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J&K High Court · body

2019 DIGILAW 287 (JK)

Bina Devi v. National Hydroelectric Project

2019-05-21

SANJEEV KUMAR

body2019
Judgment 1. The petitioner is aggrieved and challenges Order of respondent No.2 bearing No. NH/SHEP/P&A/RWE/PF/ 2001/4089-99 dated 21.06.2001 whereby, the services of the petitioner have been terminated w.e.f. 02.04.2001. 2. Before adverting to the grounds on which the order impugned has been assailed, it would be apposite to refer to the brief resume of the factual antecedents leading to the passing of the order impugned by respondent no.4. 3. Pursuant to the selection process conducted by respondent No.1, the petitioner came to be appointed as Auxiliary Nurse- Mid-Wife in terms of the order issued by the Personnel and Admn Wing Salal H.E. Project, Jyotipuram (J&K) vide its order No. PNA/Induction/99/5024 dated 09.07.1999. Apart from the other terms and conditions, in terms of the condition No.1.9, the petitioner on her appointment was put on probation for a period of one year which, however, was further extendable if was found necessary. In the aforesaid condition, it was further provided that during the probation period, the services of the petitioner were liable to be terminated at any time without assigning any reason therefor. It was also provided that the services of the petitioner would also be liable to termination by either side on giving one month’s notice or payment of salary in lieu thereof etc. etc. Obviously, the petitioner accepted the offer of appointment and joined her services on 23.07.1999 by submitting her joining report with the then Senior Deputy Chief Medical Officer, Mr. Bhatnagar. As claimed by the petitioner she proceeded on casual leave on 20.05.2000 by submitting proper application in the register as per the instructions of respondent No.3, but, on her resumption of duty, the petitioner was asked to handover the said application to one Mst. Kunti (Clerk), who under the instructions of the respondent No.3 and one Dr.B.K.Lal destroyed the said application. All this, alleges the petitioner, was done by the respondents with a view to harass her and spoil her service career. The petitioner further submits that because of the aforesaid development, the attitude of the respondent No.3 became revengeful and harassment of the petitioner at the hands of respondent No.3 started. All this, alleges the petitioner, was done by the respondents with a view to harass her and spoil her service career. The petitioner further submits that because of the aforesaid development, the attitude of the respondent No.3 became revengeful and harassment of the petitioner at the hands of respondent No.3 started. The warning letter dated 29.05.2000 followed by memorandum containing statement of imputation dated 08.06.2000 served upon the petitioner were the initial steps taken by the respondent No.3 in a run up to destroying the service career of the petitioner and laying foundation for her ultimate ouster from service. The petitioner states that she submitted her reply to the imputation of alleged misconduct by way of representation dated 14.06.2000. Instead of accepting the explanation tendered by the petitioner, the respondent No.3 got further infuriated and served her with a warning letter to be careful in future. This warning was conveyed to the petitioner by the respondent No.2 vide his letter dated 30.06.2000. The petitioner protested and made another representation to the respondent No.3 on 15.07.2000. It further transpires that with a view to put quietus on the contentious issue of alleged absence of the petitioner without leave on 20.05.2000, the respondent No.3 directed the petitioner to submit casual leave for 20.05.2000 so that his absence marked for the day was regularised. The petitioner appears to have vehemently contested the claim of the respondent No.3 and took the stand that on the date she availed the casual leave, she had made a written application for casual leave, which was misplaced by the respondents. She, however, appears to have succumbed later and, as directed, the petitioner submitted formal application for casual leave for 20.05.2000 with the request that all explanations and warning letters served upon her be withdrawn. So far so good, but, the trouble did not stop. The petitioner once again applied for 18 days earned leave w.e.f. 03.10.2000 and on its sanction proceeded on leave. The earned leave was to expire on 21.10.2000, as claimed, in- between the petitioner got married on 11.10.2000 and therefore, before the expiry of the sanction earned leave, the petitioner applied for half pay leave, which too was sanctioned in her favour w.e.f. 22.10.2000 to 01.11.2000. The earned leave was to expire on 21.10.2000, as claimed, in- between the petitioner got married on 11.10.2000 and therefore, before the expiry of the sanction earned leave, the petitioner applied for half pay leave, which too was sanctioned in her favour w.e.f. 22.10.2000 to 01.11.2000. The petitioner further states that while she was availing this extended half pay leave, she fell ill and was, thus, constrained to once again apply for extra-ordinary leave w.e.f. 02.11.2000 to 01.01.2001. The petitioner asserts that after availing the aforesaid three different spells of leave, she attended her office on 03.01.2001 by submitting her joining report, but, respondent No.3 did not allow her to join. Despite the fact that the petitioner had submitted the joining report on 03.01.2001 and had not been permitted by the respondent No.3, the respondent No.3, instead, issued letter dated 06.01.2001 bearing No. SHP/201/2506 calling upon the petitioner to join her duties within three days. The petitioner submits that although this letter was written on 06.01.2001, but, the same was delivered to her in the last week of January, 2001. The petitioner after having received the aforesaid letter from the respondent No.3 once again requested the respondents to extend her leave on medical grounds and submitted a representation dated 03.01.2001 through registered post. The petitioner, thereafter, came across a notice published in the daily excelsior newspaper in its edition dated 25.03.2001 by virtue of which the petitioner had been asked to show cause within seven days as to why she should not be removed from the service of the Corporation. The petitioner claims that she responded by submitting a representation through telegram No.0114 dated 27.03.2001, which the respondent No.3 refused to acknowledge. The grievance of the petitioner is that instead of considering her request for extension of leave on medical grounds, the respondent No.3 managed the issuance of order impugned whereby the services of the petitioner came to be terminated. In the backdrop of above-narrated facts, the petitioner assails the order impugned inter alia on the following grounds:— (i) That the order impugned is not an order of termination of probationer simplicitor, but, is punitive in nature. The petitioner could not have been inflicted the penalty of termination from the service without holding an inquiry and without providing an opportunity of being heard. The petitioner could not have been inflicted the penalty of termination from the service without holding an inquiry and without providing an opportunity of being heard. (ii) That the order impugned is actuated by malice as from the very beginning the attitude of the respondent No.3 towards the petitioner was vindictive and the respondent No.3 had been creating circumstances so as to ensure the ouster of the petitioner from the service of the Corporation. The respondent No.3 eventually succeeded in persuading the management to issue the order impugned. (iii) That though the services of the petitioner have been terminated during the extended period of probation, yet, as is evident from the impugned order, the termination is not on the ground of non-satisfactory service of the petitioner, but, is by way of punishment for the alleged misconduct of remaining unauthorisedly absent without leave. 4. The respondents have filed the counter affidavit and contested the plea of the petitioner vehemently refuting all the allegations of malafide and malice alleged by the petitioner. The respondents claim that the termination of the petitioner during her extended period of probation was as per clause 1.9. of the offer of appointment and therefore, cannot be termed as punitive or by way of punishment for any misconduct. It is stated that the manner in which the petitioner conducted during her probation, was only a motive to terminate her services and which the respondents did in terms of the clause 1.9 of the order of offer of appointment. The allegations levelled by the petitioner were denied being incorrect and concoction by the petitioner to justify her conduct during her probation. The order impugned, is justified by the respondents on the plea that the inquiry was conducted by the respondents not to verify the allegations of misconduct against the petitioner, but, was only to find out her work, performance and conduct during the period of her probation. The holding of inquiry, which was followed by a show cause notice published in the daily excelsior newspaper only forms the motive and not foundation of the order of termination impugned in the writ petition. 5. The holding of inquiry, which was followed by a show cause notice published in the daily excelsior newspaper only forms the motive and not foundation of the order of termination impugned in the writ petition. 5. Having heard learned counsel for the parties and perused the record, the only question which is a mixed question of fact and law that arises for consideration in this petition is; whether the order impugned is an order of termination of a probationer simplicitor or it is stigmatic and punitive ? If the answer to the question is that the order of termination impugned in the writ petition is neither stigmatic nor punitive, but, is order of discharge of probationer simplicitor, in that event, the writ petition would fail and the petitioner would not be entitled to any relief. However, on inquiry by the Court, if the order impugned is found to have been founded on the misconduct of the petitioner, then it would be both stigmatic and punitive. In that event, it would not sustain, as no punitive measure can be taken against an employ without holding an inquiry in compliance with the principles of natural justice. Such order of termination, if founded on the allegation of misconduct, would also be stigmatic having adverse consequences on the future prospectus of the employment of the petitioner. That would also require an inquiry and compliance of the principle of natural justice. It is trite that in order to find out the nature of the order of termination, which, on the face of it, may appear innocuous, the Court is well within its power to lift the veil and find out whether the order impugned which is termed as order of termination simplicitor is stigmatic or punitive. The facts, as narrated above, are not much in dispute. Admittedly, the petitioner was on probation when the order of termination impugned was issued by the respondents. The order impugned, on the face of it, is innocuous order of termination simplicitor. There is also no dispute that the petitioner was once served with a warning to be careful in future by the respondent No.3 vide his order dated 30.06.2000. This was done on the ground that the petitioner had remained absent without leave on 20.05.2000. The order impugned, on the face of it, is innocuous order of termination simplicitor. There is also no dispute that the petitioner was once served with a warning to be careful in future by the respondent No.3 vide his order dated 30.06.2000. This was done on the ground that the petitioner had remained absent without leave on 20.05.2000. The petitioner had contested the claim of the respondents by submitting that she had applied for one day’s casual leave by making a written application, but, the same was destroyed/misplaced by the office at the instance of respondent No.3, who had unnecessarily nurtured the grudge against her. 6. Be that as it is, on the application submitted by the petitioner said period of absence on 20.05.2000 was regularised. This should have ended the acrimony between the petitioner and the respondent No.3, however, the petitioner again applied for earned leave, then half pay leave and then extra ordinary leave citing her health conditions. This request of the petitioner appears to have been accepted by the respondents and the leave requested was sanctioned in her favour. It appears that even after the expiry of the leave, the petitioner did not join though her claim is that she had submitted her joining report, but, the same was not accepted by the respondent no.3. In these circumstances, it can safely be said that the issue of overstaying of leave or remaining absent without leave was a disputed question of fact and therefore could have been subject matter of inquiry by the competent authority. Without holding any formal inquiry into the alleged misconduct of the petitioner of remaining absent without permission/approval of the competent authority, the disciplinary authority of the respondents corporation concluded that failure of the petitioner to respond to the letters dated 06.01.2001 and 24.01.2001 sent to the petitioner through registered A/D and UPC and also through the ordinary post at her leave address to resume the duty within three days and 15 days respectively constitute a misconduct for which she is liable to be inflicted the major penalty of removal from service in terms of Rule 32(h) of the Modified Certified Standing Orders read with clause 1.9 of offer of appointment. The disciplinary authority of the respondent corporation, therefore, issued a show cause notice of proposed penalty to the petitioner in terms of the Rule 32(h) of the modified standing order and clause 1.9 of the offer of appointment on the ground that remaining of the petitioner absent without permission/approval of the competent authority was a serious misconduct under the Rules inviting infliction of appropriate penalty under Rule 32(h) of the standing orders. In the show cause notice, the disciplinary authority of the respondent corporation has served a show cause notice of proposed penalty keeping in view the gravity of misconduct committed by the petitioner during the extended period of probation. The show cause notice also states that in view of the non-co-operative attitude of the petitioner, it was not reasonably practicable to hold the inquiry in the matter. It may be noted that issuance of show cause notice of proposed penalty on the employees presupposes that the disciplinary authority has recorded the findings of guilt/misconduct of the employee to be inflicted with the proposed penalty. Although the show cause notice published in the daily excelsior newspaper indicated that the respondents wanted to terminate the service of the petitioner both for her misconduct committed during the extended period of probation and also her unsatisfactory service during probation, yet, the careful reading of the show cause notice in its entirety would make the things abundantly clear that the respondents first arrived at the findings of misconduct committed by the petitioner during the extended period of probation and then holding that it was not reasonably practicable to hold the inquiry in the matter, served a show cause notice of proposed penalty, i.e., “removal from the service which shall not be disqualification for future employment”. The recitals of the show cause notice clearly indicate that it was the notice under Rule 32(h) of the modified standing orders read with clause 1.9 of offer of appointment. It is evident that the petitioner did not respond to the aforesaid notice of proposed penalty. The respondents, however, decided not to inflict the penalty as proposed in the show cause notice, but, decided to remove from the service of the corporation by passing an innocuous order of termination on 21.06.2011. It is this order, which is called in question by the petitioner in this petition. 7. The respondents, however, decided not to inflict the penalty as proposed in the show cause notice, but, decided to remove from the service of the corporation by passing an innocuous order of termination on 21.06.2011. It is this order, which is called in question by the petitioner in this petition. 7. In the backdrop of the aforementioned factual position, it needs to be seen as to whether the order impugned, which was proceeded by a show cause notice of proposed penalty is an order of termination simplicitor passed during the extended period of probation of the petitioner or the punishment imposed on the petitioner in terms of Rule 34(h) of the modified standing orders. If it is found that the show cause notice of proposed penalty and recording of findings of misconduct and also taking the decision not to hold inquiry as the same was not reasonably practicable, is the foundation of the order impugned, then the order impugned has to go, notwithstanding the fact that the manner in which the petitioner conducted during probation was unbecoming of a public servant. The order impugned if read with show cause notice which preceded it, makes it abundantly clear that the impugned order was predicated on the finding of misconduct arrived at by the disciplinary authority before it served the petitioner with a notice of proposed penalty. At this stage, I deem it appropriate to reproduce the relevant extract of the show cause notice of proposed penalty. “For imposing penalty under rule 32(h) of “Modified certified standing orders” and clause 1.9 of offer of appointment. Whereas Mrs.Binadevi, ANM, Employee no.130549-F, who is on probation and presently posted in Salal H.E.Project, has been unauthorisedly absenting herself from duty w.e.f. Ist Nov. 2000 without permission/approval of competent authority and therefore committed a breach of the Corporation rule. Where notices were issued vide letters dated 6/1/2001 and 24/1/2001 through registered AD, UPC and through ordinary post at her leave address as well as changed address at Jammu, wherein she has been directed to resume duty within 03 days and 15 days respectively, but failed to do so. This act constitutes misconduct on her part under the rules of Modified certified standing orders” of Salal Project. This act constitutes misconduct on her part under the rules of Modified certified standing orders” of Salal Project. Moreover her services during the probation period have not been found satisfactory and probation period extended by six months but she remained absent during the period and thus shows negligence and carelessness towards her duty which constitutes misconduct under rules. Through this notice undersigned proposes to award appropriate penalty under rule 32(h) of “Modified Certified Standing orders of Salal Project and as per the clause No. 1.9 of her offer of appointment. Taking into the account the gravity of misconduct during the extended period of probation, it is considered that it is not reasonably practicable to hold enquiry in the matter. It presumes that Mrs Bina Devi, ANM, is no more interested in the services of the corporation and accordingly proposes to impose on her the penalty of “Removal from services which shall not be a disqualification for future employment” under the rule mentioned above. Through this notice Mrs.Bina Devi, ANM is hereby given a last opportunity to make such representation as she may wish to make against, why the action may not be taken as mentioned above for her misconduct and unsatisfactory services during the probation/extended probation period, within 7 days from the issue of this notice falling which the proposed penalty will be imposed on her and accordingly her name shall be struck off from the rolls of the corporation from the date of her absence without any further references.” 8. The plain reading of the show cause notice makes it abundantly clear that at one point of time, the respondents had decided to propose the major penalty of removal from service under Rule 34(h) of the modified certified standing orders and, accordingly, issued the show cause notice of proposed penalty to the petitioner. In the notice a clear finding has been recorded by the disciplinary authority that remaining of the petitioner absent without permission/approval of the competent authority and not resuming her duties despite having been called upon vide letter to do so dated 06.01.2001 and 24.01.2001, the petitioner had committed misconduct entailing the imposition of the major penalty of removal from the service. Obviously, this finding of fact was recorded by the disciplinary authority and the show cause notice of proposed penalty issued without holding any formal inquiry into the alleged misconduct of the petitioner. Obviously, this finding of fact was recorded by the disciplinary authority and the show cause notice of proposed penalty issued without holding any formal inquiry into the alleged misconduct of the petitioner. Rather, in the show cause notice, the disciplinary authority has opined that it was not reasonably practicable to hold the inquiry in the matter. Thereafter, the respondents suddenly did not proceed with the notice and pass the formal order of imposition of penalty but decided to issue an innocuous order of termination of the petitioner who at the relevant time was on the extended period of probation. The order impugned, therefore, cannot be viewed in isolation and divorced completely from the factual matrix and antecedents and taken as an order of termination simplicitor. In this view of the matter, it may not be correct in law to say that the findings of misconduct recorded by the disciplinary authority based on which show cause notice of proposed penalty was issued only constitute the motive of order impugned and not its foundation and therefore, cannot be termed as stigmatic or punitive. As is well settled that it is not the form, but, the substance of impugned action that needs to be taken into consideration by the Court and for the purposes of looking into the real substance of the order impugned, the Court may lift the veil and see the background facts leading to the passing of such order. I have already narrated the whole sequence of events, which led to the passing of the order impugned and do not have any scintilla of doubt that order impugned, though, it appears to be innocuous on the face of it is both stigmatic and punitive. Such order could not have been passed by the respondents without holding an inquiry into the alleged misconduct of the petitioner for having remained unauthorisedly absent from the duties without prior permission/approval of the competent authority. 9. Such order could not have been passed by the respondents without holding an inquiry into the alleged misconduct of the petitioner for having remained unauthorisedly absent from the duties without prior permission/approval of the competent authority. 9. Learned counsel for the petitioner has strongly relied upon the judgment of the Supreme Court in the case of Dipti Prakash Banerjeee V. Satyendra Nath Bose reported in (1999) 3 SCC 60 and Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others reported in (2015) 15 SCC 151 to buttress his submission that the order impugned, though, it may appear to be innocuous is essentially an order of punishment inflicting upon the petitioner a penalty of removal from the service as envisaged under Rule 34(h) of the Modified Standing Orders and also that the finding of misconduct of the petitioner recorded by the disciplinary authority, which was followed by show cause notice of proposed penalty formed the foundation and not the motive of the impugned order. 10. Per contra, learned counsel for the respondents has relied upon the Constitution Bench judgment of the Supreme Court rendered in the case of A.G. Benjamin v. Union of India, 1967 SLR 185, and other judgments of the Supreme Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi, PGI of Medical Sciences ( 2002 (1) SCC 520 ), Director Aryabhatta Research Institute of Observational Sciences (ARIES) and another v. Devendra Joshi and others, ( 2018 (15) SCC 73 ), and Parshotam Lal Dhingra. Union of India, ( AIR 1958 SC 36 ). Learned counsel for the respondents has also taken the preliminary objections to the maintainability of the writ petition on the ground that the petitioner being a workman had an effective and equally efficacious remedy provided under Section 10 of the Industrial Dispute Act and therefore, this petition under Article 226 of the Constitution is not maintainable. Reliance in this regard is placed by the learned counsel for the petitioner on the Constitution Bench judgment of the Supreme Court of India in the case of Basant Kumar Sarkar and Others v. Eagle Rolling Mills Ltd, AIR 1964 SC 1260 . Reliance in this regard is placed by the learned counsel for the petitioner on the Constitution Bench judgment of the Supreme Court of India in the case of Basant Kumar Sarkar and Others v. Eagle Rolling Mills Ltd, AIR 1964 SC 1260 . Coming to the judgments relied upon by the learned counsel for the petitioner, it may be stated that in the case of Dipti Parkash Banerjee (supra), the Supreme Court in paragraph No.18 had formulated two specific questions for adjudication, which are as under:— (i) 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 motive? (ii) When can an order of termination of probationer be said to contain express stigma? (iii) Can stigma be gathered by referring back to proceedings referred to in order of termination? (iv) To what relief.? 11. The Hon’ble Supreme Court after surveying the law on the point rendered its decision on the aforesaid questions in the following manner:— (i) With regard to point No.1, the Hon’ble Supreme Court in paragraph 21 concluded as under:— “21. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as `founded’ on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid. (ii) With regard to point no. 2, the Hon’ble Supreme Court in paragraph No.31 concluded thus. “31. Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to Judge whether the words employed amount to stigma or not. (ii) With regard to point no. 2, the Hon’ble Supreme Court in paragraph No.31 concluded thus. “31. Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to Judge whether the words employed amount to stigma or not. Point 2 is decided accordingly.” (iii) So far as question No.3 is concerned, the same was answered by the Hon’ble Supreme Court in paragraph No.37 of the judgment, which reads as under. “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.” 12. From the law laid down in the case of Dipti Parkash Banerjee, (supra), it is amply clear that if the findings are arrived at in an inquiry as to misconduct behind the back of the officer and without regular departmental inquiry, the order of termination, which may appear to be innocuous on the face of it, is to be treated as founded on the allegations and therefore, would be vitiated in law. It is only if no inquiry is held and no findings with regard to the misconduct are recorded and a decision is taken not to continue the employee against whom there may be complaints, it would only be a case of motive and order would not be bad. Similarly, if the employer does not wish to inquire into the truth of allegations because of delay in regular departmental proceeding or otherwise and instead proceeds to discharge the probationer by an innocuous order of termination, in such circumstances, the allegations preceding the issuance of order of termination would only be motive and not foundation. Similarly with a view to determine as to whether the impugned order of termination which, on the face of it appears to be innocuous, is stigmatic or not, the Court may also look to the order or proceedings referred to in the order of termination and annexed therewith. 13. Similarly with a view to determine as to whether the impugned order of termination which, on the face of it appears to be innocuous, is stigmatic or not, the Court may also look to the order or proceedings referred to in the order of termination and annexed therewith. 13. The next judgment relied upon by learned counsel for the petitioner is in case of Ratnesh Kumar (supra) in which Supreme Court had occasion to resurvey the whole law on the point and after scanning through the several judgments passed by the Supreme Court on the issue from time to time concurred with the earlier view taken by the Supreme Court in the case of State Bank of India v. Palak Modi and others (2013) 3 SCC 607 wherein the Supreme Court had distinguished the judgment rendered in the case of Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences 2002(1) SCC 520 and in paragraphs Nos.27 and 28, summed up its conclusion thus:— “27. The case of Chandra Prakash Shahi v. State of U.P. and Others related to a constable who was on probation after successfully completing his training. The constable completed his period of probation without blemish. One year later, his services were terminated by issuance of a notice in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. An inquiry was held into the allegations of misconduct. The Court found as a fact that the inquiry was not held to judge the suitability of the constable but with a view to punish him. The order was held to be punitive and set aside. 28. Therefore, whenever a probationer challenges his termination the courts first task will be to apply the test of stigma or the form test. If the order survives this examination the substance of the termination will have to be found out.” 14. The judgments cited by the learned counsel for the petitioner including the latest on the issue rendered in the case of Ratnesh Kumar (supra) support the view I have taken hereinabove. 15. Reliance placed by the respondents on the judgment of the A.G. Benjamin (supra) is totally misplaced. It is not the case of the respondents that the show cause notice of proposed penalty followed an inquiry, which was preliminary in nature and in which no finding of misconduct were recorded by the disciplinary authority. 15. Reliance placed by the respondents on the judgment of the A.G. Benjamin (supra) is totally misplaced. It is not the case of the respondents that the show cause notice of proposed penalty followed an inquiry, which was preliminary in nature and in which no finding of misconduct were recorded by the disciplinary authority. I have already discussed the issue in detail hereinabove and have also reproduced the relevant extract of the show cause notice of proposed penalty, which clearly indicates that the show cause notice of proposed penalty was issued to the petitioner only after the disciplinary authority came to the conclusion that the act of petitioner remaining absent without proper permission/approval of the competent authority was serious misconduct entailing the imposition of major penalty as envisaged under Rule 34(h) of the modified standing orders. To the similar effect is the judgment of the Supreme Court rendered in Devendra Joshi and others (supra) where also the Supreme Court has clarified that in a case where only preliminary inquiry is conducted by the employer and a prima-facie finding of involvement of the employee in an act of misconduct, are recorded and the employer decides not to proceed further to hold detailed inquiry to prove the misconduct of the employee and instead decides to terminate the services during or at the end of probation by an order of termination simplicitor, such action cannot be termed to be punitive. In such situation, holds the Supreme Court, the misconduct would not be foundation for the order of termination. The dictum of the law laid down by the Supreme Court in the aforesaid case is not attracted in the case in hand. In the instant case, as noted above and is reiterated here, the disciplinary authority of Respondent Corporation had concluded the misconduct on the part of the petitioner and therefore, issued notice of proposed penalty of removal from service in terms of Rule 34(h) of the modified standing orders of the corporation. The other judgments relied upon by the respondents also do not advance his case in any manner. 16. Whether the allegations preceding the order of termination simplicitor passed during or on completion of probation of an employee is punitive and stigmatic or an order of termination/discharge simplicitor is a matter to be examined in the light of the facts and circumstances of each case. 16. Whether the allegations preceding the order of termination simplicitor passed during or on completion of probation of an employee is punitive and stigmatic or an order of termination/discharge simplicitor is a matter to be examined in the light of the facts and circumstances of each case. The judgments rendered by the Supreme Court on the point from time to time serve as guide to determination of this issue of fact. If, on examination of the whole record and the facts and circumstances of the case, the Court comes to the conclusion that the order of termination, which on the face of it appears to be innocuous, is, in essence, order of punishment and stigmatic, it would declare such order bad in law and by writ of Certiorari quash the same. With a view to arrive at just conclusion, it would be necessary for the Court to return a finding as to whether the allegations preceding the order of termination form the motive or foundation of order of termination passed during or at the end of probation of the employee. 17. Keeping in view the legal position adumbrated by the Supreme Court in the judgments referred to hereinabove, and in the given circumstances of the case in hand, I am of the considered view that the order impugned though it appears to be an order of termination simplicitor and innocuous in nature is, in essence, an order by way of punishment for the misconduct, attributed to the petitioner. The allegations of misconduct reference to which has been made in the show cause notice of proposed penalty published in the daily excelsior form the foundation of the order impugned and, therefore, cannot be treated to be motive. This is so because the impugned order of termination has followed the finding of misconduct recorded by the disciplinary authority and issuance of notice of proposed penalty of removal from the service in terms of Rule 34(h) of the modified standing orders. The plea of the learned counsel for the respondents that the order impugned should be taken to be an order passed in terms of clause 1.9 of the offer of appointment, is without any substance and therefore, cannot be accepted. Under Clause 1.9, the termination could be effected by one month advance notice from either side which in the instant case has not happened. Under Clause 1.9, the termination could be effected by one month advance notice from either side which in the instant case has not happened. The other stipulation in the clause 1.9, which provides for termination of services of probationer without assigning any cause, may be good if the discharge of the probationer is innocuous and is not founded on the allegation of misconduct. Otherwise also, such clauses in the contract of employment giving powers to the employer to terminate the services of its employee without assigning reasons is unconscionable and abhor rule of law, but, as held above, this clause has to be read in the context of the powers of the employer to discharge the probationer by passing an order, which is not punitive or stigmatic, but, an innocuous order of termination simplicitor. 18. It would not be fair if I do not deal with the preliminary objection to the maintainability of writ petition taken by the learned counsel for the respondents, even though this question has been raised for the first time during the course of arguments. This petition was admitted on 13.02.2002 and the respondents were granted time to file the counter- affidavit. Neither at the time admission nor thereafter, this objection has been taken. This petition is now pending for the last 16 years and therefore, it would be totally unfair at this stage to relegate the petitioner to the alternative remedy under the Industrial Disputes Act even if the plea of the respondents is found to have substance. That apart, in the instant case, the order impugned has been found to be in violation of principle of natural justice and therefore availability of efficacious remedy would not be a ground to refuse the writs prayed for in this petition. (See-Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, reported in (1998) 8 SCC 1 . 19. For the foregoing reasons and discussions made above, I find merit in this petition. The same is, accordingly, allowed. The order impugned is quashed. The petitioner shall be reinstated in service forthwith and shall be entitled to all consequential benefits. However, for the payment of arrears of back wages, the respondents are free to hold an inquiry to find out as to whether during the period of her ouster, the petitioner was gainfully employed or not. The order impugned is quashed. The petitioner shall be reinstated in service forthwith and shall be entitled to all consequential benefits. However, for the payment of arrears of back wages, the respondents are free to hold an inquiry to find out as to whether during the period of her ouster, the petitioner was gainfully employed or not. In case, it is found that the petitioner was gainfully employed during the period of her ouster, she may not be entitled to any back wages. It may also be clarified that the quashment of order impugned would not come in the way of the respondents to hold an inquiry into the alleged misconduct of the petitioner and take appropriate action as envisaged under modified standing orders or other enabling Rules. Should the respondents decide to take disciplinary action against the petitioner for the alleged misconduct, it shall also be permissible for the respondents to even place the petitioner under suspension during the pendency of such inquiry if same is otherwise permissible under the modified standing orders and the service rules governing the petitioner. 20. Disposed of as above along with connected CM(s).