Versus State of Chham'sgarh, thmugmgé’éiemry & others vii r 2g? Respondents Shn Ashok Paul, counsel for the pctmomr Shn Anm Sao Deputy Government Advocate for the respondent 1‘ NO 1/ State “ ' Shn Aunt Verma, counsel for the mspondent No 2 None appears ibr the respondents No 3 and 4 ORDER (20th November, 2006) 1. The petitioner was appointed on tempomry basis, by order dated 23.12.1998 (Annexme A/3), for a period of 2 years on probation with a condition that if the peiiiioner remains absent, his service can be terminated with one month’s notice or one month’s salary in lieu of notice. The peiitioner was appointed in accordance with lawn 2. The petitioner remained absent during probation petiod in the month of January for 5 days, February for 4 days, March for 8 days and April for 6 days, which is evident from the show cause notice dated 16.4.1999 (Annexure A/4). The petitioner submitted i ‘ his reply to the show cause by Annexure A/5. It is further pointed out by learned counsel appearing for the petitioner that the mspondents have sanctioned leave for absence of the petitioner in the month of February and Mamh. 3. Despite sanctioning of leave in the month of February and Match, the petiu‘oner mmained absent in the month of April also. During L the period of probation, service of the petitioner was lemoved with one month’s salary in lieu of notice, by order dated 20/ 21.4. 1999, W4? (z _ as no longer required. 4. It is well settled pn'nciple of law that if the service of the petitioner is on temporary haste, the employee can be removed hum sewice as no longer required. There is no necessity to hold an enquily before paSsing the removal order. It is apparent that despite show-cause notice, the petitioner has not mended his conduct and continued to remain absent for about 5 to 7 days in other month. There is no stigma attached to his removal order and no ptejudice is caused to the pen'tioner that he was not given suhicient opportunity of hearing by submitting his response to the show-cause notice 5. In the case of Anoop Jaiswal Vs. Goven ent of India and Anotherl, the Supreme Court held that where the form of the order is merely a camouhage 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 amrtain the true character of the order. 6. In the case of High Court of Judicature at Patna Vs. Pandey Marian Mohan Prasad Sinha and others2, the Supreme Court observed in para 6, as under:- "6.’ As regards a probationer, the law is well settled that \ he does not have a right to hold the post duringw of probation. The pasition of a probationer cannot be equated with that 9f an employee who has been substanu'vely appointed on a post and hm a n'ght to hold that post. ‘ An order terminan'ng the sewices of a probationer can be questioned only if it is shown that it has been passed arbitralily or has been passed by way of punishment without complying with the requirements of Article 31 1 (2) of the Constitun'on. Since a proban'oner has no right to hold the post on which he has beeny/nppou'nted on probation, he cannot claim a right to be hea‘gf'd before an order terminating his services is passed. Thezobligatm'n to communicate the adverse material to a person befole taking action against him on. the basis of the said materia} is a facet of the principles of natural justice. But principles of natural justice have no application in the case of termination of the sewices of a pmban'oner dun'ng the period of probation since he has no right to hold the post. 1t is, themfore, not possible to hold that there is an obligation to communicate the adverse material to a probationer before a decision is taken on the basis of the said material that he is not ht for being retained in service. Such material can be mlied upon to show that such a decision does not sun'er horn the vice of arbitmriness and is not capricious. In this context it may be mentioned that even With respect to persons who have been substantively" appointed on a post and have a right to hold that post, it has been held that the failure to communicate the adverse remarks in the service recom would not’vitiate the order of compulsory retirement. (See: Union of India v. M.E. Reddyl andBaikuntha Nath Das v. Chief Distt. MedM Omca‘3.)" 7. In the case of Union of India Vs. Ratl‘Pal ant-mind Anothet3, the Supreme Court observed para 8, as under:- "8... It is well settled that a peobationer's semce can be terminated during the period of probation if he is found unsuitable. No enquiry is necessary for such termination of x\ i the services of a probationen In the case of Samsher Singh v. State of Punjabl a. Bench of this Court consimzing of seven Judges, intcr alia, held that the seivices of a probationef can be terminated when the authorities are satiseed Iegarding his inadequacy for the job, or unsuitability for temperamental or other masons not involving moral turpitude, or when his conduct may result in dismissal or removal but without a formal enquk‘y. An enquiry is necessaxy only when the termination gky way of a punishment, and to determine this the subgtance of the oxder and not the form is decisive. The same pasin'on has been reamnned in Anoop Jaiswal v. Govt. of lndia2 where the decision in Samsher Singh v. State of Punjabl has been quoted extensively. Before a probationer is conhnn'ed, the authority oonoemed is under an obHgation to oonsider whether the work of the yroban‘oner is satisfaotmy’ or whether he is suitable for the post. If it comes to the conclusion that the pmbationer is not suitable he is liable to the dischatged. He cannot, in this situation, claim the beneht of Article 31 1 (2 ." 8. In the case of Chandta Prahsh Shah! V8. State of ItP. and others‘, the Supmme Court obselved in pain 29, as under:- “29. "Mou've" is the moving power which impels action for a dehnite tesult, or to put it dih'erently, "motive“ is that which incites or stimulates a person to do an act. An onier terminating the services of an employee is an act done hy the employer. What is that factor which impelled me employer to take this action? If it was me factor of general unsuitability of the employee for the post. held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee md a preliminary inquizy is held behind his back to asoerram the truth of those allegations and a termmah'on order is passed thereafter, the order, having regard to other I circumstances, would be founded on the allegations of r/W} _5_= misconduct whirh wcm found to be true in the ptelnmnary mquny." 9. On the basis of above principles of law enunciatad by the Supmme Court, in the facts of the plescnt case, there is no motive or allegation of serious misconduct against the pcti1ioner. n l o e k rmani On considemtio of his ack of sincerity t th wot for eing absen unauthorizedly, it appea to hav been nd that the‘ petin'one is not suitabl for th job. Thus, the impugne mr of r e e d o w n u e d. mmoval ith oe month's salmy in lie of notic was passe No prope domestic enquily, in the facts of the pmsent cas, is r e necessary. 10. he impugne order does not tmamount to the onier of T d t disssal 1" misconduct as the impugned cider of mmoval is mi $ e ". Th simpliciter, on th ground of "no longer mquired e petitioner has not made out any cas that this order s a camouflage $r an e i cider of dismissal for misconduct. 1 1. The writ petition is accoxdingly dismissed N oxde a to cosm. . o r s 1 Sd/ a Sa . Agnho tish K itri u fr” Jdge , 1{984) 2 sec 369} 2{(1997) 10 scc 40’9 3{(1998) soc 574 4{(20) 5 scc 152} t ls e gui (1 ) } 00