Civil Appeal No 3244 of 1988
From the Judgement and Order dated 871988 of the Karnataka High Court in WA No560 of 1983
KN Bhat SK Kulkarni and Ms Kiran Suri for the Appellant SN Bhat MVeerappa and KH Nobin Singh for the respondents
The Judgment of the Court was delivered by NP SINGH J
This appeal has been filed against an order passed by the High Court on a writ application filed by the petitioner respondent hereinafter referred to as the respondent quashing the order of termination of the service of the respondent
The respondent was appointed as a Lecturer in Surgical Oncology on 3rd July 1981
He was to be on probation for a period of one year from the date of his appointment which period could have been extended at the discretion of the competent authority
One of the conditions provided is as follows  Failure to complete the period of probation to the satisfaction of the competent authority will render you liable to be discharged from service
 Before the expiry of one year the impugned order of termination was issued on 30th January 1982 saying In accordance with the decision of the Governing Council at its meeting held on 28th January 1982 the services of Dr Pandurang Godwalkar Lecturer in Surgical Oncology on probation Kidwai Memorial Institute of Oncology Bangalore are terminated with effect from the afternoon of 30 January 1982 as per Rule 4 of the Conditions of Service Rules Annexure 2 Chapter I of the Institute
He is paid one month s salary in lieu of one month s notice required as per rules Although the order under challenge was order of termination simpliciter the validity thereof was questioned by the respondent on the ground that an order of dismissal had been passed in the garb of an order of termination
According to the respondent some complaints had been made against him to the Director of the Institute who instead of initiating a departmental proceeding on basis of charges levelled against the respondent put up the matter before the Governing Council of the Institute for termination of the service of the respondent during the period of probation
The learned Judge in view of the assertions made on behalf of the respondent directed the institute to produce the original records including certain documents and papers which had been marked as confidential
From the note of the Director it appeared that complaints had been made in respect of performance of the duties by the respondent
In that note it was also mentioned that the respondent was unsympathetic towards the patients
It had also brought to the notice of the Governing Council that the respondent had attempted to obtain the signatures
of some of the patients on the petitions stating that he was a good doctor
On one occasion it was reported that the respondent had taken away a girl on his scooter and brought her back late in the night
The said girl was an attendant to a patient in the hospital
The learned Judge came to the conclusion that as the service of the petitioner had been terminated because of the complaints made against him it really amounted to his removal for the misconduct alleged in the note of the Director
According to the learned Judge the Institute should have initiated a departmental proceeding in respect of the alleged charges and only after due enquiry any action should have been taken
There is no dispute that the service of the respondent had been terminated during the period of probation The appointment of the respondent was with a clear condition that failure to complete the period of probation to the satisfaction of the competent authority shall render him liable to be discharged from the service
Relevant part of Rule 4 of the Conditions of Service Rules is as follows  4 TERMlNATION  1
All appointments shall be terminable on a notice in writing either by the appointing authority or the employee without assigning any reason as set below  a During the period  one month of probation
b After completion of the period 1 of probation months
c The notice referred to in rule 1 above shall not be necessary if in lieu thereof an amount equal to the pay and allowance for the period of notice is paid     Generally in connection with an order of termination a question is raised before the court as to what is the motive behind the termination of the service of the employee concerned whether the reason mentioned in the order of termination has to be accepted on its face value or the background in which such order of termination simpliciter has been passed should be examined to find out as to whether an officer on probation or holding a temporary appointment has been in fact dismissed from the service without initiating any departmental enquiry
If an employee who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge then a plea cannot be taken that as his service was temporary or his appointment was on probation there was no requirement of holding any enquiry affording such an employee an opportunity to show that the charge levelled against him is either not true or it is without any basis
But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis by an order of termination simpliciter alter some preliminary enquiry it cannot he held that as some enquiry had been made against him before the issuance of order of the termination it really amounted to his removal from service on a charge as such penal in nature When an appointment is made on probation it presupposes that the conduct performance ability and the capacity of the employee concerned have to be watched and examined during the period of probation
He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed
The principle of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and the action taken
If the decision is taken to terminate the service of an employee during the period of probation after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment
It need not be said that the appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee
Even it such employee while questioning the validity of an order of termination simpliciter brings on the record that some preliminary enquiry or examination of some allegations had been made that will not vitiate the order of termination
Reference in this connection may be made to the case of Oil and Natural Gas Commission vs Dr Mohd section Iskender Ali  where it was pointed out 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 
It was also said that even if misconduct negligence inefficiency may be the motive or the influencing factor which induced the employer to terminate the service of the employee which such employe admittedly had under the terms of the appointment such termination cannot be held to be penalty or punishment
Same view has been reiterated in connection with appointment on temporary or ad hoc basis in the cases of Ravindra Kumar Misra vs UP State Handloom Corpn
Ltd  State of Uttar Pradesh vs Kaushal Kishore Shukla  and Triveni Shankar Saxena vs State of UP Judgements Today On behalf of the respondent reliance was placed on the case of Anoop Jaiswal vs Government of India  In that case the service of the appellant had been terminated during the period of probation
On the materials on record it was held by this Court that the order of termination really amounted to punishment because the real foundation of the action against the appellant was the act of misconduct on June 22 1981
The aforesaid judgment is of no help to who respondent because in that case a clear finding was recorded by this Court that the service of the appellant had been terminated because of a particular misconduct alleged against him which had never been enquired into
So far the facts of the present case are concerned the Governing Council examined the different reports in respect of the respondent during the period of probation and considered the question as to whether he should be allowed to continue in the service of the Institute
The decision appears to have been taken by the Governing Council on the total and overall assessment of the performance of the respondent in terms of the condition of the appointment and Rule aforesaid
Accordingly the appeal is allowed and the judgment of the High Court is set aside
However in the circumstances of the case there will be no order as to costs
GN Appeal allowed


Summary:
This Court by its order dated 20111986 while disposing of Writ Petition Crl No 1061 of 1982 gave comprehensive directions for rehabilitation of Adivasislandholders affected by the Rihand Super Thermal Power Project to be set up by the National Thermal Power Corporation Limited NTPC and appointed a Board of Commissioners to supervise the implementation of the said directions
Since then this Court was monitoring the project
Disposing of the proceedings and the monitoring process so far as the NTPC was concerned this Court HELD In order to ensure that the rights of the oustees are determined in their respective holdings and they are properly and adequately compensated the NTPC shall take in collaboration with the State Government the following measures to rehabilitate the evictees who were in actual physical possession of the landshouses etc
 i The NTPC shall submit a list of the evictees claimants to the District Judge Sonebhadra who shall be the final authority to finalise the list
ii One plot of land measuring 60  x 40  to each of the evictee families be distributed for housing purposes through the district administration
iii Shifting allowance of Rs 1500 and in addition a lumpsum rent of Rs 3000 towards housing be given to each of the evictee families
858 iv Free transportation shall be provided for shifting
v Monthly subsistence allowance equivalent to loss of net income from the acquired land to be determined by the District Judge Sonebhadra subject to a maximum of Rs 750 for a period of 10 years
The said payment shall not be linked with employment or any other compensation
vi Unskilled and semi skilled posts in the project shall be reserved for the evictees
vii The NTPC shall give preference to the oustees in employment in class III and IV posts under its establishment
viii The evictees be offered employment through the contractors employed by the NTPC
ix Jobs of contractors under the administration of the NTPC be offered to the evictees
x The shops and other business premises within the NTPC campus be offered to the evictees
xi The NTPC shall operate for the benefit of the evictees selfgenerating employment schemes such as carpentry training free tools to be provided after completion of training carpet weaving training sericulture masonary training dairy farming poultry farming and basket weaving training etc
xii The NTPC shall provide facilities in the rehabilitative area such as pucca roads pucca drainage system handpumps wells portable water supply primary school adult education classes health centre Panchayat Bhavan sports centres electricity connections bank and sulabh Sauchalaya complex etc
The Deputy Commissioner Sonebhadra shall supervise and ensure that the rehabilitation measures are fully complied with
xiii As regards compensation for crops and land the provisional compensation at the rate of Rs 850 per acre per year for crops and Rs 10000 per acre for the land be paid to the oustees
pp861B H 862A H 863A B 859 The District Judge Sonebhadra shall be the authority to determine the compensation
The orders passed by the District Judge shall be treated as orders under section 17 of the Indian Forest Act as amended by UP Act 25 of 1965
p863BF