Honble CHAUHAN, J.–The instant writ petition has been filed against the judgment and order dated 20.4.95, contained in Annexure 5, passed by the respondent No. 3, the Rajasthan Non- Government Educational Institutions Tribunal, Jaipur, by which the order of discharge of the respondent No. 4 by the the present petitioner during his period of probation, has been set-aside. (2). The facts and circumstances giving rise to this case are that respondent No. 4 was appointed as Headmaster, vide order dated 9.9.91 contained in Annexure 1 to the petition, on probation for a period of one year. Since the services of respondent No. 4 were not found to be satisfactory, his services were terminated vide order dated 29.6.92 (Annexure 2). being aggrieved and dissatisfied, respondent No. 4 filed an appeal to the Director, Primary and Secondary Education against the impugned order of termination and during pendency of the appeal, as the Appellate Tribunal came into existence because of enforcement of the Rajasthan Non-Government Educational Institutions Act, 1989, his appeal was transferred to the respondent No.3 and after hearing both the parties, the said judgment dated 20.4.95, contained in Annexure 5, was passed. Hence this petition. (3). Heard Mr. M.S. Singhvi, learned counsel for the petitioner, Mrs. R.R. Kanwar, Assistant Government Advocate for respondents No. 1 and 2 and Mr. S.K. Malik, learned counsel for respondent No. 4. (4). Mr. Singhvi has contended that the appeal of respondent No. 4 has been allowed by the Tribunal on two grounds. Firstly, in interpreting the provisions of Standing Order 5/72 and holding that the termination order was penal in nature and submitted that the Standing Order No. 5/72, on which reliance has been placed by the Tribunal, stood amended and the amended Standing Order had not been brought to the notice of the Tribunal and, therefore, the appellate judgment and order stood vitiated on this count; and secondly, there was no material before the Tribunal to record the finding that the termination was punitive in nature. Mr. S.K. Malik, learned counsel for respondent No. 4, on the other hand, has opposed the said submissions most vociferously. (5). I have considered the rival submissions made by the learned counsel for the parties and perused the record. (6). Mr. S.K. Malik, learned counsel for respondent No. 4, on the other hand, has opposed the said submissions most vociferously. (5). I have considered the rival submissions made by the learned counsel for the parties and perused the record. (6). In fact the Standing Order No. 5/72 provided that in case the services of a probationer are not found to be satisfactory, a show cause notice will be served upon him and the Committee shall consider his reply to the said show cause notice and at the time of taking a decision for discharge, a representative of the Education Department should, also, be there in the Committee. On the basis of this Standing Order, the Tribunal has held that the order of discharge was bad as the requirements of the said Standing Order had not been complied with. It may be pointed out that the said Standing Order came into force w.e.f. 7.5.72. However, it stood amended w.e.f. 3.11.72, according to which the requirement of giving show cause notice or the mandatory requirement of presence of representative of the Education Department was dispensed with and it was provided that the decision will be taken as per the provisions of Clause (1) and (8) of Schedule III to the Rules for Grant in Aid to Non-Government Educational, Cultural and Physical Education Ins- titutions, 1963. (7). It is evidently clear that the Tribunal has failed to notice the amended Standing Order which was holding the field and placed reliance on the Standing Order which stood superseded. Therefore, the only question to be considered is whether the discharge has been made according to Clauses (1) and (8) of Schedule III to the said Rules ? It is nothing but a contract of service between the teacher/Headmaster and the Management. Clause (1) provides that appointment shall be, on first instance, for one year on probation and probation period shall, in no case, be extended beyond two years. If at the end of a period of two years, an employee is not found competent or otherwise suitable, his appointment shall be terminated. Likewise, Clause (8) provides that when a teacher or Headmaster is on probation, as provided in Clause (1), the Committee may, at any time, terminate the agreement by giving the teacher one months notice in writing or the sum equal to his salary for one month. (8). Likewise, Clause (8) provides that when a teacher or Headmaster is on probation, as provided in Clause (1), the Committee may, at any time, terminate the agreement by giving the teacher one months notice in writing or the sum equal to his salary for one month. (8). On the basis of the above, Mr. Singhvi has argued that the services of res- pondent No. 4 had been terminated by strictly adhereing to the said provisions as on over-all assessment of the services rendered by respondent No. 4, he was not found suitable to be retained and he was discharged and the order is termination simplicitor and cannot be punitive. On the other hand, Mr. Malik has placed reliance on clause (7) of Appendix III and stated that in such a case the service cannot be terminated without approval of the educational authority. I am afraid, this argument cannot be held tenable as it applies only in a case where services are terminated after holding the disciplinary proceedings. Thus, it is a clear-cut case where the Tribunal has erred in placing reliance on the Standing Order which stood superseded and it cannot be held, in the facts and circumstances of the case, that the discharge of the respondent No. 4 was in violation of the statutory requirements. (9). The finding recorded by the Tribunal that the order of termination was punitive was only on the ground that in its written submissions/reply to the memo of appeal, the petitioner has mentioned that respondent No. 4 had instigated the students to go-on strike and while assessing his over-all performance during the period of probation, his services were not found satisfactory. This had been the sole basis for the Tribunal for coming to the conclusion that the order of termination is penal in nature. Shri Malik, learned counsel for respondent No. 4 was confronted with fact-situation and was asked to point-out from his Memo of Appeal or any other document on record wherein the respondent No. 4 has made even a whisper agai- nst the petitioner on any of the grounds which may require the Court to consider the case on this aspect. No such averment had ever been made by the respondent No. 4 and the statement of these facts made by the petitioner in its reply before the Tribunal cannot lead to the inference that the said order is penal in nature. No such averment had ever been made by the respondent No. 4 and the statement of these facts made by the petitioner in its reply before the Tribunal cannot lead to the inference that the said order is penal in nature. (10). In Bharat Singh vs. State of Haryana & Ors. (1), the Apex Court has obser- ved that a party to the litigation has to plead and prove its case by substantiating its averments by adducing sufficient evidence. In the instant case, respondent No. 4 did not make even an allegation on this count. (11). This issue has been considered by the Apex Court from time to time and it has consistently been held that the probationer can be terminated from service for ``failure to satisfactorily completing the period of probation. The termination of services on the ground of unsatisfactory work cannot be termed as penal and does not require any enquiry. (Vide State of Punjab vs. Baldeo Singh Khosla (2)). (12). In V.K. Krishnamani vs. Lalit Kala Academy (3), the Supreme Court observed as under :- ``The very object of the probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, it certainly has the power to terminate the services of the employee. Under these circumstances it cannot but be held that the reasons mentioned constitute the motive and not foundation for termination of services. (13). In State of Uttar Pradesh & Ors. vs. Kaushal Kishore Shukla (4), the Apex Court has held that termination of services of temporary government servant, in terms of contract of service, by passing an order of termination simplicitor on asse- ssment of suitability after considering his work and service record, must be held as valid and not punitive. A similar view has been taken by the Apex Court in Ram Chandra Tripathi vs. U.P. Public Service Tribunal (5). (14). In Governing Council of Kidwai Memorial Institution on Oncology vs. Dr. Pandurang Godwalkar & Anr. A similar view has been taken by the Apex Court in Ram Chandra Tripathi vs. U.P. Public Service Tribunal (5). (14). In Governing Council of Kidwai Memorial Institution on Oncology vs. Dr. Pandurang Godwalkar & Anr. (6), the Honble Supreme Court has observed as under:- ``But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simplicitor after some preliminary enquiry, it cannot be held that as some enquiry had been made against him before issuance of order of termination, it really amounts to his remo- val from service on a charge, as such penal in nature......The principle of tearing of the veil for finding out the real nature of order shall be applicable only in the case where the Court is satisfied that there is a direct nexus between the charges so levelled and the action taken. If the decision is taken to terminate the services of an employee during the period of probation after taking into consideration the over-all performance and some action or in action on the part of such an employee, then it cannot be said that it amounted to his removal from service as a punishment. It need not be said that the appointing authority, at the stage of confirmation or while examining the ques- tion as to whether the services of such employee be terminated during continuation of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee.. (15). While deciding the aforesaid case the Apex Court had placed reliance on its earlier judgment in Oil & Natural Gas Commission vs. Dr. M.S. I. Ali (7), wherein it was held that if a person is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained even if misconduct, negligence or inefficiency may be the motive, or the influencing factor which induced the employer to terminate the services of the employee, which such employer admittedly held under the terms of appointment, such termination can not be held to be punitive. (16). In K.K. Shukla (supra), the Apex Court considered the averment that discharge order had been passed after holding preliminary inquiry. (16). In K.K. Shukla (supra), the Apex Court considered the averment that discharge order had been passed after holding preliminary inquiry. The Honble Supreme Court held that inquiry, which was held, was of a preliminary nature and the object of holding such an enquiry was to ascertain the suitability of the employee for his continuation in service and there can be no element of punitive proceedings as no charge has been framed, no enquiry officer was appointed and no findings were recorded. Same view has been taken by the Supreme Court in Champaklal Chimanlal Shah vs. Union of India & Ors. (8) and in Jagdish Mitra vs. Union of India & Ors. (9). (17). The issue was, also considered in Anoop Jaiswal vs. Govt. of India & Anr. (10) and the Supreme Court came to the conclusion that as the discharge was based on a particular incident which reflected on inefficiency of probationer, the termination could not have been made without holding proper enquiry and the Court held that if the probationer is discharged on the ground of misconduct or inefficiency or for similar reasons without a proper enquiry and without giving him a reasonable opportunity to show cause against his discharge, it may be violative of the mandate of law and in such a case it is open to the Court to examine whether the order, which apparently looks innocuous, has been passed for some other reason. (18). Similarly, in the case of Jarnail Singh vs. State of Punjab (11), the Supreme Court held that the mere form of order is not sufficient to hold that the order of termination was innocuous. When an allegation is made by the employee assailing the order of termination as one based on misconduct, though goes in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In such a case the Court may lift the veil and see whether the order was made on the ground of misconduct/inefficiency or not; but for that an allegation of serious meg- nitude must be alleged by the discharged employee and he must adduce sufficient evidence in support of it. (19). In the instant case the petitioner has not alleged any allegation of malafide. (19). In the instant case the petitioner has not alleged any allegation of malafide. It was not even pleaded that his termination was based on misconduct or inefficiency. In view of the above, the learned Tribunal has been misdirected. The learned Tribunal has recorded the said finding without any allegation/material on record. In Folk Stone Corporation vs. Brokman (12), it has been observed as under:- ``.........An order made without any evidence to support it, is in truth,.......made without jurisdiction and is therefore invalid in law. (20). Respondent No. 4 did not lay any factual foundation for recording such a finding. It was not even his case. No such plea was taken or agitated by respondent No. 4 before the Tribunal. The impugned judgment and order passed by the Tribunal cannot be up-held. (21). In the result, the writ petition succeeds and is allowed. The impugned judgment and order dated 20.4.95 (Annexure 5) is set aside. The order of discharge/ termination dated 20.6.92 (Annexure 3) is up-held. In the facts and circumstances of the case, the parties shall bearing their own costs.