JUDGMENT :- The respondent No. 1 was appointed as Executive Engineer by the petitioners-Committee by Order dated 16th June, 2003, on probation for six months on terms and conditions stated therein. Services of respondent No. 1 were continued by orders dated 26th December, 2003, 11th February, 2004 and 2nd June, 2004. It has been mentioned in all three orders of continuation that the respondent No.1's services will be governed by other terms and conditions mentioned in the appointment order dated 16th June, 2003. According to petitioner, the respondent No. 1 was issued certain communications relating to deficiencies and improper working, and he was called to explain the same. Ultimately, by Resolution No.4, the Committee reviewed the performance of the respondent No.1 and recorded that the services of the respondent No.1 were not rendered satisfactorily and that it was, therefore, resolved in the meeting of Committee held on 26th July, 2004 not to extend the period of probation, and to terminate his services as probationer. This resolution was confirmed in the meeting dated 23th September, 2004. Based on this resolution, respondent No. 1's services were terminated by giving him one month's pay by letter/order dated 23rd September, 2004 served on 24th September, 2004. According to the Committee, Rule 9 of the Services Rules vests the power in the Committee t6 dispense with the services of a probationer, if the work and conduct of the employee during the period of probation is not satisfactory. 2. Initially, soon after Resolution dated 26th July, 2004 was passed, the respondent No. 1 herein had preferred an appeal which was registered as Miscellaneous Appeal No.9 of 2004, which was objected on the ground of maintainability, and was rejected as premature, since any order based thereon was not passed till the appeal was filed. After the Minutes of the meeting dated 26th July, 2004 were confirmed in the meeting dated 23rd September, 2004. Thus, the order terminating the services of respondent No. 1 was issued, and it was handed over to the respondent No. 1 on 24th September, 2004, he then preferred another appeal challenging termination order dated 23rd September, 2004 which was registered as Misc. Appeal No. 11 of 2004. Thus, the order terminating the services of respondent No. 1 was issued, and it was handed over to the respondent No. 1 on 24th September, 2004, he then preferred another appeal challenging termination order dated 23rd September, 2004 which was registered as Misc. Appeal No. 11 of 2004. In the appeal preferred before respondent No.2, respondent No. 1 (the appellant herein) had arrayed present respondent No.3 in his individual capacity who is also the Director of the Committee, alleging that entire action, which was culminated into termination of services, was taken at the behest of the respondent No.3, as entire administration is actually run and controlled by respondent No.3 only. 3. The substance of appeal preferred by the respondent No. 2 can be summarized as follows :- (a) Rule 9 of Service Rules provides for probation of six months only; (b) From plain reading of Rule 9, it reveals that Committee is not empowered to extend the total period of probation of an employee beyond one year; (c) In view of absence of power to extend the probation, and in the background that there are no adverse remarks made in the service book of the appellant, he was not liable to be dealt with as a person continued on probation; (d) As the appellant was no more a probationer, Rule 9 had no application to his case, and if his services were to be terminated for unsatisfactory work, it ought to have been done only after holding a disciplinary enquiry against him; (e) He was being harassed by respondent No.3 who was in the habit of imposing fine which he did on various occasions (f) The imputation contained in termination order that appellant's work being unsatisfactory results in attaching a stigma which was so done without observing the principles of natural justice, and non-observance of Rule 103. He, therefore, prayed for setting aside order of termination. 4. In the midst of hearing of appeal before the respondent No.2, the appellant, the respondent No.1 herein, brought on record copy of a photo copy of Certificate dated 5th June, 2004, purportedly issued by Secretary of Agricultural Produce Market Committee, Nagpur, wherein he had expressed appreciation and acclaim about the services of the appellant, respondent No. 1 herein. 5. 4. In the midst of hearing of appeal before the respondent No.2, the appellant, the respondent No.1 herein, brought on record copy of a photo copy of Certificate dated 5th June, 2004, purportedly issued by Secretary of Agricultural Produce Market Committee, Nagpur, wherein he had expressed appreciation and acclaim about the services of the appellant, respondent No. 1 herein. 5. The Divisional Joint Registrar (respondent No.2 herein) heard and decided the appeal of the respondent No.1 herein by his Order dated 19th April, 2005, allowed the appeal and set aside the order of termination, directing reinstatement along with all consequential benefits. 6. This order dated 19th April, 2005 is under challenge in present writ petition under Articles 226 and 227 of the Constitution of India. 7. The petition has been opposed by filing Affidavit-in-Reply by the respondent No. 1. Respondent No.2, who is the Appellate Authority, has also filed Affidavit-in-Reply. Respondent No.3 has filed an affidavit explaining his role, and denying allegations which were made by the respondent No.1 herein against him. 8. Heard learned Advocate Mr. Uday Dastane for the petitioners, learned Advocates Mr. P. C. Madkholkar with Mr. K. V. Deshmukh for the respondent No.1, and Mr. U. S. Khubalkar, learned Asstt. Govt. Pleader for the respondent No.2. Both the learned Advocates Mr. Dastane and Mr. Madkholkar, after their oral submissions were over, submitted Written Notes of their submissions . 9. The foundation of the writ petition, as can be gathered from the oral submissions as well as Written Notes submitted by Mr. Uday Dastane, can be summarized as follows :- (a) Rule 9 provides for probation of six months, which can be continued for a maximum period of twelve months, however, this limit of maximum of twelve months' period is directory, and not mandatory as is laid down in the report Judgment of the Hon'ble Supreme Court in (i) Samsher Singh vs. State of Punjab, (1974) 2SCC 831 (ii) High Court of M. P. vs. Satya Narayan Jhavar, (2001)7 SCC 101, (iii) Commissioner of Police, Hubli and another vs. R. S. More, (2003)2 SCC 408 and (iv) Mathew P. Thomas. vs. Kerala State Civil Supply Corporation Ltd. and others, (2003)3 SCC 263 ; (b) The ratio laid down in Dharamsingh's case AIR 1968 SC 1210 does not apply to the present case, as service rules do not provide for rule such as "deemed confirmation", nor on facts the respondent No. 1 was continued after outer limit of probation without any order; (c) Rule 9 requires employer to record satisfaction of services during probation. No satisfaction of services of respondent No. 1 was recorded at any time. On the other hand, all the three continuation orders incorporate a stipulation that all other conditions mentioned in the appointment order dated 16th June, 2003 shall remain the same during the period of continuation. In the result, the period of probation stands extended which is permissible, and that as no satisfaction was recorded, the services of respondent No. 1 were continued on probation than continued as confirmed employee; (d) Reference to Rule 12 and giving one month's pay does not, in any manner, permit an inference that the probation of the respondent No. 1 was over. (e) The order impugned is not punitive, since it only records unsuitability of the services of respondent No.1 for continuation, as his services were not found satisfactory. Recording of lack of satisfaction of a probationer at the time of termination of service is not stigmatic. (f) The language used in the termination order does not result in causing any aspersions on character or integrity of the respondent No.1, nor does the said language visit the employee with any evil consequences. Therefore, the order is not punitive. The correspondence or enquiry, which is foundation of recording that work is not satisfactory, is not an enquiry or a search made by the employer to find out whether the employee is guilty of a misconduct, and needs to be dealt with therefor, but was an exercise to find out and ascertain the suitability of such employee for continuation in the services. The enquiry to investigate the suitability or discussion and recording of want of satisfaction in the resolution does not, in any manner, amount to attaching a stigma. As in case of Mathew Thomas, (2003) 3 SCC 263 , even if an enquiry had preceded and in the conclusion Charge Nos. 4 and 5, which pertained to misconduct, were dropped and other imputations pertained to performance. As in case of Mathew Thomas, (2003) 3 SCC 263 , even if an enquiry had preceded and in the conclusion Charge Nos. 4 and 5, which pertained to misconduct, were dropped and other imputations pertained to performance. Their Lordships of Supreme Court had found that it was a case of unsatisfactory performance and an enquiry was not necessary. Same view has been reiterated in Municipal Committee Sirsa vs. Munshi Ram, (2005)2 SCC 382 ; (g) The case falls in third category as carved out by Their Lordships of Supreme Court in High Court of Madhya Pradesh vs. Satya Narayan Jhavar, (2001)7 SCC 161 ; (h) The allegations of mala fides against respondent No. 3 were of general nature. Resolution dated 16th July, 2004 was confirmed in the meeting dated 23rd September, 2004 and, therefore, the allegations of mala fides were of no significance and it was a simple case of termination of services of probationer, where rules provided probation period extendable to 12 months which rule being directory, the probation was continued until the employee was confirmed by recording satisfaction, and recording of want of satisfaction does not result in stigma; (i) The Certificate relied upon by the respondent No. 1 was dubious, unbelievable and had come on record only after the hearing of appeal had proceeded and it carried no value. Moreover, the Officer signing it was transferred and the original or its office copy was not found in the records of the Committee, and it could be of no value for recording satisfaction. Further, on the face of the resolution of the Committee dated 26th July, 2004, the Certificate dated 5th June, 2004, which had not seen the light of day till its copy was filed on record, has no value. (j) The Divisional Joint Registrar was, therefore, in serious error in construing Rule 9 of the Service Rules and appreciating the facts of the case. 10. Learned Advocate Mr. (j) The Divisional Joint Registrar was, therefore, in serious error in construing Rule 9 of the Service Rules and appreciating the facts of the case. 10. Learned Advocate Mr. Dastane placed reliance on following judgments:- (1) S. Sukhbans Singh vs. State of Punjab, (1963) 1 SCR 416 (2) G. S. Ramaswamy vs. The Inspector General of Police, Mysore State, Bangalore, AIR 1966 SC 175 (3) The State of Punjab vs. Dharam Singh, AIR 1968 SC 1210 (4) Samsher Singh vs. State of Punjab and another and Ishwar Chand Agarwal vs. State of Punjab, (1974) 2 SCC 831 , (5) Governing Council of Kidwai Memorial Institute of Oncology, Bangalore vs. Dr. Pandurang Godwalkar and another, (1992)4 SCC 719 (6) Jai Kishan vs. Commissioner of Police and another, 1995 Supp (3) SCC 364, (7) State of Punjab vs. Baldev Singh Khosla, (1996)9 SCC 190 (8) Director, Ministry of Coal and others vs. Bimlendu Kumar, (1997)2 SCC 217 (9) State of U. P. and others vs. Rajendra Kumar Singh and another, (1997)10 SCC 682 (10) Radhey Shyam Gupta vs. U. P. State Agro Industries Corporation Ltd. and another, (1999)2 SCC 21 (11) Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, (1999)3 SCC 60 (12) Chandra Prakash Shahi vs. State of U. P. and others, (2000)5 SCC 152 (13) High Court of M. P. through Registrar and others vs. Satya Narayan Jhavar, (2001)7 SCC 161 (14) Commissioner of Police, Hubli and another vs. R. S. More, (2003)2 SCC 408 (15) Mathew P. Thomas vs. Kerala State Civil Supply Corporation Ltd. and others, (2003)3 SCC 263 (16) Municipal Committee, Sirsa vs. Munshi Ram, (2005)2 SCC 382 (17) Rajinder Singh Chauhan and others vs. State of Haryana and others, (2005)13 SCC 179 (18) Abhijit Gupta vs. S. N. B. National Cen,tre, Basic Sciences and others, (2006)4 SCC 469 (19) Life Insurance Corporation of India vs. Asha Ramchandra Ambekar (Mrs.) and another, (/994)2 SCC 718 (20) U. P. Public Service Commission, U. P., Allahabad and another vs. Alpana, (/994)2 SCC 723. (21) Allahabad Jal Sans than vs. Daya Shankar Rai and another, (2005)5 SCC 124 . 11. According to learned Advocate Mr. (21) Allahabad Jal Sans than vs. Daya Shankar Rai and another, (2005)5 SCC 124 . 11. According to learned Advocate Mr. Dastane : (a) Samsher Singh's case, which is the Judgment of seven judges, holds the field that interpretation of Rule 9 is directory; (b) it is a case falling in third line in view of Satya Narayan Jhavar's case (supra), and on facts as to stigma etc., the matter is governed by case of Mathew P. Thomas. 12. Learned Advocate Mr. Dastane, therefore, prayed for allowing the writ petition, setting aside the Judgment and Order passed by the respondent No.2, whereby the appeal was allowed, i.e., order dated 19th April, 2005, and upholding the removal of respondent No. 1 from service. 13. The points, which emerged from oral submissions and Written Notes submitted by learned advocate Mr. Madkholkar, are as follows :- (a) That, a case is squarely covered by ratio laid down in Dharam Singh's case in view of the outer limit of 12 months prescribed in the Service Rules, and continuation of the respondent No.1 beyond said period; (b) Every continuation order presupposes satisfaction; least the respondent No. 1's services could not have been continued, as the Committee has no authority to continue the services of a person whose services are not satisfactory. (c) The history of cancelling the contract given by the respondent No. 1 to M/s B. Raimallu and giving it to M/s Rahi Nirman and all other correspondence, actions of respondent No.3 of imposing fine etc., reveal that the object of correspondence is not to find out the suitability of the respondent No. 1 for continuation, but, to enquire into the acts of misconduct. The language is about "indiscipline" as well as "lack of control on the administration etc." which are acts of omission or commission amounting to misconduct. (d) In view that the respondent No. 1 had gained the status of a permanent employee, as he could not have been continued on probation, there is no question of an effort or exercise by the employer to crave to ascertain "suitability of a probationer" on the eve of end of probation period. (d) In view that the respondent No. 1 had gained the status of a permanent employee, as he could not have been continued on probation, there is no question of an effort or exercise by the employer to crave to ascertain "suitability of a probationer" on the eve of end of probation period. Therefore, it was a case of need of an enquiry into the misconduct for which conclusions were reached without observing the principles of natural justice, and Rule 103 of Service Rules and hence those observations constitute stigmatizing the personality and character of the respondent No. 1. (e) Though copy of resolution dated 26th July, 2004 which is the foundation of order of termination was not made available to the petitioner, it has been referred to in the termination order which can be looked into by lifting the veil and the termination of services of the respondent No. 1 was, therefore, liable to be construed as dismissal without observing principles of natural justice and hence it called for interference which was done by the Divisional Joint Registrar, the respondent No.2. (f) Bye-laws Nos. 24 and 25 provided that disciplinary action shall be taken against the employee who acts contrary to the rule and due to whose negligence if the losses are suffered by the Market Committee, and in such eventuality, Rule 103 comes into picture. (g) As has been held by the Supreme Court in the case of Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, AIR 1999 SCC 983, that if the order of termination is not stigmatic, however, if the documents which are referred to in the order of termination are stigmatic, then the order of termination shall be treated as stigmatic as the future employer of the respondent No. 1 may call upon him to produce those documents. (h) The case of respondent No.1 in hand would fall under second line of cases, i.e., in the second category as carved out in High Court of Madhya Pradesh through Registrar vs. Satya Narayan Jhavar, and not in any other category. (h) The case of respondent No.1 in hand would fall under second line of cases, i.e., in the second category as carved out in High Court of Madhya Pradesh through Registrar vs. Satya Narayan Jhavar, and not in any other category. (i) There is an implied admission on the part of petitioners that the services of respondent No. 1 were terminated under Rule 101 of the APMC Rules and under Bye-law No. 12 framed by the Nagpur Market Committee, which is applicable to the confirmed employee and not to the probationer. (j) Regulation No. 10(2) (a) of the Gurgaon Gramin Bank (Staff) Services Regulations, 1980 is pari materia with Bye-law No. 12 of the Market Committee, while the said regulation has been held to be unconstitutional by the Supreme Court as held in AIR 1988 SC 286 and that the impugned Regulation No. 1O(2)(a) is unconstitutional and conferred arbitrary and unguided power upon the Bank. (k) The resolution passed by the Market Committee dated 26th December, 2004 is stigmatic and the Market Committee has come with a plea that the order of termination is simipliciter termination and is not stigmatic. Under Rule 106 of the APMC Rules, it is clear that the Secretary is empowered to carry into effect the resolution of the Market Committee. Therefore, no discretion has been conferred upon the Secretary while exercising powers under this provision. It speaks about ministerial duty. Therefore, it is a duty conferred upon the Secretary to carry out the resolution. Hence, what is required to be seen is the resolution and not just the order. (l) The subject about termination of services of the respondent No.1 was not on agenda of meeting held on 26th July, 2004 which was a very important subject. Such important matter could not have been taken without due notice and it violates all settled and judicially accepted cannons of laws of meetings. This resolution is, therefore, illegal and cannot be acted. 14. Learned Advocate Mr. P. C. Madkholkar placed reliance on following judgments :- (i) The State of Punjab vs. Dharam Singh, AIR 1968 SC 1210 . (ii) West Bengal State Electricity Board and others vs. Desh Bandhu Ghosh and others, (1985)3 SCC 116 . (iii) M. K. Agarwal vs. Gurgaon Gramin Bank and others, 1987 (Supp) SCC 643. (iv) Rajinder Singh Chauhan and others vs. State of Haryana and others, (2005)13 SCC 179 . (ii) West Bengal State Electricity Board and others vs. Desh Bandhu Ghosh and others, (1985)3 SCC 116 . (iii) M. K. Agarwal vs. Gurgaon Gramin Bank and others, 1987 (Supp) SCC 643. (iv) Rajinder Singh Chauhan and others vs. State of Haryana and others, (2005)13 SCC 179 . (v) Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, (1999)3 SCC 60 . (vi) The Law and Procedure of Meetings by Matthew Moore, Lecturer in Law at Exeter College Devon. (vii) Shackleton on the Law and Practice of Meetings (Sixth Edition) by A. Harding Boulton. (viii) The Law of Meetings in India by Mr. B. A. Masodkar. (ix) Principles of Statutory Interpretation by Guru Prasanna Singh. 15. It seems that though arguments were advanced at length, the questions, which arise for consideration of this Court, if formulated, would simplify the adjudication. This Court, therefore, formulates questions as follows :- (a) Whether outer limit of 12 months period of probation contained in Rule 9 is directory or mandatory? (b) What was the status of services of respondent No. 1 after his continuation beyond 12 months? (c) Was the correspondence, letters, Show-cause-Notices etc., issued by Committee relied upon by respondent No. 1 a step taken for resorting to punitive measure? (d) Does the language used in Resolution dated 26th July, 2004 result in stigmatizing, and if the answer is in affirmative, whether it is done without observing the principles of natural justice? (e) Does it reveal from material that has come on record that the review of respondent No.1' s services taken by the Committee while passing Resolution No.4 on 26th July, 2004 was in order to ascertain the suitability of continuation of probationer for confirming him in employment, or dispensing with his services? 16. This Court has perused the record and given keen consideration to the submissions advanced on behalf of both sides. 17. While large number of precedents have been relied upon, this Court finds that it would not be necessary to narrate detailed resume of all citations. 16. This Court has perused the record and given keen consideration to the submissions advanced on behalf of both sides. 17. While large number of precedents have been relied upon, this Court finds that it would not be necessary to narrate detailed resume of all citations. Full account of judgments governing the field in past has been taken by Hon'ble Supreme Court : (a) on the point as to manner in which the aspect of deemed confirmation should be dealt with if in different set of rules governing the service conditions, and (b) on the point of restrictions on scrutiny of motive behind termination order when the order is couched in innocuous language, or it contains some text or language which could be arguable to have effect of causing aspersions on working or capacity of the employee concerned. It shall suffice to deal with these latest judgments to be able to adjudicate the issue at hand. 18. The judgment on the first category, i.e., 'deemed confirmation', which may be discussed here, and relied upon by both the parties to the extent to which both sides find support, is case of High Court of M. P., through Registrar and others vs. Satya Narayan Jhavar, (2001)7 SCC 161 (cited supra). Ratio laid down in various precedents in the field has been summarized and classified in this Judgment in Paragraph 11. It shall be beneficial to quote by reproduction para 11 :- "11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. ONE LINE of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. In such cases there is no bar against termination at any point of time after expiry of the period of probation. THE OTHER LINE of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. THE LAST LINE of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired." (Sub-paragraphing and emphasis is supplied for convenience and emphasis). 19. According to respondent No. 1-employee, his case before the Appellate Authority and now before this Court as well is that his case falls in Second Line referred to in quotation in foregoing para. According to petitioners, the case, however, falls in Third Line. 20. According to learned Advocate Mr. Madkholkar, the Committee had taken a plea before the Appellate Authority that the case falls in Second Line. According to petitioners, the case, however, falls in Third Line. 20. According to learned Advocate Mr. Madkholkar, the Committee had taken a plea before the Appellate Authority that the case falls in Second Line. As is seen from the pleadings and argument advanced before this Court, which are coherent the defence raised before respondent No.2, it is clear that according to 'the petitioner: (a) the respondent No.1 was appointed on probation; (b) was continued in the employment by written orders which were issued on three occasions; (c) continuation orders contained a stipulation that the continuation was on the same terms and conditions as incorporated in the first order, meaning thereby that his continuation was as a probationer; (d) that since there was no recording of satisfaction, he was continued as probationer only; (e) during his continued probation period, which continuation, though restricted by Rule 9, cannot be held to be impermissible; (f) case on hand is that of termination of services of a probationer, where satisfaction of probationer's services was not recorded. (g) payment of salary of one month in lieu of notice did not, in any manner, adversely affect the petitioners' plea that respondent No. I was appointed and continued on probation till he was removed; (h) though the resolution to terminate the service was passed on 26th July, 2004, it was not acted upon till the Minutes of meeting were confirmed in a regular meeting held on 23rd September, 2004, on which date the question of confirmation of minutes of previous meeting was a subject on agenda. Therefore, it is a case of the petitioner that the Committee took a view of suitability of respondent No.1, the probationer, in employment as a confirmed employee, and hence it is a case which falls in Last or Third category carved in Satya Narayan Jhavar's case. Analysis of Petitioner's Submissions 21. This Court finds that analysis of Rule 9 reveals that it prescribes and provides for the following matters :- (a) As employee can be appointed on probation for six months which can be extended only after 12 months. (b) The rule does not contain a scheme or proposition that any continuation after the 12 months' period shall result in automatic confirmation. (c) Rule does not provide that beyond the outer limit of 12 months, the employee shall not be continued at all. (b) The rule does not contain a scheme or proposition that any continuation after the 12 months' period shall result in automatic confirmation. (c) Rule does not provide that beyond the outer limit of 12 months, the employee shall not be continued at all. (d) It requires the employer to record satisfaction of services during probation as a condition for confirmation. 22. Analysis of facts which are proved on record reveal that: (a) After completion of first spell of probation, it is nobody's case that the employee was continued in the employment without any written order. (b) After completion of first spell, the respondent No. 1 was given orders from time to time which are in all three in number, and every time, the continuation was for a fixed duration. (c) In every order of continuation, as is expressly provided that the respondent No.1 was continued on the same terms and conditions as incorporated in first appointment meaning thereby that the continuation/appointment was as a probationer only, and further continuation or confirmation depended upon recording satisfaction. 23. As is seen on facts, the case cannot be governed by the situation as existed and ruled by the Supreme Court in Dharam Singh's case, where admittedly the employees were continued in the employment not just during three years which is the maximum period provided by the Rules, but even two years thereafter, and in the said background, Their Lordships of Supreme Court held that it was a case where the employees were "deemed to be confirmed". On the other hand, in Satya Narayan Jhavar's case, Their Lordships of Supreme Court in specific terms recorded in paras 36, 37 and 38 as follows: "36. In the case of the Judicial Officers who are respondents before us, it is the positive case of the High Court that their case for confirmation was considered while they were continuing on probation but the Full Court did not consider them suitable for confirmation and they were given a further opportunity of improving themselves. Even notwithstanding such opportunity they having failed to improve themselves and the High Court having considered them unsuitable for confirmation the order of termination emanated. Even notwithstanding such opportunity they having failed to improve themselves and the High Court having considered them unsuitable for confirmation the order of termination emanated. It is difficult for us to comprehend that a probationer while continuing on probation, on being considered is found unsuitable for confirmation by the appointing authority and yet it can be held to be a deemed confirmation because of maximum period of probation indicated in the Rule, merely because instead of termination of the services he was allowed to continue and was given an opportunity for improving and even after the opportunity he failed to improve and finally the appropriate authority finding him unsuitable directs termination of his services. The very fact that sub-rule (1) of Rule 24 while prescribing a maximum period of probation therein entitles a probationer for being considered for confirmation and confers right on the appointing authority to confirm subject to the fitness of the probationer and subject to his passing the higher standard of all departmental examination must be held to be an inbuilt provision in sub-rule (1) which would negative the inference of a confirmation in the post by implication, as interpreted by this Court in the case of Dharam Singh while interpreting Rule 6 of the Punjab Educational Services (Provincialised Cadre) Class ill Rules, 1961." "37. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service conditions so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh. But it cannot be said that merely because a maximum period of probation has been provided in the Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to the seven-Judge Bench Judgment of this Court in the case of Samsher Singh and the Constitution Bench decisions in the case of Sukhbans Singh, G. S. Ramaswamy and Akbar Ali Khan. " "36. Apart from sub-rule (1) of Rule 24 of the Rules, the effect of sub-rule (3) may also be considered. " "36. Apart from sub-rule (1) of Rule 24 of the Rules, the effect of sub-rule (3) may also be considered. Under sub-rule (3), if a probationer has been found unsustainable for the service during the period of probation or he has failed to pass the prescribed departmental examination then the Governor at any time thereafter may dispense with his services. The power for dispensing with services has been conferred upon the Governor, to be exercised at any time after the period of probation if the probationer is found unsuitable or if he has failed to pass the prescribed departmental examination. If the interpretation given by this Court in the case of Dayaram Dayal to sub-rule (1) of Rule 24 is held to be correct then this power of the Governor under sub-rule (3) would become otiose inasmuch as a probationer would acquire a deemed confirmation on the expiry of the maximum period of probation provided in sub-rule (1). Sub-rule (3) of Rule 24, therefore, is another inbuilt provision in the Rules which can be held to be a special provision to negative the inference of deemed confirmation on the expiry of the maximum period of probation indicated in sub-rule (1), as has been observed by this Court in the case of Dayaram Dayal also and which is in conformity with the decisions of this Court in the cases of Samsher Singh, Sukhbans Singh, G. S. Ramaswamy and Akbar Ali Khan. Rule 24, on a plain grammatical meaning being given to the words used therein does not provide for a deemed confirmation on expiry of the maximum period of probation, and on the other hand it contemplates a positive order of confirmation to be passed by the appropriate authority, if the authority concerned is satisfied about the fitness of the probationer for confirmation, and if the probationer has passed the departmental examination, as prescribed. Mere continuance of the probationer after considering his case for confirmation during the period of probation and finding him unsuitable for confirmation by the decision of the Full Court, by no stretch of imagination can be construed to be a confirmation by implication, as was held by this Court in the case of Dharam Singh and that can never be the intention of the rule-making authority. If the Full Court would not have considered the sustainability of the probationer for confirmation while probation period was continuing, the matter might have stood on a different footing." (emphasis supplied) 24. This Court further finds that in latest Judgment, namely Commissioner of Police, Hubli and another vs. R. S. More, (2003)2 SCC 408 , Their Lordship of Supreme Court found that the respondent therein, who was continued in the employment after completion of two years' probation and six months had expired, however, any order extending the probation was not passed. High Court had found that his continuation cannot be said to be on probation, which view was disapproved by the Hon'ble Supreme Court, finding that the case fell in Third category as carved out in Satya Narayan Jhavar's case (supra) 25. On facts of the case, this Court, therefore, finds that it is a clear case where the employee was continued with orders which carried no ambiguity that the employee was continued on probation till he was terminated by the order in question. 26. Next question, that requires to be dealt with, is as to whether it was necessary to lift the veil, since the order was couched in innocent language, and to find out on the basis of material that had led to the decision to find out if the exercise done by the employer, which was in the nature of correspondence, and not an enquiry was aimed at finding him guilty and to punish him, than an effort or quest for deciding upon the question of suitability of employee to continue him in the employment by recording satisfaction about probationary service and to confirm him. 27. In order to deal with this question, it becomes necessary to once again, even at the cost of repetition, take the resume of the facts of the case and then what reveals is as follows :- 1. The language of the order depicts that it is a case of termination of probationer's services on his services not being found satisfactory and offering him one month's pay in lieu of notice. 2. Order contains two references, namely (1) the Resolution No.4 passed in the meeting of the Directors of the Committee held on 26th July, 2004, and (2) Resolution No.1 passed in the meeting of the Directors of the Committee held on 23rd September, 2004. 3. 2. Order contains two references, namely (1) the Resolution No.4 passed in the meeting of the Directors of the Committee held on 26th July, 2004, and (2) Resolution No.1 passed in the meeting of the Directors of the Committee held on 23rd September, 2004. 3. Admittedly, no enquiry was conducted by the employer, either preliminary or formal, preceding the removal. There is record to suggest that the respondent No. 1 was issued letters, memos etc., which he had replied, in which the words, such as indiscipline, lack of control, causing financial loss to the Committee and giving wrong or false information, are used. 4. Respondent No. 1 had made allegations that the real mastermind behind the action against respondent No.1 is of the respondent No. 3, who practically controls the Committee. 5. The question about the matter of continuation of services of the respondent No.1 or removal was not on agenda and was taken with the permission of Chair. This act of haste, according to respondent No.1, reflects on the propriety of the decision, its fairness, correctness etc., and, therefore, said decision is mala fide and illegal. 28. On above referred facts this Court has to decide as to whether the termination, in question, is stigmatic, and if this Court does not find the answer in affirmative, to further examine as to whether the real intention of the employer was to punish the employee for the misconduct, and it was not an exercise by the employer of deciding upon the suitability of the employee concerned for continuation after completion of his probation. This Court finds that on this point, it is guided by the observations of Lordships of Supreme Court in three recent judgments which are hereinafter discussed :- (a) In the case Mathew P. Thomas vs. Kerala State Civil Supply Corpn. Ltd. and others, (2003)3 SCC 263 (cited supra). The relevant paras read as follows :- "11. An order of termination simpliciter passed during the period of probation has been generating undying debate. Ltd. and others, (2003)3 SCC 263 (cited supra). The relevant paras read as follows :- "11. An order of termination simpliciter passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation. The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Dipti Prakash Banerjee after referring to various decisions indicated as to when a simple order of termination is to be treated as "founded" on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is explained, thus: (SCC pp. 71-72) "21. If findings were arrived at in any enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the enquiry 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 the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation of the simple order of termination would be valid." From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct." "12. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct." "12. In the present case, even on earlier occasions when the appellant failed to perform his duties properly during probation period he was warned to improve and continued in the service. If he was to be removed from service on the allegations of misconduct, at that time itself the respondents could have removed him from service. This is also a circumstance to indicate that his order of termination was simpliciter. Therefore, having regard to the particular facts and circumstances and in view of what is stated above, we have no good reason to disagree with the impugned order." (Emphasis supplied). (b) Lordships of Supreme Court then in the case of Municipal Committee, Sirsa vs. Munshi Ram, (2005)2 SCC 382 rendered their dictum, which reads as follows :- "15. This Court in the said case of Pavanendra Narayan Verma vs. San jay Gandhi PGI of Medical Sciences further held: (SCC p 533) "It cannot be held that the enquiry held prior to the order of termination turned the otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists in the present case. An affidavit cannot be relied on to improve or supplement an order. Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. " "16. None of the three factors catalogued above for holding that the termination was in substance punitive exists in the present case. An affidavit cannot be relied on to improve or supplement an order. Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. " "16. From the above, it is clear assuming that there was some sort of misconduct, as noticed in the evidence of the witnesses of the management in the cross-examination, the same could not be used as evidence by the Labour Court or by the Appellate Court for coming to the conclusion that an order of termination which is otherwise simpliciter in nature is motivated by any consideration other than the decision of the management as to the satisfactory nature of the workman concerned." "17. As noticed above in the instant case, the respondent having been appointed as a probationer and his working having been found not to the satisfaction of the employer, it was open to the management to terminate his services. Assuming that there was an incident of misconduct or incompetency prior to his discharge from service, the same cannot ipso facto be termed as misconduct requiring an inquiry. It may be a ground for the employer's assessment of the workman's efficiency and efficacy to retain him in service, unless, of course, the workman is able to satisfy that the management for reasons other than efficiency wanted to remove him from services by exercising its power of discharge." (c) Their Lordships of Supreme Court further clarified in the case of Abhijit Gupta vs. S. N. B. National Centre, Basic Sciences and others, (2006)4 SCC 469 that the detailed reference to all other correspondence in the termination order was not necessary, but it was not found to reflect any malice or bias, and that every order of termination of probationer's appointment does not ipso facto become stigmatic. It shall be proper to place reliance on exact dictum which can be drawn from contents of Paras 15 to 17, which are quoted below for ready reference :- "15. The learned counsel for the appellant, however, strongly contends that the "stigma" cast on the employee may not be confined to his personal character but may also affect his capacity to work. The learned counsel for the appellant, however, strongly contends that the "stigma" cast on the employee may not be confined to his personal character but may also affect his capacity to work. The test, learned counsel for the appellant submitted, is that, if what is stated in the order of termination is ready by a future employer, it prejudices the future employment of the employee. In the face of the law laid down in the judgment just referred, we are unable to accept this as the correct test. "16. In Ravindra Kumar Misra vs. U. P. State Handloom Corpn. Ltd. this Court pointed out that in a large corporation administration is bound to be impersonal and in regard to public officers assessment of service has got to be in writing for purposes of record, though it cannot be assumed that such an assessment recorded and the order of termination made with reference to that record would automatically take a punitive character." "17. The High Court has carefully considered all the circumstances placed before it and arrived at the conclusion that the respondent's work was under observation during the probationary period and that he was given repeated opportunities to improve his performance for which purpose his probation was extended from time to time. The fact that the authority did not find him fit for confirmation was also brought to his notice several times and yet he was given opportunities of improving by extending his probationary service. The High Court has correctly found that the letter dated 7-4-1998 was not punitive in nature and stated, albeit in prolix fashion, that the services of the appellant were unsatisfactory. The High Court points out, and we agree, that detailed reference to all other correspondence was not necessary, but it did not reflect any malice or bias. Finally, as this Court pointed out in P. N. Verma case, a termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, does not ipso facto become stigmatic. (SCC P. 529, para 29)" 29. This Court has now to consider law as relied upon by learned Advocate Mr. Madkholkar. Reliance of learned Advocate Mr. Madkholkar is mainly on Dharamsingh' s case and the point that the case fall in Second Category as carved out in Satya Narayan Jhavar's case. Reliance of learned Advocate Mr. (SCC P. 529, para 29)" 29. This Court has now to consider law as relied upon by learned Advocate Mr. Madkholkar. Reliance of learned Advocate Mr. Madkholkar is mainly on Dharamsingh' s case and the point that the case fall in Second Category as carved out in Satya Narayan Jhavar's case. Reliance of learned Advocate Mr. Madkholkar on the point that 'discharge simpliciter' of a permanent employee, is on as held in West Bengal Electricity Board vs. Desh Bandhu Das, and as followed in above referred N. K. Agarwal vs. Gurgaon Bank's case in which it is held that such discharge is abhorred by law. The relevance of this submission is contingent upon the Court's finding as to whether the employee concerned was probationer, or had gained the status of a confirmed employee. As this Court finds that the respondent No.1 had not gained the status of a confirmed employee, an action by way of termination of a permanent or temporary employee without assigning any reason is a question besides the issue, as it does not remain available for adjudication. 30. This Court has found that considering the set of rules involved and the nature of order that was passed and various orders granting continuation, the respondent No. l's case falls in Third Category, and not in Second Category. That being so, Dharam Singh's case and case of N. K. Agarwal vs. Gurgaon Gramin Bank and others, (1987) Supp. see 643, have no application to the present case. 31. In the result, this Court records a finding that with no ambiguity, the respondent No. 1 was continued in the employment till he was terminated with his status as a probationer. Conjoint reading of two stipulations contained in Rule 9, namely that the probation shall be maximum for a period of 12 months with the stipulation that recording of satisfaction is necessary for a confirmed employee, the inference that the employee gets automatically confirmed is unavailable while construing Rule 9 in question. On the facts that by written orders, the respondent No. 1 was continued on probation is not equal to continuation of an employee "without order". 32. In the result, recording in the termination order that the employer is not satisfied does not, in any manner, attach a stigma. On the facts that by written orders, the respondent No. 1 was continued on probation is not equal to continuation of an employee "without order". 32. In the result, recording in the termination order that the employer is not satisfied does not, in any manner, attach a stigma. It is the respondent No.1, who has, of his own choice, made the information part of correspondence between him and the Committee a matter of public knowledge. When the employer had right to assess the suitability any correspondence in past which did not have any semblance of initiation of a disciplinary proceeding, nor would said correspondence ipso facto amount to prejudice the employee or punishing him for a misconduct which was told to him to be so. Admittedly, the employer had not advanced steps forward to decide whether it was a case of misconduct. It is even not a case where initially employer took steps to initiate disciplinary action, but then finding another course to be convenient, suddenly switched over to his prerogative of dispensing with the services of a probationer. Exchange of certain correspondence by itself does not amount to advancing towards a positive decision of taking disciplinary action, more particularly when admittedly the orders of continuation on probation and for specific period were issued and based on such orders, the respondent No.1 was continued in employment. 33. Learned Advocate Mr. Madkholkar's submission that the order is propelled by malice since it is the respondent No. 3 at whose behest or instigation, the order in question has been passed, does not carry much weight. It is not a case that termination was ordered on the day when the resolution was adopted as a subject with the permission of Chair. While it is true that the question about services of respondent No. 1 was not on agenda, the decision was implemented by the Secretary only after the minutes of the meeting dated 26th July, 2004 was confirmed in the subsequent meeting of the Committee when the question about confirmation was on agenda. It is also an admitted fact that Misc. Appeal No.9 of 2004 was carried by respondent No.1 against the said resolution which was pending when the decision was confirmed in the meeting dated 23rd September, 2004. It is also an admitted fact that Misc. Appeal No.9 of 2004 was carried by respondent No.1 against the said resolution which was pending when the decision was confirmed in the meeting dated 23rd September, 2004. The respondent No.1 is, therefore, not able to show that the decision is either reached secretly, or that the Committee members had no occasion to deliberate thereon. They could have very well declined to approve the resolution dated 26th July, 2004 in meeting dated 23rd September, 2004 which discussing the subject of confirmation of minutes of previous meeting. Reliance of learned Advocate Mr. Madkholkar on various commentaries as to the Laws of Meetings, therefore, has its own limitations, since the concept of lack of propriety does stand on par with impermissibility or illegality. 34. In the background that this Court has found case of respondent No.1 to be of a person whose probation was continued and the employer, i.e., the Committee, was to assess his performance, the question as to whether the Certificate, xerox copy whereof was relied upon by the respondent No.1, should be looked into, is irrelevant. While it is true that the Secretary of the Committee is to be the Chief Executive, in isolation, he was not empowered to adjudge performance of the respondent No.1 in exclusion to the powers of the Committee who was the ultimate authority to record satisfaction or dissatisfaction about the services of the respondent No.1. 35. In the result, this Court finds it appropriate to allow the petition and make the Rule absolute by setting aside the Order of the respondent No.2 dated 19th April, 2005 in Misc. Appeal No. 11 of 2004, and dismiss said appeal, and uphold the order of termination of respondent No.1's service as probationer passed by petitioners on 23rd September, 2004. In the circumstances, parties shall bear respective costs. Petition allowed.