Karnataka High Court
Sri. Kariyappa. G vs Union Of India on 5 March, 2025
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE T.M.NADAF
WRIT PETITION NO.31971 OF 2024 (S-CAT)
BETWEEN:
SRI. KARIYAPPA. G
36 YEARS,
S/O SRI. GAVIRANGAPPA,
OCCN: LOWER DIVISION CLERK,
515 ARMY BASE WORKSHOP,
BENGALURU - 560 008
(UNDER ORDERS OF TERMINATION)
RESIDING AT: D-135,
NORTH 3RD LANE, ITI COLONY,
DOORVANINAGAR,
BENGALURU - 560 016.
PERMANENT RESIDENT
NEAR BANASHANKARI TEMPLE,
ST COLONY, AVARAGERE,
DAVANGERE TALUK & DISTRICT
PIN CODE: 577 003.
...PETITIONER
(BY SRI P A KULKARNI, ADVOCATE)
AND
1. UNION OF INDIA
BY ITS SECRETARY,
MINISTRY OF DEFENCE,
SOUTH BLOCK, DHQ PO,
NEW DELHI - 110 011
2
2. DIRECTORATE GENERAL OF EME (CIV),
MASTER GENERAL OF ORDNANCE'S BRANCH,
INTEGRATED HQ OF MOD(ARMY)
DHQ PO, NEW DELHI - 110 010.
3. COMMANDANT AND MANAGING DIRECTOR,
515 ARMY BASE WORKSHOP
HALASURU,
BENGALURU - 560 008.
4. COMMANDER,
BASE WORKSHOP GROUP,
C/O 56 APO,
MEERUT CANTT.(UP): 900 468
RESPONDENTS
(BY SRI. B.PRAMOD, CGSC FOR R1-R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF
CERTIORARI OR ANY OTHER WRIT/ORDER/DIRECTION QUASHING THE
ORDER DATED 28/03/2024 IN O.A.170/28/2022, ANNEXURE-A PASSED
BY CAT BENGALURU BENCH, BENGALURU AND ALLOW THE PRAYER MADE
IN THE OA 170/28/2022, IN THE INTEREST OF JUSTICE AND EQUITY,
ETC
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.02.2025 AND COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, T.M. NADAF J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE V KAMESWAR RAO
AND
HON'BLE MR. JUSTICE T.M.NADAF
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CAV ORDER
( PER: THE HON'BLE MR JUSTICE T.M.NADAF )
Assailing the order passed by the Central Administrative
Tribunal in Original Application No.170/00028/2022, the petitioner is
in this writ petition before this Court seeking the following reliefs:
a) "Issue a writ in the nature of certiorari or any other
writ/order/direction quashing the order dated 28.03.2024
in OA 170/28/2022, Annexure-A passed by CAT Bengaluru
Bench, Bengaluru and allow the prayer made in the OA
170/28/2022, in the interest of justice and equity.
b) Pass any other order or direction that this Hon'ble Court
may deem it fit and necessary in the facts and
circumstances of the present case and in the interest of
justice and equity."
2. The relevant facts in brief leading to the case are as
under:
An offer of appointment as Lower Division Clerk (for short
'LDC') (S/Tribe CAT) was issued to the petitioner on 08.01.2018. It
is germane to quote paragraph Nos.5 and 6 of the said appointment
order, which reads as follows:
"5. Your appointment will be on purely temporary basis and
subject to verification of certificates produced. If subsequent
verification proves any of the certificates to be false, the
appointment will be terminated forthwith. You will be on
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probation for a period of two years from the date of
appointment. If your service is not found satisfactory during
your probationary period, your services are liable for
termination without notice under the provisions of Rule 5 of
CCS (Temporary Service) Rule 1965.
6. On satisfactory completion of the probationary period you
will be retained in service as "Lower Division Clerk" and your
services are liable for termination on rendition of one month's
notice either side."
3. The petitioner reported to duty and an appointment order
vide Annexure-F, was issued by respondent No.3, appointing the
petitioner provisionally as LDC in a temporary capacity w.e.f.,
17.01.2018.
4. It is the case of the petitioner that he worked for about 1
year, 8 months smoothly. In October 2019, an officer by name
Lt.Col.Neeladhri Roy was posted to P&PC Department and
immediately trouble began to the applicant. Lt.Col.Roy would always
target the petitioner for the reasons best known to him and was ill-
treating the petitioner because of the fact that the petitioner
belonged to Scheduled Tribe. Since the petitioner was under
probationary period, he withstood all the insults as he did not want
to give room for any serious consequences.
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5. A complaint comes to be lodged by the said Lt.Col.Roy on
16.11.2019, followed by a preliminary enquiry on 10.12.2019
resulting in issuance of a show-cause notice on 10.02.2020. The
petitioner responded to the same on 21.02.2020. Not satisfied with
the reply, a memorandum comes to be issued on 08.09.2020 to the
petitioner, proposing to hold an enquiry under Rule-14 of CCS
(CCA) Rules 1965. The petitioner submitted his defense statement
on 17.09.2020. The same was not accepted and a regular enquiry
was held. Subsequent to the completion of the enquiry, an enquiry
report was submitted by the then Investigating Officer and same
was forwarded to the petitioner on 16.08.2021 for his information.
6. In the said enquiry report, it was found that "all these
actions of the petitioner amounts to misconduct and misbehavior of
unbecoming a Government servant". The Appointing Authority also
issued an order of penalty on 06.10.2021, which has been served on
the petitioner through Establishment Officer on 07.10.2021. The
punishment imposed reads as under:
"Reduction to lower stage of pay by one stage from
Rs.21,700/- to Rs.21,000/- for a period of one year with
effect from 06.10.2021 with further direction that he will
not earn increment of pay during the said period and
reduction will not have effect on postponing his future
increment of pay."
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7. Aggrieved by the said order of penalty, the petitioner
preferred an appeal before the respondent no.4 on 30.10.2021. It is
the further case of the petitioner that his probation has been
extended upto 16.01.2022 and as his probation was not declared
during the said period, he made a complaint to SC/ST Cell. It is his
further contention that though the appeal before the fourth
respondent reached its conclusion, the third respondent issued an
order of termination dated 16.12.2021, under Rule-5, Sub-Rule-1 of
CCS (Temporary Services) Rules 1965, terminating the petitioner
from the post.
8. Assailing the same, the petitioner approached the Central
Administrative Tribunal (hereinafter called as 'Tribunal' for short) in
O.A. No.170/00028/2022.
9. The contention of the petitioner before the Tribunal was
that the order of termination is not a termination simpliciter, but
finds its roots in the enquiry held against him, on the complaint of
Lt.Col.Roy, as contended in his application grounds at para No.5.2.
It was the specific contention of the petitioner that the respondents
have initiated disciplinary proceedings under Rule-14 of CCS & CCA
Rules, 1965 and have imposed penalty on the applicant. In those
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circumstances, the termination order cannot be treated as one
passed as simpliciter but punitive and caused stigma founded on the
order of penalty. Therefore, the termination order is liable to be
quashed. To buttress his arguments, he had relied on the judgment
of Hon'ble Apex Court in the case of Dipti Prakash Banerjee vs.
Satyendra Nath Bose National Centre for Basic Sciences,
Calcutta And Others1 in his grounds at para No. 5.3, which reads
as follows:
(A) "Constitution of India, Article 14 - Probationer -
Termination during probation - Whether an order of termination
of a probationer is punitive or not depends upon whether the
allegations cause of termination are the motive or foundation of
the order - Where the findings arrived at in an inquiry
conducted at the back of an employee without holding regular
enquiry are the basis of simple order of termination, such
allegations and findings are to be treated as foundation of the
order and the order is vitiated.
(B) Constitution of India, Article 14 - Probation - Stigma -
Termination during probation - Whether the reasons would cast
a stigma and affect the future career of the employee in getting
employment depends on the facts and circumstances of each
case and the language or words employed in the order of
termination of the probationer - if it leads a person to believe
that there was something wrong with the employee as regards
his conduct or character, it will certainly cast a stigma - it is not
necessary that words amounting to stigma must be contained
1
AIR 1999 SC 1983
8
in the order of termination itself but may be contained in the
enclosures, documents or proceedings referred to therein -
Findings of preparation of false bills and misbehavior with
women based on a formal enquiry are stigmatic.
(C) Constitution of India, Article 14 - Probationer - Natural
Justice - Stigmatic order of termination of probationer based on
formal enquiry by show cause notice without holding regular
enquiry into the allegations of misconduct - order held vitiated
- Findings arrived at by such formal Committee cannot be used
for terminating the services of a probationer."
On these contentions, he prayed before the Tribunal to allow
his application.
10. Respondents appeared and filed their written statement
contending mainly that -
"b) During the probationary period, the petitioner was provided
with multiple opportunities in terms of changed work
environment & an opportunity to work under different Initiating
Officers (four) in various departments inside 515 Army Base
Workshop for unbiased assessment as well as guidance for
improving his performance. He was finally administratively
terminated from service on 16 Dec 2021 solely on the basis of
his unsatisfactory Probationer's Assessment Reports and
Performance Improvement Advisories. Despite the best efforts
of respondents through its functionaries at all levels and their
effort and time devoted over an extended period of time, the
petitioner could not be encouraged enough to even achieve the
satisfactory level of performance in the establishment.
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c) The administrative termination of the Applicant was solely
based on scrutiny of Probationary Assessment Reports and
Performance Improvement Advisories of the individual after
multiple opportunities to the Applicant in terms of changed
work environment and different reporting officers for unbiased
guidance and assessment over the maximum period of
probation extended possible.
d) The Applicant's misconduct was enquired into and
culminated in the award of penalty for that specific instant of
misconduct post proper disciplinary proceedings, as per extant
rules. The aforesaid penalty was appealed under provisions of
CCS (Conduct) Rules 1965 and the penalty imposed was
confirmed by the Appellate Authority on 16.04.2022. This
correction in conduct was desirable towards facilitating and
maintaining discipline in the establishment and was without any
prejudice whatsoever to the lack of performance or
unsatisfactory performance of the Applicant.
e) Various advisories were given to the Applicant on account of
his unsatisfactory performance at various specific instances
during his service. Opportunities were given to the Applicant in
terms of change of work environment and different reporting
officers for an unbiased assessment as well as guidance for
improving his performance. Full opportunity was accorded to
the Applicant with the hope that the Applicant shall make due
efforts to improve through maximum extension of probation.
f) The administrative termination of the Applicant was done
only after proper scrutiny of his entire memo of service through
probationary assessment reports and Performance
Improvement Advisories at the end of the maximum extended
probation period due to unsatisfactory performance and
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inability to improve despite change in working environment,
change in reporting officers for guidance and assessment to
obviate any kind of biases whatsoever.
g) EME Records vide their letter dated 04.12.2021 intimated
that "on perusal of assessment report in respect of Shri
Kariyappa G, it is found that the individual is not meeting the
criteria for confirmation" and advised 515 Army Base Workshop
to take action as per DoP&T O.M. dated 21.07.2014.
Accordingly, the service of LDC, Shri Kariyappa G was
administratively terminated on 16.12.2022 based on the
Probationers Assessment Report initiated by the different
Assessing/Recording Officers in different sections of 515 Army
Base Workshop on the performance of his trade work during the
probationary period and Performance Improvement Advisories
issued to the applicant."
11. The respondents have relied mainly upon the judgments
of the Hon'ble Apex Court in the case of Radhey Shayam Gupta
vs. U.P.State Agro Industries Corporation Limited2, and
Devendra Joshi Vs. Union of India3 and several other judgments
including Chanpaklal Chimanlal Shah Vs. UOI, and in the case of
Director, Aryabhatta Research Institute of Observational
Sciences & An Vs Devendra Joshi & Ors4, wherein the Hon'ble
Apex Court held that -
2
(1999) 2 SCC 21
3
(2011) SCC Online Utt 26
4
(2018) 15 SCC 73
11
"Termination at the end of probation period without
imputing any misconduct in termination order - no stigma
attached and thus termination order was not punitive."
12. Relying on these, it was contended by the respondents,
that the order of termination at Annexure-G is an order of
termination simpliciter, purely on the basis of assessment of
appraisal report submitted by the different Officers, under whom the
petitioner was placed to serve for improvement in his performance
and advisories. Further, contended that the enquiry on the basis of
the complaint lodged by Lt.Col.Roy resulting in penalty against the
petitioner has nothing to do with the order of termination.
13. The Tribunal after considering the arguments of the
respective counsels, the pleadings and documents placed on record
by either side has dismissed the application quoting the following
reasons:-
"10. The contention of the applicant that he was performing his
duties to the complete satisfaction of the respondents, cannot
be countenanced keeping these advisories in view. He has
performed under control of four different officers in this period
who have separately given assessment reports regarding his
performance. A perusal of these assessment reports also
indicates that the applicant partially met the requirements of
the job on most parameters and these reports indicated an
average or below average performance.
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11. The applicant has contended that he was being specifically
harassed by one Officer namely Lt. Col Niladri Ray. The
applicant has further alleged that he has been imposed a
punishment as well as has suffered termination of his services,
consequent to this harassment. His specific contention is that
his termination cannot be held to be a termination simpliciter
but is an additional penalty imposed on him in addition to the
penalty already imposed on him for his alleged misconduct
against Lt. Col Niladri Ray.
12. The documents submitted by the respondents indicate that
the applicant has been punished for his alleged misconduct
separately, for which a penalty of reduction to lower stage by
one stage for a period of one year has been imposed on him.
This penalty has also been confirmed by the Appellate Authority
on 16.4.2022. However, the reason for the termination of his
services is due to the adverse reports by his assessing officers
as well as the advisories issued to him during his probation
period. These reports and advisories are not connected with his
alleged misconduct against Lt. Col Niladri Ray.
13. The contention of the applicant that he has been terminated
from services due to the alleged misconduct does not carry
weight and is difficult to accept, keeping in view the fact that
his performance has been adversely noted on various occasions
during his entire probationary period.
14. A probationer who is not making satisfactory progress or
who shows himself to be inadequate for the service in any way
is required to be informed of his shortcomings well before the
expiry of the original probationary period so that he can make
special efforts at self-improvement. Issuance of the advisories
13
to the applicant confirm that this has been done by the
respondents repeatedly.
15. Despite repeated advisories, the applicant was found
lacking in making satisfactory progress. Under the Rules, if it
appears to the Appointing Authority, at any time, during or at
the end of the period of probation that a Government servant
has not made sufficient use of his opportunities or is not
making satisfactory progress, the Appointing Authority may
revert him the post held substantively by him immediately
preceding his appointment, provided he hold a lien thereon or
in other cases may discharge or terminate him from service.
16. The Central Civil Services (Temporary Service) Rules, 1965
have the following provisions relating to termination of
temporary service:-
5. Termination of temporary service.
(1) (a) The services of a temporary Government servant
shall be liable to termination at any time by a notice in
writing given either by the Government servant to the
appointing authority or by the appointing authority to
the Government servant;
(b) the period of such notice shall be one month.
Provided that the services of any such Government
servant may be terminated forthwith and on such
termination, the Government servant shall be entitled to
claim a sum equivalent to the amount of his pay plus
allowances for the period of the notice at the same rates
at which he was drawing them immediately before the
termination of his services, or as the case may be, for
the period by which such notice falls short of one month
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17. The termination order issued by the respondents in the
present case is under the proviso below rule 5(1)(b) of Rule
5 of CCS (Temporary Service) Rule 1965. As provided under
these rules, the services of the applicant have been
terminated forthwith, with the direction that he shall be
entitled to claim a sum equivalent to the amount of his pay
and allowances for the period of one month at the same
rates at which he was drawing them immediately before the
period of termination of his service. There is no reason
specifically indicated in the order to show that his services
were terminated due to any penalty imposed on him. His
termination order should be considered as a termination
simpliciter without any stigma."
Dissatisfied with the order passed by the Tribunal, the
petitioner is before this Court.
14. Sri.P.A.Kulkarni, learned Advocate appearing for the
petitioner submitted his arguments mainly as under:
(i) Firstly, the order of termination is not an order of
termination simpliciter and it has its genesis in the
enquiry held against him (petitioner) on the complaint of
Lt.Col.Roy and this is the main reason for his
termination, as such, the same carries stigma and gets
vitiated.
(ii) Secondly, he contends that the summary of probationary
assessment reports at para No.12 of the reply statement
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submitted by the respondents before the Tribunal does
not spell out that the petitioner is not fit to continue in
the service. The said report contains only the qualities,
wherein some were in favour of the petitioner and some
were against him.
(iii) Thirdly, the final assessment report on the extended
period submitted on 24.11.2021, vide Annexure-O, and
the order of termination passed within one month
thereafter, as such, the same is not sustainable in law.
(iv) Fourthly, the order of termination at Annexure-G falls
short of Rule-5 of CCS (Temporary Services) Rules,
1965. He would contend that there is no notice of one
month as culminated under Rule-5 (1)(b) of CCS
(Temporary Services) Rules, has been issued to the
petitioner, as such, the order of termination is vitiated.
The learned counsel submits that though the order of
termination at Annexure-G does not spell out regarding
the enquiry or misconduct or otherwise, however,
submits that the Court can go beyond the formal order of
discharge to find the real cause of action.
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15. The sum and substance of the contention of the learned
counsel is that the termination order is not a termination simpliciter,
but it relates back to the enquiry held against him which has
resulted in penalty and as such, the same operates as an 'order
punitive' in nature and carries stigma. To substantiate his
contention the learned counsel relied upon the judgment of Hon'ble
Apex Court in the case of Anoop Jaiswal vs. Governnent Of
India And Another5 and press upon para No.12, which reads as
under:
"12. It is, therefore, now well settled that where the form
of the order is merely a camouflage for an order of
dismissal for misconduct it is always open to the court
before which the order is challenged to go behind the
form and ascertain the true character of the order. If the
court holds that the order though in the form is merely a
determination of employment is in reality a cloak for an order of
punishment, the court would not be debarred, merely because
of the form of the order, in giving effect to the rights conferred
by law upon the employee."
(emphasis supplied by me)
16. Refuting the contentions of the learned counsel for the
petitioner, Sri.B.Pramod learned CGSC appearing for respondent
Nos.1 to 3 submits that there is no relation between the enquiry
5
(1984) 2 SCC 369
17
held against the petitioner on the complaint of Lt.Col.Roy and the
order of termination. On the other hand, both are independent to
one another. He further contends that the petitioner was appointed
purely on temporary basis as per the offer of appointment dated
08.01.2018, particularly striving on Paras No.5 and 6 of the offer of
appointment, stated supra.
17. The enquiry held on the complaint dated 16.11.2019,
resulted in punishment of imposing penalty of reduction to lower
stage of pay by one stage for a period of one year w.e.f.
06.10.2021. The petitioner was appointed w.e.f. 17.01.2018 in a
temporary capacity on probation period of two years. As his
performance in the employment was not in line with the one
expected from an employee, his probation was not declared.
However, to afford an opportunity to correct himself and bring him
in line of performance, his probation was extended by one more
year, immediately after completion of his probation of two years.
During the said period he was placed under different officers with
advisories. As there was no improvement in his performance, he
was afforded another opportunity by extending the probation period
for another year as contemplated under the Rules. That apart, for
proper advisory in order to improve his performance in work by
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verbal counseling, as well as by issuance of written instructions, he
was placed to serve under different Officers as under,.
"17.01.2018 to 16.01.2019 Col Rajesh Kumar, DGM, P & PC
17.01.2019 to 16.01.2020 Maj Himika Kalyani, DGM, P & PC
17.01.2020 to 16.01.2021 Shri James Joseph, CASO
17.01.2021 to 16.01.2022 Lt Col Vijay Manikandan DGM (SMD)"
18. He further contends that, the order passed vide
Annexure-G is not on any enquiry, rather it is purely on the
appraisal of reports submitted by all the Officers on the performance
of the petitioner under whom his services was placed till his
termination. In these circumstances, the order passed by the
Tribunal does not call for any interference.
19. He further contends that, the grounds raised by the
petitioner falls short against the order of termination vide
Annexure-G and not acceptable. At any stretch of imagination, the
order of termination does not contain any words which would run
against him and stigmatic in nature. The judgment of the Hon'ble
Apex Court in the case of Dipti Prakash Banerjee referred to
supra goes against the petitioner rather in his favour. He submits
that the Hon'ble Apex Court in the said judgment held that - where
a finding is arrived at an enquiry conducted, in back of the
employee without holding regular enquiry, are the basis of the
19
simple order of termination. Such allegation and findings are to be
treated as foundation of the order and the order is vitiated and
would result in stigmatic. In the case on hand, the termination order
was issued purely on the assessment of Appraisal report submitted
by the Officers under whom his services was placed.
20. To buttress his arguments learned CGSC, relies upon the
judgment of the Hon'ble Apex Court in the case of State of Punjab
and Others vs. Sukhwinder Singh6 and stressed upon para
Nos.19 and 20, which reads as under:
"19. It must be borne in mind that no employee whether a
probationer or temporary will be discharged or reverted,
arbitrarily, without any rhyme or reason. Where a superior
officer, in order to satisfy himself whether the employee
concerned should be continued in service or not makes inquiries
for this purpose, it would be wrong to hold that the inquiry
which was held, was really intended for the purpose of imposing
punishment. If in every case where some kind of fact-finding
inquiry is made, wherein the employee is either given an
opportunity to explain or the inquiry is held behind his back, it
is held that the order of discharge or termination from service is
punitive in nature, even a bona fide attempt by the superior
officer to decide whether the employee concerned should be
retained in service or not would run the risk of being dubbed as
an order of punishment. The decision to discharge a probationer
during the period of probation or the order to terminate the
6
(2005) 5 SCC 569
20
service of a temporary employee is taken by the appointing
authority or administrative heads of various departments, who
are not judicially trained people. The superior authorities of the
departments have to take work from an employee and they are
the best people to judge whether an employee should be
continued in service and made a permanent employee or not
having regard to his performance, conduct and overall
suitability for the job. As mentioned earlier a probationer is on
test and a temporary employee has no right to the post. If
mere holding of an inquiry to ascertain the relevant facts for
arriving at a decision on objective considerations whether to
continue the employee in service or to make him permanent is
treated as an inquiry "for the purpose of imposing punishment"
and an order of discharge or termination of service as a result
thereof "punitive in character", the fundamental difference
between a probationer or a temporary employee and a
permanent employee would be completely obliterated, which
would be wholly wrong.
20. In the present case neither any formal departmental inquiry
nor any preliminary fact-finding inquiry had been held and a
simple order of discharge had been passed. The High Court has
built an edifice on the basis of a statement made in the written
statement that the respondent was a habitual absentee during
his short period of service and has concluded there from that it
was his absence from duty that weighed in the mind of the
Senior Superintendent of Police as absence from duty is a
misconduct. The High Court has further gone on to hold that
there is direct nexus between the order of discharge of the
respondent from service and his absence from duty and,
therefore, the order discharging him from service will be viewed
as punitive in nature calling for a regular inquiry under Rule
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16.24 of the Rules. We are of the opinion that the High Court
has gone completely wrong in drawing the inference that the
order of discharge dated 16-3-1990 was, in fact, based upon
misconduct and was, therefore, punitive in nature, which should
have been preceded by a regular departmental inquiry. There
cannot be any doubt that the respondent was on probation
having been appointed about eight months back. As observed
in Ajit Singh v. State of Punjab³ the period of probation gives
time and opportunity to the employer to watch the work,
ability, efficiency, sincerity and competence of the servant and
if he is found not suitable for the post, the master reserves a
right to dispense with his service without anything more during
or at the end of the prescribed period, which is styled as period
of probation. The mere holding of preliminary inquiry
where explanation is called from an employee would not
make an otherwise innocuous order of discharge or
termination of service punitive in nature. Therefore, the
High Court was clearly in error in holding that the
respondent's absence from duty was the foundation of
the order, which necessitated an inquiry as envisaged
under Rule 16.24(ix) of the Rules."
(Emphasis supplied by me)
21. We have heard the learned counsels appearing for the
respective parties and have given our anxious thoughts to the
arguments advanced, pleadings submitted, documents placed and
the judgments relied. The only point that emerges for consideration
before us is as follows:-
22
"Whether the order of termination at Annexure-G is an
innocuous order of termination simpliciter or it is an order
camouflaged in termination simpliciter relating its roots to
the enquiry held against the petitioner, on the complaint in
the year 2019 resulting in punishment, as such, an order
punitive and stigmatic in nature and opposed to Rule 5 of
Central Civil Services (Temporary Service) Rules, 1965?
22. Though the petitioner is not disputing regarding the
extension of the probationary period, but contends that the same
was done arbitrarily with an intention to harass him, he was a
sincere employee and discharging his work with all sincerity and
honesty. But for the best reasons known to the respondents, they
have extended the period of probation without any basis, at the
instance Lt.Col.Neeladhri Roy resulting in imposition of punishment
and during the currency of punishment he was sent out under Rule-
5 of CCS (Temporary Service) Rule 1965. It is the contention of the
petitioner that there were no short falls in his performance, as the
appraisal reports reproduced at para No.12 of statement of
objections were not depicting a level, which compels his removal
from service, but the respondents at the instance of Lt.Col.Roy,
have held that the performance of the petitioner was not in line
which is expected.
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23. It is the case of the respondents that there is no relation
between the enquiry held on the complaint in the year 2019 and the
termination simplicter as per Annexure-G. It is the strong case that
the order of enquiry is on the complaint of Superior Officer, which
has resulted in punishment independently, but the termination
order is purely on the appraisal of the performance. He was placed
under several officers to serve for a period of four years by
extending his probation to afford an opportunity to bring him back
in line to the performance as is expected from an employee,
however, there was no improvement. Further, it is the contention of
the respondents that the petitioner is trying to make an otherwise,
innocuous order of discharge of service as one punitive in nature
and stigmatic.
24. We are alive to the contentions of the learned counsel for
the petitioner that the order of termination is not just a termination
simpliciter, but is an order camouflaged in that fashion. It is no
doubt true that though the words used in the order of termination
may seemingly make the order a termination simpliciter, but the
same cannot hold the Court to go beyond the formal order of
discharge to find out the real cause of action, if it is made out from
the records produced by either side, as it is a question of bread and
24
butter of an individual. This Court cannot shut its eyes but can go
through the records to ascertain and satisfy itself as to whether the
order is camouflaged in that fashion and is an order punitive and
stigmatic in nature or is just an order termination simpliciter.
25. For a better understanding, the entire order of
termination at Annexure-G is reproduced hereunder:
"ORDER OF TERMINATION OF SERVICE FORTHWITH IN
RESPECT OF P.NO.14693275L, LDC, SHRI.KARIYAPPA G
In pursuance of para 5 of offer of Appointment letter
No.20302/Rect/Est(NIP) dated 08 Jan 2018 and the Proviso to
Sub-Rule(1) of Rule 5 of the Central Civil Services (Temporary
Service) Rules, 1965 and Govt of India, M.H.A, OM No.4/10/66-
Ests (C) dated 26 Aug 1967, I Brigadier, Alok Jain, SM,
Commandant & MD, 515 Army Base Workshop, hereby
terminate forthwith the services of P.No.14693275L, LDC,
Shri.Kariyappa G and direct that he shall be entitled to claim a
sum equivalent to the amount of his pay and allowances for a
period of one moth at the same rates at which he was drawing
them immediately before the period of termination of his
service.
Sd/-
Station : Bangalore - 560 008 (Alok Jain)
Dated : 16 Dec 2021 Brig
203/14693275L/Est(NIP)
Commandant & MD
515 Army Base Workshop
For Appointing Authority"
25
26. There is nothing in the said order which suggests that
the order is punitive or stigmatic in nature. The wordings used in
the said order of termination are very simple and unambiguous. The
words used spells out that the order is a termination simpliciter
exercising the power by the respondent No.3 - the appointing
authority under Rule-5(1) of CCS (Temporary Services) Rules 1965
and Government of India MHA OM No.4/10/66-ESPS(C) dated
26.08.1967. An attempt is made by the petitioner to color an
otherwise innocuous order of discharge or termination simpliciter
into an order punitive or stigmatic in nature, does not hold any
water as there is no such expression in the order suggesting that
the order is a result of hidden enquiry as submitted by the
petitioner.
27. It is fruitful to refer to the latest judgment of the Hon'ble
Apex Court in the case of State of Punjab and Others vs.
Jaswanth Singh7 wherein the distinction between an order
termination simpliciter and an order punitive/stigmatic in nature has
been dealt with by the Hon'ble Apex Court, extensively referring to
several earlier judgments. The observations of the Hon'ble Supreme
Court reads from para-13 onwards, the same are extracted herein
below:
7
2023 Livelaw SC (761)
26
"13. In the case of "State of Punjab and Others Vs. Balbir
Singh, (2004) 11 SCC 743", this Court had an occasion to
consider Rule 12.21 of PPR and in paragraphs 5, 7 and 11, this
Court observed as thus -
"5. Thus, the order of discharge simpliciter, prima facie, is not
punitive, it being in terms of Punjab Police Rule 12.21, but the
question still is whether the incident which led to the passing of
that order was motive or inducing factor or was the foundation
of order of discharge. Thus the principle that in order to
determine whether the misconduct is motive or foundation of
order of termination, the test to be applied is to ask the
question as to what was the "object of the enquiry". If an
enquiry or an assessment is done with the object of finding out
any misconduct on the part of the employee and for that reason
his services are terminated, then it would be punitive in nature.
On the other hand, if such an enquiry or an assessment is
aimed at determining the suitability of an employee for a
particular job, such termination would be termination simpliciter
and not punitive in nature. This principle was laid down by
Shah, J. (as he then was) as early as 1961 in the case of State
of Orissa v. Ram Narayan Das, (1961) 1 SCR 606 : AIR 1961
SC 177 : (1961) 1 LLJ 552. It was held that one should look
into "object or purpose of the enquiry" and not merely hold the
termination to be punitive merely because of an antecedent
enquiry. Whether it (order of termination) amounts to an order
of dismissal depends upon the nature of the enquiry, if any, the
proceedings taken therein and the substance of the final order
passed on such enquiry.
On the facts of that case, the termination of a probationer was
upheld inasmuch as the purpose of the enquiry was held to be
to find out if the employee could be confirmed. The purpose of
27
the enquiry was not to find out if he was guilty of any
misconduct, negligence, inefficiency or other disqualification.
11. In the light of the above legal position, we will now
determine whether, in substance, the order of discharge in the
present case is punitive in nature. For this purpose it would be
necessary to ascertain, firstly, the "nature of enquiry" i.e.
whether the termination is preceded by a full scale formal
enquiry into allegations involving misconduct on the part of the
respondent, which culminated in the finding of guilt, and,
secondly, the "purpose of the enquiry" i.e. whether the purpose
of the enquiry is to find out any misconduct on the part of the
employee or it is aimed at finding out as to the respondent
being unlikely to prove as an efficient police officer." 14.
Similarly, this Court in the case of "Ravindra Kumar Misra Vs.
U.P. State Handloom Corporation Ltd. and Another, 1987
(Supp) SCC 739", while dealing the case of termination of a
temporary employee, made a distinction between simpliciter
termination and punitive termination applying the test of
motive and foundation. This Court clarified the said distinction
and observed as under - "6. As we have already observed,
though the provisions of Article 311(2) of the Constitution do
not apply, the Service Rules which are almost at par make the
decisions of this Court relevant in disposing of the present
appeal. In several authoritative pronouncements of this Court,
the concept of "motive" and "foundation" has been brought in
for finding out the effect of the order of termination. If the
delinquency of the officer in temporary service is taken as the
operating motive in terminating the service, the order is not
considered as punitive while if the order of termination is
founded upon it, the termination is considered to be a punitive
action. This is so on account of the fact that it is necessary for
28
every employer to assess the service of the temporary
incumbent in order to find out as to whether he should be
confirmed in his appointment or his services should be
terminated. It may also be necessary to find out whether the
officer should be tried for some more time on temporary basis.
Since both in regard to a temporary employee or an officiating
employee in a higher post such an assessment would be
necessary merely because the appropriate authority proceeds
to make an assessment and leaves a record of its views the
same would not be available to be utilized to make the order of
termination following such assessment punitive in character. In
a large democracy as ours, administration is bound to be
impersonal and in regard to public officers whether in
government or public corporations, assessments have got to be
in writing for purposes of record. We do not think there is any
justification in the contention of the appellant that once such an
assessment is recorded, the order of termination made soon
thereafter must take the punitive character."
15. In the same context, this Court in the case of "Pavanendra
Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and
Another, (2002) 1 SCC 520" has reiterated the same principle
in the matter of termination of a probationer. It has been
observed as thus:
"29. Before considering the facts of the case before us one
further, seemingly intractable, area relating to the first test
needs to be cleared viz. what language in a termination order
would amount to a stigma? Generally speaking, when a
probationer's appointment is terminated it means that the
probationer is unfit for the job, whether by reason of
misconduct or ineptitude, whatever the language used in the
termination order may be. Although strictly speaking, the
29
stigma is implicit in the termination, a simple termination is not
stigmatic. A termination order which explicitly states what is
implicit in every order of termination of a probationer's
appointment, is also not stigmatic. The decisions cited by the
parties and noted by us earlier, also do not hold so. In order to
amount to a stigma, the order must be in a language which
imputes something over and above mere unsuitability for the
job."
16. After considering the various pronouncements on the
similar issue, this Court in the case of Sukhwinder Singh
(supra) in paragraph 20 observed as thus:
"20. In the present case neither any formal departmental
inquiry nor any preliminary fact-finding inquiry had been held
and a simple order of discharge had been passed. The High
Court has built an edifice on the basis of a statement made in
the written statement that the respondent was a habitual
absentee during his short period of service and has concluded
therefrom that it was his absence from duty that weighed in the
mind of the Senior Superintendent of Police as absence from
duty is a misconduct. The High Court has further gone on to
hold that there is direct nexus between the order of discharge
of the respondent from service and his absence from duty and,
therefore, the order discharging him from service will be viewed
as punitive in nature calling for a regular inquiry under Rule
16.24 of the Rules. We are of the opinion that the High Court
has gone completely wrong in drawing the inference that the
order of discharge dated 16-3-1990 was, in fact, based upon
misconduct and was, therefore, punitive in nature, which should
have been preceded by a regular departmental inquiry. There
cannot be any doubt that the respondent was on probation
having been appointed about eight months back. As observed
30
in Ajit Singh v. State of Punjab [(1983) 2 SCC 217 : 1983 SCC
(L&S) 303 : AIR 1983 SC 494] the period of probation gives
time and opportunity to the employer to watch the work,
ability, efficiency, sincerity and competence of the servant and
if he is found not suitable for the post, the master reserves a
right to dispense with his service without anything more during
or at the end of the prescribed period, which is styled as period
of probation. The mere holding of preliminary inquiry where
explanation is called from an employee would not make an
otherwise innocuous order of discharge or termination of
service punitive in nature. Therefore, the High Court was clearly
in error in holding that the respondent's absence from duty was
the foundation of the order, which necessitated an inquiry as
envisaged under Rule 16.24(ix) of the Rules."
17. The said judgment has been followed by this Court in
the case of Avtar Singh (supra) and in paragraph 11 of the said
judgment observed as thus:
"11. We have heard learned counsel for the parties. We
are in total agreement with the submission of the learned
counsel for the State of Punjab that the controversy involved in
this case is no longer res integra. Learned counsel appearing for
the respondent had drawn our attention to a two-Judge Bench
decision of this Court in Prithipal Singh v. State of Punjab
[(2002) 10 SCC 133 : 2003 SCC (L&S) 103] . The Court held
that once there is stigma, the principle is well settled, an
opportunity has to be given before passing any order. Even
where an order of discharge looks innocuous, but on a close
scrutiny, by looking behind the curtain if any material exists of
misconduct and which is the foundation of passing of the order
of discharge, or such could be reasonably inferred, then it
leaves no room for doubt that any consequential order, even of
31
discharge, would be construed as stigmatic. The decision in
Sukhwinder Singh [(2005) 5 SCC 569 : 2005 SCC (L&S) 705]
was given by a three-Judge Bench and in view of that decision
in 2005, there is no scope for this Court to take a different
view. We are squarely bound by the said decision."
18. In view of the principles as reiterated in various
judgments by this Court, if we examine the facts of the case in
hand leading to the order of discharge, then it is crystal clear
that respondent plaintiff was appointed as a constable and
joined the duties on 12.11.1989 on probation. During
probation, while he was on training, he along with other trainee
constables was deputed for law and order duty in Amritsar
District on 24.11.1990. Respondent-plaintiff and other recruits
were relieved from the said duty and reported back at the
Training Centre, except respondent plaintiff, who remained on
prolonged absence without any intimation to the Training
Centre. The S.P., Training Centre, vide memorandum dated
21.02.1991, made a recommendation to S.S.P. that the
respondent-plaintiff had not shown any interest in the training
and lacks sense of responsibility, further recommending that he
is unlikely to prove himself as a good and efficient police officer,
hence, he may be discharged under Rule 12.21 of PPR. From
perusal of the said Rule, it is apparent that in case a
probationary constable is found unlikely to prove an efficient
police officer, he may be discharged by the Senior
Superintendent of Police at any time within three years from
the date of enrolment. The S.S.P. relying upon the
recommendation of the supervising officer (S.P., Training
Centre) formed an opinion that the probationary constable is
found unlikely to prove an efficient police officer owing to his
demeanour as reported and discussed herein above.
32
19. In our considered view, all the three Courts
misconstrued Rule 12.21 of PPR and decreed the suit filed by
the respondent plaintiff. Looking to the contents of the order of
discharge, in the considered opinion of this Court, there is no
foundation of misconduct alleged in the order and it is an order
of simpliciter discharge of a probationer constable. The
judgment in the case of Ratnesh Kumar Choudhary (supra)
relied upon by the respondent is of no help for the simple
reason that in that case, the initial appointment was alleged to
be illegal based on a vigilance report which was on record.
Thereafter, notice was issued on the anvil of the said vigilance
report which contained serious allegations and in the said
peculiar situation, the Court found that the termination was not
simpliciter, but it was punitive
20. Similarly, in the case of Amar Kumar (supra), wherein
the Court found that the appellant therein had instigated to do
commotion/agitation/protest and also raised slogans by
spreading false rumours in connection with the death of one of
the trainees, which was the foundation to pass the order for
termination. Thus, in the said case, the Court was of the
opinion that the order of termination cannot be simpliciter. In
both the cases as referred above, the allegation of serious
misconduct is common, unlike in the instant case, wherein, the
foundation of discharge is not on any serious allegation or act
of misconduct. The discharge order was passed on the
recommendation of the concerned supervisory authority of the
Training Centre due to prolonged absence from training without
any intimation. The authority found that the probationer
constable has no interest in training, and no sense of
responsibility, hence, he cannot prove himself a good, efficient
33
police officer. In view of above discussion, both the referred
cases are distinguishable on facts.
21. For the reasons discussed above, we are of the
considered opinion that the view taken by the High Court and
also by the two courts below is completely erroneous in law and
must be set-aside. The appeals are accordingly allowed. The
judgments and decree passed by the High Court and also by
the first appellate Court and Civil Judge (Jr. Division) are set-
aside, and the suit filed by the respondent-plaintiff shall stand
dismissed. No order as to costs.
28. From the aforesaid judgment, it is clear that to hold that
an order of termination to be framed as punitive in nature, there
must be some relative foundation of misconduct or enquiry hidden
or conducted on the back of the employee has to be traced out, to
hold that the order is punitive or stigmatic in nature and not an
order of termination simpliciter. If an enquiry or an assessment is
done with the object of finding out any misconduct on the part of
the employee and for that reason his services are terminated, then
it would be punitive in nature. On the other hand, if such an enquiry
or an assessment is aimed at determining the suitability of an
employee for a particular job, such termination would be
termination simpliciter and not punitive in nature.
34
29. A Co-ordinate Bench of this Court in Writ Petition
No.16160/2024 decided on 13.09.2024, in the case of Sri Pramod
Kumar M. K VS. The Registrar, Karnataka State
Administrative Tribunal And Another, held that if an order of
termination of a probationer is not found on misconduct, the same
cannot be considered as stigma. This Court in the said judgment
from para - 6 onwards holds as under:
"6. We have examined the material placed before the
Court. A perusal of the same makes it clear that the
petitioner was appointed as Watchman by the first
respondent vide per order dated 27th January 2016 and was
placed on probation for a period of two years as provided
under Rule 3 of Karnataka Civil Service (Probation) Rules,
1977. Subsequently, by order dated 27th January 2018,
probationary period of the petitioner was extended by an
year on the ground that the conduct of the petitioner was
not satisfactory. An opportunity was provided to the
petitioner with a view to improve the probation. However,
the petitioner has not shown any improvement in the period
of probation. On the contrary, the petitioner remained
absent for duty on 29th and 30th July 2018. In this regard,
a show-cause notice was also issued to the petitioner and
the petitioner has submitted his explanation. But same was
not considered by the employer and the petitioner was
discharged from service stating that the work of the
petitioner was not satisfactory even after extending the
period of probation and the petitioner was not entitled to
hold the post. After passing the said order, the petitioner
35
filed review petition before the Chairman of the Tribunal.
The review petition came to be rejected by order dated 23rd
October 2018. In the review order, it is observed that the
order of discharge is a "discharge simplicitor" as the
misconduct is not reflected in the order. By relying on the
decisions of the Hon'ble Apex Court, the Tribunal has rightly
observed that purpose of placing a person on probation is to
train him during the probationary period, so also, to assess
his suitability for appointment. The Registrar of the Tribunal
extended the period of probation of the petitioner by one
year as services of the petitioner was not satisfactory. Even
thereafter, the petitioner did not show any improvement.
The show cause notice came to be issued to the petitioner
as he remained absent for duty without intimation or
without the consent of authorities, for which the petitioner
has submitted his explanation. The petitioner was
discharged from service vide order dated 06th August, 2018.
7. On examination/consideration of material placed
before the court, we do not find any error or legal infirmity
in the order passed by the Tribunal. The decisions relied
upon by the learned Counsel for the petitioner has also
been considered by the Tribunal while passing the detailed
order. Further, the Tribunal has also observed that the
order passed by the first respondent is not a punitive order
as the same is passed discharging a probationer. The same
is also affirmed by the Chairman of the Tribunal in Review
Petition by Order dated 23rd October 2018.
8. The Hon'ble Supreme Court in the case of DIRECTOR
ARYABHATTA RESEARCH INSTITUTE OF OBSERVATIONAL
SCIENCES AND ANOTHER v. DEVENDRA JOSHI AND
OTHERS reported in (2018)3 SLR 125 (SC) has observed
36
that where in the order of termination a probationer is not
founded on misconduct, then the same cannot be
considered as stigma. It is therefore necessary to consider
whether the instant case is a termination of probationer as
a termination on allegation of misconduct. It is an
admitted fact that the initial period of probation was not
found to be satisfactory and the probation was extended.
During the extended period also, the services of the
employee was not found satisfactory. A reading of the
order would show that it is a termination simplicitor and
does not cast any stigma on the petitioner. Following the
declaration of law made by the Hon'ble Supreme Court, as
the order of termination of the petitioner is simplicitor in
nature, we are of the view that the decision taken by the
respondent No.2 herein, is justified in passing the
impugned order dated 24th April, 2024. In the result, writ
petition is dismissed as devoid of merits."
30. From the paragraphs extracted hereinabove, the point on
termination simpliciter is well settled. In the case on hand, the
petitioner was appointed on probation in 2018 on an initial period of
probation for two years. The extension provided under the
appointment rules is in total four years. It is on record that the
petitioner has been placed under service of several officers during
the said period with advisories, oral as well as written to improve
himself in performance of duties attached to his employment to
bring him in line with performance. However, consistently as there
37
was no improvement in the performance, has ultimately resulted in
termination of service. We find no exception could be taken than
the one held by the Tribunal in its order impugned herein, on the
facts and circumstances of the present case.
31. The petitioner made a feeble attempt to stress upon that
there was no notice of one month as contemplated under Rule-
5(1)(b) of CCS (Temporary Services) Rules 1965, as such the order
at Annexure-G gets vitiated. A proviso provided to the said Rule
clarifies the situation that the services of a Government servant
may be terminated forthwith on payment of a sum equivalent to the
amount of his pay plus allowances for the period of the notice, at
the same rates at which he was drawing them immediately before
his termination of services, or, as the case may be, for the period
by which such notice falls short of one month.
32. On the query to the question as to whether the petitioner
has been paid one month's salary and the allowances as
contemplated under proviso to Rule-5(1)(b) of CCS (Temporary
Services) Rules 1965, the learned Counsel fairly admitted that the
petitioner had been paid the said salary as well as the allowances as
contemplated in the Rule. In these circumstances, the submission of
the learned Counsel that there was no Notice of one month issued
38
as per Rule 5(1) (b), which has the effect of vitiating the order of
termination vide Annexure-G, does not hold any water as the
Proviso to the said Rule dilutes the same.
33. After going through the entire records we feel that there
is no connection between the inquiry on misconduct held against
the petitioner and the order of termination due to short fall in
performance during probation. Both are independent and have no
bearing on each other. It is on record that though the enquiry has
been initiated on the complaint during 2019, but the probation
period has been continuously extended even thereafter to the
maximum of 4 years including the initial 2 years, to provide an
opportunity to the petitioner to correct himself in his performance
and bring him in line. As there was no improvement, the
respondents having no other way terminated his service purely on
the appraisal report submitted by all the Officers under whom he
was made to serve. Following the judgments of the Hon'ble
Supreme Court as well as the judgment of the coordinate bench of
this Court, supra, we find that the order of termination vide
Annexure-G to the petition is an innocuous termination simpliciter
in nature and justified in terms of law. The Tribunal has extensively
considered the case of the petitioner on pleadings, as well as
records, placed before it and rightly dismissed the application as
39
devoid of merits. We could not take any exception to the order of
the Tribunal and agree with the same. In the result, the petition
fails and is liable to be dismissed.
34. Though the petitioner is liable to be put on costs for
dragging the matter to this court despite his failure in his
performance and alleging that the respondents have colored the
punitive order into a termination simpliciter, but for the fact that he
was out of service since 2022, we refrain us from the same.
35. For the reasons stated supra we pass the following:
ORDER
i) Writ petition is dismissed as devoid of merits.
ii) In the facts and circumstances of the case, costs
made easy.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
JJ
List No: 1, Sl.No.64
CT: BRS
