H. K. Srivastava v. Meerut University — 1975 DIGILAW 516 (ALL)

ORDER A. Banerji, J. - The petitioner challenges in this writ petition the order terminating his services as Professor of Agricultural Botany dated the 20th October, 1974. The petitioner has characterised this termination to be by way of punishment and has prayed for a writ to quash the order of the Executive Council dated the 20th October, 1974. 2. The petitioner had a commendable academic career both in this Country and abroad. After having obtained a Doctorate in Agricultural Botany from the Texas A & M University (U. S. A.) and Post Doctorate work in the Edinburgh University he joined the Haryana Agricultural University as Associate Professor in Genetics. Subsequently, on the 2nd of November, 1972 he was appointed Professor of Agricultural Botany in the Meerut University Meerut at the age of 28 years. The same year he was appointed the Head of the Department and also became the Dean of the Faculty of Agriculture and a member of the Executive Council of the Meerut University. His appointment letter which is Annexure-1 to the writ petition, indicates that the petitioner was appointed as Professor of Agricultural Botany on probation of one year with effect from the date he joined the post. It further appears from the said letter of appointment that the Meerut University was keen to have him on the staff of the University. The petitioner actually joined the service with the Meerut University on 28th November, 1972. Although the period of probation was mentioned to be one year no order was passed during this period either extending the period of probation or confirming hire as professor. The Kanpur and Agra University Act was repealed by Uttar Pradesh State Universities Act, 1973. The later Act came into force on the 2nd of September, 1973. The earlier Act was repealed and the conditions of service of the teachers of the University were to be regulated by the later Act. On the 6th of August, 1974 Shri B.S. Mathur took over as the acting Vice-Chancellor on the retirement of Shri J.N. Kapoor. There was certain correspondence between Shri B.S. Mathur and the petitioner. Ultimately in the meeting of the Executive Council dated the 20th October, 1974 the case regarding the confirmation of the petitioner was considered. Two resolutions were passed which are contained in Annexure-15 to the writ petition. It will be relevant to quote them. There was certain correspondence between Shri B.S. Mathur and the petitioner. Ultimately in the meeting of the Executive Council dated the 20th October, 1974 the case regarding the confirmation of the petitioner was considered. Two resolutions were passed which are contained in Annexure-15 to the writ petition. It will be relevant to quote them. (1) "That Executive Council having not confirmed the services of Dr. H. K. Srivastava after one year of the date of his service as Professor of Agricultural Botany in the University, and it be deemed as extension of his period of probation for another one year." (2) "In view of the report of the Vice-Chancellor, the services of Dr. H.K. Srivastava be not confirmed and his services be terminated with immediate effect by giving one month's salary in lieu of one month's notice." 3. It is against these resolutions of the Executive Council of the Meerut University that the present writ petition has been directed. The petitioner has also filed a copy of the report made by the Vice-Chancellor to the Executive Council which is marked as Annexure-16 to the writ petition. The petitioner's case was that the report of the Vice-Chancellor indicated that there were allegations of misconduct against the petitioner. It was contended on behalf of the petitioner that the Vice-Chancellor was called soon to make a report about the work and conduct of the petitioner but if he chose to rely on any act of misconduct of the petitioner it was necessary in that event for the executive Council to have constituted a Board of Enquiry to go into the matter. The termination was, therefore, not a termination simpliciter. It was a termination by was of punishment. The petitioner had not been given any opportunity to explain the charges that the Vice-Chancellor had mentioned against him in his report nor was he afforded any opportunity by the Executive Council before an order terminating his services was passed. It was further contended that since the petitioner was appointed on probation for a period of one year he would be deemed to have been confirmed and therefore, he could not be deemed to be on probation and consequently his services could not be terminated in the manner in which it has been done. It was further contended that since the petitioner was appointed on probation for a period of one year he would be deemed to have been confirmed and therefore, he could not be deemed to be on probation and consequently his services could not be terminated in the manner in which it has been done. Allegations have been made in the writ petition about the Executive Council not being order constituted at the time when the termination order was passed but this point was not pressed in the arguments. There are also allegations of mala fides against the Vice-Chancellor Sri B.S. Mathur and although arguments were raised in this respect but were not pressed. Shri M.P. Singh, learned counsel for the petitioner stated that the point of mala fides was not pressed. 4. In the counter-affidavit filed on behalf of the University it was denied that the termination was by was of punishment. It was urged that the termination was in accordance with law. The petitioner was a probationer, his period of probation had been extended as was permissible under the law and that his services had been terminated during the period of probation. No stigma was attached to the resolution passed by the Executive Council terminating his services and nor was it incumbent soon the Executive Council to hold an Enquiry or constitute a Board to look into the contents of the report made by the Vice-Chancellor. The principal question in this case is whether the petitioners services have been terminated in accordance with law or is by was of punishment. In order to decide this question it will first be necessary to find out whether the petitioner was probationer on the date when the Executive Council passed the order terminating his services. There is no dispute that the petitioner was appointed originally on probation for a period of one year as indicated in the letter of appointment dated the 2nd November, 1972. It is also apparent that during the period of one year the petitioners services as professor were neither terminated nor confirmed. There is no dispute that the petitioner was appointed originally on probation for a period of one year as indicated in the letter of appointment dated the 2nd November, 1972. It is also apparent that during the period of one year the petitioners services as professor were neither terminated nor confirmed. In the Kanpur and Meerut Universities Act, 1965 (hereinafter referred to as the U.P. Act XIII of 1965) Sec. 19 empowers the Executive Council to appoint the officers, teachers and other servants of the University to define their duties and conditions of their service and to provide for the filling up of temporary or casual vacancies in their posts. Section 30 empowers the University to make Statutes and clause (e) of Section 30 pertains to the power to make the Statutes for the classification and manner of appointment of the teachers. In the First Statutes of the Meerut University Statutes 5-27 to 5-39 deals with the selection and appointment of the teachers in the University. There is no dispute that the petitioner was duly appointed. Statutes 5.34, 5.35 and 5 36 are relevant. They read as follows: "5.34 (a) Every teacher of the University appointed under sub-section (1) of Section 26. shall be on probation for a period of one year in the first instance. (b) The Executive Council may in its discretion extend the period of probation by one year. 5.35. The Executive Council may, at the end of period of probation (including the extended period, if any) confirm the teacher after considering the reports mentioned in Section 26 (2) (a). 5.36 The Executive Council may before or at the end of the period of probation (including the extended period, if any), terminate the services of a teacher of the University if his work or conduct is not considered satisfactory." It will also be relevant here to refer to Section 26 of the U. P. Act XIII of 1965. "26 (2). 5.36 The Executive Council may before or at the end of the period of probation (including the extended period, if any), terminate the services of a teacher of the University if his work or conduct is not considered satisfactory." It will also be relevant here to refer to Section 26 of the U. P. Act XIII of 1965. "26 (2). Every teacher appointed under sub-section (1) shall, in the first instance be on probation for such period as may be prescribed and he shall not be confirmed - (a) if he is a teacher of the University except by the order of the Executive Council after considering the reports of the Vice-Chancellor and the Head of the Department, unless he himself is the Head of the Department, and the Dean concerned:" It is, therefore, apparent from the above that every teacher of the Meerut University had to be appointed initially on probation for a period of one year. The Executive Council was empowered to extend this period by one more year. It is also apparent that there can be no automatic confirmation in view of the provisions of Section 26 (2) (a). The power to pass an order of confirmation vested in the Executive Council and that too on a report from the Vice-Chancellor and the Head of the Department concerned in the case of a teacher who was not the Head of the Department himself. In the present case the petitioner himself was the Head of the Department and, therefore, a report from the Vice-Chancellor to the Executive Council was necessary. 5. In the U.P. State Universities Act, 1973, hereinafter referred to as the 1973 Act, the powers and the duties of the Executive Council are enumerated in Section 21. Section 21 (1). clause (vii) empowers the Executive Council to appoint officers, teachers and other employees of the University and to define their duties and the conditions of their service, and to provide for the filling of temporary or casual vacancies in their posts. Chapter VI of the 1973 Act deals with the appointment and condition of service of teachers and officers. Section 31 (2) is relevant and is quoted below: "Sec. 31 (2) The appointment of every such teacher, Director and Principal not being an appointment under sub-sec. Chapter VI of the 1973 Act deals with the appointment and condition of service of teachers and officers. Section 31 (2) is relevant and is quoted below: "Sec. 31 (2) The appointment of every such teacher, Director and Principal not being an appointment under sub-sec. (3), shall in the first instance be on probation for one year which may be extended for a period not exceeding one year: Provided that no order of termination of service during or on the expiry of the period of probation shall be passed - (a) in the case of a teacher of the University except by order of the Executive Council made after considering the report of the Vice-Chancellor and (unless the teacher is himself the Head of the Department), the Head of the Department concerned." It will, therefore, be seen that even under the 1973 Act the initial appointment has to be made on probation for a period of one year and the period of probation can be extended for a period not exceeding one year and the termination could be done during the period of probation or on the expiry of the period of probation by the Executive Council after considering a report of the Vice-Chancellor. Section 32 also provides that Every teacher of the University shall be appointed on a written contract, which shall be consistent with the provisions of the Act, the Statutes and the Ordinances. A similar provision existed in the U.P. Act XIII of 1965 also. It will be evident from the above that the period of probation, although initially for a period of one year, could certainly be extended for another period of one year. It is also clear that writ could only be extended by the Executive Council. It is also apparent from the above provisions that there can be no automatic confirmation in the post held by a teacher. An order of the Executive Council was necessary. It is, therefore, obvious that the petitioner did not become confirmed on the expiry of one year from the date of his initial appointment. Since the petitioner joined his services on the 28th November, 1972 he did not automatically become confirmed by the 28th November, 1973. The Executive Council was empowered to extend his period of probation. This the Executive Council had done by its resolution dated the 20th October. 1974. Since the petitioner joined his services on the 28th November, 1972 he did not automatically become confirmed by the 28th November, 1973. The Executive Council was empowered to extend his period of probation. This the Executive Council had done by its resolution dated the 20th October. 1974. It is, therefore, clear that the petitioner continued to be a probationer after the 28th November, 1973 and continued to be so on the 20th October, 1974. This question is answered accordingly. 6. The next question that arises for the consideration is in regard to the manner in which the services of a teacher on probation could be terminated. I have already referred to Section 26 (2) (a) of the U. P. Act XIII of 1965 and to Statute 5.36 of the First Statutes. I have also referred to the provisions of Section 31 (2) of the 1973 Act. The power to terminate the services of a probationer vested in the Executive Council. The Executive Council could only terminate the services of a teacher on the report of the Vice-Chancellor showing that the work and conduct of the teacher concerned was unsatisfactory. It is open to the Executive Council either to accept or not to accept the report of the Vice-Chancellor but it is clear that unless the Vice-Chancellors report showed that the work and the conduct of the teacher concerned was unsatisfactory the Executive Council has no power to terminate the services of a teacher on probation. It is only when the Vice-Chancellor makes a report that the Executive Council is called soon to consider the report and take a decision. This precise procedure was followed in the present case. There was a report by the Vice-Chancellor and the Executive Council after consideration of the report passed the order terminating the services of the petitioner. The resolutions of the Executive Council specifically states that having considered the report of the Vice-Chancellor the order was passed. Nothing has been mentioned in the resolution as to what were the contents of the report of the Vice-Chancellor. A perusal of the resolution terminating the services of the petitioner does not reveal that any stigma at taches to the petitioner in the matter of the termination of services. What the petitioner is aggrieved of is the contents of the report of the Vice-Chancellor itself. A perusal of the resolution terminating the services of the petitioner does not reveal that any stigma at taches to the petitioner in the matter of the termination of services. What the petitioner is aggrieved of is the contents of the report of the Vice-Chancellor itself. It is urged that the Court is entitled to look into the circumstances which caused the passing of the order of termination. In other words, it is contended that it was not necessary that there should be express words of stigma attributed to the conduct of the teacher in the impugned order. In this context the learned counsel cited the case of the State of Bihar v. S.B. Mishra, AIR 1971 SC 1011 : (1971 Lab IC 724). Their Lordships held therein that they were unable to accede to the contention of the appellant that so long as there are no express words of stigma attributed to the conduct of a Government Officer in the impugned order it cannot be held to have been made by was of punishment. Their Lordships indicated: "The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. ............So far as we are aware no such rigid principle has ever been laid down by this Court and that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government Officer it must be held to have been made in the ordinary course of administrative routine and the Court is debarred from looking at all the attendant circumstances to discover whether the order had been made by was of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. (See S. R. Tewari v. District Board Agra, 1964-3 SCR 55 : ( AIR 1964 SC 1680 )). It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. (See S. R. Tewari v. District Board Agra, 1964-3 SCR 55 : ( AIR 1964 SC 1680 )). It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of the circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order." 7. In the above case their Lordships held that the order of reversion was and proximately founded on what the Commandant and the Deputy Inspector General said relating to the respondents conduct generally and in particular with reference to the incident of assault by him on his orderly. Their Lordships agreed with the decision of the High Court that the order of reversion was void and the subsequent order of dismissal passed by the Deputy Inspector General of Police was violative of Article 311 (1) of the Constitution. 8. In view of the above it is clear that this Court is not precluded from looking at the report of the Vice-Chancellor on the basis of which the order of termination was passed by the Executive Council. It is evident that the report of the Vice-Chancellor is dated the same day the Executive Council passed the order of termination. 9. The Vice-Chancellor's report is contained in Annexure-16 to the writ petition. It starts with the words: "Dr. H.K. Srivastava's work and conduct during the period of probation has been far from being satisfactory." The salient features of his report show that that Srivastava had used service stamps for personal correspondence; (2) he had misused his position in approaching Convener Board of Studies in Commerce to include certain names in panel of examiners; (3) non-payment of the amount received from the ICAR on account of the on and allowances of Dr. Mathur and his research assistant to the latter and irregularities committed thereto; (4) Dr. Srivastava has occupied a quarter not allotted to him by the University and had not vacated the same in spite of several communications by the Vice-Chancellor which showed the insubordination and indisciplined behaviour of Dr. Mathur and his research assistant to the latter and irregularities committed thereto; (4) Dr. Srivastava has occupied a quarter not allotted to him by the University and had not vacated the same in spite of several communications by the Vice-Chancellor which showed the insubordination and indisciplined behaviour of Dr. Srivastava, (5) language used in correspondence with the Vice-Chancellor showed indiscipline, insubordination and insolence; (6) behaved with the Vice-Chancellor with insolence; (7) his work as a professor was not satisfactory; (8) he had not got the capability of a professor and Head of the Department and he did not have harmonious atmosphere in the Department; (9) his previous employers. The Haryana Agricultural University had informed that Dr. Srivastava had not been properly relieved and Dr. Srivastava had not been able to give the Vice-Chancellor the relieving chit; and (10) Dr. Srivastava abused and misbehaved with an overseer. These grounds show that it has not only referred to the conduct and work of the petitioner but also referred to certain acts of misconduct on the part of the petitioner. The use of the service stamps in personal correspondence, the non-payment of the sums of money received from the ICAR and irregularities committed in respect thereto were acts of misconduct. It is not for this Court to sit in judgment whether the grounds raised in the report of the Vice-Chancellor were sufficient or not to warrant a termination of his services. That was entirely in the jurisdiction of the Executive Council. The only point in respect of which this Court may investigate is whether there was anything in the report of the Vice-Chancellor which cast a stigma on the petitioner and whether the said report was the basis of the order of termination. In the context it will be necessary to examine the scope of the Statute in respect of the report of the Vice-Chancellor to the Executive Council. Statute 5.36 refers to the work and conduct of the teacher concerned. What is the meaning to be assigned to these words "work and conduct" day The word `work' will refer to his work as a teacher, as the professor of Agricultural Botany, as the Head of the Department of the Agricultural Botany and as the Dean of the Faculty of Agriculture. What is the meaning to be assigned to these words "work and conduct" day The word `work' will refer to his work as a teacher, as the professor of Agricultural Botany, as the Head of the Department of the Agricultural Botany and as the Dean of the Faculty of Agriculture. Similarly, the word "conduct" would refer to the conduct of the petitioner as a teacher, as a professor, as the Head of the Department and as the Dean of the Faculty. The acts of indiscipline, insubordination, insolence. his act of abusing any member of the University staff or subordinates would squarely come within the word "conduct." The relevant question, therefore, that arises is whether the act of using service stamps in personal correspondence and the non-disbursement of the amounts received from the ICAR towards the pay and emoluments of Dr. Mathur and Research Assistant and the irregularities committed in respect thereto would amount to conduct or would amount to misconduct. Surely, it is no part of the work of the Professor, or the Head of the Department to use service stamps for his personal correspondence. The user of the service stamps is a privilege available only in official correspondence. In other words the user of service stamps for personal correspondence amounts to user of public funds for his own personal use. In other words, it amounts to mis-appropriation. It is a serious accusation. The Vice-Chancellor has stated that he found Dr. Srivastava having used service stamps for his personal correspondence. Similarly, the charge that the amounts received from the ICAR for payment to Dr Mathur and his Research Assistant having not been duly paid and irregularities having been committed in respect thereto pertains to embezzlement of public funds. This too is a serious accusation. If these two accusations are proved it would amount to an act of malfeasance, i.e. doing some evil or unlawful act. The question that then arises is whether these acts of the petitioner amount to acts of misconduct on his part or does it come within the meaning of the word "conduct" as used in Statute 5.36. As seen above, the above accusations refer to positive acts on the part of the petitioner, which are also illegal acts. The petitioner is alleged to have committed acts for which he could be proceeded against. As seen above, the above accusations refer to positive acts on the part of the petitioner, which are also illegal acts. The petitioner is alleged to have committed acts for which he could be proceeded against. In my opinion these acts come within the purview of the word "misconduct" and not the word "conduct." 10. If it amounted to misconduct then in that event it was necessary for the Executive Council to have satisfied itself after an Enquiry about the truth or correctness of these allegations. It is not disputed that the petitioner was never conveyed anything about these charges nor his explanation was sought. The petitioner was not afforded an opportunity to explain these charges. It is not known how far these charges influenced the mind of the members of the Executive Council. When a report contains materials, which cast stigma on a person then it is only just and proper that he should be afforded an opportunity to explain his conduct. If the report of the Vice-Chancellor had only contained his opinion about the work and conduct of the petitioner the matter would have been different. As seen above, the report contains not only a report about his work and conduct but also made serious allegations of misconduct amounting to misappropriation and embezzlement of public funds and property. It was stated on behalf of the respondents that the report of the Vice-Chancellor was a confidential document and was not open to public gaze. I am unable to agree. The order of termination refers to the report of the Vice-Chancellor and is based on it. The Statute requires the Executive Council to pass its resolution after considering the report of the Vice-Chancellor. How can it, therefore, be said that the report of the Vice-Chancellor was a confidential matter day. It is a part of the record of the University. After all, the question is whether the termination of the service of the petitioner was by way of punishment. This can be determined only after the Court is satisfied from a perusal of the resolution and the report of the Vice-Chancellor. The Court has to determine whether the report of the Vice-Chancellor contains any allegation of the misconduct against the teacher and whether the misconduct is a mere motive or is the very foundation of the order. This can be determined only after the Court is satisfied from a perusal of the resolution and the report of the Vice-Chancellor. The Court has to determine whether the report of the Vice-Chancellor contains any allegation of the misconduct against the teacher and whether the misconduct is a mere motive or is the very foundation of the order. A perusal of the resolution passed by the Executive Council shows that it is based on the report of the Vice-Chancellor. The report of the Vice-Chancellor contains allegations of misconduct against the petitioner. The misconduct referred to in the report of the Vice-Chancellor appears to be one of the foundations of the order of termination. 11. In the case of Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 : (1974 Lab IC 1380) their Lordships were considering the case of a probationer whose services had been terminated during the period of probation. It was held in that case: "No abstract proposition can be laid down that where the services of a probationer are terminated without saving anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency science or for similar reason without a proper Enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Constitution". It was further laid down in that case: "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 a conclusion that on account of inadequacy for the job or far temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. In the absence of any Rules governing a probationer in this respect the authority may come to a conclusion that on account of inadequacy for the job or far 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." It would be seen from the above that if a person is unsuitable for the job on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the services of a probationer can be terminated and it would amount to a termination simpliciter, but where the accusations involve moral turpitude it cannot be said to be a termination simpliciter. Whenever an accusation is made which involves moral turpitude and the person is discharged without holding an Enquiry into the charge it would amount to a termination by way of punishment. It is, therefore, incumbent to hold an Enquiry whenever an accusation involving moral turpitude is made. As seen above, the two charges out of the 10 in the report of the Vice-Chancellor involved moral turpitude. It is undisputed in this case that no Enquiry was either held or ordered to be held by the Executive Council when it passed the resolution terminating the service of the petitioner. In my opinion, therefore, the termination was not a termination simpliciter but a termination by way of punishment. 12. A reference to Appendix IX. which is the form of the agreement of service for University teachers in the Meerut University and in particular to paragraph 8 thereof shows that where Executive Council of the University decides to determine the engagement of a teacher on the ground of misconduct on the report of the Vice-Chancellor a particular procedure is outlined. The procedure is that the Executive Council shall investigate the matter reported to it by the Vice-Chancellor about the misconduct of the teacher. The Executive Council may appoint a committee for the purpose. The teacher shall be notified in writing all the charges against him and shall be given time to submit his explanation in writing. The Executive Council or the Committee then has to hear the teacher and take evidence and then has to consider the misconduct of the teacher and what punishment it deserves. The teacher shall be notified in writing all the charges against him and shall be given time to submit his explanation in writing. The Executive Council or the Committee then has to hear the teacher and take evidence and then has to consider the misconduct of the teacher and what punishment it deserves. An argument was sought to be raised on behalf of the respondents that the provisions of paragraph 8 of Appendix-IX had no application to the petitioner for no such agreement form was reduced into writing in the case of the petitioner. I am unable to agree. The provisions of the U. P Act XIII of 1965 and the 1973 Act make it clear that every teacher will have to sign an agreement in the prescribed form. Even if the form is not actually signed by the teacher concerned the provisions contained in the form would be applicable for it is statutorily required to be executed in the case of every teacher. It is also contended that paragraph 8 of Appendix-IX has no application to the case of a teacher on probation. This argument cannot also be accented. Paragraph 1 and the proviso thereto make it clear that it has application to the case of the teacher on probation also. It is, therefore clear that whenever a charge of misconduct is levied against a teacher the Executive Council has to investigate the matter or get the matter investigated by a committee. There is no going away from it. If a charge of misconduct is levied it is only but just that the matter is enquired and the truth found out. If the services of a teacher are sought to be terminated on the ground of misconduct then an Enquiry must be made and a finding must be given as regards misconduct. If, on the other hand, it is not to be relied upon then prudence demands that no such allegation be made, merely because a teacher is on probation a Vice-Chancellor in his report cannot make allegations of misconduct and invite a decision from the Executive Council without the matter being investigated. If, on the other hand, it is not to be relied upon then prudence demands that no such allegation be made, merely because a teacher is on probation a Vice-Chancellor in his report cannot make allegations of misconduct and invite a decision from the Executive Council without the matter being investigated. I am, therefore, of the opinion that whenever a charge of misconduct is made in a report of the Vice-Chancellor made to the Executive Council under Statute 5.36 of the Meerut University it is necessary for the Executive Council to enquire into the matter as is stipulated under Paragraph 8 of Appendix IX, in the form of agreement of service of the University teachers. 13. Learned counsel for the respondents referred to the case of T. C.M. Pillai v. Indian Institute of Technology, reported in 1971 Serv LR 679 : ( AIR 1971 SC 1811 ) where the services of a distinguished teacher of the Indian Institute of Technology, Madras were terminated by the Board of Governors of that Institute and the order was challenged on the ground that it was by way of punishment. Their Lordships held : "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 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 above case of Shri T.C.M. Pillai it was held that he had committed a breach of covenant of the Kerala Government, and that he had insisted on certain benefits to which he was not entitled. It was not a case where the charge was that he had misappropriated to his personal use of public property or funds. In the case of T.C.M. Pillai he had executed a bond to serve Kerala University and this was never disclosed to the Institute of Technology This matter would pertain to his conduct and would not amount to misconduct. It was not a case where the charge was that he had misappropriated to his personal use of public property or funds. In the case of T.C.M. Pillai he had executed a bond to serve Kerala University and this was never disclosed to the Institute of Technology This matter would pertain to his conduct and would not amount to misconduct. This case is, therefore, clearly distinguishable on facts. 14. Learned counsel for the respondents then contended that the provisions of Section 27 (2) of the U. P Act XIII of 1965 and Section 36 of the 1973 Act were relevant to save that if any dispute arose out of the contract of appointment it shall be referred to a Tribunal of Arbitration. It was contended that it was open to the petitioner to seek his redress from the Tribunal and an approach to this Court under the writ jurisdiction was misconceived. The terms of contract are contained in Appendix IX. If the matter of misconduct had been investigated by the Executive Council and his services had been terminated as a result thereof he should have sought his redress from the Tribunal under Section 36 of the 1973 Act. But where his services are being terminated by the Executive Council on the basis of the report the Vice-Chancellor containing amongst other things allegations of misconduct then in that event he cannot be directed to seek his redress from the Tribunal. On the one hand it was contended on behalf of the University that Appendix IX had no application to him and on the other it is being contended that he could seek his relief under Section 36 of the 1973 Act by making an application for the constitution of a Tribunal to go into the matter. Once it is held that the order of the Executive Council is based on the report of the Vice-Chancellor which contains allegations of misconduct, in other words which contains stigma against the : petitioner, it will be deemed that the order of termination was by way of punishment. In that event this Court is not powerless to issue an appropriate writ to quash the order. The question of referring the matter to the Tribunal can arise more appropriately in those cases where mala fides are urged. The plea of mala fides in the present case has not been pressed. In that event this Court is not powerless to issue an appropriate writ to quash the order. The question of referring the matter to the Tribunal can arise more appropriately in those cases where mala fides are urged. The plea of mala fides in the present case has not been pressed. Therefore, the only question that remained for consideration was whether the order passed by the Executive Council terminating the services of the petitioner was by way of punishment. For the reasons disclosed above. I have no hesitation in answering the question in the affirmative. It would, (therefore, be appropriate to quash the order of the Executive Council dated the 20th October, 1974 terminating the services of the petitioner. 15. In the result, therefore, the writ petition is allowed and the impugned order is quashed. The petitioner will be entitled to his costs.