(PER: HON'BLE MR. JUSTICE C M JOSHI)
under Section 4 of the Karnataka High Court Act, 1961.
2. The appellant/party-in-person had challenged the
adversely affecting the officer's pension. He is also seeking to allow
dismissed by the appellate-authority by order dated 04.03.2020. He
other consequential benefits.
A. THE FACTUAL MATRIX:
3. The factual matrix that is relevant for the purpose of
Thereafter, he was posted at Kolshet Branch, Thane,
Mumbai and worked till 26.03.2018. Then he was
transferred to Chembur Camp Branch, Mumbai.
W.A.NO.1291 OF 2024
c. On 01.03.2019, a complaint was received by the
Manager at Chembur Branch stating that the appellant
had intimidated and threatened the complainant and
other officers of the Branch and the complaint was
investigated and the investigation report was submitted
by the Investigating Officer, basing on which, he was
placed under suspension on 06.03.2019.
d. The appellant was issued with a show-cause notice
dated 16.03.2019, in which it was alleged as below:
"1. It is reported that on 01.03.2019, you
have threatened the Manager Sri. B M
Parmar on account of the assignment of
opening CASA accounts of the branch in
the guise of that you are backed by some
unions and further intimidated Sri B M
Parmar, Manager that he would be falsely
implicated in the charges of female
harassment if Sri Parmar comes in between
you and Smt Sarita, Senior Manager.
2. Further, it is reported that any
communications made by you either with
Manager or Senior Manager within the
branch were through e-mails despite each
one of the officials working in the same
premises close to one another is not
acceptable and it signifies that you are
guided by your ego rather devoted yourself
W.A.NO.1291 OF 2024
towards completing the assigned work.
3. You have sent repeated correspondences
to the Branch-in-Charge via e-mails/letters,
regarding clarification in branch working/job
rotation and instructing Branch-in-charge to
reply the same in writing. The tone of your
letter to the Branch-in- charge depicts your
arrogance and rude behaviour which is not
acceptable.
4. It is further reported that you have
insubordinated to the orders of your
superiors and behaved very rudely and
arrogantly.
5. You have vide your email dated 30/01/2019
addressed to the Regional Head of RO
North Mumbai with a warning to make
departmental enquiry against the Branch-in-
charge is objectionable and you have
threatened to initiate a legal remedy in the
event of non receipt of the reply within a
stipulated time.
6. You have impaired the working
environment of the branch with your
arrogance and rude behaviour against the
seniors thereby hampered the smooth
functioning of the branch."
e. Thereafter, the appellant was transferred to Ambarnath
Branch, Mumbai and his suspension was revoked. The
appellant was given an opportunity to improve his
W.A.NO.1291 OF 2024
performance, but at Ambarnath Branch also, it was
reported that his performance is below the average and
he absents from duty frequently.
f. The appellant gave a reply dated 3.4.2019 refuting the
charges alleged against him and contended that he
was discharging his duties effectively.
g. It was noticed that the appellant had sent several RTI
applications seeking answer and clarification for every
action of the respondents. The same was not bonafide
but with intent to intimidate the higher officers to hold
them accountable.
h. Since the explanation submitted by the appellant was
unconvincing, the Bank proceeded to propose initiation
of action under Regulation 8 (1) of Canara Bank
Officers Employees' (Discipline and Appeal)
Regulations, 1976 [1976 Regulations] and proceeded
to issue Memorandum of Imputation of Lapses on
18.06.2019. The appellant was asked to submit his
representation within 15 days. However, the appellant
after some delay gave his representation.
i. Since the proceedings that were initiated were for minor
penalty proceedings, the disciplinary authority on
consideration of the reply submitted by the appellant,
W.A.NO.1291 OF 2024
found him guilty on 16.07.2019 and imposed the
punishment of reduction in the lower stage in timescale
of pay of one stage for a period of one year without
cumulative effect and not adversely affecting his
pension.
j. Thereafter, within two weeks, on appraisal of the
performance reports the Bank proceeded to exercise
its option under Regulation 16(3)(a) of the Canara
Bank (Officer's) Service Regulation, 1979 [1979
Regulations] and passed an order holding that the
petitioner's work progress and conduct during the
probationary period was found unsatisfactory and he
was thereby, found not fit for confirmation. The bank
accordingly informed the petitioner that his services
were terminated from the date of notice and in lieu of
the notice period of one month, he was being paid one
month's salary.
4. The appellant being aggrieved by the said order,
preferred an appeal and on consideration of the appeal, the
appellate-authority proceeded to pass an order on 04.03.2020,
dismissing the appeal. Therefore, the appellant approached this
Court challenging not only the order of punishment imposed on
W.A.NO.1291 OF 2024
him; dismissal of his appeal, but also against the order by which he
was discharged from service.
5. The learned Single Judge, after hearing the appellant-
party-in person, proceeded to dismiss the writ petition, against
which the appellant is before this Court in this appeal.
B. THE SUBMISSIONS:
6. The appellant submits that there has been violation of
the principles of natural justice as there was no notice and the
appellant was not allowed any reasonable opportunity of hearing
before initiating the minor penalty proceedings. He contends that
neither during the proceeding nor after the appeal is filed, he was
called for hearing and therefore, there has been gross illegality
committed by the authorities and as such, the impugned orders are
liable to be quashed. It is his contention that no enquiry was
conducted and he was not permitted to cross-examine any of the
management witnesses in the disciplinary proceedings and
therefore, the rule of natural justice has not been followed by the
enquiry authority. It is his contention that there was no any such
enquiry but only on the basis of the preliminary enquiry, the
punishment has been imposed, which is illegal and not sustainable
in law. He also submitted that the denial of the fair opportunity to
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W.A.NO.1291 OF 2024
the appellant and to furnish documents has resulted in a biased
finding by the respondent. It is contented that while conducting the
enquiry, crucial documents requested by the appellant were not
provided and therefore, the minor penalty proceeding and the
appellate order is unsustainable in law.
7. His second prong of the argument is that there is a
gross violation of Article 14 and 16 of the Constitution of India and
the similarly situated probationary officers are being given an
extension of probationary period on account of non-satisfactory
performance appraisal reports. It is contented that in the case of
the appellant, the respondent-Bank has not provided any
opportunity to improve his performance by extending the
probationary period. It is contented that the termination is a major
penalty and in case of imposing major penalty, there has to be
adherence to the principles of natural justice and a detailed enquiry
should have been conducted. It is alleged that the termination is
not only violative of the rights of the appellant, but it is also
stigmatic in nature and therefore, the impugned orders of the
respondent- authorities are not sustainable in law. It is alleged that
the appraisal reports are manipulated and the grievance of the
appellant was not at all considered by the respondents. It is also
pointed out that the appellant had been recommended for
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W.A.NO.1291 OF 2024
confirmation by a letter dated 31.07.2019 and therefore, there was
no reason for discharging him from service on the ground of non-
satisfactory performance by him. It is argued that the order of the
learned Single Judge does not consider these aspects and as
such, is to be set aside.
8. in this regard he relies on the following decisions:
i) Nirmala J. Jhala vs State Of Gujarat & Anr
ii) State Of U.P. & Ors vs Saroj Kumar Sinha2
iii) Abhujit Gupta vs. S.N.B. National center, Basic Sciences
and Ors3.
iv) Chandra Prakash Shahi Vs. State of U.P. and Ors4.
v) Radhey Shyam Gupta Vs. U.P State Agro Industries
Corporation Ltd. and Ors5
vi) Sukhdeo v. Commissioner Amravati Division6
9. Per contra learned counsel appearing for the
respondents contends that regulation 8 contemplates summary
procedure whenever minor penalties are involved. Therefore, the
respondent disciplinary authority has the right to impose the minor
penalty based on the inquiry by following the procedure
contemplated under regulation 8(3). Secondly he submits that the
termination from service during probationary period is more of
AIR 2013 SC1513, 2013 (4) SCC 301
AIR 2010 SC 3131, 2010 (2) SCC 772
AIR 2006 SC 3471, (2006) 4 SCC 469
2000 (5) SCC 152
(1999) 2 SCC 21
(1996) 5 SCC 103
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W.A.NO.1291 OF 2024
contractual nature. He submits that the order of appointment states
that if there is unsatisfactory performance and conduct of the
appellant during his period of probation the competent authority of
bank is empowered to terminate the services of the appellant in
terms of clause 12 of 13 of the appointment order and regulation
16(3) of Service Regulations, 1979. In support of his contentions,
he relies on the following decisions.
i) Abhijit Gupta vs. S.N.B. National Center, Basic
Sciences and Ors7.
ii) Mitul Goel vs. Food Corporation of India8.
iii) Pavanedra Narayan Varma vs. Sanjay Gandhi PGI of
Medical Science9.
iv) State of Punjam and others vs. Sukhwindra Singh10.
v) State of Punjab vs. Jaswant Singh11.
vi) State Bank of India Vs Palak Modi12
C. THE POINTS FOR CONSIDERATION:
10. In the light of these contentions, the points that need to
be addressed are twofold.
i) The first being whether the respondent should have held a
detailed inquiry by examining the witnesses, permitting the
AIR 2006 SC 3471, (2006) 4 SCC 469
Manu/DE/1283/2019
AIR 2002 SC 23
AIR 2005 SC 2960
2023 INSC 798
(2013) 3 SCC 607
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W.A.NO.1291 OF 2024
appellant to cross-examine those witnesses and put forth
his arguments.
ii) The second being whether the termination of the services
of the writ petitioner under Rule 16(3) of the 1979
Regulations is unsustainable and bad in law.
D. ANALYSIS AND CONCLUSIONS:
POINT NO.1:
11. The petitioner contends that there was no such full-
fledged inquiry or a detailed inquiry before imposing the penalty on
him. It is his contention that the petitioner was handed a
punishment of reduction to a lower stage in time scale of pay by
one stage for a period of one year, without cumulative effect and
not adversely affecting the officer's pension. It was contended that
only on the basis of the representation filed by the petitioner, in
reply to the statement of imputations, the Disciplinary Authority has
proceeded to impose the penalty as stated above.
12. It is not in dispute that the Disciplinary Authority chose
to initiate the proceeding on the basis of the statement of
imputations served upon the petitioner under Regulation 8 of
Canara Bank Officers Employees' (Discipline and Appeal)
Regulations, 1976 which reads as below.
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W.A.NO.1291 OF 2024
"8. Procedure for imposing minor penalties:
1) Where it is proposed to impose any of the minor
penalties specified in clauses (a) to (e) of
Regulation 4, the officer employee concerned shall
be informed in writing of the imputations of lapses
against him and given an opportunity to submit his
written statement of defence within a specified
period not exceeding 15 days or such extended
period as may be granted by the Disciplinary
Authority and the defence statement, if any,
submitted by the officer employees shall be
taken into consideration by the Disciplinary
Authority before passing orders.
2) Where, however, the Disciplinary Authority is
satisfied that an enquiry is necessary; it shall
follow the procedure for imposing a major penalty
as laid down in regulation 6.
3) The record of the proceedings in such cases
shall include-
i) a copy of the statement of imputations of
lapses furnished to the officer employee;
ii) the defence statement, if any, of the officer
employee, and
iii) the orders of the disciplinary authority
together with the reasons therefore."
13. It may be noted that a bare perusal of the regulation
show that the manner in which the proceedings are to be
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W.A.NO.1291 OF 2024
conducted is stated in sub-regulation 3. It mandates that the copy
of the statement of imputations of lapses has to be furnished to the
officer and secondly, the defence statement, if any, of the officer
has to be obtained and thereafter orders of the Disciplinary
Authority together with the reasons thereof has to be recorded.
Thus, in case of minor penalties, the regulations do not prescribe a
detailed inquiry to be held. There is no such examination of the
witnesses, cross-examination etc. However in case of major
penalties, such a detailed disciplinary enquiry is contemplated.
When the Disciplinary Authority intends to initiate a regular enquiry,
the Regulation No.6 comes in play, where the procedure is laid
down. It is noticed that Regulation No.6 has as many as 21 sub-
clauses which lay down the procedure. Under these circumstances,
when the Disciplinary Authority came to the conclusion that it is a
case where minor penalties have to be imposed, it invoked
Regulation No.8(1) and the statement of imputations was served
and opportunity was given to the writ petitioner to give his
reply/representation. A full scale enquiry, as is contemplated in the
case of a major penalty under Regulation 6 was not considered
necessary.
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W.A.NO.1291 OF 2024
14. After the writ petitioner had given the representation,
the Disciplinary Authority passed an order on 16.07.2009. In the
said order, it was observed as bellow:
"His contention that he was handling heaviest
department of the branch and attended maximum footfalls of
customers is not completely convincing since Probation
period is a period of learning where an Officer on probation is
given variety of work so as to well verse him to face any
responsibility entrusted as a confirmed Officer. The reply
received is not acceptable as Sri Avipsit Rath is found
accountable for the charges alleged. The conduct and
mindset towards the institution is not expected from an
Officer that too during his Probation period.
It is reported that any communications made by Sri
Avipsit Rath either with Manager or Senior Manager within
the branch were through e-mails despite each one of the
officials working in the same premises close to one another
is not acceptable on the part of any of the Officials. The reply
received is not acceptable as Sri Avipsit Rath is supposed to
co-operate with the superiors so as to maintain a congenial
atmosphere at the branch. He could have taken up his
grievances with concerned RO and sorted the issues
otherwise. His submission that Smt. Sarita Kumari, Senior
Manager has appreciated him via email on 10.12.2018 for his
contribution of work at the branch indicates that she has tried
her best efforts to motivate, create good team spirit to the
Probationary Officer to keep up the good work and also tried
to pacify him by explaining the real time difficulties faced by
the branches on day to day basis and advised him to have a
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W.A.NO.1291 OF 2024
direct communication with her to resolve the problems faced
by him with regards to branch work.
It is noted that he had sent repeated correspondences
to the Branch-in-Charge via e-mails /letters, regarding
clarification in branch working/job rotation and instructing
Branch-in-charge to reply the same in writing. His contention
that since his various attempts to sort out issues by oral
communications was not fruitful, he was compelled to write
e-mails due to non receipt of any reply from the senior
officials of the branch is not satisfactory. The reply received
is not acceptable as Sri Avipsit Rath had joined the branch
on July 2018 and job rotation is normally effected after
duration of 6 to 8 months.
It is further observed that he has in subordinated to the
orders of his superiors and behaved very rudely and
arrogantly. The reply received is not acceptable as there are
repeated complaints received against Sri Avipsit Rath and
his contention that. Sr. Manager had appreciated him many
times personally only depicts that being a Branch-In-Charge,
she has boosted the morale of Probationary Officer and tried
to improve his performance and attitude to come forward to
own the responsibility at branch and handle the department
allotted to him efficiently.
He has vide his email dated 30/01/2019 addressed to
the Regional Head of RO North Mumbai with a warning to
make departmental enquiry against the Branch-in-charge is
objectionable and he has threatened to initiate a legal
remedy in the event of non receipt of the reply within a
stipulated time. An Officer that too during his probation using
such an authoritative language to his superiors is not
acceptable. A Probationary Officer is not expected to lose his
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W.A.NO.1291 OF 2024
mind and use his tone and tenor beyond a level of dignified
Officer of Bank and it should not go beyond tolerance level.
Hence the reply received is not acceptable.
All relevant records, I.O report, alleged lapses, reply
submitted by official viz. Sri Avipsit Rath (111862),
Probationary Officer have been carefully perused and
analysed. The lapses listed in the Memorandum of
Imputation of lapses should be read as part of this order.
In view of the above, exercising the powers conferred
under Regulation 8(1) of Canara Bank Officer Employees'
(Discipline & Appeal) Regulations, 1976, I hold Sri Avipsit
Rath (111862), Probationary Officer guilty of the lapses and
impose the punishment of_
"Reduction to a lower stage in time scale of pay by one
stage for a-period of one year, without cumulative effect and
not adversely affecting the Officer's pension."
as envisaged under Regulation 4(e) of Canara Bank
Officer Employees' (Discipline & Appeal) Regulations, 1976."
15. Obviously, the punishment is minor in nature and has
no effect on long term career of the appellant. This clearly shows
that it was a minor penalty. The writ petitioner being aggrieved by
the above order approached the Appellate Authority. The Appellate
Authority by order dated 04.03.2020 reiterated the above order and
came to the conclusion that the conduct of the appellant in
addressing letters and email to the Regional Head, Mumbai, to
make departmental enquiry against the Branch-in-charge is
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W.A.NO.1291 OF 2024
objectionable and he had threatened to initiate legal remedy in the
event of non receipt of the reply within a stipulated time and an
official using such an authoritative language to his superiors, is
unbecoming of an officer/employee. After observing so, reiterating
the order of the Disciplinary Authority, the appeal was dismissed.
16. The disciplinary authority has considered the charges
and the statement of imputations of the lapses in the light of the
explanation submitted by the appellant and has come to a
conclusion that he being a probationary officer, has shown
disregard and disobeyed the superior officers. It was found that he
was backed by some unions. The discussion in the enquiry report
shows all the contentions of the appellant were considered in
summary manner as the inquiry that was conducted as per
Regulation 8. The Disciplinary Authority on the basis of the
available material, namely the preliminary report of the initiating
officer and the reply given by the appellant, had come to the
conclusion that the conduct of the petitioner was unbecoming of an
officer of the Bank. Such conclusion, in the light of the reasons
mentioned therein, was reiterated by the Appellate Authority.
Therefore, when the Disciplinary Authority and the Appellate
Authority have come to the conclusion about the conduct of the
petitioner, as borne out of the inspection report, cannot be faulted
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W.A.NO.1291 OF 2024
at this stage. The Writ Court cannot go into the report of the
Investigating Officer and the reply given by the petitioner and to
find out the truth. A finding of fact cannot be gone into unless it is
shown that it prima facie perverse. Under these circumstances, the
contention of the appellant that the statement recorded by the
Investigating Authority at the time of his preliminary inquiry has to
be gone into and the truth or falsity of such statements has to be
examined in these proceedings is erroneous and cannot be
accepted.
17. The appellant party-in-person has tried to take this
Court through the rejoinder affidavit filed by him before the Writ
Court and make a point of his contention. We note that major part
of such rejoinder affidavit pertains to the order of discharge. He
tried to make out a case by saying that initially the respondents had
tried to project as a major misconduct. In this regard, he cites the
Annexure-N dated 16.03.2019. But there is nothing in the said
letter which would show that a major penalty was contemplated.
Therefore, we are unable to accept the contention of the appellant
that an earlier charge for major penalty was later reduced to a
minor penalty. We refrain ourselves from dwelling into each of such
contentions which are found in the rejoinder affidavit for the reason
that all those aspects were considered by the Disciplinary Authority
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W.A.NO.1291 OF 2024
and only those of the conduct which was unbecoming of an officer
of the Bank were considered under the proceeding.
18. The judgment relied by the appellant in the case of
Nirmala J. Jhala vs State Of Gujarat & Anr, wherein it was held that
the evidence recorded in preliminary inquiry cannot be used in
regular inquiry as the delinquent is not associated with it, and
opportunity to cross-examine the persons examined in such inquiry
is not given, cannot be applicable since in the case on hand, the
Regulation 8 permits such summary enquiry and the vires of the
regulation is not disputed. Similarly, the judgment in the decision in
the case of State Of U.P. & Ors vs Saroj Kumar Sinha is also on the
same lines and it do not deal with the procedure as contemplated
under Regulation 8 of 1979 Rules and as such, cannot be made
applicable.
19. For aforementioned reasons, the point No. 1 is
answered in the negative.
POINT NO.2:
20. Coming to the second part, that is the termination of
the petitioner from service for unsatisfactory conduct during the
probationary period, it is relevant to note that the Regulation
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W.A.NO.1291 OF 2024
Nos.15 and 16 of the Canara Bank (Officers') Service Regulations,
1979 is relevant and they read as below.
"15. PROBATION
(1) An Officer directly appointed to the Junior
Management Grade shall be on probation for
a period of 2 years.
(2) An employee of the Bank promoted as an
Officer in the Junior Management Grade shall
be on probation for one year.
(3) An Officer appointed to any other grade shall
be on probation for such period as may be
decided by the Bank.
Provided that the Competent Authority may,
in the case of any Officer, reduce the period
of probation or dispense with probation.
16. CONFIRMATION
(1) An Officer shall be confirmed in the services
of the Bank, if in the opinion of the
Competent Authority, the Officer has
satisfactorily completed the training in any
institution to which the officer may have
been deputed for training and the in-service
training in the Bank.
Provided, that an Officer directly recruited to
the Junior Management Grade may be
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W.A.NO.1291 OF 2024
required also to pass a test in a language
other than his mother tongue.
(2) If in the opinion of the competent Authority
an Officer has not satisfactorily completed
either or both the training referred to in Sub
Regulation (1) or if the Officer has not
passed the test referred to therein, the
Officer's probation may be extended by a
further period not exceeding one year.
(3) Where during the period of probation,
including the period of extension, if any, the
Competent Authority is of the opinion that
the Officer is not fit for confirmation:
(a) in the case of a direct appointee, his
services may be terminated by one
months notice or payment of one months
emoluments in lieu thereof; and
(b) in the case of a promotee from the Bank's
services, he may be reverted to the grade
or cadre from which he was promoted."
21. It is worth noting that an officer who is appointed to the
Junior Management Grade shall be on probation for a period of two
years. Regulation 16(3)(a), which was invoked by the management
of the Canara Bank is clear enough in saying that the Competent
Authority, if it opines that the officer is not fit for confirmation, he
may be terminated. There is no necessity of any enquiry to be held.
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W.A.NO.1291 OF 2024
It is only the opinion that may be formed by the management
regarding suitability of the petitioner.
22. It is the case of the petitioner that during first year of
his service, there were no adverse remarks in his performance
appraisal reports. He contends that only during the second year,
the performance appraisal reports were manipulated by a higher
Officer who was biased towards him. It is alleged that the
performance appraisal reports were kept blank and were used for
the purpose of invoking Regulation 16(3)(a). It is pertinent to note
that it is not necessary for the Writ Court to go into the background
and the reasons for discharge.
23. The proceedings of the General Manager signed by
the Assistant General Manager dated 2.8.2019 reads as below:
PROCEEDINGS OF THE GENERAL MANAGER DATED
02.08.2019
Whereas, Sri Avipsit (111862) joined the services of the Bank
as a Probationary Officer on 07.08.2017 as per Proceedings
HRW: PM: PO: 4967: 2D: 2017 dated 04.07.2017.
Whereas, in terms of Appointment Order dated 04.07.2017,
initially he is on probation for a period of 2 years from the date
of appointment i.e from 07.08.2017 to 06.08.2019;
Whereas, during his period of probation, due to his
arrogant/rude behavior towards his superiors and
customers, disobeying the lawful orders of the superiors
while discharging the official duty and thereby impairing
the working environment of the branch, he was placed
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W.A.NO.1291 OF 2024
under Suspension from 07.03.2019 and thereafter the
Suspension was revoked vide proceedings dated 27.05.2019;
Whereas for the above said misconduct on his part, Sri
Avipsit Rath (111862) was issued with a Minor Penalty
Proceedings dated 18.06.2019 and thereafter imposed a
punishment of "Reduction to a lower stage in time scale of
pay by one stage for a period of one year, without
cumulative effect and not adversely affecting the Officer's
pension" by the Orders of the Disciplinary Authority dated
16.07.2019;
Whereas, Sri Avipsit Rath (111862) is still in his probation
period and in spite of the above measures taken by the Bank
during the period of probation, his work progress and conduct
are not found satisfactory and hence unfit for confirmation in
the services of the Bank.
Now therefore, in view of the above it is decided to terminate
his service in Canara Bank in terms of Clause 13 of the
Appointment order dated 04.07.2017 and Regulation 16(3)(a)
of Canara Bank (Officers') Service Regulations, 1979.-
Consequently, Sri Avipsit Rath (111862) Probationary Officer is
hereby terminated by paying him one month's salary and
emoluments in lieu of notice in terms of Clause 3 of the Service
Agreement and as per Regulation 16(3)(a) of Canara Bank
(Officers') Service Regulations, 1979 his termination shall be
effective from 02.08.2019
OFFICE OF THE BANK
CIRCLE OFFICE ASSISTANT GENERAL MANAGER
MUMBAI for GENERAL MANAGER
24. The letter of intimation of the discharge of the
petitioner dated 3.08.2019 reads as below:
"Sir,
SUB:: NOTICE UNDER REGULATION - 16(3)(a) OF CANARA
BANK (OFFICERS') SERVICE REGULATIONS, 1979.
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W.A.NO.1291 OF 2024
You were appointed as a Probationary Officer under JMG
Scale-1 in the bank vide proceedings
HRW:PM:PO:4967:2D:2017 dated 04.07.2017.
Pursuant to the said orders and on accepting the terms and
conditions of appointment, you were allowed to join the
services of the Bank on 07.08.2017 at 09:00 AM
You were given training from 07.08.2017 to 19.08.2017 at
Canara Bank Bhubaneshwar Regional Staff Training College,
Orissa. You had reported at Mumbai C.O on 20.08.2017 and
thereafter posted at Kolshet branch from 24.08.2017 to
26.03.2018, Mumbai Chembur Camp branch from 27.03.2018
to 30.05.2019 and Ambarnath (East) Branch since 31.05.2019.
Your work progress and conduct during the probation period is
not found satisfactory and hence you are not found fit for
confirmation.
In view of the above, it is brought to your notice that in terms of
Clause 13 of the Appointment Order dated 04.07.2017, Clause
3 of service Agreement dated 07.08.2017 and Regulation
16(3)(a) of Canara Bank (Officers') Service Regulations, 1979,
you are hereby terminated from the services of the bank from
the date of the said notice by paying one month's salary and
emoluments in lieu of notice.
The proceeding of the competent authority is enclosed
herewith.
Yours faithfully
SD/-
SANJAY KUMAR SINGH
ASSITANT GENERAL MANAGER
25. As against the said order of discharge, the petitioner
also filed an appeal. The said appeal was considered as
representation by the Competent Authority and was rejected stating
that no appeal is permissible under the Regulations of 1979, as per
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W.A.NO.1291 OF 2024
Annexure-AF dated 17.02.2020. In the said communication, it was
observed as below.
"We acknowledge the receipt of your above referred
Representations /Appeals.
At the outset, we would like to inform you that in terms
of the Appointment Order dated 04.07.2017 you were
on probation for a period of two years from the date of
appointment, i.e., from 07.08.2017. As per Regulation
16 (3) (a) of the Canara Bank Officers' Service
Regulations "Where during the period of probation,
including the period of extension, if any, the Competent
Authority is of the opinion that the Officer is not fit for
confirmation, in the case of a direct appointee, his
services may be terminated by one months notice or
payment of one month's emoluments in lieu thereof".
Since your work progress and conduct during the
period of probation was not found satisfactory, the
Competent Authority, invoking the provisions under
Clause 12 and 13 of the Appointment Order and
Regulation 16(3) (a) of the Canara Bank Officers'
Service Regulations, 1979 has Terminated your
services in the Bank duly following the laid down
procedure. Moreover it is brought to your kind attention
that there is no provision for preferring an Appeal
against the Order of Termination issued invoking
Regulation 16(3) (a) of the Canara Bank Officers'
Service Regulations, 1979 nor under Clause 12 and 13
of the Appointment Order. Hence the subject Appeal
preferred by you cannot be considered.
Moreover on perusal of the allegations / contentions as
raised by you before the respective Authorities by way
of your subject Appeals, the said contentions /
allegations are in toto denied."
26. It is pertinent to note that neither the order of
termination nor the order of Appellate Authority intimating that no
appeal lies, stigmatize the petitioner in any way. It is only the
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W.A.NO.1291 OF 2024
internal proceedings which consider the disciplinary proceedings. It
is also significant to note that, if there is a discharge under Rule
16(3)(a), there is no appeal which is provided. Even then, the
Competent Authority has considered the same and has endorsed
as above.
27. Coming to the performance appraisal reports, it may
be noted that though initially there were some positive reports
concerning the petitioner, thereafter his conduct was noted and it
was observed that he used to communicate through letters or email
to the higher Officers within the Branch, which was observed to be
creating an atmosphere of distrust. Therefore, there is no dispute
that the performance appraisal reports during the initial days of his
service were good, but they were said to be with a view to give the
petitioner a support and encouragement to improve. The petitioner
did not improve his conduct despite such encouragement by the
higher Officers. Therefore, when he was transferred to Chembur
Branch or Ambarnath, it seems the higher Officers noted his
conduct and the same were reported to the higher Officials. Not
only that, the petitioner had even written threatening emails to the
higher Officers asking them to hold an enquiry against his
immediate superior at the Branch. Therefore, it is not the
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W.A.NO.1291 OF 2024
immediate superior of the petitioner alone who had noted the
conduct of the petitioner, but it was the higher Officers also.
28. The law on this aspect is fairly settled. In the case of
Abhijit Gupta v. S.N.B. National Centre, Basic Sciences , almost all
the previous judgments on this point are considered by the Hon'ble
Apex Court and it observes as below.
"10. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of
Medical Sciences [(2002) 1 SCC 520] this Court considered what
should be the best to determine whether a letter of termination of
service was termination simpliciter or stigmatic termination. After
referring to a number of authorities including the judgment
in Parshotam Lal Dhingra v. Union of India [1958 SCR 828] and Dipti
Prakash Banerjee [(1999) 3 SCC 60] the Court observed:
"Courts continue to struggle with semantically
indistinguishable concepts like 'motive' and 'foundation'; and
terminations founded on a probationer's misconduct have
been held to be illegal while terminations motivated by the
probationer's misconduct have been upheld. The decisions
are legion and it is an impossible task to find a clear path
through the jungle of precedents."
(emphasis in original)
11. Having observed thus, the Court formulated the judicial test to
determine as to on which side of the fence the case lay, in the
following words:
"21. One of the judicially evolved tests to determine
whether in substance an order of termination is punitive is to
see whether prior to the termination there was (a) a full-scale
formal enquiry (b) into allegations involving moral turpitude or
(2006) 4 SCC 469
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W.A.NO.1291 OF 2024
misconduct which (c) culminated in a finding of guilt. If all
three factors are present the termination has been held to be
punitive irrespective of the form of the termination order.
Conversely if any one of the three factors is missing, the
termination has been upheld."
(emphasis supplied)
29. The Hon'ble Apex Court in the case of State Bank of
India vs. Palak Modi and another14 had the occasion to consider the
catena of decisions, including the judgment in Pavanedra Narayan
Varma Vs. Sanjay Gandhi PGI Medical Sciences and held that it was
contrary to the constitution Bench judgment in the case of Samsher
Singh State of Punjab. It was observed as bellow:
"19. Krishna Iyer, J., who agreed with the learned Chief Justice,
made the following concluding observations: (Samsher Singh
case [(1974) 2 SCC 831]) ,
"160. ... Again, could it be that if you summarily pack off a
probationer, the order is judicially unscrutable and
immune? If you conscientiously seek to satisfy yourself
about allegations by some sort of enquiry you get caught
in the coils of law, however harmlessly the order may be
phrased? And so, this sphinx-complex has had to give
way in later cases. In some cases the rule of guidance
has been stated to be 'the substance of the matter' and
the 'foundation' of the order. When does 'motive' trespass
into 'foundation'? When do we lift the veil of 'form' to
touch the 'substance'? When the court says so. These
'Freudian' frontiers obviously fail in the work-a-day world
and Dr Tripathi's observations in this context are not
without force."
(2013) 3 SCC 607
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W.A.NO.1291 OF 2024
20. In Gujarat Steel Tubes Ltd. v. Mazdoor Sabha [(1980) 2
SCC 593] Krishna Iyer, J. considered as to when termination
simpliciter can be termed as punitive and observed:
"53. ... a termination effected because the master is
satisfied of the misconduct and of the consequent
desirability of terminating the service of the delinquent
servant, 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 a different proceeding from
the formal order does not detract from its nature. Nor
the fact that, after being satisfied of the guilt, the
master abandons the enquiry and proceeds to
terminate. Given an alleged misconduct and a live
nexus between it and the termination of service the
conclusion is dismissal, even if full benefits as on
simple termination, are given and non-injurious
terminology is used.
54. 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
continuing a dubious servant. Then it is not dismissal
but termination simpliciter, if no injurious record of
reasons or punitive cut-back on his full terminal
benefits is found. For, in fact, misconduct is not then
the moving factor in the discharge."
21. In Anoop Jaiswal v. Govt. of India [(1984) 2 SCC 369] this
Court considered the question whether termination of the
appellant's service, who was appointed to Indian Police Service
and was on probation, by invoking Rule 12(b) of the Indian
Police Service (Probation) Rules, 1954 was punitive in nature.
The facts found by the Court were that while undergoing
training at National Police Academy, Hyderabad, the
Probationary Officers had delayed attending the ceremonial drill
practice. The Director of the Academy called for explanation
from all the probationers. The appellant was accused of having
instigated others not to join ceremonial drill practice on time. He
denied the allegation. Thereafter, his service was terminated by
a non-stigmatic order. The appellant challenged the termination
of his service on the ground of violation of Articles 14 and
311(2) of the Constitution. The writ petition filed by him was
summarily dismissed by the Delhi High Court. This Court
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W.A.NO.1291 OF 2024
referred to the averments contained in the pleadings of the
parties, the judgments in Parshotam Lal Dhingra v. Union of
India [AIR 1958 SC 36] , Samsher Singh v. State of
Punjab [(1974) 2 SCC 831] , State of Punjab v. Sukh Raj
Bahadur [AIR 1968 SC 1089], Union of India v. R.S.
Dhaba [(1969) 3 SCC 603], State of Bihar v. Shiva Bhikshuk
Mishra [(1970) 2 SCC 871] , R.S. Sial v. State of U.P. [(1975) 3
SCC 111] , State of U.P. v. Ram Chandra Trivedi [(1976) 4 SCC
52] and I.N. Saksena v. State of M.P. [AIR 1967 SC 1264] and
held:
"12. It is, therefore, now well settled 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 before which the order is challenged to go behind
the form and ascertain the true character of the order.
If the court holds that the order though in the form is
merely a determination of employment is in reality a
cloak for an order of punishment, the court would not
be debarred, merely because of the form of the order,
in giving effect to the rights conferred by law upon the
employee.
13. In the instant case, the period of probation had not
yet been over. The impugned order of discharge was
passed in the middle of the probationary period. An
explanation was called for from the appellant regarding
the alleged act of indiscipline, namely, arriving late at
the gymnasium and acting as one of the ringleaders on
the occasion and his explanation was obtained. Similar
explanations were called for from other probationers
and enquiries were made behind the back of the
appellant. Only the case of the appellant was dealt with
severely in the end. The cases of other probationers
who were also considered to be ringleaders were not
seriously taken note of. Even though the order of
discharge may be non-committal, it cannot stand
alone. Though the noting in the file of the Government
may be irrelevant, the cause for the order cannot be
ignored. The recommendation of the Director which 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 incident it would not have been passed then it is
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W.A.NO.1291 OF 2024
inevitable that the order of discharge should fall to the
ground as the appellant has not been afforded a
reasonable opportunity to defend himself as provided
in Article 311(2) of the Constitution."
(emphasis supplied)
22. In Dipti Prakash Banerjee v. Satyendra Nath Bose National
Centre for Basic Sciences [(1999) 3 SCC 60] the two-Judge
Bench considered the appellant's challenge to the termination
of his service after adverting to the various communications
sent by the Head of the Organisation to the appellant and
formulated the following points:
"(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 an express stigma?
(3) Can the stigma be gathered by referring back to
proceedings referred to in the order of termination?
(4) To what relief?"
While dealing with the first point, the Court referred to various
earlier judgments and observed: (Dipti Prakash Banerjee
case [(1999) 3 SCC 60]
"19. As to in what circumstances an order of
termination of a probationer can be said to be punitive
or not depends upon whether certain allegations 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 SC 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 Radhey Shyam
Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999)
2 SCC 21 ] and reference was made to the
development of the law from time to time starting
from Parshotam Lal Dhingra v. Union of India [AIR
1958 SC 36] to the concept of 'purpose of enquiry'
introduced by Shah, J. (as he then was) in State of
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W.A.NO.1291 OF 2024
Orissa v. Ram Narayan Das [AIR 1961 SC 177] and to
the seven-Judge Bench decision in Samsher
Singh v. State of Punjab [(1974) 2 SCC 831] and to
post-Samsher Singh [(1974) 2 SCC 831] case-law.
This Court had the occasion to make a detailed
examination of what is the 'motive' and what is the
'foundation' on which the innocuous order is based.
***
21. If findings were arrived at in an enquiry as to
misconduct, behind the back of the officer or without a
regular departmental enquiry, the simple order of
termination is to be treated as 'founded' [Ed.: The word
"founded" is emphasised in the original also.] on the
allegations and will be bad. But if the enquiry was not
held, no findings were arrived at and the employer was
not inclined to conduct an enquiry but, at the same
time, he did not want to continue the employee against
whom there were complaints, it would only be a case
of motive and the order would not be bad. Similar is the
position if the employer did not want to enquire into the
truth of the allegations because of delay in regular
departmental proceedings or he was doubtful about
securing adequate evidence. In such a circumstance,
the allegations would be a motive and not the
foundation and the simple order of termination would
be valid."
(emphasis supplied)
32. A combined reading of Rules 15(1) and 16 and Para 5 of
the conditions of appointment makes it clear that a person
appointed as a Probationary Officer remains on probation for a
minimum period of two years at the end of which he is entitled
to be confirmed if the competent authority is of the opinion that
he has satisfactorily completed the training in any institution to
which he may have been deputed and the in-service training in
the Bank. The Probationary Officer can also be subjected to
screening for judging his merit and suitability. If the
Probationary Officer fails to satisfactorily complete the
training(s) or fails to pass the screening test or his service is not
satisfactory, then the Bank can extend the period of probation
by a further period of which the outer-limit is one year. In a
given case, the competent authority can, if it is of the opinion
that the Probationary Officer is not fit for confirmation, terminate
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W.A.NO.1291 OF 2024
his service by one month's notice or payment of one month's
emoluments.
There is a marked distinction between the concepts of
satisfactory completion of probation and successful passing of
the training/test held during or at the end of the period of
probation, which are sine qua non for confirmation of a
probationer and the Bank's right to punish a probationer for any
defined misconduct, misbehaviour or misdemeanour. In a given
case, the competent authority may, while deciding the issue of
suitability of the probationer to be confirmed, ignore the act(s) of
misconduct and terminate his service without casting any
aspersion or stigma which may adversely affect his future
prospects but, if the misconduct/misdemeanour constitutes the
basis of the final decision taken by the competent authority to
dispense with the service of the probationer albeit by a non-
stigmatic order, the Court can lift the veil and declare that in the
garb of termination simpliciter, the employer has punished the
employee for an act of misconduct.
xxxx
42. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of
Medical Sciences [(2002) 1 SCC 520] this Court again
considered the question whether termination of the service of
the probationer can be termed as punitive merely because it is
preceded by an inquiry for the purpose of judging his suitability
and answered the same in the negative. The two-Judge Bench
referred to a large number of precedents and observed:
"29. ... Generally speaking when a probationer's appointment is
terminated it means that the probationer is unfit for the job,
whether by reason of misconduct or ineptitude, whatever the
language used in the termination order may be. Although strictly
speaking, the stigma is implicit in the termination, a simple
termination is not stigmatic. A termination order which explicitly
states what is implicit in every order of termination of a
probationer's appointment, is also not stigmatic. The decisions
cited by the parties and noted by us earlier, also do not hold so.
In order to amount to a stigma, the order must be in a language
which imputes something over and above mere unsuitability for
the job."
xxxx
45. The proposition laid down in none of the five judgments
relied upon by the learned counsel for the appellants is of any
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W.A.NO.1291 OF 2024
assistance to their cause, which were decided on their own
facts. We may also add that the abstract proposition laid down
in para 29 in Pavanendra Narayan Verma v. Sanjay Gandhi PGI
of Medical Sciences [(2002) 1 SCC 520] is not only contrary to
the Constitution Bench judgment in Samsher Singh v. State of
Punjab [(1974) 2 SCC 831] , but a large number of other
judgments--State of Bihar v. Shiva Bhikshuk Mishra [(1970) 2
SCC 871] , Gujarat Steel Tubes Ltd. v. Mazdoor Sabha [(1980)
2 SCC 593] and Anoop Jaiswal v. Govt. of India [(1984) 2 SCC
369] to which reference has been made by us and to which
attention of the two-Judge Bench does not appear to have been
drawn. Therefore, the said proposition must be read as confined
to the facts of that case and cannot be relied upon for taking the
view that a simple order of termination of service can never be
declared as punitive even though it may be founded on serious
allegation of misconduct or misdemeanour on the part of the
employee.
46. In the result, the appeals are dismissed. The appellants
shall reinstate the private respondents within 15 days of the
production of the copy of this judgment before Respondent 3
and give them all consequential benefits like pay, allowances,
etc. within the next one month. However, it is made clear that
this judgment shall not preclude the competent authority from
taking fresh decision in the matter of confirmation of the private
respondents after giving them effective opportunity of hearing
against the allegation of use of unfair means in the test held on
27-2-2011."
[Note: The Rules 15 and 16 are in pari-materia with the Rules
1979]
30. In the present case, the enquiry was not a full scale
formal enquiry. The enquiry was in summary manner as it was for
minor penalty charges. Secondly, the allegations were not for moral
turpitude. But however it was a misconduct i.e., disobeying the
higher officials, writing to the officers by e-mail and letter even
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W.A.NO.1291 OF 2024
though they were in the same branch, threatening higher officers of
legal action.
31. It is worth to note that in terms of Regulation 16 stated
(supra), there is no necessity for the Competent Authority to give
reasons as to why the conduct of the petitioner was not fit for the
Institution. As per the Regulations, the decision of the employer to
hold the petitioner was unsuitable and unfit to the Organization
cannot be questioned. However the Courts can lift the veil and see
whether the disciplinary enquiry was the 'motive' for the termination
or 'foundation' for the termination of the services the delinquent.
32. The proceedings before the General Manager quoted
supra indicate that the disciplinary proceedings were the foundation
to invoke Regulation 16. The charges framed and the reasons for
termination were same. Though the termination letter dated
3.8.2019 do not refer to the disciplinary proceedings for minor
penalty, the proceedings before the General Manager dated
2.8.2019 do quote and refer to the same. It is noticed that the
barely two weeks after the minor punishment order [dated
16.07.2019] the termination proceedings were held.
33. It is only, if it is prima facie shown that the order of
termination is illegal and falls in the scope of the judicially evolved
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W.A.NO.1291 OF 2024
principles as stated in the case of Abhijit Gupta(supra) and the
case of Palak Modi (supra) there will be interference. Evidently the
proceedings before the General Manager dated 2.8.2019 are
'founded' on the disciplinary proceedings. The reasons for
termination are the same as the imputation of the charges.
Obviously, the appellant was not given an opportunity to improve,
by extending the period of probation. The charges alleged in the
imputations are the one mentioned for termination. Therefore, we
are of the view that the termination order is not sustainable as it is
'founded' on the charges which was subject matter of the minor
penalty proceedings. Hence the termination order dated 2.8.2019
and the communication dated 3.8.2019 are vitiated.
34. Under these circumstances, we hold that the
Competent Authority had come to the wrong conclusion about the
petitioner in terminating him from service. Therefore, point No.2 is
answered in favour of the appellant.
35. The appellant has also contended that, as per the
Rules applicable, the competent authority empowered to order the
termination of officers in Junior Management Grade Scale-I is the
General Manager, Personnel Wing. It has further been urged that
the order of termination in the present case was issued by the
Assistant General Manager, Circle Office, Mumbai, and is therefore
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W.A.NO.1291 OF 2024
without authority and jurisdiction. This contention, however, is
misconceived. It is pertinent to note that the General Manager,
Personnel Wing, has been designated as the competent authority
by the Board of Directors of Canara Bank only for the limited
purpose of the Canara Bank Officer Employees' (Acceptance of
Jobs in Private Sector Concerns After Retirement) Regulations,
2001. The said designation does not extend to matters governed
by the Canara Bank (Officers') Service Regulations, 1979, which
regulate the appointment, probation, and termination of officer
employees of the Bank. A perusal of the Canara Bank (Officers)
Service Regulations, 1979 reveals that no specific authority has
been designated therein as the competent authority concerning
termination of officers. Accordingly, this contention of the appellant
that the order of termination is without authority is devoid of merit
and cannot be sustained.
36. In view of the above, the appellant has to be
reinstated. There is no material to show that the appellant is
gainfully employed or not. In the light of the judgment of the Apex
Court in J. K. Synthetics Vs K. P. Agrawal15 it would be apposite
to allow 50% of the consequential benefits.
2007 (2) SCC 433
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W.A.NO.1291 OF 2024
37. In the result, for the aforementioned reasons, the
appeal is allowed in part. The punishment imposed on the
appellant pursuant to the disciplinary proceedings for minor penalty
is upheld. However, the order of termination under Regulation
16(3) of Canara Bank (Officers') Service Regulations, 1979 is set
aside. The appellant shall be reinstated, but entitled for 50% of
consequential benefits.
38. However, it is made clear that this judgment shall not
preclude the competent authority from taking fresh decision in the
matter of confirmation of the appellant after assessing his
performance independent of the allegations made in the minor
penalty proceeding under Regulation 8 of Canara Bank Officers
Employees' (Discipline and Appeal) Regulations, 1976.
Sd/-
(VIBHU BAKHRU)
CHIEF JUSTICE
Sd/-
(C M JOSHI)
JUDGE
RKM-para 1 to 7
SSP-para 8 to end
CT:PA
