Employers have the right to terminate a probationer's service without stigma or penal action, and the motive behind the termination is crucial in determining the nature of the action.

Pradeep Nandrajog, J.

1. Respondent Janved Meena was appointed on probation as a Staff Nurse on March 25, 2009, by the Health Department of the Government of NCT of Delhi and was posted at Jag Pravesh Chandra Hospital. A complaint was made by one Rohtash Yadav that respondent was demanding Rs.50,000/- for granting medical clearance to him inasmuch as he had been empanelled for appointment as Constable in Delhi Police and therefore he had to be medically examined for medical fitness to be declared prior to letter offering appointment being issued to him.

2. The Anti Corruption Branch of the Government of NCT Delhi to whom the complaint was made laid a trap on July 08, 2010 at which Janved Meena was allegedly caught red handed accepting bribe in sum of Rs.15, 000/- from the complainant for which FIR No.29/2010 dated July 08, 2010 for offences punishable under Section 7 and 13 of the Prevention of Corruption Act, 1988 read with Section 120-B IPC was registered. The

respondent was arrested the same day i.e. July 08, 2010. Since challan could not be presented within 60 days, respondent was granted statutory bail.

3. On December 11, 2010 services of the respondent were terminated and power vested under Rule 5 of the CCS (Temporary Service) Rules, 1965 was exercised. The order terminating respondent’s service is non-stigmatic and simply records that on expiry of one month from date of issue of notice his services shall stand terminated. It may be noted here that upon respondent being arrested on July 08, 2010 and remaining in custody for a period exceeding 48 hours, an order dated July 13, 2010 was issued recording that respondent would be deemed to be suspended with effect from July 08, 2010 in terms of sub-Rule (2) of Rule 10 of the CCS (CCA) Rules, 1965.

4. Respondent questioned his services being terminated by filing OA No.57/2011 which has been allowed vide impugned order dated January 09, 2012, observing that the record produced would reveal that the misconduct of taking bribe and consequential arrest and detention was the reason to terminate respondent’s service thereby colouring the termination as punishment. Setting aside the termination order, liberty has been granted to the petitioner to proceed against the respondent as per law for the alleged misconduct. The Tribunal has relied upon the law declared by the Supreme Court in the decisions reported as (2000) 5 SCC 152 Chandra Prakash Shahi Vs. State of UP & Ors. and (2008) 1 SCC (L & S) 457 Nehru Yuva Kendra Sangathan Vs. Mehbub Alam Laskar.

5. With respect to the finding returned by the Tribunal that the termination is founded on the alleged misconduct of demanding and receiving bribe, the view taken by the Tribunal may be correct at a first blush and especially keeping in view the pleadings of the writ petitioner in the reply filed to the Original Application, wherein the writ petitioner has pleaded:-

“As demanding, accepting and obtaining the bribe money by a Govt. servant comes under the misconduct, on this ground Shri Janved Meena, Staff Nurse was issued termination notice under Rule 5.”

6. But this is the lawyer’s language. Unfortunately, the lawyer who drafted the reply did not understand the law. The officer of the petitioner who signed the reply filed was not

expected to know the nuances of law drawing a distinction between a termination being ‘founded’ on a alleged wrong and a termination being ‘motivated’ by an alleged wrong. He was not expected to know the legal distinction and its consequences when there was a live and proximate link with an incident and an order terminating services vis-a-vis a case where the employer loses confidence in the employee for an alleged wrong, but the employer is not acting by way of taking a penal action. Thus, the Tribunal ought to have looked into the relevant record.

7. We had perused the relevant record. The order of termination was preceded by the employer considering on December 03, 2010 the issue of suspension