The termination of employment of a probationer, following upon an enquiry to ascertain whether he should be confirmed, is not a dismissal or removal from service within the meaning of Art. 311 (2) of the Constitution.

Judgment

SHAH, J. : The respondent was appointed in the year 1950 a Sub-Inspector on probation in the Orissa Police force. In view of the adverse reports received against him on July 28, 1954, notice was served on the respondent calling upon him to show cause why he should not be discharged from service "for gross neglect of duties and unsatisfactory work . In the notice, ten specific instances of neglect of duty and two instances of misconduct-acceptance of illegal gratification and fabrication of official record were set out. By his explanation, the respondent submitted that action had already been taken against him by the Superintendent of Police in respect of instances of neglect of duty set out in the notice and no further action in respect thereof could on that account be taken against him, because to do so would amount to imposing double punishment. He denied the charge relating to misconduct and submitted that it was based on the uncorroborated statements of witness who were inimical to him. He also asked for an opportunity to cross-examine those witnesses. The Deputy Inspector General of Police considered the explanation and observed :

"I have carefully gone through the representation of the probationary S. I. His argument that he has already been punished by the S. P. for specific instances of bad work does not help him very much since all these instances of bad work during the period of probation have to be taken together in considering his merits for confirmation or otherwise. The S. I. has already had long enough of chance to work under different S. Ps. though in one District, but he has not been able to procure a good chit from anyone. He has also been adversely reported against after the representation dealt with therein was submitted. It is, therefore, no good retaining him further in service. He is discharged from the date on which this order is served on him .

2. The Deputy Inspector General of Police on December 11, 1954, in discharging the respondent from service, passed a formal order as follows :

"Probationary S. I. Ramanarayan Das of Cuttack District is discharged from service for unsatisfactory work and conduct with effect from the date the order is served on him .

3. The respondent then presented a petition under Art. 226 of the Constitution in the High Court of Judicature, Orissa, challenging the validity of the order passed and praying for the issue of a writ in the nature of certiorari or any other writ quashing the order of discharge. Inter alia, the respondent urged, (1) that the order of discharge was invalid since he was not given a reasonable opportunity to show cause against the action proposed to be taken in regard to him within the meaning of Art. 311 (2) of the Constitution, (2) that the order of discharge was invalid since he was not afforded an opportunity to be heard nor was any evidence taken on the charges framed.

4. The High Court by order dated December 4, 1957, set aside the order of discharge. In the view of the High Court, the Deputy Inspector General of Police had taken into consideration allegations of corruption in passing the impugned order and also that he had refused to give to the respondent an opportunity to cross-examine witnesses on whose statements the charge of misconduct was made. The High Court observed that by discharging the respondent from service without holding an enquiry as contemplated by R. 55 of the Civil Services (Classification, Control and Appeal) Rules and without complying with the requirements of Art. 311 (2) of the Constitution, an "indelible stigma affecting his future career had been cast. Against the order issuing the writ quashing the order discharging the respondent from service, this appeal has been preferred by special leave.

5. The respondent was undoubtedly at the time when proceedings were started against him and when he was discharged from service, a probationer, and has no right to the post held by him. Under the terms of his appointment the