A MOHANRAJ Vs. C P R ENVIRONMENTAL EDUCATION

JUDGEMENT

(1.) 1:00. Introduction 1:01. There are two leading characters in this litigation. 1:02. One can be treated as bona fide and the other necessarily to be termed as mala fide. 1:03. They are referred as leading characters because the part played by them in this episode is the result of the writ: 1:04. Whenever there is legal battle in the field of service law between the bona fide and the mala fide, how strong the mala fide it is bound to bow its head before the law as it is known fact that be you never so high, the law is above you. 1:05. The bona fide succeeded and mala fide failed and the writ is allowed. 2:00. Facts 2:01. On the one side, there is Mr.A.Mohanraj, the writ petitioner himself. He holds a Master Degree in Environmental Science from PSG College of Arts and Science, Bharathiyar University, Coimbatore and have specialised in environmental planning and management with sixteen years of experience and has handled about 60 environmental management projects including environmental impact assessments and during his career, he held different positions like Lecturer in Institute for Social Sciences and Research, Vellore, was a research scholar in Industrial Toxicology Research Center, Lucknow and National Environmental Engineering Research Institute, Nagpur, both of which come under the direct control of CSIR, Government of India. He was later a chemist in Richardson and Cruddas (1972) Ltd., Chennai, a Government of India undertaking and worked as Senior Environmental Scientist in Vimta Labs Limited, Chennai and presented several research papers to his credit and being a life member of Indian Association for Environmental Management, he had undergone Advanced International Training sponsored by Swedish International Development Co-operation Agency (SIDA) on risk management in Community Development Planning in Sweden in recognition of his meritorious performance. He is also a recipient of International Swarna Parisara Ratna Award from the National Pollution Control and Environmental Conservation Committee. 2:02. On the other side, there are three respondents. However, the contesting and interested respondent is the third respondent Dr.Nanditha Krishna, the Honorary Director of C.P.R. Environmental Education Center, who is the first respondent. 2:03. The second respondent, the Government of India. It is the formal party. 2:04. The first respondent is a registered society under the Tamil Nadu Societies Registration Act. 2:05. According to third respondent, she is having high regard and impressed the State to entrust with the duties as a Honorary Director of the prestigious center, which is directly under the control of the second respondent and is doing women service to the nation. 2:06. The admitted facts are that the petitioner joined as Environmental Education Officer in the year 1997 in the first respondent in short center a place of excellence under the direct control of the Ministry of Environment and Forests, Government of India. 2:07. The petitioner was sent by the Ministry of Environmental and Forests to an advanced International Training Programme on Risk Management in Community Development Planning sponsored by SIDA and organized by SSPA, Sweden (AB) at Sweden. After his return from the training, he continued to serve with the center. It is to be noted that the petitioner was appointed in the year 1997 and later, he was sent for training in 2001. 2:08. An unpleasant incident occurred thereafter as his name was recommended to Sweden for participation in an International Consultation on Education for Sustainable Development. This recommendation was upset the third respondent, though it is a happy incident to the petitioner. 2:09. According to the petitioner, the recommendation had gone on the basis of personal acquaintance and in the assessment of the person who recommended his name basing on the abilities of the person. 2:10. But according to the third respondent, it is nothing but accepting different assignment ignoring the rules of center amounting to misconduct. 2:11. The recommendation was received by the center on the e-mail of the petitioner and a postal letter was received by the petitioner. The e-mail was placed before the third respondent. The trouble started thereafter. The third respondent did not approve the recommendation. It is not in writing. The disapproval is close to her heart. However, a communication was sent from the center through the Assistant Director P.Sudhakar on 16.2.2004 nominating the name of the third respondent to attend the consultation meeting. 2:12. The Ministry of Education and Science, Sweden sent a polite reply to the first respondent that they have decided to invite the petitioner only and is it not possible for sending the petitioner? The reply of refusal to invite the third respondent to participate in the consultation meeting and insisting for the petitioner was taken as a personal insult to the third respondent and the disciplinary action against the petitioner slowly started. 2:13. The defence of the petitioner is he is in no way responsible for this invitation or the refusal to allow the third respondent to participate in the consultation meeting and as he received the recommendation, he has responded positively with a hope that he will get a permission from the first respondent's organisation. He sent a positive communication as he was already sent for training in the year 2001. He never knew about the correspondence between center and Sweden. Thereafter, the third respondent directed the petitioner to disclose the name and designation of the persons who had recommended him and the petitioner furnished the same and immediately he was reprimanded for accepting the invitation without obtaining permission from the third respondent or from the second respondent. The petitioner explained his position that he is not responsible for the recommendation and when a recommendation has been received, he sent a communication in good faith and he has not proceeded to Sweden without obtaining permission from the first respondent. 2:14. The contention of the petitioner is that the invitation had come to him in his personal capacity and he had nothing to hide, at the same time, it is unnecessary for him to obtain any permission from the first respondent as he is not accepting any alternative assignment or duty in Sweden. He sent his explanation to the communication of the first respondent on 23.2.2004 and the same was placed before the Administrative Committee and he was summon to attend the meeting, where he was chastised for accepting the invitation. According to him, he was pressurised to give an undated letter of voluntary resignation. He refused to do so, but however, he offered an unconditional apology for the inconvenience caused and gave the same and taking advantage of the letter of unconditional apology, the services of the petitioner are terminated on the ground that he had violated the condition of appointment in having taken an assignment without permission from the first respondent. 2:15. Thus, the root cause for the entire struggle is understood: 2:16. Being aggrieved by the termination order, the petitioner is before this Court by way of writ. Some of the grounds are: i) The termination order has been passed without prior notice to show cause against the dismissal and it is violative of principles of natural justice and illegal. ii) The Ministry of Education, Sweden invited him recognizing his merit and ability on the recommendation of the one of his friends at Sweden and it is only a private invitation. iii) The request of the Ministry of Education, Sweden inviting the petitioner to participate in the consultation is not an assignment contemplated under Clause (d) of the appointment order dated 16.8.2000. Hence, the dismissal of the petitioner on the basis of the said clause is illegal. iv) The acceptance of the invitation by the petitioner is a bona fide act, whereas the order of dismissal at the instance of the third respondent is a mala fide act and it is liable to be set aside. v) There is no loss of image and embarrassment to the Organization. vi) The participation of the petitioner in the meeting at Sweden in fact would benefit the Organization in securing an international image to one of their employee and for an exposure in the international meetings, which would improve the resourcefulness and for the growth of the Organization. vii) The termination was purely based on the personal bias and it is due to malice against the petitioner by the third respondent. 3:00. Counter 3:01. The counter of the third respondent is important. Her contention is that she has no intention to spoil the future of any employee including the petitioner and the e-mail was addressed to the Organization inviting for the programme, whereas the petitioner has replied as if it was addressed to him. Therefore, the petitioner has committed a misconduct. 3:02. It is further stated that the petitioner has been already attending the programme during last year. The Organization has decided to send some other person and accordingly the name of the third respondent is proposed and there is no illegality in this. 3:03. It is also stated in the counter that the third respondent is always sending the staff of the first respondent to various countries on various programme and always they are encouraging the faculty to go to other parts of the world to acquire knowledge and there is no bias against the petitioner. 3:04. It is also stated that the third respondent has widely travelled around the world and does not take either salary or any other benefit from the first respondent's Organization and she is the chief fund raiser for the first respondent and she has permitted the first respondent to use her ancestral properties free of charges for the conduct of its activities. It is also stated that for the last 15 years, she is receiving several invitations from different countries and she attended many and she has nominated many of the staff, including the petitioner. 3:05. It is stated that the termination is as per the resolution of the Board and it is not of her own decision and after giving fair and reasonable opportunity, the order is passed and there is no violation of principles of natural justice. 3:06. It is also stated that as the petitioner himself has admitted that he committed a misconduct and he tendered apology, therefore, the petitioner cannot make hue and cry now. 3:07. The first respondent has also taken a plea that the first respondent is a Society registered under the Tamil Nadu Societies Registration Act and the writ petition is not maintainable. 3:08. The second respondent has also filed a counter stating that it is only a formal party and as per the bye laws, the services of the petitioner are terminated and writ is to be dismissed. 3:09. The respondents had denied all the averments of the petitioner. It is stated that the petitioner has not received any postal letter inviting him for consultation and there is no documentary proof and it is not a personal invitation and he has used the name of the first respondent to get the recommendation. It is stated that the e-mail in question was addressed to official e-mail ID of the first respondent and it is not addressed to the petitioner and when the said invitation was received, normally the staff members are to be nominated from senior to junior so as to go abroad and the petitioner himself cannot offer on his own and it is for the first respondent to decide who has to be sent. 4:00. The Charge:- A memo was issued on 21.2.2004 by the third respondent, wherein it is stated that the petitioner accepted the invitation without permission from the third respondent or from the second respondent and the invitation is sequel to the original visit that was arranged by the Ministry of Environment and Forests and the subsequent visits will have to be to the same and with the knowledge of the Ministry of Environment and Forests and it is not a private invitation and the acceptance without permission is a grave infringement discipline and without any proper authorisation, the petitioner has conveyed his intention to attend the consultation and it is a grave offence and not disclosing the truth to the office. The petitioner is indulging in private correspondence. Therefore, he is asked to explain as to why action should not be taken against him. 5:00. Reply:- The petitioner has sent reply on 23.2.2004, wherein it is stated that the present invitation to participate in the consultation has no connection whatsoever with his earlier visit and the selection of participants for this consultation is purely on the recommendations made by the distinguished experts of the organizers and the invitation of participants for the consultation and the selection of participants are not made by the organizers through Ministry of Environment and Forests and this is only an academic exercise for which they wanted to select people from different countries for deliberations and not for any assignment or job and it is only a conference for consultation and it is his personal capacity he has received the invitation and since official mail letters were given and the same were received in the official records and it was misunderstood by the office. He has explained that how he received the invitation and why he intend to go and it is not accepting any assignment and there is no infringement of any discipline and there is no violation and he has not committed any grave offence. 6:00. Termination:- Dissatisfied with the reply, the petitioner was directed to attend the meeting. Thereafter, the impugned order is passed on 4.3.2004 by the third respondent, wherein it is stated that the petitioner was present in the committee meeting on 23.2.2004. When the gravity of his act is discussed, he gave a letter dated 22.2.2004 and after giving unconsideration of the entire episode and after verifying the unconditional apology given by the petitioner, the following issues are discussed and they are the violation of Clause (d) of the appointment order dated 16.8.2000 attempted to undertake a trip to Sweden bypassing the official channel. The correspondence with Sweden amounting to clandestine attempt making the Organization in an embarrassing situation. The four issues considered in the meeting are as follows:- 1) It is very obvious that you had, in violation of clause (d) of the appointment order dated 16.8.2000, attempted to undertake a trip to Sweden bypassing the official channel. 2) From the correspondence we had with Sweden in this regard, we are convinced that your clandestine attempt has landed our organization in a highly embarrassing situation, not to speak of the loss of image to our organization. 3) From a dispassionate consideration of the sequence of events in the matter in question, we believe that a decisive action from our organization is called for or else the consequences by way of loss of image or reputation to our organization will be alarmingly dreadful. 4) The fact remains that as a result of the episode the management has lost confidence in you-a requirement which is so essential for our continuous association. After considering the above four, the petitioner is discharged from the service. 7:00. Points:- 7:01. Heard arguments: The sole point for discussion in the legality of the termination. 7:02. Before going in detail on this aspect, this Court would like to clarify itself that the counter affidavits of the respondents clearly disclose that the first respondent is sending many of its officers to foreign countries to attend the programmes to promote their career. Therefore, attending any programme either in Sweden or in any other country will not amount to accepting an assignment. 7:03. In the impugned termination letter, clause (d) of the appointment order dated 16.8.2000 is discussed. The same is produced hereunder "d. You should not take any employment or assignments elsewhere (as part time or otherwise) during the period of your employment with the C.P.R.E.E.C., without obtaining the prior approval of the C.P.R.E.E.C." 7:04. When the respondents themselves are admitting that they are sponsoring or nominating their officers to participate in various programmes that are being held all over the globe and when the petitioner is invited to attend such programme, it is nothing but absurd to contend that the petitioner is taking employment or assignment elsewhere either as part time or full time without obtaining prior approval of the center. 7:05. The participation of the petitioner in the consultation at Sweden is not an alternative employment or assignment but the third respondent has converted it as an alternative employment or assignment. 7:06. Further, the third respondent herself intended to go and participate in the consultation and in fact the e-mail has been addressed through one of her subordinates suggesting new name to recommend as participant for the consultation 7:07. In such case this Court is unable to understand how the acceptance of invitation by the petitioner can be treated as an `employment' or 'assignment elsewhere'. When the third respondent being the Honorary Director is willing for her candidature as participant for the consultation and when it is not amounting to accepting an `employment' or `assignment elsewhere', how the respondents have treated the acceptance of the petitioner for attending the consultation is a violation of clause (d) of the appointment order. Therefore, this Court is of the opinion that the respondents have passed the order with bias, with mala fide intention. There is a malice in this regard and on the face of the record and on merits the action of the respondents is held as illegal and arbitrary. 7:08. Let us now examine what is malice, bias, victimisation, mala fide and bona fide acts. MALICE:- In S.R. Venkataraman vs. Union of India AIR 1979 Supreme Court 49 Wherein it has been held that Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or want of reasonable or probable cause. Malice in law is, however, quite different. "Viscount Haldane described it as follows in Shearer v. Shields, (1914) AC 308 at p. 813:- "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently." Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard C.J., in Pilling v. Abergele Urban District Council, (1950) 1 KB 636 where a duty to determine a question is conferred on an authority which state their reasons for the decision, "and the reasons which they state show that they have taken into account matters which they ought not to have taken into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter." The principle which is applicable in such cases has thus been stated by Lord Esher M.R. In The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras (1890) 24 QBD 371 at p.375:- "If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion." This view has been followed in Sedler v. Sheffield Corporation, (1924) 1 Ch 483." BIAS:- In Kumaon Mandal Vikas Nigam Ltd., Vs. Girja Shankar Pant AIR 2001 Supreme Court 24 Wherein it has been held as follows:-