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
-----------------------
25
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
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[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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