MANAGEMENT BOARD OF ANSAL INSTITUTE OF TECHNOLOGY OF CHARANJIV CHARITABLE TRUST Vs. STATE OF HARYANA AND ORS.

JUDGEMENT

(1.) The Management Board of Ansal Institute of Technology of Charanjiv Charitable Trust, Gurgaon has preferred the present writ petition under Articles 226/227 of the Constitution of India for quashing of order dated August 14, 2012 (annexure P-19) passed by the Appellate Authority setting aside the termination order dated May 4, 2010 directing that respondent No. 2 will be entitled to be reinstated Avith all consequential benefits from the date of filing of the appeal. Respondent No. 2 was appointed as Assistant Professor on probation for a period of one year by the petitioner on May 23, 2007 in the basic pay of Rs. 16400/- per month in the pay scale of Rs. 16400-450-20000 with all allowances such as Dearness Allowance, House Rent Allowance, C.C.A. and T.A. etc. admissible as per the norms for a period of five years. After annual review her services were confirmed on August 2, 2008 w.e.f. June 1, 2008 with one annual increment in the said scale. In the month of June 2009, her annual increment was to be reviewed when the Management found certain shortcomings and weaknesses in her conduct. She was due for delivery in the month of September 2009, when a letter dated June 24, 2009 was sent to her alleging that her commitment for the academic/institutional duties was far below the expectations and her general behaviour in dealing with the projects of student was autocratic; she had constant conflict with the fellow colleagues and others in discharging her duties and assigned tasks. Respondent No. 2 submitted a reply on August 13, 2009. Another letter dated September 22, 2009 pointing out some short-comings was again issued. She was not granted annual increment or any benefit of 6th Pay Commission in revision of pay scales. Her services were terminated vide letter dated May 4, 2010 without any notice to her. The writ petition filed by respondent No. 2 in Delhi High Court was withdrawn to enable her to avail alternative remedy before appropriate forum. Respondent No. 2 filed a civil suit in Civil Court at Delhi but said suit was dismissed under Order 7 Rule 11 CPC vide order dated April 20, 2011. The petitioner preferred an appeal against the order of termination. The learned Additional District and Sessions Judge, Gurgaon vide order dated August 4, 2012 has set aside the order of termination, inter alia on the ground that the appeal against the order of termination is maintainable despite the fact that the petitioner institute is not a statutory body and that her services have been terminated on payment of salary of three months in lieu of three months' notice without serving any notice and affording any opportunity of being heard. The petitioner has filed the present writ petition on the following grounds:--

(2.) Learned counsel for the petitioner in support of his contention as placed reliance on Ram Piari v. Municipal Committee and another, 1956 AIR(P&H) 220 Executive Committee of Vaish Degree College Shamli and others v. Luxmi Narain and others, 1976 AIR(SC) 888 Smt. J. Tewari v. Smt. Jawala Devi Vidya Mandir and others, 1981 AIR(SC) 122 M/s. Pearlite Liners Pvt. Ltd. v. Manorma Sirsi, 2004 AIR(SC) 1373.

(3.) In Ram Piari's case , where a municipal employee had been reduced in rank on account of his misconduct and rules of natural justice had not been followed, it was held that contract to render personal service cannot be specifically enforced holding that the theory is that the contract of hiring personal service is of such a personal nature that there cannot be any hope of ultimate and real success by the enforcement of it by law Courts. Assuming that the employer was not justified in demoting the employee, the remedy of the latter is to seek the damages for breach of contract and not to enforce the contract by getting an injunction from the Court. Similarly in Luxmi Narain's case , the Executive Committee of College registered under the Registration of Cooperative Societies Act and affiliated to the University had terminated the services of the family member. It was held that decree for declaration arid injunction in favour of the plaintiff cannot be granted. Smt. J. Tewari's case , was a case of an employee of a private institution who had been employed by a contract entered into between the parties. It was held that termination though unlawful, the aggrieved person was entitled only to the decree for damages and not for declaration of continuing in service. In Deepak Kumar Biswas v. Director of Public Instruction and others, 1987 3 SLR 65 (S.C.), it was held that on wrongful termination of service of a Lecturer of private aided college, he was not entitled to claim reinstatement with continuity of service and back wages, only wrongful termination benefit could be granted. Similarly in M/s. Pearlite Liners' case , it was held that contract of personal service cannot be specifically enforced. The judgment in Bank of. India v. Lekhimoni Das and others, 2000 3 SCC 640 was cited in support of the contention that where the pleadings of malice are absent, a party has got no right to claim even damages.