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.
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
Citation;2015 ALLSCR3681
Dipak Misra, J.
Dated;October 15, 2015
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 MedicalSciences (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
2which 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
3on 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
4and 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.
56. 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
6passed 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
7punishment 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
82003.”
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
9letter. 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
10the 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.
1115. The aforesaid submissions have been controverted by
the learned counsel for the respondents.
16. To appreciate the controversy, we may refer to certain
authorities which are pertinent to appreciate the
controversy. In Samsher Singh v. State of Punjab1
, a
seven-Judge Bench was considering the legal propriety of
the discharge of two judicial officers of the Punjab Judicial
Service who were serving as probationers. The majority
laying down the law stated that:-
“No abstract proposition can be laid down that
where the services of a probationer are
terminated without saying anything more in
the order of termination than that the services
are terminated it can never amount to a
punishment in the facts and circumstances of
the case. If a probationer is discharged on the
ground of misconduct, or inefficiency or for
similar reason without a proper enquiry and
without his getting a reasonable opportunity of
showing cause against his discharge it may in
a given case amount to removal from service
within the meaning of Article 311(2) of the
Constitution.”
And again:-
“The form of the order is not decisive as to
whether the order is by way of punishment.
Even an innocuously worded order terminating
the service may in the facts and circumstances
of the case establish that an enquiry into
allegations of serious and grave character of
misconduct involving stigma has been made in
1
(1974) 2 SCC 831
12infraction of the provision of Article 311. In
such a case the simplicity of the form of the
order will not give any sanctity. That is exactly
what has happened in the case of Ishwar
Chand Agarwal. The order of termination is
illegal and must be set aside.”
17. In Radhey Shyam Gupta vs. U.P. State Agro
Industries Corporation Ltd. and Another2
, the services of
the appellant were terminated as he was a probationer. He
challenged the order of termination before the
Administrative Tribunal, Lucknow, U.P., alleging that
though the termination order appeared to be innocuous, it
was really punitive in nature, inasmuch as it was based on
an ex-parte report of enquiry which indicated that he had
accepted the bribe and, therefore, it was not merely the
motive, but the very foundation of the order of termination.
The tribunal allowed the application of the appellant and
quashed the order of termination. The High Court in the
writ petition, placing reliance on the decisions rendered in
State of U.P. vs. Kaushal Kishore Shukla3
, Triveni
Shankar Saxena vs. State of U.P.4
and State of U.P. vs.
Prem Lata Misra5
, came to hold that the order of
termination had not been founded on any misconduct, but
2
(1999) 2 SCC 21
3
(1991) 1 SCC 691
4
(1992) Supp (1) SCC 524
5
(1994) 4 SCC 189
13on 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
14ruled that if the facts revealed in the enquiry are not the
motive but the foundation for the termination of the services
of the temporary servant or probationer, it would be punitive
and principles of natural justice are bound to be followed
and failure to do so would make the order legally unsound.
The Court referred to the judgments rendered in Samsher
Singh (supra), Parshotam Lal Dhingra vs. Union of
India6
, State of Bihar vs. Gopi Kishore Prasad7
and
State of Orissa vs. Ram Narayan Das8
and, eventually,
opined that if there was any difficulty as to what was
“motive” or “foundation” even after the Samsher Singh’s
case the said doubts were removed in Gujarat Steel Tubes
Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha9
. The
clarification given by the Constitution Bench in the said
case, being instructive, the two-Judge Bench reproduced the
same, which we think we should do:-
“53. Masters and servants cannot be permitted
to play hide and seek with the law of dismissals
and the plain and proper criteria are not to be
misdirected by terminological cover-ups or by 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
6 AIR 1958 SC 36
7 AIR 1960 SC 689
8 AIR 1961 SC 177
9
(1980) 2 SCC 593
15with 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 allega-
16tions. 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 India10
,
Nepal Singh vs. State of U.P.11 and Commissioner, Food
& Civil Supplies vs. Prakash Chandra Saxena12 and
opined as follows:-
“33. It will be noticed from the above decisions
that the termination of the services of a 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 en-
10 (1984) 2 SCC 369
11 (1980) 3 SCC 288
12 (1994) 5 SCC 177
17quiry 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 con-
18duct 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
Others13 after addressing the history pertaining to “motive”
and “foundation” and referring to series of decisions, a
two-Judge Bench had held that:-
“28. The important principles which are 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
13 (2000) 5 SCC 152
19would 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. Singhvi14, dwelled upon the issue whether
the order of discharge of a probationer was simpliciter or
punitive, referred to the authority in Dipti Prakash
Banerjee vs. Satyendra Nath Bose National Centre for
Basic Sciences15 and came to hold thus:-
“It was held by this Court in Dipti Prakash Banerjee
case that whether an order of termination of a
probationer can be said to be punitive or not de-
14 (2010) 8 SCC 220
15 (1999) 3 SCC 60
20pends 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 Another16, wherein a two-Judge
Bench struck a discordant note by stating that:-
“Before considering the facts of the case before us
one further, seemingly intractable, area relating
to the first test needs to be cleared viz. what 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.”
16 (2002) 1 SCC 520
2125. The said decision has been discussed at length in
State Bank of India and Others vs. Palak Modi and
Another17 and, eventually, commenting on the same, the
Court ruled thus:-
“The proposition laid down in none of the five
judgments relied upon by the learned counsel for
the appellants is of any assistance to their cause,
which were decided on their own facts. We may
also add that the abstract proposition laid down
in para 29 in Pavanendra Narayan Verma v. 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
17 (2013) 3 SCC 607
22service 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
26facts 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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