NON-REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 2926 of 2018  (Arising out of S.L.P. (Civil) No .4208 OF 2011)

Director Aryabhatta Research Institute  Of Observational Sciences (ARIES)  & Anr.  ... Appellants

Versus

Devendra Joshi  & Ors.     ... Respondents

WITH Civil Appeal No. 2927 of 2018

(Arising out of S.L.P. (Civil) No .10679 OF 2011) Devender Joshi .... Appellant

Versus

Director Aryabhatta Research Institute  Of Observational Sciences (ARIES)  & Ors.  ….Respondents

J U D G M E N T

L. NAGESWARA RAO, J.

Civil Appeal No. 2926 of 2018@Special Leave Petition (Civil) No.4208 of 2011

Leave granted.  

This Appeal is filed against the judgment of the High

Court of Uttarakhand at Nainital by which the order dated

31st December,  2008  terminating  the  services  of

Respondent No.1 was set aside.   1

2. Respondent No.1 was offered appointment to the post of

Engineer-B (Civil)  on 1st November,  2007 after  he was

selected pursuant to  advertisement dated 10th August,

2007.  He had joined on 1st January, 2008.  Respondent

No.1 was placed on probation for a period of two years

from the date of joining.  Appellant No.2 was informed by

the  Competent  Authority  on  22nd May,  2008  that  the

period  of  probation  for  Group  ‘A’  officers  had  been

reduced from two years to one year.  By a letter dated

15th October, 2008, Respondent No.1 was informed that

his period of probation had been reduced from two years

to one year pursuant to an amendment to the bye-laws.

3. An internal Office Note dated 24th July, 2008 was issued

directing Respondent  No.1  to  submit  a  detailed report

regarding  certain  irregularities  in  improvements  that

were  suggested  in  road  infrastructure  required  for

transportation of  equipments.   By Office Memorandum

dated  18th August,  2008,  the  Registrar  communicated

certain  shortcomings  in  the  discharge  of  duty  by  the

Respondent No.1.  The Respondent No.1 was directed to

discharge his duties diligently and complete the allotted

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tasks within a given time frame. Respondent No.1 was

also asked to submit his explanation regarding initiation

and completion of the work relating to providing tanks

for water supply for a building without prior intimation

and  without  getting  formal  approval  of  the  proposal/

estimates for the construction of the same.  

4. An Office Memorandum dated 23rd December, 2008 was

issued calling for an explanation from Respondent No.1

for  an alleged misconduct.   Reference was made to a

preliminary inquiry which revealed that the Respondent

No.1  was  responsible  for  removal  of  a  pen-drive  and

copying the files available in  the said pen-drive to his

personal  computer  without  permission.    By  Office

Memorandum dated 31st December, 2008, the Appellant

No.2 terminated the services of Respondent No.1. It was

mentioned  in  the  said  order  that  the  services  of

Respondent No.1 were discontinued beyond the period of

probation  of  one  year.   Respondent  No.1  submitted  a

representation to the Appellant for re-instatement which

was rejected by an Order dated 2nd April, 2009.

5. Respondent  No.1  filed  a  Writ  Petition  before  the  High

Court of Uttarakhand at Nainital challenging orders dated

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31st December, 2008 and 2nd April, 2009.  It was averred

in the said Writ Petition that the Respondent No.4, who

was selected  for  appointment  to  the  post  of  Engineer

Group ‘B’ pursuant to an advertisement issued on 18th

April,  2008,  was  appointed  as  Engineer–C  (Civil).

Respondent No.1 was aggrieved by the appointment of

Respondent No.4 to Group ‘C’, which was a post higher

than what he was holding for which reason he made a

representation  on  8th October,  2008.  Respondent  No.1

sought for the benefits that were given to Respondent

No.4 and made a request for appointment as In-Charge/

Project Engineer of the construction projects at Monora

Peak and Devasthal.  It was alleged by Respondent No.1

that  Respondent  No.4 was inimically  disposed towards

him  in  view  of  the  representations  made  against  his

appointment  to  Group  ‘C’  post.   According  to  the

Respondent  No.1,  the  Office  Memorandum  dated  23rd

December, 2008 was at the behest of Respondent No.4

which  formed  the  foundation  of  the  Order  dated  31st

December, 2008 by which his services were terminated.

6. The Appellant filed a reply in which the Order dated 31st

December,  2008  was  justified  on  the  ground  that  the

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termination of  the services of  Respondent No.1 at  the

end of the period of probation was due to unsatisfactory

work  and  not  for  any  misconduct.   The  Appellant

contended  that  there  was  no  stigma  attached  to  the

Order  of  termination  as  the  discontinuance  of  the

services of Respondent No.1 was not due to misconduct.

The Appellant further alleged that it was decided not to

proceed against  Respondent No.1 to prove misconduct

though a prima facie finding of misconduct was recorded

in the preliminary inquiry.  Finally, it was submitted that

the Order dated 31st December, 2008 was an order of

termination simpliciter,  not  warranting any opportunity

to be given to the delinquent employee.

7. The High Court held that the Order dated 31st December,

2008 being an innocuous order  of  termination did  not

cast  any  stigma  against  Respondent  No.1.   The  High

Court further held that the Order dated 31st December,

2008 was challenged on the ground that it was vitiated

by  mala fide.   The High Court  found that  Respondent

No.4 could not have been appointed to Group ‘C’ post

when  he  was  selected  for  appointment  to  Group  ‘B’

Engineer post.  The fact that there was no advertisement

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to Group ‘C’ post was also highlighted.  It was also held

that  the  services  of  the Respondent  No.1  were

terminated because of his objection to the appointment

of  Respondent  No.4  to  a Group  ‘C’  post.   The

Memorandum dated 23rd December, 2008 was issued at

the behest of Respondent No.4 who was holding a higher

post  than  Respondent  No.1.  On  the  said  finding,  the

High  Court  set  aside  the  Order  dated  31st December,

2008  and  extended  the probationary  period  of

Respondent No.1 by one more year.  There was a further

direction to the Appellant to consider the representation

dated 8th October,  2008 of  Respondent  No.1 either  by

giving the post of Engineer-B (Civil) to Respondent No.1

or by reverting Respondent No.4 to the post of Engineer

–C (Civil).

8. We  have  heard  Mr.  Ajit  Kumar  Sinha,  learned  Senior

Counsel  appearing  for  the  Appellants  and  Mr.  Jayant

Bhushan,  learned  Senior  Counsel  and  Mr.  S.N.  Bhat,

Advocate  appearing  for  Respondent  No.1.   Mr.  Sinha

submitted  that  the  High  Court  committed  an  error  in

setting  aside  the  Order  of  termination  dated  31st

December, 2008 on the ground that it was mala fide.  He

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referred to letters written to Respondent No.1 regarding

his  unsatisfactory  performance  even  prior  to  the

appointment  of  Respondent  No.4  to  contend  that  the

finding of the High Court that the termination of services

of Respondent No.1 was at the instance of Respondent

No.4  is  not  correct.   Though,  there  was  a  preliminary

inquiry that was conducted into the alleged misconduct,

the Appellant decided not to proceed further and hold a

departmental  inquiry  to  prove  any  misconduct  of

Respondent No.1. However it was decided to terminate

the services on completion of the probation period due to

unsatisfactory work.    He also made an attempt to justify

the  appointment  of  Respondent  No.4  to  the  post  of

Engineer-B  (civil).   He  further  submitted  that  the

appointment of Respondent No.4 was not challenged by

Respondent No.1 in the Writ Petition.   

9. Mr.  Jayant  Bhushan,  learned Senior  Counsel  submitted

that the point that arises for consideration is whether the

Order dated 31st December, 2008 is sustainable as the

foundation of the Order is misconduct as mentioned in

the  Memorandum  dated  23rd December,  2008.   He

submitted that the Order of termination ought to have

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been  preceded  by  a  detailed  inquiry  after  providing

sufficient opportunity to Respondent No.1.

10. The  High  Court  held  that  the  reason  for  the  Order

dated 31st December, 2008 was not to end the probation

of the Appellant but to punish him for objecting to the

appointment  of  Respondent  No.4  to  Engineer-B  (Civil)

post. The High Court referred to a representation made

by Respondent No.1 on 8th October,  2008 pointing out

that Respondent No.4 could not have been appointed to

Engineer-B (Civil) post.  Without taking any action on the

said  representation,  the  Appellants  initiated  a

preliminary  inquiry  for  misconduct  and  issued  a

Memorandum  dated  23rd December,  2008  seeking  an

explanation  from  Respondent  No.1.   Thereafter,  an

innocuous Order of termination of probation was passed

on 31st December, 2008.

11. We do not agree with the findings of the High Court

that the Order dated 31st December, 2008 was passed

only to punish Respondent No.1 for his objection to the

appointment  of  Respondent  No.4  to  the  post  of

Engineer-C (Civil).   As  the  appointment  of  Respondent

No.4 was not assailed by Respondent No.1 in the Writ

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Petition, the High Court ought not to have adjudicated

the issue of validity of the appointment of Respondent

No.4.  The High Court committed an error in ignoring the

letters  dated  24th July,  2008  and  18th August,  2008

written  by  the  Management  to  Respondent  No.1

pertaining to his unsatisfactory work.   The said letters

were  issued  prior  to  the  representations  made  by

Respondent No.1 against the appointment of Respondent

No.4.    A  perusal  of  the  Memorandum  dated  23rd

December, 2008 would show that there is a prima facie

finding  recorded  in  the  preliminary  inquiry  against

Respondent  No.1  which  cannot  be  attributed  to  the

representation  made  by  Respondent  No.1  against  the

appointment of Respondent No.4.  We are constrained to

hold that there is  no basis  for  the finding of the High

Court  that  the  real  reason  for  the  Order  dated  31st

December, 2008 was to ensure that the manner in which

Respondent  No.4  was  appointed  to  the  post  of

Engineer-C (Civil) remained concealed.  We are satisfied

that  the  Order  dated  31st December,  2008  does  not

suffer from any infirmity and it is an Order of termination

simpliciter.   There  is  sufficient  material  on  record  to

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indicate that Respondent No.1 was informed about his

unsatisfactory  performance  during  the  period  of  his

probation.      

12. A  plain  reading  of  the  Order  dated  31st December,

2008  would  show  that  it  is  an  innocuous  order

terminating the services of Respondent No.1 at the end

of the probation period.  As no allegations of misconduct

are made in the Order, there is no stigma.  Even the High

Court is of the opinion that there is no stigma.  The fact

remains that there was a preliminary inquiry conducted

by the Management in  which there was a  prima facie

finding  recorded  against  the  Respondent  No.1  of  his

involvement  in  an  act  of  misconduct.   The Appellants

decided  not  to  proceed  further  and  hold  a  detailed

inquiry  to  prove  the  misconduct  of  Respondent  No.1.

However, the service of Respondent No.1 was terminated

at the end of the period of probation which cannot be

said punitive.  Therefore, the Order dated 31st December,

2008 is an order of termination simpliciter.   In view of

the  above it  cannot  be  said  that  misconduct  was  the

foundation for the order of termination.

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13. It  will  be useful to refer to the relevant portion of a

judgment of this Court in Radhey Shyam Gupta v. U.P.

State Agro Industries Corpn. Ltd.1,  wherein it  was

held as follows:

“33. It  will  be noticed from the above decisions that the termination of the services of a temporary 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 punitive 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 misconduct 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 position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. 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 opportunity, it will not be bad. Even in a case where a regular departmental  enquiry is  started,  a charge-memo issued,  reply obtained,  and an enquiry 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  Bahadur case and in  Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of  establishing  the  guilt  of  the  employee.  In  all

1 (1999) 2 SCC 21 para 33 & 34-  Followed in Ratnesh Kumar Choudhary v. Indira Gandhi  Institute of Medical Science, Patna, Bihar (2015) 15 SCC 151

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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 interested to ascertain. In fact, the employer by opting to pass a simple order of termination  as  permitted  by  the  terms  of appointment  or  as  permitted  by  the  rules  was conferring a benefit on the employee 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 career if  a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.

34. But  in  cases  where  the  termination  is preceded 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 termination order is issued, such an order will be violative  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  conduct  but  are  cases  where  the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived  at  behind  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.”

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For the aforementioned reasons, the judgment of the

High  Court  is  set  aside  and  the  Appeal  is  allowed

accordingly.   

Civil Appeal No.  .2927of 2018 @ Special Leave Petition  (Civil) No  .10679   of  2011

Leave granted.  

14. This Appeal has been filed by Respondent No.1 being  

aggrieved by the judgment of the High Court of  

Uttarakhand at Nainital by which the High Court has  

rejected the prayer of Respondent No.1 to direct his  

confirmation as Engineer –B (Civil).

15. For the reasons mentioned in Civil Appeal No.2926 of  

2018 @ S.L.P. (Civil) No. 4208 of 2011, the Appeal is  

dismissed.  

…................................J.  [S.A. BOBDE]

........................................J.  [L. NAGESWARA RAO]

New Delhi, March 19, 2018.

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