JUDGMENT B.K. Sharma, J. 1. Heard Mr. Z. Hussain, learned counsel for the petitioner as well as Mrs. R. Borah, learned counsel representing the respondents. The petitioner who was appointed as Office Superintendent in Sainik School at Goalpara on 12.01.2009 pursuant to a selection, is aggrieved by Annexure-G order dated 24.08.2009 by which his such service has been terminated in reference to the provision of rule 7.08 and 7.09 of the Sainik Schools Society Rules and Regulations, 1997. The letter was issued under the head "Termination of Service". According to the petitioner, on rejoining his duty on 12.08.2009 after availing two days leave he was served with a notice cancelling his leave by the Headmaster of the school alleging irresponsibility on his part in availing leave. Being aggrieved by the said cancellation order, the petitioner approached the Registrar, but the Registrar instead of listening him, asked him to go out of the room in a very rude manner. On the same date, the petitioner was informed that a court of enquiry has been constituted to investigate the case relating to indiscipline conduct of the petitioner with the Registrar. After the aforesaid developments, the petitioner was served with the impugned order dated 24.08.2009 terminating his service. For a ready reference, the relevant portion of the order is quoted below: 1. Reference is made to Para-4 of Sainik School Goalpara letter No. SG/ADM/210/PF/PC/07 dated 12 Jan. 2009. 2. Your performance during the probation period has been found to be far from satisfactory. At the same time your conduct and continuance as an office superintendent are considered to be seriously detrimental to the interests of the school. 3. Your services are hereby terminated with effect from afternoon of 24 August, 2009 under Rule Number 7.08 & Rule Number 7.09 of Sainik Schools Society Rules & Regulations 1997. 2. According to the petitioner, although he was on probation, his service could not have been terminated attributing misconduct. It is the further case of the petitioner that whole basis of the foundation towards termination of his service being the alleged misconduct on his part, the respondents without holding any enquiry as prescribed under Rules could not have terminated his service and that too, falling back on Rule 7.08 and 7.09 of the Aforesaid Rules and Regulations, 1997. 3. The respondents have filed their counter affidavit justifying their action in terminating the service of the petitioner. 3. The respondents have filed their counter affidavit justifying their action in terminating the service of the petitioner. It has been stated that the petitioner after his joining the post, frequently went on leave and on several occasions he was found violating the School's norms. Referring to the particular incident of 12.08.2009, it is the stand of the respondents that the petitioner misbehaved with the Registrar with threatening language. It has further been stated that a court of enquiry was ordered to investigate the matter and the said enquiry found the petitioner guilty of violation of school's order and discipline. Accordingly his service was terminated by the impugned order dated 24.08.2009. 4. The petitioner has filed an affidavit in reply to the said affidavit in opposition reiterating the stand in the writ petition. It has further been stated that the respondents having attributed the misconduct on the part of the petitioner towards dispensing his service, it cannot be said to be a case of termination simplicitor without requiring to provide the petitioner a reasonable opportunity of being heard. 5. Ms. Borah, learned counsel for the respondents placing reliance on the decisions reported in AIR 2005 SC 2960 (State of Punjab & Ors. Vs. Sukhwinder Singh) ; (2010) 12 SCC 783 (Rajesh Kohli vs. High Court Jammu and Kashmir & Anr.) and on an unreported judgment and order dated 24.11.2011 passed by the Madhya Pradesh High Court in W.P. (C) No. 14511/2011 (Nitesh Singh Pawar Vs. Sainik Schools Society & Anr.), submits that the petitioner having conducted in a manner unbecoming of an employee of Sainik School, there is nothing wrong in terminating his service taking recourse to the aforesaid Rules. On the other hand it is the stand of the learned counsel for the petitioner that the whole basis of termination of the service of the petitioner being the alleged misconduct, the impugned order is not sustainable in law and liable to set aside and quashed. 6. I have considered the submissions made by the learned counsel for the parties and have also gone through the entire material on record. 7. The petitioner was appointed by order dated 12.01.2009 pursuant to regular selection. In the order it was specifically stated that he would be on probation for period of one year extendable to two years as per the Rules and Regulations applicable to Sainik Schools Society. 7. The petitioner was appointed by order dated 12.01.2009 pursuant to regular selection. In the order it was specifically stated that he would be on probation for period of one year extendable to two years as per the Rules and Regulations applicable to Sainik Schools Society. It was further stipulated that his service would be liable to be terminated without notice. As stated in the writ petition, the petitioner had joined, the post and while was continuing as such, the particular incident took place on 12.08.2009 in the matter of leave taken by him. While it is the version of the petitioner that he was rudely behaved by the Registrar, it is the case of the respondents that it was the petitioner who had misbehaved with the Registrar. 8. After the aforesaid developments, the court of enquiry was ordered. Mrs. R. Borah, learned counsel for the respondents has produced the proceedings of the court of enquiry which reveals that the Principal of the School nominated the enquiry officer and two members to conduct the enquiry relating to the incident of 12.08.2009. The said court of enquiry conducted the enquiry examining four witnesses including the petitioner. No charge as such was framed. Admittedly the petitioner was not associated in examining the witnesses. The petitioner in his statement denied the allegation made against him in respect of the incident that has occurred on 12.08.2009. 9. On the basis of the statements of the aforesaid four witnesses, the court of enquiry formed an opinion that misconduct attributed to the petitioner stood established and that such misconduct was of grave nature and detrimental to the interest of the school. On the basis of the said opinion, the court of enquiry recommended that the petitioner be terminated from service under Rule 7.08 read with Rule 7.09 of the aforesaid Rules and Regulations, 1997. 10. It is on the above basis and the recommendation made by the court of enquiry, the service of the petitioner was terminated. On the basis of the said opinion, the court of enquiry recommended that the petitioner be terminated from service under Rule 7.08 read with Rule 7.09 of the aforesaid Rules and Regulations, 1997. 10. It is on the above basis and the recommendation made by the court of enquiry, the service of the petitioner was terminated. Rule 7.08 provides that during the period of probation, the Principal may terminate the services of any member of staff, appointed by him under his own powers, after giving him one month's notice in writing and without assigning any reason Rule 7.09 also empowers the Principal as the appointment authority to dismiss any member of the staff from service without notice or compensation on proven grounds of misconduct which is considered so grave as to render his continuance in service seriously detrimental to the interests of the school. 11. The impugned order of termination quoted above itself will go to show that the service of the petitioner was terminated in reference to the provisions of the aforesaid Rules recording the views that during the period of probation the performance of the petitioner was far from satisfactory and that his conduct and continuance as Office Superintendent were considered to be seriously detrimental to the interest of the school. The impugned order dated 24.8.2009 was passed on the basis of the recommendation made by the court of enquiry and its opinion rendered on the same date, i.e. 24.08.2009. 12. In Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors. reported in (1999) 3 SCC 60 , making a distinction between termination of service by way of punitive termination and termination simpliciter, the Apex Court also dealt with the distinction between the criterion of "foundation" and "motive". In that case, it was found that the allegations against the appellant were the foundation and not the motive for termination of service. It was noticed that a stigma was attached to the order of termination. It was found that the said stigma was also inferable from the references quoted in termination order though the order itself may not contain anything offensive. In the said case when it was found that termination of service was stigmatic and not termination simpliciter, the order was set aside and quashed. 13. In V.P. Ahuja Vs. State of Punjab & Ors. In the said case when it was found that termination of service was stigmatic and not termination simpliciter, the order was set aside and quashed. 13. In V.P. Ahuja Vs. State of Punjab & Ors. reported in (2000) 3 SCC 239 , the Apex Court dealing with termination of service of a probationer, held that a probationer like a temporary servant is also entitled to certain protection. His service cannot be dispensed with arbitrarily or punitively without complying with the principles of natural justice. As in the instant case, in the said case also the service of the appellant was terminated during probation period invoking the terms and conditions of this appointment which permitted termination without notice. In the order of termination, it was stated that appellant "failed in the performance of his duties administratively and technically". Besides, the affidavits filed in High Court and in the Supreme Court also indicated the background in which the appellant was terminated. In such a situation, it was held that the order of termination was stigmatic and punitive and not termination simpliciter. It was further held that in such a situation, it was obligatory on the part of the respondents to hold regular enquiry. 14. In the instant case, the court of enquiry was ordered in reference to the particular incident which took place on 12.08.2009. The said court of enquiry examined witnesses including the petitioner and on the basis of their statements, recommended termination of service of the petitioner in reference to the aforesaid provision of Rules. Admittedly the petitioner was not apprised of any definite and distinct article of charge. It was also not a regular enquiry. 15. Mrs. R. Borah, learned counsel for the respondents submits that the said enquiry was only in the form of fact finding enquiry which was the basis of termination of service of the petitioner. On the other hand, learned counsel for the petitioner submits that the whole basis of the termination of service of the petitioner being the attributed misconduct on the part of the petitioner, the authority ought to have held a regular enquiry instead of dispensing with the service of the petitioner on the ground being probationer at the time of attributing the misconduct on his part. 16. 16. While it is true that as per provision of Rule 7.08, the appointing authority is empowered to dispense with the service of any staff appointed by him after giving one month's notice in writing, but the said power is not unfettered so as to empower him to terminate the service of the probationer on the ground of misconduct. It is in this context, the Apex Court has made the distinction between termination simpliciter and punitive termination applying the test of motive and foundation. 17. Rule 7.09 empowers the Principal as appointing authority to dispense with any member of staff on proven grounds of misconduct. Applying the said provision, the said authority cannot dispense the permanent employee without holding the enquiry. If the authority had applied the provision of the said Rule 7.09 to dispense the service of the petitioner, it was incumbent on the part of the said authority to hold a regular enquiry providing all the reasonable opportunity of being heard to the petitioner. 18. In Sukhwinder Singh (supra), the Apex Court held that the police constable in question who was appointed on probation and was discharged from service on the ground of absence from duty, the order dispensing with his service was punitive in nature and accordingly should have been preceded by a regular departmental enquiry. 19. In Rajesh Kohli (supra), relates to a District Judge whose service was terminated during the period of probation. His service was dispensed with on the ground of unsatisfactory service. It was found that there was a criminal complaint against him and so also the complaint of misbehaviour coupled with the fact that he did not join his place of joining for certain period for which the explanation had been sought from him. It was in such a situation, the Apex Court held that it was not a case of punitive termination, but a case of termination simpliciter and that his service was not dispensed with showing any misconduct on his part. 20. The third case on which Ms. R. Borah, learned counsel for the respondents has placed reliance is Nitesh Singh Pawar (supra). The Madhya Pradesh High Court dismissing the writ petition held that it was not a case of punitive termination, but a case of termination simpliciter. It was found that the petitioner involved in the said case was deficient in performance. 21. R. Borah, learned counsel for the respondents has placed reliance is Nitesh Singh Pawar (supra). The Madhya Pradesh High Court dismissing the writ petition held that it was not a case of punitive termination, but a case of termination simpliciter. It was found that the petitioner involved in the said case was deficient in performance. 21. None of the aforesaid cases is applicable to the present case. It is not the case of the respondents that the performance of the petitioner was assessed and when it was found that his performance was unsatisfactory, his service was dispensed with. Per contra, the court of enquiry was ordered to enquire the incident of 12.08.2009. It is solely on the basis of the enquiry report alongwith the recommendation made by the court of enquiry, the authority in the Sainik School Society decided to terminate the service of the petitioner with the above quoted order. On the face of it, the order is stigmatic and not an order of termination simpliciter. 22. In the counter affidavit filed by the respondents, misconduct has been attributed to the petitioner. As has been held by the Apex Court in Dipti Prakash Banerjee (supra), the order of termination itself may not contain any stigmatic word, but if in the related documents including the affidavit filed in the proceedings reflect stigma and/or misconduct on the part of the petitioner towards termination of service, it will not be the case of termination simpliciter, but punitive termination attached with stigma. 23. The petitioner having been appointed by the Principal of the school, it was incumbent on his part to assess the performance of the petitioner and to act upon it instead of terminating his service on the basis of the enquiry conducted behind the back of the petitioner relating to the incident which occurred on 12.08.2009. Even in the said enquiry except taking the statement of the petitioner, he was not allowed to associate in respect of the statements obtained from other witnesses of the Society. 24. For all the aforesaid reasons, I am of the considered opinion that the impugned order dated 24.08.2009 (Annexure-4) is not sustainable in law and accordingly the said order stands set aside and quashed. The petitioner shall be reinstated in service, without, however, any back wages. 24. For all the aforesaid reasons, I am of the considered opinion that the impugned order dated 24.08.2009 (Annexure-4) is not sustainable in law and accordingly the said order stands set aside and quashed. The petitioner shall be reinstated in service, without, however, any back wages. It will be open for the respondents to hold regular enquiry in respect of the allegations made against the petitioner. Writ petition is allowed to the extent indicated above. There shall be no order as to costs. Petition allowed