Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sc., Calcutta  INSC 25 (10 February 1999)
JAGANNADHA RAO, & D.P. MOHAPATRA M.JAGANNADHA RAO,J.
Civil Appeal has been filed by the appellant questioning the correctness of the
judgment of the Calcutta High Court in M.A.T.
of 1997 dated 23.4.1998. By that judgment, the Division Bench affirmed the
judgment of the learned Single Judge dated 15.5.1997 in W.P.
of 1997 dismissing the writ petition filed by the appellant, a probationer and
refusing to quash the order dated 30.4.1997, terminating his probation.
facts of the case in brief are as follows:
appellant was appointed on 11.1.1995 as Office Superintendent in the respondent
organisation, namely, Sri Satyendra Nath Bose National Centre for Basic
Sciences, Calcutta. The order of appointment dated
11.1.1995 stated that the appellant would be on probation for one year and that
he might be confirmed after one year provided the administration was satisfied
with the quality of the appellant's service. His pay scale was to be in the
scale of Rs.1400-1600-2300- 2600 with allowances. The appellant joined on
are concerned with the question of validity of the appellant's termination of
probation, it is necessary to refer to the events that took place during the
period of probation.
11.12.1995, the Director of the respondent organisation informed the appellant
that the appellant's work was not satisfactory on several counts. The points
mentioned in this letter are as follows:- "(i) Your handling of the
movement to the new campus was good till the good impression was spoiled by
your refusal to handle the furniture in the Director's room and your statements
about other administrative staff members, which were not corroborated by
academic members present. Later movement to the JD Block by Prof. A.Mookerjee
and the Director's office found you non-cooperative.
You have been preparing false bills; the fact that they were passed by your
immediate superior does not mitigate your guilt.
Your handling of quotations about cleaning agencies, xerox machines, purchases
of stationery etc. were faulty and several times you were told to redo the
whole job. Unfortunately your performance has not improved even after repeated
You have misbehaved with women academic staff members; one of them has even
submitted a written complaint.
You are rather frequently absent from office premises and the faculty members
complained about your absence. Your handling of the room allocations in the
guest house, confirmatory reply to people asking for accomodation, and general
supervision have been unsatisfactory, In general your attitude to office work
leaves much to be desired.
expected that you would rectify the faults noted above and improve your
performance in the coming months, so that your confirmation could be favourably
considered." On 30.4.1996, the appellant was informed that he was on
probation and his confirmation would be considered soon. On 15.4.1996, the
Director wrote another letter stating as follows:
It appears that your attitude concerning the guests for the guest house has not
shown any improvement. When Dr.R.Bhat fell sick with chicken pox and was in
quarantine for three weeks, you were nowhere to be seen, and the A.O. was also
not seen to take any interest. similarly when a Canadian professor (Professor Dragland)
fell sick, you were not to be found.
of the time, you left the work to be done by others, who had to do extra work
for your inefficiency.
have not done a proper job of releasing the houses at DB 17 and CD 85. It is
known that the date 31.1.1996 is not the actual date of release of DB 17 and
the landlord showed us proof that this was so.
have not explained how the revenue stock verification was done by you and the
refer to SNB/DIR/ADM/95- 96/84 dated 20.2.1996 about stock verification
(especially numbering and locating new furniture). Has any progress been made?
No activity on this important job has been noticed by me.
report to me on point 3 by April 16, 1996.
performance leaves a lot to be desired and you must show evidence of good work
to the academic staff members to merit confirmation." The appellant
submitted an elaborate reply of five pages denying all the allegations and
giving his version of the incidents mentioned against him, and also sought for
a copy of the Written Complaint given by the woman `academic' staff member. He
pointed out that though as per the order of the Director, he was to report to
the Administrative Officer, the Director was perhaps sending the above letters
without consulting the said Administrative Officer.
report dated 25.4.1996 of the Administrative Officer to the Director gives a
contrary version. It states that the appellant was found to be an
"excellent working hand, conscientious and willing" to take
responsibility, that he had always been discharging his assigned works even
despite constraints, that he was regular and punctual, and was conducting
himself very well in the discharge of his duties even when there was no helping
hand and that "his service during the period of probation has been
the Director issued a further letter dated 30.4.1996 stating that the
appellant's performance during the period of probation had been reviewed and
stating that "regrettably your performance has been far from
satisfactory", that by letters dated 11.12.1995 and 15.4.1996 his
attention had been drawn to various areas of unsatisfactory performance, but no
improvement was discernible.
stated that in order to afford the appellant an opportunity to improve
performance and in order to enable the organisation to consider the appellant's
case favourably for confirmation, his probationary period was being extended by
six months from 2.5.1996. The letter stated that it was hoped that the
appellant would improve his performance generally and also in the areas pointed
out to him.
17.10.1996, the Director wrote to the appellant that the appellant's
performance in the previous six months was again assessed and that there were
`serious deficiencies' as follows:
Your attendance to office work has been irregular and perfunctory. It was found
that you had often left the office earlier than the time you signed in the
You could not complete the job of stock taking of the fixed stock, marking of
furniture, etc. for the whole financial year 1995-96. You were told again
(letter SNB/DIR/ADM/96-97/52 dated 11.9.1996) but you tried to avoid work by
writing irrelevant notes. There has been no evidence that the work was started
for the FY 1996-97.
Your complaint of 28.5.1996 against Sri P.Chakraborty, Helper, was duly
investigated. Your behaviour before the inquiry committee was reprehensible. It
was confirmed by the committee that you were involved in the scuffle and did
other misdeeds like obtaining false signature, so that you were characterized
as a person of `dubious character'.
are guilty of inefficient performance of duty, irregular attendance without
permission, rude and disorderly behaviour, and wilful insubordination.
your performance improves considerably it would be difficult to recommend your
confirmation. It is expected that you would pay attention to the faults pointed
out to you." The above letter, it will be seen, refers to an inquiry. The
Counter affidavit filed by the respondent explains that the said report was
given by a High Level Enquiry Committee on 15.7.1996.
Committee was to deal with the complaint by the appellnat against one Sri P.Chakraborty,
a partially handicapped person. We get some details of the Enquiry report from
the counter affidavit as follows:
In pursuance of a complaint made by the petitioner against Shri P.Chakraborty a
specific enquiry was made on the following questions by a High Level Enquiry
Committee consisting of three high officials, namely (1) Professor (Smt.) Monisha
Bose, (2) Dr.N.Nayak and (3) Dr. D.Gangopadhyay, headed by Prof. (Smt.) Monisha
Bose - (i) Why Sri P.Chakraborty went downstairs, whether he used unacceptable
language and whether he was involved in physical assault, and (ii) Whether Sri D.P.Banerjee
used provocative language and whether he was involved in physical assault? The
petitioner was not very cooperative in the enquiry. The said enquiry committee
inter alia made the following recommendation:
was involved in the scuffle and also used Mr. Pradip Bose to obtain the false
signatures. As such, he should surely be punished.
recommend that a person of such dubious character should not be
confirmed." On 30.10.1996, we have a report of a different kind from the
Administrative Officer. That report is totally in favour of the appellant. It
states that, with reference to the letter dated 17.10.1996, the Administrative
Officer had to state that his earlier note dated 25.4.1996 regarding the
appellant's performance was obviously not taken into account by the Director,
that reports were being called on `selective basis' rather than by standard
format applicable to all employees. He stated that the appellant's performance
was "exemplary, well mannered and disciplined, he had been discharging his
duties conscientiously and diligently". He referred to some of the specific
items of complaint and stated that there was no truth in them.
comes the second order of extension of probation dated 31.10.1996 from the
Director extending the probation by another six months, from 2.11.1996.
Appellant was asked to submit an account of his monthly work to Dr.Samir K.
Pal, who would judge his performance. The appellant was asked to improve his
29.3.1997, the Director wrote to the appellant that on the basis of Dr. S.K.Pal's
reports, the appellant's performance in regard to stock-taking or handling
quotations was not good and that the appellant must change his attitude to
work, avoid neglect of work allotted, avoid carelessness or inefficiency &
change his behaviour which often bordered on insubordination.
in this background that on 30.4.1997, the impugned order of termination was
passed. As the case turns also upon the question whether this order is vitiated
by `stigma', it is necessary to extract the body of this letter. It reads:
Since the performance during the initial period of probation was not
satisfactory, by letter no.SNB/PER 4 1201/DO-5 dated 30 April 1996 your period
of probation was extended by six months from 2 May 1996.
letter dated 17 October
1996 your attention
was drawn to unsatisfactory performance and the areas of unsatisfactory
performance were brought to your notice. You were advised to improve your
Since during the extended period also your performance was not satisfactory,
the Management was constrained to further extend your period of probation and
accordingly by letter no.SNB/PER 4 1201/DO-100 dated 31 October 1996 your
period of probation was extended further six months.
During the period of further extension of probation you could not improve your performance.
have closely watched and examined your conduct, performance, ability and
capacity during the whole period of probation but your performance is found to
be unsatisfactory and you are considered unsuitable for the post against which
you have been appointed. The period of probation was extended with the
expectation that you would improve your performance but there was no
improvement in your performance.
Under the circumstances, the Management is unable to confirm your service in
the Centre and as such the Management is unable to continue your service on the
expiry of the stipulated period or probation on the Ist May 1997 and your
service shall stand terminated after the close of working hours of 1 May 1997. In case you want to appeal against the decision,
you may appeal to the Governing Body of the Centre.
You will be paid one month's pay although the contract of employment does not
stipulate any such payment." It is this order of the respondent that was
unsuccessfully challenged before the single Judge and the Division Bench of the
this appeal, it is contended by Sri Jaideep Gupta, learned counsel for the
appellant that the order terminating the appellant's probation is liable to be
set aside on two grounds. Firstly, that the findings in the letter of the
Director dated 11.12.95 shows that certain findings arrived at behind the back
of the appellant were the foundation of the impugned order; secondly on the
ground that it refers to certain communications by the Director to the
appellant which contain material amounting to `stigma' and also because these
documents and the record of the case clearly establish that it is a case where
certain findings arrived at in a non-departmental inquiry were the `foundation'
for the termination and it is not a case where certain allegations against the
appellant could be treated as the `motive' behind the order. He contended that
the Administrative Officer's reports in his favour were not considered by the
Director. The communications to the appellant contained not only certain
allegations but clear adverse findings by the Director as well as by a
Committee and they were the foundation.
differences between the Director and the Administrative Officer, led to the
appellant being made the scape-goat.
other hand, learned senior counsel for the respondent Sri P.P.Rao contended
that this was a case where the appellant's performance during probation was not
satisfactory, the organisation so informed the appellant during the first one
year period on 11.12.1995 and 15.4.1996 and he was asked to improve. Thereafter
on 30.4.1996, his probation was extended giving him an opportunity to improve.
this six month period, again the Director wrote on 17.10.1996 pointing out his
deficiencies and asking him to improve by giving a further extension of
probation on 31.10.1996 by another six months. A note was sent on 29.3.1997 to
him regarding his deficiencies and finally the termination order was passed on
the employer acted fairly and there was no question of any stigma in the order
nor was it a case where certain findings were arrived at which could be the
foundation of the order. If on account of unsatisfactory performance a
probation could not be terminated then it would lead to serious problems for
basis of the above contentions, the following points arise for consideration:
what circumstances, the termination of a probationer's services can be said to
be founded on misconduct and in what circumstances could it be said that the
allegations were only the motive? (2) When can an order of termination of a
probationer be said to contain an express stigma? (3) Can the stigma be
gathered by referring back to proceedings referred to in the order of termination?
(4) To what relief? Point 1:
in what circumstances an order of termination of a probationer can be said to
be punitive or not depends upon whether certain allegations which are the cause
of the termination are the motive or foundation. In this area, as pointed out
by Shah,J. (as he then was) in Madan Gopal vs. State of Punjab [AIR 1963 S.C.
531] there is no difference between cases where services of a temporary
employee are terminated and where a probationer is discharged. This very
question was gone into recently in R.S.Gupta vs. U.P.State Agro Industries
Corporation Ltd. & Anr. [J.T. 1998 (8) S.C. 585] and reference was made to
the development of the law from time to time starting from Purshottam Lal Dhingra
vs. Union of India [1958 SCR 828], to the concept of `purpose of inquiry'
introduced by Shah,J. (as he then was) in State of Orissa vs. Ram Narayan Das
[1961 (1) SCR 606] and to the seven Bench decision in Samsher Singh vs. State
of Punjab [1974 (2) SCC 831] and to post Samsher Singh case-law. This Court had
occasion to make a detailed examination of what is the `motive' and what is the
`foundation' on which innocuous order is based.
Court in that connection referred to the principles laid down by Krishna Iyer,J.
in Gujarat Steel Tube vs. Gujarat Steel Tubes Mazdoor Sangh [1980 (2) SCC 593].
As to `foundation', it was said by Krishna Iyer,J. as follows:
termination effected because the master is satisfied of the misconduct and of
the desirability of terminating the service of the delinquent servant, it is a
dismissal, even if he had the right in law to terminate with an innocent order
under the standing order or otherwise.
in such a case, the grounds are recorded in different proceedings from the
formal order, does not detract from its nature. Nor the fact that, after being
satisfied of the guilt, the master abandons the inquiry 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 terminolgy is used."
and as to motive:
the contrary, even if there is suspicioun 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.
it is not dismissal but termination simpliciter, if no injurious record of
reasons or pecuniary cut-back on his full terminal benefits is found. For, in
fact, misconduct is not then the moving factor in the discharge." As to
motive one other example is the case of State of Punjab vs. Sukh Raj Bahadur
[1968(3) SCR 234] where a charge memo for a regular inquiry was served, reply
given and at that stage itself the proceedings were dropped and a simple
termination order was issued. It was held, the order of simple termination was
not founded on any findings as to misconduct. In that case, this Court referred
to A.S.Benjamin vs. Union of India (Civil Appeal No.1341 of 1966 dt.
13.12.1966) (SC) where a charge memo was issued, explanation was received, an
inquiry officer was also appointed but before the inquiry could be completed,
the proceedings were dropped and a simple order of termination was passed, the
reason for dropping the proceedings was that "departmental proceedings
will take a much longer time and we are not sure whether after going through
all the foundation, we will be able to deal with the accused in the way he
deserves'. The termination was upheld.
findings were arrived at in inquiry as to misconduct, behind the back of the
officer or without a regular departmental enquiry, the simple order of
termination is to be treated as `founded' on the allegations and will be bad.
But if the inquiry was not held, no finding were arrived at and the employer
was not inclined to conduct an inquiry but, at the same time, he did not want
to continue the employee against whom there were complaints, it would only be a
case of motive and the order would not be bad. Similar is the position if the
employer did not want to inquire into the truth of the allegations because of
delay in regular departmental proceedings or he was doubtful about securing
adequate evidence. In such a circumstance, the allegations would be a motive
and not the foundation and the simple order of termination would be valid.
light of the above principles, laid down in R.S.Gupta's case we do not think
anything more is to be added. Point 1 is decided accordingly.
present case before us, the order of termination dated 30.4.97 is not a simple
order of termination but is a lengthy order which we have extracted above. It
not only says that performance during probation is not satisfactory but also
refers to a letter dated 30.4.1996 by which the period of probation was
extended by six months from 2.5.1996, and to letters dated 17.10.96 and
31.10.96. It concludes by saying that the appellant's `conduct, performance,
ability and capacity during the whole period of probation was not satisfactory
and that he was considered `unsuitable' for the post for which he was
contention for the appellant is that if the appellant is to seek employment
elsewhere, any new employer will ask the appellant to provide the copies of the
letters dated 30.4.96, 17.10.96 and 31.10.96 referred to in the impugned order
and that if the said letters contain findings which were arrived at without a
full fledged departmental inquiry, those findings will amount to stigma and
will come in the way of his career.
matter of `stigma', this Court has held that the effect which an order of
termination may have on a person's future prospects of employment is a matter
of relevant consideration. In the seven Judge case in Samsher Singh vs. State
of Punjab [1974 (2) SCC 831], Ray,CJ observed that if a simple order of
termination was passed, that would enable the officer to "make good in
other walks of life without a stigma. "It was also stated in Bishan Lal Gupta
vs. State of Haryana [1978 (1) SCC 202] that if the order contained a stigma,
the termination would be bad for "the individual concerned must suffer a
substantial loss of reputation which may affect his future prospects".
is, however, considerable difficulty in finding out whether in a given case
where the order of termination is not a simple order of termination, the words
used in the order can be said to contain a `stigma'. The other issue in the
case before us is whether - even if the words used in the order of termination
are innocuous, -the court can go into the words used or language employed in
other orders or proceedings referred to by the employer in the order of
termination? As to what amounts to stigma has been considered in Kamal Kishore Lakshman
vs. Pan American World Airways [1987 (1) SCC 146. This Court explained the
meaning of `stigma' as follows(p150):
to Webster's New World Dictionary, it (stigma) is something that detracts from
the character or reputation of a person, a mark, sign etc., indicating that
something is not considered normal or standard. The Legal Thesuras by Burton
gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation,
mark of disgrace or shame. The Webster's Third New International Dictionary
gives the meaning as a mark or label indicating a deviation from a norm.
to yet another dictionary `stigma' is a matter for moral reproach."
Similar observations were made in Allahabad Bank Officer's Association vs. Allahabad
Bank [1996 (4) SCC 504].
outset, we may state that in several cases and in particular in State of Orissa
vs. Ram Narayan Das [AIR 1961 S.C. 177], it has been held that use of the word
`unsatisfactory work and conduct', in the termination order, will not amount to
advert to a few cases on the question of stigma. We shall refer initially to
cases where a special Rule relating to termination of probationer required a
particular condition to be satisfied and where the said condition was referred
to in the order of termination. In Hari Singh Mann vs. State of Punjab [1975
(1) SCC 774), the probationer was governed by Rule 8(b) of the Punjab Service
Rules, 1959 and the fact that the word `unfit' as required by the Rules was
used, was held not to be a ground for quashing the order on the ground of
`stigma', for to hold that it amounted to `stigma' would amount to robbing the
authority of the right under the rule. Similarly where a Rule required a show
cause notice issued and an inquiry to be conducted before terminating
probation, such as Rule 55-B of the Central Civil Services (CCA) Rules, there
would be no question of characterising the simple order of termination as one
founded on the allegations which were the subject of the inquiry. That was
because, in such a case, the purpose of the inquiry was to find out if the
officer was to be continued in service and not to find out if he was guilty
[State of Orissa vs. Ram Narayan Das (AIR 1961 SC 177) (Ravindra Chandra vs.
Union of India AIR 1963 S.C.1552)]. In State of Gujarat vs. Akhilesh C.Bhargav [1987 (4)
SCC 482], the termination order merely referred to Rule 12(bb) of the Indian
Police Service (Probationer -) Rules 1959. It was contended that the reference
to the said Rule 12(bb) itself amounted to a stigma but this was rejected
following Ram Narayan Das case.
shall next advert to some more cases and to particular words employed while
passing orders of termination of probationers. In State of Bihar vs. Gopi Kishore
Prasad [AIR 1980 S.C. 689], a show cause notice was given seeking a reply to
the allegation regarding the officers' bad reputation and in regard to certain
perverse decisions given by him in his Judicial functions during the period of
probation. The termination order stated that certain facts were brought to the
notice of the Government about his unsatisfactory work and conduct and that
grave doubts had arisen about his integrity which indicated that he was a
corrupt and an unreliable officer. It was also said that confidential inquiries
revealed that he was a corrupt officer and that annual confidential reports of
his superior officer referred to his bad reputation and therefore his work
during the period of probation was not satisfactory. The Constitution Bench of
this Court held that it was a clear case of stigma and the matter indeed
required a full fledged departmental inquiry under Rule 55 of the CCS (CCA)
Rules. In Jagdish Mitter vs.
of India [AIR 1964 S.C. 499] the use of the words "undesirable to be
continued" in service was held by the Constitution Bench to amount to
case was followed in State of U.P. vs. Madan
Mohan Nagur [AIR 1967 C.C. 1260] where the order said that the officer had
`outlived his utility' and such an order was held to amount to a stigma.
Mitter was approved by the Seven Judge Bench in Samsher Singh's case on this
point. But in Kunwar Arun Kumar vs. U.P. Hill Electronics Corporation [1997 (2)
SCC 191, the termination order used the word `unsatisfactory' and the same was
upheld as it did not amount to stigma. In two cases arising under industrial
law, one in Chandu Lal vs. Pan American World Airways [1985 (2) SCC 727] and Kamal
Kishnore Lakshman vs. Pan American Land Ways Inc. [1987 (1) SCC 146] where the
termination order used the word `loss of confidence', the said orders were held
to contain stigma and therefore punitive. In Jagdish Prasad vs. Sachiv Zila Gaon
Committee [1986 (2) SCC 338], the termination order stated that the officer had
concealed certain facts relating to his removal from an earlier service on
charge of corruption and therefore not suitable for appointment. This was held
to amount to stigma. But in Union of India vs. R.S.Dhabe [1969 (3) SCC 603]
where the order merely said `found unsuitable', it was held not to amount to
stigma. In Allahabad Bank Officers Association vs. Allhabad Bank [1996 (4) SCC
504], the order was one of compulsory retirement and said that a Special
Committee had unanimously recommended for the officers' compulsory retirement,
that the Chairman and Managing Director agreed with the Committee's views
regarding `want of application to Bank's work and lack of potential and that
the officer was also found to be not `dependable'. This Court after referring
to a number of cases explained that the words `not dependable' were used, in
the context of the facts of the case and not as an aspersion on his reputation
but in relation to his work and were to be understood in that sense in the
setting of the words `want of application' and or `lack of potential'. It was
person reading the letter on the order of compulsory retirement would not be
led to believe that there was something wrong with Appellant 2 as regards his
conduct or character. They would only indicate that he had ceased to be useful to
the Bank in his capacity as a Manager".
in High Court of Judicature at Patna vs. Pandey
Madan Mohan Prasad Sinha & Others [1997 (10) SCC 409] it was held that
termination of probationer on basis of uncommunicated adverse remarks, was
depends on the facts and circumstances of each case and the language or words
employed in the order of termination of the probationer to Judge whether the
words employed amount to stigma or not. Point 2 is decided accordingly.
next question is whether the reference in the impugned order to the three
earlier letters amounts to stigma if those three letters contained anything in
the nature of a stigma even though the order of termination itself did not
contain anything offensive.
counsel for the appellant relies upon Indrapal Gupta vs. Managing Committee
[1984 (3) SCC 384] decided by a three Judge Bench of this Court. In that case
the order of termination of probation, which is extracted in the judgment,
reads as follows:
reference to the above (viz.
of service as Principal), I have to mention that in view of the resolution No.2
of the Managing Committee dated April 27, 1969 (copy enclosed) and subsequent
approval by the D.I.O.S., Bulandshahr, you are hereby informed that your
service as Principal of this Institution is terminated ....." Now the copy
of Resolution of the Managing Committee appended to the order of termination
stated that the Report of the Manager was read at the meeting and that the
"facts contained in the Report of the Manager being serious and not in the
interests of the institute, that therefore the Committee unanimously resolved
to terminate his probation." The Report of the Manager was not extracted
in the enclosure to the termination order but was extracted in the Counter
filed in the case and read as follows:
will be evident from the above, that the Principal's stay will not be in the
interest of the Institution. It is also evident that the serious view of the
lapses is enough to justify dismissal but no educational institution should
take all this botheration. As such my suggestion is that our purpose will be
served by termination of his services. Why, then, we should enter into any
botheration. For the termination of his period of probation, too, the approval
of the DIOS will be necessary. Accordingly, any delay in the matter may also be
harmful to our interests.
I suggest that instead of taking serious action, the period of probation of Sri
Inder Pal Gupta be terminated without waiting for the period to end." It
was held by Venkataramiah, J. (as he then was) (p.392) that the letter of
termination referred to the resolution of the Managing Committee, that the said
resolution was made part of the order as an enclosure and that the Resolution
in its turn referred to the report of the Manager. A copy of the Manager's
report had been filed alongwith the counter and the said report was the
`foundation'. Venkataramiah,J. (as he then was) held that the Manager's report
contained words amounting to stigma. The learned Judge said: "This is a
clear case where the order of termination issued is merely a camouflage for an
order imposing a penalty of termination of service on the ground of
misconduct", that these findings in the Manager's report amounted to a
`mark of disgrace or infamy' and that the appellant there was visited with evil
consequences. The officer was reinstated with all benefits of backwages and
continuity of service.
will be seen from the above case that the resolution of the committee was part
of the termination order being an enclosure to it. But the offensive part was
not really contained in the order of termination nor in the Resolution which
was an enclosure to the order of termination but in the Managers's report which
was referred to in the enclosure. The said report of the Manager was placed
before the Court along with the counter.
allegations in the Manager's report were the basis for the termination and the
said report contained words amounting to stigma. The termination order was, as
stated above, set aside.
above decision is, in our view, clear authority for the proposition that the
material which amounts to stigma need not be contained in the order of
termination of the probationer but might be contained in any document referred
to in the termination order or in its Annexures.
such a document could be asked for or called for by any future employer of the
probationer. In such a case, the order of termination would stand vitiated on
the ground that no regular inquiry was conducted. We shall presently consider
whether, on the facts of the case before us, the documents referred to in the
impugned order contain any stigma.
in this context argued for the Respondent that the employer in the present case
had given ample opportunity to the employee by giving him warnings, asking him
to improve and even extended his probation twice and this was not a case of
unfairness and this Court should not interfere. It is true that where the
employee had been given suitable warnings, requested to improve, or where he
was given a long rope by way of extension of probation, this Court has said
that the termination orders cannot be held to be punitive. Hindustan Paper
Corporation vs. Purendu Chakraborty [1996 (11) SCC 404] See in this connection,
Oil & Natural Gas Commission vs. Md.
[1980 (3) SCC 428], Unit Trust of India vs. T.Bijaya Kumar [1992 (5) Serv.L.R.
855 (SC)], Principal, Institute of P.G.Medical Education & Research, Pondichery
vs. S.Andel & others [1995 Suppl. (4) SCC 609] and a labour case Oswal
Pressure Die Carting Industry vs. Presiding Officer [1998 (3) SCC 225]. But in
all these cases, the orders were simple orders of termination which did not
contain any words amounting to stigma. In case we come to the conclusion that
there is stigma in the impugned order, we cannot ignore the effect it will have
on the probationer's future whatever be earlier opportunities granted by the
respondent organisation to the appellant to improve.
this point, therefore, we hold that the words amounting to `stigma' need not be
contained in the order of termination but may also be contained in an order or
proceeding referred to in the order of termination or in an annexure thereto
and would vitiate the order of termination. Point 3 is decided accordingly.
this point, two aspects of the case fall for consideration, firstly whether the
impugned order is founded on any conclusions arrived at by the employer as to
his misconduct or whether the termination was passed because the employer did
not want to continue an employee against whom there were some complaints. The
second aspect is whether there is any stigma in the order of termination or in
the documents referred to in the termination order.
up the first aspect, we have noticed that during the first one year of
probation, a letter dated 11.12.95 was served on the appellant.
letter stated, among other things, that the appellant `prepared false bills'
and that he "misbehaved with women academic staff members".
appellant sent a reply denying the allegation and he also sought for a copy of
the complaint said to have been given by the lady academic staff member. It is
true that subsequently, there were two orders of extension of probation each
for six months. But in the impugned order dated 30.4.97, it was stated in para
8 that the order of termination was being passed because of the `conduct',
performance, ability and capacity of the appellant during the "whole
period". This would clearly take in the facts stated in the letter dated
11.12.95. It is obvious that findings of preparation of false bills or of misbehaviour
with women which ought to be arrived at only in a regular departmental inquiry,
were referred to in this letter without any inquiry. It will be noticed that
the letter dated 11.12.95 does not merely say that there are such complaints
against the appellant but it says conclusively that the appellant had
"prepared false" bills and "misbehaved" with women academic
above language in the letter dated 11.12.95 would clearly imply that this was
not a case of any preliminary findings. If these were referred to as mere
allegations, it would have been a case of motive. But as these definitive
conclusions of misconduct are evident on the face of this letter dated 11.12.95
and this letter falls within the "whole period", the conclusion is
inescapable that these findings were part of the foundation of the impugned
order and it is not a case of mere motive. On this ground, the order requires
to be set aside.
shall next take up the second aspect relating to stigma. We shall assume that
the words used in the impugned order do not contain any stigma. We shall then
refer to the three other letters to which the order makes a reference. In the
first letter dated 30.4.96, we do not find anything objectionable. Coming to
the next letter, we however find that para (iii) refers to the scuffle between
the appellant and one P.Chakraborty regarding which the appellant made a
complaint on 28.5.96. An Inquiry Committee is said to have been appointed and
it gave a Report. The extract from the report of the Committee dated 15.7.1996
is found in the Counter of the respondents. The Inquiry Committee found the
appellant's "behaviour reprehensible", and it confirmed that the
appellant was involved in a scuffle and did misdeeds like obtaining false
signatures", and said that the appellant was "guilty of inefficient
performance or duty, irregular attendance without permission, rude and
disorderly behaviour and wilful insubordination". Whatever may be said
about the other words, the words used in connection with the finding of the
Inquiry Committee about the scuffle and about the appellant obtaining false
signatures, are, in our opinion, clearly in the nature of a stigma. Further,
the Inquiry Committee said he must be `punished'. It did not say that
proceedings for disciplinary action were to be initiated. Thus on the ground of
`stigma' also the impugned order is liable to be set aside.
argued that the appellant was given notice of the above Inquiry by the
Committee but he was `not cooperative'. In our view findings arrived at by such
an informal Committee against the appellant, which Committee was, in fact,
constituted on a complaint by the appellant against Mr. Chakraborty, - cannot
be used for terminating the appellant's probation, without a proper
departmental inquiry. The said findings, in our view, were the foundation for
the impugned order among other facts. Such findings must, in law, be arrived at
only in a regular departmental inquiry.
pointed out in Bishan Lal Gupta vs. State of Haryana [1978 (1) SCC 202], an
ordinary inquiry by a show cause might be sufficient for the purpose of
deciding whether the probatiioner could be continued. But where the findings
regarding misconduct are arrived at without conducting a regular departmental
inquiry, then the termination order will be vitiated. The learned senior
counsel for the respondent relied upon Hindustan Paper Corporatiion vs. Purnendu
Chakraborty [1996 (11) 404] where it was held that for termination of `lien',
no detailed inquiry was necessary and that if that be the position, termination
of probation stands on a lesser footing. But the case turned upon a special
Rule in that case which specifically provided that for `termination of lien' a
regular inquiry was not necessary. That case cannot therefore be of any
assistance to the respondents.
not find anything objectionable in the third letter dated 31.10.96 but the
second letter, as stated above, is clearly objectionable.
the aforesaid reasons, the imugned order is liable to be set aside.
senior counsel for the respondent submitted on the basis of State of Haryana
Chander [1995 (2) SCC 567] that merely because an order of termination was set
aside on grounds of lack of opportunity, it was not necessary to direct
reinstatement and backwages.
in Jagdish Chandra's case was placed upon Managing Director, ECIL vs. B.Karunakar
[1993 (4) SCC 727]. It is true that such an order not granting reinstatement or
back wages was passed in Jagdish Chander's case following Karunakar's case.
has to be noticed that in Karunakar's case, there was a regular departmental
inquiry but the inquiry report was not given to the officer. This Court
directed the report to be given and set aside the proceedings from that stage
and stated that no order for reinstatement or backwages need be passed at that
stage. But in cases like the present where no departmental inquiry whatsoever
was held, Karunakar's case, in our view, cannot be an authority. As to backwages,
on facts, the position in the present case is that there is no material to say
that the appellant has been gainfully employed.
appellant is, therefore, entitled to reinstatement and backwages till the date
of reinstatement from the date of termination and to continuity of service.
Point 4 is decided accordingly.
the aforesaid reasons, the appeal is allowed, the Judgments of the Division
Bench & learned Single Judge of the High Court are set aside, the impugned
order of termination is quashed, and the appellant is hereby directed to be
reinstated with backwages till the date of reinstatement and continuity of
service. It will be open to the respondents to take such action as they may
deem fit in accordance with law against the appellant. The appeal is allowed as
stated above. There will be no order as to costs.