Central Administrative Tribunal - Gauhati
Shri Kallol Roy vs Kvs on 12 November, 2025
1
CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 94 of 2025
Date of order: This the 12th Day of November 2025
HON'BLE MR JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE MR SANJIV KUMAR, ADMINISTRATIVE MEMBER
Shri Kallol Roy
Residential Address: C/o. Nibas De
Adjacent to Bishalgarh English Medium School
Gokul Nagar, P.O. Bishalgarh, District: Sepahijala,
Tripura, PIN-799102, Phone: 86175 90291
.......Applicant
-AND-
1. Kendriya Vidyalaya Sangathan,
Through the Joint Commissioner (Administration)
18 Institutional Area, Saheed Jeet Singh Marg,
New Delhi-110016.
2. The Commissioner,
Kendriya Vidyalaya Sangathan 18 Institutional Area, Saheed
Jeet Singh Marg, New Delhi-110016
3. The Deputy Commissioner Kendriya Vidyalaya Sangathan,
Regional Office Silchar Near Lion's Eye Hospital, Captain
N.M. Gupta Sarani, Silchar-788001, Assam
4. The Assistant Commissioner Kendriya Vidyalaya Sangathan,
Regional Office Silchar Near Lion's Eye Hospital, Captain
N.M. Gupta Sarani, Silchar-788001, Assam
5. The Principal-in-Charge, Kendriya Vidyalaya, BSF, Gokul
Nagar P.O. Bishalgarh, District: Sepahijala, Tripura, PIN-799102
MANOR Digitally
ANJAN signed by
MANORANJ
KUMAR AN KUMAR
SINHA SINHA
O.A. No 94/2025
2
---Respondents
Present:
For applicant(s): Sri S. Dutta, Sr. Adv.
For respondents: Sri M.K. Majumdar, KVS SC for R. 1 to 5
Reserved on 03.11.2025 Pronounced on : 12.11.2025
ORDER
PER: JUSTICE SUNIL THOMAS, JUDICIAL MEMBER :
The applicant was appointed to the post of Vice Principal of the Kendriya Vidyalaya Sangathan (KVS) through direct recruitment by Annexure A/3 memorandum dated 28.10.2023. He was posted at Kendriya Vidyalaya , BSF, Gokul Nagar as Principal Grade-II. As per the memorandum of appointment, he would be on probation for a period of two years which was liable to be extended by two more years. He claims that pursuant to his appointment he had worked hard to build up the recently set up school both infrastructure wise and Academic wise.
2. By Annexure A/4 memorandum dated 05.09.2024, he was conveyed the intention of the respondents to initiate action under Rule 16 of CCS (CCA) Rules 1965, on an MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 3 allegation that he remained absent from school and had not updated the attendance register. By Annexure A/5 reply he denied the allegation and contended that he was on Casual Leave. Further, during the period from 21.08.24 to 26.08.2024, all the Institutions were closed by the Government due to flood. By Annexure A/6 order, a penalty of reduction of pay by one stage, for one year, with effect from 01.01.2024 was imposed on the applicant. By Annexure A/7 dated 04.11.2024, the period of probation was extended by one year from 10.11.2025 to 09.11.2026. He preferred Annexure A/8 appeal dated 22.11.2024 before the Appellate Authority.
3. By Annexure A/9 communication dated 08.01.2025, applicant was informed that a fact finding inquiry was proposed to be held on 09.01.2025. According to the applicant, no inquiry was conducted and nature of allegation was not disclosed to him. In the meanwhile, MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 4 Annexure A/8, Appeal filed by him was rejected by Annexure A/10 order confirming the penalty order imposed on him.
4. While so, the second respondent issued Annexure A/1 memorandum dated 11.04.2025 terminating the service of applicant forthwith. Consequently, the fourth respondent issued Annexure A/2 order relieving him from duties.
5. Challenging the Annexure A/1 and Annexure A/2 the applicant had preferred this Original Application essentially seeking the following relief(s) :-
"8.1. That the impugned memorandum and order- both dated 11.04.2025 (Annexure- 1 & 2 respectively) be set aside and quashed;
8.2. That the respondents be directed to restore the service of the applicant with all consequential benefits."
6. The applicant challenged Annexure A/1 & A/2 on the ground that the order was issued in inexplicable and undue haste and he was not even served with original order of termination. He was directed to handover the charge without following any due procedure. It was further MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 5 contended that the termination order was illegal, arbitrary, unethical and was liable to be dismissed.
7. The respondents filed written statement contending that the applicant was appointed against a temporary post of Vice Principal and was on probation. The appointment was not permanent, but for the time being, with no right to post. Since he failed to maintain absolute integrity, lack of devotion and acted in a manner unbecoming of an employee of Central Service Rules, he was imposed with penalty of reduction of pay by one stage.
8. While so, during the surprise visit of the Assistant Commissioner of KVS, applicant was found to have been absent from the school since 23.12.2024. A two member committee was constituted to conduct a fact finding inquiry which submitted a report clearly indicating that the applicant was unauthorisedly absent from duty. He had also wilfully manipulated the official records, He suffered from MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 6 lack of devotion and was of doubtful integrity. They suggested further action.
9. It was contended that Annexure A/1 conveyed only a termination simpliciter and did not cast any stigma on the probationer. Termination was by invoking a clause in the order of appointment and based on valid reasons, both on the ground of unsatisfactory performance and unsuitability. It was also revealed that he failed to maintain absolute devotion to his duty. Accordingly, he was issued with the termination order.
10. It was contended by the respondents that the concerned officer has given a detailed report produced as Annexure R/9 indicating that various irregularities were detected in school administration. It was found that applicant had not attended the school after 22.12.2024. It was found that he had signed in the attendance register against the date 28.12.2024, whereas he had already sought permission to leave station w.e.f. 28.12.2024. MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 7 Thereafter, a two member committee was constituted who gave detailed report as Annexure R/13. It indicated that the applicant was in the habit of paying scant regard towards the Rules and Regulations of the organisation. He did not follow the prescribed Rules and Regulation. His approach towards duty was negative. He became a troublesome element for the organisation. It was after consideration of these facts, his termination was proposed. On this premise, it was contended that the Original Application was liable to be rejected.
11. Rejoinder was filed by the applicants reiterating the contentions made in the Original Application and refuting the contentions set up by the respondents in the written statement.
12. Heard the learned Sr. counsel for applicant and the Ld. Standing counsel for the respondents and examined the records .
13. Essentially, the challenge is to Annexure A/1 memorandum. Annexure A/3 is the offer of appointment and MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 8 Clause -IV of Annexure A/3 indicates that the applicant was on probation for two years from the date of joining which was liable to be extended for another two years for reasons to be recorded in writing. Clause -V provided that:
"During probation and thereafter, until he is confirmed, his services are terminable by one month's notice on either side without any reason being assigned therefore. The Appointing Authority, however, reserves the right to terminate the services of the appointee from the post of Vie-Principal before expiry of the stipulated period of notice by making payment of sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof."
14. Annexure A/1, the memorandum by which the applicant was terminated from service states as follows :-
"In pursuance of Para 5 of the offer of appointment vide Memorandum No. F.7-9/VP/DR/2023/KVS (HQ)/Estt.1/13455-13464 dated 28.10.2023, the services of Shri Kallol Roy, Vide Principal (Principal Grade-II), Kendriya Vidyalaya. BSF, Gokul Nagar, are hereby terminated forthwith.
He shall be entitled to receive a sum equivalent to his pay and allowances for the period of one month's notice, at the same rates he was drawing immediately before the termination of his services."
15. The learned Sr. counsel for the applicant assailed Annexure A/1 on three broad grounds :
(a) Though Annexure A/1 was apparently couched in terms invoking clause-V of Annexure A/3, was in fact punitive in nature and when primary material on record casts doubt regarding its true nature, Tribunal is entitled to go behind the order, to ascertain its true nature MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 9
(b) If Annexure A/1 and A/2 were issued genuinely invoking clause V on ground of unsuitability, the respondents were under an obligation to give notice to the applicant regarding the deficiencies found in his service and only after giving an opportunity to improve, he should have been terminated invoking clause -V.
(c) If the true nature of Annexure A/1 and Annexure A/2 is established to be punitive nature, it is bad and nonest as the termination as punishment for misconduct can be imposed only on establishing his guilt in a formal inquiry after giving an opportunity of being heard, since such an act falls within the scope of Article 311 (2) of the Constitution of India.
16. Advancing the first limb of the argument, learned Sr. Counsel contended that it is settled law that it was not the form but the substance of the order of termination as revealed from the purport of the order coupled with the attending circumstances or antecedent facts leading to the passing of the termination order which were decisive in deciding the actual nature of the order, as to whether it was punitive in nature or an order of termination simpliciter invoking the clause for termination of a probationer.
17. To substantiate this contention, the learned Sr. counsel for the applicant placed reliance on the decision reported in "Jarnail Singh and Other vs State of Punjab and Others, 1986 (3) SCC 277 at paragraph 32". The Hon'ble MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 10 Supreme Court in that decision held that the position was well settled by a conspectus of decisions that the bare form of the order is not sufficient to hold whether the order of termination was innocuous one or whether the order of termination from service of a probationer or of an adhoc appointee is a termination simpliciter in accordance with the terms of appointment, without attaching any stigma to the employee concerned. It was the substance of the order, i.e the attending circumstances as well as base of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though on the face of it the order is in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the court, in such case will lift the veil and see whether the order was made on the ground of misconduct, inefficiency or not.
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18. Though Annexure A/1 is, as indicated earlier, on the face of it innocuous in terms as a termination simpliciter invoking clause- V of Annexure A/3, while justifying the termination of applicant, the respondents have in the written statement extensively referred to various allegations set up against him, and instances of Commissions and Omissions and that his conduct was unbecoming of the post he was holding. It is seen from the written statement that two formal inquiries were conducted. Respondent claimed that based on the primary inquiry a two member committee was constituted. The two member of committee in its report reiterated the allegation of misconduct, misdemeanour, absence from duty, falsification of record and conduct not condusive to the status of the principal, as against the applicant clearly, allegation of misconduct as raised in the reply statement which is also sought to be established on facts. In the above circumstances this Tribunal will be justified in lifting the veil and to ascertain whether in fact, Annexure- A/1 was issued invoking the clause 5 of Annexure A/3 or in MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 12 fact the action was taken by the respondents for alleged misconduct. Point is answered in favour of the applicant.
19. Before proceeding to analyse point no.2, it is essential to refer to clause 5 of Annexur A/3 which reads as follows :-
"5. During the probation and thereafter, until he is confirmed, his services are terminable by one month's notice on either side without any reason being assigned therefore. The appointing Authority, however, reserves the right to terminate the services of the appointee from the post of Vice-Principal before expiry of the stipulated period of notice by making payment of sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof."
20. Advancing ground No. 2, the learned Sr. counsel for the applicant contended that Annexure A-1 purportedly invoking Clause 5 of the memorandum of appointment is couched as termination simpliciter. It was admitted that exercise of power invoking clause 5 was within the domain of the authorities concerned and the employers to evaluate performance of the applicant and to terminate his service if his performance was found to be unsatisfactory. Definitely , during probation period, the service can be terminated invoking MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 13 the ground of unsatisfactory performance of work and that it was not up to the mark, it was contended. However, only after giving him notice about his deficiencies and after giving an opportunity to him to improve. At no point of time the respondents have assessed the performance of the applicant, and there is nothing on record to indicate that it was ever assessed nor have they communicated to him the deficiencies which they found in the performance of the applicant.
21. It was further contended by the learned Sr. counsel that though clause - 5 permitted termination of services "without assigning any reason". It does not mean that it should be "without any reason". It only means that there must be valid and cogent reason recorded on file, and it should form part of the record though, it need not to be assigned or communicated to the applicant. It is not disputed that it is a settled position as affirmed by the MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 14 Hon'ble Supreme Court in the case of Shrilekha Vidhyarthi vs State of UP (1991) 1 SCC 212.
22. It was further contended that the applicant was not given APAR. In spite of specific pleading in the Original Application it was not disputed by the respondents in the written statement.
23. To establish that a probationer, should be evaluated of the deficiency in his performance and should be brought to the notice of the probationer and be given a chance to improve, learned counsel for applicant heavily relied on Annexure A/2 of the rejoinder dated 11.03.2009 issued by the DoPT being the master circular on probation and confirmation in Central Government Services. Clause V of the Annexure A/2 to the rejoinder provided that a probationer should be provided an opportunity to work under more than one officer during this period and report of his work may be obtained from such officers. The probation report for all period may be considered by a Board of senior MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 15 officers to determine whether the probationer concerned is fit to be confirmed in the service. It was held that supervising officer has to concentrate on the special need of probation and to decide whether the work and conduct of the officer duringthe period of probation is satisfactory and to decide whether the periodof probation is to be extended or not. Clause -V of Annexure A/2 office memorandum of the DoPT dated 11.03.2019 enclosing the master circular on probation is as follows :-
Para 5. A probationer should be given an opportunity to work under more than one officer during this period and reports of his work may be obtained from each one of those officers. The probation reports for the whole period may then be considered by a Board of senior officers for determining whether the probationer concerned is fit to be confirmed in service. For this purpose, separate forms of report should be used, which are distinct from the usual Annual Performance Appraisal Report (APAR) forms. The probation period reports, unlike APAR, are written to help the supervising officer to concentrate on the special needs of probation and to decide whether the work and conduct of the officer during the period of probation or the extended period of probation are satisfactory enough to warrant his further retention in service or post. The probation period reports thus do not serve the purpose for which the APARS are written and vice versa. Therefore, in the case of all probationers or officers on probation, separate probation period reports should be written in addition to the usual APARs for the period of probation.
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24. To further substantiate the above legal proposition, learned counsel for applicant relied on the decision reported in the Dr. M. Sumitra Ray Vs UOI 1989 (3) SCC 311. It was confirmed by the Hon'ble Supreme Court that in the relationship between the master and the servants there is a moral obligation to act fairly and uniformly. It is not a formal give and take on the assessment of work of the employee. Employee should be made aware the defect in his work and deficiency in his performance. Timely communication of the assessment of work in such cases may put the employee in the right track. Without giving such a communication, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.
25. This decision was relied by the three judges Bench of Hon'ble Supreme Court in Pradeep Kumar Vs UOI 2012 (13) SCC 182, which related to the termination of a judicial officer, who was appointed as a judicial member of the Tribunal. It was held that there was absolutely nothing on MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 17 record to show that the respondents have ever evaluated the performance of the applicant and the applicant was never conveyed about any unsatisfactory performance or unsuitability of the applicant, or even an opportunity to improve. In the above circumstances, the contention of the learned Sr. Counsel for the petitioner that the termination was not based on unsatisfactory performance was held to be proved.
26. Evidently neither Annexure A/2 of the rejoinder nor the law laid down in the above decisions were complied with by the respondents. Hence the contention of the respondent that the applicant was terminated for his unsatisfactory performance is only to be rejected.
27. Advancing the third limb of the argument, learned Sr. Counsel for the applicant contended that though on the face of it Annexure A/1 appeared to be a case of termination simpliciter invoking clause 5, it was really punitive in nature. It was contended that even the respondents had MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 18 no other case as evident from Para 14,15 and 16 of the written statement, wherein they had specifically referred to the allegations of misconduct, falsification of records and misdemeanour on the part of the applicant, being the cause for issuing Annexure A/1 order of termination.
28. On the other hand, specific contention of the learned counsel for respondent was that Annexure A/1 apparently did not cast any stigma. Annexure A/1 also did not attribute any misconduct on the applicant. It was clear case of invoking clause-5 of the memorandum of appointment. It was contended by the learned counsel that only for collecting basic facts the inquiry was conducted. It was only intended to establish his unsuitability and to enable the respondents to arrive at their objective satisfaction regarding his continuation on probation. It was contended that only a formal inquiry was conducted and the basic facts collected only affirm the motive of issuing the order and was not its foundation. It was contended that the inquiry was only MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 19 of a preliminary nature and the suitability of the applicant was their prime concern. Certain omissions were traced out and such a person whose acts and demeanour did not come upto to the level of suitability could not have been retained by the applicant. He was also given an opportunity of hearing
29. It was reiterated by the counsel that the informal inquiry was only the motive for issuing the order and not its foundation. It was contended that inquiry was only preliminary in nature and the suitability of the applicant was their prime concern. Certain omissions of the applicants were traced out and such a person whose act and demeanor did not come upto the level of suitability could not have been continued by the applicant. He was given an opportunity to explain during the enquiry and hence it could not be stated the evidence was collected behind his back.
30. In this regard, the sequence of events that led to Annexure A/1 is to be evaluated. It emerges that the third MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 20 respondents vide letter dated 24.12.04 had directed the Assistant Commissioner to make a casual visit to the school and gather information as to whether the applicant was available in the school and other material facts. The Assistant Commissioner visited the school on 28.12.2024 and submitted Annexure R/9 report. He had inquired from the witnesses and verified the records in the school and on the basis of the materials so collected, concluded that applicant was absent from 22.12.2024. He had submitted an Email to the authorities seeking permission to leave the station from 28.12.2024 onwards, however, he had put signature on 28.12.2024 which was available on record on 22.12.2024, when the visit was made thereby indicating that the applicant had signed in advance. An advance letter dated 29.12.2024 stating that the librarian will look after the affairs of the school was also kept ready, indicating that those materials were created in advance.
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31. On receipt of above report, the competent authority directed one Dipankar Ray to visit the place once again and to conduct an inquiry. He visited the school and look the statement of the staff by Annexure R/11 report. He concluded that the applicant was absent from the school from 21.12.2024 onwards.
32. Pursuant to the above report, the competent authority of the respondents appointed two members committee which was stated to be in the nature of a fact finding committee. They were directed to make a report. They also inquired with several witnesses and took the written statement from the applicant. The applicant was directed to give reply to a questionnaire prepared by him. It is seen from Annexure R/13 report that several materials were gathered by the committee. The statements of several persons were recorded and the material so collected were annexed to the report. They concluded that the applicant was on unauthorised absence. It further concluded that he had MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 22 wilfully manipulated official records and attributed lack of devotion to duty and that he was of doubtful integrity. The five annexures included alongwith the report included the written statement of the several witnesses, reply given to the questionnaire by the security guard, copy of the attendance register for the month of December and January. The inquiry was a comprehensive inquiry and several conclusions were arrived at. The fact finding inquiry analysed the materials under three separate allegations relating unauthorised absence, wilful manipulation of official records and lack of devotion to duty and doubtful integrity.
33. On the basis of the above analysis, the Committee concluded that having gone through the complete facts and documentary evidences, it was proved that all the three allegations stood proved. It further held that, since the above allegations against the applicant have been proved, it was quite unbecoming on his part to be a KVS employee and the MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 23 committee recommended for initiating proper disciplinary proceeding against the applicant.
34. On the basis of the above factual matrix, the law on the point is liable to be discussed. Learned Sr. counsel for the applicant relied on the decision reported in Radhey Shyam Gupta vs U.P. State Agro Industries Corporation Ltd. And Another (1999) (2) SCC 21. It related to the termination of service of a temporary/probationer. The question that arose was whether it was an instance of termination simpliciter or a punitive termination. It was held that where the motive behind preliminary inquiry is not to determine the misconduct but merely to decide the question of retention in service, the termination cannot to be held to be punitive. Regarding the question of termination simpliciter or punitive termination, it was held that the test was whether it serves as a motive or foundation of the termination. It was held that to ascertain this, the court can go behind order. If the purpose of open inquiry is not to find out the truth of the allegations or MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 24 misconduct, but to decide whether to retain employee against whom a cloud is raised on his conduct, such an inquiry only serves as a motive for the termination. However, where the inquiry is held, and on the basis of evidence, definite finding is reached at the back of the employee about his misconduct and such findings forms the basis or foundation of the order of termination such order would be punitive.
35. The decision in Radheshyam was reiterated by the Hon'ble Supreme Court in Dipti Prakash Banerjee vs Satyendra Nath Bose, National Centre for Basic Science, Calcutta and others 1993 (3) SCC 60, The same issue was under consideration before the Hon'ble Supreme court. In the above case an inquiry was conducted which found that the behaviour of the appellant therein was reprehensible and it confirmed that the applicant was involved in the alleged misconduct. The committee held that the petitioner before the Supreme court was guilty of inefficient MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 25 performance of duty, irregular attendance without permission, wilful rude and disorderly behaviour towards the organisation. The Hon'ble Apex court held that the words used in connection with the inquiry about this, coupled with obtaining false signature clearly were in the nature of stigma. The inquiry committee has also concluded that the applicant must be punished.
36. After a detailed evaluation of the cases involved, the Supreme court in the above case reiterated the law laid down in the Radheshyam case, it was held that the words amounting to stigma need not be contained in the order of termination but may also be contained in an order or proceeding referred in the order of termination or in Annexure thereto envisaged in the order of termination. This observation of Hon'ble court would answer, the contention of learned counsel for the respondent that annexure A/1 order on the face of it did not cast any stigma on the applicant.
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37. The identical issue again came before the Hon'ble Supreme Court in the case of Dipti Ahuja Vs State of Punjab and others (2003 3 SCC 239). It was held that a probationer like a temporary servant was entitled to certain protection and his service cannot be terminated arbitrarily nor can those service be terminated in a punitive manner, without complying with the principle of natural justice and after evaluating the case. Hon'ble Supreme Court held that the instant case was fully covered by the decision in Dipti Prakash Banerjee (Supra).
38. The same issue was considered by the Hon'ble Apex court in detail in Chandra Prakash Shahi Vs State of UP and others (2005 SCC 152). After extensively reviewing the earlier decision it was held that termination of probationer motivated by employee's general evaluation on the unsuitability of the probationer was valid. If however. there were allegations of serious misconduct for which preliminary inquiry was conducted behind his back to ascertain the truth MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 27 and the termination is brought about, such termination, having regard to other circumstances of a case, has to be taken as found to be based on misconduct and therefore be treated as punitive. In regard to termination of a probationer, it has to be seen whether inquiry was for the purpose of determining the suitability or retention in service and/or confirmation or for the purpose of finding out the truth in allegation against him.
39. Regarding the concept of motive and foundation the Hon'ble Supreme court 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 enquiry is held and it is on the basis of that enquiry 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 enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry 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 enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 28 regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. "
40. The entire facts in the case is to be evaluated in the context of the above settled legal principle. It is clear that preceding the termination of the applicant, three fact finding inquiries were conducted by the authorities. It can even be held that the first and second inquiry could have been be a mere fact finding inquiry to ascertain the truth. Both the inquiry resulted in reporting that the applicant had left the institution without permission, was on leave without authorisation, and that he has falsified the records and his conduct amounted to misdemeanour. However it did not stop there. The respondents proceeded to constitute a two member committee. The authority conducted a detailed, exhaustive and comprehensive inquiry which also recorded the statement of several witnesses All the relevant records in relation to the school, including the attendance register of the applicant and all employees were taken on record. It recorded the version of the applicant. A questionnaire was given to the applicant and he was directed to reply. He was MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 29 called upon to produce his Air Ticket and document of travel during the relevant period.
41. After detailed evaluation of the entire facts the committee came to the three instances of misconduct. The reasons for answering the specific allegation of this misconduct were also given. It was also held that the conduct of the applicant was not justifiable and disciplinary proceedings were liable to be taken against him. Though opportunities were given to the applicant to give a statement and to answer the questionnaire it does not satisfy the principle of nature justice. A full fledged inquiry presupposes serving a charge memorandum, granting of opportunity to the employee to place on record his evidence, both oral and documentary and to cross examine the witnesses of opposite side. Such an opportunity was not given. Short of this, third inquiry had all other trappings of a full fledged inquiry. It arrived at specific findings and conclusion of the misconduct alleged. Though a disciplinary proceeding was recommended, MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 30 respondents proceeded to terminate the applicant. Definitely the materials so gathered formed the foundation for termination. Hence the contention of the learned counsel for the respondent that the inquiry was only to find out the truth of the allegation and forms only the motive, cannot be accepted. In the above circumstances. The inquiry was held and definite findings arrived at, behind the back of the employee. The finding of misconduct formed the basic foundation of the termination as rightly contended by the learned Sr. counsel for the applicant and that the respondents had travelled from the stage of motive, proceeded further and arrived at definite conclusion of misconduct which formed the foundation of Annexure A/1. Point is answered in favour of applicant.
42. In view of the above conclusions Annexure A/1 cannot be sustained. Consequently, Annexure A/2 cannot be sustained. Both are liable to be set aside and consequential relief granted.
MANOR Digitally ANJAN signed by MANORANJ KUMAR AN KUMAR SINHA SINHA O.A. No 94/2025 31
43. In the result, the O.A. is allowed. Annexure A/1 and Annexure A/2 are set aside. Consequently, the applicant shall be reinstated in service and be permitted to continue as a probationer, with all consequential benefits including the wages for the period he was kept off from employment. Pending MA, if any, shall also stand disposed of. No costs.
(SANJIV KUMAR) (JUSTICE SUNIL THOMAS)
MEMBER (A) MEMBER (J)
Mks
MANOR Digitally
ANJAN signed by
MANORANJ
KUMAR AN KUMAR
SINHA SINHA
O.A. No 94/2025