THE HON’BLE THE CHIEF JUSTICE SRI ANIL R. DAVE AND THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT APPEAL NO.497 OF 2000 Dt.28.8.2009 Between: M. Paul John Sung … Appellant And The Deputy Chairman, Visakhapatnam Dock Labour Board, Port Area, Visakhapatnam-35 … Respondent ORAL JUDGMENT: (per Shri Anil R. Dave, Hon’ble the Chief Justice) The appellant – original petitioner has been aggrieved by an order dated 02.11.1999 passed by the learned Single Judge in Writ Petition No.3770 of 1999. 2. The respondent had issued an advertisement on 26.5.1998 inviting applications for appointment to the post of a driver. In the said advertisement, the following qualifications were expected from the candidate: Educational Qualifications: 1) Must have passed III Form 2) Must possess heavy vehicle driving licence Experience: 2 years Age Limit: Below 30 years (Relaxable by 3 years for OBC category) 3. In pursuance of the said advertisement, the appellant had made an application and on 17.9.1998 and he was appointed to the said post as a probationer. In terms of the advertisement issued by the respondent, the appellant was supposed to drive heavy motor vehicle. 4. By an order dated 23.2.1999, service of the appellant had been terminated without assigning any reason and being aggrieved by the said order of termination, the appellant had filed the aforestated petition. 5. After hearing the learned advocates, the learned Single Judge has rejected the petition for the reason that the appellant was a probationer and the impugned order of termination was an order of termination simplicitor and as the order did not stigmatise the appellant, the Court did not go behind the termination order to find out the reason for which his service had been terminated. 6. It is pertinent to note that before this Court, the respondent had submitted by filing a counter that the appellant was, in fact, not qualified to be appointed to the post of the driver of a heavy vehicle, as he did not possess experience of driving heavy motor vehicles for two years, which was one of the qualifications prescribed in the advertisement and, therefore, his period of probation was brought to an end by the impugned termination order. It had also been submitted in the counter affidavit that the appellant had procured heavy motor vehicle driving licence on 21.4.1997, though he was having licence to drive light motor vehicle on 14.5.1993. In the advertisement, it was stated that two years’ driving experience was required from the eligible candidate and as the appellant was not having requisite experience, his service had been terminated. 7. It is pertinent to note that the aforestated facts had not been stated in the impugned order of termination and, as stated hereinabove, the order of termination is an order of termination simplicitor. 8. The learned Advocate appearing for the appellant has submitted that the post which had been advertised was that of a driver and the petitioner was having a licence for driving light motor vehicles which was issued on 14.5.1993 and thus in fact he was having more than two years experience as prescribed in the advertisement inviting applications. For the aforestated reasons, according to him, it cannot be said that the appellant was not eligible to be appointed to the post of driver, and his services ought not to have been terminated. It has been further submitted by the learned Advocate appearing for the appellant that the action of the respondent is penal in nature because the respondent employer has referred the matter to C.B.I. for enquiry as stated in the caveat applications filed in several Courts after passing the impugned order. The learned Advocate for the appellant has also relied on the decisions of the Hon’ble Supreme Court in A.K. Raghumani Singh v. Gopal Chandra Nath[1], B. Ramakichenin v. Union of India[2] and Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences[3]. 9. So far as judgment in the case of A.K. Raghumani Singh (supra) is concerned, in our opinion, the said judgment is not relevant to the case on hand for the reason that the said judgment deals with interpretation of the word “with”. Question in the said case was whether experience, when required, should have been obtained before obtaining requisite educational qualification or after obtaining such a qualification. We are not faced with such a question and therefore the said judgment will not help the appellant. 10. So far as the judgment in B. Ramakichenin (supra) is concerned, the facts of the present case as well as the facts in the said judgment are different. In the said case, it has been stated that a person with M.Sc., with two years experience was required. It was not clarified whether the experience of the candidate should be before attaining the Post-Graduate degree of M.Sc., or after attaining the Post-Graduate degree of M.Sc. In the instant case, the facts are absolutely different. The notification clearly states that the candidate must have a licence for driving heavy vehicles and therefore the experience of two years must be there with reference to the driving of heavy vehicles. There was no such scope of any misunderstanding in the case of the appellant. 11. So far as the judgment in Dipti Prakash Banerjee (supra) is concerned, it pertains to motive behind termination of service of a probationer. The Hon’ble Supreme Court has held in the said case that if the termination of a probationer is with a motive to ascertain whether a candidate is suitable, it cannot be said that the order terminating the service of the probationer is punitive and in such a case the said order would not be interfered with by the Court. In the instant case, the appellant was not having qualification, but somehow by mistake he appears to have been appointed because he got licence to drive heavy vehicles only on 21.4.1997 and therefore at the time of his appointment, the appellant was not having requisite qualification of two years experience of driving heavy vehicles. 12. Thus, in our opinion, all the three judgments cited by the learned Advocate for the appellant do not help the appellant. 13. On the other hand, the learned Advocate appearing for the respondent – employer has submitted that the impugned order is not punitive in nature. It has been further submitted that upon perusal of the order impugned in the petition, it is very clear that no stigma has been attached to the career of the appellant. 14. If the order is not stigmatizing the probationer, in our opinion, it cannot be said to be punitive order. If a probationer, whose services are terminated, files a petition and when the employer is called upon to show the reason as to why the probationer was not confirmed in service and if some reason is given by filing a counter affidavit before the Court for a reason which has not been incorporated in the impugned order, in our opinion, by no stretch of imagination, it cannot be said that the impugned order is punitive in nature. 15. Looking to the aforestated facts, in our opinion, the learned Single Judge has rightly come to a conclusion that the impugned order was not punitive in nature and it was a termination simplicitor and the relief prayed for in the petition was rightly not granted to the appellant – petitioner. We see no reason to interfere with the order passed by the learned Single Judge. 16. The appeal is therefore dismissed with no order as to costs. ______________ ANIL R. DAVE, CJ _______________________ C.V. NAGRARJUNA REDDY, J 28.8.2009 svs/bnr [1] 2000(3) Supreme 248 [2] (2008) 1 SCC 362 [3] (1999) 3 SCC 60