L. Dorendra Singh Vs. Manipur Public School Society and anr. - Court Judgment

Excerpt:
- - the academic committee, after extensive interview, finally recommended the petitioner for appointment. the composition of the executive committee and the academic committee clearly indicate that the state government is dictating its terms with regard to the management of the school. the nature of control, as is evident from the discussion made above, clearly show that the affairs of the school is being controlled by the state government through important government functionaries. all these features read together clearly suggest that the society has to be an authority under article 12 of the constitution. nilamani, learned senior counsel reacting to the above argument submitted that the letter of offer of appointment issued on 19.3.1996 shows that the authority clearly indicated..... d. biswas, j.1. the petitioner having obtained master's degree in science from banaras hindu university and bachelor's degree in education from utkal university joined the sainik school at imphal as post graduate teacher in the year 1973. in response to an advertisement issued on 25.10.1994, the petitioner offered his candidature for appointment to the post of principal of the manipur public school. the academic committee, after extensive interview, finally recommended the petitioner for appointment. accordingly, the petitioner was appointed as principal and was placed on probation for a period of two years by the order dated 20.6.1996. thereafter, by orders dated 1.8.1998 and 23.12.1998, the period of probation was extended upto 23.4.1999. the reasons for extension of the period of.....

Judgment:

D. Biswas, J.

1. The petitioner having obtained Master's Degree in Science from Banaras Hindu University and Bachelor's Degree in Education from Utkal University joined the Sainik School at Imphal as Post Graduate Teacher in the year 1973. In response to an advertisement issued on 25.10.1994, the petitioner offered his candidature for appointment to the post of Principal of the Manipur Public School. The Academic Committee, after extensive interview, finally recommended the petitioner for appointment. Accordingly, the petitioner was appointed as Principal and was placed on probation for a period of two years by the order dated 20.6.1996. Thereafter, by orders dated 1.8.1998 and 23.12.1998, the period of probation was extended upto 23.4.1999. The reasons for extension of the period of probation were not made known to the petitioner. By order dated 17.4.1999, the petitioner was terminated from service. The petitioner submitted a representation on 15.5.1999 for review of the decision of the General Body which stood rejected and the decision of rejection was communicated by the letter dated 24.6.1999. Being aggrieved thereby, the petitioner has filed this petition for setting aside the order of termination and for reinstatement.

2. The Court, while-issuing notice of motion, by order dated 17.6.1999 provided that no regular appointment to the post of Principal shall be made till disposal of the writ petition.

3. The respondents in their affidavit and additional affidavit raised objection with regard to the maintainability of the writ petition against the Society which is, according to them, is not a state within the meaning of Article 12 of the Constitution. According to the respondents, the petitioner accepted the appointment on probation as indicated in the appointment order dated 20.6.1996. He was placed on probation for determining his suitability for confirmation which was subject to eligibility certificate to be issued by the respondent authority. The extension of the probationary period was occasioned as the performance of the petitioner during the period of initial probation was not satisfactory. It was within the knowledge of the petitioner that his performance was being assessed during the probation period. That apart, by the letter dated 23.12.1998, the expectation of the Executive Committee from him was made known to him. After in-depth consideration of the overall performance, the General Body in its meeting dated 17.4.1999 came to the conclusion that the performance of the petitioner was not satisfactory and, accordingly, decided to terminate him from service. It is pleaded that the termination of the petitioner from service during the period of probation on the ground of unsatisfactory performance by a non-stigmatic order is not punitive.

4. The petitioner in his affidavit-in-reply controverted the averments made in if 10 affidavit-in-opposition and also provided statistics to justify his excellence as Principal during the short period of his service.

5. I have heard Mr. Asok Potsangbam, learned senior counsel for the petitioner and Mr. A. Nilamani Singh, learned senior counsel for the respondents.

6. At this stage we may refer to the order of appointment and the impugned order of termination. The appointment order reads as follows :

ORDERS

Imphal, the 20th June, 1996

No. 2/Adm/24/MPS/92 : On the recommendation of the DPC constituted vide order of even No. dated 26.2.1996, held on 27.2.1996, Shri L. Dorendro Singh, presently Master in Mathematics (Senior Scale), of Saunik School, Imphal, is appointed Principal of Manipur Public School. Koirengei in the scale of pay of Rs. 3000-100-3500-125-4500 with other admissible allowances as per Manipur Public School Society Rules with immediate effect. The appointment is temporary.

The Officer will be on probation for a period of 2 (two) years.'

The impugned order of termination reads as follows :

ORDER

Imphal, the 17th April, 1999

No. 2/l/SECY(MPSS)/97/(Pt) : Whereas, Shri L. Dorendra Singh was appointed temporarily as Principal of Manipur Public School vide order No. 2/ADM/24/MPS-92 dated 20.6.1996 placing him under probation for a period of 2 (two) years ;

And whereas, on completion of the 2 (two) years probation period as the services of Shri L. Dorendra Singh, Principal of Manipur Public School were not satisfactory, the term of his probation was extended for another period of 6 (six) months with effect from 21.12.1998 vide order No. 2/ ADM/24/MPS-92 date 1.8.1998 ;

And whereas even on completion of the extended term of probation of 6 (six) months as the services of the said L. Dorendra Singh were found not to be satisfactory, the term of his probation period was extended by a further period of 4 (four) months by way of giving him last and final chance, vide order No. 2/ADM/24/MPS/-92 date 23.12.1998 ;

And whereas, the General Body of the Manipur Public School Society in its meeting held on 17.4.1999 minutely reconsidered/re-assessed the overall performance of the said Shri L. Dorendra Singh as Principal of the Manipur Public School during his probation period and found that his services are still unsatisfactory and accordingly decided that the services of Shri L. Dorendra Singh, Principal of Manipur Public School is no longer required ;

Now, therefore, the Chairman of the Manipur Public School Society is pleased to order termination of the services of Shri L. Dorendra Singh as Principal, Manipur Public School and he stands released from the Manipur Public School with immediate effect in public interest. Further, the Chairman, Manipur Public School Society is pleased to order that Smt. S. Premabati Devi, Senior teacher of the Manipur Public School shall look after the works of the Principal of the Manipur Public School with immediate effect till alternative arrangement is made.

By order & in

the name of Chairman, MPSS

(Henry K. Heni) Secretary, Manipur Public School Society Imphal.'

7. From the pleadings reproduced above, the following points are formulated for adjudication of the disputes raised in this petition :

(i) Whether Manipur Public School is a State or any other authority within the meaning of Article 12 of the Constitution ?

(ii) Whether the impugned order is non-stigmatic and could be treated as a termination simpliciter ?

8. Mr. Ashok Potsangbam argued at length to justify that the writ is maintainable since Government control of the school is writ large on the face of the materials on records. According to the learned counsel, the school as established in pursuance of a Cabinet decision taken in 1970. The State Cabinet took a decision in 1970 to establish a public school and to allot land for the same. In pursuance thereof, eventually in 1979-80 the school was established. In this connection, the learned counsel referred to Annexure S-l (Supplementary Affidavit) which is a memorandum prepared by the Commissioner (Education), Government of Manipur for consideration of the Cabinet. This memorandum amply demonstrates that the State Government was interested in establishing the school and was ready to provide infrastructure for the same. Annexure-S-2 is a message from the Chief Secretary requesting for handing over land once used by the Defence for establishment of the School. The composition of the Executive Committee as provided in the Rules and Regulation of the Society consists of the Governor as Chairman and the Chief Minister as Vice-Chairman, Besides, Minister in-Charge of Education is also Co-Vice-Chairman. The Chief Secretary-Finance, Education Secretary, Conservator of Forests, Director of Education and Chief Engineer are members. Annexure S-3 shows that orders were issued on 10th January, 1995 by the Under Secretary to the Government of Manipur in the name of the Governor appointing Shri S.K. Singh, IAS, Secretary in the Education Department as Secretary of the Manipur Public School Society in addition to his normal duties. Annexure S-4 is an order by the District Election Officer whereby the teaching staff of the school were engaged as Presiding Officer and Polling Officers in the General Election. Annexure S-5 is an order issued by the Secretary to the Governor who is the Chairman of the Manipur Public School Society directing that all routine administrative matters relating to the school which require approval of the Chairman (Governor) shall be placed before the Chief Secretary for necessary action. Besides, it provides that all issues involving major policy decision regulating the Management of the School will, however, be brought to the notice of the Chairman (Governor) through the Chief Secretary. The State Government provided land and money for established of the school. The State Government initially provided a sum of Rs. 80,35,000 and 5 acres of land. Annexure S-6 is an order of allocation of fund as Grant-in-Aid for improvement of the approach road to the School. Annexure S-7 shows that Rs. 10 lakh was paid as capital grant to the School for the year 1997-98. This document further shows that the State has been contributing to the school since its inception for its maintenance. Similarly, Annexure S-9 is an order of allocation of fund as capital grant for 1997-98. Annexure S-12 for 1999-2000. Annexure S-13 is an order issued by the Estate Officer, government of Manipur allotting official residence to the member of the staff of the School. Annexure S-14 is a minute of the meeting of the Executive Committee held on 16.10.2000 presided over by the Chef Minister. That apart, copies of judgments in various writ petitions have been filed in order to show that this Court has been consistently entertaining writ petitions against the School. The staff and employees of the school have been extended the benefit and facilities available to the Government servant. The Academic Committee of the School also consists of four serving I.A.S. officers of the rank of Secretary and Commissioner. According to Shri Potsangbam, the above features essentially go to show that the school is an instrumentality of the State.

9. Relying upon the above materials, Mr. Potsangbam submitted that the school is an agency of the State and has been imparting education on behalf of the State. According to the learned counsel, right to education upto the school level is a fundamental right and various decisions rendered by the Hon'ble Supreme Court would lead to the inevitable conclusion that writ would lie against the school. Mr. Potsangbam relied upon the following judgments of the Supreme Court in -

(i) Ajay Hasi etc., Petitioners v. Khalid Mujib Sheravardi and Ors., Respondents, AIR 1981 SC 481.

(ii) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors., (2002) 5 SCC 111. (iii) Andi Mukta Sadguru Shree Mukhjee Vandas Swami Servarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. Rudani and Ors., (1989) 2 SCC 691.

(iv) Unni Krishnan J.P. and Ors. v. State of A.P. and Ors., (1993) 1 SCC 645.

(v) K. Krishnamacharyvulu and Ors. v. Sri Venkataswara Hindu College of Engineering and Anr., AIR 1998 SC 295.

(vi) Ganapathi National Middle School v. M. Durai Kanan (Dead) by Irs., and Ors., (1996) 6 SCC 464.

(vii) Parimal Chakraborty v. State of Meghalaya and Ors., 2000 (3) GUT 441.

(viii) Election Commissioner of India v. State Bank of India, Patna, and Ors. AIR 1995 SC 1078.

(ix) U. P. State Co-op Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors., (1999) 1 SCC 741.

10. Mr. A. Nilamani Singh, learned senior counsel submitted that the Manipur Public School Society is registered under the Manipur Cooperative Societies Registration Act and the State has no pervasive control over the affairs of the School. The Executive Committee and Academic Committee are the policy making authority of the Society and, therefore, the Manipur Public School Society cannot be treated as a State within the meaning of Article 12 of the Constitution, Mr. Nilamani relied upon the following decisions of the Supreme Court :

(i) Arya Vidya Sabha, Kashi and Anr., Appellants v. Krishna Kumar Srivastaua, and Anr., Respondents, AIR 1976 SC 1073.

(ii) Tokraj Vasdndi Alias K.C. Basandhi, Appellant v. Union of India, and Ors., Respondents, (1988) 1 SCC 236.

(iii) K.A. Barot, Appellant v. State of Gujrat, Respondent, 1990 (Supp) SCC 287.

(iv) Dr. S.L. Agarwal, Appellant v. General Manager, Hindustan Steel Ltd., Respondent, AIR 1970 SCC 1150.

(v) State Bank of India, Appellant v. V. S. Vijaya Kumar, Respondent, AIR 1991 SC 79.

11. Traversing back through the materials highlighted hereinbefore relating to the control of the affairs of the school by the State Government, this Court is of the view that the objection raised by the respondents about the maintainability of the writ petition cannot be sustained. The school came into existence in pursuance of a Cabinet decision of the State and the infrastructure, i.e., land and money were provided by the State. Besides, the School has been given funds from time to time for running its affairs. The composition of the Executive Committee and the Academic Committee clearly indicate that the State Government is dictating its terms with regard to the management of the school. The employees are given the same facilities and benefits as that of the State Government employees and have been deployed for election duty. Control of the State Government over the affairs of the school is all pervasive and, therefore, in my opinion, the School Society is amenable to writ jurisdiction.

12. In Ajay Hasia (supra) in para 11, the Supreme Court held that whether a Corporation is created by a Statute or not is immaterial and the test should be for which it has been brought into existence. In Andi Mukta Sadguru (supra), the Supreme Court was dealing with the case of a college managed by a trust registered under the Bombay Public Trust Act. The college was managed with monies paid by the Government in the form of aid and is subject to the rules and regulation of the affiliating University. The Supreme Court held that employment is such institution is not devoid of any public character and, therefore, the service conditions of the academic staff are not purely of private nature. It is on this background, in para-17, the Supreme Court held that the college, is amendable to writ jurisdiction. The Supreme Court further held that the words 'any person or authority' used in Article 226 are not confined only to the statutory authority or instrumentalities. They may cover other person or body performing pubic duty. In Unin Krishnan (supra), emphasis has been laid on the nature of duty in the same vein as has been observed in Andi Mukta (supra). In para 226, the Supreme Court declared that the citizens of this country have fundamental right to education which flows from Article 21 and a private body performing public duty is amendable to writ jurisdiction. In Ganapathin National Middle School (supra), the Supreme Court held that the educational institution receiving aid is an instrumentality or an agency of the State since it is imparting education on behalf of the State which is a fundamental right of the citizen. In K. Krishnamacharyulu (supra), in para-4, the Supreme Court held that when an element of public interest is created and institution is catering to that element, the teachers being the arm of the institution are also entitled to avail of the remedy provided under Article 226. This Court in Parimal Chakraborty (supra), following the decision referred to above, held that the teachers of a private institution receiving grant from the State and discharging the same duties as that of the teachers of the government institutions or of the institutions which were created under the statute are discharging public duties in aid of constitutional mandate. The Court further held that merely because they are not employees of the State Government or of the institutions created under the statute, it would be impermissible to distinguish them as a different group to deny them the remedies under Article 226 for preservation and protection of their service rights. In Pradeep Kumar Biswas (supra), the Supreme Court par majority observed as follows :

'8. But before considering the decision it must be emphasized that the significance of Article 12 lies in the fact that it occurs in Part III of the Constitution which deals with fundamental rights. The various articles in Part III have placed responsibilities and obligations on the 'State' visa-vis the individual to ensure constitutional protection of the individual's rights against the State, including the right to equality under Article 14 and equality or opportunity in matters of pubic employment under Article 16 and most importantly, the right to enforce all or any of these fundamental rights against the 'State' as defined in Article 12 either Under Article 32 by this Court or under Article 226 by the High Courts by issuance of writ or directions or orders.................................

23. From this perspective, the logical sequitur is that it really does not matter what guise the State adopts for this purpose, whether by a corporation established by statute or incorporated under a law such as the Companies Act or formed under the Societies Registration Act, 1860. Neither the form of the corporation, nor its ostensible autonomy would take away from its character as 'State' and its constitutional accountability under Part III vis-a-vis the individual if it were in fact acting as an instrumentality or agency of the Government...................................

40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia (Ajay Haria v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 ; 1981 SCC (L&S;) 258) are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.'

13. In Chandra Bhan Dubey (supra), considering the nature of control of the U. P. State Cooperative Land Development Bank Ltd. by the State Government and the service conditions of the employees of the bank, the Supreme Court held that the Bank is an instrumentality of the State or an authority as mentioned under Article 12.

14. The above decisions amply demonstrate that a body or a institution imparting education is discharging the duty of the State, such body or institution would be amenable to writ jurisdiction. Courts' power under Article 226 is wide enough to embrace within its told the duty to correct any arbitrary and mala fide action of such a body or institution.

15. I have considered the judgments relied upon by Shri Nilmani Singh, learned senior counsel for the respondents. The decisions in Arya Vidya Sabha (supra) and Tekraj Vasandi (supra) do not in the given circumstances of the case, salvage the situation for the respondents. The respondent school thought a Society registered under the Societies Registration Act is discharging the essential functions of the State. The nature of control, as is evident from the discussion made above, clearly show that the affairs of the school is being controlled by the State Government through important Government functionaries. Apart from regulating and dictating the policy, the State is also providing monies to the Society. The object of the Society is to impart education. All these features read together clearly suggest that the Society has to be an authority under Article 12 of the Constitution. There is no escape from the conclusion.

16. The next issue relates to the termination of the writ petitioner from service as Principal. The appointment letter dated 20th June, 1996 shows that the writ petitioner was appointed as Principal on temporary basis on probation for a period of two years. The probation was extended by orders dated 1.8.1998 and 23.12.1998. The order dated 1st August, 1998 shows that the period of probation was extended for six months with effect from 21.6.1998. Thereafter, by the order dated 23.12.1998 it was again extended for a period of four months as a lost opportunity. Mr. Ashok Potsangbam, learned counsel argued that the rules do not provide for placing a teacher under probation and, therefore, the very order of probation is not tenable in law. Besides, Shri Postsangbam also argued that the first extension order was issued with retrospective effect, i.e., after expiry of the initial period of probation and the second extension order of probation was issued two days after the expiry of the extended probationary period. According to the learned counsel, even if the Court assumes that placement of the petitioner on probation is sustainable in law, the petitioner shall be deemed to have been regularized/confirmed in service after expiry of the initial period of probation.

17. Mr. Nilamani, learned senior counsel reacting to the above argument submitted that the letter of offer of appointment issued on 19.3.1996 shows that the authority clearly indicated that the post was temporary but likely to become permanent. With reference to the letter of offer, Mr. Nilamani, learned senior counsel submitted that it was made clear to the petitioner that temporary appointment will not confer any right for permanent appointment which is again subject to eligibility certificate to be issued by the respondent authority. According to Shri Nilamani, the performance of the petitioner was not satisfactory and no eligibility certificate was issued in his favour. The petitioner was appointed by the order dated 28th June, 1996 temporarily and placed on probation for a period of two years. The petitioner without any objection accepted the same and, therefore, he is bound by the terms and conditions of the offer of appointment as well as the appointment order. Shri Nilamani further submitted that on expiry or the period of probation, an employee does not get automatically absorbed in service or become permanent unless an order regularizing/confirming him in service is issued by the authority.

18. There cannot be any dispute with regard to the aforesaid submission of Shri Nilamani, learned senior counsel. In my considered opinion, the petitioner accepted conditional offer of appointment and joined the post on being appointed temporarily on probation for a period of two years. Therefore, the petitioner cannot now be allowed to challenge the nature of appointment and his placement on probation. With reference to the decisions in Dr. S.L. Agarwal, Appellant v. The General Manager, Hindustan Steel Ltd., Respondent, AIR 1970 SC 1150, Dr. S. L. Agarwal, Appellant v. The General Manager, Hindustan Steel Ltd., Respondent (1970) 1 SCC 177, State Bank of India, Appellant v. S. Vijaya Kumar, Respondent, AIR 1991 SC 79, Mr. Nilamani, learned senior counsel submitted that the employees not being government servant are not entitled to protection under Article 311 of the Constitution and, therefore, are not entitled to pre-decisional hearing.

19. The petitioner was a temporary employee and was on probation initially for a period of two years and subsequently extended for two terms. There is no dispute that the orders extending the period of probation were issued after expiry of the period of probation. Whether this would mean that after expiry of the initial period of probation, the petitioner automatically got absorbed in service A temporary employee placed on probation continues to remain temporary even after expiry of the period of probation unless the rules provide otherwise. Administrative lapses due to oversight or inadvertence in issuing order of extension within time will not confer upon the employee the status of a permanent employee. In the instant case, though both the extension orders were issued after expiry of the initial and extended period of probation, this will not, in my opinion, confer upon the petitioner the status of permanent employee unless he is so declared by the authority. In the instant case, the petitioner was asked to improve his performance in writing. His performance was deliberated upon at length in the meeting of the General Body held on 17.4.1999 presided over by the Governor of Manipur and, thereafter by the order dated 17.4.1999, the termination order was issued. No fault can be found in the order of termination of the service of a temporary employee in terms of the letter of offer of appointment and the order of appointment if he is found not upto the mark to lead an institution established by the authority in large public interest.

20. The order of termination dated 17th April, 1999 quoted hereinbefore mentions of unsatisfactory services being the reason for termination. Mr. Ashok Polsangbam argued at length that the word - 'not satisfactory' and 'still unsatisfactory' used in the order of termination render the same as stigmatic. In order to bring home the points raised by him, the learned counsel argued that there was an enquiry without notice to the writ petitioner and the General Body decided to terminate his service on the basis of this report. The learned counsel argued to terminate his service on the basis of this report. The learned counsel argued that copy of the report was not furnished to the writ petitioner and no opportunity was given to the petitioner to make his submission in defence. The learned counsel relied upon the following decisions of the Apex Court in support of his last leg of argument :

(i) Dayaram Dayal, Appellant v. State of M.P., and Anr., Respondent, 1997(7) SCC 443.

(ii) Karnataka State Road Transport Corporation and Anr., Appellants v. S. Manjunath, Respondent, 2000 (5) SCC 250.

(iii) Wasim Beg, Appellant v. State of U.P., and Ors., Respondents (1998) 3 SCC 321.

(iv) Dipti Prakash Banerjee, Appellant v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors., Respondent, (1999) 3 SCC 60.

(v) Indra Pal Gupta, Appellant v. Managing Committee Model Inter College, Thora, Respondent, (1984) 3 SCC 384.

(vi) V. P. Ahuja, Appellant v. State of Punjab and Ors., Respondents, (2000) 3 SCC 239.

21. In Dayaram Dayal (supra), the ratio available is that a probationer cannot automatically acquire the status of a permanent member of a service unless, ofcourse the rules under which he is appointed expressly provide for such a result. In the instant case, there is not provision for automatic absorption after expiry of the initial period of probation. Therefore, the logical conclusion would be that an authority would be entitled to terminate an employee appointed on probation even after expiry of the period of probation for unsatisfactory performance. The terms and conditions in the advertisement, the offer of appointment and the order of appointment clearly show that the authority reserved the right to terminate the services of the writ petitioner during the period of probation. The decisions in V.S. Manjunath (supra) and in Wasim Beg (supra) are based on service rules relating to probation and confirmation. Automatic absorption or confirmation after end of the period of probation are relatable only to the provisions in the service rules. If the service rules provide for a fixed period of probation, there will be a deemed confirmation of the employee at the end of the maximum probationary period. Rules and Regulations of the Manipur Public Service Society do not provide any provision for probation. Therefore, it was open to the respondent authority to determine the period of probation of a temporary employee. The powers of the authority to determine the period of probation cannot be restricted to the initial period of probation only. It embraced within its' fold the power to extend also. If the authority was not satisfied with the performance of the writ petitioner, it could extend the probation for a reasonable period. The argument that the petitioner stood automatically absorbed after expiry of two years is alien to the principles of service jurisprudence.

22. With regard to the enquiry which was held by the authority without notice to the petitioner, it may be stated that such enquiry for the purpose of assessment of suitability of the employee is permissible under the law. Mere incorporation of the words - 'not satisfactory' and 'still unsatisfactory', in my opinion, cannot be punitive in the facts and circumstances of the case. In Methew P. Thomas v. Kerala State Civil Supply Corporation Ltd., and Ors. (2003) 3 SCC 263, the appointment was on probation for a period of 2 years on condition of absorption on satisfactory completion of probation. It was indicated that the services of the service of the petitioner would be terminated in case of unsatisfactory performance. Two show cause notices were served upon the petitioner for mis-conduct in discharging his duties and the explanation given by him was found unsatisfactory and the authority terminated his service. The termination order was issued after the period of probation of two years mentioned in his appointment letter. This Supreme Court rejected the appeal by the employee with the following observation :

'11. An order of termination simpliciter passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Dipti Prakash Banerjee v. Satyendra Nath Base National Centre for Basic Sciences, Calcutta (1999) 3 SCC 60 and Pavanendra Narayan Verma v. Sanjyay Gandhi PGI of Medical Sciences (2002) 1 SCC 520 after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation. The learned counsel on either side referred to an relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Dipti Prakash Banerjee (supra) after referring to various decisions indicated as to when a simple order of termination is to be treated as 'founded' on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination.'.............................

'From a long time of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature and/or it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether effects were made to find out the suitability of the person to continue in service of he is in reality removed from service on the foundation of his misconduct.'

23. The facts and circumstances of the case at hand is almost similar to that in Mathew P. Thomas (supra). The enquiry made by the respondent authority was obviously for assessment of the performance of the petitioner. Materials on record disclose that efforts were made to assess the suitability of the petitioner and he was asked to improve his performance before the order of termination was issued. It cannot be said that the removal of the petitioner from service is for his mis-conduct. The termination, in the instant case, appears to be termination simpliciter.

24. In the result, the writ petition is dismissed. No costs.