The termination of a probationer’s service is not punitive and does not attract Article 311(2) unless it indicates misconduct. The nature of the termination must be assessed based on substance over form.

ORDER

1. This petition is filed by one Sanjay Sahu S/o Shri Ramesh Sahu who was working as Lower Division Clerk being aggrieved of order dated 3.2.1995 passed by the Secretary, Lokayukta office, Bhopal (M.P.) whereby services of the petitioner were discharged while he was on probation on account of nonrequirement of his services.

2. Petitioner is also aggrieved of the order dated 6th November, 2006 passed by the Director General of Special Police Establishment, in the office of Lokayukta establishment, Bhopal (M.P.) whereby the Director General after taking note of the orders passed by the coordinate Bench of this High Court in W.P.(s) No. 332/2004 on 23.8.2006 observing that the appeal be decided within four months by a reasoned order, decided the appeal holding that there is no provision for filing of appeal against the orders of Secretary, Lokayukta Establishment to the Director General of Special Police Establishment.

3. Petitioner's contention is that these orders are not sustainable in the eyes of law. It is submitted that petitioner was not allowed to complete even two years term on probation, in as much as, his appointment order is dated 28.10.1993 and he was discharged from service vide order dated 3.2.1995.

4. Shri Divy Krishna Bilaiya has placed reliance on a Division Bench decision of this court in Sunil Kumar Verma v. The High Court of Judicature at Jabalpur and another in W.A. No. 413/2006 decided on 2nd May, 2022 and reading from para 6 onwards, it is submitted that the said judgment will have application to the facts and circumstances of the present case and, therefore, the order of discharge be set aside.

5. When Shri Bilaiya is requested to point out from the pleadings that where is the pleading that order impugned is a stigmatic order and thus, not an order of discharge simpliciter but that of termination for which departmental enquiry was mandatory, Shri Bilaiya reads para 5.9 of the writ petition to point out that the order in question is stigmatic. Para 5.9 of the petition reads as under :--

" That, in given case respondents have not only issued show cause notice twice to the petitioner but they have also subjected him to transfer from Bhopal to Sagar and ultimately they have issued impugned order of termination without allowing him to complete two years probation period. The respondents have filed two returns in the previous round of litigation wherein they have repeatedly averred that they were not happy with the performance of petitioner in service and they have virtually made up their mind to terminate the services of petitioner out of unsatisfactory performance even before he could complete his agreed period of probation. It is therefore humbly submitted that the malafide intention, vindictive approach and arbitrary exercise of powers of respondents are apparent on the face of the record and thus impugned order of termination deserves to be set aside."

6. Reading from the judgment of the Division Bench in the case of Sunil Kumar Verma (supra), it is pointed out that the Supreme Court in the case of Jagdish Mitter v. The Union of India AIR 1964 SC 449 has considered the scope of applicability of Article 311 (2) of the Constitution of India in a case of dismissal or removal of a temporary employee. In that case, the employee was working as a temporary Second Division Clerk in the General Post Office. His services were terminated on the ground that it was found undesirable to retain him in a Government service and hence, with one month's notice, he was discharged from services. The Hon'ble Supreme Court in that c