http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: T.   C. M. PILLAI

       Vs.

RESPONDENT: INDIAN INSTITUTE OF TECHNOLOGY, GUINDY, MADRAS

DATE OF JUDGMENT29/04/1971

BENCH: GROVER, A.N. BENCH: 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   Service- Attitude   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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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]

JUDGMENT: 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  judge- ment 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 how-               ever 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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  satis- factory 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 Consti- tution.   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  con- sidered 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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  subsequ- ently  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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

K.B.N.                   Appeal dismissed.- 561