IMPORTANT POINT
Requirement to hold a regular departmental enquiry before dispensing with services of a probationer cannot be invoked when services of probationer is terminated by an innocuous order which does not cast any stigma on him.

ORDER

Respondent was appointed as Assistant Development Officer on 4th September, 1985. After completion of the period of Apprenticeship, he was placed on probation as Development Officer with effect from 4th December, 1985. While he was still a probationer, his services were terminate by order dated 22.5.1986 which was challenged in a writ petition before the High Court of Karnataka.

2. Relying upon the decision, of this Court in Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly Anr. etc.1, a learned Single Judge of the High Court by judgment dated 12.8.1986 allowed the writ petition and quashed the order of termination. The judgment was upheld by the Division Bench in appeal. Now, the matter is in this Court. We have heard learned counsel for the parties.

3. Reliance placed by the High Court on the decision of this Court in Central Inland Water Transport Corporation Ltd. (supra) was wholly out of place as that decision related to a permanent employee whose services could be terminated at any time by giving three months notice. This Court held that such a provision for terminating the services of a permanent employee was wholly arbitrary and that the services of the permanent employee could not be terminated except by giving him an opportunity of hearing. The High Court was of the view, and in our opinion, wrongly, that the case of the probationer was not different from that of the permanent employee and, therefore, applied the law laid down by this Court in Central Inland Water Transport Corporation Ltd. s case (supra) to the case of the respondent who was a mere probationer, and held that the termination order was bad.

4. Clause 2 of the Letter of Appointment issued to respondent reads as under :

"You shall be on probation initially for a period of twelve months from the date of your joining duties as a probationer, but the Corporation may, in its sole discretion, extend your probationary period provided that the total probationary period including the extended period shall not exceed 24 months counted from the commencement of the probationary appointment. During the probationary period (which includes extended probationary period, if applicable) you shall be liable to discharge from service of the Corporation without any notice and without any cause being assigned."

This Clause clearly stipulates that the respondent could be discharged from service at any time during the period of probation or extended period of probation, without any notice or without assigning any cause.

5. The period of probation is a period of test during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post. He gets the right to continue on the post till he attains the age of superannuation or is dismissed or removed from service for misconduct etc. after disciplinary proceedings in accordance with the Rules at which he is given a fair and reasonable opportunity of being heard. He may also come to loss the post on compulsory retirement.

6. In Moti Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaon, Pandu, etc.2, a majority of Seven Judges held that a permanent employee who substantively holds a permanent post has a right to hold the post till he reaches the age of superannuation or till he is compulsorily retired under the relevant Rule. Termination of his service in any other manner would amount to invasion of