Supreme Court of India
RATNESH KUMAR CHOUDHARYversusINDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES, PATNA, BIHARAND OTHERS
- Citation
- 2015 INSC 780
- Decided
- 15 October 2015
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
When termination of a probationer is based on findings of misconduct from an ex‑parte enquiry, the order is punitive, not a simple termination, and violates natural justice, warranting reinstatement.
Summary
The appellant, a probationary chest therapist at IGIMS, was terminated after a vigilance department complaint alleged illegal appointment and misconduct. The termination was effected without a regular departmental enquiry and the appellant was not provided the enquiry report, violating natural justice. The Supreme Court examined whether such termination was merely a termination simpliciter (based on unsuitability) or punitive (based on misconduct findings). Relying on precedents, the Court held that an ex‑parte enquiry with stigmatic findings constitutes the foundation for dismissal, making it punitive and unlawful. Consequently, the Court set aside the High Court’s decision, reinstated the appellant, and ordered payment of 50% of his salary. The appeal was allowed.
Issues considered
- Whether the termination of a probationer amounts to termination simpliciter or punitive dismissal.
- Whether the absence of a regular departmental enquiry and the ex‑parte nature of the vigilance enquiry violate principles of natural justice.
- Whether the termination was founded on misconduct (foundation) or merely on unsuitability (motive).
- Whether the appellant is entitled to reinstatement and back salary.
Subjects
service lawtermination of probationnatural justicepunitive dismissalex parte enquiryreinstatementqualification requirementemployment law
Judgment
[2015] 10 S.C.R. 717
RATNESH KUMAR CHOUDHARY A
v.
INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES,
PATNA, BIHARAND OTHERS
(CivilAppeal No.8662 of2015) B
OCTOBER 15, 2015
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.)
Service Law- Termination of service - During probation
- Whether the termination was simpliciter or punitive - C
Determination of - During probation of the delinquent,
complaint challenging his appointment on the ground that
he did not possess requisite qualification - Ex pa rte vigilance
enquiry - Enquiry report alleging his misbehaviour,
0
disobedience, etc. - Held: If misconduct/ inisdemeanour
constitutes the basis for the final decision taken by competent
authority, to dispense with services 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 E
punished the employee for an act of misconduct - In the
present case, enquiry was held behind the back of the
delinquent and there were stigmatic remarks- There is clear
violation of principles of natural justice - Holding of a regular
enquiry was imperative - Thus, it was not a termination F
simplicitor but was punitive - Direction to reinstate the
delinquent with 50% salary.
Allowing the appeal, the Court
HELD: 1. In a given case, the competent authority G
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 H
717
718 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 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
B simpliciter, the employer has punished the employee for
an act of misconduct. [Para 27] (740-D-F]
2. If an ex parte enquiry is held behind the back of
the delinquent employee and there are stigmatic remarks
C 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
D 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. (Para 28] (741-B-D]
E
3. In the present case, 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
F 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
G 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
H of imagination it can be accepted that it is termination
RATNESHKUMAR CHOUDHARYv. I. G. I. M. S., PATNA, 719
BIHAR
simpliciter. [Para 28] [741-F-H; 742-A] A
4. 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. [Para 29] (742-D] B
Samsher Singh v. State of Punjab 1975 (1) SCR
814: (1974) 2 SCC 831; Radhey Shyam Gupta
vs. U.P State Agro Industries Corporation Ltd. and
Another1998 (3) Suppl. SCR 558: (1999) 2 SCC c
21; Parshotam Lal Dhingra vs. Un(on of India AIR
1958 SC 36: 1958 SCR 828; State of Bihar vs.
Gopi Kishore Prasad AIR 1960 SC 689; State of
Orissa vs. Ram Narayan Das AIR 1961 SC 177 :
1961 SCR 606 ; Gujarat Steel Tubes Ltd. vs. D
Gujarat Steel Tubes Mazdoor Sabha 1980 (2)
SCR 146: (1980) 2 SCC 593; Anoop Jaiswal vs.
Govt. of India 1984 (2) SCR 453: (1984) 2 SCC
369; Nepal Singh vs. State of U.P 1980 (3) SCR
613: (1980) 3 SCC 288; Commissioner, Food & E
Civil Supplies vs. Prakash Chandra Saxena
(1994) 5 SCC 177; Chandra Prakash Shahi vs.
State of U.P and Others 2000 (3) SCR 529 : (2000)
5 SCC 152; Union of India and Others vs.
Mahaveer C. Singh vi 2010 (9) SCR 246 : (2010) F
8 SCC 220; Dipti Prakash Banerjee vs. Satyendra
Nath Bose National Centre for Basic Sciences
1999 (1) scR 532 : (1999) 3 sec 60;
Pavanendra Narayan Verma vs. Sanjay Gandhi
PG. I. of Medical Sciences and Another 2001 (5) G
Suppl. SCR 41 : (2002) 1 SCC 520; State Bank
of India and Others vs. Palak Modi and Another
2012 (12) SCR 628: (2013) 3 sec 607 - relied
on.
H
720 SUPREME COURT REPORTS [2015] 10S.C.R.
A State ofU.P. vs. Kaushal Kishore Shukla 1991 (1)
SCR 29 : (1991) 1 SCC 691; Triveni Shankar
Saxena vs. State of U.P. 1991 (3) Suppl. SCR 534
: (1992) Supp (1) SCC 524; State of U.P. vs. Prem
Lata Misra (1994) 4 SCC 189 - referred to.
B
Case Law Reference
1975 (1) SCR 814 relied on. Para 16
1998 (3) Suppl. SCR 558 relied on. Para 17
c
1991 (1) SCR 29· referred to. Para 17
1991 (3) Suppl. SCR 534 referred to. Para 17
(1994) 4 sec 189 referred to. Para 17
D
1958 SCR 828 relied on. Para 18
AIR 1960 SC 689 relied on. Para 18
1961SCR606 relied on. Para 18
E
1980 (2) SCR 146 relied on. Para 18
1984 (2) SCR 453 relied on. Para 20
F 1980 (3) SCR 613 relied on. Para 20
(1994) 5 sec 111 relied on. Para 20
2000 (3) SCR 529 relied on. Para 22
G 2010 (9) SCR 246 ·relied on. Para 23
1999 (1) SCR 532 relied on. Para 23
2001 (5) Suppl. SCR 41 relied on. Para 24
H 2012 (12) SCR 628 relied on. Para 25
RATNESH KUMAR CHOUDHARYv. I. G. I. M. S., PATNA, 721
BIHAR
CIVIL APPELLATE JURISDICTION: Civil Appeal No. A
8662 of 2015.
From the Judgment and Order dated 01.12.2011 of the
High Court of Judicature at Patna in Letters Patent Appeal
No. 38 of 2010 in Civil Writ Jurisdiction Case No. 8069 of B
2006.
Kumar Parimal, Aniruddha P. Mayee for the Appellant.
L. R. Singh, C. P. Rajwar, Chandra Prakash, Vivek Singh
for Respondents. C
The Judgment of the Court was delivered by
DIPAK MISRA, J. Leave granted.
D
2. The appellant, in pursuance of the advertisement
published in the daily newspaper "Hindustan" dated
13.08.1998, applied for the post of Physiotherapist under
Class-II Post in the Indira Gandhi Institute of Medical Sciences
(IGIMS). The selection committee of the institute selected him E
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 F
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 G
Ph~rsiotherapist/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 H
722 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 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
B also stipulated certain aspects which pertained to giving of
notice and in lieu of notice, payment or deposit of certain
amount as the case may be. The appellant joined the post on
20.08.1999.
C 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
D 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
E 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
F requested the Director IGIMS to initiate a proceeding for
termination of the services of the appellant by giving a show
cause notice. On the basis of the said communication the
appellant was asked by the Director of IGIMS to show cause
within three days as to why on account of illegal appointment
G 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
H documents were not supplied to him which the appellant
RATNESH KUMAR CHOUDHARYv. I. G. I. M. S., PATNA, 723
BIHAR [DIPAK MISRA, J.]
considered vital. However, he submitted the reply on A
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 B
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 C
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 D
grounds his service had been terminated and further he was
not furnished with the necessary documents which formed the
part of enquiry conducted by the Cabinet, Vigilance
Department. The learned Single Judge opined that there had
been violation of the principles of natural justice in view of the E
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 F
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 G
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
H
724 SUPREME COURT REPORTS [2015) 10S.C.R.
A 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
B 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
c could be sufficient for appointment to the post of Chest
Therapist.
6. In our considered view, the authorities of the Vigilance
Department as well as the Institute have subsequently
D come to a correct finding that such a course of action
was not open forthe 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
E 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
IJenefited only the writ petitioner and none else. In such
F
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.
G *****
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
H
RATNESH KUMAR CHOUDHARYv. I. G. I. M. S., PATNA, 725
BIHAR, [DIPAK MISRA, J.]
against the beneficiary of such appointment." A
Being of this view the Division Bench allowed the appeal
and unsettled the decision rendered by the learned Single
Judge.
B
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 C
passed by the authority is stigmatic or not; and whether there
had been violation of principles of natural justice, for no regular
enquiry was conducted. Learned counsel for the appellant has
drawn our attention to the Vigilance Report dated 03.11.2004 D
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 beer. complied with. The
relevant part of the vigilance report dated 03.11.2004 is E
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 F
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 G
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 H
726 SUPREME COURT REPORTS [2015) 10 S.C.R.
A 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
B terminated from this Establishment. "As well as the order
of punishment of withholding his two annual increments
with cumulative effect was passed by l.G.l.M.S. for his
indiscipline in the service and warning was issued, if in
future any complaint is received then his services may
c 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 71 st Meeting dated 02.12.2003 of Administrative
D
Body of l.G.l.M.S. Patna. For constituting Special
Committee, the proposal was sent to then President,
Health Department. 71 st Meeting of Administrative Body
was organized under the Chairmanship of Hon'bie Dr.
E 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
l.G.l.M.S. Patna. In this connection, no information as to
what action was taken on those papers is not available
in l.G.l.M.S. Patna. Director of aforesaid establishment
Dr. Deleep Kumar Yadav stated in his statement that the
charged officer Shri Ratnesh Kumar Chowdhury was
G 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
H with illegal appointment, it was not possible to take any
RATNESH KUMAR ChOUDHARYv. I. G. I. M. S., PATNA, 727
BIHAR, [DIPAK MISRA, J.].
action at this stage as his appointment is within the A
jurisdiction of permanent Selection Committee. He also
made it clear that the conduct of charged offic.er 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, l.G.l.M.S. Patna B
left from there in 2003."
10. After so narrating, the report proceeded to state thus:-
"In this way, during inquiry it becom~s clear that necessary c
qualifications and standards were prescribed for the post
of Physiotherapist and forthe 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 D
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 E
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 F
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 G
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 H
728 SUPREME COURT REPORTS [2015) 10 S.C.R.
A notice was issued. The said show cause notice issued to the
appellant on 181h March, 2005, reads as follows:-
"Your ·appointment was made on the post of Chest
Therapist in this establishment. Shri Tarkeshwar Singh,
s Member Bihar Legislative Assembly made some
allegations in his complaint letter. Those allegations were
examined by Cabinet Vigilance Department. According
to the report filed under Letter No. 724/G.O. dated
24.12.2004 of Cabinet Vigilance Department,
C Investigation Bureau, Bihar, Patna, yourappointmentwas
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
D 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 notterminated from the Institute."
E 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
F 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
G 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
H to work on probation till the ~ate of his dismissal and he
RATNESH KUMAR CHOUDHARYv. I. G I. M. S., PATNA, 729
BIHAR, [DIPAK MISRA, J.]
was never made permanent." A
13. In the counter affidavit a reference has been made to
the report submitted against the appellant by the Cabinet
(Vigilance) Department, the relevant part of which we have
quoted hereinbefore. B
14. It is submitted by the learned counsel for the appellant
that on a perusal cf 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 c
comments on his behaviour, knowledge of working, his conduct,
his mis-behaviour, imposition of earlier punishment and
disobedi~nce 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 o
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 E
appears to be an innocuous order, the court in the in the
obtaining factual score should lift the veil or peep through the
veil to perceive its true character.
15. The aforesaid submissions have been controverted F
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 Sams her Singh v. State of Punjab1, a seven-Judge Bench G
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:-
1
(1974) 2 sec s31 H
730 SUPREME COURT REPORTS (2015] 10 S.C.R.
A "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
8 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
c of Article 311 (2) of the Constitution."
And again:-
"The form of the order is not decisive as to whether the
D order is by way of punishment. Even an innocuously
worded order terminating the service may in the facts
and circumstances· of the case establish that an enquiry
into allegations of serious and grave character of
misconduct involving stigma has been made in infraction
E 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 lshwar
Chand Agarwal. The order of termination is illegal and
must be set aside."
·F
17. In Radhey Shyam Gupta vs. U.P. State Agro
Industries Corporation Ltd. and Another, the services of
the appellant were terminated as he was a probationer. He
challenged the order of termination before the Administrative
G 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
H 2 (1999)2SCC21
RATNESH KUMAR CHOUDHARYv. I. G. I. M. S., PATNA, 731
BIHAR, [DIPAK MISRA, J.]
order of termination. The tribunal allowed the application of A
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 Shuk/a 3 ,
Triveni Shankar Saxena vs. State of U.P. 4 and State of
U.P. vs. Prem Lata Misra 5 , came to hold that the order of B
termination had not been founded on any misconduct, but on
the other hand, the competent authority had found that the
employee was not fit to be continued in service on account of
unsatisfactory work and conduct. The High Court also
observed that even if some ex-parte preliminary enquiry had C
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 D
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 E
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 F
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 G
other line of decisions, this Court has ruled that if the facts
'(1991) 1 sec 691
• (1992) Supp (1) sec 524
• (1994) 4 sec 1a9 H
732 SUPREME COURT REPORTS (2015) 10 S.C.R.
A 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
B rendered in Samsher Singh (supra), Parshotam Lat
Dhingra vs. Union of lndia 6, State of Bihar vs. Gopi
Kishore Prasad' 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
C 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:-
0
"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
E processes but must be grounded on the substantive
reason for the order, whether disclosed or undisclosed.
The Court will find out from other proceedings or
documents connected with the formal order of termination
what the true ground for the termination is. If, thus
F
scrutinised, the order has a punitive flavour in cause or
consequence, it is dismissal. If it falls short ofthis test, it
cannot be called a punishment. To put it slightly differently,
a termination effected because the master is satisfied
G of the misconduct and of the consequent desirability of
6 AIR 1958 SC 36
7 AIR 1960 SC 689
'AIR 1961SC177
H • (1980) 2 sec 593
RATNESH KUMAR CHOUDHARYv. I. G. I. M. S., PATNA, 733
BIHAR, [DIPAK MISRA, J.]
terminating the service of the delinquent servant, is a 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 B
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 C
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 D
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, E
misconduct is notthen the moving factor in the discharge.
We need not chase other hypothetical situations here."
19. On that basis, the Court proceeded to opine thus:-
F
"ln 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 G
allegations. But if he conducts an enquiry only for the
purpose of proving the misconduct and the employee is
not heard, it is a case where the enquiry is the foundation
and the termination will be bad."
H
734 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 20. After stating the said principle, the Court traced the
history ar.d referred to Anoop Jaiswa/ vs. Govt. of lndia 10 ,
Nepal Singh vs. State of U.P. 11 and Commissioner, Food
& Civil Supplies vs. Prakash Chandra Saxena12 and opined
as follows:-
B
"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
c 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)
D 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
E material to initiate a regular departmen~al enquiry. It has
been so decided in Champak/a/ 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
F
where a regular departmental enquiry is started, a charge-
memo issued, reply obtained, and an enquiry officer is
appointed - if at that point of time, the enquiry is
dropped and a simple notice of termination is passed,
G 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 he.Id in Sukh Raj Bahadurcase
10
(1984) 2 sec 369
11
(1980) 3 sec 288 .
H 12
(1994) s sec 177
RATNESH KUMAR CHOUDHARYv. I. G. I. M. S., PATNA, 735
BIHAR, [DI PAK MISRA, J.]
and in Benja.min case. In the latter case, the departmental A
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 B
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 C
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
0
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 E
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 F
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 G
are obviously not cases where the employer feels that
there is a mere cloud against the employee's conduct
but are cases where the employer has virtually accepted
the definitive and clear findings of the enquiry officer, which
are all arrived at behind the back of the employee - H
736 SUPREME COURT REPORTS [2015) 10 S.C.R.
A 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
B aside the judgment of the High Court and restored that of the
tribunal by holding that the order was punitive in nature.
22. In Chandra Prakash Shahi vs. State of U.P. and
Others 13 after addressing the history pertaining to "motive"
C 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
D
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
E
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
F misconduct and an inquiry is held to find out the truth
of that misconduct and an order terminating the
service is passed on the basis of that inquiry, the order
would be punitive in nature as the inquiry was held not
for assessing the general suitability of the employee
G 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".
H ,, (2000) 5 sec 152
RATNESH KUMAR CHOUDHARYv. I.GI. M. S., PATNA, 737
BIHAR, [DIPAK MISRA, J.]
29. "Motive" is the moving power which impels action for A
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 B
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 C
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."
D
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 E
Sciences 15 and came to hold thus:-
" It was held by this Court in Dipti Prakash Banerjee
case that whether an order of termination of a
probationer can be said to be punitive or not depends F
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 G
termination is to be treated as founded on the
allegations and would be bad, but ifthe enquiry was
" (201 O) a sec 220
1
• (1999) 3 sec eo H
738 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 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
B not be bad."
24. At this juncture, we must refer to the decision rendered
in Pavanendra Narayan Verma vs. Sanjay Gandhi P.GI.
of Medical Sciences and Another16 , wherein a two-Judge
c 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
D
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 l_anguage used in the termination order
E 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
F 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." ·
G
25. The said decision has been discussed at length in
State Bank of India and Others vs. Pafak Modi and
Another17 and, eventually, commenting on the same, the Court
1
• (2002) 1 sec s20
H 11
(2013) 3 sec 607
RATNESH KUMAR CHOUDHARYv. I. G. I. M. S., PATNA, 739
BIHAR, [DIPAK MISRA, J.]
ruled thus:- A
'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
B
that the abstract proposition laid down in para 29 in
Pavanendra Narayan Verma v. Sanjay Gandhi PG/
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 c
judgments-State of Biharv. Shiva Bhikshuk Mishra,
Gujarat Steel Tubes Ltd. v. Mazdoor Sabha and
Anoop Jaiswa/ 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. D
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 E
allegation of misconduct or misdemeanour on the part
of the employee."
We respectfully agree with the view expressed herein-
above. F
26. In Pa/ak 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 G
service can be terminated at any time during or at the
end of the period of probation on account of general
unsuitability for the post held by him. If the competent
authority holds an inquiry for judging the suitability of
the probationer or for his further continuance in service H
740 SUPREME COURT REPORTS [2015) 10 S.C.R.
A 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
B 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 o!the case, the Court proceeded to state
c 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
D any defined misconduct, misbehaviour or misdemeanour. In a
given case, the competent authority may, wnile 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
E his future prospects but, if the misconducUmisdemeanour
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 c;:an lift
the veil and declare that in the garb of termination simpliciter,
F 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
G 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
H (Vigilance) Department eloquently states about the conduct
RATNESH KUMAR t,;,OL'DHARYv. I.GI. M. S., PATNA, 741
BIHAR, [DIPAK MISRA, J.]
and character of the appellant. The stand taken in the counter A
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 B
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 C
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. D
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 E
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 aliegation subsequent to the
imposition of punishment relating to his conduct, misbehaviour
and disobedience. The Vigilance Department, in fact, had F
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 G
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 H
742 SUPREME COURT REPORTS [2015] 10S.C.R.
A 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
B 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.
c
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
D appellant be reinstated in service within a period of six weeks
and he shall be entitled to 50% towards his salary which shall
be paid to him within the said period. In the facts and
circumstances, there shall be no order as to costs.
E Kalpana K. Tripathy Appeal allowed.
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