M. RAMA JOIS, J. ( 1 ) THE Petitioner, Committee of management of a Private Educational society, Doddaballapur has presented this Petition praying for quashing the order of the Educational Appellate Tribunal, allowing the appeal of the first respondent and directing her re-instatement into service. ( 2 ) THE facts of the case in brief are as follows :- the petitioner was appointed as a lecturer in Commerce on the establishment of Lokasevaniratha d. Kongadiyappa Memorial Education Society, doddaballapur by appointment order dated 29-8-1976 Annexure 'a'. At the end of period of probation, her services were terminated by the order dated 31st march, 1978 Annexure 'c'. Aggrieved by the said order, the first respondent presented an appeal before the Educational Appellate Tribunal. Before the tribunal, the plea of the first respondent was that termination of her service was contrary to the Statutes of the Bangalore university. The plea of the petitioner was that as during the period of probation, the management found on the basis of the performance of the first respondent that she was not suitable for confirmation, her services were terminated, which was in the nature of termination simpliciter or discharge of a probationer and therefore, no appeal was maintainable, in any event, there are no violation of provisions of the Statutes of Bangalore University. ( 3 ) THE Educational Appellate Tribunal, however, was of the view that the impugned order of termination though innocuously worded, it was in the nature of penalty imposed for misconduct and therefore liable to be aset aside as no inquiry preceded the making of such an order. It set aside the order of termination and directed the reinstatement of the first respondent with consequential benefits. ( 4 ) LEARNED Counsel for the petitioner submitted that the view taken by the Tribunal that the impugned order amounted to imposition of penalty without holding enquiry, was perverse, as on the facts of the case, no such view could have been taken. He maintained that the petitioner's services were terminated as the management was not satisfied with the performance of the petitioner during the probationary period, it was no penalty imposed. He maintained that the petitioner's services were terminated as the management was not satisfied with the performance of the petitioner during the probationary period, it was no penalty imposed. ( 5 ) SRI Shamanna, learned Counsel for the first respondent, however, strenuously contended that this was a clear case of imposition of penalty and therefore as the procedure prescribed by ordinance 52 of the Bangalore University, was not followed, the tribunal was right in setting aside the order. ( 6 ) IN order to appreciate rival contentions, it is necessary to set out the terms of the order of appointment and confirmation order. ( 7 ) ANNEXURE 'a' reads :-"lokasevaniratha D. KONCADTYAPPA MEMORIAL EDUCATION society (REGD) kongadiyappa Road Doddaballapur ref: 881-2/76. Date : 29-8-1976 to miss. K. Seetharathna modarakeri, II Main door No. 2717, Chamundipuram, mysore-4. APPOINTMENT ORDER with reference to her application for appointment in Sree Kongadiyappa college, Doddaballapur, the Governing council of the Society has selected her as Lecturer in Commerce on the following conditions :- 1. Her pay will be Rs. 300/- per mensum plus allowances in force as per Government Scales of pay. 2. The appointment is purely on a temporary basis and she will be on probation for a period of not less than two years from the date of her joining duty. The appointment is subject to termination with one month's notice on either side. In the absence of such notice, one month's salary has to be paid by the person terminating the appointment. 3. During her service, she will be abide by the rules and decisions of the governing Council of the Society. 4. She should live at Doddabalk pur alone and on no account she should travel to and from Doddaballapur and any other place. 5. She should not take up any tution work privately without the permission of the Society, so long as she continues to be in the service of the society. If she is willing to accept the appoint now offered, she is required to report for duty immediately to the principal, Sree Kongadiyappa College, doddaballapur with all her original certificate and proof of age. For L. D. K. M. Society (R) sd/- (S. R. S. Murthy) hon. Secretary. " ( 8 ) THE contents of the order are clear and unambiguous. For L. D. K. M. Society (R) sd/- (S. R. S. Murthy) hon. Secretary. " ( 8 ) THE contents of the order are clear and unambiguous. Appointment was temporary and the petitioner was placed on probation for a period not less than two years and her appointment was subject to termination with one month's notice. The notice of termination of service is dated 28th February, 1978 (Annexure-B), Relevant portion of it reads :"with reference to your appointment order No. 881-2/76 dated 29-8-1976, you are hereby informed that your services will be terminated from the afternoon of 31-3-1978. " ( 9 ) THE order of termination dated 31-3-1978 reads :-"miss K. Seetharathna, Lecturer in commerce is hereby informed that her services are terminated from the afternoon of 31-3-1978 as per Secretary's memo No. 19/87 dated 28-2-1978. She is requested to return all books, materials etc. , belonging to the college and obtain ano due certificate. "as can be seen from the contents of these orders, it was a case of simple discharge of the petitioner by giving one month's notice. ( 10 ) THE relevant Ordiances are ordinances 42 and 52. Ordinance 42 reads :"every teacher shall be appointed on probation for a period of one year, after satisfactory completion of which he/she shall be confirmed, provided (a) the concerned college is admitted permanently, to the privileges of the University and (b) the post is permanent. The probationery period may be extended if necessary by another year, and if his/her work is still found not satisfactory, his/her services may be terminated, after giving him/her one month's notice. "ordinance 52 reads : "the management may dismiss a teacher or terminate his/her services, or impose other punishments for neglect of duty, misconduct, disobedience of orders, indiscipline, inefficiency, or breach of terms of contract. However, no order of dismissal, termination of services, or other punishment, shall be imposed unless a charge has been framed and communicated to the teacher concerned and an opportunity is given to him/her of submitting his/her written explanation, of being heard and showing cause against the proposed punishment. ( 11 ) THE question for consideration is whether the order of termination falls under Ordinance 42 or was a case of imposition of penalty falling under ordinance 52. ( 11 ) THE question for consideration is whether the order of termination falls under Ordinance 42 or was a case of imposition of penalty falling under ordinance 52. ( 12 ) THE case of the petitioner- management before the tribunal was that having considered the work of the first respondent for a period of about two years, they were not satisfied with the work and performance of the first respondent and therefore she was discharged by giving one month's notice as required under ordinance 42. ( 13 ) AS against this, contention of the first respondent was that this was a case of imposition of penalty and therefore provisions of Ordinance 52 ought to have been complied with. The relevant portion of the order of the Tribunal reads :". . . . . . . . SUBSEQUENT to the service of the notices of the appeal and I. A. I. , respondent has filed objections on 6-12-78, in which it is admitted that appellant's appointment has been regularised by the Department of collegiate Education and she drew her normal increments and other allowances and the impugned memo of termination of her services is sought to be justified by stating in paragraph 15 of that objection statement that although the respondent was very sympathetic and considerate to the appellant as she was a handicapped person, her services as a lecturer was most unsatisfactory ever since the date of her appointment, that oral warning given to her by the Principal of the college and the Secretary of the respondent society did not have any desired effect on her that representations from the conglomerations of parents and the students would disclose the inefficiency and incompetency of the appellant as lecturer and therefore it was essential in the interest of the institution and the students Community and considering the. academic status, the services of the appellant could not come forward with better performance. 3. It is in the above mentioned background that the correctness and legality of the appellant's service termination memo dated 28-2-1978 impugned in this appeal has to be determined. 7. Although the impugned memo dated 28-2-1978 is cryptic and innocent in its teams, it is clear from the above mentioned stand taken by the respondent in its objection statement dt. 3. It is in the above mentioned background that the correctness and legality of the appellant's service termination memo dated 28-2-1978 impugned in this appeal has to be determined. 7. Although the impugned memo dated 28-2-1978 is cryptic and innocent in its teams, it is clear from the above mentioned stand taken by the respondent in its objection statement dt. 6-12-78 that the appellant's services were terminated as she was found to be incompetent and inefficient in the discharge of her duties and there were complaints against her from the rents of the students studying in the college. " ( 14 ) IT may be seen from the aforesaid paragraphs the plea taken on behalf of the management was that the work and the performance of the 1st respondent was watched during the period of probation and as the principal opined on the basis that she was unsuitable for the post, her services came to be terminated by giving one month's notice in exercise of the right of the management under ordinance 42. ( 15 ) THUS, it may be seen that the management did not level any allegations of misconduct touching the character or conduct of the first respondent. The only ground on which the management considered expedient to terminate the services of the first respondent was, on the basis of her performance during the period of probation. ( 16 ) LEARNED counsel for the first respondent contended that the very fact that the management found her to be incompetent or inefficient teacher was sufficient to invoke the provisions of ordinance 52. The provisions of ordinance 52 extracted earlier speaks of imposition of penalty on teacher on the ground of indiscipline and inefficiency and has no application to the case of a probationer who was found to be unsuitable for continuation on account of inefficiency or incompetency which are the relevant grounds to adjudge the suitability of a probationer for the post. The opinion formed to the effect that a person was unsuitable for the post, is no stigma. All that it means is, the person is not suitable to do that particular kind of work. Indeed a person who is not suitable to be a teacher, could be a good ministerial employee or administrator. The opinion formed to the effect that a person was unsuitable for the post, is no stigma. All that it means is, the person is not suitable to do that particular kind of work. Indeed a person who is not suitable to be a teacher, could be a good ministerial employee or administrator. Therefore, the declaration that the first respondent was not suitable for the post of teacher was no stigma at all and therefore the discharge was not in the nature of penalty. ( 17 ) THE Tribunal in support of its tiew relied on the judgment of the supreme Court in State of Maharashtra v v. R. Saboji (1) and in Nepal Singh v state of V. P. (2 ). Those decisions, do not in any way support the view taken by the Tribunal. Scope of both the decisions have been considered by this court in Gadekar v K. S. R. T. C (3) As pointed out therein, unless the order of discharge served on the first respondent or its original in the file of the employer attached any stigma to the character or conduct of the emgloyee, whose services are terminated, it is impermissible for the Court to hold that the order was in the nature of penalty. Two other decisions of the Supreme Court viz. , in Anup v Govt. of India (4) and in Indrapal v managing Commitee (5) on which the learned Counsel for the first respondent relied are to the same effect. 1. AIR 1980 SC 42 2. AIR 1980 SC 1459 3. 1981 (2) K. L. J. P. 401 to 405 4. AIR 1984 SC 636 5. AIR 1984 SC P 1110 ( 18 ) LEARNED Counsel for respondent 1 submitted that the fact that incercmnts had been sanctioned to the 1st respondent was a strong circumstance to show that she was found suitable for the post and therefore, could not be regarded as probationer and discharged from service. ( 19 ) THE answer to this submission is found in ordinance 44. It reads : "ord. 44 : Increments shall be granted as and when they accure, and shall not be with held without specific reasons in writing. The period of probation shall count for increments. ( 19 ) THE answer to this submission is found in ordinance 44. It reads : "ord. 44 : Increments shall be granted as and when they accure, and shall not be with held without specific reasons in writing. The period of probation shall count for increments. " the drawing of increments during the period of probation therefore is as of course and not as a result of an opinion to the effect that the performance was good and the concerned person was suitable for the post. It is true that if increments during the period of probation was required to be sanctioned if only the service during the period of probation was good or satisfactory the sanctioning of increment for that period might give raise to such presumption but not when the rule provides for grant of increment as of course without reference to performance. Hence the argument based on granting of increment is untenable in view of Ordinance 44. In the circumstances, I am of the opinion that the view taken by the Tribunal that the order which was under appeal was a case of imposition of penalty is untenable. ( 20 ) BEFORE concluding, it is necessary to state that by an interim order made on 21-10-1981, the petitioner was directed to pay salary of the first respondent with effect from 27th June, 1981 and pursuant to the said interim order, salary for a few month had been paid to the first respondent. The question for consideration is whether in view of the setting aside of the order of the Tribunal, there should be an order for the recovery of the said amount from the first respondent. On considering the facts and circumstances of the case as the amount has been paid as an interim relief during the pendency of this petition, I do not consider it expedient to direct the first respondent to refund the amount already paid by the petitioner. In the result, I make the following : " (I) Writ Petition is allowed. (II) The impugned order passed by the educational Appellate Tribunal is set aside. (III) No costs. " --- *** --- .