RATNESH KUMAR CHOUDHARY Vs INDIRA GANDHI INST. OF M.S. PATNA .
Bench: DIPAK MISRA,PRAFULLA C. PANT
Case number: C.A. No.-008662-008662 / 2015
Diary number: 6176 / 2012
Advocates: ANIRUDDHA P. MAYEE Vs
CHANDRA PRAKASH
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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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