Judgment:
Madan, J.
1. This appeal has been preferred before this Court challenging the judgment & decree dt. 21.5.1988 of learned Additional District Judge No. 2, Jaipur City, Jaipur in Appeal No. 13/88 confirming the judgment and decree dt. 7.2.87 of Additional Munsif and Judicial Magistrate No. 4, Jaipur City, Jaipur in Civil Suit No. 866/1984. The appeal was admitted on 26.11.1988 by this Court in view of the following substantial questions of law which had arisen for consideration of this Court :-
'(1) Whether, the order dated 20th February, 1982, whereby the services of the appellant as Manager, were terminated was an order of discharge & of simpliciter or was passed by way of punishment?
(2) Whether the letter (Ex.5) dated 12th February, 1982 is the foundation for the order (Ex.3) dated 20th February, 1982?'
2. The controversy which had arisen as briefly stated was that the appellant-plaintiff had filed a Civil Suit for declaration seeking the relief inter-alia that the order of his reversion dt. 20.2.1982 passed by the respondent Bank was illegal and void and the order dt. 26.7.1984 by which his appeal was dismissed was also illegal. The plaintiff had contended in the plaint that he had been selected for regular appointment on the post of Manager and was given offer of regular appointment on 19.4.1980. The period of probation was for 24 months. The appellant accepted the condition contained in [he aforesaid letter by executing a bond and deposited its security and had agreed to serve the bank for five years. Thereafter, the appointment order dt. 25.4.1980 was issued and he joined at Pancheri Branch of the Bank as Branch Manager w.e.f. 1.5.1980. However, on 12.2.1982 a letter was issued to the plaintiff appellant regarding irregular action done by him and serious allegations regarding integrity of the petitioner was levelled and he was threatened for disciplinary action.
3. Before the plaintiff could reply to the letter, after four days only order dt. 20.2.1982 was passed by which he was reverted to the post of Clerk on the ground that his work and conduct was not found satisfactory during the period of probation and since the bank had not considered him suitable for managerial cadre, accordingly, he was reverted to the substantive post of Clerk w.e.f. 1.5.1980.
4. In the impugned order dt. 20.2.1982, there is a mention of allegations of acceptance of bribe against the appellant and also a threat of disciplinary action. He was charged with the allegation that he exploited the public and that if loss was caused to the Bank, he will be held personally responsible.
5. The learned counsel for the appellant has challenged this impugned action of the Bank on the ground that the allegations levelled against the plaintiff had been completely lost sight of by the competent Authority. However, the courts below had completely misread the letters dt. 12.2.82 and 20.2.1982 and had drawn totally unwarranted conclusions.
6. The impugned letter dt. 12.2.1982 reads, as under :-
^^fo'k; %& vfu;ferrkiw.kZ dk;Z djus dslEcU/k esa A
egksn;]
ge vkidk /;ku vkidh 'kk[kk {ks= esa O;kIrppkZdh rjQ vkdf'kZr djuk pkgrs gSa ftlesa xzeokfl;ksa }kjk vki ij xEHkhj vkjksiyxk;k tk jgk gS fd vkidh 'kk[kk esa bl izdkj ds _.k ftu ij jkT; ljdkj ds vuqnkuizkIr gksrk gS rHkh Lohr gksrs gSa] tcfd izkIr gksus okyh vuqnku jkf'k dk dqNHkkx ftlesa 25izfr'kr rFkk 50izfr'kr rd gS fj'or ds :i esa vidk ns ns ;k nsus dkok;nk djsa A
bl izdkj dh ppkZ ls tgka cSad dh lk[k oizfr'Bk dks Hkkjh vk?kkr igqaprk gS ogha xzkeh.k cSadks dh LFkkikuk dk ewyms'; gh lekIr gks tkrk gS] tgka xzkeh.k cSad esa dk;Zjr vfr/kdkfj;kaas ,oadeZpkfj;ksa dks leiZ.k dh Hkkouk ls dke djuk gksrk gS A ge vidks ,d ckj iqu% ;knfnykrs gSa fd jkT; ljdkj }kjk vuqnku jkf'k lekt ds xjhc oxZ dks mudsa vkfFkZdmRFkku ds fy; nh tkrh gS u fd vki tSls cSad vf/kdkjh ds }kjk vU;k; iw.kZ rjhdsls gM+ius ,oa xjhc dk vkfFkZd 'kks'k.k djus ds fy;s A
vr% vkidks vxkg fd;k tkrk gS fd ;fn vkius jkT;ljdkj dh uhfr;ksa] cSad ds fu;eksa ,oa izz/kku dk;kZy; ds vkns'kksa dh vogsyukdjrs gqq, bl izdkj dk dk;Z fd;k ftlls cSad dh lk[k ,oa izfr'Bk dks v?kkrigqaprk gS rks cSad dks vkids f[kykQ vuqq'kklukRed dk;Zokgh djus ds fy, ck/;gksuk iM+sxk ftlesa vU; dk;Zokgh ds lkFk lkFk vkidks vkids iwoZ in ij inkourdjuk Hkh lfEefyr gS A
ge ;gka ;g Hkh Li'V djuk mfpr gh le>rsgSsa fd bl izdkj dh dk;Zokgh ls _.k olwyh ij foifjr izHkko iM+rk gS ,oa gekjsfopkj ls ;gh dkj.k gS fd vkidh 'kk[kk dh _.k vlwyh fLFkfr cM+h gh n;fu; ,oa 'kkSpuh;gS A vr% ;fn vkidh bldh vknr ds dkj.k cSaad dks fdlh izdkj dh gkfu gqb rks mldsfy;s vki O;fDrxr rkSj ij ftEesnkj gksaxs A
bl i= dh izkfIr dh lwpuk fHktokrs gq, vkidh 'kk[kkesa ;kIr ppkZ dks nwj djus ds fy; vki }kjk fd;s tk jgs iz;klksa ls gesa voxrdjkosa A**
7. The impugned letter dt. 20.2.1982 reads, as under :-
'We have to advise you that you were appointed as Manager on initial probation period of 24 months w.e.f. 1.5.1980 vide our letter No. GB/AP/M/19 dated 19.4.1980. Your work and conduct during the probation period has not been found satisfactory and bank do not consider you fit for managerial cadre. As such you are hereby reverted to your substantive post of Clerk with immediate effect.
You arc hereby posted at Neemera (Distt. Jaipur) branch as Clerk on reversion. Please handover entire charge of the branch to Shri L.S. Chandawat and be relieved for your place of posting on reversion.
Your fixation and other terms and conditions in the clerical grade will be advised separately.
Please acknowledge receipt on spare copy of this letter.'
8. The plaintiff-appellant had stated in his plaint that he had been selected for regular appointment on the better post of Manager and was given offer of appointment on 19.4.1980. The period of probation was 24 months. The plaintiff had accepted the condition contained in the said letter and had executed a bond and deposited its' security and further agreed to serve the Bank for five years thereafter, appointment order was issued and he joined the Pancheri Branch of the Bank as Manager on 1.5.1980.
9. Appellant's further ground of challenge was that the courts below had committed a serious error of law in holding that the plaintiff was not entitled to, relief because he was merely a probationer and that before such action could be taken reverting him to the substantive post of Clerk even on natural justice, he was entitled to be heard Even though the order of reversion was violative of the spirit of law under Articles 311(2) of the Constitution of India which provides, as under :-
'(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.'
Provided that where it is proposed after such inquiry, to impose upon him any such-penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such, person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority, in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.'
10. I have heard learned counsel for the appellant and examined their rival claims and contentions.
11. In written statement filed by the defendant-Bank before the trial Court, it was contended inter-alia that:-
(1) that it was not necessary to give the charge sheet to the petitioner under Rule 30 prior to taking any action against him reverting him to the post of Clerk,
(2) that the petitioner was appointed on probation therefore, before reverting him to his substantive post of LDC, the evidence was not necessary to be taken against him,
(3) it Was denied that the impugned order was not based on misconduct of the employee,
(4) that the allegations made by the petitioner against the department are baseless and hence not acceptable,
(5) that during the pendency of probationary period, the department was competent to pass the impugned order, hence, the allegations were not acceptable,
(6) that prima-facie, the impugned order was speaking order as sufficient grounds were given in the said order though, the order dt. 26.7.84 was not necessary to be speaking one.
12. During the course of hearing, learned counsel for the appellant has placed reliance upon the judgments of the Apex Court in the matters of Samsher Singh v. State of Punjab, AIR 1974 SC 2192, and Chandra Prakash Shahi v. State of U.P., 2000 (5) SCC 152.
13. 1 have examined the ratio of the aforesaid decisions. In Samsher Singh (supra), the controversy which had arisen for consideration of the Apex Court was pertaining to the charges of misconduct against the members of subordinate judicial service in which the High Court had directed the incumbent State Govt. to initiate the enquiry through the vigilance department.
14. It was held by the Apex Court that the request by the High Court to have the enquiry for charges of misconduct against the member of the subordinate judicial service through the Director of Vigilance was an act of self abnegation. The High Court should have conducted the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity. The High Court acted in total disregard of Article 235 by asking the Government to enquire through the Director of Vigilance.
15. It was further held by the Apex Court that the fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to the protection of Article 311. The substance of the order and not the form would be decisive and that the order of termination of the services of the appellant was clearly by way of punishment in the facts and circumstances of the case. The High Court denied him the protection under Article 311. The order of termination was illegal and liable to be set-aside.
16. In Chandra Prakash Shahi (supra), the Apex Court while examining the question pertaining to the termination of services of the appellant who was terminated after completion of 10 months of satisfactory probationary period, it was held that the termination of the appellant was preceded by a preliminary enquiry in which the appellant was found involved in an incident of quarrel. It was further held by the Apex Court that the termination was founded on misconduct and therefore punitive. The termination was held invalid for the reason that it had been brought about in violation of the compliance of the mandatory provisions of the law applicable to the case since the probationer even on natural justice, was entitled to show cause notice and was entitled to be accorded the proper hearing and since there was a blatant violation of the provisions of para 541 (2) of the UP Police Regulations and the appellant's services had been terminated without issuing any notice intimating grounds on which his services were proposed to be terminated nor was his explanation ever obtained from him, the termination was therefore, held not sustainable in law.
17. The ratio of the aforesaid decisions in my view, are fully attracted to the instant case in view of the violation not only of the law but particularly even on natural justice the appellant was not heard by the Competent Authority. The impugned order was passed with pre-conceived notions of guilt on conjectures and surmises on the presumption that 'the appellant had exploited the public and that if loss was caused to the Bank, he will be personally responsible'. How and in what manner the appellant had exploited the public, whether there were any complaints and what was their nature and whether the appellant was given any opportunity of contesting those complaints and whether any financial loss was allegedly caused to the Bank remain unexplained on the record. In absence of answer to these queries, the only logical conclusion which can be drawn in view of the aforesaid circumstances is that the impugned order of termination was grossly illegal, unjust, arbitrary and punitive suffers from total non application of mind and hence deserves to be quashed and set-aside being not sustainable.
18. The ratio of the aforesaid decisions in my view are fully attracted to the facts and circumstances of the present case.
19. In the result, the appeal preferred by the appellant against the judgment and decree dated 21.5.88 passed by the Additional District Judge, No. 2, Jaipur City, Jaipur in Appeal No. 13/88 confirming the Judgment and Decree dated 7.2.87 passed by the Additional Munsif No. 4, Jaipur City, Jaipur in Civil Suit No. 866/84, is allowed. The Judgment passed by the courts below are quashed and set-aside. No order as to costs.