- 1 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 7135 OF 2023 (S-RES) BETWEEN: SMT NALANAMMA AGED 49 YEARS, W/O SRI. J.P. MAHESH, EX-TEMPORARY DATA-ENTRY OPERATOR, OFFICE OF THE THASILDAR, ARKALGUD TALUK, HASSAN DISTRICT – 573 102. MOB. 9902505309. …PETITIONER (BY SRI. K. B. MURALIDHAR, ADVOCATE) AND: 1. DIRECTOR OF SOCIAL SECURITY AND PENSION REVENUE DEPARTMENT, 5TH FLOOR, KANDAYA BHAVANA, K.G.ROAD, BANGALORE – 560 009. 2. THE DEPUTY COMMISSIONER, HASSAN DISTRICT, HASSAN – 573 102. 3. THE THASILDAR, ARKALGUD TALUK, HASSAN DISTRICT – 573 102. 4. SRI. S. ANVESH, AGED 28 YEARS, WORKING AS TEMPORARY DATA-ENTRY OPERATOR, OFFICE OF THE THASILDAR, ARKALGUD TALUK, HASSAN DISTRICT – 573 102. …RESPONDENTS (BY SRI. G. RAMESH NAIK, AGA FOR R1 TO R3; SRI. SAMPANGI RAMAIAH, ADVOCATE FOR R4) Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 THIS W.P. IS FILED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER AS AT ANNEXURE-R DATED 03.03.2023 PASSED BY THE R1 IN NO.DSP- EST/51/2022 AND ETC., THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, petitioner seeks for the following reliefs:- “(a) Issue of a writ of Certiorari or any other writ or order or direction as the case may be, quash the impugned order as at Annexure-R, dated 03.03.2023, passed by the 1st Respondent, in No.:DSP-EST/51/2022; (b) Issue of a writ of Mandamus or any other writ or order or direction as the case may be direct the respondents 1 and 3 to permit the petitioner to re-join to duty as data entry operator in the office of the 4th Respondent, in the place in which the petitioner was working and pay her salary due to her. (c) Grant such other relief or reliefs as this case may be, as this Hon’ble Court deems fit in the circumstances of case, in the interest of Justice.” 2. Heard learned counsel for the petitioner, learned AGA for the respondent Nos.1 to 3 and learned counsel for respondent No.4 and perused the material on record. - 3 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 3. A perusal of the material on record will indicate that the petitioner was working as a Data Entry Operator in the respondent No.3 - Office by way of outsourcing from Keonics. The petitioner was on leave from 07.08.2019 to 06.09.2019. According to the petitioner, she was on medical leave on account of her surgery and she had intimated the same to the respondent. It is contented that subsequently, the respondent did not take the petitioner back to duty and instead terminated the services of the petitioner on the ground of unauthorised absence, which was challenged by the petitioner before this Court in W.P.No.1359/2020, which was disposed of by this Court as hereunder: “The petitioner is before this Court praying for a writ of mandamus to direct the respondents 1 and 3 to permit the petitioner to rejoin duty as Data Entry Operator in the place of the 4th respondent. 2. Heard Sri Pramod R., learned counsel for the petitioner and Sri T.P. Srinivas, learned Principal Government Advocate for respondents 1 to 3. Respondent No.4 has remained absent. Perused the writ petition papers. 3. Learned counsel for the petitioner would submit that the petitioner was appointed as Data Entry Operator on 01.01.2010 in the 3rd respondent Office on out source from Keonics. It is stated that the petitioner was on medical leave, - 4 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 which was sanctioned by the 3rd respondent-Tahsildar. Petitioner was issued with show cause notice alleging absence and the petitioner was terminated from duty as Data Entry Operator by 3rd respondent-Tahsildar. Against which the petitioner is said to have filed a representation before the 1st respondent-Director of Social Security and Pensions, Revenue Department. The Director issued letter dated 19.11.2019 (Annexure-J) to the 1st respondent–Deputy Commissioner, and forwarded the material made available by the petitioner such as leave sanction letter, medical certificate, directing to conduct enquiry and take action to reinstate the petitioner into service. The petitioner is before this Court seeking for a direction to implement Annexure-J dated 19.11.2019. Learned counsel for the petitioner would submit that the 3rd respondent/Tahsildar has no jurisdiction to terminate the service of the petitioner and moreover, he submits that the petitioner went on leave on sanction by the 3rd respondent-Tahsildar. Further he submits that the petitioner had undergone surgery and in that regard she had also submitted medical certificate. Since the Director had directed to conduct enquiry and reinstate the petitioner into service, the learned counsel would pray for implementation of the said direction. 4. Per contra, learned counsel for the respondents would submit that the petitioner was not discharging her duties properly and intermittently she was remaining absent. Therefore, show-cause notice (Annexure-R-1) dated 09.02.2018 was issued. Further he submits that Annexure- R2 was also addressed to the 1st respondent-Deputy - 5 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 Commissioner by the 3rd respondent-Tahsildar, informing that petitioner was not discharging her duties properly. It is also submitted that after termination of services of the petitioner, the 4th respondent was appointed as Data Entry Operator from 14.08.2019. Therefore, he submits that there is no merit in any of the contentions of the petitioner. He submits that the 1st respondent / Deputy Commissioner has addressed a detailed letter dated 20.12.2019 Annexure-R5 with regard to the conduct of the petitioner and subsequent appointment of the 4th respondent. It is submitted that the Director has not heard the 3rd respondent or the 1st respondent-Deputy Commissioner before issuing direction as per AnnexureJ dated 19.11.2019. Therefore, he submits that the petitioner would not be entitled for any relief sought for in the writ petition. 5. The petitioner has not placed on record his appointment order. Annexure-A is certificate issued by the 3rd respondent-Tahsildar which would indicate that the petitioner was working as a Data Entry Operator on out source basis from KEONICS Limited. The petitioner remained absent and for the said absence show cause notice was issued in terms of Annexure-R1. Thereafter, it is seen that the petitioner services are dispensed, against which the petitioner is said to have made representation before the Director of Social Security and Pensions, Revenue Department. The Director of Social Security and Pensions, Revenue Department, vide Annexure-J dated 19.11.2019 directed the 1st respondent-Deputy Commissioner to direct the Assistant Commissioner to - 6 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 conduct enquiry and to take action to reinstate the petitioner. The Director has not heard the parties i.e., the petitioner as well as the respondent Nos.1 and 3 before issuing such a direction. Without issuing notice and hearing the respondents the Director could not have issued Annexure-J letter dated 19.11.2019. No action adverse to a party could be taken without hearing such person, and if not heard it would be violative of principles of natural justice. The Director ought to have heard the version of the respondents before arriving at any conclusion. Therefore, it would be necessary for the Director to reconsider the entire issue. Hence the following order :- a. The petitioner is permitted to submit fresh representation within 15 days from today. b. The Director of Social Security and Pensions, Revenue Department to hear the grievance of the petitioner as well as the version of respondents 1 and 3 and take a suitable decision in the matter. With the above, the writ petition stands disposed of.” 4. As can be seen from the aforesaid order passed by this Court, this Court permitted the petitioner to submit a fresh representation and further directed the respondents to hear the petitioner and comply with the principles of natural justice and thereafter, take a suitable decision in the matter. Subsequent to the - 7 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 aforesaid order passed by this Court, the petitioner submitted a representation dated 17.02.2023 at Annexure- M, which culminated in the impugned order, whereby the respondent reiterated the earlier order thereby terminating the services of the petitioner on the ground of unauthorised absence. Aggrieved with the impugned order, petitioner is before this Court by way of the present petition. 5. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner invited my attention to the impugned order in order to point out that though the same is styled as an order of discharge, in substance, the impugned order was not an order of discharge simpliciter, but it was a punitive order which carried a stigma and thereby requiring / warranting compliance of principles of natural justice including conducting necessary enquiry in this regard in view of the specific allegation made by the respondents in the impugned order wherein it is stated that the petitioner had committed misconduct of unauthorised absence during the aforesaid period dated 07.08.2019 to 06.09.2019. It is therefore submitted that the impugned order purporting to discharge of the petitioner from service being punitive and stigmatic - 8 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 in nature, the impugned order deserves to be set aside and the petitioner be reinstated into service and the respondents be directed to conduct necessary enquiry and thereafter, pass appropriate orders in this regard. It is also submitted that since the said post where the petitioner was working has been subsequently occupied and one Sri.S.Anvesh - respondent No.4 is working in the said post, the petitioner may be reinstated and given an appropriate alternative posting till completion of enquiry and passing of orders as stated supra. 6. In support of his submission, he places reliance upon judgments of the Co-ordinate Bench, the Hon’ble Apex Court in the cases of Om Prakash Goel Vs. Himachal Pradesh Tourism Development Corporation Ltd., Shimla and Anr., - (1991) 3 SCC 291 and Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors., - (1999) 3 SCC 60 as well as decisions of co-ordinate Bench of this Court in Dr.Hanumatharaya C., Vs. The State of Karnataka and Anr – W.P.No.10869/2020 dated 30.11.2020 and Nagesh R.D. Vs. The State of Karnataka and Ors – W.P.No.1829/2019 dated 18.01.2023 and decision of this Court (Dharwad Bench) in Sanjay - 9 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 Vs. Commissioner and Mission Director Skill Development and Livelihood Scheme and Ors – W.P.No.103472/2019 dated 18.10.2019 at Annexures- N, Q and P respectively. 7. Per contra, learned AGA for respondent Nos.1, 2, and 3 and learned counsel for respondent No.4 would jointly submit that the impugned order is only an order of discharge simpliciter and therefore, the question of conducting enquiry would not arise in the facts and circumstances of the instant case and the petition is liable to be dismissed. 8. Before averting to the rival contentions, it is necessary to extract the impugned order at Annexure-R, which is as under: “PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÁªÀiÁfPÀ¨sÀzÀævÉ ªÀÄvÀÄÛ ¦AZÀtÂUÀ¼À ¤zÉÃð±À£Á®AiÀÄ Directorate of Social Securtiy & Pensions, Revenue Department 5£ÉÃ ªÀÄºÀr, PÀAzÁAiÀÄ ¨sÀªÀ£À, PÉ.f.gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ-560009. zÀÆgÀªÁtÂ ¸ÀASÉå: 080-22232040/ 22232012 ¥sÁPïì ¸ÀASÉå: 22232040. ¸ÀASÉå: DSP-EST/51/2022 ¢£ÁAPÀ: 03.03.2023 PÀbÉÃj DzÉÃ±À «µÀAiÀÄ: WÀ£À GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ jmï ¦nµÀ£ï ¸ÀASÉå: 1359/2020, ¢£ÁAPÀ: 27/10/2020gÀ DzÉÃ±ÀzÀAvÉ ²æÃªÀÄw £À½£ÀªÀÄä, »A¢£À ºÉÆgÀUÀÄwÛUÉ qÁmÁ JAnæ D¥ÀgÉÃlgï, ¸ÁªÀiÁfPÀ ¨sÀzÀævÉ ªÀÄvÀÄÛ ¦AZÀtÂ «¨sÁUÀ CgÀPÀ®UÀÆqÀÄ vÁ®ÆèPÀÄ PÀbÉÃj, gÀªÀgÀÄ PÉÆÃjgÀÄªÀ PÀÄjvÀÄ. G¯ÉèÃR: 1. ªÀiÁ£Àå WÀ£À GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ jmï ¦nµÀ£ï ¸ÀASÉå:1359/2020 (S-Res) gÀ DzÉÃ±À ¢£ÁAPÀ: 27.10.2022 - 10 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 2. f¯Áè¢üPÁjUÀ¼ÀÄ, ºÁ¸À£À f¯Éè gÀªÀgÀ ¥ÀvÀæ ¸ÀASÉå:fPÀºÁ/¸Á.¨sÀ.AiÉÆÃ:68/2019-20, ¢£ÁAPÀ: 04.01.2023. 3. vÀºÀ¹Ã¯ÁÛgï, CgÀPÀ®UÀÆqÀÄ vÁ®ÆèPÀÄ, ºÁ¸À£À f¯Éè gÀªÀgÀ ¥ÀvÀæ ¸ÀASÉå: ¸Á.¨sÀ.AiÉÆÃ 01/2018-19, ¢£ÁAPÀ: 11.01.2023. 4. ²æÃªÀÄvÀÄ £À½£ÀªÀÄä, CgÀPÀ®UÀÆqÀÄ vÁ®ÆèPÀÄ, ºÁ¸À£À f¯ÉègÀªÀgÀ ªÀÄ£À« ¢£ÁAPÀ: 09.11.2022. ***** ¥Àæ¸ÁÛªÀ£É: ²æÃªÀÄw £À½£ÀªÀÄä, »A¢£À ºÉÆgÀUÀÄwÛUÉ qÁmÁ JAnæ D¥ÀgÉÃlgï, vÀºÀ¹Ã¯ÁÛgï PÀbÉÃj, CgÀPÀ®UÀÆqÀÄ, ºÁ¸À£À f¯Éè EªÀgÀ£ÀÄß qÁmÁ JAnæ D¥ÀgÉÃlgï ºÀÄzÉÝ¬ÄAzÀ ªÀeÁUÉÆ½¹gÀÄªÀ »£Àß¯ÉAiÀÄ°è WÀ£À GZÀÑ£ÁåAiÀÄ®AiÀÄzÀ°è ªÉÄÃ®ä£À« zÁR°¹gÀÄªÀAvÉ jmï ¦nµÀ£ï ¸ÀASÉå:1359/2020 (S-Res) gÀ ¢£ÁAPÀ: 27.10.2022gÀ DzÉÃ±ÀzÀ°è F PÉ¼ÀPÀAqÀAvÉ ¤zÉÃ±À£À ¤ÃqÀ¯ÁVgÀÄvÀÛzÉ. a) The Petitioner is permitted to submit Fresh representation within 15 days from today. b) The Director of Social Security and Pensions Revenue Department to hear the Grievance of the Petitioner as well as the version of respondents 1 and 3 and take a Suitable decision in the matter. With the above the writ petition stands disposed of. ªÉÄÃ°£À DzÉÃ±ÀzÀ£ÀéAiÀÄ PÀæªÀÄPÉÊUÉÆ¼ÀÄîªÀ ¸À®ÄªÁV ¥ÀæPÀgÀtzÀ°è£À ªÁ¢AiÀÄªÀjUÉ °TvÀ ºÉÃ½PÉAiÀÄ£ÀÄß ¤ÃqÀ®Ä ¢£ÁAPÀ: 02.02.2023 gÀAzÀÄ w¼ÀÄªÀ½PÉ eÁjUÉÆ½¹. ¥ÀæwªÁ¢ 1 ªÀÄvÀÄÛ ¥ÀæwªÁ¢ 3 gÀªÀgÀÄUÀ½UÉ «µÀAiÀÄzÀ PÀÄjvÀÄ C©ü¥ÁæAiÀÄ ªÀgÀ¢ ¤ÃqÀÄªÀAvÉ ¢£ÁAPÀ: 07.12.2022 gÀAzÀÄ ¥ÀvÀæ §gÉAiÀÄ¯ÁVgÀÄvÀÛzÉ. 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F «ZÁgÀzÀ°è ²æÃªÀÄw £À½£ÀªÀÄä gÀªÀgÀÄ ¢£ÁAPÀ: 24.10.2019 gÀ°è ¸À°è¹gÀÄªÀ ªÀÄ£À«UÀ¼À£ÀÄß - 12 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 ¥Àj²Ã°¹ vÀºÀ¹Ã¯ÁÝgÀgÀÄ ¸ÉÃªÉ¬ÄAzÀ ªÀeÁUÉÆ½¹gÀÄªÀÅzÀÄ ¸ÀÆPÀÛªÁVgÀÄªÀÅzÁV w½AiÀÄ¥Àr¹ C¥ÀgÀ f¯Áè¢üPÁjUÀ¼ÀÄ ºÁ¸À£À f¯Éè gÀªÀgÀÄ ¢£ÁAPÀ: 08.11.2019 gÀ°è ²æÃªÀÄw £À½£ÀªÀÄä gÀªÀjUÉ »A§gÀºÀªÀ£ÀÄß eÁjUÉÆ½¸À¯ÁVgÀÄªÀÅzÁV ªÀiÁ»w ¤ÃrgÀÄvÁÛgÉ. ºÁ° PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀÄªÀ £ËPÀgÀgÀÄ AiÀiÁªÀÅzÉÃ ¯ÉÆÃ¥À«®èzÉ ¸ÀªÀÄ¥ÀðPÀªÁV PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀÄªÀÅzÁV vÀºÀ¹Ã¯ÁÝgï gÀªÀgÀÄ w½¹zÀÄÝ, F ºÀAvÀzÀ°è ²æÃªÀÄw £À½£ÀªÀÄä gÀªÀgÀ CfðAiÀÄ£ÀÄß ¥ÀjUÀtÂ¸ÀÄªÀÅzÀÄ ¸ÀÆPÀÛ«®èªÉAzÀÄ f¯Áè¢üPÁjUÀ¼ÀÄ, ºÁ¸À£À f¯ÉègÀªÀgÀÄ C©ü¥ÁæAiÀÄ ªÀgÀ¢AiÀÄ£ÀÄß ¤ÃrgÀÄvÁÛgÉ. ¥ÀæwªÁ¢-3: vÀºÀ¹Ã¯ÁÝgï CgÀPÀ®UÀÆqÀÄ vÁ®ÆèPÀÄ gÀªÀgÀÄ G¯ÉèÃR(3)gÀ ªÀgÀ¢AiÀÄAvÉ ²æÃªÀÄw £À½£ÀªÀÄä »A¢£À ºÉÆgÀUÀÄwÛUÉ qÁmÁ JAnæ D¥ÀgÉÃlgï gÀªÀgÀ£ÀÄß ¸ÉÃªÉ¬ÄAzÀ ªÀeÁ ªÀiÁqÀÄªÀ ªÉÆzÀ®Ä PÁAiÀÄðªÉÊRj §zÀ¯ÁªÀuÉ ªÀiÁrPÉÆ¼ÀÄîªÀ §UÉÎ ºÀ®ªÁgÀÄ ¨Áj ªÀiËTPÀªÁV w½¹ PÁgÀt PÉÃ½ £ÉÆÃnÃ¸ïUÀ¼À£ÀÄß eÁjUÉÆ½¹ CªÀPÁ±ÀUÀ¼À£ÀÄß ¤ÃrzÀÝgÀÆ AiÀiÁªÀÅzÉÃ §zÀ¯ÁªÀuÉ ªÀiÁrPÉÆ¼ÀîzÉ EgÀÄªÀÅzÀjAzÀ ¸ÀzÀjAiÀÄªÀgÀ£ÀÄß ¸ÉÃªÉ¬ÄAzÀ ªÀeÁUÉÆ½¸À¯ÁVgÀÄvÀÛzÉ. ºÁ° PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀÄªÀ £ËPÀgÀgÀÄ AiÀiÁªÀÅzÉÃ ¯ÉÆÃ¥À«®èzÉ ¸ÀªÀÄ¥ÀðPÀªÁV PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀÄvÁÛgÁzÀÝjAzÀ F ºÀAvÀzÀ°è ²æÃªÀÄw £À½£ÀªÀÄä gÀªÀgÀ CfðAiÀÄ£ÀÄß ¥ÀjUÀtÂ¸ÀÄªÀÅzÀÄ ¸ÀÆPÀÛªÀ®èªÉAzÀÄ C©ü¥ÁæAiÀÄ ªÀgÀ¢AiÀÄ£ÀÄß ¤ÃrgÀÄvÁÛgÉ. f¯Áè¢üPÁjUÀ¼ÀÄ, ºÁ¸À£À f¯Éè ªÀÄvÀÄÛ vÀºÀ¹Ã¯ÁÝgï CgÀPÀ®UÀÆqÀÄ vÁ®ÆèPÀÄ gÀªÀgÀÄUÀ¼ÀÄ ¤ÃrgÀÄªÀ C©ü¥ÀæAiÀÄ ªÀgÀ¢AiÀÄAvÉ CfðzÁgÀgÀÄ vÀªÀÄä PÀvÀðªÀåzÀ°è vÉÆÃgÀÄwÛzÀÝ C±ÀæzÉÝ ºÁUÀÆ EªÀgÀ PÁAiÀÄðªÉÊRj C¸ÀªÀÄ¥ÀðPÀªÁVgÀÄªÀÅzÀÄ PÀAqÀÄ§A¢gÀÄvÀÛzÉ. ²æÃªÀÄw £À½£ÀªÀÄä gÀªÀgÀ °TvÀ ºÉÃ½PÉAiÀÄ°è w½¹gÀÄªÀAvÉ ¢£ÁAPÀ: 06.08.2019 jAzÀ 07.09.2019 gÀªÀgÉUÉ gÀeÉ ¥ÀqÉ¢gÀÄªÀ §UÉÎ vÀºÀ¹Ã¯ÁÝgï gÀªÀgÀ PÀbÉÃj DzÉÃ±ÀªÁUÀ°/C¢üPÀÈvÀ eÁÕ¥À£ÀªÁUÀ°Ã ºÁdgÀÄ ¥Àr¸ÀzÉÃ PÉÃªÀ® vÀªÀÄä gÀeÁ Cfð ªÀÄ£À«AiÀÄ£ÀÄß ®UÀwÛ¹gÀÄªÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ. F J¯Áè CA±ÀUÀ¼À£ÀÄß ¥ÀjUÀtÂ¹ F PÉ¼ÀPÀAqÀAvÉ DzÉÃ²¹zÉ. - 13 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 DzÉÃ±À ²æÃªÀÄw £À½£ÀªÀÄä »A¢£À ºÉÆgÀUÀÄwÛUÉ qÁmÁ JAnæ D¥ÀgÉÃlgï, vÀºÀ¹Ã¯ÁÝgï PÀbÉÃj, CgÀPÀ®UÀÆqÀÄ vÁ®ÆèPÀÄ gÀªÀgÀ PÁAiÀÄðªÉÊPÀj vÀÈ¦ÛzÁAiÀÄPÀªÁV®èªÉAzÀÄ ¸ÉÃªÉ¬ÄAzÀ ªÀeÁUÉÆ½¹ ¸ÀzÀj ºÀÄzÉÝUÉ ªÀÄvÉÆÛ§â qÁmÁ JAnæ D¥ÀgÉÃlgï gÀªÀgÀ£ÀÄß £ÉÃªÀÄPÁwUÉÆ½¹PÉÆArzÀÄÝ ºÁ° PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀÄªÀ £ËPÀgÀgÀÄ AiÀiÁªÀÅzÉÃ ¯ÉÆÃ¥À«®èzÉ ¸ÀªÀÄ¥ÀðPÀªÁV PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀÄªÀÅzÁV ¸ÀA§A¢ü¹zÀ vÀºÀ¹Ã¯ÁÝgï ªÀÄvÀÄÛ f¯Áè¢üPÁjUÀ½AzÀ C©ü¥ÁæAiÀÄ ªÀgÀ¢ ¹éÃPÀÈvÀªÁzÀ »£Àß¯ÉAiÀÄ°è ²æÃªÀÄw £À½£ÀªÀÄä gÀªÀgÀ CfðAiÀÄ£ÀÄß ¥ÀÄgÀ¸ÀÌj¸ÀÄªÀÅzÀÄ ¸ÀÆPÀÛ«®èªÉAzÀÄ DzÉÃ²¹zÉ. ¤zÉÃ±ÀPÀgÀÄ, ¸ÁªÀiÁfPÀ ¨sÀzÀævÉ ªÀÄvÀÄÛ ¦AZÀtÂUÀ¼À ¤zÉÃð±À£Á®AiÀÄ, ¨ÉAUÀ¼ÀÄgÀÄ” 9. As stated supra, in the earlier round of litigation, this Court took into account the specific contention of the petitioner that enquiry was required to be conducted and specifically directed the respondents to conduct enquiry by issuing notice to the petitioner and hearing him before in compliance of principles of natural justice. In this context, a perusal of the impugned order extracted above will clearly indicate that the same is not an order of discharge simpliciter but the same is punitive/stigmatic inasmuch as the respondents have specifically stated that the petitioner was guilty of misconduct by remaining unauthorizedly absent during the - 14 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 period from 07.08.2019 to 06.09.2019 as a result of which, the major penalty of dismissal has been imposed upon the petitioner. 10. Under identical circumstances, in the case of Om Prakash Goel (supra), the Hon’ble Apex Court held as under: “The petitioner was directly appointed as an Accountant in the Himachal Pradesh Tourism Development Corporation Ltd. (‘Corporation’ for short) on August 28, 1978. He was on probation in the Transport Wing of the Corporation. After training he was transferred to the Office of the Area Manager, Simla and was posted as an Accountant. His conditions of service were governed by the Regulations made by the Board of Directors of the Corporation. The petitioner detected certain irregularities in the Transport Wing and wrote a letter dated June 19, 1980 to the Transport Officer pointing out the financial irregularities and embezzlements committed by the then Cashier. The employees' Union took up the matter and demanded the management to take necessary action and also made some demands on behalf of the Union. The petitioner was the General Secretary of the Union. In April 1980, respondent 2 was posted as the new Managing Director. According to the petitioner he was annoyed with the petitioner because of his union activities. It is stated that the petitioner actively participated in highlighting the demands. On May 13, 1981 an order transferring the petitioner to Dalhousie was passed, even though the petitioner had been earlier granted - 15 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 permission on July 23, 1979 to do his 3 years Law course as an evening student. The petitioner made a representation for cancellation of the transfer on the ground that he was already half way through his legal study and that the transfer was mala fide. Respondent 2 got more annoyed. The petitioner submitted a study leave application for one year. But he was granted only 90 days leave in the first instance with full pay and allowances and later on half pay and subsequently without pay he was granted extraordinary leave. Meanwhile, a charge-sheet was issued on August 21, 1981 framing certain charges. The gravamen of the charges is that while working in the Transport Wing of the Corporation the petitioner facilitated and abetted the embezzlement of Rs 100 by not ensuring that the amount found was in excess and that he failed to serve the Corporation honestly and faithfully. The other charge is that he made some fictitious entries in the Cash Book and the fourth charge is that he made certain information public without the permission of the Managing Director. To this the petitioner submitted a reply stating that all the charges are fake and false. It is stated that the petitioner's leave was cancelled and the petitioner challenged the same in the High Court of Himachal Pradesh but the case was adjourned. Meanwhile the petitioner's services were terminated with effect from January 8, 1982 stating that they are no longer required and one month's pay in lieu of notice would be paid in terms and conditions of his appointment letter and provisions of Staff Regulations of the Corporation. The petitioner challenged the same before the High Court, but - 16 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 the writ petition was dismissed in limine. In this Court it is urged that the termination is only a camouflage and that though the petitioner was still a temporary servant yet the termination amounted to punishment because of the manner in which it was passed and the background behind it. 2. It is not in dispute that the Corporation has power to terminate the services by giving one month's notice or pay in lieu thereof, in the case of a temporary employee who have completed one month's service. Regulation 19(3)(b) reads thus: “19. Termination of service by notice.— (3) The Corporation may terminate the services of any employee by giving him: (a) *** (b) one month's notice, or pay in lieu thereof, in the case of temporary employees who have completed one month's service and one day's notice or pay in lieu thereof in the case of temporary employees in the first month of their services.” Regulation 39 prescribes various penalties that can be awarded and termination of service is one of them. Now the only question that arises for consideration in this case is whether the termination of the petitioner's services is simply one as per the Regulation 19(3) or in the nature of a camouflage and, therefore, amounts to punishment as contended by the petitioner. 3. In Anoop Jaiswal v. Government of India it is held as under: (SCC p. 379, para 12) “[W]here 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 employees.” - 17 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 In Nepal Singh v. State of U.P it is held as under: (SCC p. 61, para 10) “[W]here allegations of misconduct are levelled against a government servant, and it is a case where the provisions of Article 311(2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The court will view with great disfavour any attempt to circumvent the constitutional provision of Article 311(2) in a case where that provision comes into play.” In Jarnail Singh v. State of Punjab it is held thus: (SCC p. 291, para 32) “[W]hen an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the court, in such a case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency, or not.” 4. From the above decisions it can be seen that it is well settled that in a case of an order of termination even that of a temporary employee the court has to see whether the order was made on the ground of misconduct if such a complaint was made and in that process the court would examine the real circumstances as well as the basis and foundation of the order complained of and if the court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoid an enquiry as warranted by Article 311(2) of the Constitution, then such a termination is liable to be quashed. In the abovementioned - 18 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 decisions, the impugned termination order was accordingly quashed. 5. It is not in dispute that a regular charge-sheet was served on the petitioner, as mentioned above, on August 21, 1981 and to the said charge-sheet a list of documents also was appended on the basis of which the articles of charge were framed. The petitioner replied to these charges on September 7, 1981. Without reference to any of the charges or the reply the order of termination was passed on January 8, 1982 as already mentioned. In the counter-affidavit at more than one place it is admitted about the framing of the charges etc. regarding the news item which refers to the information given out by the petitioner. It is stated in the counter-affidavit that services of the petitioner were terminated as a probationer and not on the basis of the enquiry report which came after the services of the petitioner had been terminated. It can therefore be seen that an enquiry, in fact, was contemplated and was held but the report came into light after termination of the services of the petitioner. It is also submitted on behalf of the petitioner that the audit report would show many irregularities as pointed out by the petitioner and that the petitioner acted honestly in pointing out the irregularities. It is not necessary for us to go into this question. Having gone through the various records and also the admissions made in the counter-affidavit, we are satisfied that the termination order, though appears to be innocuous, was only intended to punish the petitioner for the misconduct, in respect of the allegations which are mentioned in the charges that were served on him. After - 19 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 serving the charge-sheet, as a matter of fact, the enquiry was conducted. But before the conclusion of the enquiry the termination order was passed. Therefore it is not difficult to see that the form of the termination order is only a cloak for an order of punishment. 6. In this context, the learned counsel also questioned the termination order from another angle. In that order it is mentioned that the services of the petitioner are no longer required, therefore they are terminated. But from the record it is clear that juniors to the petitioner are retained and they are continuing in service. In the affidavit it is clearly mentioned that juniors whose names are given there are retained in service in violation of Articles 14 and 16 of the Constitution. In the counter-affidavit only a vague reply is given simply stating that the averments made by the petitioner are not correct. In K.C. Joshi v. Union of India it is observed that: (SCC p. 158, para 8) “If it is discharge simpliciter, it would be violative of Article 16 because a number of store-keepers junior to the appellant are shown to have been retained in the service”. Likewise in Jarnail Singh case it was observed as under: (SCC p. 292, para 35) “In the instant case, ad hoc services of the appellants have been arbitrarily terminated as no longer required while the respondents have retained other Surveyors who are junior to the appellants. Therefore, on this ground also, the impugned order of termination of the services of the appellants are illegal and bad being in contravention of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India.” - 20 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 After a careful perusal of the record we are satisfied that the juniors to the petitioner are retained. Therefore on this ground also the termination order is liable to be quashed. 7. Admittedly the petitioner has been practising as a lawyer ever since his services were terminated. In the rejoinder filed by him he merely stated that he was not earning much in that profession and that he has incurred debts. The learned counsel for the Corporation, however, submitted that since the petitioner was admittedly practising as a lawyer the question of granting him back wages in any event does not arise and that even otherwise there cannot be a roving enquiry to the earnings he has made as a lawyer at this distance of time. The petitioner, however, at this juncture filed a further affidavit that his total income from 1985 onwards uptil now was only Rs 15,550 and that he has not received any other income during all these years. It is also submitted on his behalf that in similar circumstances this Court awarded back wages even in a case of an employee who practised as a lawyer from the date of dismissal till his reinstatement. In S.M. Saiyad v. Baroda Municipal Corporation the employee was directed to be reinstated in service by the labour court. Then ultimately on the question of back wages it was urged before this Court that though the appellant was practising as a lawyer after enrolment during that period still he was entitled for back wages. This Court accepted this plea and observed as under: (SCC p. 379, para 4) “The appellant seeks back wages for the period December 12, 1969 to October 26, 1976. This period - 21 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 according to the respondent has to be divided in two parts: (1) from December 12, 1969 to January 20, 1972 when the appellant was enrolled as an advocate, and (2) for the period January 21, 1976 to October 26, 1976 from which date he has already been awarded back wages. It was submitted on behalf of the respondent that the appellant himself has admitted that since his being enrolled as an advocate he was earning Rs 150 per month which aspect must be borne in mind while considering the submission of the appellant for the award of back wages.” Partly accepting this plea this Court ultimately observed that the appellant therein must have at least started earning after a lapse of one year from the date on which he was enrolled as an advocate. Ultimately this Court directed that: (SCC p. 381, para 8) “We, accordingly, allow this appeal and set aside the decision of the High Court refusing the back wages for the period December 12, 1969 to October 26, 1976 and direct that the appellant shall be entitled to back wages including salary and allowances and other benefits to which he would be entitled as if he had continued the service. While making the payment of back wages as per his order the respondent is entitled to deduct the amount of Rs 150 p.m. from January 20, 1973 to October 26, 1976 from the amount which becomes payable to the appellant. The respondent must compute the amount payable as herein directed and pay what becomes payable, to the appellant within a period of two months from today.” It can therefore be seen that this Court did not refuse to grant back wages on the simple ground that the employee was a practising lawyer during the relevant period. But on the other hand it took into account the probable income and after deducting the same the balance of back wages was directed to be computed. 8. In the instant case in the affidavits filed by the petitioner it is stated that he was practising as an income tax advocate ever since his enrolment in October 1982. But, - 22 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 however, he asserted that he got his first brief in the year 1985. These averments are contradicted by the other side. Under these circumstances we cannot make a roving enquiry nor would it be possible for the Corporation to unearth the income which the petitioner would have derived as a practising advocate. There are many imponderables and conjectures too. Under these circumstances we asked both the counsel to suggest a solution. We have heard both the sides on this aspect elaborately. Shri P.P. Rao, learned counsel for the petitioner submitted that even if the relevant period is to be treated as one of suspension pending enquiry the petitioner would have been entitled to the subsistence allowance till his reinstatement. That at least should be the criteria in granting the back wages in a situation like this. We think this is a reasonable and fair suggestion. 9. In the result the termination order is quashed and consequently the petitioner shall be reinstated in service. However, he shall be entitled to the full back wages up to the date of his enrolment as a lawyer which was in the month of October 1982. From the date of his enrolment up to the date of reinstatement he shall be entitled to the back wages at the rate of half of the subsistence allowance per month and the total amount shall be computed on that basis. Out of that the income of Rs 15,550 admittedly earned by him as a practising lawyer shall be deducted and the balance amount shall be paid to the petitioner. The amount so paid to him shall, for the purpose of income tax, be spread over as if derived during those financial years from the date of his dismissal till the date of reinstatement. However, we would - 23 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 like to make it clear that it is open to the Corporation to proceed with the disciplinary enquiry if it so chooses. 10. The special leave petition is accordingly disposed of. In the circumstances of the case there will be no order as to costs.” 11. In the case of Dipti Prakash Banerjee (supra), the Hon’ble Apex Court held as under: “Leave granted. 2. This civil appeal has been filed by the appellant questioning the correctness of the judgment of the Calcutta High Court in MAT No. 1690 of 1997 dated 23-4-1998. By that judgment, the Division Bench affirmed the judgment of the learned Single Judge dated 15-5-1997 in WP No. 8484 (W) of 1997 dismissing the writ petition filed by the appellant, a probationer and refusing to quash the order dated 30-4- 1997, terminating his probation. 3. The facts of the case in brief are as follows: The appellant was appointed on 11-1-1995 as Office Superintendent in the respondent-Organisation, namely, Shri Satyendra Nath Bose National Centre for Basic Sciences, Calcutta. The order of appointment dated 11-1-1995 stated that the appellant would be on probation for one year and that he might be confirmed after one year provided the administration was satisfied with the quality of the appellant's service. His pay scale was to be in the scale of Rs 1400- 1600-2300-2600 with allowances. The appellant joined on 2- - 24 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 5-1995. As we are concerned with the question of validity of the appellant's termination of probation, it is necessary to refer to the events that took place during the period of probation. 4. On 11-12-1995, the Director of the respondent- Organisation informed the appellant that the appellant's work was not satisfactory on several counts. The points mentioned in this letter are as follows: “(i) Your handling of the movement to the new campus was good till the good impression was spoiled by your refusal to handle the furniture in the Director's room and your statements about other administrative staff members, which were not corroborated by the academic members present. Later movement to the JD Block by Professor A. Mookerjee and the Director's office found you non-cooperative. (ii) You have been preparing false bills; the fact that they were passed by your immediate superior does not mitigate your guilt. (iii) Your handling of quotations about cleaning agencies, xerox machines, purchases of stationery etc. were faulty and several times you were told to redo the whole job. Unfortunately, your performance has not improved even after repeated advice. (iv) You have misbehaved with women academic staff members; one of them has even submitted a written complaint. (v) You are rather frequently absent from the office premises and the faculty members complained about your absence. Your handling of the room allocations in the guest house, confirmatory reply to people asking for accommodation, and general supervision have been unsatisfactory. In general, your attitude to office work leaves much to be desired. It is expected that you would rectify the faults noted above and improve your performance in the coming - 25 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 months, so that your confirmation could be favourably considered.” 5. On 30-4-1996, the appellant was informed that he was on probation and his confirmation would be considered soon. On 15-4-1996, the Director wrote another letter stating as follows: “1. It appears that your attitude concerning the guests for the guest house has not shown any improvement. When Dr R. Bhat fell sick with chickenpox and was in quarantine for three weeks, you were nowhere to be seen and the AO was also not seen to take any interest, similarly when a Canadian professor (Professor Dragland) fell sick, you were not to be found. Most of the time, you left the work to be done by others, who had to do extra work for your inefficiency. 2. You have not done a proper job of releasing the houses at DB 17 and CD 85. It is known that the date 31-1-1996 is not the actual date of release of DB 17 and the landlord showed us proof that this was so. 3. You have not explained how the revenue stock verification was done by you and the AO. Please refer to Letter No. SNB/DIR/ADM/95-96/84 dated 20-2-1996 about stock verification (especially numbering and locating new furniture). Has any progress been made? No activity on this important job has been noticed by me. Please report to me on Point 3 by April 16, 1996. Your performance leaves a lot to be desired and you must show evidence of good work to the academic staff members to merit confirmation.” 6. The appellant submitted an elaborate reply of five pages denying all the allegations and giving his version of the incidents mentioned against him, and also sought for a copy of the written complaint given by the woman - 26 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 “academic” staff member. He pointed out that though as per the order of the Director, he was to report to the Administrative Officer, the Director was perhaps sending the above letters without consulting the said Administrative Officer. 7. The report dated 25-4-1996 of the Administrative Officer to the Director gives a contrary version. It states that the appellant was found to be an “excellent working hand, conscientious and willing” to take responsibility, that he had always been discharging his assigned works even despite constraints, that he was regular and punctual and was conducting himself very well in the discharge of his duties even when there was no helping hand and that “his service during the period of probation has been extremely satisfactory”. 8. But the Director issued a further letter dated 30-4- 1996 stating that the appellant's performance during the period of probation had been reviewed and stating that “regrettably, your performance has been far from satisfactory”, that by letters dated 11-12-1995 and 15-4- 1996, his attention had been drawn to various areas of unsatisfactory performance, but no improvement was discernible. It was stated that in order to afford the appellant an opportunity to improve performance and in order to enable the organisation to consider the appellant's case favourably for confirmation, his probationary period was being extended by six months from 2-5-1996. The letter stated that it was hoped that the appellant would improve his - 27 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 performance generally and also in the areas pointed out to him. 9. On 17-10-1996, the Director wrote to the appellant that the appellant's performance in the previous six months was again assessed and that there were “serious deficiencies” as follows: “(i) Your attendance to office work has been irregular and perfunctory. It was found that you had often left the office earlier than the time you signed in the attendance register. (ii) You could not complete the job of stock-taking of the fixed stock, marking of furniture, etc., for the whole Financial Year 1995-96. You were told again (Letter No. SNB/DIR/ADM/96-97/52 dated 11-9-1996) but you tried to avoid work by writing irrelevant notes. There has been no evidence that the work was started for Financial Year 1996-97. (iii) Your complaint of 28-5-1996 against Shri P. Chakraborty, Helper was duly investigated. Your behaviour before the Enquiry Committee was reprehensible. It was confirmed by the Committee that you were involved in the scuffle and did other misdeeds like obtaining false signatures, so that you were characterised as a person of ‘dubious character’. You are guilty of inefficient performance of duty, irregular attendance without permission, rude and disorderly behaviour, and wilful insubordination. Unless your performance improves considerably, it would be difficult to recommend your confirmation. It is expected that you would pay attention to the faults pointed out to you.” 10. The above letter, it will be seen, refers to an enquiry. The counter-affidavit filed by the respondent explains that the said report was given by a High-Level Enquiry Committee on 15-7-1996. The Committee was to - 28 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 deal with the complaint by the appellant against one Shri P. Chakraborty, a partially handicapped person. We get some details of the enquiry report from the counter-affidavit as follows: “(a) In pursuance of a complaint made by the petitioner against Shri P. Chakraborty, a specific enquiry was made on the following questions by a High-Level Enquiry Committee consisting of three high officials, namely, (1) Professor (Smt) Monisha Bose, (2) Dr N. Nayak and (3) Dr D. Gangopadhyay, headed by Professor (Smt) Monisha Bose— (i) Why Shri P. Chakraborty went downstairs, whether he used unacceptable language and whether he was involved in physical assault, and (ii) Whether Shri D.P. Banerjee used provocative language and whether he was involved in physical assault? The petitioner was not very cooperative in the enquiry. The said Enquiry Committee, inter alia, made the following recommendation: Shri D.P. Banerjee was involved in the scuffle and also used Mr Pradip Bose to obtain the false signatures. As such, he should surely be punished. We recommend that a person of such dubious character should not be confirmed.” 11. On 30-10-1996, we have a report of a different kind from the Administrative Officer. That report is totally in favour of the appellant. It states that with reference to the letter dated 17-10-1996, the Administrative Officer had to state that his earlier note dated 25-4-1996 regarding the appellant's performance was obviously not taken into account by the Director, that reports were being called on “selective basis” rather than by standard format applicable to all employees. He stated that the appellant's performance - 29 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 was “exemplary, well mannered and disciplined, he had been discharging his duties conscientiously and diligently”. He referred to some of the specific items of complaint and stated that there was no truth in them. 12. Then comes the second order of extension of probation dated 31-10-1996 from the Director extending the probation by another six months, from 2-11-1996. The appellant was asked to submit an account of his monthly work to Dr Samir K. Pal, who would judge his performance. The appellant was asked to improve his performance. 13. On 29-3-1997, the Director wrote to the appellant that on the basis of Dr S.K. Pal's reports, the appellant's performance in regard to stock-taking or handling quotations was not good and that the appellant must change his attitude to work, avoid neglect of work allotted, avoid carelessness or inefficiency and change his behaviour which often bordered on insubordination. 14. It was in this background that on 30-4-1997, the impugned order of termination was passed. As the case turns also upon the question whether this order is vitiated by “stigma”, it is necessary to extract the body of this letter. It reads: “4. Since the performance during the initial period of probation was not satisfactory, by Letter No. SNB/PER 4 1201/DO-5 dated 30-4-1996, your period of probation was extended by six months from 2-5-1996. 5. By letter dated 17-10-1996, your attention was drawn to unsatisfactory performance and the areas of unsatisfactory performance were brought to your - 30 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 notice. You were advised to improve your performance considerably. 6. Since during the extended period also your performance was not satisfactory, the management was constrained to further extend your period of probation and accordingly by Letter No. SNB/PER 4 1201/DO-100 dated 31-10-1996, your period of probation was extended a further six months. 7. During the period of further extension of probation, you could not improve your performance. 8. We have closely watched and examined your conduct, performance, ability and capacity during the whole period of probation but your performance is found to be unsatisfactory and you are considered unsuitable for the post against which you have been appointed. The period of probation was extended with the expectation that you would improve your performance but there was no improvement in your performance. 9. Under the circumstances, the management is unable to confirm your service in the Centre and as such the management is unable to continue your service on the expiry of the stipulated period of probation on 1-5-1997 and your service shall stand terminated after the close of working hours of 1-5-1997. In case you want to appeal against the decision, you may appeal to the Governing Body of the Centre. 10. You will be paid one month's pay although the contract of employment does not stipulate any such payment.” 15. It is this order of the respondent that was unsuccessfully challenged before the Single Judge and the Division Bench of the High Court. 16. In this appeal, it is contended by Shri Jaideep Gupta, learned counsel for the appellant that the order terminating the appellant's probation is liable to be set aside on two grounds. Firstly, that the findings in the letter of the - 31 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 Director dated 11-12-1995 shows that certain findings arrived at behind the back of the appellant were the foundation of the impugned order; secondly, on the ground that it refers to certain communications by the Director to the appellant which contain material amounting to “stigma” and also because these documents and the record of the case clearly establish that it is a case where certain findings arrived at in a non-departmental enquiry were the “foundation” for the termination and it is not a case where certain allegations against the appellant could be treated as the “motive” behind the order. He contended that the Administrative Officer's reports in his favour were not considered by the Director. The communications to the appellant contained not only certain allegations but clear adverse findings by the Director as well as by a committee and they were the foundation. The differences between the Director and the Administrative Officer led to the appellant being made the scapegoat. 17. On the other hand, learned Senior Counsel for the respondent, Shri P.P. Rao contended that this was a case where the appellant's performance during probation was not satisfactory. The Organisation so informed the appellant during the first one-year period on 11-12-1995 and 15-4- 1996 and he was asked to improve. Thereafter, on 30-4- 1996, his probation was extended giving him an opportunity to improve. During this six-month period, again the Director wrote on 17-10-1996 pointing out his deficiencies and asking him to improve by giving a further extension of probation on 31-10-1996 by another six months. A note was sent on 29-3- - 32 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 1997 to him regarding his deficiencies and finally, the termination order was passed on 30-4-1997. Therefore, the employer acted fairly and there was no question of any stigma in the order nor was it a case where certain findings were arrived at which could be the foundation of the order. If on account of unsatisfactory performance a probation could not be terminated, then it would lead to serious problems for any employer. 18. On the basis of the above contentions, the following points arise for consideration: (1) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive? (2) When can an order of termination of a probationer be said to contain an express stigma? (3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination? (4) To what relief? Point 1 19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab there is no difference between cases where services of a temporary employee are - 33 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 terminated and where a probationer is discharged. This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21 : JT (1998) 8 SC 585] and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India to the concept of “purpose of enquiry” introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das and to the seven- Judge Bench decision in Samsher Singh v. State of Punjab and to post-Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the “motive” and what is the “foundation” on which the innocuous order is based. 20. This Court in that connection referred to the principles laid down by Krishna Iyer, J. in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha . As to “foundation”, it was said by Krishna Iyer, J. as follows: (SCC p. 617, para 53) “[A] termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case, the grounds are recorded in different proceedings from the formal order, does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.” (emphasis supplied) - 34 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 and as to motive: (SCC pp. 617-18, para 54) “54. On the contrary, even if there is suspicion of misconduct, the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge.” (emphasis supplied) As to motive, one other example is the case of State of Punjab v. Sukh Raj Bahadur where a charge-memo for a regular enquiry was served, reply given and at that stage itself, the proceedings were dropped and a simple termination order was issued. It was held, the order of simple termination was not founded on any findings as to misconduct. In that case, this Court referred to A.G. Benjamin v. Union of India where a charge-memo was issued, explanation was received, an enquiry officer was also appointed but before the enquiry could be completed, the proceedings were dropped and a simple order of termination was passed. The reason for dropping the proceedings was that “departmental proceedings will take a much longer time and we are not sure whether after going through all the foundation, we will be able to deal with the accused in the way he deserves”. The termination was upheld. 21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as “founded” on the allegations and will be - 35 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid. 22. In the light of the above principles laid down in R.S. Gupta case we do not think anything more is to be added. Point 1 is decided accordingly. Point 2 23. In the present case before us, the order of termination dated 30-4-1997 is not a simple order of termination but is a lengthy order which we have extracted above. It not only says that performance during probation is not satisfactory but also refers to a letter dated 30-4-1996 by which the period of probation was extended by six months from 2-5-1996, and to letters dated 17-10-1996 and 31-10- 1996. It concludes by saying that the appellant's “conduct, performance, ability and capacity during the whole period of probation” was not satisfactory and that he was considered “unsuitable” for the post for which he was appointed. 24. The contention for the appellant is that if the appellant is to seek employment elsewhere, any new - 36 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 employer will ask the appellant to provide the copies of the letters dated 30-4-1996, 17-10-1996 and 31-10-1996 referred to in the impugned order and that if the said letters contain findings which were arrived at without a full-fledged departmental enquiry, those findings will amount to stigma and will come in the way of his career. 25. In the matter of “stigma”, this Court has held that the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. In the seven-Judge Bench decision in Samsher Singh v. State of Punjab Ray, C.J. observed that if a simple order of termination was passed, that would enable the officer to “make good in other walks of life without a stigma”. It was also stated in Bishan Lal Gupta v. State of Haryana that if the order contained a stigma, the termination would be bad for “the individual concerned must suffer a substantial loss of reputation which may affect his future prospects”. 26. There is, however, considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a “stigma”. The other issue in the case before us is whether even if the words used in the order of termination are innocuous, the court can go into the words used or language employed in other orders or proceedings referred to by the employer in the order of termination. 27. As to what amounts to stigma has been considered in Kamal Kishore Lakshman v. Pan American - 37 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 World Airways Inc. This Court explained the meaning of “stigma” as follows: (SCC p. 150, para 8) “8. According to Webster's New World Dictionary, it (stigma) 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 Third 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.” Similar observations were made in Allahabad Bank Officers' Assn. v. Allahabad Bank. 28. At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das it has been held that use of the word “unsatisfactory work and conduct” in the termination order will not amount to a stigma. 29. We may advert to a few cases on the question of stigma. We shall refer initially to cases where a special rule relating to termination of a probationer required a particular condition to be satisfied and where the said condition was referred to in the order of termination. In Hari Singh Mann v. State of Punjab the probationer was governed by Rule 8(b) of the Punjab Service Rules, 1959 and the fact that the word “unfit” as required by the Rules was used, was held not to be a ground for quashing the order on the ground of “stigma”, for to hold that it amounted to a “stigma” would amount to robbing the authority of the right under the Rule. Similarly, where a rule required a show-cause notice to be issued and - 38 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 an enquiry to be conducted before terminating probation, such as Rule 55-B of the Central Civil Services (CCA) Rules, there would be no question of characterising the simple order of termination as one founded on the allegations which were the subject of the enquiry. That was because, in such a case, the purpose of the enquiry was to find out if the officer was to be continued in service and not to find out if he was guilty (State of Orissa v. Ram Narayan Das , Ranendra Chandra Banerjee v. Union of India). In State of Gujarat v. Akhilesh C. Bhargav the termination order merely referred to Rule 12(bb) of the Indian Police Service (Probationer) Rules, 1959. It was contended that the reference to the said Rule 12(bb) itself amounted to a stigma but this was rejected following Ram Narayan Das case. 30. We shall next advert to some more cases and to particular words employed while passing orders of termination of probationers. In State of Bihar v. Gopi Kishore Prasad a show-cause notice was given seeking a reply to the allegation regarding the officer's bad reputation and in regard to certain perverse decisions given by him in his judicial functions during the period of probation. The termination order stated that certain facts were brought to the notice of the Government about his unsatisfactory work and conduct and that grave doubts had arisen about his integrity which indicated that he was a corrupt and an unreliable officer. It was also said that confidential enquiries revealed that he was a corrupt officer and that annual confidential reports of his superior officer referred to his bad reputation and therefore his work during the period of - 39 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 probation was not satisfactory. The Constitution Bench of this Court held that it was a clear case of stigma and the matter indeed required a full-fledged departmental enquiry under Rule 55 of the CCS (CCA) Rules. In Jagdish Mitter v. Union of India the use of the words “undesirable to be continued” in service was held by the Constitution Bench to amount to a stigma. This case was followed in State of U.P. v. Madan Mohan Nagar where the order said that the officer had “outlived his utility” and such an order was held to amount to a stigma. Jagdish Mitter was approved by the seven-Judge Bench in Samsher Singh case on this point. But in Kunwar Arun Kumar v. U.P. Hill Electronics Corpn. Ltd. the termination order used the word “unsatisfactory” and the same was upheld as it did not amount to a stigma. In two cases arising under industrial law, one in Chandu Lal v. Pan American World Airways and Kamal Kishore Lakshman v. Pan American World Airways Inc. where the termination order used the word “loss of confidence”, the said orders were held to contain a stigma and therefore punitive. In Jagdish Parsad v. Sachiv, Zila Ganna Committee the termination order stated that the officer had concealed certain facts relating to his removal from an earlier service on the charge of corruption and therefore not suitable for appointment. This was held to amount to a stigma. But in Union of India v. R.S. Dhaba where the order merely said “found unsuitable”, it was held not to amount to a stigma. In Allahabad Bank Officers' Assn. v. Allahabad Bank the order was one of compulsory retirement and said that a Special Committee had unanimously recommended for the officer's - 40 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 compulsory retirement, that the Chairman and Managing Director agreed with the Committee's views regarding “want of application to the Bank's work and lack of potential” and that the officer was also found to be not “dependable”. This Court after referring to a number of cases explained that the words “not dependable” were used in the context of the facts of the case and not as an aspersion on his reputation but in relation to his work and were to be understood in that sense in the setting of the words “want of application” and/or “lack of potential”. It was observed: (SCC p. 513, para 19) “Any person reading the letter or the order of compulsory retirement would not be led to believe that there was something wrong with Appellant 2 as regards his conduct or character. They would only indicate that he had ceased to be useful to the Bank in his capacity as a Manager.” Again in High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha it was held that termination of a probationer on the basis of uncommunicated adverse remarks was valid. 31. Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to judge whether the words employed amount to a stigma or not. Point 2 is decided accordingly. Point 3 32. The next question is whether the reference in the impugned order to the three earlier letters amounts to a stigma if those three letters contained anything in the nature - 41 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 of a stigma even though the order of termination itself did not contain anything offensive. 33. Learned counsel for the appellant relies upon Indra Pal Gupta v. Managing Committee, Model Inter College decided by a three-Judge Bench of this Court. In that case, the order of termination of probation, which is extracted in the judgment, reads as follows: (SCC p. 386, para 1) “With reference to the above (viz. termination of service as Principal), I have to mention that in view of Resolution No. 2 of the Managing Committee dated April 27, 1969 (copy enclosed) and subsequent approval by the D.I.O.S., Bulandshahr, you are hereby informed that your service as Principal of this Institution is terminated….” Now the copy of the resolution of the Managing Committee appended to the order of termination stated that the report of the Manager was read at the meeting and that the facts contained in the report of the Manager being serious and not in the interests of the institution, that therefore the Committee unanimously resolved to terminate his probation. The report of the Manager was not extracted in the enclosure to the termination order but was extracted in the counter filed in the case and read as follows: (SCC p. 388, para 3) “It will be evident from the above that the Principal's stay will not be in the interest of the Institution. It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take all this botheration. As such my suggestion is that our purpose will be served by termination of his services. Why, then, we should enter into any botheration. For this, i.e., for termination of his period of probation, too, the approval of the D.I.O.S. will be - 42 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 necessary. Accordingly, any delay in this matter may also be harmful to our interests. Accordingly, I suggest that instead of taking any serious action, the period of probation of Shri Inder Pal Gupta be terminated without waiting for the period to end.” It was held by Venkataramiah, J. (as he then was) (p. 392) that the letter of termination referred to the resolution of the Managing Committee, that the said resolution was made part of the order as an enclosure and that the resolution in its turn referred to the report of the Manager. A copy of the Manager's report had been filed along with the counter and the said report was the “foundation”. Venkataramiah, J. (as he then was) held that the Manager's report contained words amounting to a stigma. The learned Judge said: “This is a clear case where the order of termination issued is merely a camouflage for an order imposing a penalty of termination of service on the ground of misconduct …”, that these findings in the Manager's report amounted to a “mark of disgrace or infamy” and that the appellant there was visited with evil consequences. The officer was reinstated with all the benefits of back wages and continuity of service. 34. It will be seen from the above case that the resolution of the Committee was part of the termination order being an enclosure to it. But the offensive part was not really contained in the order of termination nor in the resolution which was an enclosure to the order of termination but in the Manager's report which was referred to in the enclosure. The said report of the Manager was placed before the Court along with the counter. The allegations in the Manager's - 43 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 report were the basis for the termination and the said report contained words amounting to a stigma. The termination order was, as stated above, set aside. 35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma. 36. It was in this context argued for the respondent that the employer in the present case had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice and this was not a case of unfairness and this Court should not interfere. It is true that where the employee had been given suitable warnings, requested to improve, or where he was given a long rope by way of extension of probation, this Court has said that the termination orders cannot be held to be punitive. [See in this connection Hindustan Paper Corpn. v. Purnendu Chakrobarty, Oil & Natural Gas Commission v. Dr Md. S. Iskender Ali, Unit Trust of India v. T. Bijaya Kumar, Principal, Institute of Postgraduate Medical Education & - 44 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 Research, Pondicherry v. S. Andel and a labour case Oswal Pressure Die Casting Industry v. Presiding Officer. But in all these cases, the orders were simple orders of termination which did not contain any words amounting to stigma. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer's future whatever be the earlier opportunities granted by the respondent-Organisation to the appellant to improve. 37. On this point, therefore, we hold that the words amounting to “stigma” need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Point 3 is decided accordingly. Point 4 38. Under this point, two aspects of the case fall for consideration, firstly, whether the impugned order is founded on any conclusions arrived at by the employer as to his misconduct or whether the termination was passed because the employer did not want to continue an employee against whom there were some complaints. The second aspect is whether there is any stigma in the order of termination or in the documents referred to in the termination order. 39. Taking up the first aspect, we have noticed that during the first one year of probation, a letter dated 11-12- 1995 was served on the appellant. That letter stated, among other things, that the appellant “prepared false bills” and that - 45 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 he “misbehaved with women academic staff members”. The appellant sent a reply denying the allegation and he also sought for a copy of the complaint said to have been given by the lady academic staff member. It is true that subsequently, there were two orders of extension of probation each for six months. But in the impugned order dated 30-4-1997, it was stated in para 8 that the order of termination was being passed because of the “conduct”, performance, ability and capacity of the appellant during the “whole period”. This would clearly take in the facts stated in the letter dated 11-12-1995. It is obvious that findings of preparation of false bills or of misbehaviour with women which ought to be arrived at only in a regular departmental enquiry, were referred to in this letter without any enquiry. It will be noticed that the letter dated 11-12-1995 does not merely say that there are such complaints against the appellant but it says conclusively that the appellant had “prepared false” bills and “misbehaved” with women academic staff members. 40. The above language in the letter dated 11-12- 1995 would clearly imply that this was not a case of any preliminary findings. If these were referred to as mere allegations, it would have been a case of motive. But as these definitive conclusions of misconduct are evident on the face of this letter dated 11-12-1995 and this letter falls within the “whole period”, the conclusion is inescapable that these findings were part of the foundation of the impugned order and it is not a case of mere motive. On this ground, the order requires to be set aside. - 46 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 41. We shall next take up the second aspect relating to stigma. We shall assume that the words used in the impugned order do not contain any stigma. We shall then refer to the three other letters to which the order makes a reference. In the first letter dated 30-4-1996, we do not find anything objectionable. Coming to the next letter, we however find that para (iii) refers to the scuffle between the appellant and one P. Chakraborty regarding which the appellant made a complaint on 28-5-1996. An Enquiry Committee is said to have been appointed and it gave a report. The extract from the report of the Committee dated 15-7-1996 is found in the counter of the respondents. The Enquiry Committee found the appellant's “behaviour reprehensible” and it confirmed that the appellant was “involved in a scuffle and did misdeeds like obtaining false signatures”, and said that the appellant was “guilty of inefficient performance or duty, irregular attendance without permission, rude and disorderly behaviour and wilful insubordination”. Whatever may be said about the other words, the words used in connection with the finding of the Enquiry Committee about the scuffle and about the appellant obtaining false signatures, are, in our opinion, clearly in the nature of a stigma. Further, the Enquiry Committee said he must be “punished”. It did not say that proceedings for disciplinary action were to be initiated. Thus on the ground of “stigma” also, the impugned order is liable to be set aside. 42. It was argued that the appellant was given notice of the above enquiry by the Committee but he was “not cooperative”. In our view, findings arrived at by such an - 47 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 informal committee against the appellant, which committee was, in fact, constituted on a complaint by the appellant against Mr Chakraborty, cannot be used for terminating the appellant's probation, without a proper departmental enquiry. The said findings, in our view, were the foundation for the impugned order among other facts. Such findings must, in law, be arrived at only in a regular departmental enquiry. 43. As pointed out in Bishan Lal Gupta v. State of Haryana an ordinary enquiry by a show-cause might be sufficient for the purpose of deciding whether the probationer could be continued, but where the findings regarding misconduct are arrived at without conducting a regular departmental enquiry, then the termination order will be vitiated. The learned Senior Counsel for the respondent relied upon Hindustan Paper Corpn. v. Purnendu Chakrobarty where it was held that for termination of a “lien”, no detailed enquiry was necessary and that if that be the position, termination of probation stands on a lesser footing. But the case turned upon a special rule in that case which specifically provided that for “termination of a lien”, a regular enquiry was not necessary. That case cannot therefore be of any assistance to the respondents. 44. We do not find anything objectionable in the third letter dated 31-10-1996 but the second letter, as stated above, is clearly objectionable. 45. For the aforesaid reasons, the impugned order is liable to be set aside. - 48 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 46. Learned Senior Counsel for the respondent submitted on the basis of State of Haryana v. Jagdish Chander that merely because an order of termination was set aside on grounds of lack of opportunity, it was not necessary to direct reinstatement and back wages. Reliance in Jagdish Chander case was placed upon Managing Director, ECIL v. B. Karunakar. It is true that such an order not granting reinstatement or back wages was passed in Jagdish Chander case following Karunakar case. But it has to be noticed that in Karunakar case there was a regular departmental enquiry but the enquiry report was not given to the officer. This Court directed the report to be given and set aside the proceedings from that stage and stated that no order for reinstatement or back wages need be passed at that stage. But in cases like the present where no departmental enquiry whatsoever was held, Karunakar case in our view, cannot be an authority. As to back wages, on facts, the position in the present case is that there is no material to say that the appellant has been gainfully employed. The appellant is, therefore, entitled to reinstatement and back wages till the date of reinstatement from the date of termination and to continuity of service. Point 4 is decided accordingly. 47. For the aforesaid reasons, the appeal is allowed, the judgments of the Division Bench and learned Single Judge of the High Court are set aside, the impugned order of termination is quashed, and the appellant is hereby directed to be reinstated with back wages till the date of reinstatement and continuity of service. It will be open to the - 49 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 respondents to take such action as they may deem fit in accordance with law against the appellant. The appeal is allowed as stated above. There will be no order as to costs.” 12. A co-ordinate Bench of this Court in the case of Dr.Hanumatharaya C (supra), held as under: “ Though the matter is coming up for hearing on Interlocutory application, with the consent of the learned Counsel for the petitioner and the learned AGA for the respondents, this matter is taken up for final disposal. 2. The petitioner who was serving with the second respondent-District Health Officer, C.K.Pura, Chitradurga, on contract basis, has been discharged by the impugned order dated 09.09.2020. Learned Counsel for the petitioner submits that in the impugned order itself, certain allegations are contained which would clearly show that the impugned order is not a discharge simplicitor. The learned Counsel submits that when there are allegations touching upon the conduct of the petitioner and such allegations would cast a stigma on the petitioner, consequent to which the petitioner will not be able to get employment elsewhere, without conducting a departmental enquiry and without affording an opportunity of hearing to the petitioner, the respondents could not have passed an order discharging the services of the petitioner. 3. Learned Counsel for the petitioner refers to a decision in Dipti Prakash Banerjee Vs. Satyendra Nath - 50 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 Bose National Centre For Basic Sciences, Calcutta & Others reported in 1999 (3) SCC 60, wherein the Hon’ble Apex Court held that Article 311(2) of the Constitution is applicable even in respect of temporary employees where it is not a termination or discharge simplicitor, but a discharge with a stigma. Learned Counsel submits that in a catena of such decisions, this Court has consistently held that whenever an order of discharge animates allegation touching the conduct of an employee, even if such an employee is a contract employee, in terms of Article 311(2) of the Constitution, disciplinary proceedings are required to be held affording opportunity of hearing as contemplated in law and only then such orders of discharge could be passed. 4. Learned AGA seeks to oppose the contentions raised by the petitioner. It is submitted that the allegations made against the petitioner has been supported by evidence and the petitioner has not put up any resistance. 5. Having heard the learned Counsel for the petitioner and the learned AGA and on perusing the petition papers, this Court finds that there is considerable substance in the submission of the learned Counsel for the petitioner. Having regard to the nature of allegation made in the impugned order dated 09.09.2020, it is clear that the allegations touch upon the moral turpitude of the petitioner. As rightly submitted by the learned Counsel for the petitioner, it has been consistently held by this Court and the Hon’ble Supreme Court that if the tenor of the - 51 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 discharge order consists of any accusation against an employee, be it a temporary employee or a permanent employee, if an opportunity is not granted to the employee to clear himself of the accusations, such a person could face a difficult situation in the Society and he will never be able to seek employment even in a private Sector without clearing the allegations made against him. 6. This is the reason behind the consistent stand taken by this Court that whenever a stigma is cast against an employee in an order of dismissal or discharge, such orders could be passed only after complying with the requirement of holding a departmental enquiry in accordance with law and only thereafter, if the disciplinary authority is satisfied that the harsh punishment of discharge is required to be made, the disciplinary authority could proceed to do so. 7. Admittedly, the impugned discharge order dated 09.09.2020 having made such allegations against the petitioner, the same could not have been passed without holding a disciplinary enquiry. 8. Consequently, the petition succeeds. The impugned order dated 09.09.2020 is hereby quashed and set aside. The petitioner shall be reinstated into service. Needless to observe that the second respondent is at liberty to issue showcause notice and thereafter proceed in accordance with law. It is ordered accordingly.” - 52 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 13. A co-ordinate Bench of this Court (Dharwad Bench) in the case of Sanjay (supra), held as under: “ With the consent of the learned counsel for the petitioner, the learned HCGP who appears for respondent Nos.1 and 2 and learned counsel for the respondent No.4, this petition is heard and disposed off finally. It is the case of the petitioner that, he was appointed by the Deputy Commissioner, Belagavi, vide order dated 19.04.2010 under a scheme and for the purpose of poverty elevation, under aegis of the Office of the Deputy Commissioner and the respondent-Belagavi Mahanagara Palike. The learned counsel for the petitioner submits that, though the appointment was for a period of one year, subsequently the petitioner has been continued in the said post till the issuance of the impugned order dated 27.12.2018 at Annexure-J. 2. The learned counsel for the petitioner submits that, a show cause notice was issued on the petitioner by the respondent-Deputy Commissioner on 09.11.2018 calling upon the petitioner to explain why he should not be removed from the services since there were several allegations of misconduct made against the petitioner. The learned counsel for the petitioner submits that, the petitioner gave a reply to the show cause notice on 19.11.2018 denying the charges. However, without conducting an enquiry, the impugned order dated 27.12.2018 has been passed by the Respondent- - 53 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 Deputy Commissioner terminating the services of the petitioner. Learned counsel draws the attention of this Court to two decisions of the Hon’ble Supreme Court of India in the case of Om Prakash Goel Vs. Himachal Pradesh Tourism Development Corporation Ltd., Shimla and another reported in (1991) 3 SCC 291 and Nar Singh Pal Vs. Union of India and others reported in (2000) 3 SCC 588. 3. The learned HCGP, representing the 2nd respondent-Deputy Commissioner would submit that, the petitioner is admittedly a temporary employee or contract employee as evident from the order of appointment dated 19.04.2010. The learned HCGP therefore submits that, termination of the service of the petitioner without holding enquiry cannot be faulted with. In other words, it is submitted that, disciplinary enquiry is contemplated under Article 311 of the Constitution of India to permanent employees alone and therefore, the learned HCGP justifies the impugned order. 4. Heard the learned counsels and perused the writ papers. 5. As seen in Om Prakash Goel’s case (supra), the Hon’ble Supreme Court of India has referred to several decisions including Anoop Jaiswal Vs. Government of India,wherein it was held 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 - 54 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 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 employees”. Similarly in Nelap Singh Vs. State of U.P. reported in (1985) 1 SCC 56, it has been held that, “Where allegations of misconduct are leveled against a government servant, and it is a case where the provisions of Article 311(2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The court will view with great disfavour any attempt to circumvent the constitutional provision of Article 311(2) in a case where that provision comes into play”. Further after analyzing several judgments, their Lordships in Om Prakash Goel’s Case (supra) have held that, “it is well settled that, in a case of an order of termination even that of a temporary employee the court has to see whether the order was made on the ground of misconduct if such a complaint was made and in that process the court would examine the real circumstances was well as the basis and foundation of the order complained of and if the court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoid an enquiry as warranted by Article 311(2) of the Constitution, then such a termination is liable to be quashed.” - 55 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 6. In the light of the above said decisions, when we look at the show cause notice issued by the Deputy Commissioner, it is clear that the allegations of serious misconduct was made against the petitioner. The petitioner has given a reply to the said show case notice denying the allegations made against the petitioner. However, the Deputy Commissioner proceeds to pass the impugned order terminating the services of the petitioner, without conducting a disciplinary enquiry and offering an opportunity to the petitioner to defend himself. What is noticeable is that, even in the preamble of the impugned order of termination, the very same allegations as was made in the show cause notice has been reiterated. Therefore, it is quite evident that, the order of termination is not a simplicitor order of termination, but an order of punishment which leaves a stigma on the petitioner. 7. Therefore, in the light of the discussions made above, this Court is the opinion that the impugned order requires to be set aside and is accordingly quashed and set aside. Needless to observe that, if the respondent-authorities feel that the petitioner has to be proceeded against, based on the charges made in the show cause notice, the respondent- authorities are at liberty to proceed against the petitioner, in accordance with law. 8. The respondents are hereby directed to reinstate the petitioner into service with immediate effect.” - 56 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 14. So also, a co-ordinate Bench of this Court in the case of Nagesh R.D. (supra), held as under: “ The petitioner, who admittedly was working as the District Program Manager on contract executed initially in the year 2013, is dismissed from service by the fifth respondent’s impugned dismissal order dated 26.12.2018 in No. DH&FWR/ADMN/01/2018-19 [Annexure-E]. At the outset, this Court must record that though initial appointment was only for a period of one year commencing from 18.07.2013, the petitioner is continued in service without disruption as of the date of the impugned order. The petitioner’s dismissal from service is in the light of charges listed in the impugned order. The petitioner is issued with notice to respond to the allegations and is ultimately dismissed from service with the fifth respondent opining that not just the imputations in the notice but even certain misappropriation are established. 2. Sri S.N.Babu, the learned counsel for the petitioner, submits that the principal question that he would canvass is whether the petitioner, who admittedly was not in regular employment, could be dismissed from such service on allegations that are stigmatic without an enquiry, and Sri S.N.Babu relies upon the decision of this Court in W.P.No.10869/2020, to assert that this Court has held that even a temporary employee cannot be discharged from service without an enquiry if it is based on allegations which are stigmatic, and he submits that this Court has relied upon the exposition in this regard by the Hon’ble Supreme Court in - 57 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 Dipti Prakash Banarjee v. Satyendra Nath Bose National Centre for Basi Sciences, Calcutta and Others. 3. Sri B.J.Somayaji, the learned counsel for the fifth respondent when queried by this Court, is categorical that if the dismissal order is for reasons that are stigmatic, an enquiry should be held and if the removal from service is for reasons that cannot be called stigmatic, an enquiry need not be held. However, Sri B.J.Somayaji proposes to rely upon the decision of the Hon’ble Supreme Court in Satish Chandra Anand v. The Union of India to canvass that because the petitioner admittedly is not in regular employment, he cannot insist on an enquiry before removal from service, especially when the impugned order does not disqualify the petitioner from future employment. 4. It is trite that when an employee is removed simpliciter, and is not dismissed for stigmatic reasons, the principle of audi alteram partem will not apply, but when an employee is dismissed for reasons that are stigmatic, the principle of audi alteram partem must apply and an enquiry must be held. When this principle must apply and there must be an enquiry but such enquiry is not held, this Court must intervene. In fact, Sri B.J.Somayaji does not dispute this settled position, but he asserts that because the petitioner was admittedly not in regular employment and is continued in service beyond the original period, he cannot insist on enquiry. 5. The question for decision, in the peculiarities of this case, is should this Court refuse to intervene even if it is - 58 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 writ large that the petitioner is dismissed from service on being found guilty of certain allegations such as indulging in misappropriation without an enquiry. Sri. S M Babu, in drawing the attention of this Court to the decision in W.P.No.10869/2020, essentially relies upon the following from the decision of the Hon’ble Supreme Court in Dipti Prakash Banarjee v. Satyendra Nath Bose National Centre for Basi Sciences, Calcutta and Others [supra]: As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab¹ there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. The underlining is by this Court. 6. This Court must opine that the proposition that there must be no difference between an employee in temporary service and an employee in permanent service when the dismissal order is founded in allegations which are detailed in the dismissal order as against an order for removal simplicitor, resonates with fairness and reasonableness, the twain that must guide a judicious decision. This is especially when an employee, though not in regular employment, is in service for a long time because with dismissal from service on allegations, his/her employability and livelihood are bound to be undermined with redoubtable far reaching consequences. As such, this Court cannot accept the argument that because the petitioner was not in regular employment, notwithstanding the - 59 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 circumstances, the question whether there should have been an enquiry is not decisive. 7. This Court is of the considered view that in the facts and circumstances of the case, especially when charges are specifically listed against the petitioner in the impugned dismissal order and a finding is recorded that the allegations of dereliction of duty, misconduct and misappropriation of funds are clearly established, the petitioner’s dismissal is stigmatic and not a removal in contractual terms. In view of the undisputed position that there cannot be a stigmatic order without an enquiry, and this Court’s opinion as aforesaid, the petitioner is entitled to succeed as against the challenge to the impugned order. 8. Sri S.M.Babu, on the relief that the petitioner would be entitled to consequent to the impugned order being quashed, submits that there must be reinstatement as directed by this Court in W.P.No.10869/2020 and of course liberty could be reserved to the respondents to initiate enquiry for the petitioner’s dismissal. On the other hand, Sri B.J.Somayaji submits, relying upon the decision of the Hon’ble Supreme Court in State of U.P. and Others v. Ex. Pilot officer Arun Govil, that even if the impugned order is quashed on the ground that stigmatic order is passed, the petitioner would at the most be entitled to the salary for the remaining period and the petitioner has been issued with salary for the month January 2018 which would be one month salary and he would only be entitled to further two months salary ending as of 31.03.2019. - 60 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 9. In the light of these submissions, the question for consideration would be whether, consequent to the impugned order being quashed, the petitioner would be entitled for reinstatement, and if he is entitled to reinstatement, the terms on which such reinstatement should be made. The natural consequence of quashing of the impugned order must be reinstatement, and this cannot be gainsaid. However, Sri B.J.Somayaji contends that because the petitioner admittedly was only a contract employee, in the light of the decision of the Hon’ble Supreme Court in State of U.P. and Others v. Ex. Pilot officer Arun Govil he would only be entitled to two months’ salary. 10. In the case on hand before the Hon’ble Supreme Court State o U.P. and Others v. Ex. Pilot officer Arun Govil [supra], as seen from paragraph 4 of the judgment, the impugned order was a termination order without any charges being mentioned therein. The claim for reinstatement was made on basis of an interim order granted directing that a post shall be kept vacant in case the petitioner succeeds. On appreciation of the factual matrix, the Hon’ble Supreme Court has held that the respondent therein would only be entitled to the salary up to the period he would have been entitled to or he continued in service. This is a decision rendered in the factual matrix of that case and does not lay down a proposition that in every case, notwithstanding the peculiar circumstances, when a dismissal order is on stigmatic ground but without an enquiry - 61 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 is quashed, the concerned employee would only be entitled to the salary for a particular period. 11. In the present case, this Court has granted interim order on 14.01.2020 stipulating that any recruitment to the post of District Program Manager, Ramanagar District pursuant to the Notification dated 06.01.2020, and the Notification issued consequent to the petitioner’s dismissal vide impugned order shall be subject to the result of the writ petition. It is now brought on record that the seventh respondent has been appointed pursuant to such notification and this respondent though served has remained absent. It is not certain that this respondent is in employment. 12. In view of the interim order, the seventh respondent’s appointment, which would be contingent because it is made subject to the outcome of the writ petition, have to yield if there is to be a direction for the petitioner’s reinstatement. As already observed, the reinstatement must be a natural consequence of the quashing of the impugned and there are no exceptional circumstances for this Court to opine that such consequence must be obstructed in the present case. The respondents, who will have to reinstate the petitioner with suitable arrangement to accommodate the seventh respondent, if necessary, must be at liberty to hold appropriate enquiry and decide on whether there must be any action against the petitioner on the imputation, and as part of such enquiry, the respondent must also decide on financial benefits for the period between the date of the - 62 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 impugned order to the date of reinstatement. For the foregoing, the following: ORDER [a] The petition is allowed, and the impugned order dated 26.12.2018 issued by the fifth respondent is quashed and consequent to such order being quashed, the fifth respondent is directed to reinstate the petitioner subject to accommodating the seventh respondent, if necessary, but the concerned is reserved liberty to initiate enquiry into the allegations against the petitioner in accordance with the applicable rules. [b] The petitioner is reserved liberty to file representation along with a certified copy of this order with the fifth respondent for necessary orders of the reinstatement. [c] The petitioner will be at liberty to such representation within two [2] weeks from the date of receipt of a certified copy of this order and the fifth respondent shall pass suitable orders as directed within the next six [6] weeks.” 15. Under the aforesaid facts and circumstances of the case, if the impugned order is examined in the backdrop of the aforesaid principles laid down in the aforesaid judgments, it is - 63 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 evident that the impugned order is an order of punitive/stigmatic dismissal of the petitioner from service and not an order of discharge simpliciter and consequently, I am of the considered opinion that the impugned order deserves to be quashed and the petitioner be directed to be reinstated into service and by issuing further directions in this regard. In the result, I pass the following: ORDER i) The petition is hereby allowed. ii) The impugned order dated 03.03.2023 at Annexure-R, is hereby quashed. iii) The respondents are directed to conduct necessary enquiry against the petitioner. iv) The respondents are directed to reinstate the petitioner into service immediately upon receipt of a copy of this order. v) Since the post where the petitioner was working has already been filled up by respondent No.4, the respondent Nos.1 to 3 are directed to provide an alternative post to the petitioner immediately upon receipt of a copy of this order. - 64 - HC-KAR NC: 2026:KHC:20315 WP No. 7135 of 2023 vi) The respondents are directed to reconsider the matter and conduct necessary enquiry against the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of receipt of copy of this order. Sd/- (S.R.KRISHNA KUMAR) JUDGE MDS List No.: 2 Sl No.: 29

SMT NALANAMMA v. DIRECTOR OF SOCIAL SECURITY AND PENSION

Judgment text