Dismissed

Dilip Kumar Jha v. The State Of Bihar and Ors.

Patna HC16 May 2014CWJC/13864/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a computer teacher, holding he was an employee of private agency NIIT under an outsourcing agreement, not the State. The Court held he could not approach the State for service benefits or salary.

What did the court decide?

The writ application was dismissed with a direction to initiate disciplinary proceedings against the Headmaster of the High School.

Dilip Kumar Jha Vs The State Of Bihar and Ors. — Service and Employment | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13864 of 2013

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====================================================== Dilip Kumar Jha, son of Sri Jai Kumar Jha, resident of village- Baijani, P.S.- Jagdishpur, District- Bhagalpur at present working as Computer Teacher, Government High School, Noorpur, Nathnagar, Bhagalpur, District- Bhagalpur

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.... .... Petitioner/s

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Versus

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1. The State of Bihar

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The Principal Secretary, Human Resources Development Department, Govt. of Bihar, Patna

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The District Magistrate, Bhagalpur

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The District Education Officer, Bhagalpur

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The Principal, Government High School, Noorpur, P.S. - Nathnagar, District- Bhagalpur

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.... .... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. Pramod Man Bansh, Advocate. For the Respondent/s : Mr. S.S. Shabbar Hussain, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA

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CAV JUDGMENT

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4 16-05-2014 Heard learned counsel for the parties.

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The prayer of the petitioner in this writ application

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reads as follows:

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“…. commanding the Respondent to allow the petitioner to continue to do the job of computer Teacher at Govt. High School Noorpur treating the termination as noneast in the eye of law and also to pay the salary due from 31.04.11 up till now and also for issuance of writ of certiorari to quash order dated 20.4.13 passed by District Magistrate, Bhagalpur in misc. (service) case No. 7/2012-13”.

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Learned counsel for the petitioner, in support of the aforementioned prayer, has basically concentrated on the aspect that the impugned order passed by the Collector of

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Patna High Court CWJC No.13864 of 2013 (4) dt. 16-05-2014

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Bhagalpur District, pursuant to an earlier direction of this Court dated 6.03.2012 in CWJC No. 13123 of 2011, is bad both on facts and in law inasmuch he had failed to analyse the real issue and decide the matter objectively. In this regard he has also highlighted the aspect that the petitioner’s services were actually dispensed with even without issuing a show cause notice and/or opportunity of hearing. He has further explained that the work of a computer teacher is still available in the school where the petitioner was working earlier pursuant to an order of appointment and as such there should be no difficulty in utilizing the services of the petitioner after setting aside the order of termination.

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Learned counsel for the State, on the other hand, has supported the impugned order passed by the Collector of Bhagalpur District and according to him, the petitioner infact was never appointed by the Respondent Collector and/or officials of the State and as such there is no relationship between employee and the employer. He has also explained that the Government had actually out sourced the work of computer training in the schools through an agency, namely, NIIT under the duly executed contract and, therefore, the supply of man power and/or machinery was the burden of NIIT in which neither the Government had selected any person including the petitioner nor had terminated his service. According to learned Counsel for the State the petitioner, in fact, was engaged only by NIIT and, therefore, his any and other claim either for employment or for payment of remuneration in terms of such employment was between him and NIIT for which a writ petition itself was not maintainable.

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This Court on perusal of materials on record would find force in the submission of the learned counsel for the State.

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Patna High Court CWJC No.13864 of 2013 (4) dt. 16-05-2014

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From the documents on record including the communication of the Principal Secretary, Education Department dated 08.06.2007 addressed to all the Collectors and District Education Officers, it is borne out that the Government had only sanctioned certain amount fund for imparting computer education and for this purpose it had also issued tender notice wherein the Bihar State Electronics Development Corporation Ltd. (hereinafter referred to as ‘the BELTRON’) was made the executing agency. Such records further go to show that BELTRON having selected NIIT had entered into an agreement on 24.3.2008 for a period till 25.02.2011 known as NIIT NON EXCLUSIVE BUSINESS ASSOCIATION AGREEMENT as contained in Annexure-3. In the aforesaid agreement it was specifically mentioned that the NIIT had been selected for execution of the contract in four hundred Government High Schools for a period of three years for imparting computer education in the High Schools in the State of Bihar including the leasing of computer hardware, software and connected accessories on Build Own Operate Transfer (BOOT) basis. The details of such agreement, being part of Annexure-3, are not required to be quoted in this order, but from bare reading of the same would make it clear that the Government did not make any direct appointment of any teacher and, in fact, it was the NIIT which had also issued the advertisement in newspaper for engaging computer teachers as is also apparent from perusal Annexure-4 of the writ application.

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The appointment of the petitioner was also made by the NIIT and, in fact, the letter of NIIT dated 26.09.2008 reading as follows:

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“Dated 26.09.2008 To The Principal,

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Patna High Court CWJC No.13864 of 2013 (4) dt. 16-05-2014

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Mr. Kailash Rajak High School, Noorpur, Bhagalpur

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Respected Sir/Madam,

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Through this letter we would like to introduce the following faculty member who has been deputed in your esteemed school to impart computer education to students under „ICT @ SCHOOL PROJECT‟ of Government of Bihar. Below mentioned person will report to you and you are requested to extend your cooperation in starting computer classes immediately.

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Dilip Kumar Jha

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For all administrative purpose, deputed faculty will report to your office. Her/His duty time and off days are as per the school timing and school vacation calendar. Her/His salary will be disbursed through our office. Please acknowledge on a copy of this letter as testimony of the faculty joining for duty and commencement of computer classes. Once again we look cooperation and necessary guidance and direction in making this project a success.

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With warm regards, Abhijit Pain Regional Delivery Manager NIIT Ltd., SLS Division India East.”,

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will leave nothing for speculation that the petitioner is out and out an employee of NIIT, who was only deputed to impart computer education to the students in the High School under ICT @ SCHOOL PROJECT. As a matter of fact, the liability of payment of salary of the petitioner was also that of NIIT.

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In view of the above, the herculean effort made by the petitioner for becoming a computer teacher in the High School and on the basis of certain work done by him during election duty is wholly uncalled for. In fact from the order of the Presiding Officer of the Labour Court dated 23.11.2011 it would be borne out that when the petitioner had certain dispute with regard to payment of his wages, he had filed his case against NIIT and a compromise was arrived at only between the petitioner and the NIIT, as is evident from the extract of the order of the

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Patna High Court CWJC No.13864 of 2013 (4) dt. 16-05-2014

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Presiding Officer, Labour Court dated 23.11.2011 in Misc. Case

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No. 45 of 2009, which reads as follows:

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U;k;ky; ihBklhu inkf/kdkjh Je U;k;ky; Hkkxyiqj

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fofo/k okn l a 0&45@2009

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fnyhi dqekj >k s/o t; dqekj >k] xzk0$iks0 cStkuh ftyk Hkkxyiqj

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ouke

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uhV bfM;k fyfeVsM fcgkj fo|ky; ijh{kk lfefr ¼flfu;j a ldsUMzh½ vkBok a ry dejk u a 0 801 cq/kekxZ iVukA

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--------------- foi{kh

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23.11.11. Parties are present. A compromise petition has been filed by the parties, which bears the signature of the parties. Applicant himself has come to support the compromise through his depositing before the court. O.P. has provides Rs. 9300= in cash to the applicant. Applicant has endorsed the receiving of above amount on order sheet.

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Considering the facts and circumstances of the case, this case is awarded in terms of compromise. Compromise petition shall be part of the award.

Sd/-

23.11.11

ih0 ink0

Je U;k;ky; Hkkxyiqj

It appears that after completion of the period of contract when the petitioner was not getting his salary, he had cleverly moved the District Education Officer by quoting the aforementioned order of the Presiding Officer, Labour Court and when it did not yield any fruitful result he had moved this Court by filing a writ application, CWJC No. 13123 of 2011, which was disposed of on 06.03.2012 recording as follows:

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“ Without expressing any opinion to the merit of the claim of the petitioner this Court has applied its mind to the issue looking into the nature of the relief which is being sought by the petitioner.

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The petitioner is directed to approach the District Magistrate, Bhagalpur, with his claim which shall be got examined and decision on the outcome thereof will be communicated to the petitioner preferably within a period of three months from the date of receipt/production of a copy of this order.

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The writ petition is disposed of.”

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The Collector of Bhagalpur District, in fact, in

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Patna High Court CWJC No.13864 of 2013 (4) dt. 16-05-2014

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compliance of the aforementioned order of this Court, has passed a reasoned order wherein he held that the Government or its officials had nothing to do as with regard to either appointment or continuance of the petitioner in service or even payment of his salary. The Collector, in fact, had analysed the whole thing in a

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very graphic manner and has gone to hold as follows:

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^^bl okn ds l a nHkZ es a ;kfpr izfrosnu ds dze es a ftyk f'k{kk inkf/kdkjh] Hkkxyiqj }kjk i=k a d 419] fnukd 23-02-13 ds ek/;e a ls oLrqfLFkfr dh foospuk fuEu:is.k dh x;h gS&

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(i) Regional Delivery Manager NIIT Ltd. SLS Division, India East Kolkata ds i=k a d 'kwU; fnuk a d 26-09-08 }kjk fuxZr fu;qfDr i= ds vk/kkj ij fnuk a d 29-09-08 dks Jh fnfyi dqekj >k us fo|ky; es a dEi;wVj f'k{kd ds in ij ;ksxnku fd;kA ¼AA½ fo|ky; }kjk Jh >k ds fo|ky; es a ;ksxnku ,o a mifLFkfr fooj.kh dh lwpuk le;≤ ij Regional Delivery Manager NIIT Ltd. SLS Division, India East, Kolkata Hkstk x;k gSA a

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¼AAA½ fo|ky; }kjk Jh >k ls fnuk a d 29-09-08 ls fnlEcj 2011 rd dk;Z fy;k tkrk jgk gSA tcfd Jh eMy ds fnuk a a d 28-10-09 dks ;ksxnku ds lkFk gh Jh >k dks fu;ekuqlkj dk;Z fojfdr dj nsuk FkkA tks iz/kkuk/;kid }kjk ugh fd;k x;k gS a a Jh >k ls 29-10-09 ls fnlEcj 2011 rd fy;k x;k dk;Z iz/kkuk/;kid ds LosPNkpkfjrk ,o a euekusiu dk ?kksrd gS a (iv) Regional Delivery Manager NIIT Ltd. SLS Division, India East, Kolkata ds i=k a d NIIT SLSE/Bihar/ICT/Comp/teacher/02 fnuk a d 1410-09 }kjk Jh >k ds LFkku ij Jh lquhy dqekj e a My] dEi;wVj f'k{kd dh fu;qfDr dh x;hA Jh eMy us fnuk a a d 28-10-09 dks fo|ky; es a dEi;wVj f'k{kd ds in ij ;ksxnku fd;kA

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¼ ½ Jh >k ds fu;qfDr i= es a mudk osru Hkqxrku Regional Delivery Manager NIIT Ltd. SLS Division, India East, Kolkata ds dk;kZy; ls fd;s tkus dh ckr v a fdr gSA fdUrq Jh >k dks fdl vof/k dk Hkqxrku fdl :i es a fd;k x;k rFkk fdl vof/k dk Hkqxrku y a fcr jgk bl l a c a /k es a fo|ky; dks fdlh izdkj dh tkudkjh vizkIr gSA v/kksgLrk{kjh }kjk mHk; i{kks a dks lwuk x;kA miyC/k vfHkys[k ,o a l a yXu dkxtkrks a ds voyksdu ls Kkr gksrk gS fd Regional Delivery Manager NIIT Ltd. SLS Division, India East, }kjk vius i=k a d SLSE/Bihar/ICT/Comp/teacher/02 fnuk a d 1410-09 }kjk Jh fnfyi dqekj >k ds LFkku ij Jh lquhy dqekj eMy dh fu;qfDr mPp fo|ky; uwjiwj ukFkuxj Hkkxyiqj es a a fd;k x;kA rnqijkUr Jh lqfuy dqekj e a My }kjk fnuk a d 28-1009 dks iz/kkuk/;kid mPPk fo|ky; uqjiqj ukFkuxj Hkkxyiqj dks lEcksf/kr vkosnu ds ek/;e ls ;ksxnku lefiZr fd;k x;k gS]

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Patna High Court CWJC No.13864 of 2013 (4) dt. 16-05-2014

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ftlij l a c a f/kr iz/kkuk/;kid }kjk ^^------------- vuqefr nh tkrh gS ** v a fdr gS mijksDr vkyksd es a a Li"V gS fd iz/kkuk/;kid] mPp fo|ky; uqjiqj ukFkuxj] Hkkxyiqj }kjk fnuk a d 28-10-09 ds ckn fnlEcj 2011 rd Jh fnfyi dqekj >k ls dk;Z fy;k tkuk loZFkk vuqfpr gS ;gk a a ;g Hkh mYys[kuh; gS fd Jh >k dks fdl vof/k dk Hkqxrku fdl :i es a fd;k x;k rFkk fdl vof/k dk Hkqxrku yfcr jgk] bl l a a c a /k es a Hkh fo|ky; dks u rks fdlh izdkju dh tkudkjh izkIr gS ,o a u gh l a c a f/kr iz/kkuk/;kid }kjk NIIT Ltd. SLS Division, India East, dks mijksDr ekeys ds l a nHkZ es a voxr gh djk;k x;kA vr% mijksDr vkyksd es a vkns'k fn;k tkrk gS fd NIIT Ltd. SLS Division, India East, lquokbZ dj l a c a f/kr dks Hkqxrku ds l a c a /k es a fu.kZ; ikfjr djsA lkFk gh ftyk f'k{kk inkf/kdkjh] Hkkxyiqj dks vkns'k fn;k tkrk gS fd bl okn ls l a c a f/kr iz/kkuk/;kid] mPp fo|ky; uwjiqj ukFkuxj ds fo:n~/k fof/kor :i ls vuq'kklfud@foHkkxh; dk;Zokgh izkjHk a dh tk;A

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ys[kkfir ,o a l a 'kksf/krA g0@& g0@& lekgRrkZ lekgRrkZ Hkkxyiqj HkkxyiqjA**

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From the aforementioned extract of the order, it would be more clear that the petitioner is not an employee of the State Government and as such would not be entitled to enforce his terms of contract against the State Government or its officials. The petitioner is out and out an employee of a private employer, namely, NIIT and, therefore, he cannot claim either payment of his salary or continuance in service as computer teacher in High School. NIIT is not a ‘State’ within the meaning of Article 12 of the Constitution of India and, therefore, this Court cannot issue any direction to NIIT. The Collector of the Bhagalpur District, in fact, has rightly held that it was the Headmaster of the Noorpur High School, Nathnagar, who had created some unnecessary trouble for the Government by creating a relationship between the State Government and employee as also taking work from the petitioner and for which the Collector has rightly directed the District Education Officer to initiate a disciplinary/departmental proceeding against the Headmaster of Noorpur High School, Nathnagar.

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Patna High Court CWJC No.13864 of 2013 (4) dt. 16-05-2014

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That being so, this writ application is absolutely without any merit and is, accordingly, dismissed.

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Let a copy of this order be also sent to the Director, Secondary Education, the disciplinary authority of the post of Headmaster in the High Schools, to initiate and conclude a departmental proceeding against the concerned Headmaster of Noorpur High School, Nathnagar, Bhagalpur, within a period of six months from the date of receipt of this order.

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(Mihir Kumar Jha, J)

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Patna High Court Dated 16th May 2014 AFR Sujit/-

Dilip Kumar Jha v. The State Of Bihar and Ors.

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Dilip Kumar Jha v. The State Of Bihar and Ors.

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