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Apex Court Judgments on Termination of Probationer

1. Parshotam Lal Dhingra v. Union of India, (AIR 1958 SC 36)

A Constitution Bench opined as under:-

“28…. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.”

2. State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089

The Supreme Court considered several precedents and culled out following propositions:-

“(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.

(2) The circumstances preceding or attendant on the order of termination have to be examined in each case, the motive behind it being immaterial.

(3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.

(5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an enquiry officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.”

3. State of Bihar v. Shiva Bhikshuk Mishra [(1970) 2 SCC 871]

It was held as under:-

“5. We are unable to accede to the contention of the appellant that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of a government officer in the impugned order it cannot be held to have been made by way of punishment. The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. In Dhaba case [(1969) 3 SCC 603] , it was not found that the order of reversion was based on misconduct or negligence of the officer. So far as we are aware no such rigid principle has ever been laid down by this Court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a government officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct…. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.”

4. Samsher Singh v. State of Punjab, [(1974) 2 SCC 831)

It was held that

“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.The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside.”

It is apt to note that Krishna Iyer, J., who agreed with the learned Chief Justice, made the following concluding observations in Samsher Singh (supra) :-

“160…. Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? 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.”

5. Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, [(1980) 2 SCC 593

The Supreme Court opined that “a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in 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. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge.”

13. A probationer’s termination order was questioned in Anoop Jaiswal v. Govt. of India [(1984) 2 SCC 369]. The Apex Court held as under:-
“This Court considered the question whether termination of the appellant’s service, who was appointed to Indian Police Service and was on probation, by invoking Rule 12(b) of the Indian Police Service (Probation) Rules, 1954 was punitive in nature. The facts found by the Court were that while undergoing training at National Police Academy, Hyderabad, the Probationary Officers had delayed attending the ceremonial drill practice. The Director of the Academy called for explanation from all the probationers. The appellant was accused of having instigated others not to join ceremonial drill practice on time. He denied the allegation. Thereafter, his service was terminated by a non-stigmatic order. The appellant challenged the termination of his service on the ground of violation of Articles 14 and 311(2) of the Constitution. The writ petition filed by him was summarily dismissed by the Delhi High Court. This Court referred to the averments contained in the pleadings of the parties, the judgments in Parshotam Lal Dhingrav. Union of India [AIR 1958 SC 36 : 1958 SCR 828] , Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] , State of Punjab v. Sukh Raj Bahadur [AIR 1968 SC 1089 : (1968) 3 SCR 234] , Union of India v. R.S. Dhaba [(1969) 3 SCC 603] , State of Bihar v. Shiva Bhikshuk Mishra[(1970) 2 SCC 871] , R.S. Sial v. State of U.P. [(1975) 3 SCC 111 : 1974 SCC (L&S) 501 : (1974) 3 SCR 754] , State of U.P. v. Ram Chandra Trivedi [(1976) 4 SCC 52 : 1976 SCC (L&S) 542] and I.N. Saksena v. State of M.P. [AIR 1967 SC 1264 : (1967) 2 SCR 496] and held: (Anoop Jaiswal case [(1984) 2 SCC 369 : 1984 SCC (L&S) 256] , SCC p. 379, paras 12-13) “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 or 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.”
14. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences [(1999) 3 SCC 60, a two-Judge Bench considered the appellant’s challenge to the termination of his service after. The Apex Court opined as under:-
“(1) In what circumstances, the termination of a probationer’s services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive?
(2) When can an order of termination of a probationer be said to contain an express stigma?
(3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination?
(4) To what relief?
While dealing with the first point, the Court referred to various earlier judgments and observed: (Dipti Prakash Banerjee case [(1999) 3 SCC 60 : 1999 SCC (L&S) 596] , SCC pp. 70-72, paras 19 & 21) “19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab[AIR 1963 SC 531] there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21 : 1999 SCC (L&S) 439] and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36 : 1958 SCR 828] to the concept of ‘purpose of enquiry’ introduced by Shah, J. (as he then was) inState of Orissa v. Ram Narayan Das [AIR 1961 SC 177] and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] and to post-Samsher Singh [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] case-law. This Court had the occasion to make a detailed examination of what is the ‘motive’ and what is the ‘foundation’ on which the innocuous order is based.
21. If findings were arrived at in an enquiry 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’ [Ed.: The word “founded” is emphasised in the original also.] on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee 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 enquire 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 allegations would be a motive and not the foundation and the simple order of termination would be valid.”
(emphasis supplied)
23. the Court considered the correctness of the order passed by the High Court which had allowed the writ petition filed by the State and set aside the order passed by the U.P. Public Services Tribunal for reinstatement of the appellant. The competent authority had terminated the appellant’s service in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. It was argued on behalf of the appellant that the order by which his service was terminated, though innocuous, was, in fact, punitive in nature because it was founded on the allegation that he had fought with other colleagues and used filthy and unparliamentary language. In the counter-affidavit filed on behalf of the respondents, it was admitted that there was no adverse material against the appellant except the incident in question. The original record produced before the Tribunal revealed that the appellant’s service was terminated on account of his alleged involvement in the quarrel between the constables. After noticing various precedents, this Court observed: (SCC pp. 167-68, paras 27-30) “27. The whole case-law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulum; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi case [(1976) 4 SCC 52 : 1976 SCC (L&S) 542] that there was a conflict of decisions on the question of an order being a simple termination order or a punitive order, but every time the court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of ‘motive’ and ‘foundation’ was always kept in view.
28. The important principles which are deducible on the concept of ‘motive’ and ‘foundation’, concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of ‘motive’.
29. ‘Motive’ is the moving power which impels action for a definite result, or to put it differently, ‘motive’ is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry.”
15. The judgment of Pavanendra Narayan Verma (supra) was considered by Supreme Court in Palak Modi (supra). It was held as under:-
“The proposition laid down in none of the five judgments relied upon by the learned counsel for the appellants is of any assistance to their cause, which were decided on their own facts. We may also add that the abstract proposition laid down in para 29 in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520 : 2002 SCC (L&S) 170] is not only contrary to the Constitution Bench judgment in Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] , but a large number of other judgments–State of Bihar v. Shiva Bhikshuk Mishra [(1970) 2 SCC 871] , Gujarat Steel Tubes Ltd. v. Mazdoor Sabha [(1980) 2 SCC 593 : 1980 SCC (L&S) 197] and Anoop Jaiswal v. Govt. of India [(1984) 2 SCC 369 : 1984 SCC (L&S) 256] to which reference has been made by us and to which attention of the two-Judge Bench does not appear to have been drawn. Therefore, the said proposition must be read as confined to the facts of that case and cannot be relied upon for taking the view that a simple order of termination of service can never be declared as punitive even though it may be founded on serious allegation of misconduct or misdemeanour on the part of the employee.”

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