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2014 DIGILAW 790 (CAL)

Manturam Samanta v. State of West Bengal

2014-08-20

DIPANKAR DATTA

body2014
JUDGMENT Dipankar Datta, J. 1. The petitioner, on the recommendation dated August 14, 2012 of the West Bengal College Service Commission (hereafter the Commission), was offered appointment as Principal in Maharaja Manindra Chandra College (hereafter the College) by the Administrator thereof vide his letter dated August 17, 2012. The offer of appointment reveals that the petitioner would be on probation for a period of one year and that his probation, confirmation in service and other conditions of service would be guided by the West Bengal College Teachers (Security of Service) Act, 1975 (hereafter the Act) and the rules framed thereunder as well as Government orders and rules and statutes of the University of Calcutta (hereafter the University). 2. The petitioner accepted the offer of appointment and joined on August 24, 2012 (afternoon) on retention of two years lien on the substantive post of Associate Professor in Prasanta Chandra Mahalanobis Mahavidyalaya, Bonhooghly, Kolkata, held by him. In terms of Section 5 of the Act, a teacher appointed against a permanent vacancy shall be on probation ordinarily for a period of one year and such period may, at the discretion of the Governing Body of the concerned college, be extended for a further period not exceeding one year. Immediately before the petitioner completed his period of probation, the President of the Governing Body of the College, respondent no.5, by his letter dated August 22, 2013 advised the petitioner to convene an emergency meeting on August 23, 2013 at 11 A.M. to consider the issue of confirmation of his service as the Principal of the College. The petitioner complied with such advice immediately and convened a meeting on the following day. It is alleged by the petitioner that the President of the Governing Body circulated amongst the members thereof a resolution that had been prepared by him before hand to the effect that the petitioner’s service would not be confirmed and that his probation would continue for another year. The meeting that followed, according to the petitioner, was nothing but a show of a meeting; however, having regard to the dissent expressed by him, the President in his own hand writing made additions and alterations to the prepared resolution by recording the petitioner’s note of dissent and the number of members present. The meeting that followed, according to the petitioner, was nothing but a show of a meeting; however, having regard to the dissent expressed by him, the President in his own hand writing made additions and alterations to the prepared resolution by recording the petitioner’s note of dissent and the number of members present. The resolution, as per the prepared version, was that the petitioner was required to be reported against for proper enquiry by the Vice-Chancellor of the University (hereafter the VC), respondent no.8, and the Director of Public Instructions, Government of West Bengal (hereafter the DPI), respondent no.3, for his “year-long academic and financial laches” in administration, and that he would not be confirmed in service until decision comes from the VC and the DPI, whichever is earlier. In terms of the resolution adopted in the Governing Body meeting conducted on August 23, 2013, the same was furnished to the DPI as well as the VC by the petitioner by separate forwarding letters dated August 27, 2013. 3. Prof. Swagata Sen, Dean, Faculty Council for Post Graduate Studies in Commerce, Social Welfare & Business Management of the University (hereafter the Dean) had been entrusted by the VC by an order dated August 23, 2013 to conduct a preliminary enquiry into the issues raised by the President of the Governing Body of the College. How the issues raised by the President reached the VC shall be adverted to later. The Dean interacted with the petitioner as well as with certain officials of the College, not in the petitioner’s presence. Documents considered relevant for the enquiry were also looked into. Based on alleged admissions of the petitioner, a report of enquiry dated November 12, 2013 was prepared by the Dean and despatched to the Registrar of the University on November 12, 2013. Portions of the enquiry report are quoted hereunder: “The principal charges against Dr. Samanta were as under: 1. Principal did not take the stipulated 4 classes per week. 2. Filling up of examination forms took place before the publication of the result of Test examination result in respect of BA/B.Sc./B.Com rd year and 2nd year examinations. 3. Financial irregularities in respect of purchase of Desk-top computers. 4. Irregularities regarding billing of remuneration of some guest faculties. 5. Preparation of a cheque amounting Rs. 35,000 for the purpose of Reunion of students. 6. 3. Financial irregularities in respect of purchase of Desk-top computers. 4. Irregularities regarding billing of remuneration of some guest faculties. 5. Preparation of a cheque amounting Rs. 35,000 for the purpose of Reunion of students. 6. The principal was not aware of the fact that two cheques had been cancelled and kept in the cash box. Description of the Proceedings of the Enquiry: On 23rd September, 2013, at 12 pm. I along with Ms. Krishna Roy, Additional DPI and Dr. Shymal Sarkar, the Senior Secretary Councils for undergraduate studies, University of Calcutta met Dr. Manturam Samanta at the Principal’s chamber of Maharaja Manindra Chandra College and discussed about the charges brought against him. In course of the interview, I have also inspected the relevant documents and also interviewed the faculties present at that time in the college and the office staff which includes Dr. Partha Datta, Bursar, Mr. Sanjib Pakhira, Secretary, Teacher’s Council and Ms. Mitra Chakraborty, Head Clerk.” The conclusions reached by the Dean in her report in respect of the first five of the six so-called charges against the petitioner read as follows: “1. However, failing to comply with the requirement of Calcutta University statute amounts to dereliction of duties on the part of the principal. 2. It thus appears the University guideline in this respect has not been followed. 3. For the sake of transparency and propriety, prior approval of the GB should have been taken. Any attempt to get post facto approval of events which involve expenditure of public money amounts to deviation from the statutory requirement and dereliction of duties on his part. 4. The principal being the administrative head should have taken more care before approving such bills. 5. This is not expected from a responsible administrator.” Insofar as the sixth charge is concerned, the petitioner was held not liable. 4. The DPI had caused an inspection of the college by a team consisting of three members headed by Smt. Krishna Roy, the Additional Director of Public Instructions (P&S), Govt. of West Bengal (hereafter the ADPI). The inspection report prepared by the ADPI was signed by her on November 6, 2013. The report also contained remarks/comments of an undisclosed official. It has since been ascertained from Mr. Mukherjee, learned senior advocate for the respondents 1 to 3 that the DPI had made the hand-written remarks/comments in the report of the ADPI. The inspection report prepared by the ADPI was signed by her on November 6, 2013. The report also contained remarks/comments of an undisclosed official. It has since been ascertained from Mr. Mukherjee, learned senior advocate for the respondents 1 to 3 that the DPI had made the hand-written remarks/comments in the report of the ADPI. How far and to what extent the DPI could insert remarks/observations on November 7, 2011 after the ADPI had given her observations on November 6, 2011 is indeed a matter of great surprise. If the DPI was desirous of supplementing the inspection report by his own remarks/comments, nothing prevented him from doing so by preparing an observation of his own but most certainly remarks/comments on an inspection report prepared by his delegate without indicating his identity was not at all proper. Be that as it may, keeping the hand-written remarks/comments apart, the inspection report reflected the lapses of the petitioner in the academic, administrative and financial fields, which according to the author thereof were in gross violation of rules and norms. It is no doubt true that the ADPI had a dialogue with the petitioner and also had interaction with some officials connected with the College. She looked into various documents too that had been placed by such officials. However, there is not the slightest hint that the interaction of the ADPI with the officials was in the presence of the petitioner or that the documents that were looked into had been disclosed to him at any point of time. 5. It may be mentioned here that the Dean and the ADPI had assumed as if the petitioner had admitted the charges, although there was no categorical and unambiguous admission. He sought to explain the circumstances that led to the incidents under consideration and the same ought to have been viewed as justification advanced for the action/non-action. 6. Upon receipt of the aforesaid reports, the President by a letter dated March 1, 2014, addressed the petitioner as follows: “The two reports, one from the University of Calcutta and the other from the DPI, Govt. of W.B. on the ‘observation’ of the governing body sent on 23.8.2013 to the said authorities for their enquiry and opinion thereon have reached the college in the last week of Feb. 2014. of W.B. on the ‘observation’ of the governing body sent on 23.8.2013 to the said authorities for their enquiry and opinion thereon have reached the college in the last week of Feb. 2014. In view of this I request you to convene a meeting of the governing body on Monday the 10th of March 2014 with a single item in the agendum. The item will be as follows: ‘To discuss the two reports of the University of Calcutta and the DPI, Govt. of W.B. on the ‘observation’, dated 23.8.2013 sent by the college governing body for necessary enquiry and opinion and to take decision thereon by the governing body of the college’.” 7. In due compliance therewith, the petitioner issued notice dated March 3, 2014, convening a meeting of the Governing Body on March 10, 2014. It has been pleaded in paragraph 16 of the writ petition that both the reports were accepted by the Governing Body and explanations of the petitioner in regard thereto were called for. An explanation-cum-note of self defence dated March 31, 2014 was submitted by the petitioner to the President. Upon receipt thereof, the President by his letter dated July 24, 2014 requested the petitioner to convene a meeting on August 2, 2014 with the following agendum: “Agendum: To consider the explanatory note of self-defence of the Principal on the charges labelled against him by the two Enquiry Reports, one of the Calcutta University and the other of the D.P.I., Govt. of West Bengal, on the basis of the observation of the G.B. and the views of the President of the G.B. on it and to take decision thereon.” 8. The petitioner duly convened a meeting of the Governing Body by a notice dated July 26, 2014. On the date of the meeting i.e. August 2, 2014, the President offered an item-wise clarification on the response offered by the petitioner to the charges levelled against him by the committees set up by the University and the DPI. Some portions of the clarification read as follows: “As such, in my view, this can be clearly categorised as ‘want of due diligence in the performance of duties’ and ‘Neglect of duty’ (under the C.U, Statute, Chapter VIII, Part O, under Sub-heading ‘Reasons for disciplinary measures’, Sec. B & a). Some portions of the clarification read as follows: “As such, in my view, this can be clearly categorised as ‘want of due diligence in the performance of duties’ and ‘Neglect of duty’ (under the C.U, Statute, Chapter VIII, Part O, under Sub-heading ‘Reasons for disciplinary measures’, Sec. B & a). **** **** **** **** This is a gross violation of University norms as stated in the C.U. Statute – ‘Insubordination or disregard of violation of the orders of the superior authority (Chapter VIII, under sub-heading, Reasons for disciplinary measures ‘f’). **** **** **** The defence taken by you to justify your act of gross violation of the directions of the University, was that you were guided by the decision of the Academic sub-committee which cannot hold water **** **** **** I may add here that from the charges already made against you, I am obliged to point out another highly irregular action of yours which will vindicate your ignoring attitude towards the Government Body. During the enquiry you shut down the admission of students to career oriented certificate 3 years course of Computer Application ‘Major’ B. Com/B.Sc. (UGC sponsored) affiliated to the University of Calcutta which was running in the College for at least ten years. I received the information from the students and when I asked you on this matter on 22.03.2014 you informed me in writing that on the advice of the Teachers’ Council and the Academic Sub-Committee you had taken such decision, despite the same being detrimental to the interest of the students, without the approval of the Governing Body. You should be aware that the Teachers’ Council and the Academic Sub-Committee are not the competent authorities in this regard. This appears to be yet another example of your defying attitude towards the Government Body and violation of the Statute of the C.U., 1979. Lastly it may be pointed out that your attempt of distortion of facts while attempting to defend yourself, raises the question of your honesty.” 9. It was thereafter that the following resolution was taken by the Governing Body, which has been impugned in this writ petition. The resolution reads as follows: “The clarification of the Principal, Dr. Lastly it may be pointed out that your attempt of distortion of facts while attempting to defend yourself, raises the question of your honesty.” 9. It was thereafter that the following resolution was taken by the Governing Body, which has been impugned in this writ petition. The resolution reads as follows: “The clarification of the Principal, Dr. Manturam Samanta of the charges brought against him by the enquiry committees constituted by the University of Calcutta and the Director of Public Instructions (DPI) and the views of the President on the clarification of the Principal were placed before the members of the meeting held on 02.08.2014 and were read and discussed at length by all the members present in the meeting. After careful consideration of the clarification of the Principal Dr. Manturam Samanta and the views on it by the president and the opinions of the hon’ble members of the Governing Body, the members take the decision in the following manner:- ‘The Principal has failed to discharge his academic, administrative and financial duties in the proper manner. The wellbeing of the academic development and the interest of the students were grossly neglected during the tenure of the Principal. It also appears from his self explanatory note and the views of president on it is amply clear that the Principal is habitual defier of the Governing Body as he often takes financial and academic decision without consulting the Governing Body. It is clearly evident by his decision in regard to dissolution of the Major Course (UGC approved) of C.U. Under this circumstances the Governing Body comes to the decision that the service of the Principal of the College Dr. Manturam Samanta will not be confirmed and approved. As such he is released from the post of Principal from Maharaja Manindra Chandra College on & from 4th August 2014. In absence of the Principal the Teacher-in-Charge will be appointed as the C.U. 1st Statute 1979. The president is empowered to do the needful in this matter. The Principal will handover the charges to the Teacher-in-Charge on 4th August 2014. The Governing Body further resolves that any litigation arises on any matter afterwards, the President will contest on behalf of the college and the financial expenses if any become necessary the college will bear that expenses.’ Out of 12 (twelve) members of the Governing Body attended the meeting on 02.08.2014. The Governing Body further resolves that any litigation arises on any matter afterwards, the President will contest on behalf of the college and the financial expenses if any become necessary the college will bear that expenses.’ Out of 12 (twelve) members of the Governing Body attended the meeting on 02.08.2014. Only 3 (three) members namely Prof. Soumitra Mukhopadhyay, Prof. Parimal Kundu and Prof. Krishna Mukherjee recorded their separate views on the above decision. The Principal also submitted his own opinion and differs the decision of the majority members. All the copies forwarded to: Principal, Manturam Samanta and other members present in the meeting on 02.08.2014.” 10. I had heard Mr. Sanyal, learned advocate for the petitioner, Mr. Gupta, learned senior advocate for the respondents 4 and 5, Mr. Mukherjee, learned senior advocate for the respondents 1 to 3 and Ms. Sarkar, learned advocate for the respondents 6 to 9 at length on August 11 and 12, 2014 and reserved judgment. Mr. Mukherjee was required to inform me the following day the identity of the official who had made the hand-written remarks/comments in the inspection report of the ADPI dated November 6, 2013, since his identity apparently was not known either to Mr. Mukherjee or Mr. Gupta. The ad-interim order of stay passed on August 4, 2014 was directed to continue till delivery of judgment. 11. However, while dictating the judgment in the evening of August 12, 2014, I noticed from a letter dated November 12, 2013 of the Dean forwarding to the VC the enquiry report prepared by her (at page 42 of the writ petition) that reference was made to an office order of the VC dated August 23, 2013. Since the resolution of the Governing Body dated August 23, 2013 was forwarded to the VC by the petitioner by his covering letter dated August 27, 2013, a doubt cropped up in my mind as to how the resolution of the Governing Body dated August 23, 2013 could reach the VC before August 27, 2013 and the VC could appoint the Dean to conduct enquiry on August 23 itself. The writ petition was placed under the heading ‘To Be Mentioned’ on the following day i.e. August 13, 2014. 12. To my query, Ms. Sarkar prayed for some time to obtain instructions from the office of the VC. Mr. The writ petition was placed under the heading ‘To Be Mentioned’ on the following day i.e. August 13, 2014. 12. To my query, Ms. Sarkar prayed for some time to obtain instructions from the office of the VC. Mr. Mukherjee submitted that the hand-written remarks/comments in the inspection report of the ADPI were made by the DPI himself. Hearing such submissions, I adjourned hearing till after recess. It was thereafter in the second session of sitting that Ms. Sarkar produced copy of the office order dated August 23, 2013 of the VC with three pages as an enclosure thereto. At the top left hand corner of the first page, the President in his own handwriting wrote as follows: “For consideration Advance copy to the Hon’ble V.C. University of Calcutta. Sd/- Arun Kumar Chattopadhyay President, G.B., Maharaja Manindr Ch. College 23.8.13” Ms. Sarkar was asked as to whether there was any covering letter of the President. Having failed to say ‘yes’ or ‘no’, I asked her to obtain complete instructions as to how the said three pages reached the VC. She prayed for a day’s time. The order reserving judgment was recalled and the writ petition was directed to be placed on the following day under the same heading for further consideration. The appearing parties were requested to put Mr. Gupta on notice. 13. On August 14, 2014, Ms. Sarkar submitted, on instructions, that there was no covering letter of the President but that the three pages with the endorsement at the top left corner of the first page thereof had been left on the table of the Secretary of the VC by some unidentified person and upon the same being placed before the VC, the office order dated August 23, 2013 was issued requesting the Dean to conduct a preliminary enquiry. I intended to proceed with the hearing but an adjournment having been prayed for on behalf of Mr. Gupta, hearing was adjourned till August 18, 2014. 14. Confronted with the query that I had raised on the last date, Mr. Gupta submitted that the procedure followed by the VC in seeking an enquiry report may have been unusual but that, according to him, does not distract from the tardy performance put up by the petitioner as Principal of the College. 14. Confronted with the query that I had raised on the last date, Mr. Gupta submitted that the procedure followed by the VC in seeking an enquiry report may have been unusual but that, according to him, does not distract from the tardy performance put up by the petitioner as Principal of the College. His performance was not found ‘up to the mark’ and, therefore, he submitted that the Governing Body was justified in taking a decision to discharge the petitioner on completion of the period of probation. 15. Ms. Sarkar was called upon to enlighten me the provision of law that empowered the VC to direct even a preliminary enquiry on the basis of a private communication made by the President of the College. Section 9 of the Calcutta University Act, 1979 (hereafter the CU Act) and Statute 4 of the Calcutta University First Statutes, 1979 (hereafter the Statutes) were referred to by her as the source of the VC’s power to direct an enquiry. 16. While reserving judgment once again on August 18, 2014, Mr. Gupta’s submission that the writ petition may be disposed of on the basis of the papers/materials that are before the Court and without calling for affidavits was recorded. 17. While it has been argued on behalf of the petitioner that the resolution adopted by the Governing Body of the College to the effect that his service as Principal would not be confirmed and that he stands released with effect from August 4, 2014 is stigmatic and in effect a punitive measure, it has been the submission of the learned advocates for the respondents in chorus that no stigma has been attached and that the petitioner’s performance on being duly assessed was not found satisfactory for which the Governing Body exercising power conferred by sub-section (2) of Section 5 of the Act, resolved to discharge the petitioner from service. Mr. Gupta also contended that the petitioner approached the Court before the final order of discharge was served on him and much would depend on the wordings of the final order; if the final order were couched in such language that no stigma is attached, the petitioner may not have reason to complain, for, that would not prejudicially affect him. 18. I must also place on record the fair stand taken by Mr. Gupta before judgment on this writ petition was reserved the first time. 18. I must also place on record the fair stand taken by Mr. Gupta before judgment on this writ petition was reserved the first time. According to him, even if the Court were to hold that misconduct of the petitioner is the foundation for his discharge from service, that would not result in an automatic confirmation of his service and that the Governing Body would still retain the power to initiate disciplinary proceedings against him. Having regard to the fact that the petitioner is holding a responsible position in the College, it would not be in the best interest of educational interests of the students to have someone at the helm of administration of the College whose conduct is blameworthy and sufficient to attract disciplinary proceedings. He submitted that keeping aside legal niceties, the Governing Body of the College is ready and willing to withdraw the resolution dated August 2, 2014 and to pass a fresh resolution in such manner that the petitioner’s future prospects are not jeopardised. It was also submitted by him that the Court may in its discretion direct that the enquiry/inspection reports be expunged from the records so that the petitioner is not visited with civil consequences in future. 19. The response of Mr. Sanyal was clear. According to him, the act of the Governing Body in not confirming the petitioner’s service as the Principal of the College would result in his facing an uphill task of obtaining a recommendation in future from the Commission for the post of Principal of any other college. Notwithstanding expunction of the enquiry/inspection reports and withdrawal of the impugned resolution, the petitioner would have to carry the indelible stamp of having been appointed as a Principal, who was not confirmed in his service. The very fact that his service was not confirmed and that he had to relinquish his office while on or after the period of probation would, as it were, put a huge spanner in the works. The very fact that his service was not confirmed and that he had to relinquish his office while on or after the period of probation would, as it were, put a huge spanner in the works. This, according to him, is bound to adversely affect the petitioner’s future prospects so much so that not only he may not be recommended for the post of Principal, the prestige earned by him as a teacher over the years and the respect that he commanded from his students would be nullified and the status that he enjoyed would no longer be enjoyed by him resulting in an irretrievable loss for him. In fine, it would be demeaning for the petitioner to step down without having the opportunity to demonstrate that he was never at fault. Despite the fact that the Governing Body is disinclined to confirm him in service, the petitioner is ready to face any disciplinary proceedings since he has not indulged in any act of omission/commission that could be viewed as detrimental to the academic, financial and administrative interest of the College. It was also submitted that the petitioner is so very confident of coming out unscathed if any disciplinary proceedings were initiated against him that he is inclined to forego the lien on the post earlier held by him and to face the consequences. 20. Having regard to the above, I felt that the sentiments of the petitioner ought to be respected and hence did not insist for a balanced via media to safeguard the interest of all the parties being worked out. 21. Left with no other option but to decide the contentious issue that the writ petition raises, i.e. whether the resolution dated August 2, 2014 adopted by the Governing Body of the College discharging the petitioner from the office of Principal is punitive or not, I shall now proceed to consider whether the petitioner has been able to set up any case for interference in regard to the impugned resolution. 22. The issue as to whether an order discharging a probationer from service or terminating the service of a temporary servant is stigmatic and punitive or whether it is a discharge/termination simpliciter has been debated before the Supreme Court since 1958. A long line of decisions has followed, propounding tests for guidance to decide such issue. 22. The issue as to whether an order discharging a probationer from service or terminating the service of a temporary servant is stigmatic and punitive or whether it is a discharge/termination simpliciter has been debated before the Supreme Court since 1958. A long line of decisions has followed, propounding tests for guidance to decide such issue. Host of decisions has been cited by the parties, which may be noted at this juncture. While Mr. Gupta referred to the decisions reported in (1980) 3 SCC 428 : ONGC v. Mohd. S. Iskender Ali (Dr); (1985) 2 SCC 5 : Dhanjibhai Ramjibhai v. State of Gujarat; (1997) 2 SCC 191 : Kunwar Arun Kumar v. U.P. Hill Electronics Corpn. Ltd.; (2002) 1 SCC 520 : Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences; (2002) 9 SCC 636 : State of Punjab v. Bhagwan Singh; (2005) 1 SCC 132 : Registrar, High Court of Gujarat v. C.G. Sharma; (2006) 4 SCC 469 : Abhijit Gupta v. S. N. B. National Centre, Basic Sciences; (2011) 4 SCC 447 : Rajesh Kumar Srivastava v. State of Jharkhand, Mr. Sanyal cited the decisions reported in (1999) 2 SCC 21 : Radhey Shyam Gupta v. U. P. State Agro Industries Corpn. Ltd.; (1999) 3 SCC 60 : Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences; (2000) 3 SCC 239 : V.P. Ahuja v. State of Punjab; (2000) 5 SCC 152 : Chandra Prakash Shahi v. State of U.P.; and (2003) 3 SCC 263 : Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. Ms. Sarkar cited the decision reported in (2010) 12 SCC 783 : Rajesh Kohli v. High Court of J & K. 23. Mr. Gupta also pointed to the fact that the petitioner cannot complain of violation of natural justice since he was heard by the Dean and the ADPI while they were in course of completing the enquiry/inspection entrusted to them. For the proposition that principles of natural justice cannot be applied in a vacuum, it cannot be put in a straitjacket formula and that it is not an unruly horse, he referred to the decisions reported in (2005) 3 SCC 409 : Karnataka SRTC v. S.G. Kotturappa and (2005) 5 SCC 337 : Viveka Nand Sethi v. Chairman, J & K Bank Ltd. 24. In the decision reported in (2013) 10 SCC 95 : Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority, the Supreme Court in relation to dealing of precedents that are cited by the parties before the Court had the occasion to observe as follows: “7. This Court, and even more so the High Court as well as the subordinate courts have to face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law. The correct approach is to predicate arguments on the decision which holds the field, which in the present case is. The law of precedence and of stare decisis is predicated on the wisdom and salubrity of providing a firmly founded law, without which uncertainty and ambiguity would cause consternation in society. The sheer plethora of precedents makes it essential that this Court should abjure from discussing each and every decision which has dealt with a similar question of law. Failure to follow this discipline and regimen inexorably leads to prolixity in judgments which invariably is a consequence of lengthy arguments. 10.5. This analysis of the cited case law shows that there is little or no advantage to be gained from the manner in which the Court has responded to the factual matrix as other courts may legitimately place emphasis on seemingly similar facts to arrive at a different conclusion. But the ratio decidendi has to be adhered to. The counsel must therefore exhibit circumspection in the number of cases they cite.” 25. There is no reason as to why the High Court may not take the aid of the observations extracted supra and refrain from dealing with each and every authority that has been cited by the parties, so long the principle of law laid down by the Supreme Court on a particular issue that is discernible from a decision rendered by it has been holding the field for ages. The decision in Dipti Prakash Banerjee (supra), which inter alia followed the decision reported in (1980) 2 SCC 593 : Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, and the decision in Pavanendra Narayan Verma (supra) are authorities which have been respected by subsequent benches as laying down the correct law and, therefore, need to be looked into for finding out what the position of law is in regard to discharge/termination of a probationer/temporary employee. 26. 26. The true test, with brevity, has been indicated by Hon’ble Krishna Iyer, J. (as His Lordship then was) speaking for the majority in Gujarat Steel Tubes (supra). Regarding 'foundation', it was observed as follows: "53. A termination effected because the master is satisfied of the misconduct and of the desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used." As to motive, His Lordship held : "54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge." Considering the aforesaid exposition of law, it was held in Dipti Prakash Banerjee (supra) as follows: “22. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid.” 27. In Pavanendra Narayan Verma (supra), the Supreme Court on consideration of its earlier decisions, which included a number of Constitution Bench decisions, observed that the law had developed on ‘apparently illogical lines in determining when the termination of a temporary appointee or probationer’s services amounts to punishment’ and that the search for the ‘substance’ behind the ‘form’ of the order of punishment had ‘led to some apparently conflicting decisions’. Although Dipti Prakash Banerjee (supra) was considered in Pavanendra Narayan Verma (supra), in the latter decision express reference to the test laid down in Gujarat Steel Tubes (supra) is not found. It was held in Pavanendra Narayan Verma (supra) that one of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see as to whether prior to the termination there was (a) a full-scale formal enquiry, (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. An order could be branded punitive if these three factors were present; conversely, if any of these three factors is found to be absent, the order had to be upheld. 28. It is noteworthy that this test formulated in the decision in Pavanendra Narayan Verma (supra) is only one of judicially evolved tests and may not be considered as the only test, for, there are other tests laid down in the earlier decisions which are yet to be overruled. 29. Caution has been sounded time and again by the Supreme Court that a decision in a case of this nature would necessarily require a close examination of the surrounding facts and an innocuously worded final order of discharge/termination may often present a distorted picture of the reality. 29. Caution has been sounded time and again by the Supreme Court that a decision in a case of this nature would necessarily require a close examination of the surrounding facts and an innocuously worded final order of discharge/termination may often present a distorted picture of the reality. In any event, whichever test one applies in this case i.e. the foundation-motive test propounded in Gujarat Steel Tubes (supra) followed in Dipti Prakash Banerjee (supra) or the three-factors test laid down in Pavanendra Narayan Verma (supra), the impugned resolution is, in fact, one that is based on full-scale enquiry/inspection, manifesting an alleged misconduct on the part of the petitioner, and a live nexus between such misconduct and his discharge from service by using injurious terminology, which is likely to hamper his future prospects. To borrow the words of Hon’ble Krishna Iyer, J. once again, on lifting the veil the naked truth is discerned draped in perfect paper arrangement that the petitioner’s performance not being found satisfactory on assessment he was asked to step down, although the real cause is hidden “in fold after fold of legal form” for concealment. 30. Three other decisions ought to be referred to before ending the discussion on the topic. 31. In V.P. Ahuja (supra), the order of discharge read as follows: “ORDER Shri V.P. Ahuja, s/o late Shri H.N. Ahuja was appointed on probation for 2 years as Chief Executive of the Coop. Spg. Mills Ltd., vide orders Endst. No. Spinfed/CCA/7844-45 dated 29-9-1998 and posted at Bacospin. However, he failed in the performance of his duties administratively and technically. Therefore, as per clause I of the said appointment order, the services of Shri V.P. Ahuja are hereby terminated with immediate effect. Sd/- (Managing Director) SPINFED” It was held in paragraph 5 of the decision by the Supreme Court as follows: “5. The observation of the High Court that: ‘The impugned order is not stigmatic and nothing at all has been urged that may detract from such an order being passed during the currency of probation.’ Is surprising, to say the least. The order by which the services of the appellant were terminated has already been quoted by us above. The order, ex facie, is stigmatic as also punitive. The order is founded on the ground that the appellant had failed in the performance of his duties administratively and technically. The order by which the services of the appellant were terminated has already been quoted by us above. The order, ex facie, is stigmatic as also punitive. The order is founded on the ground that the appellant had failed in the performance of his duties administratively and technically. It is for this reason that the services of the appellant were terminated. As pointed out above, the order, ex facie, is stigmatic.” Mr. Sanyal contended that the resolution of the Governing Body impugned herein is similarly worded and based on what has been held in V.P. Ahuja (supra), the petitioner is entitled to relief. 32. Responding to such contention, the decisions in C.G. Sharma (supra) and Rajesh Kumar Srivastava (supra) were referred to by Mr. Gupta while Ms. Sarkar and Mr. Mukherjee referred to Rajesh Kohli (supra). In C.G. Sharma (supra), the Court proceeded to observe: “31. We have closely perused the confidential register of the respondent and it contains series of adverse entries and it is abundantly clear that the respondent was not having good reputation as judicial officer and his service was far from satisfactory. 32. The District Judges concerned, in view of his unsatisfactory performance and questionable integrity, have also recommended for extension of probation from time to time and ultimately the District Judge was of the opinion that no further extension of probation was called for. 37. Thus, it is seen that the respondent is not industrious, less diligent, below average and inadequate disposals and that the conduct was suspicious and complete aloofness is lacking and no clarity of thought and expression, poor in civil work and fair in criminal work and average in diligence. In our opinion, such an officer should not be allowed to continue in service in public interest and in the interest of the judicial administration.” It is revealed from the decision in Rajesh Kumar Srivastava (supra) that the State Government of Jharkhand issued an order to the effect that the services of the appellant are no longer required in public interest, and therefore, the appellant stands discharged from service with effect from July 31, 2003, which was upheld by the Supreme Court. Paragraph 28 of the decision in Rajesh Kohli (supra) records the reason for terminating the service of the appellant and reads thus: “28. Paragraph 28 of the decision in Rajesh Kohli (supra) records the reason for terminating the service of the appellant and reads thus: “28. In the present case, the order of termination is a fallout of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.” According to the said learned advocates, these decisions express approval of apparently stigmatic remarks made against the officers concerned while discharging them from their respective services and are authorities which have diluted the foundation-motive test. 33. I am afraid, I cannot quite agree with them. The aforesaid decisions were rendered by the Supreme Court while dealing with orders of discharge/termination passed against judicial officers. It has been the constant endeavour of the supreme judiciary as well as the High Courts to ensure that the stream of justice remains unpolluted and that the confidence the people have in the judiciary is not shaken because of judicial officers failing to attain the high standards expected of them. This has been achieved by taking certain stern measures to keep the house in order. The standard adopted while dealing with cases of judicial officers is not quite the same as dealing with any other officer. I do not for a moment suggest that the office of Principal of a reputed college is any less important but there has been dissimilarity in maintaining firmness while considering cases of judicial officers and officers/employees belonging to other establishments owing to the exacting standards of propriety in every action of a judicial officer’s official and personal conduct, which cannot be overlooked. 34. The approach in dealing with C.G. Sharma (supra), Rajesh Kumar Srivastava (supra) and Rajesh Kohli (supra) cases cannot thus apply to the present case and I concur with Mr. Sanyal, in view of the opinion expressed in V.P. Ahuja (supra) that the resolution impugned in this writ petition is ex facie stigmatic. 35. There is one other aspect of the entire episode that vitiates the impugned resolution. Sanyal, in view of the opinion expressed in V.P. Ahuja (supra) that the resolution impugned in this writ petition is ex facie stigmatic. 35. There is one other aspect of the entire episode that vitiates the impugned resolution. If indeed the petitioner was remiss in his duty, the Governing Body could have discharged him from service by an order simpliciter. It chose not to do so but thrust the responsibility on the University and the DPI to take decision. Why in the first place the University and/or the DPI should be asked to decide has not been explained. That apart, ordering of preliminary enquiry by the VC on receipt of a communication from the President that is private in nature and not official is not only rather unusual, as submitted by Mr. Gupta, but bewildering and leaves room for suspicion as to whether an adverse enquiry report was a forgone conclusion or not particularly when neither Section 9 of the C.U. Act nor Statute 4 of the Statutes (referred to by Ms. Sarkar) empowers the VC to order an enquiry into a matter with which the University is not even remotely involved. The report of the ADPI also does not fare better. That the handwritten remarks/comments were made by the DPI was not even known to Mr. Gupta, a fortiori, to the respondents 4 and 5 or else the same would have been pointed out immediately when the issue was raised. It is, thus, clear that the report of the ADPI was considered by the Governing Body without even making an effort to ascertain as to who was responsible for the handwritten remarks/comments. However, irrespective of how the enquiry/inspection could at all be ordered and was conducted, it is clear that the reports contained adverse materials against the petitioner regarding performance of his duty as a Principal. As has been noticed hereinabove, the reports had been prepared on the basis of statements obtained from officials not in the presence of the petitioner as well as documents, which were not disclosed to him. Although Mr. Gupta forcefully argued that the petitioner was duly heard, there has been no breach in complying with natural justice and the language of the resolution does not amount to any stigma being attached to the petitioner, he has failed to impress. 36. Although Mr. Gupta forcefully argued that the petitioner was duly heard, there has been no breach in complying with natural justice and the language of the resolution does not amount to any stigma being attached to the petitioner, he has failed to impress. 36. Compliance with principles of natural justice in relation to any enquiry that is directed against an employee comprehends reasonable opportunity being extended to raise effective defence. What would constitute reasonable opportunity, albeit not concerning departmental enquiry, has been explained by the Supreme Court in the decision reported in (2003) 7 SCC 492 : Sohan lal Gupta v. Asha Devi Gupta in the following words: “23. For constituting a reasonable opportunity, the following conditions are required to be observed: 1. Each party must have notice that the hearing is to take place. 2. Each party must have a reasonable opportunity to be present at the hearing, together with his advisers and witnesses. 3. Each party must have the opportunity to be present throughout the hearing. 4. Each party must have a reasonable opportunity to present evidence and argument in support of his own case. 5. Each party must have a reasonable opportunity to test his opponent’s case by cross-examining his witnesses, presenting rebutting evidence and addressing oral argument. 6. The hearing must, unless the contrary is expressly agreed, be the occasion on which the parties present the whole of their evidence and argument.” 37. The procedure that has been adopted by the Governing Body does not satisfy the requirement of natural justice. The findings in the impugned resolution that the petitioner failed to discharge his academic, administrative and financial duties in the proper manner, grossly neglected the well-being of the academic development and the interest of the students, and that he is a habitual defier of the Governing Body are stigmatic and could not have formed the basis for the order of discharge. Howsoever valiantly Mr. Howsoever valiantly Mr. Gupta may have tried to convince me that the exercises preceding the impugned resolution were intended to assess the suitability of the petitioner in discharging his duties and performing his functions as the Principal of the College, but considering the tests laid down in the above referred decisions, the conclusion is irresistible that the order of discharge is one passed as a measure of penalty for misconduct committed by the petitioner, which were never enquired into by instituting regular disciplinary proceedings against him and that the Governing Body acted illegally in the exercise of its jurisdiction in discharging the petitioner on the basis of the said enquiry/inspection reports. I have no hesitation to set aside the impugned resolution. It is ordered accordingly. 38. I am not oblivious of the fact that in terms of Section 5 of the Act, a teacher appointed against a permanent vacancy may be kept on probation subject to a maximum of two years and that only few days are left for it to expire. The proviso to sub-section (3), however, provides that should no order of confirmation be passed and communicated within a period of two months of completion of the period of probation, the teacher shall be deemed to have been confirmed with effect from the date of his appointment on probation. It is, therefore, clear that there would be a deemed confirmation on expiry of two years two months from the date of appointment on probation. 39. Different fact situations warrant different approaches, and no hard and fast guidelines which can have universal application can be laid down or envisaged. To sub-serve interest of justice, the following directions are issued. The petitioner shall continue to serve the College as an unconfirmed Principal. The Governing Body may, if it so chooses, on the basis of its own assessment of the situation but not on the basis of the enquiry/inspection reports of the University and the DPI, initiate disciplinary proceedings against him by issuing formal charge-sheet. Once initiated, such proceedings shall be taken to its logical conclusion in accordance with law and upon extending to the petitioner reasonable opportunity of raising effective defence. Should the Governing Body fail to conclude the disciplinary proceedings by October 24, 2014, the petitioner shall be deemed to be confirmed as Principal. However, such deemed confirmation shall abide by the result of the disciplinary proceedings. Should the Governing Body fail to conclude the disciplinary proceedings by October 24, 2014, the petitioner shall be deemed to be confirmed as Principal. However, such deemed confirmation shall abide by the result of the disciplinary proceedings. During the continuation of the disciplinary proceedings, the petitioner shall not be entitled to take any administrative policy decision on his own, whatever might be the urgency. 40. The writ petition stands allowed to the extent mentioned above. Parties shall bear their own costs. Urgent certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.