Judgment:
A.P. Ravani, J.
1. The petitioner was serving as Office Assistant with respondent No. 1-Indian Institute of Management, Ahmedabad (for short 'IIM'). His services have been terminated by order dt. September 20, 1988 with immediate effect on payment of one month's salary and retrenchment compensation. The petitioner has challenged the legality and validity of this order and prayed for reinstatement in service with all consequential benefits.
2. The petitioner was appointed as Upper Division Clerk by order dated May 31, 1967. After confirmation on this post he was promoted as Office Assistant some time in June, 1973. The petitioner was the Secretary of the Union, i.e., Indian Institute of Management Employees' Association and in this capacity he has sponsored, several litigations and represented the cause of the employees before the authorities of respondent No. 1-Institute.
3. The petitioner has averred with regard to his activities and the grievances which he raised against the management of respondent No. 1 Institute and against certain Officers. It is his contention that the order of termination of service is penal order; it is not an order of termination simpliciter of service; that it has been passed without holding any inquiry and without affording an opportunity of being heard to the petitioner and, therefore, it is violative of the principles of natural justice and hence illegal and void. It is also contended that the order is in contravention of the provisions of Section 25G of the Industrial Disputes Act, 1947 read with Rule 81 of the Industrial Disputes (Gujarat) Rules, 1987 inasmuch as many juniors to the petitioner have been retained in service and without recording any reason whatsoever his services have been terminated. It is further contended that the order is passed in contravention of the provisions of Section 51A of the Gujarat University Act, 1&49 (for short 'G.U. Act'.) The petitioner also contended that the respondent-IIM is 'State' within the meaning of Article 12 of the Constitution of India, and even if it is not held to be 'State', it is amenable to the writ jurisdiction of this High Court.
4. Respondent No. t-IIM has filed affidavit-in-reply and resisted petition on facts as well as on law points. In substance it is contended that certain activities of the petitioner led the respondent-Institute to lose confidence in the petitioner and, therefore, his services have been terminated on account of loss of confidence. Particulars of the activities of the petitioner-employee have been narrated in detail. It is also, inter alia, contended that provisions of the Industrial Disputes Act are not applicable as the petitioner is not a workman and respondent-Institute is not 'State' within the meaning of Article 12 of the Constitution of India.
5. As far as the contention that respondent No. I-IIM is 'State' within the meaning of Article 12 of the Constitution of India is concerned, it is an undisputed position that in Special Civil Application No. 6845 of 1987 decided on October 24, 1991, a learned single Judge of this High Court (Coram: J.N. Bhatt, J.) has held that respondent No. I-IIM is 'State' within the meaning of Article 12 of the Constitution of India. However, the said decision is challenged in Letters Patent Appeal before this High Court and it is pending. (Neither side has given the particulars of the L.P.A. but it is admitted by both the sides that the L.P.A. is still pending.) In view of this circumstance and having regard to the facts and circumstances of the case, we do not express any opinion as to whether respondent No. I-IIM is 'State' within the meaning of Article 12 of the Constitution of India. In our opinion, the petition is capable of being decided even if this question is not examined and decided by us in this petition. Even the learned Counsel for the petitioner has not pressed that this question should be decided in this petition.
6. Initially, it was contended that the petitioner was 'workman' within the meaning of the term defined in Section 2(s) of the Industrial Disputes Act, 1947, and that the provisions of the said Act were applicable to him. However, the other side has denied that the petitioner was a workman' as contended by him. Thus, this becomes a disputed question of fact. For this reason and also for the reason that the petition is capable of being finally decided without adjudicating the question as to whether the case of the petitioner is governed by the provisions of the Industrial Disputes Act, 1947, we do not propose to examine this question and we proceed to decide the petition without expressing any opinion on this issue.
7. Learned Counsel for the respondents submitted that since the question as to whether respondent No. 1-IIM is 'State' or not is no decided, the petition under Article 226 of the Constitution of India would not be maintainable and it should be rejected. The contention cannot be accepted, la the case of Shri Anadi Mukta Sadguru S.M. V.S.J.M.S. Trust v. V.R. Rudani reported in : (1989)IILLJ324SC , the Supreme Court has infer alia held that the words 'any person or authority' occurring in Article 226 of the Constitution of India are not to be confined only to statutory authorities and instrumentalities of the State. These words may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the persons or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists Mandamus cannot be denied. In view of (his position of law, what is to be seen is as to whether respondent No. 1-IIM is imposed with any positive obligation to the petitioner or not. Positive obligation of respondent No. 1-IIM to the petitioner flows from the provisions of G.U. Act. The provisions of G.U. Act and this question will be considered in further detail hereinafter. At this stage suffice it to state that the contention that respondent No. 1-IIM is not 'State' and therefore writ petition is not maintainable cannot be accepted in view of the aforesaid principles laid down by the Supreme Court.
8. It was contended by the learned Counsel for the respondents that if the provisions of G.U. Act are held applicable to the facts and circumstances of the case, the petitioner would have an alternative remedy under Section 52A of G.U. Act, Section 52A of G.U. Act inter alia provides that any dispute between the governing body and any member of the teaching, other academic and non-teaching staff of the affiliated college or recognized or approved institution, which is connected with the conditions of service of such member, such disputes be referred to a Tribunal of arbitration as constituted under the provisions of the said section. The dispute can be referred 'on a request of the governing body, or of the member concerned'. The Tribunal of arbitration contemplated under the said provisions is to consist of one member nominated by the governing body of the college or institute concerned, one member nominated by the member concerned and an empire appointed by the Vice-Chancellor. It is not pointed out that there is a permanent Tribunal of arbitration. Therefore, it is evident that in each case, a Tribunal will have to be set up as and when necessity arises.
Even if it is assumed that the provisions of Section 52A of the G. U. Act are attracted, and the dispute could be referred to a Tribunal of arbitration as provided therein, then also, once the petition is entertained by the High Court and is heard on merits, it would not be proper for the High Court to relegate the party to an alternative remedy. This is the view taken by the Supreme Court in the case of Hriday Naralh v. I.T. Officer, Bombay reported in : [1970]78ITR26(SC) .
8A. Moreover, it may be noted that availability of an alternative adequate remedy and exhausting of the same before resorting to a petition under Article 226 of the Constitution of India does not oust the jurisdiction of the Court. In the case of Ram & Shyam Co. v. State of Haryana and Ors. : AIR1985SC1147 , the Supreme Court has, inter alia, observed that the Courts have imposed a restraint in its own wisdom on exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy:
xx More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court.
The Supreme Court has further stated that:
xxx Where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits.
In this case, the petition is filed on September 26, 1988. The impugned order is dated September 20, 1988, by which the services of the petitioner have been terminated. Now, after a period of about 41/2 years, it would be unjust and unfair to the petitioner to relegate him to the alleged alternative remedy, which, in our opinion, in facts of the case, cannot be said to be an adequate efficacious remedy. For this reason also, this contention fails.
9. It is contended by the learned Counsel for the petitioner that respondent No. 1-IIM is recognised as an approved institution by the Gujarat University under Section 35A of the G.U. Act for guiding Ph.D. students in the subject of Management, Economics, Operation Research, Mathematics and Statistics, Psychology and Sociology. Therefore, the provisions of Section 51A of G.U. Act are attracted to the case of the petitioner. Section 51A of the G.U. Act reads as follows:
51A. (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 inflicted on him is approved by the Vice-Chancellor or any other Officer of the University authorised by the Vice-Chancellor in this behalf.
(2) No termination of service of such member not amounting to his dismissal or removal falling under Sub-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.
In view of the aforesaid provision it is submitted that if the services of a staff member of such recognised or approved institution are to be terminated on the ground of misconduct, inquiry should be held as provided under Section 51A of G.U. Act. At the conclusion of the inquiry if the staff member is held guilty of the misconduct charged against him, and if any punishment is to be imposed upon him, the approval of the Vice-Chancellor or any other officer of the University authorised by the Vice-Chancellor is required to be taken before imposing punishment upon him. In case termination of service is not on the ground of misconduct, then in that case, as provided under Section 51A(2) the staff member concerned should be afforded a reasonable opportunity of showing cause against the proposed termination and such termination is required to be approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in that behalf. Only when a member of staff is appointed for a temporary period, this provision cannot be invoked. It is not the case of the respondents that the petitioner was appointed for a temporary period. It is an undisputed position that the petitioner was a confirmed employee of respondent No. 1-IIM.
10. In view of the aforesaid provision of law it is submitted that in this case the provisions of Section 51A of G.U. Act are attracted. It is an undisputed position that the petitioner was a confirmed employee of respondent No. 1-IIM. No inquiry whatsoever has been held against the petitioner nor has he been afforded an opportunity of showing cause against the proposed order of termination of service. No approval of the Vice-Chancellor or any officer of the Gujarat University authorised by the Vice-Chancellor in that behalf has been obtained before or after passing the order of termination from service. In view of this position it is contended that even; if the order of termination of service is treated as an order of termination simpliciter, then also such action would contravene the provisions of Section 51A(2) of G.U. Act. Mere reading of the provisions of Section 51A makes it clear that even in cases of termination simpliciter the provisions of Section 51A(2) of G.U. Act are attracted. Section 51A of G.U. Act casts an obligation upon respondent No. 1-IIM to conduct its affairs as provided under the Act as far as the services of staff members of recognised or approved institutions are concerned. Since respondent No. 1-IIM is recognised as approved institution under the provisions of the G.U. Act it is duty bound to comply with the statutory requirements before taking any action against its staff members. Section 51A of G.U. Act casts an obligation upon the establishments mentioned therein to conduct their affairs as per the provisions made in the section. This provision casts obligation upon the Institution to hold inquiry against its staff member, if such staff member is to be dismissed or removed from service or reduced in rank on the ground of misconduct. Such employee should be afforded a reasonable opportunity of making representation. Even after the misconduct is held proved and it is decided to impose punishment of dismissal or removal from service or reduction in rank, the approval of the Vice-Chancellor or any Officer of the University authorised by the Vice-Chancellor is required to be obtained. This is the duty cast on the management of approved institutions to it's staff members. This is a public duty cast under the provisions of the statute. Again it may be noted that as per this very provision there could not be termination of service simpliciter of any such member of the staff, unless he has been given a reasonable opportunity to show cause against the proposed termination, and such termination is approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in that behalf. In this case no inquiry is held, no notice has been given to the petitioner; and he has not been afforded a reasonable opportunity of being heard against the alleged misconduct or against the proposed termination of service. The penalty of dismissal from service has not been approved by the Vice-Chancellor. Even if the termination of service is treated as termination simpliciter, then also it would be bad because approval of the Vice-Chancellor or any Officer of the University authorised by the Vice-Chancellor in that behalf has not been obtained. Moreover, no show-cause notice has been given to the petitioner against the proposed termination of service. Therefore, also, this would be in contravention of the provisions of Section 51A of G.U. Act.
11. Learned Counsel for the respondents submitted that the provisions of Section 51A of G.U. Act are not attracted and are not applicable to the facts and circumstances of this case. In this connection few facts and certain provisions of G.U. Act be noted. The term 'approved institute' is defined under Section 2(1A) of G.U. Act. It means an institution approved under Section 35A of G.U. Act. 'Recognized institution' is defined in Section 2(8) of G.U. Act. It means an institution for research or specialised studies other than an affiliated college and recognized as such by the University. Section 35A of G.U. Act inter alia provides that the Executive Council shall have power after consultation with the Academic Council of the University to approve an institution as an 'approved institution' for specialised studies and such other work approved by the Academic Council under the guidance of a qualified teacher. An institution which desires to have such approval is required to write a letter of application to the Registrar of the University giving particulars as provided under Sub-section (2) of Section 35A of G.U. Act. After considering the details, the Executive Committee may grant or refuse the application. In case the application is granted, the Executive Committee is required to specify the subject and courses of instruction in respect of which the institution is approved.
12. By letter dated May 20, 1976 written by the Registrar, Gujarat University, addressed to the Administrative Officer of respondent No. 1-IIM, respondent No. 1-Indian Institute of Management, Ahmedabad, has been recognised as approved institution of Gujarat University under Section 35A of the G.U. Act. This recognition as approved institution is for guiding Ph.D. students in the subjects of Management, Economics, Operation Research, Mathematics and Statistics, Psychology and Sociology. The Administrative Officer of respondent No. 1-IIM wrote letter to the Collector of Electricity Duty, Ahmedabad, on September 9, 1988 (produced at Annexure 'L' to the petition). By this letter the recognition letter issued by the Gujarat University has been forwarded to the Collector of Electricity Duty, requesting him to charge electricity duty at 40% (forty per cent). In view of this factual position it is evident that respondent No. 1-IIM is an approved institution under Section 35A of the G.U. Act. Section 51A of the G.U. Act has been reproduced hereinabove, which inter alia provides that the provisions would apply to the members of non-teaching staff also.
13. Learned Counsel for the respondents contended that the provisions of Section 51A of G.U. Act would be attracted only in case of termination of service of a staff member who might have been engaged for teaching the subjects for which the Institute is recognised. This submission cannot be accepted in view of the clear provision of Section 51A(1) which provides that no member of 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 in accordance with the provisions laid therein. This provision takes within its sweep even the non-teaching staff of an approved institute.
14. Learned Counsel for the respondents submitted that if the provisions are interpreted to take within its sweep even non-teaching staff, then in that case such non-teaching staff should have been employed in respect of the studies recognised by the University for which the institute has been approved. This contention also cannot be accepted. The applicability of the Section is not confined to the staff engaged in relation to the studies for which the institute is recognised or approved. Even if one were to draw a line as submitted by the learned Counsel for the respondents, the petitioner cannot be excluded from the scope of the provisions of Section 51A of the G.U. Act. The petitioner was working as office assistant. As office assistant he will have to perform one or the other functions which would have direct or indirect connections with the imparting of studies in the subjects for which respondent No. 1-IIM is recognised as approved institution. Nothing is shown on the record of the petition that the petitioner was not in any way connected with the functions of the Institute in relation to the subjects mentioned in the approval letter dated May 20, 1976. Therefore, even if one were to restrict the scope of Section 51A of G.U. Act only to the cases of staff members employed in respect of the studies recognised by the University, then also the case of the petitioner would be covered.
14A. However, the provisions of Section 51A of G.U. Act, and for that matter the entire provisions of G.U. Act, cannot be restricted only to the actual teaching staff or only in relation to the teaching work in the subjects mentioned in letter dated May 20, 1976. If such interpretation is given, it would amount to unreasonably restricting the scope of the provisions of Section 51A of G.U. Act. The language of the provisions of Section 51A of G.U. Act does not warrant any such restrictive interpretation. On the contrary it clearly takes within its sweep even non-teaching staff. Therefore, the contention that the provisions of Section 51A of G.U. Act are not attracted to the case of the petitioner has no merits and the same is rejected.
15. Once it is held that the provisions of Section 51A of G.U. Act are attracted to the case of the petitioner, it is evident that even if one were to treat the impugned order of termination of service as termination simpliciter, and not by way of penalty, then also, as provided under Section 51A(2) of G.U. Act no such termination would be valid unless the staff member concerned is given a reasonable opportunity of showing cause against the proposed termination, and such termination is approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in that behalf. In this case neither show-cause notice against the proposed termination has been given nor the termination of service of the petitioner has been approved by the Vice-Chanceller or by any officer of the University authorised by the Vice-Chancellor. In view of this position, the impugned order of termination of service is required to be held to be illegal and void as having been passed in contravention of the provisions of Section 51A of the G.U. Act.
16. The contention raised by the petitioner that the impugned order of termination is penal in nature and it has been passed as and by way of victimisation has much force. It may be noted that the petitioner was an office-bearer of the Indian Institute of Management Employees' Association. He was representing the cases of all the employees. He had made complaints about the irregularities in the management of the Institute. He was asked to withdraw the allegations by letter dated August 25, 1988. He did not withdraw the allegations, but requested by letter dated September 12, 1988 for an inquiry to be instituted as provided under Clause 5 of the Memorandum of Association of respondent No. 1-IIM. Immediately thereafter, i.e., on September 20, 1988 the impugned order of termination of service has been passed. In this factual background it is contended that the order is penal and it has been passed as and by way of victimisation.
17. In the affidavit-in-reply sworn by Shri R.N. Bali, Administrative Officer of respondent No. 1-IIM it is stated that the services of the petitioner were terminated on account of lose of confidence due to his conduct, behavior, attitude, temperament and utility to the Institute. The alleged various acts which compelled the Institute to lose confidence in the petitioner have been narrated in para 7.2 of the affidavit-in-reply. It is inter alia stated that the petitioner was charge-sheeted by the respondent Institute for preferring dishonest and fraudulent claim of L.T.C. on the Institute and he was held guilty for this misconduct by the Inquiry Officer. The action of the respondent-Management was challenged before the City Civil Court, Ahmedabad, and at the suggestion of the Court he was awarded minor penalty of stoppage of increments. This has happened some time in September 1984. It was further alleged that the petitioner' launched a campaign of slander and vilification against the Institute's management and it was directed against the Director and other senior officers of the Institute. For this purpose the petitioner had used the Union's publication named 'Voice' as an instrument for vilification of the Institute and its senior officers. In the issue of June 1985 and September 1985 such allegations were made. It was also alleged that attempts were made to provoke the faculty against the Director of the Institute and to divide the faculty by making allegations against specific individuals and groups. It is further alleged in the affidavit-in-reply that the petitioner had made these allegations and circulated the same to members of IIMA Board of Governors. It is stated that the allegations were 'intimidatory tactics and black-mailing'. Copies of such allegations were sent to the Government of India at the highest level without substantiating the same or following any of the channels of communication prescribed by the respondent No. 1-IIM, and that it was in violation of the Code of conduct expected from employees of the Institute. In paras 9 and 10 of the affidavit-in-reply certain instances have been referred to and ultimately it is stated as follows:
From this long history and from watching the activities, conduct, attitude, temperament and leanings of the petitioner, the Institute was compelled to come to the conclusion that it could no longer repose any confidence in the petitioner as an employee.
After making the aforesaid averments it is sought to be explained that under the aforesaid circumstances the Institute had lost confidence in the petitioner and the services of the petitioner were terminated as discharge simpliciter.
18. From the record of the petition the following facts emerge:
(i) The petitioner was a confirmed employee of respondent No. 1-IIM.
(ii) That he was an office-bearer of the Indian Institute of Management Employees' Association and in his capacity as an office-bearer of the Union he was required to make representations to the higher authorities of respondent No. 1-IIM. In such capacity he was also required to sponsor litigations against the Institute.
(iii) That he had made several complaints in respect of the appointment of Shri R.N. Bali, and also in respect of his behavior and alleged inhuman attitude towards the employees.
(iv) That the petitioner had complained that there were bunglings/irregularities in the purchasing system of the Institute, and irregularities in the appointment and fixation of pay at higher level against the Government of India norms, particularly in the case of Gr. Capt. R.N. Bali, Administrative Officer; that there were underhand dealings in public tendering of an Institute jeep, and in purchase of Rs. 1.50 lakhs worth of rice in used cement bags for the TIM students and staff mess, rendering the rice contaminated with cement and unfit for human consumption.
(v) That he had complained about 'operation blue star' in HM Ahmedabad and misuse of Institute facilities by Gr. Capt. R.N. Bali;
(vi) That he was required to give clarification to respondent No. 2-Chairman, IIM Board of Governors, by letter dated August 25, 1988; that he has submitted his explanation by letter dated September 12, 1988, and demanded inquiry as provided under Clause 5 of the Memorandum of Association of the Institute.
Thereafter, on September 20. 1988 the impugned order of termination of service has been passed which states, 'your services are hereby terminated with immediate effect on payment of an amount equivalent to one month's salary in lieu of one month's notice and the following dues which include the amount of retrenchment compensation as per the provisions of the Industrial Disputes Act, 1947':
1. One month's salary in lieu of one month's notice Rs. 2,602-002. Retrenchment compensation amount 31,524-003. Earned wages till date (Rs. 1821-00 minus the 665-00deductions for various facilities used, i.e.Rs. 1156-00)4. Leave with wages 17,264-005. Gratuity amount as per the provisions of the 22,260-00Payment of Gratuity Act.--------------Total... Rs. 74,315-00--------------
Thereafter, it was stated that he was required to vacate the house allotted to him as an Institute's employee and in any case not later than 10-10-1988,
19. In the aforesaid background the impugned order of termination of service is required to be examined. It is well settled principle of law that mere lable or form of the order does not determine its real character. The Court can and should examine the reality behind the apparent lable of the impugned order. The Court may pierce the veil and find out the truth as to what is the true nature of the impugned order.
20. In the instant case the aforesaid circumstances which led to the passing of the order clearly show that the relations between the petitioner and the management of respondent No. 1-IIM were strained. Before passing the order the Institute had called for explanation from the petitioner. The petitioner submitted clarification and reiterated the allegations stating that if an inquiry as provided under Clause 5 of the Memorandum of Association of the Institute is ordered he would justify the allegations. Thereafter the impugned order is passed without holding any inquiry and without allowing the petitioner to serve for a period of one month. Thus it is evident that the respondent No. 1-IIM intended to drive out the petitioner immediately. The entire affidavit-in-reply shows that it was on account of the activities of the petitioner which have been referred to hereinabove that the order of termination of service is passed. The averments in the affidavit-in-reply referred to hereinabove are admission of fact that the order of termination of service is passed as and by way of penalty and it cannot be said to be an order of termination of service simpliciter. In above view of the matter we are of the opinion that the impugned order is a penal order and it is not an order of termination of service simpliciter.
21. Learned Counsel for the respondents submitted that the services of the petitioner have been terminated on account of loss of confidence by the management. Therefore even if the Court comes to the conclusion that the impugned order is required to be quashed and set aside the respondent No. 1-IIM should not be ordered to reinstate the petitioner. The contention needs to be examined. First of all, this is not a case of confidence. The petitioner was not holding a post of trust. The petitioner was an office assistant. Nothing placed on the record of the petition shows that he was entrusted with some work of the respondent No. 1-IIM which required the management to repose trust and confidence in him. He was an ordinary office assistant like any other office assistant.
21.1. Learned Counsel for the respondents relied upon the decision of the Supreme Court in the case of Francis Klein & Co. v. The Workmen reported in : (1971)IILLJ615SC , wherein it is inter alia observed that when an employer loses confidence in his employee, particularly in respect of a person who is discharging duties of an office of trust and confidence, there can be no justification for directing his reinstatement. Relying on these observations, learned Counsel for the respondents submitted that in the instant case order of reinstatement should not be passed. The contention cannot be accepted for the simple reason that in this case nothing is shown that the petitioner was holding an 'office of trust and confidence'. As indicated hereinabove, he was merely an office assistant like many others. It is disclosed from the record of the petition that at least there were fourteen junior employees who were working as office assistant. Thus in the cadre of office assistant there must be many more such persons. Office assistant in a huge administration like that of respondent No. 1-IIM cannot be said to be holding an office of trust and confidence. Nothing is placed on record of the petition to show that the petitioner was particularly discharging some specific functions which can be said to be of trust and confidence. Therefore the reliance placed on the aforesaid decision is of no help to the respondents.
22. Reference may be made to a decision of the Supreme Court in the case of Kamal Kishore Lakshman v. Management of Pan American World Airways Inc. reported in : (1987)ILLJ107SC , wherein the Supreme Court has referred to its earlier decision in the case of Chandulal v. The Management of Mis. Pan American World Airways Inc. reported in : (1985)IILLJ181SC . In the aforesaid decisions the Supreme Court has considered the word 'stigma' in relation to loss of confidence. In para 9 of the decision the case of Kamal Kishore (supra) the Supreme Court has observed as follows:
Loss of confidence by the employer in the employee is a feature which certainly affects the character or reputation of the employee and, therefore, this Court correctly held in Chandu Lai's case that allegation of loss of confidence amounted to a stigma.
In the aforesaid decisions, and particularly in Chandulal's case (supra) the Supreme Court has held that if termination is to be grounded upon conduct attaching stigma to an employee, disciplinary proceedings are necessary as a condition precedent to infliction of termination as a measure of punishment. As indicated hereinabove, in the instant case no inquiry whatsoever has been held before passing the impugned order. Moreover, as discussed hereinabove, the impugned order is penal order. This is so because it has been passed as a measure of penalty though it is worded in simple language. Moreover, the case of respondent No. 1-IIM itself is that the order is passed on account of loss of confidence in the petitioner. Thus, even if the case of respondent No. 1-IIM is accepted, as held by the Supreme Court, it would attach stigma to the petitioner because loss of confidence affects the character or reputation of the employee. For this reason also the inquiry should have been held before passing the impugned order. As indicated hereinabove, the impugned order would be bad, whether it falls in Sub-section (1) of Section 51A or in Sub-section (2) of Section 51A of G.U. Act. As provided under Sub-section (1) of Section 51A of G.U. Act if the order of termination of service is to be passed on the ground of any misconduct then inquiry is a must. If it is not based on the ground of misconduct, then also show cause notice and approval of the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor is necessary. These conditions have not been fulfilled in this case. Therefore, on both the grounds the impugned order is bad and we see no reason why order of reinstatement should not follow.
23. For the aforesaid reasons the petition is allowed. The impugned order dated September 20, 1988 produced at Annexure 'A' to the petition is quashed and set aside. Respondent No. 1-Indian Institute of Management, Ahmedabad, is directed to immediately reinstate the petitioner in service on his original post with continuity of service and full backwages and all benefits as if he had never been removed from service, and was continuously in service. Respondent No. 1-IIM is directed to make payment of backwages and other benefits to the petitioner within a period of two months from the date of this judgment and order. If the amount of backwages and all other benefits as indicated hereinabove is not paid within a period of two months from the date of this judgment, it shall carry interest at the rate of 15 per cent per annum from the date of this judgment till the amount is paid. Rule made absolute accordingly with no order as to costs.