Dr. Mukul Gupta vs Ifci Limited And Others

Dr. S. Muralidhar, J

This appeal is directed against the judgment dated 29th May, 2015, passed by the learned Single Judge, dismissing the Appellant's Civil Writ Petition No. 4177 of 2015 (O&M) on the ground that the Appellant has an efficacious alternative remedy before the Educational Tribunal, Gurgaon (now Gurugram), for redressal of his grievance against the letter dated 28th October, 2014 issued by the Management Development Institute ('Respondent No. 2 Institute'), terminating his services as its Director.

With the learned Single Judge having not examined the merits of the order of termination, the scope of the present appeal is limited to considering whether the learned Single Judge was right in concluding that the Appellant should approach the Educational Tribunal, Gurugram for redressal of his grievance. It is, therefore, clarified at the outset that the narration of the background facts hereafter is only in the above limited context.

Background facts

The Respondent No. 2 Institute, which is located at Gurugram, Haryana, conducts post graduate programmes in Management. It is stated to have been promoted, and funded in the initial years, by IFCI Limited (Respondent No. 1), which is a public sector undertaking in which a majority of shares are held by the Government of India.

The Appellant was appointed as Professor in the Respondent No. 2 Institute in pursuance of the offer of appointment made vide letter dated 1st March, 2000. This appointment was on a whole-time basis. The said letter inter alia stated that the Appellant would be governed by the MDI Staff Regulations, 1986. It was stated that the appointment would be subject to a probation period of two years and that after confirmation the Appellant would continue in service till he attained the age of 60 years, the age of superannuation.

Nearly 12 years later, by offer of appointment dated 17th January 2012, Respondent No. 2 Institute appointed the Appellant as its Director. This letter stated that the appointment would be for a period of five years effective from the date of his taking over as Director. It further stated that "the appointment is terminable on 3 months' notice on either side. Payment of salary for the prescribed period of notice shall be deemed as notice for the purpose of this condition."

The said letter dated 17th January 2012 contained a series of clauses concerning the remuneration, residential accommodation, conveyance, leave travel concession, gratuity etc. Under the caption 'Others' it was inter alia stated that "in all other respects, you will be governed by the MDI HR Policy and Service Rules, 2009 (Revised) as may be in force from time to time."

On 28th October 2014, a letter was addressed to the Appellant by the Registrar & Secretary of the Respondent No. 2 Institute informing him that the Board of Governors of the Respondent No. 2 Institute had at a meeting held on 28th October, 2014 decided that his appointment as Director of the Respondent No. 2 Institute would cease with effect from the afternoon of 28th October, 2014. The letter further stated that as per the terms and conditions of the letter of appointment dated 17th January 2012, a cheque for the amount towards salary in lieu of the notice period of three months had been enclosed therein.

Proceedings in the Delhi High Court

Initially, the Appellant filed a writ petition bearing number W.P. (C) 7944 of 2014 in the High Court of Delhi challenging the decision of the Respondent No. 2 Institute to terminate his services. The said writ petition came to be dismissed on 27th January 2015 by a learned Single Judge of the High Court of Delhi on the ground of lack of territorial jurisdiction. It was held that merely because the Board of Governors of the Respondent No. 2 Institute sat at Delhi and took a decision to terminate the services of the Appellant, it would not confer jurisdiction upon the Delhi High Court since that decision was communicated to the Appellant from the office of the Respondent No. 2 Institute at Gurugram, where the decision had to be implemented.

Aggrieved by the said decision, the Appellant filed LPA No. 59 of 2015, which was allowed by the Division Bench (DB) of the High Court of Delhi on 20th February, 2015. The DB held that part of the cause of action had arisen at Delhi since the decision to terminate the Appellant's services was taken there. Consequently, the writ petition was remanded to the learned Single Judge to be heard on merits.

According to the Appellant, subsequent thereto on 23rd February, 2015, when the said writ petition was again heard, the learned Single Judge again expressed a doubt on the jurisdiction of the Delhi High Court and on advice the Appellant withdrew the writ petition with liberty to approach either the competent authority at Gurugram or the High Court of Punjab and Haryana for seeking appropriate reliefs. The learned Single Judge, while allowing the said W.P. (C) No. 7944 of 2014 to be withdrawn, extended the time afforded by the Respondent No. 2 Institute to the Appellant to continue in the accommodation allotted to him up to 31st March, 2015 subject to the Appellant seeking interim orders in that regard in the proceedings to be instituted by him in the competent Court.

Proceedings before the learned Single Judge

Thereafter, the Appellant filed CWP No. 4177 of 2015, which came up for hearing before the learned Single Judge on 10th March, 2015. While directing the notice of motion to be issued in the petition, it was directed that the interim protection granted by the Delhi High Court by order dated 23rd February, 2015 would stand extended till the next date of hearing with the rider that in case the writ petition were to be dismissed, the Appellant would have to pay market rent for the house in which he would stay after 1st April, 2015.

Subsequently, the Respondent No. 2 Institute and its officers filed CM- 4755-CWP-2015 seeking dismissal of the writ petition with a prayer for a direction to the Appellant to be relegated to the remedy of an appeal before the Educational Tribunal in terms of the notification dated 2nd March, 2015 issued by the Government of Haryana. Enclosed with the said application as Annexure A-1 was a copy of the said notification dated 2nd March 2015, which reads as under:

"No. 24/21-2011 C-IV (3) - In pursuance to the judgment dated 30-10-2002 of the Hon'ble Supreme Court of India in TMA Pai Foundation and others versus State of Karnataka 2002 (8) SCC 481 wherein the Hon'ble Court has observed that for the redressal of grievances of employees of aided/unaided educational institutions who are subjected to punishment or termination of services, a mechanism will have to be evolved by constituting appropriate tribunals. The right of filing appeals would lie before the district and session judges or Additional district and session judges till the tribunals are set up.

It is notified that the District and Session Judges in the State of Haryana have been authorized to hear the appeals of the employees of aided/unaided educational institutions against decision of management within their jurisdiction, by the Hon'ble Punjab and Haryana High Court, Chandigarh vide No.23414 Gaz.II/IX.C.II dated 10-08-2005. The tribunals already notified by the Hon'ble High Court will also bear appeals of Employees of aided/unaided colleges against the orders of management."

Impugned order of the learned Single Judge

In the impugned judgment dated 29th May, 2015, the learned Single Judge first held that a plain reading of the aforementioned notification led to the irresistible conclusion that it covered within its ambit appeals by employees in the matter of their services with "any aided and unaided Educational Institution in the State of Haryana". Discussing the decision of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, the learned Single Judge held that the Supreme Court had in the said decision made no distinction between private colleges and other institutions. It had issued directions for setting up of Educational Tribunals for adjudicating the disputes of employees of all aided and unaided educational institutions.

The learned Single Judge also referred to the decision of this Court in Management of S.D. Model Senior Secondary School v. District Judge-cum-Service Tribunal 2014 (2) PLR 89. The learned Single Judge agreed with the contention of the Appellant that the Respondent No. 2 would be an amenable to the writ jurisdiction of this Court under Article 226 of the Constitution but declined to entertain the writ petition on the ground of existence of an efficacious alternative remedy. The learned Single Judge in this context referred to the decisions in Thansingh Nathmal v. Superintendent of Taxes (1964) 6 SCR 654; Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Limited (1985) 1 SCC 260; Modern Industries v. Steel Authority of India Limited (2010) 5 SCC 44; and Union of India v. Satyawati Tondon 2010(8) SCC 110. It was observed by the learned Single Judge that no special circumstances had been shown by the counsel for the Appellant which would compel the High Court to interfere in exercise of its jurisdiction under Article 226 of the Constitution of India. It was further observed that relegation of the Appellant to the remedy before the Educational Tribunal would not be prejudicial to any of the parties. A direction was issued to the Educational Tribunal to decide the appeal of the Appellant expeditiously but not later than 9 months from the date of filing of such appeal.

The learned Single Judge also directed that the interim protection granted to the Appellant by the order dated 10th March, 2015 would continue for a period of 15 days to enable the Appellant to prefer an appeal before the Educational Tribunal in the meanwhile.

Proceedings in the present appeal

When the present appeal was listed before this Court on 10th June, 2015, the DB was of the view that although the State of Haryana had not been impleaded in the writ petition, its stand in relation to the notification dated 2nd March, 2015 would be relevant. This was in context of the contention of the Appellant, as noted in the order, that the said notification applied only to the appeals pertaining to the employees of aided or unaided private educational institutions, whereas the Respondent No. 2 was not one such institution. The DB while adjourning the case to 6th July, 2015 directed that the interim protection already granted would continue.

On 6th July, 2015, the State of Haryana was impleaded as Respondent No. 6 in the appeal and notice of motion was issued. The interim order was directed to continue.

On 14th March, 2017 the DB disposed of CM No. 263-LPA of 2017 filed by the Respondent No. 2 Institute seeking to be relieved from the undertaking recorded before the learned Single Judge on 10th March, 2015 that no appointments to the post of Director and Professor (Marketing) in the Respondent No. 2/Institute would be made except with the leave of the Court. Further, a direction was sought to the Appellant to vacate the house allotted to him as Director and that he should be asked to shift to the house meant for the Professor's category. The DB in its order dated 14th March, 2017 noted inter alia as under:

"As regards to the permission sought by Respondent No. 2-Institute to fill up the post of Director, it is undisputable that the Appellant's terms of five years would have expired on 16th January, 2017. The question whether or not the appellant, in the event of acceptance of his appeal or if this Court finds that the order of termination of his services is palpably illegal, is entitled to an actual term of five years to serve the Institute as a Director, is sub-judice and shall be decided at the time of final adjudication of Appellant's right. As of now we feel that Respondent No. 2-Institute can be permitted to fill up the post of Director without prejudice to the rights of the Appellant and subject to final outcome of this appeal."

As regards the issue concerning the vacation of the house earmarked for the Director, a direction was issued to the Respondent No. 2 Institute to allot a house to the Appellant in the Professors' category within two weeks and further permitted him to move into such house within one month thereafter. It was observed that the Appellant would be at liberty to compete for the post of Director without prejudice to his legal rights and that the Selection Committee would consider his candidature uninfluenced by past incidents.

By a subsequent order dated 16th January, 2018, after taking note of the report of a Local Commissioner (LC) appointed to examine the status of the house allotted to the Appellant as Professor, the DB directed that after necessary repairs were made to the doors and windows, as pointed out by the LC in her report, the Appellant would shift to the newly allotted house on or before 28th January, 2018 and hand over the vacant possession of the premises under his occupation to the Estate Officer on 29th January, 2018.

A fresh application (CM-1585-LPA-2020) was filed on 7th September, 2020 by the Respondent No. 2 Institute stating inter alia that the Appellant had over the years issued a string of public statements on social media against the Respondent No. 2 Institute, in an attempt to vilify its image. It was further stated that the writ petition filed by the Appellant had become infructuous since the Appellant could neither be considered qualified to be appointed as Director of the Respondent No. 2 Institute nor could he expect to be reinstated in any capacity in view of his subsequent conduct. Inter alia the prayers in the application were for a direction to the Appellant to immediately vacate the accommodation allotted to him inside the campus of the Respondent No. 2 Institute, for directing him to pay the rent of the said accommodation from 1st April, 2015 onwards, to remove all objectionable and derogatory posts and publications against the Respondent No. 2 Institute and its office bearers made on social media platforms and offer an apology on social media profiles and platforms that allegations made against the Respondent No. 2 Institute were untrue.

When this application was listed before this Bench on 14th September, 2020, the Court was of the view that since the main point in the appeal was a short one, the appeal itself would be heard on the following date along with all pending applications.

The Court today has heard the submissions of Mr. Vivek Kohli, learned Counsel for the Appellant, Mr. D.S. Patwalia, learned senior Counsel for the Respondents No. 2 to 5 and Mr. Ankur Mittal, learned Additional Advocate General for the State of Haryana.

Stand of the State of Haryana

It must be noted at the outset that the stand of Mr. Ankur Mittal, Additional Advocate General, Haryana was that the aforementioned notification dated 2nd March, 2015 of the Government of Haryana governed all aided and unaided educational institutions, not limited to the private ones. Specific to the case on hand, Mr. Mittal submitted that the appeal to be filed by the Appellant challenging the termination of his services as Director the Respondent No. 2 Institute would be maintainable before the Educational Tribunal, constituted by the said notification. Mr. Mittal submitted that the understanding of the State of Haryana was that the decision of the Supreme Court in TMA Pai Foundation (supra) inter alia directing the States to constitute an Educational Tribunal was to be understood as providing a forum for redressing the grievances of the employees of all the institutions whether aided or unaided.

Ambit of the notification

Mr. Vivek Kohli, learned counsel for the Appellant, nevertheless submitted that the learned Single Judge erred in coming to the aforementioned conclusion, which according to Mr. Kohli, was based on an incorrect understanding of the judgment of the Supreme Court in TMA Pai Foundation. The specific submission was that if the relevant paragraph in TMA Pai Foundation is read in the context in which the said issue was decided, it would become clear that the directions in regard to the setting up of Educational Tribunals was only to deal with disputes of the employees of aided or unaided 'private' institutions whereas the Respondent No. 2 Institute was not one. In support of this submission, he referred to a reply dated 13th January, 2020 of the First Appellate Authority under the Right to Information Act, 2005 (RTI Act), which inter alia showed that the Respondent No. 2 Institute, was floated by Respondent No. 1, which in turn was set up under an Act of Parliament. It was further pointed out that the Respondent No. 2 Institute had received grants and loan from Respondent No. 1, which was itself an instrumentality of the State under Article 12.

In the considered view of this Court, the aforementioned reply received pursuant to the application of the Appellant under the RTI Act is not helpful in understanding the true purport of the notification dated 2nd March, 2015 issued by the Government of Haryana. In other words, the question whether the Educational Tribunal instituted thereunder can deal with disputes concerning the services of the employees of only 'private' aided or unaided educational institutions cannot be answered by referring to the aforementioned reply received to the application of the Appellant under the RTI Act. That has to be answered by referring to the relevant paragraphs of the decision in TMA Pai Foundation. While it is true that in many of the paragraphs in the decision in TMA Pai Foundation the discussion is in the context of private unaided/aided institutions, it is not possible to accept that the directions issued for the setting up of Educational Tribunals were limited to private aided or unaided educational institutions.

In para 64 of the decision in TMA Pai Foundation, there is a general discussion on educational institutions, and in that context, there is a further discussion on what can happen in case of a private institution. The entire para 64, which is what Mr. Kohli urged the Court to examine, reads as under:

"64. An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster- parents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the Management of a private unaided educational should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriately relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State -- the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service."

It is difficult to accept the plea of Mr. Kohli that all the observations in the aforementioned paragraph relate only to private aided or unaided institutions. This becomes clearer when the operative directions in para 162 in answer to question 5 (C) are examined. The said question and the answer thereto do not appear to be restricted to private unaided or aided educational institutions. The entire question and answer read as under:

"Q5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principal including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?

A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the mater of day-to- day management like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.

For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge.

The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.

Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the state, without interfering with the overall administrative control of the management over the staff.

Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee." (emphasis supplied)

The above directions do not qualify the expression 'aided and unaided institutions' with the word 'private'. This Court is therefore of the view that the learned Single Judge was right in interpreting the aforementioned notification dated 2nd March, 2015 of the Government of Haryana and in the conclusion that the appeal filed by the Appellant against the termination of his services would be maintainable before the Educational Tribunal.

Maintainability of the writ petition

Mr. Kohli then submitted that even assuming the Appellant had an alternative remedy before the Educational Tribunal, the learned Single Judge nevertheless ought to have entertained the writ petition since the termination of the Appellant's services was in gross violation of the principles of natural justice and contrary to the rules governing his services. Mr. Kohli drew attention of the Court to the MDI HR Policy and Service Rules 2009, which lay down the procedure for termination of services, which according to him was not followed. According to him, the impugned letter dated 28th October, 2014 terminating his services was without reasons, and without calling for any explanation from the Appellant or affording him any opportunity of being heard. Mr. Kohli placed extensive reliance on the decision of the Supreme Court in Satwati Deswal v. State of Haryana, 2010 (1) SCC 126.

This Court has examined the aforesaid decision in Satwati Deswal (supra), which was an appeal against the decision of this Court dismissing the writ petition filed by the appellant therein on the ground of maintainability and relegating the appellant therein to the remedy of a statutory appeal. In noticing the facts of the case, the Supreme Court observed that the alternative remedy of filing an appeal to the said appellant under the rules was before the 'Appellate Authority'. Clearly, this was the Appellate Authority constituted under the rules applicable to the services of the appellant in that case, who was as lecturer in a recognized school in the State of Haryana. There is a distinction to be drawn between the Appellate Authority under the rules and an independent 'Tribunal'. It is in the above context in which the following observations were made by the Supreme Court in Satwati Deswal (supra):

"5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well settled that a writ petition can be held to be maintainable even if an alternative remedy available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the act were in question."

The Court is unable to view the above observations as mandating that in all cases where there is a grievance that the order of termination of services is in gross violation of the principle of natural justice, or of the applicable rules, the High Court has to mandatorily exercise its jurisdiction under Article 226 of the Constitution of India notwithstanding the availability of an efficacious alternative remedy. The language in the above paragraph is that a writ petition "can be held to be maintainable" and not that it shall be maintainable even if an alternative remedy is available. Indeed, the Educational Tribunal in the instant case is competent to examine the challenge to the validity of the order of termination on the above grounds.

At this juncture, it requires to be clarified that the question in cases such as the present one is not whether the High Court has the jurisdiction to interfere. Given that imparting of education could be viewed as rendering a public function, any institution engaged in that activity might be amenable to the writ jurisdiction of a High Court under Article 226 of the Constitution. This is no longer res integra and illustratively the decision of the Supreme Court in Shri Anandi Mukta Sadguru v. V.R. Rudani AIR 1989 SC 1607 could be referred to. However, the real question is whether the High Court, despite having jurisdiction, can decline to exercise its discretion to interfere in the facts and circumstances of a case. For instance, the alternative remedy might at a given point in time be unavailable to the petitioner for a variety of reasons like, absence of the minimum quorum, or a law and order situation that makes physical access to the forum difficult and so on. These again are illustrative instances. It would obviously depend on the facts and circumstances of every case. This Court is of the view, that as far as the present case is concerned, the learned Single Judge was right in concluding that there were no compelling circumstances to persuade the High Court to exercise its writ jurisdiction considering that the Appellant had an efficacious alternative remedy before the Educational Tribunal.

Nature of appointment

There is yet another issue in the present case arising from the impugned order of termination of services of the Appellant, as pointed out by Mr. Patwalia, learned senior Counsel appearing for the Respondent No. 2 Institute. His contention is that while the initial appointment of the Appellant as Professor was on permanent basis and subject to the rules governing the Respondent No. 2 Institute, the subsequent appointment as Director was a fresh one and purely contractual and was terminable on the giving of 3 months' notice on either side or pay in lieu of such notice. According to Mr. Patwalia, the clause pertaining to termination of services as set out in the letter dated 17th January, 2012 was the governing clause and it was only for 'other matters' that MDI HR Policy and Service Rules, 2009 would apply. In this context, he referred to the decision dated 21st March, 2013 of the DB of this Court in LPA No. 1308 of 2012 (Dharmender Sharma v. Union of India) affirming the decision of the learned Single Judge in that case holding that a writ petition seeking the enforcement of a contract of service was not maintainable. It was observed that the appropriate remedy was to seek damages in common law.

This Court would not like to express an opinion on the above contention since it would arise for consideration by the Educational Tribunal, which would be deciding the appeal to be filed by the Appellant, challenging the termination of his services. It would be entirely up to the said forum to further determine what appropriate relief, if any, should be granted.

Conclusion

The result of the above discussion is that this Court finds no ground to interfere with the impugned judgment of the learned Single Judge.

As far as the application filed by the Respondent No.2 Institute seeking a direction to the Appellant to vacate the premises under his occupation is concerned, it is made clear that with the appeal having been dismissed, the Appellant has to necessarily vacate the premises under his occupation. Accordingly, a direction is issued to the Appellant to hand over the vacant and peaceful possession of the premises under his occupation to the Respondent No. 2 Institute on or before 15th October, 2020.

As regards any arrears of payment purportedly owed by the Appellant to the Respondent No. 2 Institute for the occupation of the premises allotted to him, as well as any relief in connection with his allegedly derogatory posts on social media and elsewhere, it will be open to the Respondent No. 2 Institute to initiate proceedings in the appropriate forum in accordance with law. The Court also reserves the right of the Appellant to all the defences he may have in such proceedings.

The Educational Tribunal is requested to decide the Appellant's appeal within six months from the date of its filing uninfluenced by any observations touching on the merits of the case either in this judgment or that of the learned Single Judge.

The appeal is dismissed and the pending applications are disposed of in the above terms, but with no order as to costs.