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[Cites 18, Cited by 0]

Madras High Court

R.Murugadoss vs The Secretary To Government on 11 December, 2008

Author: S. Manikumar

Bench: S. Manikumar

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:   11.12.2008

CORAM:

THE HONOURABLE MR. JUSTICE S. MANIKUMAR

W.P.No.29558 of 2006
(O.A.No.1612 of 1996)

R.Murugadoss					    		  ... Petitioner 

Versus

1. The Secretary to Government,
    State of Tamil Nadu,
    Home (Pol.IX) Department, 
    Secretariat, Chennai-9.

2. The Inspector General of Police,
    Armed Police & Training,
    Madras-10.

3. The Deputy Inspector General of Police,
    Armed Police, Tiruchy.

4. The Commandant,
    Tamil Nadu Special Police,
    VII Battalion,
    Palani, Dindigul Anna District.			  	 ... Respondents

	This petition came to be numbered by transfer of O.A.No.1612 of 1996 from the file of the Tamil Nadu Administrative Tribunal praying for Certiorarified Mandamus, to quash the termination of the probation ordered by the fourth respondent in his C.No.A4/6927/84, B.O.404/84, dated 02.08.1984 and further confirmed in the orders passed by the third respondent herein in his C.No.1523/A/89, dated 22.05.1989 and in order C.No.A2/3761/89, dated 25.12.1989 and further confirmed by the second respondent herein, in his Rc.No.B2/121/IG/AP/90, dated 11.06.1990 and the order of the first respondent herein passed in G.O.Ms.No.1515, dated 10.10.1995 and direct the respondents to treat the entire out of employment period from 02.08.1984 to till the date as duty for all purposes with all consequential service and monetary benefits.

		For Petitioner      	  :   Mr.S.Ravi
		
		For Respondents    	  :   Mr.C.K.Vishnu Priya,
						      Addl. Government Pleader

					O R D E R

A Police Constable on probation, whose services have been terminated by order, dated 02.08.1984 of the The Commandant, Tamil Nadu Special Police and confirmed by the higher authorities, has challenged the same and consequently sought for a direction to treat the entire period of out of employment from 02.08.1984 as duty with all service and monetary benefits.

2. Facts leading to the Writ Petition are as follows:

The petitioner joined the Police Department as Grade II Police Constable on 28.07.1982 and sent for training. During the period of training, he fell sick and absented for duty. He was treated as deserter with effect from 09.10.1982 and instructed to report before the Commandant T.S.P. VII Battalion, Palani, fourth respondent herein on or before 08.12.1982. The petitioner reported for duty on 07.12.1982 with a representation to take him back for duty. As the Commandant was not available at the Headquarters, he was not taken back for duty on 07.12.1982. Thereafter, he appeared before the Commandant on 11.12.1982, but he refused to take him back for duty on the ground that the petitioner has reported for duty, four days after the date prescribed for reporting. Subsequently, by order, dated 14.12.1982, the petitioner was directed to report before the VII Battalion. Accordingly, he reported before the Commandant on 18.12.1982.

3. The Commandant initiated disciplinary proceedings under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. On completion of the enquiry, he was taken back for duty on 11.06.1983, after an inordinate delay of six months. Thereafter, he completed six months training on 23.01.1984 and was posted in 'B' Company at Nilgiris. He reported sick on 14.04.1884 on proper and periodical medical certificates. Though he had explained the reasons for his absence, the fourth respondent issued a show cause notice, dated 20.07.1984 to the petitioner, calling upon him to explain as to why his probation should not be terminated. In the show cause notice, the Commandant has mentioned that the petitioner's conduct and character in reporting sick continuously during the period of probation were unsatisfactory. In response to the above, the petitioner submitted his explanation, dated 23.07.1984 and assured to report for duty on 27.07.1984, after the expiry of medical leave already sanctioned. But by impugned order, dated 02.08.1984, the Commandant had abruptly terminated the probation of the petitioner with immediate effect, while he was on medical leave.

4. Aggrieved by the same, the petitioner preferred an appeal to the DIG of Police, Armed Reserve. However, by order dated 22.05.1989, the appellate authority rejected the appeal on merits, stating that no fresh points were made out. His further appeal to the Inspector General of Police, Madras, dated 03.07.1989, was remitted back to the DIG of Police, Armed Reserve and the said appeal was also dismissed on 25.12.1989. The Memorial Petition filed by the petitioner to the Inspector General of Police, Armed Reserve and Training, was dismissed on 11.06.1990 on the ground that the petitioner cannot be taken back for duty after a long time. The Mercy Petition submitted to the Government was also rejected on 10.10.1995 in G.O.Ms.No.1515, Home (Pol.IX) Department, dated 10.10.1995. Aggrieved by the same, the petitioner has preferred Original Application before the Tamil nadu Administrative Tribunal, Madras, which has been subsequently, transferred to this Court and renumbered as present Writ Petition.

5. The respondents in their counter affidavit have submitted that the petitioner was appointed as Grade II Police Constable in Tamil Nadu Special Police VII Battalion, Palani on 28.07.1982 and he was sent for training. During the course of training, he absented himself without leave or permission from 09.10.1982 for more than 21 days. Hence, he was struck off as a deserter with effect from 09.10.1982, vide Office Proceedings in B.O.804/84, dated 10.11.1982 with instructions to the petitioner to report before the Commandant with valid explanation within sixty days from the date of desertion. The petitioner reported before the Commandant on 11.06.1983. But he was not taken back for duty by the Commandant, as he was of the opinion that only after the disposal of the charge under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, the question of taking him back for duty or otherwise would be decided. According to the respondents, there was no compulsion for the appointing authority to reinstate a deserter immediately after reporting.

6. The respondents have further submitted that the disciplinary action in P.R.No.7 of 1983 was initiated against the petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. On completion of the enquiry, the petitioner was awarded with thea penalty of postponement of next increment for a period of one year to be spent on duty. After imposition of the penalty, the petitioner was sent for training with effect from 15.06.1983 and on completion of the same, he reported at Battalion Headquarters on 23.01.1984. He was posted at B Company at Ooty. While he was serving there, he reported sick on 14.04.1984 and entered on Medical Leave until 17.07.1984 and overstayed from 18.07.1984. The above facts were brought to the notice of the Commandant by his administrative officers then and there. Not satisfied with the overall performance of the petitioner, a show cause notice, dated 20.07.1984, the date on which, the petitioner completed two years of service.

7. Referring to Rule 15 of the Tamil Nadu Special Police Subordinate Service Rules, 1978, the respondents have submitted that every person appointed to the post, shall, from the date on which, he joins duty, be on probation for a total period of one year on duty within a continuous period of two years. According to the respondents, the petitioner, who had deserted the force from 09.10.1982 to 10.06.1983, entered on leave from 14.04.1984 and remained absent by overstaying after the expiry of leave from 18.07.1984 to 20.08.1984.

8. The respondents have further contended that it is obvious that he had absented for duty on two occasions on his own accord and paved way for termination of his probation. The show cause notice for termination of the petitioner's probation and the order, terminating the petitioner were issued by the Commandant on the basis of assessment of his conduct and character in reporting sick continuously during the period of probation as unsatisfactory. It is the further contention of the respondents that the termination of probation is not a statutory punishment, to be inflicted as a punishment under rule 3(b) of the Tamil Nadu Police Subordinate (Discipline and Appeal) Rules, 1955. For the above said reasons, they prayed for dismissal of the Writ Petition.

9. Assailing the impugned orders, Mr.Ravi, learned counsel for the petitioner submitted that having sanctioned leave for one year and 13 days, upto 17.07.1984, it is not open to the respondents to allege that the character and conduct of the petitioner in reporting seek continuously were unsatisfactory for the purpose of retention in Police Department. He further submitted that no specific instances have been cited in the impugned order alleging that the petitioner character and conduct are bad. Entering on medical leave due to illness supported by authentic medial certificate cannot be termed as unsatisfactory by the respondents and therefore, the impugned order is arbitrary and liable to be set aside. For any reasons, if the character and conduct of the petitioner is unsatisfactory, the petitioner ought to have been proceeded departmentally, based on certain formulated charges, and that he should have been with a reasonable opportunity to defend the accusation touching upon his conduct and character. In the absence of same, the termination or probation is punitive and therefore, there is a violation of the principles of natural justice.

10. Learned counsel for the petitioner further submitted that the petitioner had worked in B-Company only for a period of three months and therefore, the conclusion of the fourth respondent that the petitioner's character and conduct were unsatisfactory is without any basis. Pointing out an earlier instance in G.O.Ms.No.1056, Home dated 24.12.1965 issued in the case of Thiru.Issac Jayaseelan, Sub-Inspector of police, learned counsel for the petitioner submitted that though the said individual had remained absent for a long time, he was given an opportunity to complete his probation. Quoting yet another instance, he further submitted that the penalty of removal from service imposed on one Thiru.Rathinam, PC 2456 of Salem, was revised after 16 years. Therefore, he submitted that the respondents ought to have applied the same yardstick, while considering the case of the petitioner.

11. Placing reliance on decisions in AIR 1994 SC 215 [Union of India v. Giriraj Sharma], 1996 (II) LLJ 432 [Malkiat Singh v. State of Punjab and Ors.] and 2006 (4) MLJ 1008 [J.Patrick v. Govt. of T.N.], learned counsel for the petitioner submitted that Courts have consistently taken a view that for a period of unauthorised absence from duty, the punishment of compulsory retirement is disappropriate and therefore, even assuming that the petitioner had overstayed after medical leave, ie., from 18.08.1984, the respondents ought to have proceeded against him for the absence and that they cannot simply terminate his probation, without holding any enquiry. According to him, the respondents have failed to consider that the absence of the petitioner due to medical ground was inevitable and for that, termination is warranted. In these circumstances, he prayed that the impugned orders to be set aside.

12. Reiterating the averments made in the counter affidavit, Mrs.C.K.Vishnu Priya, learned Additional Government Pleader has made submissions to sustain the impugned order.

13. The issue as to whether a probationer has got an absolute right to hold the post under the terms of his appointment and whether his services are liable to be discharged at any time during his probation period, subject to the rules and satisfaction of the appointing authority are no longer res integra. The Government servant who is on probation can be discharged during the period of probation and such discharge would not amount to dismissal or removal within the meaning of Article 311(2) of the Constitution of India and it would not attract the constitutional protection, where the services of the probationer are terminated in accordance with the rules and not by way of punishment.

14. It is worthwhile to extract few decisions of the Supreme Court regarding termination of the probation. Let me first consider some of the cases where the termination of probationer was on the ground of absentism.

15. In Kunwar Arun Kumar v. U.P.Hill Electronics Corporation Ltd., reported in 1997 (2) SCC 191, the petitioner therein was appointed on 15.01.1990 and he was put on probation. During the period of probation, his work performance was found unsatisfactory and accordingly, by order dated 16.01.1991, his services were terminated. The employer had recorded the finding that the petitioner was regularly absent on one ground or the other. The petitioner therein challenged the order of termination before the High Court, contenting inter alia that there was a stigma. The High Court dismissed the Writ Petition. Before the Supreme Court, it was inter alia contended that the finding receorded amounts to stigma and therefore, the action taken without conducting an enquiry and giving opportunity to the petitioner was violative of Article 311(2) of the Constitution of India and the rules made thereunder. Disagreeing with the above submissions, The Supreme Court observed as follows:

"5. The petitioner challenged the order of termination in the High Court. The High Court without going into the question whether or not it is a stigma, came to the conclusion that the respondents had totally lost confidence in the appellant and that he was totally unsuitable for the job for which he was employed and, therefore, he was found not entitled to any enquiry. Consequently, it dismissed the writ petition. Shri Sehgal, learned Senior Counsel for the petitioner, contends that the finding recorded amounts to a stigma; action taken without conducting enquiry and giving an opportunity to the petitioner, is violative of Article 311(2) of the Constitution and the rules made thereunder. Therefore, he is entitled to an opportunity of being heard and be dismissed only on the ground of misconduct and not by termination simpliciter. We do not agree with the learned counsel. The reasons mentioned in the order may be a motive and not a foundation as a ground for dismissal. During the period of probation, the authorities are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service they are entitled to record a finding of unsatisfactory performance of the work and duties during the period of probation. Under these circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry. That does not amount to any stigma. If the record does not support such a conclusion reached by the authorities, a different complexion would arise. In this case, they have recorded the finding that the petitioner was regularly absent on one ground or the other. Under these circumstances, the respondents terminated his services. We do not find any illegality in the action taken by the respondents."

16. In Ganganagar Zila Dughd Utpadak Sahakari Sangh Ltd., and another v. Priyanka Joshi and another reported in 1999 (6) SCC 214, the respondent therein was employed as Assistant manager on 06.10.1993 and she was put on probation for one year. Leave was granted to her from 16.10.1994 to 25.10.1994 and thereafter, she did not join duty despite notices, dated 07.11.1994 and 23.11.1994. By impugned order, dated 30.11.1994, the respondent was dismissed from service. Challenging the order of dismissal, the respondent filed the Writ Petition before the High Court, contending inter alia that her services could not be terminated without following the procedure of holding an enquiry. A learned Single Judge dismissed the Writ Petition holding that the impugned order did not cast any stigma. However, on appeal, the said decision was reversed by the Division Bench. Testing the correctness of the judgment of the Division Bench of Rajesthan High Court, the Supreme Court, at Paragraphs 5 and 6, held as follows:

"5. In our opinion, the Division Bench of the High Court was not correct in the conclusion which it arrived at. It is not in dispute that when the order dated 30-11-1994 was passed, the respondent was still on probation. The reason for passing of the said order appears to be the absence of the respondent from duty. In the order of appointment, it was clearly stipulated that the respondents services could be terminated during the probationary period if the services were unsatisfactory. When judging the performance of a person if the services are terminated during the period of probation, obviously there has to be a reason for such termination. If the services are terminated during the probationary period without any reason whatsoever, it is possible that such an order may be impugned on the ground that it has been passed arbitrarily. On the other hand, when there is a reason for terminating the services during the probationary period and the order terminating the services is worded in an innocuous manner, we do not see any force in the contention that such an order has to be regarded as by way of punishment.
6. The impugned order dated 30-11-1994 is only of one sentence which states that the respondents services were being BARKHAST (dismissed). The real word used there was BARKHAST and under the circumstances even the use of the word dismissed cannot, in our opinion, be regarded as by way of punishment."

17. In State of Punjab v. Sukhwinder Singh reported in 2005 (5) SCC 569, a Police Constable remained continuously absent for 22 days without seeking permission. After 22 days of his continous absence, the SSP passed an order, discharging him from service with immediate effect under Rule 12.21 of the Punjab Police Rules, 1934, on the ground that he was likely to become an efficient police officer. The Civil Court, which adjudicated the validity of the discharge, held that the order as null and void and the appellate Court upheld the decision. The High Court, dismissed the second appeal of the State and held that absence from duty was a misconduct and imposition of the punishment of discharge on the respondent, without holding a formal inquiry as envisaged under Rule 16.24(ix) of the Rules, vitated the order of discharge. The State then filed an appeal before the Supreme Court, contending inter alia that the Police Constable, being a probationer, not having completed three years of service, is liable to be discharged from service at any time, if his services were unsatisfactory and therefore, it was neither stigmatic nor did affect him with evil consequences. It was further contended that no disciplinary action need be taken against the Government Servant and there was no necessity for holding any formal enquiry. The Supreme Court, after considering various decisions, at paragraphs 19 and 20 held as follows:

"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. The superior authorities of the departments have to be 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. A probationer is on test and a temporary employee has no right to the post. (para 19) 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. (para 20)"

18. In yet another decision arising out of the same High Court in State of Punjab v. Rajesh Kumar reported in 2006 (12) SCC 418, the respondent was a Police Constable appointed on 02.12.1989. He was discharged from service on 18.10.1992 under Rule 12.21 of the Punjab Police Rules, which states that, "A Constable is found unlikely to prove an efficient police officer may be discharged by the Superintendent of Police at any time within three years of enrollment. There shall be no appeal against an order of discharge under the rule."

19. In the above reported judgment, the respondent therein, a Police Constable, on probation, was unauthorisedly absent from duty. The Superintendent of Police, who assessed his performance and work, found him unlikely to prove an efficient police officer, as per high standard of discipline, as being expected from a Police Personnel. The High Court set aside the order of discharge. The Supreme Court, while reversing the order of the High Court, observed that the enquiry is not required before passing an order under Rule 12.21 of the Punjab Police Rules to discharge a Constable on the ground of unauthorised absence. The Supreme Court, at Paragraph 6, has further observed that, "The period of probation gives any time an opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant. In the instant case, the department officials found the respondent not suitable for the post and, therefore, they always reserve a right to dispense with his services in any manner during or at the end of the prescribed period which is called period of probation."

20. In yet another decision in State of Punjab v. Avtar Singh reported in 2008 (7) SCC 405, the respondent therein was appointed on probation for three years in Punjab Police in 1989. In July 1992, he was sent to Barnala, Punjab to attend a departmental enquiry. The Deputy Superintendent of Police, Barnala relieved the respondent on 1-8-1992 with a direction to report at his place of posting, but the respondent did not report at his place of posting, therefore, he was marked absent from 1-8-1992 to 19-9-1992. The respondent joined duty on 20-9-1992 after one month and two days and again remained absent from 7-10-1992. The respondent remained absent for a long period without any permission from the senior officers, a serious act of misconduct according to the police discipline rules. In these circumstances, the respondent was dismissed from service w.e.f. 1-11-1992 under Rule 12.21 of the Punjab Police Rules, 1934. The order of dismissal was challenged by the respondent by filing a civil suit and the suit was decreed. Aggrieved by the said judgment and decree, the State of Punjab preferred an appeal and the same was dismissed. The second appeal preferred by the State was also dismissed on the ground that the impugned order of discharge was stigmatic and the respondent-police was not given a fair opportunity and secondly, absence from duty could not be viewed as culpable inasmuch as in the same order, the Senior Superintendent of Police, Barnala had condoned the respondent's absence from the duty. Following the decision in State of Punjab v. Sukhwinder Singh reported in 2005 (5) SCC 569, Prithipal Singh v. State of Punjab reported in 2002 (10) SCC 133 and Ajit Singh v. State of Punjab reported in 1983 (2) SCC 217, the Supreme Court in Avtar Singh's case, 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 discharge, would be construed as stigmatic. The decision in Sukhwinder Singh1 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."

21. What is 'motive', what is 'foundation' and the difference between the two, were explained His Lordship Justice Krishna Iyer in Samsher Singh vs. State of Punjab, reported in 1974 (2) SCC 831, "Again, could it be that if you summarily pack off a probationer, the order is judicially inscrutable and immune? If you conscientiously seek to yourself about the allegation by some sought of inquiry, you get caught in the coils of law, however, harmlessly the order may be phrased. And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be 'the substance of the matter' and the 'foundation' of the order. When does 'motive' tress-pass into 'foundation'? When do we lift the veil of 'form' to touch the 'substance'? When the Court says so. These 'Freudian' frontiers obviously fail in the workaday world........."

22. It is worthwhile to extract the words of Hon'ble Justice Krishna Aiyar in Gujarat Steel Tubes Ltd., v. Gujarat Steel Tubes Mazdoor Sabha reported in 1980 (2) SCC 593, "[A] termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case, the grounds are recorded in different proceedings from the formal order, does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used. (emphasis supplied)

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

23. As to what amounts to stigma, has been explained in Kamal Kishore Lakshman v. Pan American World Airways Inc. reported in 1987 (1) SCC 147, at Paragraph 8, of the judgment, "8. According to Websters New World Dictionary, it (stigma) is something that detracts from the character or reputation of a person, a mark, sign etc. indicating that something is not considered normal or standard. The Legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Websters Third New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary stigma is a matter for moral reproach.

24. In Krishnamani v. Lalit Kala Academy reported in 1996 (5) SCC 89, the service of a probationer was found not to be satisfactory and therefore, he was terminated during probation. The reasons stated in the counter affidavit was that driving of staff car was not satisfactory. It was contended that an enquiry ought to have been conducted, proceeding the order of termination. Repelling the said contention, the Supreme Court, at Paragraph 4, observed that the very object of probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, it certainly has power to terminate services of the employee. The Apex Court held that the reasons mentioned in the counter affidavit constitute only motive and not foundation for termination of service.

25. In Radhey Shyam Gupta v. U.P.State Agro Industries Corpn. Ltd., reported in 1999 (2) SCC 21, the Supreme Court tracing the historical development of law relating to the termination of service as to whether it is simpliciter or punitive and the tests to determine, at Paragraph 33, 34 and 36, held as follows:

"33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case14. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case18. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed  if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case, and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee  even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases.
36. In our view, it is an absolutely clear case where the enquiry officer examined witnesses, recorded their statements and gave a clear finding of the appellant accepting a bribe and even recommended his termination. All these were done behind the back of the appellant. The Managing Director passed the termination order the very next day. It cannot, in the above circumstances, be stated by any stretch of imagination that the report is a preliminary enquiry report. Its findings are definitive. It is not a preliminary report where some facts are gathered and a recommendation is made for a regular departmental enquiry. In view of the principles laid down in the cases referred to above, this case is an obvious case where the report and its findings are the foundation of the termination order and not merely the motive. The Tribunal was right in its conclusion. The High Court was in grave error in treating such a report as a preliminary report."

26. In Dipti Prakash Banerjee v. Satyendra nath Bose National Centre for Basic Sciences, Calcutta and others reported in 1999 (3) SCC 60, the Supreme Court explained the meaning of the words "motive" and "foundation", on which, innocuous order of termination is passed, "21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as founded on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."

27. The usage of word "unsatisfactory" in the termination order, has been held as not amounting to stigma in State of Orissa v. Ram Narayan Das reported in AIR 1961 SC 177 and Kunwar Arun Kumar v. U.P.Hill Electronics Corporation Ltd., reported in 1997 (2) SCC 191.

28. In Chandra Prakash Shahi Vs. State of U.P. And others reported in 2000(5) SCC 152, the Supreme Court considered a case of termination of a police constable in the armed constabulary. On successful completion of training, he was placed on probation for 2 years, which he had completed on 05.09.1988. Subsequently on 19.07.1989, his service were terminated. The U.P. Public Service Tribunal before which the termination was challenged, came to the conclusion that the services of the appellant therein were terminated on the basis of a preliminary enquiry, which was instituted as a result of quarrel between two other police constables. The State, challenging the decision of tribunal, preferred a writ petition and the same was allowed. Aggrieved by the decision of the High Court, the police constable filed a Special Leave Petition before supreme Court. While reiterating the legal position that a temporary government employee or a probationer is entitled to protection of Art 311(2) of the Constitution Of India, the Supreme Court held that the Court can lift the veil to determine the real character of termination.

29. In the above reported case, the Supreme Court also considered a decision in Ravindra Kumar Misra v. U.P. State Handloom Corpn. Ltd. reported in 1987 Supp SCC 739, where it was held that for finding out the effect of the order of termination, the concept of "motive" and "foundation" has to be kept in mind. It was further observed that no straitjacket test can be laid down to distinguish the two, namely, the "motive" and the "foundation". Whether motive has become the foundation has to be decided by the court with reference to the facts of a given case. It was also observed that "motive" and "foundation" are certainly two points of one line  ordinarily apart but when they come together, "motive " gets transformed and merged into "foundation ". It was also observed that since in regard to a temporary employee or an officiating employee an assessment of the service is necessary, merely because the authority proceeds to make an assessment and records its views, it would not be available to be utilised to make the order of termination, following such assessment, punitive in character. It was observed by the Court that in the relationship of master and servant there is a moral obligation to act fairly. There should be an assessment of the work of the employee and if any defect is noted in his working, the employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiency, indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, it was observed, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.

30. After analysising various decisions, the Supreme Court in Chandra Prakash Shahi's case, at Paragraphs 28 and 29, held as follows:

"28. The important principles which are deducible on the concept of ''motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".

29. "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry."

31. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences reported in 2002 (1) SCC 520, after considering the various decisions and to wriggle out the struggle of the Courts with semantically indistinguishable concepts, like "motive" and "foundation" and termination founded on a probationer's misconduct and motivation evolved certain judicial tests to determine whether in substance an order of termination is punitive or simpliciter, the Supreme Court, at Paragraph 21, mandated that the Courts should 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 all three factors are present, then 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. Therefore, the Supreme Court held that, whenever a probationer challenges his termination the Court's first task will be to apply the test of stigma or the "form" test. If the order survives this examination the "substance" of the termination will have to be found out. At Paragraph 29, the Supreme Court held as follows:

"Generally speaking when a probationers 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 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 probationers appointment, is also not stigmatic. 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."

32. A division bench of this Court in S.Vidyashankar Vs. Union of India reported in 2007 (1) CTC 545, had an occasion to consider the case of termination of a probationer, who was granted 258 days of extraordinary leave without pay and allowances during the period of probation. While on probation, the appellant therein, availed leave from 31.7.1989 to 9.8.1989 and it was periodically extended upto 22.12.1989 on medical grounds. On production of Medical Certificate, leave was also regularised. He again applied for leave in the year 1990 and the leave periods till October, 1990 were regularised in November,1990. The appellant applied two months leave from 3.12.1990 and the same was not not given. Nevertheless, the appellant proceeded and sought for extension of leave for the further period of two months. By order dated 22.3.1991, he was discharged from service on the ground that his services were not found to be satisfactory. A Learned Single Judge dismissed the Writ Petition filed by the probationer. On appeal, the contentions of the probationer were that the order was punitive and cast a stigma on the appellant and the same could not be sustained, without a full-scale departmental inquiry. It was further contended that the termination order passed on 22.03.1991, was founded upon allegations of misconduct against the appellant. In support of his submission that the order was punitive, reliance was placed on the letter, dated 19.9.1990, wherein it was sated that his action of not accepting official communication amounts to an act of highest disobedience, which shall be pursued separately. It was further contended that the appellant's leave record has been far from satisfactory. Per contra, the respondent therein has submitted that there is absolutely no basis for contending that the termination of service was by way of punishment. But it was was only a discharge simpliciter and not a punitive action. It was further submitted that out of 331 days, the appellant was granted 258 days of Ex-ordinary Leave without pay & allowances and his period of probation could have automatically expired on 09.4.1991. It is also the submission of SEBI that the service of the appellant was terminated solely on account of unsatisfactory performance. While conforming the decision of the learned single Judg and, regarding the character of termination of probationer, the Hon'ble Division Bench, at para 16, held as follows:-

"16. Law is well settled. The order of termination can be said to be in substance punitive only when prior to the termination there was a full-scale formal enquiry into the allegations involving moral turpitude or misconduct which culminated in a finding of guilt. If all the three factors are present, the termination may be held to be punitive irrespective of the form of the termination order. Further, the order of termination, in order to amount to stigma, must be in a language which imputes something over and above mere unsuitability for the job. In the present case, the respondents have merely stated in the discharge order that the services of the appellant are not found to be satisfactory. The order cannot, by any stretch of imagination, be said to be casting stigma on the appellant."

33. In a recent decision in Progressive Education Society v. Rajendra reported in 2008 (3) SCC 310, the Supreme Court has reaffirmed the legal position and held that, "The appointing authority is at liberty to terminate services of a probationer if it finds performance of probationer to be unsatisfactory during the period of probation. The assessment has to be made by the appointing authority itself and the satisfaction is to be that of the appointing authority as well. Unless a stigma is attached to the termination or the probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the probationer's services, the management or the appointing authority is not required to give any explanation or reason for terminating services except informing him that his services have been found to be unsatisfactory."

34. From the above decisions, it can be deduced that while testing the correctness of an order of termination of probation, the Court has to bear in mind the basic concept of "motive" and "Foundation" with reference to the facts of the case. Assessment of the performance and the satisfaction has to be made by the appointing authority and it should be for determination of his suitability for the post in question or for retention in service or for confirmation. The order will not be in punitive in nature, if there is a simple termination of probation. But if any full fleged enquiry is held to find out the truth of the misconduct and the order, terminating his service, is based on the finding recorded in the enquiry, then the order would be in punitive in nature, as the departmental enquiry is held not for assessing the general suitability of the government servant for the post in question, but to find out the truth of the allegations. Therefore, if the "Motive" of the employer is to determine the suitability, then the order cannot be termed as punitive, casting stigma on the government servant.

35. Therefore, to categorise an order as punitive, the probationer has to satisfy, (1) misconduct alleged against him (2) a full-fledged departmental enquiry (3) finding of guilt arrived at by the enquiry officer, which forms foundation or the basis of terminating his probation. Judging a person for his suitability for the post, which requires specific duties and responsibilities, depending upon its nature, for retention or confirmation, based on his performance without holding a detailed enquiry and if any order of termination is passed during probation or at the end of the period of probation on the basis of the suitability of the employee to the post in question, that cannot be said to be punitive. Rather, it is only a termination of probation simpliciter without casting stigma on the government servant.

36. The probationer does not have any absolute right to any post. The employer has got every right to terminate the service of a probationer, without assigning any reasons based on the assessment of his performance. Whether the probationer would be suitable for a particular post or not, is left to the absolute discretion of the employer. To examine as to whether, there was any motive in terminating the service of a government servant, the Court can lift its veil and see what is there behind the curtain. If on perusal of the materials placed before the Court and scrutiny of the order, suggests that there was a strong motive which turned into a foundation for terminating the services of the probationer, then the Court has to primarily satisfy itself as to whether the three tests stated supra, are satisfied by the probationer and whether there is any specific finding of guilt of misconduct alleged.

37. While testing the order of termination of probation as to whether it is simpliciter or punitive, the Court has to scrutinise as to whether the order of termination, ex facie, contains stigma or it reveals to a document, which stigmatised the officer in which case, termination order can be set aside on the ground that it is punitive. The task of the Court would be to find out as to whether the order of termination has evil consequences in relation to the reputation of the Government servant/employee so as to render him unfit for service elsewhere and not in relation to the post held by him. An order which merely states unsatisfactory work and conduct is not stigmatic. Even if any show cause notice is issued as regards any misconduct and thereafter, without proceeding further, if an order of termination simpliciter is passed, that will not be punitive, as the order does not suggest stigma. Even in a case where regular a departmental enquiry is ordered, pursuant to which, the department formulates the charges and if the appointing authority chooses to drop the disciplinary proceedings and passes an order of termination of probation, on a simple show cause notice, then the same is not punitive, because the enquiry officer has not recorded any findings with regard to the act of misconduct alleged against the Government servant. If his services are terminated by way of an order in lieu of punishment, pursuant to a departmental enquiry and finding recorded, in which, the government servant suffers civil or evil consequences of guilty, only in that circumstances, it is open to the employee/government servant to assail the order of termination as punitive.

39. Reverting back to the case on hand, the petitioner was appointed as Grade II Police Constable on 28.07.1982. During the period of training, without leave or permission, he absented from 09.10.1982 and struck off as a deserter on a charge under Section 3(b) in P.R.No.7/83 for desertion from 09.08.1982 to 10.06.1983 and he was taken back for duty on 11.06.1983 for the punishment of postponement of next increment for a period of one year to be spent on duty not to affect future increments. Thereafter, he was sent for training on 15.06.1983 and after the completion of training period of six months, he reported at Battalion Headquarters on 23.01.1984. He went on leave from 17.07.1984 till the date of passing of the order of termination of probation. During the period of probation, he had availed one year and 13 days leave, upto 17.07.1984 and he was found to have overstayed from 18.07.1984. According to the respondents, he had not worked even for a minimum period of one year within a continuous period of two years. His conduct and character in reporting sick continuously during the period of probation was unsatisfactory. As regards his retention in service, the appointing authority, viz., the Commandant, T.S.P. VII, Battalion, Palani, found that his service are not essential to the department. Though the petitioner had received the show cause notice and offered to report on 27.07.1984, after the expiry of Medical Leave, he did not report for duty. On the assessment of the performance of the probationer with reference to the natue of job of a policeman, the appointing authority found that his services are not essential in police department and therefore, terminated his probation.

40. Scrutiny of the impugned order with reference to the tests and principles of law laid down by the Supreme Court, shows that it does not suggest or indicate that the impugned order is stigmatic or punitive, warranting interference. Therefore, the contentions of the petitioner that the impugned order violates Article 311(2) of the Constitution of India, cannot be countenanced. I do not find force in the submissions of the learned counsel for the petitioner in view of the well settled principles of law governing the termination of probation.

41. In these circumstances, the Writ Petition is dismissed. No costs.

11.12.2008 skm To

1. The Secretary to Government, State of Tamil Nadu, Home (Pol.IX) Department, Secretariat, Chennai-9.

S. MANIKUMAR, J.

skm

2. The Inspector General of Police, Armed Police & Training, Madras-10.

3. The Deputy Inspector General of Police, Armed Police, Tiruchy.

4. The Commandant, Tamil Nadu Special Police, VII Battalion, Palani, Dindigul Anna District.

W.P.No.29558 of 2006

11.12.2008