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“27. In the case at hand, it is clear as crystal that on the basis of a complaint made by a Member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter-affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated http://www.judis.nic.in solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter- affidavit. Thus, by no stretch of imagination can it be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench.”

11.As far as the 1st judgment cited by the learned counsel for the writ petitioner is concerned, when the appellant before the Hon'ble Supreme Court of India, was continuing on the post of Chest Therapist, a complaint was received by the Vigilance Department, Government of Bihar on 3-11-2004 relating to the illegal appointment of the appellant in the post of Chest Therapist. It was held that the complaint contained that the advertisement for Physiotherapist and Chest Therapist were different because streams are different and the appointment of the appellant was absolutely illegal. In paragraph 27 of the judgment, the Hon'ble Supreme Court of India clearly made a finding that “when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of http://www.judis.nic.in termination simpliciter”. It is further observed in the very same paragraph that “It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter-affidavit. Thus, by no stretch of imagination can it be accepted that it is termination simpliciter.”

12.The Hon'ble Supreme Court of India in the case cited supra, held that the case before the Hon’ble Supreme was not the case of termination simpliciter. It was a punitive termination. Thus, the report received from the Vigilance Department must be enquired into by providing an opportunity to the appellant before the Hon’ble Supreme Court of India. In the absence of conducting any enquiry in respect of allegations and issue an order of termination simpliciter is impermissible. Thus, the fact before the Hon’ble Supreme Court was that the order of termination simpliciter cannot be issued in a case, where allegations of serious nature was received from the Department of Vigilance. Thus, the Hon’ble Supreme Court of India held that such a termination order is punitive and therefore, the order of termination simpliciter is bad in law.

25.It is further stated that during the period of probation extended or otherwise, the appointment may be terminated at any time without notice and without any reasons being assigned.

26.The terms and conditions of the appointment are unambiguous that the writ petitioner was appointed in a temporary post and her permanent absorption will be considered in accordance with the rules in force. Admittedly, the services of the writ petitioner has not been confirmed so far nor the Probation has been declared. The condition further stipulates that the Probation period may be extended or curtailed at the discretion of the competent authority. During the period of Probation, appointment of the writ petitioner may be terminated at any time without notice and without any reason being assigned. Thus, this Court has to examine, whether the relieving order impugned is a http://www.judis.nic.in termination simpliciter or punitive in nature.