Karnataka High Court
Y.N. Krishna Murthy vs Karnataka Silk Industries Corporation ... on 25 September, 1996
Equivalent citations: ILR1997KAR1768, 1997(2)KARLJ413, (1997)IILLJ928KANT
Author: R.P. Sethi
Bench: R.P. Sethi
JUDGMENT 1. The ordinary dictionary meanings of the word 'Stigina' are" "Mark branded on slave, criminal etc; imputation attaching to person's reputation; stain on one's good name' It is also considered as : "A brand; a mark of infancy; a disgrace or reproach a lied to anyone; any special mark; a bleeding spot; a scar; a spot sensitive to light." 2. In relation to employment, the word 'Stigma' means aspersion or reflection on the conduct, efficiency and the like made in the order which is likely to adversely affect the future prospects of the individual relating to his employment or promotion. 3. In the absence of any statutory definition assigned, the Supreme Court considered its scope and ambit in Kamal Kishore Lakshman v. Management of M/s. Pan American World Air ways Inc. and Others (1987-I-LLJ-107) at paras 8 and 9 and relying upon its earlier judgments in Chandu Lal v. Management of M/s. Pan American World Airways Inc. and Others (1985-II-LLJ-181) and Jagdish Mitter v. Union of India, (1964-I-LLJ-418) held : "According to Webster's New World Dictionary it is something that detracts from the character or reputation of a person, a mark, sign etc., indicating that something is not considered normal or standard. The Legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster's III New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary, 'Stigma' is a matter for moral reproach. 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 the case of Jagdish Mitter, (supra), also supports this conclusion". 4. Invoking the mandate of the Apex Court, so the appellant herein has prayed for quashing of the order of the Managing Director of the respondent, dated March 31, 1994 at Annexure-G attached with the appeal, discharging him from service, alleging that the said order amounted to casting stigma to his service career. 5. In order to appreciate the contentions raised in the appeal, it is necessary to take note of the facts under which the present appeal has been filed. 6. The appellant was appointed as Assistant Sales Officer on September 11, 1987, vide order at Annexure-A. He claims to have underwent orientation training for two weeks and thereafter assumed the charge of Assistant Sales Officer and incharge of factory showroom at Mysore. During 1989, the appellant was transferred as Assistant Sales Officer, incharge of the Corporation showroom at Channapatna, where he served for about six months' He was placed under suspension there. After his reinstatement with effect from January 4, 1992, the appellant was appointed as Assistant Sales Officer in Devatha Market showroom of the respondent-Corporation at Bangalore. According to the terms of the appointment, the appellant was to undergo probation for three years, subject to the right of the respondent to extend such probation for further period. The respondent did not extend the period of probation before the expiry of three ears and the appellant was allowed to X, pp continue in service without any break. However, on October 1, 1993, the respondent issued an order, indicating that the work rendered by the appellant had not been satisfactory and his probation was, therefore, ext. to March 1, 1994. On December 6, he appellant claims to have received a show-cause notice from the respondent, alleging that he was responsible for shortages of silk cloth. He was asked to show-cause as to why disciplinary action he not initiated against him, under the rules 45 of the Corporation. The appellant denied the allegations and submitted that there was no shortage or missing of cut pieces, nor had there been any replacement, as alleged. On March 31, 1994, at about 3.45 p.m., the appellant alleges have received the proceedings of the Managing Director, indicating that in view of his having not been found suitable for the post of Assistant Sales Officer, he was being discharged from service with effect from the afternoon of March 31, 1994. He was directed to hand over complete charges to Sri Manjunath, Junior Sales Assistant. 7. Aggrieved by the action of the respondent, the appellant filed a writ petition in this Court, which was dismissed by the learned Single Judge, vide the judgment impugned in this appeal. It is submitted that the judgment was against the provisions of settled law, which required to be set aside. It is contended that after the expiry of additional period of three years' probation, the appellant should be deemed to have been permanently appointed and could not be removed, without compliance of the provisions of the rules applicable in the case. It is contended that the respondent had no authority to extend the probationary period, retrospectively. The order impugned in the writ petition was alleged to be not an order of discharge simpliciter. It was stated to have been issued by the respondent by way of a major penalty, as provided under the rules of die Karnataka Silk Industries Corporation Limited Employees Conduct, Discipline and Appeal Rules, 1980 (C.D.A. Rules for short). It is submitted that the major penalty of termination could not have been imposed, without following the procedure laid down under Rule 26 of the C.D.A. Rules. It has been argued that the learned Single Judge was not justified in holding that the recitals made in the impugned order only referred to his 3, past conduct, for the purposes of deciding to continue or not to continue the period of probation. It is contended that the facts alleged in the impugned order amounted to casting stigma, which rendered the order of discharge, constitutionally illegal and contrary to rules, and as such was liable to be set aside. 8. Learned Counsel appearing for the respondent has supported the judgment and submitted. that until and unless specific orders were passed regarding the successful completion of the period of probation, the appellant could not be deemed to have been permanently appointed to the post. It is submitted that the order impugned did not cast any stigma, necessitating interference by this Court. The judgment office learned Single Judge is claimed to be strictly according to the law laid down by the Apex Court and the service applicable in the case. 9. The admitted is that while offering die appellant the post of Assistant Sales Officer We Annexure-A, he was initated that : "Your appointment is on a contract basis for a period of three years which is terminable at the discretion of Karnataka Silk Industries Corporation with three months' notice or salary in lieu thereof. This three year period shall be treated as your probationary period, which is liable to be extended at the discretion of the management from tune to time and you shall continue to be on probation even after three years, till your services are confirmed." 10. It is true that the period of probation was not extended within the specified period of years. It is equally true that there is no rule or regulation of the respondent Corporation, providing that in case the probationary period was not extended within the time earlier fixed, the probationer officiating shall be deemed to have been confused in that post. The Supreme Court, in State of Punjab v. Dharam Singh , held : "This Court has consistently held that when a first appointment or promotion is made on 35 probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation, it is not possible to hold that he should he deemed to have been confirmed. This view was taken in so S. Sukhbans Singh v. State of Punjab (1963- I-LLJ-671) (SC), G. S. Ramaswamy v. Inspector-General of Police, Mysore State, Bangalore (1970-I-LLJ-649) (SC), Accountant-General, Madhya Pradesh, Gwalior v. Deni Prasad Bhatnagar C.A. No. 548 of 1962, dated January 23, 1964 (SC), D. A. Lyall v. Chief Conservator of Forests, Uttar Pradesh C.A. No. 259 of 1963, dated February 24, 1965 (SC) and State of Uttar Pradesh v. Akbar Ali Khan (1 967-I-LLJ-708)(SC). The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation, the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication ......." In Kedar Nath Bahl v. State of Pwyaband Others , this position was reiterated and it was held that where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the specified period of probation, the person so appointed would get confirmation automatically. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of specified period, or there is a specific service rule to that effect, the expiration of the probationary period would not necessarily lead to confirmation. 11. The Supreme Court, again in Om Prakash Maurya v. Uttar Pradesh Co-operanve Sugar Factories Federation, Lucknow and Others (1986-II-LLJ-145), declared that in the absence of service rules, failure to extend the period of probation would not automatically amount to confirmation on the post of probation. 12. In the absence of any specific rule to the effect that nonextension of the period of probation would automatically amount to confirmation, it cannot be held that the appellant was deemed to have been confirmed to the post, as has been argued by his learned Counsel. The learned Single Judge was, therefore, justified in holding that the appellant was never confined and was on probation up to March 31, 1994. 13. With respect to the termination of service or reduction in rank, the general principle involved is that when a servant has a right to a post or a rank, either under the terms of a contract of employment-express or implied-or under the rules applicable in the case, his termination or reduction to a lower grade is by itself and a punishment, because it operates as a forfeiture of his right to hold that post and the rank. If the servant has no right to the post on account of his appointment to the post, either on temporary basis or on probation, or on officiating basis and whose such appointment has not ripened into permanent service, the termination of his employment does not deprive him of any right and cannot, therefore, be held to he a punishment. If, however, the temporary appointment is tenanted or a probationer removed on the basis of the allegations made against him, such termination, 10 removal or discharge cannot be held to be not affecting his rights or depriving him from the right to continue. The dismissal, under the circumstances, renders the employee ineligible for further employment on the basis of his alleged past conduct. In Samsher Singh v. State of Punjab and Another (1974-II-LLJ-A65) (SC), it was held that if a probationer is discharged on the basis of misconduct or inefficiency or for some reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it may, in a given case, amount to his removal from service. If, however, the authority decides to not to continue or extend the period of probation, it can discharge him without assigning any reason or holding an enquiry, giving him a chance to make good in other walks of life, without a stigma at the time of termination of probation. If, however, the probationer is charged of misconduct or inefficiency or corruption and his services are terminated without holding an enquiry, the Courts would interfere to protect his interests, notwithstanding that such employee was on probation or a temporary one. In this case, Krishna lyer, I., while concurring with the majority judgment, held at p 513 : "Again could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune ? If you conscientious seek to satisfy yourself about allegations some sort to enquiry you get caught in the coils of law, however harmlessly the order may he phrased. And so this sphinx complex has had to give way in later cases. In some cases the rule of guidance has been stated to be 'the substance of the matter', and the 'foundation' of the order. When does motive' trespass into 'foundation' ? When do we lift the veil to form to touch the substance' ? When the Court says so. These 'Freudian' frontiers obviously fail in the work-a-day world and Dr. Tripathi's observations in this context are not without force. He says : "As already explained, in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of the departmental enquiry a search for the 'substance of the matter' will be indistinguishable from a search for the motive (real, unrevealed object) and from (the apparent, or officially relieved object) in the present context has led to an unreal interplay of words and phrases wherein symbols like 'motive', 'substance', 'form' or 'direct' parade in different combinations without communicating precise situations or entities in the world of facts." After referring to a catena of authorities, the Supreme Court in Anoop Jaiswal v. Government of India and Another, (1984-I-LLJ-337) held at p 342 : "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." 14. Relying upon various judgments, the learned Counsel for the appellant has submitted that as the impugned order which amounted to casting a stigma was passed as a measure of punishment, the interference of the Court is necessary to protect the interests of the appellant. Even though the authorities relied upon by the learned Counsel were with respect to the members of the civil service of the Union or the State, yet the principle enunciated therein is equally applicable to the employees of the Corporations with the aid and on the basis of the 10 violations, of the principles of natural justice. Article 311 of the Constitution of India may not strictly be applicable in the case of the appellant, but as acknowledged, the rules of natural justice being the foundation and the fundamental concept in our constitutional system, it was necessary that before dismissing an employee on the basis of his misconduct or as a measure of punishment, the employer was to comply at least with the minimum principles of natural justice. The Supreme Court, in Rattan Lal Sharma v. Managing Committee of Dr. Hari Ram (Co-Education) Higher Secondary School and Others, (1993-II-LLJ-549) held at p 553 : "In Administrative Law, Rules of natural justice are foundational and fundamental concepts and now is well-settled that the principles of natural justice are part of the legal and judicial procedures. On the question whether the principles of natural justice are also applicable to the administrative bodies, formerly, the law Courts in England and India had taken a different view. It was held in Franklin v. Minister of Town and Country planning, 1947(2) All ER 289 that the duty imposed on the Minister was merely administrative and not being judicial or quasi-judicial, the principle of natural justice as applicable to the judicial or quasi-judicial authorities was not applicable and the only question which was required to be considered was whether the Minister had complied with the direction or not. Such view was also taken by the Indian Courts and reference may be made to the decision of this Court in Kishan Chand Arora v. Commissioner of Police, Calcutta and Others. . It was held that the compulsion of hearing before passing the order implied in the so Texan alteram applied only to judicial or quasi-judicial proceedings. Later on, the law Courts in England and also in India including this Court have specifically held that the principle of natural justice is applicable also in administrative proceedings. In the case of Breen v. Amalgamated Engineering Union 1971 (1) ALL ER 1148 Lord Morris Observed : "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed." It may be indicated herein that the aforesaid observation was quoted with approval by this Court in the decision in Maneka Gandhi v. Union of India . In State of Orissa v. Binapani Dei, (1967-II-LLJ-266), this Court also accepted the application of the principle of natural justice in the order which is administrative in character. It was observed by Shah, J. (para 12 of AIR) "It is true that the order is administrative in character, but even an administrative order which involves civil consequences must be made consistently with the rules of natural justice." Similar view was also taken in A. K. Kraipak and Others v. Union of India and Others , and the observation of Justice Hegde may be referred to at p. 157 of AIR : "Till very recently it was the opinion of the 40 Courts that unless the authority concerned was required by the law under which it functioned to act judicially, there was no room for the application of the rules of natural justice. The validity of that limitation is now 45 questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries. There are number of decisions where application of principle of natural justice in the decision-making process of the administrative body having civil consequence has been upheld by this Court but it is not necessary to refer to all such decisions. Prof. Wade in his Administrative Law (1988) at page 503, has very aptly observed that the principles of natural justice are applicable to almost the 10 whole range of administrative powers." 15. To rebut the arguments addressed on behalf of the appellant, the learned Counsel for the respondent has relied upon the judgment of the Supreme Court in Governing Council of kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar and Another . In that case, it was held that if an employee, who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge, then a plea cannot be taken that as his service was temporary or his appointment was on probation, there was no requirement of holding any enquiry, affording such an employee an opportunity to show that the charge levelled against him is either not true or it is without any basis. But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simpliciter after some preliminary enquiry it cannot be held that as because some enquiry had been made against him before issuance of order of termination it really amounted to his removal from service on a charge, as such penal in nature. In that case, the order of termination did not refer to any misconduct, lapse or other allegations, but only recited thus : "In accordance with the decision of the Governing Council at its meeting held on January 28, 1982 the services of Dr. Pandurang Godwalkar, Lecturer in Surgical Oncology (on probation), Kidwai Memorial Institute of Oncology, Bangalore are terminated with effect from the afternoon of January 30, 1982, as per Rule 4 of the Conditions of Service Rules (Annexure-2, Chapter 1) of so the Institute. He is paid one month's salary in lieu of one month notice required as per rules." To the same effect is the judgment of the Apex Court in Oil and natural Gas Commission and Others v. Dr. Md. S. Iskander Ali (1980-II-LLJ-155) and A. G. Benjamin v. Union of India (1967-I-LLJ-718), as have been relied upon by the learned Counsel. 16. On an analysis of the judgments referred to hereinabove and on the basis of submissions made on behalf of the parties, it can be said that the services of a temporary employee or an employee on probation can be terminated without holding enquiry or complying with the principles of natural justice, if such termination, removal or discharge is the result of the considerations pertaining to the misconduct or lapses of the concerned employee. The purpose is that, once the services are sought to be termitnated as no more required, no punishment can be inferred to have been inflicted upon such employee. However, if the order of termination is based upon allegations amounting to stigma upon the appellant, in relation to his employment, the holding of enquiry and the compliance of natural justice cannot be abandoned or forsaken. The employee cannotbe handedover an order of discharge containing therein the allegations of misconduct or such imputations amounting to misconduct, which may adversely affect him in getting future employment. The order of termination, dismissal or removal, if is couched in a language which emanates foult smell, the compliance of the principles of natural justice cannot be directed to be dispensed t with. The employer, who is not satisfied with r the conduct of the employee, is at liberty to get rid of him, but should not create circumstances which may result in permanent deprivation of the employment to such an employee. After the dawn of independence and half a century of freedom, the approach of serfdom is required to r be forsaken for ever. The employees have to be treated as respectable citizens of this great country and cannot be deprived of the acknowledged service benefits accruing to them, without having recourse to law and the rules applicable in the case. No person can be condemned. unheard and accusations made by the employer are required to be determined on the touchstone of either enquiry or the principles of natural justice. 17. In the instant case, it is, therefore, to he determined as to whether the order of dismissal of the appellant was such an order simpliciter or it amounted to stigma resulting in the direct or indirect forfeiture of his future rights or opportunities to get the employment. The technicalities of law cannot be permitted to come in the way of dispensation of justice. Camouflaging an order to removal simpliciter is also not permissible as this Court has the power of lifting is the veil to find out the true position with respect to the nature of the order and its consequential effects to which an employee can he subjected to. 18. A perusal of the order of termination of the appellant herein (Annexure-G) is, therefore, necessary to find out as to whether the same was an order simpliciter not extending his probation, or was an order of punishment, in the light of the alleged misconduct or the imputations contained therein, which related to appellant's service record. The said order has to be appreciated in the light of Rule 5 of the Rules, which defines the misconduct. Acting in a manner prejudicial to the interest of the Corporation, wilful insubordination or disobedience, neglect of work or negligence in the performance of duty and commission of any act subversive of discipline or of mood behaviourhave ID been termed to be 'misconduct', amongst other acts of commissions and omissions enumerated therein. The rule is admittedly illustrative and not exhaustive. Misconduct, in this context, has to be appreciated in the light of the service record, the allegations made and the consequences, which are likely to flow. 19. In the impugned order of dismissal, the respondent Corporation had alleged : "The performance appraisal of Sri Krishna Murthy for the period October 19, 1987 to March 22, 1988 by the M. D. revealed that there are some drawbacks with Sri Krishna Murthy and that his performance average at present. Pursuant to observations by Internal Audit regarding several irregularities committed by Sri Y. N. Krishna Murthy, he was 'censured' and 'warned' to be more careful in future vide memo cited at (6) above. In O.M. cited at (7) above Sri Y. N. Krishna Murthy was placed under suspension for cheating customers by wrong billing and for making wrongful gain. Charges were also framed against him. The Enquiry Officer who went into the charges held the charges as proved. Sri Y. N. Krishna Murthy was reinstated to duty vide O.O. dated January 4, 1992 cited at (8) above and a punishment of withholding one increment without cumulative effect was imposed an him. Following a report by the Deputy Manager (F and A) that Sri Krishna Murthy was not sending sales/stock statements pertaining to his showroom, a memo cited at (9) above was issued to him. The correspondence between Sri Y. N. Krishna Murthy that he was unable to prepare the sales/stock statements and the General Manager (Per- sonnel Deputy Marketing Manager that it was his duty to do so as in the case of 2, other went on from March 1992 to April 1992. However, Sri Y. N. Krishna Murthy did notfurnish the statements as required. Sri Y. N. Krishna Murthy along with J. S. A. working with him were found jointly responsible for shortage of 6 sarees and material amounting to Rs. 18,049.30 and recovery of Rs. 9,024.65 was ordered from him vide cited at (10) above. Sri Krishna Murthy filed a petition before the High Court on which the High Court granted a stay order. Hence the recoveries were stopped. Once again the question of furnishing sales/stock statements by Sri Y. N. Krishna Murthy came up in December, 1992 and a show-cause notice was issued to Sri Y. N. Krishna Murthy cited at (11) above. The performance appraisal of Sil Y. N. Krishna Munhy for the year ending March 31, 1993 stated that he cannot be trusted with responsibility and that he cannot take any constructive and appositive decisions. A show-cause notice was issued to him vide reference cited at (12) above for not being present at his place of duty. Since the explanation furnished by Sri Y. N. Krishna Murthy was found to be not satisfactory a penalty of 'Censure' was imposed with a direction to enter into his PARs vide dated August 2, 1993. On the basis of preliminary investigation report of the Manager (I.A.), dated October 21, 1992 it was ordered vide O.O. dated December 11, 1992 to recover the shortage of cash of Rs. 1,001.00 at Devatha Market Show Room at the rate of 50% of the loss from Sri Y. N. Krishna Murthy (i.e., Rs. 5001) and the rest from the other members of the staff. Sri Y. N. Krishna Murthy approached the Board of Directors in the appeal, but the Board in its Resolution No.1301, dated September 15, 1993 rejected the appeal and upheld the recovery order. For the reasons contained therein the probationary period of Sri Krishna Murthy was extended up to March 31, 1994 vide reference at (13) above. He was also advised vide dated November 15, 1993 that he should make attempts to improve his work. During inspection of the showroom at Devatha Market of which Sri Y. N. Krishna Murthy is incharge certain shortages were noticed for which Sri Y. N. Krishna Murthy was held responsible and a show cause notice was issued vide reference cited at (14) above. After going through the reply furnished by Sri Y. N. Krishna Murthy a fact finding enquiry was also conducted to arrive at the correct shortages and the persons responsible. It was found that Sri Y. N. Krishna Murthy, A. S. was responsible for the 45 shortage of saree valued at Rs. 4,103.25 and recovery was ordered vide cited at reference (15) above. Sri Y. N. Krishna Murthy was appointed as Assistant Sales Officer in the Company on 3 years contract. The contract period would he treated as probationary period and the management had the discretion to extend the probationary period. Due to various circumstances as narrated above his probationary period came to be extended up to March 31, 1994. The post of A. S. in the Company is a responsible position. The A. S. O. functions in charge of any one of the show rooms of the Company and is fully incharge of the stocks, cash and all other valuables of the Company in the show rooms. At any point of time the approximate value of such stock is Rs. 20 lakhs. Therefore the position of A.S.O. is one of trust and responsibility. The A.S.O. is also is required to exercise co-ordination with his superiors in the Marking Division in Head Office and also with his subordinate sales staff in the show room with a view to maximise sales. The A.S.O. is entrusted with a fair amount of discretion in dealing with customers, and hence he is expected to be vigilant in the performance of his duties and in taking due care of the stocks entrusted to him. A perusal of the confidential reports of Sri Y. N. Krishna Murthy and also the correspondence between him and the Head Office in the past several years reveals that Sri Y. N. Krishna Murthy is not suitable for the Post of A. S. O. Although Sri Y. N. Krishna Murthy was addressed more than once to improve his work and his probation was extended to give him an opportunity, he has not done so. Hence Sri Y. N. Krishna Murthy is discharged from service w.e.f. March 31, 1994 (A. N.)". 20. The allegations, as underlined hereinabove, clearly indicate that the order of discharge was not a simpliciter order of discharge, but was passed on the basis of the alleged conduct of the appellant, which, under the rules applicable in the case, if proved, would amount to misconduct. It has been argued on behalf of the respondents that reference to the allegations was, in effect, recital of his past record, with the object of deciding as to whether his probation was to be continued or not, and was not intended to be a punishment, on the basis of his alleged misconduct. The arguments, though attractive on the face of it, is devoid of any legal force, in as much as the allegations made in the order cannot be segregated. The order of discharge, taken as a whole, would only reflect the conduct of the appellant casting aspersions and reflections on his conduct, indicating his inefficiency, which is likely to adversely affect his future prospect relating to his employment and promotion. No employer, under ordinary circumstances, would offer any job to the appellant after perusing the impugned order, which reflects and refers to his inefficiency and misconduct in relation to his employment. With this letter in his hand, the appellant cannot find any job, except the disgrace of the society. The appellant may be a dishonest person or inefficient or not capable of performing the duties, as alleged, but such conclusions could be arrived at only after compliance of the service rules applicable or at least the principles of natural justice. It has rightly been held that, strictly speaking, the appellant may not be entitled to the benefit of rules, entitling him the benefit of holding an enquiry, but in no case he can be deprived of the benefits accruing to him by compliance of the principles of natural justice. The learned Single Judge was, therefore, not justified to hold that the impugned order had only referred to the earlier show-cause notices and the explanations and that the findings were only an examination of the performance and not referable to any pending charge of misconduct. He was also not justified to hold that mere reference to what had transpired earlier could not be held to cast a stigma. If the reference mentioned in the impugned order, as noted by the learned Single Judge would not have formed a part of the order of dismissal, the conclusions arrived at by the learned Single Judge could have been justified. But once the order of discharge and the alleged references are inseparable, it cannot be said that the order did not amount to casting a stigma on the appellant. The learned Single Judge was, therefore, not justified in dismissing the writ petition filed by the appellant. In the impugned order in the writ petition, it was held to be an order so of discharge on the basic of his alleged misconduct, which amounted to stigma, in relation to his employment with the respondent. 21. Under the circumstances, the appeal is allowed by setting aside the judgment of the learned Single Judge and quashing the order of discharge at Annexure-G, impugned in the writ petition. 22. Consequent upon the setting aside of the order impugned, the appellant is held entitled to his reinstatement and all other consequential benefits. This judgment would, however, not prevent the respondents, if so advised, to pass fresh appropriate orders for his removal, but only after the compliance of principles of natural justice. The respondents shall also be entitled to terminate the services of the appellant even retrospectively, on the basis of the allegations, as noted by them and proved after the compliance of the principles of natural justice. If the respondents decide to initiate action for discharge of the appellant within a period of one month from today and a notice in that behalf is issued, they will not be under obligation to pay to the appellant, the arrears of salary from the date of his dismissal vide Annexure-G, till the date of his reinstatement, consequent upon this judgment. In that event, the appellant shall be entitled to reinstatement forthwith and future salaries till the conclusion of the proceedings against him, if initiated by the respondents. If, after initiation of the proceedings and after allowing the appellant an opportunity to show cause, the allegations of misconduct are not proved and the proceedings dropped, the appellant in that eventuality, shall be entitled to the payment of the aforesaid arrears along with interest at the rate of 18% per annum. No orders as to costs. Dated September 12, 1996 Writ Appeal No. 1991 of 1994. S. Rajendra Babu, J.
1. I regret my inability to agree with the order made by the learned Chief Justice. I propose to so set out my view of the matter. The appellant was appointed by the respondent on contract basis for a period of three years in terms of a letter sent to him on August 21, 1987. The terms stated in the said letter are that for the said period the appellant would be on probation, liable to be extended at the discretion of the respondent from time to time and the appellant shall continue to be on probation even after three years until his services were confirmed. By an order made on October 1, 1993 the period of probation of the appellant was extended up to March 31, 1994. No order had been passed till October 1, 1993 either extending the period of probation or confirming the services of the appellant. On March 31, 1994, the appellant was discharged from service from the said date. Aggrieved by that action, the before this and seeking a to to c e him in quintal benefits.
2. In the said writ petition the petitioner raised three pronged attack on the action of the discharge of the petitioner.
3. It was firstly contended that the appellant was continued in service even after the initial period of probation and in the absence of any order of extension of probation or confirmation of service during the period of probation there is an implied confirmation and therefore the services of the appellant could not have been terminated, as if he was still on probation. The learned Single Judge on examination of this contention and after referring to decisions in M. K. Agarwal v. Gurgaon Gramin Bank and Others and Kedar Nath Bahl's case, (supra), held that the terms of appointment indicated that the confirmation would not automatically follow until an order of con formation is may and therefore the appellant's service could not be held to be impliedly confirmed at the end of the probation period; on the other hand by a specific order his probation had been continued by the order made on October 1, 1993 till March 31, 1994 and that order had not been challenged. Hence, the learned Judge he that the appellant was on probation till March 31, 1994. This conclusion of the learned Judge is sought to be assailed by the appellant that when the period of probation had been fixed as three years initially, when such power was not exercised within that period, the same could not have been extended further after the expiry of that period. I do not think the contention advanced on behalf of the appellant could be accepted.
4. The terms of employment as spelt out in the letter dated August 21, 1987 or the Rules as 10 applicable do not indicate that at the end of the period of probation the appellant would either be confirmed or discharged from service. On the other hand, the letter of appointment is clearly to the effect that even after the period of probation of three years the appellant would continue on probation till his services were confirmed. Therefore, when the confirmation would not automatically follow at the end of the specified period, the expiration of the period of probation does not necessarily lead to confirmation and an order confirming the appellant was required to be passed and no such order having been passed, it must be deemed that he counted in his post as a probationer. Therefore, continuation of the services of the appellant on probation even after the expiry of the period of three years from the date of the period of initial : appointment is not bad therefore, agree with i the view taken by the learned Single Judge on this aspect.
5. The second contention advanced is that the impugned order of termination of the services of the appellant in these proceedings is punitive in character. Thirdly, it is contended that even otherwise the impugned order casts a stigma on the appellant and therefore amounts to dismissal without enquiry and is bad in law.
6. The last two contentions raised before us being interrelated have to be dealt with together. Whenever a probationer has to he discharged from service a dilemma would arise for the employer to deal with as to what should be the form of the order-whether it should set out the reasons which forms the basis for discharge of the probationer or should it be taciturn without containing any details. In the order if the reasons for discharge are set forth, the same is liable to be attacked on the ground that the same so 1939 would cast a stigma, while if the reasons are not set forth such an order could be characterised as not a speaking order a mere camouflage to hide the real reasons for discharge, and if such reasons are examined the action could amount to punishment and therefore should be preceded an enquiry, which is fair and reasonable. In a situation where the order of termination is a mere discharge without alluding to the stigmazing results, could be an appraisal of the service profile indistinguishable from a search for the motive and from the apparent or officially avowed object. In this context, it should not merely lead to a jugglery of words like motiv substance or form without clearly bringing out the precise situations when reliance upon the same could be placed. Therefore, Courts have not hesitated to go behind the order challenged, whatever be its form, to ascertain the true character of the order. If the Courts were to come to a conclusion that in reality the order is one for punishment, it would declare so and give the necessary effect to the same. Thus, an examination of the decisions of the Supreme Court an employee or on temporary services could be stated to be one with stigma, if some specific charge had been made out and such charge was levelled in the course of the proceedings and discharge was made without any enquiry, the same would be bad. However, when the service of an employee is terminated during the period of probation or while on temporary basis by an order of termination even after some preliminary enquiry it cannot he held that the enquiry had been made against him before issuance of the order of termination and would not amount to removal from service on a charge as such penal in nature, if the order of termination does not refer to any misconduct, lapse or other allegations and such an order could not be characterised as stigmatizing an employee.
7. Therefore, the gist of the ratio in the decisions relied upon by the learned Counsel on either side would only indicate that unless a decision is reached that order is punitive in character either by reason of the contents of the order or by finding out from the record on the basis of which such order of discharge is made and thus the form of the order would not assume any significance. Irrespective of whether the reasons are set out in the order or not, the Courts would go behind the order and examine the circumstances leading to such discharge or termination of services of an employee. Irrespective of the form or content of the order, if such an exercise is to be done, then merely because the order of discharge or termination of service recites such circumstances as already contained in the service record of the probationer would not necessarily lead to the inference that the same would attach stigma. What is of essence in such a matter is whether in the course of the proceeding to discharge or terminate the services of an employee, the employer had attributed any acts of misconduct or acts of omission or commission which had not been subject-matters of past conduct, but a fresh act of conduct which forms the basis for discharge or termination of services. If the order merely reflects the past record, the same would not attach any fresh stigma, but stigma which had already attached to the concerned employee was only taken note of, which is already on record, cannot be stated to vitiate the order. To state that for purpose of a discharge or termination of a service of probationer, the past record is relevant and appraisal thereof is absolutely necessary before taking action thereto, merely because it is not spelt out in, the order would not affect the order but only in case where it is spelt out it would, lead to anomalous and illogical results. Therefore, I am of the view that when there is no direct nexus between the charge and the action taken and the order does not for the first time recite the acts of omission and commission on the part of the employees (sic) but refers to circumstances on which action had already been taken, the result is that such an order would not be bad.
8. It is argued that the order of discharge or termination simpliciter of a probationer enables such an employee to seek employment elsewhere and should not refer to his past conduct 45 and if it did he would not be in a position to seek such employment. It would in my view be too hazardous to rest a decision on the form of the order rather than looking to the substance or the basis of such an order for in case where a probasotioner is discharged from service, if he seeks employment elsewhere, the new employer will not be so naive as not to make further enquiries into the circumstance of the discharge, past service record being a relevant circumstance which an employer would take into consideration. In such an event could it be said that merely because the chances of fresh employment of a probationer whose services are discharged are dimmed by reason of the contents of the order and therefore the same is vitiated by stating that the same attaches stigma ? The new employer will certainly not depend upon the form of the order of discharge and will certainly make further enquiries into the matter. Therefore, the form or content of the order by itself will not determine as to whether the same would attach stigma or not.
9. In the present case the order of termination recites the circumstances leading to such discharge or termination on the basis of an appraisal of the service record of the petitioner and therefore cannot be characterised as attaching any stigma because the stigma, if any, stood attached by reason of the previous proceedings with conclusions thereon and not by reason of the impugned order. There is no direct nexus between the circumstances narrated in the order and the action now taken. In the absence of such, direct nexus do not think an order of discharge could he characterised as attaching any stigma or being punitive in character. Hence, the view taken by the learned Single Judge that the impugned order in these proceedings merely makes a reference to the past history to afford a background and not to any pending charge of misconduct and a mere recital of what had transpired earlier would not amount to giving a finding leading to punishment or cast a stigma. In that view of the matter, I think the appeal is liable to be dismissed.
Writ Appeal No. 1991 of 1994.
On the basis of judicial pronouncements of this Court, in view of the proviso to sub-section (2) of Section 98 and all the powers conferred upon me, the matter is directed to be listed before a third Judge. 'Me appeal shall thereafter stand disposed of in terms of the opinion of the third Judge.
Dated September 25, 1996 K.S. Bakthavatsalam, J.
Writ Appeal No. 1991 of 1994.
JUDGMENT
1. The petitions challenged Annexure-G by t which the petitioner was discharged from service with effect from March 31, 1994, in Writ a Petition No. 9752 of 1994.
2. The facts relating to the impugned order Annexure-G are : The petitioner was appointed as an Assistant Sales Officer with the respondent-Corporation by an order dated September 11, 1987 Annexure-B. It is necessary to extract condition offered to the petitioner which is I found in Annexure-A :
"Your appointment is on a contract basis for a period of three years which is terminable at the discretion of Karnataka Silk Industries Corporation with three months, notice or salary in lieu thereof. This three year period shall be treated as our probationary period, I which is liable to @e extended at the discretion of the management from time to time and you shall continue to he on probation even after three years, till your services are confirmed.
3. It seems he was posted as an Assistant Sales Officer and incharge of factory showroom at Mysore. He was transferred as Assistant Sales Officer, incharge of the Corporation showroom at Channapatna and while he was in service in Channapatna he was placed under suspension pending enquiry. He was reinstated from January 4, 1992, the appellant was working in Devatha Market showroom in Bangalore. As the appellant has been under probation the period was extended by an order dated October 1, 1993 up to March 31, 1994 vide Annexure-4. D. Within two months from the date of issue o order Annexure-D, dated December 6, 1993 the appellant was issued a show-cause notice for certain shortages of silk cloth with a direction to show-cause as to why disciplinary action be not so initiated against him. After perusing the reply of the appellant dated December 14, 1993 Annexure-F an order seems to have been passed on February 8, 1994 ordering recovery of Rs. 4,103.251 -. However, on March 31, 1994, the appellant has been served with the order Annexure-G. Being aggrieved by the action of the respondent, an order discharging the appellant, the appellant filed W. P. No. 9752 of 1994 before this Court challenging Annexure-G. Raveendran J. dismissed the writ petition. Hence this appeal.
4. The short point for consideration in this case is, whether the order of discharge-Annexure-G is an order simpliciter or it cast any stigma on the appellant.
5. The learned Counsel appearing for the appellant Sri Gopala Gowda contends that a reading of Annexure-G clearly shows that it is an order of termination as it has been passed by way of punishment. The learned Counsel relies upon the judgment of the Supreme Court in the case of Anoop Jaiswal, (supra), in support of his contention, that the order of termination casts a stigma on the appellant. According to the learned Counsel, though the order gives a narration of events occurred up to March 31, 1994, during the period in which the appellant was serving the Corporation, the last paragraph Of the order clearly casts a stigma on the appellant. A close reading of the entire order according to the learned Counsel for the appellant will give an impression to any reasonable person that the order is not an order of discharge simpliciter, but it has been passed by way of punishment. In the sense it casts stigma on the appellant as he is not suitable for the post of Assistant Sales Officer for the reasons set out in the last paragraph of the order. The learned Counsel also relied upon the decision of the Supreme Court in the case of State of Haryana v. Jagdish Chander (1996-II-LLJ-737) and also the judgment in the case of Allahabad Bank officers Association v. Allahabad Bank and Others (1996-II-LLJ-519).
6. Mr. B. C. Prabhakar, learned Counsel for the respondent - Corporation strenuously contended that the order passed by the Corporation cannot he said to he an order by way of punishment and it casts no stigma on the appellant. According to the learned Counsel for the respondent-Corporation, it is a pure order of termination simpliciter. The learned Counsel for the Corporation took pains to convince this Court that whenever a probationer is to be discharged, his past services have to be evolved by the employer and that has been done in this case. In the absence of any direct nexus between the circumstances narrated in the order and the action taken, it cannot be said that the order has been passed by way of punishment or the order cast stigma on the appellant. The learned Counsel relied upon the decision of the Supreme Court in the case of Governing Council of Kidwai Memorial Institute of Oncology (supra), in the case of Oil and Natural Gas Commission (supra), in the case of Samsher Singh (supra) and in the case of Union of India v. P. S. Bhatt (1981-I-LLJ-485) and in the case of Bishan Lal Gupta v. State of Haryana (1978-I-LU-316) and also in the case of Benjamin, (supra), in support of his contention and argued that the Supreme Court has held in these cases that no stigma is attached if such an order is passed and it is always open to the respondent-Corporation to look into the past record of the appellant before discharging the appellant from service as the appellant is a probationer has no right to continue in that post. The learned Counsel for the Corporation stated that by no stretch of imagination it can be said that the order Annexure-G has been passed by way of punishment. According to the learned Counsel for the Corporation, for every misconduct or lapse on the appellant, orders of censure or recovery has been passed against the appellant up to 1993 and a chance was given to the appellant to improve upon by extending the period of probation upto March, 1994 which opportunity the appellant failed to make use of As such, according to the learned Counsel for the Corporation there is nothing wrong on the part of the Corporation to pass such an order and it cannot be said that the order has been passed by way of punishment, it is an order of termination simpliciter.
7. I have considered the arguments of Mr. Gopal Gowda for the appellant and so Mr. Prabhakar for the Corporation. As I have already stated, the point involved is, whether the order of termination passed in this case is an order of termination simpliciter or it has been passed by way of punishment. In the sense, whether it cast any stigma on the appellant, it is necessary to extract last portion of the order Annexure-G to understand the arguments advanced on either side. The appellant has been appointed as I have already stated on September 11, 1987 the performance appraisal of the appellant for the period October 1987 to March 1988 reveals that, there are some draw-backs. So, he was censured on bond by an order dated March 24, 1988. It seems on (October, 1989 he was placed under suspension for cheating customers by wrong billing or for making wrongful gain, certain charges are also framed against the appellant. The Enquiry Officer went into the charges and the charges were proved. However, the appellant was reinstated on January 4, 1992 imposing punishment withholding of one increment without cumulative effect. Later, during September, 1992 an order of recovery has been made for the shortage of six sarees and the appellant seems to have filed a writ petition before this Court challenging the order of recovery. For the year ending March 31, 1993 the performance appraisal stated that the appellant cannot be trusted with responsibility and that he cannot take any constructive and positive decisions. A show-cause notice has been issued on June 23, 1993 and censure was imposed. Another recovery order has been passed against the appellant during December, 1992 and the appellant preferred an appeal to the Appellant Authority and it has been upheld. However, even though the appellant has been censured and orders of recovery were made upto October 1, 1993, his probationary period was extended by order dated October 1, 1993 Annexure-D upto March 31, 1994. Soon after the extension of the probationary period, a show-cause notice seems to have been issued on December 6, 1993 for recovery of certain shortages and an order of recovery has been made on February 8, 1994. Closely following this order, on March 31, 1994 Annexure-G seems to have been passed. The last paragraph of the order is extracted below : 'Sri Y. N. Krishna Murthy was appointed as Assistant Sales Officer in the Company on 13 years contract. The contract period would be treated as probationary period and the management had the discretion to extend the probationary period. Due to various circumstances as narrated above his probationary period came to be extended upto March 31, 1994. The post of A.S.O. in the company is a responsible position. Thelo' A.S.O. functions in charge of anyone of the showrooms of the company and is fully in charge of the stocks, cash and all other valuables of the Company in the showrooms. At any point of time the approximate value of is such stock is Rs. 20 lakhs. Therefore, the position of A.S.O. is one of trust and responsibility. The A.S.O. is also required to exercise co-ordination with his superiors in the Marketing Division in Head Office and also with his sub-ordinate sales staff in the showroom with a view to maximise sales. The A.S.O. is entrusted with a fair amount of discretion in dealing with customers, and hence he is expected to be vigilant in the performance of his duties and in taking due care of the stocks entrusted to him. A perusal of the confidential reports of Sri Y. N. Krishna Murthy and also the correspondence between him and the Head Office in the past several years reveals that Sri Y. N. Krishna Murthy is not suitable for the post of A.S.O. Although Sri Y. N. Krishna murthy was addressed more than once to improve his work and his probation was, extended to give him an opportunity, he has not done so.
Hence, Sri Y. N. Krishna Murthy is discharged from service w.e.f. March 31, 1994(A. N.). -
8. In my view, if the order is read as a whole, it cannot he said the order is an order of termination simpliciter. Surely, in my view a stigma is cast on the appellant. Though the earlier portion of the order narrates punishments imposed on the appellant and the appraisal reports with regard to the appellant towards the end of order Annexure-G the respondent has stated about the so tires and duties of the Assistant Sales Officer and has held that the appellant is not suitable for the post of Assistant sales Officer. This, in my view is enough to hold that the order is not an order of termination pure simpliciter but, it has been passed only by way of punishment.
9. The law with regard to discharge of probationer has been dealt with by the Supreme Court in the case of Sanuher Singh, (supra). The Supreme Court has held as follows :-
"No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the robationer is unsuitable for the job and Once must be discharged. No punishment is involved, in this. The authority may in some cases he of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in walks of life without a stica at the time of termination of probation.
The Supreme Court has referred the case of Jagdish Mitter, (supra), wherein the Supreme Court has held that a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment. It has also been held that substance of the order and not the form would be decisive. (See K. H. Phadnis v. State of Maharashtra ).
Krishna Iyer, I., in a concurring judgment has held as follows :
"Thus we see how membranous distinctions have been evolved between an enquiry merely to ascertain unsuitability and one held to punish the delinquent-too impractical and uncertain, particularly when we remember that the machinery to apply this delicate test is the administrator, untrained in legal nuances. The impact on the 'fired' individual, be it termination of probation or re moval from service, is often the same. Referring to the anomaly of the object of inquiry, test, Dr. Tripathi has pointed out :
The object of inquiry rule discourages this fair procedure and the impulse of justice behind it by insisting that the order setting up the inquiry will be judicially scrutinised for the purpose of ascertaining the object of the inquiry. Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and inuwtine ? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however harmlessly the order may be phrased ? And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be 'the substance of the matter' and the 'foundation' of. the order. When does 'motive' trespass into 'foundation When do we lift the veil of form to touch the substance ? When the Court says so. These 'Freudian' frontiers obviously fail in the work-a-day world and Dr. Tripathi's observations in this context are not without force. He says : "As already explained, in a situation where the order of termination purports to be mere so order of discharge without stating the stigrnatizing results of the departmental enquiry a search for the 'substance of the matter' will be indistinguishable from a search for the motive (real, unreyealed object) of the order. Failure to appreciate this relationship between motive (the real, but unrevealed object) and from (the apparent, or officially revealed object) in the present context had led to an unreal interplay of words and phrases wherein symbols like 'motive' substance. 'form' or 'direct' parade in different combinations without communicating precise situations or entities in the world of facts."
10. In Anoop Jaiswal's case, (supra), the Supreme Court has held as follows at p. 341 :
"The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2). 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, member. 5-.Y because of the form of the order, in giving effect to the rights conferred by law upon the employee. Case law discussed.
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 or foundation for the order should be read along with the order for the purpose ox' determining its 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 the incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground if the servant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.
11. In the case of Jagdish Chander, (supra), the Supreme Court had an occasion to consider an order of discharge. The Supreme Court has referred to the order of discharge in that case and held :
"The order of discharge reads thus at p. 738 :
"Const. Jagdish Chander No. 3/460 is hereby discharged under P. P. R. 12.21. with immediate effect i.e. June 1, 1992 A.N. as he is unlikely to prove an efficient police officer because he is habitual absentee, negligent to his duty and undisciplined."
It would thus be clear from the order of discharge that it is not an order of discharge simpliciter. On the other hand, the S.P. considered the record and found him to be habitual absentee, negligent to his duty and undisciplined. The findings of habitual absentee and indiscipline would necessarily cast stigma on his career and they would be an impediment for any of future employment elsewhere. Under those circumstances, the principles of natural justice do require that he should be given an opportunity to explain the grounds on which the S.P. proposes to pass an order of discharge and then to consider the explanation submitted by the Police Officer. Then the S. P. is competent to pass appropriate orders according to the rules. Since this part of the procedure had not been adopted, the order of discharge is vitiated by manifest error of law."
12. In the case of Governing Council of kidwai Memorial Institute of Oncology, (supra), the Supreme Court distinguished the case in Anoop Jaiswal, (supra) and held as follows :
"On behalf of the respondent reliance was placed on the case of Anoop Mswal, (supra). In that case the service of the appellant had been terminated during the period of 5 probation. On the materials on record, it was held by this Court that the order of termination really amounted to punishment because the real foundation of the action against the appellant was the act of misconduct on June 22, 1981. The aforesaid judgment is of no help to the respondent because in that case a clear finding was recorded by this Court that the service of the appellant had been terminated because of a particular misconduct alleged against him which had never been enquired into. So far the facts of the present case are concerned, the Governing Council examined the different reports in respect of the respondent during the zo period of probation and considered the question as to whether he should be allowed to continue in the service of the Institute. The decision appears to have been taken by the Governing Council on the total and overall assessment of the performance of the respondent, in terms of the condition of the appointment and Rule aforesaid."
13. The Supreme Court in this case has held, 30 the principle of tearing of the veil for finding out the real nature of the order shall be applicable only in the case where the Court is satisfied that there is a direct nexus between the charge so levelled and the action taken. In fact, the Counsel for the respondent relied upon heavily on this case, in support of his contention.
14. In the case of Oil and Natural Gas Commission, (supra), the Supreme Court upheld the order of termination simpliciter when the work of the probationer was found not satisfaction The Supreme Court has held as follows p. 16 "When the short history of the service of the probationer appointed in a temporary post clearly showed that his work had never been satisfactory and he was not found suitable for being retained in service and that was why even though some sort of an enquiry so was started, it was not proceeded with and no punishment was inflicted on him and in these circumstances, if the appointing authority considered it expedient to terminate the services of the probationer it could not be said that the order of termination attracted the provisions of Article 311, when the appointing authority had the right to terminate the service without assigning any reasons. In such a case even if misconduct, negligence, inefficiency might be the motive or the inducing factor which influenced the employer to terminate the services of the employee a power which the employer undoubtedly possessed, even so as under the terms of appointment of the employee such a power flowed from the contract of service, termination of service could not be termed as penalty or punishment. Further adverse remarks in the assessment roll and recommendation therein to extend the probationary period could not be said to indicate that, the intention of the appointing authority was to proceed against the employee by way of punishment.
15. In the case of P. 5. Bhatt, (supra), reversion to the original post from the appointment of t higher post on probation has been upheld by the Supreme Court on the ground that no stigma has been cast.
16. The Supreme Court had an occasion to consider the meaning of stigma in the case of Allahabad Bank Officers' Association, (supra). The Supreme Court has held as follows at c p.522 :
"It will, therefore, he necessary to first consider what is meant by stigma and also the cases wherein the orders have been regarded as stigmatic. Stigma, according to the dictionary meaning is something that detracts from the character or reputation of a person, a mark, sign etc., indicating that something is not considered normal or standard. It is i a blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame and mark or label indicating deviation from a norm. In the context of an order of termination or compulsory retirement of a Government servant stigma would mean at statement in the order indicating his misconduct or lack of integrity. The Supreme Court has observed, whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a 5 reasonable person would read or understand it."
17. In the case of Bishan Lal Gupta, (supra), the Supreme Court has observed as follows at p. 321 :
"It is impossible to lay down propositions which are so clear cut as to cover every conceivable case. Indeed, an attempt to do so may make the law too rigid. It is only if patent facts disclose a serious enough infringement of law as well as indubitably damaging and undeserved consequences upon a petitioner that the Court's conscience could be so moved as to induce it to interfere under Article 136 of the Constitution".
18. From principles laid down by the Supreme Court in all these cases cited supra, it is clear that it is impossible to lay down propositions which are so clear cut as to cover every conceivable case. As observed by the Supreme Court in Bishan Lal Gupta's case. which has been extracted above, the order Annexure-G in my view has to he interfered with by this Court. It is also to he stated, in all the cases decided by the Supreme Court the order of termination will he of two lines. The Supreme Court in all these cases has tried to look at the real reason by looking into the records to find-out whether it is an order of termination simpliciter or not. But on the facts of this case, a reading of Annexure-G in my view clearly will give any reasonable person an impression that the order is not an order of termination simpliciter am not for a moment suggesting that the narration of event alone i.e. what has happened prior to the order of termination will make it an order of punishment. A reading of the whole order as have already stated, especially the last paragraph clearly casts a stigma on the appellant. In my view the reputation of a probationer to some degree is affected if such an order is passed by an employer. So, in my view the order passed in this case Annexure-G by the respondent-Corporation cannot he held to he an order of termination simpliciter, but it casts stigma on the appellant. It has also been stated, the order of discharge and the references made in the order are inseparable and it cannot be said that it does not cast stigma on the appellant. The result is, the impugned order Annexure-G is quashed and set aside. The Registry is directed to place this opinion of this Court before my Lord Chief Justice for further posting of this case before the appropriate Bench. Dated October 1, 1996 R.P. Sethi, C.J. and S. Rajendra Babu, J.
Writ Appeal No. 1991 of 1994ORDER In view of difference of opinion, the appeal was referred to a third Judge for his opinion. He has agreed with the judgment, of the Chief Justice dated September 12, 1996. This appeal shall therefore, stand disposed of in terms of the directions contained in the judgment of the Chief Justice