Holding

A termination simpliciter of a probationer who has no right to the post does not constitute punishment and therefore does not attract Article 311(2).

Summary

Dr. Md. S. Iskender Ali was appointed as a temporary medical officer in the Oil and Natural Gas Commission on a one‑year probation that could be extended at the authority's discretion. During his probation a departmental enquiry was initiated for alleged negligence, but it was not pursued and no punishment was imposed. After an extension of six months, his services were terminated on 28 July 1967 under the contractual clause allowing termination without notice or reason. He challenged the termination as a punitive act violating Article 311(2) of the Constitution; the High Court quashed the order. The Supreme Court held that termination of a probationer’s service, where the employee has no right to the post and the order does not carry any stigma, is not a punishment and does not attract Article 311(2). Consequently, the termination was valid and the appeal was allowed.

Issues considered

Whether the termination of a probationer’s services without notice or reason attracts the protection of Article 311(2) of the Constitution.
Whether the termination order was a penalty or punishment disguised as a simple termination.
Whether the High Court erred in quashing the termination order.

Legislation cited

Constitution of Indias. Article 311(2)
Oil and Natural Gas Commission (Conduct, Discipline and Appeal) Regulations. Regulation 28

Subjects

probationtermination of serviceArticle 311temporary employeepenaltystigmadepartmental enquiryconstitutional law

Judgment

603

OIL AND NATURAL GAS COMMISSION AND ORS. A

v.
DR. MOHD. S. !SKENDER ALI
April 14. 1980
[A. C. GUPTA, S. MURTAZA FAZAI. Au AND P. S. KAILASAM, JJ.J B
f
Tennination of Services-Tern1ination Si111pliciter-Services of a probationer
terminated without further proceeding against the departmental enquiry-
Whether offends Art. 311 (2) of the- Constitution and attaches any stigma.

The respondent was appointed on a purely temporary basis to the post of a
medical ofl:cer in the Oil and Natural Gas Commission. Under the terms and C
conditions of service. he was to remain on probation for a period of
one y1e'ar \V1iich could be extended -at the disi;;retion of the appointing
authority He was appointed on Ottober 15, 1965. During the period of
his probation. on a repart ag<·iinst him for negligence and dereliction of duty,
a departn1ental enquiry was held against him but that was not proceeded with,
nor was any punishment imposed on him. His period of probation was extend 4

ed for six months from 15-10-1966 and before his services were tenninated, there D
was no express order either confirming hin1 or extending the period of probation.
His services were terminti.tcd with effect fron1 28th July 1967.

T11e respondent filed a \vdt petition in the High Court on the ground that
the order tenninating his services was n1afa(idc and was in fact passed by way
of penalty entailing evil consequenc.!S. The plea taken by the respondent
forind favour with the High Court which aJlowed the petition and quashed the E
order of the appellant terminating the services of the respondent. Hence the
appeal by special leave by the State.

AI!owing the appea.1 the Court

HELD : 1. A temporary employee is <lppointed on probation for a particular
period only in order to test' whether his conduct is good and satisfactory so
F
that he niay he retained. The remarks, in the assessment roll merely indicate
the nature of the perfonnancc put in by the officer for the limited pilrpose of
detern1ining ""hrther or not his probation should be extended. These remarks
were not intended to cnst any stigmn. f607G-H. 608A]
J R. L. Butail v. [Inion of India, [1971] 2 S.C.R. 55, followed.

2. The contention thrit the real motive behind the termination of the service G
.of the respondent \V'as to inflict a punishn1cnt on him and as the appellants did
nt,t comply with the requirements of Article 3 I 1 of the Constitution, the order
in1pugned \Vas illegal is not correct. Jn the first place, it was clearly pleaded by
the Ciover11n1ent in its counter-affidavit thnt talthough an enquiry was held it was
not continued and no punishment was in1poscd on the respondent. As the
respondent was merely a probationer the appointing authority did not consider
it necessary to continue the enquiry but decided to terminate the services of the H
respondent a~ he was not found suitable for the job. In the case of Q proba-
tioner or a temporary employee. who has no right to 1he post, such a terrnina-
604 SUPREME COURT REPORTS [1980] 3 S.C.R.

A tion of his service is valid and does not attract the provisions of Article 311
of the Constitution. [608C-E, G-H, 609A]
Even if misconduct, negligence, inefficiency may be the motive or the
inducing factor which influences the employer to terminate the services of the
employee, a power which the appellants undoubtedly possessed, even so as under ~
the tctrms of appointment of the respondent such a power flo\ved from the
B contract of service it could not b~ termed as penalty or punishment. [61 lC-D]

Shamsher Singh and Anr. v. State of Punjab, [1975] 1 SCR 814; Purshotta.'n
l
Lal Dhbzgra v. Union of Indi.a, [19581 SCR 828; Sta.te of U.P. v. Rc11n Chand
Trivedi, [1977] 1 SCR 462; State of Maharaslit1'll v. J7eerappa R. Saboji end
Anr. [1980] I SCR 551, followed.
3. The order i'mpugned is prhna facie an order of termination simpliciter
C without invohr:ing any stigma. The order does not in any way involve any evil
consequences and is an order of discharge simpliciter of the respondent who
was a probati.oner and had no right to the service. The respondent has not
been able to make out any strong case for this Court to delve into the docu-
ments, materials in order to determine a case of victimisation or one of punish-
ment. ·The short history of the service of the respondent clearly showed that
his work had nfi.vcr been satisfactory and he was not found suitable for being
D retained in service and that is v.·hy even though some sort of an enquiry was
started, it was not proceeded with and no punishment was inflicted on him.
In these circumstances therefore. if the appointing authority considered it ex-
pedient to terminate the services of th'e respondent-a probationer-it cannot. b~
said that the order of termination attracted the provisions of Art. 311 of the
Constitution. Thus, if the appellant found that the respondent was not suitable
for being retained in service that will not vitiate the order impugned. [61 lG-H. -1j_
E 612B-DJ
State of Bihar v. Gopi Kishore Parsad, A.I.R. 1960, 689; distin.~uished.

CIVIL APPELLATE JuR1smcnoN : Civil Appeal No. 1385 of 1979.
Appeal by Special Leave (rom the Judgment and Order dated
F 10-7-1969 of the Assam & Nagaland High Court in Civil Rule No. 249
of 1967. ---.~.

· B. D(ltta for the Appellant.
A. R. Barthakur, S. K. Nandy and P. Bhanlwkur for the Respon- (
dent.
G The Judgment of the Court was delivered by
FAZAL Au, J. This appeal by special leave is directed against! a
judgment and. order dated 10th July 1969 of the High Court of Assam
and Nagaland. The facts giving rise to the appeal lie within a very
narrow compass. lbe respondent, Dr. Md. S. Iskender Ali, was
H appointed on a purely temporary basis ·to the p-0st of a medical officer
in the Oil and Natural Gas Commission: · Under the tenns and condi-
tions of his· service, he was to remain on probation for a period of
O.N.G. COMMISSION v. !SKENDER ALI (Fazcil Ali, J.) 605

one year which could be extended at the .discretion of the appointing A
authority. The respondent was appointed on October I 5, 1965 and
the order of his appointment may be extracted thus :
''No. 52 '~S/65-ENT Dated the 15th October 1965

MEMORANDUM B
With re;ferencc to his interview on the 18th August 1965
held at Sibsagar, Shri Dr. Md. S. Iskender Ali is hereby
inturmed that he/she has been selected for a temporary post
of l\Iedical Officer in the Oil & Natural Gas Commission on
an initial pay of Rs. 325/- p.m. in the scale of pay of
}{s. 325-25-500-30-EB-30-800 (plus non practising allow- c
ance @ 25% of basic pay subject to m;nimum of Rs. 150/-).
He will be entitled to draw dearness and other allowances at
such rates and subject to such condit:ons as may be laid
dovm in the rules and orders governing the grant of such
allowances from time to tilne." D
The order of appointment was accompanied by conditions regulat-
ing his appointment and two of them may be extracted below, as they
appear to be very relevant for the purpose of deciding the question
at issue:-
"(ii) The appointment may be terminated at any time by E
one 1nonth's notice to be given by either side, viz.,
the appointee or the appointil1g authority, without
ass1gmng any reasons. The appointing authority,
however, reserves the right of terminating the services
of the appointee without notice or before exp'ration
of the stipulated period of notice by making payment F
to him of a sum equivalent to the pay and allowances
for the period of notice or the unexpireid portion
thereof;
) \iii) He will be on probation for a period of one year from
tlm date of appointment. This period may be extend-
ed at the, discretion of the appointing authority, if G
necessary. During the period of probation, the
~ervices are liable to be terminated at any time without
notice, and/pr assigning any re,~sons whatsoever."
· It appears that during the period of his probation there were some
reports agaimt the respondent as a result of which a departmenlJ1 H
enquiry was held against him but which does not appear to have been
prO<:eeded with nor, was 'any punishment imposed on him. After he
606 SUPREME COURT REPORTS . (1980] 3 S.C.R.

A had completed the period of one year on 15-10-1966 his probation was
~xtended for c.nother six months :rnd before his services were terminat-
ed, there w;is no express order either confirming him or extending the
period of probation. Ultimately, by an order dated 28th July 1967
the services of the respondent were terminated with effect from 28th
July 1967. The order of termination runs thus : -
B
"No. 57/191/67-ENT Dated July 28, 1.967 '
OFFICE ORDER
Under para 2!iii) of offer of appointment No. 52/;35/65-
ENT dated October 16, 1965 the service of Dr. Md. Iskender
c Ali, Medical Officer (still on probation), is hereby tenninated
with effect from the date of the service of this order on
hinL"

The respcndent felt aggrieved by the termination of his services
and filed a writ petition in the High Court on the ground that the
D
order terminating his services was mala fide and was in fact passed by
way of penalty entailing evil consequences. The plea taken by the
respondent found favour with the High Court which allowed the peti-
,tion and quashed the order of the appellant terminating the services
of the respondent. The appellant obtained special leave to appeal
E from this Court; hence the appeal has now been posted before us for
hearing.

The only point raised before us by the appellants was that as the
respondent wa5 a mere probationer and the order temunating his
services was an order of termination simpliciter without ilil.volving any
stigma or penalty, the High Court was in error in quashing the order
of tennination and directing the reinstatement of the respondent. The ~-
counsel for the appellants submitted that reading the order per se there
is nothing to indicate that it was passed by way of punishment. As
the respondent was a temporary employee on probation, it was open (
to the employer to terminate his services at any time be.fore he was _,
G confirmed. If the employer was sa'isfied that he was not suitable for
being retained in service. The cot1nsel for the respondent, on the other
hand, submitted that the o'der, tl1ough per se innocuous, was really
a cloak to conceal the real mischief which the order purported to perpe-
tuate as the order of termination was preceded by a full-fledged depart-
mental inquiry and a regular chargesheet was submitted against the
H respondent, it was because the respondent ':'as found guilty that he
was punished by way of c!ilsmissal from service. In other words, the
argument of the respondent was that the order of termination of the
O.N.G. COMMISSION v. !SKENDER ALI (Fazal Ali, !.) 607

services passed by the appellant was an order which amounted to A
dismissal from service involving a clear stigma and would, therefore,
attract the provisions of Art. 311 of the Constitution and was rightly
quashed by the High Court,
Before examining the respective contentions of the parties it may
be necessary to mention a few admitted facts : B
( 1) It is not disputed that the respondent was appointed
in a temporary post of Medical Officer and on proba-
tion of one year.
(2) Being a probationer, the respondent had no right to
the service. c
(3) Under the tenns of his appointment particularly
clauses (ii) and (iii), extracted above, the appointing
authority could terminate the services without assign-
ing any reasons.
(4) Under clause (iii) of the conditions of appointment, D
the appointing authority had a discretion to extend the
period of probation and to terminate the services of
the respondent without any notice and without giving
any reasons whatsoever.
(5) After the respondent had put in one year's probation,
E
his period of probation was extended for a further
period of six months which is a clear pointer to the
fact that the appointing authority was not convinced
that the respondent !tad satisfactorily completed the
pe_riod of his probation.
F
The conliden,tial roll reflecting the assessment of the work of the
respondent during the period 31-12-1965 to 30-12-1966 clearly shows
that the officer was careless and lacking in sense of respqnsibility. The

•
report also shows that the reporting officer recommended that the period
of probation should be extended. In accordance with the recommen-
dation, the period of probation was further extended by six months. G
The learned counsel for the respondent submitted that the remarks made
in the assessment roll went to show that the intention of the appointing
authority was to proceed against the respondent by way of punishment.
We are, however, unable to agree with this submission. It is obvious
that a temporary employee is appointed on probation for a particular
period only in order to test whether his conduct is good and satisfactory H
so that he may be retained. The remarks, in the assessment roll,
merely indicate the nature of the perfonnance put in by the officer
608 SUPREME COURT REPORTS (1980] 3 S.C.R.

A for the limited purpose of Jetermining whether or not his probation
should be extegded. These remarks were not intended to cai;t any
stigma. In the case of R. L. Butail v. Union of India & Ors.,(') this
Court while indicating the nature of assessment made by the reporting
officer observed as follows : -

8 "These rules abundantly show that a confidential report
is intended to be a general assessment of work performed by
a Government servant subordinate to the reporting authority,
that such reports are maintained for the purpose of serving
as data of comperative merit when questions of promotion,
confirmation, etc., arise."
c It was then vehemently contended by the respondent that as the
appointing authority chose to institute a departmental inquiry against
the respondent for dereliction of duty and negligence in not attending
to a baby who died due to his carelessness, the enquiry should have
been carried to its logical end and charge-sheet having been
framed, the provisions of Art. 311 of the Constitution were clearly
D attracted and therefore it was not open to the appellants to have ter-
minakd the services by giving the order a cover of termination
simpliciter. In other words, the contention was that the real motive
behind the termination of the service of the respondent
was to inflict a punishment on him and as the appellants did not
comply with the requirements of Art. 311 of the Constitution, the
E
order impugned was illegal. We are, however, unable to agree with
this argument. Jn the first place, it has been clearly pleaded by the
Government in its counter-affidavit that although an enquiry was
held yet it was not continued and no punishment was imposed on
the respondent. In this connection, relevant portion of paragraph 11
F of the counter-affidavit before the High Court may be extracted : -
"A preliminary enquiry was made before the charge. ~--
was framed and on the enquiry report a prirna facie case

•
having been found against the petitioner due charge was i,
framed against him. No punishment under Regulation 28 of
Oil and Natural Gas Commission (Conduct, Discipline and
G Appeal) Regulation was inflicted on the petitioner." ~~

~
In these circumstances, therefore, it is obvious that as the respon-
dent was merely a probationer, the appointing authority did not con-
sider it necessary to continue the enquiry but decided to terminate ..
the services of the respondent as he was not found suitable for the
H
job. It is well settled by a long course of decisions of this Court that
(I) [19711 2 S. C. R. 55.
O.N.G. COMMISSION v. !SKENDER ALI (Fazal Ali, J.) 609

in the case of a probationer or a temporary employee, who has no A
right to the post, such a termination of his services is valid and does
not attract the provisions of Art. 311 of tbe Constitution. In the
case of Shamsher Singh & Anr. v. State of Punjab,( 1) the matter was
considered in all its aspects by a Constitution Bench comprising seven
Judges of this Court and the Court adumbrated the following pro- . 8
positions : -

' "Before a probationer is confirmed the authority con-
cerned is under an obligation to consider whether the work
of the probationer is satisfactory or whether he is suitable
for the post. In the absence of any Rules governing a pro-
(---~
/

bationer in this respect the authority may come to the con- c
clusion that on account of inadequacy for the job or for any
tempermenta! or other object not involving moral turpitude
the probationer is unsuitable for the job and hence must be
discharged. No punishment is involved in this. . . . . . The
fact of holding an inquiry is not always conclusive. What
is decisive is whether the order is really by way of punish- D
ment. .... A probationer whose temis of service provided
that it could be terminated without any notice and without
any cause being assigned could 'not claim the protection of
Article 311(2) ....
An order terminating the services of a temporary servant E
or probationer under the Rules of Employment and withont
anything more will not attract Article 311. Where a depart-
mental enquiry is contemplated and if an enquiry is not in
fuct proceeded with Aricle 311 willnot be attracted unless
it can be shown that the order though unexceptionable in
form is made following a report based on misconduct." F

Similarly, the matter was previously considered in Parshotam Lal
Dhingm i·. Union of lndia(2 ) where the following observations were
made:-
'' "Shortly put, the principle is that when a servarit has
right to a post or to a rank either under the terms of the G
contract of employment, express or implied, or under the rules
governing the conditions of his service, the termination of the
service of such a servant or ms reduction to a .lower post is
by itself and prima facie a punishment, for it operates as a
forfeiture of his right to hold that post or that rank and to
H
"1) [1975] 1 S. C.R. 814.
(2) [1958] S. C.,R. 828.
6.10 SUPREME COURT REPORTS [1980] 3 S.C.R.

get the emoluments and other benefits attached thereto. But
if the servant has no right to the post, as where he is
appointed to a post, permanent or temporary either on pr<>- ·~·
bation or on an officiating basis and whose temporary
service il'as not ripened into a quasi permanent service as
defined in the Temporary Service Rules, the termination of
B his employment does not deprive him of any right and can-
not, therefore, by itself be a punishment. One test for deter- l
mining whether the termination of the service of a Govern-
men servant is by way of punishment is to ascerta.in whether
the servant, but for such termination, had the right to hold
c the post. If he had a right to the post as in the three oases
hereinbefore mentioned, the termination of his service will by
itself be a punishment and he will be entitled to the protection
of Article 311. In other words and broadly speaking Art.
311 (2) will apply to those cases where the Government
servant, had he been employed by a private employer, will
D be entitled to maintain an action for wrongful dismissal, re-
moval or reduction in rank. To put it in another way, if
the Government has, by contract, express or implied, or,
under the rules, the right to terminate the employment at any
time, then such termination in the manner provided by the
contract or the rules, is, prima facie and per se, not a punish-
E ment and does not attract the provisions of Art. 311."
All these decisions were reviewed in the case of State of U.P. v.
Ram Chandra Trivedi(') where this Court observed as follows : -
"Keeping in view the principles extracted above, the res-
pondent's suit could not be decreed in his favour. He was
F a temporary ha'nd and bad no right to post. It is a'.so not
denied that both under the contract of service and the service
rules governing the respondent, the State bad a right to termi-
nate his services by giving him one month's notice. The
order to which exception is taken is ex facie an order of ter-
mination of service simpliciter. It does not cast any stigma
G on the respondent nor does it visit him with evil consequen-
ces, nor is it founded on misconduct. In the circumstances,
the respondent could not invite the Court to go into the
motive behind the order and claim the protection of Article
311 (2) of the Constitution.
B We, therefore, agree with the submission made on be-
half of the appellant that the High Court was in error in arriv- ,,
(I) [1977] I S. C. R. 462.
O.N.G. COMMISSION v. !SKENDER ALI (Fazal Ali, !.) 611

ing at the finding that the impugned order was passed by way A
of punishment by probing into the departmental corespon-
dence that passed between the superiors of the respondent
overlooking the observations made by this Court in I. N.
Saksena v. State of Madhya Pradesh [1967 (2) S.C.R. 496)
...
..... that when there are no express words in the impugned order
itself which throw a stigma on the Government servant, the
a
Conrt would not delve into Secretariat files to discover
whether some kind of stigma could be inferred on such
rese<arch."

The facts of the present case appear to be on all fours with those c
of the aforesaid decision. From the undisputed facts detailed by us
in an earlier part of the judgment, it is manifest that even if miscon-
duct, negligence, inefficiency may be the motive or the inducing factor
which influences the employer to terminate the services of the employee,
a power which the appellants undoubtedly possessed, even so as under
the terms of appointment of the respondent such a power flowed D
from the contract of service it could not be termed as penalty or
punishment.

The matter was again considered at great length by a recent
decision of' this Court in the case of State of Maharashtra v.
Veerappa R. Saboji & Anr.,(') where Untwalia, J., observed thus : E
"Ordinarily and generally the rule laid down in most of the
cases by this Court is that you have to look to the order on
the face of it and find whether it casts any stigma on the
Government servant. In such a case there is no presumption
that the order is arbitrary or mala fide unless a very strong F
case is made out and proved by the Government servant who
challenges such an order."

Applying the principles enunciated by this Court in various cases
to the facts of the present case, the position is that the order impugned
is prima facie an order of termination simpliciter without involving any G
stigma. The order does not in any way involve any evil consequences
and is an order of discharge simpliciter of the respondent who was a
probationer and had no right to the service. The respondent has not
been able to make out any strong case for this Court to delve into
the documents, materials in order to determine a case of victimisation
or one of punishment. H
(1) A. I. R. 1980 S. C. 42 .

•
612 SUPREME COURT REPORTS [198()] 3 S.C.R.

'A Reliance was, however, placed by the respondent on a decision of
this Court in the case of The State of Bihar v. Gopi Kishore Prasad('),
where it was held that although termination of the service of a person
holding the p06t on probation cannot be said to deprive him of any right
to the post and is no punishment but where instead of terminating a
person's service the employer choose to hold an enquiry into his alleged
B misconduct and proceeds by way of a punishment, such a course
involves a stigma and an order of termination is bad. Such, however,
is not the case here. The short history of the service of the respondent
clearly shows that his work had never been satisfactory and he was
not found suitable for being retained in service and that is why even
C though some sort of an enquiry was started, it was not proceeded with
and no punishment was inflicted on him. In these circumstances,
therefore, if the appointing authority considered it expedient to terminate
the services of the respondent-a probationer-it cannot be said that
the order of termination attracted the provisions of Art. 311 of the
Constitution. Thus, if the appellant found that the respondent was not
D suitable for being retained in service that will not vitiate the order
impugned as held and observed by this Court in the cases cited above.
For these reasons, therefore, we are satisfied that the order termi·
nating the services of the respondent was valid and did not involve
any stigma and was fully justified in the facts and circumstances of the
E present case. The' High Court, therefore, erred in law in quashing the
impugned order. For these reasons, we allow this appeal, set aside the
judgment and decree of the High Court and hold that the order termi-
nating the services of the respondent was valid in law. In the circum-
stances of the case, there will be no order as to costs.

F S.R. Appeal allowed~

\

(!) A. I .R. 1960 S. C. 689.