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PETITIONER: F.R. JESURATNAM

       Vs.

RESPONDENT: UNION OF INDIA & OTHERS

DATE OF JUDGMENT22/07/1981

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. REDDY, O. CHINNAPPA (J)

CITATION:  1981 AIR 1595            1982 SCR  (1)  40  1981 SCC  (3) 525        1981 SCALE  (3)1056

ACT:      Right to  reinstatement to a post which is subsequently abolished due  to the  death of  the  project  incharge-Even though  the  vires  of  the  termination  order,  which  was anterior to the closing of the project, is in issue, Supreme Court can  adopt "non-liquet"  and decide  the case based on the subsequent events.

HEADNOTE:      The appellant,  a commissioned  officer in  the  Indian Air-Force, on  a General  Court Martial  was  cashiered  and sentenced to  suffer rigorous  imprisonment for  six  years. Later the  Central Government remitted the unexpired portion of the punishment of rigorous imprisonment. Subsequently, he was appointed  by the  Indian Institute  of Technology for a project work  on a  purely temporary  basis and  subject  to verification of  his  character  and  antecedents  from  the Government and  subject to  the further  condition that  his services could  be terminated  on 24 hours notice in writing by either  side. On  a reference by the I.I.T., the Ministry of Defence  by its  letter dated  November 19,  1977 invited attention to  the Ministry  of Home Affairs Memorandum dated May 14,  1965 to  the effect that persons who were dismissed from service  were disqualified from future employment under the Government  but left  it open  to the  I.I.T. whether it would follow  that principle  in the  case of the appellant. The  Professor   under  whom   the  appellant   was  working recommended the  retention of  the appellant in service. The I.I.T. did  not accept  the said  recommendation and  by its order  dated  January  21,1978  terminated  the  appellant’s services on the expiry of 24 hours. A writ petition filed by the appellant challenging the validity of the said order was dismissed in  limine by  the Delhi  High Court and hence the appeal by special leave.      Dismissing the appeal, the Court, ^      HELD:  The   relief  claimed   by  the   appellant  for reinstatement to  his post  in the  Institute must be denied for the  reasons, namely,  (a) the appointment was temporary only and  could be  terminated on  24 hours  notice; (b) the Professor incharge  of the  project passed away subsequently in June  1978 and,  therefore, the  project in  which he was

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engaged was  finally closed and (c) the period for which the appellant’s post  of Senior  Research  Assistant  had  been, created had come to an end. [43 D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 318 of 1978. 41      From the  judgment and order dated 8th November 1978 of the High  Court of  Delhi at  New Delhi  in C.W.  No. 786 of 1978. Appellant in person      P.A. Francis,  Miss A.  Subhashini and  R.N.Poddar, for Respondent No. 1.      R.N.  Sharma,   R.  N.  Poddar  and  N.N.  Sharma,  for Respondent Nos. 2 and 3.      The Judgment of the Court was delivered by      PATHAK, J.  This appeal  by special  leave is  directed against the  judgment of  the High Court of Delhi dismissing in limine  the appellant’s writ petition against an order of the Indian  Institute of  Technology, Delhi  terminating his services.      The writ  petition by  the appellant was brought on the following allegations. The appellant, with a Master’s degree in Aeronautical  Engineering, was commissioned in the Indian Air Force on March 1, 1958 and in due course was promoted to the rank  of Squadron  Leader. During the years 1972 to 1975 he was  an Assistant  Director in  the Rockets  and Missiles Department  of   the  Defence   Research   and   Development Organization, New  Delhi. In January 1975, the appellant was tried by  a General  Court Martial  on four  charges and was convicted on  two: (1)  under s. 45, Air Force Act, 1950 for behaving  in   a  manner  unbecoming  of  the  position  and character expected  of him as an officer in meeting secretly on several  occasion a  foreign national,  contrary  to  the existing order on the subject and (2) under s. 65, Air Force Act, 1950  for improperly  accepting a  gift from  a foreign national. He  was found  not guilty  on  the  remaining  two charges.  On  March  4,  1975,  the  General  Court  Martial directed  that   he  be   cashiered  and   suffer   rigorous imprisonment for  six months.  The findings  and sentence of the General Court Martial were confirmed by the Chief of the Air Staff on April 8, 1975 and he directed that the sentence of rigorous  imprisonment be  carried out  by confinement in civil prison.  Subsequently, by an order dated May 24, 1975, the Central Government remitted the unexpired portion of the punishment of rigorous imprisonment.      The appellant  was anxious to join the Indian Institute of Technology,  Delhi and  obtained a  certificate to enable him to  do so.  The Air  Headquarters, New  Delhi issued the certificate reciting 42 that he  was commissioned  in the  Indian Air  Force and was posted to the Defence Research and Development Organization, Ministry of  Defence. It  also stated  that he  was tried by General Court  Martial in January, 1975 and in the result he was cashiered  from service  and also  sentenced to rigorous imprisonment for  six months.  The fact  of remission of the imprisonment  was   also  stated.  On  July  15,  1977,  the appellant was  offered appointment  to the  post  of  Senior Research Assistant in the Department of Applied Mechanics of the Indian  Institute of  Technology for  the  programme  of writing  a  monograph  on  ’Large  Deformation  in  Metallic

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materials’ undertaken  by Professor  B. Karunesh of the said Department, and  it  was  specifically  mentioned  that  the appointment was purely temporary, subject to verification of the  appellant’s   character  and   antecedents   from   the Government, and  could be  terminated on  24 hours notice in writing  by   either  side.   The  appellant   accepted  the appointment and joined the Institute the next day.      The appellant alleges that unknown to him the Institute communicated with  the Ministry  of Defence in regard to his employment, and in reply the Ministry informed the Institute by  letter  dated  November  19,  1977  of  the  appellant’s conviction and  sentence by a General Court Martial and also of the  fact of  remission of  the unexpired  period of  his imprisonment. The  letter also  drew the  attention  of  the Institute to  an office memorandum dated May 14, 1965 of the Ministry of  Home Affairs  that persons  who were  dismissed from service  were disqualified from future employment under the Government  and added  whether the same disability would apply in  the case of the appellant should be decided by the Institute. Professor  Karunesh, under whom the appellant was working, was  apparently apprised  of the  Ministry’s letter but  he  recommended  that  the  appellant  be  retained  in service. On  January 21, 1978, the Institute issued an order stating  that   the  appellant’s  services  were  no  longer required and  that they would stand terminated on the expiry of 24 hours. According to the appellant, the Chairman of the Board of  Governors of  the  Institute  noted  that  as  the appellant had  been dismissed  for spying  he should  not be retained in service.      The writ  petition filed by the appellant was dismissed by the  High Court  of Delhi  by an  order dated November 8, 1978.      In this  appeal the  appellant, who  appears in  person contends that  the Institute  had no  ground for terminating his services  as the effect of the order of remission passed by the  Central Government  was to acquit him of the charges on which he had been found guilty, 43 that the  Institute did  not apply  its mind to the facts of the case when deciding to terminate his services, that there was no  material to  support the  comment of  the  Chairman, Board of  Governors, and  in any  event  the  appellant  was entitled to  an opportunity  to be heard before his services were terminated.  It was also contended that the Director of the Institute  had abdicated  his powers. Reference was also made to  s. 73,  Air Force  Act,  1950  in  support  of  the submission  that   the  statute   did  not   bar  employment elsewhere.      We are of opinion that we need not be detained by these contentions. The fundamental relief claimed by the appellant is reinstatement  to his  post in  the  Institute.  For  the reasons which follow that relief must be denied.      It appears from the record before us that the appellant was appointed  in  the  Institute  in  connection  with  the programme of  writing a  monograph on  ’Large Deformation in Metallic materials’  undertaken by  Prof. B.  Karunesh.  The appointment was temporary only and could be terminated on 24 hours’ notice.  It is averred in the counter affidavit filed by the  Institute that  the post  of Research  Assistant, to which the  appellant was appointed, was created for one year only. That  was so,  although according to the appellant the programme extended  to two  years. It has also been affirmed in the  counter affidavit  that on  the death  of  Professor Karunesh in  June, 1978  the project in which he was engaged has been  dropped and  finally closed,  and the  period  for

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which the  appellant’s post of Senior Research Assistant was created has  also expired.  There is  no  reason  why  these averments should not be accepted.      In the  circumstances, we  do not see how the appellant can be granted the relief of reinstatement.      We consider  it unnecessary to interfere with the order terminating the appellant’s services in the Institute.      The appeal  is dismissed,  but we  make no  order as to costs. S.R.                                       Appeal dismissed. 44