Allahabad High Court
Sandeep Singh vs Allahabad U.P. Gramin Bank Thru Its ... on 13 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 198
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 85 Case :- WRIT - A No. - 37124 of 2015 Petitioner :- Sandeep Singh Respondent :- Allahabad U.P. Gramin Bank Thru Its Chairman And 2 Others Counsel for Petitioner :- Namit Srivastava,Ashok Khare,Namit Km. Srivastava,Parul Srivastava,Ram Chandra Yadav Counsel for Respondent :- S.K. Kakkar,Ashok Trivedi,S K Kakkar,S.C. Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri R.C. Yadav, learned counsel for petitioner and Sri Sumit Kakkar, learned counsel for respondent nos. 1, 2 and 4.
2. This writ petition has been filed assailing the order dated 10.04.2015 passed by the respondent no. 2 whereby the appointment of petitioner in the respondent bank has been cancelled.
3. Facts, in brief, as disclosed in the writ petition are that in pursuance to an advertisement issued by respondent no. 3 in the month of July 2013 for recruitment of Junior Management (Scale-1) Officer, petitioner applied and was selected and joined Allahabad U.P. Gramin Bank on 06.03.2014. It appears that the bank had conducted internal inquiry wherein it was found that someone else appeared in the written examination on behalf of petitioner and this fact was suppressed and not disclosed during interview, as such, by the order impugned dated 10.04.2015 passed by respondent no. 2 - General Manager, Allahabad U.P. Gramin Bank, the appointment of petitioner stood cancelled. During pendency of present writ petition, Allahabad U.P. Gramin Bank was merged into newly incorporated Aryawrat Bank wherein all the assets and liabilities of the erstwhile Allahabad U.P. Gramin Bank has been taken over by respondent no. 4 bank.
4. Sri R.C. Yadav, learned counsel appearing for petitioner, submitted that the order impugned is an ex-parte order without affording opportunity of hearing to petitioner and his services were terminated without following due procedure prescribed in law. In support of the said contention, he has relied on the decision of Apex Court passed in the case of Jarnail Singh Vs. State of Punjab, 1986 (3) SCC 277, the relevant paragraph no. 32 is extracted here as under;
"32. The position is now well settled on a conspectuous of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad-hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct inefficiency or not. In the instant case we have already referred to as well as quoted the relevant portions of the averments made on behalf of the State respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners, which were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Article 311 (2) of the Constitution of India, while considering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the Government Circular made in October, 1980. mus the impugned orders terminating the services of the appellants on the ground that "the posts are no longer required" are made by way of punishment."
5. He has further relied upon the judgment of Apex Court passed in the case of State Bank of India & Ors. Vs. Palak Modi & Another, decided on 03.12.2012, Civil Appeal Nos. 7841-7842 of 2012, wherein 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."
6. Further, he has relied upon the decision of Apex Court passed in the case of 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 13.03.2018, Civil Appeal No. 1636 of 2012.
7. On the other hand, Sri Sumit Kakkar, learned counsel appearing for the respondent bank, has invited the attention of the Court to the appointment letter issued to petitioner on 22.02.2014, wherein clause 6.6 provides 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."
8. He has further relied on a decision of this Court in the case of State Bank of India Vs. Rajesh Kumar & Another, 2015 (2) ADJ 525 (DB), wherein this Court has also held that termination order passed ex-parte to be illegal.
9. Having heard learned counsel for the parties and after perusal of the material on record, I am of the view that the order impugned dated 10.04.2015 does not disclose as to the fact that there was any inquiry conducted and petitioner was given opportunity to participate in the same, nor the petitioner was called upon before his services were put to an end. Apex Court in the case of Jarnail Singh (Supra) and Palak Modi (Supra) had categorically held that in case of a public employment whether it is a case of temporary employee or probationer, employee should be provided due opportunity of hearing before his/her services are put to an end. In the case in hand the order impugned clearly provides that no such opportunity was given to petitioner before terminating his services.
10. On due consideration of the aforesaid, I am of the view that the order impugned dated 10.04.2015 passed by the General Manager - respondent no. 2 is unsustainable in the eyes of law and, as such, same is hereby quashed. Needless to say that petitioner shall be reinstated by the respondents. It is made clear that as petitioner was out of job since 10.04.2015 and has not worked for the said period, he shall be entitled for 50% of the back wages till the date of his reinstatement.
11. It is also made clear that passing of this order will not come in the way of respondent authorities to proceed in the matter, in accordance with law.
12. Writ petition stands allowed.
Order Date :- 13.2.2020 Shekhar