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Tuesday, October 20, 2015

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

                                                                  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  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 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  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 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.
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 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 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 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  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  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.
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  Punjab[1],  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 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 Another[2], 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  Shukla[3],  Triveni
Shankar Saxena vs. State  of  U.P.[4]  and  State  of  U.P.  vs.  Prem  Lata
Misra[5], came to hold that the order of termination had  not  been  founded
on any misconduct, but 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  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
India[6], State of Bihar vs. Gopi Kishore Prasad[7] and State of Orissa  vs.
Ram Narayan Das[8] 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 Sabha[9].  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 appeal  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 with the formal  order  of  termination  what  the  true
ground for the termination  is.  If,  thus  scrutinised,  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 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 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 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.

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 servant.  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 employee. The master does not  want
to decide or direct a decision about the truth of the  allegations.  But  if
he conducts an enquiry only for the purpose of proving  the  misconduct  and
the employee is not heard, it is a case where the enquiry 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 India[10], Nepal Singh vs.  State  of
U.P.[11] and  Commissioner,  Food  &  Civil  Supplies  vs.  Prakash  Chandra
Saxena[12] and opined as follows:-
“33.  It will be noticed from the above decisions that  the  termination  of
the services of a temporary servant or one on probation,  on  the  basis  of
adverse entries or on the basis of  an  assessment  that  his  work  is  not
satisfactory will not be punitive inasmuch as the  above  facts  are  merely
the motive and not the foundation. The reason why they  are  the  motive  is
that the assessment  is  not  done  with  the  object  of  finding  out  any
misconduct on the part of the officer, as stated by Shah,  J.  (as  he  then
was) in Ram Narayan Das case. It is done only with a view to decide  whether
he is to be retained or continued in service. The position is not  different
even if a preliminary enquiry is held because the purpose of  a  preliminary
enquiry is to find out if there is  prima  facie  evidence  or  material  to
initiate  a  regular  departmental  enquiry.  It  has  been  so  decided  in
Champaklal case. The purpose of the preliminary enquiry is not to  find  out
misconduct on the part of the officer and if a termination  follows  without
giving an opportunity, it will not be bad. Even in a case  where  a  regular
departmental enquiry is started, a charge-memo issued, reply  obtained,  and
an enquiry officer is appointed — if at that point of time, the  enquiry  is
dropped and a simple notice of termination is passed, the same will  not  be
punitive because the enquiry officer has not  recorded  evidence  nor  given
any findings on the charges. That is what is held in Sukh Raj  Bahadur  case
and in Benjamin case. In the  latter  case,  the  departmental  enquiry  was
stopped because the employer was not sure of establishing the guilt  of  the
employee. In all these cases, the allegations against  the  employee  merely
raised a cloud on his conduct and as pointed by Krishna Iyer, J. in  Gujarat
Steel Tubes case the  employer  was  entitled  to  say  that  he  would  not
continue an employee against whom allegations were made the truth  of  which
the employer was not interested to  ascertain.  In  fact,  the  employer  by
opting to pass a simple order of termination as permitted by  the  terms  of
appointment or as permitted by the rules was conferring  a  benefit  on  the
employee by passing a simple order  of  termination  so  that  the  employee
would not suffer from any stigma which would  attach  to  the  rest  of  his
career if a dismissal or other punitive order was passed. The above are  all
examples where the allegations whose truth has  not  been  found,  and  were
merely the motive.

34.   But in cases where the termination  is  preceded  by  an  enquiry  and
evidence is received and findings as to misconduct of  a  definitive  nature
are arrived at behind the back of the officer and  where  on  the  basis  of
such a report, the termination order  is  issued,  such  an  order  will  be
violative of the principles of natural justice inasmuch as  the  purpose  of
the enquiry is to find out the truth of  the  allegations  with  a  view  to
punish  him  and  not  merely  to  gather  evidence  for  a  future  regular
departmental enquiry. In such cases, the termination is  to  be  treated  as
based or founded upon misconduct and will be punitive. These  are  obviously
not cases where the employer feels that there is a mere  cloud  against  the
employee’s conduct but are cases where the employer has  virtually  accepted
the definitive and clear findings of the  enquiry  officer,  which  are  all
arrived at behind the back of the employee — even though such acceptance  of
findings is not recorded in the  order  of  termination.  That  is  why  the
misconduct is the foundation and not merely the motive in such cases.”

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  Others[13]  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  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 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”.

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
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.”

23.   A three-Judge Bench in Union of  India  and  Others  vs.  Mahaveer  C.
Singhvi[14], 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
Sciences[15] and came to hold thus:-
“It was held by this Court in Dipti Prakash Banerjee case  that  whether  an
order of termination of a probationer can be said  to  be  punitive  or  not
depends on whether the allegations which are the cause  of  the  termination
are the motive or foundation. It was observed that if findings were  arrived
at in inquiry as to misconduct, behind the back of the officer or without  a
regular departmental 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 employee 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
Another[16], 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
language in  a  termination  order  would  amount  to  a  stigma?  Generally
speaking when a probationer’s appointment is terminated it  means  that  the
probationer 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  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.”

25.   The said decision has been discussed at length in State Bank of  India
and Others vs. Palak Modi and Another[17]  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.  Sanjay
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 termination of service can  never  be
declared as punitive even though it may be founded on serious allegation  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 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 competent 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  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,  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   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  facts  and  circumstances,
there shall be no order as to costs.




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



                                             ..........................., J.
                                                          [Prafulla C. Pant]
New Delhi;
October 15, 2015

-----------------------
[1]     (1974) 2 SCC 831
[2]     (1999) 2 SCC 21
[3]     (1991) 1 SCC 691
[4]    (1992) Supp (1) SCC 524
[5]     (1994) 4 SCC 189
[6]     AIR 1958 SC 36
[7]     AIR 1960 SC 689
[8]     AIR 1961 SC 177
[9]     (1980) 2 SCC 593
[10]    (1984) 2 SCC 369
[11]    (1980) 3 SCC 288
[12]    (1994) 5 SCC 177
[13]    (2000) 5 SCC 152
[14]    (2010) 8 SCC 220
[15]    (1999) 3 SCC 60
[16]    (2002) 1 SCC 520
[17]    (2013) 3 SCC 607

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