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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  7841-7842 OF  2012

State Bank of India and others          …Appellants

versus

Palak Modi and another    …Respondents

J U D G M E N T

G. S. Singhvi, J.

1. Whether the alleged use of unfair means by Palak Modi and Prabhat  

Dixit (hereinafter described as ‘the private respondents’) in the test held by  

appellant No.1 – State Bank of India (for short, ‘the Bank’) constituted the  

foundation of the decision taken by General Manager (NW-I), State Bank of  

India,  Human Resource  Department  (respondent  No.3)  to  terminate  their  

services  under  Rule  16(3)  of  the State  Bank of  India  (Officers’  Service)  

Rules, 1992 (for short, ‘the Rules’) is the pivotal question which arises for  

consideration in these appeals filed against order dated 17.11.2011 passed by  

the Allahabad High Court in Writ Petition Nos.1298/2011 and 1512/2011.  

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2. In response to an advertisement issued by appellant No.1, which was  

published on 1.7.2008, the private respondents applied for appointment as  

Probationary Officers.  They appeared in the two-tier examination held by  

the Bank, which was followed by group discussion and interview.  On being  

declared successful, the private respondents were appointed as Probationary  

Officers vide letters dated 5.5.2006, paragraph 5 of which reads as under:   

“5.  You will  be on probation for  a  period of two years from the date  of  appointment.  Your  confirmation  in the Bank shall be subject to: (a) Satisfactory reports from our own sources as well as from  District Authorities regarding your character and antecedents.

(b) Satisfactory completion of the in-service training during  probation.

(c)  Satisfactory performance in  the evaluation tests  to  be  conducted  by  the  Bank  during  the  probation  period.  Your  failure  in  evaluation  tests  twice  will  make  you  unfit  for  continuing  in  Bank's  service  and  in  that  eventuality,  your  appointment will be cancelled and your services terminated by  the Bank.”

3. Vide  letter  dated  22.12.2010  of  Deputy  Managing  Director  and  

Corporate Development Officer of the Bank, the Probationary Officers of  

2009-10  batch  were  informed  that  they  are  due  for  confirmation  on  

15.5.2011  and,  therefore,  they  may  appear  in  the  test  proposed  to  be  

conducted on 27.2.2011.  Paragraph 2 of that letter which has bearing on the  

decision of these appeals reads as under:

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“2. The relative extract from the extant policy for confirmation  of probationary officers is reproduced below:-

i) The confirmation test shall be held after 21 months  from the date of appointment of  the  probationary  officers  (during the probation period)

ii) Candidates  scoring  a  minimum  of  75%  marks  in  the  written test would qualify for the further process that will  include  group  discussion  and  interview.  Candidates  scoring  minimum  75%  marks  in-group  discussion/interview also shall be confirmed and placed  in the grade of MMGS-II. Those scoring less than 75%  marks but minimum 50% (45% for SC/ST/PWD) marks  in  the  written  test  shall  be  confirmed  in  the  grade  of  JMGS-I.  Candidates  scoring  less  than  50%  (45%  for  SC/ST/PWD) marks will be given two options as under:

OPTION-I Candidate  will  be  required  to  appear  in  another  confirmation  test  on  or  before  completion  of  24th  

month of his/her probation and  in the event of not qualifying in  the re-test his/her services will  be  terminated  with  immediate  effect  and  he/she  will  be  paid  one month's emoluments in lieu  of one month's notice in terms  of Rule 16(3)(a) of SBI Officer's  Service  Rule  read  with  the  present  policy  of  confirmation  of  Probationary  officers  as  application hitherto. OPTION-II

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Candidate's  probation  will  be  extended  by  a  further  period of maximum one year in terms of two periods of  six months each (extending the total probation period to a  maximum of 36 months) with the provision to appear in  02 more confirmation tests at 06 monthly intervals i.e.  02nd test in 27th month & 03rd test  in  33rd month  of  his/her  probation respectively with the  following conditions:- In the event of: Passing  the  proposed  02nd test  after  27th  month  of  probation  candidate  will  be confirmed as JMGS-I on  completion  of  30th month  of  probation  including  extended  period  of  probation  of  06  months. The extended period of  probation  of  six  months  will,  however, not to be counted for  service seniority. Failing in the 02nd test put passing the  proposed  03rd test  after  33rd  month  of  his/her  probation  he/she  will  be  confirmed  as  JMGS-I  on  completion  of  36th  month  of  probation  including  the  extended  period  of  probation  of  one  year.  The  extended period of probation of  one-year  will,  however,  not  be  

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counted for service seniority. Failing  in  the  proposed  03rd test  administered  in  33rd  month  of  his/her  probation,  04  increments in basic salary given  to him/her on appointment,  as  Probationary  Officer  will  be  withdrawn  and  he/she  will  be  absorbed  as  Officer  JMGS-I  on  completion  of  36th month  of  probation  period  including  the  extended period of probation of  one year. The extended period  of probation of one year will not  be  counted  for  service  seniority. In all the above cases,  as  mentioned  in  Option  II,  where  probation  period  is  extended, the annual increment  date will be shifted by skipping  the  extended  probation  period  of six or twelve months, as the  case may be.

"Further,  the  service rendered by him/her  during  extended probation period of six or twelve months  will  also  not  be  counted  as  eligible  service  for  seniority as well as for next promotion."

The committed for the Group Discussion /Interview will  comprise  of  a  Chief  General  Manager,  a  General  Manager  and  a  Deputy  General  Manager  besides  one  

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SC/ST representative who should at least be of SMGS IV  incumbency.”

4. The private respondents appeared in the test held on 27.2.2011, the  

result whereof was declared on 10.5.2011.  Their names did not figure in the  

result apparently because Institute of Banking Personnel Selection (for short,  

‘IBPS’), an independent expert body engaged in conducting recruitment for  

various  services,  which  was  entrusted  with  the  task  of  preparing  the  

examination papers and evaluating the answer sheets  sent  a report to the  

Bank that some candidates including the private respondents are suspected  

to have used unfair means. After four days, respondent No.3 issued letters  

dated 14.5.2011 and extended the probation of the private respondents for  

three  months  by  invoking  Rule  16(2)  of  the  Rules.   However,  without  

waiting for expiry of the extended period of probation,  respondent No.3  

terminated their services vide letters dated 27.6.2011 by indicating that this  

was being done under Rule 16(3) of the Rules.  

5. The private respondents challenged the termination of their services  

by filing writ petitions mainly on the grounds that the action taken by the  

concerned authorities of the Bank was arbitrary and violative of the rules of  

natural justice.  They pleaded that during the period of probation, no one had  

informed them about any shortcoming, deficiency or defect in their work  

and  yet  their  services  were  terminated  without  giving  them  notice  and  

opportunity of hearing.  The private respondents further pleaded that even  

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though they had requested the concerned officers of the Bank to disclose the  

reasons for extension of probation and termination of their services but no  

response was received from them.  

6. In  the  counter  affidavits  filed  on  behalf  of  the  appellants,  it  was  

pleaded that the decision to extend the probation of the private respondents  

and to terminate their services was taken after considering the report sent by  

IBPS about suspected use of unfair means by the candidates.  It was further  

pleaded that on checking the record of seating arrangement, it was revealed  

that  the  private  respondents  and  other  candidates  were  seating  in  close  

proximity  with  each  other  and  that  was  considered  as  a  corroborative  

evidence of their having used unfair means, namely, copying answers from  

one  another.   According  to  the  appellants,  action  was  taken  against  the  

private respondents strictly in accordance with the conditions of appointment  

without  holding  any  formal  inquiry  into  the  allegation  involving  

misconduct.   

7. The Division Bench of the High Court did not directly deal with the  

question whether the action taken by the General Manager was arbitrary,  

unfair and unjustified and whether in the garb of termination simpliciter, the  

concerned authority had penalized the private respondents on the charge of  

their having indulged in malpractices in the confirmation test but held that  

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the action taken by the appellants was contrary to the guidelines framed by  

the IBPS for detecting cases of use of unfair means.  The Division Bench  

referred to paragraph 4 of the guidelines framed by the IBPS and opined that  

after  considering the  report  suggesting  that  the  private  respondents  were  

suspected to have used unfair means in the examination, the Bank should  

have  scrutinized  their  cases  on  the  basis  of  their  performance  in  the  

descriptive papers and then taken a final decision.   The Division Bench took  

cognizance of the statement of the senior counsel appearing for the Bank  

that performance of the private respondents in the descriptive papers was not  

evaluated  and  held  that  the  Bank  could  not  have  discharged  them from  

service by assuming that they had used unfair means in the objective type  

papers.   

8. Shri U. U. Lalit, learned senior counsel appearing for the appellants  

argued that the impugned order is liable to be set aside because the view  

taken by the High Court on the legality and propriety of the decision taken  

by respondent  No.3 in  consonance with the terms of  appointment of  the  

private respondents and Rule 16(3) of the Rules is ex facie erroneous and is  

contrary  to  the  terms  and  conditions  of  their  appointment.    Shri  Lalit  

emphasized  that  officers  and  employees  of  unquestionable  integrity  are  

required  by  the  Bank  because  their  work  involves  high  degree  of  

responsibility and any compromise in that regard would be detrimental to  

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larger  public  interest.   Learned  senior  counsel  then  argued  that  the  

assessment made by the appointing authority on the issue of suitability of the  

private  respondents  for  confirmation  was  based  on  an  objective  

consideration of the report received from IBPS and in the absence of any  

express stigma in the order of termination/discharge, the respondents were  

not entitled to complain of violation of the rules of natural justice.  Shri Lalit  

submitted that holding of regular inquiry is not sine qua non for  

discharging  a  probationer  and  the  High  

Court committed grave error by nullifying  

the decision taken by respondent No.3 on  

the  ground  of  violation  of  the  

guidelines/policy  framed  by  IBPS  for  

evaluation of the answer sheets.  Shri Lalit  

produced before the Court xerox copy of  

the proceedings which culminated in the  

issue of letters dated 27.6.2011 to show  

that  respondent  No.3 approved the note  

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prepared  by  Deputy  General  Manager,  

Central  Recruitment  and  Promotion  

Department, who had examined the report  

sent  by  IBPS  and  checked  the  record  

relating  to  seating  arrangement  which  

conclusively  established  that  the  private  

respondents had used unfair means in the  

confirmation test.  Shri Lalit finally argued  

that  discharge  of  a  probationer  on  the  

ground of unsuitability cannot be termed  

as punitive and respondent No.3 was not  

required to give notice and opportunity of  

hearing to the private respondents.    In  

support of this argument, Shri Lalit relied  

upon the judgments  of  this  Court  in  Ajit  

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Singh v. State of Punjab (1983) 2 SCC 217,  

Krishnadevaraya  Education  Trust  v.  L.A.  

Balakrishna  (2001)  9  SCC  319,  

Pavanendra  Narayan  Verma  v.  Sanjay  

Gandhi PGI of Medical  Sciences (2002) 1  

SCC 520, Progressive Education Society v.  

Rajendra  (2008)  3  SCC  310  and  Rajesh  

Kumar  Srivastava  v.  State  of  Jharkhand  

(2011) 4 SCC 447.

9. Shri  Vikas  Singh,  learned  senior  

counsel appearing for IBPS submitted that  

the institute is an expert body which has  

been  conducting  examinations  for  the  

officers  and  employees  of  various  

organizations  and  financial  institutions.  

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Shri  Singh  submitted  that  IBPS  has  

developed  a  software  of  its  own  for  

identifying  the  cases  of  use  of  unfair  

means and the software generates report  

of all pairs of cases which have identical  

responses.  The report of the software is  

then reviewed by a group of experts and  

then and then only a conclusion is reached  

about  suspected  use  of  unfair  means.  

Learned senior  counsel  then argued that  

the  interpretation  placed  by  the  High  

Court  on  para  4(B)  of  the  guidelines  

framed by  IBPS  is  wholly  erroneous  and  

the  word  ‘may’  used  in  that  paragraph  

cannot  be  construed  as  ‘shall’  so  as  to  

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make evaluation of the descriptive papers  

as  mandatory  even  in  the  cases  of  

suspected  use  of  unfair  means.   He  

submitted  that  IBPS  had  sent  report  

regarding suspected use of unfair means  

because  the  candidates  had  given  11  

identical wrong answers and 44 identical  

correct  answers,  which  was  highly  

improbable  and  the  appellant  did  not  

commit  any  error  by  relying  upon  that  

report.  Learned senior counsel referred to  

the revised guidelines issued by IBPS for  

detecting the cases of use of unfair means  

and submitted that the report sent to the  

Bank  was  based  on  evaluation  of  the  

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papers  of  objective  test  in  consonance  

with  the  revised  guidelines  and  the  

concerned  officers  of  the  Bank  took  

decision  after  fully  satisfying  themselves  

that  the  private  respondents  had  used  

unfair  means  in  the  examination.   Shri  

Vikas  Singh  emphasized  that  the  action  

taken against the private respondents had  

salutary  and  sobering  effects  on  other  

candidates and not a single case of unfair  

means was detected by IBPS in the tests  

held between 17.7.2011 and 24.6.2012 for  

various batches of new recruits.

10. Shri Pallav Shishodia, Mrs. Shobha Dixit, Senior Advocates and other  

learned counsel appearing for the respondents argued that even though the  

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High Court did not specifically dealt with the question whether the action  

taken by respondent No.3 was vitiated due to violation of the rules of natural  

justice,  the  material  produced  before  the  High  Court  and  this  Court  

unmistakably shows that the decision contained in letters dated 27.6.2011  

was founded on the conclusion reached by the officers of the Bank that the  

private respondents were guilty of using unfair means in the confirmation  

test and this could not have been done without giving them action oriented  

notice and fair opportunity of hearing.  Shri Shishodia pointed out that the  

report  prepared by IBPS was based on computer  scanning of  the answer  

sheets of the objective papers and the appellants could not have relied upon  

such report for jeopardizing the career of the private respondents without  

holding an inquiry and without giving them opportunity to controvert the  

allegation of use of unfair means.  Learned senior counsel submitted that  

there was no deficiency or defect or shortcoming in the work or performance  

of  the  private  respondents  as  Probationary  Officers  and  in  the  guise  of  

discharging their services under Rule 16(3), the Bank had penalized them on  

the specific allegation of using unfair means in the confirmation test without  

complying with the basics of the natural justice.   

11. The question whether termination of the service of a temporary em-

ployee or  a probationer can be treated as punitive even though the order  

passed by the competent authority does not contain any stigma has been con-

sidered in a series of judgments.   In Parshotam Lal Dhingra v. Union of In-

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dia, 1958 SCR 828, which can be considered as an important milestone in  

the development of one facet of service jurisprudence in the country, the  

Constitution Bench was called upon to decide whether the order of reversion  

of an official holding a higher post in an officiating capacity could be treated  

as punitive.  After elaborate consideration of the relevant provisions of the  

Constitution and judicial decisions on the subject,  the Constitution Bench  

observed:

“...In short, if the termination of service is founded on the right  flowing from contract or the service rules then, prima facie, the  termination is not a punishment and carries with it no evil con- sequences and so Article 311 is not attracted. But even if the  Government has, by contract or under the rules, the right to ter- minate  the employment  without  going through the procedure  prescribed for inflicting the punishment of dismissal or removal  or reduction in rank, the Government may, nevertheless, choose  to punish the servant and if the termination of service is sought  to be founded on misconduct, negligence, inefficiency or other  disqualification, then it is a punishment and the requirements of  Article 311 must be complied with....”

12. In State of Punjab and another v. Sukh Raj Bahadur (1968) 3 SCR  

234, Mitter, J. considered several precedents and culled out the following  

propositions:

“1. The services of a temporary servant or a probationer can be  terminated under the rules of his employment and such termina- tion without anything more would not attract the operation of  Article 311 of the Constitution.

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2. The circumstances preceding or attendant on the order of ter- mination have to be examined in each case, the motive behind it  being immaterial.

3. If  the  order  visits  the  public  servant  with  any  evil  con- sequences or casts an aspersion against his character or integ- rity, it must be considered to be one by way of punishment, no  matter whether he was a mere probationer or a temporary ser- vant.

4. An order of termination of service in unexceptionable form  preceded  by an  enquiry  launched  by the  superior  authorities  only to ascertain whether the public servant should be retained  in service does not attract the operation of Article 311 of the  Constitution.

5. If  there be a full-scale  departmental  enquiry envisaged by  Article 311 i.e. an Enquiry Officer is appointed, a charge-sheet  submitted, explanation called for and considered, any order of  termination of service made thereafter will attract the operation  of the said article.”

13. In State of Bihar v. Shiva Bhikshuk Mishra (1970) 2 SCC 871, the  

three Judge Bench considered the question whether the respondent’s rever-

sion from the post of Subedar-Major to that of Sergeant in the backdrop of  

an inquiry made into the allegation of assault on his subordinate was puni-

tive.  On behalf of the appellant, reliance was also placed on the judgments  

in State of Punjab v. Sukh Raj Bahadur (supra) and Union of India v. R. S.  

Dhaba, Income-tax Officer, Hoshiarpur, 1969 (3) SCC 603 and it was ar-

gued that the order of reversion cannot be treated as punitive because it did  

not  contain any word of stigma and the High Court committed an error by  

relying upon the inquiry conducted by the Commandant for coming to the  

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conclusion that the order of reversion was punitive.  While rejecting the con-

tention, this Court observed:    

“We are unable to accede to the contention of the appellant that  the ratio of the above decision is that so long as there are no ex- press words of stigma attributed to the conduct of a Govern- ment Officer in the impugned order it cannot be held to have  been made by way of punishment. The test as previously laid  and which was relied on was whether the misconduct or negli- gence was a mere motive for the order of reversion or whether  it was the very foundation of that order. In Dhaba case, it was  not found that the order of reversion was based on misconduct  or negligence of the officer. So far as we are aware no such ri- gid principle has ever been laid down by this court that one has  only to look to the order and if it does not contain any imputa- tion of misconduct or words attaching a stigma to the character  or reputation of a Government Officer it must be held to have  been made in the ordinary course of administrative routine and  the court is debarred from looking at all the attendant circum- stances to discover whether the order had been made by way of  punishment. The form of the order is not conclusive of its true  nature and it might merely be a cloak or camouflage for an or- der founded on misconduct. It may be that an order which is in- nocuous on the face and does not  contain any imputation of  misconduct is a circumstance or a piece of evidence for finding  whether it was made by way of punishment or administrative  routine. But the entirety of circumstances preceding or attend- ant on the impugned order must be examined and the overriding  test will always be whether the misconduct is a mere motive or  is the very foundation of the order.”

(emphasis supplied)

14. In Samsher Singh v. State of Punjab (1975) 1 SCR 814, a seven-Judge  

Bench considered the legality of the discharge of two judicial officers of the  

Punjab Judicial Service, who were serving as probationers.   A. N. Ray, CJ,  

who wrote opinion for himself and five other Judges made the following  

observations:

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“No abstract proposition can be laid down that where the ser- vices of a probationer are terminated without saying anything  more in the order of termination than that the services are ter- minated 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.

The form of the order is not decisive as to whether the order is  by way of punishment. Even an innocuously worded order ter- minating 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 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”.

Krishna Iyer, J, who agreed with the learned Chief Justice, made the  

following concluding observations:

“Again,  could it  be that  if  you summarily pack off  a proba- tioner, the order is judicially unscrutable and immune? If you  conscientiously  seek  to  satisfy  yourself  about  allegations  by  some sort of enquiry you get caught in the coils of law, how- ever harmlessly the order may be phrased? And so, this sphinx- complex has had to give way in later cases. In some cases the  rule of guidance has been stated to be ‘the substance of the mat- ter’ and the ‘foundation’ of the order. When does ‘motive’ tres- pass into ‘foundation’? When do we lift the veil of ‘form’ to  touch the ‘substance’?  When the Court says so. These ‘Freu- dian’ frontiers obviously fail in the work-a-day world and Dr  Tripathi's observations in this context are not without force.”

15. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha  

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(1980) 2 SCC 593, Krishna Iyer, J. considered as to when the termination  

simpliciter can be termed as punitive and observed:  

“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 dismissal, even if he  had the right in law to terminate with an innocent order under  the standing order or otherwise. Whether, in such a case, the  grounds are recorded in different proceedings 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 misconduct and a live  nexus between it and the termination of service, the conclusion  is dismissal, even if full benefits as on simple termination, are  given and non-injurious terminology is used.

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 servant. Then it is not dismissal but ter- mination simpliciter, if no injurious record of reasons or punit- ive cut-back on his full terminal benefits is found. For, in fact,  misconduct is not then the moving factor in the discharge.”

16. In Anoop Jaiswal  v.  Government  of  India  (1984)  2 SCC 369,  this  

Court considered the question whether termination of the appellant’s service,  

who  was  appointed  to  Indian  Police  Service  and  was  on  probation,  by  

invoking Rule 12(b) of the Indian Police Service (Probation) Rules, 1954  

was  punitive  in  nature.   The  facts  found  by  the  Court  were  that  while  

undergoing  training  at  National  Police  Academy,  Hyderabad,  the  

Probationary Officers had delayed attending the ceremonial drill  practice.  

The Director of the Academy called explanation from all the probationers.  

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The appellant was accused of having instigated others not to join ceremonial  

drill practice on time.  He denied the allegation.  Thereafter, his service was  

terminated  by  a  non-stigmatic  order.   The  appellant  challenged  the  

termination of  his  service  on the  ground of  violation  of  Articles  14  and  

311(2) of the Constitution.  The writ petition filed by him was summarily  

dismissed by the Delhi High Court.  This Court referred to the averments  

contained in the pleadings of the parties, the judgments in Parshotam Lal  

Dhingra v. Union of India (supra), Samsher Singh v. State of Punjab (supra)  

State of Punjab v. Shri Sukh Raj Bahadur (supra), Union of India v. R.S.  

Dhaba (supra), State of Bihar v. Shiva Bhikshuk Mishra (supra), R.S. Sial v.  

State  of  U.P.  (1974)  3 SCR 754,  State  of  U.P.  v.  Ram Chandra Trivedi  

(1976) 4 SCC 52 and I.N. Saksena v. State of M.P. (1967) 2 SCR 496 and  

held:

“It  is,  therefore, now well  settled that where the form of the  order  is  merely  a  camouflage  for  an  order  of  dismissal  for  misconduct it is always open to the court before which the order  is  challenged  to  go  behind  the  form  and  ascertain  the  true  character of the order. If the court holds that the order though in  the form is merely a determination of employment is in reality a  cloak  for  an  order  of  punishment,  the  court  would  not  be  debarred, merely because of the form of the order, in giving  effect to the rights conferred by law upon the employee.

In the instant  case,  the period of probation had not yet  been  over.  The  impugned  order  of  discharge  was  passed  in  the  middle of the probationary period. An explanation was called  for from the appellant regarding the alleged act of indiscipline,  namely, arriving late at the gymnasium and acting as one of the  ringleaders on the occasion and his explanation was obtained.  Similar  explanations  were  called  for  from other  probationers  

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and enquiries were made behind the back of the appellant. Only  the case of the appellant was dealt with severely in the end. The  cases  of  other  probationers  who were  also  considered  to  be  ringleaders were not seriously taken note of.  Even though the  order of discharge may be non-committal, it cannot stand alone.  Though  the  noting  in  the  file  of  the  Government  may  be  irrelevant,  the  cause  for  the  order  cannot  be  ignored.  The  recommendation  of  the  Director  which  is  the  basis  or  foundation for the order should be read along with the order for  the purpose of determining its true character. If on reading the  two together the Court reaches the conclusion that the alleged  act of misconduct was the cause of the order and that but for  that incident it would not have been passed then it is inevitable  that  the  order  of  discharge  should  fall  to  the  ground  as  the  appellant  has  not  been  afforded  a  reasonable  opportunity  to  defend  himself  as  provided  in  Article  311(2)  of  the  Constitution.”

(emphasis supplied)

17. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for  

Basic  Sciences (1999)  3  SCC  60,  the  two  Judge  Bench  considered  the  

appellant’s challenge to the termination of his service after adverting to the  

various  communications  sent  by  the  Head  of  the  Organization   to  the  

appellant and formulated the following points:  

“(1) In what circumstances, the termination of a probationer's  services can be said to be founded on misconduct and in what  circumstances could it be said that the allegations were only the  motive? (2) When can an order of termination of a probationer be said to  contain an express stigma? (3) Can the stigma be gathered by referring back to proceedings  referred to in the order of termination? (4) To what relief?”

While dealing with the first point, the Court referred to various earlier  

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judgments and observed:

“As to in what circumstances an order of termination of a pro- bationer can be said to be punitive or not depends upon whether  certain allegations which are the cause of the termination are  the motive or foundation. In this area, as pointed out by Shah, J.  (as he then was) in Madan Gopal v. State of Punjab there is no  difference  between cases  where  services  of  a  temporary em- ployee are terminated and where a probationer is discharged.  This very question was gone into recently in  Radhey Shyam  Gupta v.  U.P. State Agro Industries Corpn. Ltd. and reference  was  made to  the  development  of  the  law from time to  time  starting from  Parshotam Lal Dhingra v.  Union of India to the  concept of “purpose of enquiry” introduced by Shah, J. (as he  then was) in  State of Orissa v.  Ram Narayan Das and to the  seven-Judge Bench decision in Samsher Singh v. State of Pun- jab and to post-Samsher Singh case-law. This Court had occa- sion to make a detailed examination of what is the “motive” and  what is the “foundation” on which the innocuous order is based.

If findings were arrived at in an enquiry as to misconduct, be- hind the back of the officer or without a regular departmental  enquiry,  the  simple  order  of  termination  is  to  be  treated  as  “  founded  ” on the allegations and will be bad  . But if the enquiry  was not held, 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 against  whom there were  complaints,  it  would only be a case of  motive and the order  would not be bad. Similar is the position if the employer did not  want to enquire into the truth of the allegations because of delay  in regular departmental proceedings or he was doubtful about  securing adequate evidence. In such a circumstance, the allega- tions would be a motive and not the foundation and the simple  order of termination would be valid.”

(emphasis supplied)

18. In Chandra Prakash Shahi v.  State of U.P.  (2000) 5 SCC 152, the  

Court  considered  the  correctness  of  the  order  passed  by the  High Court  

which had allowed the writ petition filed by the State and set aside the order  

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passed by U. P. Public Services Tribunal for reinstatement of the appellant.

The competent authority had terminated the appellant’s service in terms of  

Rule  3  of  the  U.  P.  Temporary  Government  Servants  (Termination  of  

Service) Rules, 1975.  It was argued on behalf of the appellant that the order  

by  which  his  service  was  terminated,  though  innocuous,  was,  in  fact,  

punitive  in  nature  because  it  was  founded  on  the  allegation  that  he  had  

fought with other colleagues and used filthy and unparliamentary language.  

In the counter affidavit filed on behalf of the respondents, it was admitted  

that there was no adverse material against the appellant except the incident  

in question.  The original record produced before the Tribunal revealed that  

the appellant’s service was terminated on account of his alleged involvement  

in the quarrel between the constables.  After noticing various precedents, this  

Court observed:

“The whole case-law is thus based on the peculiar facts of each  individual case and it is wrong to say that decisions have been  swinging like  a  pendulum;  right,  the order  is  valid;  left,  the  order is punitive. It was urged before this Court, more than once  including in Ram Chandra Trivedi case that there was a conflict  of  decisions  on  the  question  of  an  order  being  a  simple  termination order or a punitive order, but every time the Court  rejected the contention and held that the apparent conflict was  on account  of  different  facts  of  different  cases  requiring the  principles already laid down by this Court in various decisions  to  be  applied  to  a  different  situation.  But  the  concept  of  “motive” and “foundation” was always kept in view.

The important principles which are deducible on the concept of  “motive” and “foundation”, concerning a probationer, are that a  probationer has no right to hold the post and his services can be  terminated at any time during or at  the end of the period of  

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probation on account  of  general  unsuitability  for  the post  in  question.  If  for  the  determination  of  suitability  of  the  probationer for the post in question or for his further retention  in service or for confirmation, an inquiry 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 inquiry is held to find out the  truth of that misconduct and an order terminating the service is  passed on the basis of that inquiry, the order 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”.

“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 person to do an act. An order terminating  the services of an employee is an act done by the employer.  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 preliminary inquiry is  held behind his back to ascertain the truth of those allegations  and a termination order is passed thereafter, the order, having  regard  to  other  circumstances,  would  be  founded  on  the  allegations of misconduct which were found to be true in the  preliminary inquiry.

Applying these principles to the facts of the present case, it will  be noticed that the appellant, who was recruited as a Constable  in the 34th Battalion, Pradeshik Armed Constabulary, U.P., had  successfully completed his training and had also completed two  years of probationary period without any blemish. Even after  the completion of the period of probation under para 541 of the  U.P.  Police  Regulations,  he  continued  in  service  in  that  capacity.  The  incident  in  question,  namely,  the  quarrel  was  between two other Constables in which the appellant, to begin  with, was not involved. When the quarrel was joined by few  more Constables on either side, then an inquiry was held to find  out the involvement of the Constables in that quarrel in which  filthy language was also used. It was through this inquiry that  

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the  appellant's  involvement  was  found  established.  The  termination  was  founded  on  the  report  of  the  preliminary  inquiry as the employer had not held the preliminary inquiry to  find out whether the appellant was suitable for further retention  in service or for confirmation as he had already completed the  period of probation quite a few years ago but was held to find  out  his  involvement.  In  this  situation,  particularly when it  is  admitted  by  the  respondent  that  the  performance  of  the  appellant throughout was unblemished, the order was definitely  punitive in character  as  it  was founded on the allegations of  misconduct.”

(emphasis supplied)

19. In Union of  India v.  Mahaveer  C. Singhvi (2010) 8 SCC 220, the  

three-Judge  Bench  considered  the  question  whether  termination  of  the  

respondent’s  service  who  was  serving  as  I.F.S.  probationer  by  way  of  

discharge in accordance with the terms of employment was punitive.  The  

Court  noted that  the respondent’s service was terminated because he had  

sought extension to join the Mission at Madrid in Spain because of sudden  

deterioration in the health condition of his parents and also requested for  

providing medical facilities and diplomatic passports to them.  The Court  

also noted that the Ministry of External Affairs had taken cognizance of the  

complaint made by one Mrs. Narinder Kaur Chadha that the respondent had  

been threatening her entire family and in particular her daughter which was  

followed by some enquiries conducted into his conduct or character by Joint  

Secretary, Foreign Service Institute and a memorandum was issued to the  

respondent alleging his unauthorized absence.   The Joint  Secretary found  

that the complaint was wholly unfounded.  The Court then referred to the  

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principles laid down in earlier judgments and approved the view taken by  

the High Court that even though the order of discharge did not contain any  

stigma, the same was not conclusive and the High Court had rightly termed  

the same as punitive.  Some of the observations made in the judgment are  

extracted below:

“The materials on record reveal that the complaint made by Mrs  Narinder Kaur Chadha to the Minister of External Affairs had  been referred to the Joint Secretary and the Director (Vigilance)  on 8-2-2002 with a direction that the matter be looked into at  the earliest.  Although, nothing adverse was found against the  respondent, on 19-2-2002, the Joint Secretary (Vigilance) held  further discussions with the Joint Secretary (Admn.) in this re- gard. What is, however, most damning is that a decision was ul- timately  taken by the  Director,  Vigilance  Division,  on  23-4- 2002, to terminate the services of the respondent,  stating that  the proposal had the approval of the Minister of External Af- fairs. This case, in our view, is not covered by the decision of  this Court in Dipti Prakash Banerjee case.”

20. The ratio of the above noted judgments is that a probationer has no  

right to hold the post and his 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  confirmation  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 misconduct constitutes  

the  foundation  of  the  action  taken,  the  ultimate  decision  taken  by  the  

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competent authority can be nullified on the ground of violation of the rules  

of natural justice.

21. We  shall  now  consider  whether  termination  of  

the services of the private respondents is  

vitiated  due  to  violation  of  the  rules  of  

natural justice. It  will  be useful to notice  

Rules  15  and  16  of  the  Rules  which  

regulate probation and confirmation of the  

officers  of  Bank,  paragraphs  7(part)  and  

10  of  the  advertisement  issued  by  the  

Bank  for  recruitment  of  Probationary  

Officers,  the extracts of note prepared by  

Deputy  General  Manager,  Central  

Recruitment  and  Promotion  Department,  

which was approved by respondent No.3,  

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letters  dated  12.5.2011  and  3.6.2011  of  

Assistant  General  Manager  (HR),  which  

were  duly  initialed  by  the  General  

Manager.  The same read as under:  

RULES

“15 (1) A person appointed as a Probationary Officer or a  Trainee Officer shall be on probation for a period  of two years.

15(2) Any other employee promoted as an officer to the  Junior  Management  Grade  shall  be on probation  for a period of one year.

15(3) Any other person appointed to any grade including  the  Junior  Management  Grade  shall  be  on  probation for such period as may be decided by the  competent authority.

Provided that the competent authority may, in the  case  of  any officer,  reduce  or  dispense  with  the  period of probation under this rule.

16(1) An officer referred to in rule 15 shall be confirmed  in the service of the Bank, if in the opinion of the  competent  authority, the officer has satisfactorily  completed the training in any institution to which  the officer may have been deputed for training, and  the in-service training in the Bank.

Provided, that Bank may at its discretion subject to  the  merit  and  suitability  of  a  Probationary  Officer/Trainee Officer for future leadership role,  being determined through a  screening process  to  be  prescribed  by  the  Central  Human  Resources  Committee  may  confirm  and  give  placement  (fitment) to such officers in MMGS II.

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Provided that  an officer  directly recruited in any  grade  may  be  required  also  to  pass  a  test  in  a  language  other  than  his  mother  tongue  or  a  professional course.

16(2) If,  in the opinion of  the competent  authority,  an  officer  has  not  satisfactorily  completed  either  or  both the trainings referred to in sub-rule (1) or if  the  officer  has  not  passed  the  test  referred  to  therein or an officer’s service is not satisfactory,  the  officer’s  probation  may  be  extended  by  a  further period not exceeding one year.

16(3) Where  during the  period of  probation,  including  the  period  of  extension,  if  any,  the  competent  authority is of the opinion that the officer is not fit  for confirmation:-

(a) in the case of a direct appointee, his services  may be terminated by one month’s notice or  payment of one month’s emoluments in lieu  thereof, and  

(b) in the case of a promotee from the Bank’s  service, he may be reverted to the grade or  cadre from which he was promoted.”

ADVERTISEMENT

“7. xx xx xx

CAREER PATH

The Bank may at its discretion, subject to merit and suitability  after  probation  period  of  a  probationary  officer  for  future  leadership role, to be determined through a screening process,  confirm and give placement  (Fitment)  to  selected  officers  in  next  higher  grade  i.e.  Officers  Middle  Management  Grade  Scale II.

The Probationary Officers  will  be on probation of  two years  during which they will be given intensive training and towards  end of their probation/training period they will be subjected to a  screening  process.  While  those  probationary  officers  who  

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achieve  the  pre-determined  standards  may  be  confirmed  and  given placement in the next higher grade i.e.  Officer Middle  Management Grade Scale II . Others who qualify the test by fail  to  achieve  the  standards  set  for  placement  in  Middle  Management  Grade  Scale  II,  will  be  confirmed  as  Officer  Junior Management Grade I. The services of those Probationary  officers who fail to qualify this process may be terminated.

10.  ACTION  AGAINST  CANDIDATES  FOUND  GUILTY  OF MISCONDUCT:

Candidates  are  warned  that  they  should  not  furnish  any  particulars  that  are  false,  tampered/fabricated  or  should  not  suppress  any  material  information  while  filing  up  the  application form.

At the time of written examination/interview, if a candidate is  (or has been) found guilty of:

(i)  Using  unfair  means  during  the  examination  or  (ii)  impersonating  by  any  person  or  (iii)  misbehaving  in  the  examination hall or taking away the question booklet (or any  part  thereof)/  answer sheet  from the examination hall  or  (iv)  resorting to any irregular or improper means in connection with  his/her  candidature  for  selection  or  (v)  obtaining support  for  his/her candidature by any unfair means, such a candidate may,  in  addition  to  rendering  himself/herself  liable  to  criminal  prosecution, be liable;

a) To be disqualified from the examination for which he/she is a  candidate.

b) To be debarred either permanently or for a specified period,  from any examination or recruitment conducted by SBI.

c) For termination of service, if he/she has already joined the  Bank.”

NOTE  PREPARED  BY  THE  DEPUTY  GENERAL  MANAGER

STAFF SUPERVISING: PROBATIONARY OFFICERS 2009-10 BATCH WRITTEN EXAMINATION FOR CONFIRMATION   HELD ON 27-02-2011.

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Placed alongside are: -

• ECCB Memorandum dated the 04th December 2003 vide  which  policy  for  confirmation  of  PO/TO  as  JMGS-I  /  MMGS-II  was  formed  and  was  made  effective  for  the  batches of the PO/TO who were due for confirmation as  from a date after the date of the approval of the policy  i.e. 04th December 2003(Flag "A").

• Letter  No.  P&HRD:  CM:  5:SPL:  815  dated  the  29th  September  2004  &  P&HRD/CM/5/3982  dated  the  28th  

October 2005 regarding pattern for the screening process  for  considering  PO/TO  for  confirmation  as  JMGS-I  /  MMGS-II and also for extension of probation period by 06  months  for  those  who  will  fail  to  secure  minimum  qualifying  marks  in  the  written  test  of  functional  knowledge (Flag "B").

• Cadre  Management  Department  Memo  No.  HR/CM/8/691 dated 17-01-2008 regarding modification  in screening process for confirmation of POs in JMGS-I /  MMGS-II  consequent  upon  revision  in  recruitment  procedure / criteria approved by the ECCB in its meeting  held on 28th December 2007(Flag "C").

• Cadre  Management  Department  Memo  No.  HR/CM/6/SPL/517  dated  20-09-2010  forwarding  therewith copy of note no. HR/CM/6/111/2010-11 dated  the 09th September 2010 with supplementary note dated  the  13th September  2010  put  up  before  CHRC  in  its  meeting  held  on  13th September  2010  advising  modification to be effected in the policy for confirmation  of Probationary Officers (POs) and Trainee Officers (TOs)  (Flag "D").

• A copy  of  our  approved  note  No.  CRPD/SNP/PO-09- 10/269  dated  08-12-2010(Flag  "E") finalizing  date  of  confirmation  of  written  test  for  probationary  officers  2009-10 batch.

3. Accordingly, written test was conducted for confirmation  of probationary officers 2009-10 batch on 27-02-2011, wherein  2185 candidates appeared in the test  against  2204 candidates  called for the examination.

4. As  per  the  approved  testing  pattern,  the  minimum  

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qualifying marks in the written test for confirmation in JMGS I is  50% i.e. 100 out of 200 (for SC/ST/PWD 45% i.e. 90 out of  200) and 75% (150 out of 200) for qualifying them for Group  Discussion / Interview for their confirmation in MMGS II direct.

5. The policy for confirmation of PO/TO has been modified  after  announcing  the  date  of  the  written  test  but  before  processing  the  result  thereof.  The  process  of  declaring  the  results  as  also  advising  the  candidates  the  effects  of  their  securing less than the minimum passing marks at 50%  (45%  for SC/ST/PWD candidates) in the written test held on 27-02- 2011 have been modified as detailed in the Annexure-II.

6. The evaluation of all the answer papers (Objective type  and Descriptive type) in respect of  2185  candidates has since  been completed. We are in receipt of the merit list drawn on the  basis  of  aggregate  marks  secured  in  Objective  &  Descriptive  Papers from IBPS. The descriptive papers of all candidates who  secured  marks  between  48% and  50% GEN/OBC  (43% and  45%  in  respect  of  SC/ST/PWD  candidates)  as  also  those  securing marks between 74% and 75% in the aggregate were  subjected to 100% moderation.

7. We have also received report on "Use of Unfair Means"  i.e. copying based on analysis done by IBPS, Mumbai.  A brief  write up in "Detection of use of unfair means in objective tests  by  the  candidates"  is  enclosed  as  Annexure-III.   They  have  found 11 such pairs involving 20 candidates (Annexure-IV) as  per undernoted table

Copying  Cases  in  Written  Test  held  on  27-02-2011  for Confirmation of Probationary Officers 2009-10 Batch SR.  NO.

CENTRE NO.  OF PAIRS

NO.  OF  CANDI- DATES

CATEGORY

01 Ahmedabad 02 04 Use  of  Unfair  Means  is  sus- pected.

02 Guwahati 01 02 Use  of  Unfair  Means  is  sus- pected.

03 Patna 07 12 Use  of  Unfair  Means  is  sus- pected.

04 Lucknow 01 02 Use  of  Unfair  Means  is  sus- pected.

TOTAL 11 20

We have analysed the report given by IBPS, which is based on  correct  answers,  identical  wrong  answers  (IWW)  and  other  mismatches given by pairs,  which have indulged in copying.  IBPS has made analysis after excluding right answers and most  

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popular  wrong  answers.  Thus  the  chances  of  having  large  identical wrong answers are practically not possible.

Subsequently,  we have called the seating arrangement of  the  candidates  involved  in  copying    (Annexure-V).    In  the  seating    arrangement,  one  pair  of  candidates  from  Patna  Circle  are  seated in different rooms and have Identical  Wrong Answers,  which are at the lower end of suspected category. In this case  the  data  evaluated  by  the  IBPS  they  also  observed  4  mismatches in the answers (in non identical  wrong answers).  Considering all relevant factors, we propose to give benefit of  doubt to candidates forming this pair and exclude them from  candidates who used unfair means. Other than this pair, each of  the  pairs  of  candidates  are  seated  next  to  each  other,  in  addition  to  their  being  in  the  same  room.  This  further  strengthens the view that these candidates used unfair means  namely copying answers from one another.

8. Excluding the pair  mentioned above, the statistical  and corroborative  evidences  are  against  the  remaining  18  candidates, we propose to

i) Cancel their candidature for the confirmation test.   ii) Extend their probation for a period of 3 months.   iii) All these officers in terms of  their appointment are on    

probation  for  2  years  from  their  date  of  joining  and  provisions  of  SBIOSR  1992  are  applicable  to  them.  Provisions  of  Rule  16  (1,  2  and  3)  (Annexure-VI)  of  SBIOSR enable the Appointing Authority to terminate the  services  of  involved  officers  during  the  probation   period   in   such   cases   without   going   through   disciplinary  proceedings.  Legal  opinion  obtained  in   this regard in similar cases in an earlier examination    is    enclosed (Annexure-VII).

iv) Circles will be asked to initiate investigations against the    invigilators  manning  the  rooms where  such  candidates  were seated followed by disciplinary proceedings as per  Service Conditions applicable for such cases.

9. On perusal / analysis of the Annexure-I, we submit the summary as under:-

i) xx xx xx

ii) xx xx xx

iii) 59 candidates (60-1 candidate involved in copying) have  failed to secure 50% i.e. 100 out of 200 (for SC/ST/PWD  

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45% i.e. 90 out of 200) as such these 59 candidates are  not suitable for their confirmation.

10. Accordingly, we recommend:

i) xx xx xx

ii) xx xx xx

iii) Probation  period  of  59  candidates  (60-1  candidate    involved in copying), who have failed to secure 50% i.e.  100 out of 200 (for SC/ST/PWD 45% i.e. 90 out of 200),  be  extended  by  6  months.  They  will  be  subjected  to  confirmation re-test   within   the  extended    period  of  probation in terms of the extant policy   (Annexure-I).   

iv) 19  candidates     (Annexure-I)        were   absent  in   the    confirmation  written  test,  are  not  suitable  for  their  confirmation as JMGS-I. Circles have advised the  reasons  for their absence in the test. Subject to verification  by  the Circles, the probation  period of        eligible candidates    is to be extended by a further period of 6 months and  they will be subjected to confirmation     re-test within the    extended period of probation.

v) There  are  18  candidates  against  whom  statistical  and    corroborative evidences (IBPS report,  seating plan) are  available  showing  their  involvement  in  use  of  unfair  means  i.e.  copying  in  the  written  test.  We propose  to  cancel  their  candidature  for  the  confirmation  test  and  Circles will  be asked to initiate action as suggested  in  Para   "8".   

(emphasis supplied)

LETTER DATED 12.5.2011.

“GENERAL MANAGER NW-I.

CIRCLE DEVELOPMENT OFFICER

STAFF: SUPERVISING PROBATIONARY OFFICERS -2009- 10 BATCH RESULT OF WRITTEN EXAMINATION HELD  ON 27.02.2011

A written examination for determining the suitability of the Probationary Offi- cers 2009-10 batch for confirmation as officer JMGS-I/ direct placement as offi- cer MMGS-II was conducted on 27.02.2011 in which out of 140 eligible POs,  139 appeared in the above test from our Circle. One PO had tendered resigna- tion from Bank's services just before the above test.

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2. In this connection, we have been advised by Corporate Cen- ter,  vide  their  letter  No.  CRPD/SNP/PO2009  10/CONF/74-A  dated 10.05.2011 (placed alongside) that out of 139 POs from  our Circle, 39 POs, as per Annexure "A", have secured qualify- ing marks of 150 or more out of 200 (i.e. 75% or more) to be- come eligible for Group Discussion/ Interview for considering  their confirmation as officer MMGS-II in terms of Rule 16 (1)  of State Bank of India officers service rules. In case any of these  39 candidates do not secure qualifying marks i.e. 75% or more  in GD/Interview, he/she will be considered suitable for confir- mation in JMGS-I w.e.f. 15.05.2011 or upon completion of two  years probation from the date of their joining the Bank.

3. 96 candidates, as per Annexure "B", have secured mini- mum qualifying marks of 50% or more but less than 75% (45%  or more for SC/ST/PWD) and have thus become eligible for be- ing  considered  suitable  for  confirmation  as  officer  JMGS-I  w.e.f.  15.05.2011 or  upon completion of  two years  probation  from the date of their joining the Bank in terms of Rule 16(1) of  State Bank of India Officers Service Rules.

4. 2 candidates, as per Annexure  “C", who scored less than 50%  (less  than  45%  for  SC/ST/PWD)  marks, are not eligible for confirmation at this stage and their probation will be ex- tended  for  a  period  of  6  months. They will have to appear for confirmation re-test, which will be scheduled dur- ing  the  extended  period  of probation. In the event of any candidate failing in the re-test, his/her services  will  be  terminated  in  terms  of offer of appointment letter.

5. In terms of the Corporate Centre letter under reference,  mentors  (SMGS-IV/V)  have  to  be  identified  for  the 2 candidates (Annexure "C"), who could not qualify the confir- mation  test,  for  proper  guidance  and  counselling to upgrade their knowledge / skills in the Bank. In order to en- able  them  to  imbibe  more  learning  during  their extended  probation  period,  we  also  propose  to  change  their  branches.  The  mentors  and  branches  identified for them are as under:

Sl. Name Present  Branch

Proposed  Branch/Off -ice

Mentors  identified

1. Ms. Smriti Indira Na- RASMECCC, Mrs.  Shubha  

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Anand gar, Bareilly Bareilly Doorwar,  AGM  (Trg.),  SBLC,  Bareilly

2. Shri Abhishek  Debnath

Kamachha,  Varanasi

RASMECCC,  Varanasi

Shri  S.K.Srivas- tava,  CM  (Trg.),  SBLC, Varanasi

6. Further, 2 candidates, as per Annexure "D", have been found suspected  to have indulged in copying and as such their probation will be extended by 3  months in terms of Corporate Centre letter No. CRPD/SNP/PO2009-10/CONF/75  dated 10.05.2011.

7. Accordingly, in respect of 2 candidates of the above batch  of Probationary Officers (2009-10 batch), who could not qualify  in  the  confirmation  test  conducted  on  27-02-2011,  and  2  candidates who have been found suspected to have indulged in  copying will have to be served letters on the lines of draft letters  (Annexure-E & F) and their acknowledgement will have to be  obtained. We, therefore, propose to deliver letters (placed below for  your signature) to these 4 candidates. Further, we also propose to confirm 96  candidates  (Annexure  "B"  )  as  officer  JMGS-I  w.e.f.  15.05.2011  or  upon  completion of two years probation from the date of their joining the Bank in  terms of Rule 16(1) of State Bank of India Officers Service Rules.

Submitted for approval, please.

ASSISTANT GENERAL MANAGER (HR)”

Annexure-“D” “  Central Recruitment Promotion Department,  Corporate Centre,  Mumbai Confirmation of    Probationary Officers (2009-10) Batch Written Examination Held On Sunday, 27-02-2011  COPYING CASES

CSRNO CIR ROLLNO TITLE NAME DOB PFINDEX 1 LUC 2263701061 MS PALAK  

MODI 19-06-85 5910633

2 LUC 2263701067 SHRI PRABHAT  DIXIT

22-11-83 5908930

LETTER DATD 3.6.2011.

“  General Manager NW-I (Appointing Authority)   Circle Development Officer  

Staff : Supervising Probationary officers : 2009 Batch Result of Confirmation Test Held on 27.02.2011 Copying Case : Extension of Probation Period by Three Months

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139 Probationary Officers of 2009 batch appeared in the screening  test for confirmation in JMGS-I and MMGS-II on 27.02.2011 from  our  Circle.  Corporate  Centre  vide  their  e-mail  letter  no.  CRPD/SNP/PO-2009-10/CONF/75  dated  10.05.2011  (Flag-‘A’)  has forwarded a list of 02 candidates viz Ms. Palak Modi, PF index  no. 5910633 and Shri Prabhat Dixit, PF index no. 5908930 where  the use of unfair means (copying) is suspected as per report fur- nished by IBPS which is further supported by the corroborative ev-

idence of sitting next to one-another J  in different rows in the same  room, as indicated by the sitting plan in the above mentioned test.

2. Corporate Centre also advised that as approved by the Ap- propriate Authority, the probation period of these candidates is to  be extended by 03 months in terms of Rule 16(2) of SBIOSR and  appropriate process to be completed within extended probation pe- riod.  Further,  as  the  statistical  and  additional  corroborative  evi- dences are against these candidates, as an examination conducting  body, Corporate Centre has cancelled their candidature for the con- firmation test.

3. A note was placed to the appointing authority i.e. General  Manager (NW-I) and upon his approval (Flag-‘B’) the probation  period of these 02 candidates has been extended by 03 months. We  propose to initiate appropriate action against the above mentioned  02 Probationary Officers in the matter at the earliest within the ex- tended probation period.

4. Corporate Centre has advised that keeping in view the unsat- isfactory conduct of these 02 officers during the written examina- tion held on 27.02.2011, these candidates cannot be deemed to be  fit for confirmation and are, therefore, liable for action in terms of  Rule 16(3) of SBIOSR by the Appropriate Authority. In this con- nection,  we have also discussed the matter  with AGM (Law) at  Corporate Centre.

5. We, therefore, propose subject to your approval, to initiate  necessary action against these 02 Probationary Officers for termi- nation of their services at the earliest. Upon approval we will draft  a letter for termination of their services and forward the same to  Corporate Centre for vetting. Upon receipt of advices from Corpo- rate Centre, we will put up the termination letter, to be served to  these 02 POs, for your signature. The appropriate authority  in  the  

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matter is Appointing Authority, i.e., senior most General Manager of  the Circle.

Submitted for approval.

Asstt. General Manager (HR)”

22. A combined reading of Rules 15(1) and 16 and paragraph 5 of the  

conditions  of  appointment  makes  it  clear  that  a  person  appointed  as  a  

Probationary Officer  remains on probation for  a minimum period of  two  

years at the end of which he is entitled to be confirmed if the competent  

authority is of the opinion that he has satisfactorily completed the training in  

any  institution  to  which  he  may  have  been  deputed  and  the  in-service  

training in the Bank.   The Probationary Officer  can also be subjected to  

screening for judging his merit and suitability.  If the Probationary Officer  

fails to satisfactorily complete the training(s) or fails to pass the screening  

test or his service is not satisfactory, then the Bank can extend the period of  

probation by a further period of which the outer limit is one year.  In a given  

case, the competent authority can, if it is of the opinion that the Probationary  

Officer  is  not  fit  for  confirmation,  terminate  his  service  by one  month’s  

notice or payment of one month’s emoluments.    

23. It is thus evident that satisfactory performance during the period of  

probation,  successful  completion  of  training(s)  and  passing  of  the  test  

conducted by the Bank for judging his suitability for the post constitute the  

touchstone for his confirmation.  

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24.  The policy of confirmation, which was circulated vide letter dated  

20.9.2010 envisaged placement of the Probationary Officers scoring 75% or  

more marks in the written test, group discussion and interview in MMGS-II.  

Those scoring less than 75% but minimum 50% (general category) and 45%  

(SC/ST/PWD) could be confirmed in JMGS-I.  Those scoring less than 50%  

or 45%, as the case may be, are eligible to again appear in the confirmation  

test and qualify the same before completion of two years’ probation. If he  

fails to qualify the test second time, his service is liable to be terminated in  

terms of Rule 16(3) of the Rules.  An alternative available to the Bank is to  

extend the period of probation of the candidate for maximum one year with  

two opportunities to appear in the confirmation tests at six-monthly interval.

25. The primary object of the confirmation test held on 27.2.2011, which  

could also be termed as evaluation test within the meaning of paragraph 5(c)  

of the appointment letter was to decide whether the officer has made use of  

the opportunities made available to him by the Bank to prove his worth for  

the job for which he was recruited and whether he has acquired sufficient  

knowledge about the functional requirements of  the Bank.  The test  also  

gave an opportunity to the Probationary Officer to demonstrate that he was  

meritorious enough to be placed in the higher grade.   

26.   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  

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confirmation of a probationer and the Bank’s right to punish a probationer  

for any defined misconduct, misbehaviour or misdemeanor.  In a given case,  

the  competent  authority  may,  while  deciding  the  issue  of  suitability  of  

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/misdemeanor constitutes  

the basis of the final decision taken by the competent authority to dispense  

with 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.

27. The use of unfair means in the evaluation test/confirmation test held  

by the Bank certainly constitutes a misconduct.  The Bank itself had treated  

such  an  act  to  be  a  misconduct  (paragraph  10  of  advertisement  dated  

1.7.2008).  It is not in dispute that the services of the private respondents  

were  not  terminated  on  the  ground  that  there  was  any  deficiency  or  

shortcoming in their work or performance during probation or that they had  

failed  to  satisfactorily  complete  the  training  or  had  failed  to  secure  the  

qualifying marks in the test held on 27.2.2011.  As a matter of fact, the note  

prepared  by  the  Deputy  General  Manager,  which  was  approved  by  the  

General Manager makes it crystal clear that the decision to dispense with the  

services of the private respondents was taken solely on the ground that they  

were guilty of using unfair means in the test held on 27.2.2011.  To put it  

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differently, the foundation of the action taken by the General Manager was  

the  accusation  that  while  appearing  in  the  objective  test,  the  private  

respondents  had resorted to  copying.   IBPS had relied upon the analysis  

made by the computer and sent report to the Bank that 18 candidates were  

suspected to have used unfair means.  The concerned authority then sent for  

the chart of seating arrangement and treated the same as a piece of evidence  

for coming to the conclusion that the private respondents had indeed used  

unfair  means in the examination.   This exercise  was not  preceded by an  

inquiry involving the private respondents and no opportunity was given to  

them to defend themselves against the charge of use of unfair means.  In  

other words, they were condemned unheard which, in our considered view,  

was legally impermissible.

28. Before concluding, we may notice the judgments relied upon by the  

learned senior counsel for the appellants.  In Ajit Singh v. State  

of  Punjab  (supra),  this  Court  considered  

the question whether the decision of the  

State  Government  to  terminate  the  

services  of  the  appellants,  who  were  

appointed  as  Executive  Officers  on  

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probation of  one year,  could  be nullified  

on the ground of violation of Articles 14 ad  

16 of  the Constitution.   The facts of  the  

case show that the Punjab Town Improvement Act, 1922 was  enacted to make provision for the improvement and expansion of towns in  

Punjab. The Act envisages the creation and constitution of Trusts and the  

Trust so created will have a corporate personality with perpetual succession  

and a common seal. The duties and functions of the Trust inter alia include  

preparing  of  schemes  under  the  Act  for  various  purposes.  Section  17  

conferred power on the State Government to constitute certain services in  

the manner therein prescribed. One such service contemplated by the section  

was Punjab Service of Trust Executive Officers. Sub-section (2) of Section  

17 conferred power on the State Government to make rules for regulating  

the  recruitment  and  the  conditions  of  service  of  members  of  the  Trust  

services constituted by the State Government. Armed with this power, the  

State Government constituted Punjab Service of Trust Executive Officers. In  

exercise of the power conferred by Section 73 read with Section 17(2) of the  

Act,  the  State  Government  framed rules  styled  as  Punjab  Trust  Services  

(Recruitment  and  Conditions  of  Service)  Rules,  1978  (“1978  Rules”  for  

short).  Rule 5(2)(i) inter alia provided that 50 per cent of the vacancies in  

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the cadre of Executive Officers shall be filled by direct recruitment and for  

this purpose Rule 5(4) envisaged the setting up of a Selection Committee  

called Punjab Trust Services Selection Committee.  In 1978, Directorate of  

Local  Government,  Punjab  issued  Advertisement  No.  1078  inviting  

applications for the posts in Class I, II and III of Trust Executive Officers.  

Pursuant to this advertisement, large number of persons applied for various  

posts. The Punjab Trust Services Selection Committee interviewed various  

candidates and ultimately recommended 11 persons for  the post  of  Trust  

Executive Officers. Ajit Singh and Rajinder Singh were recommended for  

Class I post; S. Sarup Singh and R.L. Bhagat were recommended for Class II  

post of Trust Executive Officers and the remaining seven petitioners in this  

group of petitions were recommended for Class III post of Trust Executive  

Officers.  These  recommendations  were  accepted  and  appointment  orders  

were issued by Punjab Government on May 28, 1979.   After each appointee  

completed  one year  of  service,  an increment  was  released  in  his  favour.  

After one year, the State Government terminated their services vide orders  

dated 25.9.1980. One  of  the  several  grounds  on  which  the  appellants  

challenged  the  termination  of  their  services  was  that  the  action  of  the  

employer  was  wholly  arbitrary,  discriminatory  and  violative  of  equality  

clause  contained  in  the  Constitution.   While  quashing  orders  dated  

25.9.1980, this Court observed:

“When the master-servant relation was governed by the archaic  

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law  of  hire  and  fire,  the  concept  of  probation  in  service  jurisprudence  was  practically  absent.  With  the  advent  of  security in public service when termination or removal became  more and more difficult  and order of termination or removal  from service  became a  subject-matter  of  judicial  review,  the  concept of probation came to acquire a certain connotation. If a  servant  could  not  be  removed  by  way  of  punishment  from  service unless he is given an opportunity to meet the allegations  if any against him which necessitates his removal from service,  rules of natural justice postulate an enquiry into the allegations  and proof thereof. This developing master-servant relationship  put  the  master  on  guard.  In  order  that  an  incompetent  or  inefficient servant is not foisted upon him because the charge of  incompetence or inefficiency is easy to make but difficult  to  prove,  concept  of  probation  was  devised.  To  guard  against  errors  of  human judgment  in  selecting suitable  personnel  for  service, the new recruit was put on test for a period before he is  absorbed  in  service  or  gets  a  right  to  the  post.  Period  of  probation gave a  sort  of  locus pententiae to the employer to  observe the work, ability, efficiency, sincerity and competence  of the servant and if he is found not suitable for the post, the  master  reserved  a  right  to  dispense  with  his  service  without  anything more during or  at  the end of  the prescribed period  which is styled as period of probation. Viewed from this aspect,  the  courts  held  that  termination  of  service  of  a  probationer  during or at the end of a period of probation will not ordinarily  and by itself be a punishment because the servant so appointed  has no right to continue to hold such a post any more than a  servant employed on probation by a private employer is entitled  to (see Parshotam Lal Dhingra v. Union of India). The period of  probation  therefore  furnishes  a  valuable  opportunity  to  the  master to closely observe the work of the probationer and by  the time the period of probation expires to make up his mind  whether  to  retain  the  servant  by  absorbing  him  in  regular  service or dispense with his service. Period of probation may  vary  from  post  to  post  or  master  to  master.  And  it  is  not  obligatory on the master to prescribe a period of probation. It is  always  open  to  the  employer  to  employ  a  person  without  putting  him  on  probation.  Power  to  put  the  employee  on  probation for watching his performance and the period during  which the performance is to be observed is the prerogative of  the employer.”

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The Court then took cognizance of the fact that on completion of one year’s  

probation  an  increment  was  released  in  favour  of  the  appellants  and  

proceeded to observe:

“It is implicit in release of increment that the petitioners had  satisfactorily discharged their duty during the probation period,  and at  any rate  the  work and conduct  was  not  shown to  be  unsatisfactory,  which  permitted  an  increment  to  be  earned.  Assuming, as contended for on behalf of the respondents that  period of probation was two years, the fact that on the expiry of  one year of service an increment was released, would imply that  during the period of  one year the work and conduct has not  been unsatisfactory. If it was otherwise the release of increment  could have been interdicted on the ground that neither the work  nor the conduct was satisfactory. The fact that the increment  was released would at least permit an inference that there was  satisfactory completion of the probation period and that during  the probationary period, the work and conduct of each of the  petitioners was satisfactory.  If up to the end of June, 1980 the  work and conduct of  each of  the petitioners was satisfactory  and if the service of each of them was, simultaneously on the  same day September 25,  1980 dispensed with on the ground  mentioned  in  Rule  9(2)(a)  in  that  in  the  opinion  of  the  appointing  authority,  the  work  and  conduct  of  each  of  the  petitioners was not  satisfactory, then between June 1980 and  September 1980 something was simultaneously done by each of  the petitioners to permit the appointing authority - the State - to  reach  an  affirmative  conclusion  that  the  work  and  conduct,  became wholly unsatisfactory and the degree of dissatisfaction  with  the  service  was  so  high  that  the  service  of  all  the  11  petitioners  recruited  on  the  same  day  was  required  to  be  dispensed  with on identical  ground.  This  is  too fortuitous  to  carry conviction.”

29. In  Krishnadevaraya  Education  Trust  v.  

L.A. Balakrishna (supra),  the Court noted  

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that the services of the respondent, who  

was  appointed  as  Assistant  Professor  on  

probation were terminated on the ground  

of unsuitability and observed:

“There can be no manner of doubt that the employer is entitled  to  engage the services  of  a  person on probation.  During the  period of probation, the suitability of the recruit/appointee has  to be seen. If his services are not satisfactory which means that  he is not suitable for the job, then the employer has a right to  terminate  the services  as  a reason thereof.  If  the termination  during probationary period is without any reason, perhaps such  an order would be sought to be challenged on the ground of  being arbitrary. Therefore, naturally services of an employee on  probation  would  be  terminated,  when  he  is  found  not  to  be  suitable  for  the  job  for  which  he  was  engaged,  without  assigning any reason. If the order on the face of it states that his  services are being terminated because his performance is not  satisfactory, the employer runs the risk of the allegation being  made that the order itself casts a stigma. We do not say that  such  a  contention  will  succeed.  Normally,  therefore,  it  is  preferred that the order itself does not mention the reason why  the services are being terminated.

If  such  an  order  is  challenged,  the  employer  will  have  to  indicate  the  grounds  on  which  the  services  of  a  probationer  were terminated. Mere fact that in response to the challenge the  employer states  that  the services were not  satisfactory would  not ipso facto mean that the services of the probationer were  being terminated by way of punishment. The probationer is on  test  and if  the  services  are  found  not  to  be  satisfactory,  the  employer has, in terms of the letter of appointment, the right to  terminate the services.

In  the  instant  case,  the  second  order  which  was  passed  terminating  the  services  of  the  respondent  was  innocuously  

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worded. Even if we take into consideration the first order which  was passed which mentioned that a Committee which had been  constituted came to the conclusion that the job proficiency of  the respondent was not up to the mark, that would be a valid  reason  for  terminating  the  services  of  the  respondent.  That  reason cannot be cited and relied upon by contending that the  termination was by way of punishment.”

30. In Pavanendra Narayan Verma v. Sanjay  

Gandhi  PGI  of  Medical  Sciences  (supra),  

this  Court  again considered the question  

whether  termination  of  the  service  of  

probationer  can  be  termed  as  punitive  

merely  because  it  is  preceded  by  an  

inquiry  for  the  purpose  of  judging  his  

suitability  and  answered  the  same  in  

negative.   The two-Judge Bench referred  

to  a  large  number  of  precedents  and  

observed:

“29. …  Generally  speaking  when  a  probationer's  appointment is terminated it means that the probationer is unfit  

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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  termination,  a  simple  termination  is  not  stigmatic.  A  termination  order  which  explicitly  states  what  is  implicit  in  every order  of  termination of  a probationer'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 unsuitability for the job.”

31. In  Progressive  Education  Society  v.  

Rajendra  (supra),  this  Court  examined  

correctness  of  the  order  passed  by  the  

School Tribunal constituted under Section  

9 of the Maharashtra Employees of Private  

Schools (Conditions of Service) Regulation  

Act,  1977,  which  was  approved  by  the  

High  Court,  quashing  the  termination  of  

the  service  of  respondent  No.1  on  the  

ground  of  unsatisfactory  performance  

during the period of probation.  This Court  

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referred to the relevant provisions of the  

Maharashtra Employees of Private Schools  

(Conditions  of  Service)  Rules,  1981  and  

observed:

“The  law  with  regard  to  termination  of  the  services  of  a  probationer is well established and it has been repeatedly held  that such a power lies with the appointing authority which is at  liberty to terminate the services of a probationer if it finds the  performance of the probationer to be unsatisfactory during the  period  of  probation.  The  assessment  has  to  be  made  by  the  appointing  authority  itself  and  the  satisfaction  is  that  of  the  appointing authority as well. Unless a stigma is attached to the  termination or the probationer is called upon to show cause for  any  shortcoming  which  may  subsequently  be  the  cause  for  termination of the probationer's service, the management or the  appointing authority is not required to give any explanation or  reason for terminating the services except informing him that  his services have been found to be unsatisfactory.

The facts of this case are a little different from the normal cases  relating to probation and the termination of the services of a  probationer  in  that  the  satisfaction  required  to  be  arrived  at  under sub-section (3) of Section 5 of the MEPS Act has to be  read  along  with  Rule  15  of  the  MEPS  Rules,  1981  with  particular  reference  to  sub-rule  (6)  which  provides  that  the  performance of an employee appointed on probation is to be  objectively  assessed  by  the  Head  during  the  period  of  his  probation and a record of such assessment is to be maintained.  If  the  two  provisions  are  read  together,  it  would  mean  that  before taking recourse to the powers vested under sub-section  (3)  of  Section  5  of  the  MEPS  Act,  the  performance  of  an  employee appointed on probation would have to be taken into  consideration by the school management before terminating his  services.

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Accordingly, while Rules 14 and 15 of the MEPS Rules, 1981  cannot override the provisions of sub-section (3) of Section 5 of  the MEPS Act, it has to be said that the requirements of sub- rule  (6)  of  Rule  15  would  be  a  factor  which  the  school  management has to take into consideration while exercising the  powers which it undoubtedly has and is recognised under sub- section (3) of Section 5 of the Act.

This brings us to the next question regarding the sufficiency of  the materials before the school management while purporting to  pass  the  order  of  termination  on  1-8-1994.  As  has  been  discussed, both by the School Tribunal and the High Court, the  confidential report which has been produced on behalf of the  school management does not inspire confidence on account of  the different dates which appear both in Part I and Part II of the  said  report.  Part  I  of  the  self-assessment  form  gives  the  particulars  of  the  teacher  concerned  and  the  remarks  of  the  reporting authority, namely, the Head Mistress of the school.  The date in the said part is shown as 4-7-1994, whereas the date  at the end of Part II, which is the form of the confidential report  giving details of the teacher's performance is dated 24-6-1994,  which  appears  to  be  in  line  with  the  date  given  of  the  forwarding letter written by the Head Mistress to the Secretary  of the Society. To add to the confusion created by the different  dates on the form, there is a third date which appears on Part I  of  the self-assessment  form which shows that  the documents  were presumably forwarded to the management of the school  on  6-8-1994,  which  is  a  date  which  is  prior  to  the  date  of  termination of the services of Respondent 1, namely, 1-8-1994.

This merely goes to show that the said documents are not above  suspicion and that the requirements of Rule 15(6) and Rule 14  had not been complied with prior to invocation by the school  management of the powers under sub-section (3) of Section 5  of the MEPS Act.”

32. In Rajesh Kumar Srivastava v. State of Jharkhand (supra), the two-

Judge  Bench  examined  challenge  to  the  termination  of  the  appellant’s  

service, who was a Probationer Munsif. After examining the record placed  

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before it, the Bench held that the competent authority had terminated the  

service  of  the  appellant  because  his  work was  not  satisfactory  and  such  

decision cannot be termed as stigmatic or punitive.   

33. 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  paragraph  29  of  the  judgment  in  Pavanendra  

Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (supra) is not  

only contrary to the Constitution Bench judgment in Samsher Singh v. State  

of Punjab (supra), but large number of other judgments – State of Bihar v.  

Shiva Bhikshuk Mishra (supra), Gujarat Steel Tubes Ltd. v. Gujarat Steel  

Tubes Mazdoor Sabha (supra) and Anoop Jaiswal v. Government of India  

(supra) 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 termination of service  

can never be declared as punitive even though it may be founded on serious  

allegation of misconduct or misdemeanor on the part of the employee.  

34. In the result, the appeals are dismissed.  The appellants shall reinstate  

the private respondents  within 15 days of  the production of  copy of this  

judgment before respondent No.3 and give them all consequential benefits  

like pay, allowances, etc.  within next one month.  However, it is made clear  

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that this judgment shall not preclude the competent authority from taking  

fresh decision in the matter of confirmation of the private respondents after  

giving them effective opportunity of hearing against the allegation of use of  

unfair means in the test held on 27.2.2011.

…..……….....……..….………………….…J.     [G.S. SINGHVI]

…………..………..….………………….…J.          [SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi, December 03, 2012.  

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