Allahabad High Court
Allahabad Up Gramin Bank Through Its ... vs Sandeep Singh on 12 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1844
Bench: Ramesh Sinha, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 224 of 2020 Appellant :- Allahabad UP Gramin Bank through its Chairman and 2 others Respondent :- Sandeep Singh Counsel for Appellant :- Satish Kishore Kakkar,Sumit Kakkar Counsel for Respondent :- Ram Chandra Yadav Hon'ble Ramesh Sinha,J.
Hon'ble Mahesh Chandra Tripathi,J.
This appeal is barred by limitation from 80 days.
Having considered the facts stated in the application seeking condonation of delay, we are satisfied that the appellant had justifiable reason to state that for a bonafide reason, he was prevented from filing the appeal in time, accordingly, the delay in filing the appeal is condoned.
Order on memo of appeal.
1. Heard Sri Sumit Kakkar, learned counsel for the appellant and Sri Ram Chandra Yadav, learned counsel appearing for the sole respondent.
2. The present Special Appeal is being preferred under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 assailing the validity of the order passed by learned Single Judge dated 13.2.2020 passed in Writ A No.37124 of 2015 (Sandeep Singh vs. Allahabad U.P. Gramin Bank through its Chairman and 2 others) whereby learned Single Judge has set aside the order dated 10.4.2015 passed by the General Manager-appellant no.2 (respondent no.2) and directed the reinstatement of the petitioner with 50% of the back wages till the date of his reinstatement.
3. The facts, which are emerging from the record, are that in pursuance of an advertisement issued by respondent bank/appellant in the month of July 2013 for recruitment on the post of Junior Management Scale-1 Officers, the petitioner applied for and was selected. Consequently, he joined Allahabad U.P. Gramin Bank on 06.03.2014. Thereafter, the bank had conducted an internal inquiry, wherein it was found that someone else had appeared in the written examination on behalf of petitioner. This fact was suppressed and not disclosed during the interview. Consequently, by the order dated 10.04.2015 passed by the General Manager, Allahabad U.P. Gramin Bank, the appointment of the petitioner has been cancelled.
4. It also appears from the record that during the pendency of the writ petition Allahabad U.P. Gramin Bank was merged into newly incorporated Aryavrat Bank, wherein all the assets and liabilities of the erstwhile Allahabad U.P. Gramin Bank has been taken over by Aryavrat Bank.
5. Precise case has been set up by the petitioner-respondent before the writ Court that the dispensation of his service was an ex-parte order without affording any opportunity of hearing to the petitioner and his services were terminated without following due procedures prescribed in law. Reliance has also been placed on the decision of Apex Court in the case of Jarnail Singh vs. State of Punjab reported in 1986 (3) SCC 277 (paragraph-32); State Bank of India & ors vs. Palak Modi and another decided on 03.12.2012 Civil Appeal Nos.7841-7842 of 2012, wherein the Apex Court has considered the question of termination of services of temporary employee as well as probationer (paras 11, 12, 15, 30 and 33); Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others 2015 LawSuit (SC) 1056 and Union of India & another vs. Raghuwar Pal Singh decided on 13.3.2018 Civil Appeal No.1636 of 2012.
6. Learned Single Judge has also considered the response of the respondent/appellant wherein the bank had also relied upon the appointment letter issued to the petitioner on 22.2.2014, which provides in Clause 6.6 as under:-
"6.6 Please note that if subsequently it is found that any information or documents submitted by you is false, tampered, fabricated or any material information or fact has been suppressed or concealed, your service will be liable to be terminated. In addition, you will be liable to criminal prosecution."
7. The bank had also placed reliance on the judgement passed in the case of State Bank of India Vs. Rajesh Kumar & Another, 2015 (2) ADJ 525 (DB). Learned Single Judge has finally allowed the writ petition as entire action so taken by the bank could not sustain in the light of judgements passed by the Apex Court in the cases of Jarnail Singh (supra) and Palak Modi (supra) and directed for reinstatement alongwith 50% back wages.
8. Shri Sumit Kakkar, learned counsel for the appellant has vehemently contended that the banking business is based upon trust and confidence. The present matter relates to impersonation and fraud and as such, the termination of the petitioner on account of misconduct and impersonation was fully justified. The same was based on the report of the handwriting expert. The petitioner-respondent is an imposter and continuation of such person in banking service shall not only put the public financial institution in peril but may also tarnish the image of the bank and erode public trust and the integrity of the banking system. In the case of the petitioner-respondent there is lack of trust and confidence and as such, such person does not deserve to be retained in service. He has also placed reliance on the judgement passed by the Division Bench of this Court in State Bank of India Vs. Rajesh Kumar & Another (supra).
9. Per contra, Shri Ram Chandra Yadav, learned counsel appearing for the sole respondent has vehemently opposed the appeal and submits that the order of termination is stigmatic in nature. The services of temporary employee or a probationer can not be dispensed with in such manner. The same may be treated as punitive in nature. He submits that admittedly, in the present matter the bank has given go bye to the procedures envisaged in the rules and regulations. Learned Single Judge has rightly intervened in the matter. Therefore, the present appeal is liable to be dismissed with cost.
10. Heard rival submissions and perused the record.
11. This much is reflected from the record that in response of the advertisement in question the petitioner, who was fully qualified to be appointed on the post of Official Scale in Regional Rural Bank, filled up his application form through online and accordingly, an admit card was issued to him to appear in the written examination held on 21.9.2013 at M.I.T. Meerut, U.P. at N.H.58. After declaration of the result of the written examination he was called for interview, which was held in the month of February, 2014 at the Head Office of the respondent no.3/appellant. Finally, the petitioner was selected as OBC category candidate and was directed to report at Allahabad U.P. Gramin Bank, Regional Office Armanpur, Bedi Pullia, Chitrakoot vide letter dated 04.3.2014. He joined there on the post of Junior Management (Scale-I) on 06.3.2014. Thereafter, he was transferred from the regional office of the Gramin Bank, Bedi Pullia, Chiktrakoot to the Branch Office at Mahua Gaon vide order dated 03.9.2014. He was sent for training with effect from 15.12.2014 to 20.12.2014 vide letter dated 3.12.2014. Admittedly, he had undergone the training and the certificate was also issued by the respondent bank. In response of the transfer order dated 3.9.2014 he joined at the new transferred place. Again he was transferred on 27.3.2015 to Bhigna Regional Office of the Gramin Bank. Consequently, an order was passed on 10.4.2015 cancelling the appointment of the petitioner.
12. In this backdrop the case was set up before the writ court that before the written examination due verification was also made. Once he succeeded in the written examination then he faced the interview and also appeared before the interview board/selection committee where all his original documents and signatures were verified and after verification the appointment letter was issued. The order impugned was passed without application of mind and without conducting any enquiry. Therefore, the same was against the principle of natural justice and violative of Article 311 of Constitution of India. Relying upon the judgement in the case of State Bank of India and others Vs. Rajesh Kumar (supra), learned Single Judge was of the opinion that the order dated 10.4.2015 does not disclose the fact that there was any inquiry conducted in the matter. Neither the petitioner was given an opportunity to participate in the enquiry nor he was called upon before his services were put to an end.
13. Hon'ble Apex Court in Pavanendra Narayan Verma's case (supra) has considered the question whether termination of the service of probationer can be termed as punitive merely because it is preceded by an inquiry for the purpose of judging his suitability and answered the same in negative. The two-Judge Bench referred to a large number of precedents and observed:
"29. ... Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."
14. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Hon'ble Supreme Court has considered as to when the termination simpliciter can be termed as punitive and observed:
"A termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case, the grounds are recorded in 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 enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.
On the contrary, even if there is suspicion of misconduct, the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge."
15. In the case of State Bank of India & Ors. Vs. Palak Modi & Another (supra), the Apex Court had considered the question of termination of services of a temporary employee as well as a probationer. Relevant paragraph nos. 11, 12, 15, 30 and 33 are extracted here as under;
"11. The question whether termination of the service of a temporary employee or a probationer can be treated as punitive even though the order passed by the competent authority does not contain any stigma has been considered in a series of judgments. In Parshotam Lal Dhingra v. Union of India, 1958 SCR 828, which can be considered as an important milestone in the development of one facet of service jurisprudence in the country, the Constitution Bench was called upon to decide whether the order of reversion of an official holding a higher post in an officiating capacity could be treated as punitive. After elaborate consideration of the relevant provisions of the Constitution and judicial decisions on the subject, the Constitution Bench observed:
"...In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with...."
12. In State of Punjab and another v. Sukh Raj Bahadur (1968) 3 SCR 234, Mitter, J. considered several precedents and culled out the following propositions:
"1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
2. The circumstances preceding or attendant on the order of termination have to be examined in each case, the motive behind it being immaterial.
3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of Article 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article."
15. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Krishna Iyer, J. considered as to when the termination simpliciter can be termed as punitive and observed:
"A termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case, the grounds are recorded in 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 enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.
On the contrary, even if there is suspicion of misconduct, the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge."
30. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (supra), this Court again considered the question whether termination of the service of probationer can be termed as punitive merely because it is preceded by an inquiry for the purpose of judging his suitability and answered the same in negative. The two-Judge Bench referred to a large number of precedents and observed:
"29. ... Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."
33. The proposition laid down in none of the five judgments relied upon by the learned counsel for the appellants is of any assistance to their cause, which were decided on their own facts. We may also add that the abstract proposition laid down in paragraph 29 of the judgment in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (supra) is not only contrary to the Constitution Bench judgment in Samsher Singh v. State of Punjab (supra), but large number of other judgments - State of Bihar v. Shiva Bhikshuk Mishra (supra), Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (supra) and Anoop Jaiswal v. Government of India (supra) to which reference has been made by us and to which attention of the two-Judge Bench does not appear to have been drawn. Therefore, the said proposition must be read as confined to the facts of that case and cannot be relied upon for taking the view that a simple order of termination of service can never be declared as punitive even though it may be founded on serious allegation of misconduct or misdemeanor on the part of the employee."
16. In State Bank of India Vs. Rajesh Kumar & Another (supra) the Division Bench was of the opinion that the order of learned Single Judge, insofar as it directs reinstatement of respondent and holds that the termination should have been preceded by a full fledged disciplinary enquiry, cannot be faulted. In the said matter the termination of service was preceded by a report of a forensic expert. The forensic expert opined that the material produced before him establishes an act of impersonation. In a disciplinary enquiry, if this allegation is to be proved, the employee, who was a probationer, would have an opportunity of stating his defence and rebutting the case of the Bank. But more importantly, once it is evident from the order of termination that the cancellation of appointment was on account of a misconduct allegedly committed by the respondent, a disciplinary enquiry ought to have been held.
17. After having considered the submissions made by learned counsel for the parties we are also of the respectful agreement with the ratio of law laid down by the Division Bench in the case of State Bank of India and others Vs. Rajesh Kumar and another (supra).
18. In the aforesaid facts and circumstances we do not find any justifiable reason to interfere with the judgment of learned Single Judge.
19. Consequently, the present Special Appeal is dismissed.
20. However, it will be open to the bank to hold a full fledged enquiry in the matter and the payment of 50% of the back wages till the date of his reinstatement would be dependent on the final outcome of the enquiry.
(Mahesh Chandra Tripathi) (Ramesh Sinha) Order Date :- 12.6.2020 Gaurav/RKP