Somashekara and Others vs Indian Overseas Bank and Others

Aravind Kumar, J.—Heard learned advocates appearing for the parties namely Sriyuths X.M. Joseph for petitioners, A. Keshava Bhat for respondents 1 to 3 and M.I. Arun, learned Additional Government Advocate for respondent No. 4.

Petitioners are seeking for quashing of Annexures-H and J dated 19.12.2014 whereunder their services came to be terminated by respondent-bank. Both petitioners came to be appointed with effect from 02.09.2008 and 01.08.2008 respectively as Messengers on temporary/adhoc arrangement. At the time of submitting their applications petitioners are said to have furnished the requisite information sought for by the employer and on scrutiny of records and enquiry conducted respondent is said to have found out that petitioners were possessing excessive qualifications than what had been prescribed under the notification issued for appointment. On this ground petitioners have been terminated from their services by holding that there was suppression of material information. In lieu of notice period they have been paid one month''s pay and allowances.

The grievance of the petitioners is that there has been violation of principles of natural justice, no opportunity was extended to them and termination order being with stigma and without holding enquiry they could not have been terminated or without affording opportunity or without issuance of notice, their services could not have been terminated. As such they have sought for quashing of the impugned orders. In support of their submission they relied upon the Judgment of Co-ordinate Bench of this court in the case of Ramesh S. Lamani Vs. The Life Insurance Corporation of India, .

Per contra, Sri. A. Keshava Bhat, learned counsel appearing for respondents 1 to 3 would support the impugned termination order by contending that in the declaration given by them at the time of submitting their applications petitioners themselves had undertaken that in the event of applicants having furnished improper information or had suppressed material information or the certificates submitted by them are found to be false, forged or tampered, the employer would be at liberty to terminate their services and on scrutiny of documents and enquiry conducted it was ascertained that petitioners were possessing the qualification of certificate of JOC (Job Oriented Course) which is equivalent to PUC/Plus Two and having obtained certificates during the academic year 2006-08 itself they had suppressed this fact of passing PUC while joining services of bank in the year 2008 and as such it is submitted by Sri A. Keshava Bhat, learned counsel that order of termination is to be construed as one of discharge simplicitor.

Having heard the learned Advocates appearing for the parties and on perusal of the case papers it would emerge that pursuant to notification issued by the respondent-bank calling for applications for appointment of temporary messengers, temporary sweepers on ad hoc basis from personnel who had been engaged for more than 240 days and above and also by virtue of settlement having been entered into with All India Overseas Bank Employees Union on 17.02.2011 for considering absorption of casual/temporary/messengers/sweepers who are already engaged in branches/offices of Bank, a Settlement had been arrived at whereunder norms for appointment of messengers had been fixed as agreed upon and it was pass in VIII standard or its equivalent. It was also made clear that candidates should not have passed X Plus Two examination or its equivalent. It was also made clear that no relaxation in educational qualification for SC/ST-Ex-S/PH candidates would be made. It is pursuant to said settlement, applications from eligible candidates were called for and applications submitted by petitioners came to be forwarded by jurisdictional Branches where they have been said to be working for absorption as temporary messengers and accordingly they came to be appointed as temporary messengers with effect from 01.08.2008 and 02.09.2008 respectively. Respondent-Bank after appointing the petitioners, took up the matter with the school authorities to ascertain the correctness or otherwise of the certificates submitted by them and in the course of such enquiry conducted it was found that both the petitioners had completed Job Oriented course as confirmed by the Principal, SKR Government PU College for Boys, K.R. Nagar, during the academic year 2006-2008 itself and they had already passed said JOC course even before submitting their applications for appointment. As such on the ground of petitioners possessing excessive qualification and the fact of JOC course having been completed by them had been suppressed, impugned orders of termination came to be issued to petitioners.

On perusal of order of termination dated 19.12.2014 which are at Annexures-H and J would indicate that undertaking given by petitioners in their applications has been extracted and reason assigned by the employer for termination reads as under:

"Thus, you had, wilfully and with ulterior motive suppressed the fact that you have passed higher education. Your said act of suppression of the fact has disqualified you from employment and your appointment is liable to be terminated without notice or compensation in lieu of notice". 7. Perusal of the said reason assigned by the employer cannot be said that it is an order of discharge simplicitor. As to what amounts to discharge simplicitor and a discharge with stigma came to be examined by this court in the case of Sidagouda N. Patil Vs. Union of India and Others, and after noticing catena of Judgments in this regard it came to be held as under:

"19. The word ''stigma'' would relate to conduct or character of an employee. Stigma according to dictionary meaning is something that detracts from the character or reputation of a person, a mark sign etc indicating that something is not considered normal or standard. It is a blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame and mark or label indicating deviation from a norm. In the context of an order of termination or compulsory retirement of a Government servant, stigma would mean a statement in the order indicating his misconduct or lack of integrity.

Even otherwise if the claim of the petitioner is considered in the background of the earlier notice issued to him as being habitual absentee or appraisal officer recording in appraisal forms that services of petitioner are not satisfactory and not upto the mark it cannot be held or construed that recording of such remarks would amount to stigma. The Hon''ble Apex court in the case of STATE OF PUNJAB AND OTHERS v. BHAGWAN SINGH REPORTED IN 2002(9) SCC 636 has held that a discharge order stating that the performance of the officer on the whole being not satisfactory cannot be said to be stigmatic and if employer refers to the reports of seniors of a discharged employee while passing the discharge order and it forms an opinion to issue such discharge order it would not amount to stigmatic. It has been held in the said judgment as follows:

"4. This aforesaid order to the extent it stated that the officer was unlikely to prove a good police officer, was in terms of the relevant Rule 12.21 applicable to the respondent. In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.

The other sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory". Even that does not amount to any stigma.

Learned counsel for the respondent, however, contended that the reference in the impugned order to the reports of the Inspectors on the basis of which the above assessment was made, would itself amount to stigma. This again cannot be accepted. The said reference has also become necessary because the respondent was working under the said officers and it was their assessment that was referred to and that was the source for the opinion expressed by the competent authority to discharge the respondent. The learned District Judge and the High Court were, therefore in error in treating that the removal order caused stigma."

As to whether an order of discharge or termination is stigmatic or simplicitor will have to be gathered from such order itself and reasons which follows from such order and will have to be examined by adopting the test as to how a reasonable man of ordinary prudence would look at it and it came to be held in Patil''s case referred to supra as under:

"42. Whether an order of discharge or termination is stigmatic or simplicitor will have to be gathered from the very order itself and reasons which flow for such an order being passed and also by adopting the test as to how a reasonable man of ordinary prudence would look at it as held by Hon''ble Apex Court in the case of Allahabad Bank Officers Association and another Vs. Allahabad Bank and others, as under:

"17. The above discussion of case law makes it clear that if the order of compulsory retirement casts a stigma on the Government servant in the sense that it contains a statement casting aspersion of his conduct or character, then the court will treat that order as an order of punishment, attracting provisions of Article 311(2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order, the court would infer therefrom that the real intention of the Government was to punish the Government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So, also if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the Government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read and understand it." 9. Keeping the above principles in mind when the impugned orders are examined it would not detain this court long to hold that it is not an order of discharge simplicitor but on the other hand it is with stigma since the employer has caused aspersions on the motive of employee as could be seen from the termination order and the words used therein namely "willfully and with ulterior motive suppressed" which are sufficient enough to arrive at a conclusion that it is a stigmatic order. Hence, when said order has been passed without issuing notice to the petitioner it would be in violation of principles of natural justice and as held by this court under similar circumstances in the case of Ramesh S. Lamani Vs. The Life Insurance Corporation of India, that even a probationer cannot be discharged without notice when termination order is issued alleging certain misconduct on the part of a employee. Hence, it has to be held that impugned orders being in violation of principles of natural justice and there being no dispute to the fact that prior to issuance of these termination orders petitioners had not been issued with the notice, they cannot be sustained. However, it is made clear that no opinion is expressed on the merits with regard to suppression of fact or possessing of excessive qualification by petitioners and said contention is left open to be considered by respondents.

Hence, I proceed to pass the following:

ORDER

Writ petition is hereby allowed.

Impugned orders are hereby quashed and liberty is reserved to respondents to proceed in accordance with law.

Ordered accordingly.

All pending applications stands consigned to records.