# Miss Manju Shikdar v. G.M. State Bank of Indore and others

- **Citation:** (2007) 3 ILRA 1014
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-21
- **Case number:** Civil Misc. Writ Petition No. 16109 of 1996
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/miss-manju-shikdar-v-g-m-state-bank-of-indore-and-others-40985
- **Pages:** 8

## Headnote

Constitution
of
India,
Art.
226termination of probationer-inspite of
extension
of
probation
period-not
improved-after
assessment
of
workperformance found unsatisfactory-heldsuch termination neither can be founded
on misconduct nor stigmatic nor amount
to colorable exercise of power-warrant
no interference.

Held: Para 21 & 22

The petitioner in the present case was
also similarly not only given opportunity
to improve herself but even period of
probation was extended yet she could
not avail opportunity and the authorities
found her unsuitable for the job and
unfit for confirmation.

Considering the facts of the present case
as well as after careful reading of the
impugned order of termination and the
law
laid
down
in
above
discussed
authorities, we are clearly of the view
that the impugned order of termination
is neither founded on alleged misconduct
of the petitioner nor can be said to be
stigmatic nor is vitiated on account of
alleged biased or colourable exercise of
power on the part of the appointing
authority. The writ petition, therefore,
devoid of merit and is accordingly
dismissed.
Case law discussed:
AIR 1999 SC-983, AIR 2002 SC-23, 2003 (96)
FLR-1002 (SC), 2005 (106) FLR-1214, J.T.
2005 (7) SC-512, J.T. 1991 (1) SC-108, 2002
(1) SCC-743, 2003 (3) SCC-263, AIR 2005 SC344, AIR 1996 SC-2030, AIR 2006 SC-3471,
AIR 1987 SC-2408

## Text

1014 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 16109 of 1996

Miss Manju Shikdar

...Petitioner
Versus
The General Manager (Planning and
Development), State Bank of Indore and
others

...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Srivastava
Sri Swarn Kumar Srivastava

Counsel for the Respondents:
S.C.

Constitution
of
India,
Art.
226termination of probationer-inspite of
extension
of
probation
period-not
improved-after
assessment
of
workperformance found unsatisfactory-heldsuch termination neither can be founded
on misconduct nor stigmatic nor amount
to colorable exercise of power-warrant
no interference.

Held: Para 21 & 22

The petitioner in the present case was
also similarly not only given opportunity
to improve herself but even period of
probation was extended yet she could
not avail opportunity and the authorities
found her unsuitable for the job and
unfit for confirmation.

Considering the facts of the present case
as well as after careful reading of the
impugned order of termination and the
law
laid
down
in
above
discussed
authorities, we are clearly of the view
that the impugned order of termination
is neither founded on alleged misconduct
of the petitioner nor can be said to be
stigmatic nor is vitiated on account of
alleged biased or colourable exercise of
power on the part of the appointing
authority. The writ petition, therefore,
devoid of merit and is accordingly
dismissed.
Case law discussed:
AIR 1999 SC-983, AIR 2002 SC-23, 2003 (96)
FLR-1002 (SC), 2005 (106) FLR-1214, J.T.
2005 (7) SC-512, J.T. 1991 (1) SC-108, 2002
(1) SCC-743, 2003 (3) SCC-263, AIR 2005 SC344, AIR 1996 SC-2030, AIR 2006 SC-3471,
AIR 1987 SC-2408

(Delivered by Hon'ble S. Rafat Alam, J.)

1. The order dated 20.01.1999,
dismissing the writ petition in default,
having been recalled vide order of date
passed on the recall application, the writ
petition is restored to its original number.

2. Since the matter is pending since
1996, with the consent of learned counsel
for the parties, we have heard the matter
on merits.

3. The petitioner, who was working
as probationer in the State Bank of Indore
(hereinafter referred to as the "Bank"),
has been terminated by the General
Manager of the Bank vide order dated
16.08.1995 on the ground that after
adjudging her work and performance she
has not been found fit for confirmation
and, therefore, has been terminated during
the period of probation.

4. Learned Counsel for the petitioner
contended that though the petitioner was
probationer, yet the impugned order cast
stigma upon the petitioner and, therefore,
could not have been passed without
giving
any
opportunity.
He
further
contended that the petitioner has made a
complaint against the Branch Manager,
respondent no.4 and it is on account of the
3 All] Miss Manju Shikdar V. G.M. State Bank of Indore and others
1015
mala fide action of the respondent no. 4,
the impugned order has been passed and,
therefore, it is a colourable exercise on the
part of the respondents.

5. Having heard learned counsel for
the petitioner and perusing the record, we
do not find any force in the submission.
Admittedly, the petitioner was appointed
by the General Manager of the Bank and
the orders for extension of his probation
and termination have also been passed by
the General Manager. The work and
performance of the petitioner has been
assessed at the level of the General
Manager. The alleged complaint made by
the petitioner against the Branch Manager
would not ipso facto taint the order passed
by the General Manager with bias or mala
fide inasmuch as, there is no such
allegation against the General Manager.
He being a much higher officer than
Branch Manager, it cannot be conceived
that a Branch Manager could have
influenced such a superior officer for
getting an order passed which, otherwise
the superior officer was not inclined
unless
proved
by
cogent
material.
Therefore, the allegation of colourable
exercise of power is unacceptable and
even otherwise is not substantiated from
anything on record. On the contrary the
impugned order of termination makes it
clear that the General Manager has
assessed the work and performance of the
petitioner and after finding her unfit for
confirmation has terminated since she was
only a probationer.

6. It is well settled that a probationer
has no right to hold the post and if the
work and performance of the probationer
is not found satisfactory during the period
of probation or extended probation he/she
can be terminated.
7. Coming to the next submission
that mention of the fact that her work and
performance
has
not
been
found
satisfactory and she is not fit for
confirmation, therefore, she is being
terminated, whether can make the order of
termination stigmatic and by way of
punishment
instead
of
termination
simplicitor, we find that the mention of a
fact about assessment of work and
performance of an employee would not
make the order of termination ipso facto
punitive or stigmatic warranting any
interference from this Court.

8. On this aspect of the matter we
find that the issue is no more res integra
having already been considered by the
Apex Court time and again and it would
be useful to refer some of such authorities
which are binding upon this Court also.

9. In Dipti Prakash Banerjee Vs.
Satyendra Nath Bose, AIR 1999 SC 983
the order of termination mentions the
word ''unsatisfactory work and conduct'.
After review of earlier entire case-law on
the subject, the Apex Court did not find
the aforesaid order to be stigmatic and
held as under:

"At the outset, we may state that in
several cases and in particular in State of
Orrisa Vs. Ram Narain Dass it has been
held
that
the
use
of
the
word
''unsatisfactory work and conduct' in the
termination order will not amount to a
stigma"

10. Similarly, in Pavanendra
Narayan Verma Vs. Sanjay Gandhi
Post Graduate Institute of Medical
Sciences and another, AIR 2002 SC 23
it was mentioned that ''the work and
conduct was not found satisfactory'.
1016 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Following
Dipti
Prakash
Banerjee
(Supra), the Apex Court in Pavanendra
Narayan Verma (Supra) held as under:

"Returning now to the facts of the
case before us. The language used in the
order of termination is that the appellant's
"work and conduct has not been found to
be satisfactory". These words are almost
exactly those, which have been quoted in
Dipti Prakash Banerjee's case as clearly
falling within the class of non stigmatic
orders of termination. It is, therefore, safe
to conclude that the impugned order is
not ex facie stigmatic" (para 31)

11. In Dhananjay vs. Chief
Executive Officer, Zila Parishad, Jaina,
2003 (96) FLR 1002 (S.C.) mention of
the word 'suspension' in the order of
termination was not held to be stigmatic
or punitive. In State of U.P. and others
versus
Ram
Bachan
Tripathi,
2005(106)FLR 1214 the Hon'ble Apex
Court considering as to when an order of
termination simplicitor can be said to be
stigmatic held as under:-

"We shall first examine the plea
relating to the stigma. Usually a stigma is
understood to be something that is
detraction
from
the
character
or
reputation of a person. It is blemish,
imputation, a mark or label indicating a
deviation from a norm."(Para 6)
"Mere description of a background
fact cannot be called as stigma. In the
termination order it was merely stated
that the show cause notices were issued
and there was no response. This can by
no stretch of imagination be treated as a
stigma as observed by the Tribunal and
the High Court."(Para 7)

12. In Rajasthan State Road
Transport Corporation & others vs.
Zakir Hussain, JT 2005 (7) SC 512 the
Hon'ble Apex Court following its earlier
judgment in the case of State of Uttar
Pradesh & another vs. Kaushal Kishore
Shukla, JT 1991 (1) SC 108 held:-

"In State of Uttar Pradesh & another
vs. Kaushal Kishroe Shukla this Court has
observed in Para 6 as under:-

"The High Court held that the
termination of respondent's services on
the basis of adverse entry in the character
roll was not in good faith and the
punishment
imposed
on
him
was
disproportionate. It is unfortunate that the
High Court has not recorded any reasons
for this conclusion. The respondent had
earned an adverse entry and complaints
were made against him with regard to the
unauthorized audit of the boys fund in an
educational institution, in respect of
which a preliminary inquiry was held and
thereupon, the competent authority was
satisfied that the respondent was not
suitable for the service. The adverse entry
as well as the preliminary inquiry report
with
regard
to
the
complaint
of
unauthorized audit constituted adequate
material
to
enable
the
competent
authority to form the requisite opinion
regarding the respondent's suitability for
service. Under the service jurisprudence a
temporary employee has no right to hold
the post and his services are liable to be
terminated
in
accordance
with
the
relevant service rules and the terms of
contract of service. If on the perusal of
the character roll entries or on the basis
of preliminary inquiry on the allegations
made
against
on
employee,
the
competent authority is satisfied that the
employee
is
not
suitable
for
the
3 All] Miss Manju Shikdar V. G.M. State Bank of Indore and others
1017
whereupon the services of the temporary
employee are terminated, no exception
can be taken to such an order of
termination."
(Para
20)
(emphasis
added)

13. Similar situation arises in the
case of State of Punjab Vs. Balbir
Singh, 2002(1) SCC 743. The order of
discharge mention the words "unlikely to
prove an efficient police officer." Further
before passing the aforesaid order of
discharge it appears that Shri Balbir
Singh, who was found to have consumed
liquor and misbehaved with a lady
constable was medically examined and
thereafter discharge order was passed.
The appeal, which was filed before the
Deputy Inspector General of Police, was
rejected and while rejecting the appeal, he
referred to the aforesaid facts and stated
that the discharge order was correct. Shri
Balbir Singh challenged the order of
discharge on the basis of the averments
contained therein as well as in the order of
the Deputy Inspector General of Police.
The Hon'ble Apex Court upholding the
aforesaid order of discharge held as
under;-

"In the present case, order of
termination cannot be held to be punitive
in nature. The misconduct on behalf of the
respondent was not the inducing factor
for the termination of the respondent. The
preliminary enquiry was not done with the
object of finding out any misconduct on
the part of the respondent, it was done
only with a view to determine the
suitability of the respondent within the
meaning of Punjab Police Rule 12.21. The
termination was not founded on the
misconduct but the misbehaviour with a
lady constable and consumption of liquor
in office were considered to determine the
suitability of the respondent for the job, in
the loight of the standards of discipline
expected from police personnel."(para 17)

14. In Mathew P. Thomas vs.
Kerala State Civil Supply Corporation
Ltd. and others, (2003) 3 SCC 263 after
following
Dipti
Prakash
Banerjee
(Supra) and Pavanendra Narayan Verma
(Supra), the Hon'ble Apex Court has
observed as under:-

"From a long line of decisions it
appears to us that whether on order of
termination is simplicitor or punitive has
ultimately to be decided having due
regard to the facts and circumstances of
each case. Many a times the distinction
between the foundation and motive in
relation to an order of termination either
is thin or overlapping. It may be difficult
either to categorize or classify strictly
orders of termination simplicitor falling
in one or the other category, based on
misconduct as foundation for passing the
order of termination simplicitor or on
motive on the ground of unsuitability to
continue in service. If the form and
language of the so called order of
termination simplicitor of a probationer
clearly indicate that it is punitive in
nature or/and it is stigmatic there may not
be any need to go into the details of the
background
and
surrounding
circumstances in testing whether the
order of termination is simplicitor or
punitive. In cases where the services of a
probationer are terminated by an order of
termination simplicitor and the language
and form of it do not show that either it is
punitive or stigmatic on the face of it but
in some cases there may be a background
and attending circumstances to show that
misconduct was the real basis and design
to terminate the services of a probationer.
1018 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
In other words, the façade of the
termination order may be simplicitor, but
the real face behind it is to get rid of the
services of a probationer on the basis of
misconduct. In such cases it becomes
necessary to travel beyond the order of
termination simplicitor to find out what in
reality is the background and what
weighed with the employer to terminate
the services of a probationer. In that
process it also becomes necessary to find
out whether efforts were made to find out
the suitability of the person to continue in
service as he is in reality removed from
service
on
the
foundation
of
his
misconduct."(Para 11)

15. In Registrar, High Court of
Gujarat and another vs. C.G. Sharma,
AIR 2005 Supreme Court 344 the
Hon'ble Apex Court has held as under:-

"We are also satisfied, after perusing
the Confidential Reports and other
relevant vigilance filed etc. that the
respondent is not entitled to continue as a
judicial Officer. The order of termination
is termination simplicitor and not punitive
in nature and, therefore, no opportunity
needs to be given to the respondent
herein. Since the overall performance of
there was found to be unsatisfactory by
the High Court during the period of
probation. It was decided by the High
Court that the services of the respondent
during the period of probation of the
respondent be terminated because of his
unsuitability for the post. In this view of
the
matter,
order
of
termination
simplicitor cannot be said to be violative
of Articles 14, 16 and 311 of the
Constitution of India. The law on the
point is crystallized that the petitioner
remains probationer unless he has been
confirmed on the basis of the work
evaluation. Under the relevant Rules
under
which
the
respondent
was
appointed as a Civil Judge, there is no
provision for automatic or deemed
confirmation and/or deemed appointment
on the regular establishment or post, and
in that view of the matter, the contentions
of the respondent that the respondent
services were deemed to have been
continued on the expiry of the probation
period, are misconceived."

16. Thus as has been held by the
Apex Court in Ram Bachan Tripathi
(Supra) mere description of background
fact cannot be treated to constitute stigma.
The term 'stigma' has to be understood in
its plain meaning as something that is
detraction from the character or reputation
of a person. It is blemish, imputation, a
mark or label indicating a deviation from
a norm The assessment of work and
performance
and
the
recording
of
satisfaction of the authority concerned
that he is not satisfied with the work and
performance regarding fitness of the
employee concerned would not make the
order stigmatic since it is not a blemish on
the character and reputation of the person
concerned but it reflects on the capacity
and efficiency of the incumbent with
respect to the work for which he/she was
employed.

17. In Allahabad Bank Officers
Association and another Vs. Allahabad
Bank and others, AIR 1996 SC 2030 the
Apex Court while considering as to
whether
an
order
of
compulsory
retirement can be treated to be stigmatic
and in what circumstances, held that if it
contains an statement casting aspersion on
the conduct of the employee, it would be
stigmatic but if it merely highlights the
unsuitability of the employee, it is an
3 All] Miss Manju Shikdar V. G.M. State Bank of Indore and others
1019
order simplicitor. The Court held that
expression like "want of application",
"lack of potential" and "found not
dependable" when made in relation to the
work of the employee would not be
sufficient to attract the charge that they
are stigmatic.

18. The aforesaid observation has
been referred to and relied upon recently
in Abhijit Gupta Vs. S. N. B. National
Centre, Basic Sciences and others, AIR
2006 SC 3471 observing:

"The real test to be applied in a
situation where an employee is removed
by an innocuous order of termination is:
Is he discharged as unsuitable or is he
punished for his misconduct?.." (para-14)

19. Another argument was raised in
Abhijit Gupta (Supra) that when the
words referring to unsuitability etc. are
mentioned in the order, if they are read by
the future employer it may prejudice the
future employment of the employee and
in that view of the matter it should be
treated to be stigmatic. However, the
Apex Court rejected the above contention
by relying on its earlier decision in
Ravindra Kumar Misra, Vs. U.P. State
Handloom
Corporation
Ltd.
and
another, AIR 1987 SC 2408 and it would
be useful to reproduce para 12 and 13
dealing with the above contention as
under:

"12. -It referred to Dipti Prakash
Banerjee (supra) and pointed out that in
Dipti Prakash Banerjee (supra) the
termination
letter
expressly
made
reference to an earlier letter which had
explicitly referred to all the misconducts
of the employee and a report of an inquiry
committee which had found that the
employee was guilty of misconduct and so
the termination was held to be stigmatic
and set aside. Finally, this Court said that
whenever a probationer challenges his
termination the court's first task will be to
apply the test of stigma or the 'form' test.
If the order survives this examination the
'substance' of the termination will have to
be found out. What this Court further
observed in para 29 is crucial and of
great relevance :

"Before considering the facts of the
case before us one further, seemingly
intractable, area relating to the first test
needs to be cleared viz. what language in
a termination order would amount to a
stigma? Generally speaking when a
probationer's appointment is terminated it
means that the probationer is unfit for the
job, whether by reason of misconduct or
inaptitude, whatever the language used in
the termination order may be. Although
strictly speaking the stigma is implicit in
the termination, a simple termination is
not stigmatic. A termination order which
explicitly states what is implicit in every
order of termination of a probationer's
appointment, is also not stigmatic. The
decisions cited by the parties and noted
by us earlier, also do not hold so. In order
to amount to a stigma, the order must be
in a language which imputes something
over and above meter unsuitability for the
job."
13. In the case of the appellant before us,
the record in uncertain terms makes it
clear that every time the appellants
attention was drawn to his deficiencies
and he was repeatedly advised to improve
his behaviour, conduct and discharge of
work. True, that in some of the letters
there was intemperate language used (the
appellant was also equally guilty of doing
that). Notwithstanding the intemperate
1020 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
language, we are unable to accept the
contention of the appellant's counsel that
the letter dated 7-4-1998 indicates that
the appellant was being charged with the
misconduct and, therefore, being removed
from service. Read as a whole, the letter
gives the impression that the removal of
the appellant from service was only
because the respondents, after giving a
long rope to the appellant, had come to
the conclusion that the appellant's service
was unsatisfactory and there was no hope
of his improvement."

20. The order of termination
simplicitor, it is no doubt, can be passed
by the employer in accordance with the
terms of appointment or the relevant rules
since
a
temporary
employee
or
a
probationer has no right to hold the post
and is liable to be terminated in
accordance with law. The order of
termination simplicitor can be challenged
on the ground of being violative of rule or
if it is by way of punishment founded on
misconduct. The distinction between
foundation and motive has been explained
in Dipti Prakash Banerjee (Supra), and
in para 21 of the judgement the Court
says:

"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" 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. From a long line of decisions it
appears to us that whether an order of
termination is simplicitor or punitive has
ultimately to be decided having due
regard to the facts and circumstances of
each case. Many a times the distinction
between the foundation and motive in
relation to an order of termination either
is thin or overlapping. It may be difficult
either to categorize or classify strictly
orders of termination simplicitor or on
motive on the ground of unsuitability to
continue in service."( para 9) (emphasis
added)
"When the factual scenario of the
present
case
is
considered
in
the
background of legal principles set out
above, the inevitable conclusion is that
the High Court was not justified in
interfering
with
the
order
of
termination."(para 10)

21. The petitioner in the present case
was also similarly not only given
opportunity to improve herself but even
period of probation was extended yet she
could not avail opportunity and the
authorities found her unsuitable for the
job and unfit for confirmation.

22. Considering the facts of the
present case as well as after careful
reading of the impugned order of
termination and the law laid down in
above discussed authorities, we are
clearly of the view that the impugned
order of termination is neither founded on
3 All] Dhirendra Singh V. The Collector, Kanpur Dehat and others
1021
alleged misconduct of the petitioner nor
can be said to be stigmatic nor is vitiated
on account of alleged biased or colourable
exercise of power on the part of the
appointing authority. The writ petition,
therefore,
devoid
of
merit
and
is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2007

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 39528 of 2006

Dhirendra Singh

...Petitioner
Versus
The
Collector,
Kanpur
Dehat,
and
another

...Respondents

Counsel for the Petitioner:
Sri Kr. R.C. Singh

Counsel for the Respondents:
S.C.

Constitution
of
India-Art.
226Suspension
Order-allegations-No
seriousness in achieving the target of
recovery-in
absence
of
efficiency,
inability on the part of employee-not
amount to misconduct-No disciplinary
proceeding under Rule 1999 could be
initiated-suspension order Quashed.

Held: Para 14

In view of the aforesaid exposition of
law and considering the allegations
contained in the suspension order and
charge sheet, I am of the view that the
allegations
levelled
against
the
petitioner do not amount to 'misconduct'
and, therefore, proceeding under 1999
Rules cannot be initiated against him.
The impugned order of suspension,
therefore, cannot sustain.
AIR 1979 SC-1022, 1992 (4) SCC-64, 2004 (5)
SCC-689, 2002 SC-1124

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri R.C. Singh, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. Despite time having been granted
to the respondents, no counter affidavit
has been filed till date. However, learned
counsel for the petitioner submitted that
he is raising a legal issue that the
impugned order of suspension dated
07.06.2006 and the charge sheet cannot be
sustained
under
law,
inasmuch
as
assuming the charges mentioned in the
charge sheet to be true they do not
constitute misconduct and, therefore, no
disciplinary inquiry can be conducted
against the petitioner. Learned Standing
Counsel, in view of the nature of the
arguments advanced by learned counsel
for the petitioner, stated that the writ
petition may be heard on merits and he
does not propose to file any counter
affidavit. Therefore, with the consent of
learned counsel for the parties, under the
Rules of the Court, this matter has been
heard and is being decided finally.

3. Learned counsel for the petitioner
referring to the impugned order of
suspension and the charge sheet pointed
out that the only allegation levelled
against the petitioner is that he did not
take interest in work as a result whereof
the recovery of Government Revenue is
not up to the target and he has failed to
take effective steps to increase the same.
He contended that the allegations, even if
treated to be correct, at the best shows
inefficiency on the part of the petitioner
and
do
not
constitute
misconduct.