Delhi High Court – Orders
Ms. Shaily Gaur vs Union Of India And Anr on 13 March, 2026
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10132/2018
MS. SHAILY GAUR .....Petitioner
Through: Mr. Mohd. Irshad Hanif, Adovcate.
versus
UNION OF INDIA AND ANR. .....Respondents
Through: Mr. Vinay Mohan Sharma, Mr.
Ravinder Kumar Yadav, Mr.
Kanishak Yadav, Mr. Paras Juneja,
Advocates for Respondent No. 2
(NIXI)
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 13.03.2026
1. The Petitioner calls in question the termination order dated 13 th July,
2018,3 issued by Respondent No. 2, National Internet Exchange of India
(“NIXI”), whereby her employment was brought to an end with immediate
effect. The prayer is for quashing of the said order, reinstatement with
consequential benefits, and a further direction for constitution of an internal
committee to inquire into the allegations of sexual harassment said to have
been raised by the Petitioner.
2. Certain foundational facts are not in dispute. The appointment letter
dated 19th May, 2006 placed the Petitioner on probation for three months
and reserved NIXI a right to terminate during probation on one month’s
notice. The note dated 1st September, 2006 records that her probation case
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was placed for favourable consideration, and the Screening Committee
Minutes of February 2007 show that she was recommended at the entry
level of Group A. The confirmation letter dated 28th February, 2007 then
confirmed her as Management Executive with effect from 1 st March, 2007,
as Grade A employee, and at the same time expressly reserved to the
company a right to terminate her services on three months’ prior notice, with
a reciprocal stipulation for resignation by the employee. Later pay-revision
letters continued to reiterate the same termination condition.
3. The controversy arose after the Petitioner had remained on maternity
leave and earned leave. On 27th April, 2018, NIXI issued a communication
styled as “renewal of appointment” on contractual basis until 31st March,
2019, along with terms and conditions. The Petitioner objected by email
dated 3rd May, 2018, asserting that she was a permanent employee since 1 st
March, 2007 and that her case ought to have been processed for increment
rather than extension of contract. Reminders followed. Thereafter, on 11 th
July, 2018, work allocation was altered and the Petitioner’s functions were
reduced to “General Administration (office maintenance) excluding major
non technical procurements”, with reporting to General Manager, Business
Development [“GM(BD)”]. On 13th July, 2018, the Petitioner sent a
compliance email referring to her earlier complaint about the conduct of
GM(BD), and the same day the impugned termination order was issued. The
order states that the employment contract stood terminated with immediate
effect and that three months’ basic salary in lieu and all due entitlements
would be paid with reference to the offer letter dated 27th April, 2018.
Contentions
4. The Petitioner’s case, in substance, is that she entered the service of
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NIXI on 19th May, 2006 as a Management Trainee and successfully
completed the probation period. It is her contention that her performance
was found satisfactory and, pursuant to the recommendation of the
Screening Committee, her services were confirmed. According to her, from
that point onward she formed part of the regular establishment of
Respondent No. 2 and continued to discharge her functions in that capacity
for more than a decade, during which period her pay and emoluments were
revised from time to time in the ordinary course. She relies upon the
contemporaneous service record, including the noting recording clearance of
probation, the Screening Committee proceedings, and the confirmation
letter, to submit that her status as a confirmed employee stood recognised
long before the dispute in question arose.
5. The Petitioner further contends that NIXI is not an ordinary private
employer but an entity functioning under the administrative control of the
Ministry of Electronics and Information Technology and entrusted with
functions of public importance relating to the internet infrastructure of the
country, including management of the “.IN” registry. On that basis, it is
urged that NIXI answers the description of “State” or an instrumentality of
the State within the meaning of Article 12 of the Constitution and is
therefore amenable to the writ jurisdiction of this Court.
6. The Petitioner also places reliance on the Human Resource Policy
Manual and Service Rules of NIXI, which, according to her, govern the
conditions of service of employees of NIXI. She points out that the policy
contemplates a probationary period for new recruits, after which the
employment stands confirmed upon satisfactory completion, and further
provides guidelines for separation of employment, including the requirement
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of written notice and the involvement of the HR department and
departmental heads in the process. The Petitioner submits that these
provisions reflect a structured service framework which, according to her,
was not adhered to in the present case.
7. On facts, the Petitioner alleges that during her employment she was
subjected to objectionable and unwelcome conduct by the GM(BD). She
states that she resisted such conduct and raised complaints in that regard
before the management. According to her, the matter did not receive due
attention and instead resulted in hostility from the said officer as well as the
CEO of NIXI. She further states that she proceeded on maternity leave with
effect from 1st September, 2017 and thereafter remained on earned leave
until 1st July, 2018 on account of the health condition of her child.
8. The Petitioner asserts that while she was still on leave, NIXI issued a
communication dated 27th April, 2018 treating her engagement as
contractual and proposing an extension of such engagement until 31 st March,
2019, along with terms and conditions requiring her acceptance. She
objected to the said communication by email dated 3 rd May, 2018 and
subsequent reminders, asserting that she had long since been confirmed as a
regular employee and that her services could not be retrospectively
converted into a contractual engagement after more than a decade of
confirmed service.
9. The Petitioner states that she resumed duties on 2nd July, 2018. Upon
rejoining, she claims to have noticed certain irregularities in the functioning
of the office, including alleged irregular recruitment and financial
discrepancies, which she states were brought to the notice of senior
management. She also reiterates that the conduct of the GM(BD) continued
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to cause her concern and that she addressed communications complaining of
such behaviour. According to her, instead of addressing these issues, the
management first withdrew the HR and Administrative responsibilities
earlier entrusted to her, placed her under the reporting control of the officer
against whom she had complained, and shortly thereafter issued the
impugned order dated 13th July, 2018 terminating her services with
immediate effect.
10. On this foundation, the Petitioner contends that the impugned action
is arbitrary, mala fide and vitiated by victimisation. She submits that after
having been confirmed in service and having served for over a decade, her
employment could not lawfully be brought to an end in such abrupt fashion
without adherence either to the service framework reflected in the
employer’s own HR Policy or to the basic requirements of fairness and
natural justice. She further contends that the description of her engagement
as contractual in the termination order is incorrect and that the termination
was in reality a retaliatory measure following her objections to the
contractual communication and her complaints regarding sexual harassment
and other irregularities.
11. In law, the Petitioner invokes Articles 12, 14, 16 and 311 of the
Constitution and contends that NIXI, being an instrumentality of the State, is
bound to act in a fair, reasonable and non-arbitrary manner. It is submitted
that the impugned termination, having been effected without notice, reasons,
or opportunity of hearing, is violative of the principles of natural justice. The
Petitioner further asserts that, she had a legitimate expectation of being
treated in accordance with the service framework governing employees of
NIXI. Also, once complaints of sexual harassment had been raised, NIXI
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was under a statutory obligation to address the same in accordance with the
provisions of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 20131, rather than place the Petitioner under
the control of the officer against whom the complaint was directed and
thereafter terminate her services. Reliance is also placed on Central Inland
Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr.2
to contend that a termination clause operating in an arbitrary or
unconscionable manner cannot be enforced where public law principles are
attracted.
12. NIXI contests the writ at the threshold. It pleads that it is a Section 25
company limited by guarantee, not for profit, without share capital, and not
funded by budgetary support of the Government. It is accordingly contended
that NIXI is neither “State” nor an instrumentality of the State within the
meaning of Article 12 and that the present writ petition is not maintainable.
13. In its written submissions and reply, NIXI relies on the appointment
letter, confirmation letter, subsequent revision letters, and the
communication dated 27th April, 2018 to contend that the Petitioner’s
employment was governed by express contractual stipulations permitting
termination upon notice or payment in lieu thereof, and that the impugned
termination was effected in accordance with those terms with payment of
three months’ salary and due entitlements. NIXI also denies the allegations
of sexual harassment, victimisation, financial irregularity and mala fides,
and states that the change in work allocation was merely an administrative
measure. It further relies on decisions such as K.K. Saksena v. International
1
“POSH Act”
2
(1986) 3 SCC 156.
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Commission on Irrigation and Drainage & Ors.3 and Binny Ltd. & Anr. v.
V. Sadasivan & Ors.4 to contend that a writ under Article 226 would not
ordinarily lie in matters arising out of private contractual employment
lacking a public law element.
14. Three issues arise for determination. First, whether the action
impugned in the present case is open to judicial review under Article 226.
Second, if it is, whether the termination order dated 13 th July, 2018 is
vitiated by arbitrariness, unfairness, mala fides, or any other public law
infirmity notwithstanding the termination clauses contained in the
Petitioner’s service record. Third, whether any further direction survives for
consideration in relation to the Petitioner’s complaint of sexual harassment.
Analysis
15. At the outset, this Court proceeds on the footing most favourable to
the Petitioner, namely, that NIXI is amenable to writ jurisdiction and that its
action can be tested on the anvil of Article 14. It is settled that the mere
presence of a contract does not, by itself, oust the writ jurisdiction of this
Court where the impugned action is that of the State or of an authority
subject to public law obligations. State action does not become immune
from scrutiny merely because it arises from an underlying contractual
dispute. The requirement of fairness, reasonableness and non-arbitrariness
continues to apply.5 At the same time, that proposition must be kept within
its proper bounds. A writ may lie to test whether the impugned action is
arbitrary or unfair. It does not follow that every dispute arising out of a
3
(2015) 4 SCC 670.
4
(2005) 6 SCC 657.
5
See: ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. (2004) 3 SCC 553;
Shrilekha Vidyarthi (Kumari) v. State of U.P. (1991) 1 SCC 212.
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contract of employment must necessarily result in judicial interdiction, much
less reinstatement.
16. The real question, therefore, is not whether this petition can be
entertained at all, but whether the Petitioner has been able to demonstrate a
public law infirmity in the impugned action. On that issue, the Court must
examine the nature of the employment, the governing service documents,
the character of the termination, and the extent to which the Petitioner’s
challenge discloses something more than a complaint that the contract ought
not to have been brought to an end. The decisions in K.K. Saksena and
Binny Ltd. remain instructive in this area. They emphasise that even where a
writ petition is maintainable against a body performing public functions, the
Court must determine whether the impugned action lies in the domain of
public law as distinguished from private law. Judicial review under Article
226 is concerned with the public law element of the decision, and not with
enforcing purely contractual obligations or every private-law incident of a
contract of service as though it were specifically enforceable in writ
proceedings.
17. Tested on that standard, the Petitioner’s case does not advance beyond
the realm of a contractual service dispute. The record does show that she had
been confirmed in service and had continued for several years thereafter.
However, the same record also shows that the confirmation letter, as well as
the later pay revision letters, preserved in favour of NIXI an express right to
terminate the employment upon notice or payment in lieu thereof. The
Petitioner has not been able to show that she held a civil post under the
Union or the State, or that her tenure was protected by any statutory service
rules having overriding force. The dispute, therefore, remains one arising out
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of a contract of service. Once the Court examines the impugned action on
merits and finds no manifest arbitrariness, punitive camouflage, or other
public law vice sufficient to displace the contractual framework, the
Petitioner cannot seek reinstatement merely by invoking Article 14.
18. Even on merits, the Petitioner cannot get past the service record. The
confirmation letter dated 28th February, 2007 no doubt confirmed her service
and placed her in Grade A. That, however, did not confer a protected tenure
immune from termination upon notice or payment in lieu thereof. The letter
of confirmation itself expressly reserved NIXI the right to terminate the
employment on three months’ prior notice, and the later pay revision letters
reiterated the same condition. The Petitioner’s submission that confirmation
and long continuance in service had the effect of overriding that stipulation
cannot be accepted. Confirmation in these circumstances meant no more
than that probation had ended and that she continued in the regular pay
structure of the organisation. It did not nullify the express term governing
termination.
19. The HR Policy Manual and Service Rules do not improve the
Petitioner’s position. Far from overriding the appointment documents, the
manual itself expressly provides that “if an employee’s appointment order or
contract letter mentions something specific which differs from what is
mentioned in this document, then that specific clause will prevail”. The
manual further clarifies that its provisions would apply only where the
appointment or contract documents are silent. Once that primacy clause is
kept in view, the Petitioner cannot rely upon selected portions of the manual
to nullify the express termination provisions incorporated in her appointment
and subsequent service documents. The manual may regulate internal
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administrative processes, but it does not invalidate contractual stipulations
governing the tenure of employment.
20. The provisions of the manual relating to separation also do not
advance the Petitioner’s case. The section dealing with employees “Leaving
NIXI” itself contemplates termination of employment with notice or salary
in lieu thereof, and refers to different notice periods depending on the stage
and circumstances of service, including a shorter notice period during
probation and a longer notice period after confirmation. In any event, the
manual does not create a statutory tenure or confer protection against
termination independent of the terms contained in the appointment
documents. Once the confirmation letter expressly reserves in favour of the
employer a right to terminate the employment upon notice or payment in
lieu thereof, the Petitioner cannot find a claim for reinstatement merely by
pointing to internal policy dealing with managerial processes surrounding
separation.
21. The Petitioner urged that the impugned termination was not an
ordinary contractual severance, but an act of mala fide retaliation. According
to her, it followed complaints of sexual harassment against the GM(BD) and
her objections to irregularities in the functioning of the office. These
allegations cannot be brushed aside lightly. The record does show that on 6 th
July, 2018, the Petitioner wrote that the conduct of GM (BD) was
“intimidating and harassing, and beyond acceptable professional
boundaries”. It also shows that on 13th July, 2018, while responding to the
altered reporting structure, she expressly referred to the objectionable
behaviour of GM (BD), protested against being placed under him, and
reiterated that she had already brought the matter to the notice of the CEO.
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The record therefore does show that the grievance had in fact been voiced by
the Petitioner before and around the time the impugned order came to be
issued.
22. That, however, is not the same thing as a concluded finding that the
termination stood proved to be punitive, retaliatory, or motivated by
victimisation. NIXI has squarely denied the allegations of sexual
harassment, denied any retaliatory intent, and denied that the Petitioner had
raised genuine issues of irregularity. It has also maintained that the alteration
in work allocation was administrative in character and that the termination
was effected strictly in terms of the governing service documents. On the
material available, disputed questions of motive, harassment, retaliation, and
alleged whistleblower reprisal cannot be conclusively tried. Those issues
would require evidentiary examination. Writ jurisdiction is not appropriate
for returning definitive findings on such contested questions of fact where
the foundational assertions themselves are in dispute.
23. The Petitioner’s reliance on Article 311 is misplaced. Article 311
protects persons who hold civil posts under the Union or a State. No
material on this record establishes that the Petitioner held such a civil post.
Service under a company incorporated under the Companies Act does not
become service under the Union merely because governmental elements
may be visible in the company’s structure or supervision. NIXI’s pleadings
also specifically dispute that position. In any event, the present record falls
well short of what would be required to attract the constitutional protection
available to civil servants.
24. Insofar as the prayer relating to constitution of an Internal Committee
is concerned, that aspect has, during the pendency of proceedings, been
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taken care of. The Petitioner has placed before this Court the order dated 8 th
January, 2026 passed in W.P.(C) 1013/2021. That order records that
Respondent No. 2 had already reconstituted the ICC by office order dated
29th September, 2021.
25. In view of the aforesaid subsequent development, the specific relief
sought in the present petition for a mandamus directing constitution of the
Internal Committee does not survive for independent adjudication. The issue
of constitution and reconstitution of the ICC has already been carried to this
Court in separate proceedings and stands dealt with in the above referred
proceedings. At the same time, that later order cannot be read as returning
any finding that the allegations of sexual harassment stand proved, or that
the impugned termination must, for that reason alone, be treated as
retaliatory. The present writ petition must therefore be determined on its
own footing so far as the challenge to the termination order is concerned.
26. The reliance on Central Inland Water Transport does not carry the
Petitioner’s case to the relief of reinstatement. That decision arose in the
context of a government company held to be an instrumentality of the State,
where a service rule conferred an unguided power to terminate the services
of permanent employees on notice without assigning reasons. The Supreme
Court struck down that provision as unconscionable and opposed to public
policy, having regard to the inequality of bargaining power between the
employer and the employee and the absence of any procedural safeguards.
Binny Ltd. explains that principles of that nature, though applicable in an
appropriate public law setting, cannot be mechanically extended to every
contract of employment. Once this Court finds that the dispute is, in
substance, one concerning enforcement of a contract of service and does not
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fall within a recognised public law exception warranting reinstatement in
writ jurisdiction, the said line of authority cannot be invoked to secure the
relief sought.
27. There is also no substance in the submission that because no reason
was assigned and no show-cause notice preceded the impugned order, the
termination must for that reason alone fall. That argument would have force
where the employer purported to punish for misconduct or to inflict a civil
consequence in the exercise of public power requiring observance of audi
alteram partem. Here, however, the order on its face is a simpliciter
termination invoking the contractual right to end the employment on
payment in lieu.
28. The Petitioner’s challenge to the communication dated 27th April,
2018, whereby her engagement was sought to be treated as contractual up to
31st March, 2019, also does not carry the matter further. She did object to
that communication and maintained that she had long since stood confirmed
as a regular employee. That objection does expose an inconsistency in
NIXI’s narrative, having regard to the earlier confirmation and the
subsequent service record. Even so, the point is not decisive for the present
controversy. Quite apart from the communication dated 27th April, 2018, the
confirmation letter and the later pay revision letters preserved in favour of
NIXI an express right to terminate the employment upon notice or payment
in lieu thereof. The validity of the impugned termination, therefore, does not
turn on whether the communication dated 27th April, 2018 was correctly
issued or formally accepted by the petitioner.
Conclusion
29. For the reasons aforesaid, the challenge to the termination order fails.
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The impugned order dated 13th July, 2018 does not warrant interference in
exercise of jurisdiction under Article 226. The prayer for reinstatement with
consequential benefits is, accordingly, declined.
30. Insofar as the prayer relating to constitution of the Internal
Complaints Committee is concerned, the same does not survive for
independent consideration in view of the subsequent order dated 8th January,
2026 passed in W.P.(C) 1013/2021 and the directions issued therein.
31. The writ petition is, accordingly, dismissed.
32. It is clarified that dismissal of the present writ petition shall not
preclude the Petitioner from availing such remedies as may otherwise be
open to her in law, whether in relation to any claim arising out of the
contract of employment before the competent civil, labour or other forum, or
in relation to any complaint or proceeding maintainable in accordance with
law concerning the allegations of sexual harassment. All rights and
contentions in that regard are left open.
SANJEEV NARULA, J
MARCH 13, 2026/ab
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