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2015 DIGILAW 982 (GUJ)

Saurashtra Gramin Bank v. Minaxiben Babulal Solanki

2015-10-05

JAYANT PATEL, N.V.ANJARIA

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ORDER : Jayant Patel, J. Draft amendment is allowed. 2. The present appeal is directed against the order dated 12.08.2015 passed by the learned Single Judge of this Court in Special Civil Application No.8385 of 2015, whereby the learned Single Judge has recorded reasons, has allowed the petition and has directed for reinstatement of the original petitioner-respondent herein to the original post with consequential benefits. The other observations were also made by the learned Single Judge. 3. We have heard Mr.Nagesh C. Sood, learned counsel for the appellant and Mr.P.T. Jasani, learned counsel has appeared by caveat. 4. Contention raised on behalf of the appellant was that even if any stigmatic language is used in the impugned order passed for termination, the fact that the respondent herein - original petitioner was on probation should be sufficient to maintain the decision qua non-confirmation in and termination from service. It was submitted that the Court in a given case may lift the veil in order to find out the real purpose. In the present case since the original petitioner was on probation and her conduct was found to be not satisfactory, for the reasons mentioned in the order, she has not been continued in service. However, the learned Single Judge did not properly consider the matter and this Court may consider in the present appeal. 5. We may record that the language used in the order of termination and more particularly, second paragraph is as under: "Your behaviour in the bank was found to be unbecoming of an officer. You created unwarranted and disturbing situation for the bank & its staff. You have levelled false, baseless & fabricated allegations of sexual harassment against other staff. The serious allegations of sexual harassment have been disproved by the independent Sexual Harassment Committee of the bank. Your behaviour is found to be motivated to get a transfer back to bank's Tarsamiya branch, despite the fact that you were transferred only locally. Being a woman and coming from SC category, bank was considerate enough to post you in a district place like Bhavnagar. However, from your indifferent behaviour and misconduct, it is proved that you are not desirable in bank's service as an officer any longer. Being a woman and coming from SC category, bank was considerate enough to post you in a district place like Bhavnagar. However, from your indifferent behaviour and misconduct, it is proved that you are not desirable in bank's service as an officer any longer. It is beyond doubt inferred that you would not work & behave in the interest of the bank in future too." The aforesaid clearly shows that there were observations made for (i) 'unbecoming of an officer' and (ii) 'indifferent behaviour and misconduct', which as per the Bank is proved that she is not desirable in Bank's service as an officer any longer. It is further observed that, "It is beyond doubt inferred that you would not work & behave in the interest of the bank in future too." 6. The aforesaid in our considered view clearly goes to show that it was not a case of non continuation of probationer on account of unsatisfactory service but was a stigmatic order for termination. In our view, the case would stand covered by decision of the Apex Court in the case of State Bank of India and others v. Palak Modi and another, reported at (2013) 3 SCC 607 , wherein the Apex Court, in paragraph 25, after considering various decisions observed thus, "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. 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 competent authority can be nullified on the ground of violation of the rules of natural justice." We may also usefully refer to the observations made by the Apex Court in the very decision, in paragraph 36 as under: "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." The aforesaid shows that there is marked distinction between the concepts of satisfactory completion of probation and misconduct/misdemeanor constituting basis for final decision taken by the competent authority. In the present case, if the aforesaid observations are considered, it cannot be stated that the learned Single Judge committed any error in allowing the petition. 7. Reliance was placed upon decisions of the Apex Court by the learned counsel for the appellant, in case of Rajesh Kohli v. High Court of Jammu and Kashmir and another, reported at (2010) 12 SCC 783 , Chaitanya Prakash and another v. H. Omkarappa, reported at (2010) 2 SCC 623 , and Abhijit Gupta v. S.N.B. National Centre, Basic Sciences and others, reported at (2006) 4 SCC 469 . In none of the cases language used were at par with the present impugned order of the bank, further in none of the matters while passing the impugned order putting an end to the service it was recorded that the employee concerned had committed misconduct or had acquired status of unbecoming of an officer, hence the said decisions are of no help to the appellant. 8. Attempt made by the learned counsel for the appellant to contend that the Court may lift the veil in order to find out the real truth, would be of no help to the appellant for two reasons; one is that if the language used in the order is of simpliciter termination order or unsatisfactory work, but real reason is otherwise, the Court may in a given case lift the veil. When language used in the order itself is stigmatic, question of lifting the veil would hardly arise. Second reason is that when conclusive finding is recorded for misconduct, the question of lifting of the veil also may not arise. In view of the above we find that such attempt cannot be countenanced. 9. In view of the above we do not find any case made out for interference. Hence the appeal is merit less and is therefore, dismissed. Writ Appeal dismissed.