S. H. A. RAZA, R. D. SHUKLA, JJ. ( 1 ) THIS special appeal has been filed by the appellant against the judgment and order dated 1. 4. 1996 passed by Honble the single Judge in Writ Petition bearing No. 8376 (SS) of 1988, who dismissed the writ petition. ( 2 ) HONble the single Judge was of the view that the appellant, who was appointed on probation as Head Constable (Security Guard) in Sanjay Gandhi Post Graduate Institute of Medical sciences (hereinafter called as S. G. P. G. I. M. S.), Lucknow, had no right to assail the order of termination simpliciter, if the assessment of the work was not found to the satisfaction of the authorities during the period of probation. The probationer has to establish his merit in a commendable manner so that he may be entitled for confirmation and further retention in service. Honble the single Judge in that regard placed reliance upon the pronouncement of honble Supreme Court in Unit Trust of India and others v. T. Bijaya Kumar and another JT 1992 (6) SC 82. ( 3 ) AFTER the writ petition was dismissed, the appellant filed the special appeal under Rule 5 of chapter VIII of Rules of Allahabad High Court. ( 4 ) SENIOR counsel Mr. S. K. Kalia appearing on behalf of appellant laid great emphasis to the fact that the impugned order of termination was founded upon the allegations of misconduct against the appellant. Besides the above, the order suffered from colourable exercise of power. Mr. S. K. Kalia also submitted that whether an employee is on probation or temporary, the services could not be terminated on account of misconduct. In any case, the appointing authority wanted to get rid of the delinquent then, the proper course would have been to hold an inquiry and thereafter, pass an appropriate order. ( 5 ) BEFORE dealing with the legal proposition as advanced by Mr. S. K. Kalia, the factual matrix of the case, as set out in the writ petition, in short compass, has to be examined. ( 6 ) ON 11/13. 2. 1987, the appellant was appointed as Head Constable (security guard) on probation for a period of one year, which could be extended further by the appointing authority. In pursuance of that appointment order, the appellant joined his duties on 28. 2. 1987. His probation period expired on 28. ( 6 ) ON 11/13. 2. 1987, the appellant was appointed as Head Constable (security guard) on probation for a period of one year, which could be extended further by the appointing authority. In pursuance of that appointment order, the appellant joined his duties on 28. 2. 1987. His probation period expired on 28. 2. 1988, but it was extended for six months by the order dated 20. 4. 1988. On 17. 5. 1988, a show cause notice wasissued to the appellant to explain his absence from duly on 6. 5. 1988. In reply to the said show cause notice, the appellant submitted his explanation. On 13. 8. 1988, another show cause notice was issued to the appellant to explain his absence from duly on 12. 8. 1988. Against the said show cause notice, the appellant submitted his explanation on 18. 8. 1988. On 19. 8. 1988 and 22. 8. 1988, two show cause notices were issued to the appellant to explain his conduct as he was found in a drunken stage during the duly hours on 22. 8. 1988. The probation of the appellant was again extended for six months. On 6. 10. 1988, the services of the appellant were terminated before the expiry of the extension by means of an order, which on face of it appeared to be innocuous. ( 7 ) THERE is another aspect, which also deserves to be mentioned. In between the period from 28. 2. 1987 to 28. 2. 1988 when the period of the probation expired, there were no complaints against the appellant, but after the period of probation was extended for six months by the order dated 20. 4. 1988 and later on extended on 22. 8. 1988, complaints started pouring against the appellant. ( 8 ) ACCORDING to the appellant, the said complaints were manufactured by one Shri Lal Mani pandey, who was appointed as security officer on 2. 11. 1987. The appellant had been making complaints against Shri Lal Mani Pandey, Security Officer for his acts of commission and omission. The appellant raised a grievance before him that while compassionate allowances were paid to other security guards, the same was denied to him by Shri Lal Mani Pandey. 11. 1987. The appellant had been making complaints against Shri Lal Mani Pandey, Security Officer for his acts of commission and omission. The appellant raised a grievance before him that while compassionate allowances were paid to other security guards, the same was denied to him by Shri Lal Mani Pandey. ( 9 ) IN view of the aforesaid reason, we have to examine as to whether the order of termination simpliciter, which seems to be innocuous has been camouflaged into an order of punishment and whether the order of termination passed by the Director, S. G. P. G. I. M. S. emanated from his motive to dispense with the services of the appellant or the allegations against the appellant were founded upon the act of misconduct alleged to have been committed by the appellant. The other aspect, which requires to be considered is as to whether the impugned order of termination suffered from colourable exercise of power. ( 10 ) THE contention of Mr. D. K. Arora, appearing on behalf of S. G. P. G. I. M. S. appears to be is that the appellants work was not satisfactory. He was appointed on probation, which was extended twice may be for the reason that his performance was not upto the mark, against which he never protested. Mr. D. K. Arora further emphasizes that the appellant had failed to make out the case that the foundation of the order was as such, which might reflect that the Director, s. G. P. G. I. M. S. wanted to punish the appellant for the alleged act of misconduct. ( 11 ) IT was urged by Mr. D. K. Arora that at the most it can be said that this might have been the motive to dispense with the services of the appellant, but it cannot be said that it was the foundation of the order. The services of the appellant were terminated in terms of the appointment order as well as in accordance with the Rules, which cannot be assailed. ( 12 ) IT appears that during the course of the arguments Honble the single Judge also perused the record. ( 13 ) MR. The services of the appellant were terminated in terms of the appointment order as well as in accordance with the Rules, which cannot be assailed. ( 12 ) IT appears that during the course of the arguments Honble the single Judge also perused the record. ( 13 ) MR. S. K. Kalia submits that what has been indicated in the order passed by Honble the single Judge after perusing the record does not bear out from the record itself, meaning thereby ; that the appellant services were dispensed with on account of his alleged act of misconduct without giving any opportunity to show cause. ( 14 ) WHETHER it is a case of a probationer or temporary employee, often the Courts lift the veil to find out as to whether the order of termination is founded upon an alleged act of misconduct or was due to unsatisfactory services. ( 15 ) IN view of the aforesaid reason, we have summoned the record, which was produced by Mr. D. K. Arora before us. The record indicates that all the reports upon which show cause notices were issued, were at the behest of Sri Lal Mani Pandey, the security officer. In his report dated 23. 9. 1988. Sri Lal Mani Pandey stated that the duty of the appellant in the General Hospital was with effect from 10 p. m. to 6 a. m. , but the appellant absented himself. The appellant at about 9. 45 p. m. went to Primary Health Centre and told to I. S. S. Guard Sri Ved Prakash Yadav, that he will not attend the duty and thereafter, went away. When after completing his duty at 10 p. m. , Sri ved Prakash Yadav informed Sri Lal Mani Pandey that head constable Sri Ajeet Kumar Singh had come but after telling that he would not attend his duty at 10 p. m. returned back. Sri Lal mani Pandey further stated that he directed Sri Ved Prakash Yadav to immediately rush to Shri ajeet Kumar Singh and to ask him as to why he failed to attend his duty. At 10. 45 p. m. Sri Ved prakash Yadav and other security guard Shri Santosh Kumar met him and told that he threatened the guards for dire consequences and with great difficulty, they saved their lives and rushed to him. At 10. 45 p. m. Sri Ved prakash Yadav and other security guard Shri Santosh Kumar met him and told that he threatened the guards for dire consequences and with great difficulty, they saved their lives and rushed to him. 3 or 4 persons wanted him to sign on a plain paper that the security officer had refused to accept the application of the appellant. When Mr. Yadav refused to write it down, then they threatened him for dire consequences and he was forced to write down on the said paper. All the persons including the appellant were in a drunken stage. As the appellant refused to perform his duties during the night of 22. 9. 1988, Shri Lal Mani Pandey to make other arrangement while posting a person on duty on payment of overtime. ( 16 ) SRI Lal Mani Pandey further in his report submitted that this was not the first act of indiscipline committed by the appellant, but on several occasions the appellant absented from duty. On 20. 8. 1988, he had reported the matter to the Director, S. G. P. G. I. M. S. He further reported that all those papers were on the file. A request was made by Sri Lal Mani Pandey to the director. S. G. P. G. I. M. S. to take stern action against the appellant, because in the security department such an irresponsible, lethargic and liar cannot be retained, hence considering his antecedents, he should be dismissed from service otherwise he will commit any serious incident. This report sent by Sri Lal Mani Pandey addressed to the Director, S. G. P. G. I. M. S. is dated 23. 9. 1988. On 26. 9. 1988, the Director, S. G. P. G. I. M. S. passed the following order : "there are various complaints, which have been reported against Sri Ajeet Kumar Singh. The main facts reported, are : (1) Absent from duty without information, (2) Being drunk on duty. (3) Forming a clique in the organization, (4) Using duress on I. S. S. Guards. It appears that under the above circumstances, the services of the Ajeet Kumar Singh, can be terminated as he is on extended probation. Termination order will be according to the Rules. " in the meantime, the appellant made representation levelling charges against Sri Lal Mani pandey. On 11. 10. It appears that under the above circumstances, the services of the Ajeet Kumar Singh, can be terminated as he is on extended probation. Termination order will be according to the Rules. " in the meantime, the appellant made representation levelling charges against Sri Lal Mani pandey. On 11. 10. 1988, a note was preferred before the Director, S. G. P. G. I. M. S. by the office to terminate the services of the appellant with effect from 7. 10. 1988 and immediately the order of termination was issued. ( 17 ) IN Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, (1999) 3 SCC 60 , which was a case of probationer. Honble M. Jagannadha Rao, J. , speaking for the Bench observed : "point 1. If findings are arrived at in an inquiry as to misconduct, behind the back of the officer or without a regular departmental inquiry, simple order of termination is to be treated as founded on the allegations and will be bad, if however, inquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if employer did not want to inquire into truth of allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be motive and not foundation and simple order of termination would be valid. Point 2. There is considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a stigma. It depends on facts and circumstances of each case and language or words used to ascertain whether termination order contains stigma. Point 3: Material which amounts to stigma need not be contained in termination order of a probationer but might be contained in documents referred to in the termination order or in its annexures. Such documents can be asked for, or called for, by any future employer of the probationer. Point 3: Material which amounts to stigma need not be contained in termination order of a probationer but might be contained in documents referred to in the termination order or in its annexures. Such documents can be asked for, or called for, by any future employer of the probationer. In such a case, employees interests would be harmed and therefore, termination order would stand vitiated on the ground that no regular inquiry was conducted. " it was further observed : "it is true that the Supreme Court in some of the cases has held that termination order is not punitive where employee has been given suitable warnings or has been advised to improve himself or where he has been given a long rope by way of extension of probation. However, in all such cases, there were simple orders of termination which did not contain any words amounting to stigma. On the other hand, there is a stigma in the impugned order which cannot be ignored because it will have effect on the appellants future. Stigma need not be contained in termination order but may also be contained in an order or proceeding referred to in termination order or in an annexure thereto and would vitiate the termination order. Point 4. Language of letter dated 11. 12. 1995 clearly points out that the instances referred to therein were not mere allegations against the appellant. Had these been mere allegations, it would have been a case of motive but this letter points out definitive conclusions of misconduct which give rise to an inescapable conclusion that these findings were part of conclusion of impugned termination order. It is not a case of mere motive. Contents of three letters referred to in the impugned termination order are clearly in the nature of stigma. " ( 18 ) IN V. P. Ahuja v. State of Punjab and Haryana and others, (2000) 2 SCC 239, it was observed : "the appellant was appointed as Chief Executive in the establishment of Punjab Cooperative cotton Marketing and Supplying Mills Federation Limited by order dated 29. 9. 1998. One of the terms of his appointment was that he would be on probation for a period of two years, which could be extended further at the discretion of the management. It further provided that during the probation period, the management shall have the right to terminate his services without notice. 9. 1998. One of the terms of his appointment was that he would be on probation for a period of two years, which could be extended further at the discretion of the management. It further provided that during the probation period, the management shall have the right to terminate his services without notice. His services were terminated by order dated 2. 12. 1998 reading as under : "shri V. P. Ahuja, s/o Shri H. N. Ahuja was appointed on probation for 2 years as Chief executive of the Coop. Spg. Mills Ltd. , vide orders Endst. No. Spinfed/c. C. A. /7844-45 dated 29. 9. 1998 and posted at Bacospin. However, he failed in the performance of his duties administratively and technically. Therefore, as per clause 1 of the said appointment order, the services of Shri V. P. Ahuja are hereby terminated with immediate effect. Sd, (Managing Director)S. P. I. N. F. E. D. " Honble Supreme Court considered the said order and allowed the appeal and set aside the order passed by the High Court. While allowing the appeal Honble Supreme Court observed :"a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice. " Referring the earlier decision in Deepti Prakash Banerjee v. Satyendra Nath Bose (supra ). Honble Supreme Court observed that this decision fully covered the instant case as well, particularly as in this case, the order impugned is stigmatic on the face of it. ( 19 ) AFTER lifting the veil, we are definitely of the view that the impugned order as we have staled earlier does not appear to an order of termination simpliciter. Although it has been innocuously worded as termination simpliciter, but it has been camouflaged as such and amounts to an order of punishment. ( 19 ) AFTER lifting the veil, we are definitely of the view that the impugned order as we have staled earlier does not appear to an order of termination simpliciter. Although it has been innocuously worded as termination simpliciter, but it has been camouflaged as such and amounts to an order of punishment. If there would have been certain allegations against the appellant, then it could have been a case of motive, but there is a finding of definitive conclusion of an act of misconduct against the appellant, which is reflected from the report of Sri Lal Mani Pandey as well as the order passed by the Director, which gives rise to an inescapable conclusion that those findings were part of the foundation of the impugned order of termination, it cannot be said as a case of mere motive. ( 20 ) BESIDES the above, there is another aspect of the matter, which requires attention. On the complaints of Shri Lal Mani Pandey as well as other persons, a departmental inquiry was conducted against the appellant to throw light under as to what Circumstances the services of the appellant were terminated ; whether the charges, which were the basis of the termination of the service of Sri Ajeet Kumar Singh were substantiated or not ; whether Sri Ajeet Kumar Singh was given an opportunity to explain his conduct against the charges levelled against him and whether the termination of the services of the appellant was passed after considering the facts presented by both sides or not. In a nutshell the inquiry- officer opined that : (1) The extension of probation of the appellant by six months on 20. 4. 1988 was arbitrary and unjust decision in violation of prevalent service Rules governing probation, as nine months performance out of one years probation was ignored by the appointing authority. The decision to extend probation was based on performance report and assessment of performance only for three months that too based on the report of only one officer in the chain of reporting. (2) Termination of service of the appellant barely one month after his probation was extended for six months, without any fresh input in the form of a performance report was highly irregular, and unjust. (2) Termination of service of the appellant barely one month after his probation was extended for six months, without any fresh input in the form of a performance report was highly irregular, and unjust. (3) The termination of service of the appellant was entirely based on one sided presentation of allegations against him by Shri Lal Mani Pandey, Security Officer. Most of these allegations were fabricated and false. Shri A. K. Singh was given an opportunity to explain his conduct against only one complaint as against 27 so called complaints found in his personal file. The explanation was called only on absence for one day without leave, whereas Shri A. K. Singh was not given an opportunity to explain his conduct or to defend himself on the more serious allegations of frequent absence, drinking, sleeping on duty, anti institute activities and using duress on I. S. S. Guards. In fact there is evidence to prove that most of these allegations were fabricated and not even brought to the notice of the appointing authority at the time of occurrence of these alleged incidents. The report further indicated that the decision to terminate Shri A. K. Singhs service were taken on the complaints of Sri L. M. Pandey dated 29. 9. 1988 and comments of the J. D. (A) endorsed on this complaint on 26. 9. 1988 (reference N/s 21 of P. P. ). The allegations which were thus the basis of termination of service are : (a) Misconduct and assault on I. S. S. Guard Ved Prakash on 22. 9. 1988. (b) Absence from duty. (c) Being cirunk on duty, (d) Proving a clique in the organization. (e) Using duress on I. S. S. Guard. After considering all those aspects, the inquiry officer reported that in any case it is strange that despite 29 complaints in a period of one year all by one Individual, no inquiry formal or informal was held by any one in the hierarchy. The Director, the J. D. (A) and the A. O. did not apply their minds, did not inquire, did not hear Shri A. K. Singh and took the decision to terminate the services based on the allegations mostly fabricated by Shri L. M. Pandey, who had good reasons to be prejudiced and angry with Shri A. K. Singh. The Director, the J. D. (A) and the A. O. did not apply their minds, did not inquire, did not hear Shri A. K. Singh and took the decision to terminate the services based on the allegations mostly fabricated by Shri L. M. Pandey, who had good reasons to be prejudiced and angry with Shri A. K. Singh. Thereafter, a recommendation was made that the appellant Ex-Head Constable should be reinstated as Head Constable in the Institute to undo the injustice done to him. Vacancy should be created by reverting Shri K. N. Tewari. Head constable to his original appointment of Guard. If there is any legal hurdle, the same can be overcome by an application to the Honble Court to dispose of the writ petition of Shri A. K. Singh on the ground of becoming infructuous. A departmental inquiry should be ordered against shri L. M. Pandey on charges found established prima facie in this inquiry proceedings. It is pertinent to mention here that the aforesaid inquiry was conducted by Col. P. K. Ghosh (Retd.) Senior Administrative Officer of S. G. P. G. I. M. S. In pursuance of the report of Col. P, K. Ghosh, Shri L. M. Pandey was dismissed from service. He later on filed a reference to the Visitor of the S. G. P. G. I. M. S. (The Governor of Uttar pradesh), who converted the penalty of dismissal into minor punishment. ( 21 ) MR. D. K. Arora submitted that the services of the appellant were terminated on 6. 10. 1988 and the inquiry report was submitted on 7. 10. 1993, hence it has no relevance with the case of the appellant. ( 22 ) WE are of the view that an inquiry was conducted after the services of the appellant were terminated, but it shows that the services of the appellant were not terminated on the basis of certain allegations against him, but there were definitive findings of misconduct against the appellant, hence it cannot be said that the services of the appellant were terminated either in terms of the appointment order or in accordance with Rules. The services were terminated on the alleged act of misconduct of serious nature against the appellant. Such an order should not have been passed without giving a reasonable opportunity to the appellant by the appointing authority. The services were terminated on the alleged act of misconduct of serious nature against the appellant. Such an order should not have been passed without giving a reasonable opportunity to the appellant by the appointing authority. The Director of the Institute without holding any inquiry against the appellant has mainly relied upon the report of Shri L. N. Pandey, whose conduct cannot be said to be above average. ( 23 ) THE inquiry conducted by Col. P. K. Ghosh, Retd. Senior Administrative Officer and what we have observed in the foregoing paragraphs, was completely overlooked by Honble the single judge. ( 24 ) WE are of the view that it was the bounden duty of Honble the single Judge to have adverted on the facts of the case by lifting the veil, which has coloured, the termination order. But before parting this judgment, we take note of this fact that the work assigned to the appellant was onerous. He being a Head Constable (Security Guard) the job performed by him was oudous in nature, he ought to have been very cautious and vigilant in his dudes and obligations. ( 25 ) CONSIDERING the facts and circumstances of the case, we are of the view that the order of termination deserved to be quashed and in pursuance of that order the appellant deserved to be reinstated, but he will be entitled for only one year back wages. However, it will be open for the director. S. G. P. G. I. M. S. , if he so desires, to proceed with the departmental inquiry against the appellant in accordance with law. ( 26 ) IN view of what has been indicated hercinabove, the special appeal succeeds. The judgment and order dated 1. 4. 1996 passed by Honble the single Judge in Writ Petition bearing No. 8376 (SS) of 1988 is set aside. The impugned order of termination dated 6. 10. 1988 passed by the director, S. G. P. G. I. M. S. is quashed, but the appellant will be entitled for back wages only for one year, but he would be deemed to be in service, during the period he remained dismissed from service. However, it will be open for the Director, S. G. P. G. I. M. S. , if he so desires, to proceed ahead with the departmental inquiry against the appellant. .