-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 240 OF 1997 Dr. Vinaykumar Balkrishna Rale, ) Age 46 years, occ. Service, ) residing at 2 Shanta Durga ) 41/5 Karve Road, Pune- 411 038 )..Petitioner Versus 1. The University of Pune, ) A University originally established under ) The Poona University Act, 1974 and now ) Governed by the Maharashtra Universities ) Act, 1994 having its campus at Ganeshkind, ) Pune-411 007 ) 2. The Registrar, University of Pune, ) Pune-411 007 )..Respondents. Mr. Nitin P. Deshpande for the petitioner. Mr. A.V. Anturkar, assisted by Mr. Prathamesh B. Bhargude and Mr Sugandh Deshmukh, for the respondents. WITH WRIT PETITION NO. 5405 OF 1997 Dr. Mahabaleshwar Vishnu Hegde, ) Age about 58 years, Occupation Service/ ) Compulsorily retired, residing at Building ) No.14, Sharavati Co-operative Housing Society ) Ltd., Warje Naka, Pune-411 029 )...Petitioner Versus 1. The University of Pune, ) -2- Through the Registrar, ) Ganeshkind Road, Pune-411 007 ) 2. The Vice Chancellor, Pune University, ) Ganeshkhind Road, Pune-411007 )..Respondents Mr. A. S. Khandeparkar, with Mr. D.Brijesh, instructed by Mr. Apollo Moghe for the petitioner. Mr. A.V. Anturkar, assisted by Mr. Prathamesh B. Bhargude and Mr Sugandh Deshmukh, for the respondents. CORAM; P.B. MAJMUDAR,J. Judgment reserved on : 14 th August, 2008 Judgment pronounced on:4th September,2008 JUDGMENT 1. Since common point is involved in both these petitions, with the consent of the learned counsel appearing for the parties, both the petitions are being disposed of by this common judgment 2. Whether the petitioners herein can be said to have committed an act of plagiarism in view of the fact that their name appears as co- authors in the Article published in the journal. 3. The facts leading to the filing of these two writ petitions are narrated in a nutshell as follows. -3- 3.1 Petitioner in Writ Petition No. 5405 of 1997 is a qualified teacher/scientist did his M.Sc degree in Biochemistry and thereafter obtained Ph.D. in the same subject. The petitioner was appointed as a Reader in the Department of Biochemistry, University of Pune, in 1979. In the year 1987, he was appointed as Professor of Biochemistry and in the year 1992 he was given full charge as the Head of the Department of Chemistry. The petitioner has published various research papers in various journals. 3.2. So far as the petitioner in Writ Petition No. 240 of 1997 is concerned, he is also a highly qualified professor. He did his M.Sc. in Microbiology. He has completed his Ph.D. on “Studies of Yeasts of some tropical fruits” in the year 1979. In 1982-84 he had the distinction of undertaking research as a Post-doctoral fellow with Prof. Dr. G. Gottschalk, Goettingen, Germany. In 1985 he was appointed as a Reader in Microbiology in the University of Pune. Thus, both the petitioners are highly qualified persons in their respective fields. 3.3. One Ms. Geeta Ramesh was registered for Ph.D. in the Department of Microbiology in August, 1986. The petitioner of Writ -4- Petition No. 240 of 1997 was her guide. In January, 1990, the said student published an article in the Indian Journal of Microbiology, Volume 30 Page 427 which was identical to article written by Adams Anal. Biochem. In 1992, another paper was published in World Journal of Microbiology and Biotechnology Volume 8, Pages 42-44. This was identical to the Article written by Dr. Cooney. When this was noticed, retraction of article was published in the World Journal of Microbiology and Biotechnology in 1994. In view of the retraction of the article published in the journal, the Vice-Chancellor of the University of Pune came to know about the said aspect and on that basis he asked an explanation from Dr. Rale. Subsequently, a Committee was appointed to look into the charges of plagiarism which ultimately followed by issuance of show cause notice dated 4th August, 1994 against both the petitioners. Replies to the show cause notices were given by the petitioners and on conclusion of enquiry and on the basis of the report of the Enquiry officer, the petitioner in Writ Petition No. 5405 of 1997 was subjected to compulsory retirement and petitioner in Writ Petition No. 240 of 1997 was dismissed from the services. Both the petitioners challenged the said orders by way of appeals before the University and College Tribunal. So far as appeal of Dr. Rale is concerned, the same -5- was numbered as Appeal No. 63 of 1994 and the appeal of Dr. Hegde was numbered as Appeal No. 62 of 1994. The Tribunal after hearing the concerned parties, ultimately by its order dated 28th August, 1996 dismissed both the appeals against which order, the instant petitions have been filed by each of the petitioners. 4. Before I deal with the contentions of the counsel appearing for the parties, it is necessary to recapitulate the findings arrived at by the Enquiry Committee regarding the allegations and charges against Dr. Rale and Dr.Hegde. The Committee has taken into account various aspects involved in the inquiry, the issues involved and the role played by Dr. Rale and Mr. Hegde into the alleged misconduct against them. Dr. Rale, petitioner in Writ Petition No. 240 of 1997 was subjected to ten charges. Charge No.1 was in connection with copying the article by the Petitioner along with Ms. Geeta Ramesh and Dr. M.G. Hegde (petitioner of Writ Petition No.5405 of 2007. They committed the act of plagiarism by publishing an article“Decryptification of Saccharomyces carisbergensis with dimethul Sulfoxide for rapid determination of a- Glucosidase” in the Indian journal of Microbiology. The Committee found that the act of the authors is scientifically unethical and all accepted -6- code of conduct in publishing papers. Charge No.2 was in connection with the article published by M.H. Haggstrom and C.L. Cooney viz. a- Glucosidase Synthesis in Batch and continuous culture of Saccharomyses Cerevision in Applied Biochemistry and Biotechnology, 1984 Vol.7, Pp.475-481. The petitioner along with Dr. Begde and Ms. Geeta Ramesh copied the said article almost in entirety and committed an act of plagiarism by publishing an article “Glucosidase Synthesis in Batch and continuous culture of Saccharemyces cerevision” published in World Journal of Microbiology and Biotechnology, 1992, Vol.8, pp42- 44. The Committee found that the petitioner is the co-author of the copied paper and as a Ph.D. guide and the author he was expected to check the manuscript and in particular the results, discussion and reference. It was found that if he had verified the results, critically evaluated the discussions part and examined the reference, he would have easily identified the omissions, errors and perhaps plagiarism. On the other hand it was found that he had transmitted this plagiarized paper for publication. After the paper was published, when the Editor informed him about the plagiarism, the petitioner along with Dr. Hegde submitted apology to be published in the World Journal of Microbiology and Biotechnology and also to the authors of original papers for -7- plagiarism and retracted the paper. The Committee found that it was not possible to disassociate the petitioner’s name from the responsibility of publishing plagiarized paper. Charge No.3 was in connection with the petitioner and Dr. Hegde acting as Guide and Co-guide respectively for the Ph.D. work of Ms. Geeta Ramesh. The petitioner resubmitted the thesis of the student certifying that the thesis has been revised and that the work taken from other sources has been duly acknowledged. Dr. Tauro returned the same again not recommending the award of Ph.D. degree as, according to him, the thesis contained only the material of the published work of others. It was alleged that the petitioner had violated the code of conduct prescribed for the teachers by submitting the work which was not original and by issuing a false certificate. The Committee found that it was wrong for the guide to have given the certification that the work presented in the thesis was the original work of the student and such material as obtained from other sources had been duly acknowledged as the certification was turned out to be false. According to the Committee, in the revised thesis the guides once again issued the second certificate though it still contained extensive copying from at least two previously published papers and thus amounts to a gross and glaring omission on the part of -8- the co-guides. The Committee found that the wrong certificate given for the first time might be under certain circumstances excused but when given for the second time it becomes unacceptable. Charge no.4 was in connection with not acting promptly when the act of plagiarism on his part was brought to his notice by Dr. P. Tauro and Dr. M. Goldenthal in May, 1991 and June, 1991 respectively. On this charge, the Committee found that in December, 1990 after hearing the plagiarized paper from Dr. Ratledge, he should have informed the University about the same and sought approval of the Vice-Chancellor before submitting apology to the Editor of the World Journal of Microbiology and Biotechnology. The Committee found that they should have expressed apology to the University authorities and accepted the responsibility on themselves rather than passing the whole blame on Ms. Geeta Ramesh. Charge No.5 was in connection with the false statement made to the Editor in chief of the World Journal of Microbiology and Biotechnology that the student Ms Geeta Ramesh did not bring to his notice the existence of an already published article of M.M. Haggstrong and C.L. Cooney whereas Ms.Geeta Ramesh specifically admitted that the topic of research for her Ph. D. was finalized after discussions with the said two authors. The Committee -9- found that the petitioner has failed to provide proper guidance to a research student. Charge No.6 was in connection with suppression of facts from the University authorities about the aforesaid incident, even though the petitioner, Dr. Hegde and Ms. Geeta Ramesh were in correspondence with the Editor in Chief of the World Journal of Microbiology and Biotechnology, Dr. Cooney and others from December, 1992 to January, 1994. As regards charge No.7, the Committee found that the Petitioner has committed misconduct and willful persistent neglect of his duties by not submitting to the Vice- Chancellor the full report on the facts of the case, not withdrawing their article from the World Journal of Microbiology and Biotechnology and not acting quickly to withhold the process of grant of Ph.D. to the student inspite of clear instructions to him by the Vice-Chancellor in December, 1992. Charge No.8 is in connection with misguiding the authorities by referring to unrelated aspects. According to the Committee, the head of the department is expected to keep the university authorities informed about the grave lapses that might be occurring in his department and as the petitioner being the department head failed to discharge this responsibility. As regards charge No. 9, the University had withdrawn the said charge. Charge No. 10 was in -10- connection with the petitioner’s misconduct as he failed to keep abreast himself with the upto date knowledge in the field of his subject when he admitted that he was not aware about the articles published by Prof. Bruce B. Adams and M.H. Haggstrong and C.L. Cooney. This charge was proved against him as per the report of the Committee. 5. So far as the petitioner in Writ Petition No. 5405 of 1997 is concerned, it was alleged against him that he and Dr. Rale acted as a co-guide and guide respectively for the Ph.D. work of Ms. Geeta Ramesh. As regards charge Nos. 1, 2 and 3 , the Committee was unable to find evidence that the co-guide willfully participated in the act of plagiarism. Charge No.4 was in connection with not acting promptly when the act of plagiarism on his part was brought to his notice by Dr. P. Tauro and Dr. M. Goldenthal. The Committee found that had he conducted himself with a proper sense of responsibility in these matters, the situation would have been handled with perhaps much less damage to the reputation of the University. Charge No.5 was in connection with making false statement to the Editor in Chief of the World Journal of Microbiology and Biotechnology. The Committee found that the said charge was not proved as no evidence was placed before the -11- Committee indicating that he had prior knowledge of the paper from which the copying was done. Charge No.6 is in connection with suppression of facts from the University in spite of the position being that he and his student and Dr. Rale were in correspondence with the Editor in Chief of the world Journal of Microbiology and Biotechnology. The Committee found that some of this information might be construed to have been suppressed. Charge No. 7 was the misconduct and willful neglect of his duties by not submitting to the Vice-Chancellor the full report on the facts of the case, withdrawing of the article from the world Journal and not acting quickly to withhold the process of grant of Ph.D. to his student, inspite of clear instructions to him by the Vice-Chancellor of the University. So far as this charge is concerned, the Committee found that the aforesaid act is a serious failure tantamount of misconduct on his part not to send to the Vice-chancellor a full report promptly. Charge No.8 was regarding failure to discharge his duties as the co-guide of a student, as a teacher and head of the department of placing the entire record before the University authorities. The Committee has not given any positive finding regarding this charge one way or the other. Charge No. 9 w as dropped by the University. Charge No.10 was in connection with the petitioner having failed to keep himself -12- abreast with the uptodate knowledge. The said charge has been found to have been proved by the Committee. 6. The Committee has also gone through the statement of Ms. Geeta Ramesh. The general conclusions drawn by the Committee read thus: “1. Based on the statement both oral and in writing given by Dr. Rale, Hegde and that received from Ms. Geeta Ramesh as well as the letter of apology to Dr. Cooney and the letter of retraction to the World Journal of Microbiology and Biotechnology, it is clearly established beyond doubt that the two papers published by Dr. Rale, Hegde and Ms. Geeta Ramesh and others in the World Journal of Microbiology and Biotechnology and Indian Journal of Microbiology are plagiarized and have brought great disrepute to the Poona University and its academic activities. 2. In her letter addressed to Dr. Ratledge, Editor-in-Chief, World Journal of Microbiology and Biotechnology, Ms. Geeta clearly admits to her act of plagiarism and owns sole responsibility for this purpose upon herself. 3. Ms. Geeta Ramesh, however, accuses primarily her guide, Dr.VB Rale, for having failed to play his proper role as adviser and guide in advising her against copying and states clearly that Dr. Rale was fully aware of the paper published by Haggstrom and Cooney and in fact it was he who suggested that her research work could be on similar lines but using a different organism. “ 7. Thereafter conclusions have also been made in the report in -13- case of both Dr.Rale and Dr. Hegde. Regarding Dr. Hegde, the Committee has concluded that by accepting co-authorship on both plagiarised papers, he automatically becomes party to publishing plagiarised paper as other authors. Thereafter separate conclusions have been made regarding each of the petitioners and charges against them have been proved. Thus, the Committee after considering the evidence on record found that the charge against Dr. Rale has been proved beyond doubt in connection with plagiarism. The Committee submitted its report to the Vice-Chancellor on 13th September, 1994. Thereafter, the University has dismissed Dr. Rale from the services. So far as Dr. Hegde is concerned, he was subjected to punishment of compulsory retirement. The said punishment was awarded on the basis of the common enquiry report of the Committee . 8. Being aggrieved by and dissatisfied with the order of dismissal as well as compulsory retirement, petitioners herein preferred appeals before the University and College Tribunal being Appeal Nos. 63 and 62 of 1994. Appeal No 62 was preferred by Dr. Hegde whereas Appeal No. 63 was preferred by Dr. Rale. The Tribunal, after hearing the parties at length, passed the impugned order whereby -14- dismissing both the appeals which order is impugned in these petitions. 9. Mr. Khandeparkar, learned counsel appearing for the petitioner in Writ Petition No. 5405 of 1997, vehemently submitted that the petitioner was merely a co-guide and the petitioner was not in any way concerned with the article published in the Journal as he was the Professor of Bio-chemistry and most of the article which was published was in connection with Microbiology and, therefore, it cannot be said that the present petitioner is any way concerned with the act of plagiarism. Learned counsel has further submitted that by reading the said article it can be said that only part of it is plagiarised and not the entire article. The subsequent part of the article is in connection with the subject matter of petitioner Dr. Hegde and the same is not said to have been plagiarised. In short, his submission is that part of the article may be subjected to plagiarism to which the petitioner is not concerned as the same was in connection with Microbiology. The petitioner is not in any way concerned with the actual plagiarism. Mr. Khandeparkar has further submitted that he was not the research guide of the student Ms. Geeta Ramesh and, therefore, it can never be said that the petitioner is guilty of plagiarism in any manner. It is submitted that no action -15- whatsoever has been taken against the student and, therefore, the action of the University in compulsorily retiring the petitioner from the services is arbitrary and illegal Considering the enquiry report, it cannot be said that he was not vigilant in drawing the attention of the University. Simply because the name of the petitioner appears as a co- author in the article itself is not enough for coming to the conclusion that the petitioner is also guilty of plagiarism when admittedly he was not concerned with the subject matter of the article which is alleged to have been plagiarized. It is submitted by him that since the petitioner was not the guide of concerned student, the petitioner cannot be held responsible in any manner and, therefore, it cannot be said that he has committed any misconduct. 10. Mr. Deshpande, learned counsel appearing for the petitioner in Writ Petition No. 240 of 1997, has submitted that as the petitioner was misled by the student and the said petitioner was never aware that the article was published by someone else. It is submitted that the notarized statement of the student cannot be taken into consideration as she was not examined before the Committee. No action whatsoever has been taken by the University against the said student. It is -16- submitted that even as per the statement of the student, the petitioner is not guilty of plagiarism. It is further submitted that the so-called act of plagiarism has been committed by the concerned student for which the petitioner cannot be held responsible and simply because the petitioner has apologized, it cannot be considered that the petitioner is also guilty of plagiarism. It is submitted that even ethically petitioner was required to give apology on behalf of the student. He further submitted that the petitioner himself had not recommended the concerned student for Ph.D. The petitioner had also talked to the Vice-Chancellor at the relevant time and, therefore, it was not necessary to give anything in writing to the Vice-Chancellor and on his recommendation Ph.D. Was not conferred on the concerned student and that on the say of the petitioner in December, 1992 the Vice-Chancellor withheld the confirmation of Ph.D. to the concerned student and that, therefore, the petitioner was not required to take any other follow up action in this behalf. It is submitted that the University was not kept in dark by the petitioner. According to the learned counsel for the petitioner, under the provisions of the Copyright Act, author and co-author are to be treated separately and no liability can be fastened on the petitioner simply because he was co-author. It is submitted that the petitioner was not a -17- co-author. He was only a research guide. He submitted that the petitioner has not contributed anything in the article and in that view of the matter, he cannot be held guilty of plagiarism. It is submitted that in the alternative the penalty is on higher side and the petitioner should have been awarded the punishment similar to the one awarded to Dr. Hegde. It is, therefore, submitted that the orders of the Tribunal as well as of the University are required to be set aside and the petitioner be reinstated in service with all consequential benefits. 11. Mr. Anturkar, the learned counsel appearing for the respondents, on the other hand, submitted that both the petitioners are equally guilty of misconduct and as as co-authors both of them are responsible in connection with the article which is ultimately found to be plagiarized. It is submitted that the provisions of the Copyright Act cannot be made applicable for considering the case of plagiarism. It is submitted that even a negligent act can be considered as an act of plagiarism for which he has relied upon the definition given in Black Dictionary and Law Lexicon. Mr. Anturkar has further submitted that when the Tribunal has considered all these aspects and has found that the misconduct alleged against the petitioners are proved, this Court in -18- its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India cannot reappreciate the evidence and come to a different conclusion. According to Mr. Anturkar, in the light of the clear admission by both the Petitioners that they are the co-authors of the plagiarised articles, it is not open for them to deny the charge of plagiarism. Once the co-authorship is accepted, it is not possible to argue that the respective roles of the petitioners was marginal. It is the involvement in the vice and not the extent thereof which is material. The plea of Dr. Hegde that he was not concerned with Microbiology and was concerned only with Biochemistry is only an afterthought. As per letters written by Dr. Hegde, it is clear that he is not coming with such a case. He submitted that in the light of several judgments of the Supreme Court, the scope for interference under Article 227 is confined only when the finding is perverse or based upon no evidence at all. It is submitted by Mr. Anturkar that considering the role played by each of the petitioners, appropriate punishment has been awarded and, therefore, this is not a case in which interference of this Court in its extraordinary jurisdiction is called for. 12. I have heard the learned counsel at length and gone through -19- the documents annexed with the petition. I have also gone through the impugned order of the Tribunal 13. The principal question which arise for consideration in these petitions is as to whether the allegation of plagiarism levelled against the petitioners can be said to have been proved in the enquiry, on the face of material on record or it can be said that the petitioners are said to have committed the act of plagiarism. In this connection it is required to be noted and it is not in dispute that both the petitioners were holding very high and responsible position in the University and were acting as guides for various research students. Ms. Geeta Ramesh was doing her research under Dr. Rale who was his guide and Dr. Hegde being the head of the Department was her co-guide. It is