Chairman, State Bank Of India And ... vs K.L. Sehgal
1994 Latest Caselaw 694 Del

JUDGMENT

M. Jagannadha Rao, C.J.

(1) This appeal was heard on 3.8.1994. appellants' counsel was absent but the appeal was dismissed on merits. Later, the appellant's counsel filed C.M. No. 3245/94 for living ahearing. The said application was taken up along with the appeal and the appeal was also heard. C.M. No. 3245/94 is hereby allowed and our order dated 3.8.1994 is recalled. We are disposing of the appeal afresh.

(2) This litigation is now completing twenty years in our Court.

(3) Position as of today is that the respondent- writ petitioner is on the verge of retirement and is retiring on 31.12.1994. The writ petition was filed in 1974 and the events relate to 1973. The dispute is unfortunately still not finally decided. It has taken nearly 12 years for the disposal of the writ petition and it has taken 8 more years for disposal of this L.P.A.

(4) The respondent-writ petitioner was appointed as a Cashier in the appellant Bank in 1957. He was thereafter promoted as Head Cashier. While on promotion as Head Cashier, and while he was on probation, he was transferred to Najibabad in Uttar Pradesh in April,1972. His probation was for a period of six months from the date of his joining as Head Cashier at Najibabad. The writ petitioner joined at that place in Decernber, 1972. After he joined there and within the probationary period of six months he was reverted by an order dated 16.6.1973 to the post of Cashier. The order of reversion was passed pursuant to a resolution of the meeting of the Local Board dated 14.6.1973 in terms of Rule 10(i) of the State Bank of India (Sub Accountants and Head Cashiers) Service Rules. Ilierclitter. he was relieved .is ci Head Cashier. Questioning the said order of reversion, the present Civil Writ Petition No. 888 of 1974 was filed seeking the quashing of the reversion order dated 16.6..1973 passed by the Secretary and Treasurer of the appellant bank, as per letter No. 16/PCF/414, The petitioner also sought a further direction that the order of reversion should be withdrawn, that the petitioner should be taken back as Head Cashier (Officer Grade II) with effect from 16.6.1973.

(5) A learned Single Judge of this Court allowed the writ petition by Judgment dated 1.8.1986 quashing the order of reversion on the ground that the said order of reversion was in the nature of punishment and was against the well-settled principles of natural justice. The learned Single Judge also observed that the contention of the bank was "...that the alleged lapses of the petitioner are serious and if no action is taken and are allowed to go unnoticed it may affect the discipline of the respondent Bank ..". The learned Single Judge, however, made it clear that the respondent can proceed against the petitioner if so advised by instituting a departmental inquiry according to law. In the result, the writ petition was allowed "to the extent indicated hereinabove". From the above Judgment it is clear that while quashing the order of reversion passed during the probationary period of the writ petitioner as punitive in nature, the learned Single Judge, however, permitted the bank to take such departmental inquire as it may deem fit in accordance with law.

(6) The order of reversion took place during the period of probation of the petitioner as Head Cashier and it was during that period that the Local Board of the bank issued a Memorandum on 12.6.1973 making various allegations and giving various findings against the petitioner describing him as "guilty" of the said lapses. The relevant portion of the said Memorandum reads as follows :- "2.Soon after his reporting at Najibabad Branch, Shri Sehgal again started making representations for his transfer to Delhi/New Delhi and created disturbances in the smooth working of the Cash Department at the Branch, presumably with a view to pressurising the Bank for his re-transfer to Delhi/New Delhi. His work and conduct as Head Cashier on probation at Najibabad Branch has also not been satisfactory and he has been found guilty of the following lapses :- a) In order to disrupt the working of the Cash Department, he withdrew the responsibility for the acts ana intromissions of the three Cashiers out of five Cashiers at the Branch without any substantial reasons. b) On the 15th March 1973 he refused to accept a cash remittance of Rs. 3 lacs from the Sub-Treasury Officer, Najibabad with the result that the Treasury Officer lodged a complaint against the behavior of the Head Cashier. c) Shri Sehgal often threatened that he would not open the strong room and would keep the work suspended if he was not previewed with additional staff. His demand in this regard was fantastic as the previous Head Cashiers at the Branch have been carrying on the work smoothly with the existing staff and there was actually decrease in the work of the department during the incumbency of Sh.Sehgal. d) His behavior towards the Branch Manager and other members of the staff leaves much to be desired. He has often picked up quarrels with them in the office during working hours on flimsy grounds. e) He is reported to be behaving in an irresponsible manner outside the office as well, thereby tarnishing the Bank's image at Najibabad."

(7) The learned Single Judge went through the above said Memorandum and gave importance to the use of the word "guilty" therein and came to the conclusion that, the reversion order dated 16.6.1973 which was issued pursuant to the resolution of the Local Board dated 14.6.1973 and based on the Memorandum of the Local Board dated 12.6.1973 was clearly punitive in nature. The question is whether the said conclusion is correct or not.

(8) Learned counsel for the appellant contended that inspite of the use of the word "guilty" in the above said Memorandum, the respondent-writ petitioner could not treat the subsequent order of reversion as punitive inasmuch as the order as such was innocuous. He contended that it was not permissible to go behind the order to find out whether there were circumstances preceding or attendant on the order of reversion which might dispose that the order was punitive in nature. For this purpose, learned counsel relied upon the decision in State of U.P. v. Ram Chandra Trivedi and Ravindra Kumar Mishra v. U.P. State Handloom Corporation . Learned counsel also relied upon the decision in State of Orissa v. Ram Narain Das which is a Judgment of a Constitution Bench of the Supreme Court. Reliance was also placed on a recent decision of the Supreme Court in the case of State of U.P. v. Kaushal Kishore Shukla and also on O.N.G.C. v. Dr. Mohd. S. Sikandar Ali.

(9) We shall refer to the above said decisions at the appropriate place while dealing with various cases of the Supreme Court, chronologically.

(10) The leading case in this behalf is Parshottam Lal Dhingra v. Union of India . It was a Constitution Bench case. In that case the principles regarding the termination of services of a probationer were stated/and in fact, those principles have been referred .to in most of the decided cases subsequently. The principles laid down in the above said case in regard to probationers were in fact summarised by a Constitution Bench of the Supreme Court in a later case entitled State of Bihar v. Gopi Kishore Prasad . Therein B.P.Sinha.C.J. summarised the following principles from Parshottam Lal Dhingra's case (supra) in so far as probationers are concerned :- "1.Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.

(2) The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.

(3) But, if instead of terminating such a person's service Without any enquiry, the employer chooses to hold .an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311(2) of the Constitution.

(4) In the last mentioned case, if the probationer is discharged on anyone of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Art. 311(2) of the Constitution and will, therefore, be liable to be struck down.

(5) But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from ser- vice may have been that his employer thought him to be unsuitable for the-post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause.

(11) In Gopi Kishore Prasad's case (supra) the termination of the probationer Was set aside on the ground that "... the Government had. on enquiry, come to the conclusion, rightly or wrongly, that he was unsuitable for the post he held on probation. This was clearly by way of punishment and .therefore, he Was entitled to the protection of Art:311 (2) of the Constitution". It was argued in that case for the appellant that the employee being a probationer could be discharged without any enquiry into his conduct and his discharge could not amount to any punishment to him because he had no right to the post. The Supreme Court, however, observed as under:- "IT is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way. without casting any as persions on his honesty or competence, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any Court. Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and incompetent officer, He had the right, in those circumstances, to insist upon the protection of Art. 311(2) of the Constitution."

(12) Another Constitution Bench of the Supreme Court in the case of State of Orissa and Another v. Ram Narayan Das had to consider Gopi Kishore Prasad's case (supra). In fact, this is one of the decisions cited by the appellants' counsel. Ram Narayan Das' case (supra) also related to a probationer. Under Rule.55-B of the Civil Services (Classification, Control and Appeal) Rules it was provided "WHERE it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service,, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment". J.C. Shah, J (as he then was) allowed the appeal of the State and dismissed the writ petition holding that the respondent had no right to hold the post and that under the terms of the employment he could be discharged in the manner provide under Rule 55-B. Mere termination of the employment did not carry with it any "evil consequences" such as loss of pay etc. There was no question of any indelible stigma affecting his future career. An order discharging a probationer may or may not amount to dismissal. "Whether it amounts to an order of dismissal depends upon the nature of the enquiry, if any the proceedings taken therein and the substance of the final order passed on such enquiry". If the rules provided that before terminating the services of a probationer a notice is to be given, the fact that such an enquiry, was conducted did not amount to dismissal. Adverting to the third proposition set out in State of Bihar v. Gopi Kishore Prasad (supra) (already set out above). Shah, J (as he then was) observed "This proposition, in our judgment, does not derogate from the principle of the other cases relating to termination of employment of probationers decided by this court nor is it inconsistent with what we have observed earlier. The enquiry against the respondent was for ascertaining whether he was fit to be confirmed. An order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed is not of that nature, It was then pointed out that in Gopi Kishore Prasad's case (supra) the enquiry officer found that the public servant was "unsuitable" for the post, and therefore, it was rightly held to be punitive. In other words, the emphasis has to be, according to Shah, J (as he then was), on the purpose of the enquiry. If the purpose was to find out whether the probationer should be confirmed or not, the fact that such an enquiry preceded the termination, would be of no effect. But if the enquiry was to find out and arrive at a conclusion whether he was guilty of misconduct, negligence, inefficiency etc, then it could he punitive. This distinction is clear from paragraph 15 of the Judgment in State of Orissa & Another v. Ram Narayan Das (supra).

(13) The matter came up again before another Constitution Bench of the Supreme Court in Madan Gopal v. The State of Punjab and others . That was a case of a temporary employment. Shah, I (as he then was) pointed out that in principle there was no difference between the cases of probationers and temporary servants. In that case there was a report of the Settlement Officer about the misconduct of the petitioner and his termination was based on the said report. It was, therefore, held that though the order of termination was an order simplicitor, still the Court could go behind the same and find out whether the foundation thereof was any finding to misconduct. The order of termination was quashed. In that case Shah, I (as he then was) again referred to the state of Bihar v. Gopi Kishore Prasad (supra) and the third proposition mentioned therein (we have already extracted the said proposition above). After referring to the said proposition, it was said that see paragraph 5) on principle there was no difference between the case of the probationer and . temporary employee. In that case; after an enquiry in which the employee participated, the Settlement Officer reported against him and,therefore, the order was held liable to be quashed. Emphasis was laid again on the purpose of the enquiry, as emphasised in State of Orissa v. Rnm Narayan Das (supra) and in particular to the following passage therein "The third proposition in the latter Gopi Kishore Prasad's case, refers. to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed". In Ravindra Chandra v. Union of India . Rule 55-B of the Central Rules relating to a probationer was considered and the above Judgments were followed. .

(14) Two other Judgments rendered by the Constitution Bench have to be then referred to. Jagdish Mitter v. The Union of India was a case of the temporary servant. The discharge of temporary servant by way of an order simplicitor. There was an order sitting that it was found undesirable to retain him in Government service. It was held that the order was by way of punishment. Reference was made to the earlier Constitution Bench cases and it was held by Gajendragadkar, J (as he then was) that "It is obvious that temporary servants or probationers are generally discharged, because they are not found to be competent or suitable for the post they hold. In other words, if a temporary servant or a probationer is found to be satisfactory in his work, efficient or otherwise eligible, it is unlikely that his services would be terminated, and so, before discharging a temporary servant/the authority may have to examine the question about the suitability of the said servant to be continued and acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not. There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant, but just to decide whether he deserves to be continued in service or not. If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to becontinued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of Article. 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged". Gajendragadkar, ] (as he then was) referred to the other type of cases, wherein it could be treated as founded on "misconduct". "On the other hand, in some cases. the authority may choose to exercise its power to dismiss a temporary servant and that would necessitate a formal departmental enquiry in that behalf. If such a formal departmental enquiry is held, and an order terminating the services of a temporary servant is passed as a result of the finding recorded in the said enquiry, prima facie the termination would amount to the dismissal of the temporary servant". His Lordship then pointed out that the motive operating in the mind of the authority does not alter the character of termination and it was not material. It was,however, observed that "the form in which the order terminating the service is expressed will not be decisive". It Was also stated that "what the Court will have to examine in each case would be, having regard to the material facts existing up to the time of discharge, is the order of discharge in substance one of dismissal?".

(15) The next decision of the Constitution Bench of the Supreme Court is Chamapaklal Chimanlal Shah v. The Union of India . That related to a temporary servant. It was observed that if a preliminary enquiry is conducted to determine whether a prima facie case for formal departmental enquiry is made out, then the case does not come under Article 311. In that case it was found that though the show cause notice for departmental enquiry Was given, no departmental enquiry was held.

(16) The above said seven Constitution Bench cases of the Supreme Court have,therefore, clearly laid down the law relating to the termination of the probationers and temporary servants and have laid down when a termination order could be treated as not being punitive and when it could be treated as punitive. These principles were explained in the Seven Judge case in greater detail both in the majority Judgment of Ray, C.J. and the concurring Judgment of Krishna Iyer, J in Samsher Singh v. Staff of Punjab & Another . The Judgment of Krishna Iyer.J refers to the slight modification in the principle between 1960 and 1964. Krishna Iyer, J held that the principles laid down by Supreme Court in 1960 in Gopi Kishore Prasad's case (supra) were slightly widened by Shah, J (as he then was) in Ram Narayan Das's case (supra) as summarised in Jaddish Mitter's case (supra) by Gajendragadkar, J (as he then was). According to Krishna Iyer, J that view was also shared by Ray,C.J- After Samsher Singh's case, there is no decision of any Constitution Bench on the point.

(17) We shall,however, refer to some of the important decisions after Samsher Singh's case (supra). One such case is State of Uttar Pradesh v. Ram Chandra Trivedi (AIR 197 S.C. 2547). In that case, the Court was considering a case of a temporary servant and the termination was by an order simplicitor with one month's notice. It did not contain any stigma. It was held that for attracting Article 311(2) the test is whether the misconduct or negligence is a mere motive turn the order of reversion or termination or whether it was the very foundation of the order. It was also observed that the form of the order was not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the Court and the overriding test is whether the misconduct was a mere motive or was the very foundation. The Supreme Court observed that the High Court could not have probed into the departmental correspondence and in that context referred to J.M.Saxena v. State of Madhya Pradesh . But from the earlier observations in paragraph 16 of the Judgment that the form of the order is not conclusive of its true nature and the observations that the preceding or attendant circumstances should be examined by the Court, the Supreme Court did not in our opinion, and particularly in the light of seven Judgments of Constitution Benches and one Judgment of Seven Judges, prohibit the piercing of the veil in appropriate cases. In fact, the case' was so explained by Pathak,J(as he then was)in State of Maharashtra v. V.R.Saboji adverting to the rationale of Ram Chandra Trivedi's case (supra). It was again observed in Anoop Jaiswal v.Government of India that where the form of the Order is merely a camouflage for an order of dismissal for misconduct, it is always open to the Court to go behind the form arid ascertain the true character of the order. The report/ recommendation of the superior authority is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order, and that but for that report, the termination order would not have been passed, then it is inevitable that the order of discharge should fall to the ground where the aggrieved officer is not afforded a reasonable opportunity to defend himself under Article 311(2). It was also pointed out that it was wrong to assume that it was only after a full-scale departmental enquiry any termination would attract Article 311(2). Venkataramiah, J.(as he then was) pointed out the shift in the law that was brought about by the seven Judge Judgment in Samsher Singh's case (supra). On the facts of the case in Anoop Jaiswal (supra) the order of discharge was quashed on the ground that it was founded on the report/ recommendation, of the superior authority. The decision in Anoop Jaiswal's case has been accepted, on facts-in later cases, and has not been held to be wrong either in principle or facts. Therefore, Ram Chandra Trivedi's case (supra) cannot help the appellants.. Learned counsel for the appellants relied on O.N.G.C. v. Dr. Mohammed Sikander Ali . This decision also cannot help the appellants for it merely follows Ram Chandra Trivedi's case (supra). The case was one of a termination simplicitor after dropping the enquiry and it was held that the employer had conducted the enquiry (or the purpose of deciding whether the work of the public servant was satisfactory or not. The adverse remarks and the recommendation to extend the probation were not byway of punishment.

(18) Krishna Iyer, J had occasion to explain the theory of motive and foundation in greater detail in Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sangh . of the said Judgment. It was clearly stated, adverting to Samsher Singh's case (supra) that there are cases where an employer may have received allegations against an employee and may say to himself that he does not wish to conduct an .enquiry, but would also not like to continue the employee. In such a case, the allegations are only a motive, but where the employer conducts an enquiry and is satisfied about the allegations and then passes an order of termination, it is a case of misconduct being the foundation of the termination. This Judgment is a Judgment of a three-Judge Bench of the Supreme Court.

(19) We shall then come to the more recent cases. The appellants' counsel has relied upon Ravindra Kumar Mishra v. U.P. State Handloom Corporation (supra). This case related tea temporary employee whose services were terminated by an order simplicitor. The Court pointed out that in a democracy recording of some reasons in the file was necessary, but that by itself did not make the order punitive. As long as there was no stigma . or the order was not founded on misconduct, it could not be questioned. The Court referred to the earlier decisions in P. L. Dhingra, Clumrpak Lal and Samsher Singh cases. It was held that if an enquiry is conducted and a prima facie view was taken on the charges and the officer suspended, and then a simple order emanates, then it would be a case of punishment. We do not think that the above said Judgment would help the appellants turn in that case there was no finding as to the "guilt" of the officer as in the case before us. When if was open to the Court to go into the preceding and attendant circumstances, the Court could find out whether there was any finding as to the guilt as in the present case, which could be treated as the foundation for the order of reversion or termination.

(20) The next important case is one of Om Prakash Goel v. The Himachal Pradesh Tourism Development Corporation Ltd and Another . There the charges were framed and enquiry conducted,but then a simplex order of termination was issued and it was held that the termination was by way of punishment following Anoop Jaiswal's case (supra) and other cases.

(21) Learned counsel for the appellants has also placed reliance on State of U.p. v. Kaushal Kishore Shukla (supra). That case related to an ad-hoc temporary employee whose services were terminated. There was an adverse entry and a preliminary enquiry report, but it was held that the whole exercise was meant for finding out whether the employee could be continued in service or not, and not as a matter of punishment. It was also. held that the form of the Order was not conclusive. We may point out that in the present case before us there is a clear finding that the employee was. "guilty" of various lapses and,therefore, the above said decision will not, in our opinion, apply to the. facts of the case. ,

(22) The next decision to be considered is one in Triveni Shankar Saxena v. State of U.P. (1992 Supple (1) S.C.C. 524). That was a case of a temporary servant and the unsuitability was adjudged only on the basis of character roll. That case was a simple case of termination, on the basis of the person not being fit for continuance.

(23) We shall now refer to three more recent cases. First one is Governing Council of Kidwai Memorial institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar and Another. . In this case the employee was under probation and before the expiry of probation his services were terminated by a simple order of termination. The Court rejected the contention that the order was one of dismissal by holding that the Governing Council examined different reports in respect of the employee during the period of probation and considered only the limited question as to whether he should be allowed to continue in the service of the Institure. The decision was taken on a total and overall assessment of his performance. When an order of appointment is made on probation, it presupposes that the conduct, performance, ability and capacity of the employee is to be watched and examined during the period of probation. He is to be confirmed after the expiry of the period of probation only if it is found that his service was satisfactory and he was considered suitable for the post against which he was appointed. The principle of tearing the veil for finding out the real nature of order is applicable only in a case where the Court is satisfied that there is a direct nexus with the charge so levelled and the action taken. But if the termination is based upon a consideration of overall performance and also some action or inaction on the part of the employee, then it cannot amount to removal by way of punishment. At that stage, the appointing authority is. entitled to look into any complaint made against him for the purpose of making an assessment of his overall performance. The Supreme Court referred to cases of O.N.G.C. Ravindra Kumar Mishra, Kaushal Kishore Shukla, Triveni Shanjkar Misra referred to above. The Court distinguished AnoopJaiswal's case on the ground that in that case the service of the appellant was terminated during the probation and that the Court held on the basis of record that the termination amounted to punishment because the real foundation was the act of misconduct dated 22.6.1981. There was a clear finding that the service of the appellant was terminated because of a particular misconduct alleged against him which was never enquired into.

(24) The next case is the one of Unit Trust of India v. T. Bijaya Kumar & Another (1992 (5) S.L.R. 855 = 1993 (1) L.L.J. 240). This was also a case of a probationer and discharge was by an order simplicitor. It was held that the termination was due to unsatisfactory performance. The Court referred to cases of Ram Narayan Das, Samsher Singh and two other cases including Anoop Jaiswal's case. The Court also examined the material on record and found that the management came to the conclusion that the employee was unsuited for the job. His confidential assessment reports called from different officers were taken into consideration. THe termination was held not to be founded on misconduct.

(25) Lastly, we come to Commissioner, Food and Civil Supplies and Another v. Prakash Chandra Saxena and Another . That was a case of temporary employee, whose services were terminated by an order simplicitor after dropping the departmental enquiry. Ramaswamy,J held that the termination was in terms of the contract of employment as well as the relevant rules. The Court explained Samsher Singh's case and followed the cases of Kaushal Kishore Shukla, Triveni Shankar Misra referred to above.

(26) It is in the light of the above cases that we have to consider whether the reversion of the writ petitioner was back in 1973 was simply for the purpose of ascertaining whether his work during the period of probation was satisfactory, and he be confirmed or whether the reversion or termination of probation is based on the finding of "guilt" in regard to certain lapses arrived at without enquiry. We have already referred to the five items contained in the Memorandum of the Local Board dated 12.6.1973. Lapse (a) for which he has been found guilty is that he disrupted the working of the cash department by withdrawing responsibility for certain acts and omissions of three cashiers out of five cashiers without substantial reasons. Ground (b) relates to an alleged refusal to accept cash remittance of Rs.3 lakh from the Sub-Treasury Officer, which resulted in the Treasury Officer lodging a complaint against the writ petitioner's behavior. Ground (c) of the lapse refers to repeated threats by the petitioner that he would not open the strong room and, would keep the work susponded, if he was not provided with additional staff. This demand was characterised as "fantastic". Ground (d) is that his behavior towards the Branch Manager and other members were not good and he used to pick up quarrels. Ground (e) is his behaving in an irresponsible manner outside the office and thereby tarnishing the bank's image. In respect of these lapses, the Memorandum returned a verdict of "guilty". 2/. In our view, the very use of the word "guilty". as pointed out by the learned Single Judge, is indicative of the fact that the resolution was not intended for the purpose of finding out whether, the petitioner was a fit person for confirmation, but it was intended to give a finding as to his "guilt" in respect of these. The finding of "guilt" is certainly punitive in nature. Seven Constitution Benches and a Seven Judge Bench and several three Judge Benches- have said that the Court can go behind the order. Therefore, the argument for the appellants that the order is innocuous and we cannot look into the recommendation of the Local Board is wholly untenable. In fact, in Anoop Jaiswal's case, it was found that there was a direct nexus between the recommendation and the subsequent order of termination. Even according to respondent there is no other reason for the reversion from the position of officiating Head Cashier to that of Cashier; while petitioner was on probation. We are, therefore, of the opinion that the view expressed by the learned Single Judge is a correct one on the facts of the case. In fact, learned Single Judge has only partly allowed the Writ Petition and permitted disciplinary action to be taken, if need be. 28 As already stated, the writ petitioner approached this Court in 1974 and is now about to retire in December,1994. This litigation is now completing 20 years.

(27) For the reasons mentioned above, we confirm the judgment of the learned Single Judge and dismiss the appeal.