CWP No.21817 of 2010.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.21817 of 2010 (O&M) Date of Decision: 19.04.2011 **** Dr. Tapan K Mukherjee . . . . Petitioner VS. Union of India & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Akshay Bhan, Advocate for the petitioner Dr. Balram Gupta, Senior Advocate with Mr. Manik Bakshi, Advocate for respondents No.2,3&4 **** SURYA KANT J. (ORAL) (1). The petitioner – an Assistant Professor in the Indian Institute of Science Education and Research, Mohali (in short, ‘the IISER’) seeks quashing of the orders dated 17.06.2010 (Annexure P6) and 15.11.2010 (Annexure P10) whereby his resignation from service, to be effective w.e.f. 30.04.2011, has been accepted by the Director of the Institute and the Board of Governors have ratified the same despite the withdrawal of his resignation by the petitioner before such ratification. CWP No.21817 of 2010.doc - 2 – (2). The IISER is an Institute of excellence in the field of Research and Science and was established by the Union of India, Ministry of Human Resources Development in the year 2006. The Institute imparts Postgraduate and Research Programmes in Basic Sciences. (3). The petitioner on the recommendations made by the Selection Committee which were duly approved by the Chairman/Board of Governors of IISER, was offered appointment to the post of Assistant Professor vide order dated February 24, 2008 followed by a formal appointment letter dated June 16, 2008 (Annexure R4/1) containing the following relevant terms and conditions:- xxx xxx xxx xxx “1. PROBATION: Subject to the provisions of the Rules of the Institute, this appointment is made on a probation period of one year from the date of your joining. However, the appointing authority shall have the power to extend the period of probation. The appointment will be confirmed on permanent basis, after satisfactory completion of the probationary period. During the period of probation the appointing authority shall have the power to terminate the service without notice and without any case assigned. 2. TERM AND TERMINATION OF SERVICE: CWP No.21817 of 2010.doc - 3 – (i) After confirmation the appointing authority shall have the power to terminate the services by giving three months notice or on payment of three months’ salary in lieu thereof, if on medical grounds, certified by a medical authority nominated by the Board that the retention in service is considered undesirable by such appointing authority. (ii) After confirmation, an employee of the Institute may terminate his engagement by giving to the appointing authority three months’ notice provided that the appointing authority may for, sufficient reasons either reduce this period or call upon the employee concerned to continue till the end of academic session in which the notice is received.” xxx xxx xxx xxx (4). When the petitioner was about to complete one year of his service, the Director of the Institute vide memo dated January 13, 2009 (Annexure P2) asked him to furnish the following information “in order to take up the confirmation in the present position…” xxx xxx xxx xxx “1. Teaching Contribution at IISER Mohali 2. Progress made in research, as reflected in projects undertaken, publications etc. CWP No.21817 of 2010.doc - 4 – 3. Any other contribution to the institute in its academic and overall growth.” xxx xxx xxx xxx (5). The petitioner was thereafter informed vide memo dated May 26, 2009 (Annexure P3) that his probation period stood extended “by a year on disciplinary grounds till 28.02.2010. The case will be reviewed after 28.02.2010.” (6). The petitioner, while questioning the extension in the probation period, has further alleged that the Director of the Institute started pressurizing him to resign from the Institute failing which his career would be spoiled. The petitioner is said to have succumbed to the pressure and submitted a post-dated resignation in May 2010 (Annexure P5) informing the Director of the Institute that “I will discontinue from my present position as Assistant Professor with an effective date of 30.04.2011 due to personal reason. This time is necessary to complete my works. Please relieve me from all duties after 30.04.2011.” (7). In response to the above-stated post-dated resignation letter to be effective from a future date, that the Director of the Institute passed the first impugned order dated June 17, 2010 (Annexure P6) accepting the petitioner’s resignation from the stipulated date. CWP No.21817 of 2010.doc - 5 – (8). The decision of the Director of the Institute was later on ratified by the Board of Governors and was communicated to the petitioner vide the second impugned order/letter dated November 15, 2010 (Annexure P10) which reads as follows:- xxx xxx xxx xxx “With reference to your letter dated 29.10.10 addressed to the Chairman, Board of Governors of IISER Mohali, I have been directed to convey to you the decision of the Board to ratify the decision of the Director to accept your resignation from the service of the Institute, with effect from April 30, 2011.” xxx xxx xxx xxx (9). The petitioner’s precise contention is that since his resignation from service was to be effective w.e.f. 30.04.2011 only and he withdrew the same much ahead of that date vide his representation dated 28.10.2010 (Annexure P7), hence there arose no occasion for the Board of Governors to ratify the Director’s earlier decision of accepting the said resignation. (10). The petitioner, in support of his contention that an employee is entitled to withdraw his resignation which is to be effective from a future date, at any time before the commencement of such date and is entitled to continue in service, inconsequential of the fact that such a resignation has been meanwhile accepted by the CWP No.21817 of 2010.doc - 6 – competent authority, relies upon a decision of the Hon’ble Supreme Court in Srikantha S.M. v. Bharath Earth Movers Ltd., (2005) 8 SCC 314, wherein the previous case laws1 on the subject have also been cited and explained. (11). The respondents have filed their reply/affidavit, inter alia, maintaining that the petitioner was appointed on probation for a period of one year with an express stipulation that his appointment will be confirmed only “…..after satisfactory completion of the probationary period…..”. It is averred that while extending the period of probation, the petitioner was categorically advised to conduct himself “in a manner befitting a faculty member of standing at IISER, Mohali during the intervening period”. It is explained that in the month of January, 2009, a female Ph.D. student appeared before the Director of the Institute along with her parents complaining against the conduct of the petitioner. The petitioner was summoned and he assured of his good behaviour and agreed on certain code of conduct which he, however, failed to adhere to as the female Ph.D. student made a written complaint leveling serious 1 (i) Union of India v. Gopal Chandra Misra, (1978) 2 SCC 201 (ii) Balram Gupta v. Union of India, (1987) Supp SCC 228 (iii) Punjab National Bank v. PK Mittal, (1989) Supp (2) SCC 175 (iv) Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia, (1997) 4 SCC 280 (v) J.N. Srivastava v. Union of India, (1998) 9 SCC 559 (vi) Shambhu Murari Sinha v. Project and Development India – I, (2000) 5 SCC 621 (vii) Shambhu Murari Sinha v. Project and Development India – II, (2002) 3 SCC 437 CWP No.21817 of 2010.doc - 7 – allegations of sexual harassment. A four-Member Committee comprising three senior Professors and Dr. Bharti Bisht, Warden, Girls Hostel was constituted to make a preliminary investigation. The Committee called the female Ph.D. student, who categorically acknowledged the contents of the complaint and “stood by what she had written therein”. The petitioner too was duly associated and the complaint was shown to him. The Committee came to the conclusion that the complaint submitted by the female Ph.D. student was not frivolous and deserved to be considered seriously. The Committee alternatively recommended that the petitioner be asked to “express regrets for his conduct…… and give an assurance that he will improve his behaviour towards female students in the Institute and allowed time to prove it……..” The Committee, as an immediate measure also recommended to change the Advisor of the female Ph.D. student and further suggested to sensitize the Faculty, students and administrative staff of the Institute towards sexual harassment. (12). The petitioner was served with a show cause notice on May 11, 2009 by the Director of the Institute on the basis CWP No.21817 of 2010.doc - 8 – of the above-mentioned report of the Committee to explain as to why action should not be taken against him. (13). The petitioner vide his letter dated 12.05.2009 claimed that his behaviour or actions were “misinterpreted” and “exaggerated” by the student and that he had no intention of causing any harm to her. He thereafter mentioned that “I deeply regret and sincerely apologize for that and ascertain that I did not want to harm her under any circumstance at all”. (14). The respondents have in their reply/affidavit further explained that since the petitioner’s conduct was far from satisfactory that on May 14, 2009, the Chairman of the Institute was requested by respondent No.3 (the Director) to extend the probation period of the petitioner to one year on disciplinary grounds till 28th February, 2010 and to review his case after 28th February, 2010. (15). The above-stated incident/circumstances led to the passing of the order dated May 26, 2009 (Annexure P3) whereby the probation period of the petitioner was extended on disciplinary grounds till 28th February, 2010 with a clear stipulation that his case shall be reviewed after 28th February, 2010 and he will also be advised to CWP No.21817 of 2010.doc - 9 – conduct himself in a manner befitting a faculty member of standing at IISER, Mohali. (16). The respondents have further averred that even after the extension of the probation period, the petitioner did not conduct himself well and a number of complaints were received against him, a few of which finds mention in para 4 of the reply/affidavit, namely, (i) a complaint given by Dr. Arvind, Dean, R&D on 19.06.2009; (ii) complaint dated 19.08.2009 made by Kaushik Chattopadhyay, Assistant Professor of the Institute; (iii) a complaint/email dated 08.08.2008 by one Hridayesh Parkash – a prospective candidate for the post of Assistant Professor. (17). A three-Member Committee was accordingly constituted by the Institute to consider the matter regarding continuation of the services of the petitioner and the Committee vide its report dated 27.02.2010 (Annexure R4/2) recommended as follows:- xxx xxx xxx xxx “Based on the above complaints and the details available, the Committee strongly feels that the behaviour of Dr. T. Mukherjee is, unfortunately CWP No.21817 of 2010.doc - 10 – unbecoming of a faculty member, particularly in a new Institute. Some of his actions have already tarnished the image of the Institute. Therefore, on the whole, in the larger interest of the Institute, an appropriate decision may be taken regarding the confirmation/termination of the services of Dr. Tapan Mukherjee.” xxx xxx xxx xxx (18). The above-stated report of the three-Member Committee was placed before the Board of Governors under “Confidential” Item in their meeting held on March 3, 2010 wherein it was resolved that the petitioner’s service ‘would not be confirmed’. (19). Before implementing the above-stated decision taken by the Board of Governors, the Institute felt it appropriate to obtain legal advice in the matter and as per the categoric averments made in para 5 of the reply/affidavit, the petitioner came to know about the decision of the Board of Governors and addressed the resignation letter on 01.04.2010 (Annexure R4/3), the contents whereof read as under:- “This is to inform you that I will discontinue from my present position as Assistant Professor with an effective date of 30.04.2011 due to personal reason. CWP No.21817 of 2010.doc - 11 – This time is necessary to complete my wroks. Please relieve me from all duties after 30.04.2011.” (20). The respondents have further maintained that the petitioner himself volunteered to resign from service though after a period of one year i.e. 30.04.2011. That the Institute thought it appropriate to accept his resignation and the Board of Governors while ratifying the decision of the Director in accepting the petitioner’s resignation, in their 9th meeting held on 02.11.2010 categorically resolved as follows:- xxx xxx xxx xxx “Briefly, Dr. Tapan K. Mukherjee was appointed as Assistant Professor on probation for a period of one year vide Ref.No.IISER/07-08/Faculty/.533 dated 24.02.08. He joined on 29.2.08. The period of probation was extended for one year on disciplinary grounds till 28.02.2010 (subject to further review) vide letter No.IISER/09/DIR/355 dated 26.05.09. The work and conduct even during the extended period was not found satisfactory. His services were to be terminated. Under the circumstances, Dr. Mukherjee offered to resign, but wanted one year time to complete his pending work. Therefore, his resignation from the post of Asstt. Professor, w.e.f. 30.04.2011 was accepted by the Institute vide letter No.IISER/10/DIR/961 dated 17.06.2010.” (Emphasis applied) xxx xxx xxx xxx CWP No.21817 of 2010.doc - 12 – (21). In this factual backdrop, the respondents have averred that the allegations of pressurizing the petitioner to submit his resignation are totally false and that in the peculiar facts and circumstances of this case, he cannot be permitted to withdraw his resignation and stake claim for his continuation in service. (22). Learned counsel for the parties have been heard and the records including the complaints received against the petitioner, his responses thereto as well as the reports of the two Committees etc. have been perused (Photostat copies kept on record). (23). The following two issues, in my considered opinion, arise for consideration of this Court – i. Whether the petitioner is deemed to have been confirmed as an Assistant Professor leaving no scope for the Competent Authority to terminate his services on the basis of unsatisfactory work and conduct during the probationary period? ii. Whether the petitioner was well within his right to withdraw the resignation which was to be effective from a future date? CWP No.21817 of 2010.doc - 13 – (24). Before responding to the core legal issues raised by the parties, it would be in the fitness of things to briefly mention the nature of allegations leveled against the petitioner in various complaints. The female Ph.D. student (name withheld) in her complaint dated 24.04.2009 has given as many as 23 instances/events many of which make out a prima facie case of sexual harassment. The petitioner is said to have commented upon her ‘hair cut’, ‘dressing sense’ and ‘figure’, besides touching her repeatedly as well as calling her to the office or other places at odd hours etc. The petitioner is alleged to have gone to the extent of uttering that “I like you so much that I do not care for my age but I have a wife and a child otherwise I could have married you”. The Committee, which held the preliminary enquiry after associating the petitioner, viewed as follows:- xxx xxx xxx xxx She (female Ph.D student) was first asked to confirm whether the representation with the Committee was the one given by her and whether it was written by her own free will. She confirmed it. On being asked whether she would like to add or withdraw any part of it, she replied: “No” and added that she stood by what she had written therein. CWP No.21817 of 2010.doc - 14 – It was noted that all the charges leveled by Miss (name withheld) against Professor Mukherjee were of non-academic nature. She was asked to identify the incidents that hurt her the most. To this she mentioned item NOs.4,6,7,9,11,14,15 and 21 in her representation. The Committee next called Professor Tapan Mukherjee and showed him the representation that Miss (name withheld) had given against him to the Director. His initial reaction was that he had been misunderstood. He said that there were some incidents for which he was sorry and apologetic. He was asked to identify the items in the representation that he felt (i) did not occur (ii) occurred and he was apologetic for and (iii) occurred but he would like to contest the version. In view of the nature of the charges leveled by Miss (name withheld) definition of “sexual harassment” (Swamy’s Handbook 2009) was read out to Professor Mukherjee. He was shocked to note that some of his actions could potentially be construed as sexual harassment. In the ensuing discussion no clear answers were forthcoming. As such Professor Mukherjee was provided a copy of the charges and asked to give his response in writing by 5 PM. (Emphasis applied) xxx xxx xxx xxx CWP No.21817 of 2010.doc - 15 – (25). The follow up action taken pursuant to the above-stated report has already been mentioned. (26). Dr. Arvind, Dean of the Institute made a complaint on June 19, 2009 as to how the petitioner started shouting on him when all of them had assembled to hold interviews for ICMR Project position. (27). Dr. Kausik Chattopadhyay, Assistant Professor of Biology also objected to the petitioner’s negative temperament in his complaint dated 19.08.2010 explaining as to how the petitioner has been defaming the Institute and how his behaviour was extremely unprofessional and severely detrimental to maintain a healthy scientific atmosphere in the Institute. (28). One Hridayesh Prakash, while working as a Postdoctoral scientist at Heidelberg, Germany, sent an email on August 9, 2008 to the Institute attaching his CV and exploring prospects of his employment in the Institute. He addressed the email to the petitioner as well. The temperament and behaviour of the petitioner can be well judged from his very first response to an unknown person when he replied that the mailer had no standard publications to his credit and that “….if i were you i will CWP No.21817 of 2010.doc - 16 – not put too much hope of getting a faculty position at IISER Mohali. This is just to help you so that you do not need to waste your time….”. The mailer (Hridayesh Prakash) thought it appropriate to respond to the petitioner’s reply giving details of the research papers/publication to his credit as author/co-author to which the petitioner bounced back within two hours informing Hridayesh Prakash that if a candidate like him were to be short-listed then there would be around 350 candidates to be short-listed for the Biology Department itself and that the petitioner with even 17 publications to his credit had failed to manage a job in other places and that “…….Now it appears to me that bull-shit person like you do not worth of any advice. Please do not forget to inform me if you can prove me wrong.” (29). The trail of events simply suggest that the petitioner’s behaviour towards his colleagues, seniors, unknown persons as well as students was far from satisfactory and so was his conduct. The petitioner was appointed on a probation period of one year and the Appointing Authority was expressly empowered to extend the period of probation. It was categorically stipulated in the petitioner’s appointment letter that his appointment will CWP No.21817 of 2010.doc - 17 – be confirmed on permanent basis “after satisfactory completion of probationary period”. (30). It would thus be seen that though there was a minimum period of probation (one year) prescribed but the maximum period was kept unlimited. The confirmation of the petitioner was subject to his satisfactory completion of the probationary period. The competent authority, in the light of the complaints adversely reflecting on the work, conduct and overall behaviour of the petitioner, deemed it appropriate to extend the period of probation upto 28.02.2010 with an express stipulation that his case will be “reviewed” after 28.02.2010. (31). As the extended period of probation was nearing expiry, the Institute constituted a three-Member Committee to consider the petitioner’s retention in the Institute and based upon the Committee’s report dated 27.02.2010 that the Board of Governors very promptly, on 03.03.2010, resolved to not confirming the petitioner in service. The resultant consequence, namely, termination of services of petitioner was the next certain event and the petitioner who must have been closely following the events had an informed knowledge of his possible exit. CWP No.21817 of 2010.doc - 18 – (32). The memo dated May 26, 2009 extending the period of probation of petitioner till 28.02.2010 with a recital that it shall be reviewed soon thereafter, thus, suffers with no legal infirmity. The petitioner has, in fact, not at all challenged the communication dated May 26, 2009 either before the higher administrative authorities or in these proceedings. He acquiesced the extension in probation period and now cannot turn around and claim ‘deemed confirmation’ in service. Albeit, the plea of ‘deemed confirmation’ or ‘automatic confirmation’ can be invoked only where the maximum prescribed period of probation expires and the competent authority takes no adverse decision within a reasonable period thereafter. The terms and conditions of the petitioner’s appointment are totally otherwise. He was kept on probation till the Appointing Authority was satisfied regarding his work and conduct. The material impinging upon the work, conduct, character and behaviour of the petitioner justifiably led the competent authority to form a bona fide opinion to extend his period of probation and then not to confirm him in service. As a result of the aforesaid discussion, it is held that the petitioner never acquired the status of a deemed or automatically-confirmed CWP No.21817 of 2010.doc - 19 – Assistant Professor of the Institute and continued on probation only. (33). So far as the second question as to whether the petitioner is entitled to withdraw his resignation before it could be effective from the future cut-off date, the matter is no longer res integra. The decision relied upon by the petitioner as well as the ratio decidendi of the citations referred to therein, leave no scope to debate that an employee is well within his rights to withdraw the resignation even if it has been formally accepted, before the date of its effectiveness. In the instant case, the petitioner though submitted his post-dated resignation on 01.04.2010 (Annexure R4/3), nonetheless the competent authority consciously agreed to make it effective w.e.f. 30.04.2011 only. The petitioner meanwhile having withdrawn his resignation vide application dated 28th October, 2010 i.e. before the effective date of 30.04.2011, there can be no gainsaying that he was very much entitled to withdraw his resignation as ruled in Punjab National Bank’s case [supra note 1(iii)] and Srikantha S.M.’s case (supra). (34). The matter, however, does not come to an end here. An equally important question, namely, should the petitioner CWP No.21817 of 2010.doc - 20 – be allowed to continue in service on the withdrawal of his resignation? or should the Board of Governors of the Institute be permitted to act upon their decision taken on 03.03.2010, too arises and needs to be answered. (35). The petitioner, having been left with a very limited choice of either facing an order of termination of services based upon unsatisfactory work, conduct and behaviour, chose a better and beneficial option of voluntary resignation from the service and that too after gaining extension of full one year till 30.04.2011 on the pretext of completion of his pending works. (36). The Director of the Institute, apparently helped the petitioner by giving an opportunity to him to build his career somewhere else, and accepted his resignation even without getting it approved from the Board of Governors obviously with an intent to pre-empt the competent authority from terminating the services of the petitioner on the basis of his unsatisfactory work and conduct. The first impugned order dated June 17, 2010 (Annexure P6) passed by the Director of the Institute was to help the petitioner