IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 17of 2008 The Committee of Management and others …Appellants Versus Vijay Pal and another …Respondents. Mr. Arvind Vashisht, Advocate for the appellants. Mr. Pankaj Miglani, Advocate for respondent no. 1. Mr. H.M. Raturi, Advocate for respondent no. 2. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. This Special Appeal arises out of an order passed by a learned Single Judge of this Court dated 11.12.2007 in Writ Petition (S/S) 3867/2001. The brief facts of this case are as follows :- The petitioner (i.e. respondent no. 1 before this Court) was appointed as peon on 5.8.1995 in Arya Inter College, Subhash Nagar, Dehradun, which is a college under grant-in-aid by the Government. The period of probation was for a period of one year. All the same, before the period of probation was to end on 4.8.1996, his services were terminated by the Principal of the college vide the impugned order dated 3.4.1996. It is this order, which was challenged by the petitioner in Writ Petition (S/S) No. 3867 of 2001. The main ground for challenge the impugned order in the Writ Petition (S/S) No. 3867 of 2001 was that the termination order of the petitioner is not a termination simpliciter but from a perusal of the impugned order shows that it is punitive in nature and, hence, it was mandatory on the part of the respondents to have given an opportunity of hearing or a show-cause to the petitioner before passing the said impugned order. 2 In the counter affidavit filed on behalf of the respondent no. 3 i.e. Principal of the college, it was stated that the petitioner was on a period of probation and since his services were not found satisfactory, his services have been terminated. As it appears from the record, the service of the petitioner was indeed on probation. Probation is a period of trial and in case the work of the incumbent during this period is not found satisfactory, the employer may not continue with the services of the employee which will be perfectly justified. However, in the present case, it is neither a termination simpliciter nor the termination is on the grounds that the petitioner’s services were not found satisfactory. The order which was impugned by the petitioner and has been passed by the Principal of the college shows that the Principal has terminated the services of the petitioner as he has received several complaints from the Manager of the institute that the petitioner has not conducted himself properly and in fact misbehaved with the manager and, therefore, on the complaint of the manager of the college, the services of the petitioner were terminated. Now, this makes the order clearly punitive in nature and even though the petitioner was on probation, it was necessary for the management to have given an opportunity of hearing or show-cause to the petitioner to explain the allegations and charges against him. This opportunity has admittedly not been given to the petitioner. The order of termination is therefore clearly punitive in nature and a duty was cast on the management to have given at least an opportunity of hearing or show-cause to the petitioner before proceeding to terminate the services of the petitioner. The grounds for terminating the services of the petitioner also cast a stigma on the petitioner, and 3 therefore it was necessary that an opportunity of hearing must have been given to the petitioner, before the impugned order could have been passed. It is on these facts that the case of the petitioner has found favour with the learned Single Judge, who in its order dated 11.12.2007 has stated as under :- `“4. As is evident from the perusal of the termination order that the order is termination simpliciter. But on lifting the veil of the termination order, it is found that the termination order was passed on account of complaint made by the Manager regarding petitioner’s misbehaviour with him, which amounts to misconduct. Thus, it entails a civil consequence and in such a situation, the due procedure prescribed under the rules was mandatory to be followed before passing the impugned termination order. 5. The termination order has been passed in a punitive manner. Under these circumstances, if the petitioner’s services were to be terminated, it could have been terminated after following the prescribed procedure, which has not been done in the present case. As such, the impugned termination order cannot be sustained in the eyes of law.” This Court is absolutely in agreement with the order and reasoning given by the learned Single Judge. Learned counsel for the appellants Sri Arvind Vashisth has relied upon a judgment of Supreme Court which is State of Punjab and others v. Sukhwinder Singh (2005) 5 SCC 569, where the Apex Court has reiterated the settled position of law on the rights of an incumbent who is on probation and held that during the period of probation the incumbent is on test and in case the employer finds that he is not suitable for the job, his services can be terminated. In the case under reference, the person was appointed as a constable in Punjab Police and during the period of probation his services were terminated by the Senior Superintendent of Police with the following orders passed under Punjab Police Rules :- 4 “Constable Sukhwinder Singh No. 644/ASR of this District is discharged from service w.e.f. 16-3- 1990 under the Punjab Police Rules 12.21 as he is not likely to become an efficient police officer.” It was held by the Apex Court that the termination order reveals that the order is neither punitive nor stigmatic and all the order says is that the person was not likely to become an efficient police officer. In fact the Senior Superintendent of Police has powers under the Punjab Police Rules 12.21 to terminate the services of a probationer in case he finds that the work and conduct of such a person will not make him an efficient police officer. On the contrary, in the present case, the termination order does not stop at saying that the petitioner/respondent is unsuitable. The services of the petitioner/respondent have been terminated on the ground that he misbehaved with the manager and there was a complaint of the manager on this allegation. The language of the two termination orders in the two cases is entirely different and, therefore, no benefit can be given to the appellant, on the basis of the case cited above. The Special Appeal has, therefore, no merit and is liable to be dismissed and is hereby dismissed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J) 16.3.2010 Avneet