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2007 DIGILAW 534 (DEL)

AZHAR MOHO. KHAN v. U. O. I.

2007-03-09

HIMA KOHLI

body2007
JUDGMENT Hima Kohli, J. (Oral)-With the consent of the Counsel for the parties, the matter is taken lip for hearing and disposal at the admission stage itself. 2. The present writ petition has been filed by the petitioner praying inter alia for quashing the letter of termination dated 4.8.2006 issued by the respondent No. 2 as also Clause IX of the employment contract dated 2.11.2005 executed by the petitioner. 3. In a nutshell, the facts of the case are that the petitioner was initially appointed in July, 1997 with the respondent No. 2 and was issued by the respondent No.2 to the petitioner on the accusation of misusing his official privileges in terms of allowing unauthorised persons to use free airline tickets meant for the use of family members only. The petitioner was also accused of forgery in order to commit the said misconduct. Upon receiving the aforesaid notice to show cause, the petitioner accepted his fault in the matter and asked for pardon from the concerned authorities. However, the respondent No. 2/management rejected the plea of the petitioner and terminated his services w.e.j. 29th December, 2004. 4. It is submitted by the petitioner that as he was facing great financial, hardship, he approached the respondent No. 2/management and asked for reinstatement in service, which the latter was kind enough to consider and graciously reinstated the petitioner in service w.e.f. 26th May, 2006. Thereupon, the petitioner executed an employment contract with the respondent No.2. On 2nd November. 2005 and joined service as an Assistant Supervisor. He continued in service from 2.11.2005 till 4th August, 2006 when the respondent No.2 issued a notice of termination to the petitioner under Clause IX of the employment contract. The present writ petition was filed by the petitioner on 1st September, 2006. S. Learned Counsel for the petitioner has assailed the order of termination as also Clause IX of the employment contract on the ground that the said clause in the contract is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India inasmuch as the petitioner had no choice in the matter and he was made to sign the contract perforce by the respondent No.2. The relevant terms and conditions of the employment contract are as below: "(VI) Probation You will be on trial for six (6) months from the date of your joining. The relevant terms and conditions of the employment contract are as below: "(VI) Probation You will be on trial for six (6) months from the date of your joining. During the trial period, your services are liable to be terminated by either side without assigning any reason and without any notice or payment in lieu of notice. (VII) Terms and Termination This employment contract hereunder shall be for a fixed term of one (1) year commencing on 2.11.2005 (commencement date) and terminating on 1.11.2006 (termination date) (subject to Sections VIII and IX below) (IX) Termination without cause The company or you may terminate this contract hereunder at any time upon thirty days written notice to the other reasons." 6. It is further submitted by the learned Counsel for the petitioner that the clauses in the employment contract are in the nature of a standard form contract where the respondent enjoys an unequal bargaining power as compared to the petitioner and the same in itself needs to be interfered with by this Court while exercising its power of judicial review. It has further been stated that such conditions of termination of service without assigning any reasons are bad in law and violative of the fundamental rights of the petitioner. In these circumstances, it is stated that the impugned letter of termination dated 4.8.2006 is liable to be quashed and Clause IX of the employment contract dated 2.11.2005 is liable to be severed from the contract and set aside. 7. In support of his contention, Counsel for the petitioner has relied upon two judgments of the Supreme Court, namely, DTC v. DTC Mazdoor Congress & Ors., reported as 1991 Supp. (1) SCC 600; and LIC of India & Anr. v. Consumer Education & Research Centre & Ors., reported as (1995) 5 SCC 482 . 8. Per contra, Counsel for the respondent has referred to the past background of the petitioner, which he submits is very relevant for considering the present matter. He has also stated that having taken the benefit of the compassion shown by the respondent No.2, the present writ petition cannot be held to be maintainable. 8. Per contra, Counsel for the respondent has referred to the past background of the petitioner, which he submits is very relevant for considering the present matter. He has also stated that having taken the benefit of the compassion shown by the respondent No.2, the present writ petition cannot be held to be maintainable. It is further stated that admittedly the petitioner has not challenged Clause VII of the employment contract which clearly states that the said contract was valid till 1st November, 2006, which period has long since expired and the writ petition itself has been rendered infructuous. It is also submitted that the petitioner was on probation and continues to be on probation till he is confirmed and that Clause VI of the employment contract cannot be read to mean that at the expiry of six months, the petitioner is deemed to have been confirmed in service. 9. Learned Counsel for the respondent states that the aforesaid judgments referred to and relied upon by the petitioner have no relevance to the case in hand inasmuch as both the cases cited by the Counsel for the petitioner pertain to permanent employee whereas in the present case, the petitioner is only a probationer and the contract that the respondent No.2 executed with the petitioner was a limited period contract. Learned Counsel for the respondent has placed reliance on the judgment of the Supreme Court rendered in the case of Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. reported as III (2006) SLT 539=2006 IV AD (SC) 328= (2006) 4 SCC 1 , to state that even if the Court were to void a contractual employment on the ground that the parties were not having equal bargaining power, that too would not enable the Court to grant any relief to the employee. 10. Lastly, Counsel for the respondent has brought to the notice of this Court the fact that proceedings have also been initiated by the petitioner by invoking the Industrial Disputes Act. It appears that on the basis of the claim filed by the petitioner seeking reinstatement in service, notice was issued by the Additional Labour Commissioner on 30th August, 2006 to the respondent No.2, copies of which are taken on record. It appears that on the basis of the claim filed by the petitioner seeking reinstatement in service, notice was issued by the Additional Labour Commissioner on 30th August, 2006 to the respondent No.2, copies of which are taken on record. It is stated that pursuant to receiving the aforementioned notice, the respondent filed its written statement and both the parties have been appearing before the Additional Labour Commissioner from time-to-time and the conciliation proceedings now stand closed. 11. I have heard learned Counsel for the parties and have also gone through the records as placed before this Court. The petitioner filed the present writ petition as indicated above, on 1st September, 2006 by which date the petitioner had already invoked the provisions of the Industrial Disputes Act and filed a statement of claim for seeking industrial adjudication. The petitioner has withheld this material information from this Court by failing to reveal the fact that he had already invoked an equally efficacious alternative remedy as available to him under the Industrial Disputes Act. Approaching two different For a for virtually the same relief without revealing the said fact to this Court amounts to forum shopping and cannot be permitted. In a case where the petitioner has not approached this Court with clean hands, he is disentitled from invoking the powers of judicial review. This Court does not deem it fit to exercise its power of judicial review in the present case. 12. Even otherwise, assuming that the services of the petitioner could not have been terminated by the respondent No.2, on 4th August, 2006 by way of issuing the termination letter, fact remains that the terms and conditions of the contract clearly stipulated that the contract was a fixed term contract for one year which expired on 1st November, 2006 and hence, as on date, the contract is already over. Therefore, the writ petition itself is rendered infructuous. 13. With the aforesaid observations, the writ petition is dismissed. 14. No orders as to costs. Writ Petition dismissed.