M.Manasa v. State of Andhra Pradesh

Order

(per Hon’ble Sri Justice Challa Gunaranjan) The present writ petition has been instituted, under Article 226 of the Constitution of India, assailing order, dated 10.08.2018, passed by 2nd respondent placing petitioner under suspension and further G.O. Ms.No.203, Law (L & LA AND JUSTICE, HOME.COURTS-A) Department, dated 28.12.2018, issued by 1st respondent discharging her from service as she stated to have been found to be unsuitable to hold the post of Additional Junior Civil Judge (Probationer), as illegal, 2 HCJ & CGR, J. W.P.No.4041 of 2019 arbitrary and violative of Articles 14, 19, 21 and 311 of the Constitution of India, and consequently, to set aside the same and to extend all consequential benefits.

2. The facts of the case, in brief, are as follows: (a) Petitioner was selected as Junior Civil Judge and joined service as Probationer on 13.10.2016. The initial period of probation was for a period of two years. She has been posted as Additional Junior Civil Judge, Rayachoti, Y.S.R.Kadapa District. (b) During the course of training, as part of Phase-II of Part-I institutional training, Junior Civil Judges were nominated to undergo practical training at A.P. Judicial Academy, and in the process were instructed to visit the High Court from 21.07.2018 to 25.07.2018 to observe the Court proceedings. Petitioner was assigned to watch Court proceedings of a particular Court along with few other trainee Judges. However, on 23.07.2018, petitioner was found to be sitting next to a male trainee colleague Judge, and having conversation with him in an unassigned Court room other than the one she was supposed to be in. On account of said behaviour, there was some disturbance to the Court proceedings. That apart, it was also found that during field survey training from 31.07.2018 to 02.08.2018, in particular, on 01.08.2018, the petitioner and the other male officer belonging to the State of Telangana, 3 HCJ & CGR, J. W.P.No.4041 of 2019 rather than attending the field training at designate place with their respective groups, were found to be wandering side by side and were chit-chatting continuously. (c) Aforesaid incidents have been penned by the Director, A.P. Judicial Academy, by way of suo motu report, dated 30.07.2018, and brought to the notice of 2nd respondent. Eventually, by proceedings, dated 10.08.2018, petitioner came to be placed under suspension with immediate effect. Further, 2nd respondent issued show-cause notice, dated 20.08.2018, calling upon petitioner to submit explanation as to why probation should not be terminated and she be discharged from service as contemplated under Rule 11 of the Rules, for the reported improper behaviour and unmannerly attitude while observing Court proceedings besides during field survey. (d) Petitioner has submitted explanation, dated 01.09.2018. Being dissatisfied with the explanation so furnished, and having regard to the Resolution, dated 05.11.2018, the Administrative Committee of Hon’ble Judges and so also the approval of Full Court of the Hon’ble

Judges, 1st respondent issued orders in G.O.Ms.No.203, dated

28.12.2018, discharging petitioner from service in terms of Rule 11 of the Andhra Pradesh State Judicial Service Rules, 2007 (for short, “the Rules”). The said order came to be given effect by 2nd respondent vide 4 HCJ & CGR, J. W.P.No.4041 of 2019 orders, dated 31.12.2018. Assailing the same, present writ petition is filed.

3. (a) The 2nd respondent filed counter-affidavit trying to justify the order of discharge. It has been stated that based on suo motu report of the Director, A.P. Judicial Academy, who highlighted the occurrence of incidents stated supra, the matter was placed before the President, A.P. Judicial Academy, who has, in turn, endorsed that the reported behaviour of the two officers since being highly objectionable, to place the same before the Hon’ble Patron-in-Chief. Thereafter, the matter was placed before the Administrative Committee of the Hon’ble Judges and in the meeting held on 09.08.2018, the Committee had resolved to place both officers under suspension and the Registry to take steps for issuance of memo calling for explanation as to why their probation should not be terminated and discharged from further training. (b) Consequently, order of suspension, dated 10.08.2018, came to be passed, and also show-cause notice, dated 20.08.2018, was issued calling for explanation in that regard. The explanation offered by the petitioner was eventually placed before the Administrative Committee of the Hon’ble Judges, and in the meeting held on

05.11.2018, the Committee, having regard to the officers demeanour and conduct, decided that they were not suitable to the post to which 5 HCJ & CGR, J. W.P.No.4041 of 2019 they were appointed and, therefore, resolved to discharge them. The recommendation was accordingly made to the 1st respondent for issuance of necessary orders, and thereby impugned G.O., dated

28.12.2018, has been issued discharging petitioner from service. The action that was recommended by the Hon’ble Administrative Committee and approved by the Hon’ble Full Court, was in peculiar circumstances as stated supra, as they were found to be unsuitable to hold the post, hence, prayed for dismissal of writ petition.

4. Heard Sri Shravanth Paruchuri, learned counsel, representing Sri Lakshmikanth Reddy Desai, learned counsel for the petitioner; and Sri G. Vivekanand, learned Standing Counsel for 2nd respondent.

5. Learned counsel appearing for the petitioner raised the following contentions: (a) That the impugned order of discharge, since proceeded on the basis of the alleged improperly behaviour and unmannerly attitude stated to have been exhibited by petitioner while observing Court proceedings and survey training, clearly constituted ground of misconduct amounting to inflicting the punishment of discharge from service without proper enquiry, therefore, hit by Article 311(2) of the Constitution of India. Inasmuch as the decision arrived at in the impugned proceedings was founded on misconduct and not simpliciter 6 HCJ & CGR, J. W.P.No.4041 of 2019 termination, the same is, therefore, stigmatic and punitive. Further, inasmuch as the discharge was by way of a punishment, the same would cause stigma on her. Therefore, order of discharge stands vitiated. (b) That the order of discharge since do not consider evaluation of Annual Confidential Reports and other service record of petitioner in the process of assessing performance and determining suitability, the impugned order of discharge offends Articles 14 and 16 of the Constitution of India. Therefore, such non-application of mind to relevant considerations renders the impugned orders to be perverse and liable to be set aside. To buttress the said argument, attention of this Court has been drawn to Ex.P1, which is work review extract from various Courts of Y.S.R. Kadapa District, for the period from January to June, 2018, indicating that the performance of petitioner was shown to be very good and she stood first with highest total units secured amongst 41 officers. (c) That the impugned discharge order of 1st respondent and consequential implementation orders of 2nd respondent, since are illegal, the same are required to be quashed, and consequently, the petitioner be granted all consequential benefits, including that of back 7 HCJ & CGR, J. W.P.No.4041 of 2019 wages. In support of aforesaid submissions, petitioner places reliance on the following judgments: (1) Sarita Chowdhary v. High Court of M.P.1; (2) Dipti Prakash Banerjee v. Satyendra Nath Bose, National Centre for Basic Sciences2; (3) Shamsher Singh v. State of Punjab3; (4) Parshotam Lal Dhingra v. Union of India4; (5) Ranjit Thakur v. Union of India5; (6) All India Railway Recruitment Board v. K. Shyam Kumar6; (7) State of Punjab v. Dharam Singh7; (8) Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.)8; (9) United India Insurance Co. Ltd. v. Siraj Uddin Khan9; and (10) Constable Uma Shankaran v. Union of India10.

6. Per contra, learned Standing Counsel appearing for 2nd respondent, contends that the order of discharge, since was passed on the ground that petitioner was found to be not suitable to the post, cannot be inferred as punitive in nature and mere reference of incidents those occurred during the training period ipso facto would not have any 1 (2025) 2 SCR 1456 = (2025) 9 SCC 297 2 (1999) 3 SCC 60 3 (1975) 1 SCR 814 = (1974) 2 SCC 831 4 (1958) SCR 828 = 1957 SCC OnLine SC 5 5 (1988) 1 SCR 512 6 (2010) 6 SCC 614 7 (1968) 3 SCR 1 8 (2013) 9 SCR 1 9 (2019) 7 SCC 564 10 Order, dt.19.01.2026, passed in S.L.P.(C) Nos.6903-6904 of 2020) (S.C.) 8 HCJ & CGR, J. W.P.No.4041 of 2019 bearing in the decision making process and the same are required to be merely seen as motive, but not foundation facts. Similarly, the impugned order proceeded based on the recommendation and decision of the Administrative Committee of the Hon’ble Judges and the Full Court of the Hon’ble Judges, who assessed the suitability of petitioner in a holistic manner to hold the post on permanent basis, therefore, the impugned order can neither be termed as stigmatic nor punitive. To buttress aforesaid submissions, reliance has been placed on the following judgments: (1) K. Manjusree v. High Court of Judicature of Hyderabad11; (2) K. Manjusree v. High Court of Judicature of Hyderabad12; (3) Daya Shankar v. High Court of Allahabad13; (4) Muzaffar Husain v. State of U.P.14; (5) Rajasthan High Court v. Ved Priya15; (6) Rajesh Kumar Srivastava v. State of Jharkhand16; (7) Aryabhatta Research Institute of Observational Sciences v. Devendra Joshi17; (8) Oil and Natural Gas Commission v. Dr.Md.S.Iskender Ali18; (9) Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences19; 11 2018 SCC OnLine Hyd 476 = (2019) 1 ALT 496 (DB) 12 Order, dt.18.02.2019, passed in SLP (C) No.4535 of 2019 (S.C.) 13 (1987) 3 SCC 1 14 2022 SCC OnLine SC 567 = (2022 INSC 530; 15 (2021) 13 SCC 151 = 2020 INSC 306 16 (2011) 4 SCC 447 17 (2018) 15 SCC 73 18 (1980) 3 SCC 428 19 (2002) 1 SCC 520 9 HCJ & CGR, J. W.P.No.4041 of 2019 (10) Kaustubh Khera v. State of M.P.20; and (11) Kaustubh Khera v. State of M.P21.

7. We have given our conscious consideration to the submissions made by both the learned counsels on either side.

8. Petitioner has been selected for the post of Junior Civil Judge and has been placed under probation. The Andhra Pradesh State Judicial Service Rules, 2007, govern the service conditions of the Civil Judges. Rule 9 envisages probation and officiation. Rule 9(c) contemplates that every person who is appointed to the category of Junior Civil Judges shall be on probation for a period of two years. Further, sub-rule (d) of Rule 9 contemplates that the period of probation can be extended by the High Court by such period not exceeding the period of probation, i.e., in case of Junior Civil Judges, not more than two years further. Rule 10 envisages that a person who has been declared to have satisfactorily completed the period of probation shall be confirmed as a full member of the service in the category of post to which he or she had been appointed. Rule 11, on other hand, contemplates that if a person under probation is found to be not suitable to the post, the appointing authority 20 2025 SCC OnLine MP 4004 = 2025-MPHC-JBP:21455 21 Order, dt.04.08.2025, passed in SLP (C) No.20414 of 2025. (SC) 10 HCJ & CGR, J. W.P.No.4041 of 2019 may, by order, discharge him or her from service after giving one month’s notice or one month’s pay in lieu thereof.

9. Petitioner was selected and placed under probation on

13.10.2016. In terms of Rule 9(c), the period of probation shall be for a period of two years, in normal course, the same would have ended by

12.10.2018, subject to further extension in terms of Rule 9(d) of the Rules. As seen from the records, it appears that based on suo motu report of the Director, A.P. Judicial Academy, dated 30.07.2018, the matter was placed before the Administrative Committee of Hon’ble Judges on 09.08.2018, highlighting improper behaviour of petitioner while observing Court proceedings, wherein it was resolved that petitioner and other officer to be placed under suspension and further to issue memo show-causing as to why their probation should not be terminated and discharged from further training. In consonance to the same, petitioner has been placed under suspension on 10.08.2018, even before she completed the initial period of two years. Show-cause notice, dated 20.08.2018, came to be issued calling upon her to submit explanation on the alleged misconduct during the training period. Relevant portion of which reads as under: “The High Court has taken note of the contents of the suo-motu report of the Director, Andhra Pradesh Judicial Academy, Secunderabad, received against Smt. M. Manasa, Additional Junior Civil Judge, Rayachoti, Kadapa district, with regard to improper behaviour of the officer while observing the 11 HCJ & CGR, J. W.P.No.4041 of 2019 court proceedings in the Court Hall of Hon’ble Sri Justice xxxxxx etc., placed you under suspension, with immediate effect. former Therefore, as directed, Smt. M. Manasa, Additional Junior Civil Judge, Rayachoti, Kadapa district, now under suspension, is hereby called upon to explain as to why your probation should not be terminated and why you should not be discharged from service as contemplated under Rule 11 of Andhra Pradesh State Judicial Services Rules, 2007, for your reported improper behaviour and unmannerly attitude while observing court proceedings in the court hall of Hon’ble Sri Justice xxxxxxxx and in view of conduct exhibited a the Field Survey, within 10 days from the date of receipt of these orders by her, failing which it will be treated that, you have no explanation to offer and further proceedings will be initiated.” Explanation, dated 01.09.2018, was submitted.

10. Thereafter, the matter was again placed before the Administrative Committee of the Hon’ble Judges in the meeting held on 23.10.2018, to consider the explanations of both the officers, including the petitioner herein, however, the issue was deferred to the next meeting. In the meeting held on 05.11.2018, resolution came to be passed which reads as under: “Subject No.1: Suo-motu report of the Director, Andhra Pradesh Judicial Academy, received against Sri P. Satyanarayana Rao, Junior Civil Judge, Thungathurthy, Nalgonda District and Smt. M. Manasa, Additional Junior Civil Judge, Rayachoti, Kadapa district regarding their improper behaviour while observing the Court proceedings in the Court Hall of Hon’ble Sri Justice xxxxxxx - Considered and resolved to place both the Officers under suspension and directed to issue a memo to both the Officers asking them to explain as to why their probation should not be terminated and why they should not be discharged from further training – As directed explanation of both the officers were called or and received – Consideration of – Reg. (Roc.No.2327/2018-Vigilance Cell) Registrar (Vigilance) 12 HCJ & CGR, J. W.P.No.4041 of 2019 Resolution: The above two trainee officers, viz., Sri P. Satyanarayana Rao, formerly Junior Civil Judge, Thungathurthy, Nalgonda District and Smt.M.Manasa, formerly Additional Junior Civil Judge, Rayachoti, Kadapa District, were appointed on 13.10.2016 and the two years period of their probation was completed on 12.10.2018. Having considered their demeanour and conduct, the Committee found that the probationers are not suitable to the post to which they were appointed and resolved to discharge them on payment of one month's pay in lieu of notice.”

11. Aforesaid resolution eventually came to be approved by Full Court of the Hon’ble Judges. Basing on the aforesaid view expressed, the 1st respondent, thereafter, issued impugned G.O.No.203, dated

28.12.2018, discharging petitioner from service in terms of Rule 11 of the Rules. It is apt to extract the relevant portions of the said G.O., which are as follows: “In the letter 1st read above, the Registrar General, FAC. Registrar (Vigilance), High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh has stated that Smt.M. Manasa & others were appointed as Junior Civil Judges by direct recruitment as well as by recruitment by transfer for the State of Andhra Pradesh, after her appointment, she was posted as Additional Junior Civil Judge, Rayachoti, Kadapa District and she took charge as such on 13.10.2016.

2. She was nominated to undergo practical training at A.P. Judicial Academy, Secunderabad and was instructed to visit the High Court from 21-07-2018 to 25-07-2018 to observe the court proceedings in the High Court.

3. The Director, Judicial Academy for the States of Telangana and Andhra Pradesh, Secunderabad, in her report, dated 30-07-2018, has brought to the notice of the High Court that on 23-07-2018, Smt. M. Manasa, who was directed to sit in the court hall of Hon'ble: Sri Justice xxxxxxxxx, entered the court hall of Hon'ble Sri Justice xxxxxxx, contrary to the directions given to her and sat there, while she was observing the court proceedings, Sri P. Satyanarayana 13 HCJ & CGR, J. W.P.No.4041 of 2019 Rao, Junior Civil Judge, Thungathurthy, Nalgonda District who was present in the same court hall, shifted his place and sat by her side and then both of them started chit-chatting end behaved in an unbecoming manner and it caused disturbance to the court proceedings. Thus, both the officers did not maintain minimum decency and decorum and their conduct is improper, which is highly objectionable in the public court; the unmannerly attitude of the officer in public court would brand her as unworthy of a judicial officer. (emphasis by this Court)

4. It is also reported that as part of field survey training from 31.07.2018 to 02.08.2018, the trainee officers who are undergoing training were divided into two groups i.e., the officers who belong to Telangana State were being trained by some of the Resource Persons of the Survey Training Academy, while the other group of trainee officers, who belong to State of Andhra Pradesh were being trained by other Resource Persons of the said Academy, while so, on 01-08-2018 when the practical training in the filed at Yenkepally Village, Moinabad Mandal was going on Sri P. Satyanarayana Rao, who is in the cadre of State of Telangana was supposed to be in the group of Telangana Officers and similarly Smt. M. Manasa, who belongs to Andhra Pradesh cadre, should be in the group of Andhra officers; but, contrary to the above, all the time the two officers were found side-by-side and were chit-chatting continuously. Further, Smt. M. Manasa without drawing the plan of the field as directed by the resource persons, went to the Telangana group officers and sat there; their behaviour became a topic for conversation among all other officers and it also caused embarrassment to the Assistant Director, Administrative Officer of the Academy and the Resource Persons who accompanied the trainee officers. (emphasis by this Court)

5. The Registrar General, FAC, Registrar (Vigilance), High Court of Judicature at Hyderabad, has stated that the High Court having considered the contents of the suo-moto report of the Director, Judicial Academy for the States of Telangana and Andhra Pradesh, Secunderabad received against Smt.M.Manasa, Additional Junior Civil Judge, Rayachoti, Kadapa district, directed her to explain as to why her probation should not be terminated and why she should not be discharged from service as contemplated under Rule 11 of Andhra Pradesh State Judicial (Service and Cadre) Rules, 2007, for her reported improper behaviour and unmannerly attitude while observing court proceedings and survey (emphasis by this Court) training.

6. The Registrar General, FAC. Registrar (Vigilance), High Court of Judicature at Hyderabad, further reported that the 14 HCJ & CGR, J. W.P.No.4041 of 2019 High Court having considered the explanation of Smt. M. Manasa, whose two years period of her probation was completed on 12.10.2018, opined that the probationer is not suitable to the post to which she was appointed and resolved to discharge her on payment of one- month’s pay in lieu of notice, as per Rule 11 of the Andhra Pradesh State Judicial (Service & Cadre) Rules, 2007; the said resolution dated 05.11.2018 of Administrative Committee of Hon'ble Judges was also approved by the Full Court of Hon'ble Judges. (emphasis by this Court)

7. The Registrar General, FAC. Registrar (Vigilance), High Court of Judicature at Hyderabad has therefore, requested the Government to issue orders in consultation with the Government of Telangana, discharging Smt M.Manasa, former Additional Junior Civil Judge, Rayachoti, Kadapa District, (now under suspension) along with the orders of payment of one month's pay in lieu of notice under Rule 11 of the A.P. State Judicial Service Rules, 2007.

8. In the letter 2nd read above, the Secretary to Government, Law (LAW, LA&J-Home-Courts.A) Department, Telangana State, Hyderabad has concurred on the proposal of the Registrar General FAC. Registrar (Vigilance), High Court of Judicature at Hyderabad.

9. Government, after careful examination of the matter, hereby accept the above proposal of the High Court and order that (under Smt.M. Manasa, Additional Junior Civil Judge suspension), Rayachoti, Kadapa District, is discharged from service with Immediate effect on payment of one month's pay in lieu of notice under Rule 11 of the Andhra Pradesh State Judicial (Service & Cadre) Rules, 2007, as she was found not suitable to the post of Junior Civil Judge, to which she was appointed. (emphasis by this Court)

10. Government, further order that the one month pay shall be drawn and paid to Smt. M.Manasa, Additional Junior Civil Judge (under suspension), Rayachoti, Kadapa District in lieu of notice under Rule 11 of the Andhra Pradesh State Judicial (Service & Cadre) Rules, 2007 and the Principal District and Sessions Judge, Kadapa is hereby authorised to draw and pay the said amount to the officer.

11. The Registrar General, FAC. Registrar (Vigilance), High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh shall take necessary action, accordingly. 15 HCJ & CGR, J. W.P.No.4041 of 2019

12. The following notification will be published in the extraordinary issue of the Andhra Pradesh Gazette.”

12. A careful and conspectus reading and analysis of the suo motu report of the Director, A.P. Judicial Academy, being the genesis of the subject proceedings, followed by resolution of Administrative Committee of the Hon’ble Judges, order of suspension, show-cause notice, explanation of the officer, the resolution of the Full Court of the Hon’ble Judges deciding to discharge, the impugned order of 1st respondent discharging the services, the root cause of proceedings was on account of the allegation that petitioner and other co-officer, belonging to the cadre of Telangana State, had exhibited improper behaviour while observing Court proceedings and further chit-chatting continuously during the field visit which became topic of controversiality causing embarrassment to the office of the Judicial Academy. The same having been construed to be an act of misconduct, the suitability of petitioner to the post of Junior Civil Judge has been assessed and accordingly, a decision was arrived at to discharge her from duties. Not only petitioner, it is informed that even the other co-officer has also been discharged from duties, which is under challenge before the High Court for the State of Telangana.

13. Before we proceed to examine whether the impugned order of 1st respondent to end the period of probation was due to unsatisfactory 16 HCJ & CGR, J. W.P.No.4041 of 2019 work and thereby rendering petitioner unsuitable to hold the post and not for any misconduct tantamounting to punitive and stigmatic, it is profitable to refer to the law on aforesaid aspect as enunciated by the Hon’ble Apex Court in various judgments. We are conscious that both learned counsels for petitioner and as well as the 2nd respondent relied on various judgments as mentioned supra and have referred to the same in-extenso, to buttress respective stands.

14. Though learned counsels for both parties have taken much pain in referring to various judgments on the subject, in our considered opinion, the law on the subject has been more or less now very much settled.

15. In Ved Priya15, a three-Judge Bench of the Hon’ble Apex Court, while dealing with issue of discharge of Civil Judge (Junior Division), on completion of the probation period, whether amounted to simpliciter termination or amounted to a punitive action hedged by misconduct, while upholding the order of discharge, held as under: “20. The order of termination of services of Respondent 1 recites that: “the Rajasthan High Court, Jodhpur, after examining all the relevant records has been of the opinion that Shri Ved Priya has not made sufficient use of his opportunities and has otherwise also failed to give satisfaction as a probationer in the Rajasthan Judicial Service.” It is explicit from these contents that neither any specific misconduct has been attributed to Respondent 1 nor any allegation made. The order is based upon overall assessment of 17 HCJ & CGR, J. W.P.No.4041 of 2019 the performance of Respondent 1 during the period of probation, which was not found satisfactory. Such an inference which can be a valid foundation to dispense with services of a probationer does not warrant holding of an enquiry in terms of Article 311 of the Constitution. It is thus not true on the part of Respondent 1 to allege that it was a case of an indictment following allegations of corruption against him.

21. True it is that the form of an order is not crucial to determine whether it is simpliciter or punitive in nature. An order of termination of service though innocuously worded may, in the facts and circumstances of a peculiar case, also be aimed at punishing the official on probation and in that case it would undoubtedly be an infraction of Article 311 of the Constitution. The Court in the process of judicial review of such order can always lift the veil to find out as to whether or not the order was meant to visit the probationer with penal consequences. If the Court finds that the real motive behind the order was to “punish” the official, it may always strike down the same for want of reasonable opportunity of being heard. (emphasis by this Court) 22. There is nothing on record in the present case to infer that the motivation behind the removal was any allegation. Instead, it was routine confirmation exercise. The evaluation of services rendered during the probationary period was made at the end of the first respondent's tenure, along with 92 others. Vigilance reports were called not just for Respondent 1- petitioner, but also for at least ten other candidates. It is thus clear that the object was not to verify whether the allegations against the first respondent had been proved or not, but merely to ascertain whether there were sufficient reasons or a possible cloud on his suitability, given the higher standard of probity expected of a Judge. record

24. Even otherwise, it may not be true that just because there some allegations of extraneous existed on the High Court was precluded from considerations terminating the services of Respondent 1 in a simpliciter manner while he was on probation. The unsatisfactory performance of a probationer and resultant dispensation of service at the end of the probation period, may not necessarily be impacted by the fact that meanwhile there were some complaints attributing specific misconduct, malfeasance or misbehaviour to the probationer. If the genesis of the order of termination of service lies in a specific act of misconduct, regardless of overall satisfactory performance of duties during the probation period, the Court will be well within its reach to unmask the hidden cause and hold that the simpliciter order of termination, in fact, intends to punish the 18 HCJ & CGR, J. W.P.No.4041 of 2019 probationer without establishing the charge(s) by way of an enquiry. However, when the employer does not pick-up a specific instance and forms his opinion on the basis of overall performance during the period of probation, the theory of action being punitive in nature, will not be attracted. Onus would thus lie on the probationer to prove that the action taken against him was of punitive characteristics.” (emphasis by this Court)

16. Recently, in Sarita Chowdhary1, the Hon’ble Apex Court had an occasion to review and summarise the law on the scope of judicial intervention with regard to termination of probationer simpliciter or owing to misconduct as a punishment being stigmatic. It is apt to refer to following paras., which summarised the proposition: “50. The services of a probationer could result either in a confirmation in the post or ended by way of termination simpliciter. However, if a probationer is terminated from service owing to a misconduct as a punishment, the termination would cause a stigma on him. If a probationer is unsuitable for a job and has been terminated, then such a case is non-stigmatic as it is a termination simpliciter. Thus, the performance of a probationer has to be considered in order to ascertain whether it has been satisfactory or unsatisfactory. If the performance of a probationer has been unsatisfactory, he is liable to be terminated by the employer without conducting any inquiry. No right of hearing is also reserved with the probationer and hence, there would be no violation of principles of natural justice in such a case. Lal

51. In Parshotam Dhingra [Parshotam Lal Dhingra v. Union of India, 1957 SCC OnLine SC 5 : AIR 1958 SC 36] , this Court held that the protection of Article 311 also covers a probationer if the termination was by way of a punishment and “it puts delible stigma on the officer affecting his future career”. To a similar effect is the ruling of this Court in State of Bihar v. Gopi Kishore Prasad [State of Bihar v. Gopi Kishore Prasad, 1959 SCC OnLine SC 40 : AIR 1960 SC 689] . In the said case, it was observed that if the employer simply terminates the services of a probationer without holding an inquiry and without giving him a reasonable chance of showing 19 HCJ & CGR, J. W.P.No.4041 of 2019 cause against his removal from service, the probationary civil servant has no cause of action even though the real motive behind the removal from service may have been that the employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or efficiency or some such cause. Thus, the test is, whether, in a given case the termination is simpliciter or by way of punishment. When termination is by way of punishment, the concept of stigma would arise. If a punishment casts a stigma on the competence of an employee, it can affect his future career. However, the dilemma is, even when the probationer, who has no right to hold the post in the first instance, could argue that a cessation of service owing to non-suitability, inefficiency or any other similar reason was stigmatic.

52. As noted, if a termination from service is not visited with any stigma and neither are there any civil consequences and nor is founded on misconduct, then, it would be a case of termination simpliciter. On the other hand, an assessment of remarks pertaining to the discharge of duties during the probationary period even without a finding of misconduct and termination on the basis of such remarks or assessment will be by way of punishment because such remarks or assessment would be stigmatic. According to the dictionary meaning, stigma is indicative of a blemish, disgrace indicating a deviation from a norm. Stigma might be inferred from the references quoted in the termination order although the order itself might not contain anything offensive. Where there is a discharge from service after prescribed probation period was completed and the discharge order contained allegations against a probationer and surrounding circumstances also showed that discharge was not based solely on the assessment of the employee's work and conduct during probation, the termination was held to be vide Jaswantsingh Pratapsingh stigmatic and punitive Jadeja v. Rajkot Municipal Corpn. [Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corpn., (2007) 10 SCC 71 : (2008) 1 SCC (L&S) 49]

53. Even though a probationer has no right to hold a post, it would not imply that the mandate of Articles 14 and 16 of the Constitution could be violated inasmuch as there cannot be any arbitrary or discriminatory discharge or an absence of application of mind in the matter of assessment of performance and consideration of relevant materials. Thus, in deciding whether, in a given case, a termination was by way of punishment or not, the courts have to look into the substance of the matter and not the form.

54. In Samsher Punjab [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) Singh v. State 20 HCJ & CGR, J. W.P.No.4041 of 2019 550] , a seven-Judge Bench of this Court held that if a probationer was discharged on the ground of misconduct or inefficiency or for similar reasons without a proper inquiry it might, in a given case, amount to inflicting the punishment of removal from services within the meaning of Article 311(2) of the Constitution. In the very same case, it was also observed as a test for determining whether, the termination was by way of punishment, namely, whether, the termination was sought to be founded on misconduct, negligence, inefficiency or other disqualification. Thus, if a termination is founded on misconduct, it would be a punishment but dehors this, if the right to terminate existed, the motive operating in the mind of the employer would be wholly irrelevant. However, all that is stated above would ultimately boil down to the question, whether, the termination would prejudicially affect employee. It is this delicate line which has to be discerned in every case where a challenge to a termination is made by a probationer. In other words, if the termination is simply owing to unsuitability having regard to the nature of the job and such other factors, it is not stigmatic. Before any probationer is considered for confirmation, the satisfactory nature of the work and suitability of the probationer have to be considered for which some inquiry would have to be made and if it is found that he is unsuitable for the job then, he could be discharged and the same would be non-stigmatic and this would also not call for opportunity for hearing being given to a probationer. future employment of

55. The relevant case law could be discussed at this stage. India, 56. In Anoop Jaiswal [Anoop Jaiswal v. Union of (1984) 2 SCC 369 : 1984 SCC (L&S) 256] , the facts were that the impugned order of discharge was passed in the middle of the probation period after seeking an explanation regarding the alleged act of indiscipline. Similar explanations were called from persons other than the appellant therein, but in the end only the case of the appellant was dealt with severely. This Court observed that even though the order of discharge was non- committal, it could not stand alone. It was observed that though the noting in the file of the Government may have been irrelevant, the cause of the order of discharge could not have been ignored. That the recommendation, which was the basis or the foundation for the order of discharge should have been read with the order for the purpose of determining its true character. If on reading the two together the Court reached the conclusion that the alleged act of misconduct was the cause of the order and but for that allegation it could not have been passed, then it was inevitable that the order of discharge should fall to the ground. This was because the appellant therein had not been 21 HCJ & CGR, J. W.P.No.4041 of 2019 afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.

56.1. While holding so, this Court held in para 12 as under: (Anoop Jaiswal case [Anoop Jaiswal v. Union of India, (1984) 2 SCC 369 : 1984 SCC (L&S) 256] , SCC p. 379) “12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.” 56.2. Consequently, in the aforesaid case, after discussing the facts of the case in detail, this Court set aside the order of discharge/termination of service on the ground that an inquiry ought to have been held against the appellant therein prior to termination of service. As a result, the appellant therein was reinstated in service at the same rank and seniority in which he was entitled to before the order of the discharge was passed, as if it had not been passed at all, with all consequential benefits. Prakash

57. In Dipti Banerjee [Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, (1999) 3 SCC 60 : 1999 SCC (L&S) 596] , this Court inter alia, considered the following points: (SCC p. 70, para 18) “18. … (1) In what circumstances, termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only a motive? (2) When can an order of termination of a probationer be said to contain an express stigma? (3) Can the stigma be gathered by referring back to proceedings referred to in the termination order?”

57.1. Each of the aforesaid points were answered which can be summarised as under: (Dipti Prakash Banerjee [Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, (1999) 3 SCC 60 : 1999 SCC (L&S) 596] , SCC pp. 61-62) “Point 1: 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 22 HCJ & CGR, J. W.P.No.4041 of 2019 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 motive and not the foundation and the simple order of termination would be valid. *** Point 2: There is considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a ‘stigma’. It depends on the facts and circumstances of each case and language or words used to ascertain whether termination order contains stigma. *** Point 3: Material which amounts to stigma need not be contained in termination order of a probationer but might be contained in documents referred to in the termination order or in its annexures. Such documents can be asked for, or called for, by any future employer of the probationer. In such a case, employee's interests would be harmed and therefore termination order would stand vitiated on the ground that no regular enquiry was conducted. *** It is true that the Supreme Court in some of the cases has held that termination order is not punitive where employee has been given suitable warnings or has been advised to improve himself or where he has been given a long rope by way of extension of probation. However, in all such cases, there were simple orders of termination which did not contain any words amounting to stigma. On the other hand, there is a stigma in the impugned order which cannot be ignored because it will have effect on the appellant's future. Stigma need not be contained in termination order but may also be contained in an order or proceeding referred to in termination order or in an annexure thereto and would vitiate the termination order.” 57.2. Referring to Indra Pal Gupta v. Model Inter College [Indra Pal Gupta v. Model Inter College, (1984) 3 SCC 384 : 1984 SCC (L&S) 555] , it was observed in para 35 that the said decision is a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its 23 HCJ & CGR, J. W.P.No.4041 of 2019 annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. 244] (L&S) , ONGC v. Mohd. Chakrobarty [Hindustan

57.3. In that case, the employer had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice. It was observed that in such circumstances where he was given a long rope by way of extension of probation, this Court had said that the termination order could not be held to be punitive as held in Hindustan Paper Corpn. v. Purnendu Paper Corpn. v. Purnendu Chakrobarty, (1996) 11 SCC 404 : 1997 Iskender SCC Ali [ONGC v. Mohd. S. Iskender Ali, (1980) 3 SCC 428 : 1980 SCC (L&S) 446] , Institute of Post Graduate Medical Education and Research v. S. Andel [Institute of Post Graduate Medical Education and Research v. S. Andel, 1995 Supp (4) SCC 609] labour case being Oswal Pressure Die Casting and a Industry v. Labour Commr. [Oswal Pressure Die Casting Industry v. Labour Commr., (1998) 3 SCC 225 : 1998 SCC (L&S) 862] This Court further observed that in the above-noted cases, the orders were simple orders of termination which did not contain any word amounting to stigma. That in case it was concluded that there was stigma in the impugned order of termination or discharge, it would have an effect on the future irrespective of whatever had been the earlier opportunities granted by the employer to the employee to improve. S.

57.4. Thus, the approach of the Court must be firstly, to ascertain whether the impugned order is founded on any conclusions arrived at by the employer as to his misconduct or whether the termination was passed because the employer did not want to continue an employee against whom there were some complaints. The second aspect is whether there is any stigma in the order of termination or in the documents referred to in the termination order. In the aforesaid case, the impugned order of termination was quashed and the appeal was allowed. The appellant therein was directed to be reinstated with back wages till the date of reinstatement and continuity of service reserving liberty to the respondents therein to take such action as they deem fit in accordance with law against the appellant therein. in Swati

58. Recently