Madras High Court
Anand Lenin Vethanayagam vs The Registrar on 15 March, 2012
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.03.2012 CORAM THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN Writ Petition No.15555 of 2011 And M.P.Nos.1 and 2 of 2011 Anand Lenin Vethanayagam .. Petitioner Vs. The Registrar Pondicherry University Pondicherry. .. Respondent ----- Petition under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus calling for the records relating to the Office order No.105 in PU/ESTT(T)/ET-3/2011-12/105 dated 27.5.2011 passed by the respondent and quash the same and direct the respondent to confer all the consequential benefits. ----- For Petitioner : Mr.C.Selvaraju, S.C. For M/s. C.S.Associates For Respondent : Mr.R.Viduthalai, S.C. For Mrs.A.V.Bharathi ----- O R D E R
The petitioner has come up with the above writ petition challenging an order of termination of his services as a Reader in the Department of Mass Communication.
2. Heard Mr.C.Selvaraju, learned senior counsel for the petitioner and Mr.R.Viduthalai, learned senior counsel for the respondent.
3. By an order dated 21.7.2010, the petitioner was appointed as a Reader in the Department of Mass Communication, School of Media and Communication, on the basis of the recommendations of the Selection Committee of the University. In accordance with the terms and conditions stipulated in the order of appointment, he was placed on probation for a period of one year from the date of appointment. The petitioner joined duty on 03.8.2010. Therefore, his initial period of probation was to expire on 02.8.2011.
4. When the petitioner was rendering services as a Probationer, a complaint was received by the University that he had plagiarised from a book titled "Mass Communication in India" authored by one Sri.Keval J.Kumar and from several other internet sources, in a book said to have been authored by him under the title "Fundamentals of Mass Communication". Therefore, by a letter dated 07.3.2011, the University sought an explanation from the petitioner on the said allegation and also called upon him to provide soft copies of all the books claimed to have been authored by him.
5. The petitioner submitted a reply dated 14.3.2011, denying the allegations. But, he did not send soft copies of his works. Therefore, by a further letter dated 29.3.2011, the petitioner was asked to produce one printed copy of his book. The petitioner requested time up to 15.4.2011.
6. Though the petitioner did not submit a printed copy of the book, some students allegedly submitted a photocopy of the full text of the book authored by the petitioner in a sealed cover. According to the University, the said photocopy was passed on to the Librarian of the University, with a request to scan the same using a software known as "TURNITIN". The results of the scan is said to have disclosed 60% plagiarism.
7. Therefore, the matter was placed before the 107th Meeting of the Executive Council on 24.3.2011. The Council resolved to constitute a Committee to look into the issue of plagiarism.
8. The Committee, which consisted of both external and internal members, submitted a report on 27.4.2011, holding that it is not possible for the Committee to make a definite statement on the alleged plagiarism, since the book authored by the petitioner was not made available. However, the Committee concluded that the petitioner could be guilty of making a false and misleading statement in his application form, which would have repercussions associated with the selection process. Taking such a view, the Committee actually recommended to the University to look into the said act of "misconduct", namely, that of making a false and misleading statement.
9. On the basis of the report of the Committee, a show cause notice was issued to the petitioner on 09.5.2011. In his reply dated 23.5.2011, the petitioner denied the allegations and alleged mala fides against the Vice Chancellor and another Faculty Member of the Department. He also claimed that his performance was rated very high by the students, with a score of 4.1 out of 5.
10. Thereafter, the matter was placed before the Executive Council Meeting held on 27.5.2011. The Council passed a resolution dated 27.5.2011 for terminating the services of the petitioner in terms of Clauses 3 and 12 of the Terms and Conditions of appointment. Accordingly, the services of the petitioner were terminated by an order dated 27.5.2011. Challenging the said order, the petitioner has come up with the above writ petition, contending that the impugned order is not an order of termination simpliciter, but a stigmatic order, passed without affording any opportunity to him.
11. The University has filed a counter affidavit claiming that when applications were invited for appointment to the post of Reader in the Department of Mass Communication, it was stipulated that the applicants should have authored books on the relevant subject. In his application, the petitioner claimed to have authored three books, with the titles (i) Fundamentals of Mass Communication, (ii) Introduction of Digital Photography, and (iii) Digital Printing Technology.
12. As per the counter affidavit of the University, they received complaints from a few students about the alleged plagiarism of the petitioner in his book "Fundamentals of Mass Communication"; that therefore, a letter dated 07.3.2011 was issued; that since the petitioner did not submit hard copy of the book, some students delivered the photocopy in a sealed cover; that the University Librarian found out, with the use of the software "TURNITIN", that there was 60% plagiarism; that the Committee constituted by the Executive Council could not come to a definite finding on the allegation of plagiarism, but recommended action over the misconduct of making false and misleading statements; that thereafter the Executive Council decided to terminate his services, since he was within the period of probation, by invoking Clauses 3 and 12 of the order of appointment.
13. A reading of the affidavit in support of the writ petition and the counter affidavit of the University shows that there is no dispute on facts and that there is no dispute about the events that had culminated in the impugned order of termination. Therefore, the only question that falls for consideration is as to whether the impugned order is an order of termination simpliciter or not.
14. Before taking up the question whether the impugned order is an order of termination simpliciter or not, I should first dispel one impression sought to be created in the impugned order as well as in the counter affidavit. The impugned order as well as the counter affidavit proceed on the basis as though the termination is that of a probationer made in tune with Clauses 3 and 12 of the order of appointment dated 21.7.2010. Clauses 3 and 12 of the order of appointment read as under:
"Clause 3:
You will be on probation for a period of one year from the date of appointment which may be extended by one more year if considered necessary by the Appointing Authority. During the period of probation, the appointing authority has the power to terminate your services without notice and without assigning any reason. On satisfactory completion of probation, you will be considered for confirmation. If confirmed you will continue in service in accordance with the provisions of the Act, Statues and the Ordinances of this University.
Clause 12:
If any declaration given or information furnished by you is found to be incorrect or not in order or if it is found that you have willfully suppressed any information considered material by this University, the University reserves to itself the right to withdraw the offer of appointment/cancel the appointment at any time without prejudice to such other action as the University may deem necessary."
15. The impugned order of termination dated 27.5.2011 reads as follows:
"The Executive Council, vide Resolution No.2011.108.122 dated 27.05.2011, has resolved to terminate the services of Dr.S.Anand Lenin Vethanayagam, Reader, Dept. of Mass Communication with immediate effect, in accordance with the Clauses 3 & 12 of the terms and conditions of the appointment contained in the letter cited under reference (1) above, with three months salary in lieu of notice.
Accordingly, the services of Dr.S.Anand Lenin Vethanayagam are terminated with effect from 27.5.2011 (A.N) and he is hereby relieved of his duties from the post of Reader in the University from 27.5.2011 (A.N). Three months salary has been credited to his account in lieu of notice."
16. The impugned order of termination refers to the resolution of the Executive Council of the University and a copy of the resolution itself is enclosed to the impugned order. Therefore, it actually forms part of the impugned order and hence, the same also requires re-production. Hence, it is extracted as follows:
"The Executive Council discussed, in detail, all the issues involved in the light of the points and issues raised by Dr.Anand Lenin Vethanayagam, in his reply, dated 23.05.2011. The legal position and pending Court cases were also taken note of. After considering the matter from all angles, it was decided that at this stage, the Council may confine its decisions only to the following two issues:
(i) Providing false information/willfull suppression of facts relating to publication of the books; and
(ii) Performance of Dr.Anand Lenin Vethanayagam as a teacher of the University.
It was observed from the various statements and facts placed before the Council that Dr.Lenin's claim made in October 2009 that he had published three books as on that date was false. He had also willfully suppressed the fact, till he was asked to produce the copies of the books, that the books claimed to have been published in October 2009 itself, were yet to be published by any registered publisher and he had got only a few copies printed apparently as regularly published books for the sake of interview.
His performance as a teacher during the last nine-and-a-half months has not been found satisfactory with frequent complaints from students. This has been confirmed by the regular assessment exercise of teachers by the students, who have rated him the lowest among the teachers of the department of Mass Communication with a score of 1.93 against the required benchmark of 2.5 approved by the Executive Council.
The Council, therefore, unanimously resolved that Dr.Anand Lenin Vethanayagam is not suitable for continuation in the senior position of Reader in the University and, hence, his services shall be terminated forthwith under the clauses 3 and 12 of the terms and conditions of his appointment, with payment of three month's salary in lieu of notice."
17. A perusal of Clauses 3 and 12 of the order of appointment and a perusal of the impugned order would show that the impugned order is certainly not in tune with Clauses 3 and 12 of the appointment order. As per Clause 3 of the appointment order, the initial period of probation is for one year. The period commenced on 03.8.2010, the date on which he joined duty. It was to come to an end on 02.8.2011. The termination order is dated 27.5.2011. Therefore, under Clause 3, it was open to the respondent to terminate the services of the petitioner without notice and without assigning any reason.
18. But, the impugned order seeks to terminate the services of the petitioner with three months salary. This is not contemplated by Clause 3 of the appointment order. I am not suggesting for a moment that conferment of a benefit, over and above what is provided in Clause 3 of the appointment order, could itself be held against the University. All that I am trying to point out is that the University itself does not appear to have framed the order in terms of Clause 3.
19. In any event, the resolution of the Executive Council proceeds on the footing that the petitioner was guilty of making a false information/wilful suppression of material facts relating to the publication of books and also that his performances as a Teacher was not up to the mark. These reasonings found in the resolution are attempted to be fit into the Scheme of Clause 12 of the appointment order.
20. But, Clause 12 of the order of appointment does not speak of termination. It speaks of cancellation of appointment or withdrawal of the order of appointment, without prejudice to such other action as they may deem fit. The impugned order is not an order of cancellation of appointment or withdrawal of appointment. If it was a cancellation/withdrawal of the order of appointment, there is no question of rewarding the petitioner with three months salary.
21. A reading of the resolution of the Executive Council and a reading of the impugned order, together with the clauses contained in the appointment order, shows that the University was attempting to ride two horses at the same time, on account of a confused state of mind. Therefore, the first impression sought to be created by the respondent as though the termination is in tune with Clauses 3 and 12 of the order of appointment, has to be dispelled.
22. Coming to the most fundamental question, the law on the point is well settled. The Courts have always applied two tests, namely (i) to find out from the order of termination itself as to whether it attaches a stigma or not, and (ii) to go even beyond the order of termination to find out whether a misconduct provided the motive or the foundation for the order of termination.
23. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (AIR 1999 SC 983), the appellant was appointed as Office Superintendent and placed on probation for one year. Within the period of probation, he was informed of his unsatisfactory performances on several occasions. When the initial period of probation was nearing, a memo was issued to the appellant. During the extended period of probation also, a memo was issued pointing out serious deficiencies in his work. After a second extension of probation, his services were terminated on the ground of unsatisfactory performance. The challenge made by the appellant to the order of termination was rejected by a Division Bench of the Calcutta High Court. The appellant went before the Supreme Court. In paragraph 19 of its decision, the Supreme Court framed for consideration four points, three of which are (i) whether the termination was founded on misconduct, and in what circumstances, the allegations could be said to have provided only the motive, (ii) whether an order of termination of a probationer can be said to contain an express stigma, and (iii) whether the stigma can be discovered by referring back to the proceedings referred to in the order of termination.
24. After referring to several earlier decisions, the Supreme Court laid down the following principles of law in the said decision:
(i) If findings are arrived at in an enquiry as to misconduct, conducted behind the back of the Officer, the simple order of termination is to be treated as founded on the allegations. But, if enquiry is not held, no finding is arrived at and the employer was not inclined either to conduct an enquiry or to continue the employee, it would only be a case of motive (paragraph 22); and
(ii) The material which amounts to stigma need not be contained in the order of termination of the probationer, but might be contained in any document referred to in the termination order or in its annexures. Such a document could also be asked for or called for by any future employer of the probationer and hence, the order of termination in such cases would stand vitiated on the ground that no regular enquiry was conducted (paragraph 36 of the report).
25. Keeping the above principles in mind, if we look at the impugned order and the annexure to the impugned order, it is clear that the University was carried away by two facts, namely, (i) that the petitioner provided false information and was guilty of wilful suppression of facts relating to the publication of books; and (ii) that his performances as a Teacher was not up to the mark, as he had scored only 1.93 as against the required benchmark of 2.5. The first reason stated which relates to the furnishing of false information/wilful suppression of facts relating to the publication of books, had arisen out of the alleged complaints, to enquire into which a Committee was constituted. The respondent agrees that the Committee could not arrive at a finding of plagiarism. But, the Committee went overboard and recorded a finding that the petitioner could be held guilty of making a false and misleading statement in his application form.
26. The Expert Committee constituted under the Chairmanship of Professor Dr.K.L.Chopra, was not a Committee constituted to go into the conduct of the petitioner. As seen from paragraph 9 of the counter affidavit, it is a Committee constituted only to see whether there was plagiarism or not. But, they went overboard and made a suggestion to the University to proceed against the petitioner for making a false and misleading statement in his application form. The extract of the report of the Committee dated 27.4.2011, contained in paragraph 9 of the counter affidavit, contains a very important recommendation in the last line. It reads as follows:
"Under the circumstances, the University may look into this act of misconduct."
27. It is the above recommendation of the Expert Committee that led the Executive Council to pass a resolution on 27.5.2011 holding that the petitioner provided false information/wilful suppression relating to the publication of his books. Therefore, the fact that the alleged misconduct of the petitioner formed the foundation for the impugned order cannot at all be disputed by the respondent.
28. In a very clever way to get over the impression created by the resolution of the Executive Council, Mr.R.Viduthalai, learned senior counsel for the respondent contended that the resolution provides two reasons. If one reason was good enough to sustain the impugned order, the Court need not nullify the impugned order on the ground that it also contains an unacceptable reasoning.
29. But, unfortunately, the above contention may hold good for an order of termination for a misconduct, in pursuance of disciplinary proceedings. If the respondent wants to avoid the conduct of an enquiry into misconduct, they are obliged not to provide any reason that would disclose the said frame of mind. In other words, if an order of termination contains two reasons, one of which is stigmatic and the other not so, the order should fail. But, if an order of dismissal, in pursuance of disciplinary proceedings, contains more than one reason, some of which are not valid, the order could be sustained. This is the distinction between an order simpliciter and an order imposing a penalty.
30. On the question of severability of the orders, the learned senior counsel also relied upon the decision of the Supreme Court in The Gujarat Mineral Development Corporation v.P.H.Brahmbhatt (AIR 1974 SC 136). But, the said case arose out of an award passed by the Labour Court in relation to a workman who continued to be on medical leave. The facts out of which the said case arose are incomparable and the doctrine of severability, as I have said earlier, may go only to the rescue of an order which is passed in pursuance of disciplinary proceedings and not to a case where the order is sought to be branded as one of termination simpliciter.
31. Placing reliance upon a decision of the Supreme Court in Pavanendra Narayan Verma v. SGPGI of Medical Sciences ((2002) 1 SCC 520), the learned senior counsel for the respondent contended that since the law, in the words of the Supreme Court had developed on illogical lines, the onus on the Court is very heavy. Referring to paragraph 28 of the said decision, the learned senior counsel contended that whenever a probationer challenges his termination, the Court should first apply "the form test". Only if the order survives that examination, the next test relating to "substance" has to be applied.
32. It is true that in Pavanendra, the Supreme Court lamented that right from the days of Parshotam Lal Dhingra (AIR 1958 SC 36), the law had developed along apparently illogical lines in determining whether the termination of a probationer was punitive or simpliciter. The Court also lamented that the decision in Dhingra spawned diverse judicial trends, difficult to be disciplined into one single, simple, practical formula. Nevertheless, the Court referred to the decision in Dhingra as the Magna Carta of the Indian civil servant and chose not to deviate from the settled principles.
33. The Court, in Pavanendra, also took note of Samsher Singh v. State of Punjab ((1974) 2 SCC 831) and pointed out that the search for the substance behind the form really led to some apparently conflicting decisions. After pointing out that Courts struggle with semantically indistinguishable concepts like motive and foundation and that it is impossible to find a clear path through the jungle of precedents, the Court held in paragraph 28 that the tests of form and substance could be applied in succession. Nevertheless, the Court did not, in Pavanendra, seek to clear the jungle of bushes. Therefore, I have to go only through the same path.
34. Applying the form test, I find that the resolution of the Executive Council accuses the petitioner of providing false information and wilful suppression of facts. This allegation in the impugned resolution stems out of the recommendation made by the Expert Committee in its report dated 27.4.2011, which is extracted in paragraph 9 of the counter affidavit itself. The Expert Committee looked at this suppression and providing of false information as a misconduct. Therefore, the impugned order has survived the test of form. Once it survives the test of form, I have necessarily to apply the second test, namely that of substance. On substance, the factual details are as clear as a crystal to hold that the impugned order is founded upon allegations of misconduct.
35. The observations recorded in paragraphs 33 to 35 of the decision in Pavanendra are relied upon by the learned senior counsel for the respondent in support of his contention that the impugned order could survive on the second reason that the rating of the petitioner was very low in the assessment of students. It was for the first time that the rating of the petitioner was taken up by the show cause notice dated 09.5.2011. The show cause notice runs to five pages. The first three pages deal only with the allegations of plagiarism, the constitution of the Expert Committee, their communications and their findings. Towards the end of paragraph 4, the show cause notice contains, as one of the points on summary that the rating of the petitioner by the students was low. Therefore, the respondent cannot seek to have the impugned order sustained on the basis of the said reason, when the other reason obviously casts a stigma.
36. The learned senior counsel next relied on the decisions of the Supreme Court in Rajesh Kohli v. High Court of Jammu & Kashmir (JT 2010 (10) SC 276) and Rajesh Kumar Srivastava v. State of Jharkhand ((2011) 4 SCC 447). While the first decision relates to a District and Sessions Judge appointed on a temporary basis in the State of Jammu & Kashmir, the next decision relates to a Munsif appointed in Jharkhand.
37. In Rajesh Kohli, there was a serious allegation that the petitioner withdrew a huge amount of Rs.2.6 lakhs deposited with the Registrar Judicial, which was payable to the complainant. There was a vigilance enquiry. In the light of such serious allegations, the Supreme Court itself perused the relevant records, as seen from paragraph 11 of the report. It is in such circumstances that on facts, the Supreme Court came to a conclusion that the termination was not stigmatic.
38. In Rajesh Kumar Srivastava, there were serious allegations of misconduct against the Munsif, in discharging a few accused in criminal cases, while exercising the power of a Judicial Magistrate I Class. The allegation was that he acted for extraneous considerations. In order to keep the image of the service unsullied, his probation was terminated. Even in this case, the Supreme Court perused the records, as seen from paragraph 9 of the report. Therefore, these extreme cases cannot go to the rescue of the respondent.
39. In the light of the above, I find that the alleged misconduct against the petitioner was the foundation for the impugned order, but not its motive. Therefore, it is vitiated and liable to be set aside.
40. In view of the above, the writ petition is allowed, the impugned order is set aside and the respondent is directed to reinstate the petitioner as a probationer. It will be open to the respondent to extend the period of probation of the petitioner and initiate appropriate disciplinary action, if they so choose. Any observation made in this order shall not have any bearing upon any disciplinary proceedings initiated against the petitioner. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes 15.03.2012. Internet : Yes kpl To The Registrar, Pondicherry University, Pondicherry. V.RAMASUBRAMANIAN,J. kpl Order in W.P.No.15555 of 2011. 15.03.2012.