T. C. M. Pll.LAI

INDIAN INSTITUTE OF TECHNOLOGY, GUINDY,

MADRAS

Apr~1 29, 1971

[K. s. HEGDE AND A. N. GlOVER, JJ.]

Institutes of Techno-logy Act, 1961-8tatute 13, cl. (9) framed under s. 21-Probationer-Termination of Service-Attitude or tendency displayed by employee valid consideration-Termination based on such considera tions not punishment.

The appellant, a scientist, was appointed to the staff of the respondent institute on probation.

He had executed a bond to serve the Kerala University but this fact was never disclosed by him. He adopted an at titude questioning the Rules and Regulations of the Institute as well as every order made by the superior authorities, he even threatened legal proceedings at every stage. He had barely been in the serv1~ of the Institute for a short time when he wanted to take up service elsewbeN.

When the question of his confirmation came up before the Board of Governors it was recorded that the Board had come to know for the first time that while the appellant bad executed a bond to serve the Kerala University he did not disclose that fact when he applied to the Institute.

This, in the opinion of the Board was "serious transgression of well known convention and etiquette". The Board, after considering all the aspects and perusing the confidential reports came to the conclusion that it would not be desirable in the interest of the Institute to retain the services of

the appellant. It was therefore resolved that his services be terminated with a month's notice in terms of the order of appointment. The appellant filed a petition under Art. 226 of the Constitution challenging the order of termination. He relied on cl. 9 of Statute 13 framed under s. 27 of the Institutes of Technology Act, 1!161 which provided that no order imposing any penalty shall be passed without giving a reasonable opportunity of showing cause against the action proposed to be taken in regard to a member of the staff. The High Court held that !i.lthough the Board of Gq_vernors took note of the fac; t that the appellant had committed a breach of a Covenant with the Keiala Government and that he had insisted on certain benefits which he was not entitled to it could not be said that his services bad been terminated by way of punishment.

Dismissing the appeal to this Court,

HELD : A probationer or a temporary servant can be discharged if it is found that he is not suitable for the post which he is holding.

Suitability does not depend merely on the excellence or proficiency in work. A particular attitude or tendency displayed by an employee can well influence the decision of the confirming authority while judging his suitability or fitness for confirmation. In the present case, if the Institute thought that a person of the appellant's type would not be suitable for being confirmed as a member of the staff of the Institute the order dis

pensing with his services could not be regarded as penal action taken with the object of inflicting punishment. [559H-560B]

CIVIL APPELLATE IURISDICI10N : Civil Appeal No. 2263 of 1968.

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Appeal from the judgment and order da'ted August 4, 1964

of the Madrat; High <; ourt in Writ Appeal No. 337 of 1963.

M. C. Chagla and R. Gopalakrishnan, for the appellant.

' S. T. Desai, C. N. S. Chengalverayan and A. V. Rangam, for the respondent.

The Judgment of the Court was delivered by

Grover, J.--Th~'> is an appeal by certificate from a judgement of a division bench. of the Madras High Court affirming the decision of a learned single judge rejecting the petition filed by the appellant under Art. 226 of the Constitution to quash an order passed by the respondent Instituffi on April 26, 1963 which had the effect of terminating his serVices.

The appellant had a distinguished academic career.

After P.assing the Master's degree in Organic Chemistry from the Luck~ now University he obtained a Doctorate from the Royal School of Mining of the lJniversity of London. He got a Post Graduate Diploma from the , Imperial College of Science and Technology, London. He worked for' sometime a, nd was employed successively in some of the Universities in the United States Qf America.

Since the year 1960 the appellant had been making efforts to get employment in the respondent Institute.

This Institute is one of the four Institutes of Science and Technology which have .been declared to be institutions of national importance, It ha-s

a Board of Governors, the Chairman and Members of which are distinguished edu<!ationistsf scientists and teachers.

By a Iett<(r dated fanuary 8, 1962 the appellant was offered the post of the Assistant Professot of Extractive Metallurgy at the Institute.

Condition No. 2 was as followS,:_

"The post is permanent. Your ppointment how~ ever is made on proba.tion for a period of one year. Subject to satisfactory completion of probation,· you will be confirmed in the post. Dt1Png the period of probation your services may be terminated by one month's notice on either side." '

This offer was accepted by the appellant. By a resolution of the Board of Governors dated March 1. 1962 the action of the Chairman in according a.pproval to the appointment of th~ appel lant was confirmed. The appellant joined the !ttaff o! the Institute on May 23. 1962.

It is somewhat unfornate that .. a distinguished scientist of the calibre of the a, ppellant did not commence his career in a happy manner. It appears that he had executed a bond to serve

T. c. M. PILLA! v. I.I.T. (Grover, J.)

the Kerala University.

According to the Institute this fact was never disclosed by him. It has been noticed ,.u the judgment of the High Court that according to the staten~ ·- ~~~ of the Director of the Institute in his affidavit to which no exception was taken by the appellant in his reply the latter adopted an attitude questioning the Rules and Regulations of the Institute as well M

every order made by the superior authorities~ he even threatened legal proceedings at every stage. In spite of that, on January 31, 1963 the Director gave an assurance to the appellant that he did not want members of the staff to quit the Institute on differences of opinir}n on matters which were completely non-academic.

On March 21, 1963 a report on the work done by the appellant was called for with a view to placing it before the Board of Governors.

That report was submitted by the appellant. A meeting of the Board of Governors was held on April 15, 1963. Item 27 of the agenda of that meeting related to the consideration of certain representa-tions made by the appellant. The Board rejected the appeal against the decision of the Director in the matter of allotment of a C type quarter. It also confirmed the Director's decision that the application submitted by the appella•nt for a post in the Benaras Hindu Uni.versity be withheld. The Board made a note of the fact that there was no provision in the Institute Medical Attendance Rules for charges of X-r<'JY done in a private Radiological Institute and reimbursement of charges relating to taxi hire incurred by the appellant in taking his wife to and from the hospital in the a.bsence of a certificate from the authorised medical attendant. Item 28 related to the question of the satisfactory completion of probation of Assistant Professors and their confirmation. It was recorded that the Board had come to know for the first time that while the appellant had executed a bond to serve the Kerala University he did not disclose that fact when he applied to the Institute. This, in the opinion of the Bord, was "serious transgression of well known convention and official etiquette". The Board, after considering aU the aspects and persuing the confidential reports by the Head of the Department in respect of the work of the appellant, came to the conclusion that it would not be desirable in the interest of the Institute to retain the services of the appellant. It was, therefore, resglved that his services be terminated with a month's notice.

The Secretary of the Board of Governors thereafter sent a letter to the appel1ant dated April 23, 1963 informing him that the Board had decided to terminate his services and a month's notice was being given to him in view of clause 2 of the order of appointment.

The appelloot filed a petition under Art. 226 of the Constitution. His main plea was that no reasonable opportunity had been afforded to him to show cause against the order tenninating his services and therefore the same was illegal and invalic.t The

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A allegations made by the appellant were controverted on behalf of the Institute.

The learned single judge, who heard the writ petition, con sidered the question of the applicability of Art. 311 of the Consti tution to the case of the appellant. It was held by him that the appellant was not in the civil service of the Union and could not claim the benefit of the aforesaid Article.

Even otherwise the learned judge was not inclined to agree that the circumsta.nces in which the services of the appellant were terminated warranted the conclusion that he had been discharged by way of punish ment. The appella.nt filed an appeal under clause 15 of the Let ters Patent of the High Court.

Before the division bench the correctness of the decision of the learned single judge with regard to the applicability of Art. 311 was not contested. Reliance was sought to be placed on the provisions of Statute 13 framed under s. 27 of the Institutes of Technology Act, 1961 under which the respondent Institute had been incorporated a.g a body corporate.

Clause 5 of that Statute confem:d power on the appointing autho rity to terminate the services of any member of the staff without notice and without any cause being assigned during the period of proba.tion. Clause 9 gave the penalties which could be imposed on a member of the staff. Removal and dismissal from service were included among those penalties. It was provided that no order imposing any penalty shall be passed without giving reasonable opportunity of showing cause against the action proposed to be taken in regard to a member of the staff. The division bench was satisfied that Statute 13 prescribed the terms and conditions of permanent employees of the Institute. Statute 14 related to the conditions of service of temporary employees.

Although probationers could noi be termed a•S permanent emp loyees the conditions of their tenure were also governed by Statute

13. If the services of a probationer were, therefore, terminated by way of punishment without following the procedure prescribed by clause 9 of Statute 13 it would be competent for the High Court to issue an appropriate writ.

The division bench proceeded to examine the circumstances which led to the resolution of the Board by which his services were terminated.

The conclusion which was arrived at was that although the Board of Governors took note of the fact that the appetla.nt had committed a breach of a covenant with the Kerala Government and that he had insisted on certain benefits to which he was not entitled it could not be said that his services had been terminated by way of punishment.

It was possible that the dissatisfaction of the Board with the con duct of the appellant formed the motive for the ultimate order passed by it but that was quite different from termina, ting his

services as a measure of IJUnishment. •

T. C. M. PILLA! v. I.I.T. (Grover, J.)

Mr. M. C. Chagla for the appellant has forcefully empha sised the background &nd the circumstances which prompted the making of the order terminating the services of the appellant.

According to him the appellant was a distinguished and promi sing scientist whose services would have been of immense advantage to the Institute and merely because he insisted on certain benefits which he conceived to be his just dues and wanted to advance and further his prospects in the Benaras Hindu Univer sity by getting an assignment there, his services were dispensed with without his being told what the charges against him were and without his having any opportunity of giving an explanation or satisfying the Board that whaotever he had done was fully justified and did not merit any action being taken against him. Mr. Chagla pointed out that it is such treatment meted out to our scientists and technologists that there was so much brain drain from this country. Indeed the appellant has now taken up a highly remunerative and important assignment in the United States. It is true that every one who has good of the country at heart should endeavour to retain the services of scientists and technologists of high repute so that the institutions in this country could take advantage of their scholarship and research.

At the same time the scientists or schola, rs who have distinguished themselves in foreign countries should also consider it a part of their duty and obligation to contribute to the imparting of education and ad vancement of research in their own country even though it be at a sacrifice of monetary and other benefits which foreign countries can offer but which it is not possible to obtain here. The present case is a typical one of a scientist who started making complaints about reimbursement charges of x-ray and taxi fare and other small matters as soon as he joined the Institute and even though he had entered into a bond with the Kerala Government to serve the Kerala University he did not appa.rently take the permission of the Kerala Government or University for working elsewhere.

He had barely been in the service of the Institute for a short time when he wanted to take up service with the Banaras Hindu Uni- .versity when a vacancy arose there. No one can blame the appellant for his natural desire to improve his prospects but if the Institute thought that a gentleman of his type would not be suitabie for being confirmed as a member of the staff of the Institute the letter dispensing with his services could not be regarded as a penaJ action taken with the object of inflicting punishment on him.

It is well settled that a probationer or a temporary servant can be discharged if it is found that he is not suitable for the post which he is holding. This can be done without complying with the provisions of Art. 311(2) unless the services are terminated by way of punishment. Suitability does not depend merely on the

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excellence or proficiency in work. There are many factors which enter into consideration for confirming a person who is on probation. A particular attitude or tendency displayed by an employee can well influence the decision of the confirming authority while judging his suitability or fitness for confinnation.

In the present case the Board of Governors consisted of a number of distinguished and well known academicians and teachers. Although there is a mention in the resolution about the confidential reports by the head of the department a, nd the Director but they have not been placed on the record.

Even assuming that those reports were favourable so far as the acade mic work of the appella.nt was concerned the Board was entitled to take into consideration the other matters which have already been mentioned for the purpose of deciding whether he should be confirmed or whether he should be given a notice of one month as per the terms of the letter of appointment. The Board decided to adopt the latter course. By no stretch of reasoning ca.n it be said that the appellant had been punished and that his services had been dispensed with as a penal measure.

It has been pointed out to us by Mr. Chagla. that subsequently also wherever an inquiry has been made from the Institute about the work and conduct of the a.ppellant the certificate which has been sent is in such terms that the appellant cannot expect to get any gainful employment in this country. This, it is submitted, shows what the approach of the Institute was. We are not directly concerned with this m31tter in the present appeal but we have no doubt that the Institute will not adopt any such attitude which may stand in the way of the appellant getting any other employment in this country or in any other country.

The appeal fails a-nd it is dismissed. There will, however. be no order as to costs throughout.

K.B.N.

Appeal dismisJed.