Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7841-7842 OF 2012

State Bank of India and others …Appellants

versus

Palak Modi and another …Respondents

J U D G M E N T

G. S. Singhvi, J.

1. Whether the alleged use of unfair means by Palak Modi and Prabhat

Dixit (hereinafter described as ‘the private respondents’) in the test held 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.

1

Page 2 2.In response to an advertisement issued by appellant No.1, which was

published on 1.7.2008, the private respondents applied for appointment as

Probationary Officers. They appeared in the two-tier examination held by

the Bank, which was followed by group discussion and interview. On being

declared successful, the private respondents were appointed as Probationary

Officers vide letters dated 5.5.2006, paragraph 5 of which reads as under:

“5. You will be on probation for a

period of two years from the date

of appointment. Your confirmation

in the Bank shall be subject to:

(a) Satisfactory reports from our own sources as well as from

District Authorities regarding your character and antecedents.

(b)Satisfactory completion of the in-service training during

probation.

(c) Satisfactory performance in the evaluation tests to be

conducted by the Bank during the probation period. Your

failure in evaluation tests twice will make you unfit for

continuing in Bank's service and in that eventuality, your

appointment will be cancelled and your services terminated by

the Bank.”

3.Vide letter dated 22.12.2010 of Deputy Managing Director and

Corporate Development Officer of the Bank, the Probationary Officers of

2009-10 batch were informed that they are due for confirmation on

15.5.2011 and, therefore, they may appear in the test proposed to be

conducted on 27.2.2011. Paragraph 2 of that letter which has bearing on the

decision of these appeals reads as under:

2

Page 3 “2. The relative extract from the extant policy for confirmation

of probationary officers is reproduced below:-

i)The confirmation test shall be held after 21 months

from the date of appointment of

the probationary officers

(during the probation period)

ii)Candidates scoring a minimum of 75% marks in the

written test would qualify for the further process that will

include group discussion and interview. Candidates

scoring minimum 75% marks in-group

discussion/interview also shall be confirmed and placed

in the grade of MMGS-II. Those scoring less than 75%

marks but minimum 50% (45% for SC/ST/PWD) marks

in the written test shall be confirmed in the grade of

JMGS-I. Candidates scoring less than 50% (45% for

SC/ST/PWD) marks will be given two options as under:

OPTION-I

Candidate will be required to appear in another

confirmation test on or before completion of 24

th

month of his/her probation and

in the event of not qualifying in

the re-test his/her services will

be terminated with immediate

effect and he/she will be paid

one month's emoluments in lieu

of one month's notice in terms

of Rule 16(3)(a) of SBI Officer's

Service Rule read with the

present policy of confirmation

of Probationary officers as

application hitherto.

OPTION-II

3

Page 4 Candidate's probation will be extended by a further

period of maximum one year in terms of two periods of

six months each (extending the total probation period to a

maximum of 36 months) with the provision to appear in

02 more confirmation tests at 06 monthly intervals i.e.

02

nd

test in 27

th

month & 03

rd

test

in 33

rd

month of his/her

probation respectively with the

following conditions:-

In the event of:

Passing the proposed 02

nd

test after 27

th

month of probation candidate

will be confirmed as JMGS-I on

completion of 30

th

month of

probation including extended

period of probation of 06

months. The extended period of

probation of six months will,

however, not to be counted for

service seniority.

Failing in the 02

nd

test put passing the

proposed 03

rd

test after 33

rd

month of his/her probation

he/she will be confirmed as

JMGS-I on completion of 36

th

month of probation including

the extended period of

probation of one year. The

extended period of probation of

one-year will, however, not be

4

Page 5 counted for service seniority.

Failing in the proposed 03

rd

test

administered in 33

rd

month of

his/her probation, 04

increments in basic salary given

to him/her on appointment, as

Probationary Officer will be

withdrawn and he/she will be

absorbed as Officer JMGS-I on

completion of 36

th

month of

probation period including the

extended period of probation of

one year. The extended period

of probation of one year will not

be counted for service

seniority. In all the above cases,

as mentioned in Option II,

where probation period is

extended, the annual increment

date will be shifted by skipping

the extended probation period

of six or twelve months, as the

case may be.

"Further, the service rendered by him/her during

extended probation period of six or twelve months

will also not be counted as eligible service for

seniority as well as for next promotion."

The committed for the Group Discussion /Interview will

comprise of a Chief General Manager, a General

Manager and a Deputy General Manager besides one

5

Page 6 SC/ST representative who should at least be of SMGS IV

incumbency.”

4.The private respondents appeared in the test held on 27.2.2011, the

result whereof was declared on 10.5.2011. Their names did not figure in the

result apparently because Institute of Banking Personnel Selection (for short,

‘IBPS’), an independent expert body engaged in conducting recruitment for

various services, which was entrusted with the task of preparing the

examination papers and evaluating the answer sheets sent a report to the

Bank that some candidates including the private respondents are suspected

to have used unfair means. After four days, respondent No.3 issued letters

dated 14.5.2011 and extended the probation of the private respondents for

three months by invoking Rule 16(2) of the Rules. However, without

waiting for expiry of the extended period of probation, respondent No.3

terminated their services vide letters dated 27.6.2011 by indicating that this

was being done under Rule 16(3) of the Rules.

5.The private respondents challenged the termination of their services

by filing writ petitions mainly on the grounds that the action taken by the

concerned authorities of the Bank was arbitrary and violative of the rules of

natural justice. They pleaded that during the period of probation, no one had

informed them about any shortcoming, deficiency or defect in their work

and yet their services were terminated without giving them notice and

opportunity of hearing. The private respondents further pleaded that even

6

Page 7 though they had requested the concerned officers of the Bank to disclose the

reasons for extension of probation and termination of their services but no

response was received from them.

6.In the counter affidavits filed on behalf of the appellants, it was

pleaded that the decision to extend the probation of the private respondents

and to terminate their services was taken after considering the report sent by

IBPS about suspected use of unfair means by the candidates. It was further

pleaded that on checking the record of seating arrangement, it was revealed

that the private respondents and other candidates were seating in close

proximity with each other and that was considered as a corroborative

evidence of their having used unfair means, namely, copying answers from

one another. According to the appellants, action was taken against the

private respondents strictly in accordance with the conditions of appointment

without holding any formal inquiry into the allegation involving

misconduct.

7.The Division Bench of the High Court did not directly deal with the

question whether the action taken by the General Manager was arbitrary,

unfair and unjustified and whether in the garb of termination simpliciter, the

concerned authority had penalized the private respondents on the charge of

their having indulged in malpractices in the confirmation test but held that

7

Page 8 the action taken by the appellants was contrary to the guidelines framed by

the IBPS for detecting cases of use of unfair means. The Division Bench

referred to paragraph 4 of the guidelines framed by the IBPS and opined that

after considering the report suggesting that the private respondents were

suspected to have used unfair means in the examination, the Bank should

have scrutinized their cases on the basis of their performance in the

descriptive papers and then taken a final decision. The Division Bench took

cognizance of the statement of the senior counsel appearing for the Bank

that performance of the private respondents in the descriptive papers was not

evaluated and held that the Bank could not have discharged them from

service by assuming that they had used unfair means in the objective type

papers.

8.Shri U. U. Lalit, learned senior counsel appearing for the appellants

argued that the impugned order is liable to be set aside because the view

taken by the High Court on the legality and propriety of the decision taken

by respondent No.3 in consonance with the terms of appointment of the

private respondents and Rule 16(3) of the Rules is ex facie erroneous and is

contrary to the terms and conditions of their appointment. Shri Lalit

emphasized that officers and employees of unquestionable integrity are

required by the Bank because their work involves high degree of

responsibility and any compromise in that regard would be detrimental to

8

Page 9 larger public interest. Learned senior counsel then argued that the

assessment made by the appointing authority on the issue of suitability of the

private respondents for confirmation was based on an objective

consideration of the report received from IBPS and in the absence of any

express stigma in the order of termination/discharge, the respondents were

not entitled to complain of violation of the rules of natural justice. Shri Lalit

submitted that holding of regular inquiry is not sine qua non for

discharging a probationer and the High

Court committed grave error by nullifying

the decision taken by respondent No.3 on

the ground of violation of the

guidelines/policy framed by IBPS for

evaluation of the answer sheets. Shri Lalit

produced before the Court xerox copy of

the proceedings which culminated in the

issue of letters dated 27.6.2011 to show

that respondent No.3 approved the note

9

Page 10 prepared by Deputy General Manager,

Central Recruitment and Promotion

Department, who had examined the report

sent by IBPS and checked the record

relating to seating arrangement which

conclusively established that the private

respondents had used unfair means in the

confirmation test. Shri Lalit finally argued

that discharge of a probationer on the

ground of unsuitability cannot be termed

as punitive and respondent No.3 was not

required to give notice and opportunity of

hearing to the private respondents. In

support of this argument, Shri Lalit relied

upon the judgments of this Court in Ajit

10

Page 11 Singh v. State of Punjab (1983) 2 SCC 217,

Krishnadevaraya Education Trust v. L.A.

Balakrishna (2001) 9 SCC 319,

Pavanendra Narayan Verma v. Sanjay

Gandhi PGI of Medical Sciences (2002) 1

SCC 520, Progressive Education Society v.

Rajendra (2008) 3 SCC 310 and Rajesh

Kumar Srivastava v. State of Jharkhand

(2011) 4 SCC 447.

9.Shri Vikas Singh, learned senior

counsel appearing for IBPS submitted that

the institute is an expert body which has

been conducting examinations for the

officers and employees of various

organizations and financial institutions.

11

Page 12 Shri Singh submitted that IBPS has

developed a software of its own for

identifying the cases of use of unfair

means and the software generates report

of all pairs of cases which have identical

responses. The report of the software is

then reviewed by a group of experts and

then and then only a conclusion is reached

about suspected use of unfair means.

Learned senior counsel then argued that

the interpretation placed by the High

Court on para 4(B) of the guidelines

framed by IBPS is wholly erroneous and

the word ‘may’ used in that paragraph

cannot be construed as ‘shall’ so as to

12

Page 13 make evaluation of the descriptive papers

as mandatory even in the cases of

suspected use of unfair means. He

submitted that IBPS had sent report

regarding suspected use of unfair means

because the candidates had given 11

identical wrong answers and 44 identical

correct answers, which was highly

improbable and the appellant did not

commit any error by relying upon that

report. Learned senior counsel referred to

the revised guidelines issued by IBPS for

detecting the cases of use of unfair means

and submitted that the report sent to the

Bank was based on evaluation of the

13

Page 14 papers of objective test in consonance

with the revised guidelines and the

concerned officers of the Bank took

decision after fully satisfying themselves

that the private respondents had used

unfair means in the examination. Shri

Vikas Singh emphasized that the action

taken against the private respondents had

salutary and sobering effects on other

candidates and not a single case of unfair

means was detected by IBPS in the tests

held between 17.7.2011 and 24.6.2012 for

various batches of new recruits.

10.Shri Pallav Shishodia, Mrs. Shobha Dixit, Senior Advocates and other

learned counsel appearing for the respondents argued that even though the

14

Page 15 High Court did not specifically dealt with the question whether the action

taken by respondent No.3 was vitiated due to violation of the rules of natural

justice, the material produced before the High Court and this Court

unmistakably shows that the decision contained in letters dated 27.6.2011

was founded on the conclusion reached by the officers of the Bank that the

private respondents were guilty of using unfair means in the confirmation

test and this could not have been done without giving them action oriented

notice and fair opportunity of hearing. Shri Shishodia pointed out that the

report prepared by IBPS was based on computer scanning of the answer

sheets of the objective papers and the appellants could not have relied upon

such report for jeopardizing the career of the private respondents without

holding an inquiry and without giving them opportunity to controvert the

allegation of use of unfair means. Learned senior counsel submitted that

there was no deficiency or defect or shortcoming in the work or performance

of the private respondents as Probationary Officers and in the guise of

discharging their services under Rule 16(3), the Bank had penalized them on

the specific allegation of using unfair means in the confirmation test without

complying with the basics of the natural justice.

11.The question whether termination of the service of a temporary em-

ployee or a probationer can be treated as punitive even though the order

passed by the competent authority does not contain any stigma has been con-

sidered in a series of judgments. In Parshotam Lal Dhingra v. Union of In-

15

Page 16 dia, 1958 SCR 828, which can be considered as an important milestone in

the development of one facet of service jurisprudence in the country, the

Constitution Bench was called upon to decide whether the order of reversion

of an official holding a higher post in an officiating capacity could be treated

as punitive. After elaborate consideration of the relevant provisions of the

Constitution and judicial decisions on the subject, the Constitution Bench

observed:

“...In short, if the termination of service is founded on the right

flowing from contract or the service rules then, prima facie, the

termination is not a punishment and carries with it no evil con-

sequences and so Article 311 is not attracted. But even if the

Government has, by contract or under the rules, the right to ter-

minate the employment without going through the procedure

prescribed for inflicting the punishment of dismissal or removal

or reduction in rank, the Government may, nevertheless, choose

to punish the servant and if the termination of service is sought

to be founded on misconduct, negligence, inefficiency or other

disqualification, then it is a punishment and the requirements of

Article 311 must be complied with....”

12.In State of Punjab and another v. Sukh Raj Bahadur (1968) 3 SCR

234, Mitter, J. considered several precedents and culled out the following

propositions:

“1. The services of a temporary servant or a probationer can be

terminated under the rules of his employment and such termina-

tion without anything more would not attract the operation of

Article 311 of the Constitution.

16

Page 17 2. The circumstances preceding or attendant on the order of ter-

mination have to be examined in each case, the motive behind it

being immaterial.

3. If the order visits the public servant with any evil con-

sequences or casts an aspersion against his character or integ-

rity, it must be considered to be one by way of punishment, no

matter whether he was a mere probationer or a temporary ser-

vant.

4. An order of termination of service in unexceptionable form

preceded by an enquiry launched by the superior authorities

only to ascertain whether the public servant should be retained

in service does not attract the operation of Article 311 of the

Constitution.

5. If there be a full-scale departmental enquiry envisaged by

Article 311 i.e. an Enquiry Officer is appointed, a charge-sheet

submitted, explanation called for and considered, any order of

termination of service made thereafter will attract the operation

of the said article.”

13.In State of Bihar v. Shiva Bhikshuk Mishra (1970) 2 SCC 871, the

three Judge Bench considered the question whether the respondent’s rever-

sion from the post of Subedar-Major to that of Sergeant in the backdrop of

an inquiry made into the allegation of assault on his subordinate was puni-

tive. On behalf of the appellant, reliance was also placed on the judgments

in State of Punjab v. Sukh Raj Bahadur (supra) and Union of India v. R. S.

Dhaba, Income-tax Officer, Hoshiarpur, 1969 (3) SCC 603 and it was ar-

gued that the order of reversion cannot be treated as punitive because it did

not contain any word of stigma and the High Court committed an error by

relying upon the inquiry conducted by the Commandant for coming to the

17

Page 18 conclusion that the order of reversion was punitive. While rejecting the con-

tention, this Court observed:

“We are unable to accede to the contention of the appellant that

the ratio of the above decision is that so long as there are no ex-

press words of stigma attributed to the conduct of a Govern-

ment Officer in the impugned order it cannot be held to have

been made by way of punishment. The test as previously laid

and which was relied on was whether the misconduct or negli-

gence was a mere motive for the order of reversion or whether

it was the very foundation of that order. In Dhaba case, it was

not found that the order of reversion was based on misconduct

or negligence of the officer. So far as we are aware no such ri-

gid principle has ever been laid down by this court that one has

only to look to the order and if it does not contain any imputa-

tion of misconduct or words attaching a stigma to the character

or reputation of a Government Officer it must be held to have

been made in the ordinary course of administrative routine and

the court is debarred from looking at all the attendant circum-

stances to discover whether the order had been made by way of

punishment. The form of the order is not conclusive of its true

nature and it might merely be a cloak or camouflage for an or-

der founded on misconduct. It may be that an order which is in-

nocuous on the face and does not contain any imputation of

misconduct is a circumstance or a piece of evidence for finding

whether it was made by way of punishment or administrative

routine. But the entirety of circumstances preceding or attend-

ant on the impugned order must be examined and the overriding

test will always be whether the misconduct is a mere motive or

is the very foundation of the order.”

(emphasis supplied)

14.In Samsher Singh v. State of Punjab (1975) 1 SCR 814, a seven-Judge

Bench considered the legality of the discharge of two judicial officers of the

Punjab Judicial Service, who were serving as probationers. A. N. Ray, CJ,

who wrote opinion for himself and five other Judges made the following

observations:

18

Page 19 “No abstract proposition can be laid down that where the ser-

vices of a probationer are terminated without saying anything

more in the order of termination than that the services are ter-

minated it can never amount to a punishment in the facts and

circumstances of the case. If a probationer is discharged on the

ground of misconduct, or inefficiency or for similar reason

without a proper enquiry and without his getting a reasonable

opportunity of showing cause against his discharge it may in a

given case amount to removal from service within the meaning

of Article 311(2) of the Constitution.

The form of the order is not decisive as to whether the order is

by way of punishment. Even an innocuously worded order ter-

minating the service may, in the facts and circumstances of the

case establish that an enquiry into allegations of serious and

grave character of misconduct involving stigma has been made

in infraction of the provision of Article 311. In such a case, the

simplicity of the form of the order will not give any sanctity.

That is exactly what has happened in the case of Ishwar Chand

Agarwal. The order of termination is illegal and must be set

aside”.

Krishna Iyer, J, who agreed with the learned Chief Justice, made the

following concluding observations:

“Again, could it be that if you summarily pack off a proba-

tioner, 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, how-

ever 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 mat-

ter’ and the ‘foundation’ of the order. When does ‘motive’ tres-

pass into ‘foundation’? When do we lift the veil of ‘form’ to

touch the ‘substance’? When the Court says so. These ‘Freu-

dian’ frontiers obviously fail in the work-a-day world and Dr

Tripathi's observations in this context are not without force.”

15.In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha

19

Page 20 (1980) 2 SCC 593, Krishna Iyer, J. considered as to when the termination

simpliciter can be termed as punitive and observed:

“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 different proceedings from the formal

order, does not detract from its nature. Nor the fact that, after

being satisfied of the guilt, the master abandons the 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.

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 ter-

mination simpliciter, if no injurious record of reasons or punit-

ive cut-back on his full terminal benefits is found. For, in fact,

misconduct is not then the moving factor in the discharge.”

16.In Anoop Jaiswal v. Government 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 explanation from all the probationers.

20

Page 21 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 referred to the averments

contained in the pleadings of the parties, the judgments in Parshotam Lal

Dhingra v. Union of India (supra), Samsher Singh v. State of Punjab (supra)

State of Punjab v. Shri Sukh Raj Bahadur (supra), Union of India v. R.S.

Dhaba (supra), State of Bihar v. Shiva Bhikshuk Mishra (supra), R.S. Sial v.

State of U.P. (1974) 3 SCR 754, State of U.P. v. Ram Chandra Trivedi

(1976) 4 SCC 52 and I.N. Saksena v. State of M.P. (1967) 2 SCR 496 and

held:

“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.

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

21

Page 22 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 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)

17.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 Organization 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

22

Page 23 judgments and observed:

“As to in what circumstances an order of termination of a pro-

bationer 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 there is no

difference between cases where services of a temporary em-

ployee 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. and reference

was made to the development of the law from time to time

starting from Parshotam Lal Dhingra v. Union of India to the

concept of “purpose of enquiry” introduced by Shah, J. (as he

then was) in State of Orissa v. Ram Narayan Das and to the

seven-Judge Bench decision in Samsher Singh v. State of Pun-

jab and to post-Samsher Singh case-law. This Court had occa-

sion to make a detailed examination of what is the “motive” and

what is the “foundation” on which the innocuous order is based.

If findings were arrived at in an enquiry as to misconduct, be-

hind the back of the officer or without a regular departmental

enquiry, the simple order of termination is to be treated as

“ founded ” on the allegations and 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 allega-

tions would be a motive and not the foundation and the simple

order of termination would be valid.”

(emphasis supplied)

18.In Chandra Prakash Shahi v. State of U.P. (2000) 5 SCC 152, the

Court considered the correctness of the order passed by the High Court

which had allowed the writ petition filed by the State and set aside the order

23

Page 24 passed by U. P. Public Services Tribunal for reinstatement of the appellant.

The competent authority had terminated the appellant’s service in terms of

Rule 3 of the U. P. Temporary Government Servants (Termination of

Service) Rules, 1975. It was argued on behalf of the appellant that the order

by which his service was terminated, though innocuous, was, in fact,

punitive in nature because it was founded on the allegation that he had

fought with other colleagues and used filthy and unparliamentary language.

In the counter affidavit filed on behalf of the respondents, it was admitted

that there was no adverse material against the appellant except the incident

in question. The original record produced before the Tribunal revealed that

the appellant’s service was terminated on account of his alleged involvement

in the quarrel between the constables. After noticing various precedents, this

Court observed:

“The whole case-law is thus based on the peculiar facts of each

individual case and it is wrong to say that decisions have been

swinging like a pendulum; right, the order is valid; left, the

order is punitive. It was urged before this Court, more than once

including in Ram Chandra Trivedi case that there was a conflict

of decisions on the question of an order being a simple

termination order or a punitive order, but every time the Court

rejected the contention and held that the apparent conflict was

on account of different facts of different cases requiring the

principles already laid down by this Court in various decisions

to be applied to a different situation. But the concept of

“motive” and “foundation” was always kept in view.

The important principles which are deducible on the concept of

“motive” and “foundation”, concerning a probationer, are that a

probationer has no right to hold the post and his services can be

terminated at any time during or at the end of the period of

24

Page 25 probation on account of general unsuitability for the post in

question. If for the determination of suitability of the

probationer for the post in question or for his further retention

in service or for confirmation, an inquiry is held and it is on the

basis of that inquiry that a decision is taken to terminate his

service, the order will not be punitive in nature. But, if there are

allegations of misconduct and an inquiry is held to find out the

truth of that misconduct and an order terminating the service is

passed on the basis of that inquiry, the order would be punitive

in nature as the inquiry was held not for assessing the general

suitability of the employee for the post in question, but to find

out the truth of allegations of misconduct against that

employee. In this situation, the order would be founded on

misconduct and it will not be a mere matter of “motive”.

“Motive” is the moving power which impels action for a

definite result, or to put it differently, “motive” is that which

incites or stimulates a person to do an act. An order terminating

the services of an employee is an act done by the employer.

What is that factor which impelled the employer to take this

action? If it was the factor of general unsuitability of the

employee for the post held by him, the action would be upheld

in law. If, however, there were allegations of serious

misconduct against the employee and a preliminary inquiry is

held behind his back to ascertain the truth of those allegations

and a termination order is passed thereafter, the order, having

regard to other circumstances, would be founded on the

allegations of misconduct which were found to be true in the

preliminary inquiry.

Applying these principles to the facts of the present case, it will

be noticed that the appellant, who was recruited as a Constable

in the 34th Battalion, Pradeshik Armed Constabulary, U.P., had

successfully completed his training and had also completed two

years of probationary period without any blemish. Even after

the completion of the period of probation under para 541 of the

U.P. Police Regulations, he continued in service in that

capacity. The incident in question, namely, the quarrel was

between two other Constables in which the appellant, to begin

with, was not involved. When the quarrel was joined by few

more Constables on either side, then an inquiry was held to find

out the involvement of the Constables in that quarrel in which

filthy language was also used. It was through this inquiry that

25

Page 26 the appellant's involvement was found established. The

termination was founded on the report of the preliminary

inquiry as the employer had not held the preliminary inquiry to

find out whether the appellant was suitable for further retention

in service or for confirmation as he had already completed the

period of probation quite a few years ago but was held to find

out his involvement. In this situation, particularly when it is

admitted by the respondent that the performance of the

appellant throughout was unblemished, the order was definitely

punitive in character as it was founded on the allegations of

misconduct.”

(emphasis supplied)

19.In Union of India v. Mahaveer C. Singhvi (2010) 8 SCC 220, the

three-Judge Bench considered the question whether termination of the

respondent’s service who was serving as I.F.S. probationer by way of

discharge in accordance with the terms of employment was punitive. The

Court noted that the respondent’s service was terminated because he had

sought extension to join the Mission at Madrid in Spain because of sudden

deterioration in the health condition of his parents and also requested for

providing medical facilities and diplomatic passports to them. The Court

also noted that the Ministry of External Affairs had taken cognizance of the

complaint made by one Mrs. Narinder Kaur Chadha that the respondent had

been threatening her entire family and in particular her daughter which was

followed by some enquiries conducted into his conduct or character by Joint

Secretary, Foreign Service Institute and a memorandum was issued to the

respondent alleging his unauthorized absence. The Joint Secretary found

that the complaint was wholly unfounded. The Court then referred to the

26

Page 27 principles laid down in earlier judgments and approved the view taken by

the High Court that even though the order of discharge did not contain any

stigma, the same was not conclusive and the High Court had rightly termed

the same as punitive. Some of the observations made in the judgment are

extracted below:

“The materials on record reveal that the complaint made by Mrs

Narinder Kaur Chadha to the Minister of External Affairs had

been referred to the Joint Secretary and the Director (Vigilance)

on 8-2-2002 with a direction that the matter be looked into at

the earliest. Although, nothing adverse was found against the

respondent, on 19-2-2002, the Joint Secretary (Vigilance) held

further discussions with the Joint Secretary (Admn.) in this re-

gard. What is, however, most damning is that a decision was ul-

timately taken by the Director, Vigilance Division, on 23-4-

2002, to terminate the services of the respondent, stating that

the proposal had the approval of the Minister of External Af-

fairs. This case, in our view, is not covered by the decision of

this Court in Dipti Prakash Banerjee case.”

20.The ratio of the above noted judgments is that a probationer has no

right to hold the post and his service can be terminated at any time during or

at the end of the period of probation on account of general unsuitability for

the post held by him. If the competent authority holds an inquiry for judging

the suitability of the probationer or for his further continuance in service or

for confirmation and such inquiry is the basis for taking decision to

terminate his service, then the action of the competent authority cannot be

castigated as punitive. However, if the allegation of misconduct constitutes

the foundation of the action taken, the ultimate decision taken by the

27

Page 28 competent authority can be nullified on the ground of violation of the rules

of natural justice.

21.We shall now consider whether termination of

the services of the private respondents is

vitiated due to violation of the rules of

natural justice. It will be useful to notice

Rules 15 and 16 of the Rules which

regulate probation and confirmation of the

officers of Bank, paragraphs 7(part) and

10 of the advertisement issued by the

Bank for recruitment of Probationary

Officers, the extracts of note prepared by

Deputy General Manager, Central

Recruitment and Promotion Department,

which was approved by respondent No.3,

28

Page 29 letters dated 12.5.2011 and 3.6.2011 of

Assistant General Manager (HR), which

were duly initialed by the General

Manager. The same read as under:

RULES

“15 (1)A person appointed as a Probationary Officer or a

Trainee Officer shall be on probation for a period

of two years.

15(2) Any other employee promoted as an officer to the

Junior Management Grade shall be on probation

for a period of one year.

15(3) Any other person appointed to any grade including

the Junior Management Grade shall be on

probation for such period as may be decided by the

competent authority.

Provided that the competent authority may, in the

case of any officer, reduce or dispense with the

period of probation under this rule.

16(1) An officer referred to in rule 15 shall be confirmed

in the service 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 Bank may at its discretion subject to

the merit and suitability of a Probationary

Officer/Trainee Officer for future leadership role,

being determined through a screening process to

be prescribed by the Central Human Resources

Committee may confirm and give placement

(fitment) to such officers in MMGS II.

29

Page 30 Provided that an officer directly recruited in any

grade may be required also to pass a test in a

language other than his mother tongue or a

professional course.

16(2) If, in the opinion of the competent authority, an

officer has not satisfactorily completed either or

both the trainings referred to in sub-rule (1) or if

the officer has not passed the test referred to

therein or an officer’s service is not satisfactory,

the officer’s probation may be extended by a

further period not exceeding one year.

16(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 month’s notice or

payment of one month’s emoluments in lieu

thereof, and

(b)in the case of a promotee from the Bank’s

service, he may be reverted to the grade or

cadre from which he was promoted.”

ADVERTISEMENT

“7. xx xx xx

CAREER PATH

The Bank may at its discretion, subject to merit and suitability

after probation period of a probationary officer for future

leadership role, to be determined through a screening process,

confirm and give placement (Fitment) to selected officers in

next higher grade i.e. Officers Middle Management Grade

Scale II.

The Probationary Officers will be on probation of two years

during which they will be given intensive training and towards

end of their probation/training period they will be subjected to a

screening process. While those probationary officers who

30

Page 31 achieve the pre-determined standards may be confirmed and

given placement in the next higher grade i.e. Officer Middle

Management Grade Scale II . Others who qualify the test by fail

to achieve the standards set for placement in Middle

Management Grade Scale II, will be confirmed as Officer

Junior Management Grade I. The services of those Probationary

officers who fail to qualify this process may be terminated.

10. ACTION AGAINST CANDIDATES FOUND GUILTY

OF MISCONDUCT:

Candidates are warned that they should not furnish any

particulars that are false, tampered/fabricated or should not

suppress any material information while filing up the

application form.

At the time of written examination/interview, if a candidate is

(or has been) found guilty of:

(i) Using unfair means during the examination or (ii)

impersonating by any person or (iii) misbehaving in the

examination hall or taking away the question booklet (or any

part thereof)/ answer sheet from the examination hall or (iv)

resorting to any irregular or improper means in connection with

his/her candidature for selection or (v) obtaining support for

his/her candidature by any unfair means, such a candidate may,

in addition to rendering himself/herself liable to criminal

prosecution, be liable;

a) To be disqualified from the examination for which he/she is a

candidate.

b) To be debarred either permanently or for a specified period,

from any examination or recruitment conducted by SBI.

c) For termination of service, if he/she has already joined the

Bank.”

NOTE PREPARED BY THE DEPUTY GENERAL

MANAGER

STAFF SUPERVISING:

PROBATIONARY OFFICERS 2009-10 BATCH

WRITTEN EXAMINATION FOR CONFIRMATION

HELD ON 27-02-2011.

31

Page 32 Placed alongside are: -

·ECCB Memorandum dated the 04

th

December 2003 vide

which policy for confirmation of PO/TO as JMGS-I /

MMGS-II was formed and was made effective for the

batches of the PO/TO who were due for confirmation as

from a date after the date of the approval of the policy

i.e. 04

th

December 2003(Flag "A").

·Letter No. P&HRD: CM: 5:SPL: 815 dated the 29

th

September 2004 & P&HRD/CM/5/3982 dated the 28

th

October 2005 regarding pattern for the screening process

for considering PO/TO for confirmation as JMGS-I /

MMGS-II and also for extension of probation period by 06

months for those who will fail to secure minimum

qualifying marks in the written test of functional

knowledge (Flag "B").

·Cadre Management Department Memo No.

HR/CM/8/691 dated 17-01-2008 regarding modification

in screening process for confirmation of POs in JMGS-I /

MMGS-II consequent upon revision in recruitment

procedure / criteria approved by the ECCB in its meeting

held on 28

th

December 2007(Flag "C").

·Cadre Management Department Memo No.

HR/CM/6/SPL/517 dated 20-09-2010 forwarding

therewith copy of note no. HR/CM/6/111/2010-11 dated

the 09

th

September 2010 with supplementary note dated

the 13

th

September 2010 put up before CHRC in its

meeting held on 13

th

September 2010 advising

modification to be effected in the policy for confirmation

of Probationary Officers (POs) and Trainee Officers (TOs)

(Flag "D").

·A copy of our approved note No. CRPD/SNP/PO-09-

10/269 dated 08-12-2010(Flag "E") finalizing date of

confirmation of written test for probationary officers

2009-10 batch.

3.Accordingly, written test was conducted for confirmation

of probationary officers 2009-10 batch on 27-02-2011, wherein

2185 candidates appeared in the test against 2204 candidates

called for the examination.

4. As per the approved testing pattern, the minimum

32

Page 33 qualifying marks in the written test for confirmation in JMGS I is

50% i.e. 100 out of 200 (for SC/ST/PWD 45% i.e. 90 out of

200) and 75% (150 out of 200) for qualifying them for Group

Discussion / Interview for their confirmation in MMGS II direct.

5. The policy for confirmation of PO/TO has been modified

after announcing the date of the written test but before

processing the result thereof. The process of declaring the

results as also advising the candidates the effects of their

securing less than the minimum passing marks at 50% (45%

for SC/ST/PWD candidates) in the written test held on 27-02-

2011 have been modified as detailed in the Annexure-II.

6. The evaluation of all the answer papers (Objective type

and Descriptive type) in respect of 2185 candidates has since

been completed. We are in receipt of the merit list drawn on the

basis of aggregate marks secured in Objective & Descriptive

Papers from IBPS. The descriptive papers of all candidates who

secured marks between 48% and 50% GEN/OBC (43% and

45% in respect of SC/ST/PWD candidates) as also those

securing marks between 74% and 75% in the aggregate were

subjected to 100% moderation.

7. We have also received report on "Use of Unfair Means"

i.e. copying based on analysis done by IBPS, Mumbai. A brief

write up in "Detection of use of unfair means in objective tests

by the candidates" is enclosed as Annexure-III. They have

found 11 such pairs involving 20 candidates (Annexure-IV) as

per undernoted table

Copying Cases in Written Test held on 27-02-2011 for

Confirmation of Probationary Officers 2009-10 Batch

SR.

NO.

CENTRE NO.

OF

PAIRS

NO. OF

CANDI-

DATES

CATEGORY

01Ahmedabad 02 04 Use of Unfair Means is sus-

pected.

02Guwahati 01 02 Use of Unfair Means is sus-

pected.

03Patna 07 12 Use of Unfair Means is sus-

pected.

04Lucknow 01 02 Use of Unfair Means is sus-

pected.

TOTAL 11 20

We have analysed the report given by IBPS, which is based on

correct answers, identical wrong answers (IWW) and other

mismatches given by pairs, which have indulged in copying.

IBPS has made analysis after excluding right answers and most

33

Page 34 popular wrong answers. Thus the chances of having large

identical wrong answers are practically not possible.

Subsequently, we have called the seating arrangement of the

candidates involved in copying (Annexure-V). In the seating

arrangement, one pair of candidates from Patna Circle are

seated in different rooms and have Identical Wrong Answers,

which are at the lower end of suspected category. In this case

the data evaluated by the IBPS they also observed 4

mismatches in the answers (in non identical wrong answers).

Considering all relevant factors, we propose to give benefit of

doubt to candidates forming this pair and exclude them from

candidates who used unfair means. Other than this pair, each of

the pairs of candidates are seated next to each other, in

addition to their being in the same room. This further

strengthens the view that these candidates used unfair means

namely copying answers from one another.

8. Excluding the pair mentioned above, the statistical and

corroborative evidences are against the remaining 18

candidates, we propose to

i)Cancel their candidature for the confirmation test.

ii)Extend their probation for a period of 3 months.

iii)All these officers in terms of their appointment are on

probation for 2 years from their date of joining and

provisions of SBIOSR 1992 are applicable to them.

Provisions of Rule 16 (1, 2 and 3) (Annexure-VI) of

SBIOSR enable the Appointing Authority to terminate the

services of involved officers during the probation

period in such cases without going through

disciplinary proceedings. Legal opinion obtained in

this regard in similar cases in an earlier examination is

enclosed (Annexure-VII).

iv)Circles will be asked to initiate investigations against the

invigilators manning the rooms where such candidates

were seated followed by disciplinary proceedings as per

Service Conditions applicable for such cases.

9.On perusal / analysis of the Annexure-I, we submit the

summary as under:-

i)xx xx xx

ii)xx xx xx

iii)59 candidates (60-1 candidate involved in copying) have

failed to secure 50% i.e. 100 out of 200 (for SC/ST/PWD

34

Page 35 45% i.e. 90 out of 200) as such these 59 candidates are

not suitable for their confirmation.

10.Accordingly, we recommend:

i)xx xx xx

ii)xx xx xx

iii)Probation period of 59 candidates (60-1 candidate

involved in copying), who have failed to secure 50% i.e.

100 out of 200 (for SC/ST/PWD 45% i.e. 90 out of 200),

be extended by 6 months. They will be subjected to

confirmation re-test within the extended period of

probation in terms of the extant policy (Annexure-I).

iv)19 candidates (Annexure-I) were absent in the

confirmation written test, are not suitable for their

confirmation as JMGS-I. Circles have advised the reasons

for their absence in the test. Subject to verification by

the Circles, the probation period of eligible candidates

is to be extended by a further period of 6 months and

they will be subjected to confirmation re-test within the

extended period of probation.

v)There are 18 candidates against whom statistical and

corroborative evidences (IBPS report, seating plan) are

available showing their involvement in use of unfair

means i.e. copying in the written test. We propose to

cancel their candidature for the confirmation test and

Circles will be asked to initiate action as suggested in

Para "8".

(emphasis supplied)

LETTER DATED 12.5.2011.

“GENERAL MANAGER NW-I.

CIRCLE DEVELOPMENT OFFICER

STAFF: SUPERVISING PROBATIONARY OFFICERS -2009-

10 BATCH RESULT OF WRITTEN EXAMINATION HELD

ON 27.02.2011

A written examination for determining the suitability of the Probationary Offi-

cers 2009-10 batch for confirmation as officer JMGS-I/ direct placement as offi-

cer MMGS-II was conducted on 27.02.2011 in which out of 140 eligible POs,

139 appeared in the above test from our Circle. One PO had tendered resigna -

tion from Bank's services just before the above test.

35

Page 36 2. In this connection, we have been advised by Corporate Cen-

ter, vide their letter No. CRPD/SNP/PO2009 10/CONF/74-A

dated 10.05.2011 (placed alongside) that out of 139 POs from

our Circle, 39 POs, as per Annexure "A", have secured qualify-

ing marks of 150 or more out of 200 (i.e. 75% or more) to be-

come eligible for Group Discussion/ Interview for considering

their confirmation as officer MMGS-II in terms of Rule 16 (1)

of State Bank of India officers service rules. In case any of these

39 candidates do not secure qualifying marks i.e. 75% or more

in GD/Interview, he/she will be considered suitable for confir-

mation in JMGS-I w.e.f. 15.05.2011 or upon completion of two

years probation from the date of their joining the Bank.

3. 96 candidates, as per Annexure "B", have secured mini-

mum qualifying marks of 50% or more but less than 75% (45%

or more for SC/ST/PWD) and have thus become eligible for be-

ing considered suitable for confirmation as officer JMGS-I

w.e.f. 15.05.2011 or upon completion of two years probation

from the date of their joining the Bank in terms of Rule 16(1) of

State Bank of India Officers Service Rules.

4.2 candidates, as per Annexure

“

C", who scored less than 50%

(less than 45% for SC/ST/PWD) marks,

are not eligible for confirmation at this stage and their probation will be ex-

tended for a period of 6 months.

They will have to appear for confirmation re-test, which will be scheduled dur-

ing the extended period of

probation. In the event of any candidate failing in the re-test, his/her services

will be terminated in terms of

offer of appointment letter.

5.In terms of the Corporate Centre letter under reference,

mentors (SMGS-IV/V) have to be identified for the

2 candidates (Annexure "C"), who could not qualify the confir-

mation test, for proper guidance and counselling

to upgrade their knowledge / skills in the Bank. In order to en-

able them to imbibe more learning during their

extended probation period, we also propose to change their

branches. The mentors and branches identified

for them are as under:

Sl.Name Present

Branch

Proposed

Branch/Off

-ice

Mentors

identified

1.Ms. Smriti Indira Na-RASMECCC, Mrs. Shubha

36

Page 37 Anand gar, BareillyBareilly Doorwar, AGM

(Trg.), SBLC,

Bareilly

2.Shri Abhishek

Debnath

Kamachha,

Varanasi

RASMECCC,

Varanasi

Shri S.K.Srivas-

tava, CM (Trg.),

SBLC, Varanasi

6. Further, 2 candidates, as per Annexure "D", have been found suspected

to have indulged in copying and as such their probation will be extended by 3

months in terms of Corporate Centre letter No. CRPD/SNP/PO2009-10/CONF/75

dated 10.05.2011.

7. Accordingly, in respect of 2 candidates of the above batch

of Probationary Officers (2009-10 batch), who could not qualify

in the confirmation test conducted on 27-02-2011, and 2

candidates who have been found suspected to have indulged in

copying will have to be served letters on the lines of draft letters

(Annexure-E & F) and their acknowledgement will have to be

obtained. We, therefore, propose to deliver letters (placed below for

your signature) to these 4 candidates. Further, we also propose to confirm 96

candidates (Annexure "B" ) as officer JMGS-I w.e.f. 15.05.2011 or upon

completion of two years probation from the date of their joining the Bank in

terms of Rule 16(1) of State Bank of India Officers Service Rules.

Submitted for approval, please.

ASSISTANT GENERAL MANAGER (HR)”

Annexure-“D”

“ Central Recruitment Promotion Department, Corporate Centre, Mumbai Confirmation of

Probationary Officers (2009-10) Batch Written Examination Held On Sunday, 27-02-2011

COPYING CASES

CSRNO CIR ROLLNO TITLENAME DOB PFINDEX

1 LUC 2263701061 MS PALAK

MODI

19-06-855910633

2 LUC 2263701067SHRIPRABHAT

DIXIT

22-11-835908930

LETTER DATD 3.6.2011.

“ General Manager NW-I (Appointing Authority)

Circle Development Officer

Staff : Supervising

Probationary officers : 2009 Batch

Result of Confirmation Test Held on 27.02.2011

Copying Case : Extension of Probation Period by Three Months

37

Page 38 139 Probationary Officers of 2009 batch appeared in the screening

test for confirmation in JMGS-I and MMGS-II on 27.02.2011 from

our Circle. Corporate Centre vide their e-mail letter no.

CRPD/SNP/PO-2009-10/CONF/75 dated 10.05.2011 (Flag-‘A’)

has forwarded a list of 02 candidates viz Ms. Palak Modi, PF index

no. 5910633 and Shri Prabhat Dixit, PF index no. 5908930 where

the use of unfair means (copying) is suspected as per report fur-

nished by IBPS which is further supported by the corroborative ev-

idence of sitting next to one-another J in different rows in the same

room, as indicated by the sitting plan in the above mentioned test.

2.Corporate Centre also advised that as approved by the Ap-

propriate Authority, the probation period of these candidates is to

be extended by 03 months in terms of Rule 16(2) of SBIOSR and

appropriate process to be completed within extended probation pe-

riod. Further, as the statistical and additional corroborative evi-

dences are against these candidates, as an examination conducting

body, Corporate Centre has cancelled their candidature for the con-

firmation test.

3.A note was placed to the appointing authority i.e. General

Manager (NW-I) and upon his approval (Flag-‘B’) the probation

period of these 02 candidates has been extended by 03 months. We

propose to initiate appropriate action against the above mentioned

02 Probationary Officers in the matter at the earliest within the ex-

tended probation period.

4.Corporate Centre has advised that keeping in view the unsat-

isfactory conduct of these 02 officers during the written examina-

tion held on 27.02.2011, these candidates cannot be deemed to be

fit for confirmation and are, therefore, liable for action in terms of

Rule 16(3) of SBIOSR by the Appropriate Authority. In this con-

nection, we have also discussed the matter with AGM (Law) at

Corporate Centre.

5.We, therefore, propose subject to your approval, to initiate

necessary action against these 02 Probationary Officers for termi-

nation of their services at the earliest. Upon approval we will draft

a letter for termination of their services and forward the same to

Corporate Centre for vetting. Upon receipt of advices from Corpo-

rate Centre, we will put up the termination letter, to be served to

these 02 POs, for your signature. The appropriate authority in the

38

Page 39 matter is Appointing Authority, i.e., senior most General Manager of

the Circle.

Submitted for approval.

Asstt. General Manager (HR)”

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 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 his service by one month’s

notice or payment of one month’s emoluments.

23.It is thus evident that satisfactory performance during the period of

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.

39

Page 40 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

40

Page 41 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

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Page 42 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

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Page 43 probation of one year, could be nullified

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

17 conferred 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

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Page 44 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

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Page 45 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 dispense 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.”

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Page 46 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

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Page 47 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

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Page 48 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

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Page 49 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

49

Page 50 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.

50

Page 51 Accordingly, while Rules 14 and 15 of the MEPS Rules, 1981

cannot override the provisions 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

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Page 52 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.

33.The proposition laid down in none of the five judgments relied upon

by the learned counsel for the appellants is of any assistance to their cause,

which were decided on their own facts. We may also add that the abstract

proposition laid down in paragraph 29 of the judgment in Pavanendra

Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (supra) is not

only contrary to the Constitution Bench judgment in Samsher Singh v. State

of Punjab (supra), but large number of other judgments – State of Bihar v.

Shiva Bhikshuk Mishra (supra), Gujarat Steel Tubes Ltd. v. Gujarat Steel

Tubes Mazdoor Sabha (supra) and Anoop Jaiswal v. Government of India

(supra) 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 misdemeanor on the part of the employee.

34.In the result, the appeals are dismissed. The appellants shall reinstate

the private respondents within 15 days of the production of copy of this

judgment before respondent No.3 and give them all consequential benefits

like pay, allowances, etc. within next one month. However, it is made clear

52

Page 53 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.

…..……….....……..….………………….…J.

[G.S. SINGHVI]

………… ..………..….………………….…J.

[SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi,

December 03, 2012.

53