Delhi High Court
Bernard D’Mello vs Industrial Finance Corporation … on 5 July, 2004
Equivalent citations: 112(2004)DLT500, 2004(75)DRJ713, 2005(3)SLJ231(DELHI)
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. Petitioner, employed as an Associate Professor at Management Development Institute (MDI) seeks quashing of the letter dated 23.9.2003. By and under the said letter, decision of the Board of Governors of the Management Development Institute (Respondent No. 2) taken in the Board meeting held on 7.3.03 was communicated to the petitioner. Decision being that the Board of Governors has accepted the recommendation of the Special Review Committee dated 20.02.03 to retire the petitioner from service under Regulation 33 of ‘MDI Staff Regulations, 1986’.
2. Regulation 33 aforesaid under which the petitioner stands retired reads as under:-
” Superannuation and Retirement An employee other than an employee appointed on contract basis, shall retire on the last day of the month in which he completes 60 years of age. The Institute shall, however, have absolute right to retire an employee, if it considers necessary to do so in the interest of the institute, by giving him notice of not less than thee months, in writing, on completion of 30 years of service or 50 years of age, whichever shall first happen, or at any time thereafter. Such option to retire from the service shall also be available to an employee, in any class, after he completes 30 years of service or attains the age of 50 years, by giving three months notice in writing to the competent authority.
2) The power conferred by sub-regulation (1) to retire an employee on completion of 30 years of service or on attaining the age of 50 years, or at any time thereafter, shall be exercisable by the Executive Director, in the case of officers in Class I, prior approval of the Board shall be necessary.
Explanation I For the purpose of this Regulation, service shall not include any period of service rendered by an employee before attaining the age of 21 years.
Explanation- II Notwithstanding anything contained in this Regulation, where an employee has earned leave but not availed of as on the date of retirement, he may, at his option:
(a) be permitted to avail of leave subject to a maximum of six months in respect of leave earned under these Regulations and in that case the employee will be deemed to retire from service at the expiry of the leave.
OR
(b) be paid a lump sum amount which would be equivalent of pay as defined in Regulations 3 (q) of these Regulations as on the date of his retirement, for the unavailed earned leave subject to a maximum of six months plus dearness allowance in respect thereof.
Explanation – III In order to implement the power to retire an employee as mentioned in sub-regulation (1) above, the Institute shall review the cases of such employees six months before they attain the age of 50 years or before they complete 30 years or service for which purpose special review committee shall be constituted by the Board for recommendation in the matter.
Explanation -IV ‘Date of Retirement’ means the date on which the employee attains the age of superannuation in accordance with the provisions of this Regulation or the date of which he is retired by the Institute under sub-regulation (1) or the Regulation or the date on which the employee voluntarily retires in terms of said sub-regulation (1) as the case may be.
3) Where an employee is re-employed in the Institute’s service or is permitted to be employed outside the Institute while he is on leave preparatory to retirement he may be required or permitted to avail of such leave or any part thereof immediately after he ceases to be so employed but the period during which he is so employed shall not-
(i) if the re-employment is in the Institute’s service, count for any purpose as service or duty in relation to his previous employment in the Institute except to the extent for in the terms of re-employment.
If the employment is outside the Institute, count for any purpose as service or duty in the Institute except for purposes of Regulation 127 and Chapter IV of these Regulations.”
3. MDI is a society registered under the Societies Registration Act’ 1860. It was promoted primarily by IFCI Ltd. (Respondent No. 1) one of the principal objects of MDI is to provide training facilities for managers in industry and in organisations and industrial finance. MDI undertakes training in modern management and allied techniques to entrepreneurs and technologists. It is recognised by All India Council for Technical Education. The degree and diploma awarded by it are recognised.
4. The registered office of respondent No. 2 is at New Delhi, being head office of IFCI, respondent No. 1.
5. As per the memorandum of association of MDI and the Rules and Regulations Governing its functioning, the general superintendence, direction and control of MDI is vested in its governing body called the Board of Governors. As per rules 6 of the Rules of MDI, the board comprises of the following members (a) Chairman, (b) One representative of the Central Government nominated by the Ministry of Finance, Government of India (c) One representative of IDBI (d) one representative of Kreditanstalt-fur-Wiederaufbau ((KFW) Frankfurt (e) Seven persons to be nominated by IFCI representing business, industry, finance, cooperative and management institutions (f) Directors of Institute, Ex-Officio Member (g) three persons to be co-opted by the Board.
6. As per Rule 12, everyone has one vote in case of equality of votes, chairman has a casting vote. Rule 13 enlists the powers of functions of the Board. Subject to the provisions of the memorandum, the Board has the power to prepare and execute plans and programmes of the institute and carrying on its administration and management. Budgets are prepared and sanctioned by the Board. Fees and other charges for training programmes are determined by the Board. Rules and Regulations for appointment of candidates to various courses of study are determined by the Board. Teaching, research, administrative, technical, ministerial and other posts are created by the Board and appointments are made by the board. The Board is fully empowered to manage, vary or rescind the rules and by-laws and also the regulations of the institute. Under Rule 13 (XIX), the board has to submit to IFCI the annual reports.
7. Rule 14 deals with the funds of the institute. It stipulates that the funds of the institute shall consists of :- a) amounts obtained from IFCI, Loan from the Government of India for the purposes of establishing and running the institute, interest accruing under the credit sanctioned to IFCI by KFW- Frankfurt; (b) grants and/or contributions made by IFCI, (c) Fees and other charges received; (d) All donations, gifts and other money received by the society.
8. As per Rule 20, annual accounts of the society require to be audited by such auditor as may be decided by the Board and within four months after close of every financial year, the board has to submit to IFCI a report on the working of the institute with the audited statement of accounts, showing the income and expenditure, the board has to submit to IFCI its budget estimates for every financial year by a date as may be fixed by IFCI.
9. IFCI is a company registered under the Companies Act 1956, share holding held is as under:-
i) Industrial Development Bank of India …. 31.71%
ii) LIC, GIC & Subsidiaries …. 17.48%
iii) Nationalized Banks …. 7.10%
iv) SBI & Subsidiaries …. 2.10%
v) Unit Trust of India …. 4.47%
vi) Private Corporative Banks …. 4.05%
vii) Other corporates …. 6.90%
viii) General public …. 26.18%
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100 %
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10. Two preliminary issues have been urged in opposition to the writ petition. Firstly, it is urged that the institute of MDI is at Gurgaon, Haryana, where the petitioner was teaching. The entire functioning of the institute is at Gurgaon, the board decision was taken at Gurgaon, it was communicated from Gurgaon and received by petitioner at Gurgaon and hence no part of cause of action has accrued at Delhi, thus this court has no territorial jurisdiction to entertain the writ petition. Secondly it is urged that MDI is not amenable to writ jurisdiction being a society, uncontrolled, not managed or financed by the Government.
11. Article 226 of the Constitution of India reads as under:-
226. Power of High Courts to issue certain writs.- (1) Notwithstanding anything in article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose].
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”
12. Jurisdiction of this court has been questioned by invoking sub Article (2) of Article 226 of the Constitution of India. It is not disputed that the registered office of respondent No. 2 is situated within the territorial jurisdiction of this court. Under sub Article (1) of Article 226, this court would have jurisdiction to issue a writ to any person or authority within the territorial limits of the union territory of Delhi. The fact that the registered office of respondent No. 2 is within the territory of the Union Territory of Delhi would clothe this court with territorial jurisdiction. It may be noted that prior to insertion of sub Article (2), some of the High Courts were of the opinion that where the cause of action arose writ petition could be filed in those high courts as well. This view was constitutionally recognised by amending Article 226 of the constitution of India and insertion of sub Article (2). In the statement of objects and reasons it was brought out that the purpose of the amendment was to clothe the high courts with jurisdiction where the cause of action arose. It may also be noted that in sub Article (2) the word used is ‘also’. This clearly shows that the jurisdiction conferred by sub Article (2) is in addition to the jurisdiction conferred on the courts under sub Article (1) and not in derogation thereof. In other words, with regard to writ petitions, it is not only the High Court within whose jurisdiction the cause of action arose which would have jurisdiction, but even the court within the territorial jurisdiction of which the respondent resides would have jurisdiction. Residence of a juristic entity would be the place its registered office is situated.
13. It is accordingly held that this court would have territorial jurisdiction to entertain the present petition.
14. A writ could be issued against the State which would include its instrumentalities. A writ could also issue against any other person. However, ‘this any other person’ must be a person charged with a statutory or a public duty. This was recognised by the Supreme Court in its decision reported as Parag Tool Corporation Vs. C.V. Imanual.
15. Pleadings of the petitioner on the issue of the second respondent being amenable to the writ jurisdiction of this court may be noted. It is averred by the petitioner as under:-
“3. Respondent No. 2 is a Society registered under the Societies Registration Act, 1860 and was promoted by Respondent No. 1 with the objects, inter alia, of providing training facilities for managers in industry and in organizations and industrial finance at the local, State or all India level and part training in modern management and allied techniques to entrepreneurs and technologists. Respondent No. 2 is managed by a Board of Governors, which comprise, inter alia, of the Chairman and the General Manager of Respondent No. 1 as Ex-Officio Members, a representative of the Central Government nominated by the Ministry of Finance, Government of India and the rules provide for nomination of up to five persons to the Board of Respondent No. 2 by the Board of Directors of Respondent No. 1. The funds of Respondent No. 2 comprise, inter alia, of all amounts obtained from Respondent No. 1 out of grants and/or loans from the Government of India for the purpose of establishing and running the institute, out of interest differential funds accruing with the Government of India under certain lines of credit sanctioned to Respondent No. 1; all grants and/or contribution made by Respondent No. 1 from time to time. The memorandum of Association of Respondent No. 2 stipulates that on winding up or dissolution of Respondent No. 2, if there remains any property whatsoever, the same shall the given or transferred to Respondent No. 1. Respondent No. 2 is also carrying out the objectives for which Respondent No. 1 promoted it and is an instrumentality of the State within the meaning of Article 12 of the Constitution of India.
It may also be pertinent to mention that IFCI promoted Respondent No. 2 to pursue its promotional activities and mention in this regard, appears in the Annual Report of IFCI. Reference is invited to the following excerpts from the Annual Report of IFCI:
i) Management is a crucial input for the success of any venture. Alongside the production of goods and services, the country needs managerial ability and managerial talent of the highest order.
The Management Development Institute (MDI) was, therefore, set up by IFCI, fifteen years ago, with the sole objective of developing and upgrading the managerial ability and managerial talents of the practicing managers in private, public, joint and co-operative sectors of the industry, as also of commercial and development banks in the banking sector.” (Annual Report 1987-88 p 103)
ii) Over the years, in its developmental and promotional role, IFCI had identified several gaps in the institutional infrastructure and promoted various specialized institutions, such as Management Development Institute (MDI)… (Annual Report 1994-95, p 11) Reference is also invited to the following provisions of the Memorandum of the Association and Rules of Respondent No. 2:
(b) The Clause 3 (p1) of the Memorandum of Association of MDI also states: “The objects for which the Institute is established are to provide training facilities for managers in industry and in organizations connected generally with industrial development and industrial finance at the local, State or all India level and to impart training in modern management and allied techniques to entrepreneurs and technologists entering industry with a view to ensuring proper selection, implementation and operation of industrial projects and generally to do all acts and undertake all activities, necessary, conducive, incidental, or ancillary to attain the above mentioned objects….”
2.(a) Rule 14 (p9) of the Memorandum of Association of MDI stipulates the sources of funds for MDI. It states:
“The funds of the Institute will consist, inter alia of
i) All amounts obtained from the Industrial Finance Corporation of India out of grants and/or loans from the Government of India for the purpose of establishing and running the Institute, out of interest differential funds accruing with the Government of India, under certain Lines of Credit sanctioned to the Industrial Finance Corporation of India by the Kreditanstalt-fur-Wiederaufau, Frankfurt;
ii) All grants and/or contributions made by the Industrial Finance Corporation of India from time to time;
iii) All fees and other charges received by the Society;
iv) All donations, gifts and other monies received by the Society in any other manner or from any other source.”
It may also be stated that:
(c) “IFCI has provided funds to MDI by way of (i) corpus funds,
(ii) campus fund and
(iii) ways and means fund (Source : Operational statistics, IFCI, 1988-89, p83) Further
(b) “In accordance with Rule 14(i) p (9) of the Memorandum of Association, MDI has been predominantly financed by IFCI since inception. Cumulatively, up to 31st March 1992, IFCI has provided financial assistance of Rs. 12.85 crores out of its specific promotional funds, namely, benevolent Reserve Fund (BRF) and Interest Differential Funds (IDF), and out of its General Funds (Source: 44th Annual Report of IFCI, 1991-92, p98).”
The petitioner submits that Respondent No. 2 functions under deep pervasive control of IFCI-Respondent No. 1.
4.(a) “MDI functions under deep pervasive control of IFCI. According to the Rule 6 (p6) of the Memorandum of Association of the MDI, the IFCI shall nominate not more than five members to the Board of Governors. In addition, the Chairman and the General Manager of the IFCI shall be ex-officio members of the Board of Governors. Thus, in the Board of maximum total strength of twelve members, excluding the members to be co-opted by the Board, the IFCI shall be represented by seven members, ensuring thereby the deep pervasive control of the MDI by the IFCI.”
It is also submitted that Respondent No. 1 exercises deep pervasive control over Respondent No. 2 by virtue of Rule (ii) and (iii) of the Memorandum of Association and Rules, which provide:
Rule 20 (ii) “Within four months after the close of every financial year, the Society shall submit to the Industrial Finance Corporation of India a report on the working of the Institute in the previous year together with an audited statement of account showing the income and expenditure for the previous year.”
Rule 20 (iii) “The Society shall submit to the Industrial Finance Corporation of India its budget estimates for every financial year by such date as may be fixed by the Industrial Finance Corporation of India in this behalf.”
It may be pertinent to mention that:
5.(a) “MDI has been approved by the Government of India, Department of Personal and Training “as an agency for conducting the first ever intensive 15-month National Management Programme (NMP) for Government officers belonging to IAS/Group ‘A’ services as well as executives of public and private sector organizations having potential to acquire top positions. An announcement in this regard was made by Shri P. Chidambaram, Hon’ble Minister of State of Home, Personal, Public Grievances and Pensions, Government of India, on the 9th September, 1987. Infrastructural facilities, therefore, were added during the year in MDI campus, the cost of which was shared both by Government of India and IFCI. (Source: Annual Report, 1987-88, p 105; italic added). Thus, MDI is an instrumentality or Agency of State in its own right too.
MDI conducts two educational programmes, namely, ‘Post-Graduate Programme in Management’ (two-year MBA programme) and ‘National Management Programme’ (a 15-month executive diplomas being recognised by AICTE as equivalent to MBA degrees. The latter is the only educational programme in the country, which has duration of less than two years but leads to award of full-fledged MBA equivalent degree. By virtue of conducting long duration educational programmes of national importance, MDI is performing sovereign function and shouldering the responsibility as an instrumentality or agency of State as enunciated in the Article 12 of the Constitution of India.”
16. Further pleadings of the petitioner on this issue are contained in his additional affidavit filed under cover of index dated 13.3.2004. Petitioner pleads as under:-
“3. I now deal with and argue that IFCI is amenable to the jurisdiction of this court under Art.226. As argued in my earlier affidavit, that while IFCI is a corporation under the Companies Act, it is important to note that as of March 31, 2003, it is majority owned and controlled by government owned and controlled banks and financial institutions. The latter are, along with the % of IFCI shares owned, as follows:
* Industrial Development Bank of India (IDBI) – 31.71% of IFCI shares held as on March 31, 2003 * Bank of India – 17.48% of IFCI shares held as on March 31, 2003.
* Life Insurance Corporation of India (LIC), General Insurance corporation of India (GIC), and subsidiaries – 7.02% of IFCI shares held as on March 31, 2003.
* Nationalized Banks – 2.1% of IFCI shares held as on March 31, 2003.
* State Bank of India and its subsidiaries – 2.10% of IFCI shares held as on March 31, 2003.
The true copy of the page 20 of the IFCI Ltd. Annual Report, for the year 2002-03 is annexed and marked as Annexure A-1.
Together the above-mentioned government owned and controlled banks and financial institutions held 58.31% of IFCI shares as on March 31, 2003, which establishes that IFCI is majority owned and controlled by government, owned and controlled banks and financial institutions and therefore IFCI is a government financial institution.
I state that IFCI is directly funded from the government of India’s Union Budget. As per IFCI Ltd., Annual Report 2002-03, Page 34, “Up to financial year 2003-04, the Government of India has provided a total sum of Rs.20,960 million for IFCI as loan in its Revised Budget estimates for FY 2002-03 (Rs.5,230 million) and Budget for the FY 2003-04 (Rs.15,730 million). Accordingly, the amount received in FY 2002-03 as loan has also been shown as loan received from Government of India, IFCI’s request for conversion into Grant is under consideration of the Government of India.” The true copy of the page 34 of the IFCI Ltd., Annual Report for the year 2002-03 is annexed and marked as Annexure A-2.
I refer to the Union Budget 2003-04, Expenditure Budget, Notes on Demands for Grants, Ministry of Finance and Company Affairs, Demand No. 33, Payments to Financial institutions, which shows a total grant to IFCI of Rs.5437.7 million in the Revised Budget for 2002-03 and a total grant of Rs.15730 million in the Budget Estimate for FY 2003-04. Again, I refer to the Union Budget 2004-05, Expenditure Budget, Notes on Demands for Grants, Ministry of Finance and Company Affairs, Demand No. 33, Payments to Financial Institutions, the Revised Budget 2003-04 shows a grant of Rs.15730 million to IFCI and the Budget 2004-05 shows a grant of Rs.2260 million to IFCI. The Government of India does not directly give grants and loans to financial institutions from the Union Budget to companies over which it does not exercise effective control. The fact that IFCI has received grants and loans directly from the Union Budget constitutes relevant evidence that IFCI is a government financial institution. The true copy of page 71 of the Union Budget for the years 2003-04 & 2004-05. Expenditure Budget, Notes on Demands for Grants, Ministry of Finance and Company Affairs, Demand No. 33, Payments to Financial Institutions is annexed and marked as Annexure A-3.
To further corroborate that IFCI is firmly in government hands I would like to quote from the Speech of Jaswant Singh, Union Minister of Finance, on February 3, 2004, while presenting the Interim Budget 2004-05. Para 24 (Annexure 5) of the Finance Minister’s speech in the Section on Development Finance is: “Similarly, the Industrial Finance Corporation of India (IFCI), will be restructured through transfer of its impaired assets to an Asset Reconstruction Company and merger with a large public sector bank. Both these institutions, the IFCI and the IDBI, should be functional in the new financial year after their transformation.” It should be noted here that the Finance Minister of the Government of India is announcing a decision taken by the government of India that the impaired assets of IFCI will be transferred to a newly created company and IFCI will be merged with a public sector bank. The government of India cannot take such a decision in the ordinary course of business unless IFCI is unambiguously effectively either directly or indirectly (via government owned and controlled entities, which taken together, in turn effectively own and control IFCI) effectively owned or controlled by the Government of India. The true copy of Para 24 of the Finance Minister’s speech in Section on Development finance is annexed and marked as Annexure A-4.
4. I now state and argue that MDI is controlled by IFCI during the relevant period. As per MDI’s Memorandum of Association and Rules (Incorporating amendments passed up to 23/9/1998), 6(i) (5) of the Rules gives IFCI effective control of MDI’s Board by virtue of the powers given to IFCI to nominate up to seven members. Rule 8 again gives IFCI the right to replace such nominees that it may appoint. Rule 13 deals with the “powers and functions of the MDI Board’. Rule 13(xix) gives the IFCI effective control over MDI’s Finance and Accounts function. Rule 14 deals with funding of MDI, clearly referring to grants and/or loans from the IFCI and the Government of India. A reference to MDI’s Annual Report 2001-02, the Balance Sheet as at 31st March 2002 shows a Capital Grant received from IFCI of Rs.70 lakh. The true copy of the Balance Sheet and Income Statement from the MDI’s Annual Report 2001-02 is annexed and marked as Annexure A-5. This also shows that 70.5% of MDI’s Total Fixed Assets have been financed by grants from the IFCI and others. Similarly, MDI’s Annual Report 1997-98, page 23 shows a Capital Grant of Rs. 350 lakh received from IFCI. The true copy of the Balance Sheet and Income Statement from MDI’s Annual Report 1997-98 is annexed and marked as Annexure A-6. Indeed, Rule 20 (ii) and 20(iii) give IFCI proves that IFCI has effective control over MDI in that the latter has to formally report to IFCI its budget, its accounts and a report on the working of the Institute.
Article 5 of MDI’s MOA states that if MDI winds up, then net of its debts and liabilities, MDI’s properties shall be given or transferred to the IFCI. This clause unambiguously suggests that MDI is IFCI’s property. Besides this, IFCI’s Annual Reports regularly mention MDI as IFCI’s “Associate Institution”, for instance, in IFCI’s Annual Report 2002-03. The true copy of page 15 of the IFCI’s Annual Report for the year 2002-03 is annexed and marked as Annexure A-7. Also, during the entire almost nine years of service at MDI of the petitioner, the Chairman & Managing Director of IFCI has been de facto the Chairman of MDI’s Board. And, by virtue of MDI Staff Regulations, 1986, he has also been the Appellate Authority for me. The Chairman & Managing Director of IFCI met me at the IFCI headquarters office, which is also the MDI’s Registered Office, when i complained to him about Respondent No. 4. Respondent No. 1 has also been the Appellate Authority for Respondent No. 4, as per the MDI Staff Regulations, 1986. As per MDI’s MOA and Rules and in reality, MDI’s Registered Office is in Delhi. But, more important, MDI’s Registered Office is part of the IFCI headquarters’ office. The former is integral to the latter to establish the efficacy of IFCI control of MDI.
5. I now state that the All India Council of Technical Education (AICTE) is the relevant regulatory body for MDI. The AICTE, which is an official body under the Union Ministry of Human Resource Development (MHRD), is the regulator for MDI. Having approved MDI, the AICTE is the regulatory body for the MDI, the latter is thus subject to the rules and regulations laid down by the AICTE. Also, the Member-Secretary of the AICTE is also a member of the MDI Board during the relevant period. The true copy of the board of governors as on 1st July 2002 is annexed and marked as Annexure A-8.”
17. De hors the status of the respondent, in an appropriate case a writ could be issued against it only if the same is for enforcement of a public duty imposed upon it as opposed to a duty which is essentially of a private character. In the decision of the Supreme Court in Parag Tools Corporation case (Supra), in para 6 it was held:-
“But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest.”
18. In the decision reported as Shri Anandi Mukta Sadguru Vs. V.R. Rudani & Ors. It was observed:-
“14. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellant-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions, like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See– The evolving India Administrative Law by M.P. Jain (1983) p.266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
15. The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages.
16. There, however, the prerogative writ of mandamus confined only to public authorities to compel performance of public duty. The ‘public authority’ for them means every body which is created by statute – and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all ‘public authorities’. But there is no such limitation for our High Courts to issue the writ ‘in the nature of mandamus’. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to ‘any person or authority’. It can be issued “for the enforcement of any of the fundamental rights and for any other purpose.”
19. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “Any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.
21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states : “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.” (Judicial Review of Administrative Act 4th Ed. p.540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ‘to reach injustice wherever it is found’. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.”
19. In Srilekha Vidyarthi Vs. State of U.P. where issue of termination of services of District Government Counsel was the subject matter, repelling the plea of the government that government counsel did not hold a post and their services rendered were contractual in nature, the Supreme Court held that the post of a District Government Counsel has a public element attached to it and this was sufficient to attract the power of judicial review.
20. In the decision reported as Rajasthan SEB Vs. Mohan Lal in para 6 it was observed:-
“The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people.”
21. In Krishnamacharyulu and Ors. Vs. Sri Venkateswara Hindu College of Engineering and Anr. it was held:-
“4………. when there is an interest created by the government in an institution to impart education, which is a fundamental right of the citizens the teachers who impart the education get an element of public interest in the performance of their duties. …….. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the need of providing the educational opportunities.”
22. In the decision reported as AIR 1999 SCC 753 U.P. State Cooperative Land Development Bank Ltd. Vs. Chandrabhan Dubey & Ors, in the context of statutory provisions regulating the service conditions of employees of cooperative banks registered in the State of U.P. the Supreme Court observed that where the duty imposed is statutory or a public duty it would be unnecessary to go into the question whether the body against whom a writ is claimed is a State within the meaning of Article 226 of the Constitution of India. It was held that what is material is the nature of the duty placed upon the body.
23. Pleadings of the petitioner and the documents annexed thereto would reveal:-
(a) IFCI has a deep and a pervasive control on the functioning of respondent No. 2
(b) Government institutions hold the majority share-holding in IFCI.
(c) Respondent No. 2 was created with the object of, inter alia, imparting education in the field of business and management.
(d) Entire corpus fund of respondent No. 2 came from IFCI.
(e) All India Council of Technical Education, a statutory body created to supervise technical education in India granted recognition to respondent No. 2 and said respondent is subject to the rules and regulations laid down by the said Council.
(f) The rules and regulations of All India Council of Technical Education pertaining to technical institutes are aimed at ensuring efficiency and maintenance of standards in the field of technical education.
(g) Respondent No. 2 has been approved by the government of India, Department of Personnel and Training as an agency for conducting national management programme for government officers belonging to the Indian Administrative Service and other Group A services as well as executives of public and private sector organisations.
(h) Respondent No. 2 conducts two educational programmes, being, ‘Post Graduate Programme in management’ (2 years MBA programme) and ‘National Management Programme’ a 15 months executive diploma recognized by AICTE as equivalent to MBA degree.
(i) A capital grant of Rs.3.5 crores was received by respondent No. 2 from respondent No. 1. Annual report of respondent No. 1 for the year 2001-02 shows that 70.5% of MDIs total fixed assets have been financed by the grant received from IFCI
(j) IFCI in turn, receives budgetary grants/loans. Up to the financial year 2003-04 the government of India provide loans in the sum of Rs.20,960 million to IFCI.
24. Though, there may not be a direct government control over respondent No. 2 and tested on the anvil of the principles of law laid down in the decision of the Supreme Court reported as Ajay Hasia Vs. Khalid Mujid and the majority view in the decision reported as Pradip Kumar Biswas Vs. Indian Institute of Chemical Biology it could be debated whether MDI or FCI are a State within the meaning of Article 12 of the Constitution of India, but from the character of MDI; it receiving grants from IFCI, which in turn is substantially owned by the government and the fact that MDI is imparting quality education and is governed by the rules and regulations of ACITE and coupled with the fact that its degree and diploma courses have been statutorily recognised, it cannot be said that MDI is not performing an important public duty. This assumes significance because it is admitted that MDI even conducted intensive reorientation programmes for government officers belonging to the Indian Administrative Service, Group-A services and executives of public sector undertakings.
25. In the annual report of IFCI, when MDI was set up, it was stressed that management is a crucial input for the success of every venture. Along side the production of goods and services the country needs managerial personnel and managerial talent of the highest order. With this sole objective of developing and upgrading the managerial personnel and managerial talents of the practicing manages in private, public, joint and cooperative sectors of the industry, as also of a commercial and development banks in the banking sector, MDI was set up. I accordingly hold that considering the character of MDI and its functions, MDI shoulders public duties and its activities have a public character. If MDI is found to be charged with positive obligations which it is violating, mandamus cannot be denied.
26. On merits. Petitioner was appointed under MDI as Associate Professor on 12.12.1994. His services were regularised after one year i.e. on 12.12.1995. To his credit, petitioner has published a large number of research papers. He has attended over 20 conferences and has functioned as the guide for many students undergoing M.Phil and Ph.D. Degrees. Petitioner has undertaken many sponsored projects.
27. As per the petitioner, his academic credentials are impeccable and during his entire service under the second respondent there was no grievance pertaining to the academic standards maintained by him. Petitioner alleges communal intolerance against the Board of respondent No. 2. As per the averments made in the petition, petitioner wrote an article entitled ‘Management Education : A Critical Appraisal’ which was published in the Economic and Political Weekly Volume 48 in November, 1999. Said Article was a criticism of growing communal influence in education. As per the petition, respondent No. 4, a former Executive Director of the second respondent told the petitioner that the Article had hurt his sentiments. Petitioner was told to give up his secular views, as claimed by the petitioner. As per the petitioner he had critiqued Hindutva and not Hinduism. This, according to the petitioner was the basic cause of the impugned decision being taken against him.
28. Further, according to the petitioner he was invited by the Asian Institute of Management, Manali, to present on corporate social responsibility, case drafts at a conference to be held in late March, 2001. The expenses relating to the case presentation were transferred to the account of MDI at the instructions of the petitioner. MDI received a benefit of Rs.90,322, but for no apparent reason, according to the petitioner, the Director of MDI directed that the project must be closed. According to the petitioner, MDI has till date not reimbursed the costs incurred by the petitioner.
29. Further, some intellectuals, which included a Seshadri Chari, editor of Organiser, a weekly published by a political party, namely the Bhartia Janata Party, wanted to lecture at the institute, stating that they wanted to inculcate values to the students. As per the petitioner, he was a part of the group of the faculty which wanted that these intellectuals should first interact with the faculty members so that they could benefit as to what values were sought to be inculcated. This, according to the petitioner, was not to the liking of the then Board of respondent No. 2.
30. According to the petitioner, he received a memo dated 9.1.2003 pertaining to an alleged complaint made by one Ms. Aradhana Kumar. When he sought the views of Ms. Aradhana Kumar, she denied having made any complaint.
31. Malice according to the petitioner is born out from the fact that when he received the summary of the record of his work during the last 5 years on 22.1.2003, he found significant errors, which he pointed out under cover of his communication dated 11.2.2003.
32. Petitioner states that in February, 2003 he received a draft copy of summary of ‘Vision Building Workshop’. It was received by other faculty members as well. Views and comments were solicitated by the Management. Petitioner claims to have responded to the said communication in which he pointed out major weaknesses, including leadership in MDI. Petitioner also pointed out major issues of violation of work norms by the Director.
33. Petitioner states that he did not receive his salary for the month of May. On 10.6.2003 he complained to the National Commission on Minorities which was not to the liking of those who were in charge of the affairs of MDI and the direct result of the same was the impugned decision, to retire him from his service prematurely.
34. Needless to state, respondents have denied the allegations of mala fide. According to the respondent they have no grievance whatsoever on the score of the academic achievements and academic capabilities of the petitioner. According to the respondents, the decision arrived at was on account of the petitioner lacking collegiate functioning.
35. While denying that petitioners complaint to the National Commission on Minorities had anything to do with the decision, it is pointed out that the sub committee which took the decision to recommend premature retirement of the petitioner had met on 20.2.2003, well before the petitioner made the complaint to the National Commission on Minorities.
36. Reasons which weighed with the respondent to invoke Regulation 33 are contained in the brief note submitted to the sub committee of the Board when it held its meeting on 20.2.2003. I would be better instructed to reproduce the same. The brief note, inter alia reads as under:-
“1. Dr. Bernard D’Mello joined the Institute on 12/12.1994 as Associate Professor. After joining the Institute, Dr. D’Mello informed MDI that his writ petition vrs. IIT, Kharagpur (his earlier employer) was lying pending in Calcutta High Court for not extending his contract after completion of 1 year. Prof. D’Mello further informed that Prof. K.L.Chopra, the then Director, IIT, Kharagpur, was not happy with his certain comments and, in his view, due to his reason, not given him the extension. Further, he confirmed that he did not inform MDI about this pending case earlier i.e. before joining MDI. The pendency of the case at the Calcutta High Court which as per the version of the Dr. D’Mello is still pending does show that he has still interest to go back to IIT Kharagpur and is thus not putting his full heart into the activity/Programmes of the Institute.
2. Upon joining MDI, Prof. Dr. D’Mello was expected to teach four courses and conduct one Open Programme of one week duration every year. His record for the year 1997-98 to 2000-01 is average. Subsequently, he has not submitted his work norms earned by him from 2001-02 onwards despite our various reminders to him.
3. From, the perusal of the 5 years performance of Dr. D’Mello, it reveals that he has not performed as per his targets. Moreover, during this period Dr.D’Mello’s official relations with his colleagues have not been healthy. In this connection, the following is submitted for consideration :-
(i) Letter dated 11/8/1995 from Dr. D’Mello to Prof. Abad Ahmad, the then Executive Director, MDI;
(ii) Letter dated 7/3/1995 from Dr. D’Mello to Prof. C.V. Baxi, Professor;
(iii) Letter dated 30.9.1997/5.10.1997 from Prof. V.K. Gupta, Chairman MDPs (In-company), to the Executive Director and copy to Dr. D’Mello;
(iv) Letter dated 8/10/1997 from Dr. D’Mello to Prof. V.K. Gupta;
(v) Letter dated 10/10/1997 from Prof. V.K. Gupta to Dr. D’Mello .
Even after these letters there are many instances of E-mails originating from Dr. D’Mello in response to the clarifications sought from him by his colleagues and by the Director in which he is trying to evade the issue and came forward with complicated explanations. The attitude displayed by Dr. D’Mello is not at all congenial for the Educational Institution like ours. Many eminent Professors who are part of our faculty feel that Dr. D’Mello has not given them due cooperation in the conduct of the various programmes undertaken by the Institute. The Institute has to function as team and the uncooperative attitude on the part of Dr. D’Mello does hamper the smooth working of the Institute.
4. Some of the above mentioned letters and e-mails are in bad taste and and do not speak of status of Dr. D’Mello as an Associate Professor of the Institute. The tone and tenor of these letters is also not within the acceptable norms which are expected from a person of his status and stature.
5. More recently, he has been putting papers, which do not convey any detail/information. For example, his recent visit to Amsterdam to his paper in an International Conference. From this note of Dr. D’Mello, it is very difficult to make out whether he was seeking approval of the Competent Authority to present paper or informing the Director about the presentation of his paper. It is relevant to mention here that the Faculty Members have to apply for approval of the Director for presenting a paper in the National/ International Conference. (Inter Office Communication dated 13.10.2003 from Dr. D’Mello to Director is enclosed, the scribbling with pen has been added by Dr. D’Mello after a note dated 14.10.2003 sent by Director to Dr. D’Mello).
6. The Director vide Memo dated 9/1/2003 sought certain clarifications from Dr. D’Mello. Dr. D’Mello submitted his reply dated 16/1/2003, which is also placed below for perusal of the Sub-Committee.
7. If we look into the records of Dr. D’Mello, it would be observed that he has not been submitting details regarding his activities whether in India or abroad. The earlier record also depicts that Dr. D’Mello is attending the various Programmes outside the country without even proper approval of the Institute. In many cases, the ongoing programmes of the Institute have been disrupted due to the last minute out station/ out country visits made by Dr. D’Mello. The Institute has been put to great inconvenience by seeking to arrange other Professors to conduct the Programmes, which have been left in lurch on account of the visits undertaken by Dr. D’Mello. It is a well known fact that many senior officers belonging to very prestigious public sector undertakings and private sector companies attend the Programmes of the Institute and such Programmes cannot be disrupted on account of the sudden change in the availability of Dr. D’Mello. His grasp on official procedure and decorum is minimal. He has been disobeying the orders of the Director and not submitting the information as asked for.
His case, for review under Regulation No. 33(i) of MDI Staff Regulations,1986, after attaining the age of 50 years, is put up for information and consideration of the Sub-Committee.”
37. A perusal of the brief note would reveal that, amongst others, it has been recorded that petitioners 5 years performance reveals that he has not performed as per his targets. His official relations with his colleagues have not been healthy. Some correspondence exchanged between the petitioner and Professor V.K. Gupta, Professor C.V. Baxi and Professor Abbad Ahmed have been noted. It is recorded that the attitude displayed by the petitioner is not at all congenial for an education institution like MDI. Many eminent professor who are part of the faculty feel that the petitioner does not give them due cooperation in the conduct of various programmes. Some of the letters and E-mails were noted to be in bad case. Their tone and tenor being not within the acceptable norms. It is recorded that the petitioner has been putting papers which do not convey any detailed information, for example from one of his notes it was difficult to make out whether he was seeking approval to present the paper or he was informing that he was presenting a paper. Petitioners communications between him and the Director in the month of January were considered. It was noted that the petitioner is not submitting details regarding his activities and was attending various programmes outside the country without prior approval causing inconvenience to the institute which had to arrange other professors to conduct the programmes. It was noted that many senior officers belonging to very prestigious public sector undertakings and private sector companies attended the programmes of the institute and such programmes cannot be disrupted on account of the sudden change in the availability of the petitioner. It has been recorded that the institute has to function as a team and the uncooperative attitude on the part of the petitioners hampers the smooth working of the institute.
38. In rejoinder petitioner has sought to give his version in the rejoinder affidavit. Petitioner has pleaded as under:-
“I examine the submissions made by the respondents to purportedly claim they have acted legally and without malafide intent. I examine the “Brief Note submitted to the Sub-Committee of the Board” to review my case on February 20, 2003. The author of the said Note is not mentioned, but I reasonably presume that it is respondent No. 4, Prof. Devi Singh. I state that the said note deliberately presents a false account of my performance and behavior. First of all, I would like to point out that Prof. Devi Singh in his letter of 5th November,202 informed me of my case coming up for review by a Sub-Committee of the MDI Board, and told me to make by submissions only related to the last five years of work. However, there is no reference to my detailed submissions in the said note submitted by respondent No. 4 to the Board Sub-Committee. The said note about me to the Board Sub-Committee related to the purported information about me beginning with my previous employment during 1993-94 and hence covering the last ten years and not five as he had stated to me. The information given about the last 10 years was also false and misleading, suggesting malafide intentions.
Upon joining MDI in mid-December,1994, I submitted a letter dated 12/12/1994 to the then Executive Director related to a writ petition pending in the Calcutta High Court. I indicated that the IIT Kharagpur and I were negotiating an amicable settlement out-of-court. This amicable settlement was in fact worked out as evidenced in the letter of the IIT Director dated 20.12.1994 to me. I had also sent a photocopy of this letter to the MDI Executive Director’s Secretariat for the record later upon joining, but for some reasons this letter and the voluntary disclosure finds no mention in Prof. Devi Singh’s submission to the Board Sub-Committee. This letter from the IIT Director shows me in a favorable light, willing to forgive and forget the unpleasant past. Prof. Devi Singh even draws an unwarranted conclusion that since the Writ was still pending, claiming that I was interested in rejoining IIT Kharagpur and so did not put my “full heart into the activity/Programmes of the Institute”. I state that respondent No. 4 should have checked the facts with me before jumping to this unwarranted conclusion, which is a false and baseless. A true copy of respondent No. 4’s letter dated 5.11.2002, my letter dated 12.12.1994 to the then MDI Executive Director, and the IIT Kharagpur Director’s letter of 20.12.1994 to me are annexed and marked as Annexure A-2 (Colly.) Para 2 of the said Note submitted by respondent No. 4 to the Board Sub-Committee claims that my record for the years 1997-98 to 2000-01 is “average”. I state that this is false, as shown by me in the charts on pages 82 to 85 of the original petition, that generally Prof. Devi Singh states that I have not submitted work norms from 2001-02 onwards. My reasons for non-submission are mentioned in my e-mail dated 11.2.2003 to him under point (8), and given on page 117 of the original writ petition.
In para 4 of the said note to the Board Sub-Committee Prof. Devi Singh claims that I had not performed as per the targets I had set, without indicating the reasons I had mentioned for specific sub-targets I had set for myself. This would have shown that work is administratively allocated and my contention that I am discriminated in that allocation would have come before the Sub-Committee. For instance, reference is drawn to copies of my self-appraisal of 2001-02 and 2002-03, and specifically related to discrimination of consultant work and academic administrative work, given on pages 99 to 101 of the original writ.
Para 3 of the said Note claims that my relations with colleagues has not been healthy and cites the five letters that I have already dealt with earlier in my additional affidavit of 13.3.2004 and in this affidavit above. The said note also states that I did not cooperate with “many eminent professors” on MDI faculty, but gives no instance to corroborate the claim. The only instance is the false complaint of Prof. V.K. Gupta related to the alleged embarrassment caused to Visiting Professor Aradhana Kumar that my non-availability to introduce her to the participants in the programme on “Building Managerial Competence for ONGC Executives” during September 2-14, 2002 had purportedly caused. Prof. Devi Singh’s charge against me of causing embarrassment to the lady has already been contradicted by the lady herself in her e-mail of 13.1.2003, given on page 104 of my original petition. On the basis of Prof. Gupta’s false complaint respondent No. 4 had unfairly charged me with being “low and casual” in the conduct of the said programme and falsely claimed that this allegedly “resulted in a lot of inconvenience and affected Institute image with the participants and the Guest Faculty of the Program”. This was in his Memo to me dated 9.1.2003 (given on page 102 of the Writ). I state that respondent No. 4 made false and malicious allegations of law and casual conduct in contrast to the excellent feedback of the said programme of which I was one of the programme directors and the same was available to him at that time. This feedback not only indicated that in my sessions I was rated by the participants to be above average, but also showed that the participants recommended that this “Excellent course should be made compulsory for all E-4 level” officers of the ONGC. Hence, contrary to respondent No. 4 contention that I had caused a lot of inconvenience and lowered the Institute’s image in the eyes of the participants, the participant’s feedback indicates that I had held the image of the Institute up high and caused no inconvenience whatsoever. In fact, I can honestly state that I did almost all the work related to programme directorship, although Prof. V.K. Gupta, who complained about me, who was a co-programme director. In fact, I did almost all the work related to programme directorship, while he got half the credit as a co-programme director and benefited from the additional payments made to him on this score. A true copy of summary of feedback for the course on Building Managerial Competence for ONGC Executives, September 2-12, 2002 is annexed and marked as Annexure A-3.
10. I would now like to state what transpired during my meeting with the then IFCI Chairman and Managing Director and MDI Chairman, Shri V.P. Singh in February 2003. When I complained about respondent No. 4’s harassment and referred to my then confidential complaint of 9-8-2002 to respondent No. 1 (page 37 of my writ petition), the MDI Chairman told me that he had passed a copy of this complaint to respondent No. 4 and suggested to him that he resolve the matter. I also complained about the Registrar and Secretary’s bad behavior and incompetence and he seemed to agree with my assessment. He also told me that he is aware that Prof. Devi Singh has certain negative personality traits in handling people and that I should try and adjust with this, to which I agreed and subsequently tried to make amends (as shown on pages 11 to 15 of my Rejoinder affidavit of 10-12-2003). But, what really shocked me was that Prof. V.P. Singh informed me of complaints against respondent No. 4 related to corruption in the admissions process of the MDI and asked me if I had any information pertinent to investigating these complaints. I was doubly shocked because someone who was then being investigated for corruption charges in the admissions process of the MDI by MDI’s Chairman was then misleading the Board’s Sub-Committee to recommend to the Board to retire me prematurely, summarily and purportedly in the interest of the Institute.
11. I also want to briefly refer to an “unseemly and indecent behavior” and “physical assault” charge made by a lady employee of MDI to National Commission on Women against Shri V.K. Nangia, presently Registrar and Secretary of MDI and respondent No. 5 in my petition. What shocked me, and is of relevance to my case, is the further charge of “an eye washing enquiry and while washing report” by Prof. C.V. Baxi, appointed by the Director, respondent No. 4 to conduct an inquiry into the first charge. On the basis of Prof. Baxi’s Inquiry Report, the MDI management then issued a charge-sheet to the lady employee. What was worse is that the accused, our respondent No. 5, was soon rewarded with a promotion to his present post. A true copy of the main text of the lady employee’s complaint to National Commission on Women dated November 21, 2003 is annexed and marked as Annexure A-4.
12. It is pertinent to note that Prof. Baxi had complained to the then Executive Director in 1997, respondent No. 3, about my purported behavior and was also appointed by the Director, respondent No. 4 as a member of the Sub-Committee of the Boards that recommended my retirement, purportedly in the interest of the Institute. It is also pertinent to note that the MDI Chairman, respondent No. 1, met the lady employee too at the IFCI headquarters in New Delhi when she complained to him. So in this case too, the MDI Chairman exercised his powers over MDI from his headquarters and MDI’s Registered Office, in the same in New Delhi
13. I now want to deal briefly with Prof. Pritam Singh’s Respondent No. 3’s behavior through an incident that is very relevant in explaining why I was intimidated by private security guards at his instance to “throw me out” after my illegal and malafide premature retirement. I have awarded a low but passing grade to an IAS officer participant in MDI’s prestigious National Management Programme. This particular officer was an otherwise very bright and intelligent man, but did not seem to have a flair for the particular subject of microeconomics that I taught and graded. His was hurt and he complained to MDI’s then Director, Respondent No. 3, about the poor grade he was awarded. Respondent No. 3 called me and asked me to revise the IAS officer’s grade, and that too, many months after the course was over. I refused to do so. He then asked me to conduct a re-examination, to which I agreed. The re-exam was scheduled on a day that I was to be out-of-station, but somehow my program got altered and I was then available to invigilate the re-exam. The IAS officer then changed his mind and refused the re-exam. Respondent No. 3 was very upset with me, for generally no employee in MDI ever dares to contradict him on any significant matter. A true copy of my complaint about intimidation by Respondent No. 3 through a personally delivered written note to the NCM chairman, Shri Tarlochan Singh, dated 7-10-2003, is annexed and marked Annexure A-5. The facts in this note also show the apparent present political clout that Respondent No. 3 boasts of.
14. I now deal with Para 7 of Respondent No. 4’s note to the Sub-Committee. I was accused of not submitting details of my activity in India or abroad and “attending the various programmes outside the country without even proper prior approval of the Institute”. It is also contended that my “last minute out station/out country visits” caused “great inconvenience” and the Institute’s programmes were “left in lurch” on account of my visits abroad. I am accused of violating “official procedure” and “decorum” and disobeying the Director’s orders. First of all, the evidence in support of such accusations and judgments is scant and wherever it is provided, does not prove the accusations or establish the basis of judgments made. The two instances mentioned are in Respondent No. 3’s reply to the National Commission on Minorities (NCM) to my complaint to the NCM. These are the Asia level case writing project of my visit as Visiting Professor to Maison des Sciences de I’Homme (MSH), Paris.
15. I state that I obtained the Asia level case writing project for the MDI on the basis of my recognized academic work in the area of development studies and transnational corporations. This project has brought significant recognition to MDI and to me in the area of corporate social responsibility (CSR). One of the significant outcomes of this project was a book co-edited by four editors, from Philippines, Thailand, Indonesia and India, the latter being myself. The project entailed foreign travel, which was resented by the Respondent No. 4, since he was not the sanctioning authority for monies that were being directly borne by the prestigious Asian Institute of Management at Manila in the Philippines, informally rated in peer US B-school circles as the best B-school in Asia. However, I helped bring in the equivalent of US $ 2000 for travel, research assistance and stationary and other minor office expense. It is of immense importance to note that less than a month after the monies were transferred and deposited in MDI’s savings account 5275 in Corporation Bank, Gurgaon Branch, when Respondent No. 4 made a signed remark dated 5-7-2001 on the file that “this project must be closed now”. (True copies of the relevant page from the file that contain Respondent No. 4’s remarks dated 5-7-2001 are annexed and marked as Annexure A-6.) Thereafter, I was harassed whenever I needed monies for expenses related to the project. A computer assistant was not even paid Rs.6000/- and I have had to incur the expense from my own pocket for want of official sanction. I was particularly harassed when I applied to go to the Asian Institute of Management at Manila on an assignment (an Asian CSR conference in July 2002) related to the project. The organizers asked me to debit the economy class airfare from the monies they had transferred to the MDI, agreeing to directly bear my expenses in Manila. But, Respondent No. 4 refused to sanction, pretending that he did not receive my earlier mail to Respondent No. 5 with a copy marked to him. (A true copy of my e-mail dated 20-6-2002 to Respondent No. 5 with a copy to Respondent No. 4 is annexed and marked as Annexure A-7.) He would not meet me and tried to bargain with me through his Secretary, offering half the airfare “as a special case”. (A true copy of my e-mail dated June 26, 2002 to Respondents Nos. 4 & 5, and Respondent No. 4’s reply dated June 26, 2002 are annexed and marked as Annexure A-8.) I state that under the pretext that I had not given a budget cost break-up of the expense expected and time frame, Respondent No. 4 denied me legitimate expense from the monies of Rs.90,322/- that I procured for the MDI. In June 2002, Rs. 64,141/- was the balance in this project account. I state that this money has been unfairly and unethically transferred to MDI’s general account, because legitimate project-related expense was not sanctioned on what I considered irrelevant and insufficient grounds. I state that in an international project managed by the A.I.M. Manila, an outside agency, I had to go by the time frame and budget allotment of the AIM, Manila. The initial time frame for the end of the project was June 2001, but this was extended by the AIM, Manila to end-October 2002, a copy of which was sent to Respondent No. 4 by me. (A true copy of a letter from AIM Manila dated June 30, 2003 extending the deadline for the project to end-October 2002, is annexed and marked as Annexure A-9.) The AIM Manila did not restrain me on individual items of expense as long as the expense was within the overall allocation made that was US $ 2000 transferred to MDI as per my stipulation to them. This was also communicated to Respondent No. 4 as my justification of the irrelevance of putting ceilings on expense related to individual items of cost as long as the overall budgeted and actual expense was not beyond the amount of the monies transferred by the AIM Manila. I wanted this because there was an uncertainty regarding one of my interviews with a multinational manager who was Dhaka based. He had told me that he may meet me in New Delhi but was a bit uncertain and I thought that I might have to travel to Dhaka. If I had agreed to ceilings on individual items of cost, then I would be restricting my freedom as a researcher, which would affect the quality of the work. But Respondent No. 4 chose to go by archaic means of controlling my legitimate expenses. (A true copy of my IOM to Respondent No. 4 dated 28-6-2002 is annexed and marked as Annexure A-10.) Yet, MDI has benefited tremendously on me completing the project and bringing out a book (Pages 400). For instance, UNDP in India along with CII asked me to head a Rs.20 lakh CSR case writing project in India after many rounds of negotiations be me. The All-India Council for Technical Education (AICTE) under the Union HRD Ministry later joined in to also sponsor the project. Very soon thereafter I was prematurely retired from MDI and Respondent No. handed over the project to the same Prof. Baxi who was also instrumental in my illegal and malafide retirement.
16. I state and deal with my invitation as a Visiting Professor at the MSH, Paris for May 2003, invited me in March 2003. ( A true copy of the MSH invitation dated 19.3.2003 is annexed and marked as Annexure A-11.) I applied in March 2003 to Respondent No. 4 seeking his permission to accept this invitation to which he deliberately did not respond in time. (A true copy of my application seeking permission of Prof. Devi Singh dated 27-3-2003 is annexed and marked as Annexure A-12.) MSH is an apex institution of the social sciences in France and a visiting professorship is an honor for any economist. I was not inclined to Respondent No. 4 jeopardizing this offer at this stage of my professional career and so, upon not getting any response for over a month, and he refusing to even meet me as relations had by then been strained, I sent hand-written note to him on the day before I had to leave informing him of my early application for permission to go and feeling assured that he would not object, I left for Paris on May 1. On that very day I received an e-mail from Prof. Singh stating that he did not give me permission to go. (A true copy of Respondent No. 4’s e-mail dated 1-5-2003 is annexed and marked as Annexure A-13.) But this e-mail from him was a little too late, for I was already in Paris on that day. I kept him informed of all my academic activity in France and even did the official work of MDI’s Indian-European Studies Center (IESC) while in France. Yet, Respondent No. 4, instead of paying me a compliment on my achievement, denied me permission to accept what the Indian economics profession would surely consider an exceptional honor to receive in one’s individual capacity. In fact, the MSH seemed very pleased at my performance; they even offered institutional collaboration with MDI. A true copy of a letter dated May 30, 2003 from MSH, Paris, offering institutional collaboration with MDI is annexed and marked as Annexure A-14. Also, I gave Respondent No. 4 a detailed account of my activity in Paris. I mention this because in Para 7 of the Note he has submitted to the Sub-Committee he has claimed that I have not been submitting details regarding my activities. A true copy of a ‘Summary of my academic work/meetings in May 2003 in France’ that I had submitted to Prof. Devi Singh on my return from Paris is annexed and marked as Annexure A-15.
17. I state that I have mostly adhered to rules and procedure. Another instance is of a visit to Campobasso in Italy during March 22-24, 2001. I applied for and got the formal approvals. (A true copy of my detailed tour programme dated 19th March 2001, with approval marked in pen by Respondent No. 4 for the international conference at Campobasso, Italy, is annexed and marked as Annexure A-16.) I thus consider the charge of not supplying information on my activity is false.
18. I stated that in the above two cases cited, namely the Asian project and the MSH, Paris visiting professorship, the treatment meted out to me by Respondent No. 4 implied malice, prejudice, abuse of power, and preventing me from carrying out my duties.”
39. A perusal of the defense of the petitioner would reveal that there has been a problem between the petitioner and the institute. Petitioners defense would reveal that he has a personal grievance against the then Director of the Institute, Professor Devi Singh. Pertaining to the petitioner not achieving the targeted work to be achieved by him, petitioner defends that the work is administratively allocated and in the manner of allocation of work he was discriminated against. Petitioner alleges that the complaint of Professor V.K. Gupta that he was not cooperating with his colleagues was false. Pertaining to the complaint of Professor C.V. Baxi, petitioner states that Professor C.V. Baxi was inimical towards him. Similarly, petitioner alleges bias against Professor Pritam Singh, who too had complaint about the petitioners lack of collegiate functioning. Pertaining to his foreign travels petitioner alleges that this was not to the liking of respondents 4 and 5.
40. From the note put up to the sub committee of the Board which reviewed the petitioner’s case under Regulation 33 and the petitioners defense, as noted above, one thing is clear that the petitioner was having functioning problems with his institute.
41. Petitioner is alleging malice against virtual every Professor who had a grievance pertaining to the lack of collegiate functioning of the petitioner. It is not the case of the petitioner that these professors acted under the pressure of the management. Petitioner has alleged mala fides against two of the Directors of the institute. From the Memorandum of Association of MDI it is apparent that the Board of MDI consists of more than 12 persons. It is not out of place to mention that no malice has been alleged against the Chairman of the Board of MDI or other members of the Board. It is also not the case of the petitioner that respondents 3 and 4 were in a dominating position or were manipulating the Board.
42. It is not a case where the decision of the institute is without any material. Petitioner gives justification in support of his case to negate the material which was considered by the Board. In my opinion, in a case of premature retirement what is relevant is whether there was sufficient material before the authority taking the decision and whether the material was adequate to justify the decision taken.
43. The basic factor which has been taken into account while effecting premature retirement of the petitioner is the petitioner’s lack of collegiate functioning. Petitioner may have his justifications, but the point of the matter is that admittedly, petitioner has not been able to work in harmony with his faculty colleagues.
44. Though it was a case of confirmation of a probationer yet the observations of the Supreme Court in AIR 1971 SC 1311 Dr. T.C.M. Pillai Vs. IIT are relevant even to the case of premature retirement and I would be advised to reproduce the same. The Supreme Court, while considering the case of a distinguished scientist of high caliber whose services were not confirmed on probation observed :-
“7……………Suitability does not depend upon merely on the excellence or proficiency in work. There are many factors which enter into considerations for confirming a person who is on probation. A particular attitude or tendency displayed by an employee can well influence the confirming authority while judging his suitability or fitness for confirmation.”
45. Rule 33 of the Staff Regulations empower the institute to retire an employee, if it considers necessary to do so in the interest of the institute. MDI is primarily a teaching institute. If any of its faculty members is unable to work in a coordinated and organized as well as harmonized manner with his co-faculty colleagues i.e. lacks collegiate functioning, certainly it would be a relevant factor to decide whether the interest of the institute requires such an employee to be prematurely retire.
46. Decision to prematurely retire an employee is the subjective satisfaction of the employer. Of course, objective facts must be disclosed to the court on which the subjective satisfaction is predicated. In the instant case adequate objective facts have been brought on record and it is not for this court to reappraise the subjective satisfaction of the competent authority.
47. The writ petition is dismissed.
48. Petitioner has received the amount due and payable to him as a consequence of his premature retirement except the sum of Rs.96,364/- due to him as leave encashment. MDI withheld the amount to recover house rent, telephone, electricity and water charges. Under interim orders dated 16.10.2003, respondent was restrained from dispossessing the petitioner from the premises allotted to him when he was given employment under the institute. Petitioner has continued to occupy the premises. Respondent would be permitted to recover water, electricity and telephone charges if already not paid, on the actual consumption. Further, respondent would be permitted to recover the house rent which was being charged to the petitioner when he was in service. After adjusting the amounts aforestated, if any amount is due and payable to the petitioner same shall be paid within a period of 4 weeks from the date of this decision. Petitioner would vacate the licensed premises within 4 weeks from the date of this decision.
No costs.