# DIPTI PRAKASH BANERJEE ~ v. SATVENDRA NATH BOSE NATIONAL CENTRE FOR BASIC <:: SCIENCES, CALCUTTA AND OTHERS

- **Citation:** [1999] 1 S.C.R. 532
- **Court:** Supreme Court of India
- **Decided:** 1999-02-10
- **Case number:** Civil Appeal No. 750 of 1999
- **Bench:** M. Jagannadha Rao, D.P. Mohapatra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dipti-prakash-banerjee-v-satvendra-nath-bose-national-centre-for-basic-sciences-16545
- **Pages:** 23

## Headnote

Service Law-Termination of services of probationer without
departmental enquiry---{Jrder of termination ref erring to conduct of the
c probationer during the entire period of probation-Probatio11er initially served
a letter maki11g serious allegatio11s of misconduct-Later a11other letter extracting fi11dings of a11 inf annal I11qui1y Committee about probationer's involvemellt in a scufj1e a11d his "misdeeds" like obtai11i11g false signatures-Whether
such fi11di11gs of misconduct co11stituted 'motive' or 'fou11dation' of the order
D of tennination-Held, they constituted the 'f ou11datio11' and hence the order
of tennination required to be set aside.
Service Law-Terniination of services of probationer without
•
departme11tal e11quiry---{Jrder of tenni11atio11 ref erring to an earlier letter extracting fi11di11gs of a11 earlier inf annal I11quiry Committee about probationer's
E involvement in a scuffle and his 'misdeeds' like obtaining false signatures-Held, words used in proceedings referred to in tenni11atio11 order were
in the nature of a stigma; order liable to be set aside 011 that ground as well.
Service Law-Tennination of probationer's services without departmenta/ inquiry-Termi11utio11 held to be illegal-Probationer not gainfully
F employed-Held, probationer entitled to reinstateme11t and backwages till date
of rei11stateme11t from date of tenni11ation a11d to continuity of service.
Service Law-Terminatio11 of services without departmental enquiry-When could it be said that misconduct was the 'foundation' of order
G or temiination and when 011/y the 'motive' for such tennination-Held, where
findings of misconduct arrived at in an inquiry behind the back of the
employee, the order of tennination to be treated as 'founded' on such allegation and would be bad; where no inquiry held, the allegatio11s would be a
1
motive a11d the order of tenni11ation would be valid.
•
H
Service Law-Tenninatio11 of services without inquiry-Whether words
532
-
l'
D.P. BANERJEE v. S.N. BOSE NATIONAL CEN'IRE FOR BASIC SCIENCES 533
casting stigma could be gather~d from proceedings leading up to order of A
)
tennination even if the order itself contained no such words--Held, yes.
The appellant was appointed on January 11, 1995 as Office Super·
intendent in the respondent organisation, on probation for one year on
condition that he might be confirmed after one year provided the administration was satisfied with quality of the appellant's service. In a letter
to the appellant dated December 11, 1995 the respondent stated that
appellant had prepared false bills and that be had misbehaved with women
academic staff members. The appellant sent a reply denying the allega·
tions. Thereafter the appellant's probation was extended by six months
from May 2, 1996.
B
c
On October 17, 1996 the Director of the Respondent wrote to the
Appellant pointing out 'serious deficiencies' in the latter's performance.
Reference in this letter was made to the findings of an informal inquiry
committee which had looked into the appellant's complaint against a
Helper. The letter extracted the findings of the committee to the effect that D
the appellant's behaviour before it was reprehensible; that he had been
involved in a scuffie; that he had committed other 'misdeeds like obtaining
false signatures' and that he was a person of'dubious character'. This was
followed by a report of an Administrative Officeer on October 17, 1996
which was totally in the appellant's favour. On October 31, 1996 the E
appellant's probation was extended for a further period of six months.
By an order dated April 30, 1997, the Appellant's services were
terminated. Reference was made in the order to the appellant's unsatisfac·
tory performance during initial period of probation and to the letter dated
October 17, 1996. The order stated that the respondent had 'closely F
watched and examined your conduct, performance, ability and capacity
during the whole period of probation but your performance is fou

## Text

_Characters 0–39,817 of 53,516. This is a partial read: ask again with offset=39817 for what follows._

A
DIPTI PRAKASH BANERJEE
~
v.
SATVENDRA NATH BOSE NATIONAL CENTRE FOR BASIC
<::
SCIENCES, CALCUTTA AND OTHERS.
B
FEBRUARY 10, 1999
(M. JAGANNADHA RAO AND D.P. MOHAPATRA, JJ.)
Service Law-Termination of services of probationer without
departmental enquiry---{Jrder of termination ref erring to conduct of the
c probationer during the entire period of probation-Probatio11er initially served
a letter maki11g serious allegatio11s of misconduct-Later a11other letter extracting fi11dings of a11 inf annal I11qui1y Committee about probationer's involvemellt in a scufj1e a11d his "misdeeds" like obtai11i11g false signatures-Whether
such fi11di11gs of misconduct co11stituted 'motive' or 'fou11dation' of the order
D of tennination-Held, they constituted the 'f ou11datio11' and hence the order
of tennination required to be set aside.
Service Law-Terniination of services of probationer without
•
departme11tal e11quiry---{Jrder of tenni11atio11 ref erring to an earlier letter extracting fi11di11gs of a11 earlier inf annal I11quiry Committee about probationer's
E involvement in a scuffle and his 'misdeeds' like obtaining false signatures-Held, words used in proceedings referred to in tenni11atio11 order were
in the nature of a stigma; order liable to be set aside 011 that ground as well.
Service Law-Tennination of probationer's services without departmenta/ inquiry-Termi11utio11 held to be illegal-Probationer not gainfully
F employed-Held, probationer entitled to reinstateme11t and backwages till date
of rei11stateme11t from date of tenni11ation a11d to continuity of service.
Service Law-Terminatio11 of services without departmental enquiry-When could it be said that misconduct was the 'foundation' of order
G or temiination and when 011/y the 'motive' for such tennination-Held, where
findings of misconduct arrived at in an inquiry behind the back of the
employee, the order of tennination to be treated as 'founded' on such allegation and would be bad; where no inquiry held, the allegatio11s would be a
1
motive a11d the order of tenni11ation would be valid.
•
H
Service Law-Tenninatio11 of services without inquiry-Whether words
532
-
l'
D.P. BANERJEE v. S.N. BOSE NATIONAL CEN'IRE FOR BASIC SCIENCES 533
casting stigma could be gather~d from proceedings leading up to order of A
)
tennination even if the order itself contained no such words--Held, yes.
The appellant was appointed on January 11, 1995 as Office Super·
intendent in the respondent organisation, on probation for one year on
condition that he might be confirmed after one year provided the administration was satisfied with quality of the appellant's service. In a letter
to the appellant dated December 11, 1995 the respondent stated that
appellant had prepared false bills and that be had misbehaved with women
academic staff members. The appellant sent a reply denying the allega·
tions. Thereafter the appellant's probation was extended by six months
from May 2, 1996.
B
c
On October 17, 1996 the Director of the Respondent wrote to the
Appellant pointing out 'serious deficiencies' in the latter's performance.
Reference in this letter was made to the findings of an informal inquiry
committee which had looked into the appellant's complaint against a
Helper. The letter extracted the findings of the committee to the effect that D
the appellant's behaviour before it was reprehensible; that he had been
involved in a scuffie; that he had committed other 'misdeeds like obtaining
false signatures' and that he was a person of'dubious character'. This was
followed by a report of an Administrative Officeer on October 17, 1996
which was totally in the appellant's favour. On October 31, 1996 the E
appellant's probation was extended for a further period of six months.
By an order dated April 30, 1997, the Appellant's services were
terminated. Reference was made in the order to the appellant's unsatisfac·
tory performance during initial period of probation and to the letter dated
October 17, 1996. The order stated that the respondent had 'closely F
watched and examined your conduct, performance, ability and capacity
during the whole period of probation but your performance is found to be
unsatisfactory and you are considered unsuitable for the post against
which you have been appointed".
The appellant's writ petition challenging the order of termination G
was dismissed by Single Judge of the Calcutta High Court. A Division
Bench of that Court dismissed his further appeal.
•
In this Court it was contended for the appellant that the order of
termination was illegal since the findings arrived at behind his back in an H
534
SUPREMECOURTREPORTS ·
[1999] 1 S.C.R.
A informal inquiry constituted the foundation of the termination order.
B
Secondly, the material on which the order of termination was based
contained words amounting to a 'stigma'. For the respondent it was
maintained that it had terminated the appellant's services after giving him
opportunities to improve and it had thus acted fairly. There was no
question of any stigma in the termination order nor was it a case where
certain findings were arrived at which could be the foundation of the order.
Allowing the appeal, this Court
HELD : 1.1. The definite conclusions of misconduct evident on the
C face of the letter dated 11.12.1995 were part of the foundation of the
impugned order and it was not a case of mere motive. On this ground, the
order requires to be set aside. [552-G-H]
1.2. The findings of the informal inquiry committee were the foundation for the impugned order and could, in law, be arrived at only in a
D regniar departmental inquiry. [553-F]
E
'
Bishan Lal Gupta v. State of Haryana, [1978) 1 SCC 202, referred to.
Hindustan Paper Corporation v. Pumendu Chakraborty, [1996) -11
sec 404, distinguished.
1.3. If findings were arrived at in inquiry as to misconduct, behind
the back of the officer or without a regnlar departmental enquiry, the
simple order of termination was to be treated as 'founded' on the allegations and would be bad. But if the inquiry was not held, no findings w~re
arrived at and the employer was not inclined to conduct an inquiry but, at
F
the same time, did not want to continue the employee against whom there
were complaints, it would only be a case of motive and the order would n
1ot
be bad. Similar was the position if the employer did not want to inquire
into the truth of the allegations because of delay in regular departmental
proceedings or he was doubtful about securing adequate evidence. In su~h
G a circumstance, the allegations would be a motive and not the foundation
and the sil.nple order of termination would be valid. [545-E-F]
Madan Gopal v. State of Punjab, AIR (1963) SC 531; R.S. Gupta v.
U.P. State Agro Industries Corporation Ltd., J.T. (1998) 8 S.C. 585; Purshottam Lal Dhingra v. Union of India, [1958) SCR 828; State of Orissa v. Ram
H Narayan Das, [1961) 1 SCR 606; Samsher Singh v. State of Punjab, [1974)
•
D.P. BANERJEE v. S.N. BOSE NATIONAL CENTRE FOR BASIC SCIENCES 535
2 SCC 831; Gujarat Steel Tube v. Gujarat Steel Tubes Mazdoor Sangh, [1980]
;; SCC 593; State of Punjab v. Sukh Raj Bahadur, [1968] 3 SCR 234 and
A.S. Benjamin v. Union of India, Civil Appeal No.1341 of (1996) dt.13.12.96
SC, referred to.
2.1. The words used in connection with the findings of the Inquiry
Committee about the scuffie and about the appellant obtaining false
signatures were in the nature of a stigma. Thus on the ground of 'stigma'
also the impugned order was liable to be set aside. [553-D]
A
B
2.2. It depended on the facts and circumstances of each case and the
langnage or words employed in the order of termination of the probationer C
to judge whether the words employed amounted to stigma or not. [549-D-E]
Samsher Singh v. State of Punjab, [1974] 2 SCC 831; Bishan Lal Gupta
v. State of Haryana (supra), [1978] 1 SCC 202; Kamal Kishore Lakshman v.
Pan American world Abways, [1987] 1SCC146; Allahabad Bank Officer's
Association v. Allahabad Bank, [1996] 4 SCC 504; Hari Singh Mann v. State D
of Punjab, [1975] 1 SCC 774; State of Orissa v. Ram Narayan Das, AIR
(1961) SC 177; Ravindra Chandra v. Union of India, AIR (1963) SC 1552;
State of Guja!at v.Akhilesh C. Bhargav, [1987] 4 SCC 482; State of Bihar v.
Gopi Kishore Prasad, AIR (1960) SC 689; Jagdish Mitter v. Union of India,
AIR (1964) SC 449; State of U.P. v. Madan Mohan Nagur, AIR (1967) SC E
1260; Kunwar Arnn Kumar v. U.P. Hill Electronics Corporation, [1997] 2
sec 191; Chandu Lal v. Pan American World Airways, [1985] 2 SCC 727;
Jagdish Prasad v. Sachiv Zila Gaon Committee, [1986] 2 SCC 338; Union
of India v. R.S. Dhabe, [1969] 3 sec 603 and High Court of Judicature at
Patna v. Pandey Madan Mohan Prasad Sinha, [1997] 10 SCC 409, referred
to.
2.3. Words amounting to 'stigma' need not be contained in the order
of termination but may also be contained in an order or proceeding
referred to in the order of termination or in an annexure thereto and would
vitiate the order of termination. [551 -H; 552-A]
Indrapal Gupta v. Managing Committee, [1984) 3 SCC 384; Hindustan
Paper Corporation v. Purendu Chakraborty, [1996] 11 SCC 404; Oil &
Natural Gas Commission v. Md. S. Iskendu, [1980] 3 SCC 428; Unit Trost
of India v. T. Bijaya Kumar, (1992) 5 Serv. L.R. 855 SC; Principal, Institute .
F
G
of P.G. Medical Education & Research, Pondicherry v. S. Ande~. [1995] H
536
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A Suppl. 4 SCC 609; Oswal Pressure Die Caning Industry v. Presiding Officer,
B
c
D
E
(1998] 3 sec 225, referred to.
.
3. The appellant was entitled to reinstatement and backwages till
date of reinstatement from the date of termination and to continuity of
service. [554-F]
State of Haryana v. Jagdish Chander, [1995) 2 SCC 567 and Managing
Director, ECIL v. B. Karunakar, [1993) 4 SCC 727, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 750 of
1999.
;
From the Judgment and Order dated 23.4.98 of the Calcutta High
Court in MA.T. No. 1690 of 1997.
J. Gupta, Ms. Rana Mukherjee and Ms. Sumita Mukherjee for the
Appellant.
S.K. Jain and AP. Dhamija for the Respondents.
!
The Judgment of the Court was delivered by
M. JAGANNADHA RAO, J. Leave granted.
This Civil Appeal has been filed by the appellant questioning the
correctness of the judgment of the Calcutta High Court in M.A.T. No.1691)
of 1997 dated 23.4.1998. By that judgment, the Division Bench affirmed t~
judgment of the learned Single Judge dated 15.5.1997 in W.P. No. 8484(\\()
of 1997 dismissing the writ petition tjled by the appellant, a probationer
F and refusing to quash the order dated 30.4.1997, terminating his probatiori.
I
The facts of the case in brief are as follows:
'
The appellant was appointed on 11.1.1995 as Office Superintenderit
in the respondent organisation, namely, Sri Satyendra Nath Bose Natiomh
G Centre for Basic Sciences, Calcutta The order of appointment dated
11.1.1995 stated that the appellant would be on probation for one year and
that he might be confirmed after one year provided the administration was
satisfied with the quality of the appellant's service. His pay scale was to be
in the scale of Rs.1400-1600-2300-2600 with allowances. The appellant
H joined on 2.5.1995. As we are concerned with the question of validity of
)
....
D.P. BANERJEE'· S.N. BOSE NATIONALCEN1RE F,ORBASIC SCIENCES (M. JAGANNADHARAO, J.] 537
the appellant's termination of probation, it is necessary to refer to the A
events that took place during the period of probation.
On 11.12.1995, the Director of the respondent organisation informed
the appellant that the appellant's work was not satisfactory on several
counts. The points mentioned in this letter are as follows:-
"(i) Your handling of the movement to the new campus was good
till the good impression was spoiled by your refusal to handle the
furniture in the Director's room and your statements about other
administrative staff members, which were not corroborated by
academic members present. Later movement to the' JD Block by
Prof. A.Mookerjee and the Director's office found you noncooperative.
(ii) You have been preparing false bills; the fact that they were
passed by your immediate superior does not mitigate your guilt.
(iii) Your handling of quotations about cleaning agencies, xerox
machines, purchases of stationery etc. were faulty and several times
you were told to redo the whole job. Unfortunately your performance has not improved even after repeated advice.
(iv) You have misbehaved with women academic staff members;
one of them has even submitted a written complaint.
(v) You are rather frequently absent from office premises and the
faculty members complained about your absence. Your handling
B
c
D
E
of the room allocations in the guest house, confirmatory reply to
F
people asking for accomodation, and general supervision have
been unsatisfactory, In general your attitude to office work leaves
much to be desired.
It is expected that you would rectify the faults noted above and G
improve your performance in the corning months, so that your
confirmation could be favourably considered."
On 30.4.1996, the appellant was informed that he was on probation
and his confirmation would be considered soon. On 15.4.1996, the Director
wrote another letter stating as follows:
H
538
A
B
c
D
E
SUPREME COURT REPORTS
[1999] 1 S.C.R.
"1. It appears that your attitude concerning the guests for the guest
house has not shown any improvement. When Dr.R.Bhat fell sick
with chicken pox and was in quarantine for three weeks, you were
nowhere to be seen, and the A.O. was also not seen to take any
interest. similarly when a Canadian professor (Professor Dragland)
fell sick, you were not to be found.
· Most of the time, you left the work to be done by others, who
had to do extra work for your inefficiency.
Y
2. You have not done a proper job of releasing the houses at DB
17 and CD 85. It is known that the date 31.1.1996 is not the actual
date of release of DB 17 and the landlord showed us proof that
this was so.
3. You have not explained how the revenue stock verification was
done by you and the A.O.
Please refer to SNB/DIR/ADM/95- 96/84 dated 20.2.1996 about
stock verification (especially numbering and locating new furniture). Has any progress been made? No activity on this important
job has been noticed by me.
Please report to me on point 3 by April 16, 1996.
Your performance leaves a lot to be desired and you must show
evidence of good work to the academic staff members to merit
confirmation."
F
The appellant submitted an elaborate reply of five pages denying all
the allegations and giving his version of the incidents mentioned against
him, and also sought for a copy of the Written Complaint given by the
woman 'academic' staff member. He pointed out that though as per the
order of the Director, he was to report to the Administrative Officer, the
G Director was perhaps sending the above letters without consulting the said
Administrative Officer.
The report dated 25.4.1996 of the Administrative Officer to the
Director gives a contrary version. It states that the appellant was found to
be an "excellent working hand, conscientious and willing" to take responH sibility, that he had always been discharging his assigned works even
D.P. BANEtUEE '· S.N. BOSE NATIONAL CENTRE FOR BASIC SCIENcES [M. JAGANNADHARAO, J.] 539
)
despite constraints, that he was regular and punctual, and was conducting A
himself very well in the discharge of his duties even when there was no
helping hand and that "his service during the period of probation has been
extremely satisfactory".
But the Director issued a further letter dated 30.4.1996 stating that
the appellant's performance during the period of probation had been
reviewed and stating that "regrettably your performance has been far from
satisfactory", that by letters dated 11.12.1995 and 15.4.1996 his attention
had been drawn to various areas of unsatisfactory performance, but no
improvement was discernible. It was stated that in order to afford the
appellant an opportunity to improve performance and in order to enable
the organisation to consider the appellant's case favourably for confirmation, his probationary period was being extended by six months from
2.5.1996. The letter stated that it was hoped that the appellant would
improve his performance generally and also in the areas pointed out to
him.
On 17.10.1996, the Director wrote to the appellant that the
appellant's performance in the previous six months was again assessed and
that there were 'serious deficiencies' as follows:
B
c
D
"(i) Your attendance to office work has been irregular and perE
functory. It was found that you had often left the office earlier than
the time you signed in the attendance register.
(ii) You could not complete the job of stock taking of the fixed
stock, marking of furniture, etc. for the whole financial year 1995p
96. You were told again (letter SNB/DIR/ADM/96-97/52 dated
11.9.1996) but you tried to avoid work by writing irrelevant notes.
There has been no evidence that the work was started for the FY
1996-97.
(iii) Your complaint of 28.5.1996 against Sri P.Chakraborty, He!-
G
per, was duly investigated. Your behaviour before the inquiry
committee was reprehensible. It wa:s confinned by the committee
that you were involved in the scuffle and did other misdeeds like
obtaining/ alse signature, so that you were characterized as a person
of 'dubious character'.
H
540
A
B
SUPREME COURT REPORTS
(1999] 1 S.C.R.
You are guilty of inefficient performance of duty, irregular
attendance without permission, rude and disorderly behaviour, and
wilful insubordination.
Unless your performance improves considerably it would be
difficult to recommend your confirmation. It is expected that you
would pay attention to the faults~pointed out to you."
The above letter, it will be seen, refers to an inquiry. The Counter
affidavit filed by the respondent explains that the said report was given by
a High Level Enquiry Committee on 15.7.1996. The Committee was to deal
C with the complaint by the appellant against one Sri P.Chakraborty, a
partially handicapped person. We get some details of the Enquiry report
from the counter affidavit as follows:
"(a) In pursuance of a complaint made by the petitioner against
Shri P.Chakraborty a specific enquiry was made on the following
D
questions by a High Level Enquiry Committee consisting of three
high officials, namely (1) Professor (Smt.) Monisha Bose, (2)
Dr.N.Nayak and (3) Dr. D.Gangopadhyay, headed by Prof. (Smt.)
Monisha Bose -
(i) Why Sri P.Chakraborty went downstairs, whether he used
E
unacceptable language and whether he was involved in physical
assault, and
(ii) Whether Sri D.P.Banerjee used provocative language and
whether he was involved in physical assault?
F
The petitioner was not very cooperative in the enquiry. The
G
said enquiry committee inter alia made the following recommendation:
Sri D.P.Banerjee was involved in the scuffle and also used Mr.
Pradip Bose to obtain the false signatures. As such, he should surely
be punished. We recommend that a person of such dubious character should not be confirmed."
On 30.10.1996, we have a report of a different kind from the Administrative Officer. That report is totally in favour of the appellant. It
H states that, with reference to the letter dated 17.10.1996, the Administrative
A
•
:>.
D.P. BANERJEE v. S.N. BOSE NATIONAL CENTRE FOR BASIC SCIENCES [M. JAGANNADHA RAO, J.] 541
).
Officer had to state that his earlier note dated 25.4.1996 regarding the A
appellant's performance was obviously not taken into account by the Director, that reports were being called on 'selective basis' rather than by
standard format applicable to all employees. He stated that the appellant's
performance was "exemplary, well mannered and disciplined, he had been
discharging his duties conscientiously and diligently''. He referred to some B
of the specific items of complaint and stated that there was no truth in
them.
Then comes the second order of extension of probation dated
31.10.1996 from the Director extending the probation by another six
months, from 2.11.1996. Appellant was asked to submit an account of his
monthly work .to Dr. Samir K. Pal, who would judge his performance. The c
appellant was asked to improve his performance.
On 29.3.1997, the Director wrote to the appellant that on the basis
of Dr. S.K.Pal's reports, the appellant's performance in regard to stocktaking or handling quotations was not good and that the appellant must D
..
change his attitude to work, avoid neglect of work allotted, avoid carelessness or inefficiency & change his behaviour which often bordered on
insubordination.
It was in this background that on 30.4.1997, the impugned order of E
...,
termination was passed. As the case turns also upon the question whether
this order is vitiated by 'stigma', it is necessary to extract the body of this
letter. It reads:
"4. Since the performance during the initial period of probation
)•
was not satisfactory, by letter no.SNB/PER 4 1201/D0-5 dated 30 F
April 1996 your period of probation was extended by six months
from 2 May 1996.
....
5. By letter dated 17 October 1996 your attention was drawn to
unsatisfactory performance and the areas of unsatisfactory perfor- G
mance were brought to your notice. You were advised to improve
..
your performance considerably .
6. Since during the extended period also your performance was
not satisfactory, the Management was constrained to further extend your period of probation and accordingly by letter H
A
B
c
D
E
542
SUPREME COURT REPORTS
(1999) 1 S.C.R.
no.SNB/PER 4 1201/D0-100 dated 31 October 1996 your period
of probation was extended further six months.
7. During the period of further extension of probation you could
not improve your performance.
8. We have closely watched and examined your conduct, performance, ability and capacity during the whole period of probation
but your performance is found to be unsatisfactory and you are
considered unsuitable for the post against which you have been
appointed. The period of probation was extended with the expectation that you would improve your performance but there was no
improvement in your performance.
9. Under the circumstances, the Management is unable to confum
your service in the Centre and as such the Management is unable
to continue your service on the expiry of the stipulated period or
probation on the 1st May 1997 and your service shall stand terminated after the close of working hours of 1 May 1997. In case
you want to appeal against the decision, you may appeal to the
Governing Body of the Centre.
10. You will be paid one month's pay although the contract of
employment does not stipulate any such payment."
It is this order of the respondent that was unsuccessfully challenged
before the single Judge and the Division Bench of the High Court.
F
-In this appeal, it is contended by Sri Jaideep Gupta, learned counsel
for the appellant that the order terminating the appellant's probation is
liable to be set aside on two grounds. Firstly, that the findings in the letter
of the Director dated 11.12.95 shows that certain findings arrived at behind
the back of the appellant were the foundation of the impugned order;
secondly, on the ground that it refers to certain communications by the
G Director to the appellant which contain material amounting to 'stigma' and
also because these documents and the record of the case clearly establish
that it is a case where certain findings arrived at in a non-departmental
inquiry were the 'foundation' for the termination and it is not a case where
certain allegations against the appellant could be treated as the 'motive'
H behind the order. He contended that the Administrative Officer's reports
-"\
rr-
~
/..
II-
•
,_
•
•
\:
,,
D.P. BANERJEE v. S.N. BOSE NATI0NALCEN1REFORBASIC SCIENCES (M. JAGANNADHA RAO. J.) 543
j
in his favour were not considered by the Director. The communications to A
the appellant contaii].ed not only certain allegation but clear adverse findings by the Director as well as by a Committee and they were the foundation. The differences between the Director and the Administrative Officer,
led to the appellant being made the scape-goat.
., .
B
-~
On the other hand, learned senior counsel for the respondent Sri
--1
P.P.Rao contended that this was a case where the appellant's performance
..,
during probation was not satisfactory, the organisation so informed the
appellant during the first one year period on 11.12.1995 and 15.4.1996 and
1
he was asked to improve. Thereafter on 30.4.1996, his probation was
extended giving him an opportunity to improve. During this six month c
period, again the Director wrote on 17.10.1996 pointing out his deficiencies
and asking him to improve by giving a further extension of probation on
-;
31.10.1996 by another six months. A note was sent on 29.3.1997 to him
regarding his deficiencies and finally the termination order was passed on
30.4.1997. Therefore the employer acted fairly and there was no question
D
of any stigma in the order nor was it a case where certain findings were
arrived at which could be the foundation of the order. If on account of
unsatisfactory performance a probation could not be terminated then it
would lead to serious problems for any employer.
On the basis of the above contentions, the following points arise for E
consideration:
(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 F
·ian express stigma?
(3) Can the stigma be gathered by referring back to proceedings referred
to in the order of termination?
G'
( 4) To what relief?
"
Point 1:
As to in what circumstances an order.~ termination of a probationer
can be said to be punitive or not depends upon whether certain allegations H
"'I
544
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A 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} S.C. 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
B R.S.Gupta v. U.P.State Agro Industries Corporation Ltd. & Anr., J.T. (1998}
8 S.C. 585 and reference was made to the development of the law from
time to time starting from Purshottam Lal Dhingra v. Union of India, [1958]
SCR 828, to the concept of 'purpose of inquiry' introduced by Shah, J. (as
he then was) in State of Orissa v. Ram Narayan Das, [1961] (1) SCR 606
and to the seven Bench decision in Samsher Singh v. State of Punjab, (1974]
c 2 SCC 831 and to post Samsher Singh case-law. This Court had occasion
to make a detailed examination of what is the 'motive' and what is the
'foundation' on which innocuous order is based.
This Court in that connection referred to the principles laid down by
D
Krishna Iyer, J. in Gujarat Steel Tube v. Gujarat Steel Tubes Mazdoor Sangh,
(1980] 2 SCC 593. As to 'foundation', it was said by Krishna Iyer, J. as
follows::
" ..... a termination effected because the master is satisfied of the
misconduct and of the desirability of terminating the service ~f the
E
delinquent servant, it is a dismissal, even if he had the right in law
to terminate with an innocent order under the standing order or
. otherwise. Whether, in such a case, the grounds are recorded in
different proceedings from the formal order, does not detract from
its nature. Nor the fact that, after being satisfied of the guilt, the
master abandons the inquiry and proceeds to terminate. Given an
F
alleged misconduct and a live nexus between it and the termination
of service, the conclusion is dismissal, even if full benefits as on
'I
simple termination, are given and non-injurious terminology is
used."
G and as to motive:
"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
H
continuing a dubious servant. Then it is not dismissal but termina-
D.P. BANERJEE, .. S.N. BOSE NATIONALCEN"IRE FOR BASIC SCIENCES (M. JAGANNADHARAO, 1.J 545
tion simpliciter, if no injurious record of reasons or pecuniary A
cut-back on his full terminal benefits is found. For, in fact, misconduct is not then, the moving factor in the discharge."
As to motive one other example is the case of State of Punjab v. Sukh Raj
Bahadur [1968] 3 SCR 234 where a charge memo for a regular inquiry was
served, reply given and at that stage itself the proceedings were dropped
and a simple termination order was issued. It was held, the order of simple
termination was not founded, on any findings as to misconduct. In that case,
this Court referred to A.S'. Benjamin v. Union of· India, Civil .Appeal
No.1341 of (1966) dt. 13.12.1966 (SC) where a charge memo was issued,
explanation was received, an inquiry officer was also appointed but before
the inquiry could be completed, the proceedings were dropped and a
simple order of termination was passed, the reason for dropping the
proceedings was that "departmental proceedings will take. a much longer
time and we are not sure whether after going through all the foundation,
we will be able to deal with the accused in the way he deserves',
The termination was upheld.
B
c
D
If findings were arrived at in inquiry as to misconduct, behind the
back of the officer or without a regular departmental enquiry, the simple
order of termination is to be treated as 'founded' on the allegations and E
will be bad. But if the inquiry was not held, no findings were arrived at and
the employer was not inclined to conduct an inquiry but, at the same time,
he did not want to continue the employee against whom there were
complaints, it would only be a case of motive and the order would not be
bad. Similar is the position if the employer did not want to inquire into the
truth of the allegations because of delay in regular departmental proceedF
ings . 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.
In the light of the ~bove principles, laid down in R.S.Gupta's case we
do not think anything more is to be added. Point 1 is decided accordingly. G
Points 2:
In the present case before us, the order of termination dated 30.4.97
is not a simple order of termination but is a lengthy order which we have H
546
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A extracted above. It not only says that performance during probation is not
satisfactory but also refers to a letter dated 30.4.1996 by which the period
of probation was extended by six months from 2.5.1996, and to letters dated
17.10.96 and 31.10.96. I.t concludes by saying that the appellant's 'condu..t,
performance, ability and capacity duritig tlie whole period of probation was
B not satisfactory and that he was considered 'unsuitable' for the post for
which he was appointed.
The contention for the appellant is that if the appellant is to seek
employment elsewhere, any new employer will ask the appellant to provide
the copies of the letters dated 30.4.96, 17.10.96 and 31.10.96 referred to in
C the impugned order and that if the said letters contain findings which were
arrived at without a full fledged departmental inquiry, those findings will
amount to stigma and will come in the way of his career.
In the matter of 'stigma', this Court has held that the effect which an
order of termination may have on a person's future prospects of employD ment is ·a matter of relevant consideration. In the seven Judge case in
Samsher Singh v. State of Punjab, (1974] 2 SCC 831, Ray, CJ observed that
if a simple order of termination was passed, that would enable the officer
to "make good in othet walks of life without a stigma. "It was also stated
in Bishan Lal Gupta v. State of Haryana, [1978] 1 SCC 202 that if the order
E contained a stigma, the termination would be bad for "the individual
concerned must suffer a substantial loss of reputation which may affect his
future prospects".
.
There is, however, considerable difficulty in finding out whether in a
given case where the order of termination is not a simple order of terminaF tion, the words used in the order can be said to contain a 'stigma'. The
other issue in the case before us is whether - even if the words used in the
order of termination are innocuous, -the court can go into the words used
or language employed in other orders or proceedings referred to by the
employer in the order of termination?
G
H
As to what amounts to.stigma has been considered in Kamal /(jshore
Lakshman v. Pan American World Airways, (1987) 1 SCC 146. This Court
explained the meaning of 'stigma' as follows {p150):
"According to Webster's New World Dictionary, it (stigma) is
something that detracts from the character or reputation of a
/\
D.P. BANERJEE v. S.N. BOSE NATIONA LCENTRE FOR BASIC SCIENCES (M. JAGANNADHA RAO, J.] 547
person, a mark, sign etc., indicating that something is not conA
sidered normal or standard. The Legal Thesuras by Burton gives
the meaning of the word to be blemish, defect, disgrace, disrepute,
imputation, mark of disgrace or shame. The Webster's Third 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."
Similar observations were made in Allahabad Bank Officer's Association v.
Allahabad Bank, [1996) 4 SCC 504.
B
At the outset, we may state that in several cases and in particular in C
State of Orissa v. Ram Narayan Das, AIR (1961) S.C. 177, it has been held
that use of the word 'unsatisfactory work and conduct', in the termination
order, will not amount to stigma.
We may advert to a few cases on the question of stigma. We shall D
refer initially to cases where a special Rule relating to termination of
probationer required a particular condition to be satisfied and where the
said condition was referred to in the order of termination. In Hari Singh
Mann v. State of Punjab, [1975) 1 SCC 774, the probationer was governed
by Rule S(b) of the Punjab Service Rules, 1959 and the fact that the word E
'unfit' as required by the Rules was used, was held not to be a ground for
quashing the order on the ground of 'stigma', for to hold that it amounted
to 'stigma' would amount to robbing the authority of the right under the
rule. Similarly where a Rule required a show cause notice issued and an
inquiry to be conducted before terminating probation, such as Rule 55-B
of the Central Civil Services (CCA) Rules, there would be no question of F
characterising the simple order of termination as one founded on the
allegations which were the subject of the inquiry. That was because, in such
a case, the purpose of the inquiry was to find out if the officer was to be
continued in service and not to find out if he was guilty State of Orissa v.
Ram Narayan Das, AIR (1961) SC 177; Ravindra Chandra v. Union of G
India, AIR (1963) S.C.1552. In State of Gujarat v. Akhilesh C. Bhargav,
[1987] 4 SCC 482, the termination order merely referred to Rule 12(bb) of
the Indian Police Service (Probationer-) RUies 1959. It was contended that
the reference to the said Rule 12(bb) itself amounted to a stigma but this
was rejected following Ram Narayan Das case.
H
548
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A
We shall next advert to some more cases and to particular words
employed while passing orders of termination of probationers. In State of
Bihar v. Gopi Kishore Prasad, AIR (1960) S.C. 689, a show cause notice
was given seeking a reply to the allegation regarding the officers' bad
reputation and in regard to .certain perverse decisions given by him in his
B Judicial functions during the period of probation. The termination order
stated that certain facts were brought to the notice of the Government
about his unsatisfactory work and conduct and that grave doubts had arisen
about his integrity which indicated that he was a corrupt and an unreliable
officer. It was also said that confidential inquiries revealed that he was a
corrupt officer and that annual confidential reports of his superior officer
C referred to his bad reputation and the ref ore his work during the period· of
probation was not satisfactory. The Constitution Bench of this Court held
that it was a clear case of stigma and the matter indeed required a full
fledged departmental inquiry under Rule 55 of the CCS (CCA) Rules. In
Jagdish Mitter v. Union of India, AIR (1964) S.C. 449 the use of the words
D "undesirable to be continued" in service was held by the Constitution Bench
to amount to stigma. This case was followed in State of U.P. v. Madan
Mohan Nagur, AIR (1967) S.C. 1260 where the order said that the officer
had 'outlived his utility' and such an order was held to amount to a stigma.
Jagdish Mitter was approved by the Seven Judge Bench in Samsher Singh's
E case on this point. But in Kunwar Arnn Kumar v. U.P. Hill Electronics
Corporation, [1997] 2 SCC 191, the termination order used the word
'unsatisfactory' and the same was upheld as it did not amount to stigma.
In two cases arising under industrial law, one in Chandu Lal v. Pan
American World Airways, [1985) 2 SCC 727 and Kamal Kishore Lakshman
F v. Pan A'!lerican Land Ways Inc., [1987) 1SCC146 where the termination
order used the word 'loss of confidence', the said orders were held to
contain stigma and therefore punitive. In Jagdish Prasad v. Sachiv Zila
Gaon Committee, [1986] 2 SCC 338, the termination order stated that the
officer had concealed certain facts relating to his removal from an earlier
service on charge of corruption and therefore not suitable for appointment.
G This was held to amount to stigma. But in Union of India v. R.S.Dhabe,
[1969) 3 sec 603 where the order merely said 'found unsuitable', it was
held not to amount to stigma. In Allahabad Bank Officers Association v.
Allahabad,Bank, [1996) (4) SCC 504, the order was one of compulsory
retirement and said that a Special Committee had unanimously recomH mended for the officers' compulsory retirement, that the Chairman and
'·
D.P. BANERJEE v. S.N. BOSE NATIONAL CENTRE FOR BASIC SCIENCES (M JAGANNADHA RAO, J.] 549
Managing Director agreed with the Committee's views regarding 'want of A
application to Bank's work and lack of potential and that the officer was
also found to be not 'dependable'. This Court after referring to a number
of cases explained that the words 'not dependable' were used, in the context
of theiacts of the case and not as an aspersion on his reputation but in relation
to his work and were to be understood in that sense in the setting of the words
'want of application' and or 'lack of potential'. H was observed:
"Any person reading the letter on. the order of compulsory retirement would not be led to believe that there was something wrong
with Appellant 2 as regards his conduct or character. They would
only indicate that he had ceased to be useful to the Bank in his
capacity as a Manager".
Again in High Court of Judicature at Patna v. Pandey Madw1 Mohan Prasad
Sinha & Others, (1997] 10 SCC 409, it was held that termination of
probationer on basis of uncommunicated adverse remarks, was valid.
Thus, it depends on the facts and circumstances of each case and the
language or words employed in the order of termination of the probationer
to Judge whether the words employed amount to stigma or not.