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"53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it 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 a 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.

23. In Nepal Singh Vs. State of U.P. 1980 (3) SCC 288, the employee was temporarily appointed and in a drive launched by the Inspector General of Police for weeding out unsuitable and unfit police officers, he was terminated by a simple order of termination. Court held that mere fact that the drive was launched by DIG would not make the order punitive.

24. In Oil & Natural Gas Commission Vs. Dr. Md. S. Iskander Ali 1980 (3) SCC 428, a three-Judge Bench considered validity of termination of a probationer. Dr. Ali was appointed purely on temporary basis as Medical Officer and under the terms of his appointment, he was to remain on probation for a period of one year extendable at the discretion of the appointing authority. It also provided that his appointment may be terminated any any time without assigning any reason. On the basis of certain reports, it appears that some departmental enquiry was initiated but could not proceed further. After completion of one year's probation, the same was extended for another six months and, thereafter, he was terminated by simple order of termination. High Court allowed the writ petition and in appeal, Supreme Court reversing the judgment and upholding the order of termination held that prima facie the order is simple termination without involving any stigma. It does not involve any evil consequences and the respondent employee has no right to service. It also recorded a finding that the employee could not make out a strong case necessitating to delve into the documents and material in order to determine a case of victimisation or punishment.

39. In Abhijit Gupta Vs. S.N.B. National Centre, Basic Sciences & others 2006 (4) SCC 469, the employee was a probationer. On 20.11.1995, he received a letter wherein it was said that his performance during probation was far from satisfactory, he lack drive, imagination and initiative in performance of his duties and despite of frequent advices has failed to improve his performance. He was, then advised to improve so as to enable the authorities to consider him for confirmation. The probation was extended from time to time. Thereafter, he was discontinued by observing that his performance, ability and capability was examined and found unsatisfactory, hence, his is considered unsuitable for the post and not suitable for confirmation. The order was assailed being punitive in nature. The writ petition was allowed by a Single Judge of High Court but judgment was reversed in appeal. Supreme Court referring to Dipti Prakash Banerjee (supra) noticed that the Courts continue to struggle with semantically indistinguishable concepts like "motive" and "foundation". Terminations founded on misconduct are illegal while terminations motivated by misconduct are not bad. The decision are legion and it is impossible task to find a clear path through the jungle of the precedents. After considering certain tests formulated by Apex Court in para 21 of the judgment in Dipti Prakash Banerjee (supra), Court noticed that one of the judicial test to determine whether order of termination is punitive or not would be (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, the order of termination would be punitive irrespective of the form and if any one of three factors is missing, the termination would be unassailable. Court observed that generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or inaptitude, whatever the language used in the termination order may be. It also said that 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 probationer's appointment, is also not stigmatic. In order to constitute stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. Court, therefore, held that the order in that case was not punitive.

"Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or inaptitude, 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 probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above meter unsuitability for the job."