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REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  8662 of  2015 (Arising out of S.L.P.(C) NO.8450 OF 2012)

Ratnesh Kumar Choudhary     ...  Appellant

                               Versus

Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others ... Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The  appellant,  in  pursuance  of  the  advertisement

published  in  the  daily  newspaper  “Hindustan”  dated

13.08.1998, applied for  the post of  Physiotherapist  under

Class-II  Post  in  the  Indira  Gandhi  Institute  of  Medical

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Sciences (IGIMS).  The selection committee of the institute

selected him for the appointment in the post as the Chest

Therapist.  The screening committee observed that the post

of Physiotherapist and Chest Therapist are of similar nature

and hence, the post of Chest Therapist may be considered

from  the  applications  received  for  the  post  of

Physiotherapist.   The  selection  committee  consisted  of

Director  of  the  IGIMS,  Medical  Superintendent  and  a

Government representative from the Health Department, in

addition  to  internal  and  external  experts.   The  appellant

along with other candidates were called for interview vide

letter  dated  02.12.1998  for  the  post  of

Physiotherapist/Chest Therapist.  

3. As the facts would exposit, the appellant received the

letter  of  appointment  for  the  post  of  Chest  Therapist  on

14.01.1999 which mentioned that he had been selected for

appointment to the sanctioned post of Chest Therapist and

would be put on probation for a period of two years which

could be extended at the discretion of the Director of  the

Institute.   It  also  contained a condition that  the  services

could  be put an end to  at  any time by giving a month’s

notice  by  either  side.   It  also  stipulated  certain  aspects

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which pertained to  giving  of  notice  and in lieu of  notice,

payment or deposit of certain amount as the case may be.

The appellant joined the post on 20.08.1999.   

4. When  the  appellant  was  continuing  on  the  post  of

Chest Therapist, a complaint was received by the Vigilance

Department, Government of Bihar on 3.11.2004 relating to

the illegal appointment of the appellant on the post of Chest

Therapist.  The complaint contained that the advertisement

for  Physiotherapist  and  Chest  Therapist  were  different

because streams are different and the appointment of the

appellant was absolutely illegal.  In pursuance of the said

complaint  an  enquiry  was  conducted  by  the  Deputy

Superintendent  of  Police,  who  submitted  a  report  on

03.11.2004 to the Deputy Inspector General of Police, Bihar,

Patna.  The reports reflected on various aspects and pointed

out that the appointment was illegal.  On the basis of the

said report the Joint Secretary in the Department of Health,

vide order dated 09.03.2005 requested the Director IGIMS

to initiate a proceeding for termination of the services of the

appellant by giving a show cause notice.  On the basis of the

said  communication  the  appellant  was  asked  by  the

Director of IGIMS to show cause within three days as to why

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on account of illegal appointment his services should not be

terminated.  The petitioner sent his reply on 20.3.2005 and

asked for the copy of the complaint as well  as the entire

report submitted by the Vigilance Department.

5. Despite  the  request  made  by  the  appellant  all  the

documents were not supplied to him which the appellant

considered  vital.   However,  he  submitted  the  reply  on

08.04.2005  and  on  09.04.2005  the  Director  IGIMS,

terminated his services by stating that his appointment on

the  post  of  Chest  Therapist  was  illegal  in  terms  of  the

investigation  done  by  the  Cabinet  (Vigilance  Department,

Bihar) and the explanation furnished by him in pursuance

of the show cause notice had been found unsatisfactory.

6. Taking exception to the aforesaid order of termination

the appellant invoked the writ jurisdiction of the High Court

of  Judicature at Patna in CWJC No. 8069 of  2006.  The

learned Single Judge vide order dated 04.11.2009 quashed

the order of termination and directed that appellant should

be treated in service with all consequential benefits.   The

learned Single Judge, as is evident, quashed the order on

the bedrock that the appellant was all through kept in the

dark as to on what grounds his service had been terminated

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and  further  he  was  not  furnished  with  the  necessary

documents which formed the part of enquiry conducted by

the  Cabinet,  Vigilance  Department.  The  learned  Single

Judge opined that there had been violation of the principles

of natural justice in view of the allegations made against the

writ petitioner.  

7. Being dissatisfied with the order of the learned Single

Judge, the Institute and its Board of Governors preferred

LPA No. 38 of 2010.  It is appropriate to reproduce certain

paragraphs from the judgment of the Division Bench:-

“5. The  ground  of  illegality  in  appointment  is based  upon the  advertisement  itself  which has been  enclosed  to  the  memo  of  appeal  as Annexure – 1.  Under the advertisement, eligible candidates were required to apply against various posts including post of Physiotherapist at serial 4 and post of Chest Therapist at serial 5. For the post of Physiotherapist, the essential qualification was  degree/diploma  in  Physiotherapy  from  a recognized  institute  whereas  for  the  Chest Therapist  it  was  degree/diploma  in  Chest Therapy from recognized institute.  On account of interview  and  selection,  another  person  was appointed  on  the  post  of  Physiotherapist  and although  the  writ  petitioner  did  not  have degree/diploma  in  Chest  Therapy  he  was appointed  to  the  post  by  relaxing  the  required essential  qualification  by  the  committee.   The committee  took  the  view  that  both  the  posts involve  similar  duties  and,  therefore, degree/diploma  in  Physiotherapy  could  be sufficient  for  appointment  to  the  post  of  Chest Therapist.

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6. In our considered view, the authorities of the Vigilance  Department  as  well  as  the  Institute have subsequently come to a correct finding that such  a  course  of  action  was  not  open  for  the selection committee.  If the essential qualification for the post of Chest Therapist was to be lowered down  or  changed,  due  advertisement  of  such change in policy was required to be made so that for  the  post  of  Chest  Therapist  those  who had degree/diploma in Physiotherapy could have filed their  applications.   This  was  not  done  by  the concerned authorities at the relevant time.  The relaxation  in  the  essential  qualification  thus benefited only the writ petitioner and none else. In such circumstances, it is not possible to hold that  the  selection  and appointment  of  the  writ petitioner  was  not  illegal.   The  constitutional mandate  of  giving  similar  treatment  and opportunity to others was clearly violated.

* * * * * 8. We are also of the considered view that in a case of illegal appointment there is no scope to condone such appointment on the plea that no fraud has been alleged against the beneficiary of such appointment.”

Being  of  this  view  the  Division  Bench  allowed  the

appeal and unsettled the decision rendered by the learned

Single Judge.  

8. We have heard Mr. Kumar Parimal learned counsel for

the appellant and Mr.  L.R.  Singh learned counsel  for  the

State.

9. Though various contentions were raised by the learned

counsel for both the parties, yet ultimately the controversy

centred around the issues whether the order of termination

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passed by the authority is  stigmatic  or  not;  and whether

there had been violation of principles of natural justice, for

no regular enquiry was conducted.  Learned counsel for the

appellant has drawn our attention to the Vigilance Report

dated  03.11.2004  and  the  show  cause  notice  dated

18.03.2005.  In the course of hearing, we had perused the

documents  in  original  that  are  in  Hindi,  and  asked  the

learned counsel for the parties to file the English translation

thereof which has been complied with.  The relevant part of

the vigilance report dated 03.11.2004 is reproduced below:-

“Shri  Ratnesh  Kumar  Chawdhary  appointed illegally on the post of Chest Therapist began to work in Chest Therapist Department.  But he was having no experience of working on the post of Chest Therapist, therefore his behaviour with the patients  admitted  in  the  hospital  was  not congenial and correct and he had no knowledge of working, therefore, his Officer In-charge issued warning  from  time  to  time  and  wrote  to  the Director  to  take  action against  him.   His  work being unsatisfactory, many warnings were issued to him, explanation was called and punishment was  given.   During  investigation  his  work  was found  to  be  totally  unsatisfactory  and  his conduct  was  not  proper.   During  the  inquiry conducted  against  charged  officer,  Medical Superintendent (Medicines)  wrote in his inquiry report that the written warning has been given to the Chest Therapist by the President and Director of Administrative Officers Union that if  he does not  make  necessary  improvement,  then  his services  may  be  terminated  from  this Establishment.   “As  well  as  the  order  of

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punishment  of  withholding  his  two  annual increments with cumulative effect was passed by I.G.I.M.S. for his indiscipline in the service and warning was issued, if in future any complaint is received  then  his  services  may  be  terminated”. Despite that, there was no improvement in this official.   As  a  result  of  which,  President Administrative body was authorized to constitute an  inquiry  committee  according  to  Resolution No.71/1047  made  in  71st Meeting  dated 02.12.2003 of  Administrative  Body of  I.G.I.M.S. Patna.  For constituting Special Committee, the proposal  was  sent  to  then  President,  Health Department.  71st Meeting of Administrative Body was  organized  under  the  Chairmanship  of Hon’ble  Dr.  Shakil  Ahmad,  Health  Minister  in which seven other doctor members in addition to the Director participated.

The  file  of  all  papers  relating  to  the  charged officer was sent in 2003 to then Health Minister, the  President  of  I.G.I.M.S.  Patna.   In  this connection, no information as to what action was taken  on  those  papers  is  not  available  in I.G.I.M.S.  Patna.   Director  of  aforesaid establishment Dr. Deleep Kumar Yadav stated in his  statement  that  the  charged  officer  Shri Ratnesh  Kumar  Chowdhury  was  appointed  on the  post  of  Chest  Therapist  by  the  Selection Committee.   Complaints  were  received  against him.  Dr. Deleep Kumar Yadav, Director of above establishment, according to his competence, took disciplinary  action  at  this  stage  against  the charged  officer.   But  in  connection  with  illegal appointment,  it  was  not  possible  to  take  any action at this stage as his appointment is within the  jurisdiction  of  permanent  Selection Committee.   He  also  made  it  clear  that  the conduct of charged officer was not correct.  As a result of which there was always dispute with his In-charge  Dr.  Sudhir  Kumar.   Due  to  his unlawful  conduct,  Dr.  Sudhir  Kumar, Neurologist,  I.G.I.M.S.  Patna  left  from  there  in

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2003.”

10. After so narrating, the report proceeded to state thus:-

“In this way, during inquiry it becomes clear that necessary  qualifications  and  standards  were prescribed for the post of Physiotherapist and for the post of Chest Therapist in the advertisement published  in  this  connection.   It  is  nowhere marked  in  the  advertisement  that  if  the application of separate eligibility holders against both aforesaid posts are not available, then any one from the said candidates in  the Panel  List shall  be  taken  into  consideration  for  the appointment.  Despite that,  the appointment of the applicant for the post at Serial No.04 in the advertisement,  was  made  on  the  post  given  at serial  No.05,  whereas  the  applicant  neither applied for the post, nor he had eligibility for that post.   Without  making  any  comment  by  the Selection  Committee,  Shri  Ratnesh  Kumar Chowdhary was appointed on the post of Chest Therapist and to prove this illegal appointment as genuine appointment,  the Establishment issued the appointment letter in which it is mentioned that  the  appointment  of  the  applicant  is  being made on the post, applied for, by the applicant, on  the  post  of  Chest  Therapist,  which  was absolutely  wrong.   Therefore,  this  illegal appointment may be cancelled.  The information of  which  may  be  given  to  the  Administrative Department of the charged employee.”  

11. On  the  basis  of  the  aforesaid  report,  a  show cause

notice was issued.  The said show cause notice issued to the

appellant on 18th March, 2005, reads as follows:-

“Your  appointment  was  made  on  the  post  of Chest  Therapist  in  this  establishment.   Shri Tarkeshwar  Singh,  Member  Bihar  Legislative Assembly made some allegations in his complaint

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letter.   Those  allegations  were  examined  by Cabinet Vigilance Department.  According to the report  filed  under  Letter  No.  724/G.O.  dated 24.12.2004  of  Cabinet  Vigilance  Department, Investigation  Bureau,  Bihar,  Patna,  your appointment was found illegal/wrong.  Report of Cabinet Vigilance Department was considered by the Health Department and decision was taken to terminate your service.   The department issued direction to take action to terminate your service vide  Letter  No.1/9/2005/78(1)Swa.  Dated 08.03.2005.  Therefore submit your explanation within three days to the undersigned as to why your appointment which is illegal/wrong be not terminated from the Institute.”

12. As  has  been  stated  earlier  a  reply  was  filed  by  the

appellant which was not accepted and, eventually, he was

served with the order of dismissal.  At this juncture, it is

necessary to refer to the counter affidavit filed in the present

case.   In  paragraph  3  of  the  counter  affidavit,  the

respondents have stated certain facts. The relevant part of

the said assertion is reproduced below:-

“That even after being appointment, while serving during  the  period  of  probation,  Petitioner  had misbehaved with his seniors and he did not obey the  seniors.   He  also  quarrelled  with  his colleagues  for  which  many  complaints  were received against him.  However during probation period,  petitioner  was  given  warning  and  on 29.1.2001  his  yearly  increments  was  withheld. Petitioner continued to work on probation till the date  of  his  dismissal  and  he  was  never  made permanent.”

13. In the counter affidavit a reference has been made to

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the report submitted against the appellant by the Cabinet

(Vigilance) Department, the relevant part of which we have

quoted hereinbefore.

14. It  is  submitted  by  the  learned  counsel  for  the

appellant  that  on  a  perusal  of  the  report  along  with

allegations made in the counter affidavit, it is graphically

clear  that  the  termination  of  the  appellant  is  not  a

termination  simpliciter.   The  report  comments  on  his

behaviour,  knowledge  of  working,  his  conduct,  his

mis-behaviour,  imposition  of  earlier  punishment  and

disobedience shown by him to his seniors.  It is urged by

the  learned  counsel  that  though  the  appellant  was  a

probationer and his appointment has been styled as illegal

on  the  ground  that  he  did  not  possess  the  requisite

qualification for the post of Chest Therapist, yet under the

guise  of  passing  an  order  of  termination  simpliciter,  the

authorities  have,  in  many a  way,  attached stigma which

makes the order absolutely stigmatic.  It is canvassed by

him that even if the order demonstrably appears to be an

innocuous order, the court in the in the obtaining factual

score should lift the veil or peep through the veil to perceive

its true character.

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15. The aforesaid submissions have been controverted by

the learned counsel for the respondents.

16. To appreciate the controversy, we may refer to certain

authorities  which  are  pertinent  to  appreciate  the

controversy.  In  Samsher Singh v.  State of Punjab1, a

seven-Judge Bench was considering the legal propriety of

the discharge of two judicial officers of the Punjab Judicial

Service  who  were  serving  as  probationers.   The  majority

laying down the law stated that:-

“No abstract proposition can be laid down that where  the  services  of  a  probationer  are terminated  without  saying  anything  more  in the order of termination than that the services are  terminated  it  can  never  amount  to  a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground  of  misconduct,  or  inefficiency  or  for similar  reason without  a  proper  enquiry  and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal  from service within  the  meaning  of  Article  311(2)  of  the Constitution.”

And again:-

“The form of the order is not decisive as to whether  the  order  is  by  way  of  punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of  the  case  establish  that  an  enquiry  into allegations  of  serious  and  grave  character  of misconduct involving stigma has been made in

1  (1974) 2 SCC 831

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infraction  of  the  provision  of  Article  311.  In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what  has  happened  in  the  case  of  Ishwar Chand  Agarwal.  The  order  of  termination  is illegal and must be set aside.”

17. In  Radhey  Shyam  Gupta  vs.  U.P.  State  Agro

Industries Corporation Ltd. and Another2, the services of

the appellant were terminated as he was a probationer.  He

challenged  the  order  of  termination  before  the

Administrative  Tribunal,  Lucknow,  U.P.,  alleging  that

though the termination order appeared to be innocuous, it

was really punitive in nature, inasmuch as it was based on

an  ex-parte report of enquiry which indicated that he had

accepted the  bribe  and,  therefore,  it  was  not  merely  the

motive, but the very foundation of the order of termination.

The tribunal allowed the application of the appellant and

quashed the order of termination.  The High Court in the

writ petition, placing reliance on the decisions rendered in

State  of  U.P.  vs.  Kaushal  Kishore  Shukla3,  Triveni

Shankar Saxena vs. State of U.P.4 and State of U.P. vs.

Prem  Lata  Misra5,  came  to  hold  that  the  order  of

termination had not been founded on any misconduct, but 2  (1999) 2 SCC 21 3  (1991) 1 SCC 691 4 (1992) Supp (1) SCC 524 5  (1994) 4 SCC 189

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on the other hand, the competent authority had found that

the  employee  was  not  fit  to  be  continued  in  service  on

account  of  unsatisfactory  work  and  conduct.   The  High

Court also observed that even if some ex-parte preliminary

enquiry had been conducted or a disciplinary enquiry was

initiated to inquire into some misconduct, it was the option

of  the  competent  authority  to  withdraw  the  disciplinary

proceedings and take the action of termination of service

under the terms of appointment and the same would not be

by way of punishment.  This Court after taking note of the

submissions of  the learned counsel  for  the parties posed

the following question:-

“Whether the report of Shri Ram Pal Singh was a preliminary report and whether it was the motive or the foundation for the termination order and whether  it  was  permissible  to  go  behind  the order?”

18. This  Court  noticed  that  there  are  two  lines  of

authorities.   In  certain  cases  of  temporary  servants  and

probationers,  it  had  taken  the  view  that  if  the  ex-parte

enquiry  or  report  is  the motive  for  the termination order,

then  the  termination  is  not  to  be  called  punitive  merely

because  the  principles  of  natural  justice  have  not  been

followed; and in the other line of decisions, this Court has

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ruled that if  the facts revealed in the enquiry are not the

motive but the foundation for the termination of the services

of the temporary servant or probationer, it would be punitive

and principles of  natural justice are bound to be followed

and failure to do so would make the order legally unsound.

The Court referred to the judgments rendered in  Samsher

Singh  (supra),  Parshotam  Lal  Dhingra  vs.  Union  of

India6,  State  of  Bihar  vs.  Gopi  Kishore  Prasad7 and

State of Orissa vs. Ram Narayan Das8 and, eventually,

opined  that  if  there  was  any  difficulty  as  to  what  was

“motive”  or  “foundation”  even after  the  Samsher Singh’s

case the said doubts were removed in Gujarat Steel Tubes

Ltd.  vs.  Gujarat  Steel  Tubes  Mazdoor  Sabha9.   The

clarification  given  by  the  Constitution  Bench  in  the  said

case, being instructive, the two-Judge Bench reproduced the

same, which we think we should do:-

“53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by ap- peal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected

6  AIR 1958 SC 36 7  AIR 1960 SC 689 8  AIR 1961 SC 177 9  (1980) 2 SCC 593

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with  the  formal  order  of  termination  what  the true ground for the termination is. If, thus scruti- nised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this  test,  it  cannot be called a punishment.  To put it  slightly differently,  a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the  service  of  the  delinquent  servant,  is  a  dis- missal, even if he had the right in law to termi- nate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds  are  recorded  in  a  different  proceeding from the formal order does not detract from its nature. Nor the fact that, after being  satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged miscon- duct and a live nexus between it and the termina- tion of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.

54. On the contrary, even if there is  suspicion of misconduct the  master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of  continuing a dubious ser- vant.  Then it  is  not  dismissal  but  termination simpliciter, if  no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here.”

19. On that basis, the Court proceeded to opine thus:-

“In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth but decides merely  not to continue a dubious em- ployee. The master does not want to decide or direct a decision about the truth of the allega-

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tions. But if he conducts an enquiry only for the purpose of proving the misconduct and the em- ployee is not heard, it is a case where the en- quiry is the foundation and the termination will be bad.”

20. After  stating the said principle,  the Court  traced the

history and referred to Anoop Jaiswal vs. Govt. of India10,

Nepal Singh vs. State of U.P.11 and Commissioner, Food

&  Civil  Supplies  vs.  Prakash  Chandra  Saxena12 and

opined as follows:-

“33. It will  be noticed from the above decisions that the termination of the services of a tempo- rary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be puni- tive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any miscon- duct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The posi- tion is not different even if a preliminary enquiry is held because the purpose of a preliminary en- quiry is to find out if there is prima facie evidence or material to initiate a regular departmental en- quiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an oppor- tunity, it will not be bad. Even in a case where a regular  departmental  enquiry  is  started,  a charge-memo issued, reply obtained, and an en-

10  (1984) 2 SCC 369 11  (1980) 3 SCC 288 12  (1994) 5 SCC 177

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quiry  officer  is  appointed — if  at  that  point  of time, the enquiry is dropped and a simple notice of  termination  is  passed,  the  same will  not  be punitive  because  the  enquiry  officer  has  not recorded evidence nor given any findings on the charges.  That  is  what  is  held  in  Sukh Raj  Ba- hadur case and in  Benjamin case.  In the latter case, the departmental enquiry was stopped be- cause the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee  against  whom  allegations  were  made the truth of which the employer was not inter- ested to ascertain. In fact, the employer by opting to pass a simple order of termination as permit- ted by the terms of appointment or as permitted by the rules was conferring a benefit on the em- ployee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his ca- reer  if  a  dismissal  or  other  punitive  order  was passed. The above are all examples where the al- legations whose truth has not been found, and were merely the motive.

34. But in cases where the termination is pre- ceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termina- tion order is issued, such an order will be viola- tive of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not  merely  to  gather  evidence for  a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee’s con-

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duct but are cases where the employer has virtu- ally accepted the definitive and clear findings of the enquiry officer,  which are all  arrived at be- hind the  back of  the  employee  — even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the  foundation and not merely the motive in such cases.”

21. Appreciating the facts of the said case, the Court set

aside the judgment of the High Court and restored that of

the  tribunal  by  holding  that  the  order  was  punitive  in

nature.

22. In  Chandra Prakash Shahi vs.  State of U.P. and

Others13 after addressing the history pertaining to “motive”

and  “foundation”  and  referring  to  series  of  decisions,  a

two-Judge Bench had held that:-

“28.  The  important  principles  which  are  de- ducible on the concept of “motive” and “founda- tion”, concerning a probationer, are that a proba- tioner has no right to hold the post and his ser- vices can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the proba- tioner for the post in question or for his further retention  in  service  or  for  confirmation,  an  in- quiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will  not be punitive in nature. But, if there  are  allegations  of  misconduct  and an in- quiry is held to find out the truth of that miscon- duct  and  an  order  terminating  the  service  is passed  on  the  basis  of  that  inquiry,  the  order

13  (2000) 5 SCC 152

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would be punitive in nature as the inquiry was held not for assessing the general  suitability  of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it  will  not be a mere matter of “motive”.

29.  “Motive” is  the moving power which impels action for a definite result, or to put it differently, “motive” is that which incites or stimulates a per- son to do an act. An order terminating the ser- vices of an employee is an act done by the em- ployer.  What  is  that  factor  which  impelled  the employer to take this action? If it was the factor of  general  unsuitability  of  the employee for  the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a prelimi- nary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having re- gard to other circumstances,  would be founded on  the  allegations  of  misconduct  which  were found to be true in the preliminary inquiry.”

23. A three-Judge Bench in  Union of India and Others

vs. Mahaveer C. Singhvi14, dwelled upon the issue whether

the order of  discharge of  a probationer was simpliciter  or

punitive,  referred  to  the  authority  in  Dipti  Prakash

Banerjee vs. Satyendra Nath Bose National Centre for

Basic Sciences15 and came to hold thus:-

“It was held by this Court in Dipti Prakash Baner- jee case that whether an order of termination of a probationer can be said to be punitive or not de-

14  (2010) 8 SCC 220 15  (1999) 3 SCC 60

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pends on whether the allegations which are the cause of the termination are the motive or foun- dation. It was observed that if findings were ar- rived at in inquiry as to misconduct, behind the back of the officer or without a regular depart- mental enquiry, a simple order of termination is to be treated as founded on the allegations and would be bad, but if  the enquiry was not held, and no findings were arrived at and the employer was not inclined to conduct an enquiry, but, at the same time, he did not want to continue the employee’s  services,  it  would  only  be a case  of motive and the order of  termination of the em- ployee would not be bad.”

24. At this juncture, we must refer to the decision rendered

in Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I.

of Medical Sciences and Another16, wherein a two-Judge

Bench struck a discordant note by stating that:-

“Before considering the facts of the case before us one further,  seemingly intractable,  area relating to the first test needs to be cleared viz. what lan- guage in a termination order would amount to a stigma? Generally speaking when a probationer’s appointment is terminated it means that the pro- bationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the ter- mination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a proba- tioner’s  appointment,  is  also not stigmatic.  The decisions cited by the  parties  and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuit- ability for the job.”

16  (2002) 1 SCC 520

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25. The  said  decision  has  been  discussed  at  length  in

State  Bank of  India  and Others  vs.  Palak  Modi  and

Another17 and,  eventually,  commenting  on the  same,  the

Court ruled thus:-

“The  proposition  laid  down in  none  of  the  five judgments relied upon by the learned counsel for the appellants is of any assistance to their cause, which were decided on their own facts. We may also add that the abstract proposition laid down in para 29 in Pavanendra Narayan Verma v. San- jay  Gandhi  PGI  of  Medical  Sciences is  not  only contrary to the Constitution Bench judgment in Samsher  Singh v.  State  of  Punjab,  but  a  large number  of  other  judgments—State  of  Bihar v. Shiva Bhikshuk Mishra,  Gujarat Steel Tubes Ltd. v.  Mazdoor Sabha and Anoop Jaiswal v.  Govt. of India to  which reference has  been made by us and to which attention of the two-Judge Bench does not appear to have been drawn. Therefore, the said proposition must be read as confined to the facts of that case and cannot be relied upon for taking the view that a simple order of termina- tion of service can never be declared as punitive even though it may be founded on serious allega- tion of misconduct or misdemeanour on the part of the employee.”

We  respectfully  agree  with  the  view  expressed

herein-above.   

26. In  Palak Modi’s  case,  the  ratio  that  has  been  laid

down by the two-Judge Bench is to the following effect:-

“The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his

17  (2013) 3 SCC 607

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service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If  the competent  authority holds an inquiry for judging the suitability  of  the probationer  or  for his further continuance in service or for confir- mation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of miscon- duct  constitutes  the  foundation  of  the  action taken, the ultimate decision taken by the compe- tent authority can be nullified on the ground of violation of the rules of natural justice.

27. In the facts of the case, the Court proceeded to state

that there is a marked distinction between the concepts of

satisfactory completion of probation and successful passing

of the training/test held during or at the end of the period of

probation,  which  are  sine  qua  non  for  confirmation  of  a

probationer and the Bank’s right to punish a probationer for

any defined misconduct, misbehaviour or misdemeanour. In

a given case, the competent authority may, while deciding

the issue of suitability of the probationer to be confirmed,

ignore  the  act(s)  of  misconduct  and terminate  his  service

without  casting  any  aspersion  or  stigma  which  may

adversely  affect  his  future  prospects  but,  if  the

misconduct/misdemeanour constitutes the basis of the final

decision taken by the competent authority to dispense with

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the  service  of  the  probationer  albeit  by  a  non-stigmatic

order, the Court can lift the veil and declare that in the garb

of  termination simpliciter,  the employer has punished the

employee for an act of misconduct.

28. In the case at hand, it is clear as crystal that on the

basis of a complaint made by a member of the Legislative

Assembly, an enquiry was directed to be held.  It has been

innocuously stated that the complaint was relating to illegal

selection on the ground that the appellant did not possess

the requisite qualification and was appointed to the post of

Chest  Therapist.   The  report  that  was  submitted  by  the

Cabinet (Vigilance) Department eloquently states about the

conduct and character of the appellant.  The stand taken in

the  counter  affidavit  indicates about the behaviour of  the

appellant.   It  is  also  noticeable  that  the  authorities  after

issuing the notice to show cause and obtaining a reply from

the delinquent employee did not supply the documents.  Be

that  as  it  may,  no  regular  enquiry  was held  and he  was

visited with the punishment of dismissal.  It is well settled in

law, if an ex parte enquiry is held behind the back of the

delinquent employee and there are stigmatic remarks that

would constitute foundation and not the motive.  Therefore,

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when  the  enquiry  commenced  and  thereafter  without

framing  of  charges  or  without  holding  an  enquiry  the

delinquent employee was dismissed, definitely, there is clear

violation  of  principles  of  natural  justice.   It  cannot  be

equated  with  a  situation  of  dropping  of  the  disciplinary

proceedings and passing an order of termination simpliciter.

In that event it would have been motive and could not have

travelled to the realm of the foundation.  We may hasten to

add that  had the  appellant  would  have  been visited  with

minor  punishment,  the  matter  possibly  would  have  been

totally different.  That is not the case.  It is also not the case

that  he  was  terminated  solely  on  the  ground  of  earlier

punishment.   In fact, he continued in service thereafter.  As

the report would reflect that there are many an allegation

subsequent to the imposition of punishment relating to his

conduct,  misbehaviour  and  disobedience.  The  Vigilance

Department, in fact, had conducted an enquiry behind the

back of the appellant.   The stigma has been cast in view of

the  report  received  by  the  Central  Vigilance  Commission

which was ex parte and when that was put to the delinquent

employee, holding of a regular enquiry was imperative.  It

was not an enquiry only to find out that he did not possess

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the  requisite  qualification.   Had that  been so,  the  matter

would have been altogether different.   The allegations in the

report  of  the  Vigilance  Department  pertain  to  his

misbehaviour, conduct and his dealing with the officers and

the same also gets accentuated by the stand taken in the

counter affidavit.  Thus, by no stretch of imagination it can

be accepted that it is termination simpliciter.  The Division

Bench has expressed the view that no departmental enquiry

was required to be held as it was only an enquiry to find out

the necessary qualification for the post of Chest Therapist.

Had the factual score been so, the said analysis would have

been treated as correct, but unfortunately the exposition of

factual  matrix  is  absolutely  different.   Under  such

circumstances,  it  is  extremely difficult  to  concur with the

view expressed by the Division Bench.  

29. Consequently, the appeal is allowed and the judgment

and order passed by the Division Bench of the High Court is

set aside and that of  the learned Single Judge is upheld,

though on different grounds.  Accordingly, it is directed that

the appellant be reinstated in service within a period of six

weeks and he shall  be entitled to 50% towards his salary

which shall be paid to him within the said period.  In the

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facts and circumstances, there shall be no order as to costs.

.............................J. [Dipak Misra]

..........................., J. [Prafulla C. Pant]

New Delhi; October 15, 2015

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