SOUMITRA PAL, J. ( 1 ) THIS appeal arises out of the judgement and order dated 13th April, 1994 passed by the learned Single Judge in Civil Rule No. 6189 (W)of 1985, allowing the writ petition and by making the rule absolute. ( 2 ) THE facts are that the petitioner (since deceased) was appointed as a munsif in the West Bengal Civil Service (Judicial) against permanent vacancy. In terms of his appointment he was to remain on probation for a period of two years. While on probation, the petitioner underwent training. However, on 5. 10. 84 during probation, the petitioner was served with the notice of termination which was effective from 6. 10. 84. The said notice of termination was under challenge as, according to the respondent/ petitioner, it was mala fide and was in colourable exercise of powers since it was issued without holding any enquiry and without giving the petitioner any opportunity of being heard. ( 3 ) BEFORE the learned Single Judge the parties filed their respective affidavits. ( 4 ) THE learned Single Judge while allowing the petition held that the drastic action of removal from service was taken by the appellant /respondent without taking recourse to any enquiry even though the charges were largely based on evidence of witness and adverse reports of the superior officers. It was held that the very fundamentals of disciplinary enquiry were given a go-by. It has been held that the petition should succeed as it could not be said for certain whether the respondent/petitioner really deserved what had been dealt to him since he was condemned without a trial. The learned Single Judge directed reinstatement with the benefit of fixation of pay on notional basis as though he was continuing in service since the date of such termination. The learned Trial court held that the petitioner was entitled to notional fixation of pay, 25% of the arrears of pay, all other service benefits as he would have been entitled in the event of continuation of service including seniority, promotion and so on. ( 5 ) MR. Arunabha Ghosh, learned Counsel appearing for the respondent/ writ petitioner defending the judgement submitted that there is nothing on record to show that the petitioner failed to prove equal to the duties of his office. He had unimpeachable performance in his judicial work. ( 5 ) MR. Arunabha Ghosh, learned Counsel appearing for the respondent/ writ petitioner defending the judgement submitted that there is nothing on record to show that the petitioner failed to prove equal to the duties of his office. He had unimpeachable performance in his judicial work. The remark adequate in the file proved that the petitioner showed no want of keenness in his work. Had the respondent/ writ petitioner been deficient in his performance, he should have been told to rectify. The motive of the respondents is apparent from the affidavit-in-opposition which reveals the bias of the respondents who were bent upon getting rid of him. Relying on the judgements of the Apex Court in Anoop Jaiswal vs. Government of India, reported in AIR 1984 SC 636 , rajinder Kaur vs. Punjab State and Anr. , reported in AIR 1986 SC 1790 , Dipti prakash Banerjee vs. Satyendra Nath National Centre for Basic Sciences calcutta and Ors. , reported in AIR 1999 SC 983 , Chandra Prakash Shahi vs. State of U. P. and Ors. , reported in 2000 0 JT 181, Jarnail Singh and Ors. vs. State of Punjab and Ors. , reported in AIR 1986 SC 1626 and Nepal Singh vs. State of U. P and Ors. , reported in AIR 1985 SC 84 , it was submitted that the order of termination without asking an explanation is in reality a cloak for an order of punishment. According to him, it is for the respondents to show that the power to terminate the services was exercised honestly and in good faith. ( 6 ) MR. Alok Kumar Ghosh, learned Advocate for the appellant submitted that the contentions raised on behalf of the respondent/writ petitioner are not tenable. The issue regarding the termination of the services of the respondent / writ petitioner was before the Administrative Committee. Since the respondent /writ petitioner was found to be not suitable, the Administrative Committee recommended for termination of the services. It was subsequently ratified by the Full Court. The High Court while terminating the services of the respondent /writ petitioner did not come to a conclusion on the basis of the facts in the affidavit-in-opposition. According to him the statements in the affidavit-in-opposition merely disclose certain facts. The facts did not form the basis of the termination. It was subsequently ratified by the Full Court. The High Court while terminating the services of the respondent /writ petitioner did not come to a conclusion on the basis of the facts in the affidavit-in-opposition. According to him the statements in the affidavit-in-opposition merely disclose certain facts. The facts did not form the basis of the termination. The learned Advocate for the appellant relied on the judgement in Hari Singh Mann vs. State of Punjab and Ors. , reported in AIR 1974 SC 2263 , oil and Natural Gas Commission and Ors. vs. Md. S. Iskander Ali, reported in air 1980 SC 1242, Mathew P. Thomas vs. Kerala State Civil Supply Corpn. Ltd. and Ors. , reported in 2003 AIR SCW 1230, H. F. Sangati vs. R. G. High court of Karnataka, reported in 2001 0 AIR (SCW) 886, Satya Narayan Athya vs. High Court of M. P. and Anr. , reported in AIR 1996 SC 750 , Krishnadevaraya education Trust and Anr. vs. L. A. Balakrishna, reported in AIR 2001 SC 625 and Samsher Singh vs. State of Punjab and Anr. , reported in AIR 1974 SC 2192 in support of his proposition that after the completion of the probationary period it would be open to the authorities to consider whether the candidate is suitable for confirmation or he is to be discharged from service. If the order terminating the services of the probationer is termination simpliciter, then it cannot said to be mala fide and thus not open to judicial scrutiny. Reliance was placed on the judgement of the Apex Court in State of Punjab and Ors. vs. Balbir Singh, reported in 2004 0 AIR (SCW) 5248, in support of the contention that assuming though not admitting there was an enquiry, it was preliminary in nature and not a full scale formal enquiry with the object of finding out any misconduct on the part of the respondent/writ petitioner. ( 7 ) WE have heard learned Advocates for the parties. ( 8 ) THE question which arises for consideration is whether in the facts and circumstances the discharged employee who was on probation had any right of audience prior to his termination. ( 9 ) IT is an accepted proposition that while on probation, an employee cannot claim any right to the post. ( 8 ) THE question which arises for consideration is whether in the facts and circumstances the discharged employee who was on probation had any right of audience prior to his termination. ( 9 ) IT is an accepted proposition that while on probation, an employee cannot claim any right to the post. If the period of probation is not extended, if the probationer is not allowed to continue in service after the period of probation, the probationer cannot question such an action by the employer, unless a stigma is attached. An employer has every right to bring cessation to the employment of a probationer without assigning any reason. The employer may not extend the period of probation, it may not confirm the probationer and it may discontinue the service of the probationer on the expiry of the period of probation. Such right of the employer, if free from any stigma, is unassailable. Whether the probationer would be suitable or not is a consideration within the absolute discretionary domain of the employer. But the question would be different if such action is undertaken pursuant to a motive and if there are materials to hold that such motive turned into foundation or in other words, the action is based on the motive itself, then such an action, though innocuous, would be a pretence and a punishment in disguise. Such punishment can be inflicted on the employee only upon compliance of the principles of audi alteram partem, namely only after giving an opportunity, which envisages an enquiry. ( 10 ) THE real question is, since allegations have been made, was there any motive behind the termination of the respondent/writ petitioner herein. To inquire about the motive, one has to lift the veil and examine as to what is there behind the curtain. If it appears to the Court that there are materials to suggest motive being turned into foundation, the Court is supposed to apply the principle of lifting the veil and may strike down such action violating the golden rule of audi alteram partem - the right to be heard. Now the point to be considered is what constitutes motive and what causes motive turning to foundation. Now the point to be considered is what constitutes motive and what causes motive turning to foundation. This is an exercise which sometimes Writ Court can undertake on the basis of materials placed before it which are sufficient to draw inference in order to come to a conclusion on a question of fact. Once there is a finding on fact on the basis of the materials placed before it, which is not in the realm of belief or disbelief, but within the domain of legal inference drawn from the facts and the materials available before the Court, such finding of facts if can be supported by the materials on record and it is possible to take one or the other view by a reasonably prudent man, in that event, the Appeal Court, even though might be of a different view, would be very slow to interfere until it is found to be perverse or could not be arrived at rationally on the rationale of the facts and materials before the Court by a rational man. ( 11 ) IF such materials are brought before the Court either by way of production of the records or from the case made out in the pleadings, in that event, the inescapable conclusion would be that the Court can look into such materials in order to arrive at a finding one way or the other, until it is shown that such materials were never placed before the authority taking the decision and that such materials had never weighed with the authority to take such a decision. In other words, it has to be established that such materials did not motivate the authority to take the action and base its decision on the reasons giving rise to the motive. When such materials are disclosed in the pleadings in order to defend the action, the normal presumption would be that it had weighed with the authority and from which the authority had derived the motive and had based its decision out of such motivation turning the motive to foundation behind such action. ( 12 ) BUT there seems to be some exceptions to this proposition when the service of a probationer is dispensed with. The principles would apply only when the allegations against the probationer constitute misconduct. ( 12 ) BUT there seems to be some exceptions to this proposition when the service of a probationer is dispensed with. The principles would apply only when the allegations against the probationer constitute misconduct. The question is if in case any probationer is found unsuitable or inefficient or otherwise, can it be said that in view of such a principle, his service cannot be dispensed with. The period of probation is a period during which the probationer has to prove his worth in order to enable him to be retained in employment. It provides liberty to the employer to assess the capability of the probationer for being retained in the employment. The employer has to be given some amount of liberty to assess the capability of the probationer. There may be various reasons, which might guide the employer to assess whether the continuation of the probationer would be congenial for his organization or not. The employer has to ascertain and obtain reports with regard to the performance of the probationer. If after considering such reports, a decision is taken bona fide to dispense with the service of the probationer, in that event, it would not attract the principles enunciated by the Supreme Court on the question of audi alteram partem so long the allegation does not constitute misconduct or casts stigma. An employer has every right or option to terminate the employment of a probationer without assigning any reason or may not confirm the probationer on the expiry of the period of probation. The employer is at liberty to dispense with service of a probationer during the period of probation, if it appears to the employer that his continuation would not be desirable. The right to dispense with the services of the petitioner cannot be curtailed unless some amount of arbitrariness or mala fide could be impugned against the employer. ( 13 ) NOW turning to the present case nobody disputes propositions of law laid down in the judgements cited in support of the respondent / writ petitioner. The right to dispense with the services of the petitioner cannot be curtailed unless some amount of arbitrariness or mala fide could be impugned against the employer. ( 13 ) NOW turning to the present case nobody disputes propositions of law laid down in the judgements cited in support of the respondent / writ petitioner. The Apex Court in Anoop Jaiswal (supra) held that recommendation of the director which is the basis or foundation of the order should be read along with the order for the purpose of determining its true character and if on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and but for that incident it would have not been passed then it is inevitable that the order of discharge should fall since the appellant was not afforded reasonable opportunity to defend himself. In Rajinder Kaur (supra) after taking note of the facts it was held that the order of discharge though couched in innocuous terms, was merely a camouflage for an order of dismissal from service on the ground of misconduct. Similarly, in Dipti Prakash Banerjee (supra) the Supreme Court held that the materials which amount to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or its annexures. The Supreme Court in Chandra Prakash sahi (supra) held where the services of the probationer are proposed to be terminated and a particular procedure has been prescribed for that purpose then the termination has to be brought about in that manner. In Jarnail Singh (supra) it was held that the mere form of the order is not sufficient to hold that the order of termination was innocuous. It is the substance of the order, the attending circumstances, as well as the basis of the order that have to be taken into consideration. In Jarnail Singh (supra) it was held that the mere form of the order is not sufficient to hold that the order of termination was innocuous. It is the substance of the order, the attending circumstances, as well as the basis of the order that have to be taken into consideration. In Nepal Singh (supra) it was held where allegations of misconduct are levelled against a Government servant and it is a case in which the provision of Article 311 (2) of the Constitution of India should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a nuisance and that, therefore, is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. ( 14 ) THUS the law is that, even if the order of termination is innocuous it is to be examined whether it is in the guise of an order of dismissal from service on the ground of misconduct. ( 15 ) IN the present case an affidavit was filed on behalf of the High Court. However, there is nothing to indicate as to whether the facts as stated in the affidavit had weighed with the Administrative Committee to take a decision in dispensing with the service of the probationer. In the absence of any material to show that these facts weighed with the authority and were the motives behind the action, we do not think that a rational man could arrive at such a conclusion on the rationale of the materials disclosed, since the allegations did not constitute misconduct. Until those were shown to have been placed before the Court, the court cannot presume that these materials had weighed with the Administrative committee. In case the Administrative Committee, thought it fit, not to go into all those questions and controversies, but had found that the continuance of the probationer in service would not be desirable or that he was unsuitable, then there was no bar in dispensing with service of the probationer despite the reports and the affidavit, which admittedly cannot improve the case beyond the record placed before the Court. Thus, it cannot be conclusively concluded that the cessation of probation was due to certain allegations constituting misconduct about which the principles of audi alteram partem was thrown overboard. Thus, it cannot be conclusively concluded that the cessation of probation was due to certain allegations constituting misconduct about which the principles of audi alteram partem was thrown overboard. The principles discussed in the judgement of the learned Single judge are settled propositions of law, but we do not think that these principles could be applied in the facts of the present case. The learned Single Judge had found the facts to be very aggravating. But the fact remains that the allegations would not have constituted misconduct, but was sufficient to discontinue him in service at the time of the probation. From the fact disclosed it appears to us that these exchange of letters would not amount to misconduct and hence there was no scope of holding any enquiry into the alleged exchange of letters. The facts are such that even if any enquiry was held simply on the basis of the exchange of letters, it was sufficient to hold that the continuance of the probationer would be wholly undesirable in service. It would simply be an empty formality since the materials were already on record to establish which no amount of enquiry would be needed and any opportunity given would have ended in futility since no amount of explanation could justify the exchange of the letters by the probationer. ( 16 ) AS already noted, the learned Advocates for the appellant also relied on several judgements in support of his contentions. We find the proposition of law as propounded by the Apex Court in Satya Narayan Athya (supra) and H. F. Sangati (supra) are relevant and applicable in the facts of the present case. ( 17 ) THE facts in Satya Narayan Athya (supra) were that the petitioner was appointed on probation as a Civil Judge. Though two year probationary period expired no order of confirmation was issued. He continued on probation. In view of the unsatisfactory nature of the service, the Full Court decided not to confirm him. Accordingly, orders were issued and the petitioner was discharged from the service. The petitioner, being aggrieved, filed a writ petition in the high Court. He succeeded before the learned Single Judge but in appeal the division Bench upheld the plea of the administration. In view of the unsatisfactory nature of the service, the Full Court decided not to confirm him. Accordingly, orders were issued and the petitioner was discharged from the service. The petitioner, being aggrieved, filed a writ petition in the high Court. He succeeded before the learned Single Judge but in appeal the division Bench upheld the plea of the administration. It was contended on behalf of the petitioner that since the record of the petitioner was found to be satisfactory as per the norms laid down by the High Court, the finding that his performance was not satisfactory was not correct and therefore, his discharge from service was clearly arbitrary. The Supreme Court while dismissing the slp held as under :"4. . . . . . . . THE Division Bench held that during the relevant period his performance was not satisfactory and that subsequent good or bad performance of the petitioner became meaningless. We find that the approach adopted by the High Court cannot be said to be unjustified. Even the strong reliance placed by the learned Counsel for the petitioner on the report of the learned District Judge indicates that he needed improvement in disposal of the cases which would show that the Full Court of the High Court considered his performance as not satisfactory. 5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service. " ( 18 ) THE Apex Court in H. F. Sangati (supra) applying the ratio in Satya narayan Athya (supra) and dismissing the appeal filed by two Munsifs whose services were terminated while on probation, held as under :"9. In the two cases at hand we find the Administrative Committee of the high Court having taken into consideration all relevant material and thereafter formed an opinion as to the unsuitability of the two appellants to hold the post of the Munsifs, which opinion was communicated to and upheld and accepted by the Full Court of the High Court. Pursuant thereto, the state Government issued the impugned order of discharge from service. Pursuant thereto, the state Government issued the impugned order of discharge from service. 10. In our opinion, the impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsifs. . . . " ( 19 ) THE Apex Court in H. F. Sangati (supra) took note of the ratio laid down in the decision in Samsher Singh (supra) dealing with the termination of subordinate judicial officers on probation and held that it is well-settled that services of an appointee to a permanent post on probation can be terminated or dispensed with during or at the end of the period of probation because the appointee does not acquire right to hold or continue to hold such a post during the perfod of probation. In the said judgement the Apex Court taking note of the proposition of law as laid down in Samsher Singh's case held that no punishment is involved in such a situation. ( 20 ) THEREFORE, in view of the facts and the settled principles of law, the view that was taken by the learned Single Judge was purely academic and was unrelated to the bare facts disclosed before the Court when no mala fide is alleged as against the Administrative Committee taking the decision and that the situation was such that no arbitrariness could be impugned and that no stigma was attached, the facts whereof were not in dispute. Inasmuch as the exchange of letters were not disputed. In his usual fairness Mr. Arunabha Ghosh conceded that the facts could not be disputed being matters on record. These facts do not seem to constitute any misconduct to attract the principle discussed above. Mr. Arunabha Ghosh was candid to point out a fact that the respondent/ writ petitioner had joined the profession and practised as an advocate in the court after his cessation of employment and continued to pursue such avocation till he breathed his last in 1999. Therefore, he would not be entitled to any arrear of pay for this period. We do not think that this would have any bearing in this case. Therefore, he would not be entitled to any arrear of pay for this period. We do not think that this would have any bearing in this case. ( 21 ) HAVING regard to the facts and circumstances of the case as discussed above, it appears that the present case is one of the exceptions to the rule on which the learned Single Judge had relied upon, though academically it was correct, but when applied to a particular fact and circumstance of the case, it seems to be correct to hold that the present case is one of the exceptions to the rule. ( 22 ) THE order of the learned Single Judge is hereby set aside. The appeal is, thus, allowed. ( 23 ) THERE will, however, be no order as to costs. ( 24 ) URGENT xerox certified copy of this judgement, if applied for, be given to the appearing parties on priority basis. Appeal allowed.