V. H. BHAIRAVIA J. ( 1 ) THIS petition under Article 226 of the Constitution of India is directed against the order of termination of services of the petitioner as a Professor by the respondent No. 1 Indian Institute of Management (IIM for short) vide its letter/order dated 5. 1. 1993 (Annex. A ). ( 2 ) THE facts of the petition in brief are that the petitioner had joined respondent no. 1 IIM on 6. 9. 1973 as Assistant Professor in Economics and was confirmed on 1. 7. 1974 and thereafter the petitioner was promoted as Associate Professor in 1976 and as Professor in the year 1978. Further it is stated that the respondent institute was affiliated with Gujarat University and the petitioner was recognised guide for PHD students of Gujarat University. Thus the petitioner has rendered 19 1/2 years unblamished services to the respondent institute. During the service period it is stated the petitioner has written and published about 28 Books on Allied subject and out of these books 18 books have been published by the respondent Institute and the respondent institute itself is recovering royalities out of those books. Thus the petitioner has earned name and fame as an author and professor not only in respondent institute but also worldwide. However the services of the petitioner came to be terminated all of a sudden by the order dated 5. 1. 1993 (Annex. A) and a cheque towards 3 months salary in lieu of notice period of 3 months has been given along with impugned order of termination. Hence this petition. ( 3 ) IT has been submitted by Mr. P. V. Nanavaty learned counsel for the petitioner that the impugned order of termination is punitive in nature is bad in law as it is passed in violation of principles of natural justice and also in violation of provisions of sec. 51 A of the Gujarat Universities Act liable to be quashed and set aside under the extra-ordinary jurisdiction of this court under Art. 226 of the Constitution of India and the petitioner is entitled to be reinstated on his original post. In support of his arguments Mr. 51 A of the Gujarat Universities Act liable to be quashed and set aside under the extra-ordinary jurisdiction of this court under Art. 226 of the Constitution of India and the petitioner is entitled to be reinstated on his original post. In support of his arguments Mr. P. V. Nanavaty learned counsel for the petitioner has relied on the following decisions : [1] AIR 1984 SC 1631 [2] AIR 1986 SC 1573 [3] AIR 1992 SC 72 [4] AIR 1993 SC 392 [5] GLH 1993 407 [6] (1993) 1 SCC 629 [7] Judgment dt. 20. 5. 1993 of the Division Bench in Spl. C. A. No. 8555/88 AND [8] Judgment dt. 1. 5. 1979 of the Division Bench in Spl. C. A. No. 133/76 and Allied Matters. ( 4 ) MR. K. S. Nanavaty learned counsel for the respondents has taken preliminary objection against the maintainability of this petition. It has been vehemently submitted by Mr. K. S. Nanavaty that the respondent institute is not amenable to the writ jurisdiction under Art. 226 of the Constitution of India as it is not a State or Statutory Body within the meaning of Article 12 of the Constitution of India. It has been contended that the respondent institute is a registered society under the Registration of Societies Act and it is an autonomous private institute. The relations between the petitioner and the institute are contractual in nature and are like master and servant. Further it has been submitted that the impugned order is the order of termination simpliciter and the only remedy available to the petitioner is to file a suit for damages and no writ could be issued against the private institute. It has also been submitted by Mr. K. S. Nanavaty that because of loss of confidence in the petitioner the respondent institute has decided to terminate the services of the petitioner. Mr. K. S. Nanavaty further contended that the respondent institute has been ceased to be the recognised institute under sec. 35 of the Gujarat Universities Act since 31. 12 and therefore also it is not amenable to the provisions of the Gujarat Universities Act and Rules. Mr. K. S. Nanavaty therefore submitted that as the petition itself is not maintainable the same should be dismissed on the above preliminary objection alone. In support of his arguments Mr. 35 of the Gujarat Universities Act since 31. 12 and therefore also it is not amenable to the provisions of the Gujarat Universities Act and Rules. Mr. K. S. Nanavaty therefore submitted that as the petition itself is not maintainable the same should be dismissed on the above preliminary objection alone. In support of his arguments Mr. K. S. Nanavaty has relied on the following decisions : [1] AIR 1981 SC 487 [2] AIR 1989 SC 1607 [3] AIR 1961 SC 177 [4] AIR 1968 SC 1089 [5] AIR 1970 SC 363 [6] AIR 1992 SC 76 AND [7] 1992 (1) GLR 687 . Having regard to the facts and circumstances of the petition and rival contentions of the parties first of all we must look in to the nature of the impugned order of termination dated 5. 1 at Annex. A which reads as under : january 5 1993 professor U. K. Srivastava indian Institute of Management ahmedabad 380015 dear Sir It is not in the interest of the Institute for you to continue in service your services are therefore terminated with immediate effect on payment of Rs. 30 660 (Ruppes thirty thousand six hundred and sixty only) by way of three months salary through bankers pay order which is enclosed herewith. Full particulars of the said pay order are set out herein below: monthly basic pay rs. 6,300-00 dearness Allowance rs. 3,720-00 cca rs. 100-00 personal Pay rs. 100-00 rs. 10,220 x 3 = 30,600 you may kindly settled your accounts with Finance and Accounts Office in the course of time. Please return library books and other articles belonging to the Institute. Kindly hand over the vacant possession of your residence faculty house No. 304 to the House Keeping officer on or before 31st January 1993 Yours faithfully sd/ P. N. Khandwalla encl. ; Bankers cheque No. 877701 dated 5. 1. 1993 issued by State Bank of India IIM Branch for Rs. 30 660 Having regard to the words used in the impugned order of termination it is not possible for this court to agree with the submission of Mr. K. S. Nanavaty that the impugned order of termination is the order of termination simpliciter. It has been stated in the impugned order it is not in the interest of the Institute for you to continue in service your services are terminated with immediate effect -. K. S. Nanavaty that the impugned order of termination is the order of termination simpliciter. It has been stated in the impugned order it is not in the interest of the Institute for you to continue in service your services are terminated with immediate effect -. From bare reading of these words it apparently suggests that the respondents have lost confidence in the petitioner and it is also the case of the respondents that the termination of the services of the petitioner is because of loss of confidence in the petitioner. The circumstances revealed from the record resulting into loss of confidence and leading to extreme decision of termination of services are very interesting to note in the fairness of justice. The petitioner along with two other co-authors namely Mr. GV Shenoy and SC Sharma have written a book- Quantitative Techniques for Managerial Decision Making jointly and its 1st Edition was published in 1983 and 2nd Edition was published in July 1987. The said book was published by Wiley Eastern Limited. It is alleged that the respondent no. 2 received some anonymous letter dated 26. 2. 1993 addressed to one Mr. Devinder Singh SAC Co-ordinator of IIM pointing out in the said letter that the authors of the said book (Prof. UK Srivastava Prof. GV Shenoy and Prof. SC Sharma) at several places had simply lifted the stuff from the other three books and questioned the respondent institute that morality meant for students only or for Professors too ? Contents of the said letter at Annex. B are required to be incorporated herein below : to 29 June 1992 mr. Devender Singh sac Cordinator iima dear Devender; amongst ourselves we have often talked about the problem of cogging in the exams quizzes and assignments. We have all along agreed that the practice is unfortunate and that we owe it to ourselves and the system not do it. of its apart the PGP system had also not taken kindly to Guys (and gals) caught cogging. Some have been thrown out in the past and yet others have been given E and other punishments. Even in the third term that E just gone past. Vikas was given an F in the third term WAC. of its apart the PGP system had also not taken kindly to Guys (and gals) caught cogging. Some have been thrown out in the past and yet others have been given E and other punishments. Even in the third term that E just gone past. Vikas was given an F in the third term WAC. Since the guy did not put the page numbers of some material which he had reporduced in his assignment though he said he had mentioned the source in the references. It was said that he had not stuck to the style told in the class. Bansal and Khatri were also given F for submitting similar assignments. None of these guys will get their gold medals and schols (I do not know if the guys are really the schol types ). My point is something else. We got to decide if these tough standards of morality is meant only for we guys or for the Profs too. Let me tell what happened. While doing my summer project I had to do some modelling and data analysis. I had carried my copies of Levin (Statistics for Management) and Baumol (Economic Theory and Operations Analysis) along. From the organisation I was in I borrowed copies of Wanger (Principles of Operations Research) and Quantitative Techniques for Managerial Decisions by UK Srivastava (a CMA Prof at IIMA) GV Shenoy and SC Sharma. As I was browning through the books. I came across a most interesting thing. At several places the Srivastava Shenoy Sharma book had simply lifted stuff from the other three books (Baumol Levin and Wagner) and no references anywhere in the book. That Baumol Levin and Wagner hadnt possibly one it the other day is fairly clear (since the Wagner I had was a 1974 Edition ). So now what are we going to do about it ? Shouldnt SAC ask the Director for some action ? Or is it that in future our cogging will be viewed a little more leniently ? SAC should find out if the standards of cogging are different for profs and I am enclosing two bunches of xerox copies. Buch A is the appropriate I think as the representative of the students body you must take up the matter with authorities. Thank you sd/a concerned Student* pgp II IIMA copies to: s. K. Jain Academic Rep. SAC should find out if the standards of cogging are different for profs and I am enclosing two bunches of xerox copies. Buch A is the appropriate I think as the representative of the students body you must take up the matter with authorities. Thank you sd/a concerned Student* pgp II IIMA copies to: s. K. Jain Academic Rep. SAC director IIM Ahmedabad ( 5 ) IT is stated that the copy of the said letter Annex. B was handed over to the petitioner by the respondent no. 2 for his comments on 2. 7. 1992. It reveals from the record that the contents of the said letter were widely distributed to the members of respondent IIM. It is stated that the petitioner had given his comments on the said anonymous letter to the respondent no 2 by his letter dated 6. 7. 1992 and pointed out in his letter that the book in question was written jointly by the three authors and copy-right is held by the publishers only. It was also pointed out that the book in question was recommended as a Text Book and not as a Research publication. It was also pointed out that the book in question was widely reviewed in India as well as in Abroad. It has been submitted by the petitioner that before he submits his comments to the respondent no. 2 on 6. 7. 1993 a committee in the said anonymous letter Annex. B was already constituted by the respondent no. 2. It is further submitted that on 11. 8. 1992 the petitioner was called by the respondent no. 2 for showing the report of the committee. The petitioner was shocked and surprised and he protested against the report of inquiry and complained that the petitioner was never heard by the members of the committee. Thereupon the respondent no. 2 immediately asked the members of the committee on the same day i. e. 11. 8. 1993 to meet the petitioner and accordingly the members of the committee met the petitioner on the same day. It is stated that the petitioner wanted to know the norms and terms of report and its findings but that was not made available to the petitioner. However the report of the inquiry committee was accepted by the respondents. The inquiry report held the petitioner guilty of plagiarism. It is stated that the petitioner wanted to know the norms and terms of report and its findings but that was not made available to the petitioner. However the report of the inquiry committee was accepted by the respondents. The inquiry report held the petitioner guilty of plagiarism. It is submitted that the petitioner was not heard by the members of the inquiry committee before it arrived at a conclusion that the petitioner has committed plagiarism. It is also submitted that other two co-authors namely Shri GV Shenoy and SC Sharma were not given an opportunity to explain or comment on the committees findings and observations. It as been submitted that the whole inquiry is vitiated as it was held in violation of principles of natural justice and also contemplated with respect to anonymous letter alleging plagiarism in the book in question as regards few lines only of 12 pages out of total 923 pages book published jointly by three authors. Further it has been stated that the committee has examined said book as a Research Publication while the book in question was recommended as Text Book for students. It has been stated that inquiry committee had not fixed any standards as to what should be termed as plagiarism. The committee did not consider the review of the book in question published in India and in USA. The committee relied on un-authored material and made observations on no evidence it is merely ipsi-dixit. After receiving the inquiry report the subsequent development in the matter is more interesting to note. The respondent no. 2 called the petitioner and pursuaded him to conceded plagiarism and pressurised to surrender before the respondents for the alleged plagiarism and to accept penalty. It has been stated that the petitioner was asked by the respondent no. 2 to pay Rs. 2 lacs to the respondent Institute if he wants to wind up the chapter. On showing inability and unwillingness by the petitioner the said amount was reduced to Rs. 75 0 It is submitted that the petitioner even did not agree to pay said amount of Rs. 75 0 and ultimately as a last resort the respondents decided to terminate the services of the petitioner. This fact has been admitted by the respondents in the affidavit-in-reply filed on their behalf. 75 0 It is submitted that the petitioner even did not agree to pay said amount of Rs. 75 0 and ultimately as a last resort the respondents decided to terminate the services of the petitioner. This fact has been admitted by the respondents in the affidavit-in-reply filed on their behalf. It is submitted that the respondents have to admit this fact because the conversation between the petitioner and respondent no. 2 was tape-recorded by the petitioner. In para-5 at internal page 2 of the said affidavit-in-reply it has been stated as under ;- 5 I state and submit that the allegations made by the petitioner. . . . . . . . . . . During the discussions three options emerged namely the petitioner resigning and going somewhere else the petitioner acknowledging responsibility for plagiarism expressing remorse and accepting a deterrent penalty and as the last resort the termination of the petitioners services. The petitioner rejected the first option because of his fear and acute embarrassment in his next job if the contents of the Committees report on the plagiarism in his co-authored book leaked out. He was willing to accept option two but pleaded that any formal penalty like demotion freeze on increments and consultancy etc. would go into his record and destroy his standing at IIMA. He estimated the approximate money value of these penalties haggled about the quantum and eventually agreed to accept in writing responsibility for plagiarism in his co- authored book apologise and pay a lump sum of Rs. 75 0 to IIMA in lieu of demotion freeze on increments etc. He further pleaded that this amount should not be treated formally as penalty. I discussed this proposal with some senior faculty colleagues including the Dean and conveyed to the petitioner the acceptability of this proposal. Having regard to the above stated facts and circumstances could it be said that the impughed order of termination is the order of termination simpliciter ? Further are the services of a Professor with outstanding career worldwide and recognised author on the subject who had rendered unblamished services to the respondent institute for more than 19-1/2 years and also contributed in writing books on the allied subjects and published by the respondent institute itself earning royalties out of said books liable to be terminated by a stroke of a pen? Having regard to the above admitted facts that the allegations regarding plagiarism were ordered to be inquired into and on finding of the inquiry committee it was hold that the petitioner had committed plagiarism and as admitted by the respondents in the affidavit-in-reply para-5 as a last resort services of the petitioner were terminated. What is plagiarism? Does it constitute misconduct warranting extreme penalty of termination of service ? It has been submitted by Mr. PV Nanavaty learned counsel for the petitioner that the respondent Institute has framed Rules for Discipline and Conduct which have been approved by this Court and the alleged commission of Plagiarism does not fall within the category of misconduct. In Blacks Law Dictionary Meaning of Plagiarism is given as under : Plagiarism / pleyjarizam /the act of appropriating the literary composition of another or parts or passages of his writings or the ideas or language of the same and passing them off as the product of ones own mind. To be liable for plagiarism it is not necessary to exactly duplicate anothers literary work it being sufficient if unfair use of such work is made by lifting of substantial portion thereof but even an exact counterpart of anothers work does not constitute plagiarism if such counterpart was arrived at independently. ORourke v. RKO Radio Pictures D. C. Mass F. Supp. 480 482 483 In Randam House Dictionary meaning of plagiarism is given as under: Pla. gia. rism: 1. the appropriation or immitation of the language ideas and thoughts of another author and representation of them as ones original work. 2 something appropriated and presented in this manner. In The Law Lexicon Dictionary meaning of plagiarism is given as under;- plagiarism: Publishing borrowed thoughts as original; stealing literary matter from the work of another author. ( 6 ) IT has been submitted by Mr. PV Nanavaty learned counsel for the petitioner that plagiarism does not fall in the category of misconduct as enumerated in the Discipline and Conduct Rules framed by the Institute. This court need not go into the veracity of the inqurity report but looking to the termination order and the circumstances which led the respondents to take harsh and extreme action of terminating services of the petitioner on having lost confidence in the petitioner after admittedly the petitioner did not agree to pay Rs. This court need not go into the veracity of the inqurity report but looking to the termination order and the circumstances which led the respondents to take harsh and extreme action of terminating services of the petitioner on having lost confidence in the petitioner after admittedly the petitioner did not agree to pay Rs. 75 0 as demanded by the respondents for winding up the chapter it could not be said that the said order is termination simpliciter. It is apparently a punitive order since it carries permanent stigma on the academic carrier of the petitioner. Rule of AUDI-ALTERAM PARTAM ensures that no one should be condemned unheard. It is a sine qua none in the matter of disciplinary proceedings. Admittedly as observed above the petitioner was not served with any show-cause notice calling upon the petitioner to give his explanation regarding plagiarism. The inquiry committee was appointed behind the back of the petitioner. The inquiry committee did not call the petitioner before the inquiry report was completed. The petitioner was not given any opportunity of hearing or opportunity to cross examine so-called expert authors on whose opinion the inquiry committee had relied for arriving at a conclusion that the petitioner had committed plagiarism. obviously the petitioner was not given any opportunity of being heard which vitiated the entire inquiry. Therefore the findings arrived at by the inquiry committee and the consequential impugned order of termination is bad-in-law ultra vires Art. 14 and the provisions of Sec 51 A of the Gujarat Universities Act have been violated. ( 7 ) IT has been submitted by Mr. PV Nanavaty learned counsel for the petitioner that the respondent institute was recognised institute under sec. 35 A of the Gujarat Universities Act and the petitioner was recognised guide for Ph. D. student of Gujarat University. It has been submitted that the respondent institute is under obligation to obtain approval of termination order from Vice Chancellor of Gujarat University under sec. 51 A of the Gujarat Universities Act. It has been submitted that on the date of impugned termination order dated 5. 1. 1993 the respondent was recognised institute under sec. 35 of the Gujarat Universities Act and therefore respondent institute is under obligation to obtain approval as aforesaid. In support of his arguments Mr. PV Nanavaty relied on the judgment of the Division Bench of this Court dated 20. 5 in Spl. 1. 1993 the respondent was recognised institute under sec. 35 of the Gujarat Universities Act and therefore respondent institute is under obligation to obtain approval as aforesaid. In support of his arguments Mr. PV Nanavaty relied on the judgment of the Division Bench of this Court dated 20. 5 in Spl. C. A. No. 6555/88. The counter arguments of Mr. KS Nanavaty for the respondent Institute is that the respondent institute has surrendered its recognisation to the University on 31. 12. 1992 and the University sanctioned withdrawal by the resolution dated 6. 6 with retrospective effect i. e. from 31. 12 and therefore the respondent institute was not under obligation to comply with the conditions laid down in sec. 5a of the G. U. Act. Mr. KS Nanavaty further contended that the respondent institute is an autonomous body having its own Rules and Regulations for administration of the institute and it is not compulsory for the respondent institute to get recognisation from the Gujarat University. Respondent institute is at liberty to surrender its recognisation at its will under sec. 35a of the G. U. Act and that the respondent institute has surrendered its recognisation which has been accepted by the Gujarat University. It is difficult to agree with the arguments of Mr. KS Nanavaty learned counsel for the respondent institute. For appreciating arguments of the learned counsel for both the parties it would be proper to look in to the provisions of the Gujarat Universities Act. Sec. 35a of the G. U. Act reads as under:- 35a Approval of institutions - (1) The Executive Council shall have the power after consultation with the Academic Council to approve an institution as an approved institution for specialized studies laboratory work internship research or other academic work approved by the Academic Council under the guidance of a qualified teacher. Sec. 35a of the G. U. Act reads as under:- 35a Approval of institutions - (1) The Executive Council shall have the power after consultation with the Academic Council to approve an institution as an approved institution for specialized studies laboratory work internship research or other academic work approved by the Academic Council under the guidance of a qualified teacher. (2) An institution which desires to have such approval shall send a letter of application to the Registrar and shall give full information in the letter of application in respect of the following matters namely- (A) the name qualifications experience and research work of the teacher under whom approval work is to be done; (B) the nature of work or the subjects for which work is proposed to be done; (C) accommodation equipment library facilities and the number of students for whom provision has been made or is proposed to be made (D) fees levied or proposed to be levied and the financial provision made for capital expenditure or buildings and equipment and for the continued maintenance and efficient working of the institution. (3) Before taking the application into consideration the Executive Council may call for any further information which it may deem necessary. (4) If the Executive Council decides to take the application into consideration it may direct a local inquiry to be made by a competent person or persons authorised by it in this behalf. After considering the report made as a result of such local inquiry and making such further inquiry as may appear to it to be necessary the Executive Council shall after obtaining the opinion of the Academic Council grant or refuse the application or any part thereof. Where the application or any part thereof is granted the Executive Council shall specify the subjects and courses of instruction in respect of which the institution is approved. Where the application or any part thereof is refused the grounds of such refusal shall be stated. It is an admitted fact that the respondent institute was a recognised institute under sec. 35 of the G. U. Act which reads as under : 35 Recognisation of institutions of research and specialized studies - (1) The Executive Council shall have the power after consultation with the Academic Council to recognize with the Academic Council to recognize as a recognized institution of research or specialized studies other than a college. 35 of the G. U. Act which reads as under : 35 Recognisation of institutions of research and specialized studies - (1) The Executive Council shall have the power after consultation with the Academic Council to recognize with the Academic Council to recognize as a recognized institution of research or specialized studies other than a college. (2) An institution apply for recognisation under this section shall send a letter of application to the Registrar and shall give full information in the letter or application in respect of the following matters namely [a] constitution and personnel of the managing body;[b] subject and courses in regard to which recognisation is sought. [c] accommodation equipment library facilities and the number of students for whom provision has been made or is proposed to be made. [d] the strength of the staff their qualifications and salaries and the research work done by them. [e] fees levied or proposed to be levied and the financial provision made for capital expenditure on buildings equipments and for the continued maintenance and efficient working of the institution. (3) Before taking the application into consideration the Executive Council may call for any further information which it may deem necessary. (4) If the Executive Council decides to take application into consideration it may direct a local inquiry to be made by a competent person or persons authorised by it in this behalf. After considering the report made as a result of such local inquiry and making such further inquiry as may appear to it to be necessary grant or refuse the application or any part thereof. Where the application or any part thereof is granted the Executive Council shall specify the subject and courses of instruction in respect of which the institution is recognisedwhere the application or any part thereof is refused the grounds of such refusal shall be staled. ( 8 ) IT reveals from the record that the respondent institute was recognised institute under sec. 35a of the Act but the respondent institute surrendered its recognition to the University on 31. 12. 1992. i. e. before the issuance of impugned termination order dated 5. 1. 1993. It seems this is a legal malafide intention of the respondent institute to save its skin from the legal clutches. The submission as regards re respective effect of surrender of recognition vide dated 31. 12. 12. 1992. i. e. before the issuance of impugned termination order dated 5. 1. 1993. It seems this is a legal malafide intention of the respondent institute to save its skin from the legal clutches. The submission as regards re respective effect of surrender of recognition vide dated 31. 12. 1992 and sanctioned by the Executive Council of the University on 10. 7. 1993 has no basis. The resolution of the Executive Council of the University is not legislative resolution. Only legislative resolutions have powers to give retrospective effect to any amendment. Mr. PV Nanavaty learned counsel for the petitioner relied on the judgment of the Division Bench of this Court in Spl. C. A. No. 133/76 and Allied Matters decided on 1. 5. 1979 wherein it has been observed in paras 65 66 and 70 as under :- 65 All these provisions show that a College on affiliation practically loses its identity as a separate unit in matters connected with education and conduct and discipline of its students. The scheme is an integrated scheme in which an affiliated college becomes so to say a limb of the University. The scheme is not one of a federation of affiliated colleges in the field of education. In such a scheme there is not implicit right of surrender of affiliation not does the act any such right expressly or by necessary implication. Mr. Vakils contention that there is prohibition by the act against the surrender of affiliation proceeds on the assumption that every affiliated college can surrender its affiliation at will. Such a concept does not fit in with the scheme of the Act as detailed earlier. On the contrary Ordinance 120 E itself makes express provisions under which an affiliated college can bring to an end its existence as an affiliated college or bring to an end existence of one of its faculties. Mr. Vakil at one stage argued that a college may close down under Ordinance 120 E and can still retain its affiliation we do not understand for what purpose affiliation is not like a business mans licence so that he can discontinue the business and still continue to hold the licence to restart the business on as pleasure. In our opinion there is an inherent right to surrender of affiliation by a college accounted by Mr. Vakil. In our opinion there is an inherent right to surrender of affiliation by a college accounted by Mr. Vakil. The manner in which such a college may put an end to affiliation is as provided by Ordinance 120 Once permission is granted to an affiliated college to close down under Ordinance 120e its affiliation course and end. What remains are its physical and material belongings without the would its affiliation to the parent body which branches life into it and makes inactive in the field of education. 66 Mr. Vakil also relied on the phraseology of Clause (16) of section 4 which empowers the University to associate or admit educational institutions with or to the privileges of the University by way of affiliation. . . . and contended that affiliation has the concept of association with the university and by this association the affiliated college acquires some privileges. This argument will not be helpful to Mr. Vakil in view of the Scheme of the Act as examined by us above. It was also argued that by surrendering affiliation management frees from the shackless of the University and surrender for affiliation is more discontinuance of its association with the university. This argument is equally untenable. The idea of an association with the members retaining their right to close down their institutions in the matter or imparting of education is ruled out by the scheme of the Act. It was also urged that an affiliated college cannot be compelled to impart education if it wants to close down. This argument can be answered by saying that closure is not totally prohibited. Under Ordinance 120e closure can be permitted. 70 In view of our conclusion on question no. 4 the answer to question no. 5 whether the affiliated college continues to be statutory body or to have statutory obligations laid down in after the defacto closure is quite clear. For the purpose of enforcing body whose affiliation has not been brought to an end legally to hold otherwise would put in serious jeopardy the rights in favour of teachers another employees corresponding to the statutory obligations. As observed earlier by a defacto closure in contravention of Ordinance 120e a college cannot put an end to its statutory obligations and if these statutory obligations incurred before such closure are not affected we see no difficulty in enforcing them against a defacto closed college. As observed earlier by a defacto closure in contravention of Ordinance 120e a college cannot put an end to its statutory obligations and if these statutory obligations incurred before such closure are not affected we see no difficulty in enforcing them against a defacto closed college. ( 9 ) A question regarding validity and applicability of the retrospective effect to the resolution of the Executive Council of the University also came to be considered by the Supreme Court wherein it is observed that prima facie it may appear somewhat strange that an order which was good and valid when it was made should be treated as patently invalid and wrong by-virtue of the retrospective operation of the Resolution. But such a result is necessarily involved in the legal fiction about the retrospective operation of the Resolution ( Relied on case of Venkatachalam vs. Bombay Dyeing and Mfg. Co. (1959) SCR 711 ). It is further observed A retrospective operation is therefore not to be given to a statute so as to impair existing right or obligation otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute is in fact retrospective. The presumption against retrospective operation is strong in cases in which the statute if operated retrospectively would perjudicially affect vested rights or the illegality of the past transactions or impair contracts or impose new duty or attach new disability in respect of past transactions or considerations already passed. However a statute is not probably called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. We must look at the general scope and purview of the statute and at the remedy sought to be applied and consider what was the former State of Law and what the legislation contemplated. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective and is generally unjust and may be oppressive. But laws made justly and for the benefit of individuals and the community as a whole as in this case may be related to a time antecedent to their commencement. The presumption against retrospectivity may in such cases be rebutted by necessary implications from the language employed in the statute. But laws made justly and for the benefit of individuals and the community as a whole as in this case may be related to a time antecedent to their commencement. The presumption against retrospectivity may in such cases be rebutted by necessary implications from the language employed in the statute. It cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. (Mithilesh Kumar vs. Prem Behari Khare (1989) 2 SCC 106 ). Having regard to the above observations admittedly the respondents had not complied with the conditions of Sec. 51a of the G. U. Act which reads as under :- 51 (1) No member of the teaching other academic and non- teaching staff of an affiliated college and recgonised or approved institution shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and until [a] he has been given a reasonable opportunity of making representation on any such penalty proposed to be affiliated on him and [b] the penalty to be inflicted on him is approved by the Vice- Chancellor or any other Officer of the University authorised by the Vice-Chancellor in this behalf (2) No termination of service of such member not amounting to his dismissal or removal falling under sub-sec. (1) shall be valid unless - [a] he has been given a reasonable opportunity of showing cause against the proposed termination; and [b] such termination is approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in this behalf: Provided that nothing in this sub-section shall apply to any person who is appointed for a temporary period only. In view of above observations and particularly the observations made by this Court in the judgment and order dated 20. 5. 1993 in Spl. C. A. No. 6555/88 admittedly the respondent Institute has not obtained approval from Vice Chancellor and therefore the petitioner is entitled to the protection of Sec. 51a of the G. U. Act and on this ground also the impugned order of termination dated 5. 1. 1993 Annex. A is bound to fail as it is illegal and is liable to be struck down. 1. 1993 Annex. A is bound to fail as it is illegal and is liable to be struck down. ( 10 ) LASTLY I deal with the first contention of Mr. KS Nanavaty learned counsel for the petitioner raising preliminary objection regarding the maintainability of the petition. It has been contended that the respondent institute is not amenable to writ jurisdiction of this court and that petition itself is not maintainable. Mr. KS Nanavaty vehemently submitted that the respondent institute is not a State or State authority or State instrumentality within the meaning of Article 12 of the Constitution of India and therefore it is not amenable to the writ jurisdiction of this Court under Art. 226 of the Constitution of India. In support of his arguments Mr. KS Nanavaty relied on the decisions reported in:- [1] AIR 1981 SC 487 [2] AIR 1976 SC 1628 [3] AIR 1988 SC 2269 [4] AIR 1992 SC 76 [5] AIR 1989 SC 1607 [6] AIR 1970 SC 363 [7] 1992 (1) GLR 687 It has been submitted that the respondent institute is not a creation of any statute nor it is a public body. The status of the respondent institute is merely a Society registered under the provisions of Registration of Societies Act. The respondent institute receives only 40% govt. grant and major portion of the financial burden ie. 60% is born out by the institute by raising funds. It is submitted that it is an autonomous body; function of the institute is not in the nature of public duty and therefore it does not fall within the definition of State within the meaning of Art. 12 of the Constitution. It is further submitted that the relations between the institute and the petitioner is like master and servant and are of contractual nature and therefore the services of the petitioner can be terminated at any time at the sweet will of his master. The learned counsel for the respondent institute therefore submitted that no writ could be issued against the respondent institute as it being a private body. ( 11 ) AS against this the counter arguments of Mr. The learned counsel for the respondent institute therefore submitted that no writ could be issued against the respondent institute as it being a private body. ( 11 ) AS against this the counter arguments of Mr. PV Nanavaty learned counsel for the petitioner is that the respondent institute possesses all the characteristics of State or State instrumentality within the meaning of Art. 12 of the Constitution of India as laid down by the Supreme Court in the case of Chander Mohan Khanna vs. NCERT reported in AIR 1992 SC 76 wherein the Supreme Court also referred the case of Ajay Hasia etc. vs. Khalid Mujib Sehravardi and Ors. etc. reported in AIR 1981 SC 487 . It has been observed by the Supreme Court in Chandar Mohans case (Supra) in paras 2 and 3 as under: There are only general principles but not exhaustive test to determine whether a body is an instrumentality or agency of the Government. Even in general principles there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the Government and those which are not. The powers functions finances and control of the Government are some of the indicating factors to answer the question whether a body is State or not. Each case should be handled with care and caution. Where the financial assistance from the State is so much as to meet almost entire expenditure of the institution or the share capital of the Corporation is completely held by the government it would afford some indication of the body being impregnated with governmental character. It may be a relevant factor if the institution or the corporation enjoys monopoly status which is State conferred or State protected. Existence of deep and pervasive State control may afford an indication. If the functions of the institution are of public importance and related to governmental functions it would also be a relevant factor. These are merely indicative indicia and are by no means conclusive or clinching in any case. Art. 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression State. A wide enlargement of the meaning must be tempered by a wise limitation. These are merely indicative indicia and are by no means conclusive or clinching in any case. Art. 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression State. A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of Welfare State independent institution corporation and agency are generally subject to State control. The State control does not render such bodies as State under Art. ( 12 ) THE State control however vast and pervasive is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body and rendering of an important public service being the obligatory functions of the State may largely point out that the body is State. If the Government operates behind a corporate veil carrying out governmental activity and governmental functions of vital public importance there may be little difficulty in identifying the body as State within the meaning of Art. 12 of the Constitution. ( 13 ) HOWEVER it would not be fair for me to express any opinion as regards whether the respondent institute is State or not as this issue is pending before the Division Bench of this Court in Letters Patent Appeal of the respondent institute itself. Therefore the crucial question is whether the respondent institute is amenable to writ jurisdiction or not and a writ of mandamus or certiorari could be issued against the respondent institute. The scope of Article 226 is very wide general and expensive and under it writs could be issued to person or authority Under Art. 12 considered so far a body has to have some nexus with the State to be characterised as an authority because authority is only an extension of the State. But under Art. 226 there is no reference to state only to person or authority and these terms are broader than government for Art. 226 says: person or authority including. . . . any Government. Also Art. 12 is relevant only when a question of enforcement of a Fundamental Right arises but Art. 226 may be invoked for any purpose. But under Art. 226 there is no reference to state only to person or authority and these terms are broader than government for Art. 226 says: person or authority including. . . . any Government. Also Art. 12 is relevant only when a question of enforcement of a Fundamental Right arises but Art. 226 may be invoked for any purpose. Further certiorari and mandamus can be issued to a quasi-judicial authority when it commits an error of law (and not jurisdiction) under Art. 226 but not Art. 32. Thus it is quite plausible to argue that under Art. 226 a writ can be issued even to a body which may not be regarded as an instrumentality of the government which is a necessary precondition for the issue of a writ under Art. 12. For the issue of a writ under Art. 226 for a purpose other than enforcement of a Fundamental right it is not necessary to decide whether the concerned body comes within Art. 12. (Relied on Gen. Man. U. I. F. and G. Ins. Co. vs. A A. Nathan (1981)Lab. and IC 1076) In the instant case the respondent institute nodoubt is discharging public duty imparting specialized education in business administration and management sponsored by the Govt. and under the sole control of the Govt. over its administration and its property. The memorandum of association its title Indian Institute of Management would not be illusive to think that the respondent institute is not State or State instrumentality. The Supreme Court in the case of Unni Krishnan J. P. and Others vs. State of Andhra Pradesh and Others reported in (1993)1 SCC 545 distinctly discussed the characteristics covering the institute within the meaning of Art. 12 of the Constitution. The Supreme Court has observed in para 195 as under : The private educational institutions may be aided as well as un aided. Aid given by the Government may be cent percent or partial. So far as aided institutions are concerned it is evident they have to abide by all the rules and regulations as may be framed by the Government and/or recognising/affiliating authorities in the matter of recruitment of teachers and staff their conditions of service syllabus standard of teaching and so on. So far as aided institutions are concerned it is evident they have to abide by all the rules and regulations as may be framed by the Government and/or recognising/affiliating authorities in the matter of recruitment of teachers and staff their conditions of service syllabus standard of teaching and so on. In particular in the matter of admission of students they have to follow the rule of merit and merit alone subject to any reservations made under Article 15. They shall not be entitled to charge any fees higher than what is charged in Governmental institutions for similar courses. These are and shall be understood to be the conditions of grant of aid. The reason is simple public funds when given as grant and not as loan carry the public character wherever they go; public funds cannot be donated for private purposes. The element of public character necessary means a fair conduct in all respects consistent with the constitutional mandate of Articles 14 and 15. All the Governments and other authorities in charge of granting aid to educational institutions shall expressly provide for such conditions (among others) if not already provided and shall ensure compliance with the same. Again aid may take several forms. For example a medical college does necessarily require a hospital. We are told that for a 100 seat medical college there must be a fully equipped 700 bed hospital. Then alone the medical college can be allowed to function. A Private Medical College may not have or may not establish a hospital of its own. It may request the Government and the Government may permit it to avail of the services of a Government hospital for the purpose of college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposed may be with some relaxation in the matter of chargeable as observed. The Governments (Central and State) and all other authorities granting aid shall impose conditions forthwith9 if not already imposed. These conditions shall apply to existing as well as proposed private educational institutions. In light of above observations it would be appropriate to compare the characteristics of respondent institution as enumerated in Annexure: IA which are as under :[i] That the Indian Institute of Management Ahmedabad was established in 1962 by the Government of India in collaboration with the Government of Gujarat and the Indian Industry. In light of above observations it would be appropriate to compare the characteristics of respondent institution as enumerated in Annexure: IA which are as under :[i] That the Indian Institute of Management Ahmedabad was established in 1962 by the Government of India in collaboration with the Government of Gujarat and the Indian Industry. It is submitted that there are only three such institutes in India established by the Government of India (1) At Calcutta another (2) At Bangalore and (3) At Ahmedabad being the opponent institute and the Memorandum of Association framed by all the three institutes are common as all the three aforesaid institutes have common objects aims and approach as visualised by the Government of India[ii] That the Cadre and the scales of pay pertains to different administrative technical and ministerial posts are to be approve by the Central Government So also the appointment to the post of Director is made on such terms and conditions as may be decided by the Central Government in consultation with the State Government[iii] That the object of the opponent institute is to co-operate with educational and other institutions in any part of the world having object wholly or partly similar to those of the institute by exchange of teachers scholars and generally in such manners as may be conductive to their common objects Thus the objects of the IIMA are not limited only the Geographical boundary of the State of Gujarat but their import and significance is far wide as mentioned above[iv] That all the rules and bye laws and the conduct of the affairs of the institute have to be made added varied and rescinded only with the approval of the Central Government and the State Government. Thus the IIMA cannot of its own accord make rules and bye laws for the conduct of the affairs of the institute In this connection the opponent institute refers to the Government of India letter No E. 3/5/77 PI dated 25th January 1978 addressed to the Director of IIMA Bangalore in which the stand of the Central Government is quite clear In the aforesaid letter the Central Government has made clear that the Board of Governors of the institution is competent to make rules and bye laws pertaining only to routine matters of the institute such as working hours and shift change but the institute cannot make any change affecting the service conditions of the staff and having financial implications without the approval of the Central Government It may be noted that the opponent institute has intended to revise several provisions in its Provident Fund Gratuity Rules and had sent these to the Central Government for approval but the specific point regarding application of Gratuity Act 1972 to IIMA was not approved wide the Government of India letter No. F. 2. 27/77/ti dated 26th November 1979[v] That the IIMA is entitled to acquire and hold properties provided that prior approval of the Central Government and State Government is obtained[vi] That the IIMA is entitled to deal with any property belonging to or wasted in it but only with the prior approval of the Central Government. [vii] That the IIMA is required to deposit all the monies credited to the fund of the institute in such banks or invest them in such manner as it deems fit but this is only with the approval of the Central Government and State Government. [viii] That the accounts and other relevant records pertaining to IIMA and the annual statement of account including the balance sheet are to be prepared and maintainned by the institute in such forms as are prescribed by the Central Government in consultation with the Accountant General Gujarat State[ix] That the opponent institute is obliged to forward to the Central Government the accounts of the institute as certified by the Auditor General of India or any other authority as may be decided by the Central Government in consultation with the State Government. [x] That the Central Government is entitled to review the work and progress of the institute and to hold an inquiry into the affairs thereof and to report thereon in such manner as the Central Government may stipulate. Upon receiving such report the Central Government may take such action and issue such direction as it may think fit. [xi] That the Central Government is entitled to take over the administration and assets of the institute in consultation with the State Government if if thinks that the affairs of the institute are not properly carried out. [xii] So also on winding up or the dissolution of the institute the Central Government is empowered to direct the institute as to how the assets and properties of the institute are to be dealt with. [xiii] That the Central Government has its voice and effective representation of the governing body of the institute to which the management and its affairs are entrusted. This is so because the Chairman of the institute is appointed by the Central Government in consultation with the State Government. There are also four nominees of the Central Government to represent its Ministries like Education Finance etc. There are also nominees of Government of Gujarat. There is also a representative of All India Council of Technical Education. Four other persons are nominated by the Central Government in consultation with the State Government to represent Commerce Industry Labour and other interest. There is also a representation of the All India Management Association as well as the representation of the National Productivity Council of India. [xiv] That effective representation and control of the Central Government even on the Board of Governors is provided in Rule 5 of the institute. The general superintendence direction and control of the affairs of the institute are vested in the Board of Governors through which the Central Government ensures its effective control over the affairs of the society. [xv] That the budget estimates of the IIMA and the expenditure to be incurred are to be finally approved by the Central Government. [xvi] That the annual accounts pertaining to the institute are to be audited by the Auditor General of India or any other authority as may be decided by the Central Government in consultation with the State Government. [xv] That the budget estimates of the IIMA and the expenditure to be incurred are to be finally approved by the Central Government. [xvi] That the annual accounts pertaining to the institute are to be audited by the Auditor General of India or any other authority as may be decided by the Central Government in consultation with the State Government. [xvii] That within six months after the close of every financial year the institute is obliged to submit to the Central Government the report on the working of the institute in the previous year together with audited statement of account showing the income and expenditure for the previous year. [xviii] That the institute is obliged to submit to the Central Government the budget estimates for every financial year by such date as may be fixed by the Central Government in consultation with the State Government. However as stated above without going into the aspect of whether the respondent Institute is State or State Instrumentality the respondent institute being public body imparting education recognized with Gujarat University and in absence or any alternative remedy against the arbitrary action which is clearly in breach of principles of natural justice in my view writ would lie against such an institute. The relations between the petitioner and the respondent institute is not contractual in nature or like master and servant. It is also to be noted that as observed above admittedly the respondent institute has not obtained sanction of the Vice Chancellor before terminating the services of the petitioner in clear violation of sec. 51a of the G. U. Act since retrospective effect to surrender of recognisation could not have been given by the Gujarat University. ( 14 ) THE ultimate outcome of the reasons as aforesaid is that the impugned order of termination dated 5. 1. 1993 at Annex. A is bad-in-law as it is in the nature of penalty and passed against the principles of natural justice as also it is passed in violation of sec. 51a of the Gujarat Universities Act and therefore the said order requires to be quashed and set aside and the petitioner is required to be reinstated with all consequential benefits. ( 15 ) IN the result this petition is allowed. The impugned order of termination dated 5. 1. 1993 at Annex. A is hereby quashed and set aside. 51a of the Gujarat Universities Act and therefore the said order requires to be quashed and set aside and the petitioner is required to be reinstated with all consequential benefits. ( 15 ) IN the result this petition is allowed. The impugned order of termination dated 5. 1. 1993 at Annex. A is hereby quashed and set aside. The respondent IIMA is directed to reinstate the petitioner in service on his original post within a period of fortnight from the date of receipt of writ of this Court with full back wages and continuity of service. The respondents are also directed to pay arrears of salary and other consequential benefits to the petitioner within four weeks from the date of receipt of writ of this Court. Looking to the peculiar facts and circumstances of the case and mental torture and agony undergone by the petitioner because of the order of termination this is a fit case to award costs to the petitioner and hence the respondents are directed to pay Rs. 2000/- by way of costs of this petition to the petitioner. Rule made absolute. ( 16 ) AT this stage Mr. K. S. Nanavaty learned counsel for the respondent Institute requested this court to stay the operation and implementation of this order for a period of 15 days from the date of receipt of certified copy of this order so as to enable him to carry this matter further. Having regard to the facts and circumstances of this case this order may not be implemented for a period of two weeks from the date of the receipt of writ of this court. Petition Allowed. .