An employer cannot use 'unsatisfactory performance' as a facade to terminate a probationer for unproven misconduct. Such termination is stigmatic and punitive; when founded on misconduct rather than mere unsuitability, failure to grant an inquiry violates natural justice, necessitating judicial invalidation of the order.

JUDGMENT :

J.K. Maheshwari J.

1. The present appeal is directed against the impugned final judgment dated 16.10.2015 of the High Court of Calcutta passed in APO No. 30 of 2013, dismissing the appeal preferred by the Appellant – Bank of Baroda (hereinafter referred to as ‘Bank’) against the order dated 18.10.2012 passed by Single Bench in W.P. No. 2177 of 2005 preferred by Respondent No. 1 – employee. The Single Bench had allowed the writ petition and quashed the order of termination of the employee noting that it was vitiated on the account of irrelevant considerations.

FACTS

2. Bereft of unnecessary details, the facts are that the Respondent No. 1 was appointed to the post of Assistant General Manager (AGM), Networking on probation for a period of one year from the date of joining of Bank, which was extendable by a maximum period of one year. The confirmation of the Respondent No. 1 in the service was subject to satisfactory performance and conduct.

3. The Respondent No. 1 joined the Bank on 05.01.2004 and after expiry of one year of service, he was not confirmed. Vide office order dated 15.01.2005, the Respondent No. 1 was placed under suspension with immediate effect on the allegation of making an attempt to take away four boxes of files containing highly confidential tender documents relating to ‘Manageable Switch Tender’ from his office cabin at DIT, HO, unauthorizedly through his driver. He was further directed not to enter the premises of Bank without the written permission of the concerned authority except for the purpose of receiving monthly allowances. His probation was extended for another six months on 16.02.2005 w.e.f. 05.01.2005 on the premise that his work was not found satisfactory during the initial year of probation.

4. On 03.03.2005, the Bank sought reply from Respondent No. 1, which was furnished on 09.03.2005. Later, upon review, by order dated 12.04.2005, the Bank revoked the suspension of the Respondent No. 1 without prejudice to its right to initiate disciplinary enquiry. The Respondent No. 1 re-joined the duty on 13.04.2005, however he was transferred to Regional Office of the Bank at Kolkata. On 04.07.2005, probation of Respondent No. 1 was further extended for a period of 6 months citing unsatisfactory performance.

5. On 05.11.2005, services of Respondent No. 1 were terminated by the Bank under Regulation 16(3)(a) of Vijaya Bank (Officers’) Regulations, 1982 (for short “1982 Regulations”) read with Clause 3 of Offer of Appointment dated 17.12.2003 on the ground that his services during the entire period of probation were not satisfactory.

6. Aggrieved, Respondent No. 1 filed writ petition bearing W.P. No. 2177 of 2005 before the High Court of Calcutta challenging the termination order dated 05.11.2005. The learned Single Judge allowed the writ petition vide order dated 18.10.2012 and held that the order of termination was based on irrelevant considerations and non-consideration of relevant factors, assigning the reasons: (1) the Respondent No. 1 was placed under suspension during suspension followed by a show-cause notice. The said suspension was revoked without prejudice of the bank to initiate disciplinary proceedings. In absence of initiation of disciplinary proceedings,