( 1 ) DISCHARGE of an employee placed on probation is almost invariably assailed on the ground that the employer's action is punitive in character. The form in which the order is issued is not conclusive for Courts have been persuaded to go behind the orders to determine the true nature of what may seem to be an innocuous and innocent exercise by the employer of his power to terminate an arrangement which can acquire permanence only if the employer is satisfied with the work and performance of the employee. That precisely is the attempt of the petitioner in the present case also, in which although the order terminates his services without any stigma, the petitioner claims that the benign facade of the order is no more than a thin veil meant to hide the real purpose of punishing the petitioner for the misconduct allegedly committed by him. The controversy arises in the following circumstances.- ( 2 ) THE petitioner was selected and appointed as Deputy Manager in the respondent-Government company, and placed on probation for a period of one year with effect from 22nd of November, 1996. During this period, two notices one dated 12th of May, 1997 and the other 22nd of May, 1997 were issued to the petitioner asking him to show cause why disciplinary proceedings be not initiated against him for a certain breach of discipline allegedly committed by him. The petitioner submitted his reply to the notices, in which the correctness of the allegations was disputed and the proposed action characterised as unwarranted harassment to a person belonging to the Scheduled Caste community. No enquiry, formal or otherwise followed the service of the notice. All the same, the petitioner's services were terminated by an order dated 8th of december, 1997 without giving any reason or attaching any stigma whatsoever. By another communication of even date, the petitioner was informed that his non-confirmation in the service of the Company was due to his unsatisfactory performance and conduct during the period of probation. Aggrieved, the petitioner has in the present writ petition questioned the legality of the termination and claimed reinstatement in service with all consequential benefits. ( 3 ) MR. Reddy, Counsel appearing for the petitioner made a two fold submission. Firstly, he contended that the order of termination was incompetent, in that the Company did not have the power to issue the same. ( 3 ) MR. Reddy, Counsel appearing for the petitioner made a two fold submission. Firstly, he contended that the order of termination was incompetent, in that the Company did not have the power to issue the same. He urged that in the absence of any rule empowering it to terminate the services of a probationer, the Company could do so only if the appointment order reserved any such power. No such reservation having been made, the Company was not, according to the learned Counsel, entitled to terminate the petitioner's services. Alternatively, he urged that the termination was punitive in nature, the same having been ordered on the basis of unsatisfactory conduct. He contended that the order, in substance, intended to punish the petitioner for the misconduct earlier alleged against him and that this Court could lift the veil to discover the true intention behind the same. ( 4 ) IT is not in dispute that the Company did not, as on the date the order of termination was made, have any rules governing the service conditions of its employees. The Company's power to terminate the service of the petitioner has therefore to be seen in the context of the order of appointment issued by it. Clause (8) of the appointment order reads thus.- "you will be on probation for a period of 1 year from the date of your appointment. If the probationary period is extended, increment will be stopped from the date on which your probation has been extended and you would recommence drawing increments from the date you cease to be on probation after the completion of the extended period and on your being found suitable for continued service in the company". ( 5 ) THE above clearly shows that the petitioner was placed on probation for a period of one year, which implied that the petitioner's confirmation or continuance in the services of the Company would be subject to his work and performance being found satisfactory. The term "probation" implies a period during which the fitness and suitability of the person placed on probation is on trial. The probationer does not by reason of any such appointment acquire a right to hold the post. The term "probation" implies a period during which the fitness and suitability of the person placed on probation is on trial. The probationer does not by reason of any such appointment acquire a right to hold the post. In the very nature of the appointment given to him, his services are liable to be terminated should the employer be of the opinion that his work and performance during the period of probation is not satisfactory. The fact that the employer has placed an employee on probation is therefore in itself suggestive of the employer having retained the power to terminate the service of the probationer either during or after the initial period of probation subject to the appointment order containing any condition, which may convey a different intention. No such provision is however contained in the appointment order in the instant case. The petitioner could not therefore have acquired a right to hold the post nor could the temporary appointment placing him on trial for assessment of his work and performance acquire an element of permanence merely because the period of one year had expired or the appointment order did not in specific terms reserve to the company the power to terminate the arrangement. Such a power was implicit and need not have been super-added or specifically reserved. Any other view would, in my opinion, lead to anomalous results, for in case the employer does not have the power to terminate the arrangement it will only mean that he will have to endlessly extend the period of probation or grant confirmation to an employee, who is not in its opinion worthy of such a treatment. The first limb of the petitioner's case must therefore fail. ( 6 ) COMING then to the alternative contention urged on behalf of the petitioner, the termination order admittedly does not carry any stigma with it. The order is in fact silent as to the reasons why the same has been issued. Even the reason separately indicated does not carry any stigma. All that the company has stated is that the non-confirmation of the petitioner's services was due to the fact that a review of his performance and conduct during the probationary period showed that the same was not satisfactory. Even the reason separately indicated does not carry any stigma. All that the company has stated is that the non-confirmation of the petitioner's services was due to the fact that a review of his performance and conduct during the probationary period showed that the same was not satisfactory. From the language employed in the order and the reasons separately given, it is difficult to hold that the petitioner's termination was as a measure of punishment for any misconduct alleged against him. The expression "your non-confirmation in the service of the company is due to the fact that on a review of performance, conduct etc. during the probationary period, the same have not been satisfactory" are not in my opinion capable of being understood as a finding to the effect that the petitioner is guilty of any misconduct. What is significant is that the termination proceeds on an assessment and review of the performance of the petitioner no matter his "conduct during the probationary period" has also been subjected to that process. There is however a distinction between assessment of 'performance and conduct' for purposes of determining the employee's worthiness for confirmation on the one hand and examining any such conduct with a view to finding him guilty for any misdemeanor or misconduct on the other. It is not disputed that the show-cause notices served upon the petitioner never resulted in any enquiry or other disciplinary proceedings. No finding regarding the petitioner's guilt was recorded by the company or any of its functionaries at any stage. The test for determining as to whether an order of termination is punitive is whether the alleged misconduct serves as a motive or foundation of the tennination. In Parshotam Lal Dhingra v union of India , their Lordships held that if the misconduct is the foundation and not the motive behind the order of termination, the order would be punitive. Misconduct, negligence, inefficiency or other disqualification may be an inducing factor and may influence the employer to take action under the terms of the contract or the services rules, but any such motive would be irrelevant for purposes of determining the validity of the order. On the contrary if the termination was founded on misconduct, negligence, inefficiency or other disqualification, it shall have to be treated as a punishment. On the contrary if the termination was founded on misconduct, negligence, inefficiency or other disqualification, it shall have to be treated as a punishment. Subsequent decisions of the Supreme Court in State of Bihar v Gopi kishore Prasad and Jagdish Mitter v Union of India, elaborated the relevance of an enquiry for purposes of determining the validity of a termination order that may follow. In the latter of the two decisions, the Court declared that the purpose of holding the enquiry was crucial. If the enquiry was held only for the purpose of deciding whether the employee should be continued or not, it could not be treated as punitive. In Champaklal Chimanlal Shah v Union of India, the court recognised the power of an employer to hold a preliminary enquiry with a view to finding out if a prima facie case was made out to start regular disciplinary proceedings. An order of termination that came soon after the completion of any such preliminary enquiry could not be said to be punitive in itself for it was open to the employer not to embark upon a regular enquiry for establishing the guilt of the employee and dispense with the services of the employee by a simple order of termination. The facts gathered or revealed in the preliminary enquiry would in any such case be motive and not the foundation since no enquiry as to the correctness of those facts was made. Samsher Singh v State of Punjab and Another and Gujarat Steel Tubes Limited v Gujarat Steel Tubes Mazdoor Sabha, reiterated the above proposition. In the latter decision, the court explained the distinction between what would constitute motive or foundation for an order of termination. Their Lordships had yet another occasion to review the entire case law on the subject in Radhey Shyam Gupta v Uttar Pradesh State Agro Industries Corporation Limited and another. The Court summed up the legal position thus.- "it will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah,. , (as he then was) in State of Orissa v Ram Narayan Das. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case, supra. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an Enquiry Officer is appointed-if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the Enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in sukh Raj Bahadur's case, supra and in Benjamin's case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. , in Gujarat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive". The above are all examples where the allegations whose truth has not been found, and were merely the motive". ( 7 ) I may also at this stage refer to State of Punjab v Sukh Raj Bahadur, where a charge memo was served upon the employee, but the proceedings were dropped after a reply was received from him. The High Court had taken the view that since the object of the departmental enquiry was to punish the employee, the order of termination must be treated to be punitive. The Apex court reversed that decision holding that the enquiry had not gone beyond the stage of obtaining an explanation and that no findings had been recorded nor any enquiry report submitted. Relying upon A. G. Benjamin v Union of India , where even an Enquiry Officer had been appointed, but before the enquiry could be completed, the proceedings were dropped on the ground that the same may take a long time and may not prove the guilt of the accused, the Court held that the absence of a finding based on the allegations made showed that the enquiry was not meant to establish the misconduct of the employee. A termination order issued after dropping any such enquiry could not therefore be punitive. ( 8 ) THE position in the instant case is no different. Hence also, as noticed earlier, although the petitioner was served with notices to show cause, no Enquiry Officer was appointed, no charge-sheet was ever served upon him, no evidence recorded nor any finding of his guilt returned. Any such notice would not therefore be sufficient to establish that the allegations made in the same formed the foundation of the termination order and not the motive. Superadded to all these is the fact that the relevant record produced by the respondent-Company, shows that the petitioner's work and performance over a period of one year was evaluated and a decision regarding his suitability based on his work and conduct taken. The decision to terminate the services could not, in these circumstances, be said to be punitive in character aimed at punishing the petitioner for any misconduct that he may or may not have committed. In the result, there is no merit in this petition, which fails and is hereby dismissed but in the circumstances without any orders as to costs.