The termination of a probationer's services is punitive if it is based on specific allegations of misconduct, and the reports forming the foundation of the order contain serious allegations against the employee.

JANARDAN SAHAI, J.

( 1 ) T h e petitioner was appointed on probation as Manager of the University Press, Aligarh muslim University by order dated 11. 1. 2000. The probationary period was extended on 11. 1. 2001 for a further period of one year. Before the expiry of the period of probation the services of the petitioner have been terminated by the impugned order dated 4. 12. 2001 of the vice Chancellor under Section 19 (3) of the Aligarh Muslim University Amendment Act, 1981, in terms of Regulation 14 (a) of the Regulations governing the terms and condition of services of non-teaching employees. The order makes reference to two reports given by the member-in-charge of the Aligarh Muslim University and goes on to state that "as the member-in-charge are not satisfied with the work, conduct and performance" of the petitioner the Vice Chancellor after considering all the facts has ordered that the services of the petitioner shall cease with effect from 4. 1. 2002.

( 2 ) SRI P. N. Saxena, learned senior counsel for the petitioner has described the order on the terms in which it is couched as stigmatic, as it expresses non satisfaction about the conduct, work and performance of the petitioner. It is also submitted that if the order is read along with the report of the Member-in-charge which should be treated virtually as part thereof the stigma is expressed in no uncertain terms. The Member-in-charge was satisfied regarding the truth of specific allegations of misconduct and the order being founded thereupon is punitive. It may here be stated that although the reports were not appended to the order but on the request of the counsel for the petitioner, the copy of the reports were supplied by the counsel of the University to the learned counsel for the petitioner and have been put on record along with the rejoinder-affidavit. The first report is dated 16. 8. 2001. While the second is dated 22. 11. 2001. It is not in dispute that no regular disciplinary enquiry after giving opportunity to the petitioner was held and therefore if it is found that the order is punitive it cannot be sustained.

( 3 ) NOW we shall take up the contentions one by one in the order advanced by the petitioners counsel. The expression "as the Member-in-charge are not satisfied with the work, conduct and performance" of the petitioner have been described as stigmatic. Reliance is placed upon V. P. Ahuja v. State of Punjab and Ors. , in which the words "however he failed in the performance of his duties administratively and technically" occurring In the order terminating the services of a probationer have been held by the Apex Court to be stigmatic. It is well-settled that if the services of a probationer are terminated on the ground of inefficiency or incompetence expressed in the order the expression casts a stigma and, therefore, a punishment. failure means the inability to perform an obligation. Failure in performance of duty means either non performance or performance below the minimum expected standard and, therefore, this expression does involve when used in the context of performance of duty an attribute of inefficiency or incompetence or negligence or some such vice resulting in the failure. On the other hand if the expression is not satisfied with the work or conduct or performance of the employee it does not reflect any opinion of incompetence or inefficiency or negligence. The employer may not be satisfied for many reasons. Even though the employee may not be incompetent, the employer may expect an unusually high degree of efficiency and may, therefore, not be satisfied. Non-satisfaction expressed regarding conduct when used in association with work and performance would not mean misconduct or unbecoming conduct or casting an aspersion on character of the person referred to. In State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, a five Judges Bench of the Apex Court held that the words unsatisfactory work and conduct in the order discharging a probatio

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