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SUPREME COURT OF INDIA
Dipak Misra, Prafulla C. Pant, JJ.
Ratnesh Kumar Choudhary – Appellant
Versus
Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others – Respondent
CIVIL APPEAL NO. 8662 of 2015 (Arising out of S.L.P.(C) NO.8450 OF 2012)
Decided On : 15-10-2015
(1974) 2 SCC 831; (1999) 2 SCC 21; AIR 1958 SC 36; AIR 1960 SC 689; AIR 1961 SC 177; (1980) 2 SCC 593; (1984) 2 SCC 369; (1980) 3 SCC 288; (1994) 5 SCC 177; (2000) 5 SCC 152; (2010) 8 SCC 220; (2013) 3 SCC 607 – Relied upon
(1991) 1 SCC 691; (1992) Supp (1) SCC 524; (1994) 4 SCC 189; (1999) 3 SCC 60 – Referred
(2002) 1 SCC 520 – Distinguished
(b) Service law – Complaint of illegal appointment on ground of lack of proper qualification – Enquiry conducted by vigilance – Not confining to the complaint – Enlarging its scope to conduct of the officer – Not a domestic enquiry – It was an ex parte enquiry held behind the back of the officer concerned by Vigilance – Dismissal on that basis – No departmental enquiry held – No charge framed or served – Not a case of dispensing with enquiry – Dismissal not a termination simpliciter – Enquiry and punishment casting stigma on the officer – Compliance of natural justice imperative – Dismissal held illegal – Appellant directed to be reinstated with 50% back wages. (Para 28, 29)
Facts of the case:
The appellant applied for the post of Physiotherapist under Class-II Post in the Indira Gandhi Institute of Medical Sciences (IGIMS). The selection committee of the institute selected him for the appointment in the post as the Chest Therapist. The screening committee observed that the post of Physiotherapist and Chest Therapist are of similar nature and hence, the post of Chest Therapist may be considered from the applications received for the post of Physiotherapist.
The appellant received the letter of appointment for the post of Chest Therapist on 14.01.1999. The appellant joined the post on 20.08.1999.
A complaint was received by the Vigilance Department, Government of Bihar on 3.11.2004 relating to the illegal appointment of the appellant on the post of Chest Therapist. The complaint contained that the advertisement for Physiotherapist and Chest Therapist were different because streams are different and the appointment of the appellant was absolutely illegal. The reports of the enquiry reflected on various aspects and pointed out that the appointment was illegal.
The appellant was asked by the Director of IGIMS to show cause within three days as to why on account of illegal appointment his services should not be terminated. The petitioner sent his reply on 20.3.2005 and asked for the copy of the complaint as well as the entire report submitted by the Vigilance Department.
Despite the request made by the appellant all the documents were not supplied to him which the appellant considered vital. However, he submitted the reply on 08.04.2005 and on 09.04.2005 the Director IGIMS, terminated his services.
The appellant filed writ petition which was allowed.
The Division Bench allowed the appeal and unsettled the decision rendered by the learned Single Judge.
Finding of the Court:
Judgment of the Division Bench is not sustainable.
Result: Appeal allowed.
Based on the provided legal document, the key points are as follows:
Termination of employment during probation, after an enquiry into the employee's suitability for continuation or confirmation, is generally considered a termination simpliciter, provided the enquiry is not into misconduct. Such termination is not stigmatic or punitive (!) (!) .
If the enquiry involves misconduct, especially when conducted behind the employee’s back without following principles of natural justice, the termination becomes stigmatic and punitive, which is not permissible. The court can analyze whether the termination is merely simpliciter or stigmatic and punitive (!) .
In cases where the enquiry extends beyond assessing suitability and into misconduct, the order of termination is likely to be punitive if it is based on or supported by an investigation that casts a stigma on the employee. Such cases require adherence to natural justice principles, including providing the employee an opportunity to be heard and access to relevant documents (!) (!) (!) .
Termination based solely on a complaint or an ex parte enquiry that involves serious allegations of misconduct, without a proper departmental enquiry or framing of charges, is illegal. Natural justice demands that the employee be given a fair opportunity to respond and that a proper enquiry be conducted (!) (!) .
The nature of the order—whether it is punitive or simpliciter—depends on the purpose and manner of the enquiry. If the enquiry is conducted to establish misconduct with a view to punishment, the termination is punitive. If it is merely to assess general suitability, it is not punitive. The language of the order alone does not determine its nature; the context and underlying enquiry matter (!) (!) (!) .
Orders that explicitly or implicitly cast a stigma on the employee, especially when based on misconduct findings made behind their back, are considered punitive and violate principles of natural justice. Such orders are liable to be set aside (!) (!) .
The distinction between a termination that is non-stigmatic and one that is punitive is crucial. Even a seemingly innocuous order may be punitive if it is based on misconduct or involves a behind-the-back enquiry that leads to stigma (!) (!) .
In cases involving illegal appointments or misconduct, procedural fairness must be observed. Orders based on ex parte enquiries or reports that contain stigmatic remarks without a proper departmental enquiry are invalid. The employee must be given an opportunity to defend themselves through a proper enquiry process (!) (!) (!) .
The court emphasizes that the purpose of an enquiry should be to establish the truth of misconduct, not merely to gather evidence for future action. Orders of termination based on such misconduct findings, especially when conducted without following due process, are liable to be declared punitive and unlawful (!) (!) .
Even in cases where the order appears to be innocuous, the court may scrutinize the factual background to determine whether it is punitive in substance, especially if the enquiry involved misconduct or misconduct-like allegations. The absence of a proper enquiry process and the presence of stigma can render an order illegal (!) (!) .
In summary, the legal principles highlight the importance of procedural fairness, the distinction between termination simpliciter and punitive dismissal, and the need for proper enquiry procedures to avoid violations of natural justice, especially when allegations of misconduct are involved.
JUDGMENT :
Dipak Misra, J.
Leave granted.
2. The appellant, in pursuance of the advertisement published in the daily newspaper “Hindustan” dated 13.08.1998, applied for the post of Physiotherapist under Class-II Post in the Indira Gandhi Institute of Medical Sciences (IGIMS). The selection committee of the institute selected him for the appointment in the post as the Chest Therapist. The screening committee observed that the post of Physiotherapist and Chest Therapist are of similar nature and hence, the post of Chest Therapist may be considered from the applications received for the post of Physiotherapist. The selection committee consisted of Director of the IGIMS, Medical Superintendent and a Government representative from the Health Department, in addition to internal and external experts. The appellant along with other candidates were called for interview vide letter dated 02.12.1998 for the post of Physiotherapist/Chest Therapist.
3. As the facts would exposit, the appellant received the letter of appointment for the post of Chest Therapist on 14.01.1999 which mentioned that he had been selected for appointment to the sanctioned post of Chest Therapist and would be put on probation for a period of two years which could be extended at the discretion of the Director of the Institute. It also contained a condition that the services could be put an end to at any time by giving a month’s notice by either side. It also stipulated certain aspects which pertained to giving of notice and in lieu of notice, payment or deposit of certain amount as the case may be. The appellant joined the post on 20.08.1999.
4. When the appellant was continuing on the post of Chest Therapist, a complaint was received by the Vigilance Department, Government of Bihar on 3.11.2004 relating to the illegal appointment of the appellant on the post of Chest Therapist. The complaint contained that the advertisement for Physiotherapist and Chest Therapist were different because streams are different and the appointment of the appellant was absolutely illegal. In pursuance of the said complaint an enquiry was conducted by the Deputy Superintendent of Police, who submitted a report on 03.11.2004 to the Deputy Inspector General of Police, Bihar, Patna. The reports reflected on various aspects and pointed out that the appointment was illegal. On the basis of the said report the Joint Secretary in the Department of Health, vide order dated 09.03.2005 requested the Director IGIMS to initiate a proceeding for termination of the services of the appellant by giving a show cause notice. On the basis of the said communication the appellant was asked by the Director of IGIMS to show cause within three days as to why on account of illegal appointment his services should not be terminated. The petitioner sent his reply on 20.3.2005 and asked for the copy of the complaint as well as the entire report submitted by the Vigilance Department.
5. Despite the request made by the appellant all the documents were not supplied to him which the appellant considered vital. However, he submitted the reply on 08.04.2005 and on 09.04.2005 the Director IGIMS, terminated his services by stating that his appointment on the post of Chest Therapist was illegal in terms of the investigation done by the Cabinet (Vigilance Department, Bihar) and the explanation furnished by him in pursuance of the show cause notice had been found unsatisfactory.
6. Taking exception to the aforesaid order of termination the appellant invoked the writ jurisdiction of the High Court of Judicature at Patna in CWJC No. 8069 of 2006. The learned Single Judge vide order dated 04.11.2009 quashed the order of termination and directed that appellant should be treated in service with all consequential benefits. The learned Single Judge, as is evident, quashed the order on the bedrock that the appellant was all through kept in the dark as to on what grounds his service had been terminated documents which formed the part of
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