Holding

A termination order that lacks stigmatic language and does not satisfy the three‑factor test for punishment is not punitive and is therefore valid under Article 311.

Summary

The appellant, a temporary Joint Director on probation, had his services terminated after a summary inquiry and was challenged on the ground that the termination was punitive and stigmatic, requiring a full departmental inquiry under Article 311. The Court examined whether the termination order contained stigmatic language and applied the three‑factor test (full formal inquiry, allegation of moral turpitude or misconduct, and a finding of guilt) to determine if the termination was punitive. It held that the order merely stated that the appellant's work and conduct were unsatisfactory, which is non‑stigmatic, and the inquiry did not establish any of the three factors. Consequently, the termination was not a punishment and was valid. The Court also ruled that an affidavit cannot be used to alter or supplement the reasons in a valid termination order. The appeal was dismissed.

Issues considered

The termination of a probationer’s services amounts to punishment under Article 311(2).
Whether the termination order is stigmatic in nature.
Whether a summary inquiry satisfies the procedural requirements for a punitive termination.
Whether an affidavit can be used to supplement a termination order.

Subjects

service lawprobationterminationpunitivestigmaArticle 311inquiryaffidavittemporary appointmentcivil service

Judgment

PAVANENDRA NARAYAN VERMA A
v.
SANJAY GANDHI P.G.I. OF MEDICAL SCIENCES AND ANR.

NOVEMBERS, 2001

[G.B. PATTANAIK AND RUMA PAL, JJ.) B

Service Law :

Person employed in civil capacities-Dismissal of-Employee appointed
on probation-Such probationary period extended from time to time-Subse-
quently, services of employee terminated-Prior to termination inquiry was c
held to assess the suitability of the employee to be con.firmed in service-
Correctness of-Held : Enquiry held prior to tem1ination has not turned the
order of termination into one of punishment-Employer is entitled to hold an
inquiry to satisfy itself as to the competence of a probationer to be confirmed
in service-Hence, termination order, not being punitive or stigmatic in nature, D
valid-Constitution qflndia, Art. 311.

Termination order-Punitive, stigmatic or simplicitor-Tests to deter-
mine-Held: I a) Whether prior to termination a full scale formal enquiry is
held, (b) into allegations involving moral turpitude or misconduct and which
> (c) culminated in a.finding qf guilt-if all three.factors are present the temii- E
nation order is punitive irrespective qf the .fom1 qf termination order-Con-
versely, if any one qfthe.factors is missing the temiination order is not punitive.

Practice and Procedure :

Affidavit-Use qf-Held: An affidavit cannot improve or supplement an F
order.

The appellant was temporarily appointed to the post of Joint Direc-
tor (Materials Management) of respondent No. l. The period of probation
was extended from time to time. Subsequently respondent No.l terminated
G
the appellant's services. Prior to the termination order a summary inquiry
was held against the appellant in which a charge sheet had been issued to
appellant. The appellant filed a writ petition before the High Court chal-
lenging the aforesaid termination order, which was dismissed. Hence this
appeal.
H
41
42 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A On behalf of the appellant it was contended that the termination
order was punitive and cast a stigma on the appellant and could not be
sustained without a full scale departmental inquiry; and that the respond-
ents' contention before the High Court that the appellant's integrity and
honesty were doubtful showed that the termination order was punitive.

B On behalf of the respondents it was contended that the inquiry was
held merely to assess the appellant's fitness and suitability for being con-
tinued on probation.

Dismissing the appeal, the Court

c HELD : 1. 1f 'punishment' were restricted to "evil consequences",
the Court's task in deciding the nature of an order of termination would
have been easier. Courts would only have to scan the termination order to
see whether it ex-fade contains a stigma or refers to a document which
stigmatises the officer, in which case the termination order would have to
D .be set aside on the ground that it is punitive. In these cases the 'evil
consequence' must be assessed in relation to the blemish on the employee's
reputation so as to render him unfit for service elsewhere and not in
relation to the post temporarily occupied by him. [48-B-C-D]

Parshottam Lal Dhingra v. Union Qf India, Affi (1958) SC 36, Shamsher
E Singh v. State qf Punjab, [1974] 2 SCC 831 and Benjamin (A.G.) v. Union qf
India, (1967) 1 L.L.J. 718, referred to.

2.1. One of the judicially evolved tests to determine whether in
substance an order of termination is punitive is to see whether prior to the
termination there was (a) a full scale formal enquiry, (b) into allegations .
F involving moral turpitude or misconduct, (c) which culminated in a find-
ing of guilt. If all three factors are present the termination is punitive
irrespective of the form of the termination order. [50-A-B]

S.P. Vasudeva v. State of Haryana, [1976] 1 SCC 236, referred to.
G 2.2. Whenever a probationer challenges his termination the court's
first task will be to apply the test of stigma or the 'form' test. If the order
survives this examination the 'substance' of the termination will have 'to be
found out. [51-H; 52-A]

H State of U.P. v. Kaushal Kishore Shukla, [1991] 1 SCC 691, RQdhey
P.N. VERMA v. SANJAY GANDHI P.G.l. OF MEDICAL SCIENCES 43
Shyam Gupta v. U.P. State Agro Industries Corporation "Ltd., [1999] 1 SCC A
691, Dipti Prakash Banerjee v. Stayendra Nath Bose National Centre.for Basic
Sciences, [19\.19] 3 SCC 60 and Chandra Prakash Shahi v. State of U.P.,

- [2000] 5 sec 152, relied on.

State o.fOrissa v. Ram Narayan Das, AIR (1961) SC 177, cited.

3.. When a probationer's appointment is terminated it means that
B

the probationer is uufit 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
c
appointment, is also not stigmatic. [52-B·Cl

4.1. The language used in the order of termination is that the appel·
Iaut's "work and conduct has not been found to be satisfactory". These
words fall within the class of non-stigmatic orders of termination. The D
impugned order, therefore, is not ex-facie stigmatit. (52-E·F]

Dipti Prakash Banerjee v. Stayendra Nath Bose _National Centre for
Basic Sciences, (1999] 3 SCC 60, relied on.

4.2. The inquiry held prior to order of termination has not turned E
this otherwise innocuous order into one of punishment. Au employer is
entitled "to satisfy its~lf as to the competence of a probationer to be con·
firmed in service and for this purpose satisfy itself fairly as to the truth of
any allegation that may have been made about the employee. A charge
sheet merely details the allegations so that the employee may deal with
them effectively. The enquiry report in this case found nothing more
F
against the appellant than au inability to meet the requirements for the
post. None of the three factors catalogued above for holding that the
termination was in substance punitive exist here. [52-F-G·H]

Krishnadevaraya Education Trust v. L.A. Balakrishna, [2000] 1 SCALE G
196 and H.F. Sangati v. Registrar-General, High Court of Karnataka, [2000)
3 sec 117' relied on.

V.P. Ahuja v. State of Punjab, (2000) 3 SCC 239, held inapplicable.

5. Au affidavit cannot be relied on to improve or supplement au H
44 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A order. Equally an order which is otherwise valid cannot be invalidated by
reason of any statement in any affidavit seeking to justify the order.
[53-C; 53-D]

Mohinder Singh Gill v. The Chi~{ Election Commissioner, AIR (1978)
SC 851, followed.
B
State of U.P. v. Kaushal Kishore Shukla, [1991] l SCC 691, relied on.
'
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7523 of 2001.

From the Judgment and Order dated I8.8.99 of the Allahabad High Court
C in WP. No. 396(SB) of I998. 1

S.B. Sanyal and Akhilesh Kumar Pandey for the Appellant.

R.N. Trivedi, Additional .Solicitor General, D.N. Arora, R.C. Verma, Ms.
!Gran Kapoor and Mukesh Verma for the Respondents.
D The Judgment of the Court was delivered by

RUMA PAL, J. Leave granted.

The appellant has challenged the decision of the High Court of Allahabad
dismissing his writ petition and upholding an order passed by the respondent
E No. 1 terminating the appellant's services.

The appellant was temporarily appointed on 10th April 1996 to the post
of Joint Director (Materials Management) of respondent No. 1. Clauses 3 and
4 of the letter of appointment provided :

F "3. This appointment is temporary and can be terminated on one
month's notice from either side or in lieu of this notice on payment of
a sum equivalent to one month's salary.

4. You will be on probation for a period of one year from the date of
appointment and the probation period may at the discretion of the
G competent authority be curtailed or extended by such period as d~emed
necessary."

The period of probation was extended on 23rd June 1997 for a period
of six months w.e.f. 30th April 1997. This was subsequently further extended
H for a period of three months w.e.f. 30th October I997. On 6th February 1998,
P.N. VERMA v. SANJAY GANDHI P.G.I. OF MEDICAL SCIENCES [RUMA PAL, l.l 45

the impugned order of termination was issued. The language used in the order A
reads:

" ... During the period of our work (sic) and conduct was found satis-
factory aad therefore, your probation was extended for a period months
(sic) w.e.f. the forenoon of 30.4.1997 vide office order PG/DIR/DC/
479/97 dated 23.6.1997. Again vide office order No. 811 PG/DIR/DC B
dated 27th October 1997 your probation period was further extended
for three months w.e.f. the forenoon of 30th October 1997. Even
during thus (sic) extended period of probation your work and conduct
has not been found to be satisfactory.

Therefore, under terms & conditions No. 3 and 4 of the above referred
c
appointment letter, dated services are hereby terminated with imme-

I diate effect and for the period a cheque No. VR/00/5856 dated 5 .2.1998
for Rs.11.070 (Rupees eleven thousand seventy only) in lieu of on (sic)
months notice is enclosed."

According to the appellant, the order was punitive and cast a stigma on
D
the appellant and could not be sustained without a full scale departmental
inquiry. It has been argued that the termination order was founded upon
allegations of misconduct against the appellant. A summary inquiry had been
held by the respondents in which a charge-sheet had been issued to the appel-
lant. The inquiry officer had submitted a report to the respondents, a copy of E
which was not made available to the appellant, but immediately after the
completion of the inquiry the impugned order of termination had been passed.
In support of the submission that the order was punitive, our attention was
drawn by the appellant to statements made in the counter affidavit filed by the
respondent before the High Court where the respondents have alleged that the F
appellant's integrity and honesty were doubtful.

The respondents have submitted that the inquiry was held merely to
assess the appellant's fitness for being continued on probation. The respond-
ents claimed to have received various complaints regarding the discharge of
the appellant's duties and in order to give the appellant an opportunity of G
placing the true facts before the respondent the summary inquiry was held so
that the suitability of the appellant for being confirmed in the post of Joint
Director (Material Management) could be fairly assessed. It was also submit-
ted that the order was not stigmatic nor punitive and that no statement in the
counter affidavit would change that position. H
46 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A The High Court has accepted the submissions of the respondents and
accordingly dismissed the writ petition.

Since the decision in Parshottam Lal Dhingra v. Union of India , AIR
(1958) SC 36, Courts have had to perform a balancing act between denying
....
a probationer any right to continue in service while at the same time granting
B him the right to challenge the termination of his service when the termination
is by way of punishment. The law has developed along apparently illogical
lines in determining when the termination of a temporary appointee or pro-
bationer's services amounts to punishment.

In 1974, Krishna Iyer, J. had said, "The need, in this branch of juris-
c prudence, is not so much to reach perfect justice but to lay down a plain test
which the administration and civil servant can understand without sttbtlety' and
apply without difficulty".'

Since "Dhingra is the Magna Carta of the India civil servant, although
D it has spawned diverse judicial trends, difficult to be disciplined into one
single, simple, practical formula applicable to termination of probation of
freshers and of the services of temporary employees'". we have thought it best
to refer to the facts of Dhingra's case to understand what exactly was meant
when the Court said:

E "It is true that the misconduct, negligence, inefficiency or other dis-
qualification may be the motive or the inducing factor which influ-
ences the Government to: take action under the terms of the contract
of empl_oyment or the specific service rule, nevertheless, if a right
exists, under the contract or the rules, to cerminate the service the
motive operating on the mind of the Government is, as Chagla,'C.J.
F
has said in Shrinivas Ganesh v. Union qf India (N) (supra), wholly
irrelevant. In short, if the termination of service is founded on the right •
flowing from contract or the service rules then primafacie, the termi-
nation is not a punishment and carries with it no evil consequences and
so Art. 311 is not attracted. But even if ihe Government has, by
G contract or under the rules, the right to terminate the employcrient
without going through the procedure prescribed for inflicting the
punishment of dismissal or removal or reduction in rank, the Govern-
!

I. Shamsher Singh v. Stare of Punjab, [1974) 2 SCC 831.

H 2. Shamsher Singh v. State of Punjab, (supra)
P.N. VERMA v. SANJAY GANDHI P.G.I. OF MEDICAL SCIENCES [RUMA PAL, 1.1 47

ment may, nevertheless, choose to punish the servant and if the termi- A
nation of service is sought to be founded on misconduct, negligence,
inefficiency or other disqualification, then it is a punishment and the
requirements of Art. 311 must be complied with."

In that case the employee had been reverted back from an officiating
post. The records showed that adverse remarks had been made against the B
employee in his confidential reports while he was officiating. These remarks
were placed before the General Manager who said that he was "disappointed"
to read them and that he should be reverted as a subordinate 'till he makes good
the shortcomings noticed ... ". The order of reversion was passed by the General
Manager soon after this. When the issue ultimately came before this Court, c
this Court upheld the order of reversion, saying:

"He had no right to continue in that post and under the general law the
implied term of such appointment was that it was terminable at any
time on reasonable notice by the Government and, therefore, his
D
reduction did not operate as a forfeiture of any right and could not be
described as reduction in rank by way of punishment. Nor did this
reduction under Note I to R.1702 amount to his dismissal or removal.
Further it is qt•ite clear from the orders passed by the General Manager
that it did not entail the .forfeiture o.f his chances of.future /J1V111otion
or qtfect his seniority in his subslantive post. In these circumstances, E
there is no escape from the conclusion that the petitioner was not
reduced in rank by way of punishment and, therefore, the provisions
of Art. 311(2) do not come into play at all."

(Emphasis supplied) F
Therefore, although the General Manager had issued the order of termi-
nation on the basis of the adverse reports, the order was not considered as a
punishment because it did not jeopardise the appellant's career prospects. It is
also clear from the paragraph quoted that pun"tshment means the deprivation
of a right which the employee otherwise has. Thus, if he is already in service G
and is reverted from an officiating post, although he does not have a right to
continue in the officiating post, he still has a right to be considered for pro-
motion. If he is on probation or on a temporary appointment, he has a right
to seek new employment if his appointment or probation is terminated. Any-
thing which jeopardises these rights would be by way of punishment. H
48 SUPREME COURT REPORTS (2001] SUPP. 5 S.C.R.
A Another Constitntion Bench of this Court in Benjamin (A.G.) and Union
of India. (1967) 1 L.L.J. 718 explained the decision of Parshotam Lal Dhingra
(supra). It followed the two tests mentioned in Dhingra's case vi.z.

(I) Whether the temporary Government servant had a right to the
post or the rank, or
B
(2) Whether he has been visited with evil consequences. ,

If 'punishment' were restricted to "evil consequences", the Court's task
in deciding the nature of an order of termination would have been easier.
Courts would only have to scan the termination order to see whether it ex-
c facie contains the stigma or refers to a document which stigmatises the officer,
in which case the termination order would have to be set aside on the ground
that it is punitive. In these cases the 'evil consequence' must be assessed in
relation to the blemish on the employee's reputation so as to render him unfit
for service elsewhere and not in relation to the post temporarily occupied by
D him. This perhaps is the underlying rationale of several of the decisions on
the issue.

In V.P. Ahuja v. State of Punjab and Others, [2000] 3 SCC 239 cited
by the appellant, the Court construed the language of the order and found that
it was ex-.facie stigmatic.
E
In Krishnadevaraya Education Trust & Anr. v. L.A. Balakrishna,
(2000) 1 Scale 196 the first letter of termination mentioned that the Committee
appointed to go into the question of general performance of each staff had
found that the employee, who had been appointed on probation, "was not upto
F the mark". This was followed by a second order of termination which did not
refer to the employee's performance at all. The Court held that it was pref-
erable that the order of termination did not mention that the employee's per-
formance was not satisfactory as then "the employer runs the risk of the
allegation being made that the order itself casts a stigma". Nevertheless, the
Court held that the reasons stated in the first order did not mean that the
G termination may be by way of punishment because "the probationer is on test
and if the services are found not to be satisfactory, the employer has, in terms
of the letter of appointment, the right to terminate the services."

Finally, this Court in H.F.' Sangati v. Registrar General, High Court of
H Kamataka and Others, [2001] 3 SCC 117 dealt with the question whether an
P.N. VERMA v. SANJAY GANDHI P.G.I. OF MEDICAL SCIENCES [RUMA PAL,!.] 49

order terminating the appointment of a probationer Munsif could be considered A
to be punitive. In that case during the period of probation, several adverse
remarks had been made in the confidential records of the probationer. The
Administrative Committee of the High Court considered these confidential
records and came to the conclusion that the appellant was not fit to be
confirmed in the post of a judicial officer. They recommended to the High
B
Court accordingly. The High Court accepted the recommendation at a Full
Court meeting and referred the matter to the State Government. The State
Government accepted the recommendation and discharged the probationer
from service. The order of termination mentioned that the employee was
"unsuitable to hold the post of Munsif'. The Court held that the order did not
cast any stigma on the employee and was not punitive. c
But the law does not rest there. In Shamsher Singh v. Stale of Punjab,
the Courts were asked to look behind the form of the order to find out whether
the termination was in substance punitive. So when a full scale inquiry is held
against a probationer or a temporary appointee and he is found guilty, an order
terminating his services for this reason has been seen as punitive and bad. It D
is this search for the 'substance' behind the 'form' of the order of punishment
which has led to some apparently conflicting decisions.

Thus some Courts have upheld an order of termination of a probation-
er's services on the ground that the enquiry held prior to the termination was E

- preliminary and yet other courts have struck down as illegal a similarly worded
termination order because an inquiry had been held. Courts continue to struggle
with semantically indistinguishable concepts like 'motive' and 'foundation';
and terminations founded on a probationer's misconduct have been held to be
illegal while terminations motivated by the probatiouer's misconduct have been
upheld. The decisions are legion and it is an impossible task to find a clear F
path through the jungle of precedents.

As observed by Alagiriswamy, J. in S.P. Vasudeva v. State of Haryana
and Others, [1976] I SCC 236, at p. 240:

"After all no government servant, a probationer or temporary, will be G
discharged or reverted, arbitrarily, without any rhyme or reason. If the
reason is to be fathomed in all cases of discharge or reversion, it will
be difficult to distinguish as to which action is discharge or reversion
simplicitor and which is by way of punishment. The whole position
in law is rather confusing." H
50 SUPREME COURT REPORTS [2001) SUPP. 5 S.C.R.
A One of the judicially evolved tests to determine whether in substance an
order of termination is punitive is to see whether prior to the termination there
was (a) a full scale formal enquiry (b) into allegations involving moral turpi-
tude or misconduct (c) which culminated in a finding of guilt. If all three
factors are present the termination has been held to be punitive irrespective of
the form of the termination oder. Conversely if any one of the three factors
B
is missing, the termination has been upheld.

The three factors are distinguishable in the following passage in Shamsher
Singh v. State of Punjab (supra) where it was said:

"Before a probationer is confirmed the authority concerned is under
c an obligation to consider whether the work of the probationer is
satisfactory or whether he is suitable for the post. In the absence of
any rules governing a probationer in this respect the authority may
come to the conclusion that on account of inadequacy for the job or
for any temperamental or other object not involving moral turpitude
D the probationer is unsuitable for the job and hence must be discharged.
No punishment is involved in this. The authority may in some cases
be of the view that the conduct of the probationer may result in
dismissal or removal on an inquiry. But in those cases the authority
may not hold an inquiry and may simply discharge the probationer
with a view to giving him a chance to make good in other walks of life
E
without a stigma at the time of termination of probation. {f. on the
other hand, the probationer is faced with an enquiry on charges of
1nisconduct or inefficiency or corruption, and {f his se11Jices are ter-
minated without following the provisions of Article 311(2) he can
claim protection."
F
(Emphasis supplied)

Thus in Benjamin's case (supra), complaints had been received against
a temporary employee. A notice had been sent to the employee to show cause
why disciplinary action should not be taken against him. The inquiry officer
G was appointed but before the inquiry was completed, the services of the
employee were terminated with one month's salary in lieu of notice. The
Constitution Bench upheld the order of termination and drew a distinction
between a preliminary inquiry and a departmental inquiry. It was held that a
preliminary inquiry held to satisfy the Government whether there was no
H reason to dispense with the services of the temporary employee should not be
P.N. VERMA v. SANJAY GANDHI P.G.l. OF MEDICAL SCIENCES [RUMA PAL, l.l 51

mistaken for a departmental inquiry held to decide whether punitive action A
should be taken.

In State of Uttar Pradesh and Anr. v. Kaushal Kishore Shulda, (1991)
1 SCC 691 the employee had been appointed on a temporary basis for a fixed
tenure. During the period of his service, adverse entries were _made in his
character roll. Complaints were also received by the auditors of the em~loyer. B
A summary inquiry was held. It was found that the auditor's coinplaint was
correct. The employee was transferred to another post. He did not join and
the employer terminated his services. This Court, while upholding the order
of termination, said that the mere fact that prior to the issue of the termination
an inquiry was held against the employee did not make the order of termination C
into one of punishment.

In Radhey Shyam Gupta v. UP. State Agro Industries Corporation Ltd.
and Anr., [1999) 2 SCC 21 a full scale inquiry was held into the allegations
of bribery against a temporary employee. The Court set aside the termination
because it found that the report submitted was not a preliminary inquiry report D
but it was in fact a final one which gave findings as to the guilt of the employee.

In Dip1i Prakash Banerjee V. Satyendra Nath Bose National Centre .for
Basic Sciences, Calcutta and Ors., [1999] 3 SCC 60 the termination order itself
referred to three other letters. One of the letters explicitly referred to miscon-
E
duct on the part of the employee and also referred to an Inquiry Committee's
report, which report in its tum had found that the employee was guilty of
misconduct. The termination was held to be stigmatic and set aside.

The case of Chandra Prakash Shahi v. State of U.P. and Others, [2000]
5 sec 152 related to a constable who was on probation after successfully F
completing his training. The constable completed his period of probation
without blemish. One year later, his services were terminated by issuance of
a notice in terms of Rule 3 of the U.P. Temporary Government Servants
(Termination of Service) Rules, 1975. An inquiry was held into the allegations
of misconduct. The Court found as a fact that the inquiry was not held to judge
the suitability of !Jie constable but with a view to punish him. The order was
G
held to be punitive and set aside.

Therefore, whenever a probationer challenges his termination the courts
first task will be to apply the test of stigma or the 'form' test. If the order
survives this examination the 'substance' of the termination will have to be H
52 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A found out.

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
B 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
C 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 sm:nething
over and above mere unsuitability for the job.

As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose Na-
tional Centre for Basic Sciences (supra) :
D
"Al the outset, we may state that in several cases and in particular in
State of Orissa v. Ram Narayan Das, AIR ( 1961) SC 177 it has been
held that use of the word "unsatisfactory work and conduct" in the
termination order will not amount to a stigma."

E Returning now to the facts of the case before us. The language used
in the order of termination is that the appellant's work and conduct has not been
found to be satisfactory." These words are almost exactly those which have
been quoted in Dipti Prakash Banerjee s case as clearly falling within the class
of non-stigmatic orders of termination. It is, therefore safe to conclude that the
F impugned Order is not ex facie stigmatic.

We are also not prepared to hold that the enquiry held prior to order of
termination turned this otherwise innocuous order into one of punishment. An
a
employer is entitled to satisfy itself as to the competence of probationer to
be confirmed in service and for this purpose satisfy itself fairly as to the truth
G of any allegation that may have been made about the employee. !\ charge
sheet merely details the allegations so that the employee may deal with them
effectively. The enquiry report in this case found nothing more against the
~ppellant than an inability to meet the requirements for the post. None of the
three factors catalogued above for holding that the termination was, in sub-
H stance punitive exist here.
P.N. VERMA v. SANJAY GANDHI P.G.l. OF MEDICAL SCIENCES [RUMA PAL, J.] 53

It was finally argued by the appellant that the intention of the respondents A
to punish him was clear from the following statement in the affidavit filed on
their behalf.

"It is important to mention herein that even honesty and integrity of
the petitioner was also under cloud as he took undue favours by
misusing his position from the suppliers and maligned the reputation B
of the institute."

That an affidavit cannot be relied on to improve or supplement an order
has been held by a Constitution Bench in Mohinder Singh Gill v. The Chief
Election Commissioner, New Delhi, AIR 197 8 SC 851.
c
"......... when a statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so mentioned and
cannot be supplemented by fresh reasons in the shape of affidavit or
otherwise ..."

Equally an order which is otherwise valid cannot be invalidated by
D
reason of any statement in any affidavit seeking to justify !he order. This is also
what was held in State of Uttar Pradesh v. Kaushal Kumar Shukla (supra):

"The allegations made against the respondent contained in the counter-
affidavit by way of a defence filed on behalf of the appellants also do E
not change the nature and character of the order of termination."

Having held against the appellant on all counts, we dismiss the appeal
but without any order as to costs.

v.s.s. Appeal dismissed.