JUDGMENT : R.B. Deo, J. 1. This petition questions the legality of the judgment dated 15.04.2017 rendered by the School Tribunal, Nagpur in Appeal 37 of 2011 by and under which the termination order dated 27.09.2007 is set aside and the petitioner is directed to reinstate the respondent 1 - employee with 50% back wages. 2. It is undisputed that the employee is issued the termination order one day prior to the completion of the probation period. The Tribunal has recorded a finding that the employee was appointed as Physical Training Instructor by following the procedure under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("Act" for short) and the appointment is duly approved by the Education Officer. While it is averred in the petition that the respondent 1 - employee was appointed purely on temporarily basis, and that the post was not clear nor permanent, in fairness to the learned counsel for the petitioner Shri Akshay Naik, such submission is not advanced. 3. The seminal issue which needs consideration is whether the termination of the employee is founded on misconduct or is only motivated by misconduct. The petitioner contends that if the termination order is subjected to the form and substance test, it is clear that the order of termination is not stigmatic. The exercise undertaken by the petitioner to assess the suitability of the employee to continue in service and the observations in the order of termination made in the context of the issue of suitability would not render the order of termination vulnerable, is the submission. In rebuttal, Shri A.D. Mohgaonkar, the learned counsel for the employee would submit that only if the order of termination survives the form test that there would be an occasion to apply the substance test. Shri Mohgaonkar, would submit that applying the form test, it is obvious that the termination is stigmatic and that the employee is punished for an alleged misconduct. Shri Mohgaonkar, the learned counsel would submit that there is no occasion to apply the substance test and even if it is assumed argue do that the substance of the order of termination needs determination, the irresistible conclusion is that the order is punitive and stigmatic. Shri Mohgaonkar, the learned counsel would submit that there is no occasion to apply the substance test and even if it is assumed argue do that the substance of the order of termination needs determination, the irresistible conclusion is that the order is punitive and stigmatic. Shri Mohagaonkar concedes that the settled position of law is that the employer is entitled to assess the suitability of a probationer and that an inquiry or evaluation which is undertaken to asses the suitability of the probationer would not render the termination order stigmatic or punitive. Shri Mohgaonkar, the learned counsel would however submit that the employee is punished for misconduct is writ large on the face of the order and no further inquiry or the application of the substance test is necessary to discern the nature of the order, which can not survive the form test. 4. In the context of the submissions, it would be necessary to minutely scrutinize the termination order dated 27.09.2007. The termination order dated 27.09.2007 reads thus: xxx xxx The termination order begins with recital that during the tenure of three years of service the employee has committed misconduct like breach of disciplinary rules, insubordination and improper behaviour with colleagues and parents of the students for which misconduct the employee was cautioned from time to time. The next paragraph (paragraphs are not numbered) records that the employee is imposed the punishment of "severe reprimand" in accordance with the provisions of Rules 28 and 29 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 ("Rules" for short). A reference is made to the meeting of the School Committee held on 29.06.2007. The next paragraph adverts to the failure of the employee to improve his conduct notwithstanding the advice and caution and the opportunities extended by the management from time to time. The further recital is that the employee continued to behave arrogantly with senior colleagues and parents. The concluding paragraph states that the employee has committed misconduct of serious nature in the three years tenure of service and therefore, the appointment of the employee is cancelled. 5. The sustainability of the order of termination on the form and substance test shall be considered at a later stage. The rival versions of the events preceding the termination may now be noted. 5. The sustainability of the order of termination on the form and substance test shall be considered at a later stage. The rival versions of the events preceding the termination may now be noted. The employee is irrefutably appointed as a Physical Education Teacher by order dated 29.09.2004 on probation for three years. The appointment is duly approved by the Education Officer. The employee contends that from the date of appointment i.e. 29.09.2004 he was not served with any memo or adverse communication till March 2007. The first memo issued by the management is letter dated 24.03.2007 alleging that the employee beat one student Amol Hunge on 06.12.2005 and 07.12.2005 and further that on 07.09.2006 the employee punished students of the 5th and 6th standards by asking them to do 100 sit ups and inflicting corporeal punishment by cane. The employee contends that the only intention was to create a foundation for terminating his services and complaints were obtained from parents alleging that corporeal punishment was inflicted. The letter dated 24.03.2007 was responded by explanation dated 07.04.2007 and thereafter, the employee was served with communication dated 16.07.2007 stating that the employee is warned. The employee then contends that on 18.09.2007, the Head Master issued a letter adverting to the complaints of two colleagues Shri P.K. Gawli and Shri P.N. Chaudhary and within nine days, the employee was terminated. 6. Broadly this version of the employee is not disputed except that the petitioner contends that the employee admitted the misconduct in the explanation dated 07.04.2007. 7. The managerial power to terminate the services of the probationer is statutorily recognized in section 5(3) of the Act which reads thus: 5. Certain obligations of Management of private Schools. (1) …. (2) …. (3) If in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him on month's notice [[or salary [or honorarium] of one month in lieu of notice.]] Rule 15 which deals with writing of confidential reports reads thus: 15. Writing of confidential reports etc. (1) The confidential reports shall be written annually in the respective From in Schedule "G" The reporting authorities in respect of the employees and the Head shall be the Head and the Chief Executive Officer respectively. Writing of confidential reports etc. (1) The confidential reports shall be written annually in the respective From in Schedule "G" The reporting authorities in respect of the employees and the Head shall be the Head and the Chief Executive Officer respectively. Confidential reports shall be written in respect of the employee or the Head who had worked for six months or more during an academic year commencing from June. If the Head or a teacher is the Secretary of the Management the Confidential report in his respect shall be written by the President of the Management. (2) The Confidential reports so written in respect of the employees and the Head shall be reviewed by the Chief Executive Officer and the President of the Management, respectively. The Confidential report of the Head or a teacher written by the President shall be reviewed by the Managing Committee. (3) The respective reporting authority shall arrange to Communicate confidentially in writing adverse remarks, if any, to the concerned employee or the Head, as the case may be, before the end of August every year. (4) Representation, if any, from an employee against the adverse remarks communicated to him in accordance with sub-rule (3) above shall be decided by the School Committee. Similar representation, if any, from the Head shall be decided by the Managing Committee. (5) Failure to write and maintain confidential reports and to communicate adverse remarks to the employees within the period prescribed in sub-rule (3) shall have the effect that the work of the employee concerned was satisfactory during the period under report. (6) Performance of an employee appointed on Probation shall be objectively assessed by the head during the period of his probation and a record of such assessment shall be maintained. While sub-rule (1) to (5) would not apply to probationer sub-rule (6) which mandate that the performance of an employee appointed on probation shall be objectively assessed by the Head during the period of his probation and a record of such assessment shall be maintained is relevant to the exercise of power under section 5(3) of the Act. 8. The issue whether an order terminating the services of a probationer is vitiated by stigma is considered by the Hon'ble Apex Court in catena of decisions. 8. The issue whether an order terminating the services of a probationer is vitiated by stigma is considered by the Hon'ble Apex Court in catena of decisions. In Dipti Prakash Banerjee v. Satyendra Nath Bose National reported in (1999) 3 SCC 60 , the termination order which was considered reads thus: "4. Since the performance during the initial period of probation was not satisfactory, by Letter No. SNB/PER 4 1201/DO-5 dated 30-4-1996, your period of probation was extended by six months from 2-5-1996. 5. By letter dated 17-10-1996, your attention was drawn to unsatisfactory performance and the areas of unsatisfactory performance were brought to your notice. You were advised to improve your performance considerably. 6. Since during the extended period also your performance was not satisfactory, the management was constrained to further extend your period of probation and accordingly by Letter No. SNB/PER 4 1201/DO-100 dated 31-10-1996, your period of probation was extended a further six months. 7. During the period of further extension of probation, you could not improve your performance. 8. We have closely watched and examined your conduct, performance, ability and capacity during the whole period of probation but your performance is found to be unsatisfactory and you are considered unsuitable for the post against which you have been appointed. The period of probation was extended with the expectation that you would improve your performance but there was no improvement in your performance. 9. Under the circumstances, the management is unable to confirm your service in the Centre and as such the management is unable to continue your service on the expiry of the stipulated period or probation on 1-5-1997 and your service shall stand terminated after the close of working hours of 1-5-1997. In case you want to appeal against the decision, you may appeal to the Governing Body of the Centre. 10. You will be paid one month's pay although the contract of employment does not stipulate any such payment." The Hon'ble Apex Court formulated the following points for consideration. (1) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive? (2) When can an order of termination of a probationer be said to contain an express stigma? (1) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive? (2) When can an order of termination of a probationer be said to contain an express stigma? (3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination? (4) To what relief? The Hon'ble Supreme Court referred to the following articulation of Justice Krishna Iyer in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha reported in (1980) 2 SCC 593 : "[A] 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 a case, the grounds are recorded in different proceedings 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." (emphasis supplied) and as to motive: (SCC pp. 617-18, para 54) "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 pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge." (emphasis supplied) The Hon'ble Apex Court then observes thus: 23. In the present case before us, the order of termination dated 30-4-1997 is not a simple order of termination but is a lengthy order which we have extracted above. For, in fact, misconduct is not then the moving factor in the discharge." (emphasis supplied) The Hon'ble Apex Court then observes thus: 23. In the present case before us, the order of termination dated 30-4-1997 is not a simple order of termination but is a lengthy order which we have extracted above. It not only says that performance during probation is not satisfactory but also refers to a letter dated 30-4-1996 by which the period of probation was extended by six months from 2-5-1996, and to letters dated 17-10-1996 and 31-10-1996. It concludes by saying that the appellant's "conduct, performance, ability and capacity during the whole period of probation" was not satisfactory and that he was considered "unsuitable" for the post for which he was appointed. 24. The contention for the appellant is that if the appellant is to seek employment elsewhere, any new employer will ask the appellant to provide the copies of the letters dated 30-4-1996, 17-10-1996 and 31-10-1996 referred to in the impugned order and that if the said letters contain findings which were arrived at without a full fledged departmental enquiry, those findings will amount to stigma and will come in the way of his career. 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 Ray, CJ 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 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". 26. There is, however, considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a "stigma". 26. There is, however, considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a "stigma". The other issue in the case before us is whether even if the words used in the order of termination are innocuous, the court can go into the words used or language employed in other orders or proceedings referred to by the employer in the order of termination Answering the third question formulated which is "can the stigma be gathered by referring back to proceedings referred to in the order of termination? The Hon'ble Supreme Court enunciates thus: 32. The next question is whether the reference in the impugned order to the three earlier letters amounts to stigma if those three letters contained anything in the nature of a stigma even though the order of termination itself did not contain anything offensive. 33. Learned counsel for the appellant relies upon Indra Pal Gupta v. Managing Committee, Model Inter College decided by a three-Judge Bench of this Court. In that case, the order of termination of probation, which is extracted in the judgment, reads as follows: (SCC p. 386, para 1) "With reference to the above (viz. termination of service as Principal), I have to mention that in view of the resolution No. 2 of the Managing Committee dated April 27, 1969 (copy enclosed) and subsequent approval by the D.I.O.S., Bulandshahr, you are hereby informed that your service as Principal of this Institution is terminated ....." Now the copy of resolution of the Managing Committee appended to the order of termination stated that the report of the Manager was read at the meeting and that the facts contained in the report of the Manager being serious and not in the interests of the institution, that therefore the Committee unanimously resolved to terminate his probation. The report of the Manager was not extracted in the enclosure to the termination order but was extracted in the counter filed in the case and read as follows: (SCC p. 3888, para 3) "It will be evident from the above that the Principal's stay will not be in the interest of the Institution. It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take all this botheration. It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take all this botheration. As such my suggestion is that our purpose will be served by termination of his services. Why, then, we should enter into any botheration. For this, i.e., for termination of his period of probation, too, the approval of the D.I.O.S. will be necessary. Accordingly, any delay in the matter may also be harmful to our interests. Accordingly, I suggest that instead of taking any serious action, the period of probation of Shri Inder Pal Gupta be terminated without waiting for the period to end." It was held by Venkataramiah, J. (as he then was) (p. 392) that the letter of termination referred to the resolution of the Managing Committee, that the said resolution was made part of the order as an enclosure and that the Resolution in its turn referred to the report of the Manager. A copy of the Manager's report had been filed along with the counter and the said report was the "foundation". Venkataramiah, J. (as he then was) held that the Manager's report contained words amounting to a stigma. The learned Judge said: "This is a clear case where the order of termination issued is merely a camouflage for an order imposing a penalty of termination of service on the ground of misconduct ...", that these findings in the Manager's report amounted to a "mark of disgrace or infamy" and that the appellant there was visited with evil consequences. The officer was reinstated with all the benefits of back wages and continuity of service. 34. It will be seen from the above case that the resolution of the Committee was part of the termination order being an enclosure to it. But the offensive part was not really contained in the order of termination nor in the resolution which was an enclosure to the order of termination but in the Managers's report which was referred to in the enclosure. The said report of the Manager was placed before the Court along with the counter. The allegations in the Manager's report were the basis for the termination and the said report contained words amounting to stigma. The termination order was, as stated above, set aside. 35. The said report of the Manager was placed before the Court along with the counter. The allegations in the Manager's report were the basis for the termination and the said report contained words amounting to stigma. The termination order was, as stated above, set aside. 35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma. 36. It was in this context argued for the respondent that the employer in the present case had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice and this was not a case of unfairness and this Court should not interfere. It is true that where the employee had been given suitable warnings, requested to improve, or where he was given a long rope by way of extension of probation, this Court has said that the termination orders cannot be held to be punitive. [See in this connection Hindustan Paper Corpn. v. Purendu Chakraborty, Oil & Natural Gas Commission v. Dr. Md. S. Iskender Ali, Unit Trust of India v. T. Bijaya Kumar, Principal, Institute of Postgraduate Medical Education & Research, Pondichery v. S. Andel and a labour case Oswal Pressure Die Casting Industry v. Presiding Officer. But in all these cases, the orders were simple orders of termination which did not contain any words amounting to stigma. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer's future whatever be the earlier opportunities granted by the respondent-Organisation to the appellant to improve. 37. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer's future whatever be the earlier opportunities granted by the respondent-Organisation to the appellant to improve. 37. On this point, therefore, we hold that the words amounting to "stigma" need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Point 3 is decided accordingly. It would further be apposite to note the consideration of the Hon'ble Apex Court of the aspect of stigma. 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 dated 15.7.1996 is found in the counter of the respondents. The Enquiry Committee found the appellant's "behaviour reprehensible", and it confirmed that the appellant was involved in a scuffle and did 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. Considering the submission that merely because an order of termination is set aside reinstatement and back-wages would not be necessary consequence, the Hon'ble Apex Court holds thus: 46. 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. Considering the submission that merely because an order of termination is set aside reinstatement and back-wages would not be necessary consequence, the Hon'ble Apex Court holds thus: 46. Learned senior counsel for the respondent submitted on the basis of State of Haryana v. Jagdish Chander that merely because an order of termination was set aside on grounds of lack of opportunity, it was not necessary to direct reinstatement and back wages. Reliance in Jagdish Chandra's case was placed upon Managing Director, ECIL v. B. Karunakar. It is true that such an order not granting reinstatement or back wages was passed in Jagdish Chander's case following Karunakar's case. But it has to be noticed that in Karunakar's case there was a regular departmental enquiry but the enquiry report was not given to the officer. This Court directed the report to be given and set aside the proceedings from that stage and stated that no order for reinstatement or back wages need be passed at that stage. But in cases like the present where no departmental enquiry whatsoever was held, Karunakar's case, in our view, cannot be an authority. As to back wages, on facts, the position in the present case is that there is no material to say that the appellant has been gainfully employed. The appellant is, therefore, entitled to reinstatement and back wages till the date of reinstatement from the date of termination and to continuity of service. Point 4 is decided accordingly. In Progressive Education Society and another v. Rajendra and another reported in 2008 (2) Mh.L.J. 715 the Hon'ble Supreme Court considered the interplay between section 5(3) of the Act and sub-rule (6) of rule 15 of the rules thus: 13. On a consideration of the submissions made on behalf of the respective parties, the main issue which, in our view, requires determination in this appeal is whether the provisions of Rules 14 and 15, and, in particular sub-Rule (6) of Rule 15 of the MEPS Rules, 1981, would control the powers vested in the Management of the School under sub-section (3) of section 5 of the MEPS Act. The law with regard to termination of the services of a Probationer is well established and it has been repeatedly held that such a power lies with the Appointing Authority which is at liberty to terminate the services of a Probationer if it finds the performance of the Probationer to be unsatisfactory during the period of probation. The assessment has to be made by the Appointing Authority itself and the satisfaction is that of the Appointing Authority as well. Unless a stigma is attached to the termination or the Probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the Probationer's service, the Management or the Appointing Authority is not required to give any explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory. 14. The facts of this case are a little different from the normal cases relating to probation and the termination of the services of a Probationer in that the satisfaction required to be arrived at under sub-section (3) of section 5 of the MEPS Act has to be read along with Rule 15 of the MEPS Rules, 1981 with particular reference to sub-rule (6) which provides that the performance of an employee appointed on probation is to be objectively assessed by the Head during the period of his probation and a record of such assessment is to be maintained. If the two provisions are read together, it would mean that before taking recourse to the powers vested under sub-section (3) of Section 5 of the MEPS Act, the performance of an employee appointed on probation would have to be taken into consideration by the School Management before terminating his services. 15. Accordingly, while Rules 14 and 15 of the MEPS Rules, 1981 cannot override the provisions of sub-section (3) of Section 5 of the MEPS Act, it has to be said that the requirements of sub-rule (6) of Rule 15 would be a factor which the School Management has to take into consideration while exercising the powers which it undoubtedly has and is recognised under sub-section (3) of Section 5 of the Act. 16. This brings us to the next question regarding the sufficiency of the materials before the School Management while purporting to pass the order of termination on 1st August, 1994. 16. This brings us to the next question regarding the sufficiency of the materials before the School Management while purporting to pass the order of termination on 1st August, 1994. As has been discussed, both by the School Tribunal and the High Court, the Confidential Report which has been produced on behalf of the School Management does not inspire confidence on account of the different dates which appear both on Part-I and Part-II of the said Report. Part-I of the Self-Assessment Form gives the particulars of the concerned teacher and the remarks of the Reporting Authority, namely, the Head Mistress of the School. The date in the said Part is shown as 4th July, 1994, whereas the date at the end of Part-II, which is the form of the Confidential Report giving details of the teacher's performance, is dated 24th June, 1994, which appears to be in line with the date given of the forwarding letter written by the Head Mistress to the Secretary of the Society. To add to the confusion created by the different dates on the form, there is a third date which appears on Part-I of the Self-Assessment Form which shows that the documents were presumably forwarded to the Management of the School on 6th August, 1994, which is a date which is prior to the date of termination of the services of the Respondent No. 1, namely, 1st August, 1994. 17. This merely goes to show that the said documents are not above suspicion and that the requirements of Rule 15(6) and Rule 14 had not been complied with prior to invocation by the School Management of the powers under sub-section (3) of Section 5 of the MEPS Act. 9. No strait jacket formula can be applied to ascertain whether the termination of a probationer is founded on misconduct or whether the termination is only actuated by misconduct. If the order of termination is on the face of it stigmatic in the sense that the character or conduct of the employee is questioned the order would not survive the form test and no further inquiry may be necessary. However, even if the order of termination is innocuously worded the court is not precluded from lifting the veil by applying the substance test. In my considered opinion, the order of termination cannot survive the form test. However, even if the order of termination is innocuously worded the court is not precluded from lifting the veil by applying the substance test. In my considered opinion, the order of termination cannot survive the form test. The reference is to several misconducts allegedly committed during the tenure of three years of service. It is also stated in the order of termination that the probationer employee is imposed punishment of severe caution or reprimand and the proceeding of the school committee which are placed on record clearly indicate that the employee is punished for misconduct. The termination order then adverts to the failure of the employee to improve his conduct notwithstanding the advice and caution and the opportunities extended by the management from time to time and finally concludes by asserting that the employee has committed misconduct of serious nature in the three years tenure of service. The termination order is ex-facie stigmatic. The reference to the serious misconduct allegedly committed and the punishment imposed in the past is bound to adversely affect the prospect of the probationer employee while searching for alternate employment. Even if the order impugned is considered not from the prism of an employer, but from the perspective of an average right minded person the recitals of the order impugned would project the probationer employee in extremely poor light. 10. The order of termination further falls foul of the statutory scheme of section 5(3) and Rule 15(6) of the Act and the Rules respectively. No material is placed on record to evidence that the performance of the employee was objectively assessed by the Head during the period of his probation and that a record of such assessment was maintained. This is an additional circumstance rendering the order of termination vulnerable. 11. Shri Akshaya Naik would rely on the decision of the Hon'ble Apex Court in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences and others reported in (2006) 4 SCC 469 to urge that the termination is not punitive since there was no full scale formal enquiry into allegations involving moral turpitude or misconduct which culminated in a finding of guilt. The termination order which is considered in Abhijit Gupta recited that the service of the probationer was unsatisfactory in the areas of drive, initiative, promptness leadership and despite advised verbally and through letter, there was no improvement in the work. The termination order which is considered in Abhijit Gupta recited that the service of the probationer was unsatisfactory in the areas of drive, initiative, promptness leadership and despite advised verbally and through letter, there was no improvement in the work. The termination order concluded that the performance, ability and capability during the period of probation has been examined and the service is found to be unsatisfactory and the probationer unsuitable for the post. It is clear from the recitals of the termination order culled out in the said decision that the order of termination did not attribute any misconduct as such to the employee. It is in this backdrop that the Hon'ble Apex Court observes thus: 13. In the case of the appellant before us, the record in uncertain terms makes it clear that every time the appellant's attention was drawn to his deficiencies and he was repeatedly advised to improve his behaviour, conduct and discharge of work. True, that in some of the letters there was intemperate language used (the appellant was also equally guilty of doing that). Notwithstanding the intemperate language, we are unable to accept the contention of the appellant's counsel that the letter dated 7-4-1998 indicates that the appellant was being charged with the misconduct and, therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents, after giving a long rope to the appellant, had come to the conclusion that the appellant's service was unsatisfactory and there was no hope of his improvement. 14. The real test to be applied in a situation where an employee is removed by an innocuous order of termination is: Is he discharged as unsuitable or is he punished for his misconduct? In Allahabad Bank Officers' Assn. v. Allahabad Bank this Court was considering a challenge to a compulsory retirement and formulated a practical test to answer the question posed above. This Court (vide para 17) observed that if the order of compulsory retirement form the service casts a stigma in the sense that it contains a statement casting aspersion on his conduct or his character, then it can be treated as an order of punishment but not if it merely amounts to highlighting the unsuitability of the employee. This Court (vide para 17) observed that if the order of compulsory retirement form the service casts a stigma in the sense that it contains a statement casting aspersion on his conduct or his character, then it can be treated as an order of punishment but not if it merely amounts to highlighting the unsuitability of the employee. As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service. Shri Akshaya Naik would however, rely on the following passage if the said decision. 11. Having observed thus, the Court formulated the judicial test to determine as to on which side of the fence the case lay, in the following words (vide SCC p. 528, para 21): "21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld." I am not persuaded to accept the submission that in the absence of full scale formal enquiry the order of termination cannot be termed as punitive. The observation culled out touch the substance test. What is in essence enunciated is that if there is an occasion to apply the substance test then one of the judicially evolved tests is to see whether prior to the termination there was full scale formal enquiry into allegations involving moral turpitude or misconduct which culminated in a finding of guilt. The submission that even if the order of termination is ex-facie stigmatic and fails the form test, in the absence of full scale formal enquiry the order of termination must be upheld, cannot be countenanced. 12. The finding recorded by the Tribunal that the order of termination is stigmatic is unexceptionable. The next question which needs consideration is the relief to which the employee is entitled. 12. The finding recorded by the Tribunal that the order of termination is stigmatic is unexceptionable. The next question which needs consideration is the relief to which the employee is entitled. Shri Akshaya Naik would strenuously urge that the Tribunal erred in directing reinstatement with 50% back wages. Shri Akshaya Naik would submit that the proper course would be to reinstate the employee only for the purpose of conducting enquiry and to permit the management to conduct the enquiry, the fate of which would decide the entitlement or otherwise of the employee to back wages or the financial benefits. Per contra, Shri Mohgaonker would submit that in the factual matrix the question of conducting an enquiry would not arise. The probationer is terminated a day prior to completion of probation. It is the case of the management that by order dated 24.03.2007 the employee was punished with caution or severe reprimand for the alleged misconduct committed in the year 2005 and 2006. The only allegation which pertains to the period post the imposition of punishment is the alleged complaint received from two colleagues, the details of which complaint are unspecified. Shri Mohgaonkar would urge that the employee is denied 50% back wages by the Tribunal, and even if it is assumed that the allegation of improper behavior with two colleagues can be enquired into, vague and unspecified as the allegation is, the punishment of denial of 50% back wages would be more than commensurate with the alleged misconduct. 13. I have given my anxious consideration to the submission of Shri A.A. Naik that the Tribunal erred in directing the reinstatement with 50% back wages. I am not persuaded to accept the said submission. Concededly, there was neither a departmental enquiry held nor was a charge-sheet issued. The case of the employer was that the employee was not found suitable and that he is not punished for misconduct. The Tribunal has found and I would concur, that the termination is founded on misconduct. However, the alleged misconduct of mistreating the students in the year 2005 and 2006 is already taken cognizance of and it is the case of the management that the employee is punished for the said misconduct vide order dated 24-3-2007. The only other allegation, vague and unsubstantiated as the allegation is, is that two colleagues lodged some complaints against the employee. The only other allegation, vague and unsubstantiated as the allegation is, is that two colleagues lodged some complaints against the employee. The details of the complaints allegedly lodged are not disclosed. In the case of a probationer who was terminated without holding a departmental enquiry, the Hon'ble Apex Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National has rejected a similar submission. Moreover, the Tribunal has held that the employee shall be paid only 50% back wages. On a holistic view, I am inclined to hold that the judgment of the Tribunal needs no interference in writ jurisdiction. 14. The petition is dismissed.