P.S. Mishra, C.J.
1. This appeal has to succeed on the sole ground that although the order ostensibly is one of termination simpliciter, it is preceded by memo of charges in respect of which no proceedings have ever been drawn and no enquiry has been held. On piercing the veil, thus, it is found that the termination is not simpliciter as it purports to be, but it is penal and is visiting the petitioner- appellant with civil consequences.
2. Facts in short giving rise to the instant appeal under Clause 15 of the Letters Patent of the Court are as follows:- Petitioner-appellant was appointed as a Hindi Translator on 1-4-1989 and was put on probation for two years which was expired on 10-4-1991. Although, according to the petitioner- appellant, she performed her duties satisfactorily, she had certain complaints against her colleagues which were not heeded by the superiors and when some adverse remarks were made, she made representation for expunging them. Her probation was, however, extended from 29-6-1991 to 31-5-1992. In the meanwhile, her services were terminated on 16-4-1992. The above was preceded by a memo dated 2-4-1992 stating that she was quarrelsome, non- co-operative in performing her duties and was disobedient and was showing disrespect to the superiors and she was called upon to explain and improve her performance. According to the petitioner-appellant, when she furnished her explanation soon thereafter she received the order of termination from service. Respondents' case before the learned single Judge as well as before this Court, however, has been that the petitioner-appellant was not suitable for the job as her performance was unsatisfactory and that is why her probation was terminated and she, accordingly, was removed from service. Learned counsel for the respondents produced before the Court at the hearing of the writ petition a file relating to the petitioner-appellant. Learned single Judge has, from the materials available in the record, found as follows:-
'I found that the petitioner was interviewed by the Vice-Chancellor on the basis of her complaints and he had also advised her that she should co-operate and further the action proposed against her should be deferred to give her a chance to improve. It is only thereafter that the impugned order was made.'
3. We have, before us, some materials from which it is found that besides the work of Translator, for which the petitioner-appellant was engaged, she was asked to teach Hindi to her colleagues and other employees of the University and for the extra work for which she was engaged, she demanded extra remuneration. The University, however, maintained that no extra remuneration was required to be paid to her as Translator she had hardly any work to do. Be that as it may, since this case, in our view, has to be viewed on the basis of the above facts whether the termination, before the extended period of probation expires, of the service of the petitioner-appellant by the respondents is violative of the principles of natural justice and whether on the facts, as above, without affording the opportunity of being heard to the petitioner, any decision could be taken to remove her from service on the ground that she was holding a purely temporary appointment as the probationer, which appointment gave no right to her to hold the office and extended, accordingly, to her protections which any person substantively appointed enjoys. The Supreme Court has, in Anoop v. Government of India, : (1984)ILLJ337SC pointed out -
'The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegation of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2). Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.'
The Supreme Court, in the above decision, has also stated-
'Even though the order of discharge may be non committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.'
The Supreme Court has reiterated the above view in Jarnail Singh and Ors. v. State of Punjab and Ors., 1986 (2) LLJ 268 (SC) - and pointed out that -
'The position is now well-settled on a conspectus of the decisions referred to hereinbefore that the mere form of the order of termination of the services of a probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e., the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when 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 case, will lift the veil and will see whether the order was made on the ground of misconduct inefficiency or not.'
4. In S. Raja Lakshmi v. Government of Tamil Nadu, 1991 (2) Law Weekly 672 (Madras) a learned single Judge of Madras High Court has taken the above view in the case of a Judicial Second Class Magistrate, whose services were terminated while on probation. The Court found in the said case that it was not on the ground of unsuitability or unsatisfactory conduct alone, but on the ground that there were allegations made against her for which, instead of taking action in accordance with law, the High Court had ordered termination from service.
5. True the petitioner is employed by the University and is not protected by Article 311(2) of the Constitution of India. Articles 14 and 16 of the Constitution of India, however, are attracted and in case it is found that the order has been passed without complying with the requirements of the natural justice, the Court has to come to irresistable conclusion that the petitioner has been subjected to an arbitrary action leading to discrimination in extending the equal protection of law and equality before law as well as equality of opportunity of employment. The termination order has affected the petitioner's probation which was yet to come to the aid and before the case would come for confirmation or issuing order of substantive appointment, a decision is taken by the respondents to terminate the services of the petitioner- appellant. The order of termination of service is preceded by memo alleging misconduct and calling upon her to explain. Soon after receiving her explanation, the order to terminate the service has been issued. The above, in our view, is one which legitimately can be called an order to impose punishment of termination of service on the petitioner-appellant. Although couched in innocuous language, the order obviously is in the nature of an order imposing punishment for the alleged misconduct in respect of which a memo of charges had been served upon her. Since the order has been issued without affording opportunity to the petitioner-appellant to defend herself in a regular enquiry, the same is violative of the principles of natural justice.
6. In view of the above, since on piercing the veil the order's true character is revealed to be one of punishment and the same has been imposed without holding enquiry in accordance with law, we have no hesitation in holding that the same is fit to be set aside. The impugned judgment, for the said reason, is fit to be set aside. The same is accordingly set aside. Writ petition is allowed and the order of termination of service impugned in the writ petition is quashed. The petitioner-appellant shall be deemed to be in service and shall be entitled to all consequential benefits except insofar as any claim of arrears of salary is concerned, in respect of which no specific order can be made in the instanr proceedings unless there are materials to show that the petitioner- appellant was not gainfully employed during the above period and/ or there are no other reasons to deny to her the claim of any arrears of salary. It shall be open to the respondents, however, to hold an enquiry in accordance with law if there are allegations of misconduct against the petitioner-appellant.
7. In the result, the appeal is allowed and ordered as above. No costs.