Lotika Vardarajan And Ors. vs The Jawahar Lal Nehru University ...
1991 Latest Caselaw 85 Del

JUDGMENT

Anil Dev Singh, J.

(1) This Civil Writ Petition calls in question the orders dated April 21, 1987 issued by Jawaharlal Nehru University terminating the services of Dr. Lotika Varadarajan (petitioner No. 1) and Dr. Lolita Nchni (petitioner No. 2) both Associate Professors in its school of Arts and Aesthetics, while they were still on probation.

(2) The relevant facts giving rise to this writ petition are By letter dated February 3" 1986 the petitioner No. 1 was offered the post of Associate Professor in the School of Arts and Aesthetic's cf the University, respondent No. 1 which indicates that the petitioner was put on probation for a period of 12 months from the date of joining which could be extended up to a maximum period of 24 months. The petitioner was eligible for confirmation to the post after the satisfactory completion of the probationary period. The petitioner accepted the offer and joined the post on the same date viz February 3, 1986.

(3) Similar offers were made to petitioner No. 2 and Dr. Geeta Sen, originally a petitioner in the writ petition. whose request for deletion of her name from array of parties was accepted by order of the Court dated July 26. 1990. Pursuant to the offers the petitioner No. 2 and Ms. Sen joined the university on February 21, 1986 and April 1, 1986 respectively.

(4) The Dean, School of Arts & Aesthetics, respondent No. (3f), by his letter dated January 19, 1987 addressed to the Vice Chancellor of the University wrote about the work and performance of petitioner No. 1. He pointed out, inter alia, that the petitioner was a "severe constraint in the functioning of the school". He also expressed the view that the petitioner No. 1 did not meet the qualification required for the post.

(5) In regard to petitioner No. 2 the Dean forwarded his comments on her performance by means of a separate letter of even date observing that as she had been on leave from April 14, 1986 to August 6, 1986 it was not possible for him to assess her performance and he would take a little longer time before he could objectively arrive at an assessment. Consequently, he recommended extension of her probationary period for another 12 months. Thereafter the matter relating to confirmation of the petitioners came up before the Executive Council in its 126th meeting held on January 21, 1987. Item No. 5.13 dealt with the case of the petitioners. At that meeting it was resolved to authorise the Vice Chancellor to approve the confirmation of the petitioners if positive reports were received in their cases. This item and the decision thereon reads:-- ''5.13 To consider the confirmation of certain faculty members who have completed or will shortly complete the period of their probation. Resolved to approve the confirmation of the following faculty members w.e.f. date of their appointment indicated against each or from the date a clear vacancy is available whichever is later subject to their fulfillment of usual formalities - 1.Dr. Rajendra Prasad, Sls, 29-3-1985. Professor. 2. Dr. Karmeshu, Scss, 23-4-1986. Associate Professor. 3. Dr. Karaeshu, SCSS. 23-4-1986. Professor.

Resolved further to authorise the Vice-Chancellor to approve the confirmation of the following faculty members if positive reports are received in their cases w.e.f. the date of their appointment or from the date a clear vacancy is available, whichever is later, subject to fulfillment of usual formalities or to extend their probation period, if warranted by their report?: 1.Dr. Tulsi Ram CSEES/SIS, 11-3-1986. Asstt. Professor. 2. Dr. Y. K. Tyagi, SCDILE/SIS, 20-4-1986. Associate Professor. 3. Dr. Lotika Varadarjan, Saa, 3-2-1986. Associate Professor. 4. Dr. Geeti Sen, Saa, 1-4-1986. Associate Professor. 5. Mrs. Kamala, N" CFS/SL, 18-2-1986. Asstt. Professor. 6. Dr. Lolita Nehru, Saa, 21-2-1986".

(6) Again on January 29, 1987 the Dean sent a communication to the Vice Chancellor about the petitioners in which he stated that the petitioners came to his room on the said dale and accused him of undemocratic ways and insisted in seeing some letter which he had written to (he Vice Chancellor. They also told him that he was resorting to unfair means in presence of Professor Govind P. Deshpande of 'SIS'. The letter also indicates that he was shouted at by the petitioners while his P.A., Junior Typist, Peon and several other members of the faculty were witnessing the incident and the petitioners also passed some unsavoury remarks against the Vice Chancellor as well. The letter further records that the petitioners were bent upon having confrontation and fight with him. As a consequence of this. the Dean suggested that petitioner No. 1 should he removed from the department and unless this was done the things will not improve. Thereafter a faculty meeting was convened on February 5, 1987 which was attended amongst others by the Vice Chancellor, the Dean and the petitioners. It is averred in paragraph 11 of the writ petition that no discussion was held by the Vice Chancellor on any academic issues. However, it is the case of the respondent university, set out in the counter affidavit filed by the Registrar on July 15, 1987, that the entire working of the school was reviewed at this meeting. The petitioners were asked to extend their co-operation and their shortcomings were also brought to their notice.

(7) On February 17, 1987 the Vies Chancellor extended the period of probation of the petitioners by two separate orders being office orders No. 113 and 114, for a further period of six months with effect from February 3, 1987 in case of petitioner No. 1 and February 21. 1937 in case of petitioner No. 2.

(8) It seems that the case of the petitioners was again taken up by the Executive Council in its 127th meeting held .on March 14, 1987. Their case was dealt at item No. 5.20 which was an additional item and was not a part of the agenda. The item as also the decision thereon reads:- "5.20To consider the request of Professor Sunil Kothari, Dean, School of Arts. and Aesthetics for being relieved from his duties in the University. The Council took note of he serious problems being faced by Professor Kothari in the School especially because of lack of cooperation and commitment to the School on the part of other faculty members because of which the teaching programme cannot be started from the next Academic Year and Resolved that the performance of the three other faculty members of the school be closely watched by the Vice Chancellor during the extended period of their probation so that a decision is taken well in time about their confirmation or otherwise. Resolved further to note that Professor Kothari has agreed not to press for acceptance of his resignation and instead to approach his parent university for extension of his lien with them."

(9) Subsequently pursuant to the resolution of the Executive Council the Registrar by his letter dated. April 13, 1987 requested the Dean to submit to the Vice Chancellor a special report on the performance of the petitioners. In response to the request the Dean on April 18, 1987 submitted separate reports to the Vice Chancellor in regard to the performance of the petitioners. In case of petitioner No. 1, the Dean was of the opinion that her conduct was wholly unsatisfactory and she lacked cooperation and commitment to the objectives of the school. Similar view was expressed in case of petitioner No. 2 as well. The matter was again taken up by the Executive Council On April 18. 1987 in 128th meeting, as an additional item being item No. 5.22. At this meeting it was resolved not to confirm the petitioners and that they may be given one month's notice at the end of which they would cease to be in the service of the university. Subsequently, the aforesaid two impugned orders dated April 21, 1987 were issued by the Registrar. These orders terminating the services of the petitioners are ex facie orders of termination simplicitor and cast no stigma on them. The petitioners have not only challenged their orders of termination, but also two carrier orders, being Order Nos. 113 and 114, both dated February 17, 1987 extending their probation.

(10) At the outset we may point out that the petitioners are not entitled to the protection of Article 311(2) of the Constitution being employees of the respondent university. However, they are governed by the provisions of Jawaharlal Nehru University Act, 1966 and the ordinance there under.

(11) Shri M. H. Baig, learned counsel, appearing for the petitioners first contended that the form of the order is not conclusive and the case is of termination of services on the ground of misconduct and as such he submitted that we should go behind the orders of termination. In support of this contention he has invited our attention to the aforesaid letters of the Dean dated January 19, 1987, January 29,1987 and April 18, 1987. According to the learned counsel a combined reading of these letters go to show that the termination of the petitioners was founded upon their alleged acts of misconduct He asked us to focus our special attention to those parts of the letters dated January 29, 1987 which deal with general allegations of throwing of papers, passing of unsavoury remarks, fighting and shouting by the petitioners.

(12) Shri V. P. Singh, learned counsel for respondents 1 and 2, contended that the termination of the petitioners from service was not on account of any conduct involving moral turpitude nor were the orders passed on the ground of misconduct on their part. He further contended that the impugned orders of termination were passed on account of unsatisfactory work and performance of the petitioners. He stated that the petitioners failed to cooperate which resulted in the school not taking off and the University not. able to start classes even. The whole working of the school, according to him, got bogged flown. He further invited our attention to the counter affidavit dated July 15, 1987 filed by the Registrar on behalf of the University to point out, inter alia. that the work and performance of the petitioners was being monitored by the Vice Chancellor and Pro Vice Chancellor. Consequently the learned counsel submitted that there was no warrant for the submission advanced on behalf of the petitioners that their work was not supervised by the Vice Chancellor and their services were terminated solely on the basis of the letters of the Dean. He also contended that there is no allegation in the pleadings of the petitioners that the orders of termination were founded upon their misconduct.

(13) We propose to first take up the question as to whether any case has been spelt out in the writ petition and rejoinder for impugning the orders of termination on the ground that they were founded upon allegations of misconduct. Examination of the case set up in the pleadings of the petitioners would be necessary not only for this purpose but also to explore the merits of other points taken by the learned counsel for the petitioners.

(14) In this regard we may now refer to relevant paras of the writ petition to which our attention was drawn. In para 11 of the writ petition it has been asserted that the decision to extend the period of probation was a part of "conspiracy of the Dean" and the decision to terminate their services was mala fide one and also suffers from non-application of mind. In this para it is further asserted that both the Vice Chancellor and the Dean started oral campaign against the petitioners alleging lack of co-operation on their part.

(15) Further in paragraph 13 of the writ petition the material allegation is that when the Executive Council met on April 18, 1987 there was no material before them indicating their performance. In para 4 of the grounds of petition, it is alleged that the Executive Council failed to confirm the services of the petitioners without any material on record indicating their performance and the decision was therefore totally arbitrary, punitive and mala fide. Similar assertions have been repeated at number of places in the writ petition. In this regard a part of para 11 of the grounds of petition also needs to be noted, which reads as under: "11.For that the termination of the services is illegal. Ostensibly no reason has been given by the respondent while terminating the services of the petitioners. On the other hand the acting Vice-Chancellor has made a statement to the Press- viz., to the correspondent of Hindu on 25-4-87 wherein be has alleged that "Although the 87 school was set up with considerable enthusiasm things did not quite roll on smoothly. Mr. Kothari did his best but probably he did not get the necessary co-operation from his faculty members.." The acting Vice Chancellor has also alleged the petitioners performance to be unsatisfactory. Hereto annexed as Annexure Xii is a copy of the said report of the Hindu dated 25-4-1987. The petitioners submit that the Vice Chancellor has not acted fairly in considering the case of the petitioners. While on the one hand there is ostensibly no reason given for not confirming the petitioners' services, the acting Vice Chancellor has accused the petitioners of being un-cooperative. The petitioners submit that such statements made in public about the petitioners without giving them an opportunity to defend themselves and explain their point of view are a stigma to the petitioners hithertofore unblemished and illustrious careers. The petitioners submit that if the decision to terminate the services of the petitioners has been taken on the ground of non-co-operation the petitioners ought to have been heard before any decision was taken. The petitioners submit that the decision to terminate the petitioners' services without hearing them is violative of the principles of natural justice and the petitioners fundamental rights guaranteed under Article 14 of the Constitution of India...."

(16) From the survey of the various paragraphs of the writ petition mentioned above, the pleas of the petitioners can he summarised as follows :

(I)the termination was based upon allegations of non-co-operation;

(II)The orders were passed without providing an opportunity of hearing;

(III)Decision to terminate their services was arbitrary. punitive and mala fide; and

(IV)Executive Council did not have any material before it warranting the passing of the impugned orders of termination and the same suffered from non-application of mind.

(17) From the above it seems that except for mere bald allegation that decision to terminate the services was punitive the rest of the writ petition makes no mention of the plea now being raised on behalf of the petitioners.

(18) However, our analysis of the case set up by the petitioners would be incomplete without reference to the rejoinder filed by them.

(19) In the rejoinder it has been stated that the orders of termination are based upon accusation of misbehavior and misconduct on the part of the petitioners and the final orders of their termination are "made on the basis of the report of the Dean dated April 18,1987 which are in continuation of his letter dated January 29,1987". Furthermore it has been asserted that the orders of termination have been camouflaged as simple orders of termination but is the veil is lifted the orders would reveal their true colour and nature indicating that each one of them is an order of punishment. In light of these specific assertions in the rejoinder, we feel that we should consider the question as to whether the order of termination is an order simplicitor is in reality an order grounded on misconduct. By allowing the petitioners to urge the question, the respondents are neither prejudiced in any manner nor have they been taken by surprise. On this aspect of the matter both the parties have been heard at great length.

(20) It is now well settled that where the form of the order is merely a camouflage for an order of termination from service. which is founded on misconduct, it is always open to the court to tear the veil and unravel the true character and nature of the order. The question is basically of the intention of the authority passing the order which can be discovered and proved like any other fact from the evidence on record and by delving into official record, if need be. We have already referred to the basic pleadings of the petitioners the thrust of which seems to be that the intention behind the orders can be gathered from the aforesaid letters of the Dean, more particularly, letter dated January 29, 1987 which levels allegations of misbehavior on the part of the petitioners. In our quest to unmask the nature and character of the order we may now turn to few paras of the counter affidavit. filed on behalf of respondent No. 1 dated July 15, 1987 having a bearing on the point at issue.

(21) In this counter-affidavit, before submitting parawise reply to the writ petition, there is a narration of relevant facts. In paragraph 2(v) of this narration it is asserted that petitioner No. 1, who was appointed as an Associate Professor, failed to show any aptitude or understanding for which the school had been established. It is further averred that the Dean found her work very unsatisfactory as an Associate Professor and for this reason her probation was extended. It is maintained that "in spite of extention of probation she did not show any aptitude or involvement in the work of the school". For appraisal of her work, reference is invited to a letter of the Dean dated April 18,1987.

(22) As regards petitioner No. 2 it is stated in para 2(vi) of the said narration that she did not show any promise nor commitment or involvement in the setting up of the school. It is pointed out by the answering respondent that soon after joining, she left the university on April 14, 1986 without first obtaining leave and reported back for duty on August 7, 1988., after nearly four months. It is asserted that it was difficult to get her involved in the day to day academic work which involved discissionms, meeting, for formulation of the courses, credit requirements for each course and various other academic requirements to be laid down for the students. It is further stated that "she preferred to attend other meetings or conferences than of the school". To illustrate this, an incident is quoted where the Dean wrote to her for a meeting to be held on October 16.1986 but she regretted her inability to attend the same on the ground of her being unwell. It is maintained that the excuse put forward was not correct as on the same she attended another meeting of the 'Equivalence Committee'. It is further averred that according to assessment of the Dean her commitment, to the work of the school was found wanting and it was difficult to fix meetings and discussions with her because of her frequent non-availability in the school. It is also alleged that she had not drawn up even a list of books to be prescribed for the courses of study which at that time were proposed to start in Monsoon Semester with effect from July, 1987. In para 2(viii) of the narration it is pointed, out that the Vice Chancellor called a meeting of the faculty members in his office on February 5, 1987 which was p Registrar in this meeting the entire working of the school was reviewed. The petitioner was asked to co-operate with the Dean and their shortcomings were also brought to their notice. It is asserted that the petitioners were clearly told at the meeting that "IN case things did not improve the university would be constrained to abstain from starting teaching and research in the school and no admissions would be made for the Monsoon Semester, 1987".

(23) In para 2(ix) of the narration, the reason for termination of their services is given. It is asserted that the petitioners working did not improve and the university was reluctantly compelled to terminate their employment during the probationary period. At this stage we may also refer to some material averments made in paras 4 and 5 of the counter affidavit, which read: "4-5:The contents of paras 4 and 5 are wrong and denied. It is denied that there was no material before the executive council when it resolved to terminate the services of the petitioners. It is wrong that the decision was taken purely on the oral statement of the Dean. Professor Sunil Kothari being a Professor was the Dean of the Faculty was in overall in charge of the faculty. Apart from this the said Dean being an eminent artist and a teacher of repute was competent to make a reasonable assessment about the work of the petitioners. As per the reports which are the reports of the Dean of the school the work of the petitioners was found unsatisfactory. There was enough material before the Executive Council to come to its decision. Besides on account of the unsatisfactory functioning of the school, the then Vice Chancellor and the Rector who is now the acting Vice Chancellor of the university were closely watching the work of all the petitioners and the said school. They also found the work of the petitioners unsatisfactory."

(24) All this shows that the university is not alleging any spacing or particular misconduct on the part of the petitioners but has exercised its right to terminate the services of the petitioners during their probationary period on the ground that it was not satisfied with their performance which power was conferred on it under the contract of service executed by the parties as also under Academic Ordinance relating to conditions of service of appointment of teachers of the university. The relevant clause of the contract as also the said Ordinance read as under :

"2(1)The teacher shall be on probation for a period of 12 months which may be extended -so as not to exceed 24 months in all. (2) xxxxxxxxx (3) If the University 'is satisfied with the suitability of the teacher for confirmation, the teacher shall be confirmed in the post to which the teacher was appointed at the end of the period of teacher's probation.

Ordinance Relating To Conditions Of Service Of Appointed Teachers Of The University Probation : 3.Teachers shall be appointed on probation ordinarily for a period of twelve months, but in no case shall the total period of probation exceed twenty four months : Provided that the Executive Council may for reasons to be recorded waive the condition of probation: Provided further that the condition of probation shall not apply in the case of teachers appointed by the Executive Council under the provisions of Statute 28. Explanation : The Executive Council shall have the right to assess the suitability of a teacher for confirmation even before the expiry of the period df twelve months from the date of his /er appointment but not earlier than nine months from that date."

(25) A conjoint reading of the aforesaid conditions of contract and ordinance leave no manner of doubt that the Executive Council has been invested with untrammeled power to assesS the suitability of teachers for confirmation within a period of twenty four months from the dale they are put on probation. Here we are really concerned with the exercise of power under the Ordinance, though service originated through a contract. It is in. exercise of this statutory power that the services of the petitioners have been terminated during the period of probation.

(26) Our attention has been invited by the learned counsel for the petitioners to section 30 of the Jawaharlal Nehru University Act,1966 which petitions to removal of teachers on on allegations of misconduct, and he urges us. to hold that the services of the petitioners could not be terminated without taking recourse to the provisions of this section. The necessary implication of this submission is that a regular enquiry should have been launched in which the petitioners should have been given a reasonable opportunity of showing cause against the action which has been taken against them.

(27) Section 30 would be attracted only when the service of a teacher is being dispensed with on the ground of misconduct. There may be loss to the employer dire to error of judgment, lack of efficiency and clarity failure to attain the target, fixed by the employer, absent mindedness and impatience on the part of the employee but all this does not amount to misconduct unless it involves some sort of guilty mind or means rea. Nevertheless these factors may be relevant for determining as to whether an employees should be retained in the post. Such lack of personal qualities would not ordinarily constitute misconduct for purposes of holding disciplinary preceedings. in this case the University was confronted with the situation where the work of the petitioners was not found satisfactory. They allegedly did not cooperate. This reason is related to the temperament of the petitioners and as such docs' not fall v.ithin the an'bit of Section 30 of the University Act. The discharge of services of a probationer on account of inadequacy for the job or for any temperamental or other reason not involving moral turpitude and not amounting to misconduct cannot be called termination by way of punishment. Even the learned counsel for the petitioners has not ventured to argue that when service has been terminated for unsatisfactory work or for lack of co-operation or other temperamental unsuitability, the same would still fall within the purview of Section 30 of the University Act. In the case of Hari Singh Mann vs. State of Punjab and others, , it was held by their lordships of the Supreme Court that termination on account of temperamental reasons does not cause stigma and observed :-- "12.... .Termination of services on account of inadequacy for the job or for any temperamental or other defect not involving moral turpitude is not a stigma which can be called discharge by punishment. Witness for the job is one of the most important reasons for confirmation. The facts and circumstances do not show that there is any stigma attached to the order of termination."

(28) This position has been reiterated by a seven Judge Bench of the Supreme Court in Shamsher Singh vs. State of Punjab and anothjer, Air Sc 2192 (2) "64.Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules, governing a probationer in this respect, the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude, the probationer is unsuitable for the job and hence must be discharged No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquire. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation..........."

Again in Abiio Hauswak vs. Government of India and another their lordships relied on Shamsher Singh (supra) and quoted the aforesaid observations with approval.

(29) In Somnath Sahu Vs. The State of Orissa and others discharge for no extending co-operation to immediate senior officers and not showing loyalty to the Government was not viewed by the Supreme Court as discharge for misconduct and it was observed as follows: "5.........IT is true that in the first part of the letter respondent No. 4 has said that the appellant had refused fused to disclose the names of the members of the Supervisory Staff taking part in the union activities and the appellant had not extended co-operation to the Personnel Suprintendedt. who was his immediate superior officer. For these reasons respondent No. 4 thought that the appellant tailed in his duty of obedience to superior officers and was also not showing loyalty to the management But no finding of misconduct was recorded by respondent No. 4 and the order of removal dated the March 11, 1960 was really tantamount to a simple order of discharge under the terms of the contract. There is no element of punitive action in the order of respondent No. 4 dated the 11th March, 19110. In form and substance it is no more than an order of discharge effected under the terms of contract and it cannot in law be regarded as an order of dismissal because respondent No. 4 was actuated by the motive that the appellant did not deserve to be continued service for alleged misconduct. We are, therefore, of opinion that respondent No. 4 was net required to issue notice to the appellant or to make an enquiry and there was M violation of principle of natural justice."

(30) Next we take lip seriatim the letters of the Dean regarding the work of the petitioners. Both the letters of January 19, 1987 do not suggest the petitioners to be guilty of any specific or particular misconduct or any moral, turpitude. However, letter relating to petitioner No. 1 does indicate that the Dean had some reservations about her suitability and qualifications for the post of Associate Professor. Again letters dated April 18, 1987 merely report about the work and performance of the petitioners.

(31) In so far as letter dated January 29, 1987 is concerned it is to be noted that again there is no allegation relating to any moral turpitude on the part of the petitioners but it is also correct that in this letter the Dean alleged throwing of papers, passing of unsavoury remarks, fighting and shouting by the petitioners. It is significant to note that in spits of this letter the services of the petitioners ware not terminated in the first instance even though the Dean had specifically suggested removal of petitioner No. 1 from the department. Subsequent to this letter and the Faculty meeting of February 5. 1987 the period of probation of the petitioners was extended and they were given a chance to improve their work and performance. If throwing of papers and other similar allegations levelled against the petitioners had been Dr. Lotika Varadarajan and others Vs. The Jawahar Lal 95 Nehru University and others the inducing factor for giving them marching orders, there was no reason why the services of the petitioners would not have been terminated in January or thereabout.

(32) Again after the letter of January 29, 1987, the Registrar invited a special report from the Dean. If the aforesaid incidents indicated in the letter of January, 29, 1987 had been the basis for terminating the services of the petitioners, why would in that case any body bother to invite a special report from the Dean. In our view there is no reason to hold that either allegations about throwing of papers or those relating to flight, etc. were the foundation of the order of termination of the petitioners during the period of probaton. Even the affidavit dated July 9, 1987 filed by Dr. Anirudh Gupta, a member of the Executive Council which was heavily relied by learned counsel for the petitioners in support of some of his other contentions, which are dealt with in the later part of this judgment, does not suggest that the services were terminated on account of any misconduct of the petitioners. The affidavit does not say a word about the aforesaid letters of the Dean nor does it suggest that allegations of misbehavior indicated in the letter of the Dean of January 29, 1987 were the foundation of the orders of termination. Rather the affidavit brings out, inter alia, the assertion of "lack of cooperation and commitment" as is evident from the following portion of the affidavit : "DR.Kothari in his oral complaint, at the Executive Council meeting, did not make a single named reference to any of the petitioners herein and only generalised statements regarding lack of cooperation and commitment to the school of Arts and Aesthetics were urged without naming those involved."

(33) Learned counsel for the petitioner invited our attention to Anoop Jaiswal (Supra) and Jarnail Singh and others vs. State of Punjab and others, in support of the proposition that the form of the order is not conclusive and the court has jurisdiction to lift the veil in order to see whether the order of termination is in reality a cloak for the order of punishment. We express our respectful agreement with this enunciation of law. However, in the facts and circumstances of this case we are not inclined to hold that the termination of the petitioners is for any specific misconduct on their part. Even if the episode of throwing papers and the allegation of fight etc. was the motive it did not however transform into foundation. Here we are concerned with an educational institution the school of arts and aesthetics, which did not take off. The interest of the individual is subservient to the interests of the students and the institution. In saying this we should not be understood to be doubting the academic competence of the petitioners in their own discipline. But the question is should the university retain teachers in its school of Arts and Aesthetics when there was no functional activity in as much as neither classes started nor the admissions could take place as planned originally. At this stage the material averments on this aspect. of the matter set out in the counter-affidavit of the Registrar are worth noticing. The relevant portion of the affidavit reads thus : "IN the light of the background set out earlier, coupled with the fact that even after a period of a year, the School could not be started a.nd no admissions could be made to the monsoon semester commencing July, 1987 and also combined with the fact that it is highly unlikely that it would be possible to commence the school during the next three years. ...".

In view of the above, it was therefore, unnecessary to retain the petitioner in service.

(34) It may be pertinent to point out that the services of all the three Associate Professors were terminated. Even the Dean was not confirmed and left the school, may be for the reason that Rabindra Bharti University was not willing to extend his lien on the post which he was holding in that university. Basically it is for the university council to assess the suitability of the teachers and High Court sitting in writ jurisdiction cannot interfere in such matters. It can neither question the wisdom of such a decision nor examine the merits of the same. The petitioner wanted to us to hold that the assessment of their work for purposes of confirmation ought to have been done by the Board of Studies. The condition looses sight of the fact that under the aforesaid Ordinance, no authority other than the university council has any say in the matter. Dr. Lolika Varadarajan and others Vs. The Jawahar Lal Nehru University and Ors.

(35) The petitioners claim to have prepared, after detailed ground work, a document running into over 100 pages With regard to various aspects of setting up of the new school. But suitability of the petitioners does not merely depend upon this alone. Even proficiency in a particular work may not be sufficient for purposes of confirmation. Many factors enter into consideration and a particular attitude, tendency or personnel trait displayed by an employee can influence the decision of the confirming authority while judging his suitability or fitness for confirmation. In T. C. M. Pillai Vs. The Indian Institute of Technology, Guindy, Madras, it was held as under :

"7.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 by way of punishment. Suitability does not depend merely on the 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 hi suitability or fitness for confrmation."

"8.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, they have not been placed on the record. Even assuming that those reports Were favorable so far as the academic work of the appellant was concerned the Board was entitled to take into coasideration 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 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."

(36) Undoubted position which emerges from the factual matrix of the present case is that the petitioners were on probation and as such had no right to the post. Under the terms and conditions of service as embodied in the ordinance, the university had a right to terminate their services if it was not satisfied with their performance. Furthermore the orders of termination are innocuous and are not founded on misconduct.

(37) In Ravinder Kumar Misra Vs. U.P. State Handloom Corporation Ltd. and another their Lordships of the Supreme Court were concerned with the case of a temporary employee, who was suspended on charges of misconduct and dereliction of duty. Subsequently his suspension was revoked and an order of termination of his services was passed staling that his services were no longer required. It was held that the order was an order of termination in innocuous terms which did not cast any stigma on him. It was further observed that if the delinquency of the officer in temporary service is taken as an operative motive in terminating the service, the order is not considered as punitive but if the order is founded upon it only then it is to be considered as punitive and at page 2414 of the above report it is held thus : "11.Keeping in view the principles indicated above, it is difficult to accept the claim of the appellant. He was a temporary servant and had no right to the post. It has also not been denied that both under the contract of service as also the Service Rules governing him the employer had the right to terminate his services by giving him one month's notice. The order to which exception is taken is expressly an order of termination in any innocuous terms and does not cast any stigma on the appellant nor does it visit him with any evil consequences. It is also not founded on misconduct. In the circumstances, the order is not open to challenge."

(38) In Oil & Natural Gas Commission and another vs. Dr. Mohd. S. Iskander Ali , the Supreme Court while dealing with the case of termination of probationer from service observed :

"12.The facts of the present case appeared to be on all fours with those of the aforesaid decision. From the Dr. Lotika Varadarajan and others Vs. The Jawahar Lal 99 Nehru University and others undisputed facts detailed by vs in an earlier part of the judgment it is manifest that even if misconduct, negligence, in efficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such a power flowed from the contract of service it could not be termed as penalty or punishment."

"14.Applying the principles enunciated by this Court in various cases to the facts of the present case. the position is that the order impugned is prima facie an order of termination simplicitor without 'involving any stigma. The order does not in any way involve any evil consequences and is an order of discharge simplicitor of the respondent who was a probationer dad had no right to the service. The respondent has not been able to makes out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment."

(39) The Supreme Court in a recent pronouncement in the case of State of Uttar Pradesh and another Vs.Kaushal Kishore Shukla after reviewing large number of authorities has held that service of a temporary employee can be terminated in accordance with relevant service rules without holding a formal enquiry.

(40) In the light of the above discussion we are of the opinion that the petitioners being probationers, no inquiry was required to be held before their removal nor any opportunity of hearing was required to be given to them. The orders of termination were not founded on allegations of miscorduct, therefore, Rule 30 of the University Act is not attracted.

(41) It was submitted that the work of the petitioners was not supervised by the Vice-Chancellor in spite of decision of the Executive Council dated March 14. 1987. This allegation has been specifically refuted by the Registrar in the counter affidavit filed by him. Assuch, this contention may not detain any further and we reject the same.

(42) The learned counsel sought to attack the order of termination on the ground of mala fides alleged aginst the Dean. The contention has no force as the decision to terminate services was taken up by the Executive Council against whom no mala fides have been alleged That apart, the allegations of mala fides levelled against the Dean are vague and do not merit any consideration. It was next urged by Shri Ml H. Baig, learned counsel, for the petitioners' that in case the petitioners were to be discontinued it was proper and necessary that they should have been told in advance that their work was not up to the mark. This submission was made on the strength of a decision of the Supreme Court, in Dr. (Mrs.) Sumati P. Shere Vs. Union of India and. others . This contention of the learned counsel is also not well founded.

(43) In the counter affidavit filed by the Registrar it is categorically staled that in the faculty meeting of February 5, 1987 the Vice Chancellor had requested the petitioners to extend their co-operation to the Dean and their shortcomings were also brought to their notice. We cannot doubt this assertion of the Registrar who has no axe of his. own to grind. Moreover nothing tangible or concrete has been brought on record by the petitioners to debit on the statement of the Registrar. In fact the petitioners have themselves asserted in the writ petition that both the Vice Chancellor and the Bean were a alleging non-co-operation their part. This by itself indicates that the petitioners were fully aware of this position. We have no hesitation in rejecting the contention of the learned Counsel for the petitioners as we find that the petitioners were told in advance about the shortcomings in their work and performance.

(44) Learned counsel for the petitioner then submitted that on April 18, 1987 the matter of petitioners confirmation was taken up as an additional item without prior notice to the members and there was no material before them on which they could apply their mind in arriving at a decision. In this reward he has also drawn our attention to the affidavits of respondent "No. 3(d). Dr. Anirudh Gupta, one of the members of the Executive Council. Dr. Gupta in his two affidavits of July 9, 1987 and August 20, 1987 has asserted that no back-ground material was placed the Executive Committee in its meeting of March 14, 1987 and April 18, 1937 with regard to the work of the petitioners and at that point of time he was not even aware of their names. By means of another affidavit tiled by Dr. Anirudh Gupta on December 16, 1987, letter of one of the members of the executive committee, namely. Dr. K. K. Nambiar, dated August 19, 1987 was placed on iecord' wherein the latter has agreed with the statements made by the former in his affidavit dated July 9, 1987. the allegation of thr petitioners that no material with regard to the work and performance of the petitioners was placed before the Executive Committee on April 18, 1987, has been denied in the counter-affidavit of the Registrar affirmed on July 15, 1987. In another affidavit of the Registrar of the same date filed in reply to the affidavit of Dr. Anirudh Gupta it has been. averred that at the meeting of the Executive Council held on January 21, 1987 the functioning of the petitioners was, discussed by name. It has further been asserted that the minutes of this meeting were duly received by Dr. Anirudh Gupta. As a sequitur it has been stated that it was incorrect that respondent No. 3 (.d) was not aware that the petitioners were Associate Professors of School of Arts and Aesthetics of the University. In this affidavit of the Registrar it has been further submitted that the work of the petitioners was a.gain brought to the notice of the Executive Council in the meeting held in March, 1987. The affidavit goes on to state that the work of the petitioners was discussed at length in the said meeting. With regard to the meeting of the Executive Council held on April 18, 1987 it. has been pointed out that Dr Anirudh Gupta specifically .asked Professor P. N. Srivastava, the then Vice Chancellor, about the reports relating to the work and performance of the petitioners. It is further stated that Professor P. N. Srivastava handed over the entire file to Dr. Gupta who perused the same. It is claimed that the Executive Council took the decision after satisfying itself that the work of the petitioner was not satisfactory. Two more affidavit of Dr. V. Asthana and Dr. Satis Kumar, members of the Executive Council filed on August 28, 1989 also need to be noticed Both Dr. V. Asthana and Dr. Satish Kumar haw maintained that decision to terminate the services of the petitioners was taken in the meeting of the Executive Council on April 18, 1987 after the consideration of the material pertaining to their Derformance. In the affidavit of Dr. Satish Kumar it has aso been stated that "on the request of a member viz. Professor Anirudh Gupta... Professor Srivastava handed over the files containing reports on the said three teachers to him and the file was returned by Professor Gupta after perusing it for a few minutes".

(45) The mere fact that on April 18, 1987 the matter of the petitioner was taken up as an additional item cannot lead to the conclusion that no material was placed before the Executive Council in regard to the work and performance of the petitioners. It is an admitted fact that the classes did not commence which was even brought out in the meeting of the Executive Council held on March 14, 1987. This meeting was also attended by Dr. Anirudh Gupta. In the same meeting tire Executive Council noticed that the Dean was facing serious problems because of lack of co-operation and commitment to the school on the part of the other faculty members. This observation of the Executive Council was not objected to by Shri Gupta, rather he was privy to the same. The stand of Dr. Gupta in his affidavit dated July 9, 1987 that he was not even aware of the names of the petitioners as they were not disclosed and as a member of the Executive Council he had no previous occasion to acquaint himself' with the names of the faculty members- of the school of Arts and Aesthetes before hand does no appear to be correct as the minutes of the meeting of the Executive. Council dated January 21, 1987 were admittedly circulated to all the Members of the Executive Council including Shri Gupta. Through these minutes he must have come to know about the names of the petitioners as Item No. 5.13 made a specific reference to them by name. According to the affidavit of the Registrar, Dr. V. Asthana and Dr. Satish Kumar the Executive Council took the decision to terminate the services of the petitioners after due consideration of the material placed before it with regard to the performance of the petitioners. Shri Nambiar, who is now supporting the case of the petitioners was a party to the decision of the Executive Council dated April 18, 1987. It is surprising that he did not express his dissent at that point of time. We are also conscious of the statement of Dr. Anirudh Gupta that the file relating to the petitioners was made available subsequently after the meeting of the Executive Council dated April 18, 1987. The question whether any material, reports or papers regarding the work of the petitioners were placed before the Executive Council or not is a disputed question of fact and it is not possible to investigate the matter in writ jurisdiction. When highly placed officers choose to take conflicting stands it becomes difficult for the court to distinguish between genuine and false. In view of the mists of contradictions we are not inclined to accept the submission of the learned counsel for the petitioners that no material was placed before the Executive Council when the decision to terminate the services of the petitioners was taken.

(46) It was then contended that neither the probation of the petitioners could be extended by orders dated February 17, 1987 nor could their services be terminated in this manner as they stood automatically confirmed at the end of Twelve months of the probationary period. In this regard learned counsel relied upon clause 2(1) of the aforesaid contract and has urged that in case the university was inclined to extend the period of probation then in that case it was required to extent the period of probation at least 30 days before the expiration of that period and since the probation was extended on February 17, 1987 in contravention of the stipulation the petitioners should be deemed to have been confirmed. It may be pointed out at the outset that in the aforesaid contract there is no provision for automatic confirmation after expiry of initial period of 12 months. The service conditions of the teachers and staff of the Universally are also governed by Jawahar Lal Nehru University Act, statutes and ordinances framed there under.

(47) According to Ordinance No. 3 the teachers in the first instance are to be appointed on probation for a period of 12 months. Subsequently the period of probation can be extended up to 24 months. Therefore the period of probation of the petitioners could be extended within 24 months of their entry into service. Learned counsel for the petitioners then relied upon Ordinance 4 which required the Registrar to place before the Executive Council the case of confirmation of a teacher on probation not later than 40 days before the end of probation. It is pleaded that since the case for confirmation of the petitioners was not placed before the Executive Council within that period by Registrar, the petitioners would be deemed to have been automatically confirmed. This submission of the learned counsel is not well founded. To appreciate the correct legal position it is necessary to reproduce the material portion of the said Ordinance :

"4.Confirmation :

(A)ft shall be the duty of the Registrar to place before the Executive Council the case of confirmation of a teacher on prohation not later than forty days before the end of the period of probation.

(B)The Executive council may then either confirm the. teacher or decide not to confirm him/her or extend the period of probation so as not to exceed twenty four months in all. In case the Executive Council decides not to confirm the teacher, whether before the end of the twelve months period of his/her probation, or before the end of of the extended period of probation, as the case may be, he/she shall be informed in writing to that effect. not later than thirty days before the expiration of that period Provided that the decision not to confirm a teacher shall require a two-thirds majority oi the members of the Executive Council present and voting. "

(48) As is. clear from sub clause (b) of Ordinance 4 the Executive Council may confirm the teachers or decide not to confirm or extend the period of' probation so as not to exceed 24 months in all. The Executive Council is also authorised to discharge or not. to confirm the teachers either before the end of 12 months' period or even before the end of extended period of probation. The consequence of not complying with clause 4(a) cannot be automatic confirmation of a teacher as. it would militate against clause 4 (b). In Kedar Nath Bahl vs. The State of' Punjab and Others, their lordships of the Supreme Court had an occasion to consider the question as to whether a person who is appointed as a probationer in a post, where the period of probation is specified, acquires confirmation automatically after the expiry of the said period and in this connection it was observed as follows : "9.....Where a person is appointed as a probationer in any post and the period of probation is specified, it does not follow that at the end of the said specified period of probation the obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that the confirmation would astronautically follow at the end of the specified period, or there is specific service rule to that effect, the expiration of the probationary period does not necessarily l'sad to ccnfirmati-on. At the end' of the period of probation an order confirming the officer is required to be passed and if no such order is passed and. he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer."

The question as to whether the time stipulation in Ordinance 4(a) ia directory or mandatory depends upon the intention of the framers. It is well settled that in the case of a legislative enactment the intention of the legislature must govern which is ascertained not only from the phraseology of the provisions but also by considering its nature and the consequence which follow from construing it one way or the other. There is no reason why similar considerations should not apply while construing the ordinance framed under Section 36 of the Jawahar Lal Nehru University Act. Normally if the statute prescribes time limit for performance of a statutory duty without specifying the consequences for failure to comply with it then such prescription is directory and not mandatory. The consequence of extending the period of probation later than forty days before the end of period oi probation cannot have the result as suggested by the learned counsel. If the interpretation placed by him on Ordinance 4 is accepted it will lead to wholly undesirable results. This may be illustrated by taking the case of two teachers who are appointed on probation on the same day. Both have equally unsatisfactory record. In case of one, for extraneous reasons, his case for confirmation is put up before the Executive Council a day or two after forty days before the end of period of probation while in the case of other the matter of his confirmation is placed within the time fixed by the statute. The Executive Council finds both unfit for the job. According to the interpretation sought to be placed by the learned counsel for the petitioners, the result would be highly unjust. The University will not be able to terminate the services of the former as lie will be deemed to have been confirmed. However, the axe will fall on the latter who will alone suffer discharge as the university would be unable to pack off the other teacher not because of the work and performance being found satisfactory but because of the default of the concerned officer in placing his case for confirmation before the Executive Council a day or two beyond the stipulated period deliberately and designedly. In view of the above discussion, we reject the contention of the learned counsel for the petitioners.

(49) Learned counsel for the petitioner submitted that the decision of the Executive Council taken at its meeting dated April 18, 1987 to terminate the services of the petitioners was vitiated because of the participation therein of the Dean who was biased against the petitioners. Support was also sought from the judgment of the Supreme Court rendered in A.K. Kraipak and others vs. Union of India & others, . At the outset we may observe that bias was no where pleaded in the writ petition. It is only in the rejoinder affidavit that such a plea was taken. The plea appears to be an after-thought. In any case we are of the opinion that the decision of the university is not vitiated on this score as we do not find that the Dean was in any way biased against the petitioners. He had no self interest in the matter nor had he any interest adverse to that of the petitioners. There was no element of competition involved. It has not been brought out as to why the Dean would entertain, any bias against the petitioners. The authority relied upon by the learned counsel has no bearing on the facts of the present case. In that case the Chief Conservator of Forests, though a candidate for selection to the Indian Forests Service, was also a member of the Selection Committee. It was a clear case of a conflict between interest and duty. In the peculiar facts of that case the Supreme Court held that the Chief Conservator should not have been a member of the Selection Committee as his own subtle bias would work against the other candidates who were competing with him in the selection for Indian Forest Service.

(50) The Dean in the instant case has more than one function to perform He was not only under an obligation to supervise the work of the teachers' working in the school of Arts and Aesthetics but was also duty bound to participate in the meetings of the Executive Council where all sorts of decision? regarding academic matters were taken including the ones relating to confirmation of those very teachers whose work he supervised. His previous involvement in making the reports relaying to the work and perform of the teachers will not disqualify him from participating in the meetings of the Executive Council where decisions about their confirmation are taken. The Dean cannot be deemed to be disqualified merely because of his previous comments about the. work and performance of the teachers. In this view of the matter we are not inclined to accept the contention of the petitioners which is accordingly rejected.

(51) It was also contended on behalf of the petitioners that the Executive Council was compelled to take the decision to terminate the services of the petitioners because of the threatened resignation of the Dean. In support of this submission the learned counsel for the petitioners has invited our attention to the affidavit of Dr.Anirudh Gupta dated July 9, 1987 and the minutes of the meeting of the Executive Council dated March 14, 1987. We are not impressed by this argument of the learned counsel. In the first place the services of the petitioners were not terminated on March 14, 1987 when the Dean offered to resign. Moreover, in case the Dean was as influential as it has been made out to be before us. there was no reason why he would not have been confirmed by the Executive Council even though his case for confirmation was placed before the Executive Council on April 18, 1987 and als)o on an earlier occasion.

(52) Lastly Shri Baig, learned counsel for the petitioners, urged that the orders Nos. 113 and 114 dated February 17, 1987 extending their probation were bad and illegal for the reason that the Executive Council could not delegate its function to confirm or extend the probation of a teacher to the Vice Chancellor, who had in fact extended their period of probation. This plea too has not been raised in the writ petition but had been taken for first time in the rejoinder affidavit. In case the Petitioners wanted to urge this point the least they should have done was to seek amendment of the writ petition. However, this course of action was not adopted by them. In any event, since the Executive Council itself considered the question of confirmation of the petitioners on April 18, 1987 and decided to terminate their services, this submission of the petitioners docs not survive.

(53) As an epilogue we wish to add that the orders of termination do not indict the petitioners for any misconduct. No charges were framed against them. The competent authority terminated their services by an innocuous order in accordance with the terms and conditions of their service. The allegations that the work of the petitioners were not found satisfactory or that they did not co-operate were made in the counter affidavit by way of a defense to the writ petition and they do not change the nature of the order of termination. If there was harmony, the school could have started functioning which would have been to the benefit of the students and the institution. The From harmony, from heavenly harmony This universal frame be gain : From harmony to harmony Though all the compass of the notes it ran The diapason closing full in Man. (A song for St Cecilia's day). Since all the contentions of the learned counsel for the petitioners stand rejected, this writ petition is dismissed. However, there will be no order as to costs.