The Judgment of the Court was delivered by

Venkatachala, J.:— By consent of learned Counsel, this appeal was treated as having been posted for hearing and we heard them.

2. This appeal is from the order of Malimath, J., dismissing Writ Petition No. 14439. The petitioner herein has presented this appeal and for the sake of convenience, he will hereinafter be referred to as “the employee”.

3. The facts material for the purpose of this appeal, are these: The Karnataka State Road Transport Corporation thereinafter referred to as ‘the Corporation’) by its order dated 13th June 1978 (produced as Exhibit-A1 in the writ petition), appointed who employee as a conductor on promotion for a period of six months. The order of appointment stipulated, inter alia, that his service was liable to be terminated without notice if he was found not suitable for the post during the period or his probation and that during such period, he would be governed by the regulations of the Corporation. Though that specified period of six months' progation, expired on 13th November 1978, an order of the Corporation extending the period of his probation by another 6 months (produced as Exhibit-B in the writ petition), was made only on 8th February 1979. However by its notice dated 9th February 1979 (produced as Exhibit-C in the writ petition), was made only on 8th February 1979. However by its for alleged misconduct. But, that enquiry was not pursued; instead, an order dated 22nd September 1979 (produced as Exhibit-D in the writ petition) was made by the Corporation, the material portion of which read:

“you were appointed as a conductor on probation for a period of 6 months with effect from 13th May 1978 B.N Vide D.E.O, cited above.

You were cautioned and given chance to show improvement in your work but as you have not been able to show adequate improvement, I am sorry to inform you that I have found you not suitable for the job for which you were appointed.

You may be suitable for some other job but have not been found suitable for the above post to which you were employed on probation.

Hence you are hereby DISCHARGED from, the service with immediate effect”.

4. The above order of discharge was impugned in the writ petition which was dismissed by the learned single Judge, who held thus:

“…… this is a case in which the entire service records of the petitioner were taken into account and that the charge memo of 9th February 1979 containing certain imputations of misconduct was not the foundation for the impugned order”.

5. In this appeal, the arguments of Shri S.K Venkataranga Iyengar, Learned Counsel for the employee, ran thus; Though the employee was appointed by the Corporation as a probationer he stood confirmed automatically with the expiry of the period of probation; thereafter he was not liable for discharge on the footing that he continued to be a probationer; even assuming that he continued to be a probationer, such discharge, in the background of the disciplinary enquiry on charges of misconduct, was to be regarded as one by way of punishment: such an order of punishment could not have been made without affording the employee an opportunity of defending himself against such charges and that hence, the impugned order of discharge was unsustainable.

6. Shri H.G Balakrishna, learned Counsel for the Corporation, on the contrary, argued thus: The employee was appointed on probation; he continued to be a probationer in the absence of an express order confirming him; the mere efflux of the specified period of probation did not result in his automatic confirmation and hence the impugned order was one of discharge simpliciter made in terms of his appointment and the Regulations of the Corporation; such discharge could not be regarded as being by way of punishment merely because a formal disciplinary enquiry had commenced against him; the alleged misconduct for which a disciplinary enquiry had been commenced only constituted the motive for such discharge and did not form its foundation; and when the order by which he was discharged from service did not, ex-facie, show that it was by way of punishment, the Court should not delve into the records of the Corporation to find out whether such discharge was by way of punishment.

7. In the light of the arguments of learned Counsel, the points which arise for our decision, are:

(i) Whether the employee continued to be a probationer even after the expiry of the period of probation specified in the order of his appointment;

(ii) Whether the order impugned in the writ petition was ex-facie an order of discharge simpliciter or an order of dismissal;

(iii) Whether the commencement of a disciplinary enquiry against the employee for alleged misconduct, was by itself, sufficient to hold that the order discharging him was by way of punishment;

(iv) Whether the Court can delve into the records of the Corporation to ascertain whether such discharge was really by way of punishment; and

(v) Whether, in the present case, delving into the records of the Corporation is warranted.

We shall now deal with these points seriatim.

Point (i):

8. Though the period of probation specified in the order appointing the employee, expired on 13th November 1978, he was continued in service without any express order confirming him. Neither the order of his appointment nor the Regulations of the Corporation governing conditions of service of its employees, did provide for an automatic confirmation of an employee on the expiry of the period of probation specified in the order of his appointment. The Regulations also do not contain any time limit beyond which the period of probation of an employee cannot be extended. As to what is the legal position of an employee in such a situation has been elucidated by the Supreme Court in State of Punjab v. Sharm Singh . 1968 3 S.C.R 1. as follows:

“This Court has consistently held that when a first appointment, ……….is made on probation for a specified 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 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”.

9. In view of the above statement of law, we hold that the employee, in the instant case, continued to be a probationer on the date of his discharge.

Point (ii):

10. The order impugned in the writ petition stated that the employee was discharged from service and it did not say that he was dismissed from service. It did not cast any stigma on the employee nor does it visit him with evil consequences nor does it make any specific reference to any misconduct on his part. No doubt, it was stated in the order that in spite of being cautioned and being given a chance, the employee did not show any improvement in his work, Reference made to non-improvement in work of the employee, in the order of discharge, cannot, in our opinion, be regarded as one casting any stigma on the employee nor as visiting him with evil consequences nor as one founded on misconduct, so as to render that order as one by way of dismissal. Hence, the order impugned in the writ petition, was, ex-facie, an order of discharge—and not an order of dismissal.

Point (iii):

11. Prior to the discharge of the employee, admittedly, a disciplinary enquiry into alleged misconduct had been initiated against him. But, such enquiry was abandoned. Whether abandonment of a disciplinary enquiry against a temporary employee necessarily transforms a subsequent order of termination of his service into one of dismissal, has been considered by a Bench of five Judge of the Supreme Court in A.G Benjamin v. Union of India . 1967 S.I.R 185.. The Supreme Court's elucidation of the law on the point is:

“……We do not accept the contention of Counsel for the appellant that once the formal departmental proceedings have been initiated it is not open to the authority concerned to drop them and to take the alternative course of discharging the temporary government servant in terms of the contract of service or the relevant statutory rule. It is possible that the authority takes the view that the stigma of the order of dismissal should be avoided in the individual case. As we have already said, the appropriate authority possessess two powers to terminate the services of a Government servant. It can either discharge him purporting to exercise its power under the terms of contract or the relevant rule ………………………………….”.

12. It is undisputed that the law applicable to discharge from service of a temporary servant (employee) is equally applicable to discharge of a probationer.

13. In the light of the above enunciation by the Supreme Court, we hold that the abandoned formal disciplinary enquiry which had been commenced against the employee, by itself, is not sufficient to regard the impugned order of his discharge as one of dismissal.

Point (iv):

14. As pointed out by Shah, J., (as he then was) in S.R Tewari v. The District Board, Agra . A.I.R 1964, S.C 1680., it is well settled that the form of the order determining the service of an employee is not conclusive of its true nature and it is always open to the Court before which such order is challenged, to go behind such order and ascertain its true character. Further, if the Court finds that the order though, in form, appears as one determining the employment but is in reality a cloack for an order of dismissal as a matter of punishment, the Court would not be debarred, merely because of the form of the order from giving protection to the employee against such order of dismissal. Shortly put, the Court can tear the veil and find out the real character of the order determining the service, that is; whether or not it is by way of punishment.

15. It is well settled that if the termination of service of a temporary employee or probationer is founded on the right flowing from contract of service or the rules, then, prime facie, the order by which such termination is made, cannot be regarded as being by way of punishment as it carries with it no evil consequencies. Even if misconduct, negligence, inefficiency or other disqualification of the temporary employee or probationer is the motive or the inducing factor for the employer to exercise the right of termination, than also the order of such termination cannot be regarded as one made by way of punishment. But, if misconduct, negligence, inefficiency or other disqualification forms the foundation of the order of termination of a temporary employee or probationer, then it would be one by way of punishment. Therefore, when an order of termination of a temporary employee or probationer is challenged alleging that it is by way of punishment, eventhough in form it does not so appear, the Court will have to find out by probing into the records of the case of the temporary employee or probationer, whether his misconduct, negligence, inefficiency or other disqualification has formed the motive or the foundation for such order of termination because if it is found to be the former, it will be an order of discharge simpliciter carrying with it no evil consequences while if it is found to be the latter, it will be by way of punishment carrying with it the evil consequences.

16. Even so, the question is when would the Court be justified in probing into the records of the employee or the probationer to find out whether his misconduct, negligence or inefficiency was the motive or the foundation for the impugned order of discharge or termination of service.

17. In I.N Saksena v. State of Madya Pradesh . A.I.R 1967 SC 1264. a Bench of Two Judges of the Supreme Court said that when, in the impugned order, there are no express words which cast a stigma on the Government servant, the Court would not delve into the Secretariat files to discover whether some kind of stigma could be inferred on such research. This view was reiterated by a Bench of three Judges of the Supreme Court in State of Uttar Pradesh v. Ramachandra Trivedi . 1976 4 SCC 52. Therein, the Supreme Court found fault with the High Court for probing into the Departmental correspondence that passed between the superiors of the respondent employee to arrive at the finding that the impugned order was passed by way of punishment.

18. The above view was reiterated by Untwalia, J., in the following observations in State of Maharastra v. V.R Saboji . 1979 4 SCC 466:

“Ordinarily and generally the rule laid down in most of the cases by this Court, is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such cases, there is no presumtion that the order is arbitrary or malafide unless a strong case is made out and proved by the Government servant who challenges such an order.”

However, Pathak, J., in his separate but concurring judgement, put the legal position in a slightly different way at page 50:

“In a given case, the Government servant may succeed in making out a prima facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official records for the purpose of determining the truth. It is in such a case generally that the official records may be called for by the Court. It is in not open to the Court to send for the official records on a mere allegation by the Government servant that the order is by way of punishment. For unless there is material on the record before the Court in support of that allegation, an attempt by the Court to find out from the record whether the termination of service is based on the unsuitability of the Government servant in relation to the post held by him or is in reality an order by way of punishment will in effect be an unwarranted attempt to delve into the official records for the purpose of determining the nature of the order on the basis of a mere allegation of the Government servant. On a sufficient case being made out on the merits before the Court by the Government servant it is open to the Court to resort to scrutiny of the official records for the purpose of verifying the truth. I am unable to see why the Court should decline to peruse the official records in an appropriate case and why, where considerations of privilege and confidentiality do not suffer, the information set forth in the records should not be made available to the Government servant. The mere possibility that the official records could confirm what the Government had set out to prove and prima facie, had, indeed proved should not shut out disclosure of the information”.

The above exposition of the law on the point, his Lordship made it clear, did in no way detract from what was laid down in State of Uttar Pradesh v. Ramachandra Trivedi . 1976 4 SCC 52. Referring to that case, His Lordship said:

“The Court did deprecate there the act of the High Court in probing into the departmental correspondence that passed between the superiors of the Government servant for the purpose of determining whether the impugned order was passed by way of punishment. But it does not appear from the facts recited in that case that the Government servant had made out any case that the impugned order had been made by way of punishment and that on the claim being disputed by the State it was necessary to ascertain whether, the case sought to be proved by the Government servant stood rebutted or confirmed by the departmental correspondence. I am unable to spell out from the judgment any absolute rule enunciated by this Court that where the order terminating the services of a temporary or a probationary Government servant is ex-facie an order of termination simpliciter, the Government servant is barred from establishing that it is in fact an order by way of punishment, and that on the Government servant succeeding in establishing it to be so the Court is prohibited from examining the official records for the purpose of verifying the true position”.

19. The legal position, which, therefore, emerges from the aforesaid decisions of the Supreme Court on the point, may be summed up thus:

The Court should not upon the employer to produce the records of the employee relating to the determination of his service for its scrutiny merely on an allegation of the employee that his discharge from or termination of service, was by way of punishment. But, when the employee makes out a prime facie case that the, order of his discharge or termination was by way of punishment, the court should not decline to call upon the employer to produce such records and examine them to find out whether such order is, in reality, an order by way of punishment.

Point (v):

20. As stated earlier the order impugned in the writ petition was one of discharge simpliciter and did not show, ex-facie, that it was based or founded on any misconduct on the part of the employee. It did not cast any stigma. The circumstance that a disciplinary enquiry was started against him and was later abandoned before making the impugned order, could be regarded only as the motive or inducing factor on the part of the Corporation for having made such order. That circumstance, by itself, in our view, is not sufficient to constitute a prima facie case as would require as to call upon the Corporation to produce before us its records relating to the determination of Service of the employee to enable us to examine whether the order of discharge impugned in the writ petition, was really made by way of punishment.

21. In the result, we uphold the order of discharge of the employee and dismiss this appeal.

22. However, in the circumstances of this appeal we direct the parties to bear their own costs.