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Praduman Kumar JaIn Vs. All India Institute of Medical Sciences and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 50 of 1971
Judge
Reported inILR1972Delhi256
ActsConstitution of India - Article 226; All India Institute of Medical Sciences Regulations, 1958 - Regulation 4(9); Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rules 14
AppellantPraduman Kumar Jain
RespondentAll India Institute of Medical Sciences and ors.
Advocates: G.N. Dixit,; R.N. Dix,; J.P. Gupta,;
Excerpt:
constitution of india - article 226--all india institute of medical sciences regulation 1958 --regulation 4(9)--breach of--contract of personal service--enforcement of--termination of services of an employee in breach of regulations--employee cannot seek relief of reinstatement either in a suit or in proceedings under article 226 of the constitution--central civil services (classification, control & appeal) rules 1965, rule 14.; the appellant was an employee of the respondent institute constituted under all india institute of medical sciences act 1956. his service conditions were governed by the all india institute of medical sciences regulations 1958 framed by the institute in exercise of the power conferred under section 29 of the aforesaid act. the present appeal arises out of a..........referred to as 'the regulations'. inter alia. the regulations provided for the meetings of the institute (regulation 4); for the constitution of the governing body (regulation 5): for the powers and junctions of the governing body (regulation 6); for the meetings of the governing body (regulation 8) and other matters. regulation 4(9) provides that the president may include in the agenda at anytime, before or during a meeting, fresh items of business supplementary to those included in the agenda which would also be taken up for consideration. regulation 8(9) provides that any matter not included in the agenda and of which the notice mentioned in sub-regulations (8) has not been given, may be considered at a meeting of the governing body with the permission of the chairman.(5) one of.....
Judgment:

S.N. Andley, J.

(1) This is an appeal against the judgment dated February 26, 1971, of the learned Single Judge dismissing the petition (Civil Writ No. 961 of 1970) filed by the appellant for the issue of an appropriate writ to quash the resolution dated August 8, 1970 of the respondent Institute deciding to terminate the services of the appellant and to restrain the respondents from taking the follow up action in response to the aforesaid resolution

(2) The All India Institute of Medical Sciences, hereinafter referred to as 'the Institute', was constituted by the All India Institute of Medical Sciences Act, 1956 (Act No. 25 of 1956), hereinafter referred to as 'the Act'. Inter alia, the Act provides for the composition of the Institute (section 4); for a Governing Body and other Committees of the Institute (section 10); Staff of the Institute (section II); Functions of the Institute (section 14) including the function to institute, and appoint persons to, professorship readerships, lectureships and posts of any description in accordance with regulations; Power of the Central Government to make rules after consultation with the Institute (section 28) and the power of the Institute, with the previous approval of the Central Government, to make regulations consistent with the Act and the rules made there under (section 29). It is provided by section 29(1) that the Institute could make regulations with respect, inter alia, to the tenure of office, salaries and allowances and other conditions of service of its Director and other officers and employees.

(3) In exercise of the power conferred by section 28 of the Act, the Central Government made rules called the All India Institute of Medical Sciences Rules, 1958, hereinafter referred to as 'the Rules'. Rule 7 empowered the Institute subject to certain conditions to create posts. It further provided that appointment to the post of Director and posts carrying an initial salary ofRs. 800.00 or more per mensem shall be made by the Institute with the prior approval of the Government.

(4) In exercise of powers conferred by section 29 of the Act, the Institute, with the previous approval of the Central Government, made the All India Institute of Medical Sciences Regulations, 1958. hereinafter referred to as 'the Regulations'. Inter alia. the Regulations provided for the meetings of the Institute (Regulation 4); for the constitution of the Governing Body (Regulation 5): for the powers and Junctions of the Governing Body (Regulation 6); for the meetings of the Governing Body (Regulation 8) and other matters. Regulation 4(9) provides that the President may include in the agenda at anytime, before or during a meeting, fresh items of business supplementary to those included in the agenda which would also be taken up for consideration. Regulation 8(9) provides that any matter not included in the agenda and of which the notice mentioned in sub-regulations (8) has not been given, may be considered at a meeting of the Governing Body with the permission of the Chairman.

(5) One of the posts in the Institute is that of Registrar (Academic). The incumbent of this post went out on deputation retaining his lien and the Finance Committee of the Institute recommended, inter alia, that ad hoc arrangements may be made to appoint some one to work as Registrar (Academic). Accordingly an advertisement was issued for making this appointment. After interview, the appellant, by letter dated March Ii, 1968, was offered 'a temporary post of Registrar (Academic)' on a pay of Rs. 700.00 per mensern plus allowances in the 'revised pay scale of Rs. 700-40-1100-50/2-1250. This letter of offer states that the post is temporary and that the appointment of the appellant is temporary and may be terminated at any time with a month's notice by either side without assigning any reason. The other terms and conditions are not material to the controversy in this appeal.

(6) A resolution was passed by the Institute in its meeting on August 8. 1970, to terminate the services of the appellant. The question of termination of the services of the appellant was admittedly not included either in the original agenda or in the supplementary agenda of this meeting which was circulated. Jn per'uame of this resolution, a notice of termination of the services of the appellant was issued by the Institute which, according to the respondents, was served upon the appellant on August 17. 1970, but which, according to the appellant. was never served upon him. Immediately after passing of this resolution, the appellant moved the writ petition in this Court. He challenged the resolution on the ground that it was malafide, that the afore- said resolution dated August 8. 1970. was a nullity as having been passed in violation of Regulation 4(9); that the resolution was a nullity also because the Governing Body of the Institute and not the Institute Body was the appointing and disciplinary authority in so far as the appellant was concerned and, thereforee, the said resolution having been passed by the Institute Body was without jurisdiction and the aforesaid resolution was a nullity as, being by way of punishment, it was vocative of Article 311 of the Constitution; rule 14 of the Central Civil Services (Classification. Control and Appeal) Rules which have been applied to the employees of the Institute and the principles of natural justice. The appellant, thereforee, prayed that the aforesaid resolution and the follow up notice and other steps in implementation thereof be quashed; that the respondents be ordered to desist from directing the appellant from delivering charge of his post and vacating the premises in his occupation: to treat the appellant as an incumbent of a permanent post confirmed on the post of Registrar (Academic) after successful completion of probation period and for other incidental reliefs.

(7) Mr. Dixit. learned counsel for the appellant, frankly staled that the attack on the validity of the impugned resolution on the basis of violation of Article 311 of the Constitution could not be urged by him in view of the decision of the Supreme Court : (1970)IILLJ499SC in re : Dr. S.L. Agarwal Vs The General Manager. Hindustan Steel Ltd. (1) It may here be stated that the learned Single Judge did not accept any of the contentions of the appellant and dismissed his writ petition.

(8) After conclusion of the arguments on behalf of the appellant on all the points raised in the appeal, Mr. B. Sen, learned counsel for the respondents, urged that assuming that all the contentions were valid. none of the reliefs prayed for by the appellant could be granted particularly when the reliefs are prayed for in a petition under Article 226 of the Constitution of India. For this contention his main reliance is on the decision of the Supreme Court : (1970)ILLJ32SC in re : Executive Committee of U.P. State Warehousing Corporation, Lucknow Vs Chandra Kiran Tyagi (2). After hearing Mr. Sen on this point we called upon Mr. Dixit to reply without hearing Mr. Sen on the validity of the other contentions.

(9) Since we are of the opinion that Mr. Sen's contention has to be accepted, we will not deal with the contentions of the appellant lest he should be prejudiced by our findings in case he takes recourse lo a Civil Court for the relief that may be open to him against the respondents.

(10) The point that has been urged on behalf of the respondents is that. however one may took at the reliefs prayed for in the petition, the real relief is the relief of reinstatement and. if that is so, it cannot be granted in view of the aforesaid decision of the Supreme Court in the U.P. Warehousing case referred to earlier. We find substance in this plea.

(11) Assuming that the notice of termination of services was not served upon the appellant he has filed the writ petition on the basis that his services have been terminated by the impunged resolution dated August 8, 1970, and that is why he is asking for the quashing of the follow up notice and other steps in implementation of the impugned resolution, for a writ directing the respondents to desist from asking him to deliver charge of his post as Registrar (Academic) and to treat him as an incumbent of a permanent post confirmed on the post of Registrar (Academic) and to pay in continuity the salary and allowances due to him from time to time. These prayers clearly show that he is praying to this Court to grant an appropriate writ whereby the respondents will be obliged to retain him in service and not to treat his services as having been terminated by the impugned resolution. In fact. in paragraph 10 of the petition he is stating that in the impugned resolution it was illegally noted that the services of the appellant be terminated after notice of one month. There is. thereforee, no escape from the conclusion that if the prayers in the petition are granted, the result will be an order of reinstatement or, in other words, an order directing the respondents to continue the contract of employment between them and the appellant and not to terminate his services.

(12) Four cases are in point in deciding the objection which has been raised on behalf of the respondents that this Court cannot grant the prayers amounting as they do to a prayer for reinstatement of the appellant. The first is the U.P. Warehousing Corporation case referred to earlier; the second is the judgment of the Supreme Court dated april 27. 1971, in C.A. No. 1171 of 1967 in re : Indian Airlines Corporation Vs Sukhdeo Rui; (3) the third is a decision of a Division Bench of this Court (H.R. Khanna C.J. and P.M. Khanna J.) dated May 18. 1971. in Civil Writ No. 339 of 1971. in re : K.L. Sharma Vs The Secretary. Food Corporation of India and another (4) and the fourth is a decision of a Full Bench of this Court reported in in re : Dr. Mohd. Khan Durrany Vs The Principal (Shri Tulsi Ram Shivaji College and others (5).

(13) The learned Single Judge held that in this case a breach of the Regulations amounted at best to a breach of contract of service and the relief of reinstatement could not be granted to the appellant. He relied upon the U.P. Warehousing Corporation case (supra) and some other cases for his conclusion. In the U.P. Wareshousing Corporation case (supra), the employee had filed a suit against his dismissal in violation of Regulation No. 16(3) framed by the Corporation constituted under the Agricultural Produce (Development and Warehousing) Corporation Act, 1956. This Regulation postulated an enquiry against an employee whose services were sought to be terminated. In this Act section 52 gave power to the appropriate Government to make rules to carry out the purposes of the Act and section 53 gave power to the Board to make Regulations not inconsistent with the Act and the Rules framed there under. These sections are similar to sections 28 and 29 of the Act with which we are concerned. The contention before the Supreme Court was that even if the order of dismissal had been passed in violation of Regulation 16(3), the decree granting a declaration for reinstatement was illegal and amounted to enforcing a contract of personal service. The Supreme Court noticed Vine's case reported in 1956-3 All England Reports 939 and other English decisions as also earlier decisions of the Supreme Court and came to the conclusion,-

'THAT no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognised exceptions to this rule and they are : To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.'

(14) The Supreme Court did not give to the Regulations the status of a statute and equated them to a contract of service so far as they related to the employees of the Corporation. In conclusion the Supreme Court observed,-

'UNDER those circumstances, a violation of Regulation 16(3), as alleged and established in this case. can only result in the order of dismissal being held to be wrongful and, in consequence, making the appellant liable lor damages. But the said order can- not be held to be one which has not terminated the service, albeit wrongfully or which entitles the respondent to ignore it and ask for being treated as still in service.'

(15) The U.P. Warehousing Corporation case and other cases came up for consideration before the Supreme Court in the Indian Airlines Corporation case referred to earlier. In this case it was an admitted fact that the services of the employee had been terminated in breach of the procedural safeguards provided in the Regulations and the question posed by the Supreme Court was whether in such cases a declaration of reinstatement could be granted. The Indian Airlines Corporation was constituted by the Air Corporation Act, 1953. Regulations have been made by the Corporation in pursuance of the power conferred by section 45 of this Act. This Act also contains provisions similar to the provisions contained in sections 28 and 29 of the Act with which we are concerned. The Corporation, as in the case of the Institute, had been given the power to employ its own officers and other employees on terms and conditions provided by it in Regulations made under section 45. The Supreme Court was of the opinion that the Regulations contain the terms and conditions which govern the relationship between the Corporation and its employees and though made under the power conferred by the statute, they merely embody the terms and conditions of service in the Corporation but do not constitute a statutory restriction as to the kind of contracts which the Corporation can make with its servants or the grounds on which it can terminate them. The Regulations made by the Corporation were not equated to a statute imposing statutory obligations.

(16) Mr. Dixit sought to distinguish these two decisions on the ground that the Warehousing Corporation and Indian Airlines Corporation cases were based on section 21(d) of the Specific Relief Act and arise out of civil suits and not in a writ under Article 226 of the Constitution. The distinction pointed out is without a difference. We fail to see how a contract of service if it has no statutory force and does not confer a status can be ordered to be specifically enforced by reinstatement in a writ if it cannot be so enforced in a suit. In any case a Division Bench of this Court in the decision referred to above applied the Indian Airlines Corporation case in writ proceedings. In this case the employee was an employee of the Food Corporation of India which was constituted under the Food Corporation Act, 1961 and whose services were terminated. Under this Act, section 45 empowered the Corporation to make Regulations with the previous approval of the Central Government which is in the same terms as section 29 of the Act with which we are concerned. The employment was terminated in breach of the Regulations which had been framed by the Corporation. The writ petition was dismissed. It is true that the question whether the aforesaid principles could be applied in the writ jurisdiction of this Court was not discussed in this judgment. However, questions similar to the questions raised in this appeal came up for consideration before a Full Bench of this Court in Durrany's case referred .'to earlier. Durrany was appointed as a lecturer in the Shivaji College. His services were terminated by the Governing Body of the Corporation. Durrany filed a writ in this Court challenging the validity of his termination on the ground that (1) his appointment was permanent and was not temporary or on probation (2) he was governed by the terms of the form of service agreement embodied in the Delhi University accordance Xii as the Shivaji College was a Government maintained college and, under the Ordinance his services could be terminated only for misconduct or with three months' notice and for good cause and after affording him an opportunity to show cause and (3) the Principal of the College was biased against him and terminated his services mala fide and by way of punishment.

(17) The Full Bench observed :--

'IN the hierarchy of subordinate legislation, regulations made under a statute usually stand below the rules. (They require the previous approval of the Government, e.g. under section 54 of the Agricultural Produce (Development and Warehousing) Corporation Act, 1956 and section 49(2)(b) of the Life Insurance Corporation Act, 1956. They cannot be inconsistent with the rules. While the rules are generally made by the Government, the regulations are made by a body which is a creature of the statute itself with its powers limited by the statute. While the rules apply to all matters covered by the statute, the scope of the regulations is- narrower being usually confined to internal matters of the statutory body such as the conditions of service of its employees. When the regulations standardise the conditions of service of the employees or purport to formulate them, their character is further diluted by the nature of the subject-matter. For, service or employment is basically a contract which is deeply rooted in private law.'

(18) The Full Bench, thereforee, came to the conclusion that conditions of service contained in the regulations amount to a contract in so far as the relationship of master and servant is concerned. The Full Bench was of the view that the termination of the services of a teacher in contravention of model conditions of service and Ordinance xviii cannot be said to be the violation of a mandatory statutory obligation and the remedy for such wrongful termination is by way of damages and not by way of reinstatement.

(19) The breach of Regulation 4(9) of the Regulations framed by the Institute being a breach of the regulation of its internal management cannot be equated to the breach of a statutory obligation nor can the breach of rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules which have been applied to the employees of the Institute which imposes an obligation to afford a reasonable opportunity to the employee whose services are sought to be terminated be equated to the breach of a statutory obligation and it is, at best, a breach of the conditions of service equated to the breach of a contract of service. Being so, it cannot give rise to a cause of action entitling the appellant to pray for reinstatement whether in a suit or in the writ filed by him.

(20) The appeal is, thereforee, dismissed with costs. Counsel's fee Rs. 250.00.


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