1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE T.M.NADAF WRIT PETITION NO.31971 OF 2024 (S-CAT) BETWEEN: SRI. KARIYAPPA. G 36 YEARS, S/O SRI. GAVIRANGAPPA, OCCN: LOWER DIVISION CLERK, 515 ARMY BASE WORKSHOP, BENGALURU - 560 008 (UNDER ORDERS OF TERMINATION) RESIDING AT: D-135, NORTH 3RD LANE, ITI COLONY, DOORVANINAGAR, BENGALURU - 560 016. PERMANENT RESIDENT NEAR BANASHANKARI TEMPLE, ST COLONY, AVARAGERE, DAVANGERE TALUK & DISTRICT PIN CODE: 577 003. ...PETITIONER (BY SRI P A KULKARNI, ADVOCATE) AND 1 . UNION OF INDIA BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, DHQ PO, NEW DELHI - 110 011 2 2 . DIRECTORATE GENERAL OF EME (CIV), MASTER GENERAL OF ORDNANCE'S BRANCH, INTEGRATED HQ OF MOD(ARMY) DHQ PO, NEW DELHI - 110 010. 3 . COMMANDANT AND MANAGING DIRECTOR, 515 ARMY BASE WORKSHOP HALASURU, BENGALURU - 560 008. 4 . COMMANDER, BASE WORKSHOP GROUP, C/O 56 APO, MEERUT CANTT.(UP): 900 468 RESPONDENTS (BY SRI. B.PRAMOD, CGSC FOR R1-R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT/ORDER/DIRECTION QUASHING THE ORDER DATED 28/03/2024 IN O.A.170/28/2022, ANNEXURE-A PASSED BY CAT BENGALURU BENCH, BENGALURU AND ALLOW THE PRAYER MADE IN THE OA 170/28/2022, IN THE INTEREST OF JUSTICE AND EQUITY, ETC THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.02.2025 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, T.M. NADAF J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE V KAMESWAR RAO AND HON'BLE MR. JUSTICE T.M.NADAF 3 CAV ORDER ( PER: THE HON’BLE MR JUSTICE T.M.NADAF ) Assailing the order passed by the Central Administrative Tribunal in Original Application No.170/00028/2022, the petitioner is in this writ petition before this Court seeking the following reliefs: a) “Issue a writ in the nature of certiorari or any other writ/order/direction quashing the order dated 28.03.2024 in OA 170/28/2022, Annexure-A passed by CAT Bengaluru Bench, Bengaluru and allow the prayer made in the OA 170/28/2022, in the interest of justice and equity. b) Pass any other order or direction that this Hon’ble Court may deem it fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity.” 2. The relevant facts in brief leading to the case are as under: An offer of appointment as Lower Division Clerk (for short ‘LDC’) (S/Tribe CAT) was issued to the petitioner on 08.01.2018. It is germane to quote paragraph Nos.5 and 6 of the said appointment order, which reads as follows: “5. Your appointment will be on purely temporary basis and subject to verification of certificates produced. If subsequent verification proves any of the certificates to be false, the appointment will be terminated forthwith. You will be on 4 probation for a period of two years from the date of appointment. If your service is not found satisfactory during your probationary period, your services are liable for termination without notice under the provisions of Rule 5 of CCS (Temporary Service) Rule 1965. 6. On satisfactory completion of the probationary period you will be retained in service as “Lower Division Clerk” and your services are liable for termination on rendition of one month’s notice either side.” 3. The petitioner reported to duty and an appointment order vide Annexure-F, was issued by respondent No.3, appointing the petitioner provisionally as LDC in a temporary capacity w.e.f., 17.01.2018. 4. It is the case of the petitioner that he worked for about 1 year, 8 months smoothly. In October 2019, an officer by name Lt.Col.Neeladhri Roy was posted to P&PC Department and immediately trouble began to the applicant. Lt.Col.Roy would always target the petitioner for the reasons best known to him and was ill- treating the petitioner because of the fact that the petitioner belonged to Scheduled Tribe. Since the petitioner was under probationary period, he withstood all the insults as he did not want to give room for any serious consequences. 5 5. A complaint comes to be lodged by the said Lt.Col.Roy on 16.11.2019, followed by a preliminary enquiry on 10.12.2019 resulting in issuance of a show-cause notice on 10.02.2020. The petitioner responded to the same on 21.02.2020. Not satisfied with the reply, a memorandum comes to be issued on 08.09.2020 to the petitioner, proposing to hold an enquiry under Rule–14 of CCS (CCA) Rules 1965. The petitioner submitted his defense statement on 17.09.2020. The same was not accepted and a regular enquiry was held. Subsequent to the completion of the enquiry, an enquiry report was submitted by the then Investigating Officer and same was forwarded to the petitioner on 16.08.2021 for his information. 6. In the said enquiry report, it was found that “all these actions of the petitioner amounts to misconduct and misbehavior of unbecoming a Government servant”. The Appointing Authority also issued an order of penalty on 06.10.2021, which has been served on the petitioner through Establishment Officer on 07.10.2021. The punishment imposed reads as under: “Reduction to lower stage of pay by one stage from Rs.21,700/- to Rs.21,000/- for a period of one year with effect from 06.10.2021 with further direction that he will not earn increment of pay during the said period and reduction will not have effect on postponing his future increment of pay.” 6 7. Aggrieved by the said order of penalty, the petitioner preferred an appeal before the respondent no.4 on 30.10.2021. It is the further case of the petitioner that his probation has been extended upto 16.01.2022 and as his probation was not declared during the said period, he made a complaint to SC/ST Cell. It is his further contention that though the appeal before the fourth respondent reached its conclusion, the third respondent issued an order of termination dated 16.12.2021, under Rule-5, Sub-Rule-1 of CCS (Temporary Services) Rules 1965, terminating the petitioner from the post. 8. Assailing the same, the petitioner approached the Central Administrative Tribunal (hereinafter called as ‘Tribunal’ for short) in O.A. No.170/00028/2022. 9. The contention of the petitioner before the Tribunal was that the order of termination is not a termination simpliciter, but finds its roots in the enquiry held against him, on the complaint of Lt.Col.Roy, as contended in his application grounds at para No.5.2. It was the specific contention of the petitioner that the respondents have initiated disciplinary proceedings under Rule-14 of CCS & CCA Rules, 1965 and have imposed penalty on the applicant. In those 7 circumstances, the termination order cannot be treated as one passed as simpliciter but punitive and caused stigma founded on the order of penalty. Therefore, the termination order is liable to be quashed. To buttress his arguments, he had relied on the judgment of Hon’ble Apex Court in the case of Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta And Others1 in his grounds at para No. 5.3, which reads as follows: (A) “Constitution of India, Article 14 – Probationer – Termination during probation – Whether an order of termination of a probationer is punitive or not depends upon whether the allegations cause of termination are the motive or foundation of the order – Where the findings arrived at in an inquiry conducted at the back of an employee without holding regular enquiry are the basis of simple order of termination, such allegations and findings are to be treated as foundation of the order and the order is vitiated. (B) Constitution of India, Article 14 – Probation – Stigma – Termination during probation – Whether the reasons would cast a stigma and affect the future career of the employee in getting employment depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer – if it leads a person to believe that there was something wrong with the employee as regards his conduct or character, it will certainly cast a stigma – it is not necessary that words amounting to stigma must be contained 1 AIR 1999 SC 1983 8 in the order of termination itself but may be contained in the enclosures, documents or proceedings referred to therein – Findings of preparation of false bills and misbehavior with women based on a formal enquiry are stigmatic. (C) Constitution of India, Article 14 – Probationer – Natural Justice – Stigmatic order of termination of probationer based on formal enquiry by show cause notice without holding regular enquiry into the allegations of misconduct – order held vitiated – Findings arrived at by such formal Committee cannot be used for terminating the services of a probationer.” On these contentions, he prayed before the Tribunal to allow his application. 10. Respondents appeared and filed their written statement contending mainly that – “b) During the probationary period, the petitioner was provided with multiple opportunities in terms of changed work environment & an opportunity to work under different Initiating Officers (four) in various departments inside 515 Army Base Workshop for unbiased assessment as well as guidance for improving his performance. He was finally administratively terminated from service on 16 Dec 2021 solely on the basis of his unsatisfactory Probationer's Assessment Reports and Performance Improvement Advisories. Despite the best efforts of respondents through its functionaries at all levels and their effort and time devoted over an extended period of time, the petitioner could not be encouraged enough to even achieve the satisfactory level of performance in the establishment. 9 c) The administrative termination of the Applicant was solely based on scrutiny of Probationary Assessment Reports and Performance Improvement Advisories of the individual after multiple opportunities to the Applicant in terms of changed work environment and different reporting officers for unbiased guidance and assessment over the maximum period of probation extended possible. d) The Applicant's misconduct was enquired into and culminated in the award of penalty for that specific instant of misconduct post proper disciplinary proceedings, as per extant rules. The aforesaid penalty was appealed under provisions of CCS (Conduct) Rules 1965 and the penalty imposed was confirmed by the Appellate Authority on 16.04.2022. This correction in conduct was desirable towards facilitating and maintaining discipline in the establishment and was without any prejudice whatsoever to the lack of performance or unsatisfactory performance of the Applicant. e) Various advisories were given to the Applicant on account of his unsatisfactory performance at various specific instances during his service. Opportunities were given to the Applicant in terms of change of work environment and different reporting officers for an unbiased assessment as well as guidance for improving his performance. Full opportunity was accorded to the Applicant with the hope that the Applicant shall make due efforts to improve through maximum extension of probation. f) The administrative termination of the Applicant was done only after proper scrutiny of his entire memo of service through probationary assessment reports and Performance Improvement Advisories at the end of the maximum extended probation period due to unsatisfactory performance and 10 inability to improve despite change in working environment, change in reporting officers for guidance and assessment to obviate any kind of biases whatsoever. g) EME Records vide their letter dated 04.12.2021 intimated that "on perusal of assessment report in respect of Shri Kariyappa G, it is found that the individual is not meeting the criteria for confirmation" and advised 515 Army Base Workshop to take action as per DoP&T O.M. dated 21.07.2014. Accordingly, the service of LDC, Shri Kariyappa G was administratively terminated on 16.12.2022 based on the Probationers Assessment Report initiated by the different Assessing/Recording Officers in different sections of 515 Army Base Workshop on the performance of his trade work during the probationary period and Performance Improvement Advisories issued to the applicant.” 11. The respondents have relied mainly upon the judgments of the Hon’ble Apex Court in the case of Radhey Shayam Gupta vs. U.P.State Agro Industries Corporation Limited2, and Devendra Joshi Vs. Union of India3 and several other judgments including Chanpaklal Chimanlal Shah Vs. UOI, and in the case of Director, Aryabhatta Research Institute of Observational Sciences & An Vs Devendra Joshi & Ors4, wherein the Hon’ble Apex Court held that - 2 (1999) 2 SCC 21 3 (2011) SCC Online Utt 26 4 (2018) 15 SCC 73 11 “Termination at the end of probation period without imputing any misconduct in termination order – no stigma attached and thus termination order was not punitive.” 12. Relying on these, it was contended by the respondents, that the order of termination at Annexure-G is an order of termination simpliciter, purely on the basis of assessment of appraisal report submitted by the different Officers, under whom the petitioner was placed to serve for improvement in his performance and advisories. Further, contended that the enquiry on the basis of the complaint lodged by Lt.Col.Roy resulting in penalty against the petitioner has nothing to do with the order of termination. 13. The Tribunal after considering the arguments of the respective counsels, the pleadings and documents placed on record by either side has dismissed the application quoting the following reasons:- “10. The contention of the applicant that he was performing his duties to the complete satisfaction of the respondents, cannot be countenanced keeping these advisories in view. He has performed under control of four different officers in this period who have separately given assessment reports regarding his performance. A perusal of these assessment reports also indicates that the applicant partially met the requirements of the job on most parameters and these reports indicated an average or below average performance. 12 11. The applicant has contended that he was being specifically harassed by one Officer namely Lt. Col Niladri Ray. The applicant has further alleged that he has been imposed a punishment as well as has suffered termination of his services, consequent to this harassment. His specific contention is that his termination cannot be held to be a termination simpliciter but is an additional penalty imposed on him in addition to the penalty already imposed on him for his alleged misconduct against Lt. Col Niladri Ray. 12. The documents submitted by the respondents indicate that the applicant has been punished for his alleged misconduct separately, for which a penalty of reduction to lower stage by one stage for a period of one year has been imposed on him. This penalty has also been confirmed by the Appellate Authority on 16.4.2022. However, the reason for the termination of his services is due to the adverse reports by his assessing officers as well as the advisories issued to him during his probation period. These reports and advisories are not connected with his alleged misconduct against Lt. Col Niladri Ray. 13. The contention of the applicant that he has been terminated from services due to the alleged misconduct does not carry weight and is difficult to accept, keeping in view the fact that his performance has been adversely noted on various occasions during his entire probationary period. 14. A probationer who is not making satisfactory progress or who shows himself to be inadequate for the service in any way is required to be informed of his shortcomings well before the expiry of the original probationary period so that he can make special efforts at self-improvement. Issuance of the advisories 13 to the applicant confirm that this has been done by the respondents repeatedly. 15. Despite repeated advisories, the applicant was found lacking in making satisfactory progress. Under the Rules, if it appears to the Appointing Authority, at any time, during or at the end of the period of probation that a Government servant has not made sufficient use of his opportunities or is not making satisfactory progress, the Appointing Authority may revert him the post held substantively by him immediately preceding his appointment, provided he hold a lien thereon or in other cases may discharge or terminate him from service. 16. The Central Civil Services (Temporary Service) Rules, 1965 have the following provisions relating to termination of temporary service:- 5. Termination of temporary service. (1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant; (b) the period of such notice shall be one month. Provided that the services of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month 14 17. The termination order issued by the respondents in the present case is under the proviso below rule 5(1)(b) of Rule 5 of CCS (Temporary Service) Rule 1965. As provided under these rules, the services of the applicant have been terminated forthwith, with the direction that he shall be entitled to claim a sum equivalent to the amount of his pay and allowances for the period of one month at the same rates at which he was drawing them immediately before the period of termination of his service. There is no reason specifically indicated in the order to show that his services were terminated due to any penalty imposed on him. His termination order should be considered as a termination simpliciter without any stigma.” Dissatisfied with the order passed by the Tribunal, the petitioner is before this Court. 14. Sri.P.A.Kulkarni, learned Advocate appearing for the petitioner submitted his arguments mainly as under: (i) Firstly, the order of termination is not an order of termination simpliciter and it has its genesis in the enquiry held against him (petitioner) on the complaint of Lt.Col.Roy and this is the main reason for his termination, as such, the same carries stigma and gets vitiated. (ii) Secondly, he contends that the summary of probationary assessment reports at para No.12 of the reply statement 15 submitted by the respondents before the Tribunal does not spell out that the petitioner is not fit to continue in the service. The said report contains only the qualities, wherein some were in favour of the petitioner and some were against him. (iii) Thirdly, the final assessment report on the extended period submitted on 24.11.2021, vide Annexure-O, and the order of termination passed within one month thereafter, as such, the same is not sustainable in law. (iv) Fourthly, the order of termination at Annexure-G falls short of Rule-5 of CCS (Temporary Services) Rules, 1965. He would contend that there is no notice of one month as culminated under Rule-5 (1)(b) of CCS (Temporary Services) Rules, has been issued to the petitioner, as such, the order of termination is vitiated. The learned counsel submits that though the order of termination at Annexure-G does not spell out regarding the enquiry or misconduct or otherwise, however, submits that the Court can go beyond the formal order of discharge to find the real cause of action. 16 15. The sum and substance of the contention of the learned counsel is that the termination order is not a termination simpliciter, but it relates back to the enquiry held against him which has resulted in penalty and as such, the same operates as an ‘order punitive’ in nature and carries stigma. To substantiate his contention the learned counsel relied upon the judgment of Hon’ble Apex Court in the case of Anoop Jaiswal vs. Governnent Of India And Another5 and press upon para No.12, which reads as under: “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.” (emphasis supplied by me) 16. Refuting the contentions of the learned counsel for the petitioner, Sri.B.Pramod learned CGSC appearing for respondent Nos.1 to 3 submits that there is no relation between the enquiry 5 (1984) 2 SCC 369 17 held against the petitioner on the complaint of Lt.Col.Roy and the order of termination. On the other hand, both are independent to one another. He further contends that the petitioner was appointed purely on temporary basis as per the offer of appointment dated 08.01.2018, particularly striving on Paras No.5 and 6 of the offer of appointment, stated supra. 17. The enquiry held on the complaint dated 16.11.2019, resulted in punishment of imposing penalty of reduction to lower stage of pay by one stage for a period of one year w.e.f. 06.10.2021. The petitioner was appointed w.e.f. 17.01.2018 in a temporary capacity on probation period of two years. As his performance in the employment was not in line with the one expected from an employee, his probation was not declared. However, to afford an opportunity to correct himself and bring him in line of performance, his probation was extended by one more year, immediately after completion of his probation of two years. During the said period he was placed under different officers with advisories. As there was no improvement in his performance, he was afforded another opportunity by extending the probation period for another year as contemplated under the Rules. That apart, for proper advisory in order to improve his performance in work by 18 verbal counseling, as well as by issuance of written instructions, he was placed to serve under different Officers as under,. “17.01.2018 to 16.01.2019 Col Rajesh Kumar, DGM, P & PC 17.01.2019 to 16.01.2020 Maj Himika Kalyani, DGM, P & PC 17.01.2020 to 16.01.2021 Shri James Joseph, CASO 17.01.2021 to 16.01.2022 Lt Col Vijay Manikandan DGM (SMD)” 18. He further contends that, the order passed vide Annexure-G is not on any enquiry, rather it is purely on the appraisal of reports submitted by all the Officers on the performance of the petitioner under whom his services was placed till his termination. In these circumstances, the order passed by the Tribunal does not call for any interference. 19. He further contends that, the grounds raised by the petitioner falls short against the order of termination vide Annexure-G and not acceptable. At any stretch of imagination, the order of termination does not contain any words which would run against him and stigmatic in nature. The judgment of the Hon’ble Apex Court in the case of Dipti Prakash Banerjee referred to supra goes against the petitioner rather in his favour. He submits that the Hon’ble Apex Court in the said judgment held that - where a finding is arrived at an enquiry conducted, in back of the employee without holding regular enquiry, are the basis of the 19 simple order of termination. Such allegation and findings are to be treated as foundation of the order and the order is vitiated and would result in stigmatic. In the case on hand, the termination order was issued purely on the assessment of Appraisal report submitted by the Officers under whom his services was placed. 20. To buttress his arguments learned CGSC, relies upon the judgment of the Hon’ble Apex Court in the case of State of Punjab and Others vs. Sukhwinder Singh6 and stressed upon para Nos.19 and 20, which reads as under: “19. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the 6 (2005) 5 SCC 569 20 service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong. 20. 20. In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was a habitual absentee during his short period of service and has concluded there from that it was his absence from duty that weighed in the mind of the Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 21 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16-3-1990 was, in fact, based upon misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh v. State of Punjab³ the period of probation gives time and opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules.” (Emphasis supplied by me) 21. We have heard the learned counsels appearing for the respective parties and have given our anxious thoughts to the arguments advanced, pleadings submitted, documents placed and the judgments relied. The only point that emerges for consideration before us is as follows:- 22 “Whether the order of termination at Annexure-G is an innocuous order of termination simpliciter or it is an order camouflaged in termination simpliciter relating its roots to the enquiry held against the petitioner, on the complaint in the year 2019 resulting in punishment, as such, an order punitive and stigmatic in nature and opposed to Rule 5 of Central Civil Services (Temporary Service) Rules, 1965? 22. Though the petitioner is not disputing regarding the extension of the probationary period, but contends that the same was done arbitrarily with an intention to harass him, he was a sincere employee and discharging his work with all sincerity and honesty. But for the best reasons known to the respondents, they have extended the period of probation without any basis, at the instance Lt.Col.Neeladhri Roy resulting in imposition of punishment and during the currency of punishment he was sent out under Rule- 5 of CCS (Temporary Service) Rule 1965. It is the contention of the petitioner that there were no short falls in his performance, as the appraisal reports reproduced at para No.12 of statement of objections were not depicting a level, which compels his removal from service, but the respondents at the instance of Lt.Col.Roy, have held that the performance of the petitioner was not in line which is expected. 23 23. It is the case of the respondents that there is no relation between the enquiry held on the complaint in the year 2019 and the termination simplicter as per Annexure-G. It is the strong case that the order of enquiry is on the complaint of Superior Officer, which has resulted in punishment independently, but the termination order is purely on the appraisal of the performance. He was placed under several officers to serve for a period of four years by extending his probation to afford an opportunity to bring him back in line to the performance as is expected from an employee, however, there was no improvement. Further, it is the contention of the respondents that the petitioner is trying to make an otherwise, innocuous order of discharge of service as one punitive in nature and stigmatic. 24. We are alive to the contentions of the learned counsel for the petitioner that the order of termination is not just a termination simpliciter, but is an order camouflaged in that fashion. It is no doubt true that though the words used in the order of termination may seemingly make the order a termination simpliciter, but the same cannot hold the Court to go beyond the formal order of discharge to find out the real cause of action, if it is made out from the records produced by either side, as it is a question of bread and 24 butter of an individual. This Court cannot shut its eyes but can go through the records to ascertain and satisfy itself as to whether the order is camouflaged in that fashion and is an order punitive and stigmatic in nature or is just an order termination simpliciter. 25. For a better understanding, the entire order of termination at Annexure-G is reproduced hereunder: “ORDER OF TERMINATION OF SERVICE FORTHWITH IN RESPECT OF P.NO.14693275L, LDC, SHRI.KARIYAPPA G In pursuance of para 5 of offer of Appointment letter No.20302/Rect/Est(NIP) dated 08 Jan 2018 and the Proviso to Sub-Rule(1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 and Govt of India, M.H.A, OM No.4/10/66- Ests (C) dated 26 Aug 1967, I Brigadier, Alok Jain, SM, Commandant & MD, 515 Army Base Workshop, hereby terminate forthwith the services of P.No.14693275L, LDC, Shri.Kariyappa G and direct that he shall be entitled to claim a sum equivalent to the amount of his pay and allowances for a period of one moth at the same rates at which he was drawing them immediately before the period of termination of his service. Sd/- Station : Bangalore – 560 008 (Alok Jain) Dated : 16 Dec 2021 Brig 203/14693275L/Est(NIP) Commandant & MD 515 Army Base Workshop For Appointing Authority” 25 26. There is nothing in the said order which suggests that the order is punitive or stigmatic in nature. The wordings used in the said order of termination are very simple and unambiguous. The words used spells out that the order is a termination simpliciter exercising the power by the respondent No.3 - the appointing authority under Rule-5(1) of CCS (Temporary Services) Rules 1965 and Government of India MHA OM No.4/10/66-ESPS(C) dated 26.08.1967. An attempt is made by the petitioner to color an otherwise innocuous order of discharge or termination simpliciter into an order punitive or stigmatic in nature, does not hold any water as there is no such expression in the order suggesting that the order is a result of hidden enquiry as submitted by the petitioner. 27. It is fruitful to refer to the latest judgment of the Hon’ble Apex Court in the case of State of Punjab and Others vs. Jaswanth Singh7 wherein the distinction between an order termination simpliciter and an order punitive/stigmatic in nature has been dealt with by the Hon’ble Apex Court, extensively referring to several earlier judgments. The observations of the Hon’ble Supreme Court reads from para-13 onwards, the same are extracted herein below: 7 2023 Livelaw SC (761) 26 “13. In the case of “State of Punjab and Others Vs. Balbir Singh, (2004) 11 SCC 743”, this Court had an occasion to consider Rule 12.21 of PPR and in paragraphs 5, 7 and 11, this Court observed as thus – “5. Thus, the order of discharge simpliciter, prima facie, is not punitive, it being in terms of Punjab Police Rule 12.21, but the question still is whether the incident which led to the passing of that order was motive or inducing factor or was the foundation of order of discharge. Thus the principle that in order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the “object of the enquiry”. If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simpliciter and not punitive in nature. This principle was laid down by Shah, J. (as he then was) as early as 1961 in the case of State of Orissa v. Ram Narayan Das, (1961) 1 SCR 606 : AIR 1961 SC 177 : (1961) 1 LLJ 552. It was held that one should look into “object or purpose of the enquiry” and not merely hold the termination to be punitive merely because of an antecedent enquiry. Whether it (order of termination) amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry. On the facts of that case, the termination of a probationer was upheld inasmuch as the purpose of the enquiry was held to be to find out if the employee could be confirmed. The purpose of 27 the enquiry was not to find out if he was guilty of any misconduct, negligence, inefficiency or other disqualification. 11. In the light of the above legal position, we will now determine whether, in substance, the order of discharge in the present case is punitive in nature. For this purpose it would be necessary to ascertain, firstly, the “nature of enquiry” i.e. whether the termination is preceded by a full scale formal enquiry into allegations involving misconduct on the part of the respondent, which culminated in the finding of guilt, and, secondly, the “purpose of the enquiry” i.e. whether the purpose of the enquiry is to find out any misconduct on the part of the employee or it is aimed at finding out as to the respondent being unlikely to prove as an efficient police officer.” 14. Similarly, this Court in the case of “Ravindra Kumar Misra Vs. U.P. State Handloom Corporation Ltd. and Another, 1987 (Supp) SCC 739”, while dealing the case of termination of a temporary employee, made a distinction between simpliciter termination and punitive termination applying the test of motive and foundation. This Court clarified the said distinction and observed as under – “6. As we have already observed, though the provisions of Article 311(2) of the Constitution do not apply, the Service Rules which are almost at par make the decisions of this Court relevant in disposing of the present appeal. In several authoritative pronouncements of this Court, the concept of “motive” and “foundation” has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operating motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for 28 every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilized to make the order of termination following such assessment punitive in character. In a large democracy as ours, administration is bound to be impersonal and in regard to public officers whether in government or public corporations, assessments have got to be in writing for purposes of record. We do not think there is any justification in the contention of the appellant that once such an assessment is recorded, the order of termination made soon thereafter must take the punitive character.” 15. In the same context, this Court in the case of “Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and Another, (2002) 1 SCC 520” has reiterated the same principle in the matter of termination of a probationer. It has been observed as thus: “29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking, when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the 29 stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.” 16. After considering the various pronouncements on the similar issue, this Court in the case of Sukhwinder Singh (supra) in paragraph 20 observed as thus: “20. In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was a habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of the Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16-3-1990 was, in fact, based upon misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed 30 in Ajit Singh v. State of Punjab [(1983) 2 SCC 217 : 1983 SCC (L&S) 303 : AIR 1983 SC 494] the period of probation gives time and opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules.” 17. The said judgment has been followed by this Court in the case of Avtar Singh (supra) and in paragraph 11 of the said judgment observed as thus: “11. We have heard learned counsel for the parties. We are in total agreement with the submission of the learned counsel for the State of Punjab that the controversy involved in this case is no longer res integra. Learned counsel appearing for the respondent had drawn our attention to a two-Judge Bench decision of this Court in Prithipal Singh v. State of Punjab [(2002) 10 SCC 133 : 2003 SCC (L&S) 103] . The Court held that once there is stigma, the principle is well settled, an opportunity has to be given before passing any order. Even where an order of discharge looks innocuous, but on a close scrutiny, by looking behind the curtain if any material exists of misconduct and which is the foundation of passing of the order of discharge, or such could be reasonably inferred, then it leaves no room for doubt that any consequential order, even of 31 discharge, would be construed as stigmatic. The decision in Sukhwinder Singh [(2005) 5 SCC 569 : 2005 SCC (L&S) 705] was given by a three-Judge Bench and in view of that decision in 2005, there is no scope for this Court to take a different view. We are squarely bound by the said decision.” 18. In view of the principles as reiterated in various judgments by this Court, if we examine the facts of the case in hand leading to the order of discharge, then it is crystal clear that respondent plaintiff was appointed as a constable and joined the duties on 12.11.1989 on probation. During probation, while he was on training, he along with other trainee constables was deputed for law and order duty in Amritsar District on 24.11.1990. Respondent-plaintiff and other recruits were relieved from the said duty and reported back at the Training Centre, except respondent plaintiff, who remained on prolonged absence without any intimation to the Training Centre. The S.P., Training Centre, vide memorandum dated 21.02.1991, made a recommendation to S.S.P. that the respondent-plaintiff had not shown any interest in the training and lacks sense of responsibility, further recommending that he is unlikely to prove himself as a good and efficient police officer, hence, he may be discharged under Rule 12.21 of PPR. From perusal of the said Rule, it is apparent that in case a probationary constable is found unlikely to prove an efficient police officer, he may be discharged by the Senior Superintendent of Police at any time within three years from the date of enrolment. The S.S.P. relying upon the recommendation of the supervising officer (S.P., Training Centre) formed an opinion that the probationary constable is found unlikely to prove an efficient police officer owing to his demeanour as reported and discussed herein above. 32 19. In our considered view, all the three Courts misconstrued Rule 12.21 of PPR and decreed the suit filed by the respondent plaintiff. Looking to the contents of the order of discharge, in the considered opinion of this Court, there is no foundation of misconduct alleged in the order and it is an order of simpliciter discharge of a probationer constable. The judgment in the case of Ratnesh Kumar Choudhary (supra) relied upon by the respondent is of no help for the simple reason that in that case, the initial appointment was alleged to be illegal based on a vigilance report which was on record. Thereafter, notice was issued on the anvil of the said vigilance report which contained serious allegations and in the said peculiar situation, the Court found that the termination was not simpliciter, but it was punitive 20. Similarly, in the case of Amar Kumar (supra), wherein the Court found that the appellant therein had instigated to do commotion/agitation/protest and also raised slogans by spreading false rumours in connection with the death of one of the trainees, which was the foundation to pass the order for termination. Thus, in the said case, the Court was of the opinion that the order of termination cannot be simpliciter. In both the cases as referred above, the allegation of serious misconduct is common, unlike in the instant case, wherein, the foundation of discharge is not on any serious allegation or act of misconduct. The discharge order was passed on the recommendation of the concerned supervisory authority of the Training Centre due to prolonged absence from training without any intimation. The authority found that the probationer constable has no interest in training, and no sense of responsibility, hence, he cannot prove himself a good, efficient 33 police officer. In view of above discussion, both the referred cases are distinguishable on facts. 21. For the reasons discussed above, we are of the considered opinion that the view taken by the High Court and also by the two courts below is completely erroneous in law and must be set-aside. The appeals are accordingly allowed. The judgments and decree passed by the High Court and also by the first appellate Court and Civil Judge (Jr. Division) are set- aside, and the suit filed by the respondent-plaintiff shall stand dismissed. No order as to costs. 28. From the aforesaid judgment, it is clear that to hold that an order of termination to be framed as punitive in nature, there must be some relative foundation of misconduct or enquiry hidden or conducted on the back of the employee has to be traced out, to hold that the order is punitive or stigmatic in nature and not an order of termination simpliciter. If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simpliciter and not punitive in nature. 34 29. A Co-ordinate Bench of this Court in Writ Petition No.16160/2024 decided on 13.09.2024, in the case of Sri Pramod Kumar M. K VS. The Registrar, Karnataka State Administrative Tribunal And Another, held that if an order of termination of a probationer is not found on misconduct, the same cannot be considered as stigma. This Court in the said judgment from para – 6 onwards holds as under: “6. We have examined the material placed before the Court. A perusal of the same makes it clear that the petitioner was appointed as Watchman by the first respondent vide per order dated 27th January 2016 and was placed on probation for a period of two years as provided under Rule 3 of Karnataka Civil Service (Probation) Rules, 1977. Subsequently, by order dated 27th January 2018, probationary period of the petitioner was extended by an year on the ground that the conduct of the petitioner was not satisfactory. An opportunity was provided to the petitioner with a view to improve the probation. However, the petitioner has not shown any improvement in the period of probation. On the contrary, the petitioner remained absent for duty on 29th and 30th July 2018. In this regard, a show-cause notice was also issued to the petitioner and the petitioner has submitted his explanation. But same was not considered by the employer and the petitioner was discharged from service stating that the work of the petitioner was not satisfactory even after extending the period of probation and the petitioner was not entitled to hold the post. After passing the said order, the petitioner 35 filed review petition before the Chairman of the Tribunal. The review petition came to be rejected by order dated 23rd October 2018. In the review order, it is observed that the order of discharge is a "discharge simplicitor" as the misconduct is not reflected in the order. By relying on the decisions of the Hon'ble Apex Court, the Tribunal has rightly observed that purpose of placing a person on probation is to train him during the probationary period, so also, to assess his suitability for appointment. The Registrar of the Tribunal extended the period of probation of the petitioner by one year as services of the petitioner was not satisfactory. Even thereafter, the petitioner did not show any improvement. The show cause notice came to be issued to the petitioner as he remained absent for duty without intimation or without the consent of authorities, for which the petitioner has submitted his explanation. The petitioner was discharged from service vide order dated 06th August, 2018. 7. On examination/consideration of material placed before the court, we do not find any error or legal infirmity in the order passed by the Tribunal. The decisions relied upon by the learned Counsel for the petitioner has also been considered by the Tribunal while passing the detailed order. Further, the Tribunal has also observed that the order passed by the first respondent is not a punitive order as the same is passed discharging a probationer. The same is also affirmed by the Chairman of the Tribunal in Review Petition by Order dated 23rd October 2018. 8. The Hon'ble Supreme Court in the case of DIRECTOR ARYABHATTA RESEARCH INSTITUTE OF OBSERVATIONAL SCIENCES AND ANOTHER v. DEVENDRA JOSHI AND OTHERS reported in (2018)3 SLR 125 (SC) has observed 36 that where in the order of termination a probationer is not founded on misconduct, then the same cannot be considered as stigma. It is therefore necessary to consider whether the instant case is a termination of probationer as a termination on allegation of misconduct. It is an admitted fact that the initial period of probation was not found to be satisfactory and the probation was extended. During the extended period also, the services of the employee was not found satisfactory. A reading of the order would show that it is a termination simplicitor and does not cast any stigma on the petitioner. Following the declaration of law made by the Hon'ble Supreme Court, as the order of termination of the petitioner is simplicitor in nature, we are of the view that the decision taken by the respondent No.2 herein, is justified in passing the impugned order dated 24th April, 2024. In the result, writ petition is dismissed as devoid of merits.” 30. From the paragraphs extracted hereinabove, the point on termination simpliciter is well settled. In the case on hand, the petitioner was appointed on probation in 2018 on an initial period of probation for two years. The extension provided under the appointment rules is in total four years. It is on record that the petitioner has been placed under service of several officers during the said period with advisories, oral as well as written to improve himself in performance of duties attached to his employment to bring him in line with performance. However, consistently as there 37 was no improvement in the performance, has ultimately resulted in termination of service. We find no exception could be taken than the one held by the Tribunal in its order impugned herein, on the facts and circumstances of the present case. 31. The petitioner made a feeble attempt to stress upon that there was no notice of one month as contemplated under Rule- 5(1)(b) of CCS (Temporary Services) Rules 1965, as such the order at Annexure-G gets vitiated. A proviso provided to the said Rule clarifies the situation that the services of a Government servant may be terminated forthwith on payment of a sum equivalent to the amount of his pay plus allowances for the period of the notice, at the same rates at which he was drawing them immediately before his termination of services, or, as the case may be, for the period by which such notice falls short of one month. 32. On the query to the question as to whether the petitioner has been paid one month’s salary and the allowances as contemplated under proviso to Rule-5(1)(b) of CCS (Temporary Services) Rules 1965, the learned Counsel fairly admitted that the petitioner had been paid the said salary as well as the allowances as contemplated in the Rule. In these circumstances, the submission of the learned Counsel that there was no Notice of one month issued 38 as per Rule 5(1) (b), which has the effect of vitiating the order of termination vide Annexure-G, does not hold any water as the Proviso to the said Rule dilutes the same. 33. After going through the entire records we feel that there is no connection between the inquiry on misconduct held against the petitioner and the order of termination due to short fall in performance during probation. Both are independent and have no bearing on each other. It is on record that though the enquiry has been initiated on the complaint during 2019, but the probation period has been continuously extended even thereafter to the maximum of 4 years including the initial 2 years, to provide an opportunity to the petitioner to correct himself in his performance and bring him in line. As there was no improvement, the respondents having no other way terminated his service purely on the appraisal report submitted by all the Officers under whom he was made to serve. Following the judgments of the Hon’ble Supreme Court as well as the judgment of the coordinate bench of this Court, supra, we find that the order of termination vide Annexure–G to the petition is an innocuous termination simpliciter in nature and justified in terms of law. The Tribunal has extensively considered the case of the petitioner on pleadings, as well as records, placed before it and rightly dismissed the application as 39 devoid of merits. We could not take any exception to the order of the Tribunal and agree with the same. In the result, the petition fails and is liable to be dismissed. 34. Though the petitioner is liable to be put on costs for dragging the matter to this court despite his failure in his performance and alleging that the respondents have colored the punitive order into a termination simpliciter, but for the fact that he was out of service since 2022, we refrain us from the same. 35. For the reasons stated supra we pass the following: ORDER i) Writ petition is dismissed as devoid of merits. ii) In the facts and circumstances of the case, costs made easy. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (T.M.NADAF) JUDGE JJ List No: 1, Sl.No.64 CT: BRS