JUDGMENT Amitava Roy, J. 1. The writ jurisdiction of this Court has been sought to be invoked to set at naught the judgment and order dated 08.02.2010, rendered by the Central Administrative Tribunal, Gauhati Bench, Guwahati (for short hereafter referred to as the Tribunal), in Original Application No. 173/2008. Thereby, the learned Tribunal sustained the impugnment of the decision of the petitioners herein to terminate the service of the respondent/applicant as Post Graduate Teacher (History) in the Navodaya Vidyalaya (for short hereinafter referred to as the Vidyalaya/Institution). We have heard Mr. K.N. Choudhury, Senior Advocate for the petitioners and Mr. SP Roy, learned counsel for the respondent. 2. The respondent's/applicant's pleaded case before the learned Tribunal, in short, was that on being appointed as Post Graduate Teacher (History) (for short referred to as the PGT) in the Vidyalaya vide letter No. F.2-7/2001-NVS(SHR/Pers/2522, dated 21.8.06, he joined the service on 13.09.06. The appointment letter in clear terms disclosed that he would be initially on probation for a period of 2 years from the date of his joining, which was extendable further at the discretion of the competent authority. Clause 2 of the appointment letter recited as well that failure to complete the period of probation to the satisfaction of the competent authority would render him liable to be discharged from service. That during the period of probation his service could be dispensed with without assigning any reason was also underlined. 3. Though, according to the respondent/applicant, he was discharging his duties with utmost sincerity and honesty, he was, by the memorandum dated 02.08.2007, issued by the Commissioner, Navodaya Vidyalaya Samiti, (petitioner No. 1 herein and respondent No. 4 in the original application) asked to show cause as to why action would not be initiated against him for poor performance of the students in Social Studies and History in Class X and Class XII of the Institution during the year 2006-2007. The respondent, by his letter dated 02.08.2007 submitted his explanation, inter alia, pointing out that the result of the Institution in these subjects in the Board examination were, in fact, better than in the earlier occasions and that he on his part had taken extra classes for result oriented education and had endeavoured to improve the educational level of the students in History. He also catalogued the reasons for the results not to be at par with that at the national level, including his unfavourable health condition and poor academic level of the students. According to him, though, the winter vacation of the Vidyalaya started from 16.12.2007 up to 15.01.2008, as per the instruction of the Principal he took extra classes w.e.f. 22.12.2007, whereafter, he visited his native village in connection with his marriage to be solemnized on 18.01.2008. As the Institution was to re-open on 15.01.2008, he telephonically informed the Principal, seeking leave on and from 16.01.2008 to 25.01.2008. He claimed that a registered letter carrying the same request had also been addressed to the Principal of the Vidyalaya. He, thereafter joined the Institution on 28.01.2008 and, while he was rendering his services, was served with a memorandum No.NVW-363/PF/HEM/2007-08/1448, dated 06.02.2008, alleging that on the same date at about 1.10 p.m. the students of Class XI-Humanities were found outside the classroom and on being inquired, they disclosed that then was the History period and that the teacher had not attended the class. The memorandum imputed that when the applicant was confronted with this, he had casually replied that he had forgotten about the class while correcting the notebooks. It was, thereafter that the impugned order being No. F.2-66/07/NVS (SHR)/Pers/4689, dated 11.02.2008 was issued by the respondent No. 4 as above terminating his (respondent/applicant) services under Rule 5(1) of the Central Civil Services (Temporary-Service) Rules, 1965 (for short hereafter also referred to as the Rules). The applicant (respondent herein) after having unsuccessfully pleaded with the respondent authorities of the Vidyalaya, eventually, approached the learned Tribunal for redress. 4. In their written statement, the petitioners/respondents have, in substance, asseverated that the termination of the respondent/applicant's services was on the ground of his poor performance during the period of probation and that there was no punitive element therein. According to them, the applicant/respondent had been alerted time and again about the noticeable lapses on his part in discharging his duties, but he failed to improve. According to them, the applicant/respondent had been alerted time and again about the noticeable lapses on his part in discharging his duties, but he failed to improve. Referring to the memoranda mentioned by the applicant in his original application, the petitioners/respondents denied his (applicant's) claim that he had been discharging his duties sincerely to the fullest devotion and contended that as he failed to upgrade the quality of his services suited to the need of the Institution, there was no alternative, but to terminate his services under Rule 5(1) of the Rules. The learned Tribunal, on a consideration of the pleadings of the parties and the arguments advanced entered a finding that the impugned order of termination was devoid of reasons, thus rendering it void on that count alone. It also held the view that the impugned decision suffered from the vice of transgression of the principles of natural justice, as the applicant was neither afforded an opportunity of hearing nor furnished with materials on which the same was arrived at. 5. Whereas, the petitioners/respondents have reiterated their averments made in the proceeding before the learned Tribunal, in this writ petition, the applicant/respondent while doing so has additionally imputed racial discrimination to be the primary factor spurring his dismissal. 6. Mr. Choudhury, with reference to the stipulation of probation contained in the appointment letter and the memoranda/official communications addressed to the respondent/applicant drawing his attention to his unsatisfactory performance and the immediate need to improve the same, has persuasively argued that as the impugned decision to discontinue him from service was one of termination simpliciter, the Learned Tribunal had misdirected itself in interfering therewith on the ground of want of reasons and fairness in action. As the materials on record demonstratively testified that because of the poor performance of the respondent/applicant the students of his subjects were being prejudiced, the decision to terminate his services was taken in the overall interest of the Institution and, thus, no interference was called for in law, he urged. The learned Senior Counsel argued that the termination of the services of the respondent/applicant obviously was not informed with any punitive consideration and his failure to perform at the desired level was the motive therefore. The learned Senior Counsel argued that the termination of the services of the respondent/applicant obviously was not informed with any punitive consideration and his failure to perform at the desired level was the motive therefore. As this consideration was not the foundation of the decision impugned and no disciplinary measure had been comprehended against him, the perception of the learned Tribunal that it was sans the compliance of the principles of natural justice was apparently flawed, he maintained. Mr. Choudhury distinguished the authorities referred to in the impugned judgment and order to be inconsequential as those did not relate to any probationer like the respondent. In order to buttress his submissions, Mr. Choudhury has placed reliance on the decisions of the Apex Court in Ram Gopal Chaturvedi Vs. State of Madhya Pradesh, (1969) 2 SCC 240 , Kunwar Arun Kumar Vs. U.P. Hill Electronics Corporation Ltd. & Anr., (1997) 2 SCC 191 and Radhey Shyam Gupta Vs. U. P. State Agro Industries Corporation Ltd. & Anr., (1999) 2 SCC 21 . The learned Senior Counsel has also laid the original records pertaining to the respondent for the Court's perusal. 7. Mr. Roy, as against this, has argued that the respondent/applicant being a member of the Schedule Caste, he was from the very beginning looked down with contempt by the Principal of the Institution and, thus, racial prejudice played a major role in his ultimate ouster from service. Referring to the documents adverted to in the original application as aforementioned, the learned counsel maintained that as the respondent had joined the Institution only in the month of September, 2006, he could not have been held responsible for the poor results in Social Science and History, there being no teacher for those subjects for a long period prior to his recruitment. Referring to the advisory note dated 03.10.2007, in particular, Mr. Roy, has urged that as it would appear therefrom that the impugned decision is by way of a disciplinary measure and as, admittedly, no opportunity of hearing had been afforded to him to represent against the same, it is non est in law. Referring to the advisory note dated 03.10.2007, in particular, Mr. Roy, has urged that as it would appear therefrom that the impugned decision is by way of a disciplinary measure and as, admittedly, no opportunity of hearing had been afforded to him to represent against the same, it is non est in law. Drawing the attention of this Court profusely to the averments in the respondents/petitioners' affidavit in the writ proceeding, the learned counsel has argued that the proximity of the impugned order to the proceedings of the Departmental Promotion Committee recommending the termination of services of the respondent/applicant authenticates that his ouster is by way of a disciplinary action. Reiterating that the period of service of the respondent was too short to correctly and realistically evaluate his performance, Mr. Roy strongly hinted that the impugned decision was actuated by malice. Reliance has been placed in support of these pleas on the decisions of the Apex Court in A.P. State Federation of Coop. Spinning Mills Ltd. & Ann Vs. P.V. Swaminathan, (2001) 10 SCC 83 , VP Ahuja Vs. State of Punjab & Ors., AIR 2000 SC 1018, State of Maharashtra Vs. Veerappa R. Saboji & Anr., AIR 1980 SC 42 , D.K. Yadav Vs. J.M.A. Industries Ltd., (1993) 3 SCC 259 and Pavanendra Narayan Verma Vs. Sanjay Vs. Gandhi PGI of Medical Sciences & Anr., (2002) 1 SCC 520 . 8. Mr. Choudhury, in reply, has argued that the contention of racial discrimination had not been pleaded before the learned Tribunal and, therefore, the same ought not to be taken note of by this Court. He, however, reiterated the other pleas. 9. The rival pleadings and the arguments advanced have received our due consideration. That the respondent had been appointed as PGT (History) in Navodaya Vidyalaya on probation for a period of two years from the date of his joining is a matter of record. Clause 2 of the letter of appointment dated 21.08.2006 reads as hereunder : 2. You will be initially on probation for a period of two wears from the date of your joining which may further be extended at the discretion of the competent authority. Failure to complete the period of probation to the satisfaction of the competent authority will render you liable to discharge from service. You will be initially on probation for a period of two wears from the date of your joining which may further be extended at the discretion of the competent authority. Failure to complete the period of probation to the satisfaction of the competent authority will render you liable to discharge from service. Further during the period of probation your service can be dispensed with by the Samiti without assigning any reasons. While on probation, you will be required to give one month's notice of resignation in case you leave the Samiti. That his services were terminated on 11.02.2008 before the expiry of the probationary period is also apparent. Though, in terms of the appointment letter, the period of probation of two years was extendable at the discretion of the competent authority, failure to complete the same to its satisfaction entailed the possibility of his discharge from service. 10. The memoranda dated 02.08.2007 alluded hereinabove and the explanation submitted by the respondent have already been dealt with to project the competing stands. The Advisory note dated 03.10.2007 of the Principal of the Institution discloses that the Joint Commissioner, NVS, HQR, New Delhi had expressed his displeasure on the manner in which the subject, History, was taught thereat. In this connection, the said authority in the staff meeting had indicated at the respondent's poor communication skills. The Principal also mentioned about his observation that he (respondent) had been found dictating notes in the instructional period instead of teaching the subject and that map work was not practiced in the class. Though, the Advisory note indicated some disciplinary action for negligence in future, it is not the case of the parties before us that any formal proceeding to that effect had been at any point of time drawn up against the respondent. The letter dated 16.01.2008 and the memorandum dated 06.02.2008 relate to the respondent's alleged failure to report for duty on 15.01.2008 and his absence from the class of History on 06.02.2008 respectively. 11. The original records, on a scrutiny reveal that in the 11th and 22nd Monthly Appraisal Reports, the Principal of the Institution had successively recorded as hereunder : - Most of the time he keep on applying leave on medical grounds. He doesn't attend any programme in the vacation. Poor in communication and confidence. Good with fellow workers and superiors. Sd/- B. Chakrapani 24.08.07. Principal, Jawahar Navodava Vidvalaya. He doesn't attend any programme in the vacation. Poor in communication and confidence. Good with fellow workers and superiors. Sd/- B. Chakrapani 24.08.07. Principal, Jawahar Navodava Vidvalaya. Williamnagar" He is well-mannered & friendly to others. Poor in communication and self-confidence. Often goes on medical leave. Feels less commitment that's required for a Navodaya teacher. Sd/- B. Chakrapani, Principal, Jawahar Navodaya Vidyalaya, Williamnagar. The official communications in the File No. 66 endorsed the above leading to the conclusion that the respondent's services were in no way helping the students of the Institution. On a perusal of the proceedings of the DPC held on 24.01.2008 pertaining to the teaching staff/non teaching staff of Jawahar Navodaya Vidyalaya of Shillong Region on probation, it transpires that it on a consideration of the gradings and performance of four of such employees together with the report of the superiors recommended for the termination of their services. This included the respondent as well. 12. On a cumulative consideration of the materials on record, we do not feel persuaded to conclude that the impugned decision of termination of the respondent's services had been prompted by any extraneous or co-lateral consideration. Though, in the comprehension of the respondent, he had been discharging his duties commensurate to the institutional exigencies, in the assessment of the competing authorities, it was not up to the desired standard, thus, adversely affecting the students in general as well as reputation of the Vidyalaya. This Court in the exercise of its power of judicial review is ill-equipped to substitute this evaluation by it own appraisal. It is impermissible as well. The disclosures from the records do not render the view entertained by the authorities wholly unfounded. The respondent/applicant, as the records reveal had been alerted time and again to improve his performance but to no avail. As noticed hereinabove, the respondent at all times, was a probationer and in terms of Clause 2 of his appointment letter dated 21.08.2006, he could permissibly be discharged from service, in case his performance was adjudged to be unsatisfactory by the Vidyalaya authorities. Not only, the respondent has failed to bring on record any overwhelming fact or testimony to even suggest that the termination of his services was by way of a disciplinary step, there is no semblance of proof of bias or mala fide of the respondent authorities against him having a bearing on his ouster. Not only, the respondent has failed to bring on record any overwhelming fact or testimony to even suggest that the termination of his services was by way of a disciplinary step, there is no semblance of proof of bias or mala fide of the respondent authorities against him having a bearing on his ouster. The impugned decision does not cast any stigma on the respondent/applicant's character or integrity. Having regard to the stipulation of probation, subject to which the respondent/applicant had been appointed and the contemporaneous materials bearing on his performance and the insistence on the part of the respondent authorities for improvement of his quality of service, we are constrained to hold that the impugned order dated 11.02.2008 ought not to have been, in the face of the state of law dealing with the right of a probationer, interfered with by the learned Tribunal. In view of the materials available on record, we are inclined to sustain the plea of the respondent authorities that the impugned decision was not by way of a disciplinary measure and but for effecting the termination of the respondent's services simpliciter in accord with Clause 2 of his appointment letter dated 21.08.2006. 13. The Apex Court in Radhey Shyam Gupta (supra), while dwelling on the subtle yet a real distinction between the notions of "motive" and "foundation" and the consequence ensuing therefrom qua dismissal from or termination of service quoted with approval the following observations made by it in Gujarat Steel Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593 . 53. Masters and servants cannot be permitted to pay hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes hut must he grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used. 54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter. if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here. It was held, as a corollary that if the employer after gathering some prima fade facts does not really wish to ascertain the truth thereof but decides merely not to continue a dubious employee, it would be a case of motive, but, if he conducts an inquiry only for the purpose of proving the misconduct and the employee is not heard, the inquiry, then, would be the foundation of the eventual action rendering the termination bad. The authorities cited on behalf of the respondent/applicant having regard to the propositions laid down are of no avail to him in the contextual facts in absence to any discernible material to suggests that the impugned decision of termination of his services was by way of an disciplinary measure or was prompted by considerations impertinent and extraneous. In the above view of the matter, we are of the unhesitant opinion that the grounds on which the learned Tribunal had invalidated the petitioners/respondents' decision to terminate the respondent/applicant's services cannot be sustained in law and on facts. The impugned judgment and order is, thus, set aside. The petition is allowed. No costs. Petition allowed.