JUDGMENT 1. - The instant writ petition has been filed challenging the impugned order dated 11.7.98 (Annx. 5), by which petitioner has been discharged from service during the period of probation. 2. The facts and circumstances giving rise to this case are that after holding regular selection for the post of Hostel Superintendent, petitioner was appointed, vide order dated 29.6.96, on probation for a period of one year and he joined the service on 13.7.96. The probation period was further extended for a period of one year, however, petitioner has been discharged vide order dated 11.7.98 as his services were not found satisfactory. Hence this petition. 3. Mr. G.K. Vyas, learned counsel for the petitioner has submitted that the impugned order has been passed as a punishment and is stagmatic and, thus, bad in law. 4. Mr. J.P. Joshi, learned counsel appearing for the respondents has pointed out that there is nothing in the impugned order which can be termed to be stagmatic; it only speaks of warning and counselling which certainly did not cast stigma. It is a case of discharge of probationer simplicitor and the inquiry, as contemplated under Article 311(2) of the Constitution or any provision analogous to the same was not required. 5. The sole point involved in this case is whether such an order casts stigma and if yes, whether it could have been passed without holding inquiry ? 6. The issue involved herein has been considered by the courts time and again. In Parshottam Lal Dhingra v. Union of India & ors., AIR 1958 SC 36 , a Constitution Bench of the Supreme Court held that appointment even to a permanent post on probation means that the employee was taken on trial and such an appointment comes to an end even during or at the end of the probation if the person so appointed is found to be unsuited and his services to are terminated. 7. 7. In State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689 , a Constitution Bench of the Hon'ble Supreme Court ruled that if the employer proceeded against a probationer; directly without casting any aspersion on his honesty or competence, his discharge would not, in law, have the effect of removal from service by way of punishment and he, therefore, cannot have any grievance but in case the employer has branded the employee as dishonest and an incompetent officer, the probationer was entitled for protection of the rights under Article 311 of the Constitution of India. 8. Another Constitution Bench of the Hon'ble Supreme Court, in State of Orissa v. Ram Narayan Das, AIR 1961 SC 177 , held that if the order of discharge made it clear that it was discharge "for unsatisfactory work and conduct," the language used therein did not cast stigma and it was merely an order of discharge simplicitor. The order of discharge of the probationer was found to be valid in law though in the said case, a preliminary enquiry had been held before discharging him from service. 9. In State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 , the Hon'ble Supreme Court approved the procedure adopted by the employer wherein the disciplinary enquiry was dropped in the mid way and order of reversion was passed. The Apex Court held that the circumstances proceeding the order of reversion, must be examined in each case, the motive behind being immaterial. Thus, it is open for the employer to drop the proceedings in the mid way and pass the order of discharge simplicitor if he is not willing to ascertain the correctness of allegations made against the probationer. 10. In Union of India & ors. v. R.S. Dhaba, (1969) 3 SCC 603 ; State of Bihar v. Shiva Bhikshuk Misra, AIR 1971 SC 1011 ; and R.S. Sial v. State of U.P. & ors., AIR 1974 SC 1317 , the Hon'ble Apex Court held that in such a case, the Court has to examine whether the misconduct or negligence on the part of the employee was a mere motive for the order of termination or discharge or it was the very foundation of that order. The form of the order was not conclusive of its true nature and the Court must examine the entirety of the order of discharge after lifting the veil. 11. A Seven Judges Bench of the Hon'ble Apex Court, in Samsher Singh v. State of Punjab & ors., AIR 1974 SC 2192 , held that an appointment on probation or on an officiating basis, is of a transitory character with an understanding/implied condition that such an appointment terminable at any time. In the said case, enquiry had been conducted against the probationer behind his back, who was a member of Punjab Subordinate Judicial Service and the inquiry report was sent to the State Government to the effect that the probationer was not a suitable person to be retained in judicial service. The State Government passed the order of discharge on the recommendation of the High Court in the light of the findings arrived at by the Enquiry Officer. The Hon'ble Supreme Court held that his termination was clearly by way of punishment. 12. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896 , the Hon'ble Supreme Court held that the Court or the Tribunal is entitled to find out the true nature of the order of discharge/termination, namely, whether it is punitive or not and if the basis is not the misconduct, the order does not warrant any interference. 13. In State of Maharashtra v. Veerappa R. Saboji & Anr., AIR 1980 SC 42 , the Hon'ble Supreme Court, while dealing with the discharge of a Judicial Officer on probation, held that in a matter of termination simplicitor, there is no presumption that the order is arbitrary or malafide unless a very strong case is made out and proved by the public servant who challenged such an order. 14. In Nepal Singh v. State of U.P, AIR 1985 SC 84 , the order of termination simplicitor was passed on account of the drive launched by the authority for weeding out unsuitable and unfit employees. The Hon'ble Supreme Court came to the conclusion that removal of a temporary Government employee on the ground of unsuitability does not cast any kind of stigma nor it can be held that such an order has been passed by way of punishment. 15. In Union of India & ors. v. PS. The Hon'ble Supreme Court came to the conclusion that removal of a temporary Government employee on the ground of unsuitability does not cast any kind of stigma nor it can be held that such an order has been passed by way of punishment. 15. In Union of India & ors. v. PS. Bhatt, AIR 1981 SC 957 , the Supreme Court held that appointment on temporary basis or on probation cannot be equated with holding the permanent post, for the reason that when a person is appointed on probation, he does not have a right to hold the post and if it is found that he was not suitable for the post, his probation can be terminated at any time. In that case, the abusive language used by the employee against his superior was found only to be a motive or inducing factor for his removal, but it was held that termination was not punitive in nature. 16. The period of probation is a period of test, during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that the employee is not suitable for the post. It would be open to the employer to terminate his services, as the same cannot be equated with that of a permanent employee, who, on account of his status, is entitled to be retained in service which cannot be terminated abruptly without any plausible cause and without following the law provided for termination. It is only a permanent employee, who substantively holds a permanent post, has a right to continue on the post till he reaches the age of superannuation or is removed from service by following the due process of law. (Vide Moti Ram Deka v. General Manager, N.E.F. Railways, AIR 1964 SC 600 ; and Life Insurance Corporation of India & Anr. v. Raghavendra Seshagiri Rao Kulkarni, (1997) 8 SCC 461 . 17. It has consistently been held that the a 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 v. Baldev Singh Khosla, (1996) 9 SCC 190 . 18. 17. It has consistently been held that the a 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 v. Baldev Singh Khosla, (1996) 9 SCC 190 . 18. In V.K. Krishnamani v. Lalit Kala Academy, AIR 1996 SC 2444 , 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 1 these circumstances it cannot but be held that the reasons mentioned constitute the motive and not foundation for termination of services." 19. In State of U.P. & ors. v. Kaushal Kishore Shukla, 1991 (1) SCC 691 the Apex Court held that termination of services of temporary Government servant, in terms of contract of service, by passing an order of termination simplicitor on assessment 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 v. U.P. Public Service Tribunal, (1994) 5 SCC 180 . 20. In Governing Council of Kidwai Memorial Institution on Oncology v. Dr. Pandurang Godwalkar and another, AIR 1993 SC 392 , the Hon'ble 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 removal 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. 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 overall 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 question 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." (Emphasis added). 21. While deciding the aforesaid case the Apex Court had placed reliance on its earlier judgment in Oil & Natural Gas Commission v. Dr. M.S.I. Ali, AIR 1980 SC 1242 , 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. 22. In K.K. Shukla (supra), the Apex Court considered the averment that discharge order had been passed after holding preliminary inquiry. The Hon'ble 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 v. Union of India and others, AIR 1964 SC 1854 and in Jagdish Mitra v. Union of India and others, AIR 1964 SC 449 . 23. Same view has been taken by the Supreme Court in Champaklal Chimanlal Shah v. Union of India and others, AIR 1964 SC 1854 and in Jagdish Mitra v. Union of India and others, AIR 1964 SC 449 . 23. The issue was, also, considered in Anoop Jaiswal v. Government of India & Anr., AIR 1984 SC 636 , wherein 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 reason 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. 24. Similarly, in the case of Jarnail Singh v. State of Punjab & ors., AIR 1986 SC 1626 , 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 megnitude must be alleged by the discharged employee and he must adduce sufficient evidence in support of it. 25. In Life Insurance Corporation of India (supra), it has been held that the requirement to hold a regular departmental enquiry before dispensing with the services of a probationer, cannot be invoked in the case of a probationer, especially when his services are terminated by an innocuous order which does not cast any stigma on him. 26. In Dr. 25. In Life Insurance Corporation of India (supra), it has been held that the requirement to hold a regular departmental enquiry before dispensing with the services of a probationer, cannot be invoked in the case of a probationer, especially when his services are terminated by an innocuous order which does not cast any stigma on him. 26. In Dr. Amritlal Dharshibhai Jhankharia v. State of Gujarat & ors., (1998) 8 SCC 767 , the Hon'ble Supreme Court held that a probationer has no right to hold the post if he does not complete the probation period satisfactorily. 27. In Ganganagar Zila Dugdh Utpadak Sahkari Sangh Ltd. & Anr. v. Priyanka Joshi, AIR 1999 SC 2363 , the Hon'ble Supreme Court observed as under:- "In the order of appointment, it was clearly stipulated that the respondent's services could be terminated during probationary period if his services were unsatisfactory. When such is performance of a person, if his services are terminated during the period of probation, obviously there has to be a reason for such termination. If the services are terminated during probationary period without any reason whatsoever, it is possible that such an order may be impugned on the ground that it has been passed arbitrarily. On the other hand, when there is a reason for terminating the services during probationary period and the order terminating the services is worded in an innocuous manner, we do not see any force in the contention that such an order has to be regarded as by way of punishment." 28. In State of U.P. & Anr. v. Ram Krishna & Anr., (1999) 7 SCC 350 , it has been held by the Hon'ble Supreme Court that if the temporary appointment is subject to the condition that respondent's services could be terminated without any prior intimation and his services are terminated without holding any inquiry or without giving any notice, the termination order cannot be interfered with for the reason that his position was similar to that of an employee on probation and termination of his service was a result of review of his performance which was not found to be satisfactory. Such a termination order cannot be held to be bad in law. 29. In Ashok Kumar Srivastav v. National Insurance Co. Such a termination order cannot be held to be bad in law. 29. In Ashok Kumar Srivastav v. National Insurance Co. Ltd. & ors., (1998) 4 SCC 361 , the Apex Court held that an employee is not entitled to continue to be in employment if his services had been terminated during the period of probation in view of the terms and conditions incorporated in the letter of appointment. 30. In State of Punjab & ors. v. Surinder Kumar & ors., AIR 1992 SC 1593 , the Apex Court held that the services of a temporary employee are always governed by the terms and conditions incorporated in his appointment letter and there is no reason why such terms be not enforced. 31. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & ors., AIR 1999 SC 983 , the Hon'ble Supreme Court considered the issue of termination of services of the probationer elaborately. The Court placed reliance on a large number of its earlier judgments, including Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. & Anr., JT 1998 (8) SC 585 , and held that as to in what circumstances an order of termination of the probationer can be said to be punitive or not, depends upon whether certain allegations, which are the cause of termination, are the motive or foundation. The Court observed as under:- "The learned Judge pointed out that the employee being a probationer, `the inquiry against the respondent was for ascertaining whether he was fit to be confirmed.' His Lordship pointed out that this inquiry was not of the same nature as an inquiry into charges of misconduct, negligence, inefficiency or other disqualification. On the facts of the case, the termination of a probationer was upheld inasmuch as the purpose of the inquiry was to find out if the employee could be confirmed. The purpose of the inquiry was not to find out if he was guilty of any misconduct, negligence, inefficiency or other disqualification. The underlined words are very important and demarcate the line of distinction. If the inquiry officer held no sitting, did not take evidence nor recorded any conclusions and if at that stage the inquiry was dropped and a simple order of termination was passed, the same would not be punitive." 32. The underlined words are very important and demarcate the line of distinction. If the inquiry officer held no sitting, did not take evidence nor recorded any conclusions and if at that stage the inquiry was dropped and a simple order of termination was passed, the same would not be punitive." 32. After considering the entire material on record, the Hon'ble Supreme Court held that as the order of discharge was passed because of the findings arrived at in an inquiry on her misconduct behind her back without a regular departmental enquiry, the order of termination was treated `founded' on the allegations and, thus, was bad. In the said case, there had been three letters alongwith the order of discharge which contained certain stagmatic allegations and there were also some clear adverse findings by the Enquiry Committee, thus, the same were treated to be the foundation for passing the order of termination and the order of discharge was found to be vitiated on the ground of stigma against the probationer. 33. In Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Ltd. & Ors., (1997) 2 SCC 191 , the Hon'ble Supreme Court held that termination of services for unsatisfactory performance after recording a finding that he was regularly absent on one ground or the other, was not stagmatic. The reason mentioned in the order of discharge was the motive and not the foundation for removal. Thus, the order of discharge, although passed without inquiry, was held to be valid. The Court further held that neither the principles of natural justice nor the provisions of Article 311(2) of the Constitution were attracted. Therefore, it is evident that unless the motive travels in the facts and circumstances of the case to the territory of foundation and becomes the basis for removal, the Court should not interfere. 34. In the High Court of Judicature at Patna v. Madan Mohan Prasad Sinha & ors., (1997) 10 SCC 409 , the Hon'ble Apex Court held as under:- "The position of a probationer cannot be equated with that of an employee who had been substantively appointed on a post and has a right to hold that post. An order terminating the services of a probationer can be questioned by way of punishment without complying with the requirements of Article 311(2) of the Constitution. An order terminating the services of a probationer can be questioned by way of punishment without complying with the requirements of Article 311(2) of the Constitution. Since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to he heard before an order terminating his services is passed. The obligation to communicate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice. The principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. It is therefore, not possible to hold that there is an obligation to communicate the adverse material to a probationer before a decision is taken on the basis of the said material that he is not fit for being retained in service. Such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious." 35. Division Bench of this Court in Kanhaiya Lal v. State of Rajasthan & ors., 1998 WLR 25 , placing reliance upon a large number of judgments of the Hon'ble Supreme Court and particularly in Allahabad Bank Officers Association & ors. v. Allahabad Bank & ors., AIR 1996 SC 2030 ; Chandu Lal v. Management of M/s. Pan American World Airways, AIR 1985 SC 1128 ; Kemal Kishore Laxman v. Management of M/s. Pan American World Airways, AIR 1987 SC 229 ; Jagdish Prasad v. Sachiv, Zila Ganna Committee, Muzaffarnagar, AIR 1986 SC 1108 ; State of U.P. v. Madan Mohan Nagar, AIR 1967 SC 1260 ; and Jagdish Mitter v. Union of India & ors., AIR 1964 SC 449 , held that if the order of termination reveals that the employee was found undesirable to be retained in service. such remarks cast a stigma and such an order cannot be held to be discharge simplicitor. Therefore, a case of discharge of a probationer has to be examined having an analytical view of the order impugned. Similar view has been reiterated in V.P. Ahuja v. State of Punjab & ors., (2000) 3 SCC 239 . 36. such remarks cast a stigma and such an order cannot be held to be discharge simplicitor. Therefore, a case of discharge of a probationer has to be examined having an analytical view of the order impugned. Similar view has been reiterated in V.P. Ahuja v. State of Punjab & ors., (2000) 3 SCC 239 . 36. In Chandra Prakash Shahi v. State of U.P. & ors., (2000) 5 SCC 152 , the Apex Court held that if discharge of a probationer is based on the alleged act of misconduct, the order becomes punitive in nature and he is entitled for the protection of provisions of Article 311(2) of the Constitution. The Court observed as under:- "The important principles which are deducible on the concept of `motive' and `foundation', concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for to assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of `motive'. `Motive' is the moving power which impels action for a definite result, or to put it differently, `motive' is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this Act ? `Motive' is the moving power which impels action for a definite result, or to put it differently, `motive' is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this Act ? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary Inquiry is held behind his back to ascertain the truth of those allegations and a termination order Is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry." 37. The Court came to the conclusion that termination was founded on the report of preliminary inquiry, and as the employer had not held the preliminary inquiry to find out whether the appellant was suitable for further retention in service or for confirmation, rather the inquiry was held on the alleged misconduct, the order of discharge was definitely punitive in Character. However, the Court held that in absence of any prohibition, even if he probationer completed two years of probationary period successfully without any blamish, his period of probation shall be treated to have been extended "as a permanent status can be acquired only by means of a specific order of confirmation." For deciding the said case, the Court placed reliance upon its earlier Constitution Bench judgment in State of Punjab v. Dharam Singh, AIR 1968 SC 1210 and other cases, i.e. Pratap Singh v. Union Territory of Chandigarh, AIR 1980 SC 57 ; and Municipal Corporation, Raipur v. Ashok Kumar Misra, JT 1991 SC 599 . Same view has been eiterated in Karnataka State Road Transport Corporation & Anr. v. S. Manjunath, (2000) 5 SCC 250 . 38. In Krishanadevaraya Education Trust & Anr. v. L.A. Balakarishna, AIR 2001 SCW 253 , the Hon'ble Apex Court held as under:- "Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. 38. In Krishanadevaraya Education Trust & Anr. v. L.A. Balakarishna, AIR 2001 SCW 253 , the Hon'ble Apex Court held as under:- "Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the fact of it states that his services are being terminated because his performance is not satisfactory, the employer runs the so risk of the allegation being made that the order Itself casts a stigma." 39. Therefore, it is required that an order of discharge simplicitor be `innocuously worded.' 40. Therefore, the Court should not interfere unless the order of discharge casts stigma upon the employee or the order is found to be punitive in nature. 41. `Stigma' means blemish, defect. disgrace, disrepute, imputation, marks of disgrace or same (Vide The Legal Thesaurus by Burton). Webster's New World Dictionary, defines `stigma' as something that detracts from the character or reputation of a person, a mark, sign, etc indicating that something to is not considered normal or standard. it may also be defined as a mark or label indicating a deviation from the norms or a matter of moral reproach. 42. In Kamal Kishore Lakshman (supra), it was held that loss of confidence by the employer amounts to stigma. In the context of service, stigma would mean a statement in the order indicating his misconduct or lack or integrity. (Vide Allahabad Bank Officers' Association (supra). 43. A Division Bench of this Court, while deciding D.B. Civil Special Appeal No. 676/1997, State of Rajasthan v. Gyan Singh, decided on 17.9.97 , observed as under:- "If a police employee has the antecedents of a Gunda and has been proceeded with under the Rajasthan Gundas Act then what message the public at large will get from the character of such a person, is not a matter of speculation and under such circumstances, if the order of simplicitor discharge has been passed against the probationer like respondents on the ground of unsatisfactory conduct then the law cited by the learned counsel for the respondent asking for fulfilment of the requirements of principles of natural justice and Article 311(2) of the Constitution, will not come to his rescue and are not attracted to the facts at all. The termination order is a plain and simple order of discharge of the probationer on unsatisfactory conduct and, therefore, it is perfectly valid." 44. Similarly, a Division Bench of this Court (Jaipur), while deciding D.B. Civil Special Appeal No. 1477/1984, Anil Kumar Kaushik v. State of Rajasthan, decided on 16.11.2000 , held that as the High Court had made a recommendation under Article 235 of the Constitution read with Sub-rule (1) of rule 24 of the Rajasthan Judicial Service Rules, 1955, the Government ought to have passed a formal order of discharge and as the order did not cast any stigma, no interference was called for. 45. The relevant part of the order reads as under:- "After perusal of your record of service, conduct and performance in this school during your probation period, it has been decided to terminate your services from this school w.e.f. 11.7.98 (A.N.). You were given a number of warnings and counselling but your attitude did not undergo the desired change." 46. Petitioner's performance during the probation period was assessed and as he had been given warning twelve times and counselling in the relevant period and was suggested several times to improve his performance, the order has been passed merely on the ground that his services had not been found satisfactory in terms of rule 17.08 of the Sainik School Society Rules and Regulations in the larger interest of the institution. The said rule 7-8 so reads as under:- "During the period of probation, the Principal may terminate the services of any member of staff appointed by him under his own powers after giving him one month notice in writing and without assigning any reason. 47. The details of the warning etc. had also been given in the reply, which are as under - "(a) SSC/PF/RV/M dated 29th Aug. 96. (b) SSC/PF/RV/M 141 dated 4th Sept. 96. (c) SSC/PF/RV/M 144 dated 1st Dec. 96. (d) SSC/PF/RV/M 48 dated 3rd Jan. 97. (e) SSC/IPF/RV/M/50 dated 17th Jan. 97. (f) Minute Sheet dated 27th Jan. 97 duly approved by the Principal. (g) SSC/PF/RVM 52 dated 12th Feb. 97. (h) SSC/PF/RWM dated 29th March, 1997. (i) SSC/PF/RV/M dated 30th June 97 (Minute Sheet) (j) SSC/PF/RV/M dated 17th Feb. 1998. (k) SSC/PF/RV/M dated 20th Feb. 1998. (l) SSC/PF/RV/M dated 23rd March, 1998. 48. 97. (e) SSC/IPF/RV/M/50 dated 17th Jan. 97. (f) Minute Sheet dated 27th Jan. 97 duly approved by the Principal. (g) SSC/PF/RVM 52 dated 12th Feb. 97. (h) SSC/PF/RWM dated 29th March, 1997. (i) SSC/PF/RV/M dated 30th June 97 (Minute Sheet) (j) SSC/PF/RV/M dated 17th Feb. 1998. (k) SSC/PF/RV/M dated 20th Feb. 1998. (l) SSC/PF/RV/M dated 23rd March, 1998. 48. Undoubtedly, the provisions of rule 7.08, referred to above, enabled the Authority to pass the order of discharge but in the order impugned, as the respondents have not used the non-injurious terminology, it smacks of stigma as it clearly provided that the petitioner had been given a number of warnings and counselling out there was not a change in his attitude as desired by the Authority. Therefore, the order impugned cannot be held to be discharge simplicitor. Had the later part, in para 2 of the said order, been not there and the respondents were directed by this Court to place the material, on the basis of which the order impugned has been passed and respondents come straightway showing the aforesaid twelve warnings to the Court, in that situation it could have been permissible for the petitioner to assert that the order was ipso facto stagmatic and bad and has been passed as a measure of punishment. As the Competent Authority itself has passed the stagmatic order, it is liable to be quashed. 49. Thus, the petition succeeds and is allowed. The impugned order dated 11.7.98 (Annx. 5) is hereby quashed. The petitioner shall be deemed in continuous service of the respondents.Back Wages:- 50. The grant of back wages depends upon the facts and circumstances of each case as the Hon'ble Apex Court has dealt with the issue differently in different circumstances, i.e.:- (A) If the termination order is quashed, the employee would be entitled for reinstatement and full back wages unless there are reasons on record which would justify a departure from the normal mode and in that case, the party objecting to it must establish the circumstances necessiated the departure. (Vide Punjab National Bank v. Punjab National Bank Employees Federation, AIR 1960 SC 160 ; Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd., AIR 1979 SC 75 ; Manorama Verma v. State of Bihar & ors., 1994 (Supp) 3 SCC 671 : Santosh Yadav v. State of Haryana, (1996) 9 SCC 326 ; Ram Chandra & ors. v. Delhi Administration 7 ors., (1996) 10 SCC 409 ; Daya Ram Dayal v. State of M.P., (1997) 7 SCC 443 ; Director, State Transport, Punjab & Anr. v. Gurdeo Singh & Anr., (1998) 2 SCC 159 ; H.S. Chandra Shekara Chari v. Divisional Controller, KSRTC & Anr, (1999) 4 SCC 611 ; and Narsingh Pal v. Union of India & ors., JT 2000 (3) SC 593 . (B) If the termination order. is quashed on technical ground, where the authority can further proceed against the employee, the question of payment of back wages, in case reinstatement is ordered, should invariably be left to be decided h:f the Authority concerned according to law. (Vide Managing Director, ECII Ltd. v. B. Karunakar, (1993) 4 SCC 727 . 51. While considering the issue of entitlement of back wages, the Court must record the finding that the employee was not otherwise gainfully employed during the relevant period. (Vide State of U.P. & ors. v. Atal Bihari Shastri & ors., 1993 (Supp) 2 SCC 207 ). 52. In the instant case, there is nothing on record to determine whether petitioner had ever been engaged in gainful employment after being discharged from the services of the respondents. Therefore, it is neither desireable nor appropriate for the Court to determine this issue. The respondents are directed to decide the issue of back wages within the period of four months and if the issue is determined in favour of the petitioner, the arrears etc. shall be paid to him expeditiously. 53. The petition stands disposed of accordingly. There shall be no order as to costs.Writ Petition disposed of. *******