Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9773/2017 & CM No.39778/2017 (For delay)
Date of Decision: 30.11.2017
INDERJEET SINGH ..... Petitioner
Through Mr.Manjeet Singh, Sr. Adv.
with Mr.Tarjit Singh, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Ms.Abha Malhotra, Adv. with
Mr.Tanuj Chopra, Adv. for R-1
& 2.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE REKHA PALLI
HIMA KOHLI, J (ORAL)
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1. The petitioner is aggrieved by the judgment dated 12 August,
2016 passed by the Central Administrative Tribunal, Principal Bench,
New Delhi, whereby the Original Application filed by him for
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quashing his termination order dated 7 April, 2015, issued by the
Respondent No.3/Institute of Pesticide Formulation Technology
(hereinafter referred to as the “Institute”) has been dismissed on
merits.
2. We may note that the petitioner has taken almost one year to
approach this Court to assail the order of the Tribunal and there is no
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explanation offered in the petition for the delay. No doubt, the law of
limitation in its restrictive sense, does not apply to proceedings under
Article 226 of the Constitution of India, but the petitioner is expected
to invoke the said provision within a reasonable time. We do not find
any explanation whatsoever in the petition which can throw light on
why did the petitioner chose to wait for an entire year to approach the
Court.
3. Be that as it may, coming to the merits of the matter, briefly
stated, the facts of the case are that the petitioner was selected to the
post of Head (Finance/Administration/Training) in the respondent
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no.3/Institute. The appointment letter dated 24 December, 2009
issued to the petitioner offering him an appointment on the subject
post, contained a clause relating to termination of service which is as
under:-
“Termination of Service:- Appointment may be
terminated on three month’s notice or three month’s
basic pay in lieu thereof on either side and without
any cause assigned during the period of contract.”
4. The petitioner accepted the said offer of appointment pursuant
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whereto, a contract of service dated 11 January, 2010 was executed
between the parties. Pertinently, the signatory to the said contract of
WP (C) No.9773/2017 Page 2 of 7
service, was the Director of the respondent no.3/Institute and the
petitioner herein. Clause 10 of the aforesaid contract of service is
reproduced hereinbelow for easy reference:-
“10. The service of appointee may, during the
period of contract, be terminated by the institute at
any time by three calendar month’s notice in writing
given at any time during service under this contract
without any cause assigned. Provided always the
institute may in lieu of the notice herein provided
give the appointee a sum equivalent to the amount of
his basic pay for three months. Similarly, the
appointee may also terminate his service by giving
to the institute three calendar month’s notice in
writing or deposit a sum equivalent to the amount of
his basic pay for three months.”
5. The appointment of the petitioner to the subject post was for a
tenure of five years, which was renewed for a further period of five
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years by a contract of service dated 11 January, 2015. The said
contract was also executed between the Director of the respondent
no.3/Institute and the petitioner and contained the very same
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provisions as existed in the earlier contract dated 11 January, 2010.
6. During the pendency of the second five year contract, vide an
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order dated 7 April, 2015, the respondent no.3/Institute terminated
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the petitioner‟s service w.e.f. 7 April, 2015, by invoking Clause 10 of
WP (C) No.9773/2017 Page 3 of 7
the contract. As contemplated in Clause 10, the petitioner was given
three months‟ salary in lieu of three months notice.
7. Aggrieved by the aforesaid termination order, the petitioner
preferred an appeal/representation before the President of the
st
respondent no.3, which was rejected by a speaking order dated 21
December, 2015.
8. The aforesaid action of the respondents was assailed by the
petitioner by filing an Original Application before the Tribunal which
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came to be dismissed by the judgment dated 12 August, 2016 and
being aggrieved by the same, he has filed the present petition.
9. In the impugned judgment, the Tribunal has recorded that the
letter of offer issued to the petitioner had clearly defined his status as
“contractual” and had laid down the conditions regarding termination
of his service. The said clause pertaining to termination of contract of
service clearly stated that the petitioner‟s services could be terminated
without assigning any cause, subject to payment of three months‟
salary in lieu of the three months notice period. The said option of
termination of service was granted to both, the petitioner/employee as
well as the respondent no.3/Institute.
WP (C) No.9773/2017 Page 4 of 7
10. The submission of the learned Senior Advocate appearing for
the petitioner is that a show cause notice was required to be served on
the petitioner before dispensing with his services which procedure was
admittedly not followed. He submits that the plea of the petitioner
that he be afforded an opportunity to tender an explanation, has been
erroneously turned down by the Tribunal with an observation that the
contract being terminable in nature, the same could not be specifically
enforced even if there was a breach of the contractual stipulation.
11. It is urged before us that as per the Service Bye-laws of the
respondent no.3/Institute, the appointing authority for a Group „A‟
post is the Governing Body and as the petitioner was appointed to a
Group „A‟ post, his termination order could have been issued only by
his appointing authority which was the Governing Body. He, thus,
submits that his termination order having admittedly been issued by
the Director and not by the Governing Body, the said termination
order was even otherwise invalid and void ab initio .
12. It is noteworthy that no such plea as raised before us, was taken
by the petitioner before the Tribunal. The said position is not denied
by learned counsel for the petitioner. He, however, states that such a
WP (C) No.9773/2017 Page 5 of 7
plea can be taken at any stage as it is purely legal in nature and is
evident on a perusal of the Bye-laws of the respondent no.3/Institute.
13. To test the aforesaid submission, it is necessary to examine the
petitioner‟s Contract of Service. A perusal of the first contract of
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service dated 11 January, 2010 and the second one dated 11
January, 2015, reveals that they were both signed by the Director of
the respondent no.3/Institute. If the aforesaid submission made by
learned counsel for the petitioner is taken to its logical conclusion,
then the very appointment of the petitioner would have to be treated as
void as, admittedly, the appointing authority for the Group „A‟ post in
the Institute is the Governing Body, in terms of the Bye-law 6 of the
Service Bye-laws that had never appointed the petitioner to the
subject post. Instead, it was the Director who had executed the
contract on behalf of the respondent no.3/Institute, appointing the
petitioner to the subject post. It is an undisputed position that it was
very same officer who had issued the termination order in respect of
the petitioner. Our view as expressed above, also find support from
the recitals contained in the two contracts for appointment of the
petitioner wherein it is stated in so many words that it is the Director
WP (C) No.9773/2017 Page 6 of 7
of the respondent no.3/Institute who had approved the petitioner‟s
appointment.
14. Given the aforesaid facts and circumstances, we do not find any
illegality or arbitrariness in the impugned judgment which deserves
interference.
15. The present petition is accordingly dismissed in limine as
meritless, along with the pending application.
(HIMA KOHLI)
JUDGE
(REKHA PALLI)
JUDGE
NOVEMBER 30, 2017/aa
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