Judgment B.S. Patil, J., In this writ petition the correctness of the order passed by the Karnataka Administrative Tribunal (for short ‘the KAT), dismissing the application filed by the petitioner challenging the order discharging him from service is challenged. 2. The applicant petitioner herein was appointed to the post of Enumerator in the Department of Economics and Statistics in the year 1988. He is discharged from service by the order impugned before the Tribunal dated 28.12.2002. He challenged the said order contending inter alia that the discharge order is in effect an order of punishment inflicted on him without holding any enquiry and without following the procedure prescribed. The Tribunal having referred to the relevant rules viz. The Karnataka Civil Services (Probation) Rules, 1977, particularly rule 5 (1) (b) and rule 6 (1) of the rules and after examining the respective contention of the parties, in the light of the language used and the background in which the discharge order has been passed has rejected the contention urged by the applicant and has consequently dismissed the application. Aggrieved by the same this writ petition is filed. 3. We have heard the learned counsel for the petitioner and the learned AGA. 4. The order of discharge which was challenged before the Tribunal is produced at Annexure A-3. In the preamble to the order, the service rendered by the applicant in various places has been referred. Reference is also made to the fact that the applicant was transferred from Bangalore to Kolar taking note of the unsatisfactory service rendered by him. The fact that the applicant remained unauthorisedly absent on several occasions spreading over a period of 799 days is also referred to. Reference is also made to the sympathetic and humanitarian considerations due to which the applicant was allowed to continue in service. However, as can be seen from the order of discharge the sole consideration that is laid as a foundation for coming to the conclusion that the applicant deserves to be discharged from services is that the services of the applicant were not satisfactory and he was found not suitable to discharge the duties entrusted to him. In fact, it is specifically observed in the order of discharge that the applicant was not even able to discharge the bare minimum functions attached to the post of which he was in charge. In fact, it is specifically observed in the order of discharge that the applicant was not even able to discharge the bare minimum functions attached to the post of which he was in charge. It is in this background, the competent authority has come to the conclusion that the applicant was unsuitable to continue in the post. 5. The Tribunal having referred to the reasons assigned by the competent authority in discharging the service of the applicant has held that there was nothing to observe that the order of discharge was in fact in the nature of penalty and was therefore, vitiated. 6. Learned counsel appearing for the applicant Sri. M.S. Bhagwat has strongly contended placing reliance on several Judgments of the Apex Court including Judgments rendered in the case of Jaswantsingh Pratapsingh Jadeja Versus Rajkot Municipal Corporation and Another (2007) 10 SCC 71 & Nehru Yuva Kendra Sangathan -Vs- Mehbus Alam Laskar 2008 (2) SCC 479 that the Tribunal erred in not appreciating the fact that the discharge order was not a discharge simpliciter but is in fact an order of termination for the misconduct of the applicant in remaining unauthorisedly absent. He has drawn the attention of the Court to paragraphs 9 & 10 of the Judgment of the Apex Court IN 2007 10 SCC 71 and also to paragraph 16 of the Judgment in (2008) 2 SCC 479 . 7. The learned Addl. Govt. Advocate Sri. B. Veerappa has strongly supported the order of discharge and the order passed by the KAT confirming the same. He has placed reliance on the Judgment reported in (2005) 10 SCC 244 in the case of R.P. Bhardwaj Versus Union of India and Others. Our attention is also drawn to the Judgment in the case of Dipthi Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences reported in 1999 (3) SCC 60 particularly paragraphs 35 & 36. 8. Having heard the learned counsel for the parties and on careful perusal of the entire materials on record the question that presents for consideration in this case is; Whether the order passed by the Tribunal holding that the order of discharge is not in effect an order of penalty is vitiated? 9. 8. Having heard the learned counsel for the parties and on careful perusal of the entire materials on record the question that presents for consideration in this case is; Whether the order passed by the Tribunal holding that the order of discharge is not in effect an order of penalty is vitiated? 9. Though the order of discharge makes an extensive reference to the services rendered by the applicant at various places and his consistent unauthorized absence on different occasions, the foundation for the order of discharge can be clearly traced to the assessment made by the appointing authority regarding the suitability of the candidate for the post in question. 10. It is not in dispute that the petitioner’s probationary period was extended. The petitioner did not even pass the departmental examination during the period of 2 years of probation. It is also not in dispute that despite the fact that the petitioner was unauthorisedly absent from his duties on several occasions, on humanitarian considerations he was continued in service. However, when the authorities undertook the task of examining the service records of the applicant for the purpose of finding his suitability, they have come to the conclusion that the applicant was not even capable of discharging minimum responsibility attached to the post of Enumerator and was therefore not entitled to continue. 11. Merely because there is a reference in the order of discharge to the unauthorized absence of the applicant, it cannot be said that the conduct of unauthorized absence is the foundation for the authority to pass the discharge order. There is no such intention discernible from the order, let alone from the language used in the discharge order. The Judgment relied upon by the learned counsel for the petitioner in the case of Jaswantsingh Pratapsingh Jadeja -Vs- Rajkot Municipal corporation and Another reported 2007 (10) SCC 71 arose in a different background. In the said case, the Apex Court found that the language used in the impugned order was ex-facie stigmatic. The appellant therein was said to have absented himself from duties apart from the fact that he had been found guilty of several allegations of misconduct earlier. He had been found guilty of negligence, carelessness and showing absolute disregard towards his duties. Disciplinary proceedings were initiated. His explanation to the show cause notice was rejected. He was thereafter, found guilty of the charges leveled against him. He had been found guilty of negligence, carelessness and showing absolute disregard towards his duties. Disciplinary proceedings were initiated. His explanation to the show cause notice was rejected. He was thereafter, found guilty of the charges leveled against him. It was only thereafter, he was discharged from service by reason of the order passed on 29.4.2003 camouflaging it as a discharge order. In such circumstances, the Apex Court found that the order of discharge was unsustainable. 12. In the other case of Nehru Yuva Kendra Sangathan Versus Mehbub Alam Laskar (2008) 2 SCC 479 , the Apex Court, by referring to the well established principle of examining the correctness of the discharge order has held that it was well known that when the foundation of such an order of discharge is not satisfactory performance on the part of the employee but overt acts amounting to misconduct, an opportunity of hearing of the employee concerned is imperative. The Apex Court further held that if the employee is found to have committed a misconduct, although an order of termination would appear to be proper, the same would be vitiated if in effect and substance it is found to be stigmatic in nature. 13. In this case, the Apex Court referring to several earlier judgments has emphasized the fact that whether an order of termination is simplicitor or punitive has to be ultimately decided having due regard to the facts and circumstances of each case. The Court has also taken note of the observations made by the Apex Court in the case of Jai Singh Vs Union of India – (2006) 9 SCC 717 at paragraph 10, 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. Referring to para 21 of the judgment in the case of Dipti Prakash Banerjee vs Satyendra Nath Bose National Centre for Basic Sciences – (1999) 3 SCC 60 , the Apex Court has further found that where the findings were arrived at in an 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, they 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. The position would not be different if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or because there was doubt about securing adequate evidence. In such circumstances, if a simple order of termination is issued without attaching any stigma to the employee though the allegations could be regarded as motive for issuing the order of termination simplicitor, they cannot be termed as forming foundation for the order of discharge. It is true, many a times the task of distinguishing as to whether the complaints made against the employee were in fact the foundation for the order of discharge or they only constitute motive for passing the said order of termination is difficult, as the line of distinction between the two is thin and may overlap in some cases. .14. As already referred to hereinabove by us, the reason for passing the order of discharge in the present case is not founded on any mis-conduct alleged against the petitioner. On the other hand, it is the result of the assessment of the quality and nature of the work discharged by the applicant throughout the period of probation. By the mere reference to the unauthorized absence of the applicant in the order of discharge it cannot be said that the foundation for the order of discharge was the misconduct of remaining unauthorisedly absent. The two cases on which reliance is placed have no connection to the facts of the case. On the other hand, the legal position that emerges from the examination of the facts of the said cases and the enunciation of law made therein goes against the contentions of the petitioner. 15. On the other hand, the Judgment rendered by the Apex Court in the case of Dipti Prakash Banerjee Vs. On the other hand, the legal position that emerges from the examination of the facts of the said cases and the enunciation of law made therein goes against the contentions of the petitioner. 15. On the other hand, the Judgment rendered by the Apex Court in the case of Dipti Prakash Banerjee Vs. Satyendranath Bose National Centre for Basic Science reported in 1999 (3) SCC 60 makes it clear in paragraphs 35 & 36 that the essential test is to find out as to whether there were any allegations against the probationer regarding the misconduct and whether the order of discharge is founded on such allegations. In paragraph 36 of the order the Apex Court has referred to the fact that when the employee had been given suitable warning or where he was given a long rope by way of extension of probation, the Apex Court has said that the subsequent termination order could not be held to be punitive. Reference is made to number of decisions rendered earlier. 16. In the instant case, the applicant has been given a long rope though he remained unauthorisedly absent. Humanitarian considerations have weighed in the mind of the authorities in extending the period of probation and thereafter, the authorities have examined the suitability of the applicant and have come to a conclusion that the applicant was unsuitable to continue in the post. Hence it cannot be said that the discharge order is founded on the allegations of unauthorized absence of the petitioner. 17. Though an argument is advanced based on rule 6 of the rules, stating that the order of discharge is not confirmed by the State government, we do not find any foundation for this argument before the Tribunal. If only the said contention had been urged, the State Government would have had an opportunity to meet it. At this stage, we are not inclined to permit the petitioner to take up such a contention. In view of the above, we are not inclined to entertain this writ petition. Hence the writ petition is dismissed.