T. C. M. Pillai Vs. Indian Institute of
Technology, Guindy, Madras [1971] INSC 134 (29 April 1971)
GROVER, A.N.
GROVER, A.N.
HEGDE, K.S.
CITATION: 1971 AIR 1811 1971 SCR 555 1971 SCC
(2) 251
ACT:
Institutes of Technology Act, 1961-Statute
13, cl. (9) framed under s. 27-Probationer-Termination of ServiceAttitude or
tendency displayed by employee valid consideration-Termination based on such
considerations not punishment.
HEADNOTE:
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 attitude 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 service of the Institute
for a short time when he wanted to take up service elsewhere. 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 had
executed a bond to serve the Kerala University he did not disclose that fact
when he applied to the Institute. 'Ibis, 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, 1961 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 ill regard to a member of
the staff.
The High Court held that although the Board
of Governors took note of the fact that the appellant had committed a breach of
a Covenant with the Kerala Government and that he had insisted on certain
benefits which he was not entitled to it could not be said that his services
had 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 dispensing with his
services could not be regarded as penal action taken with the object of
inflicting punishment.
[559H-560B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2263 of 1968.
556 Appeal from the judgment and order dated
August 4, 1964 of the Madras High Court 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.--This 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 Institute on April 26,
1963 which had the effect of terminating his services.
The appellant had a distinguished academic
career. After passing the Master's degree in Organic Chemistry from the Lucknow
University he obtained a Doctorate from the Royal School of Mining of the
University of London. He got a Post Graduate Diploma from the Imperial College
of Science and Technology, London. He worked for sometime and was employed
successively in some of the Universities in the United States of 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 has a Board of Governors, the Chairman and Members of which are
distinguished educationists, scientists and teachers. By a letter dated January
8, 1962 the appellant was offered the post of the Assistant Professor of
Extracting Metallurgy at the Institute. Condition No. 2 was as follows:
"The post is permanent. Your appointment
however is made on probation for a period of one year. Subject to satisfactory
completion of probation, you will be confirmed in the post.
During 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 approval to the
appointment of the appellant was confirmed. The appellant joined the staff of
the Institute on May 23, 1962.
It is somewhat unfortunate that a
distinguished scientist of the caliber of the appellant did not commence his
career in a happy manner. It appears that he had executed a bond to serve 557
the Kerala University. According to the Institute this fact was never disclosed
by him. It has been noticed in the judgment of the High Court that according to
the statement 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 as 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 opinion 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
representations 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
appellant for a post in the Benaras Hindu University 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-ray 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 absence 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 Board, was " serious transgression of well known convention and
official etiquette". The Board, after considering all the aspects and
pursuing 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, resolved that his services be terminated with a
month's notice. The Secretary of the Board of Governors thereafter sent a
letter to the appellant 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 appellant 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 terminating his services and
therefore the same was illegal and invalid. The 558 allegations made by the
appellant were controverted on behalf of the Institute.
The learned single judge, who heard the writ
petition considered the question of the applicability of Art. 311 of the
Constitution 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 circumstances in which the services of the appellant
were terminated warranted the conclusion that he had been discharged by way of
punishment. The appellant filed an appeal under clause 15 of the Letters 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 as a body corporate. Clause 5 of
that Statute conferred power on the appointing authority to terminate the
services of any member of the staff without notice and without any cause being
assigned during the period of probation. 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 ?a 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 not be termed as permanent employees 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 appellant 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 conduct of, the appellant formed the
motive for the ultimate order passed-by it but that was quite different from
terminating his services as a measure of punishment.
559 Mr, M. C. Chagla for the appellant has
forcefully emphasised the background and the circumstances which prompted the
making of the order terminating the services of the appellant. According to him
the appellant was a distinguished and promising 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 University 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 whatever 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 endeavor 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 scholars 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 advancement 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 apparently 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 University 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 suitable for being confirmed as a member of
the staff of the Institute the letter dispensing with his services could not be
regarded as a penal 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 560 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 confirmation.
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 and the Director but they have not been
placed on the record. Even assuming that those reports were favourable so far
as the academic work of the appellant 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 can 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 appellant 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 matter 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 and it is dismissed. There
win, however, be no order as to costs throughout.
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