CHAITANYA PRAKASH & ANR.versusH. OMKARAPPA

                   (2010] 1 S.C.R. 467


             CHAITANYA PRAKASH & ANR.                       A
                            v.
                     H. OMKARAPPA
             (Civil Appeal No. 2786 of 2007)
                  . JANUARY 12, 2010
                                                            B
      [V.S. SIRPURKAR ANO DR. MUKUNDAKAM
                   SHARMA, JJ.)

     Service law - Termination - Employee on probation -
Performance not found satisfactory - Extension of probation C
period - Thereafter, termination of employee - High Court
holding the termination order as stigmatic - Directions to
employer to allow the employee to continue in service - On
appeal, held: Employer had time and again specifically
brought to the notice of employee of his short comings, gaveo
ample opportunities to improve them and no misconduct as
such was alleged against employee - Thus, was termination .
simpliciter due to unsuitability of employee .and not
punishment for mi~conduct - It cannot be said to be. stigmatic
- Order of termination restored - Hindustan Photo Films E
Service Rules for Officers - Clause 3.
    The question· which arose for consideration in· this
appeal is whether the impugned order passed by the
appellants-employer against the respondent-employee-
terminating his service during the period of probation was F
an order of termination simpliciter due to unsatisfactory
service or "stigmatic''. due·to misconduct.
    Allowing the appeal, the Court
    HELD: 1. Even if an order of termination refers to      G
unsatisfactory service of the person concerned, the same
cannot be said to be stigmatic. The impugned order
passed by the appellants against the respondent
terminating his service during the period of probation is
not stigmatic and as such the decision of the High Court    H
                            467
   468     SUPREME COURT REPORTS              (2010] 1 S.C.R.


A is erroneous and vitiated and is set aside. The order
  passed by the appellant is restored. [Paras 16 and 22)
  [478-G-H; 482-C-D]
       2.1. The respondent was appointed as Executive
  Director [Marketing] on specific terms and conditions, one
B of which was that he would be on probation in the said
  post for a period of one year from the date of joining the
  post. The respondent accepted the said offer of
  appointment along with terms and conditions appended
  thereto and also specifically accepted the position that
C he would be guided by the rules and regulations
  applicable to the appellant no. 2-Company. [Para 11) [475-
  E-G]
       2.2. The respondent was ordered to be on probation
  for a period of one year and as per clause 3.2 of
D Hindustan Photo Films Service Rules for Officers his
  performance during the period of probation was to be
  reviewe~ by the company and that the company could
  extend the period of probation or terminate the service
  of the respondent at any time during or at the time of
E probation period. Clause 3.3 of Service Rules stated there
  has to be an order communicating the order of
  confirmation to the officers concerned after the end of the
  period of probation. In the instant case, no such order of
  confirmation was passed by the appellant no. 2
F confirming the service of the respondent. Respondent
  continued to be on probation, which was extended for a
  period of three months. [Para 12) [475-H; 476-A-C]
      2.3 The respondent was not confirmed in the post of
  Executive Director {Marketing) and he continued to be on
G probation during which period his service could be
  terminated for unsatisfactory work and for doing so it was
  not necessary for the appellants to institute departmental
  proceedings or to give an opportunity of hearing to the
  respondent. But the respondent was time and again
H informed during the probation period about his
 CHAITANYA PRAKASH & ANR. v. H. OMKARAPPA 469


deficiencies and was given ample opportunities to A
improve them. Therefore, enough precautions were taken
by the appellants to see that the respondent improved his
performance and such an opportunity was provided to
him. But such advices and opportunity were totally
n:iisplaced as the respondent considered the same as B
unnecessary encroachment and interference in his work
and wrote back rudely ln an intemperate language.
Whether or not a person is suitable to be retained and
confirmed in service could be considered and assessed
by the Managing Director, namely, appellant no. 1, but he c
after making an appraisai:submitted his report along with
all other records of the tespondent before the Board of
Directors, who finally took the decision. The Board of
Directors constituted of responsible persons and they
while deciding the suitability of the respondent not only 0
considered the Performance Assessment Report but also
considered all other records, and thereafter they took a
considered and conscious decision that the respondent
was not suitable for confirmation and terminated his
service. The reasons mentioned in the letter terminating E
the services of the respondent cannot be said to be
stigmatic. The appellant had time and again specifically
brought to the notice of the respondent his short
comings and no misconduct as such is alleged against
the respondent by the appellant and therefore the instant
case is a case of termination simpliciter due to F
unsuitability of the respondent and not a case of
punishment for misconduct. [Paras 14 and 20) [477-B-D;
480-G-H; 481-A-E]
     2.4. Respondent submitted that the order of dismissal   G
of the respondent was stigmatic is also proved from the
fact that subsequent to his termination, the respondent
was called for interview for the post of Managing Director
of Mis. Spice Trading Corporation Ltd. Company and that
when he reached the venue of interview, he was informed
by the Selection Board that he was not required to attend    H
    470      SUPREME COURT REPORTS               [201 O] 1 S.C.R.


A the interview because the appellants informed the said
  company that the service of the respondent was
  terminated due to his unsatisfactory service
  performance; and the same indicated and fortified the
  vindictive attitude of the appellant no. 1 from issuance of
B the said letter. Appellants informed Mis. Spice Trading
  Corporation Ltd. Company on being specifically asked by
  the said company about the performance of the
  respondent and consequently it was informed that his
  service was terminated due to unsuitability, which is a
c fact. If, they would have not intimated the same to the
  company despite their specific query then they would
  have been suppressing the material fact. The said aspect
  does not in any manner support the case of the
  respondent. [Para 21] [481-F-H; 482-A-C]
D       Abhijit Gupta v. S.N.B. National Centre, Basic Sciences
    2006 (4) SCC 469; Mathew P. Thomas v. Kera/a State Civil
    Supply Corpn. Ltd. 2003 (3) SCC 263; Pavanendra Narayan
    Verma v. Sanjay Gandhi PG/ of Medical Sciences (2002) 1
    SCC 520; Allahabad Bank Officers Assn. v. Allahabad Bank
E (1996) 4 sec 504, relied on.
                         Case Law Reference:
          2006 (4) sec 469       Relied on.            Para 16
          2003 (3) sec 263       Relied on.            Para 17
F         (2002) 1 sec 520       Relied on.           Para 18
          (1996) 4 sec 504       Relied on.           Para 19
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2786 of 2007.
G
        From the Judgment & Order dated 11.4.2007 of the High
    Court of Judicature at Madras in Writ Appeal No. 3290 of 2004
    in W.P. No. 19169 of 1999.
       E.R. Kumar, Ranjeeta Rohtagi, Somandri Gour, Parekh &
H Co. for the Appellant.
  CHAITANYA PRAKASH & ANR. v. H. OMKARAPPA                 471


    P. Vishwanatha Shetty, Vijay Bhaskar, Vijay Kumar, L.         A
Paradesi, Rameshwar Prasad Goyal for the Respondent.

     The Judgment of the Court was delivered by

     DR. MUKUNDAKAM SHARMA, J. 1. The issue that falls
for consideration in this appeal is whether the impugned order B
passed by the appellants against the respondent terminating
his service during the period of probation was an order of
termination simpliciter due to unsatisfactory service or
"stigmatic" due to misconduct.
                                                                  c
     2. The respondent herein was offered an appointment to
the post of Executive Director [Marketing] by the Appellant No.
2, namely, Mis. Hindustan Photo Films Manufacturing Company
Ltd. by issuing an offer of appointment dated 03.06.1998. The
said offer of appointment was accompanied with terms and          o
conditions of appointment, one of which was that the respondent
was to undergo probation for a period of one year, which is
extendable. Those terms and conditions mentioned in the said
offer of appointment are relevant for the purpose of deciding
the present case. Few important passages from the aforesaid
                                                                  E
terms and conditions are extracted hereunder:

    "i. You will be on probation in the above post for a period
    of one year from the date of joining the post.

    ii. During the period of your employment in the Company, · F
    you will be governed by the Service Rules of Hindustan
    Photo Films Service Rules for Officers, which would be
    applicable to the officers of the company as may be in
    force from time to time."

Clause-3 of the Hindustan Photo Films Service Rules for           G
Officers which came into effect on 1st March, 1974 deals with
matter of probation. The relevant sub-clauses within clause-3,
read as follows:

    "3. 1. An Officer appointed by direct recruitment or          H
    472       SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A         promotion shall be on probation for a period of one year
          from the date of joining the post.

          3.2. The performance during the period of probation shall
          be reviewed by the Company and the Company may
          extend the period of probation or terminate the services
B
          of the probationer recruited from outside at any time during
          or at the time of the probation period.

          3.3. The Management would try to communicate the orders
          of confirmation to the Officer concerned as early as
c         possible after the end of the period of probation. However,
          any delay in such communication does not mean the
          automatic confirmation of the Officer.


D         3.5. During the period of probation, an Officer directly
          recruited shall be liable to be discharged from the services
          of the company after being suitably advised about his
          unsatisfactory performance or other reasons, if any .... "

E       3. Pursuant to the aforesaid offer of appointment, the
   respondent expressed his willingness to join on the said post
   and consequently joined as Executive Director [Marketing] on
   03.09.1998. At the time of joining, the respondent gave a
   declaration that he would abide by all the rules and regulations
F of the appellant No. 2 - Company. It is the specific case of the
   appellants that as the performance of the respondent was not
   found to be satisfactory during the period of probation his
   service was not confirmed and his probation was extended by
   another three months, in terms of Clauses 3.2 and 3.3 of the
G Service Rules. The aforesaid letter intimating the respondent
   that his probation had been extended by three months also
 · mentioned that during the extended period of probation of three
   months he was expected to show concrete results in his
   performance which had been intimated to him from time to time
H and that his performance would be reviewed again on
   05.10.1999.
  CHAITANYA PRAKASH & ANR. v. H. OMKARAPPA                   473
         [DR. MUKUNDAKAM SHARMA, J.]

     4. The respondent addressed a letter dated 05.10.1999           A
in reply to the letter issued by the company dated 20.09.1999,
wherein he had stated that his performance during the period
of probation was excellent as his service records did not carry
any adverse remarks.
                                                                     B
     5. That there are several letters on record wherein the
appellant no. 1 advised the respondent to improve his
performance. The appellants prepared a detailed report dated
25.11.1999 regarding his performance which was in the nature
of an assessment of the respondent during the period of              C
probation and the same was placed before the Board of
Directors of the appellant company in its 225th meeting, which
was held on 27.11.1999. The Board of Directors considered
the performance and suitability of the respondent on the basis
of his entire service records including the Performance and
Assessment Report prepared by the office and passed a                D
resolution to the following effect:

     " ...... RESOLVED THAT the services of Shri H.
     Omkarappa, Executive Director (Marketing) be terminated
     on or before 2nd December, 1999.                                E

    ·RESOLVED FURTHER THAT the Chairman-cum-
     Managing Director be and is hereby authorized to take all
     necessary steps in the matter".

     6. Consequent upon the said decision of the Board of            F
Directors, the appellant no. 1 issued a letter dated 29.11.1999
to the respondent terminating his services as Executive
Director [Marketing] with effect from 29.11.1999.

     7. Immediately thereafter, the respondent herein preferred      G
a writ petition in the Madras High Court praying for setting aside
and quashing the order dated 29.11.1999 issued by the
appellant. Notice having been issued in the said writ petition,
the appellants filed a detailed counter affidavit. The Division
Bench of the High Court heard the writ petition after completion
                                                                     H
    474     SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A of pleadings. In the said writ petition it was also brought to the
  notice of the court that subsequent to the order of termination,
  the respondent applied for the post of Managing Director of M/
  s. Spices Trading Corporation Ltd. but he was not called for
  interview held during the selection process in view of the letter
B dated 29.02.2000 sent by the appellants bringing to their notice
  the misconduct of the respondent. The said writ petition was
  heard by the Division Bench of the f·ligh Court of Madras and
  by the impugned Judgment and Order dated 11.04.2007, the
  High Court allowed the writ petition holding that the order of
c termination passed by the appellants against respondent was
  stigmatic, and therefore, the said order could not have been
  given effect to without giving an opportunity to the respondent.
  It was, therefore, directed that the respondent herein would be
  allowed to continue in his service.
D        8. Being aggrieved by the Judgment and Order dated
    11.04.2007 passed by the Division Bench of the High Court,
    the present appeal was preferred by the appellants herein on
    which we have heard the learned counsel appearing for the
    respective parties.
E
       9. Mr. E.R. Kumar, Advocate for the appellants has drawn
  our attention to the terms and conditions of the appointment,
  the Rules position with regard to the service conditions of the
  respondent and also to the communications between the
F appellant no. 1 and the respondent. The counsel appearing for
  the appellants submitted before us that the High Court was
  wrong and incorrect in holding that the order terminating the
  services of the respondent was stigmatic. It was also submitted
  that it cannot be said that the appellant no. 1 was biased
G against the respondent in taking the decision to terminate his
  services as the Board of Directors was responsible for passing
  a resolution to the effect of termination of the services of the
  respondent after considering the entire records and
  Performance and Assessment Report of the respondent. The
H Counsel also relied upon the decision of the Supreme Court
 CHAITANYA PRAKASH & ANR. v. H. OMKARAPPA                   475
        [DR. MUKUNDAKAM SHARMA, J.]
in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences          A
reported in (2006) 4   sec 469 and also the decision of the
Supreme Court in Mathew P. Thomas v. Kera/a State Civil
Supply Corpn. Ltd., reported in (2003) 3 SCC 263.

     10. Mr. P. Vishwanatha Shetty, learned Senior Advocate         B
appearing for the respondent, on the other hand, submitted that
a bare perusal of the order of termination dated 29.11.1999
would indicate that the same was stigmatic, and therefore, the
High Court was justified in setting aside the same as the same
was issued without giving any opportunity to the respondent and     C
without conducting any enquiry in that regard. It was also
submitted that the decision of the Board of Directors to
terminate the services of the respondent was the result of bias
of appellant No. 1 and also influenced by him as he was very
much present in the meeting of the Board of Directors in which
the decision to terminate the services of the respondent was        D
taken.

      11. In light of the submissions made by the counsel
appearing for the parties, we have perused the entire records.
The respondent was appointed as Executive Director                  E
[Marketing] vide letter dated 03.06.1998 on specific terms and
conditions, one of which was that he would be on probation in
the aforesaid post for a period of one year from the date of
joining the post. It was also stated in para 3 of the letter of
appointment that if the aforesaid terms and conditions are          F
acceptable to the respondent he may indicate the date of joining
within 10 days. The respondent accepted the aforesaid offer
of appointment along with terms and conditions appended
thereto and also specifically accepted the position that he would
be guided by the rules and regulations applicable to the            G
appellant no. 2 - Company.

     12. We have already extracted the rule position governing
the service conditions of the respondent. The respondent was
ordered to be on probation for a period of one year and as per
clause 3.2 of Service Rules his performance during the period       H
    476     SUPREME COURT REPORTS                 [201 OJ 1 S.C.R.


A of probation was to be reviewed by the company and that the
  company could extend the period of probation or terminate the
  service of the respondent at any time during or at the time of
  probation period. On the other hand, clause 3.3 of Service
  Rules stated there has to be an order communicating the order
B of confirmation to the officers concerned after the end of the
  period of probation. In the present case, no such order of
  confirmation was passed by the appellant no. 2 confirming the
  service of the respondent. There is no dispute with regard to
  the fact that the respondent continued to be on probation, which
c was extended for a period of three months.
       13. A letter dated 20.09.1999 was issued to the
  respondent communicating to him that his probation period has
  been extended by another three months and that during the
  aforesaid period of probation he is expected to show concrete
D results in his performance which was being communicated to
  him from time to time and that his performance would be viewed
  during the period of probation and the said fact was
  communicated to him. There are communications on the record
  communicating to the respondent that the appellants were not
E satisfied with the performance of the respondent. It was
  communicated to him in one of such communications that it
  was very dishee1rtening to note that the respondent did not
  improve his deficiencies and show any improvement in his
  conduct and behaviour. The appellant no. 1 in his
F communications dated 20.09.1999, 04.11.1999 and
  08.11.1999 apprised the respondent about his deficiencies. He
  was advised that if a significant improvement was not shown,
  the appellants would be constrained to initiate further action,
  as per Company Rules in that regard.
G
         14. After making a total appraisal of his performance, a
    report was submitted to the Board of Directors by appellant No.
    1. The record also discloses that the Board of Directors held
    a meeting and in that meeting they not only considered the
    Performance Assessment Report prepared by the appellant no.
H
 CHAITANYA PRAKASH & ANR. v. H. OMKARAPPA                   477
        fDR. MUKUNDAKAM SHARMA, J.]
1 but also perused the entire service record of the respondent,     A
and thereafter took a conscious and considered decision of
terminating his service due to unsatisfactory work. The
aforesaid decision of the Board of Directors of appellant no. 2
was communicated to the respondent under the impugned order
dated 29.11.1999. The respondent was not confirmed in the           B
post of Executive Director (Marketing) and he continued to be
on probation during which period his service could be
terminated for unsatisfactory work and for doing so it was not
necessary for the appellants to institute departmental
proceedings or to give an opportunity of hearing to the             c
respondent. But the fact remains that a number of
communications were issued to the respondent by the appellant
no. 1 bringing to his notice his dismal performance and
unsatisfactory work with an advise to improve his performance.

      15. Our attention was also drawn to a letter written by the   D
respondent to the appellant no. 1, who was the Managing
Director of the company. If a subordinate officer like the
respondent is in the habit of using an intemperate language
against his superior like the appellant No. 1 the decision taken
by the appellant company cannot be said to be in any manner         E
vitiated. Letter dated 13.11.1999 written by the respondent to
the appellant no. 1 would support the said position and would
speak volume about his behaviour and conduct. The relevant
paragraphs of the said letter are extracted hereunder:
                                                                    F


    I acknowledge the receipt of the above letters. I have also
    gone through the contents of the letters carefully. I
    respectfully submit to the respected CMD, that you have
    spent enough of your intellectual faculty to bring out a        G
    picture of non-performance by me, for which I must
    appreciate your efforts. However, I feel sad that you have
    wasted your energy in manipulating the facts through
    figures. As my Senior Officer & elderly person, I must also
    thank you for numerous advices given to me in the letter,       H
    478      SUPREME COURT REPORTS                   [201 O] 1 S.C.R.

A         which I must consider on their merits"



          "Sir, I must refer here that unlike my above explained case,
          yourself and Director Finance have joined this company
B         only to enjoy better benefits which include status, good pay,
          perquisites and other facilities."



          "Alas, I am unable to comprehend from the fact that from
c         the beginning of my career in HPF, I found that I have been
          restrained to perform with my full capacity by CMD and OF,
          by their non congenial attitude and acts, which gradually
          concentrated to the extent of suffocating me, affecting my
          efficiency to a great extent. Sir, it is not out of pen to
D
          mention here that under various acts of commissions and
          omissions of CMD and OF, I have been totally restricted
          from functioning as EDM, with even small part of my
          capacity. I give below some of them for your kind
          knowledge and perusal, even though you are quite aware
E         of them."



          'Thus, it is not EDM's inefficiency/non performance that
          has affected the efficiency of Marketing Division, but the
F
          callous act of CMD/DF which prevented EDM from
          functioning normally and also affected his efficiency and
          credibility."

       16. It is no longer res integra that even if an order of
G termination refers to unsatisfactory service of the person
  concerned, the same cannot be said to be stigmatic. In this
  connection, we make a reference to the decision of the decision
  of the Supreme Court in Abhijit Gupta v. S.N.B. National
  Centre, Basic Sciences (supra), wherein also a similar letter
H was issued to the concerned employee intimating him that his
  CHAITANYA PRAKASH & ANR. v. H. OMKARAPPA                   479
         [DR. MUKUNDAKAM SHARMA. J.]
performance was unsatisfactory and, therefore, he is not             A
suitable for confirmation. We have considered the ratio in light
of the facts of the said case and we are of the considered
opinion that the basic facts of the said case are almost similar
to the one in hand. There also, letters were issued to the
concerned employee to improve his performance in the areas           B
of his duties and that despite such communications the service
was found to be unsatisfactory. In the result, a letter was issued
to him pointing out that his service was found to be
unsatisfactory and that he was not suitable for confirmation, and,
therefore, his probation period was not extended and his             c
service was terminated, which was challenged on the ground
that the same was stigmatic for alleged misconduct. The
Supreme Court negatived the said contention and upheld the
order of termination.

     17. In Mathew P. Thomas v. Kera/a State Civil Supply            D
Corpn. Ltd., (supra) also the concerned employee was kept on
probation for a period of two years. During the course of his
employment he was also informed that despite being told to
improve his performance time and again there is no such
improvement. His shortfalls were brought to his notice and           E
consequently by order dated 16.01.1997 his services were
terminated, wherein also a reference was made to his
unsatisfactory service. In the said decision, the Supreme Court
has held that on the basis of long line of decisions it appears
that whether an order of termination is simpliciter or punitive      F
has ultimately to be decided having due regard to the facts and
circumstances of each case.

     18. In Pavanendra Narayan verma v. Sanjay Gandhi PG/
of Medical Sciences, (2002) 1 SCC 520; this court had the            G
occasion to determine as to whether the impugned order
therein was a letter of termination of services simpliciter or
stigmatic termination. After considering various earlier
decisions of this court in paragraph 21 of the aforesaid
decision it was stated by this Court thus :-
                                                                     H
    480       SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A         "21. One of the judicially evolved tests to determine whether
          in substance an order of termination is punitive is to see
          whether prior to the termination there was (a) a full-scale
          formal enquiry (b) into allegations involving moral turpitude
          or misconduct which (c) culminated in a finding of guilt. If
s         all three factors are present the termination has been held
          to be punitive irrespective of the form of the termination
          order. Conversely if any one of the three factors is missing,
          the termination has been upheld."

       19. In Abhijit Gupta (Supra.), this Court considered as to
C what will be the real test to be applied in a situation where an
  employee is removed by an innocuous order of termination i.e
  whether he is discharged as unsuitable or he is punished for
  his misconduct. In order to answer the said question, the Court
  relied and referred to the decision of this Court in Allahabad
D Bank Officers Assn. V. Allahabad Bank (1996) 4 SCC 504;
  where it is stated thus :-

          "14 ....... As pointed out in this judgment, expressions like
          "want of application", "lack of potential" and "found not
E         dependable" when made in relation to the work of the
          employee would not be sufficient to attract the charge that
          they are stigmatic and intended to dismiss the employee
          from service."

        20. In our considered opinion, the ratio of the above-
F referred decisions are squarely applicable to the facts of the
  present case. The respondent was time and again informed
  during the probation period about his deficiencies and was
  given ample opportunities to improve them. Therefore, enough
  precautions were taken by the appellants to see that the
G respondent improved his performance and such an opportunity
  was provided to him. But such advices and opportunity were
  totally misplaced as the respondent considered the SClme as
  unnecessary encroachment and interference in his work and
  wrote back rudely in an intemperate language. Whether or not
H a person is suitable to be retained and confirmed in service
  CHAITANYA PRAKASH & ANR. v. H. OMKARAPPA . 481
         [DR. MUKUNDAKAM SHARMA, J.]    1 ,



 could be considered and assessed by the Managing Director,          A
 namely, appellant no. 1, but he after making an appraisal
submitted his report along with all other records of the
 respondent before the Board of Directors, who finally took the
decision. The Board of Directors constituted of responsible
persons and they while deciding the suitability of the               B
respondent not only considered the Performance Assessment
Report but also considered all other records, and thereafter they
took a considered and conscious decision that the respondent
was not suitable for confirmation and terminate his service. The
said decision of the Board of Directors appears to be in parity      c
with the ratio of the aforesaid decisions of this Court (supra).
The reasons mentioned in the letter dated 29.11.1999 -
terminating the services of the respondent cannot be said to
be stigmatic. The appellant had time and again specifically
brought to the notice of the respond~nt his short comings and        0
no misconduct as such is alleged against the respondent by
the appellant and therefore the present case is a case of
termination simpliciter due to unsuitability of the respondent and
not a case of punishment for misconduct.

      21. It was brought to our notice during the course of          E
 argument by the counsel appearing for the respondent that the
 order of dismissal of the respondent dated 29.11.1999 was
stigmatic is also proved from the fact that subsequent to his
termination, the respondent was called for interview for the post
of Managing Director of Mis Spices Trading Corporation Ltd.          F
and that when he reached the venue of interview, he was
informed by the Selection Board that he was not required to
attend the interview because the appellants informed the said
company that the service of the respondent was terminated
due to his unsatisfactory service performance. Referring to and      G
relying on the same, it was submitted by the counsel appearing
for the respondent that it indicated and fortified the vindictive
attitude of the 1st appellant herein from issuance of the
aforesaid letter. We have perused the relevant records and on
the basis of the same we are of considered opinion that the          H
    482     SUPREME COURT REPORTS                 [2010) 1 $.C.R.


A appellants informed Mis Spices Trading Corporation Ltd.
  company on being specifically asked by the said company
  about the performance of the respondent and consequently it
  was informed that his service was terminated due to
  unsuitability, which is a fact. If, they would have not intimated
B the same to the company despite their specific query then they
  would have been suppressing the material fact. In our
  considered opinion the aforesaid aspect does not in any
  manner support the case of the respondent.

       22. In view of the above, we hold that the impugned order
C is not stigmatic and as such the decision of the High Court is
  erroneous and vitiated. We accordingly, hereby set aside the
  same and restore the order dated 29. 11. 1999 passed by the
  appellant.

0       23. As a result, the appeal is allowed. There will be no
    orders as to costs.

    N..J.                                         Appeal allowed.