JUDGMENT
Arun Mishra, J.
1. Two letters patent appeals are preferred against the order passed by the Single Judge on 30th October, 2000. The petitioner Rajesh Vishwakarma was directed to be reinstated with 50% back wages. His termination during the period of probation was adjudged to be punitive. The petitioner claims in L.P.A. 379/2000 for back wages. The rcspondent-Sainik School Society has filed L.P.A. No. 320/2000 claiming that service of the petitioner was terminated in accordance with law.
2. The petitioner was appointed as Carpentry Instructor on 9-5-95. He joined on 16-5-95. He was initially appointed on probation for a period of one year. Period of probation was extended on 10th June, 1996 for another year. On 12th April, 1997 (Annexure P-19) before completion of the extended period of probation, the service of the petitioner was dispensed with. He was offered one month salary in lieu of the notice period of one month. During the period of probation, several memos were issued to the petitioner for
improvement in his work. These memos were issued on 7-3-96 (Annexure P-4), 25-4-96 (Annexure P-5), 9-5-96 (Annexure P-6) and 30-7-96 (Annexure P-7). The deceased-father of the petitioner was also in the service of Sainik School was Carpentry Instructor and was allotted a house owned by Public Works Department which was in the pool of Sainik School, Rewa. The father of the petitioner died in the year 1993. After his death, the house was not vacated. The petitioner submits that the house was owned by his father and it did not belong to the school. It also transpires that the petitioner was allotted another House No. RB-3 situated in the school campus. This house was allotted to the petitioner on 30th December, 1995 (Annexure P-2). The petitioner was asked to occupy the same by 7th January, 1996. This house was not occupied by the petitioner for about five months; ultimately school allotted to it one Mr. G.R. Moorthy on compassionate grounds. After its allotment, the petitioner wrote the letter Annexure P-9 on 29th July, 1996 to the Principal, Sainik School, Rewa to the effect that owning to the domestic problem, he could not ask for the allotment of residential accommodation. The petitioner further mentioned that it was not his attitude not to leave the parent’s home. In case the allotment letter of the house which was allotted to his deceased father was available with the Principal, then it would be more comfortable for him if the same house could be allotted in his name. He also asked for allotment of any other accommodation, if available. In reply (Annexure P-13) to his letter dated 29-7-96, the Sainik School informed him that the house which was allotted to the petitioner was not occupied by him for five months, hence it was allotted to Mr. G.R. Moorthy. At present the school did not have a suitable accommodation which could be allotted to the petitioner to reside alongwith his mother. The petitioner was advised to vacate the house which he was occupying unauthorisedly which was allotted to his father and to claim the house rent as per his entitlement. The petitioner in his reply Annexure P-12 dated 10th August, 96 informed that he had taken a house on rent at the rate of Rs. 500/- per month in Nehru Nagar and he was not occupying the school accommodation any more and prayed for settling of house rent allowance as per his designation. The school insisted that the house was still occupied by the petitioner and he was required to vacate it. The process under the Public Premises Eviction Act were initiated by the prescribed authority which was subjected to challenge in a Writ Petition No. 5243/1996 filed by the mother and brother of the petitioner. In the said writ petition it was contended that the land belonged to the Government. Later on it was transferred to the Sainik School Society; hence the prescribed authority had no jurisdiction to initiate the process under the Public Premises Eviction Act, 1981. This Court directed the prescribed authority to decide the objection which was decided in favour of the school. Thereafter a civil suit was filed for declaration of title and permanent injunction setting up the ownership of the house in the name of petitioner’s father. It appears that the possession was taken by the school in
proceedings under Public Premises Eviction Act. Even though memos Annexures P-4 to P-7 were issued for self-improvement to the petitioner, he submits that his service was not terminated due to unsatisfactory completion of probation period, but owing to the evil and malice generated owing to failure to vacate the house by his family members for which he was not responsible.
3. The respondent-school in the return contended that performance of the petitioner was not found satisfactory during the period of probation. In spite of issuance of several memos, he did not show any improvement and indulged himself in illegally usurping the house belonging to the Sainik School Society alleging the ownership of his deceased father. The overall conduct of the petitioner was such that his retention in service was not justifiable. In addition, it was contended that the post of Carpentry Instructor has been abolished subsequently and the post has been diverted to that of Computer Teacher due to introduction of computer course. The order of termination is not stigmatic and no short-comings were reflected in the order. It was in accordance with the terms of appointment and prevailing rules and does not attract the provisions of Article 311(2) of the Constitution of India. No enquiry was required to be conducted. The learned Single Judge opined that since the dispute arose as to the vacation of the house on 1 -3-96 just before completion of the period of probation, the said dispute was the foundation of the order and was not merely a motive. In case the performance of the petitioner was not satisfactory during the period of probation of one year, the period of probation should not have been extended by another year. The termination has been held to be revengeful and vindictive and tantamounts to inflicting punishment under the garb of the order of termination simpliciter.
4. Learned counsel for Sainik School Society Shri Mrigendra Singh submits that overall performance of the petitioner was not satisfactory. The termination order is innocuous; does not cast stigma. The dispute as to vacating the house was long standing and relates back to 1993 which had nothing to do with the unsatisfactory performance of the petitioner during the period of probation. The conduct of the petitioner even with respect to the dispute as to the house shows his unfitness though he was not removed for this reason, but on account of his unsatisfactory performance. In any case, the dispute as to the house was not the foundation of the order of termination. The Single Bench erred in not considering that the post itself has been abolished; hence no reinstatement could be ordered muchless with 50% back wages.
5. Learned counsel for petitioner Shri Rajendra Menon made his effort to retrieve the position for the petitioner with all his fairness and vehemence at his command. He submits that chronological events show that non-vacation of the house was the foundation of the order of termination. The petitioner could not be blamed for not vacating the house as it was occupied by his mother and brother. Thus, he was punished for the acts of his family
members. The termination is the outcome of victimisation and the order was issued after filing of the writ petition and the civil suit by petitioner’s mother and brother.
6. The Court is required to lift the veil and find out the real intent of the order and to determine whether the order falls in the territory of “motive” or “foundation”. The Court is required to consider overall conduct of the employees and the employer, and to adjudge whether petitioner completed his probation period successfully.
7. There is difference between the nature of service of a probationer with that of a permanent employee. In the period of probation, an employee is put on test during which his work and conduct is under scrutiny. If on assessment of his work and conduct during this period, it is found that he is not suitable for the post, it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. A permanent employee has a lien on the post. He gets a right to be continued on the post till he attains the age of superannuation or is dismissed from his service for misconduct, etc. after disciplinary proceedings in accordance with the rules in which he is given a fair and reasonable opportunity of being heard. Probationer’s services can be terminated without notice and without assigning any cause in terms of the appointment letter and in accordance with the service regulation as laid down by the Apex Court in LIC and Anr. v. Raghavendra Seshagiri Raokulkami, (1999) 8 SCC 461.
8. In ONGC and Ors. v. Dr. Md. S. Iskender Ali, (1980) 3 SCC 428, it was observed that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained. In the case of a probationer of a temporary employee, who has no right to the post, termination of his service, finding him unsuitable for the post is valid and does not attract Article 311 of the Constitution of India and his services can be terminated by an order of termination simpliciter. It does not involve any stigma. Even if misconduct, negligence, inefficiency may be the motive or inducing factor which influenced employer to terminate the services of an employee, a power which the employer undoubtedly possessed, as under the terms of appointment such a power flowed from the contract of service it could not be termed as penalty or punishment. Even if a departmental enquiry is instituted, which was subsequently dropped, was inconsequential. Strong case has to be made out requiring the Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment.
9. In Union of India v. P.S. Bhatt, (1981) 2 SCC 761, it was held that even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of an employee on probation, such termination cannot be termed as penalty or punishment. Loose talks and filthy and abusive language which had been used against the officers may legitimately in the facts and circumstances of the case lead to the formation of a reasonable belief in the minds of the authorities that the person behaving in such a fashion is not a suitable person to be employed. Even if undesirable conduct on part of the employee may be considered to be the motive or the inducing factor which influenced the authorities to pass the impugned order, the said order cannot be said to be by way of punishment. The test of “motive” and “foundation” has to be kept in mind by adjuding the validity of an order of termination. The question was considered by the Apex Court in Ravindra Kumar Mishra v. U.P. State Handloom Corpn. Ltd. and Anr., 1987 (Supp) SCC 739. The Apex Court held that if the delinquency of an officer in temporary service is taken as the operating motive in terminating the service, an order is not considered as punitive while if an order of termination is founded upon it, the termination is considered to be a punitive action. Since both in regard to a temporary employee or an officiating employee in a higher post an assessment of the service of the incumbent would be necessary, merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make an order of termination following such assessment punitive in character. No straitjacket test can be laid down to distinguish the two “motive” and the “foundation”. Whether “motive” has become the “foundation” has to be decided by the Court with reference to the facts of a given case. The two are certainly two points of one line. Ordinarily apart, but when they come together “motive” does get transformed and merges into “foundation”. As long as the adverse feature of an employee remains the motive and not transformed as the foundation of the order of termination, it is unexceptionable. In Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Ltd. and Ors., (1997) 2 SCC 191, termination of service of probationer for unsatisfactory performance after recording a finding that he was regularly absent on one ground or the other was held not to be stigmatic. In Sudhir Vishnu Panvalkar v. Bank of India, (1997) 6 SCC 271, the termination order was a simpliciter termination order. The order was not stigmatory termination order. Subsequently, the employee was informed that his termination was due to loss of confidence; still the termination order was not held to be invalid only on that ground. In High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Shukla and Ors., (1997) 10 SCC 409, the Apex Court held that a probationer does not have the right to hold the post during the period of probation and an order terminating the services of a probationer can be questioned if it shows that it has been passed arbitrarily or has been passed
without complying with the Article 311(2) of the Constitution of India. He cannot claim a right to be heard before an order terminating his services is passed. The principles of natural justice have no application in the case of termination of the service of an employee during the period of probation. It is not obligatory even to communicate the adverse material to the probationer before taking a decision on the basis of said material that he is not fit to be retained in service. Reliance was placed in Commissioner of Food & Civil Supply v. P.C. Saxena, (1994) 5 SCC 177, to contend that if against a probationer it was decided to take punitive action, Article 311(2) of the Constitution of India will be attracted. However, it is open to terminate the services of the probationer in accordance with the service rules. In State of U.P. and Anr. v. Ram Krishna and Anr., (1999) 7 SCC 350, the service was terminated in accordance with the terms and conditions of his appointment. The employee did not show improvement in spite of memos and absented himself from duties without submitting an application. The termination of service was held to be as a result of review of his performance which was not found satisfactory and was held not to be bad in the eye of law and did not attract Article 311 of the Constitution of India.
10. The Apex Court reviewed the law with respect to the question “whether termination is punitive or simpliciter”. In Radhe Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr., AIR 1999 SC 609, the Apex Court held that:–
“De Smith says, as to procedural fairness where preliminary inquiries are conducted (See 5th Ed. 1995 (page 491, para 10.027) that the question of “proximity between investigation and act or decision” depends on the degree of proximity so far as the persons affected claiming a right of hearing is concerned. He says. Thus, a person empowered or required to conduct a preliminary investigation with a view to recommending or deciding whether a formal inquiry or hearing (which may lead to a binding and adverse decision) should take place, is not normally under any obligation to comply with rules of fairness [Beetham v. Trinidad Cement Co., (1960) AC 132; Medical Board of Queens Land v. Byme College of Physicians, ex. p. Samuels, (1966) 58 DLR (2nd) 622; Re : Drum-moyne MC, (1962) SR (NSW) 193], But he may be placed under such an obligation if his investigation is an integral part of a process which may terminate in action adverse to the interest of a person claiming to be heard before him. [Wisemen v. Bomeman, (1971) AC 297]. Re. : All General Canada and Canadian Tobacco Manufacturers, Council, (1986) 26 DLR (4th) 677.”
Their Lordships considered the development of law stage to stage. The first decision is P.L. Dhingra v. Union of India (AIR 1958 SC 36) and the other one is State of Bihar v. Gopi Kishore Prasad (AIR 1960 SC 689). In Dhingra’s
case the distinction between “motive” and “foundation” was laid down. In State of Orissa v. Ram, Narayan Das, (1961) 1 SCR 606: (AIR 1961 SC 177), a new dimension was given to the legal principles and the test of enquiry was laid down and every termination of probationer made by following the rules and after conducting an enquiry would become punitive. This enquiry test in Samsher Singh v. State of Punjab (AIR 1974 SC 2192) broke down. A new test had to be invented. It was laid down that one should look into “object or purpose or the inquiry” and not merely hold the termination to be punitive merely because of an antecedent inquiry and enquiry could be made for ascertaining whether he was fit to be confirmed. The enquiry was not of the same nature as an enquiry to the charges of misconduct, negligence, inefficiency or other disqualification. In Madan Gopal v. State of Punjab (AIR 1963 SC 531), if the termination is based on a report which was the foundation, the Court could go behind the order to find out the real intent. The theory of object of enquiry was emphasized in Jagdish Mitter’s case (AIR 1964 SC 449). An enquiry was held and the termination order was based on it as it stated on its face that it was “found un-desirable” to retain the employee and hence his services were terminated. The order was held to be punitive on its face. It was quashed. In Champaklal Chimanlal Shah v. Union of India (AIR 1964 SC 1854) preliminary enquiry was conducted which was intended to find out a prima facie case has been made out to support the departmental enquiry. The question was whether a termination order passed soon after completion of the preliminary enquiry could be treated as punitive. It was not bound to conduct a regular enquiry and pass a simple order of termination. In Shamsher Singh’s case (supra), an enquiry which was conducted was held to be not a preliminary enquiry and the order was held to be punitive. It was also observed that the words “form”, “substance”, “motive” and “foundation” were baffling and the need of the hour was a simple test. The difference, if any, were further removed in the case of Gujrat Steel Tubes Ltd. v. Gujrat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896. The Apex Court held that masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If on scrutiny, the order is punitive in cause of consequence; if it falls short of the test, it cannot be called a punishment. In the case of R.S. Gupta (supra), the Apex Court held that in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch the purpose of the inquiry is to find out
the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. If the findings of inquiry officer are accepted behind the back, the order becomes punitive. Misconduct is the foundation and not merely the motive.
11. In Chandra Prakash Sahi v. State of U.P. and Ors., AIR 2000 SC 1706, law to the similar effect is laid down. If an enquiry is held and on the basis of that enquiry a decision is taken to terminate the services, the order will not be punitive in nature, but if there are allegations of misconduct and if an enquiry is held and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the suitability of the employee for the post in question, but to find out the truthfulness of allegations of misconduct against that employee.
12. In Krishnadevaraya Education Trust and Anr. v. LA. Balakrish-na, JT 2001 (1) SC 617, the Apex Court held that there can be no manner of doubt that the employer is entitled to engage a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. It is not necessary to mention that his performance is not satisfactory. Otherwise the order itself would cast a stigma. The order would suffer risk of allegations being made that the order itself casts a stigma. Preferable course for employer is that order does not itself mention the reasons why the services are terminated. If such an order is challenged, the employee is entitled to the grounds of termination. The employer in terms of the letter of appointment, has the right to terminate the services. Even if a committee is constituted which came to the conclusion that job of the employee is not upto the mark, that would be a valid reason for terminating the services. The constitution of the committee cannot itself be relied upon by contending that the termination was by way of punishment. Services of probationer can be terminated on account of overall performance is the law laid down in M. Venugopal v. Divisional Manager, LIC of India, Machilipatnam, A.P. and Anr., (1994) 2 SCC 323.
13. In the instant case, the order of termination (Annexure P-19) is not based on an enquiry. It does not cast stigma and one month salary in lieu of the notice was offered to the petitioner. The school-society has tried to justify its action on the basis of memos Annexures P-4 to P-7. In the memo dated 7th March, 96 (Annexure P-4), it was mentioned that the petitioner was not regular for morning school assembly; his English was poor, the correction work of note-books of the students was poor and irregular; turn-out and bearing was not upto mark, did not participate in evening games and sports, he did not submit instructor’s diary which was to be submitted by the end of September, 95 and was used to leave school during working hours without permission and did not use teaching aids such as chalk & black board. He was found negligent
of leaving light open in the wood workshop as mentioned in Annexure P-6. On 9th May, 96, the petitioner was issued a memo for leaving the headquarter alongwith the keys of the workshop and for proceeding without leave. On 30th July, 1996, as per Annexure P-10, the petitioner was informed that his general awareness was not satisfactory; he was not checking the home-work of the students regularly. He did not possess adequate communicative skill in english written and spoken requires improvement, did not submit teachers’ diary/lesson notes to the Headmaster during the academic session 1995-96, did not participate in games and sports with cadets of the school and did not display his ability to cadets by manufacturing wooden items during the session and was asked to make sincere efforts for self-improvement and to remove the shortcomings.
14. Thus, it is clear from the several letters issued to the petitioner that his performance was not upto the mark. At the same time, the dispute as to vacating of the house which was allotted to petitioner’s father was also going on. The father of the petitioner died on 20th June, 93, the petitioner was appointed in May, 1995, he was allotted different house by the school-society on 30th December, 1995 and the petitioner was required to shift within a week, but the petitioner choose not to occupy the same, the school kept the house vacant for five months since it appears that the petitioner was residing in the house which was earlier allotted to his father. The petitioner wanted allotment of the same house in his own name as per letter dated 27-7-1996 (Annexure P-9). The letter Annexure P-9 is reproduced in extenso:–
“It is my kind request that due to some domestic problems I could not asked for any residential necessity. It is not mine attitude that I do not want to leave my parent’s home. As you said that you are having my father’s allotment letter, then it would be more comfortable for me to transfer it to my name or whichever home you want to allot me. Please allot it as possible as you can.
Hoping for your kind consideration and oblige.”
15. It is apparent from the letter Annexure P-9 that on 27th July, 1996 the petitioner was still in occupation of the house which was allotted to his father. The petitioner in July, 96 did not mention the fact that he was not residing in the house allotted to his father. He had not claimed the HRA till that date in any manner. He also did not mention in Annexure P-9 that he was residing in a rented accommodation. Vide Annexure P-13, letter dated 3rd August, 1996, the petitioner was again asked to vacate the house which was allotted to his father which was in his un-authorised possession and to claim H.R.A. after vacating the unauthorised possession, and the house which allotted to the petitioner in December, 1995 was allotted to one Mr. G.R. Moorthy as petitioner failed to occupy it for five months. The petitioner was asked to vacate the house by 10th August, 1996, failing which disciplinary
enquiry was threatened. The conduct of the petitioner goes to show that being fearful to the departmental enquiry, the petitioner took a somersault and in his letter dated 10th August, 19% (Annexure P-12) mentioned, for the first time, that he had taken the house on rent in Nehru Nagar, Rewa and he was no more occupying the school accommodation. According to the petitioner, he took the house of Nehru Nagar on rent for the month of August only as apparent from his subsequent communication. For the first time the petitioner prayed for sanction of HRA from the month August, 1996. Letter of the petitioner dated 10th August, 19% (Annexure P-12) is reproduced in extenso:–
“It is to bring to your notice that I had taken a house on rent in the Nehru Nagar, Rewa. For your kind information I have not occupied any school accommodation authorised or unauthorised as you had alleged in your letter dated 3rd August, 19% in para 4.
As far as my parent’s house is concerned, I have already left it.
As you have written that there is no any accommodation for me. Therefore, I have hired a house rent on five hundred rupees per month. Therefore, kindly sanction H.R.A. for me as per my designation.
Hoping your kind co-operation and oblige.”
16. The petitioner did not mention in the letter Annexure P-12 on which date he vacated the house; whose house he had taken on rent in Nehru Nagar, Rewa. It appears that the petitioner continued to occupy the house allotted to his father and school society asked the petitioner on 21-12-96 (Annexure P-15) to explain his unauthorised possession. On 23-12-96 the petitioner in his reply Annexure P-16, for the first time, submitted that he was residing for the last one year in the house of Shri Arun Kumar Patel which was not in Nehru Nagar, but in a different locality at the rate of Rs. 250/- per month. This stand of the petitioner was obviously contrary to his own letter Annexure P-12 in which he had mentioned that he had taken a house in August, 1996 at the rate of Rs. 500/- per month. He mentioned in his letter of December that the said house did not suit him as its rent was high. Thus, it is clear that the petitioner suggests falsely in Annexure P-16 that he was residing in a rented house for the last one year. Had it been true, he would have definitely mentioned the said fact in his letter Annexure P-9 dated 27th July, 1996 and in letter Annexure P-12 dated 10th August, 1996. It appears that the petitioner was not occupying the rented accommodation but in order to claim HRA, he concocted a story of taking the house on rent. The petitioner has also filed certain receipts of house rent alongwith his letter Annexure P-16. One of the receipts bears the date 31-1-1995 on which date admittedly the petitioner was not in employment and was admittedly occupying the house allotted to his father. He has even filed the receipt of Rs. 250/- for the month of August, 19%
of the house of Mr. A.K. Patel which is admittedly not situated in Nehru Nagar but in a different locality; whereas the petitioner of his own showing had taken the house in Nehru Nagar at the rate of Rs. 500/- per month in August, 1996. Thus, overall conduct of the petitioner was not fair during probation dehors of the fact that whether he could have vacated the accommodation allotted to his father since his other family members were also in its occupation. But the fact remains that he was misleading the employer and had asserted the ownership of the house of his father even in this writ petition. This cannot be said to be a bona fide act. Thus, overall performance and conduct of the petitioner cannot be said to be satisfactory during the period of probation. He fabricated the story of residing in a rented house which is found palpably false. Thus, the employer was justified in taking into consideration the entire conduct of the petitioner alongwith several memos issued for making overall assessment. Though it is clear that the dispute as to the house was not the foundation of the order, but the overall performance of the petitioner was not satisfactory and the dispute as to the house was not foundation. The petitioner started claiming HRA for the first time in August, 1996. If he was occupying the rented accommodation from October, 1995, what prevented him from claiming HRA till August, 96 is not understandable. The petitioner did not disclose at any point of time whose house he had taken on rent in the month of August, 1996 at the rate of Rs. 500/- per month. His claiming HRA at the rate of Rs. 500/-per month was not an understandable act. Later on in December, 96 he had filed the receipts even for the month of August, 1996 at the rate of Rs. 250/-per month. Though the petitioner is not being adjudged unsuitable only on that count, but his entire conduct is to be considered and the employer cannot be said to be oppressive/vindictive by not conducting an enquiry into the matter. From the various correspondence, the conduct of the petitioner was writ large. Not only this, he failed to perform on academic side also during the period of trial and acted in derogation to the interest of the institution. A man may lie but the circumstances do not and the chain of the circumstances point out that petitioner’s services were not satisfactory.
17. The submission raised that medical fitness was required to be submitted before extending the period of probation on 10-5-96, thus the extension of period of probation was itself bad in the eye of law and an outcome of the dispute as to the house. The argument advanced has no basis. If the intention of the employer was to victimise, the period of probation would not have been extended. The extension of the period of probation shows that the petitioner was given an opportunity of self-improvement and the conduct of the employer was fair on that count, no malice can be inferred in extending the period of probation.
18. It is also urged that the order of termination is vindictive for the reason that in lieu of notice period of one month, salary of one month was offered and services were terminated forthwith. Unsatisfactory services of a
probationer can be dispensed with forthwith and it is not the requirement of law that notice is essentially required to be given. In lieu of that it was open to the employer to offer salary. We do not also agree with the submission that memos Annexures P-4 to P-7 issued to the petitioner for self-improvement were outcome of the dispute as to the house. We are also not impressed by the submission that the petitioner was being pressurized to vacate the house and the termination order is an outcome of that pressure. On the strength of various decisions mentioned above and also C.P. Shahi v. State of U.P., (2000) 5 SCC 152, wherein their Lordships of the Apex Court laid down the distinction between “motive” and “foundation”. “Motive” is a moving power which impels action for a definite result or which incites or stimulates a person to do an act. The motive behind the termination was un-suitability of the petitioner to hold the post. His performance was not satisfactory as per memos Annexures P-4 to P-7; the dispute relating to the house was not the foundation of it. The order cannot be said to be based on revenge and vindiction in any manner. We find no fault in the order of termination Annexure P-19 and it cannot be said to be a camouflage for an order of dismissal. Though, it is not necessary to go into question, but we also find sufficient force in the contention that the petitioner’s reinstatement could not be ordered due to abolition of the post. The post has been abolished and diverted to the computer section which decision cannot be said to be tainted with malafide. However, in view of our findings as to the validity of the order of termination, the question of intent of subsequent abolition of post is of academic significance only.
19. Resultantly, the impugned order is set aside and the writ petition is dismissed. L.P.A. No. 320/2000 filed by the Sainik School, Rewa is allowed and L.P.A. No. 379/2000 filed by Rajesh Vishwakarma is dismissed.