# Commissioner, Kendriya Vidyalaya Sangathan & Ors v. Central Administrative Tribunal, Allahabad & Anr

- **Citation:** (2024) 9 ILRA 555
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-25
- **Case number:** Writ A No. 16078 of 2018
- **Bench:** Arun Bhansali, C.J. Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/commissioner-kendriya-vidyalaya-sangathan-ors-v-central-administrative-tribunal-52385
- **Pages:** 15

## Headnote

A. Civil Law - Service Matter - Probationer
-
Termination
of
Service
-
If
the
termination of services of a probationer is
by an order simpliciter, based on the
unsuitability of the employee for the post
and/or unsatisfactory performance, the
action would be tenable in law. However,
if findings are arrived at in an inquiry
regarding misconduct behind the officer's
back or without a regular departmental
inquiry, the simple order of termination is
to be treated as being founded on
allegations and would be bad in law. If,
for determining the suitability of the
probationer for the post in question, an
inquiry is held, and it is on the basis of
that inquiry that a decision is taken to
terminate the probationer's service, the
order will not be punitive in nature.
Conversely, if there are allegations of
misconduct, and an inquiry is held to
ascertain the truth of such misconduct,
and an order terminating the service is
passed based on that inquiry, the order
would be punitive in nature. In each case,
the "motive" or "foundation" behind the
termination order must be ascertained to
decide whether the termination order is
bad in law. (Para 38)

B.
Civil
Law
-
Service
Matter
-
Probationer - Termination of Service
Based
on
Unauthorized
Absence-
Allegation that the applicant remained
unauthorizedly
absent
without
any
sanctioned leave from the competent
authority.
Court
found
that
the
termination order did not contain any
recital indicating that it was based on
misconduct. Instead, it was a simpliciter
discharge order.As the applicant was a
probationer, he did not have any legal
right to challenge the issuance of a
simpliciter
discharge
order.Held:
Termination order upheld. (39, 43)

Allowed. (E-5)
List of Cases cited:

## Text

_Characters 0–39,990 of 49,757. This is a partial read: ask again with offset=39990 for what follows._

9 All. Commissioner, Kendriya Vidyalaya Sangathan & Ors. Vs. Central Administrative Tribunal,
 Allahabad & Anr.
555
Chief Secretary, strict compliance of the
G.O.'s
dated
23.06.2010,
25.09.2018,
14.03.2022 and 08.07.2022 was reiterated
with reference to the orders passed in this
petition on 19.05.2023. In the aforesaid
G.O. dated 12.06.2023, in Paragraph 3
thereof, again, the Chief Secretary has
reiterated that in matters where the State
Government is a contesting party, meaning
thereby, where it has an active role in the
matter, then then counter affidavit or any
pleading should be got vetted by the
Additional Chief Secretary / Principal
Secretary and the counter affidavit should
be prepared on the basis of the narrative
vetted by the said Officer.

6. In view of the above, we hereby
provide that every Government Counsel,
whether he be the Standing Counsel or
A.G.A., or known by any other designation
in the High Court, when he prepares a
counter affidavit, objection or any pleading
of any sort on behalf of the State
Government
or
where
the
State
Government is a party, then he shall first of
all satisfy himself as to whether the
aforesaid Government Orders have been
complied or not ? Only thereafter, such
affidavit of pleading shall be finalized, so
that unnecessary time of the Court is not
wasted when the pleadings have already
been filed and this error or omission is
pointed out to it. The Chief Standing
Counsel and the Government Advocates
shall
take
cognizance
and
ensure
compliance thereof. In fact, if a narrative or
the counter affidavit is required to be vetted
by a senior officer of the Government in
terms of the aforesaid Government Order,
then a counter affidavit prepared in terms
of the said narrative shall contain a specific
paragraph that the said counter affidavit has
been prepared on the basis of the narrative
vetted by the concerned Officer, whose
name and designation should be mentioned,
and also, that this has been prepared in
compliance of the aforesaid Government
order.

7. Shri Sanjay Verma, Additional
L.R. is present from the office of Legal
Remembrancer,
U.P..
He
expresses
apology for non-production of the other
Government Orders in the P.I.L. referred
herein above.

8. Two weeks time is granted to the
petitioner for filing rejoinder affidavit to
the affidavit filed on behalf of the State.

9. List/put up this case after two
weeks.

10. Let a copy of this order be sent to
the Legal Remembrancer, U.P., the Chief
Secretary, Government of U.P., Lucknow,
as also, to the Chief Standing Counsel and
Government Advocate of this Court at
Lucknow & at Allahabad. A copy thereof
be also sent to the learned Advocate
General for his information.
----------
(2024) 9 ILRA 555
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 16078 of 2018

Commissioner,
Kendriya
Vidyalaya
Sangathan & Ors. ...Petitioners
Versus
Central Administrative Tribunal, Allahabad
& Anr. ...Respondents

Counsel for the Petitioners
556 INDIAN LAW REPORTS ALLAHABAD SERIES
Devendra Pratap Singh

Counsel for the Respondents:
Arvind Srivastava III

A. Civil Law - Service Matter - Probationer
-
Termination
of
Service
-
If
the
termination of services of a probationer is
by an order simpliciter, based on the
unsuitability of the employee for the post
and/or unsatisfactory performance, the
action would be tenable in law. However,
if findings are arrived at in an inquiry
regarding misconduct behind the officer's
back or without a regular departmental
inquiry, the simple order of termination is
to be treated as being founded on
allegations and would be bad in law. If,
for determining the suitability of the
probationer for the post in question, an
inquiry is held, and it is on the basis of
that inquiry that a decision is taken to
terminate the probationer's service, the
order will not be punitive in nature.
Conversely, if there are allegations of
misconduct, and an inquiry is held to
ascertain the truth of such misconduct,
and an order terminating the service is
passed based on that inquiry, the order
would be punitive in nature. In each case,
the "motive" or "foundation" behind the
termination order must be ascertained to
decide whether the termination order is
bad in law. (Para 38)

B.
Civil
Law
-
Service
Matter
-
Probationer - Termination of Service
Based
on
Unauthorized
Absence-
Allegation that the applicant remained
unauthorizedly
absent
without
any
sanctioned leave from the competent
authority.
Court
found
that
the
termination order did not contain any
recital indicating that it was based on
misconduct. Instead, it was a simpliciter
discharge order.As the applicant was a
probationer, he did not have any legal
right to challenge the issuance of a
simpliciter
discharge
order.Held:
Termination order upheld. (39, 43)

Allowed. (E-5)
List of Cases cited:

1. Dipti Prakash Banerjee Vs Satyendra Nath
Bose National Centre For Basic Sciences,
Calcutta, (1999) 3 SCC 60

2. Pavendra Narayan Verma Vs Sanjay Gandhi
PGI of Medical Sciences, (2002) 1 SCC 520

3. Chandra Prakash Shahi Vs St. of U.P., (2000)
5 SCC 152

4. State of Punjab Vs Sukhwinder Singh, (2005)
5 SCC 569

5. Municipal Committee, Sirsa Vs Munshi Ram,
(2005) 2 SCC 382

6. State of W.B. Vs Tapas Roy, (2006) 6 SCC
453

7. Muir Mills Unit of NTC (U.P.) Ltd. Vs Swayam
Prakash Srivastava, (2007) 1 SCC 491

8. Chaitanya Prakash Vs H. Omkarappa, (2010)
2 SCC 623

9. Rajesh Kumar Srivastava Vs St. of Jharkhand,
(2011) 4 SCC 447

10. Dr. Vijayakumaran C.P.V. Vs Central
University of Kerala, (2020) 12 SCC 426

11. Punjab Vs Jaswant Singh, (2023) 9 SCC 150

(Delivered by Hon'ble Vikas Budhwar, J.)

1.

Impugned
in
the
present
proceedings
at
the
instance
of
Commissioner,
Kendriya
Vidyalaya
Sangathan, New Delhi (in short 'K.V.S.') is
the order dated 24.04.2018 of Central
Administrative Tribunal, Allahabad, bench
Allahabad (in short 'Tribunal') in O.A.
No.330/01233
of
2010
whereby
the
original application preferred by Sanjay
Singh
(in
short
'original
applicant')
challenging the orders dated 19.08.2009 of
the K.V.S. terminating the services of the
original applicant as well as the order dated
9 All. Commissioner, Kendriya Vidyalaya Sangathan & Ors. Vs. Central Administrative Tribunal,
 Allahabad & Anr.
557
10.11.2009
holding
that
the
appeal
preferred by the original applicant on
08.08.2009 in terms of Article 81-B read
with sub-para 7 of the Education Code
against the show cause memorandum dated
28.05.2009 does not lie, order dated
15/18.06.2010
whereby
the
revision
preferred by the original applicant against
the termination order dated 19.11.2008
needs no reconsideration and the order
dated
02.07.2010
rejecting
the
representation of the original applicant for
reconsideration of the order discharging
him from service, has been allowed, all the
orders impugned have been set aside and
original applicant has been ordered to be
reinstated back in service.

2. A joint statement has been made by
learned counsel for the rival parties that the
pleadings are complete and they do not
intend to file any further affidavits and the
writ petition be decided on the basis of the
documents available on record. With the
consent of the parties, the writ petition is
being decided at the admission stage.

Facts

3. The case of the original applicant
projected before the Tribunal was that
pursuant
to
a
recruitment
exercise
undertaken by the K.V.S., the original
applicant after facing selection was offered
appointment
on
the
post
of
Work
Experience Teacher in the pay scale of Rs.
5500-175-9000/- in Kendriya Vidyalaya,
Dinjan, Assam on 19.11.2008. As per the
offer of the appointment to the post of
Work Experience Teacher, the original
applicant was to report on duty by
05.12.2008. The original applicant claims
to have reported for duty on 02.12.2008
and performed his duties with utmost
sincerity till 12.12.2008. Since Dinjan
happened to be a very cold station and the
original applicant was short of warm
clothes so he took permission from the
Principal of the K.V.S., Assam and got his
leave
sanctioned
w.e.f.
13.12.2008
onwards.

4. According to the original applicant,
the Vidyalaya in question was going to
close for winter vacation from 21.12.2008
so there was no question of any loss to the
students. It is also the case of the original
applicant that on the reopening of the
Vidyalaya on 01.01.2009, the original
applicant got his reservations done by train,
however, as the ill luck it may be, there
happened to be a major train accident
between Allahabad and Kanpur Station
resulting to cancellation of several trains
which constrained the original applicant to
extend his leave. Somehow, the original
applicant managed to reach Dinjan on
07.01.2009 and he reported for duty on
08.01.2009. The original applicant claims
to have met the Principal of the Vidyalaya
requesting him to accord permission to join
the duties from 01.01.2009 but for the
reasons best known to him, permission was
not accorded to the original applicant to
enter the Vidalaya campus itself. Repeated
request was extended by original applicant
but the same was in vain. The original
applicant
again
on
09.01.2009
and
10.01.2009 requested for joining the duties
on 10.01.2009, the original applicant
claims
to
have
made
telephonic
conversation
with
the
Assistant
Commissioner of the K.V.S. and apprised
him of the entire situation which was
followed by a detailed representation dated
10.01.2009. Being frustrated with the odd
situation and harassment meted to him, the
original applicant claims to have lodged a
first information report at Police Station-
Dinjan. As joining was not accorded and
558 INDIAN LAW REPORTS ALLAHABAD SERIES
things had become bad to worse so the
original applicant having no alternative left,
returned back to Kanpur on 11.01.2009 and
thereafter fell ill due to high fever, he could
not join the Vidalaya.

5. On 30.04.2009, a communication is
stated to have been issued under the
signatures of the Assistant Commissioner
KVS, Regional Office, Silchar, Assam
whereby it was recited that the original
applicant is absent from duties w.e.f.
08.01.2009 and he was advised to report for
duties
immediately
failing
which
disciplinary action would be taken against
him as per K.V.S. Rules. The original
applicant on the receipt of the said
communication reported for duty on
19.05.2009 wherein the Principal of the
K.V.S. apprised him that since the
Vidyalaya is closed, thus, the original
applicant cannot be accorded joining and
he was instructed to join on 22.06.2009, the
opening day of the Vidyalaya after summer
vacation. On 28.05.2009, the Assistant
Commissioner, K.V.S., Regional Office,
Silchar, Assam proceeded to issue a notice
purported to be under Article 81-D of the
Education Code of the Kendriya Vidyalaya
show causing as to why on account of
unauthorized absence, he may not be
deemed to have been removed from the
service and for that purpose 10 days time
for show causing was accorded to the
original applicant. The original applicant
on the receipt of the notice tendered his
reply on 06.05.2009. A representation/
request letter for according joining was also
made
by
the
original
applicant
on
15.06.2009
before
the
Assistant
Commissioner, K.V.S., Silchar, Assam. It
is alleged that the applicant consequent to
the opening of the Vidalaya post vacations
appeared for joining on 22.06.2009 and
thereafter the Principal of the Vidyalaya
permitted the original applicant to join
duties on 22.06.2009 and he worked up till
25.06.2009. On 25.06.2009, the Principal
of the Vidyalaya directed the original
applicant to sign some blank papers and
also obtained his receipt on certain orders
and proceeded to cancel the entire joining
of the original applicant from 22.06.2009 to
25.06.2009 (four days) on the premise that
the original applicant was erroneously
permitted to join, the original applicant on
25.06.2009 claims to have preferred an
objection
against
the
notice
dated
28.05.2009 of the Assistant Commissioner,
K.V.S., Silchar, Assam.

6.

Thereafter,
the
Senior
Administrative Officer of the K.V.S.
(H.Q.), New Delhi proceeded to issue a
communication dated 14.07.2009 requiring
the original applicant to prefer appeal
before the appellate authority against loss
of the lien vide order dated 28.05.2009 of
the
Assistant
Commissioner,
K.V.S.
Regional Office, Silchar. On 08.08.2009,
the original applicant preferred an appeal
before
the
appellate
authority.
On
19.08.2009, an order came to be passed by
the
Assistant
Commissioner,
K.V.S.
Regional Office, Silchar, Assam whereby
the services of the original applicant came
to be terminated on completion of one
month notice.

7. Being aggrieved against the
termination order dated 19.08.2009 of the
Assistant Commissioner, K.V.S., Regional
Office,
Silchar,
Assam,
the
original
applicant
preferred
an
appeal
on
09.09.2009 before the appellate authority.
On 10.11.2009, the Joint Commissioner
(Acad. and Admin.)/ appellate authority
proceeded to pass an order holding that
appeal preferred by the original applicant
before the appellate authority was not
9 All. Commissioner, Kendriya Vidyalaya Sangathan & Ors. Vs. Central Administrative Tribunal,
 Allahabad & Anr.
559
maintainable against the show cause
memorandum
dated
28.05.2009.
The
applicant thereafter preferred a detailed
representation on 06.03.2010 in the form of
Revision under Schedule-II read with
Appendix-III of K.V.S. Code.

8. The original applicant being further
aggrieved against the acts and omissions of
the writ petitioners/ K.V.S. preferred O.A.
No.683 of 2010 before the Tribunal,
(Sanjay Singh v. State of U.P. and others)
which came to be disposed of on
10.05.2010 with a direction to the original
applicant to file reply to the show cause
notice dated 28.05.2009 within a period of
two weeks from the date of the receipt of
the certified copy of the order and the
competent authority was directed to pass a
reasoned and speaking order within a
period of two months. The original
applicant
submitted
his
response/
objection to the show cause notice on
12.05.2010.
On
15/18.06.2010,
the
Education Officer of K.V.S., New Delhi
proceeded to pass an order holding that
there is no provision of reconsideration
of the termination during probation in
terms of the offer of the appointment.
On 02.07.2010, another communication
came to be issued negating the claim of
the original applicant while holding that
since the original applicant was not
confirmed teacher, thus, the provisions
of the Article 81-D of the Education
Code will not apply and due to
inadvertence, a show cause notice came
to be issued on 28.05.2009 which stands
withdrawn.

9. Questioning the orders dated
19.08.2009, 10.11.2009 15/18.06.2010 and
02.07.2010, the original applicant preferred
O.A. No. 330/01233 of 2010 before the
Tribunal seeking following reliefs:

" A. To issue a writ order or
direction in the nature of certiorari,
quashing the order dt. 19.8.09, 10.11.09,
15/18.6.2010 & 2.7.2010 (Annexure no. 1,
2, 3 & 4 respectively) passed by the
respondents.

B. To issue a further writ order or
direction in the nature of mandamus
commanding the respondents to reinstate
the applicant as work experience teacher
and permit him to work as such and grant
him seniority, arrears of salary and other
consequential benefits for which he is
entitled for.

C. To pass any other suitable
order or direction which this Hon'ble
Tribunal may deem fit and proper under
the circumstances of the case.

D. To award the cost of the
present O.A. in favour of the applicant."

10. On being noticed, the writ
petitioners who were respondents before
the Tribunal filed their response, to which a
rejoinder affidavit was filed.

11. The original applicant came up for
consideration before the Tribunal on
24.04.2018
wherein
the
same
stood
allowed, the orders impugned was set aside
and the writ petitioners were directed to
reinstate the original applicant in service as
per
his
appointment
order
with
all
consequential benefits within a period of
three months from the date of the
production of the certified copy of the
order.

12. Questioning the order of the
Tribunal, the present writ petition has been
preferred seeking following reliefs:

"1. issue a writ, order or
direction in the nature of certiorari to call
for record of the case and quash the
560 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and order dated 24.4.2018
passed
by
the
Hon'ble
Central
Administrative Tribunal, respondent no.1
in O.A. No. 1233 of 2010 (Annexure No. 1
to the writ petition).

2. issue any other suitable writ
petition, order or direction, and/or to pass
such other and further order which this
Hon'ble Court may deem fit and proper
under the circumstances of the case.

3. award the cost to the petition
in favour of the petitioner."

13. On 27.07.2018, the following
orders were passed:

"Heard Sri D.P. Singh, learned
counsel for the petitioner and Sri Islam
Ahmad for the respondent no.2.

The
petitioners
in
the
writ
petition are seeking quashing of the order
dated 24.4.2018, passed by the Central
Administrative Tribunal, Allahabad in O.A.
No.330/01233/2010, whereby, the Tribunal
has set aside the order of termination of
respondent
no.2
and
directed
his
reinstatement
in
service
with
all
consequential benefits.

The
matter
requires
consideration.

Respondent may file counter
affidavit within four weeks.

List thereafter.

Till the next date of listing,
operation of order of the Tribunal dated
24.4.2018, shall remain stayed."

14. A response has been filed by the
original applicant to which a rejoinder
affidavit has been filed.

Arguments of Counsel for K.V.S.

15. Shri D.P. Singh, learned counsel
for the writ petitioners/ K.V.S. has sought
to argue that the judgment and order of the
Tribunal,
impugned
in
the
present
proceedings cannot be sustained for a
single moment inasmuch as the Tribunal
while endorsing the claim of the original
applicant has misconstrued the entire
controversy and adopted an incorrect
approach. Elaborating the said submission,
it is being submitted that the reasoning
assigned by the Tribunal while coming to
the conclusion that it was a case of punitive
discharge of services suffers from inherent
fallacy, particularly, when neither any
preliminary inquiry nor any departmental
enquiry was initiated pursuant to issuance
of any charge-sheet. However, only on the
basis of overall assessment of the work of
the original applicant, he was discharged
from services. According to the writ
petitioners, the original applicant was a
probationer who was offered appointment
on the post of Work Experience Teachers
on a probation period with a clear
stipulation during the probation period and
thereafter, before he is confirmed, the
services of the original applicant are
terminable by one month notice or either
side without any reasons being assigned.

16.

Submissions
is
that
the
probationer does not possess any legal right
to resist the discretion exercised by the
appointing authority in discharging his
services, as the original applicant is only a
probationer subject to overall assessment
by the employer. He further submits that
though the writ petitioner pursuant to the
offer of the appointment reported on duty
on 02.12.2008 but without there being any
sanctioned
leave,
he
unauthorizedly
remained absent from 13.12.2008 that too
without due intimation and merely because,
a notice purported to be under sub-clause
(3) of Article 81-D of the Education Code
was issued proposing to discharge his
9 All. Commissioner, Kendriya Vidyalaya Sangathan & Ors. Vs. Central Administrative Tribunal,
 Allahabad & Anr.
561
services on account of the voluntary
abandonment of services, the same would
not give any legal right to the original
applicant, particularly, when no further
action whatsoever was taken on the said
notice and the same stood withdrawn.

17. Argument is that the position
might have been different in case for any
misconduct (unauthorized absence) any
departmental enquiry was proceeded with
thus the entire approach of the Tribunal
itself, proceeds on misconception of facts
and law and the order impugned in question
is liable to be set aside.

18. Attention has also been invited
towards
the
order
dated
19.08.2009
dispensing with the services of the original
applicant so as to contend that the order
does not indicate in any manner whatsoever
that the same is punitive as the position is
otherwise as it is a simpliciter order of
discharge. Reliance has been placed
upon the decision in the cases of
Municipal Committee, Sirsa v. Munshi
Ram, (2005) 2 SCC 382, Punjab and
Others v. Sukhwinder Singh, (2005) 5
SCC 569, Chaitanya Prakash and
Another v. H. Omkarappa, (2010) 2
SCC 623 and Rajesh Kumar Srivastava
v. State of Jharkhand and Others,
(2011) 4 SCC 447 so as to content that
the probationer has no legal right and it
is always open for the employer to
adjudge the suitability and once a
simpliciter discharge order is passed
then
there
is
no
requirement
of
adherence of the principle of natural
justice. It is, thus, prayed that the order
of the Tribunal be set aside and the writ
petition be allowed in toto.

Arguments of Learned Counsel for
Original Applicant

19. Countering the submission of the
learned counsel for the K.V.S., Shri Arvind
Srivastava-III who appears for the original
applicant submits that the order of the
Tribunal needs no interference in the
present proceedings. It is submitted that the
services of the original applicant has been
dispensed with by resorting to punitive
measure as the basic reason attributable to
terminate the services of the original
applicant was the allegation with respect to
unauthorized absence.

20. Submission is that once the show
cause notice dated 28.05.2009 came to be
issued containing an allegation to the effect
that
the
original
applicant
was
unauthorizedly absent from duty then it is a
open and shut case that the writ petitioners
had resorted to punitive measures.

21. According to the original
applicant,
there
were
intervening
circumstance beyond the control of the
original applicant which created a situation
whereby after taking permission, the
original applicant proceeded on leave and
left the station on 13.12.008 and thereafter
when he reported for joining on 08.01.2009
but he was not allowed joining but
subsequently, he was accorded joining on
22.06.2009 and he worked till 25.06.2009
and thereafter unilaterally the joining of the
original applicant was cancelled. It is the
submission of the original applicant that the
entire action taken by the writ petitioners is
just in order to get rid off the original
applicant as though at one stage notice
dated 28.05.2009 was sought to be issued
but in order to hush up the entire episode,
the notice stood withdrawn which itself
shows that the entire action is nothing but a
camouflage. While driving force from the
judgment in Anoop Jaiswal v. Government
of India and Another 1984 (2) SCC 369. It
562 INDIAN LAW REPORTS ALLAHABAD SERIES
is contended that the order dispensing with
the services with the original applicant is
punitive and on account of misconduct that
too in violation of principles of natural
justice. Reliance has also been placed upon
the judgment in Jarnail Singh and Others
v. State of Punjab and Others, 1986 (3)
SCC 277 so as to further contend that once
the services are to be terminated on the
basis of the allegations of misconduct then,
the same partakes the character of a
punitive order. Therefore, it is prayed that
the writ petition be dismissed and the
judgment and the order of the tribunal be
affirmed.

Analysis

22. We have given the thoughtful
submission of the rival parties and perused
the record.

23. Undisputedly, an offer of
appointment came to be issued in favour of
the original applicant on 19.11.2008
appointing the original applicant as a Work
Experience Teacher in Kendriya Vidyalaya,
Dinjan Assam in the pay scale of Rs.5500175-9000/- whereby the original applicant
was to report on duty by 05.12.2008.

24. The relevant terms and conditions
of the offer of the appointment is quoted
hereinunder:

"4. He/She will be on probation
for a period of 02 years which may be
extended. Upon successful completion of
probation, he/she will be confirmed in
his/her turn as per Kendriya Vidyalaya
Sangathan rules.

5. During the probation and
thereafter, until he/she is confirmed, the
services of the appointee are terminable by
one month notice on either side without any
reason
being
assigned,
thereof.
The
appointing authority, however, reserves the
right to terminate the services of the
appointee before expiry of the stipulated
period of notice by making payment of such
equivalent to the pay & allowances for the
period of notice of the unexpired portion
thereof."

25. It is also not in dispute that the
original applicant reported for joining on
02.12.2008 and thereafter proceeded to
leave the appointed place on 13.12.2008.
Pleadings reveal that on one hand the
original applicant claims that he was
accorded permission and his leave was
sanctioned w.e.f. 13.12.2008 but on the
other hand the same is disputed by the
K.V.S. as according to them, there is
nothing on record to suggest that the leave
was sanctioned. As per the original
applicant, the Vidyalay went off for winter
vacation from 21.12.2008 and was to
reopen on 01.01.2009 but due to a major
train accident between Allahabad-Kanpur
station, the train was cancelled so he
reached Dinjan on 07.01.2009 and reported
for duty on 08.01.2009 but he was not
accorded joining and he made request on
09.01.2009 and 10.01.2009 but the same
was in vain so he made correspondences
before the Assistant Commissioner, K.V.S.
as well as the Principal. The original
applicant returned back to Kanpur on
11.01.2009 wherein he claims to have
received a letter dated 30.04.2009 of the
Assistant Commissioner, K.V.S. requiring
him to join the duties as he was
unauthorizedly
absent,
so
he
again
approached the Vidyalay and he was
accorded joining on 22.06.2009 and he
discharged the duties till 25.06.2009 (four
days), whereafter a notice came to be
issued on 28.05.2009 of the Assistant
Commissioner,
Kendriya
Vidyalaya
9 All. Commissioner, Kendriya Vidyalaya Sangathan & Ors. Vs. Central Administrative Tribunal,
 Allahabad & Anr.
563
Sangathan Regional Office, Silchar, Assam
show causing the original applicant that as
to why he shall not be deemed to have been
abandoned the service owing to loss of lein
for not joining the duties. On 19.08.2009,
an order came to be passed by the Assistant
Commissioner,
Kendriya
Vidyalaya
Sangathan Regional Office, Silchar, Assam
whereby the original applicant services
stood terminated on completion of one
month.

26. The bone of contention between
the parties is whether the order of
terminating the services of the original
applicant on the face of allegation of
unauthorized absence can be said to be an
exercise of termination simpliciter or
punitive. To answer the said question, it
would be apposite to retrace the law on the
said subject.

27. The Hon'ble Supreme Court in
Dipti Prakash Banerjee v. Satyendra Nath
Bose National Centre For Basic Sciences,
Calcutta and Others, (1999) 3 SCC 60, in
para 21 had observed as under:

"If findings were arrived at in an
enquiry as to misconduct, behind the back
of the officer or without a regular
departmental enquiry, the simple order of
termination is to be treated as "founded' on
the allegations and will be bad. But if the
enquiry was not held, no findings were
arrived at and the employer was not
inclined to conduct an enquiry but, at the
same time, he did not want to continue the
employee
against
whom
there
were
complaints, it would only be a case of
motive and the order would not be bad.
Similar is the position if the employer did
not want to enquire into the truth of the
allegations because of delay in regular
departmental proceedings or he was
doubtful about securing adequate evidence.
In such a circumstance, the allegations
would be a motive and not the foundation
and the simple order of termination would
be valid."

28. In Pavendra Narayan Verma v.
Sanjay Gandhi PGI of Medical Sciences
and Another, (2002) 1 SCC 520, in para
29, the following was held:

"Before considering the facts of
the case before us one further, seemingly
intractable, area relating to the first test
needs to be cleared viz. what language in a
termination order would amount to a
stigma?
Generally
speaking
when
a
probationer's appointment is terminated it
means that the probationer is unfit for the
job, whether by reason of misconduct or
ineptitude, whatever the language used in
the termination order may be. Although
strictly speaking, the stigma is implicit in
the termination, a simple termination is not
stigmatic. A termination order which
explicitly states what is implicit in every
order of termination of a probationer's
appointment, is also not stigmatic. The
decisions cited by the parties and noted by
us earlier, also do not hold so. In order to
amount to a stigma, the order must be in a
language which imputes something over
and above mere unsuitability for the job."

29. In Chandra Prakash Shahi v.
State of U.P. and Others, (2000) 5 SCC
152, following was observed:

"28. The important principles
which are deducible on the concept of
"motive" and "foundation", concerning a
probationer, are that a probationer has no
right to hold the post and his services can
be terminated at any time during or at the
end of the period of probation on account
564 INDIAN LAW REPORTS ALLAHABAD SERIES
of general unsuitability for the post in
question. If for the determination of
suitability of the probationer for the post in
question or for his further retention in
service or for confirmation, an inquiry is
held and it is on the basis of that inquiry
that a decision is taken to terminate his
service, the order will not be punitive in
nature. But, if there are allegations of
misconduct and an inquiry is held to find
out the truth of that misconduct and an
order terminating the service is passed on
the basis of that inquiry, the order would be
punitive in nature as the inquiry was held
not for assessing the general suitability of
the employee for the post in question, but to
find out the truth of allegations of
misconduct against that employee. In this
situation, the order would be founded on
misconduct and it will not be a mere matter
of "motive".

29. "Motive" is the moving power
which impels action for a definite result, or
to put it differently, "motive" is that which
incites or stimulates a person to do an act.
An order terminating the services of an
employee is an act done by the employer.
What is that factor which impelled the
employer to take this action? If it was the
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 and a
preliminary inquiry is held behind his back
to ascertain the truth of those allegations
and
a
termination
order
is
passed
thereafter, the order, having regard to
other circumstances, would be founded on
the allegations of misconduct which were
found to be true in the preliminary
inquiry."

30. In State of Punjab and Others v.
Sukhwinder Singh, (2005) 5 SCC 569, the
Hon'ble Supreme Court was confronted
with the situation wherein a probationer
remained continuously absent for 22 days
and he was discharged without holding a
formal or a departmental enquiry or a
preliminary or fact finding inquiry, it was
held as under:

"20. In the present case neither
any formal departmental inquiry nor any
preliminary fact-finding inquiry had been
held and a simple order of discharge had
been passed. The High Court has built an
edifice on the basis of a statement made in
the written statement that the respondent
was a habitual absentee during his short
period of service and has concluded
therefrom that it was his absence from duty
that weighed in the mind of the Senior
Superintendent of Police as absence from
duty is a misconduct. The High Court has
further gone on to hold that there is direct
nexus between the order of discharge of the
respondent from service and his absence
from duty and, therefore, the order
discharging him from service will be
viewed as punitive in nature calling for a
regular inquiry under Rule 16.24 of the
Rules. We are of the opinion that the High
Court has gone completely wrong in
drawing the inference that the order of
discharge dated 16-3-1990 was, in fact,
based upon misconduct and was, therefore,
punitive in nature, which should have been
preceded by a regular departmental
inquiry. There cannot be any doubt that the
respondent was on probation having been
appointed about eight months back. As
observed in Ajit Singh v. State of Punjab
the period of probation gives time and
opportunity to the employer to watch the
work, ability, efficiency, sincerity and
competence of the servant and if he is
found not suitable for the post, the master
reserves a right to dispense with his service
9 All. Commissioner, Kendriya Vidyalaya Sangathan & Ors. Vs. Central Administrative Tribunal,
 Allahabad & Anr.
565
without anything more during or at the end
of the prescribed period, which is styled as
period of probation. The mere holding of
preliminary inquiry where explanation is
called from an employee would not make
an otherwise innocuous order of discharge
or termination of service punitive in nature.
Therefore, the High Court was clearly in
error in holding that the respondent's
absence from duty was the foundation of
the order, which necessitated an inquiry as
envisaged under Rule 16.24(ix) of the
Rules."

31. In Municipal Committee, Sirsa v.
Munshi Ram, (2005) 2 SCC 382, the issue
involved and which engaged attention was
with respect to termination of a probationer
and in para 10, it was observed as under:

"It is clear from the above that if
the order of termination indicates that it is
a termination simpliciter and does not cast
any stigma on the employee by the said
order of termination the mere fact that
there was an inquiry into his conduct
earlier would not by itself render the
termination invalid. Applying the said
principle, we see that the order of
termination in the present case is an order
of discharge simpliciter. But in the course
of the inquiry, the Labour Court noticed
that on an earlier day there was some
incident where the administrative officer
found some lacunae in the working of the
respondent but based on that no chargesheet
was
served
nor
inquiry
was
conducted. However, the appellant came to
the conclusion that it is not in its interest to
continue the respondent's services, hence,
discharged him. In the background, the
mere fact that there was a misconduct on
the part of the respondent which was not
enquired into ipso facto does not lead to
the conclusion that the order of termination
is colourable and in fact is a punitive
order."

32. The Hon'ble Supreme Court in
State of W.B. and Others v. Tapas Roy,
(2006) 6 SCC 453 was dealing with a
discharge
order
mentioning
several
instances of unauthorized absence of a
probationer
and
while
following
the
judgments on the said subject, it was
observed as under:

"8. The High Court was of the
view that Rule 10 of the Rules did not apply
to orders which were stigmatic. As has
already been held by this Court in
Pavanendra Narayan Verma v. Sanjay
Gandhi PGI of Medical Sciences that in
order to constitute a stigmatic order
necessitating a formal inquiry, it would
have to be seen whether prior to the
passing of the order, there was an inquiry
into
the
allegations
involving
moral
turpitude or misconduct so that the order of
discharge was really a finding of guilt. If
any of these three factors are absent, the
order would not be punitive. We have also
held that stigma in the wider sense of the
word is implicit in every order of
termination during probation. It is only
when there is something more than
imputing unsuitability for the post in
question, that the order may be considered
to be stigmatic. In our view, the language,
quoted earlier in the discharge order,
cannot be said to be stigmatic as it neither
alleges any moral turpitude or misconduct
on the part of the respondent nor was there
an inquiry as such preceding the order of
discharge. The order has been passed
strictly in terms of Rule 10 of the Rules. We
are, accordingly, of the view that the
appeal must be allowed. It is, accordingly,
allowed and the impugned order is set
aside."
566 INDIAN LAW REPORTS ALLAHABAD SERIES

33. In Muir Mills Unit of NTC (U.P.)
Ltd. v. Swayam Prakash Srivastava and
Another, (2007) 1 SCC 491, the Hon'ble
Apex Court held as under:

"44 Also in Registrar, High
Court of Gujarat v. C.G. Sharma it was
observed that an employee who is on
probation can be terminated from services
due to unsatisfactory work.

45. This Court's decision in P.N.
Verma v. Sanjay Gandhi PGI of Medical
Sciences1 can be referred to in this context,
where it was held by this Court that the
services of a probationer can be terminated
at anytime before confirmation, provided
that such termination is not stigmatic. This
Court in State of M.P. v. Virendera Kumar
Chourasiya also has held that in the event
of a non-stigmatic termination of the
services of a probationer, principles of audi
alteram partem are not applicable."

34. While dealing with the case of a
probationer
whose
services
stood
terminated on account of the unsatisfactory
service, in the case of Chaitanya Prakash
and Another v. H. Omkarappa, (2010) 2
SCC 623, the following was observed:

"18. It is no longer res integra
that even if an order of termination refers
to unsatisfactory service of the person
concerned, the same cannot be said to be
stigmatic. In this connection, we make a
reference to the decision of the Supreme
Court in Abhijit Gupta v. S.N.B. National
Centre, Basic Sciences1, wherein also a
similar letter was issued to the employee
concerned
intimating
him
that
his
performance
was
unsatisfactory
and,
therefore,
he
is
not
suitable
for
confirmation. We have considered the ratio
in light of the facts of the said case and we
are of the considered opinion that the basic
facts of the said case are almost similar to
the one in hand. There also, letters were
issued to the employee concerned to
improve his performance in the areas of his
duties
and
that
despite
such
communications the service was found to
be unsatisfactory. In the result, a letter was
issued to him pointing out that his service
was found to be unsatisfactory and that he
was not suitable for confirmation, and,
therefore, his probation period was not
extended and his service was terminated,
which was challenged on the ground that
the same was stigmatic for alleged
misconduct. The Supreme Court negatived
the said contention and upheld the order of
termination."

35. With regard to termination of a
probationer on the premise of nonsuitability for the job, the Hon'ble Supreme
Court in Rajesh Kumar Srivastava v. State
of Jharkhand and Others, (2011) 4 SCC
447 observing held as follows:

"The order of termination passed
in the present case is a fallout of his
unsatisfactory service adjudged on the
basis of his overall performance and the
manner in which he conducted himself.
Such decision cannot be said to be
stigmatic or punitive. This is a case of
termination of service simpliciter and not a
case
of
stigmatic
termination
and,
therefore, there is no infirmity in the
impugned judgment and order passed by
the High Court."

36. The Hon'ble Supreme Court in
Dr.