service matter = when the termination of service at the end of probation due to unsatisfactory work- can not ask for reinstate = termination of the services of Respondent No.1 at the end of the period of probation was due to unsatisfactory work and not for any misconduct. – We are constrained to hold that there is no basis for the finding of the High Court that the real reason for the Order dated 31st December, 2008 was to ensure that the manner in which Respondent No.4 was appointed to the post of Engineer-C (Civil) remained concealed. We are satisfied that the Order dated 31st December, 2008 does not suffer from any infirmity and it is an Order of termination simpliciter. There is sufficient material on record to 9 indicate that Respondent No.1 was informed about his unsatisfactory performance during the period of his probation.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 2926 of 2018

(Arising out of S.L.P. (Civil) No .4208 OF 2011)

Director Aryabhatta Research Institute

Of Observational Sciences (ARIES)

& Anr. … Appellants

Versus

Devendra Joshi & Ors. … Respondents

WITH

Civil Appeal No. 2927 of 2018

(Arising out of S.L.P. (Civil) No .10679 OF 2011)

Devender Joshi …. Appellant

Versus

Director Aryabhatta Research Institute

Of Observational Sciences (ARIES)

& Ors. ….Respondents

J U D G M E N T

L. NAGESWARA RAO, J.

Civil Appeal No. 2926 of 2018@Special Leave Petition

(Civil) No.4208 of 2011

Leave granted.

This Appeal is filed against the judgment of the High

Court of Uttarakhand at Nainital by which the order dated

31st December, 2008 terminating the services of

Respondent No.1 was set aside.

1

2. Respondent No.1 was offered appointment to the post of

Engineer-B (Civil) on 1st November, 2007 after he was

selected pursuant to advertisement dated 10th August,

2007. He had joined on 1st January, 2008. Respondent

No.1 was placed on probation for a period of two years

from the date of joining. Appellant No.2 was informed by

the Competent Authority on 22nd May, 2008 that the

period of probation for Group ‘A’ officers had been

reduced from two years to one year. By a letter dated

15th October, 2008, Respondent No.1 was informed that

his period of probation had been reduced from two years

to one year pursuant to an amendment to the bye-laws.

3. An internal Office Note dated 24th July, 2008 was issued

directing Respondent No.1 to submit a detailed report

regarding certain irregularities in improvements that

were suggested in road infrastructure required for

transportation of equipments. By Office Memorandum

dated 18th August, 2008, the Registrar communicated

certain shortcomings in the discharge of duty by the

Respondent No.1. The Respondent No.1 was directed to

discharge his duties diligently and complete the allotted

2

tasks within a given time frame. Respondent No.1 was

also asked to submit his explanation regarding initiation

and completion of the work relating to providing tanks

for water supply for a building without prior intimation

and without getting formal approval of the proposal/

estimates for the construction of the same.

4. An Office Memorandum dated 23rd December, 2008 was

issued calling for an explanation from Respondent No.1

for an alleged misconduct. Reference was made to a

preliminary inquiry which revealed that the Respondent

No.1 was responsible for removal of a pen-drive and

copying the files available in the said pen-drive to his

personal computer without permission. By Office

Memorandum dated 31st December, 2008, the Appellant

No.2 terminated the services of Respondent No.1. It was

mentioned in the said order that the services of

Respondent No.1 were discontinued beyond the period of

probation of one year. Respondent No.1 submitted a

representation to the Appellant for re-instatement which

was rejected by an Order dated 2nd April, 2009.

5. Respondent No.1 filed a Writ Petition before the High

Court of Uttarakhand at Nainital challenging orders dated

3

31st December, 2008 and 2nd April, 2009. It was averred

in the said Writ Petition that the Respondent No.4, who

was selected for appointment to the post of Engineer

Group ‘B’ pursuant to an advertisement issued on 18th

April, 2008, was appointed as Engineer–C (Civil).

Respondent No.1 was aggrieved by the appointment of

Respondent No.4 to Group ‘C’, which was a post higher

than what he was holding for which reason he made a

representation on 8th October, 2008. Respondent No.1

sought for the benefits that were given to Respondent

No.4 and made a request for appointment as In-Charge/

Project Engineer of the construction projects at Monora

Peak and Devasthal. It was alleged by Respondent No.1

that Respondent No.4 was inimically disposed towards

him in view of the representations made against his

appointment to Group ‘C’ post. According to the

Respondent No.1, the Office Memorandum dated 23rd

December, 2008 was at the behest of Respondent No.4

which formed the foundation of the Order dated 31st

December, 2008 by which his services were terminated.

6. The Appellant filed a reply in which the Order dated 31st

December, 2008 was justified on the ground that the

4

termination of the services of Respondent No.1 at the

end of the period of probation was due to unsatisfactory

work and not for any misconduct. The Appellant

contended that there was no stigma attached to the

Order of termination as the discontinuance of the

services of Respondent No.1 was not due to misconduct.

The Appellant further alleged that it was decided not to

proceed against Respondent No.1 to prove misconduct

though a prima facie finding of misconduct was recorded

in the preliminary inquiry. Finally, it was submitted that

the Order dated 31st December, 2008 was an order of

termination simpliciter, not warranting any opportunity

to be given to the delinquent employee.

7. The High Court held that the Order dated 31st December,

2008 being an innocuous order of termination did not

cast any stigma against Respondent No.1. The High

Court further held that the Order dated 31st December,

2008 was challenged on the ground that it was vitiated

by mala fide. The High Court found that Respondent

No.4 could not have been appointed to Group ‘C’ post

when he was selected for appointment to Group ‘B’

Engineer post. The fact that there was no advertisement

5

to Group ‘C’ post was also highlighted. It was also held

that the services of the Respondent No.1 were

terminated because of his objection to the appointment

of Respondent No.4 to a Group ‘C’ post. The

Memorandum dated 23rd December, 2008 was issued at

the behest of Respondent No.4 who was holding a higher

post than Respondent No.1. On the said finding, the

High Court set aside the Order dated 31st December,

2008 and extended the probationary period of

Respondent No.1 by one more year. There was a further

direction to the Appellant to consider the representation

dated 8th October, 2008 of Respondent No.1 either by

giving the post of Engineer-B (Civil) to Respondent No.1

or by reverting Respondent No.4 to the post of Engineer

–C (Civil).

8. We have heard Mr. Ajit Kumar Sinha, learned Senior

Counsel appearing for the Appellants and Mr. Jayant

Bhushan, learned Senior Counsel and Mr. S.N. Bhat,

Advocate appearing for Respondent No.1. Mr. Sinha

submitted that the High Court committed an error in

setting aside the Order of termination dated 31st

December, 2008 on the ground that it was mala fide. He

6

referred to letters written to Respondent No.1 regarding

his unsatisfactory performance even prior to the

appointment of Respondent No.4 to contend that the

finding of the High Court that the termination of services

of Respondent No.1 was at the instance of Respondent

No.4 is not correct. Though, there was a preliminary

inquiry that was conducted into the alleged misconduct,

the Appellant decided not to proceed further and hold a

departmental inquiry to prove any misconduct of

Respondent No.1. However it was decided to terminate

the services on completion of the probation period due to

unsatisfactory work. He also made an attempt to justify

the appointment of Respondent No.4 to the post of

Engineer-B (civil). He further submitted that the

appointment of Respondent No.4 was not challenged by

Respondent No.1 in the Writ Petition.

9. Mr. Jayant Bhushan, learned Senior Counsel submitted

that the point that arises for consideration is whether the

Order dated 31st December, 2008 is sustainable as the

foundation of the Order is misconduct as mentioned in

the Memorandum dated 23rd December, 2008. He

submitted that the Order of termination ought to have

7

been preceded by a detailed inquiry after providing

sufficient opportunity to Respondent No.1.

10. The High Court held that the reason for the Order

dated 31st December, 2008 was not to end the probation

of the Appellant but to punish him for objecting to the

appointment of Respondent No.4 to Engineer-B (Civil)

post. The High Court referred to a representation made

by Respondent No.1 on 8th October, 2008 pointing out

that Respondent No.4 could not have been appointed to

Engineer-B (Civil) post. Without taking any action on the

said representation, the Appellants initiated a

preliminary inquiry for misconduct and issued a

Memorandum dated 23rd December, 2008 seeking an

explanation from Respondent No.1. Thereafter, an

innocuous Order of termination of probation was passed

on 31st December, 2008.

11. We do not agree with the findings of the High Court

that the Order dated 31st December, 2008 was passed

only to punish Respondent No.1 for his objection to the

appointment of Respondent No.4 to the post of

Engineer-C (Civil). As the appointment of Respondent

No.4 was not assailed by Respondent No.1 in the Writ

8

Petition, the High Court ought not to have adjudicated

the issue of validity of the appointment of Respondent

No.4. The High Court committed an error in ignoring the

letters dated 24th July, 2008 and 18th August, 2008

written by the Management to Respondent No.1

pertaining to his unsatisfactory work. The said letters

were issued prior to the representations made by

Respondent No.1 against the appointment of Respondent

No.4. A perusal of the Memorandum dated 23rd

December, 2008 would show that there is a prima facie

finding recorded in the preliminary inquiry against

Respondent No.1 which cannot be attributed to the

representation made by Respondent No.1 against the

appointment of Respondent No.4. We are constrained to

hold that there is no basis for the finding of the High

Court that the real reason for the Order dated 31st

December, 2008 was to ensure that the manner in which

Respondent No.4 was appointed to the post of

Engineer-C (Civil) remained concealed. We are satisfied

that the Order dated 31st December, 2008 does not

suffer from any infirmity and it is an Order of termination

simpliciter. There is sufficient material on record to

9

indicate that Respondent No.1 was informed about his

unsatisfactory performance during the period of his

probation.

12. A plain reading of the Order dated 31st December,

2008 would show that it is an innocuous order

terminating the services of Respondent No.1 at the end

of the probation period. As no allegations of misconduct

are made in the Order, there is no stigma. Even the High

Court is of the opinion that there is no stigma. The fact

remains that there was a preliminary inquiry conducted

by the Management in which there was a prima facie

finding recorded against the Respondent No.1 of his

involvement in an act of misconduct. The Appellants

decided not to proceed further and hold a detailed

inquiry to prove the misconduct of Respondent No.1.

However, the service of Respondent No.1 was terminated

at the end of the period of probation which cannot be

said punitive. Therefore, the Order dated 31st December,

2008 is an order of termination simpliciter. In view of

the above it cannot be said that misconduct was the

foundation for the order of termination.

10

13. It will be useful to refer to the relevant portion of a

judgment of this Court in Radhey Shyam Gupta v. U.P.

State Agro Industries Corpn. Ltd.1

, wherein it was

held as follows:

“33. It will be noticed from the above decisions

that the termination of the services of a temporary

servant or one on probation, on the basis of

adverse entries or on the basis of an assessment

that his work is not satisfactory will not be punitive

inasmuch as the above facts are merely the

motive and not the foundation. The reason why

they are the motive is that the assessment is not

done with the object of finding out any misconduct

on the part of the officer, as stated by Shah, J. (as

he then was) in Ram Narayan Das case. It is done

only with a view to decide whether he is to be

retained or continued in service. The position is

not different even if a preliminary enquiry is held

because the purpose of a preliminary enquiry is to

find out if there is prima facie evidence or material

to initiate a regular departmental enquiry. It has

been so decided in Champaklal case. The purpose

of the preliminary enquiry is not to find out

misconduct on the part of the officer and if a

termination follows without giving an opportunity,

it will not be bad. Even in a case where a regular

departmental enquiry is started, a charge-memo

issued, reply obtained, and an enquiry officer is

appointed — if at that point of time, the enquiry is

dropped and a simple notice of termination is

passed, the same will not be punitive because the

enquiry officer has not recorded evidence nor

given any findings on the charges. That is what is

held in Sukh Raj Bahadur case and in Benjamin

case. In the latter case, the departmental enquiry

was stopped because the employer was not sure

of establishing the guilt of the employee. In all

1 (1999) 2 SCC 21 para 33 & 34- Followed in Ratnesh Kumar Choudhary v. Indira Gandhi

Institute of Medical Science, Patna, Bihar (2015) 15 SCC 151

11

these cases, the allegations against the employee

merely raised a cloud on his conduct and as

pointed by Krishna Iyer, J. in Gujarat Steel Tubes

case the employer was entitled to say that he

would not continue an employee against whom

allegations were made the truth of which the

employer was not interested to ascertain. In fact,

the employer by opting to pass a simple order of

termination as permitted by the terms of

appointment or as permitted by the rules was

conferring a benefit on the employee by passing a

simple order of termination so that the employee

would not suffer from any stigma which would

attach to the rest of his career if a dismissal or

other punitive order was passed. The above are all

examples where the allegations whose truth has

not been found, and were merely the motive.

34. But in cases where the termination is

preceded by an enquiry and evidence is received

and findings as to misconduct of a definitive

nature are arrived at behind the back of the officer

and where on the basis of such a report, the

termination order is issued, such an order will be

violative of the principles of natural justice

inasmuch as the purpose of the enquiry is to find

out the truth of the allegations with a view to

punish him and not merely to gather evidence for

a future regular departmental enquiry. In such

cases, the termination is to be treated as based or

founded upon misconduct and will be punitive.

These are obviously not cases where the employer

feels that there is a mere cloud against the

employee’s conduct but are cases where the

employer has virtually accepted the definitive and

clear findings of the enquiry officer, which are all

arrived at behind the back of the employee —

even though such acceptance of findings is not

recorded in the order of termination. That is why

the misconduct is the foundation and not merely

the motive in such cases.”

12

For the aforementioned reasons, the judgment of the

High Court is set aside and the Appeal is allowed

accordingly.

Civil Appeal No. .2927of 2018 @ Special Leave Petition

(Civil) No .10679 of2011

Leave granted.

14. This Appeal has been filed by Respondent No.1 being

aggrieved by the judgment of the High Court of

Uttarakhand at Nainital by which the High Court has

rejected the prayer of Respondent No.1 to direct his

confirmation as Engineer –B (Civil).

15. For the reasons mentioned in Civil Appeal No.2926 of

2018 @ S.L.P. (Civil) No. 4208 of 2011, the Appeal is

dismissed.

……………………………..J.

[S.A. BOBDE]

………………………………….J.

[L. NAGESWARA RAO]

New Delhi,

March 19, 2018.

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