1. Discharge from service during probation period for unsatisfactory services. (Para 1 , 2 , 4 , 5 , 6 , 7 )
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2025 Supreme(Online)(HP) 9457
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
GURMEET SINGH SANDHAWALIAHON'BLE MR. JIYA LAL BHARDWAJ
FAQEER CHAND – Appellant
Versus
HIGH COURT OF HP – Respondent
CWP/7191/2023
Legal Category Hierarchy
Petitioner Advocates:Sunita Sharma ,Respondent Advocate: Janesh Gupta
Table of Contents
2. Petitioner argued discharge was punitive due to criminal proceedings; respondent argued it was simpliciter during probation. (Para 2 , 3 , 10 , 11 , 12 , 13 , 14 )
3. Petition dismissed; discharge during probation held valid as simpliciter. (Para 15 , 16 )
4. What is the legal test for determining whether termination of a probationer is punitive or simpliciter?
The test is whether the servant had a right to hold the post; if not, termination simpliciter is not punishment and does not require departmental inquiry. (Para 10 , 13 , 14 )
5. Does the existence of criminal proceedings against a probationer automatically render a discharge order punitive?
No, if the discharge order does not refer to the criminal proceedings and is based on unsatisfactory work, it remains simpliciter and valid. (Para 8 , 11 , 15 )
6. Can a probationer be discharged simpliciter without a departmental inquiry even when there is suspicion of misconduct?
Yes, the employer may terminate simpliciter if it does not wish to investigate misconduct and is not satisfied with the employee's work. (Para 10 , 14 )
7. What is the significance of an appointment order stating that probationer's service can be terminated at any time without notice if work not satisfactory?
Such a term reinforces that the probationer has no right to the post, and discharge on that ground is simpliciter and not punitive. (Para 4 , 6 , 7 )
8. When does a discharge order become stigmatic requiring departmental inquiry?
When the order itself ex-facie contains allegations of misconduct or reflects an inquiry into guilt, as opposed to a simple statement of unsatisfactory work. (Para 11 , 12 )
Challenge in the present Civil Writ Petition (CWP) is sought to the order dated 27.09.2023 (Annexure P-7), whereby the petitioner was discharged from service during the period of probation, while working as Peon of Choice of one of the Judges of this Court on account of having rendering unsatisfactory services.
2. The challenge primarily raised by the learned Senior Counsel appearing as a Legal-Aid-Counsel for the said
petitioner-employee is on the ground that criminal proceedings as such were initiated against the petitioner-employee and he has been suspended on that count therefore, it was necessary to lift the veil as such against the order of the discharge. Accordingly, she has referred to the order dated 28.08.2023 (Annexure R-I), wherein the petitioner-employee as such was placed under suspension on account of the lodging of FIR No.84/2023 dated 24.08.2023 against the petitioner under Section 381 of Indian Penal Code, at Police Station, East Shimla, District Shimla, Himachal Pradesh.
3. It is thus submitted that it is not a discharge simpliciter but is a punitive order as such and therefore reliance has been placed upon the judgment of the Apex Court in Civil Appeal No.3788 of 2017 titled The Manager, S.M.U.P. School & Others Vs. M. Noushad & Others, decided on 27.02.2025, wherein it has been held that the departmental inquiry should have been held and dispensing of services as such without holding the same violates the principles of natural justice.
4. We have perused the paper-book and it would transpire that the appointment was done on 01.06.2019 (Annexure P-1) on co-terminus basis as Peon of Choice while exercising the powers under Article 229 of the Constitution of
India read with Item No. 4(B) of Schedule-III Part-D, (Class-IV) of “The Himachal Pradesh High Court Officers and the Members of Staff (Recruitment, Promotion, Conditions of Service, Conduct & Appeal Rules, 2015” (hereinafter referred to as “Rules of 2015”). The terms of the appointment order would go on to show that the same was made on co-terminus basis and was also liable to be terminated even before the term of the Judge, at any time, without assigning any reason and without any notice, if his work and conduct is not found satisfactory. The relevant part of the said order reads as under:-
“3. Appointment will be on co-terminus basis and will ease with the demitting of the office by the Hon’ble Judge.
4. Appointment will be liable to be terminated, even before the term of Her Ladyship, at any time, without assigning any reason and without any notice, if his work and conduct is not found satisfactory:”
5. Apparently, as per the Rules, as has been replied by this Court, the representation had been preferred before completing four years of service and after period of three years and seven months for considering his case for regularization and his services were regularized vide order dated 13.01.2023 (Annexure P-2), while again exercising the powers under Article 229 of the Constitution of India read with Item No.4 of “Rules of 2015”, by the then Chief Justice to appoint/absorb the petitioner-
employee who was working as a Peon (co-terminus) and Peon on regular basis, in view of the relaxation of the Rules as provided under Rule 22 of the Rules ibid. Rule 22 reads as under:-
| Part-V | |
|---|---|
| No. of Rule | Particulars of the Rule |
| Relaxation 22 | Hon’ble the Chief Justice may, from time to time, to remove any hardship in an individual case or in case of any class or group of cases, relax any condition or any requirement as it relates to age, qualification or minimum experience, as is or may be prescribed in or under these Rules. |
6. The appointment thus came to be on probation for a period of two years and the appointment was liable to be terminated at any time, without any notice, if his work and conduct was not found satisfactory. The said order reads as under:-
“In exercise of the powers vested in him under Article 229 of the Constitution of India read with Item No.4 of “The Himachal P
