICCR for British
Libraries. ICCR is a Society under the Ministry of
external affairs. It is recorded in the MOU that it
has been entered into to strengthen the existing
bonds of friendship between ICCR and the British
High Commission. Therefore, this is a distinct case
wherein, a Foreign Country is running its Libraries
in various cities in India and has taken the
assistance of ICCR to disburse the budgetary
amount. It is not in dispute that the offer letter was
for a placement with the British Library. The offer
letter also provided for termination of employment
with a notice of one month or payment of sum
equivalent to one month's salary.
23. In the facts and circumstances of this
case, in our view, the finding recorded by the CAT
that ICCR is the appointing and Disciplinary
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authority is not sustainable and British Library is
the employer. We accordingly answer point (a).
Re: point (b)
24. As recorded hereinabove, as per
Annexure-A7 dated April 2, 2012, British Council
has informed the applicant to appear for
Disciplinary interview in Hotel Taj Deccan. He was
also permitted to take assistance of another staff
member. Subsequently, charge memo was sent and
applicant was called upon to appear for the enquiry
on July 9, 2012. Applicant did not attend the
enquiry proceeding.
25. In the meanwhile, he changed his stand
and approached the Employment Tribunal in
England contending that British Council was the
employer. Applicant again changed his stand in
2015 contending that ICCR is the employer.
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26. In substance, applicant refused to
participate in the enquiry proceeding. He has not
availed of opportunities to refute the allegations
leveled against him. In its reply statement, the
British Council has averred that ten witnesses were
examined as P.W.1 to P.W.10 and the Enquiry
Officer has held that the charges were proved.
27. A careful perusal of the entire record
shows that applicant has indulged in
correspondence than appearing before the Enquiry
Officer and defending his case.
28. As recorded hereinabove, the offer letter
makes it clear that either the applicant or the ICCR
could terminate the employment by issuing one
month's notice or paying one month's salary in lieu
of the notice. The ICCR has exercised the latter
option.
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29. It is settled that Courts shall not
substitute their opinion with the findings recorded
by the Disciplinary Authority, except under
extraordinary circumstances such as violation of
principles of natural justice or the punishment being
grossly disproportionate. In the case on hand,
several opportunities have been given to the
petitioner to defend his case. As per the pleadings
in the reply statement (para-f) of British Council,
ICCR was requested to conduct the enquiry.
However, ICCR vide letters dated April 24, 2012
and May 15, 2012 had authorized British Council to
conduct the enquiry and accordingly, an Enquiry
Officer and Presenting Officers were appointed.
30. Therefore, in our view, no interference is
warranted with the order of termination.
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31. In view of the above, the writ petition
filed by ICCR merits consideration. Hence, the
following:
ORDER
(a) W.P. No.32335/2017 is allowed.
(b) Order dated February 16, 2017 passed
by the CAT in O.A No.170/00354/2015 is quashed
and the O.A. is dismissed.
(c) W.P. No.36004/2017 is dismissed.
No costs.
Sd/-
JUDGE
Sd/-
JUDGE
SPS
