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Thursday, March 22, 2018

service matter = when the termination of service at the end of probation due to unsatisfactory work- can not ask for reinstate = termination of the services of Respondent No.1 at the end of the period of probation was due to unsatisfactory work and not for any misconduct. - We are constrained to hold that there is no basis for the finding of the High Court that the real reason for the Order dated 31st December, 2008 was to ensure that the manner in which Respondent No.4 was appointed to the post of Engineer-C (Civil) remained concealed. We are satisfied that the Order dated 31st December, 2008 does not suffer from any infirmity and it is an Order of termination simpliciter. There is sufficient material on record to 9 indicate that Respondent No.1 was informed about his unsatisfactory performance during the period of his probation.

 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 2926 of 2018
(Arising out of S.L.P. (Civil) No .4208 OF 2011)
Director Aryabhatta Research Institute
Of Observational Sciences (ARIES)
 & Anr. ... Appellants
Versus
Devendra Joshi & Ors. ... Respondents
WITH
Civil Appeal No. 2927 of 2018
(Arising out of S.L.P. (Civil) No .10679 OF 2011)
Devender Joshi .... Appellant
Versus
Director Aryabhatta Research Institute
Of Observational Sciences (ARIES)
 & Ors. ….Respondents
J U D G M E N T
L. NAGESWARA RAO, J.
Civil Appeal No. 2926 of 2018@Special Leave Petition
(Civil) No.4208 of 2011
Leave granted.
This Appeal is filed against the judgment of the High
Court of Uttarakhand at Nainital by which the order dated
31st December, 2008 terminating the services of
Respondent No.1 was set aside.
1
2. Respondent No.1 was offered appointment to the post of
Engineer-B (Civil) on 1st November, 2007 after he was
selected pursuant to advertisement dated 10th August,
2007. He had joined on 1st January, 2008. Respondent
No.1 was placed on probation for a period of two years
from the date of joining. Appellant No.2 was informed by
the Competent Authority on 22nd May, 2008 that the
period of probation for Group ‘A’ officers had been
reduced from two years to one year. By a letter dated
15th October, 2008, Respondent No.1 was informed that
his period of probation had been reduced from two years
to one year pursuant to an amendment to the bye-laws.
3. An internal Office Note dated 24th July, 2008 was issued
directing Respondent No.1 to submit a detailed report
regarding certain irregularities in improvements that
were suggested in road infrastructure required for
transportation of equipments. By Office Memorandum
dated 18th August, 2008, the Registrar communicated
certain shortcomings in the discharge of duty by the
Respondent No.1. The Respondent No.1 was directed to
discharge his duties diligently and complete the allotted
2
tasks within a given time frame. Respondent No.1 was
also asked to submit his explanation regarding initiation
and completion of the work relating to providing tanks
for water supply for a building without prior intimation
and without getting formal approval of the proposal/
estimates for the construction of the same.
4. An Office Memorandum dated 23rd December, 2008 was
issued calling for an explanation from Respondent No.1
for an alleged misconduct. Reference was made to a
preliminary inquiry which revealed that the Respondent
No.1 was responsible for removal of a pen-drive and
copying the files available in the said pen-drive to his
personal computer without permission. By Office
Memorandum dated 31st December, 2008, the Appellant
No.2 terminated the services of Respondent No.1. It was
mentioned in the said order that the services of
Respondent No.1 were discontinued beyond the period of
probation of one year. Respondent No.1 submitted a
representation to the Appellant for re-instatement which
was rejected by an Order dated 2nd April, 2009.
5. Respondent No.1 filed a Writ Petition before the High
Court of Uttarakhand at Nainital challenging orders dated
3
31st December, 2008 and 2nd April, 2009. It was averred
in the said Writ Petition that the Respondent No.4, who
was selected for appointment to the post of Engineer
Group ‘B’ pursuant to an advertisement issued on 18th
April, 2008, was appointed as Engineer–C (Civil).
Respondent No.1 was aggrieved by the appointment of
Respondent No.4 to Group ‘C’, which was a post higher
than what he was holding for which reason he made a
representation on 8th October, 2008. Respondent No.1
sought for the benefits that were given to Respondent
No.4 and made a request for appointment as In-Charge/
Project Engineer of the construction projects at Monora
Peak and Devasthal. It was alleged by Respondent No.1
that Respondent No.4 was inimically disposed towards
him in view of the representations made against his
appointment to Group ‘C’ post. According to the
Respondent No.1, the Office Memorandum dated 23rd
December, 2008 was at the behest of Respondent No.4
which formed the foundation of the Order dated 31st
December, 2008 by which his services were terminated.
6. The Appellant filed a reply in which the Order dated 31st
December, 2008 was justified on the ground that the
4
termination of the services of Respondent No.1 at the
end of the period of probation was due to unsatisfactory
work and not for any misconduct. The Appellant
contended that there was no stigma attached to the
Order of termination as the discontinuance of the
services of Respondent No.1 was not due to misconduct.
The Appellant further alleged that it was decided not to
proceed against Respondent No.1 to prove misconduct
though a prima facie finding of misconduct was recorded
in the preliminary inquiry. Finally, it was submitted that
the Order dated 31st December, 2008 was an order of
termination simpliciter, not warranting any opportunity
to be given to the delinquent employee.
7. The High Court held that the Order dated 31st December,
2008 being an innocuous order of termination did not
cast any stigma against Respondent No.1. The High
Court further held that the Order dated 31st December,
2008 was challenged on the ground that it was vitiated
by mala fide. The High Court found that Respondent
No.4 could not have been appointed to Group ‘C’ post
when he was selected for appointment to Group ‘B’
Engineer post. The fact that there was no advertisement
5
to Group ‘C’ post was also highlighted. It was also held
that the services of the Respondent No.1 were
terminated because of his objection to the appointment
of Respondent No.4 to a Group ‘C’ post. The
Memorandum dated 23rd December, 2008 was issued at
the behest of Respondent No.4 who was holding a higher
post than Respondent No.1. On the said finding, the
High Court set aside the Order dated 31st December,
2008 and extended the probationary period of
Respondent No.1 by one more year. There was a further
direction to the Appellant to consider the representation
dated 8th October, 2008 of Respondent No.1 either by
giving the post of Engineer-B (Civil) to Respondent No.1
or by reverting Respondent No.4 to the post of Engineer
–C (Civil).
8. We have heard Mr. Ajit Kumar Sinha, learned Senior
Counsel appearing for the Appellants and Mr. Jayant
Bhushan, learned Senior Counsel and Mr. S.N. Bhat,
Advocate appearing for Respondent No.1. Mr. Sinha
submitted that the High Court committed an error in
setting aside the Order of termination dated 31st
December, 2008 on the ground that it was mala fide. He
6
referred to letters written to Respondent No.1 regarding
his unsatisfactory performance even prior to the
appointment of Respondent No.4 to contend that the
finding of the High Court that the termination of services
of Respondent No.1 was at the instance of Respondent
No.4 is not correct. Though, there was a preliminary
inquiry that was conducted into the alleged misconduct,
the Appellant decided not to proceed further and hold a
departmental inquiry to prove any misconduct of
Respondent No.1. However it was decided to terminate
the services on completion of the probation period due to
unsatisfactory work. He also made an attempt to justify
the appointment of Respondent No.4 to the post of
Engineer-B (civil). He further submitted that the
appointment of Respondent No.4 was not challenged by
Respondent No.1 in the Writ Petition.
9. Mr. Jayant Bhushan, learned Senior Counsel submitted
that the point that arises for consideration is whether the
Order dated 31st December, 2008 is sustainable as the
foundation of the Order is misconduct as mentioned in
the Memorandum dated 23rd December, 2008. He
submitted that the Order of termination ought to have
7
been preceded by a detailed inquiry after providing
sufficient opportunity to Respondent No.1.
10. The High Court held that the reason for the Order
dated 31st December, 2008 was not to end the probation
of the Appellant but to punish him for objecting to the
appointment of Respondent No.4 to Engineer-B (Civil)
post. The High Court referred to a representation made
by Respondent No.1 on 8th October, 2008 pointing out
that Respondent No.4 could not have been appointed to
Engineer-B (Civil) post. Without taking any action on the
said representation, the Appellants initiated a
preliminary inquiry for misconduct and issued a
Memorandum dated 23rd December, 2008 seeking an
explanation from Respondent No.1. Thereafter, an
innocuous Order of termination of probation was passed
on 31st December, 2008.
11. We do not agree with the findings of the High Court
that the Order dated 31st December, 2008 was passed
only to punish Respondent No.1 for his objection to the
appointment of Respondent No.4 to the post of
Engineer-C (Civil). As the appointment of Respondent
No.4 was not assailed by Respondent No.1 in the Writ
8
Petition, the High Court ought not to have adjudicated
the issue of validity of the appointment of Respondent
No.4. The High Court committed an error in ignoring the
letters dated 24th July, 2008 and 18th August, 2008
written by the Management to Respondent No.1
pertaining to his unsatisfactory work. The said letters
were issued prior to the representations made by
Respondent No.1 against the appointment of Respondent
No.4. A perusal of the Memorandum dated 23rd
December, 2008 would show that there is a prima facie
finding recorded in the preliminary inquiry against
Respondent No.1 which cannot be attributed to the
representation made by Respondent No.1 against the
appointment of Respondent No.4. We are constrained to
hold that there is no basis for the finding of the High
Court that the real reason for the Order dated 31st
December, 2008 was to ensure that the manner in which
Respondent No.4 was appointed to the post of
Engineer-C (Civil) remained concealed. We are satisfied
that the Order dated 31st December, 2008 does not
suffer from any infirmity and it is an Order of termination
simpliciter. There is sufficient material on record to
9
indicate that Respondent No.1 was informed about his
unsatisfactory performance during the period of his
probation.
12. A plain reading of the Order dated 31st December,
2008 would show that it is an innocuous order
terminating the services of Respondent No.1 at the end
of the probation period. As no allegations of misconduct
are made in the Order, there is no stigma. Even the High
Court is of the opinion that there is no stigma. The fact
remains that there was a preliminary inquiry conducted
by the Management in which there was a prima facie
finding recorded against the Respondent No.1 of his
involvement in an act of misconduct. The Appellants
decided not to proceed further and hold a detailed
inquiry to prove the misconduct of Respondent No.1.
However, the service of Respondent No.1 was terminated
at the end of the period of probation which cannot be
said punitive. Therefore, the Order dated 31st December,
2008 is an order of termination simpliciter. In view of
the above it cannot be said that misconduct was the
foundation for the order of termination.
10
13. It will be useful to refer to the relevant portion of a
judgment of this Court in Radhey Shyam Gupta v. U.P.
State Agro Industries Corpn. Ltd.1
, wherein it was
held as follows:
“33. It will be noticed from the above decisions
that the termination of the services of a temporary
servant or one on probation, on the basis of
adverse entries or on the basis of an assessment
that his work is not satisfactory will not be punitive
inasmuch as the above facts are merely the
motive and not the foundation. The reason why
they are the motive is that the assessment is not
done with the object of finding out any misconduct
on the part of the officer, as stated by Shah, J. (as
he then was) in Ram Narayan Das case. It is done
only with a view to decide whether he is to be
retained or continued in service. The position is
not different even if a preliminary enquiry is held
because the purpose of a preliminary enquiry is to
find out if there is prima facie evidence or material
to initiate a regular departmental enquiry. It has
been so decided in Champaklal case. The purpose
of the preliminary enquiry is not to find out
misconduct on the part of the officer and if a
termination follows without giving an opportunity,
it will not be bad. Even in a case where a regular
departmental enquiry is started, a charge-memo
issued, reply obtained, and an enquiry officer is
appointed — if at that point of time, the enquiry is
dropped and a simple notice of termination is
passed, the same will not be punitive because the
enquiry officer has not recorded evidence nor
given any findings on the charges. That is what is
held in Sukh Raj Bahadur case and in Benjamin
case. In the latter case, the departmental enquiry
was stopped because the employer was not sure
of establishing the guilt of the employee. In all
1 (1999) 2 SCC 21 para 33 & 34- Followed in Ratnesh Kumar Choudhary v. Indira Gandhi
Institute of Medical Science, Patna, Bihar (2015) 15 SCC 151
11
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.”
12
For the aforementioned reasons, the judgment of the
High Court is set aside and the Appeal is allowed
accordingly.
Civil Appeal No. .2927of 2018 @ Special Leave Petition
(Civil) No .10679 of2011
Leave granted.
14. This Appeal has been filed by Respondent No.1 being
aggrieved by the judgment of the High Court of
Uttarakhand at Nainital by which the High Court has
rejected the prayer of Respondent No.1 to direct his
confirmation as Engineer –B (Civil).
15. For the reasons mentioned in Civil Appeal No.2926 of
2018 @ S.L.P. (Civil) No. 4208 of 2011, the Appeal is
dismissed.
…................................J.
 [S.A. BOBDE]
 ........................................J.
 [L. NAGESWARA RAO]
New Delhi,
March 19, 2018.
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