# State Bank of India, Corporate Center, Mumbai & Ors v. Rajesh Kumar & Anr

- **Citation:** (2015) 1 ILRA 22
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-04
- **Case number:** Special Appeal No. 1088 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-bank-of-india-corporate-center-mumbai-ors-v-rajesh-kumar-anr-43082
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Termination
of Assistant clerk-during probation periodon ground during written examination
petitioner
allowed
another
person
by
personification-hence appointment being
void ab inito-on basis of hand writing
expert signature on admit card found
different than admitted signature-Single
Judge quashed termination being punitive
in nature-can not be passed without full
fledge enquiry-confirmed-so far 50% back
wages concern shall be subject to outcome
of disciplinary proceeding if Bank decide to
initiate disciplinary proceeding as per
direction of Single Judge-order modifiedappeal disposed of.
Held: Para-8 & 9

## Text

22
 INDIAN LAW REPORTS ALLAHABAD SERIES
admittedly her father has remarried
whereas her natural mother has not
performed re-marriage, the real mother
Shaista Anjum appears to be best person
for having the custody and care of the
infant girl Amal Irfa. The learned writ
court
has
rightly
ordered
the
father/appellant to hand over the minor
child Amal Irfa and we find no good
ground to interfere in the said order.
21. The special appeal is liable to be
dismissed and is hereby dismissed. In
compliance of the order dated 8.10.2014
passed by the writ court whereby the writ
court had fixed the specific date for
delivery of child, the interim custody of
child Amal Irfa has already been given to
her real mother Mrs. Shaista Anjum in the
court. The minor Amal Irfa shall remain
in custody of her mother till she attains
the age of puberty. The appellant Mohd.
Irfan shall bear all the expenses necessary
for her proper maintenance till she attains
the age of puberty. The father shall have
the right to visit and see his daughter
Amal Irfa once in a month at the house of
some common relative which the party
may decide with the help of their learned
counsel.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2014
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal No. 1088 of 2014
State Bank of India, Corporate Center,
Mumbai & Ors.
 ...Appellants
Versus
Rajesh Kumar & Anr.
...Respondents
Counsel for the Appellants:
Sri S.K. Kakkar
Counsel for the Respondents:
A.S.G.I., Sri Siddharth Khare
Constitution of India, Art.-226-Termination
of Assistant clerk-during probation periodon ground during written examination
petitioner
allowed
another
person
by
personification-hence appointment being
void ab inito-on basis of hand writing
expert signature on admit card found
different than admitted signature-Single
Judge quashed termination being punitive
in nature-can not be passed without full
fledge enquiry-confirmed-so far 50% back
wages concern shall be subject to outcome
of disciplinary proceeding if Bank decide to
initiate disciplinary proceeding as per
direction of Single Judge-order modifiedappeal disposed of.
Held: Para-8 & 9
8.
In this view of the matter, the order of
the learned Single Judge insofar as it directs
reinstatement of the respondent and holds
that the termination should have been
preceded by a full fledged disciplinary
enquiry, cannot be faulted. As the record
before the Court would indicate, the
termination of service was preceded by a
report of a forensic expert. The forensic
expert opined that the material produced
before
him
establishes
an
act
of
impersonation. In a disciplinary enquiry, if
this allegation is to be proved, the
employee, who was a probationer, would
have an opportunity of stating his defence
and rebutting the case of the Bank. But
more importantly, once it is evident from
the
order
of
termination
that
the
cancellation of appointment was on account
of a misconduct allegedly committed by the
respondent, a disciplinary enquiry ought to
have been held.
9. However, on the issue of back wages
and other consequential benefits, we are
of the view that the learned Single
Judge,
while
exercising
jurisdiction
under Article 226 of the Constitution,
1 All]. State Bank of India, Corporate Center, Mumbai & Ors. Vs. Rajesh Kumar & Anr.
23
ought to have taken due steps to structure
the relief so as to protect the public
interest. We deem it appropriate and
proper to grant liberty to the State Bank of
India to hold a disciplinary enquiry against
the respondent in accordance with law.
The competent authority would consider
whether, in accordance with the applicable
service rules, the respondent should be
placed under suspension in contemplation
of a disciplinary enquiry. We direct that the
Bank shall take a decision on whether it
intends
to
commence
a
disciplinary
proceeding against the respondent within
a period of three months of the receipt of a
certified copy of this order. In the event
that within the aforesaid period of three
months, the Bank decides to hold a
disciplinary
enquiry
against
the
respondent in terms as aforesaid, the
impugned direction of the learned Single
Judge for the payment of 50% back wages
and other consequential benefits, shall
stand set aside and the ultimate decision
in regard to the payment of the back
wages and other consequential benefits
shall abide by the result of the disciplinary
proceedings.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. This appeal arises from a
judgment of the learned Single Judge
dated 5 November 2014.
2. The respondent applied for
appointment on the post of an Assistant
Clerk in pursuance of an advertisement
which was issued by the State Bank of
India in August 2009. The respondent was
appointed on 3 December 2010 and joined
his services as an Assistant Clerk at Dohri
Ghat Branch of the Bank in district Mau.
He was deputed for training and on
successful completion thereof, he was
placed on probation by an order dated 13
June 2011. The probationary period was
extended by three months since the work
of the respondent was not found to be
satisfactory.
The
services
of
the
respondent were terminated by an order
dated 27 August 2011 of the Regional
Manager at Gorakhpur by cancelling his
appointment, treating it as void ab initio.
3. The ground on which the order of
appointment was cancelled was that at the
written examination conducted by the
Bank on 8 November 2009 in pursuance
of the recruitment process, it was not the
respondent
who
had
appeared
but,
according to the Bank, some one else had
appeared against the candidature of the
respondent impersonating him. The Bank
treated this as a suppression of a material
fact that the respondent had not appeared
at the written examination and had
allowed some one else to appear. The
appointment was treated as void ab initio
particularly, placing reliance on Clause 17
(i) of the General Instructions, which
stipulated that if it was detected at any
stage of the recruitment that a candidate
does not fulfil the eligibility norms and/or
that the candidate had furnished any
incorrect
or
false
information
or
suppressed
any
material
fact,
the
candidature would stand cancelled and if
such shortcomings are detected even after
appointment, the services are liable to be
terminated. Similarly, reliance was placed
on a condition of the letter of appointment
under which suppression of material facts
would lead to the appointment being
regarded as void ab initio.
4. The Bank filed a counter affidavit
in response to the petition filed by the
respondent challenging the order of
termination. The case in the counter
affidavit was that a re-verification was
done after the appointment was made,
when the Bank had called upon the
24
 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent to submit his photographs and
also provide his signatures. In the
meantime, the Gorakhpur Office of the
Bank received the file from the Zonal
Office,
which
had
conducted
the
examination,
which
contained
the
photographs of the person who had
appeared at the written examination as
well as in the interview along with the call
letter. According to the Bank, the
photographs submitted by the respondent
did not tally with those of the person who
had appeared at the written examination
giving rise to an apprehension of
impersonation. The Branch Manager of
the Bank, by a letter dated 29 April 2011,
informed the controlling authority to have
the matter investigated. Thereafter, the
matter was referred to a hand-writing
(forensic) expert for verification of the
thumb impression and the signatures on
the call letter of the present incumbent
who was actually working in the Bank.
The report of the forensic expert was
relied upon by the Bank in support of its
contention that the respondent had been
guilty of impersonation. The report of the
forensic expert dated 6 July 2011 was
annexed to the counter affidavit and,
insofar as is material, reads as follows:
"On
the
basis
of
the
above
differences in the pattern and the flow of
ridges, the thumb impression of Right
Thumb of the person who appeared in the
Examination marked as DTI-1 which is
on the Call Letter taken at the time of
examination
is
different
with
the
specimen thumb impression of Right
Thumb of Sri Rajesh Kumar marked as
RTI-2."
5. On these facts, the learned Single
Judge came to the conclusion that the
termination of service of the respondent
was for an act of impersonation and fraud.
Hence, the termination of the respondent
was not a termination simpliciter, but the
foundation and basis of the termination
was a misconduct of impersonation in the
written examination. The learned Single
Judge relied upon a letter of the Bank
dated
13
September
2011,
which
specifically contained a statement that the
respondent had been impersonated at the
written examination. This, it was held,
would amount to a stigma warranting a
proper
disciplinary
enquiry
before
termination. The learned Single Judge has
directed reinstatement with payment of
50% back wages.
6. When this special appeal came up
for hearing on 27 November 2014, the
Court directed that another special appeal,
being Special Appeal No.998 of 2014 be
also listed together with the present
special appeal since common issues have
been raised.
7. During the course of the hearing,
it is clear from the records that the basis
and foundation of the order of termination
is an allegation that the respondent did not
appear at the written examination which
was conducted by the Bank on 8
November
2009
and
had
been
impersonated by some one else. The
foundation and basis of the order of
termination is an act of misconduct by the
respondent. The Bank has terminated the
services of the respondent on the basis
that it was not the respondent who had
appeared at the written examination but
some one else had appeared on his behalf,
as a result of which, the employment was
procured by an act of fraud and by
suppressing material facts. The order of
termination is not even facially an order
of termination simpliciter since the order
1 All]. Rakesh Yadav & Anr. Vs. State of U.P.
25
itself carries a stigma by referring to the
fact that the respondent had been
impersonated at the written examination.
8. In this view of the matter, the order
of the learned Single Judge insofar as it
directs reinstatement of the respondent and
holds that the termination should have been
preceded by a full fledged disciplinary
enquiry, cannot be faulted. As the record
before the Court would indicate, the
termination of service was preceded by a
report of a forensic expert. The forensic
expert opined that the material produced
before
him
establishes
an
act
of
impersonation. In a disciplinary enquiry, if
this allegation is to be proved, the employee,
who was a probationer, would have an
opportunity of stating his defence and
rebutting the case of the Bank. But more
importantly, once it is evident from the order
of termination that the cancellation of
appointment was on account of a misconduct
allegedly committed by the respondent, a
disciplinary enquiry ought to have been held.
9.
However, on the issue of back
wages and other consequential benefits, we
are of the view that the learned Single
Judge, while exercising jurisdiction under
Article 226 of the Constitution, ought to
have taken due steps to structure the relief
so as to protect the public interest. We deem
it appropriate and proper to grant liberty to
the State Bank of India to hold a
disciplinary enquiry against the respondent
in accordance with law. The competent
authority would consider whether, in
accordance with the applicable service
rules, the respondent should be placed under
suspension
in
contemplation
of
a
disciplinary enquiry. We direct that the
Bank shall take a decision on whether it
intends to commence a disciplinary
proceeding against the respondent within
a period of three months of the receipt of
a certified copy of this order. In the event
that within the aforesaid period of three
months, the Bank decides to hold a
disciplinary
enquiry
against
the
respondent in terms as aforesaid, the
impugned direction of the learned Single
Judge for the payment of 50% back wages
and other consequential benefits, shall
stand set aside and the ultimate decision
in regard to the payment of the back
wages and other consequential benefits
shall
abide
by
the
result
of
the
disciplinary proceedings.
10.

The
special
appeal
is,
accordingly, disposed of. There shall be
no order as to costs.
--------
ORIGINAL JURISDICTION
CRIMIINAL SIDE
DATED: LUCKNOW 15.12.2014
BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.
U/S 482/378/407 No. 1277 of 2007
Rakesh Yadav & Anr.
...Applicants
Versus
State of U.P.
 Opp. Party
Counsel for the Applicants:
Dr. Lalta Prasad Mishra, Sri Abhishek Ranjan
Counsel for the Respondents:
Govt. Advocate
Cr.P.C. Section 482-Offence under section
302/307 IPC-applicants seeking quashing of
order-rejecting application u/s 207 for
inspection of Maruti Car by prosecutionbefore
-committal
of
case-learned
Magistrate rightly taken view that car not
withing definition of 'document' under
Section
3
of
Evidence
Act-held
such
application nothing but to prolong the
proceeding-misconceived-rejected-direction