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2016 DIGILAW 69 (GAU)

Prasanta Kalita v. Gauhati High Court

2016-01-29

B.K.SHARMA

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JUDGMENT AND ORDER : B.K. Sharma, J. The challenge in this writ petition is the Annexure-G order dated 2nd November, 2015, by which the services of the petitioner as Chauffeur has been dispensed with on the ground of not being found suitable. For a ready reference, the said order is reproduced below:- "Order Dated 2nd November, 2015 No. HC.V-103/2015/794/Estt ##### Sri Prasanta Kalita, Chauffeur of this Registry who was appointed vide this Registry's order No.HC.V-19/2015/239/Estt dated 19.03.2015 and is on probation, is discharged from the service of the Gauhati High Court at Guwahati with immediate effect as he is not found suitable. His name stands struck off from the roll of staff of the Gauhati High Court Registry." 2. The petitioner was appointed as Chauffeur (Barkandaz) in the Principal Seat of the Gauhati High Court vide Annexure-F order dated 19th March, 2015. His such appointment was pursuant to the Annexure-B advertisement dated 9th December, 2013 and the selection conducted pursuant thereto, which included driving test and interview. It appears that in the selection, the petitioner topped the list of successful candidates and accordingly his name appeared at serial No. 1 of the merit list (Annexure-E). 3. When the petitioner was continuing as Chauffeur in the Principal Seat of the Gauhati High Court, he was discharged from service by the above quoted order dated 2nd November, 2015. Apart from the ground of unsuitability (not found suitable), no other ground is assigned in the impugned order nor the petitioner was informed of anything regarding his unsuitability. It is an admitted position that before dispensing with the service of the petitioner by the impugned order dated 2nd November, 2015, he was not put to any kind of notice. It is in the above backdrop, the petitioner has filed the instant writ petition with the following grounds:- "15. That a perusal of the impugned order would show that petitioner has been discharged from the service of the Gauhati High Court at Guwahati on the ground that he is not found suitable. With respect, petitioner humbly submits that to be best of his knowledge, no assessment of suitability has been undertaken either in respect of the petitioner or in respect of the other appointees who were appointed with the petitioner on 19-03-2015. With respect, petitioner humbly submits that to be best of his knowledge, no assessment of suitability has been undertaken either in respect of the petitioner or in respect of the other appointees who were appointed with the petitioner on 19-03-2015. Petitioner asserts that he has not conducted himself in any manner which could even remotely be termed as unbecoming or unsuitable for High Court service. It is not understood on what basis or in what manner the authority has come to the conclusion that petitioner is not found suitable, more so when the probation period is not yet over. 16. That the post of Barkandaz is a Class IV post belonging to the High Court Subordinate Service governed by the provisions of the Gauhati High Court (Appointment, Conditions of Service and Conduct) Rules, 1967. As per Rule 6(b), appointment to Class IV posts shall be made by the Registrar by direct recruitment after selection test. Rule 14 provides that every person on appointment to the High Court service shall be on probation for a period of one year unless otherwise ordered by the Hon'ble Chief Justice. However, the period of probation may be extended for failure to give satisfaction. Rule 15 deals with confirmation. As per Rule 15(ii), a member of the subordinate service may also be confirmed 'likewise' in the post of which he has been appointed only when the Registrar is satisfied that he is fit for confirmation with the prior approval of the Hon'ble Chief Justice. 'Likewise' as referred to above means the like manner in which a member of superior or ministerial service is confirmed i.e. completion of the period of service and satisfaction of the Hon'ble Chief Justice that he is fit for confirmation. 17. That in the present case, the period of probation is yet to be completed. Therefore, the impugned discharge is contrary to the provisions of Rule 15. Not only that, no assessment of suitability has been carried out in respect of the similarly situated other Barkandaz who were appointed alongwith the petitioner on 19-03-2015. Therefore, petitioner has been subjected to a discriminatory treatment. 18. That there is a subtle yet significant difference between discharge on the ground of 'not found suitable' and discharge or non-confirmation on the ground of 'non-satisfaction' which is the requirement under the Rule 15. Therefore, petitioner has been subjected to a discriminatory treatment. 18. That there is a subtle yet significant difference between discharge on the ground of 'not found suitable' and discharge or non-confirmation on the ground of 'non-satisfaction' which is the requirement under the Rule 15. It is humbly submitted that in the case of the former discharge partakes the character of penalty and becomes punitive in nature. It may even be termed as stigmatic. Therefore, a notice and hearing becomes a must in the case of such discharge." 4. No counter affidavit has been filed by the respondents. However, relevant record has been produced. 5. I have heard Mr. D.K. Das, learned counsel for the petitioner and have also heard Mr. S.K. Medhi, learned standing counsel, Gauhati High Court. 6. During the course of hearing of the writ petition, Mr. D.K. Das, learned counsel for the petitioner placing reliance on the following decisions and also the rules holding the field submitted that although the petitioner is on probation but his services having been dispensed with casting stigma and such dispensation being punitive in nature and not termination simpliciter, the same is liable to be interfered with. (i) Jagdish Mitter v. The Union of India reported in AIR 1964 SC 449 ; (ii) Parshotam Lal Dhingra v. Union of India reported in AIR 1958 SC 36 ; (iii) Indra Pal Gupta v. Managing Committee, Model Inter College, Thora reported in (1984) 3 SCC 384 ; (iv) Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre For basic Sciences, Calcutta & Ors. reported in (1999) 3 SCC 60 ; 7. Mr. S.K. Medhi, learned standing counsel, Gauhati High Court submitted that the petitioner being on probation, judging his suitability, the authority having found him unsuitable, there is nothing wrong in the impugned order. According to him, the sufficiency of the reasons towards dispensation of the service of the petitioner cannot be gone into exercising writ jurisdiction. Referring to the relevant record/file produced by him containing the documents towards dispensation of the services of the petitioner, he submits that the petitioner having been discharged from service while on probation on the ground of unsuitable, upon assessment of his performance, the impugned order is not liable to be interfered with. 8. Referring to the relevant record/file produced by him containing the documents towards dispensation of the services of the petitioner, he submits that the petitioner having been discharged from service while on probation on the ground of unsuitable, upon assessment of his performance, the impugned order is not liable to be interfered with. 8. I have given my anxious consideration to the submissions advanced by the learned counsel appearing for the parties and have also perused the entire materials on record including the record produced by Mr. Medhi, learned standing counsel representing the Gauhati High Court. 9. Before I proceed to deal with the facts and circumstances involved in this case, it will be gainful to refer to the law on the issue. While there is no denial that the services of a probationer can be dispensed with without taking recourse to the normal procedure of such dispensation in respect of a permanent employee but at the same time such an employee on probation is also entitled to protection if the order is punitive in nature and stigmatic. 10. In State of Maharashtra v. Veerappa R. Saboji reported in (1979) 4 SCC 466 , the Apex Court held that even in the case of a temporary or officiating Government servant his services cannot be terminated by way of punishment casting a stigma on him in violation of the requirement of Article 311(2) of the Constitution. It was further held that the question of scrutinising the official records arises where a Government servant is entitled to show that both the order impugned by him purports to be an order of termination simpliciter, it is in fact an order made by way of punishment. The form of the order is not conclusive to its true nature. It was further held that the entirety of circumstances preceding or attendant on the impugned order must be examined by the Court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. 11. The form of the order is not conclusive to its true nature. It was further held that the entirety of circumstances preceding or attendant on the impugned order must be examined by the Court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. 11. In Samsher Singh v. State of Punjab reported in (1974) 2 SCC 831 , a Bench of 7(seven) Judges of the Apex Court held thus:- "No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency of for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution." 12. In Anoop Jaiswal v. Government of India & Ors. reported in (1984) 2 SCC 369 , dealing with the termination of the services of a probationer, the Apex Court held that the Court is entitled to go behind the formal order of discharge to find out the real cause of action. In the said case, a simple order of discharge of the probationer on the ground of unsuitability was passed before completion of the period of probation. On perusal of the record, it was found that the order actually based upon report/recommendation of the concerned authority indicating commission of alleged misconduct by the appellant. In such circumstances, it was held that the order was punitive in nature, which in absence of any proper enquiry amounted to violation of Article 311(2) of the Constitution. Accordingly, the order was set aside. Referring to the incident in question, which was the basis for termination of the services of the appellant, the Apex Court recorded thus: "4. In such circumstances, it was held that the order was punitive in nature, which in absence of any proper enquiry amounted to violation of Article 311(2) of the Constitution. Accordingly, the order was set aside. Referring to the incident in question, which was the basis for termination of the services of the appellant, the Apex Court recorded thus: "4. The main contention of the appellant before us is that the order discharging the petitioner though on the face of it appears to carry no stigma is in reality an order terminating his service on the ground of misconduct alleged to have been committed by him on June 22, 1981 in acting as one of the ring leaders who were responsible for the delay of about twenty-two minutes in the arrival of the probationers at the gymnasium and that such an order could not have been passed without holding an enquiry as contemplated under Article 311(2) of the Constitution and the relevant rules governing such an enquiry. He has also contended that the order is based on conjunctures and surmises and by way of illustration he has referred us to paragraph 13 of the counter-affidavit which reads thus: Para 13: The petitioner did not conduct himself fully in accordance with the prescribed rules and regulations during his training period. On one occasion when he was sanctioned leave for 16 days in the month of May, 1981, he did not report himself for duty in time. He absented himself wilfully on June 1, 1981 without applying for leave for the day. For this action, he was warned by the Director against recurrence of such conduct. The period of his wilful absence for one day was treated as leave without pay. On two earlier occasions, the petitioner's conduct was found prejudicial to good order and discipline, on the first occasion he was verbally counselled by the Chief Drill Instructor and on the second occasion a memo was issued to him. There was no gradation maintained in the Academy about the attendance, in terms of which the petitioner had the record of being second (or may be third) highest in the Academy. However, his record in this respect was otherwise satisfactory." In paragraphs 12, 13, 15 & 16 of the said judgment, the Apex Court held thus:- "12. There was no gradation maintained in the Academy about the attendance, in terms of which the petitioner had the record of being second (or may be third) highest in the Academy. However, his record in this respect was otherwise satisfactory." In paragraphs 12, 13, 15 & 16 of the said judgment, the Apex Court held thus:- "12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. 13. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the gymnasium and acting as one of the ringleaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ringleaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis of foundation for the order should be read along with the order for the purpose of determining its true character. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis of foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided ill Article 311(2) of the Constitution. 15. A narration of the facts of the case leaves no doubt that the alleged act of misconduct on June 22, 1981 was the real foundation for the action taken against the appellant and that the other instances stated in the course of the counter-affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise very weak. The case is one which attracted Article 311(2) of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquiry should have been held in accordance with the said constitutional provision. That admittedly having not been done, the impugned order is liable to be struck down. We accordingly set aside the judgment of the High Court and the impugned order dated November 9, 1981 discharging the appellant from service. The appellant should now be reinstated in service with the same rank and seniority he was entitled to before the impugned order was passed as if it had not been passed at all. He is also entitled to all consequential benefits including the appropriate year of allotment and the arrears of salary and allowances upto the date of his reinstatement. The appeal is accordingly allowed. 16. The appellant had to face this case just at the commencement of his career. We have allowed his claim in the name of the Constitution. This should help him to regain his spirit and also encourage him to turn out to be a public servant in the true sense of that expression." 13. In Babu Lal v. The State of Haryana & Ors. We have allowed his claim in the name of the Constitution. This should help him to regain his spirit and also encourage him to turn out to be a public servant in the true sense of that expression." 13. In Babu Lal v. The State of Haryana & Ors. reported in AIR 1991 SC 1310 , the Apex Court was concerned with termination of service of an employee who was earlier placed under suspension on the ground of pendency of criminal proceeding. His service was terminated during the period of suspension and pendency of criminal proceeding. In paragraph 8 of the said judgment, the Apex Court recording the finding that termination of service of the appellant was penal in nature having civil consequences, held thus:- "8. Moreover, from the sequences of facts of his case the inference is irresistible that the impugned order of termination of the service of the appellant is of penal nature having civil consequence. It is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the Court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside. Reference may be made in this connection to the decision of this Court in Smt. Rajinder Kaur v. State of Punjab (1986) 4 SCC 141 : ( AIR 1986 SC 1790 ) in which one of us is a party. It has been held that: "The impugned order of discharge though stated to be made in accordance with the provisions of Rule 12.21 of the Punjab Police Rules, 1934, was really made on the basis of the misconduct as found on enquiry into the allegation behind her back. Though couched in innocuous terms, the order was merely a camouflage for an order of dismissal from service on the ground of misconduct. Though couched in innocuous terms, the order was merely a camouflage for an order of dismissal from service on the ground of misconduct. This order had been made without serving the appellant any charge-sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross-examine the witness examined. The order was thus, made in total contravention of the provisions of Article 311(2) and was therefore, liable to be quashed and set aside." 10. Similar observation has been made by this Court in the case of Hardeep Singh v. State of Haryana (1989) 4 Serv LR 576. It has been held in this case as under:- 'In the instant case, it is clear and evident from the averments made in paragraph 3, sub-para (i) to (iii) and paragraph (v) of the counter-affidavit that the impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after considering the service conduct of petitioner. There is no doubt the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24 (Ix)(b) of the Punjab Police Rules, 1984....'" 14. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre For Basic Sciences, Calcutta & Ors. reported in (1999) 3 SCC 60 , the Apex Court raising the following points for consideration answered as follows:- "25. In the matter of 'stigma', this Court has held that the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. In the seven-Judge Bench decision in Samsher Singh v. State of Punjab reported in (1974) 2 SCC 831 , Ray, C.J. observed that if a simple order of termination was passed, that would enable the officer to 'make good in other walks of life without a stigma'. In the seven-Judge Bench decision in Samsher Singh v. State of Punjab reported in (1974) 2 SCC 831 , Ray, C.J. observed that if a simple order of termination was passed, that would enable the officer to 'make good in other walks of life without a stigma'. It was also stated in Bishan Lal Gupta v. State of Haryana reported in (1978) 1 SCC 202 that if the order contained a stigma, the termination would be bad for 'the individual concerned must suffer a substantial loss of reputation which may affect his future prospects.' 27. As to what amounts to stigma has been considered in Kamal Kishore Lakshman v. Pan American World Airways Inc. reported in (1987) 1 SCC 146 . This Court explained the meaning of 'stigma' as follows: (SCC p. 150, para 8) '8. According to Webster's New World Dictionary, it (stigma) is something that detracts from the character or reputation of a person, a mark, sign etc. indicating that something is not considered normal or standard. The legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster's Third New International Dictionary gives the meaning as a mark of label indicating a deviation from a norm. According to yet another dictionary 'stigma' is a matter for moral reproach.' 41. We shall next take up the second aspect relating to stigma. We shall assume that the words used in the impugned order do not contain any stigma. We shall then refer to the three other letters to which the order makes a reference. In the first letter dated 30-4-1996, we do not find anything objectionable. Coming to the next letter, we however find that para (iii) refers to the scuffle between the appellant and one P. Chakraborty regarding which the appellant made a complaint on 28-5-1996. An Enquiry Committee is said to have been appointed and it gave a report. The extract from the report of the Committee found the appellant's 'behaviour reprehensible' and it confirmed that the appellant was 'involved in a scuffle and did not misdeeds like obtaining false signatures', and said that the appellant was 'guilty of inefficient performance or duty, irregular attendance without permission, rude and disorderly behaviour and wilful insubordination'. The extract from the report of the Committee found the appellant's 'behaviour reprehensible' and it confirmed that the appellant was 'involved in a scuffle and did not misdeeds like obtaining false signatures', and said that the appellant was 'guilty of inefficient performance or duty, irregular attendance without permission, rude and disorderly behaviour and wilful insubordination'. Whatever may be said about the other words, the words used in connection with the finding of the Enquiry Committee about the scuffle and about the appellant obtaining false signatures, are, in our opinion, clearly in the nature of a stigma. Further, the Enquiry Committee said he must be 'punished'. It did not say that proceedings for disciplinary action were to be initiated. Thus on the ground of 'stigma' also, the impugned order is liable to be set aside" 15. In Jagdish Mitter (supra) to which the learned counsel for the petitioner has referred to, it was held by the Constitutional Bench of the Apex Court that the use of the words "undesirable to be continued in service" amounts to a stigma. This case was followed in State of Uttar Pradesh v. Madan Mohan Nagar reported in AIR 1967 SC 1260 when the order said that the officer had "out lived his utility" and such an order was held to amount to a stigma. Jagdish Mitter (supra) was approved by the seven Judges Bench in Samsher Singh (supra). 16. In Chandra Prakash Shahi v. State of U.P. & Ors. reported in (2000) 5 SCC 152 , making a distinction between motive and foundation, the Apex Court observed thus:- "12. Now, it is well settled that the temporary Government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary Government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, lift the veil of an innocuously-worded order to look at the real face of the order and to find out whether it is as innocent as worded. (See: Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 : 1958 SCR 828 ). The courts can, therefore, lift the veil of an innocuously-worded order to look at the real face of the order and to find out whether it is as innocent as worded. (See: Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 : 1958 SCR 828 ). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was 'founded' on those factors or other disqualifications." In Chandra Prakash Shahi (supra), it was admitted by the respondents that there was no adverse material against the appellant except the incident in question. 17. Referring to the decision in State of Punjab v. Sukh Raj Bahadur reported in AIR 1968 SC 1089 , the Apex Court also referred to the following proposition - "if the order visits the public servant with any evil consequences or casts an aspersion against his character and integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. What is determinative of the true nature of the order is not its exterior form but the "foundation" on which it is based. It was held that the misconduct or negligence was the foundation of the order of termination, or for that matter, the order would be punitive in nature. 18. In Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha reported in (1980) 2 SCC 593 , it was laid down that a Court or tribunal is entitled to find out the true nature of the termination order, namely, whether it is punitive or not. In this regard, the form of the order will not be decisive and the Court can lift the veil to see the true nature of the order. The Court also observed that the substance, not semblance, governs the decision. 19. In Ravindra Kumar Misra v. U.P. State Handloom Corporation Limited reported in (1987) (Supp) 739, it was held by the Apex Court thus:- "24. .. The Court also observed that the substance, not semblance, governs the decision. 19. In Ravindra Kumar Misra v. U.P. State Handloom Corporation Limited reported in (1987) (Supp) 739, it was held by the Apex Court thus:- "24. .. that for finding out the effect of the order of termination, the concept of "motive" and "foundation" has to be kept in mind. It was further observed that no straitjacket test can be laid down to distinguish the two, namely, the "motive" and the "foundation". Whether motive has become the foundation has to be decided by the court with reference to the facts of a given case. It was also observed that "motive" and "foundation" are certainly two points of one line - ordinarily apart but when they come together, "motive" gets transformed and merged into "foundation". It was also observed that since in regard to a temporary employee or an officiating employee an assessment of the service is necessary, merely because the authority proceeds to make an assessment and records its views, it would not be available to be utilised to make the order of termination, following such assessment, punitive in character. It was observed by this Court that in the relationship of master and servant there is a moral obligation to act fairly. There should be an assessment of the work of the employee and if any defect is noted in his working, the employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiency, indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, it was observed, it would be arbitrary to give a movement order to the employee on the ground of unsuitability." 20. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Limited reported in (1999) 2 SCC 21 , the Apex Court after considering its earlier decisions and tracing back the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laid down the "motive" and "foundation" theory. It was held thus:- "25. .. It was held thus:- "25. .. that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. The benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to a probationer and the court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated." 21. In State Bank of India & Ors. v. Palak Modi & Anr. reported in (2013) 3 SCC 607 , the Apex Court while holding that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him, however, also held that if an allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice. In the said case, the services of the private respondents were not terminated on account of any deficiency in their performance during probation period but foundation of termination order was allegation pertaining to use of unfair means in conformation examination constituting misconduct. No enquiry involving the private respondents had preceded termination order and no opportunity of hearing was granted to them and they were condemned unheard. It was held by the Apex Court that the termination order was not sustainable in law. 22. Let me now examine the decision on which the learned counsel for the petitioner has placed reliance. The decision in Jagdish Mitter (supra) has already been referred to. 23. In Parshotam Lal Dhingra (supra), the Apex Court dealing with the doctrine of pleasure also dealt with the question as to whether the termination of the service of a Government servant can be classified as punitive and termination simpliciter. It was held that if the termination of service of a temporary employee is sought to be founded on misconduct, negligence, inefficiency or any other disqualification, then it is a punishment and the requirement of Article 311 must be complied with. 24. It was held that if the termination of service of a temporary employee is sought to be founded on misconduct, negligence, inefficiency or any other disqualification, then it is a punishment and the requirement of Article 311 must be complied with. 24. The decisions in Dipti Prakash Banerjee (supra) and so also Indra Pal Gupta (supra) have already been discussed above and thus, they do not require any further discussion. 25. Once the law relating to termination of the services of a probationer is noted, it is to be seen as to whether in the present case the petitioner was entitled to any protection before discharging him from service. Admittedly, the petitioner was on probation. It is also an admitted position that there was no assessment of his suitability. In the order of appointment, it was specified that he will be on probation for a period of 1(one) year from the date of his joining. Rules 14 & 15 of the Gauhati High Court Services (Appointment, Condition of Service & Conduct) Rules, 1967, deal with probation and confirmation. As per Rule 14, a person appointed to the High Court service shall be on probation for a period of 1(one) year unless otherwise ordered by the Chief Justice. Under Rule 15, a member of the High Court service may be confirmed in the post to which he has been appointed or promoted on completion of the period of probation subject, however, to the satisfaction of the Hon'ble Chief Justice that he is fit for confirmation. 26. In the instant case, the service of the petitioner has been terminated even before completion of 1(one) year. The relevant file produced by Mr. S.K. Medhi, learned standing counsel, Gauhati High Court, revealed that in absence of a regular driver, he was assigned the duty to substitute him in the particular office with effect from 28th July, 2015 and thereafter, following misconduct and/or dereliction of duty were noticed: (i) The petitioner was in the habit of avoiding duties with ready excuses. S.K. Medhi, learned standing counsel, Gauhati High Court, revealed that in absence of a regular driver, he was assigned the duty to substitute him in the particular office with effect from 28th July, 2015 and thereafter, following misconduct and/or dereliction of duty were noticed: (i) The petitioner was in the habit of avoiding duties with ready excuses. For instance on the second day itself, he expressed his inability to undertake a dinner duty by saying that he had to prepare food for an elderly lady at his residence; (ii) Citing the illness of his father, the petitioner availed 3(three) days leave to avoid the duty during Court holidays, i.e. Saturday & Sunday; (iii) The petitioner failed to perform the assigned duty on 3rd August, 2015 and later on offered excuse of miscommunication for his lapses; (iv) The attitude and conduct of the petitioner showed him to be a shirker who was also found to be unreliable; (v) Unfortunately the petitioner also utters the name of his superior authority as his protector and is in the habit of boasting about the other Court employees least bothered about his duties in the High Court job. 27. With the above allegations, a note was put up to the Registrar General on 6th August, 2015 and the matter was brought to the notice of the then Hon'ble the Chief Justice (Acting). Although there is no date mentioned as to when the matter was placed before the Hon'ble the Chief Justice (Acting), but it appears that a decision was taken to place the matter before him on 17th August, 2015. As to what happened thereafter, is not discernable, but the fact of the matter is that no immediate action was taken on the basis of the complaint, but eventually on 17th October, 2015, the Hon'ble Chief Justice (Acting) made an endorsement on the body of the note of the Registrar (Administration), by which the complaint was brought to his notice. The endorsement reads "the official to be discharged as not found suitable". There is absolutely no material on record to show that any assessment was made regarding the suitability of the petitioner. It was solely on the basis of the complaint which made the foundation towards discharging the petitioner from service, the above endorsement was made. The endorsement reads "the official to be discharged as not found suitable". There is absolutely no material on record to show that any assessment was made regarding the suitability of the petitioner. It was solely on the basis of the complaint which made the foundation towards discharging the petitioner from service, the above endorsement was made. In the process, he was not provided with any opportunity of being heard, not to speak of conducting any regular enquiry. 28. In Anoop Jaiswal (supra), the Apex Court while going behind the formal order of discharge to find out the real cause of action found that the allegation against the petitioner was that he did not conduct himself fully in accordance with the rules and regulations during his training period. While holding that the form of the order was merely a camouflage for an order of dismissal for misconduct, it was held that the alleged act of misconduct on the part of the petitioner was the cause of the order and but for that incident, it would not have been passed. Accordingly, the Apex Court drew the conclusion that the order of discharge should fall to the ground as the appellant was not provided with a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution. Same is the case in hand. 29. Above being the position, in my considered view, the endorsement on the body of the note of the Registrar (Administration), on the basis of which the impugned order was passed is not sustainable in law. The petitioner being on probation, his case shall now govern strictly in accordance with the Rules. There is no denial of the fact that the suitability of the petitioner was never judged as is required in case of a probationer. On the other hand, the impugned order is also stigmatic, having specified the ground of discharge from service as, "he is not found suitable". It is on record that he was the most suitable candidate having stood first in the selection. Thus, the particular incident referred to in the file being the foundation towards discharging the petitioner from service, the impugned order is not sustainable in law and accordingly the same stands interfered with. 30. The writ petition is allowed without, however, any order as to costs.