R.P Sethi, C.J:— The ordinary dictionary meanings of the word ‘STIGMA’ are:

“Mark branded on slave, criminal etc.; imputation attaching to person's reputation; stain on one's good name”

It is also considered as:

“A brand; a mark of infamy; a disgrace or reproach attached to anyone; any special mark; a spot; a bleeding spot; a scar; a spot sensitive to light”

2. In relation to employment, the word ‘Stigma’ means aspersion or reflection on the conduct, efficiency and the like made in the order which is likely to adversely affect the future prospects of the individual relating to his employment of promotion.

3. In the absence of any statutory definition assigned, the Supreme Court considered its scope and admit in Kamal Kishore Lakshman v. Management of Pan American World Airways Inc.,1 at paras 8 and 9 and relying upon its earlier judgments in AIR 1958 SC 1128 and AIR 1964 SC 449, held:

“According to Webster's New World Dictionary it is something that detracts from the character or reputation of a person, a mark, sign etc., indicating that something is not considered normal or standard,

The Legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster's IIIrd New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary, ‘Stigma’ is a matter for moral reproach.

Loss of confidence by the employer in the employee is a feature which certainly affects the character or reputation of the employee and, therefore, this Court correctly held in Chandu Lal's case that allegation of loss of confidence amounted to a stigma. The ratio in Jagdish Mitter's case AIR 1964 SC 449 also supports this conclusion.”

4. Invoking the mandate of the Apex Court, the appellant herein has prayed for quashing of the order of the Managing Director of the respondent, dated 31.3.1994 at Annexure ‘G’ attached with the appeal, discharging him from service, alleging that the said order amounted to casting stigma to his service career.

5. In order to appreciate the contentions raised in the appeal, it is necessary to take note of the facts under which the present appeal has been filed.

6. The appellant was appointed as Assistant Sales Officer on 11.9.1997, vide order at Annexure ‘A’. He claims to have underwent orientation training for two weeks and thereafter assumed the charge of Assistant Sales Officer and incharge of factory showroom at Mysore. During 1989, the appellant was transferred as Assistant Sales Officer, incharge of the Corporation showroom at Channapatna, where he served for about six months. He was placed under suspension there. After his reinstatement with effect from 4.1.1992, the appellant was appointed as Assistant Sales Officer in Devatha Market showroom of the respondent-Corporation at Bangalore. According to the terms of the appointment, the appellant was to undergo probation for three years, subject to the right of the respondent to extend such probation for further period. The respondent did not extend the period of probation before the expiry of three years and the appellant was allowed to continue in service without any break. However, on 1.10.1993, the respondent issued an order, indicating that the work rendered by the appellant had not been satisfactory and his probation was, therefore, extended upto 31.3.1994 On 6.12.1993, the appellant claims to have received a show cause notice from the respondent, alleging that he was responsible for shortages of silk cloth. He was asked to show cause as to why disciplinary action be not initiated against him, under the rules of the Corporation. The appellant denied the allegations and submitted that there was no shortage or missing of cut pieces, nor had there been any replacement, as alleged. On 31.3.1994, at about 3.45 p.m, the appellant alleges to have received the proceedings of the Managing Director, indicating that in view of his having not being found suitable for the post of Assistant Sales Officer, he was being discharged from service with effect from the afternoon of 31.3.1994 He was directed to hand over complete charge to Sri Manjunath, Junior Sales Assitant.

7. Aggrieved by the action of the respondent, the appellant filed a Writ Petition in this Court, which was dismissed by the Learned Single Judge, vide the judgment impugned in this appeal. It is submitted that the judgment was against the provisions of settled law, which required to be set aside. It is contended that after the expiry of additional period of three years' probation, the appellant should have deemed to have been permanently appointed and could not be removed, without compliance of the provisions of the rules applicable in the case. It is contended that the respondent had no authority to extend the probationary period, retrospectively. The order impugned in the Writ Petition was alleged to be not an order of discharge simplicitor. It was stated to have been issued by the respondent by way of a major penalty, as provided under the rules of the Karnataka Silk Industries Corporation Limited Employees Conduct, Discipline and Appeal Rules, 1980 (CDA Rules for short). It is submitted that the major penalty of termination could not have been imposed, without following the procedure laid down under Rule 26 of the CDA Rules. It has been argued that the Learned Single Judge was not justified in holding that the recitals made in the impugned order only referred to his past conduct, for the purposes of deciding to continue or not to continue the period of probation, it is contended that the facts alleged in the impugned order amounted to casting stigma, which rendered the order of discharge, constitutionally illegal and contrary to rules, and as such was liable to be set aside.

8. Learned Counsel appearing for the respondent has supported the judgment and submitted that untill and unless specific orders were passed regarding the successful completion of the period of probation, the appellant could not be deemed to have been permanently appointed to the post. It is submitted that the order impugned did not cast any stigma, necessitating interference by this Court. The judgment of the Learned Single Judge is claimed to be strictly according to the law laid down by the Apex Court and the service rules applicable in the case.

9. The admitted position is that while offering the appellant the post of Assistant Sales Officer vide Annexure ‘A’, he was intimated that:

“Your appointment is on a contract basis for a period of three years which is terminable at the discretion of Karnataka Silk Industries Corporation with three months' notice or salary in lieu thereof. This three year period shall be treated as your probationary period, which is liable to be extended at the discretion of the management from time to time and you shall continue to be on probation even after three years, till your services are confirmed.”

10. It is true that the period of probation was not extended within the specified period of three years. It is equally true that there is no rule or regulation of the respondent-Corporation, providing that in case the probationary period was not extended within the time earlier fixed, the probationer officiating shall be deemed to have been confirmed in that post. The Supreme Court, in The State of Punjab v. Dharam Singh,2 held:

“This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed. This view was taken in S. Sukhbans Singh v. State Of Punjab , 1963-1 SCR 416 at pp. 424-426 (AIR 1962 SC 1711 at pp. 1714-1715) G.S Ramaswamy v. Inspector General of Police, Mysore State, Bangalore, (1964) 6 SCR 279 at pp. 288-289 : (AIR 1966 SC 175 at pp. 179-180), Accountant-General, Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, Civil Appeal No. 548 of 1962, D/- 23.1.1964 (SC). D.A Lyall v. Chief Conservator of Forests, U.P, Civil Appeal No. 259 of 1963, D/- 24.2.1965 (SC) and State Of U.P v. Akbar Ali Khan, (1966) 3 SCR 821 at pp. 825-826 : (AIR 1966 SC 1842 at p. 1845). The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation, the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication….”

In Kedar Nath Bahl v. The State of Punjab,3 this position was reiterated and it was held that where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the specified period of probation, the person so appointed would get confirmation automatically. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of specified period, or there is a specific service rule to that effect, the expiration of the probationary period would not necessarily lead to confirmation.

11. The Supreme Court, again in Om Prakash Maurya v. U.P Co-Operative Sugar Factories Federation, Lucknow . 1986 Supp SCC 95, declared that in the absence of service rules, failure to extend the period of probation would not automatically amount to confirmation on the post of probation.

12. In the absence of any specific rule to the effect that non-extension of the period of probation would automatically amount to confirmation, it cannot be held that the appellant was deemed to have been confirmed to the post, as has been argued by his Learned Counsel. The Learned Single Judge was, therefore, justified in holding that the appellant was never confirmed and was on probation upto 31.3.1994

13. With respect to the termination of service or reduction in rank, the general principle involved is that when a servant has a right to a post or a rank, either under the terms of a contract of employment-express or implied-or under the rules applicable in the case, his termination or reduction to a lower grade is by itself and prima facie a punishment, because it operates as a forfeiture of his right to hold that post and the rank. If the servant has no right to the post on account of his appointment to the post, either on temporary basis or on probation, or on officiating basis and whose such appointment has not ripened into permanent service, the termination of his employment does not deprive him of any right and cannot, therefore, be held to be a punishment. If, however, the temporary appointment is terminated or a probationer removed on the basis of the allegations made against him, such termination, removal or discharge cannot be held to be not affecting his rights or depriving him from the right to continue. The dismissal, under the circumstances, renders the employee ineligible for further employment on the basis of his alleged past conduct. In Samsher Singh v. State of Punjab . 1974 2 SCC 831, it was held that if a probationer is discharged on the basis of mis-conduct or inefficiency or for some reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it may, in a given case, amount to his removal from service. If, however, the authority decides not to continue or extend the period of probation, it can discharge him without assigning any reason or holding an enquiry, giving him a chance to make good in other walks of life, without a stigma at the time of termination of probation. If, however, the probationer is charged of mis-conduct or inefficiency or corruption and his services are terminated without holding an enquiry, the Courts would interfere to protect his interests, notwithstanding that such employee was on probation or a temprary one. In this case, Krishna lyer, J., while concurring with the majority judgment, held:

“Again could it be that if you summarily pack off a probationer, the order if judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however harmlessly the order may be phrased. And so this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be ‘the substance of the matter’, and the ‘foundation’ of the order. When does ‘motive’ trespass into ‘foundation’? When do we lift the veil to form to touch the ‘substance’? When the Court says so. These ‘Freudian’ frontiers obviously fail in the work-a-day world and Dr. Tripathi's observations in this context are not without force. He says:

“As already explained, in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of the departmental enquiry a search for the ‘substance of the matter’ will be indistinguishable from a search for the motive (real, unrevealed object) and from (the apparent, or officially relieved object) in the present context has led to an unreal interplay of words and phrases wherein symbols like ‘motive’, ‘substance’ ‘form’ or ‘direct’ parade in different combinations without communicating precise situations or entities in the world of facts.”

After referring to a catena of authorities, the Supreme Court in Anoop Jaiswal v. Government of India,6 held:

“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.”

14. Relying upon various judgments, the Learned Counsel for the appellant has submitted that as the impugned order which amounted to casting a stigma was passed as a measure of punishment, the interference of the Court is necessary to protect the interests of the appellant. Even though the authorities relied upon by the Learned Counsel were with respect to the members of the civil service of the Union or the State, yet the principle enunciated therein is equally applicable to the employees of the Corporation with the aid and on the basis of the violation of the principles of natural justice. Article 311 of the Constitution of India may not strictly be applicable in the case of the appellant, but as acknowledged, the rules of natural justice being the foundation and of fundamental concept in our constitutional system, it was necessary that before dismissing an employee on the basis of his misconduct or as a measure of punishment, the employer was to comply at least with the minimum principles of natural justice. The Supreme Court, in Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School,7, held:

“In Administrative Law, Rules of natural justice are foundational and fundamental concepts and now is well settled that the principles of natural justice are part of the legal and judicial procedures. On the question whether the principles of natural justice are also applicable to the administrative bodies, formerly, the law Courts in England and India had taken a different view. It was held in Franklin v. Minister of Town and Country Planning, (1947) 2 All ER 289, that the duty imposed on the Minister was merely administrative and not being judicial or quasi-judicial, the principle of natural justice as applicable to the judicial or quasi-judicial authorities was not applicable and the only question which was required to be considered was whether the Minister had complied with the direction or not. Such view was also taken by the Indian Courts and reference may be made to the decision of this Court in Kishan Chand Arora v. Commr. of Police, Calcutta, 1961 (3) SCR 135 : (AIR 1961 SC 705). It was held that the compulsion of hearing before passing the order implied in the maxim ‘audi alteram partem’ applied only to judicial or guasi-judicial proceedings. Later on, the law Courts in England and also in India including this Court have specifically held that the principle of natural justice is applicable also in administrative proceedings. In the case of Breen v. Amalgamated Engineering Union, (1971) 1 All Er 1148, Lord Morris observed:

“We can, I think take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed.”

It may be indicated herein that the aforesaid observation was quoted with approval by this Court in the decision in Maneka Gandhi v. Union of India, 1978 (2) SCR 621 : ((1978) 1 SCC 248 : AIR 1978 SC 597). In State of Orissa v. Binapani Dei, 1967 (2) SCR 625 : (AIR 1967 SC 1269), this Court also accepted the application of the principle of natural justice in the order which is administrative in character. It was observed by Shah, J. (Para 12 of AIR):

“It is true that the order is administrative in character, but even an administrative order which involves civil consequences….must be made consistently with the rules of natural justice.”

Similar view was also taken in A.K Kraipak v. Union of India, (1970) 1 SCR 457 : ((1969) 2 SCC 262 : AIR 1970 SC 150) and the observation of Justice Hegde may be referred to (at. p. 157 of AIR):

“Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially, there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned if the purpose of the rules of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries.”

There are number of decisions where application of principle of natural justice in the decision-making process of the administrative body having civil consequence has been upheld by this Court but it is not necessary to refer to all such decisions. Prof. Wade in his Administrative Law (1988) at page 503, has very aptly observed that the principles of natural justice are applicable to almost the whole range of administrative powers.”

15. To rebut the arguments addressed on behalf of the appellant, the Learned Counsel for the respondent has relied upon the judgment of the Supreme Court in Governing Council of Kidwai Memorial Institute of Oncology, Bangalqre v. Dr. Pandurang Godwalkar . 1992 4 SCC 719. In that case, it was held that if an employee, who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge, then a plea cannot be taken that as his service was temporary or his appointment was on probation, there was no requirement of holding any enquiry, affording such an employee an opportunity to show that the charge leveled against him is either not true or it is without any basis. But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simpliciter after some preliminary enquiry it cannot be held that as because some enquiry had been made against him before issuance of order of termination it really amounted to his removal from service on a charge, as such penal in nature. In that case, the order of termination did not refer to any misconduct, lapse or other allegations, but only recited thus:

“In accordance with the decision of the Governing Council at its meeting held on 28th January, 1982 the services of Dr. Pandurang Godwalkar, Lecturer in Surgical Oncology (on probation), Kidwai Memorial Institute of Oncology, Bangalore are terminated with effect from the afternoon of 30th January, 1982, as per Rule 4 of the Conditions of Service Rules (Annexure 2 Chapter 1) of the Institute.

He is paid one month's salary in lieu of one month's salary in lieu of one month's notice required as per rules.”

To the same effect is the judgment of the Apex Court in Oil and Natural Gas Commission v. Dr. Md. S. Iskander Ali,9 and Benjamin (Ag) v. Union of India . 1967 1 LLJ 718. as have been relied upon by the Learned Counsel.

16. On an analysis of the Judgments referred to hereinabove and on the basis of submissions made on behalf of the parties, it can be said that the services of a temporary employee or an employee on probation can be terminated without holding enquiry or complying with the principles of natural justice, if such termination, removal or discharge is the result of the considerations pertaining to the misconduct or lapses of the concerned employee. The purpose is that, once the services are sought to be terminated as no more required, no punishment can be inferred to have been inflicted upon such employee. However, if the order of termination is based upon allegations amounting to stigma upon the appellant, in relation to his employment, the holding of enquiry and the compliance of natural justice cannot be abandoned or forsaken. The employee cannot be handed over an order of discharge containing therein the allegations of misconduct or such imputations amounting to misconduct, which may adversely affect him in getting future employment. The order of termination, dismissal or removal, if is couched in a language which emanates foul smell, the compliance of the principles of natural justice cannot be directed to be dispensed with. The employer, who is not satisfied with the conduct of the employee, is at liberty to get rid of him, but should not create circumstances which may result in permanent deprivation of the employment to such an employee. After the dawn of independence and half a century of freedom, the approach of serfdom is required to be forsaken for ever. The employees have to be treated as respectable citizens of this great country and cannot be deprived of the acknowledged service benefits accruing to them, without having recourse to law and the rules applicable in the case. No person can be condemned unheard and accusations made by the employer are required to be determined on the touch-stone of either enquiry or the principles of natural justice.

17. In the instant case, it is, therefore, to be determined as to whether the order of dismissal of the appellant was such an order simpliciter or it amounted to stigma resulting in the direct or indirect forfeiture of his future rights or opportunities to get the employment. The technicalities of law cannot be permitted to come in the way of dispensation of justice. Camouflaging an order of removal simpliciter is also not permissible as this Court has the power of lifting the veil to find out the true position with respect to the nature of the order and its consequential effects to which an employee can be subjected to.

18. A perusal of the order of termination of the appellant herein (Annexure ‘G’) is, therefore, necessary to find out as to whether the same was an order simpliciter not extending his probation, or was an order of punishment, in the light of the alleged misconduct or the imputations contained therein, which related to appellant's service record. The said order has to be appreciated in the light of Rule 5 of the Rules, which defines the misconduct. Acting in a manner prejudicial to the interest of the Corporation, wilful insubordination or disobedience, neglect of work or negligence in the performance of duty and commission of any act subversive of discipline or of good behaviour - have been termed to be ‘misconduct’, amongst other acts of commissions and omissions enumerated therein. The rule is admittedly illustrative and not exhaustive. Misconduct, in this context, has to be appreciated in the light of the service record, the allegations made and the consequences, which are likely to flow.

19. In the impugned order of dismissal, the respondent Corporation had alleged:

“The performance appraisal of Sri Krishna Murthy for the period 19.10.1987 to 22.3.1988 by the M.D revealed that there are some drawbacks with Sri Krishna Murthy and that his performance is average at present. Pursuant to observations by Internal Audit regarding several irregularities committed by Sri Y.N Krishna Murthy, he was ‘CENSURED’ and warned to be more careful in future vide memo cited at (6) above. In OM cited at (7) above Sri Y.N Krishna Murthy was placed under suspension for cheating customers by wrong billing and for making wrongful gain. Charges were also framed against him. The Enquiry Officer who went into the charges held the charges as proved. Sri Y.N Krishna Murthy was reinstated to duty vide O.O dated 4.1.1992 cited at (8) above and punishment of withholding one increment without cumulative effect was imposed on him. Following a report by the Deputy Manager (F & A) that Sri Krishna Murthy was not sending sales/stock statements pertaining to his Show Room, a memo cited at (9) above was issued to him. The correspondence between Sri Y.N Krishna Murthy that he was unable to prepare the sales/stock statements and the General Manager (Personnel)/Deputy Marketing Manager that it was his duty to do so as in the case of all other ASOs went on from March 1992 to April 1992. However, Sri Y.N Krishna Murthy did not furnish the statements as required.

Sri Y.N Krishna Murthy alongwith JSA working with him were found jointly responsible for shortage of 6 sarees and material amounting to Rs. 18,049.30 and recovery of Rs. 9,024.65 was ordered from him vide O.O cited at (10) above. Sri Krishna Murthy filed petition before the High Court on which the High Court granted a stay order. Hence the recoveries were stopped.

Once again the question of furnishing sales/stock statements by Sri Y.N Krishna Murthy came up in December 1992 and a show cause notice was issued to Sri Y.N Krishna Murthy cited at (11) above.

The performance appraisal of Sri Y.N Kirshna Murthy for the year ending 31.3.1993 stated that he cannot be trusted with responsibility and that he cannot take nay constructive and positive decisions.

A show cause notice was issued to him vide reference cited at (12) above for not being present at his place of duty. Since the explanation furnished by Sri Y.N Krishna Murthy was found to be not satisfactory a penalty of ‘CENSURE’ was imposed with a direction to enter into his PARs vide O.O dated 2.8.1993

On the basis of preliminary investigation report of the Manager (IA) dated 21.10.1992 it was ordered vide O.O dated 11.12.1992 to recover the shortage of cash of Rs. 1,001.00 at Devatha Market Show Room at the rate of 50% of the loss from Sri Y.N Krishna Murthy (i.e, Rs. 500/-) and the rest from the other members of the staff. Sri Y.N Krishna Murthy approached the Board of Directors in the appeal, but the Board in its Resolution No. 1301 dated 15.9.93 rejected the appeal and upheld the recovery order.

For the reasons contained therein the probationary period of Sri Krishna Murthy was extended upto 31.3.94 vide reference at (13) above. He was also advised vide O.O dated 15.11.1993 that he should make attempts to improve his work.

During inspection of the show room at Devatha Market of which Sri Y.N Krishna Murthy is incharge certain shortages were noticed for which Sri Y.N Krishna Murthy was held responsible and a show cause notice was issued vide reference cited at (14) above. After going through the reply furnished by Sri Y.N Krishna Murthy a fact finding enquiry was also conducted to arrive at the correct shortages and the persons responsible. It was found that Sri Y.N Krishna Murthy. A.S.O was responsible for the shortage of 1 saree valued at Rs. 4,103.25 and recovery was ordered vide O.O cited at reference (15) above.

Sri Y.N Krishna Murthy was appointed as Assistant Sales Officer in the Company on 3 years contract. The contract period would be treated as probationary period and the management had the discretion to extend the probationary period. Due to various circumstances as narrated above his probationary period came to be extended upto 31.3.1994 The post of ASO in the Company is a responsible position. The ASO functions in charge of any one of the show rooms of the Company and is fully incharge of the stocks, cash and all other valuables of the Company in the show rooms. At any point of time the approximate value of such stock is Rs. 20 lakhs. Therefore the position of ASO is one of trust and responsibility. The ASO is also required to exercise coordination with his superiors in the Marketing Division in Head Office and also with his subordinate sales staff in the show room with a view to maximise sales. The ASO is entrusted with a fair amount of discretion in dealing with customers, and hence he is expected to be vigilant in the performance of his duties and in taking due care of the stocks entrusted to him. A perusal of the confidential reports of Sri Y.N Krishna Murthy and also the correspondence between him and the Head Office in the past several years reveals that Sri Y.N Krishna Murthy is not suitable for the Post of A.S.O Although Sri Y.N Kirshna Murthy was addressed more than once to improve his work and his probation was extended to give him an opportunity, he has not done so. Hence Sri Y.N Krishna Murthy is discharged from service w.e.f 31.3.1994 (A.N).”

(underlining supplied).

20. The allegations, as underlined hereinabove, clearly indicate that the order of discharge was not a simpliciter order or discharge, but was passed on the basis of the alleged conduct of the appellant, which, under the rules applicable in the case, if proved, would amount to misconduct. It has been argued on behalf of the respondents that reference to the allegations was, in effect, recital of his past record, with the object of deciding as to whether his probation was to be continued or not, and was not intended to be a punishment, on the basis of his alleged misconduct. The arguments, though attractive on the face of it, is devoid of any legal force, in as much as the allegations made in the order cannot be segregated. The order of discharge, taken as a whole, would only reflect the conduct of the appellant casting aspersions and reflections on his conduct, indicating his insufficiency, which is likely to adversely affect his future prospects relating to his employment and promotion. No employer, under ordinary circumstances, would offer any Job to the appellant after perusing the impugned order, which reflects and refers to his inefficiency and misconduct in relation to his employment. With this letter in his hand, the appellant cannot find any job, except the disgrace of the society. The appellant may be a dishonest person or inefficient or not capable of performing the duties, as alleged, but such conclusions could be arrived at only after compliance of the service rules applicable or atleast the principles of natural justice. It has rightly been held that, strictly speaking, the appellant may not be entitled to the benefit of rules, entitling him the benefit of holding an enquiry, but in no case he can be deprived of the benefits accruing to him by compliance of the principles of natural justice. The learned Single Judge was, therefore, not justified to hold that the impugned order had only referred to the earlier show cause notices and the explanations and that the findings were only an examination of the performance and not referable to any pending charge of misconduct. He was also not justified to hold that mere reference to what had transpired earlier could not be held to cast a stigma. If the reference mentioned in the impugned order, as noted by the learned Single Judge, would not have formed a part of the order of dismissal, the conclusions arrived at by the Learned Single Judge could have been justified. But once the order of discharge and the alleged references are inseparable, it cannot be said that the order did not amount to casting a stigma on the appellant. The Learned Single Judge was, therefore, not justified in dismissing the Writ Petition filed by the appellant. In the impugned order in the Writ Petition, it was held to be an order of discharge on the basis of his alleged misconduct, which amounted to stigma, in relation to his employment with the respondents.

21. Under the circumstances, the appeal is allowed by setting aside the judgment of the Learned Single Judge and quashing the order of discharge at Annexure ‘G’, impugned in the Writ Petition.

22. Consequent upon the setting aside of the order impugned, the appellant is held entitled to his reinstatement and all other consequential benefits. This judgment would, however, not prevent the respondents, if so advised, to pass fresh appropriate orders for his removal, but only after the compliance of principles of natural justice. The respondents shall also be entitled to terminate the services of the appellant even retrospectively, on the basis of the allegations, as noted by them and proved after the compliance of the principles of natural justice. If the respondents decide to initiate action for discharge of the appellant within a period of one month from today and a notice in that behalf is issued, they will not be under obligation to pay to the appellant, the arrears of salary from the date of his dismissal vide Annexure ‘G’, till the date of his reinstatement, consequent upon this judgment. In that event, the appellant shall be entitled to reinstatement forthwith and future salaries till the conclusion of the proceedings against him, if initiated by the respondents. If, after initiation of the proceedings and after allowing the appellant an opportunity to show cause, the allegations of misconduct are not proved and the proceedings dropped, the appellant in that eventuality, shall be entitled to the payment of the aforesaid arrears along with interest at the rate of 18% per annum.

No orders as to costs.

Rajendra Babu, J.

I regret my inability to agree with the order made by the Learned Chief Justice. I propose to set out my view of the matter.

The Appellant was appointed by the Respondent on contract basis for a period of three years in terms of a letter sent to him on 21.8.1987 The terms stated in the said letter are that for the said period the appellant would be on probation, liable to be extended at the discretion of the respondent from time to time and the appellant shall continue to be on probation even after three years until his services were confirmed. By an order made on 1st October, 1993 the period of probation of the appellant was extended upto 31.3.1994 No order had been passed till 1.10.1993 either extending the period of probation or confirming the services of the appellant. On 31.3.1994, the appellant was discharged from service from the said date. Aggrieved by that action the appellant preferred a Writ Petition before this Court for quashing the said order and seeking a direction to the respondent to continue him in service with necessary consequential benefits.

2. In the said Writ Petition the petitioner raised three pronged attack on the action of the discharge of the petitioner.

3. It was firstly contended that the appellant was continued in service even after the initial period of probation and in the absence of any order of extension of probation or confirmation of service during the period of probation there is an implied confirmation and therefore the services of the appellant could not have been terminated, as if he was still on probation. The learned single Judge on examination of this contention and after referring to decisions in M.K Agarwal v. Gurgaon Gramin Bank . 1987 Supp SCC 643 and Kedarnath Bahl v. The State of Punjab held that the terms of appointment indicated that the confirmation would not automatically follow until an order of confirmation is made and therefore the appellant's service could not be held to be impliedly confirmed at the end of the probation period; on the other hand by a specific order his probation had been continued by the order made on 1.10.1993 till 31.3.1994 and that order had not been challenged. Hence, the learned Judge held that the appellant was on probation till 31.3.1994 This conclusion of the learned Judge is sought to be assailed by the appellant that when the period of probation had been fixed as three years initially, when such power was not exercised within that period, the same could not have been extended further after the expiry of that period. I do not think the contention advanced on behalf of the appellant could be accepted.

4. The terms of employment as spelt out in the letter dated 21.8.1987 or the Rules as applicable do not indicate that at the end of the period of probation the appellant would either be confirmed or discharged from service. On the other hand the letter of appointment is clearly to the effect that even after the period of probation of three years the appellant would continue on probation till his services were confirmed. Therefore, when the confirmation would not automatically follow at the end of the specified period, the expiration of the period of probation does not necessarily lead to confirmation and an order confirming the appellant was required to be passed and no such order having been passed, it must be deemed that he continued in his post as a probationer. Therefore, continuation of the services of the appellant on probation even after the expiry of the period of three years from the date of the period of initial appointment is not bad. I, therefore, agree with the view taken by the learned single Judge, on this aspect.

5. The second contention advanced is that the impugned order of termination of the services of the appellant in these proceedings is punitive in character. Thirdly, it is contended that even otherwise the impugned order casts a stigma on the appellant and therefore amounts to dismissal without enquiry and is bad in law.

6. The last two contentions raised before us being inter-related have to be dealt with together. Whenever a probationer has to be discharged from service a dilemma would arise for the employer to deal with as to what should be the form of the order - whether it should set out the reasons which forms the basis for discharge of the probationer or should it be taciturn without containing any details. In the order the reasons for discharge are set forth, the same is liable to be attacked on the ground that the same would cast a stigma, while if the reasons are not set forth such an order could be characterised as not a speaking order a mere camouflage to hide the real reasons for discharge, and if such reasons are examined the action could amount to punishment and therefore should be preceded by an enquiry, which is fair and reasonable. In a situation where the order of termination is a mere discharge without alluding to the stigmatizing results, could be an appraisal of the service profile indistinguishable from a search for the motive and from the apparent or officially avowed object. In this context, it should not merely lead to a jugglery of words like motive, substance or form without clearly bringing out the precise situations when reliance upon the same could be placed. Therefore, Courts have not hesitated to go behind the order challenged, whatever be its form, to ascertain the true character of the order. If the Courts were to come to a conclusion that in reality the order is one for punishment, it would declare so and give the necessary effect to the same. Thus, an examination of the decisions of the Supreme Court would clearly indicate that where an employee is holding a post on probation or on temporary basis is relieved from his services could be stated to be one with stigma, if some specific charge had been made out and such charge was levelled in the course of the proceedings and discharge was made without any enquiry, the same would be bad. However, when the service of an employee is terminated during the period of probation or while on temporary basis by an order of termination even after some preliminary enquiry it cannot be held that the enquiry had been made against him before issuance of the order of termination and would not amount to removal from service on a charge as such penal in nature, if the order of termination does not refer to any misconduct, lapse or other allegations and such an order could not be characterised as stigmatizing an employee.

7. Therefore, the gist of the ratio in the decisions relied upon by the Learned Counsel on either side would only indicate that unless a decision is reached that order is punitive in character either by reason of the contents of the order or by finding out from the record on the basis of which such order of discharge is made and thus the form of the order would not assume any significance. Irrespective of whether the reasons are set out in the order or not, the Courts would go behind the order and examine the circumstances leading to such discharge or termination of services of an employee. Irrespective of the form or content of the order, if such an exercise is to be done, then merely because the order of discharge or termination of service recites such circumstances as already contained in the service record of the probationer would not necessarily lead to the interference that the same would attach stigma. What is of essence in such a matter is whether in the course of the proceeding to discharge or terminate the services of an employee, the employer had attributed any acts of misconduct or acts or omission or commission which had not been subject matters of past conduct, but a fresh act of conduct which forms the basis for discharge or termination of services. If the order merely reflects the past record, the same would not attach any fresh stigma but stigma which had already attached to the concerned employee was only taken note of, which is already on record, cannot be stated to vitiate the order. To state that for purpose of a discharge or termination of a service of a probationer, the past record is relevant and appraisal thereof is absolutely necessary before taking action thereto, merely because it is not spelt out in the order would not affect the order but only in case where it is spelt out it would, leads to anamolous and illogical results. Therefore, I am of the view that when there is no direct nexus between the charge and the action taken and the order does not for the first time recite the acts of omission and commission on the part of the employee's mis-conduct but refers to circumstances on which action had already been taken, the result is that such an order would not be bad.

8. It is argued that the order of discharge or termination simpliciter of a probationer would enable such an employee to seek employment elsewhere and should not refer to his past conduct and if it did he would not be in a position to seek such employment it would in my view be too hazardous to rest a decision on the form of the order rather than looking to the substance or the basis of such an order for in case where a probationer is discharged from service, if he seeks employment elsewhere, the new employer will not be so naive as not to make further enquiries into the circumstance of the discharge, past service record being a relevant circumstance which an employer would take into consideration. In such an event could it be said that merely because the chances of fresh employment of a probationer whose services are discharged are dimmed by reason of the contents of the order and therefore the same is vitiated by stating that the same attaches stigma? The new employer will certainly not depend upon the form of the order of discharge and will certainly make further enquiries into the matter. Therefore, the form or content of the order by itself will not determine as to whether the same would attach stigma or not.

9. In the present case the order of termination recites the circumstances leading to such discharge or termination on the basis of an appraisal of the service record of the petitioner and therefore cannot be characterised as attaching any stigma because the stigma, if any, stood attached by reason of the previous proceedings with conclusions thereon and not by reason of the impugned order. There is no direct nexus between the circumstances narrated in the order and the action now taken. In the absence of such direct nexus I do not think an order of discharge could be characterised as attaching any stigma or being punitive in character. Hence, the view taken by the learned single Judge that the impugned order in these proceedings merely makes a reference to the past history to afford a background and not to any pending charge of misconduct and a mere recital of what had transpired earlier would not amount to giving a finding leading to punishment or cast a stigma. In that view of the matter, I think the Appeal is liable to be dismissed.

Writ Appeal No. 1991/94

On the basis of judicial pronouncements of this Court, in view of the proviso to sub-section (2) or Section 98 and all the powers conferred upon me, the matter is directed to be listed before a Third Judge. The appeal shall thereafter stand disposed of in terms of the opinion of the third Judge.

List before K.S.B.J

Sd/- Chief Justice

21.9.1996

JUDGMENT

K.S Bakthavatsalam, J.

The petitioner challenged Annexure-G by which the petitioner was discharged from service with effect from 31.3.1994 in WP 9752/94.

2. The facts relating to the impugned order Annexure-G are The petitioner was appointed as an Assistant Sales Officer with the respondent-Corporation by an order dated 11.9.1987 Annexure-B. It is necessary to extract condition offered to the petitioner which is found in Annexure-A:

“Your appointment is on a contract basis for a period of three years which is terminable at the discretion of Karnataka Silk Industries Corporation with three months notice or salary in lieu thereof. This three year period shall be treated as your probationary period, which is liable to be extended at the discretion of the management from time to time and you shall continue to be on probation even after three years, till your services are confirmed”.

3. It seems he was posted as an Assistant Sales Officer and incharge of factory show-room at Mysore. He was transferred as Assistant Sales Officer, incharge of the Corporation showroom at Channapatna and while he was in service in Channapatna he was placed under suspension pending enquiry. He was reinstated from 4.1.1992, the appellant was working in Devatha Market showroom in Bangalore. As the appellant has been under probation the period was extended by an order dated 1.10.1993 upto 31.3.1994 vide Annexure-D. Within two months from the date of issue of order Annexure-D dated 6.12.1993 the appellant was issued a show-cause notice for certain shortages of silk cloth with a direction to show-cause as to why disciplinary action be not initiated against him. After perusing the reply of the appellant dated 14.12.1993 Annexure-F an order seems to have been passed on 8.2.1994 ordering recovery of Rs. 4,103.25/-. However, on 31.3.1994, the appellant has been served with the order Annexure-G. Being aggrieved by the action of the respondent, an order discharging the appellant, the appellant filed. WP 9752/94 before this Court challenging Annexure-G. Ravindran J. dismissed the Writ Petition hence this appeal.

4. The short point for consideration in this case is, whether the order of discharge-Annexure-G is an order of simpliciter or it cast any stigma on the appellant.

5. The Learned Counsel appearing for the appellant Sri Gopala contends that a reading of Annexure-G clearly shows that, it is not an order of termination as it has been passed by way of punishment. The Learned Counsel relies upon the judgment of the Supreme Court in the case of Anoop Jaiswal v. Government of India, in support of his contention, that the order of termination cast a stigma on the appellant. According to the Learned Counsel, though the order gives a narration of events occurred upto 31.3.1994, during the period in which the appellant was serving the Corporation, the last paragraph of the order clearly casts a stigma on the appellant. A dose reading of the entire order according to the Learned Counsel for the appellant will give an impression to any reasonable person that the order is not an order of discharge simpliciter, but it has been passed by way of punishment. In the sense, it casts stigma on the appellant as he is not suitable for the post of Assistant Sales Officer for the reasons set out in the last paragraph of the order. The Learned Counsel also relied upon the decision of the Supreme Court in the case of State of Hariyana v. Jagdish Chander,12 and also the judgment reported in the case of Allahabad Bank Officers Association v. Allahabad Bank . 1996 2 LLJ 519..

6. Mr. B.C Prabakar, Learned Counsel for the respondent-Corporation strenuously contended that the order passed by the Corporation cannot said to be an order by way of punishment and it casts no stigma on the appellant. According to the Learned Counsel for the respondent-Corporation, it is a pure order of termination simpliciter. The Learned Counsel for the Corporation took pains to convince this Court that whenever a probationer is to be discharged, his past services have to be evolved by the employer and that has been done in this case. In the absence of any direct nexus between the circumstances narrated in the order and the action taken, it cannot be said that the order has been passed by way of punishment or the order cast stigma on the appellant. The Learned Counsel relied upon the decision of the Supreme Court in the case of Governing Council of Kidwai Memorail Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar in the case of Oil and Natural Gas Commission v. Dr. Md. S. Iskander Ali and in the case of Samsher Singh v. State of Punjab and in the case of The Union of India v. P.S Bhatt . 1981 2 SCC 761 and the case of Bishan Lal Gupta v. The State of Haryana . 1978 1 SCC 202 and also in the case of Benjamin v. Union of India . 1967 1 LLJ 718. in support of his contention and argued that the Supreme Court has held in these cases that no stigma is attached if such an order is passed and it is always open to the respondent-Corporation to look into the past record of the appellant before discharging the appellant from service as the appellant is a probationer has no right to continue in that post. The Learned Counsel for the Corporation stated that there is ley no stretch of imagination it can be said that the order Annexure-G has been passed by way of punishment. According to the Learned Counsel for the Corporation, for every misconduct or lapse on the appellant, orders of censure or recovery has been passed against the appellant upto 1993 and a chance was given to the appellant to improve upon by extending the period of probation upto March, 1994 which opportunity the appellant failed to make use of. As such, according to the Learned Counsel for the Corporation there is nothing wrong on the part of the Corporation to pass such an order and it cannot be said that the order has been passed by way of punishment, it is an order of termination simpliciter.

7. I have considered the arguments of Mr. Gopala Gowda for the appellant and Mr. Prabhakar for the Corporation. As I have already stated, the point involved is, whether the order of termination passed in this case is an order of termination simpliciter or it has been passed by way of punishment. In the sense, whether it cast any stigma on the appellant. It is necessary to extract last portion of the order Annexure-G to understand the arguments advanced on either side. The appellant has been appointed as I have already stated on 11.9.1987 the performance appraisal of the appellant for the period October 1987 to March 1988 reveal that, there are some draw-backs. So, he was censured on bond by an order dated 24.3.1988 It seems on October 1989 he was placed under suspension for cheating customers by wrong billing or for making wrongful gain, certain charges are also framed against the appellant. The Enquiry Officer went into the charges and the charges were proved. However, the appellant was reinstated on 4.1.1992 imposing punishment withholding of one increment without cumulative effect. Later, during September 1992 an order of recovery has been made for the shortage of six sarees and the appellant seems to have filed a Writ Petition before this Court challenging the order of recovery. For the year ending 31.3.93 the performance appraisal stated that the appellant cannot be trusted with responsibility and that he cannot take any constructive and positive decisions. A show-cause notice has been issued on 23.6.1993 and censure was imposed. Another recovery order has been passed against the appellant during December, 1992 and the appellant preferred an appeal to the appellante authority and it has been up-held. However, even though the appellant has been censural and orders of recovery were made upto 1.10.1993, his probationary period was extended by order dated 1.10.1993 Annexure-D upto 31.3.1994 Soon after the extension of the probationary period, a show-cause notice seems to have been issued on 6.12.1993 for recovery of certain shortage and an order of recovery has been made on 8.2.1994 Closely following this order, on 31.3.1994 Annexure-G seems to have been passed. The last paragraph of the order is extracted below:—

“Sri Y.N Krishna Murthy was appointed as Asst., Sales Officer in the Company of 3 years contract. The contract period would be treated as probationary period and the management had the discretion to extent the probationary period. Due to various circumstances as narrated above his probationary period came to be extended upto 31.3.1994 The post of ASO in the company is a responsible position. The ASO functions in charge of any one of the show-rooms of the Company and is fully incharge of the stocks, cash and all other valuables of the Company in the show-rooms. At any point of time the approximate value of such stock in Rs. 20 lakhs. Therefore, the position of ASO is one of trust and responsibility. The ASO is also required to exercise coordination with his superiors in the Marketing Division in Head Office and also with his sub-ordinate sales staff in the showroom with a view to maximise sales. The ASO is entrusted with a fair amount of discretion in dealing with customers, and hence he is expected to be vigilant in the performance of his duties and in taking due care of the stocks entrusted to him. A perusal of the confidential reports of Sri Y.N Krishna Murthy and also the correspondence between him and the Head Office in the past several years reveals that Sri Y.N Krishna Murthy is not suitable for the post of ASO. Although Sri Y.N Krishna Murthy was addressed more than once to imporve his work and his probation was extended to give him an opportunity, he has not done so.

Hence, Sri Y.N Krishna Murthy is discharged from service w.e.f 31.3.1994 (A.N).”

8. In my view, if the order is read as a whole, it cannot be said the order is an order of termination simpliciter. Surely, in my view a stigma is cast on the appellant. Though the earlier portion of the order narrates punishments imposed on the appellant and the appraisal reports with regard to the appellant towards the end of order Annexure-G the respondent has stated about the functions and duties of the Assistant Sales Officer and has held that the appellant is not suitable for the post of Assistant Sales Officer. This, is my view is enough to hold that the order is not an order of termination pure simpliciter but, it has been passed only by way of punishment.

9. The law with regard to discharge of probationer has been dealt with by the Supreme Court in the case of Samsher Singh v. State of Punjab. The Supreme Court has held as follows:—

“No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.

Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequancy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation”.

The Supreme Court has referred the case of Jagdish Mitter v. Union of India . AIR 1964 SC 449. wherein the Supreme Court has held that a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment. It has also been held that substance of the order and not the form would be decisive. (See K.H Phadnis v. State Of Maharashtra† . . 1971 1 SCC 790. Krishna lyer, J., in a concurring judgment has held as follows:—

“Thus we see how membranous distinctions have been evolved between an enquiry merely to ascertain unsuitability and one held to punish the delinquent too impractical and uncertain, particularly when we remember that the machinery to apply this delicate test is the administrator, untrained in legal nuances. The impact on the ‘fired’ individual, be it termination of probation or removal from service, is often the same. Referring to the anomaly of the object of inquiry, test, Dr. Tripathi has pointed out:

The object of inquiry rule discourages this fair procedure and the impulse of justice behind it by insisting that the order setting up the inquiry will be judicially scrutinised for the purpose of ascertaining the object of the inquiry. Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however harmlessly the order may be phrased: And so, this sphinx-complex has had to give way in later cases in some cases the rule of guidance has been stated to be ‘the substance of the matter’ and the ‘foundation’ of the order. When does ‘motive’ trespass into ‘foundation’? When do we lift the veil of form to touch the substance? When the Court says so. These ‘Freudian’ frontiers obviously fail in the work-a-day world and Dr. Tripathi's observations in this context are not without force. He says:

“As already explained, in a situation where the order of termination purports to be mere order of discharge without stating the stigmatizing results of the departmental enquiry a search for the ‘substance of the matter’ will be indistinguishable from a search for the motive (real, unrevealed object) of the order.

Failure to appreciate this relationship between motive (the real, but unrevealed object) and from (the apparent, or officially revealed object) in the present context had led to an unreal interplay of words and phrases wherein symbols like ‘motive’ substance, ‘form’ or ‘direct’ parade in different combinations without communicating precise situations or entitles in the world of facts.”

10. In the case of Anoop Jaiswal v. Government of India, the Supreme Court has held as follows:—

“The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2). 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. Case law discussed.

Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation which is the basis or foundation for the order for the purpose of determining its character. If on reading the two together the Court reaches the conclusion that the allaged act of misconduct was the cause of the order and that but for the incident it would not have been passed then it is inevitable that the order of discharge should fail to the ground if the servant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.

11. In the case of State of Haryna v. Jagdish Chander the Supreme Court had an occasion to consider an order of discharge. The Supreme Court has referred to the order of discharge in that case and held:

“The order of discharge reads thus:

“Const. Jagdish Chander No. 3/460 is hereby discharged under PPR. 12.21 with immediate effect i.e 1.6.92 A.N as he is unlikely to prove an efficient police officer because he is habitual absentee, negligent to his duty and indisciplined”.

It would thus be clear from the order of discharge that it is not an order of discharge simpliciter. On the other hand, the S.P considered the record and found him to be habitual absentee, negligent to his duty and indisciplined. The findings of habitual absentee and indiscipline would necessarily cast stigma on his career and they would be an impediment for any of future employment elsewhere. Under those circumstances, the principles of natural justice do require that he should be given an opportunity to explain the grounds on which the S.P proposes to pass an order of discharge and then to consider the explantion submitted by the Police Officer. Then The S.P is competent to pass appropriate orders according to the rules. Since this part of the procedure had not been adopted, the order of discharge is vitiated by manifest error of law.”.

12. In the case of Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar, the Supreme Court distinguished the case reported in (1984) 2 SCC 369 : AIR 1984 SC 636 cited supra and held as follows:—

“On behalf of the respondent reliance was placed on the case of Anoop Jaiswal v. Government of India. (1984) SCR 453 : ((1984) 2 SCC 369 : AIR 1984 SC 636). In that case the service of the appellant had been terminated during the period of probation. On the materials on record, it was held by this Court that the order of termination really amounted to punishment because the real foundation of the action against the appellant was the act of misconduct on June 22, 1981. The aforesaid judgment is of no help to the respondent because in that case a clear finding was recorded by this Court that the service of the appellant had been terminated because of a particular misconduct alleged against him which had never been enquired into. So far the facts of the present case are concerned, the Governing Council examined the different reports in respect of the respondent during the period of probation and considered the question as to whether he should be allowed to continue in the service of the Institute. The decision appears to have been taken by the Governing Council on the total and overall assessment of the performance of the respondent, in terms of the condition of the appointment and Rule 4 aforesaid”.

13. The Supreme Court in this case has held, the principle of tearing of the veil for finding out the real nature of the order shall be applicable only in the case where the Court is satisfied that there is a direct nexus between the charge so leveled and the action taken. Infact, the Counsel for the respondent relied upon heavily on this case, in support of his contention.

14. In the case of Oil and Natural Gas Commission v. Dr. Md. Siskander Ali, the Supreme Court up held the order of termination simpliciter when the work of the probationer was found not satisfactory. The Supreme Court has held as follows:—

“When the short history of the service of the probationer appointed in a temporary post clearly showed that his work had never been satisfactory and he was not found suitable for being retained in service and that was why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him and in these circumstances, if the appointing authority considered it expedient to terminate the services of the probationer it could not be said that the order of termination attracted the provisions of Article 311, when the appointing authority had the right to terminate the service without assigning any reasons. In such a case even if misconduct, negligence, inefficiency might be the motive or the inducing factor which influenced the employer to terminate the services of the employee a power which the employer undoubtedly possessed, even so as under the terms of appointment of the employee such a power flowed from the contract of service, termination of service could not be termed as penalty or punishment. Further adverse remarks in the assessment roll and recommendation therein to extend the probationary period could not be said to indicate that the intention of the appointing authority was to proceed against the employee by way of punishment.”

15. In the case of Union of India v. P.S Bhatt, reversion to the original post from the appointment of higher post on probation hag been up-held by the Supreme Court on the ground that no stigma has been cast.

16. The Supreme Court had an occasion to consider the meaning of stigma in the case of Allahabad Bank Officers Association v. Allhabad Bank, The Supreme Court has held as follows:—

“It will, therefore, be necessary to first consider what is meant by stigma and also the cases wherein the order have been regarded as stigmatic. Stigma, according to the dictionary meaning is something that detracts from the character or reputation of a person, a mark, sign etc., indicating that something is not considered normal or standard. It is a blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame and mark or label indicating deviation from a norm. In the context of an order of termination or compulsory retirement of a Government servant stigma would mean a statement in the order indicating his misconduct or lack of integrity.

The Supreme Court has observed, whether the statement in the order is stigmatic or not will have to judged by adopting the test of how a reasonable person would read or understand it.

17. In the case of Bhishan Lal Gupta v. State of Haryana, the Supreme Court has observed as follows:—

“It is impossible to lay down propositions which are so clear cut as to cover every conceivable case. Indeed, an attempt to do so may make the law too rigid. It is only if patent facts disclose a serious enough infringement of law as well as indubitably damaging and underserved consequences upon a petitioner that the court's conscience could be so moved as to induce it to interfere under Article 136 of the Constitution”.

18. From principles laid down by the Supreme Court in all these cases cited supra, it is clear that it is impossible to lay down propositions which are so clear cut as to cover every conceivable case. As observed by the Supreme Court in Bhishan Lal Gupta v. State of Haryana which has been extracted above, the order Annexure-G in my view has to be interfered with by this Court. It is also to be stated, in all the cases decided by the Supreme Court the order of termination will be of two lines. The Supreme Court in all these cases had tried to look at the real reason by looking into the records to find-out whether it is an order of termination simpliciter or not. But on the facts of this case, a reading of Annexure-G in my view clearly will give any reasonable person an impression that the order is not an order of termination simpliciter. I am not for a moment suggesting that the narration of event alone i.e what has happened prior to the order of termination will make it an order of punishment. A reading of the whole order as I have already stated, especially the last paragraph clearly cast a stigma on the appellant. In my view the reputation of a probationer to some degree is affected if such an order is passed by an employer. So, in my view the order passed in this case Annexure-G by the respondent-Corporation cannot be held to be an order of termination simpliciter, but it cast stigma on the appellant. It has also been stated, the order of discharge and the references made in the order are inseparable and it cannot be said that it does not cast stigma on the appellant. The result is, the impugned order Annexure-G is quashed and set aside.

The registry is directed to place this opinion of this Court before my lord Chief Justice for further posting of this case before the appropriate bench.

This Writ Appeal filed under Section 4 of the Karnataka High Court Act, praying to set aside the order dt. 19.7.1994 passed in W.P No. 9752/1994.

This Writ Appeal coming on for orders this day, the Court made the following:

CJ/SRBJ:

1.10.1996

In view of difference of opinion, the appeal was referred to a third Judge for his opinion. He has agreed with the judgment of the Chief Justice dated 12.9.1996 This appeal shall therefore, stand disposed of in terms of the directions contained in the judgment of the Chief Justice.