Judgment:
P.R. Gokulakrishnan, C.J.
1. These Letters Patent Appeals arise out of the judgment of the learned single Judge of this High Court allowing Special Civil Application No. 3337 of 1979. The main prayers in the Special Civil Application were: (a) declare the notice dated 2-11-1979 of termination of services of the petitioner, at Annexure 'E' as unconstitutional, being in violation of Articles 14 and 16 and null and void and quash the same; (b) direct the respondents to treat the impugned notice at Annexure 'E' as having never been issued and to treat the petitioner in the Special Civil Application to be in service as if the impugned notice has never been issued and to grant him all the benefits flowing from his continuous service; and (c) direct the respondents to reinstate the petitioner with full backwages.
2. To appreciate the contentions of the respective parties, we have to look into certain relevant facts in this case. The Physical Research Laboratory was originally set up on November 11, 1947 as a Joint Venture of the Ahmedabad Education Society, a Society registered under the Societies Registration Act, 1860 and the Karmakshetra Education Foundation, a Charity Trust registered under the Bombay Public Trusts Act, 1950. The original object was to carry out rescaich in atmosphere Physics and in course of time it entered into the field of research in Physics and Earth Science it developed into a Modern Laboratory for fundamental research in Physics, Astro-Physics and Geo-Physics. The Government of India, having considrered the Institute to be in the interest of ths Country, assisted the said Laboratory by making grants to it with and view to supporting the study and research in the aforesaid three areas. The Government of the erstwhile State of Bombay and the Government of the State of Gujarat have assisted the Physical Research Laboratory with aanual grants-in-aid aswell as grants for capital expenditure from time to time. The Physical Research Laboratory submitted to the Government of India proposals for the development of the Laboratory and expanding its activities and invited the Government of India as well as Government of Gujarat to share with them the rights and obligations of maintaining and promoting the Laboratory, as a result of which it was agreed between the Government of India, the Government of Gujarat, the said Society and the said Foundation that with effect from April 1, 1962, the Laboratory established as a Joint Venture of the aforesaid Society and the foundation shall be known as 'Physical Research Laboratory' and the Government of India covenanted to pay minimum annual block grant-in-aid of Rs. 6,00,000/- towards the maintenance of the Laboratory and also to pay non-recurring grant-in-aid towards the costs of buildings and equipments of the Laboratory as the Government may consider necessary,the Government of agreed Gujarat to pay a minimum annual block grant-in-aid of Rs. 30,000/- towards the maintenance of the Laboratory and pay a non-recurring grant-in-aid of Rs. 1,50,000/- towards the costs of buildings and equipments of the Laboratory which was spread over a period of five years ending in 1965-66 The Society and the Foundation, in their tarn, agreed to pay a miuimum annual block grant-in-aid of Rs. 20,000/and Rs. 40,000/- respectively towards the maintenance of the Laboratory. The Laboratory was placed under the control and direction of the Council of Management consisting of three persons appointed by the Government of India, and one representative each of the Government of Gujarat, the Society and the Foundation. It was also provided that there will be a Director-in-charge of the Laboratory, who will be the ex-officio member on the Council. Rules and Regulations were framed for the purpose of running this Physical Research Laboratory.
3. Dr. Mukul Sinha, the petitioner in the main Special Civil Application,joined the Physical Research Laboratory as a research scholar in September,1973 for his doctoral programme in 'Theoretical Plasma' as the Physical Research Laboratory is a recognised Institute by the Gujarat University under the Gujarat Universities Act for the studies leading to Ph.D. in the related areas of its activities. He completed his doctoral programme in 1977 under the guidance of one Dr. A.K. Sunderam and it is claimed by the petitioner that he published scientific papers in various leading journals. It is the case of the respondents that since he was an efficient research scholar, he was offered the post of Visiting Scientist by the Physical Research Laboratory in January, 1978. His appointment was initially for a period of one year with consolidated salary of Rs. 1,000/- per month with effect from 1-1-1978.
4. According to the respondents, the appointment was made by appointment order of 10th January, 1978. Dr. John, under whom the petitioner was working, recommended for permanent absorption of the petitioner in the Physical Research Laboratory on the expiry of the first year as a Visiting Scientist, by his letter dated 28th November, 1978. But the Director-in-charge of the Physical Research Laboratory did not think fit to accept the recommendation and decided to assess his performance towards the end of second year and, therefore, granted extension of one more year as Visiting Scientist. Accordingly, by the order of 30th December, 1979, the appointment of the petitioner as a Visiting Scientist, was extended for a period of one more year with effect from 1st January, 1979. Dr. John submitted his report, containing his assessment of the performance of the petitioner (Dr. Mukul Sinha) by his letter dated 26th October, 1979 stating that:
(1) Dr. Mukul Sinha has completely neglected the responsibilities on doing the retical work on developing models of beam-plasma interaction;
(2) although he had suggested a concept of using electron cyclotron reasonance to develop a microwave radiometer, he did cot follow this, in terms of designing the experimental system in spite of specific request to do so; and
(3) Dr. Sinha's involvement in activities outside his scientific assignments have been growing steadly, despite the fact that he was advised against that, considering the ill-effects these have on his scientific performance and on the overall performance of the group. Dr. John further stated that considering all these facts in their total perspective, he had come to the unhappy conclusion that Dr. Mukul Sinha's continued association with the Laboratory would be detrimental to the interest of the experimental plasma physics group and the Laboratory as a whole. Dr. John has further stated in the same letter that he fully concurs with the Director's earlier decision and recommends that the services of Dr. Mukul Sinha may be terminated when his term of extension comes to a close. The Director-in-charge agreed with Dr. John's recommendation and instructed that the petitioner be relieved from duties on expiry of the first date. The Director accordingly placed his endorsement on October 29, 1979. In pursuance of the instructions as aforesaid, the Administrative Officer, by his letter dated 2nd November, 1979, intimated the petitioner that he was to be relieved of his duties on the close of office hours on 31st December, 1979 and without prejudice to the contention of the Management of the Physical Research Laboratory that the petitioner was not a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, it was decided that the petitioner should be paid retrenchment compensation under the provisions of Section 25F of the said Act and to apply for permission of the Industrial Tribunal under Section 33(3) of the said Act for relieving the petitioner from the service in view of the pendency of the Industrial Reference before the Tribunal. The petitioner, therefore, being aggrieved by the said order dated 2nd November, 1979, had come forward with the Special Civil Application referred above with various allegations.
5. Apart from other contentions, it was mainly contended on behalf of the petitioner (Dr. Mukul Sinha) that the impugned notice of termination amounted to penalty of dismissal, which could not have been imposed without following the procedure prescribed under Section 51A(1) of the Gujarat University Act, or in any case, at least without following the procedure prescribed in Section 51A(2) of the Gujarat University Act, assuming that the impugned notice was for termination simplicitor since, admittedly; the Physical Research Laboratory is a recognised institute as defined in the Gujarat University Act and affiliated to the University for conducting doctoral programme in the defined area. Further, it was contended that such a termination order offends Articles 14 and 16 of the Constitution. The learned single Judge of this Court framed as many as 10 questions for the disposal of the Special Civil Application. Question Nos. 1 and 2 read as follows:
(1) Whether the impugned notice seeking to terminate the services of the petitioner in effect and substance amounts to penalty of dismissal and, therefore, bad in law, void and ineffective inasmuch as it is sought to be imposed without following the procedure prescribed under Section 51A(1) of the Gujarat University Act; and
(2) Assuming that the impugned notice is of simple termination of the services of the petitioner, it is bad in law and void and ineffective inasmuch as it is issued without complying with the procedure prescribed under Section 51A(2) of the Gujarat University Act.
The Physical Research Laboratory countered for question Nos. 1 and 2 referred to above by stating that Section 59A of the Gujarat University Act exempts a College or an Institution owned or maintained by the Government, inter alia, from the purview of Section 51A, and since Physical Research Laboratory is maintained by the Government, it is outside the purview of the said Section 51A, that Section 51A would not apply to fixed term appointment and in any case, the proviso to Section 51A enjoins that Sub-section (2) does not apply to any person who is appointed for a temporary period, and that in no case, the impugned notice of termination of the services can be said to amount to dismissal or removal from the services by way of penalty since even if there is any motive operating at the back of the mind of the Management in terminating the services, it would not amount to any stigma and, therefore, the termination cannot be voided on the ground that the penalty is imposed without compliance with the principles of natural justice.
6. The learned single Judge repelled the argument of the Physical Research Laboratory to the effect that the institution is completely owned by the Government and that, as per Section 59A of the Act, it would take the Physical Research Laboratory outside the purview of the Gujarat University Act. The learned single Judge also held that the impugned notice of termination would fall within the purview of Sub-section (2) of Section 51A and in so far as the petitioner was not given any opportunity of showing cause against the proposed termination of his services, nor approval was obtained from the prescribed authority, the impugned notice is vitiated and, therefore, void. The learned single Judge also held that the respondent-Institute, i.e. Physical Research Laboratory, is an agency and instrumentality of the State and an authority within the meaning of 'State' under Article 12 of the Constitution of India; that the provisions of the Gujarat University Act were applicable to the respondent-Institute and the respondents were bound to follow the provisions of Section 51A(1) and Section 51A(2) of the Gujarat University Act; that the impugned notice of termination was penal in nature and since the procedure prescribed by Section 51A(I) of the Gujarat University Act was not followed, the impugned notice of termination was bad in law and void; that the posts of Visiting Scientists are not temporary posts, created for exigency of the Institute nor were for short period since the petitioner's appointment lasted for more than one year and, therefore, the impugned notice of termination fall within the ambit prescribed in Section 51A(2) of the Gujarat University Act and since the petitioner was not given any opportunity of showing cause against the proposed termination nor approval was obtained from the prescribed authority, the impugned notice is vitiated and, therefore, void; that the impugned notice of termination was clearly founded principally on the irrelevant consideration of the Trade Union activities of the petitioner and was bad in law; that the involvement of the petitioner in the Trade Union activities weighed principally with the authorities in terminating the services of the petitioner and that the other findings made by the Area Chairman about the so-called negligence or disregard of his instructions appear to be merely an apology of grounds. With the above said observations, the learned single Judge held that the impugned notice of termination was vitiated and bad in law and void, since it was founded on impervious and irrelevant considerations which tend to abridge the fundamental rights of the petitioner under Articles 14 and 19 of the Constitution of India.
7. While disposing of the case, the learned single Judge has also given the following directions:
If the authorities of the Physical Research Laboratory on fresh consideration of the case of the petitioner find him suitable for permanent absorption they should consider as to whether the petitioner should be granted all the backwages for the period during which he was out of employment pursuant to the notice of termination, and if yes, to pay the balance amount which has been already paid to him pursuant to the interim arrangement recorded by this Court vide its order of December 26, 1979. In case the authorities find that the petitioner is not suitable for permanent absorption in the establishment of Physical Research Laboratory, the petitioner would not be entitled to claim any further amount on account of backwages besides what has been already paid to him under the aforesaid interim arrangement.
8. The respondent in Letters Patent Appeal No. 38 of 1984, has filed Letters Patent Appeal No. 49 of 1984, questioning certain observations and findings given by the learned single Judge in Special Civil Application No. 3337 of 1979.
9. The observations and findings of the learned single Judge, which are questioned in Letters Patent Appeal No. 49 of 1984, are that the learned single Judge, having quashed the impugned notice of termination, observing that it was founded on impervious and irrelevant consideration and the same abridges the fundamental right of the petitioner under Articles 14 and 19 of the Constitution, wrongly found that: (a) the contention to the effect that there should be a permanent absorption on the establishment of the Physical Research Laboratory, which is extended as a matter of policy and invariable practice to all Visiting Scientists, who have completed their doctoral programme in the Physical Research Laboratory, is a disputed question of fact, which is difficult of being resolved merely on (he basis of the affidavits and that, therefore, the thrust of the petitioner's contention is not warranted; (b) that the opinion of the Area Chairman and the Director regarding the research work of Mukul Sinha cannot be said to be absolutely unwarranted and that it cannot, therefore, be urged successfully that these considerations were non-existent or irrelevant; (c) that the Management should consider the absorption of Mukul Sinha on the permanent establishment of Physical Research Laboratoiy by treating him as if he is in service as a Visiting Scientist; and (d) that if the authorities of the Physical Research Laboratory, on fresh consideration of the case of Mukul Sinha, finds him suitable for permanent absorption, they should consider as to whether Mukul Sinha should be granted all the backwages for the period during which he was out of employment pursuant to the notice of termination and if yes, to pay the balance amount of the wages after adjusting the amount which has been already paid to him pursuant to the interim arrangement recorded by this Court, vide its order dated 26th December, 1979. The above said findings are questioned on behalf of Mukul Sinha in Letters Patent Appeal No. 49 of 1984, contending that the learned single Judge, having set aside the impugned notice of termination, should have held that, by practice and policy of the Physical Research Laboratory, Ph. D. student of Physical Research Laboratory should be absorbed as Research Associate, that the finding of the Area Chairman is based on irrelevant and non-existent ground, that Mukul Sinha should have been reinstated in services as a Visiting Scientist and that full backwages ought to have been granted by the learned single Judge.
10. In respect of the abovesaid contentions raised in Letters Patent Appeal No. 49 of 1984, Mr. Girish Patel, the learned Counsel appearing for Dr. Mukul Sinha, who is the appellant in Letters Patent Appeal No. 49 of 1984, advanced arguments, which we will refer hereinafter.
11. Mr. G. Ramaswamy, the learned Additional Solicitor General appearing for the appellants in L.P.A. No. 38 of 1984, contended that the learned single Judge committed an error in holding that Dr. Mukul Sinha's appointment was not temporary, that the termination of his service was for Trade Union activities and, therefore, by way of punishment, that, in any case, it amounted to termination as contemplated by Section 51A(2) of the Gujarat University Act, 1949 and that P.R.L. is 'State' within the meaning of Article 12 of the Constitution. He contended that in this case, the contract of employment came to an end by efflux of time and hence, it does not amount to termination as envisaged by Section 51A of the Act. He submitted that inasmuch as the employment came to an end by efflux of time it is neither dismissal nor termination. He further contended that, in that view of the matter. Dr. Mukul Sinha has no right either to ask for reinstatement or for any other relief on the ground of wrongful termination of service. The learned Additional Solicitor General also contended that Dr. Mukul Sinha's appointment was temporary and, therefore, Section 51A(2) cannot apply to his case in view of the proviso to the said Sub-section. He further contended that Dr. Mukul Sinha was relieved by virtue of the contract coming to an end and, therefore, the question as to whether P.R.L.'s action is arbitrary or not does not arise. Even if it arises, on the facts of the case he contended that there is no arbitrariness nor does it cast any stigma on Dr. Mukul Sinha. He also submitted that in view of the correct legal position, the facts of the case and the pleadings no order regarding considering Dr. Mukul Sinha for permanent absorption can be passed.
12. On the other hand, it was contended by the learned Counsels appearing for Dr. Mukul Sinha that the learned single Judge has correctly interpreted Section 51A and rightly held that in view of the facts and circumstances of the case, Sub-section (1) of Section 51A and Sub-section (2) of Section 51A apply. It was further contended by them that Physical Research Laboratory is a recognised institution and that Dr. Mukul Sinha was a member of the staff of the recognised institution. They further submitted that the termination was brought about by the positive act of the employer as a penal measure due to the fact that Dr. Mukul Sinha was connected with the Labour Union movement They further contended that even assuming that the termination is due to efflux of time, it is 'termination' as envisaged under Section 51A(2) of the Gujarat University Act as the word 'termination' occurs without any qualification and it should be given a wide meaning so as to achieve the object of giving protection to the employee by way of security of his tenure. They also contended that looking to the nature of the institution, persons employed as Visiting Scientists, type of work to be done and the consistent practice of absorbing all Ph.Ds. of P.R.L. origin, Dr. Mukul Sinha's appointment cannot be said to be temporary in the context of Section 51A(2) of the Act and, therefore, the proviso does not apply to his case. They also submitted that in view of the facts and circumstances of the case, P.R.L.'s action must be regarded as arbitrary and, therefore, violative of Arts. 14 and 16 of the Constitution. It was also contended that even though P.R.L. is 'State' for the purpose of Articles 12, 14 and 16 of the Constitution, Section 59A of the Act can have no application because it applies to institutions maintained by the State Governments and not by the Central Government and to those institutions only which are wholly owned or maintained by the State Governments.
13. In reply to the appeal filed by Dr. Mukul Sinha, it was contended by Mr G.N. Desai that the material on record would not justify the conclusion that persons appointed as Visiting Scientists have a light to be absorbed on a permanent post or that, there is a consistent practice to that effect. He further contended mat as Dr. Mukul Sinha's case is not covered either by Section 51A(1) or Section 51A(2), no order regarding his absorbing on a permanent post or payment of backwages can justly be passed in his favour and whatever has been paid to him under the interim orders of the Court should be ordered to be refunded to P.R.L.
14. In view of the rival contentions, the first point which arises for our consideration is whether in a case where employment is a matter of contract and for a limited period and comes to an end by efflux of time, it can be said to be termination of service as contemplated by Section 51A of the Act. In order to appreciate this contention, it is necessary to set out Sections 51 and 51A which are relevant for this purpose. Section 51 reads as follows:
51. Save as otherwise provided by or under this Act, every salaried officer and teacher of the University shall be appointed under a written contract. The contract shall be lodged with the Registrar of the University and a copy thereof shall be furnished to the officer or teacher concerned.
Section 51A reads as follows:
51 A. (1) No member of the teaching other academic and non-teaching staff of an affiliated college and recognised 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 inflicted on him, and
(b) the penalty to be inflcted 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-section (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.
Section 51 of the Act provides that every salaried officer and teacher of the University shall be appointed under a written contract. Section 51A(1) of the Act lays down the procedure for dismissal, removal, or reduction in rank of the member of the teaching, and non-teaching staff of the affiliated college or recognised or approved institution of the University. Sub-section (2) of Section 51A provides for termination of service not amounting to dismissal or removal, failing under Sub-section (1). Relying upon these provisions and the fact that Dr. Mukul Sinha was appointed as a Visiting Scientist for a fixed period of one year, which was, later on, extended for one year more, the learned Additional Solicitor General contended that the contract of employment came to an end by efllux of time and, therefore, there is no termination of his service as contemplated by Section 51A of the Act. He submitted that Section 51A cannot be made applicable to an employment for a limited period fixed by contract because such an employment comes to an end by efflux of time. He submitted that when an employment comes to an end by efllax of time, it merely becomes a fact of termination and not an act of termination. He submitted that the plain language of the section suggests that it will apply to an act of termination and it does not apply to a fact of termination. He first drew our attention to Section 51 of the Act, which provides that every salaried officer and teacher of the University shall be appointed under a written contract. He submitted that this provision clearly indicates that the conditions of service are to be governed by the terms of the contract and the relationship of the employee and employer is purely contractual. Then referring to Section 51A(1), he submitted that it implies an act on the part of the employer, whereby the employment is terminated. Referring to Sub-section (2), he submitted that the words 'proposed termination' in Clause (a) of Sub-section (2) indicate a positive action on the part of the employer for the purpose of terminating the service of the employee. Proposed termination would mean that the employer purposes to terminate an employee's services, which would have otherwise continued till the expiry of the contract. He also submitted that the provision of giving a reasonable opportunity of showing cause and holding an enquiry also supports his contention that the termination of service is as a result of a positive act of the employer. He submitted that in a case where employment comes to an end by efflux of time because the contract of employment itself comes to an end, it would be futile to provide for holding of an enquiry and giving an opportunity of showing cause because there would be hardly anything that the employee can say in such a case, particularly in view of the fact that he had entered into the contract with his open eyes. He also sought support from clause (b) of Sub-section (2), which provides for approval by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in that behalf. He submitted that in a case where the employment comes to an end by efflux of time, i.e. because contract of employment itself comes to an end by efflux of time, the Legislature could not have intended that Vice-Chancellor's approval should be obtained so as to make the termination of service valid, because in such a case, there would be hardly any justification for the Vice-Chancellor to refuse to grant approval sought for. He submitted that this requirement of obtaining approval could have been intended by the Legislature only against some positive act of the employer so as to enable him to decode whether the reason for termination is proper or not. In view of the language used in Sub-section (2) and the two requirements contained therein; it was submitted by the learned Additional Solicitor General that the only object of the Legislature appears to be to give protection to an employee so long as the contract of employment subsists and his service is proposed to be terminated during the subsistence of the contract. He submitted that as the Legislature permits entering into a contract, and also excludes operation of Section 51A(2) by providing that nothing in that sub-section shall apply to any person, who is appointed for a temporary period only, it should be held that where a person is appointed for a short fixed period only and his employment comes to an end because of efflux of time, even Sub-section (2) of Section 51A will have no application at all.
15. On the other hand it was contended by the learned Counsels for Dr. Mukul Sinha that even if the employment comes to an end because of efflux of time, it must be held that the employment has come to an end as a result of an act of the employer. They submitted that fixing the term of the employment at the time of entering into the contract of employment is an act of the employer taken in advance and if the result of such an action taken in advance is cessation of relationship of employer and employee, it must be regarded as termination of service. They also submitted that the word 'termination' has been used in Sub-section (2) without any qualification and, therefore, there is no good reason why it should be interpreted as termination by employer. They also submitted that the word 'termination' is of wider amplitude, which also means cessation of relationship of employer and employee. It was submitted that in view of the object of Section 51 A, namely giving protection to the employes against unfair termination of his service, wide meaning should be given to the word 'termination' in order to achieve the object of the said section. They also contended that if such a wide meaning is given to the word 'termination', it will not be inconsistent with the language used in Sub-section (2). Giving an opportunity of hearing is not anti-thetical to simple termination. They further submitted that if this wide meaning is not given, employers would use fixed term appointments as a device to frustrate the object of the said section. It was also contended that looking to the nature of the constitution, the object of appointing Visiting Scientists, the work to be performed by them and the consistent practice followed by the P.R.L., appointment of Dr. Mukul Sinha cannot be said to be an appointment for a fixed term only, but it was an appointment with a right of absorption or a right to be considered for absorption or a permanent basis. In view of this nature of appointment, it must be held that there was a termination of his service, even though the contract of appointment came to an end by efflux of time.
16. We will now consider the case law relied upon by the learned Counsels.
17. In the case of R. v. Secretary of State for Social Services ex-parte Khan, reported in 1973 (2) All England Law Reports 104, the Court of Appeal, had an occasion to consider the word 'termination'. In that case, one Dr. Khan was appointed for two years in the first instance. This was on 22nd July, 1970. On 19th October, 1970, the Secretary to the Hospital wrote:
I am instructed by the North East Metropolitan Regional Hospital Board to offer you an appointment of whole-time Assistant in Geriatrics to Southend-on-Sea Group of Hospitals from 26th July, 1970, subject to the terms and conditions of service of Hospital medical/dental staff and to the provisions as to superannuation from time to time in force. The appointment is for a period of two years in the first instance, renewable, subject to confirmation for an indefinite period.
Dr. Khan accepted the appointment offer in that letter and entered on his work as Medical Assistant to the consultant in Geriatrics. On 21st April, 1972, the Secretary to the Hospital Board wrote to Dr. Khan saying:
I have to inform you that the Board at their meeting on 19th April, 1972 decided that your appointment as Medical Assistant in Geriatrics to the Southend-on-Sea Group of Hospitals should not be confirmed at the end of your two years' service on 25th July, 1972.
Dr. Khan considered this as dismissal and contended that has appointment was being unfairly terminated. For this, he relied upon Paragraph 190 of the terms and conditions of his service. The Court of Appeal, considering the words 'he is being unfairly terminated', held that it points to some positive action on the part of the Board by way of termination, such as by giving notice or shirking out as distinct altogether from automatic coming to an end. According to the Court of Appeal, Dr. Khan's appointment automatically came to an end at the expiry of 2 years. It has been further held by Buckley L.J. that the word 'terminated' is used in this passage in Para 190 in the transitive sense, and it postulates some act by somebody to bring the appointment to an end, and is not applicable to a case in which the appointment comes to an end merely by efflux of time. Mr. N. J. Mehta distinguished this decision by stating that the Court of Appeal was construing the expression 'is being unfairly terminated' and the paragraph which contained the heading 'notice of termination' and sub-heading 'representations against dismissal' also used the expression 'decision to terminate the appointment', and the words 'before the expiry of the notice given', which clearly shows that the paragraph referred to employment terminated by notice and not by automatic ending. Mr. Mehta further contended that the statutory context of Section 51A is entirely different. In support of his contention, Mr. Mehta cited the decision in the case of The State Bank of India v. Shri N. Sundara Money. In that Supreme Court decision, Section 2(00) of the Industrial Disputes Act, 1947 came to be discussed. Taking this welfare legislation into consideration, the Supreme Court interpreted the words 'the termination by the employer of the service of a workman for any reason whatsoever' and came to the conclusion that the termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. The Supreme Court also held that pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. By analogy, Mr. Mehta submitted that even termination by efflux of time is termination as contemplated under Section 51A of the Guarat University Act. Since there cannot be any permanent appointment or ad hoc appointment or temporary appointment in the post of Visiting Scientist as contemplated in the decision in the case of The State Bank of India v. Shri N. Sundara Money reported in : (1976)ILLJ478SC , it cannot be made applicable to the facts of this case.
18. Mr. G. Ramaswamy cited the decision in the case of Buckingham 'end Carnatic Co. Ltd. v. Venkatiah and Anr. reported in : (1963)IILLJ638SC . In this decision, the Supreme Court, interpreting Standing Order No. 8(ii) in relation to Section 73(1) and Section 85(d) of the Employee's State Insurance Act, held that termination was not the result of any positive act or order on the part of the employer and so, to such a termination, the prohibition contained in Section 73(1) was inapplicable. In that case, Standing Order No. 8(ii) read as follows:
Absent without Leave: Any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the Company's service without notice thereby terminating his contract of service. If he gives an explanation to the satisfaction of the Management, the absence shall be converted into leave without pay or dearness allowance.
Any employee leaving the Company's service in this manner shall have no claim for re-employment in the Mills.
But if the absence is proved to the satisfaction of the Management to be one clue to sickness then such absence shall be converted into medical leave for such period as the employee is eligible with the permissible allowance.
Considering this Standing Order and the fact that contravention of Section 73(1) is made penal by Section 85(d), the Supreme Court held that it would not be reasonable to put the widest possible connotation on the word 'discharge' in Section 73(1). The word 'discharge' in Section 73(1) must, therefore, in the context, be taken to be a discharge with is the result of a decision of the employer, embodied in an order passed by him. It may conceivably also include the case of a discharge where discharge is provided for by a Standing Order. In such a case, it may be said that the discharge flowing from the Standing Order is, in substance, discharge brought about by the employer with the assistance of the Standing Order. Even so, it cannot cover the case of abandonment of service by the employee, which is inferred under Standing Order No. 8(ii). the Supreme Court held that the High Court was not justified in taking the view that the termination of Venkatiah's services under Standing Order No. 8(ii) to which the appellant has given effect by refusing to take him back, contravenes the provisions of Section 73(1).
19. Mr. N.J. Mehta distinguished this decision by stating that in the above said ruling, the Supreme Court construed Section 73 of the Employee's State Insurance Act to provide a moratorium on penalties during sickness period, and held that such moratorium cannot be invoked in the case of an employee, who is deemed to have abandoned service by virtue of continued absence under the Standing Orders. According to Mr. Mehta, the Supreme Court placed the above construction on account of the fact that the violation of Section 73 was made an offence. It is further submitted by Mr. Mehta that the language of Section 51A(2) of the Gujarat University Act is entirely different and that merely because the case of abandonment of service is held by the Supreme Court to be not within the purview of Section 73 of the E.S.I. Act providing for moratorium on levy of penalties, it cannot be inferred that a fixed term appointment is not covered within the expression 'termination' in Section 51A(2).
20. In this decision, it has been specifically held that the word 'discharge' in Section 73(1) must, therefore, in the context, be taken to be a discharge which is the result of a decision of the employer embodied in an order passed by him. It may conceivably also include the case of a discharge where discharge is provided for by a Standing Order. In such a case, it may be said that the discharge flowing from the Standing Order is, in substance, discharge brought about by the employer with the assistance of the Standing Order. This decision further holds that even so, it cannot cover the case of abandonment of service by the employee which is inferred under Standing Order No. 8(ii). From this decision, it is clear that if the employment of the employee comes to an end without intervention of the employer, it cannot be construed either as discharge or termination. There is no question of any decision of the employer as such involved in such cases. In the present case also the appointment is for a fixed period, which appointment, even according to Dr. Mukul Sinha, is not a permanent one for the purpose of absorbing the appointee in that post, and, therefore, its coming to an end cannot be construed as the act of the employer, since Dr. Mukul Sinha was only relieved from his duties after office hours on 31st December, 1979.
21. The next decision cited by Mr. Ramaswamy is the case of The Management of Associated Traders and Engineers Private Limited v. Its Workman Shri Basant Lal Bhambri and Anr. reported in 1972 Labour & Industrial Cases 126. In this decision, a Bench of the Delhi High Court held as follows:
Where the service of a worker was for a fixed period, at the end of the period, a notice of termination was not required as his services came to an end with the expiry of the contract period and no termination was involved. Both parties had notice on the commencement of the service, that it was to come to an end on the expiry of the limited period. It is a case of automatic discharge of the employee after the completion of the contract period of service. It was not necessary to serve the worker with a separate notice under Section 30.
22. Mr. N.J. Mehta contended that the principle laid down in this decision is no more good law after the decision in the case of The State Bank of India v. Shri N. Sundara Money reported in AIR 1976 SC 1111.
23. Mr. Ramaswamy next cited the decision in the case of Avtar Singh v. Medical Superintendent, Rajidra Hospital reported in 1983 (2) SCC 298. In this decision, the Supreme Court had an occasion to consider two appeals filed by the appellant. In the first appeal, the appellant questioned termination of his services as House Physician. The appellant therein was appointed as a House Physician for a term of six months commencing from July 1, 1981 and ending with December 31, 1981. The appellant's services were terminated with immediate effect by the order of the Medical Superintendent, Rajindra Hospital, dated 21st September, 1981 on the ground of his unsatisfactory conduct. This termination was challenged by the appellant before the lower forum and also before the High Court. He did not meet with success in these proceedings. On appeal, the Supreme Court held that even if the order is set aside, the appellant cannot join his house job as his term had expired and, therefore no relief could be given in the first appeal. Thus, the Supreme Court upheld the fixed term appointment and refused to give relief on the ground that as per the fixed term appointment, the job of the appellant therein had come to an end.
24. In the case of The Managing Committee, Mahavir Ucha Vidyapiths v. Baishnab Charan Nayak and Ors. reported in 1979 Labour and Industrial Cases (NOC) 21,' cited by Mr. G. Ramaswamy, the Orissa High Court, considering Section 10A(I) of Orissa Education Act and Rule 18 of Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, held that a teacher of an aided institution, appointed no temporary basis for a fixed period can be discharged from service after the lapse of the fixed period. Such a discharge, according to the Orissa High Court, does not amount to termination within the meaning of the abovesaid Section and Rule. Mr. G. Ramaswamy, by analogy, stated that even in the present case, the appointment of Dr. Mukul Sinha is for a temporary period and it came to an end by efflux of time.
25. In the case of Prabhat Kumar Mukherjee v. State of Bihar and Ors. reported in 1969 SLR 470, cited by Mr. G. Ramaswamy, the Supreme Court had occasion to consider the termination of services of the appellant therein by the Chairman of the Trust. In that case, the appellant therein was appointed by virtue of a contract for a period of two years. In the contract, there was a stipulation that concurrence of the Public Service Commission would be necessary to the appointment. Since the Public Service Commission did not give its concurrence, services of the appellant came to be terminated. In that case, it was found that by resolution dated January 8, 1968, the Trust has said that the appointment of the appellant should be made, though the Public Service Commission has refused to concur to the appointment. In view of this resolution, the Supreme Court held that there was no contractual term between the parties requiring the concurrence of the Public Service Commission to the appointment. On this ground the Supreme Court held that writ of mandamus cannot be issued ordering the reinstatement of the appellant to the post of Chief Engineer of the Trust due to the fact that the appointment of the appellant was a matter of contract and further, it is for a period of two years only, and that the said period of two years as per the contract has already expired. No doubt, the Supreme Court, on the other point, gave a declaration that the order of the State Government and the order of the Chairman of the Trust are illegal. Thus, it is clear from this decision also that the appointment by a contract for a fixed term will come to an end after lapse of the term fixed by the contract and that no writ will be granted for reinstatement in service.
26. The last decision cited by Mr. G. Ramaswamy in this connection is the case reported in 1984 Kerala Law Times 42. In that decision Mr. G. Ramaswamy read Paragraph 27, which reads as follows:
27. The petitioner was appointed on contract basis. She was appointed for a fixed term and her service was terminable with one month's notice on either side. In this case, she was allowed to serve for the contractual period. Exhibit 24, the impugned order only alerted her that her services were not required beyond the expiry date'. Even without Exhibit 24, her service would have ended on the term of the appointment order issued. In this view there is no violation of any fundamental right of the petitioner.
In that decision, in Paragraph 28, it has been further held that:
28. The petitioner's Counsel, however, contends that person appointed on Contract basis, persons similarly situate, were given extension of their term and therefore the non-extension of service to the petitioner was contrary, attracting Articles 14 and 16 of the Constitution. He also presses into services the Air Port Authority's case. There is no complaint that at the threshold of contract when the contact was made, there was any arbitrary deal. The post was advertised applications were called for and then only appointments were made. It was made known to all the candidates that the contract was only for a particular period. With open eyes, the petitioner applied. She knew her services would be terminated as the end of the contractual period. Her services were terminated by enforcing the terms of her contract. An enforcement of the clauses in her contract of service cannot spell arbitrariness to attract Article 14 when the Management in other cases renewed their contracts. The petitioner cannot compel the Management to retain her in service beyond the duration of the contract Her termination does not violate any rule or regulation made by the Management, If she has a case that there was any violation of the provisions of the Industrial Disputes Act, she has a remedy under this Act. Her remedy is not under Art 226 of the Constitution.
27. The above case law makes it clear that the word 'termination' must be given that meaning which the context in which it is used requires. Therefore, merely because the word 'termination' has been used without any qualification, it cannot be interpreted widely as contended on behalf of the employee. To decide what meaning can be given to that term, we will have to turn to the section itself. No doubt, the object of the section will have to be kept in mind, but what is more relevant for this purpose is the language and the content of the section itself. After carefully considering the scheme of Section 51A and the rival contentions in this behalf, we are of the opinion that there is much substance in what the learned Additional Solicitor General has contended.
28. Sub-section (1) of Section 51A deals with a case where the employer Wants to dismiss, remove or reduce in rank his employee. Obviously that implies a positive act on the part of the employer, while the employment subsists. Sub-section (2) provides for termination of service otherwise than by dismissal or removal. In our opinion, the words 'proposed termination' used in Clause (a) of Sub-section (2) of Section 51A clearly imply an act on the part of the employer during the subsistence of the employment. When the employment is about to come to an end as a result of expiry of the term of the contract, the employer does not propose to do anything. It is not as a result of the proposed action of the employer that the employment will come to an end in such a case. As a result of efflux of time, the employment comes to an end automatically. Therefore, the words 'proposed termination' must mean an act on the part of the employer, as a result of which there is a termination of service and but for such an act, employment would have continued. We are also of the opinion that the two requirements, namely giving of a reasonable opportunity of showing cause against the proposed termination and obtaining approval from the Vice-Chancellor, are also indicative of the fact that what is intended by the section is termination by an act of the employer during the subsistence of the contract. It is with a view to providing a check upon exercise of the power of termination during the subsistence of the contract that such a provision has been made. That, in our opinion, is the legislative intent and object of the section. It is, therefore, not possible to agree with the contention raised on behalf of Dr. Mukul Sinha that the object of this section is to give protection against all types of termination. The language used in Sub-section (2) is more consistent with the interpretation suggested by the learned Additional Solicitor General, which we are inclined to accept, than the interpretation suggested by the learned Counsels appearing for Dr. Mukul Sinha. We, therefore, hold that the word 'termination' used in Sub-section (2) means termination by an act of employer during the subsistence of the contract of employment. It will not, therefore, include a case where the service or employment comes to an end as a result of the contract itself coming to an end by efflux of time. In view of this if we come to the conclusion, on facts, that Dr. Mukul Sinha's service came to an end as a result of efflux of time, then obviously it must be held that Section 51 has no application to his case. On facts, it was contended by the learned Additional Solicitor General that the appointment of Dr. Mukul Sinha as a Visiting Scientist was for a period of one year from 1-1-1978. By a separate order dated 30th December, 1978, appointment of Dr. Mukul Sinha was extended for a period of one year with effect from 1st January, 1979. As P.R.L. found that Dr. Mukul Sinha's continued association with P.R.L. was not in the interest of P.R.L. and a decision was taken to terminate his services since his term of extension was to come to an end. Accordingly, the Administrative Officer, by a letter dated 2nd November, 1979, informed Dr. Mukul Sinha that he was to be relieved from his duty from the close of office hours from 31st December, 1979. What is submitted by the learned Additional Solicitor General is that this is not an order of termination, but it is merely a relieving order or an intimation to that effect and in fact and reality. Dr. Mukul Sinha was relieved because his appointment was for a fixed period of one year and as the said contract came to an end by efflux of time. It is submitted that the said letter only recorded the fact of termination and it cannot be termed as an act of termination by P.R.L.
29. On the other hand what was contended by Mr. N.J. Mehta, learned Counsel for Dr. Mukul Sinha, was that his services as a Visiting Scientist were terminated by an act of P.R.L. and that too, by way of victimisation or punishment and, therefore, it is not correct to say that his services came to an end by mere efflux of time. He invited our attention to Standing Order No. 18(ii) of P.R.L. which provides for appointment of Visiting Scientists initially for one year. This, according to the learned Counsel, indicates the continuance of Visiting Scientists, with a view ultimately to absorb him in an appropriate cadre, after assessing his suitability. Our attention was also drawn to the letter of Area Chairman Mr. John dated 20th November, 1978, wherein it is stated that Dr. Mukul Sinha is highly motivated and displayed original thinking and that his association with his experimental group in the past one year was even mutually beneficial. After stating so, Mr. John strongly recommended Dr. Mukul Sinha's absorption in an appropriate permanent cadre in P.R.L. No doubt, the Director, by his letter dated 15th January, 1979, deferred the decision regarding absorption of Dr. Mukul Sinha and extended his service for one year until 31st December, 1979.
30. Subsequent to that direction given by the Director, the Area Chairman Mr. John, by his Note dated 26th October, 1979, observed:
I have come to the unhappy conclusion that his continued association with the Laboratory would be detrimental to the interests of the Experimental Plasma Physics Group and the Laboratory as a whole. I fully concur with your earlier decision and recommend that his services may be terminated when his terms of extension comes to a close.
31. This Note of the Area Chairman, Mr. John, was followed by the impugned notice dated 2nd November, 1979, issued by the Administrative Officer of P.R.L. stating that Dr. Mukul Sinha is relieved from his duties effective from after the office hours on 31st December, 1979. After reading this factual position, Mr. N.J. Mehta submitted that the impugned notice is clearly on the basis of the finding of negligence in performance of his duties and the involvement of Dr. Mukul Sinha in Trade Union activities which were recorded by P.R.L. as detrimental to P.R.L. as a whole. Hence, according to Mr. Mehta, termination of the services of Dr. Mukul Sinha in the above circumstances cannot be said to be by efflux of time, but must be regarded as by way of punishment. The exact assessment of Dr. Mukul Sinha's performance and the opinion of the Area Chairman dated 26th October, 1979, reads as follows:
I have been carefully watching his performance during the past 10 months and my assessment of his work during this period is given below:
(1) Dr. Sinha has completely neglected the responsibilities on doing theoretical work on developing models of beam-plasma interaction.
(2) Although he had suggested a concept of using electron cyclotron reasonance to develop a microwave radiometer, he did not follow this in terms of designing the experimental system, in spite of my specific request to do so.
(3) Dr. Sinha's involvement in activities outside his scientific assignments has been growing steadily, despite the fact that I had advised him against this, considering the ill effecte this has on his scientific performance and on the overall performance of the group.
Considering all these facts in their total perspective, I have come to the unhappy conclusion that his continued association with the Laboratory would be detrimental to the interests of the Experimental Plasma Physics Group and the Laboratory as a whole. I fully concur with your earlier decision and recommend that his services may be terminated with his term of extension comes to a close.
On the report of the Area Chairman, the Director passed the following order:
I agree with Dr. John's recommendations. Relieve from his duties on expiry date.
This Note is dated 29-10-1979. On 2nd November, 1979, the impugned notice relieving Dr. Mukul Sinha from his duties with effect from 31st December, 1979, came to be issued.
32. In order to appreciate the rival contentions, we have to analyse the material on record and ascertain facts regarding appointments as Visiting Scientists by P.R.L. P.R.L. is a research oriented institution, mainly devoting itself for space research and other research which is of great value to the Nation at large. It trains research scholars and awards doctorates in various subjects. From the affidavit filed by the P.R.L., it is seen that P.R.L. is having a scheme of giving an opportunity to young scientists to orient themselves in various scientific disciplines according to their capabilities and choice and give chance to such students to work at the P.R.L. as Visiting Scientists. The appointment as a Visiting Scientist acts as a stepping stone in the career of aspiring young scientists and those who work with zeal and dedication can progress well in attaining their scientific goals. The appointment as a Visiting Scientist is thus for a limited period ranging from one year to two years and in exceptional cases upto a period of three years. During his stay as a Visiting Scientist, the student carries out research on assigned project or projects of his or her choice and such student is offered a consolidated salary commensurate with his/her qualifications and experience. This post is routinely offered to all students who have done their Ph.D. at the P.R.L. The appointment as Visiting Scientist at the P.R.L. is not limited only to students of P.R.L. who have submitted thesis, but to other deserving candidates from outside are also appointed as Visiting Scientists. During the period of appointment as Visiting Scientists, if the candidate is found to have exhibited adequate capabilities and motivation to do scientific research, and if he is found to be sincere in performance and if vacancy is available in the area of his study, such candidate is some times offered a permanent position in the Laboratory. However, this is neither a matter of course nor a matter of right, but entirely within the direction of the P.R.L., depending purely on merits and suitability of the candidate. If a student or a Visiting Scientist is not found upto the mark and is not found suitable for appointment on the permanent basis, an indication is made to him that he may not have any future in the P.R.L., in which case, ordinarily, a Visiting Scientist voluntarily tenders his resignation and seeks his future, elsewhere.
33. What is contended by Mr. N.J. Mehta is that appointment as a Visiting Scientist is a stepping stone for being absorbed in the permanent post in the Laboratory in the field in which that particular Visiting Scientist is found to be proficient. According to Mr. Ramaswamy the learned Additional Solicitor General, there is no question of getting any permanent post as of right nor the offer of appointment as a Visiting Scientist is a stepping stone to get permanently absorbed in the P.R.L. He further states that P.R.L. is one institution of its kind in the entire Country and it is a unique institute of National relevance and international repute. The scientist working at the P.R.L. are all experts in their respective fields and the very appointment on the permanent basis at the P.R.L. adds to their status, dignity and recognition in the field. Therefore, it is the bounden duty on the part of the Management of the P.R.L. to select most promising, eligible and suitable persons for absorption on permanent basis at the P.R.L. and in the nature of things absorption of Visiting Scientist on permanent basis during their tenure as Visiting Scientists cannot be a matter of course or a matter of right but purely a matter of selection depending on diverse factors like their over all performance, their suitability, competability and the foremost of all, their devotion to science.
34. It is not the case of Mr. N.J. Mehta that the Visiting Scientist will be absorbed on a permanent basis as a Visiting Scientist, but he states that the appointment as a Visiting Scientist is a stepping stone to be absorbed in P.R.L. as a Research Associate or in any other post equal to that, in the Laboratory.
35. Mr. N.J. Mehta accepts that the post of Visiting Scientist is not a permanent post wherein Dr. Mukul Sinha can be absorbed.
36. From the facts set out above, it becomes clear that Dr. Mukul Sinha was appointed as a Visiting Scientist with effect from the forenoon of 1st January, 1978 at a consolidated salary of Rs. 1,000/- per month for a period of one year with a specific statement that no other allowances are admissible to Dr. Mukul Sinha. This letter of appointment is dated 10th January, 1978. The next letter, continuing the appointment of Dr. Mukul Sinha, is dated 30th December, 1978. As per this letter, appointment of Dr. Mukul Sinha, as a Visiting Scientist was extended for a period of one year on the same consolidated salary of Rs. 1,000/- per month with effect from 1st January, 1979. This letter also specifically states that, no other, allowances are admissible to Dr. Mukul Sinha, Dr. Mukul Sinha by his letter dated 8th January, 1979, interpreted the extension of appointment dated 30th December, 1978 as one given in lieu of permanent employment. Nevertheless, Dr. Mukul Sinha said that he may be given a job in the experimental Plasma Group. This letter clearly indicates that Dr. Mukul Sinha never intended that he should be confirmed as a Visiting Scientist, but wanted a job in the Experimental Plasma Group as if he is entitled to get such a job after the period of appointment as Visiting Scientist is over. Then came the letter, Annexure 'E', which is impugned in the Special Civil Application. The said letter is dated 2nd November, 1979. This simply states that Dr. Mukul Sinha is relieved of his duties with effect from 31st December, 1979. Reading this letter, it is clear that, by efflux of time as prescribed in the appointment order referred above. Dr. Mukul Sinha was relieved of his duties.
37. As per the terms of the contract, Dr. Mukul Sinha's employment was continued upto 31st December, 1979. It was to come to an end automatically without anything further on the part of the P.R.L. The P.R.L. allowed the contract to run its full term. Whatever might have been the reason for not extending the period of employment the fact remain that P.R.L. did not want to put an end to the contract and bring the employment to a premature end. It wanted the employment to come to an end at the end of the contractual period, i.e. by efflux of time. On the facts of this case, we have no doubt that the employment of Dr. Mukul Sinha came to an end by efflux of time and not as a result of any act of termination, by the P.R.L. We are, therefore, of the view that Section 51A has no application to the facts of the case.
38. As we are of the opinion that Dr. Mukul Sinha's employment came to an end because of the expiry of the term of the contract, it is really not necessary to go into the question as to whether appointment of Dr. Mukul Sinha can be said to be for a temporary period, in which case proviso to Sub-section (2) of Section 51A will exclude application of the main provision, but, on the assumption that we are not right in our said conclusion and as this point was canvassed before us, we now proceed to deal with the same. The learned Additional Solicitor General contended that the word 'temporary' means 'a short period'. Therefore, it should be held that the proviso deals with appointments made for short periods. He submitted that if the appointment is for an indefinite period or for a long period, then, in that case, the proviso will not apply, but in all other cases, i.e. where appointment is for a short and fixed period, the proviso will apply and exclude application of the main provision contained in Sub-section (2). He further contended that the words 'any person who is appointed for a temporary period only' are used in the context of the dichotomy of a permanent employee and a non-permanent employee, i.e. a temporary employee. On the other hand, it was contended by Mr. N.J. Mehta and Mr. Girish Patel that the word 'temporary' also means 'for a passing need' and that is the proper meaning to be given to that word in view of the fact that the object of Section 51A is to give protection to an employee by way of security of his tenure and the proviso seeks to take away that protection. Appointment for a short period need not be because of a temporary need. It may be for a short period because the person concerned may be required for a small project or for a specific work. There can be many other reasons. Therefore, we do not see any justification for giving such a narrow meaning to the word 'temporary' as suggested by the learned Counsels of Dr. Mukul Sinha. It was also contended that Dr. Mukul Sinha's appointment cannot be regarded as for a temporary period because of the peculiar nature of P.R.L. and the peculiar nature of appointment of Dr. Mukul Sinha. It was submitted that it is a result oriented institution and its object is not only to carry on research, but also to produce research scientists. For that purpose, it has adopted a self-generating process, whereby peasons, who are appointed as Visiting Scientists, are trained in research work and P.R.L. also takes advantage of that research. It was contended that the peculiar method which P.R.L. has adopted is consistent with its philosophy of producing research scientists. It was further contended that if in this background it is further appreciated that there has been a consistent policy followed by P.R.L. to absorb all the Ph. Ds. of P.R.L. origin without exception in a permanent set up, then, it will have to be held that the appointment of Dr. Mukul Sinha, just like any other Visiting Scientists, was an appointment with a right of absorption on a permanent post. Correctness of this contention was seriously challenged on behalf of the P.R.L. In that view of the matter, it it necessary to see what are the pleadings in this behalf and what materials have been produced by the parties. Even though it is the case of Dr. Mukul Sinha that Ph. Ds. of P.R.L. origin are absorbed permanently in the institution, in his petition he has come forward with a different version, reading Standing Order No. 28(2), which applies to the staff of P.R.L. it states:
After submitting PhD. Degree thesis, deserving students can be appointed as Visiting Scientists initially for two years on a fixed salary of Rs. 800/- per month.
No doubt, this fixed salary has now been increased to Rs. 1,000/- per month. Dr. Mukul Sinha has further stated that the post of Visiting Scientist is offered to deserving candidates prior to the permanent absorption in P.R.L. According to Dr. Mukul Sinha, the invariable practice of P.R.L. during all these years has been that, after Ph.D., the candidate will be given the post of Visiting Scientist initially for one or two years and that he will be later permanently absorbed in the P.R.L. as a Research Associate. This averment clearly indicates that the practice of P.R.L. is to absorb all the Ph.Ds. in the permanent cadre except those who get scholarship or fellowship from abroad and go to foreign countries for further study or for work. It has been further stated by Dr. Mukul Sinha in his petition that the policy of P.R.L. is to absorb a Visiting Scientist as a permanent faculty member and that there has not been a single case where a Visiting Scientist in P.R.L. is not offered a permanent job except when he goes abroad or decides to take job elsewhere. Hence, the present contention that the Ph.Ds. of P.R.L. origin will be definitely absorbed in the permanent cadre as Research Associate is in contrast to the averment made in the petition.
39. It is the definite case of P.R.L. that Scientists are given an opportunity of working as Visiting Scientists for a limited period, ranging from one year to two years and in exceptional cases three years, that this post is routinely offered to all students, who have done the Ph.D. at P.R.L., and that the said appointment as Visiting Scientist at the P.R.L. is not limited only to students who have submited thesis to P.R.L., but other deserving candidates, who are from outside P.R.L. also. It is the definite case of P.R.L. that if a Ph.D. student, who is a Visiting Scientist, exhibits adequate capabilities and motivation to do scientific research and if he is found to be sincere in performance and if vacancies are available in the area of his study, such candidate is sometimes offered a permanent position in the Laboratory. However, according to P.R.L., this is neither a matter of course nor a matter of right, but entirely within the discretion of the P.R.L., depending purely on merit and the suitability of the candidate. If a student or a Visiting Scientist is not fouad upto the mark and is not found suitable for appointment on the permanent post, an indication is made to him that he may not have any future in the P.R.L. in which case, ordinarily a Visiting Scientist voluntarily tenders his resignation and seeks his future elsewhere.
40. The case of Dr. Mukul Sinha himself is his petition is that all the Ph.Ds., who got the post of the Visiting Scientists are absorbed on permanent basis at P.R.L. We can also advert to the factual absorption in P.R.L. as regards the Visiting Scientists. The P.R.L., in its affidavit-in-reply, filed by one Mr. Jayendra Bogilal Vyas, who is an Administrative officer at the P.R.L., has definitely stated that during the period from 1975 to 1979, about 60 Visiting Scientists have been appointed by the P.R.L. in various areas. Out of these, only 13 have been absorbed on the permanent basis. Five of them were relieved by the P.R.L. on completion of the tenure as Visiting Scientists, three of them were served with notices that their appointment would come to an end on completion of their term and no further extension would be granted. On such intimation being given, they have resigned, 21 had voluntarily resigned for seeking their future elsewhere and the rest of the Visiting Scientists are at present working at the P.R.L. since their period of appointment is still continuing.
41. C.A. No. 83 of 1983 filed in Spl. C.A. No. 3337 of 1979 by Dr. Mukul Sinha, the P.R.L, in its affidavit-in-reply, has categorically denied the practice of permanently absorbing in the P.R.L. candidates who work as Visiting Scientists. It has given Annexure 'T', which was attached to C.A. No. 83 of 1983, wherein the list of Visiting Scientists appointed from 1973 onwards uptill 31-12-1982 is given. There were as many as 49 Ph.Ds. of P.R.L. origin and only 10 have been absorbed permanently. Out of the 41 Ph.Ds. who were working as Visiting Scientists and who got their Ph.D. qualification from some other institutions nine of them only were absorbed in the permanent cadre. In this reply affidavit filed in C.A. No. 83 of 1983, P.R.L. has also categorically refused to furnish the inter-departmental communication between the Area Chairman and the Director as regards the performance of Dr. Mukul Sinha. Continuing further, P.R.L. in this reply affidavit stated as to how the Director has assessed the suitability of the various Visiting Scientists objectively for the purpose of absorbing them permanently at the P.R.L. In this reply affidavit, at paragraph 11, various instances have been quoted, wherein the Director has not accepted the recommendation of the Area Chairman of the Guides/Faculty Members. These instances clearly establish the independent and objective assessment the Director takes for the purpose of absorbing the Visiting Scientists as Research Associates on a permanent basis. In this connection, we are also able to see the order passed by the P.R.L. on 8th October, 1978 in respect of one Miss Nita N. Majmudar. She was the Visiting Scientist of P.R.L. and this order dated 8th October, 1979 reads as follows:
Miss Nita N. Majmudar, Visiting Scientist, is hereby informed that the term of her appointment expires on 31st August, 1979. She is, therefore, relieved of her duties as Visiting Scientist with effect from 31st August, 1979 after office hours. She is eligible for her salary up to and including 31st August, 1979 as due.
42. Mr. G.N. Desai, appearing, for the P.R.L. has also brought to our notice the relieving order given to one Dr. V. H. Kulkarni. This is dated May 31, 1977, whereby Dr. V.H. Kulkarni, Visiting Scientist, was informed that his term of appointment came to an end on 31st May, 1977 and that he was relieved of his duties as Visiting Scientist with effect from 31st May, 1977.
43. We are also able to gather from the reply affidavit filed by one Dr. Dinesh M. Patel, Senior Administrative Officer of P.R.L., which is in reply to the affidavit filed by Dr. Mukul Sinha on 17-1-1988, the following background as to the functioning of P.R.L. As per this affidavit, P.R.L. is an institution meant for scientific research and by the very nature of its functions, it has to train scientists in various fields and see that they leave P.R.L. after they complete such training. P.R.L. is not meant for absorption of all scientists, who are recruited for the purpose of training. When the training is imparted to the scientists, they are given facilities to do Ph.D. and once they complete the Ph. D., they go out. In the same routine, other scientists come and they also go out. It is a continuous process and, therefore, P.R.L. cannot afford to absorb all the Scientists who come to P.R.L. for scientific training and studies. It is impossible for P.R.L. to offer permanent post to every Visiting Scientist. It has also been specifically stated therein that the students who wish to take training are of course given chance to declare their option, but it does not mean that P.R.L. takes students for Ph.D. with an ultimate aim of absorbing them in the permanent post in P.R.L. The above said averments, on behalf of P.R.L., clearly establish the policy, practice, and function as regards the absorption of the Visiting Scientists in the permanent cadre at P.R.L. The discussion in the earlier paragraphs clearly establishes that it is not the policy or practice of P.R.L. to absorb all Ph.Ds. of P.R.L. origin or of any other origin on a permanent post in the institution. The highly sophisticated and scientific organisation like P.R.L. has its own method for recruiting or for absorbing scientists for its research oriented programmes. It is, therefore, not possible to accept the contention that the appointment of Dr. Mukul Sinha as a Visiting Scientist carried with it either a right of absorption or a right to be considered for absorption on a permanent post. On the facts of the case, which have been set out in extenso in the earlier part of the judgment, we are of the opinion that Dr. Mukul Sinha's appointment was for a temporary period. The post of a Visiting Scientist is not a permanent post. Nobody is appointed for a period of more than one or two years and in exceptional cases, for three years. It is also required to be borne in mind that entering into such type of contracts is not illegal and it is nobody's case that P.R.L. entered into the contract with Dr. Mukul Sinha for a period of one year only in the first instance and upto 31st December, 1979 in order to get over any provision of law or avoid any legal responsibility arising out of the relationship of employer and employee. We, therefore, accept the contention of the learned Additional Solicitor General that the appointment of Dr. Mukul Sinha was for a temporary period and, therefore, the proviso to Sub-section (2) of Section 51A will not apply to the facts of this case. In that 'view of the matter. Section 51A(2) will have no application even if coming to' an end of the employment of Dr. Mukul Sinha amounts to termination as contemplated by Section 51A(2).
44. The next question which arises for our consideration is whether on the facts and circumstances of the case, it can be said that Dr. Mukul Sinha's services were terminated by way of punishment. Mr. N.J. Mehta, the learned Counsel appearing for him, submitted that even though Dr. Mukul Sinha's services were terminated with effect from 31st December, 1979 when the contract period expired, it is a case of termination by way of penalty because he was not absorbed on a permanent post in the P.R.L. purely because of the fact that the Management did not like his participation in Labour Union activities. The reason given by the P.R.L. for termination of his services casts a stigma on him and, therefore, also it should be regarded as a case of termination by way of punishment. He submitted that though Annexure 'E', which is challenged in the petition, purports to be a more relieving order, the Court should go be bind the same, lift the veil and find out the real reason for putting an end to the service of Dr. Mukul Sinha. In support of his contention, Mr. N.J. Mehta cited the decision in the case of Jarnail Singh v. State of Punjab reported in AIR 1986 SC 1626. In this decision, the Supreme Court has held:
The mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such a case, will lift the veil and will see whether the order was made on the ground of misconduct/inefficiency or not. In the instant case allegations of serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners were taken in to consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Article 311(2) of the Constitution while considering the fitness and suitability for the purpose of regularising their services in accordance with the Government Circular made in October, 1980. Thus the impugned orders terminating the services of the petitioners appellants on the ground thet 'the posts are on longer required' are made by way of punishment.
The Supreme Court, in Paragraph 33 of this judgment, has further held:
Though the authorities terminated the services of the petitioners on the ground that these posts are no longer required, they have retained and regularised the services of ad hoc employees as well as ad hoc Surveyors who were recruited later in the said post of Surveyors to the prejudice of the rights of the petitioners thereby violating the salutary principle of equality and non-arbitrariness and want of discrimination as enshrined in Articles 14 and 16 of the Constitution.
In Paragraph 35 of this judgment, the Supreme Court has further held: 'Further, ad hoc services of the petitioners have been arbitrarily terminated as no longer required while the authorities have retained other Surveyors who are juniors to the petitioners. Therefore, on this ground also, the impugned orders of termination of the services of the petitioners are illegal and bad being in contravention of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution.'
45. In the case of Ajit Singh v. State of Punjab reported in : (1983)ILLJ410SC , the Supreme Court had occasion to consider the dispensation of the 11 Trust Executive Officers who have been appointed by the Government on probation for one year. In that case, after each appointee completed one year of service, an increment was released in his favour. Suddenly, in exercise of the power conferred by Rule 9 of the '1978 Rules', Director of Local Government, Punjab, dispensed with the services of each of the 11 Trust Executive Officers, who were appointed on May 28, 1978. In a petition under Article 32 of the Constitution, the Supreme Court, on the facts of that case, held:
The Board of Trustees was dissolved, the Trusts without the name of Trust continued, their functions continued, the staff excluding the 11 Trust Executive Officers was retained and in place of the officers whose services were dispensed with, some other officers were asked to fake over their functions and duties, and within a short time, the Trusts were formally continued. The only effect sought to be achieved by the bizarre exercise of first acquiring power to dissolvethe Trusts and then ordering their dissolution was to dispense with services of only 11 Trust Executive Officers of 1979 recruitment. And having achieved the desired result the Trusts were reconstituted albeit without showing the fairness of recalling the discharged 11 Trust Executive Officers. Therefore, the conclusion is inescapable that the action was thoroughly arbitrary and violative of the guarantee of equality of opportunity enshrined in Article 16 read with Article 14 of the Constitution and such thoroughly arbitrary action cannot be sustained.
46. Both the abovesaid cases deal with appointments in a permanent post. In such a permanent post, if the appointee is either on probation or temporary or on ad hoc basis, his services cannot be terminated arbitrarily. Even though the termination on the face of it seems to be innocuous and termination simplicitor, the substance of the order, i.e, attending circumstances as well as the basis of the order, will have to be taken into consideration. By taking that into consideration, the Supreme Court came to the conclusion in those cases that the termination is by way of punishment and the same is arbitrary. As far as the present case is concerned, the post in which Dr. Mukul Sinha was put in was not a permanent post. The contention of Dr. Mukul Sinha is not to continue, in that same post by contract. The appointment for a fixed term has come to an end. The argument put forth by Dr. Mukul Sinha is that failure to absorb him in some other post is penal in character and that has been done only because of the fact that he is involving himself in Trade Union activities. Looking into the facts of the Supreme Court case and the case on hand, the ratio of the Supreme Court decision referred above will not apply to the facts of this case. As correctly contended by the learned Additional Solicitor General, there is no termination as such in this case as contemplated under Section 51A(2) of the Gujarat University Act and the non-absorption of Dr. Mukul Sinha in some other post in P.R.L. is not because Dr. Mukul Sinha involves himself in Trade Union activities, but because of the non-suitability of Dr. Mukul Sinha to work in any capacity in this research-oriented institution. Such assessment was made by the officers concerned and they have found that he is not suitable for being absorbed.
47. In the case of Jagdish Mitter v. Union of India reported in : (1964)ILLJ418SC , the Supreme Court observed:
Shri Jisgdish Mitter having been found undesirable to be retained in Government service is hereby served with a month's notice to discharge.
The Supreme Court further observed that:
It seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in Government service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge.
48. In the case of Indrapal Gupta v. Managing Committee reported in : [1984]3SCR752 , the Supreme Court held the termination of service of a probationer principal as dismissal in contravention of the resolution which states:
The facts contained in the report of the Manager being serious and not in the interest of the institution, this Committee unanimously resolves that the period of probation of I. B. Gupta be terminated without waiting for the period to end.
49. In the case of Anoop Jaiswal v. Government of India reported in : (1984)ILLJ337SC , the question considered is regarding an I.P.S. probationer, who was under going training and who had been discharged owing to the fact that he reported to the training 22 minutes late. In that case Supreme Court observed:
The recommandation of the Director which is the basis or foundation for the order should be read along wish the order for the purpose of determining its true character. If on reading the two together, the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for the incident it would not have been passed, then it is inevitable that the order of discharge should fall to the ground, as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2)) of Constitution.
50. In the above three cases, the services of the officers, who were oa probation came to be terminated without waiting for the period to end. On the facts of those cases, it was found that the termination was arbitrary and discriminatory and in some of the termination, stigma is attached to the party concerned. In those circumstances, the Supreme Court held that such a termination is not valid. We do not think those facts can have any application to the facts of the present case in view of the discussion we have made in paragraph supra.
51. In the case of K.C. Joshi v. Union of India reported in : (1985)IILLJ416SC , a temporary employee was removed from services on the ground of his unsatisfactory work. This was done without an enquiry in accordance with the principles of natural justice. In those circumstances, the employee was granted full backwages and compensation in lieu of reinstatement. This case, cannot have any application to the facts of the present case.
52. In the case of Nepal Singh v. State of U.P. reported in : (1986)IILLJ343SC , cited by Mr. N.J. Mehta, is a case of termination of a temporary Sub-Inspector of Police on the ground that he was correct. Inasmuch as enquiry has not proceeded before the termination order in that case, the Supreme Court has set aside the order. Even this case cannot have any application to the facts of the present case, which we have already discussed.
53. In the case of Gujarat Steel Tubes Limited v. Its Mazdoor Sabha reported in : (1980)ILLJ137SC , cited by Mr. N.J. Mehta is a case of termination of the services of temporary and casual employees. The Supreme Court observed that if the order has a punitive flavour in cause or consequence, it is dismissal. It further held that given the alleged misconduct and a live nexus to an innocuous order of termination of service, the conclusion is dismissal even if full benefits as on simple termination are given and non-injurious terminology is used.
54. In the case of Shamsher Singh v. State of Punjab reported in : (1974)IILLJ465SC , the order of termination of services of a probationer came to be set aside owing to the fact that the requirement of Rule 7 has been violated. In that case, it has been clearly held that if the order of termination of services of a probationer is without any stigmatising effect even after piercing through the veil and finding out the reason for such termination, the same cannot be violative of Article 311 of the Constitution.
55. Same principle has been enunciated in the cases of The Management of Utkal Machinery Ltd. v. Its Workmen reported in : (1966)ILLJ398SC and in (Madan Mohan Prasad v. State of Bihar) : (1973)ILLJ411b SC , Regional Manager v. Pawan Kumar reported in : (1976)IILLJ266SC , State of Bihar v. Shiv Bhikashi Mishra reported in : (1970)IILLJ440SC , Kanhilal v. District Judge reported in : AIR 1983 SC351 , Chandulal v. Management of Pan American World Airways Inc. reported in : (1985)IILLJ181SC and Assam Oil Co. Ltd. v. Its Workmen reported in : (1960)ILLJ587SC . But, these decisions have no bearing on the facts of this case.
56. Mr. N.J. Mehta, stressing the decision in the case of Assam Oil Co. Ltd. v. Its Workmen reported in : (1960)ILLJ587SC , which held that the termination of the services on the ground that the employee has joined the Union cannot be sustained, contended that in this case also the termination is due to the fact that Dr. Mukul Sinha is active in Trade Union movement.
57. Referring to these decisions, it was contended by Mr. N.J. Mehta and by Mr. Girish Patel that the termination of Dr. Mukul Sinha's appointment should not be viewed in isolation and the question as to whether termination of service was by way of penalty or not, should be decided in the background of the events which took place between January and September, 1979. It was submitted that some time before January, 1979, Dr. Mukul Sinha had associated himself with Trade Union activities but at that time, he was not actively associated with Trade union activities and, therefore, P.R.L., did not seriously object to it and the assessment of Dr. Mukul Sinha's work was found as satisfactory, but, after January, 1979, he was actively associated with Trade Union activities, which was not liked by the P.R.L. By July, the relationship between P.R.L. and its employees worsened and Dr. Mukul Sinha was in one camp and the Officers' who were concerned with the assessment of Dr. Mukul Sinha's work in the other camp. During the agitation, which began in July, Dr. Mukul Sinha was actively associating himself with the employees, whereas Mr. John, the Area Chairman, used to play an active role on behalf of the Management. Mr. John used to stand at the gate and collect passes. It was submitted that in view of these developments, the assessment of the work done by Dr. Mukul Sinha during that period should be regarded as biased. It was also submitted that the assessment regarding the work made that it had deteriorated and that he was neglecting his research work should not be accepted as that is even factually incorrect and not supported by any material. If the assessment regarding the research work done by him during that period is ignored, then it becomes obvious that the only and real reason which had weighed with the P.R.L. for not continuing Dr. Mukul Sinha in service was Trade Union activities. In that view of the matter, it should be held that his services came to be terminated by way of punishment.
58. Having carefully considered these submissions, we are of the view that there is no substance in the contentions urged on behalf of Dr. Mukul Sinha. The learned single Judge, after discussing as to whether the termination was by way of punishment, came to the conclusion that what weighed by and large with the authorities was Trade Union activities of Dr. Mukul Sinha, though, no doubt, the authorities have not thought it fit to express themselves in clear, and unequivocal terms. With this observation, the learned single Judge found that the impugned notice of termination is penal in nature and, therefore, as the procedure prescribed by Section 51A(1) has not been complied with, the impugned notice of termination is bad in law and void. While recording this conclusion in this behalf, the learned single Judge also observed that there is no material in the reply affidavit filed on behalf of the P.R.L. to show much less successfully establish that the activities attributed to Dr. Mukul Sinha are other than Trade Union activities. Reading the reply affidavit of the P.R.L. in the main special civil application, there is a specific allegation to the effect that the P.R.L. has acted in the best interest of the institution and the decision not to extend the term of Dr. Mukul Sinha as Visiting Scientist beyond the period and not to appoint him on permanent basis has been taken purely on merits, considering the performance and suitability of Dr. Mukul Sinha. There is also an averment in the reply affidavit that it is not correct to state that the Management disliked the Trade Union activities of Dr. Mukul Sinha, or for that matter, any other member of P.R.L. On the other hand, the reply-affidavit clearly points out that due to the unsuitability. Dr. Mukul Sinha's services were not required after the contract period was over. There is a clear averment in the reply affidavit to the effect that services of Dr. Mukul Sinha came to an end by efflux of time on 31st December, 1979 and that the communication, Annexure 'E', should be looked at as an intimation to Dr. Mukul Sinha. It also appears from the reply affidavit filed on behalf of the P.R.L. that many of the members of Trade Unions are continued in service by the P.R.L. Therefore, it cannot be said that the services of Dr. Mukul Sinha were brought to an end because of his Trade Union activities, which the P.R.L. did not like. It is also not possible to accept the contention that the assessment of the performance of Dr. Mukul Sinha during the year 1979 by Dr. John was biased. Even assuming that during the days of agitation. Dr. John stood at the gate and collected passes as urged by Dr. Mukul Sinha, it would not go to show that Dr. John had bias against Dr. Mukul Sinha. He might have performed his duties as directed by his the superiors. There is no material on the basis of which it can be said that Dr. John's assessment of the performance of Dr. Mukul Sinha changed because of the Trade Union activities of Dr. Mukul Sinha and not because of the reasons given by him in his letter dated 26th October, 1979. It is also not possible to accept the contention that the assessment is factually incorrect or that it is not supportable by any material. The assessment of the performance of Dr. Mukul Sinha by the Area Manager and the Director, and their satisfaction regarding the suitability of Dr. Mukul Sinha to work in the P.R.L. was purely a decision by experts and it cannot be interfered with or overruled by the Court, unless there are compelling reasons to do so. We do not think that Dr. Mukal Sinha has made out a case of bias, which would justify us in ignoring the assessment made by the Area Manager and the Director regarding the work of Dr. Mukul Sinha. It is not only likely, but more probable that with the increase in bis Trade Union activities, the research work of Dr. Mukul Siiiha suffered adversely. That is what the experts have stated and we do not see any good reason for not accepting the said assessment. It is not possible for us to come to the conclusion that the Management wanted to get rid of Dr. Mukul Sinha because he is a trade unionist. As correctly contended by the learned Additional Solicitor General, there is no termination as such in this case as contemplated by Section 51A of the Act and non-absorption of Dr. Mukul Sinha in another post in P.R.L. is not because he was actively involved in Trade Union activities, but because of bis unsuitability to work in any capacity in the exceptional research institution. We, therefore, hold that even if Dr. Mukul Sinha's services can be said to have been terminated, that was not due to the fact that he was involved in Trade Union activities, but it was because of the fact that he was found unsuitable for such work.
59. For all these reasons, it cannot be said that termination of Dr.Mukul Sinha's service was by way of punishment and as procedure as prescribed by Section 51A(1) was not followed, termination of his service should be regarded as illegal and void.
60. The contention as to whether Dr. Mukul Sinha can be said to be a member of the staff of the recognised institution or not need not detain us much. It is contended on behalf of P.R.L. that he is not a member of the staff since he is only a Visiting Professor. Section 51A is applicable to a member of the teaching, other academic and non-teaching staff of an affiliated college, recognised or approved institution. Apart from the fact that the contention to the effect that Dr. Mukul Sinha is not the staff of P.R.L. has not been raised before the learned single Judge, Part IV of the Fundamental Rules for P.R.L. which divides the P.R.L. staff into four categories mentions 'including fellow and other members of the staff doing academic work'. Dr. Mukul Sinha was given ail facilities under the Fundamental Rules. Further, it is clear from the facts of the case that after appointment as a Visiting Scientist, a persan ceases to be a student and gets the appointment as a Visiting Scientist. Mr. N.J. Mehta correetly referred 10 Ordinance 120C at page 261 of the Gujarat University Hand Book, which provides for recognition on research institutes by the Gujarat University and providing for minimum staff requirement, indicating that research fellows with the consolidated fixed salary of Rs. 400/- are also members of the staff. Hence, a Visiting Scientist, drawing a consolidated salary of Rs. 1,000/- like Dr. Mukul Sinha, can also be treated as a member of the Staff. In this background, if we read Section 51 A, it is clear that the section is all inclusive and in its ambit, it covers teaching and non-teaching staff. Thus, we are of the view that Dr. Mukul Sinha satisfies the requirement under Section 51A of the Act and he can be easily classified as a member of the staff of the Institution which has been recognised by the University.
61. It was also contended that Dr. Mukul Sinha's services have been terminated because of his Trade Union activities and as he was not absorbed or considered for absorption in a permanent post, termination of his services must be regarded as violative of Articles 14, 16 and 19(i)(c) of the Constitution. We have already discussed earlier that Dr. Mukul Sinha did not have any right to be absorbed or considered for absorption in a permanent post. No such practice or policy has been established by Dr. Mukul Sinha. We have also come to the conclusion that the services of Dr. Mukul Sinha were brought to an end not because of the Trade Union activities, but because it was not thought desirable to continue him with the P.R.L. For these reasons, it cannot be said that the action of the P.R.L. is violative of Articles 14, 16 or 19(1)(c) of the Constitution.
62. Various decisions were cited for the proposition as to whether P.R.L. is a 'State' or not. Even this need not detain us much because Mr. G. Ramaswamy, the learned Additional Solicitor General, fairly stated that he does not intend to press the issue that provisions of Section 51A cannot have application to the facts of this case inasmuch as P.R.L. is an institution owned and maintained by the Government as envisaged under Section 59A of the Gujarat University Act, if the Court comes to the conclusion that Sub-sections (1) and (2) of Section 51A have no application to the facts of this case. Inasmuch as we have come to the conclusion that neither Sub-section (1) nor Sub-section (2) of Section 51A applies to the facts of this case, it is not necessary for us to go into the question whether P.R.L. is a 'State' or not.
63. The only point which now survives is as to whether the salary paid by virtue of the interim order passed by this Court should be ordered to be refunded or not. Mr. N.J. Mehta pointed out the interim order passed by a Bench of this High Court on 26th December, 1979, which is as follows:
1. The petitioner, i.e. the respondent herein will not insist on being allowed to work during the pendency of the petition;
2. P.R.L. undertakes to deposit Rs. 5,000/- within one week from which the present respondent can withdraw amount equivalent to his salary from month to month; and
3. P.R.L. agrees that the petitioner, i.e. the respondent herein can continue to represent employees facing departmental proceedings at the departmental enquiries.
By virtue of the above said interim direction given by this Court, P.R.L., uptill the disposal of the case by the learned single Judge, has paid a sum of Rs. 23,000/-. The judgment under appeal was delivered as early as 23rd June, 1983 and on 17-8-1984, a Bench of this High Court admitted the Letters Patent Appeal and adjourned the same to 1-10-1984. It is the case of the P.R.L. that apart from the sum of Rs. 23,000/- referred above, it has also paid another sum of Rs. 49,000/-. Mr. N.J. Mehta states that inasmuch as Dr. Mukul Sinha was kept out of work by the Management and that the case before the Bench was adjourned to suit the convenience of the Attorney General to come and argue the case and that the delay in hearing the case for disposal is due to the fact that the P.R.L. wanted accommodation in order to bring either the Attorney General or the Additional Solicitor General for arguing its case, there is no question of refunding the amount paid to Dr. Mukul Sinha even if he does not succeed in this case. In support of his contention, Mr. N.J. Mehta cited the decision in the case of Union of India and Anr. v. Tulsiram Patel and Ors. reported in : (1985)IILLJ206SC and said that the Supreme Court in that case has given specific direction that the Government servants will not be liable to refund any amount so far paid to them. Following the said principle, Mr. N.J. Mehta says that this Court also will not direct Dr. Mukul Sinha to repay the amount already paid even if Dr. Mukul Sinha loses his case before this Division Bench.
64. Mr. Ramaswamy, the learned Additional Solicitor General, contended large amounts have been paid on the directions given by the Court, that such payment can be sustained only when Dr. Mukul Sinha makes good his case and that P.R.L. cannot be mulcted with this expenditure since the delay is owing to the fact that the Court was not able to hear the case at an early date. In support of his contention, Mr. G. Ramaswamy read Broom's Legal Maxim in order to stress his point that 'the act of Court will prejudice no man'.
65. We have, in paragraph supra, found that the learned single Judge is not correct in setting aside the impugned notice of termination since the termination order is valid and that the provisions of Section 51A(1) and (2) can have no application to the facts of this case. While disposing of this case, the learned single Judge has also given the following direction:
If the authorities of the Physical Research Laboratory on fresh consideration of the case of the petitioner find him suitable for permanent absorption they should consider as to whether the petitioner should be granted all the backwages for the period during which he was out of employment pursuant 10 the notice of termination, and if yes, to pay the balance amount which has been already paid to him pursuant to the interim arrangement recorded by this Court vide its order of December 26, 1979. In case the authorities find that the petitioner is not suitable for permanent absorption in the establishment of Physical Research Laboratory, the petitioner would not be entitled to claim any further amount on account of backwages besides what has been already paid to him under the aforesaid interim arrangement.
Inasmuch as we have found that the termination is valid, the amount paid by virtue of the interim order dated 26th December, 1979 has to be returned to P.R.L. by Dr. Mukul Sinha, the respondent in the main appeal. As the maxim 'act of Court will prejudice no man' squarely applies to the facts of this case, the amount paid to Dr. Mukul Sinha by virtue of the direction given by this Court has to be returned to the P.R.L. by Dr. Mukal Sihna inasmuch as termination of his service is valid and no work has been extracted from him by the P.R.L. in the interim period.
66. In the result. Letters Patent Appeal No. 38 of 1984 filed by the P.R.L. and others is allowed, the judgment and order passed by the learned single Judge in Special Civil Application No. 3337 of 1979 is set aside and the said Special Civil Application stands dismissed. The respondent in the said appeal (Dr. Mukul Sinha) is directed to refund to the P.R.L. the amount of salary paid to him during the interventing period as per the interim orders passed by the learned single Judge. There will be no order as to costs.
67. Letters Patent Appeal No. 49 of 1984 filed by Dr. Mukul Sinha stands dismissed with no order as to costs.
68. In view of the above order. Civil Application No. 2696 of 1984 stands disposed of and no further order is required to be passed therein.
69. Mr. N.J. Mehta, the learned Counsel appearing for Dr. Mukul Sinha, states that the interim arrangement made must be continued by staying the judgment rendered by us today, that the balance of convenience is in favour of continuing the interim arrangement since the P.R.L. would not become poorer by paying Rs. 1,000/- per month to Dr. Mukul Sinha and that leave has to be granted since it is for the first time this Court has interpreted Sections 51A(1) and 51A(2). We have considered these contentions. We have definitely held that Dr. Mukul Sinha has no right to continue as a Visiting Scientist. It is also not the case of Mr. N.J. Mehta while submitting his argument that Visiting Scientist will be absorbed on a permanent post as a Visiting Scientist, but he stated that the appointment as a Visiting Scientist is a stepping stone to be absorbed in P.R.L. as a Research Associate or any other post equivalent to that in the P.R.L. After proper appreciation of the evidence on record, we have come to the conclusion that neither Sub-section (1) nor Sub-section (2) of Section 51A of the Gujarat University Act applies to the facts of this case and it cannot be invoked by Dr. Mukul Sinha to quash the order of termination. We have also come to the conclusion that Dr. Mukul Sinha has no right to get himself absorbed in P.R.L. Hence, we do not find any ground made cut to grant the certificate since neither substantial question of law of general importance nor any question which needs to be decided by the Supreme Court arises in this case. Since we have already decided that he has no right to continue, there is no point in continuing the interim arrangement made while the case was pending before the learned single Judge and before us for some time. Hence both the prayers for continuing the interim arrangement and also for granting certificate are rejected.
70. Mr. N.J. Mehta then submitted that the order directing Dr. Mukul Sinha to return the pay given to him as an interim arrangement may be stayed for a period of three months. This is a reasonable request and accordingly, the order directing Dr. Mukul Sinha to return the emoluments already paid to him is stayed for a period of three months from this date.