Karnataka High Court
Smt. Parimala vs Banking Service Recruitment Board, ... on 11 April, 2001
Equivalent citations: ILR2001KAR2991, 2002(4)KARLJ257, 2001 AIR - KANT. H. C. R. 1861, (2002) 4 KANT LJ 257, (2001) 3 LABLJ 1206, 2001 LABLR 868, (2001) 4 LAB LN 589
Author: P. Vishwanatha Shetty
Bench: P. Vishwanatha Shetty
ORDER P. Vishwanatha Shetty, J.
1. The petitioner, in this petition, is a former employee in the services of the State Bank of Hyderabad (hereinafter referred to as "the Bank"). In this petition, she has called in question the correctness of the order dated 4th December, 1999 passed by the Assistant General Manager of the Bank, third respondent terminating her services; and sought for a direction to respondents 2 to 4 to regularise her services in the Bank.
2. The facts leading to this petition lie in a narrow compass and they may be briefly stated as hereunder:
(a) The petitioner is an M.Com. with first class marks. She has also passed Senior Grade Typewriting (English) Examination. While she was in service as Manager at Raichur Mahila Pattana Sahakari Bank, pursuant to the advertisement issued by the Banking Services Recruitment Board (hereinafter referred to as "the Recruitment Board"), inviting applications from deserving applicants to apply for the posts of Clerks, Typists, Clerk-cum-Typists for appointment in 27 Public Sector Banks in the State of Karnataka during the year 1998-99, the petitioner applied for the post of Typist (English). The Recruitment Board on consideration of her merit and suitability, selected her as a Typist (English) and allotted to the Bank.
(b) Pursuant to her selection and allotment to the Bank, the Deputy General Manager of the Bank, 4th respondent, by means of his communication dated 5th June, 1999, a copy of which has been produced as Annexure-C to the writ petition, informed the third respondent that the petitioner was directed to report in the Branch Office of the Bank on or before 7th June, 1999 along with the communication Annexure-C. The communication issued to the petitioner informing her that she was provisionally selected and recommended for appointment in the Bank under 'OBC' category to the post of Typist (English) has been produced as Annexure-B to the writ petition. Thereafter, the Manager of the Bank issued an order of appointment dated 7th June, 1999 to the petitioner informing the petitioner that she was appointed as "Cashier/Clerk/Typist" on probation for a period of six months with effect from 7th June, 1999 on a total emoluments of Rs. 3,866.79. A copy of the said letter of appointment dated 7th June, 1999 has been produced as Annexure-R7 by the Bank along with the statement of objections.
(c) The third respondent, by means of a show-cause notice dated 4th October, 1998, called upon the petitioner to submit her explanation within ten days from the date of receipt of the said notice in respect of three charges levelled against her. Pursuant to the show-cause notice received by the petitioner, she submitted her explanation dated 26th October, 1999. Copies of the show-cause notice and the explanation have been produced as Annexures-R2 and R3 respectively to the statement of objections filed by the Bank. The third respondent not being satisfied with the explanation submitted by the petitioner to the show-cause notice issued to her, by means of his communication dated 16th November, 1999, informed her that it was decided to initiate disciplinary action against her in respect of the charges set out in detail in the charge memo issued and enclosed along with the said communication; and one Sri Venkatesh Mathad, Officer, MMGS-III, Lead District, LBO, Raichur, was appointed as Enquiry Officer to conduct an enquiry into the allegations made and submit his report; and Sri G. Hanumanthappa, Officer, MMGS-II, Regional Office, Raichur, was appointed as Presenting Officer to present the case on behalf of the Bank before the Enquiry Officer and to lead necessary evidence in furtherance of charges. Subsequently, the Enquiry Officer, by means of his communication dated 29th November, 1999, fixed the date of enquiry on 8th December, 1999.
(d) When the matter stood thus, the Branch Manager of the Bank at Manvi sent communications dated 2nd November, 1999 and 17th November, 1999 informing the petitioner that her performance in the Bank was not satisfactory and, therefore, she was required to improve her efficiency in the discharge of her duties. Thereafter, by means of communication Annexure-E, which is impugned in this petition, the services of the petitioner came to be terminated by the third respondent on the ground that her performance at the Branch of the Bank during her probationary period, was not satisfactory and she had failed to attain the standard of efficiency expected of her as a Clerk in the service of the Bank despite pointing out the deficiencies in her service. On the same day, by means of another communication, a copy of which has been produced as Annexure-F to the writ petition, the third respondent dropped the disciplinary proceedings initiated against the petitioner on the ground that she had been removed from service. As noticed by me earlier, the correctness of the order of the third respondent terminating the services of the petitioner is called in question in this petition by the petitioner.
3. Sri V.T. Rayaraddi, learned Counsel appearing for the petitioner, challenging the correctness of the impugned order, made three submissions. Firstly, he submitted that though the order Annexure-E purports to be an order of termination of the services of the petitioner from the employment of the Bank on the ground that during the probationary period, she has failed to discharge her duties satisfactorily and failed to attain the standard of efficiency expected of her as a Clerk in the Bank, the said order of termination, in law, amounts to removal of the petitioner from service without an enquiry and, therefore, the said order is vitiated. The learned Counsel submitted that the third respondent having initiated disciplinary proceedings against the petitioner on the allegation of certain misconduct pointed out in the charge-sheet issued to the petitioner, having found that there was no substance in the allegations made against the petitioner, has adopted a short-cut method to get rid of the petitioner from the services of the Bank on the ground that her services were not satisfactory during the period of probation. According to the learned Counsel, the sequence of events which ultimately culminated in the passing of the impugned order, and the stand taken by the Bank in the statement of objections, would make it clear that the impugned order is not an order of discharge of the service of a probationer simpliciter, but was an order made by way of penalty for the alleged misconduct pointed out against the petitioner without conducting an enquiry. He pointed out that solely with a view to make out a case that the services of the petitioner was not satisfactory, during the pendency of the enquiry, communications dated 7th November, 1999 and 16th November, 1999 were issued to the petitioner without any justification pointing out certain deficiencies in the performance of duties by the petitioner. Sri Raddi further submitted that as a result of the feud between the rival groups in the Raichur Mahila Co-operative Bank Limited, the petitioner also came to be implicated in a complaint filed for the deficiencies in the discharge of loan to SC/ST people; and in that connection, unjustifiably she was detained and sent to judicial custody during the period from 9th August, 1999 to 17th August, 1999. He pointed out that materials on record also show that during the relevant time, the petitioner had to undergo terrible trauma and mental agony; that she was carrying during that period, and as a result of her detention in judicial custody and trauma she had undergone, she suffered miscarriage and therefore a discretion should have been exercised extending the period of probation of the petitioner. He pointed out that there are instances where the Bank has extended the period of probation and the petitioner is picked up for hostile discrimination by not extending the period of probation. He also submitted that there is no truth in the allegations made in the FIR. He further pointed out that when the petitioner has passed M.Com. in first class and B.Com. in second class and Pre-University in first class and had the experience of working in a Co-operative Bank for a period over five years, the observation made in the impugned order that she was not able to discharge her duties to the standard excepted of a probationer in service, is totally baseless; and it has been made totally on account of extraneous and irrelevant considerations and it is mala fide both on facts and in law. Secondly, he submitted that the impugned order is liable to be quashed on the ground that the said order attaches stigma to the career of the petitioner. It is his submission that the observation made in the order that she had failed to attain the standard of efficiency expected of her as a Clerk in the services of the Bank, despite pointing out her deficiencies both orally and in writing, amounts to attaching stigma to her reputation. Thirdly, he submitted that since the petitioner was appointed as a Typist (English) by the Recruitment Board and was allotted to the Bank as a Typist (English), it was not permissible to terminate tile services of the petitioner on the ground that the discharge of duties of the petitioner was not upto the standard of efficiency expected of her as a Clerk in the services of the Bank merely because the appointment order issued by the second respondent shows that she was appointed as a Clerk/Cashier/Typist. It is the submission of Sri Raddi that the assessment of the performance of the petitioner should have been made in her capacity as a Typist and not as a Clerk as she was selected as a Typist by the Recruitment Board. Finally, he submitted that since the memorandum of appointment as per Annexure-E, dated 7th June, 1999 was issued pursuant to order Annexure-C, it was not permissible for the third respondent, who is lower in rank than that of the 4th respondent, to terminate the services of the petitioner on the ground that the discharge of duties by the petitioner during the period of probation was not satisfactory. According to the learned Counsel, it was either the Chairman and the Managing Director of the Bank or at least the Deputy General Manager, 4th respondent who could have assessed the performance of the petitioner and if it was not satisfactory, to proceed to pass the order of termination of the petitioner; and since admittedly the same has not been done, the order impugned is liable to be quashed. Sri Raddi, in support of his submissions, relied upon the decisions of the Supreme Court in the cases of Dipti Prakash Banerjee v. Satvendra Nath Base National Centre for Basic Sciences, Calcutta and Ors., ; V.P. Ahuja v. State of Punjab and Ors., ; Samsher Singh v. State of Punjab and Anr., and Anoop Jaiswal v. Government of India and Anr., and the decision of this Court in the case of Syed Hassan Ali v. State of Mysore and Ors , 1965(1) Mys. L.J. 422 : AIR 1965 Mys. 283.
4. However, Sri Nagabhushan, learned Counsel appearing for the Bank, while strongly supporting the impugned order, pointed out that the impugned order does not amount to removal of service of the petitioner without an enquiry and it also does not cast any stigma either on the conduct or efficiency of the petitioner. According to the learned Counsel, the impugned order is an order of termination of services of a probationer on the ground that her services were not satisfactory. He pointed out that merely because the disciplinary proceedings came to be initiated against the petitioner, it will not take away the power of the Bank not to pursue the disciplinary proceedings and terminate the services of the petitioner if the discharge of duties by her as a probationer is not satisfactory. He also submitted that since the impugned order has been made in a bona fide exercise of power conferred on the Bank to discharge the services of the probationer as the discharge of duties by the petitioner was not satisfactory, the impugned order is not liable to be interfered with by this Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India. He further submitted that there is absolutely no basis for the allegations of mala fides made. He further pointed out that the petitioner having accepted her appointment as a Cashier/Clerk/Typist and served in that capacity, cannot now be permitted to contend that her appointment was only as a Typist and as such, the assessment of her performance should have been made only as a Typist and not as a Clerk. Sri Nagabhushan, in support of his submissions, relied upon the decisions of the Supreme Court in the cases of Unit Trust of India and Ors. v. T. Bijaya Kumar and Anr., 1993-I-LLJ-240 (SC); Satya Narayan Athya v. High Court of Madhya Pradesh, ; K.V. Krishnamani v. Lalit Kala Academy, ; Oil and Natural Gas Commission and Ors. v. Dr. Md. S. Iskander Ali, ; Nepal Singh v. State of Uttar Pradesh and Ors., ; State of Punjab and Anr. v. Sukh Raj Bahadur and State of Orissa, and Anr. v. Ram Narayan Das, .
5. In the backdrop of the rival submissions made by learned Counsels appearing for the parties, the questions that would arise for consideration in this petition are:
(1) Whether the impugned order Annexure-E is liable to be quashed on the ground that the said order is in the nature of removal of the petitioner from the services of the Bank without an enquiry and it is in the nature of penalty; and the said order casts a stigma on the career of the petitioner?
(2) Whether the assessment of the efficiency of the petitioner should have been made only as a Typist (English) and the termination of the services of the petitioner made on the basis of the assessment of discharge of her duties as a Clerk, is vitiated?
(3) Whether impugned order Annexure-E is liable to be quashed on the ground that the Assistant General Manager of the Bank had no authority in law to pass the said order?
5-A. Before I proceed to consider the questions that would arise for consideration in this petition, it would be useful to remind myself of the law laid down by the Apex Court regarding the scope of judicial review when the correctness of the order of termination of the services of a probationer is called in question.
(a) The Supreme Court, in the case of Dipti Prakash Banerjee, supra, after elaborately discussing the law on the subject, has taken the view that "if the findings are arrived at in an enquiry as to the misconduct behind the back of an officer or without a departmental enquiry, the simple order of termination is to be treated as founded on the allegations and will be bad". But, if the enquiry was not held, no findings are arrived at and the employer was not inclined to conduct an inquiry, but at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. In the said case, the Supreme Court, at paragraph 22 of the judgment, has observed as follows:
"22. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But, if the inquiry was not held, no findings were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid".
Further, at paragraphs 31 and 32 of the judgment, after referring to various earlier decisions of the Supreme Court, as to under what circumstances, an order of termination can be held to be one which attaches stigma, the Supreme Court has observed as follows:
"31. We shall next advert to some more cases and to particular words employed while passing orders of termination of probationers. In State of Bihar v. Gopi Kiskore Prasad, a show-cause notice was given seeking a reply to the allegation regarding the officers' bad reputation and in regard to certain perverse decisions given by him in his judicial functions during the period of probation. The termination order stated that certain facts were brought to the notice of the Government about his unsatisfactory work and con duct and that grave doubts had arisen about his integrity which indicated that he was a corrupt and an unreliable officer. It was also said that confidential inquiries revealed that he was a corrupt officer and that annual confidential reports of his superior officer referred to his bad reputation and therefore his work during the period of probation was not satisfactory. The Constitution Bench of this Court held that it was a clear case of stigma and the matter indeed required a full-fledged departmental inquiry under Rule 55 of the CCS (CCA) Rules. In Jagdish Mitter v. Union of India, the use of the words "undesirable to be continued" in service was held by the Constitution Bench to amount to stigma. This case was followed in State of Uttar Pradesh v. Madan Mohan Nagar, where the order said that the officer had 'outlived his utility' and such an order was held to amount to a stigma. Jagdish Mitter's case, supra, was approved by the seven Judge Bench in Samsher Singh's case, supra, on this point. But in Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Limited and Ors., the termination order used the word 'unsatisfactory' and the same was upheld as it did not amount to stigma.
32. Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to judge whether the words employed amount to stigma or not".
(emphasis supplied)
(b) While considering the question under what circumstances, the termination of a probationer's services can be said to be founded on misconduct, the Supreme Court, in the case of Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha, at paragraphs 53 and 54 of the judgment, has observed as follows:
".... a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. 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 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.
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 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, misconduct is not then the moving factor in the discharge".
(c) In the case of V.P. Ahuja, supra, the Supreme Court has taken the view that a probationer like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily and in a punitive manner without complying with the principles of natural justice. It is useful to refer to the observations made by the Supreme Court at paragraphs 6, 7, 8 and 9 of the judgment, which read as here-under :
"6. Learned Counsel for the respondents has contended that the appellant, after appointment, was placed on probation and though the period of probation was two years, his services could be terminated at any time during the period of probation without any notice, as set out in the appointment letter. It is contended that the appellant cannot claim any right on the post on which he was appointed and being on probation, his work and conduct was all along under scrutiny and since his work was not satisfactory, his services were terminated in terms of the conditions set out in the appointment order. This plea cannot be accepted.
7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.
8. The affidavits filed by the parties before the High Court as also in this Court indicate the background in which the order, terminating the services of the appellant, came to be passed. Such an order which, on the face of it, is stigmatic, could not have been passed without holding a regular inquiry and giving an opportunity of hearing to the appellant.
9. The entire case-law with respect to a 'probationer' was reviewed by this Court in a recent decision in Dipti Prakash Banerjee's case, supra. This decision fully covers the instant case as well, particularly as in this case, the order impugned is stigmatic on the face of it".
(emphasis supplied)
(d) In the case of Nepal Singh, supra, the Supreme Court, at paragraph 5 of the judgment, has observed thus:
"It is now settled law that an order terminating the services of a temporary Government servant and ex facie innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its terms the order was passed in fact with a view to punishing the Government servant, it is punitive order which can be passed only after complying with Article 311(2) of the Constitution. The scope of the enquiry called for in such a case has been outlined by one of us in State of Maharashtra v. Veerappa R. Saboji, .
But the question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order. The application of the test is not always easy. In each case it is necessary to examine the entire range of the facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services. The function of the Court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order".
(e) In the case of Anoop Jaiswal, supra, the Supreme Court, after referring to Parshotam Lal Dhingra v. Union of India, and Samsher Singh's case, supra, at paragraphs 12 and 13, has observed thus:
"12. It is, therefore, now well-settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
13. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the gymnasium and acting as one of the ringleaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ringleaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis of foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution".
6. From the discussion, of the law laid down by the Supreme Court, referred to above, it follows, (i) that the form of the order of termination is not conclusive of the true nature of the order and it is still open to the Court to go behind the form and look at the substance of the order, and on such examination of the order, if the Court comes to the conclusion that the order of termination for all external purpose appears to be an order of termination simpliciter, if in reality it cloaks dismissal for misconduct, it will still be open to the Court to set aside such an order as a colourable exercise of the power. In other words, where the form of the order is merely a camouflage for an order of dismissal for misconduct, it would be open to the Court before which the order of termination is challenged to ascertain the true character of the order; (ii) that if an order of termination casts stigma on the career of an employee and if such an order is made without enquiry, the said order is also liable to be set aside; (iii) that it is also permissible for the Court while examining the question whether the form of the order is only a camouflage for an order of dismissal for misconduct, to look into the surrounding circumstances that has led to the passing of the order and other materials on record, in addition to the order of termination of a probationer; and (iv) that an order of termination is effected because the master is satisfied of the misconduct and of the desirability of terminating the service of the delinquent servant, it is a dismissal, even if the master had the right in law to terminate with an innocent order either under the standing order or otherwise and such an order made without holding an enquiry would be bad in law. On the contrary, even if there is proof of misconduct, however, if the master does not prefer not to go into the guilt of the employee, but does not feel like keeping him as he is not happy with him, and passes an order of termination simpliciter, then such an order cannot be construed to be an order of dismissal, but it has to be construed as an order of termination simpliciter, because in such a case, misconduct is not the moving factor in the discharge of service.
7. Now, let me examine the legality of the order impugned in the backdrop of the parameter laid down by the Supreme Court.
8. Since the understanding of order Annexure-E would, to a large extent, assist to answer the rival contentions urged in this petition, it would be useful to extract the relevant portion of the said order, which reads as hereunder:
"Re: Termination of service -- Probationary period:
While appointing you as Cashier-cum-Typist in the Bank vide Memorandum of Appointment No. F3/18, dated 7th June, 1999 you were advised that you will be on probation for six months from 7th June, 1999 and your confirmation in the Bank's services at the end of probationary period will be inter alia subject to:
(a) Your work and conduct being satisfactory;
(b) Your attaining the standard of efficiency which we expect for service in the Bank.
2. Having observed your performance at the branch during the probationary period as not satisfactory and you having failed to attain the standard of efficiency expected of you as a Clerk for service in the Bank despite pointing out the deficiencies in your service time and again by word as well in writing, it has been decided to terminate your services in the Bank with, immediate effect in terms of Memorandum of Appointment and Sastry/Desai Awards and Bipartite Settlements.
3. In terms of the above, you are being paid one month's pay and allowances in lieu of notice vide bankers cheque No. 032638, dated 4th December, 1999 for Rs. 3944.56 enclosed".
Re: Question No. (1):
9. There is no dispute that the services of the petitioner came to be terminated when she was on probation and before the expiry of her probationary period. Though the petitioner had reported to duty on 7th June, 1999, it is for the first time on 2nd November, 1999 and 17th November, 1999, certain deficiencies in the discharge of her duties were pointed out. The impugned order of termination was passed on 4th December, 1999. For a period of nearly five months i.e., from 7th June, 1999, the Bank did not find any deficiencies in the discharge of duties by the petitioner. However, in the light of the information received by the Bank that the petitioner was earlier in the services of Raichur Mahila Pattana Sahakari Bank Limited, and the said information was suppressed by the petitioner in the bio-data furnished by her to the Recruitment Board and also on the ground that, an FIR was filed against her on 10th April, 1999; and she was in judicial custody from 9th August, 1999 to 17th August, 1999; and on the ground that the said information was suppressed in the bio-data furnished by her, show-cause notice dated 4th October, 1999 was issued to the petitioner calling upon her to give explanation and thereafter, the disciplinary proceedings were initiated which was followed by issue of communication Annexure-D, dated 16th November, 1999 appointing the Enquiry Officer and issue of charge memo on the petitioner. The material on record also shows that pursuant to the charge memo served on the petitioner, the Enquiry Officer had also fixed the enquiry on 8th December, 1999. The disciplinary proceedings initiated against the petitioner came to be dropped by means of order Annexure-F, dated 4th December, 1999 passed by the third respondent only on the ground that the petitioner had already been removed from service by means of order Annexure-E, dated 4th December, 1999. This is clear from the contents of order Annexure-F, dated 4th December, 1999, which reads as hereunder:
"In view of your removal from service vide our Order No. RMU/GA.11/189, dated 4th December, 1999, it is decided not to proceed further with the enquiry proceedings initiated against you vide our charge-sheet issued under cover of our Letter No. RMU(G), dated 16th November, 1999. The Bank, however, reserves the right to re-open/continue the enquiry proceedings if required".
Therefore, from what is stated above, it is clear that the disciplinary proceedings initiated against the petitioner came to be dropped as per Annexure-F on the ground that the services of the petitioner came to be terminated as per Annexure-E. It is not a case where the disciplinary proceedings were dropped and, thereafter, the services of the petitioner came to be terminated on the ground that the discharge of her duties during the period of probation was unsatisfactory. As noticed by me earlier, it is only during the pendency of the disciplinary proceedings, the services of the petitioner came to be terminated as per Annexure-F for the reasons stated therein. From the contents of the charges levelled against the petitioner in show-cause notice Annexure-R2 and the charge-sheet given to the petitioner, it is clear that the disciplinary proceedings initiated against the petitioner were on grounds which were totally unrelated to the nature of the duties she used to discharge during the course of her employment in the Bank. In this connection, it is also useful to refer to the statement made by the third respondent at paragraph 3 of the statement of objections and it read thus:
"3. This respondent submits that the petitioner has suppressed material facts relating to her past service and it has come to light that FIR has been filed against the petitioner on 10th April, 1999 on the allegations that she was involved in the fraudulent release of loans in respect of SC/ST beneficiaries while she was working in Raichur Zilla Manila Pattana Sahakari Bank Limited, Raichur and she was held in judicial custody from 9th August, 1999 to 17th August, 1999. The Bank issued disciplinary letter dated 4th October, 1999 and her reply dated 26th October, 1999 given by the petitioner to the said letter, she has admitted these facts, and the true copy of the said letter and reply is herewith, produced and marked as Annexures-R2 and R3 and the leave letter sent by the petitioner is produced herewith and marked as Annexure-R4. From the said reply it is clear that the petitioner has deliberately suppressed the fact of her previous employment, as otherwise the Bank would have insisted for relieving letter from her previous employer, which would not have been forthcoming in view of the pending charges against her and her resignation is not accepted by her previous employer".
Therefore, from the undisputed facts and the materials on record, the only inference and the conclusion that can be reached is that the foundation for the order of termination Annexure-E was the list of charges made out against the petitioner in respect of which disciplinary proceedings were initiated. It may be that in the case of probationer, merely because certain deficiencies were pointed out and steps were taken to initiate disciplinary proceedings will not come in the way of the master not to proceed with the enquiry in a given case and exercise his power of terminating an employee from service during his probationary period, by issuing an order of termination simpliciter as pointed out by the Supreme Court in the case of Dipti Prakash Banerjee, supra. But, in the instant case, as pointed out by me, though the order of termination Annexure-E points out that her services were terminated on the ground that her performance during her probationary period was not satisfactory and she had failed to attain the standard of efficiency expected of her as a Clerk, in the services of the Bank despite pointing out deficiencies in her service both orally as well as in writing, the material on record would lead to the only inference that the statement made in the order of termination is only a camouflage or a cloak for an order of dismissal and the foundation for the order of termination was the charges levelled against the petitioner in respect of which disciplinary proceedings were initiated and charge-sheet was issued. It is not a case where the disciplinary proceedings were dropped earlier. Further, order Annexure-F also gives an indication that the termination of the services of the petitioner was actually in the nature of her removal from service. This inference is inescapable in view of the language used in order Annexure-F wherein it is stated that in view of her "removal from service vide Order No. RMU/GR11/189, dated 4th December, 1999, it is decided not to proceed further with the enquiry proceedings initiated against her". Further, as pointed out by me earlier, no deficiency was pointed out in the discharge of duties by the petitioner at any time prior to 2nd November, 1999 though the petitioner was in service for a period of nearly five months out of the probationary period of six months fixed. It is not in dispute that the petitioner had secured first class in Pre-University, second class in B.Com. and has passed M.Com. in first class. It is also not in dispute that the petitioner had worked for nearly five years in Raichur Zilla Mahila Pattana Sahakari Bank Limited as a Manager. This is clear from the No Objection Certificate dated 9th April, 1999 produced by the petitioner as Annexure-A to the writ petition, to show that the Bank had no objection for the petitioner getting an employment elsewhere. This Certificate was obtained by the petitioner before she joined the Bank on 7th June, 1999. Therefore, can it be believed that a person, who had the experience of working in a Co-operative Bank for a period of nearly five years, and who had secured first class in M.Com., would not be able to discharge her duties satisfactorily during her probationary period. Therefore, the facts and the events which led to the passing of the impugned order, speak for themselves. On that basis, the only inference that can be drawn is that the third respondent proceeded to pass the impugned order in view of the allegations made in the charge memo issued to the petitioner in respect of which disciplinary proceedings were initiated. Further, the deficiencies pointed out in the two letters dated 2nd November, 1999 and 16th November, 1999 are not of any serious nature touching upon some moral turpitude or which cannot be improved upon, if necessary by extending the period of probation. Therefore, it appears to me that the action of the Bank in terminating the services of the petitioner is highly arbitrary, unreasonable, discriminatory in nature and violative of the right given to the petitioner under Article 14 of the Constitution of India. No doubt, the power is conferred on the employer to terminate the services of the probationer during the probationary period if the discharge of duty by a probationer during the probationary period is not satisfactory and he/she is unsuitable to the post. However, in view of the protection guaranteed under Article 14 of the Constitution of India, the principle underlying fairness or reasonableness in action requires to be satisfied by the State, its authorities or instrumentalities of the State. If it is not done, in my considered view, the power of judicial review conferred on this Court under Article 226 of the Constitution enables this Court to nullify any arbitrary, perverse, unreasonable and unfair action. The principle laid down by the Supreme Court in the cases of E.P. Royappa v. State of Tamil Nadu and Anr., ; Mrs. Maneka Sanjay Gandhi and Anr. v. Miss Rani Jethmalani, and Ramana Dayaram Shetty v. International Airport Authority of India, and large number of decisions of the Supreme Court, which reiterated the said principles, in my view, also can be applied to nullify the arbitrary action of the employers/authorities even in the case of termination of service of a probationer so long as the power is not exercised for the purpose for which the power is conferred on the employer or the master. The power conferred on the master to terminate the services of a probationer must be exercised strictly in accordance with and for the purpose for which the power is conferred. While considering whether a probationer has satisfactorily completed her/his probationary period, the decision making process of the employer should not be vitiated or affected on account of considerations which are totally irrelevant and extraneous to decide the said question. Though it is not appropriate for this Court to go into the correctness of the allegations made against the petitioner in the show-cause notice Annexure-R2 and the charge memo issued to the petitioner and it is a matter for an enquiry, it is necessary to point out that the petitioner had furnished her bio-data on 9th April, 1999 when she was called for interview by the Recruitment Board and even according to the third respondent, an FIR was registered against her only on 10th April, 1999 and she was taken to judicial custody when she was in employment of the Bank only during the period from 9th August, 1999 to 17th August, 1999. Therefore, these facts could not have been disclosed by the petitioner at the time of interview, as rightly pointed out by Sri Raddi. It is also not possible to infer that till the petitioner was taken to judicial custody on 9th August, 1999, she had any knowledge about the complaint filed on 10th April, 1999. As noticed by me earlier, though it is not appropriate for this Court to go into the allegations made in the complaint filed against the petitioner along with several others, the experience shows that on many occasions, to cover up the deficiencies or maladministration on the part of the persons in management of the affairs of the Co-operative Bank or the rivalry between the two groups in the management as contended by Sri Raddi, the staff of the Bank are made as victims and scapegoats. Therefore, it will be highly unreasonable and arbitrary and would be violative of the right guaranteed to the petitioner under Article 14 of the Constitution of India, to remove her from service without enquiry in the purported exercise of the power to discharge her from service on the ground that she was only a probationer. I am of the view that the law laid down by the Supreme Court in the case of Dipti Prakash Banerjee, supra and in the cases of V.P. Ahuja and Anoop Jaiswal, referred to above, fully supports the view I have taken above. Therefore, the impugned order is liable to be quashed on the short ground that it is in the nature of removal of the petitioner from service without holding enquiry and giving her an opportunity.
(a) In the case of Unit Trust of India, supra, on the facts of the said case, the Supreme Court took the view that there was no material placed on record to conclude that the impugned order of termination of the services of the probationer in that case smacks of bias or prejudice or was in any way mala fide.
(b) In the case of Satya Narayan Athya, supra, the Supreme Court considered the case of the termination of the services of a Civil Judge during the period of probation made by the Full Bench of the High Court. In this connection, it is useful to refer to the observations made by the Supreme Court at paragraph 4 of the judgment, which reads as hereunder:
"It is contended on his behalf by the learned Counsel for the petitioner that since the later record was found satisfactory as per the norms laid down by the High Court, the finding that his performance was not satisfactory is not correct. Therefore, his discharge from service is clearly arbitrary. We find no force in the contention. The Division Bench held that during the relevant period his performance was not satisfactory and that subsequent good or bad performance of the petitioner became meaningless".
(c) Same is the principle laid down by the Supreme Court in the case of K.V. Krishnamani, supra.
(d) In the case of Oil and Natural Gas Commission, supra, though an enquiry was started against a Medical Officer, who was appointed purely on temporary basis and was on probation, the same was not proceeded with and his services were terminated on the ground that the discharge of his services during the period of probation was unsatisfactory. In that context, on the basis of the materials on record and the facts and circumstances of that case, the Supreme Court took the view that when the Appointing Authority had terminated the services without assigning any reasons, in such a case even if misconduct, negligence, ineffciency might be the motive or the inducing factor which influenced the employer to terminate the services of the employee, termination of service could not be termed as penalty or punishment. The observation made in the said case is with reference to the facts of that case. The Supreme Court has found that in the said case, on fact, the enquiry was not a foundation for an order of termination, but it may be motivating factor. That is not the position in the present case. The charges levelled against the petitioner has nothing to do with the discharge of her duties. The facts of the case, as noticed by me earlier, indicates that the alleged unsatisfactory discharge of duties was sought to be made out only after framing of charges and appointment of the Enquiry Officer. Therefore, in my view, the principle laid down in the case of Oil and Natural Gas Commission, supra, has no application to the facts of the present case.
(e) In the case of State of Orissa, supra, relied upon by Sri Nagabhushan, it was a case of termination of the services of a Sub-Inspector, who was on probation. In the background of Rule 55-B of the Civil Services (CCA) Rules, wherein the said Rule provided that where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be appraised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment, the Supreme Court took the view that since the notice to show cause whether the employment of the said Sub-Inspector of Police should be terminated was by the Rule made obligatory and in that situation, though certain charges were levelled in the show-cause notice, from that it cannot be inferred that the termination of service of a probationer was by way of punishment. Further, from the facts of the said case set out in the judgment, it is clear that in addition to the show-cause notice, another order terminating the services discharging the Sub-Inspector was issued. Further, the observation made in paragraph 12 of the judgment also makes it clear that the use of the expression "discharge" in the order terminating the employment of a public servant is not decisive. It is useful to refer to the said observation, which reads as follows:
"... The use of the expression "discharge" in the order terminating employment of a public servant is not decisive; it may, in certain cases, amount to dismissal. If a confirmed public servant holding a substantive post is discharged, the order would amount to dismissal or removal from service; but an order discharging a temporary public servant may or may not amount to dismissal. Whether it amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry".
Therefore, I am of the view that the said decision is also of no assistance to the Counsel for the petitioner. On the other hand, as observed by me earlier, the principle laid down by the Supreme Court in the cases of Dipti Prakash Banerjee, supra, Anoop Jaiswal, supra and V.P. Ahuja, supra, would fully apply to the facts of the present case.
10. Now, one other question that would arise for consideration is whether the order impugned casts any stigma on the career of the petitioner? In order Annexure-E, after observing that the performance of the petitioner at the Branch during her probationary period was not satisfactory, the order proceeds to state that the petitioner has "failed to attain the standard of efficiency expected of her as a Clerk for service in the Bank despite pointing out the deficiencies" in her service both orally and in writing and, therefore, it was decided to terminate her services from the Bank with immediate effect in terms of the Memorandum of Appointment and Sastry/Desai Awards and Bipartite Settlements. The observation made in the order of termination that the petitioner had failed to attain the standard of efficiency expected of her as a Clerk in the services of the Bank despite pointing out her deficiencies, to my mind, appears that the said order casts stigma on her career. If the order Annexure-E is looked into by any one including the prospective employer, the conclusion one would reasonably draw is that her services were terminated during her probationary period as she was inefficient and had failed to attain the standard of efficiency expected of her as a Clerk; and in spite of the deficiencies pointed out to her, she did not make up the deficiencies. In the case of Chandu Lal v. Management of Pan American World Airways Inc., and in the case of Kamal Kishore Lakshman v. Management of Pan American World Airways Inc. and Ors., where the order of termination was termed as loss of confidence', the Supreme Court took the view that the said orders are bound to contain stigma and, therefore, are punitive in nature.
(i) In the case of Chandu Lal, supra, at paragraph 8, the Supreme Court has observed as follows:
"It is difficult to agree with the finding of the Labour Court that when service is terminated on the basis of loss of confidence the order does not amount to one with stigma and does not warrant a proceeding contemplated by law preceding termination. Want of confidence in an employee does point out to an adverse facet in his character as the true meaning of the allegations is that the employee has failed to behave upto the expected standard of conduct which has given rise to a situation involving loss of confidence...".
(ii) In the case of Kamal Kishore Lakshman, supra, the Supreme Court at paragraph 9, has observed as follows:
"Loss of confidence by the employer in the employee is a feature which certainly affects the character or reputation of the employee and, therefore, this Court correctly held in Chandu Lal's case, supra, that allegation of loss of confidence amounted to a stigma.
The ratio in Jagdish Mitter's case, supra, also supports this conclusion".
(iii) In the case of Jagdish Parsad v. Sachiv, Zila Ganna Committee, Muzaffarnagar and Anr., where the order of termination stated that the officer had concealed certain facts relating to his removal from his earlier service on the charge of corruption and, therefore, not suitable for appointment, the Supreme Court took the view that the same amounts to stigma.
10(a). The efficiency or incompetency attributed to the petitioner is found in the order of termination itself. This is not a case where the order of termination simply states that the services of the petitioner are terminated during the period of probation as the discharge of her duties during the said period was unsatisfactory, and a separate order was issued pointing out the deficiencies in the discharge of her duties. Therefore, I am of the view that the principle laid down by the Supreme Court in the cases referred to above, would fully apply to the facts of the present; and the impugned order Annexure-E is liable to be quashed on the ground that it casts stigma on the career of the petitioner. In my view, none of the decisions relied upon by Sri Nagabhushan is of any assistance to support his contentions. Accordingly, question No. (1) is answered.
11. It is also useful to refer to one other submission of Sri Raddi that if, for any reason, the Bank was not satisfied with the efficiency of the petitioner, since the discretion was conferred on the Bank to extend the period of probation for a further period, the said discretion should have been exercised in her favour having regard to the facts and circumstances of the case. No doubt, this Court should be very slow to interfere with the discretion exercised by the employer in a matter like this, that does not mean that if the discretion conferred on an authority is not reasonably and fairly exercised for the purpose for which the discretion is conferred on the employer, this Court should be a silent spectator of the injustice caused to an employee resulting in deprivation of right to life and livelihood guaranteed to such an employee under Article 21 of the Constitution of India. Even in the case of discharge of probationer, the grievance made out is that the discretion has been arbitrarily and unreasonably exercised by the employer resulting in contravention of the right guaranteed to an employee under Article 14 of the Constitution of India, without considering as to whether the facts and circumstances of the case would require the employer to extend the period of probation, in my considered view, the said grievance requires to be examined by this Court subject to the limitations imposed on the power of this Court to interfere with the said discretion in exercise of the power conferred on this Court under Articles 226 and 227 of the Constitution of India. It is necessary to point out that when a discretion is conferred on an authority or an employer either to terminate the service of a probationer or to extend the period of probation, such discretion must be exercised reasonably, fairly and objectively. In the instant case, for a period of nearly five months i.e., till 2nd November, 1999, the Bank did not find any deficiency in the discharge of the duties by the petitioner. As noticed by me earlier, the petitioner had previous experience of working in a Co-operative Bank for a period of nearly five years. She has secured first class in Pre-University, second class in B.Com. and first class in M.Com. Her efficiency in the discharge of duties was required to be assessed with reference to the standard of efficiency required of by a Clerk in the Bank. The Bank is a nationalised Bank and an instrumentality of the State where large number of employees are working. The petitioner is a lady and more particularly belonging to a reserved class "OBC" (Besta Community). She has secured 8th rank in the list of selected candidates under reserved category published by the Recruitment Board. The Recruitment Board, which is an independent body, on assessment of her capability, has found her suitable to be appointed in the Bank. Further, during the relevant period, the petitioner was carrying and also had suffered miscarriage. The material on record also shows that she was under judicial custody for the period from 9th August, 1999 to 17th August, 1999 on the basis of the complaint filed against her and others. Therefore, it clearly shows that the petitioner was under tremendous pressure and was undergoing lot of hardship. If the services are to be terminated for the misconduct stated to have been committed by her during her employment with a previous master, it is a different matter. But, if her case is required to be considered for declaration of her probation or extension of the probationary period, the factors stated above cannot be ignored. There is nothing on record to show that the Appointing Authority has applied its mind to this aspect of the matter. Under these circumstances, the question is, in a country where there is lot of unemployment and poverty, whether an employer, who is an instrumentality of the State, in a mechanical manner can proceed to terminate the services of a person who has been selected by an independent recruitment agency and who possesses very good academic qualification, merely saying that her probationary period was unsatisfactory. In my view, in a matter like this, this Court, in exercise of its writ jurisdiction, has to examine the question whether the impugned order has been passed by the third respondent in a bona fide exercise of power conferred on him or it has been exercised for reasons extraneous to the power conferred on him. If the materials on record is so examined, I am inclined to take the view that the power to terminate the services of the petitioner has not been exercised by the third respondent in bona fide exercise of power. In my view, as rightly pointed out by Sri Reddy, if, for any reason, the third respondent was not satisfied with the services of the petitioner during her probationary period, the third respondent should have extended the period of probation as rightly pointed out by Sri Reddy.
Re: Question No. (2);
12. Now, the next question that would arise for consideration is whether the assessment of the service of the petitioner made as a Clerk and terminating her services, vitiates the impugned order? It is the case of the petitioner that she had applied for the post of Typist (English) and she was recruited as a Typist (English) by the Bank. To examine the question whether the petitioner was recruited as a Typist (English) by the first respondent, it is useful to refer to the statement made by the first respondent in paragraph 4 of the statement of objections.
"Pursuant to publication of this advertisement the petitioner applied for the post of Typist in OBC category and after successfully passing the written/skill test appeared for the interview. In both these tests the petitioner was successful and in the merit test stood 8th in OBC category. Accordingly, she was selected and was allotted to State Bank of Hyderabad. Once the selected candidate has been allotted to the Bank then from the appointment onwards their service conditions would be governed by the service rules of respective Bank which appoints them as can be seen from the Annexure-B to the petition which shows the selection made by the Board".
From the statement made by the first respondent, it is clear that the petitioner had applied for the post of Typist (English) and she was so selected to the post of Typist (English). Order Annexure-B, dated 26th April, 1999 issued to the petitioner by the Recruitment Board also shows that she was selected and recommended for appointment to the Bank as a Typist (English) under "OBC" category. Therefore, there cannot be any doubt that the petitioner was selected to the post of Typist (English) in the Bank. However, it is the case of Sri Nagabhushan that since the communication Annexure-C, dated 5th June, 1999 and appointment order Annexure-R7, dated 7th June, 1999 issued to the petitioner show that she was appointed as a Cashier/Clerk/Typist on probation, it is not permissible for the petitioner to contend that she was appointed only as a Typist (English) and not as a Clerk. He pointed out that the petitioner having accepted the post of Cashier/Clerk/Typist, is estopped from contending that assessment of her work during the period of probation should have been made only in the post of Typist (English) and not as a Clerk. No doubt, the appointment order Annexure-R7 shows that she was appointed by the Bank as Cashier/Clerk/Typist on probation. Now, the question is merely because she has accepted the order of appointment issued by the Bank, can she be estopped from contending that the assessment of her services for the purpose of declaration of probation should have been made only as a Typist (English) and not as a Clerk? While I agree with the contention of Sri Nagabhushan that the petitioner had reported to duty as a Cashier/Clerk/Typist, I am unable to accede to his submission that the petitioner is estopped from contending that her assessment should have been made by the Bank for considering her case for declaration of her probation in the discharge of her duties as a Typist (English) and not as a Clerk. As noticed by me earlier, it cannot be disputed that she had applied for the post of Typist (English) and she was so selected by the Recruitment Board to the post of Typist (English) and recommended to the Bank by the Recruitment Board to the said post. It is not in dispute that the Bank had requested the Recruitment Board to select candidates to the post of Typist (English). Under these circumstances, it was not permissible for the Bank to offer an appointment other than the one to which the petitioner was selected by the Recruitment Board and recommended for appointment. Therefore, merely because the petitioner had reported to duty pursuant to order Annexure-R7, it is not permissible for the Bank to contend that the petitioner is estopped from contending that the assessment of her duties in the services of the Bank should have been made for the purpose of declaration of probation only as a Typist (English) and not as a Clerk. It is necessary to point out that at the time of reporting to duty, in view of the background and the circumstances in which she was placed, she had no bargaining capacity. The appointment order issued by the Bank also indicates that she was appointed as Cashier/Clerk/Typist. Therefore, it was very difficult for the petitioner at that stage to refuse the appointment order on the ground that she was not appointed as a Typist (English). From a combined reading of order Annexure-B where it is stated that she was appointed as a Typist (English) and the circumstances under which she came to be appointed to the Bank, it is quite possible that she was led to believe that she was appointed as a Typist (English) in the Bank and in the course of the discharge of her duties if required by the Bank, she may have to discharge her duties at times as Cashier/Clerk depending upon the administrative exigencies, as rightly contended by Sri Raddi. The Bank is an instrumentality of the State. It has a greater obligation and duty to conform to the norms and recruitment rules. The Bank, which has violated the condition of recruitment and the recommendations made by the Recruitment Board recommending the petitioner to the post of Typist (English), cannot be permitted to contend before this Court that the petitioner should not be allowed to contend that impugned order Annexure-E is vitiated on the ground that she was appointed to the cadre of Clerk and not as a Typist (English). It is not in dispute that the assessment of the duties of the petitioner was made for the purpose of considering her case for declaration of probation only as a Clerk. This is clear from impugned order Annexure-E and also the stand taken by the third respondent at paragraph 7 in the additional statement of objections filed to the additional grounds raised by the petitioner. In my view, Annexure-R10 relied upon by the third respondent, does not support the case of the Bank that of the petitioner was appointed as a Cashier/Clerk/Typist. Further, Annexure-R12 relied upon by the third respondent also supports the case of the petitioner that she and several others, referred to in the list Annexure-R12, were appointed as Typists. The said list only indicates that the persons, referred to in the list Annexure-R12, were appointed as Typists (English) and the posts held by them is only in the Clerical panel. The words "Clerical panel" used in letter Annexure-R12 cannot be read de hors from the word "Typist (English)" referred to in Annexure-R12. Therefore, I do not find any merit in the submission of Sri Nagabhushan that the selection of the petitioner and her recommendation for appointment was not as that of a Typist (English). In the light of what is stated above, I am of the view that the impugned order is also liable to be quashed on the ground that the assessment of the discharge of duties by the petitioner was not made in the post of Typist (English) and it has been made only in the post of Clerk, which was not permissible as the petitioner was appointed to the post of Typist (English).
Re: Question No. (3):
13. Now, let me examine whether the order impugned is liable to be quashed on the ground that the third respondent had no authority to pass the order? Order Annexure-C, dated 5th June, 1999 shows that pursuant to the recruitment and selection made by the Recruitment Board, the petitioner was appointed by the Deputy General Manager of the Bank, 4th respondent. Merely because the memorandum of appointment as per Annexure-R7 was issued by the Branch Manager of the Bank, from that it cannot be held that the Branch Manager of the Bank has appointed the petitioner. In my view, the combined reading of Annexures-C and R7 makes it clear that pursuant to the appointment made as per Annexure-C, a formal order appointing the petitioner was given by the Branch Manager/Zonal Manager/Regional Manager. This is also clear from the reference made in Annexure-R7 to the letter Annexure-C, dated 5th June, 1999. The impugned order of termination has been passed by the Assistant General Manager. No doubt, the Assistant General Manager is higher in rank than that of the Branch Manager. But, it cannot be disputed that he is lower in rank than that of the Deputy General Manager. Further, in my view, the notification dated 12th February, 1977 in Internal Circular No. 4 of 1977 relied upon by Sri Nagabhushan, learned Counsel for the Bank, to show that the Branch Manager is the Appointing Authority, is of no assistance to him. On the other hand, in my view, it supports my view that the Branch Manager is authorised only to issue a formal order of appointment pursuant to the decision taken by the higher authorities. It is useful to refer to the relevant portion of Clause 2 of the Circular relied upon by Sri Nagabhushan, which reads as hereunder:
"2. Accordingly, it has been decided to adopt the following revised procedure with immediate effect in respect of issue of appointment orders while recruiting staff to the award cadres:
(a) The list of selected candidates for appointment will be finalised by the Manager (Personnel Administration) and as per the requirements of the various branches, the list of selected candidates allotted to various branches will be sent to the concerned Regional. Manager/Assistant General Manager (Operations).
(b) The Regional Manager/Assistant General Manager (Operations) will decide the postings of these candidates to the branches under their control and send the appointment letters duly filled in to the concerned branches, under a covering letter as per proforma enclosed (Annexure-I).
(c) The appointment letters will be signed and issued by the Branch Manager to the concerned candidate(s) with a copy of the controlling authority.
(d) The date on which the candidate reports for duty will be advised by the Branch Manager to the controlling authority, with a copy to the Manager (Personnel Administration).
(e) The appointment orders for the candidates posted to Head Office, Departments and Gunfoundry (Hyderabad) Branch, will be issued by the Office Manager and Chief Manager respectively".
Clause (a) of the Circular specifically provides that the list of selected candidates for appointment is required to be finalised by the Manager (Personnel Administration). Therefore, the appointment is required to be made by the Manager (Personnel Administration). Further, in the instant case, the appointment order Annexure-R7, dated 7th June, 1999 issued by the Branch Manager specifically states that the petitioner was appointed pursuant to the letter of introduction dated 7th June, 1999 issued by the Personnel Administration Department, Head Office/Zonal Office, Gulbarga. Under clause (c) of the Circular, referred to above, the appointments are required to be signed and issued by the Branch Manager to the concerned candidates. Clause (b) of the Circular also makes it clear that the Regional Managers and Assistant General Managers are required to decide the postings of the candidates to the Branches under their control and required to send the appointment letters duly filled in to the concerned Branches under a covering letter as per the proforma. Therefore, I am unable to accept the submission of Sri Nagabhushan that the Appointing Authority for the petitioner was the Branch Manager and, therefore, the order impugned passed by the Assistant General Manager terminating the services of the petitioner is valid in law. I am of the view that the materials on record would disclose that the petitioner was appointed by the Deputy General Manager and, therefore, the decision to terminate the services of the petitioner on the ground that she has not completed her probationary period satisfactorily, should have been taken only by the Deputy General Manager and not by the Assistant General Manager. On this ground also, the impugned order is liable to be quashed.
14. In the light of the discussion made above, I make the following:
ORDER
(i) Impugned order Annexure-E, dated 4th December, 1999 made in No. RM.II(G)-II/189 by the third respondent is hereby quashed.
(ii) Respondents 2 to 4 are directed to reinstate the petitioner in service with all consequential benefits including salary and other emoluments which the petitioner is entitled from the date of termination of her services in terms of order Annexure-E till the date of her reinstatement.
(iii) The respondents are given ten days time from today to reinstate the petitioner in service and are given six weeks' time from today to settle her consequential benefits, as stated above.
(iv) The directions given above will not come in the way of the Bank taking appropriate decision in the matter of declaration of probation of the petitioner in accordance with law.
15. However, no order is made as to costs.
16. In terms stated above, this petition is allowed and disposed off.