Poonam Bhargav Vs. Union of India and ors. - Court Judgment

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No.374/2012 24th October, 2013 % POONAM BHARGAV Through: ..... Petitioner Mr. Prafulla Kumar, Advocate with Mr. Rakesh Kumar Tewari, Advocate. Versus UNION OF INDIA AND ORS. Through: …Respondents Mr. Ravinder Aggarwal, CGSC with Mr. Amit Yadav, Advocate. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.

MEHTA, J (ORAL) 1. Petitioner was appointed in an institute in Nepal known as Manmohan Memorial Polytechnic, Hattimudha, Nepal. Petitioner was appointed on contract basis. Petitioner claims that the contractual period was of three years in terms of the subject advertisement but she was illegally terminated before expiry of the period which is questioned in this petition.

2. Petitioner however has failed to show any contract of appointment for a period of three years or more. This case was argued yesterday when a different counsel appeared, today a different counsel appears for the petitioner and argues the matter. The issues which were raised in the present case at this stage was not as regards the merits of the claim (which in any case did not seem to have much substance) but was of maintainability of this petition on account of existence of three preliminary objections as stated below:(i) Petitioner admittedly was employed and seeks continuation of her employment with the employer/ Manmohan Memorial Polytechnic, Hattimudha, Nepal but this entity has not been made a party to the writ petition. (ii) The cause of action for appointment and continuation and also to challenge the termination will arise in Nepal because the appointment of the petitioner was with Manmohan Memorial Polytechnic, Hattimudha, Nepal. (iii) Even if the case of the petitioner is accepted at the best that she is illegally terminated within the three years period, that three years period expired on 11.11.2012, and therefore, in a case such as the present more so when there are disputed questions of facts with regard to the validity or justification of termination of services of the petitioner, the appropriate remedy would be a suit for recovery of money.

3. So far as the first objection is concerned, in spite of repeatedly putting the petitioner to notice, counsel for the petitioner states that there is no need to add the employer/ Manmohan Memorial Polytechnic, Hattimudha, Nepal as a party to this case inasmuch as it is the Government of India with the Government of Nepal which are controlling the institution. I find this argument totally misconceived because surely if appointment and continuation are sought with a particular employer, surely, it is that employer which necessarily has to be made a party/respondent in the case as the directions will be issued against that body. May be Government of India and Government of Nepal have say and arguably a controlling interest in the institute, cannot still mean that the employer-institute should not be made as a party to the present case. The writ petition is therefore misconceived and not maintainable in the absence of the employer being a party-respondent, and with whom the petitioner seeks continuation of employment.

4. The second aspect was lack of territorial jurisdiction because petitioner took employment pursuant to the advertisement issued in Nepal, joined the institute in Nepal, worked in Nepal, was terminated from the institute in Nepal and seeks continuation of the employment with the institute in Nepal and therefore entire cause of action has arisen at Nepal. Merely because Government of India has granted aid to the said institute and which at best can be taken as an aspect with respect to control, yet, the jurisdiction will be in Nepal because it is not unknown that there are autonomous organizations which are in fact controlled by the Government but qua that autonomous organizations a legal case can only be filed where the cause of action arises with respect to that organization. Merely Government of India is situated at New Delhi will not mean that so far as the facts of the present case is concerned, cause of action will accrue here whether for continuation of employment or whether for challenge to the termination.

5. Finally, at best the claim with respect to continuation of employment would be for three years period which has expired and therefore still the issue of continuation of the employment amounting to specific performance cannot be granted because if as per the case of the petitioner, and which has to be proved in a Court of law, that petitioner has been illegally terminated petitioner now will be able to claim monetary relief for the balance term of her employment.

6. I may note that the issues with respect to disentitlement of continuation of employment on merits have been argued on behalf of the respondent no.1 because actually to the institute at Nepal, certain qualified Indian persons were deputed of which petitioner was one, and ultimately from time to time when the institute at Nepal had the necessary competent teachers, persons who were employed from India were not to be continued in their posts more so without there being a specific term of contract for a particular number of years, and the petitioner did not have any specific contract of three years and at best had only a one year contract with one year extension. It is again however reiterated that since this Court does not have jurisdiction no observations are made one way or the other on the merits of the matter.

7. In view of the above, the writ petition is dismissed, leaving the parties to bear their own costs. OCTOBER24 2013 Ne W.P.(C) No.374/2012