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Subramaniam Swamy Vs. Indian Institute of Technology - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 163 of 1983
Judge
Reported in28(1985)DLT524; 1985RLR529
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Specific Relief Act, 1963 - Sections 14(1)
AppellantSubramaniam Swamy
RespondentIndian Institute of Technology
Advocates: Soli J. Sorabjee,; H.N. Salve,; R.S. Swamy,;
Cases ReferredManohar Lal Bhatia v. Indian Institute of Technology
Excerpt:
.....of the teaching staff and the administrative staff and the union was agitating for confirmation of professor swamy, as their sole remaining issue after their other demands were satisfied. it was then stated that he had achieved a measure of success (in organising the employees) and 'there was no reason to suppose that his sustentative appointment would prove a deterrent rather than an encouragement. vijay narayan vajpayee (1980)illj222sc the supreme court held :there is no good reason why, if government is bound to observe the equality clauses of the constitution in the matter of employment and in its dealings with the employees, the corporations set up or owned by the government should not be equally bound and why, instead such corporations could become citadels of patronage and..........is of no avail to the respondent. in the first place the decision is not an authority to non-suit a probationer at the threshold on the ground that his suit is not maintainable. but even the said decision recognises that where the probation is terminated by way of punishment provisions of article 311(2) will have to be complied with. in samsher singh v. state of punjab and another : (1974)iillj465sc it was laid down: 'if the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to the protection of article 311. the substance of the order and not the form would be decisive,'the court further observed : 'evenan innocuously worded order terminating the service may in the facts and.....
Judgment:

S.B. Wad, J.

(1) This Revision Petition is filed by Dr. Subramaniam Swamy against the order of the Additional District and Sessions Judge, Delhi, dated 17th September, 1982. That order was passed in the appeal filed by Dr. Swamy against the order of Sub-Judge 1st Class, Delhi, dismissing the suit of Dr. Swamy. The suit was filed by Dr. Swamy against the Indian Institute of Technology, Delhi, for a declaration that the order of termination of his service passed on 11-12-1972 and the resolution of the Board of the Institute dated 4-12-1972 and void and illegal. He had further claimed for declaration that his status as a permanent Professor in Economics remained unaffected by the order of termination and that he remained in service of the Institute.

(2) Dr. Swamy returned to India after working as an Assistant Professor, Department of Economics, Harvard in August, 1969. The Director of the respondent-institute offered him the assignment as a Professor in Economics. The Selection Committee of the Institute met on 4-12-1969 and recommended an appointment as a Visiting Staff Member in the Department of Humanities and Social Sciences on the starting salary of Rs.1,100.00 premonition the scale of Rs. 1100-1600.00 for the next semester up to June, 1970. The Committee interviewed Dr. Swamy. The Committee notes in the minutes : 'in addition to his internationally recognised expertise in the quantitative techniques of economic analysis in the field of industrial economics and regional economics, with special reference to India and China, Dr. Swamy has held with distinction

(3) On 5-12-1969 Dr. Swamy started working on the visiting assignment. In March, 1970 the Institute re-advertised the post of a Professor in Economics. By Office Mamoranda from time to time he was asked to continue in the post of a Professor till October, 1971. On 27-9-1971 the Selection Committee of the Institute met for the permanent appointment to the post of a Professor in Economics. The Selection Committee considered about 40 applications and selected Dr. Swamy. The Committee recommended the Dr. Swamy be offered the chair of Professor of Economics in the Institute at Rs. l,250.00 . Office Memo. appointing Dr. Swamy to the post of Professor was issued on 9-10-1971. He was appointed as a permanent Professor on probation for a period of one year with effect from 1st October, 1971. Dr. Swamy wanted the period of probation to be waived as he was already working as a Professor for about two years prior to his regular and permanent appointment as a Professor bat his request was turned down by the Institute. On 4-9-1972 the Board of the Institute gave written permission to Dr. Swamy to attend the conference for two weeks at Montreal, Canada. The probation period of Dr. Swamy was extended for three months, that is from 1-10-1972 to 1-1-1973 by office Memo. dated 28-9-1972. On 26-10-1972 the Director of the Institute called for an Explanationn from Dr. Swamy as to why he went abroad without the permission. Dr. Swamy replied that he had a permission in writing from the Board. But before the Director called for the Explanationn of Dr. Swamy the Board of the Institute had requested the Director to make a report on the foreign trip of Dr. Swamy and his alleged participation in the I.I.T. employees agitation. It may be noted that the Board had called this report on 23-9-1972 and on 28-9-1972 the probation period was extended for three months. The Director made his report to the Board on 1-11-1972. The report stated that the employees of the Institute wanted a recognition for their Union for voicing their demands. Their major demand was for departmental promotions to ministerial and technical posts on the basis of senioritycum-fitness. The Board was considering this matter when the probation period of Dr. Swamy was extended. The employees then started agitating against the extension of the period of probation of Dr. Swamy. They held dharnas and daily meetings. Amongst other employees Dr. Swamy addressed the meetings. The Director reported that due to these activities the Institute work had slowed down and there was general dissolution particularly in the administrative section. After the employees were given hearing by the Chairman on their demands the dharna was lifted on 30th October, 1972. After Dr. Swamy had replied to the earlier Memorandum for not obtaining the permission of the Board to go abroad he was asked to explain as to why he went abroad without obtaining the sanction of the Education Ministry. In his reply Dr. Swamy informed that he was never told by the Board to obtain the permission of the Ministry and he presumed that it was the matter between the Board and the Ministry. He also gave instances of the members of teaching staff going abroad without the permission of the Ministry of Education. On 4th December, 1972 the Board of Governors met. The item on the agenda was 'to consider the request of Professor Swamy for grant of permission to serve as Director of a private bank, 'But the Board took up the question of confirmation of Dr. Swamy for decision. The minutes of the meeting apparently show that the Board came to a conclusion 'that the work and conduct of Professor Swamy has not been found to be satisfactory. on the basis of a report made by the Director of Institute which was circulated to the members of the Board. The Board decided that Dr. Swamy should not be confirmed and his services should be terminated. The report of the Director of the Institute referred to in the Board's minutes was produced in the Court by the respondent on the request of Dr. Swamy. The report shows that the Director had repeated his earlier comment that Dr. Swamy was a moving force in organisation the Union of the teaching staff and the administrative staff and the Union was agitating for confirmation of Professor Swamy, as their sole remaining issue after their other demands were satisfied. It was sated that Professor Swamy had recently threatened that if he was asked to leave his un-restrained activities he would even be a greater source of trouble for the Institute. It was then stated that he had achieved a measure of success (in organising the employees) and 'there was no reason to suppose that his sustentative appointment would prove a deterrent rather than an encouragement.' It was then reiterated that Dr. Swamy openly violated the Institute's authority and Government of India's rule in going abroad in September, 1972. Then came the assessment of Dr. Swamy's work and conduct :

'WHILE he had perhaps the necessary competence in economics when he was taken on the faculty there is no evidence to suggest that he has any intention of using his intellect and capabilities to further the aims and objectives of the Institute with the necessary academic objectivity and detachment. On the other hand, if present trends 'are any indication the scope of his unacademic activities will be vastly increased once he is made permanent with consequence detrimental to the normal functioning of an academic institution.'

About his academic performance it was stated :

'WHOEVER,after joining the I.I.T. his motivation of academic or otherwise, is open to serious doubts, some of his recent publications have received adverse comments from eminent economists for lack of academic discipline.'

(4) Apparently on the basis of this adverse report the Board took the decision to remove Dr. Swamy. On 11th December, 1972 he was informed through a Memorandum that his probation period was not extended and that he was not confirmed. The Memorandum further stated :

'ACCORDINGLY,the services of Professor Swamy are hereby terminated with effect from the 11th December, 1972 (A.N) and he will be relieved of his duties in the Institute from that date.'

(5) The decision of the Board and the order of termination are challenged in the suit on various grounds. It is submitted that his non-confirmation and termination are by way of punishment and was stigma on his career. They were further challenged as being malafide. It was urged that they were in breach of principles of natural justice, as the Report of the Director was made behind his back and without giving him an opportunity or notice before the action was taken. Dr. Swamy also claimed that his termination was vocative of the I.I.T.'s Statute and the Regulations. He then claimed that I.I.T. is a State within the meaning of Article 12 and he had a statutes of public employment. Denial/termination of the status was vocative of Articles 14 and 16 of Constitution. As stated earlier the trial Court held that the relationship between Dr. Swamy and the I.I.T, was regulated by a contract and not by statute. The court further held that no relief could be granted to him as It was forbidden by section 14(1)(b) of the Specific Relief Act. The Trial Court also came to the conclusion that the suit was not maintainable as section 30 of the I.I.T. Act provided for arbitration. The First Appellate Court held that Dr. Swamy was holding a temporary post in the Institute and that as a probationer he had no right to the post. The appellate court also held that the relationship was purely contractual as mentioned in the appointment order and was not regulated by the statute. The appellate court then held that the suit was not maintainable under section 14(1)(b) of the Specific Relief Act and also because of section 30 of the I.I.T. Act providing for arbitration. The appeal was dismissed.

(6) The Additional District and Sessions Judge had proceeded on the erroneous assumption that petitioner Swamy was a temporary employee of the I.I.T. This is factually incorrect. The appointment order stated that 'the appointment is permanent but he will be on probation for a period of one year.' The learned Judge further erred in holding that the employment contract was merely a contract of personal service. The law on the point is very clear. In Roshan Lal Tandon v. Union of India : (1968)ILLJ576SC the Court held:

'THE legal position of a Government servant is more one of status than of contract. The half-mark of status is the attachment to a legal relationship of rights and duties imposed by the Public law and not by mere agreement by the partics.'

With the advent of recent decisions of the Supreme Court, Corporations and other statutory bodies are now treated as instrumentalities of State. In U.P. Warehousing Corporation and Others v. Vijay Narayan Vajpayee : (1980)ILLJ222SC the Supreme Court held :

'THERE is no good reason why, if Government is bound to observe the equality clauses of the Constitution in the matter of employment and in its dealings with the employees, the Corporations set up or owned by the Government should not be equally bound and why, instead such Corporations could become citadels of patronage and arbitrary action.'

The Court further observed :

'SOME element of public employment is all that is necessary to take the rule which denies him access to a Court to enforce a contract of employment and denies him the protection of Articles 14 and 16 of the Constitution.

(7) The petitioner was a permanent employee of the I.I.T. which is established by a statute. It is an instrumentality of the State. The petitioner holds a public employment. He cannot, thereforee, be non-suited on the ground that he was working only under the contract of personal service by invoking section 14(1)(b) of the Specific Relief Act. Mrs. Shyamla Pappu, appearing for the I.I.T., has, however, referred to another decision of the Supreme Court in T.C.M. Pillai v. Technology Institute, Guindy : (1971)ILLJ530SC . She submits that termination of a probation of a probationer for unsatisfactory work cannot be regarded as a penal action taken with the object of inflicting punishment on him. She further submits that the probationer has no right to the post. But the said decision is of no avail to the respondent. In the first place the decision is not an authority to non-suit a probationer at the threshold on the ground that his suit is not maintainable. But even the said decision recognises that where the probation is terminated by way of punishment provisions of Article 311(2) will have to be complied with. In Samsher Singh v. State of Punjab and another : (1974)IILLJ465SC it was laid down:

'IF the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to the protection of Article 311. The substance of the order and not the form would be decisive,'

The Court further observed :

'EVENan innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case 'the simplicity of the form of the order will not give any sanctity.'

(8) In short whether termination of probation is by way of punishment or not, whether it is mala fide or not whether it is arbitrary or not will have to be decided on the facts of each case determined on the basis of the evidence produced by the parties. If this is so, the suit of a plaintiff cannot be dismissed without giving him an opportunity to produce evidence and on merits to substantiate his claim. The dismissal of the suit in the present case on the ground of non-maintainability was thus patently contrary to law.

(9) Section 30, sub-section 3 of the Act bars the suits or proceedings in any court in respect of any matter which is required by sub-section (1) to be referred to the Tribunal of Arbitration. The Allahabad High Court in Manohar Lal Bhatia v. Indian Institute of Technology, Kanpur and another, 1971, Allahabad Law Journal 41 held that a matter is required to be referred to the arbitration only when either party makes a demand for arbitration. It was pointed out in that case that neither party demanded arbitration. The same is the case in the present petition. Neither Dr. Swamy nor the I.I.T. had demanded arbitration. But apart from this technical ground the principal question is the interpretation of the arbitration clause which is beyond the competence of the Tribunal of Arbitration. So also the question arising out of the concept of status in an employment contract. Whether the termination is by way of punishment or stigma or whether it is malafide or whether it is in breach of Articles 14 and 16 are essentially problems of public law meant to be decided by the court of law and not by the Arbitrator. These questions go to the root of the order of termination and cannot stop at the stage of arbitration only. I do not think that section 30 of the Act stands in the way of the suit filed by the petitioner.

(10) For the reasons stated above, the Revision Petition is accepted. The impugned judgments of the additional District and Sessions Judge and of the Sub-Judge 1st Class, Delhi, are set aside. The parties shall appear before the learned Sub-Judge for further proceedings in the suit on merits on 26-8-1985. The original records be returned to the trial court. The revision petition is allowed with costs. Counsel Fees Rs. 1.000.00 .


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