1. The respondent State Bank of India issued an advertisement in August, 2009 inviting applications for the post of Assistant Clerk, the petitioner being eligible applied for the post; appeared in the written examination on 8.11.2009, on qualifying, petitioner appeared in the interview on 26.4.2010, was declared selected. The respondent bank issued appointment letter on 3.12.2010, pursuant thereof, petitioner joined on 20.12.2010 as Assistant Clerk at Branch Dohrighat, District Mau of State Bank of India. Petitioner was sent on training, on successful completion of training petitioner was posted at Gorakhpur by order dated 13.6.2011. The probation period of the petitioner was enhanced by three months for unsatisfactory work. By order dated 27.8.2011, passed by the Regional Manager, State Bank of India, Gorakhpur, respondent no. 5, the service of the petitioner was terminated for the reason that some person impersonating himself, appeared on behalf of the petitioner in the written examination.

2. The petitioner is assailing order dated 27.8.2011 passed by respondent no. 5.

3. Submission of learned counsel for the petitioner is that the petitioner was not given any opportunity or show cause before passing the impugned order, the order is stigmatic and punitive, the petitioner denied that someone else impersonated the petitioner in the written examination held on 8.11.2009, further, the photographs fixed by the petitioner for the written examination, was the photographs used by the respondents in all the stages of selection.

4. Per Contra Sri S.K. Kakkar, learned counsel appearing for the bank would submit that the facts are not in dispute, however, the petitioners appointment was subject to the verification of final records, an undertaking, dated 21.12.2010, was taken that in the event, the documents are found incorrect, the service of the petitioner would stand automatically terminated. On receipt of letter from the Zonal Office, re-verification was done, the bank asked the petitioner to submit two photographs and also provide specimen signature. The Gorakhpur Office of the Bank conducted the verification of the photographs and the signatures, it was found that there was some anomaly, thus, on apprehension of impersonation, the Branch Manager vide letter dated 29th April, 2011 requested the Controlling Authority/Administrative Office, Gorakhpur to get the matter investigated by the appropriate authority. It appears, thereafter, the matter was referred to the hand writing expert for verification of thumb impression/signature of the petitioner on the call letter. The handwriting expert opined that the thumb impression on the call letter does not match the specimen thumb impression of the incumbent i.e. the petitioner. Thus, in view of fraud and misrepresentation, the petitioners services was terminated forthwith, being on probationer. It is admitted that no show cause notice was given to the petitioner, enclosing the report of the handwriting expert, nor any explanation was called from the petitioner.

5. Heard learned counsel for the parties and perused the record.

6. The only question for determination is, as to whether, the impugned order terminating the service of the probationer petitioner is stigmatic and punitive.

Probationer

7. Mere form of the order using expressions "terminate", discharge etc, is not conclusive and despite the use of such innocuous expressions, the Court can examine the matter to find out the true nature of the order terminating the service of the petitioner. This has been the consistent view of the Supreme Court in several Constitution Bench decisions rendered in Parshotam Lal Dhingra Vs. Union of India (UOI), , The State of Bihar Vs. Gopi Kishore Prasad, , Jagdish Mitter Vs. The Union of India (UOI), , Samsher Singh Vs. State of Punjab and Another, .

8. Supreme Court in Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, observed as follows:-

"25. In the matter of stigma, this Court has held that the effect which an order of termination may have on a persons future prospects of employment is a matter of relevant consideration. In the seven Judge case in Samsher Singh Vs. State of Punjab and Another, , Ray, CJ observed that if a simple order of termination was passed, that would enable the officer to "make good in other walks of life without a stigma. "It was also stated in Bishan Lal Gupta Vs. The State of Haryana and Others, that if the order contained a stigma, the termination would be bad for "the individual concerned must suffer a substantial loss of reputation which may affect his future prospects".

9. In Kamal Kishore Lakshman Vs. Management of Pan American World Airways Inc. and Others, , Supreme Court explained the meaning of stigma and what amounts to stigma as follows (p. 150):

"According to Websters New World Dictionary, it (stigma) 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. The Legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Websters Third New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary stigma is a matter for moral reproach."

10. A three Judge Bench decision in Indra Pal Gupta Vs. Managing Committee, Model Inter College, Thora, is a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its Annexures. Obviously such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular inquiry was conducted.

11. Supreme Court in Union of India (UOI) and Others Vs. Mahaveer C. Singhvi, observed as follows:-

"15. The High Court also referred to the Special Bench decision of this Court is Samsher Singh Vs. State of Punjab and Another, which was a decision rendered by a Bench of seven judges, holding that the decisive factor in the context of the discharge of a probationer from service is the substance of the order and not the form in determining whether the order of discharge is stigmatic or not or whether the same formed the motive for foundation of the order.

31.............Not only is it clear from the materials on record, but even in their pleadings the petitioners have themselves admitted that the order of 13th June, 2002, had been issued on account of the Respondents misconduct and that misconduct was the very basis of the said order. That being so, having regard to the consistent view taken by this Court that if an order of discharge of a probationer is passed as a punitive measure, without giving him an opportunity of defending himself, the same would be invalid and liable to be quashed, and the same finding would be also apply to the Respondents case. As has also been held in some of the cases cited before us, if a findings against a probationer is arrived at behind his back on the basis of the enquiry conducted into the allegations made against him/her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. On the other hand, if no enquiry was held or contemplated and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving him a hearing, the same would be valid. However, the latter view is not attracted/to the facts of this case.................This case, in our view, is not covered by the decision of this Court in Dipti Prakash Banerjees case (supra)".

12. In what circumstances, an order of termination of a probationer can be said to be punitive depends upon whether certain allegations which are the cause of the termination or the motive of the foundation of the order.

13. In Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, Supreme Court explained foundation as follows:-

"A termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal. even if full benefits as on simple termination, are given and non-injurious terminology is used.

On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cutback on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge."

14. The distinction between "foundation" and "motive" was explained in Dipti Prakash Banerjee (supra):

"If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid.

Expert Opinion

15. Expert opinion is only an opinion and has been considered to be of a very weak nature. The decision of the bank is based on the expert opinion alone to establish the guilt of impersonation.

16. In Gulzar Ali Vs. State of H.P., the Supreme Court observed that the observation of the High Court that there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. Many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them.

17. This Court considering large number of judgments in Tika Ram and Another Vs. Daulat Ram and Others, held as follows:-

"9. Evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and external evidence. It has to be considered along with other pieces of evidence. Which would be the main evidence and which is the corroborative one depends upon the facts of each case. An experts opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to what extent, their views would be made to correspond with the wishes and interests of the parties who call them. They do not, indeed, willfully misrepresent what they think, but their judgment becomes so warped by regarding the subject in one point of view, that, when conscientiously deposed, they are incapable of expressing a candid opinion."

18. The Court has made the observation in trial, treating handwriting expert evidence as being opinion evidence. In service jurisprudence allegation has to be proved on preponderance and not beyond reasonable doubt. But the delinquent employee has to be confronted with the evidence as it is rebuttable.

19. Applying the law on the facts of the case, a perusal of the report dated 5.7.2011 submitted by one R. Krishna (B.Sc., L.L.B., M.A. (Criminology & Forensic Science) Consulting Forensic Expert formerly Assistant Professor of Criminology & Forensic Science (Sagar University) rendered the following opinion which is extracted below:-

On a very careful examination of the signatures, thumb impressions and photographs of the above referred person, I am of the following opinion:-

(a) The signatures made on Call Letter at the time of examination does not match with the other standard signatures of Sri Rajesh Kumar. The reasons of my opinion are in Annexure No. 1.

(b) The thumb impression on the Call Letter, which is expected to be of Right Thumb do not match with the specimen thumb of Right Thumb of Sri Rajesh Kumar. The reasons of my opinion are given in Annexure No. 2.

(c) The photographs on the Call Letter of the person who appeared in the examination does not match with the photographs of the person who is joining the Bank. The reasons of my opinion are given in Annexure No. 3.

Opinion: On very careful examination of the above referred signatures and writing written as Rajesh Kumar as in A-2, I am of the opinion, that the signature D-1 is not made by the same person, who has made the signatures and writing S-1 to S-3 and A-1 to A-3.

Reference of Photographs:

(A)= Standard photograph of Sri. Rajesh Kumar Submitted at the time of joining of the Bank.

(B)= Photograph of the Call Letter of the person who appeared in the examination.

Opinion: On very careful examination of the two above referred photographs marked (A) and (B), I am of the opinion, the photograph (A) differs with that of (B) and both the photographs are not of the same person.

The reasons of my opinion are follows:

1....................

2. The length of face of photograph(A) is more than that of (B).

3. The width of the face of photograph (A) should have been more than that of the face of photograph (B) in the same proportion, but it is not. The width of the face of photograph(A) is lesser than of the face of the photograph (B) as marked by the red line of the photographic enlargement.

4. ..................

5. ..................

6. ..................

20. It is contended on behalf of the respondents that the principles of natural justice would not apply in the facts of the present case, as the petitioner has obtained appointment on the basis of fraud and misrepresentation and in any case, the petitioner was on probation hence, the petitioners service could be terminated without assigning any reason.

21. The contention is not accepted for the simple reason that the bank instead of simply terminating the services on the ground of unsuitability or poor performance during the probation, conducted an enquiry regarding the conduct of the petitioner for impersonation, fraud and misrepresentation, and after a full fledged enquiry conducted behind his back, evidence was collected by inviting expert opinion to prove the guilt. The motive is not termination simpliciter, the foundation being as to whether the petitioner impersonated in the written examination or not and the bank has acted upon the opinion of an expert taken behind the back of the petitioner without confronting the petitioner, the findings of the handwriting expert.

22. The contention of learned counsel for the respondent that the fact of impersonation is not rebuttable, even after giving opportunity, the petitioner shall not be able to rebut the findings of the expert opinion, cannot be accepted for the simple reason that the expert opinion can always be questioned by the petitioner. It is not a case where the petitioner had obtained appointment by filling forged verification documents or caste certificate, but is a case of impersonation i.e. act of fraud and misrepresentation which is being sought to be proved on evidences to justify the action and suspicion of the Bank. Fraud and misrepresentation is a question of fact, which has to be pleaded and proved after opportunity to the aggrieved party.

23. A perusal of the impugned order dated 13.9.2011, addressed to the petitioner, the subject is cancellation of appointment. After giving background of the examination conducted, the petitioner appearing in the examination the impugned order records as follows:

Cancellation of Appointment.

"1. With reference to above, we advise that the written test for the captioned recruitment exercise was conducted on 8th, 15th and 22nd November, 2009 and you were required to appear in the written test at Bal Vidya Mandir, Station Road, Charbag, Lucknow on 8th November, 2009 at 9:15 A.M. However, you did not appear in the written test at the scheduled date, time and venue but some body else appeared in the above said test impersonating to be yourself.

2. .........................

3. ........................

4. Therefore you suppressed this material fact that you did not appear in the written test held on 8th November, 2009 at 9:15 A.M. On Roll No. 2601001887 allotted to you at Bal Vidya Mandir, Station Road, Charbagh, Lucknow and allowed some one else to appear in the written test in your place, as such your so called selection in Bank is void ab-initio. Accordingly, there is no service contract between you and the Bank and any engagement thereto in pursuance to the referred appointment letter is invalid and void ab-initio. However, for the record sake you are informed by this letter that your selection on the referred ground is cancelled in express terms by virtue of this letter which please note. Accordingly, your name has been struck off from the employees roll/list of the Bank.

5. Please acknowledge receipt of this letter."

24. The discharge order is not order simpliciter, it in clear terms states that the foundation for termination is that the petitioner "did not appear in the written test and somebody else appeared......impersonating to be yourself" is stigmatic and punitive and reflects upon the character/reputation of a person, it is blemish, imputation, label indicating deviation from a norm.

25. In the case of State of Punjab Vs. Balbir Singh 2002(1) SCC 743. The order of discharge mention the words "unlikely to prove an efficient police officer." Further before passing the aforesaid order of discharge it appears that Shri Balbir Singh, who was found to have consumed liquor and misbehaved with a lady constable was medically examined and thereafter discharge order was passed. The appeal, which was filed before the Deputy Inspector General of Police, was rejected and while rejecting the appeal, he referred to the aforesaid facts and stated that the discharge order was correct. Shri Balbir Singh challenged the order of discharge on the basis of the averments contained therein as well as in the order of the Deputy Inspector General of Police. The Honble Apex Court upholding the aforesaid order of discharge held as under;-

"In the present case, order of termination cannot be held to be punitive in nature. The misconduct on behalf of the respondent was not the inducing factor for the termination of the respondent. The preliminary enquiry was not done with the object of finding out any misconduct on the part of the respondent, it was done only with a view to determine the suitability of the respondent within the meaning of Punjab Police Rule 12.21. The termination was not founded on the misconduct but the misbehaviour with a lady constable and consumption of liquor in office were considered to determine the suitability of the respondent for the job, in the light of the standards of discipline expected from police personnel."

26. The term stigma has to be understood in its plain meaning as something that is detraction from the character or reputation of a person. It is blemish, imputation, a mark or label indicating a deviation from a norm The assessment of work and performance and recording of satisfaction of the authority concerned that he is not satisfied with the work and performance regarding fitness of the employee concerned would not make the order stigmatic since it is not a blemish on the character and reputation of the person concerned but it reflects on the capacity and efficiency of the incumbent with respect to the work for which he/she was employed.

27. It has been held in various judgments rendered by the Supreme Court that reasons assigned in the termination order, at times may not be punitive or stigmatic, the following words/phrases mentioned in the order have been held to be not punitive.

i.) "want of application"

ii.) "lack of potential"

iii.) "found not dependable"

iv.) "under suspension"

v.) "work is unsatisfactory"

vi.) "unlikely to prove an efficient officer"

(Refer: Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, , Paras Nath Pandey Vs. Director, North Central Zone,

28. Considering the facts of the case, in the light of the legal principles, discussed herein above, I am of the view that the impugned order of termination is nothing but punitive and stigmatic, therefore, cannot be sustained.

29. In the result, the writ petition is allowed. The impugned order dated 27.8.2011 passed by Regional Manager, State Bank of India is quashed. The petitioner shall be entitled for reinstatement with all consequential benefits but with respect to arrears of salary, he will be paid 50% of the backwages for the period he remained out of employment pursuant to impugned order of termination. It goes without saying that this judgment shall not prevent to the respondents from proceedings afresh against the petitioner and pass a fresh order in accordance with law.

30. No order as to costs.