A probationer can only be terminated after following the principles of natural justice, including issuing a charge memo, conducting an enquiry, and proving the alleged misconduct. The absence of these procedures entitles the probationer to the protection under Article 311(2) of the Constitution of India.

N. Paul Vasantha kumar. CJ

1. This Letters Patent Appeal is filed by the appellants challenging the order of the learned Single Judge made in SWP No. 2250/2000 dated 03.08.2004 wherein the learned Single Judge set aside the order of discharge of the respondent.

2. The case of the respondent before the learned Single Judge was that he initially appointed as a daily wager by appellant No. 3 and he was appointed on permanent basis as Warder in the pay scale of Rs. 950-1500 plus usual allowances with effect from 01.07.1996 by Order of the Government in Order No. 538 of 1996 dated 22.06.1996. The respondent joined as a Warder and served till 09.11.1997. The service book of the respondent was also prepared by appellant No. 3 and being a permanent employee of the Government, the GPF account was also allotted to the respondent and subscription was debited to his account from the salary bills. The respondent while discharging his duties in the office of respondent No. 3 developed viral hepatitis due to which he was advised to take complete bed rest by the Doctors. Because of the said serious life threatening disease the respondent was confined to bed and after recovery from the ailment he approached the respondent No. 3 seeking permission to re-join his duty and at that time the appellant No. 3 informed him that he was discharged from service, therefore, he was unable to allow the respondent to re-join his duty. The respondent prayed for issuing a copy of the said order which was issued subsequently and the said order was challenged by contending that respondent even though was on probation, he was discharged from service on the ground of not reporting for duty and even a probationer is entitled to get protection under Article 311(2) of the Constitution of India if discharge order is passed based on certain imputations.

3. Objections were by the appellants to the writ petition stating that the respondent remained unauthorizedly absent from duty, therefore, he was discharged from service from the date of his absence i.e. 11.09.1997 by order dated 01.04.1998.

4. The learned Single Judge taking note of the fact that discharge of the respondent was not a discharge simplicitor but based on the allegations of un-authorized absence, held that only after following the principles of natural justice, namely, issuing charge memo, conducting enquiry and if the charge of un-authorized absence is proved, alone the respondent could have been discharged from service. The learned Single Judge quashed the order of discharge and ordered reinstatement of the respondent within a period of three months. However, the respondent has not pressed for the back wages and the same is recorded in the order of the learned Single Judge.

5. The issue as to whether a probationer can be terminated or his services can be dispensed with without conducting enquiry was considered by Hon'ble the Supreme Court in the decision reported in AIR 1974 SC 2192 (7 Judges Bench) (Shamsher Singh v. State of Punjab and anr) wherein it is held that the decisive factor in the context of discharge of a probationer from service is the substance of the order and not the form in determining whether the order of discharge is stigmatic or not or whether the same formed the motive for or foundation of the order. The same view was reiterated by Hon'ble the Supreme Court in the decision reported in (1992) 2 SCC 21 (Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and anr), (2008) 2 SCC 479 (Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar) and (2010) 8 SCC 220 ( Union of India and ors v. Mahaveer C. Singhvi). In the decision reported in (2010) 8 SCC 220 (Union of India and ors v. Mahaveer C. Singhvi), a plea was taken that the respondent had been discharged from service by a simple order of discharge without a stigma, therefore, being a probationer he was not entitled to protection of Article 311(2) of the Constitution of India. The said argument was repelled noting the fa