JUDGMENT
J.N. Sarma, J.
1. This Writ Appeal has been filed against the Judgment dated December 7, 1994 passed by the single Judge of this Court in Civil Rule No. 401 of 1994. By the impugned Judgment the learned single Judge quashed the order of termination and/or order of removal and directed the respondents to take the petitioner/appellant in service forthwith. Certain other directions were given regarding payment of arrear salary etc. We are not concerned with them.
2. We have heard Shri Sinha, learned Advocate for the appellant and Shri Kar Bhowmik, learned Advocate for the Respondents.
3. Before we go to the Judgment let us have a look at the order/Judgment passed by the authority, that is, Annexure – 2 to the Writ Application, that is, quoted below :-
Annexure -2
Sub:- Discipline.
1. You have been interviewed by your instructor, Coy Comdr. a number of times for your undisciplined conduct. You have been advised from time to time to show definite improvement on your conduct as well as performance. You were transferred from your previous coy to 10 Rif. Coy so that you can show some improvement on your performance as well as conduct.
2. You were granted casual leave from March 25, 1993 to March 30, 1993. You did not return to duties on due time contrary you have been caught red-handed in election booth No. 11/5 where being a disciplined soldier, you have shown your undisciplined conduct. This was not expected on your part, alternatively you have been apprehended and despatched under Escort 10 Bn. HQ.
3. Since your enrolment, you have shown performance which is negative to the best interest of the discipline and administration of the force. It is desired that any further retention in service will not yield any fruitful purpose for the force and the State.
4. You are, therefore, discharged from service under Rule 15 of the TSR (Recruitment) Rules, 1984 with effect from April 3, 1993 (AM), you are, hereby paid one month salary in lieu of one month’s notice.”
4. The petitioner in the Civil Rule was in probation as a Constable and there is a set of Rules known as “Tripura State Rifles (Recruitment) Rules, 1984. Rule 15(1) of the Rules provides as follows :-
“15. Period of Service.
A member of the Rifles shall be on probation for the period of 3 years during which period he shall be liable to discharge at any time on one month notice or on payment of one month’s salary in lieu of the same under the orders of the appointing authority.”
5. The only question is that whether the order quoted above is an innocuous order of termination in pursuance of the Rule 15(1) or it is by way of punishment. The learned single Judge in the impugned judgment in paras — 7 and 10 has held as follows:–
“7. However, learned Government Advocate referred certain documents from which it appears that the petitioner admitted some of his misconduct. But in that case the petitioner could have been dismissed from service after complying with principles of natural justice. In the instant case it was not a case of discharge simpliciter. In the discharge order itself various acts of indiscipline, and misconduct were attributed to the petitioner. Therefore, it cannot be denied any more that the order of termination/discharge is not an order of discharge or termination simpliciter but is clearly penal in nature and, therefore, principles of natural justice ought to have been complied with strictly as required under Article 311 of the Constitution.
10. I am fully satisfied that the impugned order of discharge is penal in nature and same cannot be sustained as it was issued in violation of the principles of natural justice and hence this petition has to be allowed and accordingly, I allow the same and quash the impugned order of discharge and I direct the respondents to take back the petitioner in service forthwith.”
6. The law regarding a probationer was decided by the Constitutional Bench in Samsher Singh v. State of Punjab and Anr., (1974-II-LLJ-465) (SC) wherein Constitutional Bench, Supreme Court pointed out inter alia, as follows :-
No abstract proposition can be laid down that where the services of a probationer are terminated it can never amount to a punishment. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer, is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account inadequacy for the job or for any temperament or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311 he can claim probation.
The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to the protection of Article 311. The substance of the order and not the form would be decisive.”
7. This aspect of the matter came up for further consideration in K. V. Krishnamani v. Lalit Kala Academy (1996-II-LLJ-661) (SC) where the law has been laid down as follows at pp. 661-662 :
“During probation, his services have been found to be not satisfactory, were terminated by proceedings dated December 1, 1989. The appellant came to challenge the same by filing writ petition in November, 1990 which was dismissed by the High Court. Thus this appeal by special leave.
3. It is contended by the appellant that since the averments made in the counter would constitute foundation for dismissal for misconduct, an enquiry in this behalf was required to be made. On the other hand it is contended by the respondent that during the probation the appellant did not acquire any right to the post. If on being found suitable he was regularised, only then he would have acquired the right to continue in the post. During probation it was found that his services were not satisfactory and reasons were given in support thereof. Thus they do not constitute foundation but motive to terminate the services. We find force in the contention of the respondent. They have explained that driving the staff car was not satisfactory and that, therefore, they have terminated the services of the appellant during probation. The very object of the probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, it certainly has power to terminate the services of the employee. Under these circumstances, it cannot but be held that the reasons mentioned constitute notice and not foundation for termination of service.”
8. To the same effect is the decision of the Apex Court reported in Life Insurance Corporation of India and Anr., v. Shri Raghabendra Seshagiri Rao Kulkarni (1998-II-LLJ-1161) (SC). In para-11, the law has been laid down as follows :-
“11. The requirement to hold a regular departmental enquiry before dispensing with the services of a probationer cannot be invoked in the case of a probationer especially when his services are terminated by an innocuous order which does not cast any stigma on him. But it cannot be laid down as a general rule that in no case can an enquiry be held. If the termination is punitive in nature and is brought about on the ground of misconduct Article 311 would be attracted and in that situation it would be incumbent upon the employer, in the case of Government service, to hold a regular departmental enquiry. In any other case also, specially those relating to statutory Corporations or Government Instrumentalities, a termination which is punitive in nature cannot be brought about unless an opportunity of hearing is given to the person, whose services, even during the period of probation, or extended period, are sought to be terminated (See : Parshotam Lal Dhingra v. Union of India) in which it was held that appointment to a permanent post on probation means that the servant is taken on trial. Such an appointment comes to an end if during or at the end of the probation, the person so appointed is found to be unsuitable and his services are terminated by notice. An appointment on probation or on an officiating basis is of a transitory character with an implied condition that such an appointment is terminated at any time (See also Shamsher Singh and Anr. v. State of Punjab).
9. The only question is that whether the order of termination as quoted above is by way of punishment or certain things have been narrated therein only to highlight that this person is unsuitable to continue in the post.
10. On a careful consideration made by us we find that the order is not punitive order and the Judgment as quoted above cannot be deemed to be good law in view of the decisions to which we have relied upon. Accordingly this Writ Appeal is allowed and the Judgment of the learned single Judge stands quashed.
11. But before we part with the record we make it clear that this Judgment we pass only to settle the law and not to throw the petitioner/ Respondent from his service inasmuch as the petitioner/Respondent has already been taken back in service in pursuance of the Judgment and in all fairness and magnamity the learned Advocate Shri Singh agrees that he does not want to throw out the Respondent from service. Accordingly the writ petitioner/Respondent shall be allowed to continue in service. This part of the order we have passed as agreed to by both the learned counsel for the parties, and in facts of the case.
12. We leave the parties to bear their own costs.