IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6620 of 2011
For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PRAKASHINI - Petitioner(s) Versus
STATE BANK OF INDIA (SBI) & 2 - Respondent(s)
========================================================= Appearance :
MR SHIVANG J SHUKLA for Petitioner(s) : 1, MS DHARMISHTA RAVAL for Respondent(s) : 1 - 3.
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CORAM : HONOURABLE MS JUSTICE SONIA GOKANI
Date : 18/12/2012
ORAL JUDGMENT
1. This petition is preferred under Article 14, 16 and 226 of Constitution of India by the petitioner who applied for the post of Probationary Officer in the set up of respondent No.1-Bank. She succeeded in clearing two written examinations as well as group discussion and personal interview. Resultantly, she was appointed on 15th May, 2009 and was placed on probation/training for a period of two years.
2. It is averred in the petition that during the course of probation, petitioner needed to undergo training at various places and under various authorities. She has not been communicated any adverse remarks and she succeeded in completing the said training. Subsequent examination as required was also cleared by her. However, she received communication from respondent No.2 on 13th May, 2011 and her probation was extended for the period of three months under Rule 16(2) of “State Bank of India Officers Service Rules” (SBIOSR). On inquiry, of her averred shortcomings, nothing adverse was communicated, not even during the extended period. The services of one of her collegues is terminated in light of provisions of Rule 16(3) of SBIOSR. On 12th May, 2011. Therefore, she apprehend that her services also may be terminated without any reason and hence, approached this Court with a request to invoke the extraordinary jurisdiction under Article 227 of Constitution of India.
3. It is averred in the petition that petition was filed on 16th May, 2011 and the same came up for hearing on 17th May, 2011. As the order of termination was not passed, the same was fixed on 7th June, 2011 and the petitioner was communicated termination order on 7th June, 2011 and hence, she has sought following prayers :
“(A) Admit and allow the present petition.
(B) Issue a writ of certiorari and or a writ in nature of mandamus or any other appropriate writ order or direction quashing and setting aside the termination order issued by the respondents and which has been served to the petitioner on 7.6.2011.
(C) Direct the respondents not to implement and execute an order of termination and further be pleased to direct the respondents to permit the petitioner to perform her duties as Probationary Officer without any hindrance, pending hearing and final disposal of this petition.
(D) Award cost of this petition.
(E) Pass any other and further orders as may be deemed, fit and proper in the interest of justice.
4. Affidavit in reply has been filed on behalf of respondent -State Bank of India interalia urging that the petition has become infructous as order of discharge has already been passed. It is further urged that respondent is not a “State” within the meaning of Article 12 of Constitution of India. Bank carrying on its activities under the provisions of State Bank of India Act and is working under the supervision of Reserve Bank of India. All the terms and conditions of the officers working with the respondent are governed by this Rules. Therefore, in the event of any grievance petitioner can take recourse to proceedings before the Civil Court. It is further contended that on 28th April, 2009 in a letter appointing petitioner as Probationary Officer, her period of probation was of two years from the date of appointment and subject to satisfactory performance in the evaluation of test to be conducted by the respondent, confirmation was to follow.
According to the respondent Rule 16(2) authorizes respondent to extend the probation period of one year if the service of any officer was not satisfactory or officer has not passed the test. However, no reason is required for such extension.. Petitioner herein made her representation on 14th May, 2011 and without waiting for the respondent to reply to the said representation, she rushed to the Court on 16th May, 2011 by preferring the present petition. It is further contended that invoking the provisions of Rule 16(3) of SBIOSR her services has been terminated. It is further contended that because of non-satisfactory performance of the petitioner in the test conducted by the Institute of Banking Personnel Selection. Order of discharge has been passed on having been satisfied that she has not found fit to be continued in the service.
5. Affidavit in sur-rejoinder is filed by the petitioner challenging all the contents of the Affidavit- in-reply. It is urged that the contents of the affidavit clearly reveal the evil design of the respondent where it reserves the powers of judicial review of the Court. It is further stated that State Bank of India is a creature of statute and therefore, amenable to the jurisdiction of this Court under Article 226 of the Constitution of India . What has been objected to is a grant of period of three months to the petitioner on one hand and also terminating her services without such period being completed. Proper procedure has not been followed for evaluating the performance of probationary officer and Rule 30.15.5 of SBIORS requires to apprise the petitioner about the adverse comment if any so as to enable him/her to improve her performance. It is further urged that if the officer has not passed the test she cannot be terminated on the ground of securing less than 50% marks in the examination, as in such eventuality candidate is required to appear in another confirmation test on or before completion of 24 months. Her probation will be extended for the period of maximum one year with the provision to appear in two more confirmation tests. Therefore, petitioner not successfully passing the examination, cannot be the ground for dispensing with her service and only contingency according to the petitioner that would arises that she has not communicated with any adverse remarks. It is not open to the respondent, as alleged, to evolve the procedure which is alien to the statutory procedure regarding suitability of the petitioner.
6. In affidavit in sur Rejoinder on behalf of the respondent as also in further affidavit on behalf of respondent, all these aspects have been denied. However, details of the written examination and the test conducted by the Institute of Banking Personnel Selection (IBPS) have been provided. It is mentioned that written examination was conducted on 6.3.2011. The petitioner along with other Management Executives appeared in the said test. Answer-sheets were sent for evaluation and analysis to the Institute of Banking Personnel Selection(IBPS). IBPS is an autonomous body registered as a public Trust under the Bombay Public Trust Act of 1950. It is Scientific and Industrial Research Organization by the Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India. In the year 1984 that IBPS became an autonomous body , the first Chairman the then Governor of RBI Dr.Manmohan Singh . IBPS is envisioned as self governed academic and research oriented institute, with a mission of enhancing human resource development through personnel assessment. It is say of the respondent that IBPS evaluated the answer sheets. Based on the scientific and full proof method, it found the case of the petitioner to be a case of “use of unfair means is suspected”. It also found that suspected candidates were seated in close proximity to each other. Therefore, it is say of the respondent that its employees are expected to have highest degree of integrity and trust worthiness and therefore, petitioner was discharged giving her a chance to make good in other walks of life, without casting any stigma. Since respondent found that the petitioner is not found fit for confirmation and there is no stigma attached when she was discharged from the service of the bank.
7. Learned advocate Mr.Shivang Shukla appearing for petitioner has contended that respondent- Bank did not assess the suitability of the petitioner in service on the basis of her performance as probationer. However, services were terminated under the pretext that she had resorted to unfair means during the confirmation test. He fervently urged that the method adopted by the respondent in arriving at such a conclusion has no scientific nor any legal basis. Learned advocate therefore urged that the order of termination being punitive in nature, the same should be quashed. Reliance is placed on the judgment of Allahabad High Court delivered on 13th January, 2012 in case of Minshu Saxena Vs. Union of India & Ors., where the identical issue has been considered by the Division Bench.
8. Yet another judgment sought to be relied upon rendered the decision in case of Palak Modi Vs. State
Bank of India & Ors. rendered in writ petition (C) NO.1512 of 2011.
9. The decision of Supreme Court reported in case of Rajesh Kohli Vs. High Court of Jammu and Kashmir reported in (2010)12 SCC 783 discussing ambit and nature of work and conduct of Probationary Officer. Catena of the judgments discussed in this authority at length lay down the test as to whether the order terminating service of the probationer is stigmatic or not ?
10. Per contra, Ms. Dharmishta Raval appearing for respondent -State Bank of India has urged that the decision of Palak Modi is pending before the Supreme Court as the same has been challenged by the respondent herein. She urged that there is well laid down catena of judgments and order passed in connection with petitioners herein does not fall under category of being called stigmatic. She also fervently urged that the probation period was not yet over and in the order of appointment, it was mentioned that confirmation of services was subject to certain conditions. She also further urged that Allahabad High Court has failed to consider certain important aspects when it held while accepting the report of IBPS. He further scrutinizing the case of the petitioner on the basis of the performance in descriptive paper and the interview would not arise as petitioner was on probation and not on confirm the service of bank. She further urged that the respondent-Bank simply discharged the probationer/petitioner so as to ensure that no stigma is attached to her and thus holding any inquiry and further scrutiny the services were terminated.
11. On thus having heard learned advocate for the parties and having record of the material on record and submissions of both the sides, it can be noted that petitioner herein has challenged the order dtd. 7th June, 2011,whereby the services of petitioner has been terminated under the provision of Rule 16(3)of SBIOSR and one month salary in lieu of notice period was given.
Respondent-SBI invited the application for appointment of Probationary Officer and petitioner herein worked as Probationary Officer from 14/5/2009.
12. When the petitioner filed the petition, one Management Executive Mr. Aditya Kumar, whose probation period was extended upto three months i.e 5th July, 2011 was served with the letter whereby his services under Rule 16(3) of SBIOSR was terminated for not having found fit during the confirmation process. Being apprehensive of the similar treatment by the respondent -Bank. Petitioner had moved this Court prior to her termination. As mentioned hereinabove, initially though there was no order of termination passed and the matter was fixed on 7thJune, 2011, when she was communicated such a letter of termination.
13. Petitioner being the eligible was appointed as Probationary Officer for the period of two years from the date of appointment and subject to satisfactory performance in the evaluation of the test to be conducted by the respondent, confirmation was to follow. Petitioner was to be confirmed to the Senior Post of Management Executive /Middle Management Grade Scale-II and III. Her initial appointment was made after she had undergone written examination, interview and all other necessary tests. The said order of appointment contemplated that the initial period of probation would be of two years and confirmation would be subject to satisfactory performance in the evaluation test conducted by the Bank during the probation period.
14. Petitioner joined service and underwent training at various places/branches of the respondent- Bank as petitioner was required to undertake the confirmation test of 200 marks as per appointment letter. The same had consisted of objective test. (Multiple Choice Questions) and descriptive paper. Test are conducted by the Institute of Banking Personnel Selection(IBPS). It sets question, and also evaluates them. It is autonomous body registered as public trust under the Bombay Public Trust Act 1950. It is the Scientific and Industrial Research Organization established by the Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India. In 1984, IBPS has become an independent entity at the behest of Reserve Bank of India and public sector banking. This institute would assessee the candidates which included this petitioner .
15. It appears from the reply of the respondent- bank that IBPS had sent a report to the respondent- bank giving list of candidates, in whose case “use of unfair means is suspected”. It was also found in cases of candidates seating in close proximity to each other. Resultantly, respondent-Bank vide this order dated 5.4.2011 extended the period of probation by another three months under Rule 16(2) of SBIOSR before completion of three months period service of petitioner had been discharged by taking recourse to rule 16(3)(a) of SBIOSR.
16. In such circumstances questions which have arisen for determination of this Court are as follow :-
1. Whether the order of discharge from the service can be termed as termination simplicitor or is punitive in nature ?
2. Whether act of respondent-bank in terminating the services of the petitioner is arbitrary for having been passed on report of IBPS ?
3. Whether the report of IBPS is based on any scientific or rational formula to inspire the confidence ?
17. It would be profitable to recapitulate various decisions of the Apex Court in case of Anoop Jaiswal Vs. Govt. of India reported in (1984) 2 SCC 369 :
“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 the order, in giving effect to the rights conferred by law upon the employee”
17. Apex Court rendered in case of Radhey Shyam Gupta Vs. U.P.State Agro Industries Corporation Ltd and another reported in (1999) 2 SCC 21. It was held that order of termination would be if is the foundation, the same would be punitive. If the misconduct was the motive, the order of termination is simpliciter. Yet another test of “form” and “substance” is laid down by the Apex Court rendered in case of Union of India & Ors Vs. Mahaveer C.Singhvi reported in AIR 2010 SC 3493. It says that by the “form” of the order, It is stigmatic, the same would be punitive. But if order does not cast stigma by the “form” and “substance” of the order is to be found out.
18. Supreme Court rendered in case of Rajesh Kohli Vs. High Court of Jammu and Kashmir and another reported in (2010) 12 SCC 783 which as observed as under:
17. In the present case, two orders are challenged, one, which was the order of the High Court based on the basis of the resolution of the full court and the other one issued by the Government of Jammu & Kashmir on the ground that they were stigmatic orders.
18. In our considered opinion, none of the aforesaid two orders could be said to be a stigmatic order as no stigma is attached. Of course, aforesaid letters were issued in view of the resolution of the full court meeting where the full court of the High Court held that the service of the petitioner is unsatisfactory. Whether or not the probation period could be or should be extended or his service should be confirmed is required to be considered by the full court of the High Court and while doing so necessarily the service records of the petitioner are required to be considered and if from the service records it is disclosed that the service of the petitioner is not satisfactory it is open for the respondents to record such satisfaction regarding his unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor it could be said that stating in the order that his service is unsatisfactory amounts to a stigmatic order.
19. This position is no longer res integra and it is well- settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI Of Medical Sciences reported in (2002) 1 SCC 520, this Court has explained at length the tests that would apply to determine if an order terminating the services of a probationer is stigmatic. On the facts of that case it was held that the opinion expressed in the termination order that the probationer's "work and conduct has not been found satisfactory" was not ex facie stigmatic and in such circumstances the question of having to comply with the principles of natural justice does not arise.
20. In Verma Case this case court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this Court in para 21 of the aforesaid decision it was stated by this Court thus:
"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 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 anyone of the three factors is missing, the termination has been upheld."
In para 29 of the judgment, it further held thus:
"29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? 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."
20. In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna reported in (2001) 9 SCC 319, the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. This Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. This Court held in para 5 thus: -
"5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated."
6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services."
21. In the case of Chaitanya Prakash v. H. Omkarappa reported in (2010) 2 SCC 623, the services of respondent were terminated by the appellant company. During the period of probation, his services were not found to be satisfactory and he was also given letters for improvement of his services and his period of service was also extended and ultimately company terminated him. Court after referring to a series of cases held that the impugned order of termination of respondent is not stigmatic.
22. In the case of State of Punjab v. Bhagwan Singh reported in (2002) 9 SCC 636 this Court at paragraphs 4 & 5 held as follows: -
"4................... In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.
5. The other sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory". Even that does not amount to any stigma."
23. In the present case, the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.
19. Thus, the law on the subject is that the foundation of order of termination of services of probation if is based upon the misconduct and not general unsuitability of the candidate, it is open for Court to ignore the form of order and conclude the same as punitive and when Court comes to such conclusion that the order is punitive, in absence of opportunity to the officer to disprove the allegations, termination would be liable to be set-aside.
20. It may be noted from the record that the respondent-Bank has terminated the services of the petitioner on the basis of the report received from IBPS and the probation period came to be terminated not on the basis of assessment of the service record of the petitioner during the probation period, but, on alleged use of unfair means by the petitioner during the confirmation test. Undoubtedly, this is foundation. It is also a fact that though initially on completion of period of two years of probation instead of confirming the petitioner, her probation period was further extended for three months. However, instead of allowing her to complete such period of three months, her services came to be terminated within one months.
21. Respondent-Bank also by way of affidavit placed on record, the methodology adopted by the IBPS for “Detection of Use of Unfair Means” in the following manner in answer to the Court's queries:
“2. The respondent and a number of other PSU banks have been appointed by Institute of Banking Personnel Selection (hereinafter known as IBPS) is an autonomous organization for the purposes of setting the question paper, printing, distribution and evaluation of answer sheets. IBPS has been following a similar procedure and methodology for more than two decades.
3. The IBPS adopted its usual procedure for the written test held on 27.2.2001 wherein 2185 probationers (including the petitioner) appeared in the examination. The examination consisted of two separate parts,one descriptive and the other being objective. Both were conducted on the same day one after another. The petitioner and others were given test booklets as well as answer sheets. The candidate after reading the question from the test booklet marks his/her answer on the answer sheet. The test booklets along with answer sheet are forwarded to IBPS for evaluation.
4. A uniform methodology is adopted by the IBPS, for the purpose of detecting use of unfair means or malpractices by the candidates during objective tests. The methodology adopted by IBPS is that of matching the right as well as wrong answers of each candidate with rest of the candidates in the basket. Candidates who use unfair means in the objective test tends to mark same answer whether right or wrong. They will have large number of matching answers and very few mismatches. A large number of identical wrong answers indicate strong probability of acting together and use of unfair means in the objective test. In one question, there are five choices, out of which there is one right answer and four wrong answers. Hence, the probability of picking a particular wrong answer by a candidate is one out of four or 0.25. Similarly, if the other candidate does not happen to know the right answer to the same questions, he will select one out of four wrong answers. Therefore, probability of a pair of candidates choosing same wrong answer is 1/16. Therefore, the occurrence of one question with identical wrong answer by a pair of candidates will be 1/16 which is equal to (0.25)2. Similarly, the probability of a pair of candidates, having two question with identical wrong answers would be (0.25)4. If this is continued in same way, the probability of a pair marking the same wrong answer to 9 questions is less than 1 in 68 billions assuming choices are equally attractive. This statistical analysis of probability does not take into account the seating arrangement. Further evidence is provided through their seating arrangement as the petitioner and another candidate were sitting next to each other. Such a possibility by chance is remote.
5. In the case of the petitioner, IBPS found that out of 60 questions, there was a total match of 54 answers with that of another probationer candidate who was sitting next to the petitioner. IBPS also found that out of the total match 54 answers, there were 45 right answers and 9 identical wrong answers in the case of both the candidates. The probability of there being identical 9 wrong answers is less than 1 in 68 billion.
6. Since it is not possible to have such high occurrence of identical wrong answers, respondent -Bank took a uniform decision of discharging from service all the 11 pairs i.e. 22 probationer officers in whose case a report was received from the IBPS that the candidates have six or more identical wrong answers.
7. The respondent has corresponded with IBPS regarding their evaluation of the test papers of the present test and they have by a letter dated 27.1.2012 replied as follows:
“...........we are confident that our suspicion about candidates having resorted to unfair means is tenable and therefore, it is not mandatory for the board/Organization to further securitize all the cases falling under 4(B) for confirmation on he basis of performance in descriptive paper and interview. “
22. Instead of independently concluding as to whether the order impugned would amount to stigma or not, and whether there is a necessity to lift the veil by looking at the substance and true character of the order instead of seeing form for determining that in reality order impugned is punishment, it would be apt to refer to the judgment of the Apex Court rendered in pending Civil Appeal Nos 7841 and 7842 of 2012 in case of State Bank of India and other Vs. Palak Modi and another dated 3rd December, 2012 where the appeals of the present respondent have been dismissed by the Apex Court, directing reinstatement of the employees within 15 days of the receipt of copy and with a further direction of granting all consequential benefits to such probationers. It is utmost vital to reproduce the relevant findings of the Apex Court which would for direct bearing upon the case of present petitioner :
“1. Whether the alleged use of unfair means by Palak Modi and Prabhat Dixit (hereinafter described as ‘the private respondents’) in the testheld by appellant No.1 – State Bank of India (for short, ‘the Bank’) constituted the foundation of the decision taken by General Manager (NW-I), State Bank of India, Human Resource Department (respondent No.3) to terminate their services under Rule 16(3) of the State Bank of India(Officers’ Service) Rules, 1992 (for short, ‘the Rules’) is the pivotal question which arises for consideration in these appeals filed against order dated 17.11.2011 passed by the Allahabad High Court in Writ Petition Nos.1298/2011 and 1512/2011 ”
22. A combined reading of Rules 15(1) and 16 and paragraph 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 theProbationary 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 authoritycan, if it is of the opinion that the Probationary Officer is not fit for confirmation, terminate his service by one month’s notice or payment of one month’s emoluments.
23. It is thus evident that satisfactory performance during the periodof probation, successful completion of training(s) and passing of the test conducted by the Bank for judging his suitability for the post constitute the touchstone for his confirmation.
24. The policy of confirmation, which was circulated vide letter dated 20.9.2010 envisaged placement of the Probationary Officers scoring 75% or more marks in the written test, group discussion and interview in MMGS- II. Those scoring less than 75% but minimum 50% (general category) and 45% (SC/ST/PWD) could be confirmed in JMGS-I.
Those scoring less than 50% or 45%, as the case may be, are eligible to again appear in the confirmation test and qualify the same before completion of two years’ probation. If he fails to qualify the test second time, his service is liable to be terminated in terms of Rule 16(3) of the Rules. An alternative available to the Bank is to extend the period of probation of the candidate for maximum one year with two opportunities to appear in the confirmation tests at six-monthly interval.
25. The primary object of the confirmation test held on 27.2.2011,which could also be termed as evaluation test within the meaning of paragraph 5(c) of the appointment letter was to decide whether the officer has made use of the opportunities made available to him by the Bank to prove his worth for the job for which he was recruited and whether he has acquired sufficient knowledge about the functional requirements of the Bank. The test also gave an opportunity to the Probationary Officer to demonstrate that he was meritorious enough to be placed in the higher grade.
26. 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 misdemeanor. In a given case, the competent authority may, while deciding the issue of suitability of 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/misdemeanor 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.
27. The use of unfair means in the evaluation test/confirmation test held by the Bank certainly constitutes a misconduct. The Bank itself had treated such an act to be a misconduct (paragraph 10 of advertisement dated 1.7.2008). It is not in dispute that the services of the private respondents were not terminated on the ground that there was any deficiency or shortcoming in their work or performance during probation or that they had failed to satisfactorily complete the training or had failed to secure the qualifying marks in the test held on 27.2.2011. As a matter of fact, the note prepared by the Deputy General Manager, which was approved by the General Manager makes it crystal clear that the decision to dispense with the services of the private respondents was taken solely on the ground that they were guilty of using unfair means in the test held on 27.2.2011. To put it differently, the foundation of the action taken by the General Manager was the accusation that while appearing in the objective test, the private respondents had resorted to copying. IBPS had relied upon the analysis made by the computer and sent report to the Bank that 18 candidates were suspected to have used unfair means. The concerned authority then sent for the chart of seating arrangement and treated the same as a piece of evidence for coming to the conclusion that the private respondents had indeed used unfair means in the examination. This exercise was not preceded by an inquiry involving the private respondents and no opportunity was given to them to defend themselves against the charge of use of unfair means. In other words, they were condemned unheard which, in our considered view, was legally impermissible.
28. Before concluding, we may notice the judgments relied upon by the learned senior counsel for the appellants. In Ajit Singh v. State of Punjab (supra), this Court considered the question whether the decision of the State Government to terminate the services of the appellants, who were appointed as Executive Officers on probation of one year, could benullified on the ground of violation of Articles 14 ad 16 of the Constitution. The facts of the case show that the Punjab Town Improvement Act, 1922 was enacted to make provision for the improvement and expansion of towns in Punjab. The Act envisages the creation and constitution of Trusts and the Trust so created will have a corporate personality with perpetual succession and a common seal. The duties and functions of the Trust inter alia include preparing of schemes under the Act for various purposes. Section 17 conferred power on the State Government to constitute certain services in the manner therein prescribed. One such service contemplated by the section was Punjab Service of Trust Executive Officers. Sub- section (2) of Section 17conferred power on the State Government to make rules for regulating the recruitment and the conditions of service of members of the Trust services constituted by the State Government. Armed with this power, the State Government constituted Punjab Service of Trust Executive Officers. In exercise of the power conferred by Section 73 read with Section 17(2) of the Act, the State Government framed rules styled as Punjab Trust Services (Recruitment and Conditions of Service) Rules, 1978 (“1978 Rules” for short). Rule 5(2)(i) inter alia provided that 50 per cent of the vacancies in the cadre of Executive Officers shall be filled by direct recruitment and for this purpose Rule 5(4) envisaged the setting up of a Selection Committee called Punjab Trust Services Selection Committee. In 1978, Directorate of Local Government, Punjab issued Advertisement No. 1078 inviting applications for the posts in Class I, II and III of Trust Executive Officers. Pursuant to this advertisement,large number of persons applied for various posts. The Punjab Trust Services Selection Committee interviewed various candidates and ultimately recommended 11 persons for the post of Trust Executive Officers. Ajit Singh and Rajinder Singh were recommended for Class I post; S. Sarup Singh and R.L. Bhagat were recommended for Class II post of Trust Executive Officers and the remaining seven petitioners in this group of petitions were recommended for Class III post of Trust Executive Officers. These recommendations were accepted and appointment orders were issued by Punjab Government on May 28, 1979. After each appointee completed one year of service, an increment was released in his favour. After one year, the State Government terminated their services vide orders dated 25.9.1980. One of the several grounds on which the appellants challenged the termination of their services was that the action of the employer was wholly arbitrary, discriminatory and violative of equality clause contained in the Constitution. While quashing orders dated 25.9.1980, this Court observed:
“When the master-servant relation was governed by the archaic law of hire and fire, the concept of probation in service jurisprudence was practically absent. With the advent of security in public service when termination or removal became more and more difficult and order of termination or removal from service became a subject- matter of judicial review, the concept of probation came to acquire a certain connotation. If a servant could not be removed by way of punishment from service unless he is given an opportunity to meet the allegations if any against him which necessitates his removal from service, rules of natural justice postulate an enquiry into the allegations and proof thereof. This developing master-servant relationship put the master on guard. In order that an incompetent or inefficient servant is not foisted upon him because the charge of incompetence or inefficiency is easy to make but difficult to prove, concept of probation was devised. To guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he is absorbed in service or gets a right to the post. Period of probation gave a sort of locus pententiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserved a right to dispense with his service without anything more during or at the end of the prescribed period which is styled as period of probation. Viewed from this aspect, the courts held that termination of service of a probationer during or at the end of a period of probation will not ordinarily and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to (see Parshotam Lal Dhingra v. Union of India). The period of probation therefore furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispens with his service. Period of probation may vary from post to post or master to master. And it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer.”
The Court then took cognizance of the fact that on completion of one year’s probation an increment was released in favour of the appellants and proceeded to observe:
“It is implicit in release of increment that the petitioners had satisfactorily discharged their duty during the probation period, and at any rate the work and conduct was not shown to be unsatisfactory, which permitted an increment to be earned. Assuming, as contended for on behalf of the respondents that period of probation was two years, the fact that on the expiry of one year of service an increment was released, would imply that during the period of one year the work and conduct has not been unsatisfactory. If it was otherwise the release of increment could have been interdicted on the ground that neither the work nor the conduct was satisfactory. The fact that the increment was released would at least permit an inference that there was satisfactory completion of the probation period and that during the probationary period, the work and conduct of each of the petitioners was satisfactory. If up to the end of June, 1980 the work and conduct of each of the petitioners was satisfactory and if the service of each of them was, simultaneously on the same day September 25, 1980 dispensed with on the ground mentioned in Rule 9(2) (a) in that in the opinion of the appointing authority, the work and conduct of each of the petitioners was not satisfactory, then between June 1980 and September 1980 something was simultaneously done by each of the petitioners to permit the appointing authority - the State - to reach an affirmative conclusion that the work and conduct, became wholly unsatisfactory and the degree of dissatisfaction with the service was so high that the service of all the 11 petitioners recruited on the same day was required to be dispensed with on identical ground. This is too fortuitous to carry conviction.”
29. In Krishnadevaraya Education Trust v.
L.A. Balakrishna (supra), the Court noted that the services of the respondent, who was appointed as Assistant Professor on probation were terminated on the ground of unsuitability and observed:
“There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, naturally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services. In the instant case, the second order which was passed terminating the services of the respondent was innocuously worded. Even if we take into consideration the first order which was passed which mentioned that a Committee which had been constituted came to the conclusion that the job proficiency of the respondent was not up to the mark, that would be a valid reason for terminating the services of the respondent. That reason cannot be cited and relied upon by contending that the termination was by way of punishment.”
30. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (supra), this Court again considered the question whether termination of the service of 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 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.”
31. In Progressive Education Society v. Rajendra (supra), this Court examined correctness of the order passed by the School Tribunal constituted under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, which was approved by the High Court, quashing the termination of the service of respondent No.1 on the ground of unsatisfactory performance during the period of probation. This Court referred to the relevant provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and observed:
“The law with regard to termination of the services of a probationer is well established and it has been repeatedly held that such a power lies with the appointing authority which is at liberty to terminate the services of a probationer if it finds the performance of the probationer to be unsatisfactory during the period of probation. The assessment has to be made by the appointing authority itself and the satisfaction is that of the appointing authority as well. Unless a stigma is attached to the termination or the probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the probationer's service, the management or the appointing authority is not required to give any explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory. The facts of this case are a little different from the normal cases relating to probation and the termination of the services of a probationer in that the satisfaction required to be arrived at under sub-section (3) of Section 5 of the MEPS Act has to be read along with Rule 15 of the MEPS Rules, 1981 with particular reference to sub-rule (6) which provides that the performance of an employee appointed on probation is to be objectively assessed by the Head during the period of his probation and a record of such assessment is to be maintained. If the two provisions are read together, it would mean that before taking recourse to the powers vested under sub-section (3) of Section 5 of the MEPS Act, the performance of an employee appointed on probation would have to be taken into consideration by the school management before terminating his services.
Accordingly, while Rules 14 and 15 of the MEPS Rules, 1981 cannot override theprovisions of sub-section (3) of Section 5 of the MEPS Act, it has to be said that the requirements of sub-rule (6) of Rule 15 would be a factor which the school management has to take into consideration while exercising the powers which it undoubtedly has and is recognised under sub-section (3) of Section 5 of the Act. This brings us to the next question regarding the sufficiency of the materials before the school management while purporting to pass the order of termination on 1-8-1994. As has been discussed, both by the School Tribunal and the High Court, the confidential report which has been produced on behalf of the school management does not inspire confidence on account of the different dates which appear both in Part I and Part II of the said report. Part I of the self-assessment form gives the particulars of the teacher concerned and the remarks of the reporting authority, namely, the Head Mistress of the school. The date in the said part is shown as 4-7-1994, whereas the date at the end of Part II, which is the form of the confidential report giving details of the teacher's performance is dated 24-6- 1994, which appears to be in line with the date given of the forwarding letter written by the Head Mistress to the Secretary of the Society. To add to the confusion created by the different dates on the form, there is a third date which appears on Part I of the self-assessment form which shows that the documents were presumably forwarded to the management of the school on 6-8-1994, which is a date which is prior to the date of termination of the services of Respondent 1, namely, 1-8-1994. This merely goes to show that the said documents are not above suspicion and that the requirements of Rule 15(6) and Rule 14 had not been complied with prior to invocation by the school management of the powers under sub-section (3) of Section 5 of the MEPS Act.”
32. In Rajesh Kumar Srivastava v. State of Jharkhand (supra), the two- Judge Bench examined challenge to the termination of the appellant’s service, who was a Probationer Munsif. After examining the record placed before it, the Bench held that the competent authority had terminated the service of the appellant because his work was not satisfactory and such decision cannot be termed as stigmatic or punitive.”
The petitioner’s case being identical as in all, as per the record, Twenty two probationers were affected in different parts of the country. Independent, examination of the issues raised before this Court will no longer be necessary as these very issues raised before this Court are elaborately concluded by the Apex Court, which would have a binding effect and therefore, this petition is required to be along the same have allowed quashing and setting aside the termination order issued by the respondent as served upon the probationer on 7.6.2011, with further direction to reinstate the petitioner within a fortnight of the receipt of copy of this judgment and also to avail consequential service benefits to the petitioner herein within four weeks thereafter. It is also to be clarified that this will not preclude the competent authority from taking fresh decision in the matter of confirmation of the petitioner , after giving due opportunity of hearing against the allegations of unfair means in the test concerned. Rule is confirmed in the above terms.
This petition stands allowed.
(Ms.SoniaG.Gokani,J) bina