G. P. Mathur, J. - (1.) THIS petition has been filed for quashing the order dated 26-3-1979 by which the services of the petitioner were terminated.
(2.) REGIONAL Rural Bank Ballia (hereinafter referred to as Bank) in response to petitioner's application dated 6-7-1977 offered the post of Branch Manager to him by means of a memo dated 29-7-1978. The memo (appointment-order) clearly provided that he will be on probation for one year and the relevant clause reads as follows :- "He will be appointed on probation for one year w.e.f. 1-8-1978. The probation period may be further extended by one more year in case his performance, conduct, and attendance is not found satisfactory. Notwithstanding any thing contained in this letter, the services are liable to be terminated in the sole discretion of the Bank, even before the expiry of the probation period, without assigning any reason or reasons, by giving one month's notice or on payment -of one month salary in lieu of notice." The services of the petitioner were however, terminated by the order dated 26-3-79 which is reproduced below : "Your services are hereby terminated with immediate effect in accordance with the terms and conditions of your services. A cheque no. 009305 Of date for Rs. 700/- is enclosed herewith towards payment of one month's salary in lieu of one month's notice." Hie petitioner seeks quashing of the aforesaid termination order. The first submission of Sri Yatindra Singh is that the petitioner was holding the post of Branch Manager and the competent authority to terminate the services of a Branch Manager was the Board of Directors of the Bank but the termination order has been issued by the Chairman and there fere, the same was illegal. A supplementary affidavit has been filed by Sri Anil Prakash, Senior Manager of the Bank wherein if is averred that the decision to terminate the services of the petitioner was unanimously taken by the Board of Directors and not by the Chairman and the Chairman had only communicated the decision of the Board to the petitioner by his letter dated 26-3-1979. The extract of the Minutes of the meeting of the Board of Directors held on 19-3-1979 has also been filed as Annexure SA-1 to the affidavit. We have carefully examined the Minutes of the Board's meeting held on 19-3-1979. It clearly shows that it was the members of the Board of Directors who had taken the decision to terminal the services of the petitioner. Therefore, the contention of the learned counsel that the Chairman had terminated the services of the petitioner cannot be accepted and the termination order cannot be quashed on that ground."
(3.) LEARNED counsel has next submitted that though the termination order dated 26-3-1979 recites that the same was being passed in accordance with the terms and conditions of petitioner's services but in reality the order had been passed by way of penalty. It is urged that a show cause notice was issued to the petitioner on 19-3-1979 stating that he had misutilised the discretionary power delegated to him and had sanctioned disbursed loans to himself and to the clerk cum cashier of the Bank and also to his family members and relatives. The notice further directed him to show cause within three days why suitable action should not be taken against him. According to learned counsel the fact that a show cause notice alleging misconduct on the part of the petitioner was issued to him, conclusively establishes that the termination order which was passed a week thereafter was in fact an order of punishment. It is thus submitted that as the services of the petitioner had been teaminated by way of punishment without affording him any opportunity of hearing, the same was illegal and contrary to law. The record shows that a show cause notice was issued to the petitioner on 19-3-1979 wherein it was stated that he had misutilised the discretionary power delegated to him and had disbursed loans to himself and to some other persons in personal interest without keeping in view the interest of the Bank. The notice further directed him to show cause as to why suitable action should not be taken against him, However, on 22-3-1979 the petitioner was informed by a communication sent by Chairman that it had been decided to drop the show cause proceedings started against him. Copy of this document has been filed as annexure-3 to the writ petition. It is, therefore, clear that even before the expiry of the period mentioned in the notice for showing cause, the show cause notice itself was dropped. It is not the petitioner's cause that he gave any reply to the notice. No formal disciplinary proceedings were initiated against the petitioner in accordance with rules applicable to him. He was not served with any charge-sheet. No one was appointed as an inquiry-officer nor any evidence was recorded against him. It is, therefore, fully established that disciplinary proceedings were never commenced against the petitioner. Quite often some short of a preliminary enquiry is held by the employer before taking a decision as to whether a formal disciplinary enquiry should be instituted against an employee or not. If some objectionable act of an employee comes to the notice of an employer, he is certainly entitled to enquire about the things and in that connection call for an explanation from the employee concerned. However, from the mere fact that an explanation was called from an employee, it cannot be inferred that any formal disciplinary enquiry or departmental" proceedings were either under contemplation or were initiated. It is well settled that the form of the order of termination of service is not conclusive on the question whether the order was in the nature of punishment. The entirety of circumstances preceding or attendant of the impugned order must be examined and the overriding test will always be whether the mis-conduct is mere motive or is the vary foundation of the order. In the present case even before the expiry of the period granted by the show cause notice the same was withdrawn. The surrounding circumstances in the present case do not lead to an inference that the services of the petitioner had been terminated on account of any positive act of misconduct or by way of punishment.;