IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 451 of 1993 WITH CIVIL APPLICATION NO. 2490 OF 1993 WITH CIVIL APPLICATION NO. 644 OF 1994 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE RAVI R. TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : YES -------------------------------------------------------------- INDIAN INSTITUTE OF MANAGEMENT Versus UKAKANT SHRIVASTVA -------------------------------------------------------------- Appearance: MR KS NANAVATI, Senior Advocate with Mr. Nandish Chudgar advocate for Appellants MR AD SHAH for MR M.R ANAND for Respondent No. 1 MS PJ DAVAWALA for Respondent No. 2 (Absent) -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE RAVI R. TRIPATHI Date of decision: 16/03/2001 & 20/04/2001 ORAL JUDGEMENT (Per : MR.JUSTICE B.C.PATEL) #. This appeal is directed against the judgment and order delivered by the learned Single Judge of this Court in Special Civil Application NO. 77/93 on 29.9.93. #. Respondent No.1 herein, the original petitioner, filed the aforesaid petition under Art. 226 of the Constitution of India against the order of termination of his services. The respondent No.1 was Professor in the Indian Institute of Management, Ahmedabad (hereinafter to be referred to as "the Institute and/or IIMA"). By the letter dated 5.1.93 vide Annexure : A to the petition, his services were terminated. The appellant Institute was of the view that it is not in the interest of the Institute to continue the respondent No.1 in services and therefore, his services were terminated with immediate effect. Along with the letter, a sum of Rs. 30,660/towards three months' salary by banker's pay order was forwarded giving particulars. The respondent No.1 was requested to settle the accounts with Finance & Accounts office in the course of time. The respondent No.1 was requested to surrender the library books and other articles belonging to the Institute. The respondent No.1 was requested to give vacant possession of the respondent No.1 's faculty house no. 304 to the Housekeeping Officer on or before 31st January, 1993. #. The Indian Institute of Management is a society registered under the Societies Registration Act, 1860 and is also registered under the Bombay Public Trust Act. There is Board of Governors looking after the property and affairs of the Institute. It is contended that the Institute was established in the year 1962 by the Government of India and Government of Gujarat. It is contended in the petition that the Indian Industry also participated in the establishment of the Institute. Such Institutes are also at Calcutta and Bangalore. #. It is contended by the respondent No.1 that the Government of India bears the main financial burden through consolidated funds of the Government of India and ultimate control of the Institute is with the Government of India. According to the respondent No.1, in view of the Memorandum of Association, the rules and the affidavit-in-reply in Special Civil Application No. 889/80 filed by one A.K. Rajan, it is clear that there is complete control of the Institute by the Government of India. The respondent No.1, relying upon the decision of the Apex Court in the case of RAMANNA D SHETTY VS. INTERNATIONAL AIRPORT AUTHORITY [AIR 1979 SC 1638] contended that the Institute is an instrumentality of the State under Art. 12 of the Constitution and therefore is amenable to writ jurisdiction of this Court under Art. 226 of the Constitution. #. It is further contended that the Institute is engaged in imparting education which is one of the public functions of the Institute in the field of management, education, training and research which is vitally essential for the rapid economical and social development of the country. Therefore also it must be deemed to be a State under Art. 12 of the Constitution of India. #. A student of the Institute addressed a letter to the Coordinator, Student Activity Centre on 29th June, 1992 and forwarded a copy of the same to the Director, I.I.M., Chairman, Research & Publications, Professors of PGP Executive Committee, CMA Chairman & P & QM Area Chairman. The student, in the aforesaid letter raised a grievance that the standards of morality is applied only for students found copying in the examinations, quizzes and assignments, and not for the Professors. It is pointed out in the letter as under. (relevant portion is reproduced): "While doing my summer project, I had to do some modelling and data analysis. I had carried my copies of Levin (Statistics for Management), and Baumol (Economic Theory and Operations Analysis) along. From the organisation I was in, I borrowed copies of Wagner (Principles of Operations Research) and Quantitative Techniques for Managerial Decisions by U.K. Srivastava ( a CMA Prof. at IIMA), G.V. Shenoy & S.C Sharma. As I was browsing through the books, I came across a most interesting thing. At several places, the Srivastava, Shenoy, Sharma book had simply lifted stuff from the other three books (Baumol, Levin and Wagner) and no references anywhere in the book. That Baumol, Levin and Wagner had not possibly done it the other day is fairly clear (since the Wagner I had was a 1974 edition). So now what are we going to do about it? Shouldn't SAC ask the Director for some action? Or is it that in future our cogging will be viewed a little more leniently? SAC should find out the standards of cogging are different for profits. I am enclosing two bunches of xerox copies. Bunch A is the appropriate matter from the three books of Levin, Baumol and Wagner. Bunch B is the cogged version of Srivastava, Shenoy and Sharma. Corresponding numbers on the left side in both the bunches show the matching matter. For example, para (1) on Bunch B is lifted from para (1) of Bunch A, para (2) of B from para (2) of A etc. Also, the matching matter found from the result of a single evening's finding by chance. Any systematic search is bound to unearth more of the same phenomenon." In view of this letter, the Institute was required to examine the matter. After going through the letter and the material annexed with the letter, there was prima facie satisfaction about the evidence of copying and hence an inquiry was set up against the respondent No.1 herein. With a view to clear the petitioner's name, formal probe by a committee consisting of professors was set up on 9.6.92 in consultation with the respondent No.1. The committee consisted of professor Anil Bhatt (Chairman), Professor Bakul Dholakia, Professor Girija Sharan and Professor Srinivas Rao, all Senior Professors of the Institute and were working with the respondent No.1 in the Institute. Professor Bhatt was at the relevant time Member of Faculty of Development & Evaluation Committee which is one of the Apex Committees of the Institute. He rendered services as Chairman of Public System's Group. Professor Dholakia was at the relevant time Professor of Industrial Economics and served earlier as Chairman, Economics Area of I.I.M.A. He was with the Reserve Bank of India also. Professor Girija Sharan was at the relevant time Chairman, Centre for Management in Agriculture, while Professor Srinivas Rao was Manager, Publications at the Institute and was lateron Chairman, Business Policy Area of the I.I.M.A. These persons were familiar with the authorship and copyright conventions. Professors Dholakia & Girija Sharan were familiar with the importance of the topics discussed in the book written by the respondent No.1. #. The respondent No.1 volunteered and submitted materials. The book in question, its later version and review of the books etc. were before the Committee. A letter dated 6.7.92 and its enclosure were placed before the Committee and the Committee as aforesaid was asked to determine whether there was evidence of plagiarism in the book co-authored by the respondent No.1 or not. The Committee met the respondent No.1 and heard him. Thereafter report was submitted to the Director on 17.8.92. The members of the Committee arrived at a unanimous conclusion that "the identicalness of several portions of SSS spread over several chapters constitutes plagiarism". The Committee found copying without acknowledgment of the source atleast at 10 different places including 5 foreign books and some other Indian books (all books were published prior to the publication of the book by the respondent No.1). Identical material prepared at the I.I.M.A. was used. Report is annexed with the affidavit-in-reply. #. It is pointed out by the appellant that the report was given to the respondent No.1 and he was requested to offer his comments, if any, to which respondent No.1 replied by his letter dated 11.9.1992 contending inter alia that the responsibility of writing different group of chapters was assigned to different co-authors and therefore, he has not written all chapters but has written only certain chapters. He further contended that the Committee had not found any evidence of plagiarism, barring inclusion of some anonymous and unregistered materials in one chapter. Copy of the comments offered by the respondent No.1 are also placed on the record. The Committee after going through the explanation of the respondent No.1 arrived at a conclusion that the respondent No.1 's explanation is not acceptable and more particularly he failed to identify which chapters were written by which of the three co-authors also because information on the allocation of responsibility for chapters was not available in the book and also because the respondent No.1 did not supply information in his letter dated 6.7.92 to the Director. Even the Committee which met the respondent No.1 on 11.8.92 was not conveyed this information. It appears that subsequently the respondent No.1 came out with an after-thought version about the responsibility of other co-authors. #. The Committee after considering the comments of the respondent No.1 submitted the report dated 28th September, 1992 which is also produced on the record. This report was forwarded to the respondent No.1 , who in turn offered his comments vide his letters dated 14.10.92 and 16.10.92. The Chairman of the Committee after examining the aforesaid material by his letter dated 30th October, 1992 informed that no further comments or further report is required. Copy of this letter was also forwarded to the respondent No.1. It appears that it is this Committee which found that there was substantial evidence in the allegation of plagiarism. The Institute which is of an international repute felt that it would not be in the interest of the Institute to continue the respondent No.1 in services anymore, hence, with a view to give further opportunity, further hearing was given by the Director in the months of November and December, 1992. ##. It appears that the Institute indicated to the respondent No.1 during the discussion that the respondent No.1 (i) may voluntarily resign from the services of the Institute or (ii) should express regret, apology and accept deterrent penalty or (iii) should accept the termination of contractual relationship with I.I.M.A. There was discussion with the Dean also. It is the case of the Institute that the respondent No.1 initially opted for expressing regret, apology and acceptance of deterrent penalty. During the discussion, the respondent No.1 orally accepted the responsibility for the book and his role as Senior Co-author. It is stated by the Institute through Mr. N.V. Pillai, Establishment Officer that after expressing willingness to offer an apology, a draft letter of apology was also signed with some changes, which was shown to the Director and the Dean. Not only that but in the affidavit, it is pointed out that the respondent No.1 agreed to pay a lumpsum of Rs.75,000/- in lieu of demotion, freeze on increments, suspension of consultancy privileges etc. and thereupon the Director agreed to the suggestion of respondent No.1 that whole or part of the sum of Rs. 75,000/- as suggested by the respondent No.1 himself be paid by him or a relative or someone and the word `penalty' need not be mentioned in the letter that would be exchanged between the respondent No.1 and the Director. It is further pointed out that lateron, respondent No.1 haggled about the quantum of penalty and tried to bring it down to Rs. 50,000/- and that too by instalment. In December, 1992, he agreed to write a letter of apology and took the responsibility for plagiarism but lateron he backed out. ##. It is pointed out in the affidavit that in view of this attitude, the Director called a meeting of several senior colleagues of the faculty and Board of Governors to review the situation and after discussing the matter at length and the options discussed with the respondent No.1 as well other options, a consensus was arrived at to the effect of immediate termination of services of the respondent No.1, not by way of punishment, was the best course of action. In this background it is submitted by the Institute that the letter dated 5.1.93 came to be issued and served upon the respondent No.1. It is this letter which was challenged before the learned Single Judge who considered various submissions and arrived at a conclusion that the order of termination is bad in law as it is in the nature of penalty and passed against the principles of natural justice as also it is passed in violation of Section 51 of the Gujarat University Act. The learned Single Judge quashed and set aside the order dated 5.1.93 vide Annexure 'A' to the petition with a further direction to the Institute to reinstate the respondent No.1 herein with all consequential benefits. It is against this order passed by the learned Single Judge, the present appeal is preferred by the Institute raising several contentions. ##. Division Bench of this Court (Coram: B.N.Kirpal, C.J. as His Lordship then was & R.K.Abichandani, J.) at the stage of admission of this L.P.A., made certain orders and the said orders are required to be reproduced at this juncture. The said orders are dated 22nd July, 1994 and dated 25th July, 1994. The same read as under. Order dated 22nd July, 1994 :- During the course of arguments on 21st of July, 1994, the counsel for the respondent herein was asked to produce in Court the original of the letter dated 1st of February, 1980., xerox copy of which was filed, along with the affidavit-in-sur-rejoinder, at page 248 of the record. That letter was produced in Court as the Court wanted to satisfy itself about the genuineness of the same. Today, Mr.K.S. Nanavati has drawn our attention to the telephone directory of the year 1986 for Delhi, which shows that M/s. Wiley Eastern Limited, Publishers, whose address in the Telephone Directory is : " 4835/24, Ansari Road", was having telephone number 261487. In the original letter, which has now been filed, as well as the xerox copy, which is at page 248, instead of telephone no. 261487, the telephone number given is `3261487', along with two other telephone numbers "3276802 and 3278348". The original letter of 1st February, 1980, as well as another letter of 26th March, 1982 which has been produced has only one fold in the middle. The said letters are directed to be kept in safe custody of the Registrar of this Court and the said letters are marked `A' and `B' for identification. Shri K.S. Nanavati requests for a short adjournment to enable him to move an application for taking appropriate action with regard to the aforesaid letters, which have been filed. At his request, adjourned to Monday, 25th July, 1994." Order dated 25th July, 1994 :- "On 21st July, 1994, the respondent herein placed on record two letters dated 1st February, 1980 and 26th March, 1982, stated to have been written by M/s. Wiley Eastern Limited, Publishers, Delhi. The xerox copies of these had already been filed at the time of the hearing of the Special Civil Application before the Single Judge. In this Court's order dated 22nd of July, 1994, facts are stated, which prima facie show that the letters, which were filed, were not genuine letters and had been filed with a view to procuring a favourable order from this Court. Perhaps, the dictum laid down by the Supreme Court in Naraindas v. Government of Madhya Pradesh & Ors., AIR 1974 SC 1252, at page 1256, to the effect that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtaining a favourable order, then it would prejudice or interfere with the due course of the judicial proceeding and thus, amount to contempt of court. In view of the aforesaid, we issue notice to the respondent to show cause as to why action should not be taken against him for contempt of this Court. Mr. P.V. Nanavati, counsel for the respondent, accepts notice on behalf of the respondent. He wants two weeks' time to file an affidavit. Adjourned to 9th August, 1994." ##. Prof. G. Sharan, one of the members of the Committee, addressed a letter on January 5, 1993 to the Director, interalia pointing out the brief conversation the respondent No.1 herein had some time after he gave his first response to the report of the Committee set up to examine the matter. In brief Prof. G. Sharan pointed out that he was asked by the respondent No.1 to rethink about the conclusions which the committee had arrived at. The respondent No.1 further conveyed that he is a member of the Centre for Management and Agriculture and in view of the long association he had with Prof. G. Sharan, he was expecting Prof. G. Sharan to do something for him. Shri Sharan, said to the respondent No.1 that the report has already been given to the Director and that he was feeling uncomfortable to talk about the subject. Mr. Nanavati, learned counsel appearing for the IIMA submitted that thus the respondent No.1 was trying to approach the member of the Committee to do a favour to him. ##. Learned counsel Mr. Nanavati drew our attention to a letter addressed by Prof. Bakul Dholakia wherein the author of the letter Prof. Dholakia, another member of the Committee, pointed out an attempt made by the respondent No.1 in connection with the report submitted by the Committee. The respondent No.1 conveyed that he had gone through the committee's report and asked Shri Dholakia whether he could help him by writing a note of dissent. Shri Dholakia in his letter has pointed out that he conveyed the respondent No.1 that the Committee's opinion on the matter was unanimous, and in the light of existing evidence, there was no room whatsoever for any dissent. ##. Thus, Mr. Nanavati, learned counsel for the appellant submitted that the respondent No.1 approached two members of the Committee to secure favour for him; Those members of the Committee have placed in writing about the said conduct of the respondent No.1. ##. It is required to be noted at this stage that the 1st edition of the book titled "Qualitative Techniques in Managerial Decision Making" was published by M/s. Wiley Eastern Limited, New Delhi in the year 1983. From the preface of the book as well as from the endorsement of copyright, it is clear that the 1st edition of this book, having 23 Chapters, was published in 1983. So far as the second edition of the book is concerned, it was published after June, 1989. It is clear from the second edition that it was published by the same publisher who published the 1st edition. However, in the subsequent edition of the book, there are only 22 chapters. This is not only a relevant but also an important aspect to be kept in mind. ##. Mr. Nanavati, learned counsel submitted that the Court ought to have dismissed the petition of the respondent No.1 herein as he practiced fraud with the Court. We have earlier reproduced the orders passed by the Division Bench in this matter on two occasions. Mr. Nanavati submitted that the respondent No.1 produced before the Court two letters written by one Mr.A. Machwe of M/s. Wiley Eastern Limited, New Delhi purported to have been written on 1st February 1980 and 26th March 1982. Mr. Nanavati submitted that the letters were produced with a view to show that the respondent No.1 had nothing to do with plagiarism for which the committee recorded a finding. In the letter dated 1st February 1980, addressed to the respondent No.1 herein, the Publisher had tried to suggest its desire to confirm the arrangement which the respondent No.1 proposed for sharing the responsibility of writing the book. So far as the respondent No.1 is concerned, in view of this letter, he was responsible for writing Part I (Statistics), Chapters 1, 3, 4, 5, 10, 13, Part (OR) II Chapter 17 and Chapter 19. From this letter, the respondent No.1 suggested that in all, three persons, including two other co-authors, were responsible. However, only 22 Chapters were suggested to be in that book. It is also suggested by the Publisher that on 1st February 1980, the publisher suggested that the respondent No.1 and his colleagues were asked to proceed with the writing of the book. ##. By the second letter dated 26th March 1982, the Publisher, M/s. Wiley Eastern Limited, has conveyed about the final clearance from NBT for support of the book. The Publisher made a request in this letter to revise Chapters 1, 3, 4, 5, 10, 13, 17 and 19 in the light of the comments from the NBT reviewers. ##. Mr. Nanavati, learned counsel submitted that in view of the fact that there is reference to only 22 Chapters in the letter dated 1.2.1980, it must have been written after the publication of the second edition, as it is the second edition which has 22 chapters and not the first edition. The first edition had 23 chapters. He submitted that contents of this letter clearly indicate that respondent No.1 had managed to get a letter with a view to show that he was not responsible for all chapters of the book as the publisher specifically asked the writers to write particular chapters. However, the publisher forgot that in the first edition which was published in 1983 there were 23 chapters, and the second edition which was published in 1989 had only 22 chapters. Possibly even the Publisher as well as the respondent No.1 lost sight of the first edition and referred to the second edition only which was published in 1989 and which had only 22 chapters. Therefore, it is clear that the reference in both these letters is to the second edition which was published in 1989. The book was first published in 1983 and no such division is indicated in the book as noted by the Committee and also in the letter. ##. Learned counsel Mr. Nanavati further submitted that on the first page of the letter dated 1st February 1980, there is an endorsement, and below that the date reads as 10/1. He submitted that if the letter was actually dated 1/2/80, there could not have been an endorsement dated 10/1. So far as the letter dated 26th March 1982 is concerned, there is an endorsement on the first page which is dated 2/4/82. In both these letters, we find that there is an endorsement in manuscript. Comparing with the other copies purported to have been certified to be true copies by the publisher, no such endorsement is found in any letter. Respondent No.1 subsequently came out with a case that the letters which he has produced are the copies forwarded by the Publisher. The question is: how these letters are with endorsements? It appears that with a view to