JUDGMENT : A.J. SHASTRI, J. 1. The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking the following reliefs: “(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the termination order dtd.3.8.2009 passed by the management as also the order dtd.15.1.2014 passed by the Secondary Education Tribunal in Application No.143/2009 upholding the order of termination and further be pleased to direct the Management to reinstate the petitioner on his original post with continuity of service and with full back wages; (B) Pending admission, hearing and final disposal of this Writ Petition, Your Lordships may be pleased to direct the respondents to decide the representation at the earliest and place the orders before this Hon’ble Court; (C) Be pleased to pass such other and further relief as may be deemed just and proper by Your Lordships in the facts and circumstances of the case.” 2. The factual background upon which the present petition is submitted is that petitioner was initially appointed in Primary School at Sadesar, Tal.Una, for a period of commencing from 11.01.1983 to 31.12.1991. Subsequently, he was appointed in Secondary School at Fastar from 01.01.1992 to 26.04.1996 and later on was appointed to the post of Principal in the same school with effect from 27.04.1996. The petitioner worked there upto 23.02.2004 and thereafter was appointed as a Principal in M.S.Sanghvi Vidyalaya run by respondent No.1 trust with effect from 24.02.2004 without any break. During the entire span of service, petitioner has not received any memo or notice with regard to his working as Principal. On the contrary, his work is appreciated not only by Management but by the villagers, parents and the students as well and on account of petitioner’s efforts, the standard of education and result of examination has been uplifted to the substantial extent. On the contrary, his work is appreciated not only by Management but by the villagers, parents and the students as well and on account of petitioner’s efforts, the standard of education and result of examination has been uplifted to the substantial extent. 2.1 It is further the case of the petitioner that at the time of appointment as Principal in the respondent school, no period of probation was prescribed, however, on account of an issue relating to increase of fees, confrontation took place with the management since the petitioner had requested the management that area in which institution is functioning, stiff rise in the student fees would not be in the interest of institution at large but then since the petitioner has objected the desire intent of the management for increase of fees written on 06.05.2005 that period of probation was extended upto 23.05.2005. Subsequently, by another letter dated 18.08.2005, a further extension of period has taken place and the management started with confrontation approach with the petitioner. Subsequently the management issued a show cause notice on 19.12.2005 including certain serious allegations against the petitioner and indicated as to why the services of the petitioner shall not be terminated. The petitioner requested the management to supply certain documents but instead of supplying documents again before petitioner could reply, another letter on 02.01.2006 in the month of Show Cause Notice came tobe issued under Section 36(1) of the Gujarat Secondary Education Act. Later on, on 10.01.2006 the petitioner replied again requesting to supply documents with regard to work which the petitioner has undertaken but then without appreciating anything, with an intent to terminate services, yet another notice was issued on 20.01.2006. On knowing this rift which has been created, even the village people also intervened the parents and students have also requested and represented management in writing that petitioner does not deserve such kind of treatment but as usual management wrote a letter to District Education Officer for seeking the approval to terminate services but even the District Education Officer did not find any sufficient material to grant approval. Resultantly, vide letter dated 22.02.2006, the request of management came to be rejected. Resultantly, vide letter dated 22.02.2006, the request of management came to be rejected. 2.2 It is further the case of the petitioner that feeling aggrieved by the said decision of the District Education Officer, the Management preferred an appeal before the Gujarat Secondary Education Tribunal bearing Appeal No.2 of 2006 but then by brief order, appeal came to be allowed and the order of District Education Officer dated 22.02.2006 came to be quashed and set aside. However, while passing this order, the Tribunal found at that stage in para:9 that since there is no termination order passed by the Management, it would be futile exercise for tribunal to examine the action of management as to whether termination amounts to simplicitor or punitive. But as usual by asserting that Tribunal has granted approval straightway within a period of few days from the date of disposal of the Tribunal’s appeal on 03.08.2009, an order came to be passed by asserting that on account of unsatisfactory work, the petitioner services can terminate with immediate effect. It is this order which is the subject matter of proceedings initiated by the petitioner before the Tribunal. Unfortunately, the Tribunal vide order dated 15.01.2014 dismissed the application preferred by the petitioner. As a result of this, left with no alternative, the petitioner constrained to approach this Court by way of present petition. 3. With the background of aforesaid factual matrix, the petitioner came to be entertained which has come up for final disposal before this Court. 4. Ms.Mamta Vyas, learned advocate appearing on behalf of petitioner has vehemently contended that the foundation of termination order is based upon serious allegations attributed against the petitioner and, therefore, without holding regular departmental inquiry or granting appropriate opportunity to defend the petitioner, no order of termination with immediate effect can be passed. Ms.Vyas, learned advocate has submitted that even in a case of probation order assuming without admitting that petitioner is probationer still, however, if this kind of background on which termination is to take place the opportunity and the procedure of inquiry will have to be undertaken which is undisputedly not undertaken hence the order is required to be quashed and set aside. 4.1 Learned tribunal ought to have been appreciated the fact that earlier order of District Education Officer dated 22.02.2006 is not in terms rejecting the approval but the District Education Officer has found no sufficient material to extend the approval and the said order which has been examined by the tribunal, the tribunal has never granted specific approval to terminate services. On the contrary, a conclusion is arrived at that there is no order of termination whether it is based on punitive action or simplicitor not possible to be assumed. Unfortunately, after disposal of the appeal of the management by the tribunal within a few days termination took place with immediate effect which is nothing but a clear example of mala fide exercise of powers and based upon complete misreading of order passed by the tribunal as well. 4.2 Ms.Vyas, learned advocate further submitted that the main base of action against the petitioner is a serious allegation which is reflecting in first notice dated 19.02.2005 and if this be the foundation even if it is not reflecting in the order of termination, the said order cannot be branded as termination simplicitor because the background preceding to such termination is serious allegation and clout against the petitioner. Learned advocate has further submitted that under Regulation 22 of the Gujarat Secondary Education Regulation, maximum period of probation was not exceed beyond two years and here is a case in which the appointment of the petitioner as Principal was of the year 2004 onwards till 2009, much beyond the period of two years. So long the subject is if the maximum period is over than the same amounts tobe deemed confirmation. When that be so, when the status of the petitioner is not remained as probationer then to terminate the services of the confirmed employee, the procedure which has been established by statute will have to be undertaken and that has undisputedly been done. 4.3 Ms.Vyas, learned advocate has further submitted that in this peculiar background of facts since the order of termination is based upon no opportunity to the petitioner based upon no reasons and based upon stigma to the petitioner, a bare minimum opportunity could have been given. Having not don so, action is nothing but a nullity. 4.3 Ms.Vyas, learned advocate has further submitted that in this peculiar background of facts since the order of termination is based upon no opportunity to the petitioner based upon no reasons and based upon stigma to the petitioner, a bare minimum opportunity could have been given. Having not don so, action is nothing but a nullity. For the purpose of substantiating the stand, learned advocate Ms.Vyas has relied upon few decisions delivered by this Court as well as by the Apex Court which are reproduced herein after. (i) State Bank of India vs. Palak Modi, (2013) 3 SCC 607 ; (ii) a decision dated 26.08.2015 passed in Special Civil Application No.7099 of 2002; (iii) a decision dated 05.09.2018 passed in Special Civil Application No.889 of 2018 and after relying upon aforesaid decision, a contention is raised that in no case order is sustainable under eye of law. Accordingly relief prayed for in the petition deserves to be granted. 5. To meet with the stand taken by learned advocate for the petitioner, Ms.Vashi, learned advocate appearing on behalf of Mr.V.H.Desai, learned advocate for contesting respondent has submitted that an appointment of petitioner was based upon probation and was not stigmatised in any manner. It is settled law that probationer service can be terminated simplicitor and here is a case in which after disposal of appeal before the tribunal the order which has been passed reflects that this is simply case of termination and non-extension of probationer which would not confer any right to continue. Learned advocate has further submitted that there is no concept of deemed confirmation in view of the fact that when the resolution came to be passed by the management, the foundation was very much made it clear that period of probation was not to be extended and that took place within a period of two years on the date of appointment and as such simply because on account of litigation gamut, the petitioner has not taken decision to terminate, the same cannot be treated as deemed confirmation and as such there is no question of extending any opportunity to the petitioner. Ms.Vashi, learned advocate has further submitted that, in any case, the foundation and motive are two distinct features while exercising powers. Ms.Vashi, learned advocate has further submitted that, in any case, the foundation and motive are two distinct features while exercising powers. Now here the foundation is not allegations which have been made in the first notice and the same cannot be interlinked with ultimate action of termination. When that be so, there is hardly any justification in favour of petitioner to treat this order as punitive. There are several letters written by the management to improve the work to the petitioner and those letters were related to work within a period of probation and as such simplicitor termination on unsatisfactory work is always be open for the management who is the appointing authority and as such there is no irregularity in any manner. On the contrary, the tribunal’s order was not challenged by the petitioner which has granted indirect approval to the action of the management. When that be so, there is hardly any point available for the petitioner to assail the order. The findings arrived at by the tribunal cannot be said to be perverse in any form and hence no relief as prayed for be granted in the interest of justice. No other submissions have been made. 6. Having heard learned advocates appearing for the parties and having gone through the material on record, prima facie, it suggests that it is the rift between the petitioner and the management which has ultimately led this situation of termination. If the first notice which is at page:30 dated 19.12.2005 is to be read there are serious allegations levelled against the petitioner, three-fold in numbers i.e. (i) that certain serious allegations of the conduct in which the petitioner is involved is inferred by the management; (ii) secondly on account of no proper teaching by the petitioner, the result of the school has gone down, (iii) when petitioner is not having amicable relations with other staff members and (iv) whenever a request is made to improve the work, no such suggestions are accepted. So these are basic allegations upon which the petitioner was dealt with by the management. So these are basic allegations upon which the petitioner was dealt with by the management. The reply which has been submitted has clarified the stand that on the contrary results have improved time and again, the work of the petitioner was appreciated, for which the service have also been awaited and, therefore, there was no just reason to terminate the services and there appears to be an appreciation letter also which are part of the record. 6.1 Yet another circumstance which has to be considered is the chronology of event which took place preceding the date of termination. On 22.02.2016, on the basis of examination of proposal of management to proceed against the petitioner, the District Education Officer/Administrative Officer has applied his mind and found that material which has been placed is not correct and, therefore, the proposal forwarded by the management was not accepted. Now this order dated 22.02.2016 is made the subject matter of Appeal No.2 of 2006 wherein while disposing of the appeal, it appears that the jurisdiction is not examined to test whether order is simplicitor or punitive. Para:9 of the operative part deserves to be quoted herein after. “9. From the discussion made hereinabvoe and in view of the judgment of Hon’ble Gujarat High Court referred hereinabove, it becomes abundantly clear that for termination of probationer’s services simplicitor approval from the D.E.O./Authorised officer u/s.36 of the Act is not required to be obtained because the probationer is a person who is not appointed on permanent basis and his services are temporary till the confirmation by specific order. In view of this position, the impugned order passed by the D.E.O. pales into insignificance and deserves to be declared as ineffective and it shall not come in the way of the appellant. As this matter is being disposed of only on the point about applicability of Sec.36 in the case of termination of probationer’s services simplicitor, I have not gone into the merits of the management’s decision. There is no order of termination passed by the management hence it would be futile exercise for this forum to examine whether the action of management is “simplicitor” or “punitive”. 10. In the result and for the foregoing reasons, the order of the D.E.O. dt.22.2.06 is declared as non-est in the eye of law which shall not come in the way of appellant in passing the order. 10. In the result and for the foregoing reasons, the order of the D.E.O. dt.22.2.06 is declared as non-est in the eye of law which shall not come in the way of appellant in passing the order. This appeal is accordingly disposed of. No order as to costs. At this stage, L.A. Mr.H.V.Pujara submits that the impugned judgment and order may be kept in abeyance for 2 weeks. In the facts and circumstances of the case, the request is negatived.” 6.2 Now, this observation has clearly stipulated that tribunal has not gone into merits of the management decision and found that there is no order of termination. Hence, it would be futile exercise for the forum i.e. Tribunal to examine whether action is simplicitor punitive and, therefore, tribunal has not opined anything about the action of management just in absence of order of termination, the District Education Officer order was set aside. That order has been passed on 28.07.1990 and within couple of days, taking advantage of disposal of appeal, this impugned order is passed on 03.08.2009 as if the Tribunal has granted approval to the management action. This appears to be a clear misreading of the tribunal’s order and the sequence of events which has taken place is indicating that background and the foundation of action is unsuitability of the petitioner and as such this impugned order has been passed absolutely in clear violation of principles of natural justice without there being any opportunity to the petitioner the services could not have been put an end to just by taking advantage of dismissal of appeal which has not granted any expressed approval under the management. 6.3 Yet another circumstance which deserves consideration is that the first notice dated 19.12.2005 reflects a serious attribution upon the petitioner, second notice has got reference of earlier notice which involves serious allegations against the petitioner and simultaneously the material placed before District Education Officer for seeking approval was not found with much satisfactory which may permit the District Education Officer to grant the approval and if this event to be looked into with the operative part of the order of the tribunal, it tantamount to be an action without any base, without any authority. Undisputedly, the petitioner continued in the service right from 2004 to 2009 because the petitioner was appointed on 24.02.2004 and terminated on 03.08.2009 nothing prevented the management to terminate the service and has allowed the period to pass on more than two years and therefore simply because resolution was passed that would not sufficient enough for the management to treat the period of more than two years which is travelling maximum period of two years as contemplated under Regulation 22. Therefore, even if concept of deemed confirmation is not to be applied then also irrespective of it, foundation of termination is having background of serious attribution and conduct of the petitioner which has been alleged for which if the lifting of veil principle is applied, it would quite clear that it is not the termination simplicitor. There were certain serious allegations levelled in the memo and notice too having misappropriation, unsatisfactory work etc. when that be so, an employee cannot be shunted off without giving any opportunity because stigma is attached to the termination though it has not been mentioned. The background preceding the order of termination is not possible to be overlooked as is made the foundation. Hence, it is erroneous on the part of the tribunal to treat earlier disposal as approval to the action of management and to show that order is based on no allegations. The base has certainly been the background of initial notice itself i.e. 19.12.2005 and proceedings onwards when that be so this order is not possible to be treated as simplicitor termination. 6.4 Even the issue of almost similar nature has been dealt with earlier by the tribunal in application no.123 of 2009 decided on 30.09.2013, however, irrespective of the fact that having not followed the lawful process against the petitioner since serious attribution, these allegations are intervoven in the order of termination. This circumstance cannot be overlooked by this Court while arriving at the conclusion. The judgment which has been delivered by Apex Court in the case of State Bank of India vs. Palak Modi, (2013) 3 SCC 607 , the relevant observations about foundation in the order of termination requires some elements of opportunity to be obsrved. Hence, the Court while considering the same, has taken an advantage of these observations while deciding the present issue. Hence, relevant observations contained in paras:36 and 37 are reproduced hereinafter. “36. Hence, the Court while considering the same, has taken an advantage of these observations while deciding the present issue. Hence, relevant observations contained in paras:36 and 37 are reproduced hereinafter. “36. There is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Bank’s right to punish a probationer for any defined misconduct, misbehaviour or misdemeanour. In a given case, the competent authority may, while deciding the issue of suitability of the probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct / misdemeanour constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non-stigmatic order, the Court can lift the veil and declare that in the garb of termination simplicitor, the employer has punished the employee for an act of misconduct. 37.The use of unfair means in the evaluation test/confirmation test held by the Bank certainly constitutes a misconduct. The Bank itself had treated such an act to be a misconduct (Para 10 of Advertisement dated 1-7-2008). It is not in dispute that the services of the private respondents were not terminated on the ground that there was any deficiency or shortcoming in their work or performance during probation or that they had failed to satisfactorily compete the training or had failed to secure the qualifying marks in the test held on 27-2-2011. As a matter of fact, the note prepared by the Deputy General Manager makes it crystal clear that the decision to dispense with the services of the private respondents was taken solely on the ground that they were guilty of using unfair means in the test held on 27-2-2011. To put it differently, the foundation of the action taken by the General Manager was the accusation that while appearing in the objective test, the private respondents had resorted to copying. IBPS had relied upon the analysis made by the computer and sent a report to the Bank that 18 candidates were suspected to have used unfair means. To put it differently, the foundation of the action taken by the General Manager was the accusation that while appearing in the objective test, the private respondents had resorted to copying. IBPS had relied upon the analysis made by the computer and sent a report to the Bank that 18 candidates were suspected to have used unfair means. The authority concerned then sent for the chart of seating arrangement and treated the same as a piece of evidence for coming to the conclusion that the private respondents had indeed used unfair means in the examination. This exercise was not preceded by an inquiry involving the private respondents and no opportunity was given to them to defend themselves against the charge of use of unfair means. In other words, they were condemned unheard which, in our considered view, was legally impermissible.” 6.5 Yet another decision which is decided by the coordinate Bench of this Court on 26.08.2015 in case of Nutan Kelavni Trust vs. Govind Ram Joshi in case of Special Civil Application No.7099 of 2002 wherein also after considering several decisions, the Court found that if the background behind the termination is arbitrary then opportunity to the concerned employee even if probationer deserves to be granted. Relevant observations contained in the said decision since considered by this Court are observed hereinafter. “17. In the case of V.P. Ahuja vs. State of Punjab and others (supra), the Apex Court has held that the protection against arbitrary termination of a probationer needs deeper scrutiny. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily or punitively without complying with the principles of natural justice. 35. As discussed from the law on the subject hereinabove, the services of the probationer could be terminated without mentioning anything more in the order of termination and the same may not amount to punishment. However, before the probationer is confirmed, the authority is required to consider whether his work is satisfactory and whether he is suitable for the post or not. If the facts and circumstances of the case indicate that the substance of the order of termination is by way of punishment, the Court can go behind the formal order of discharge to find out the role and cause of action. If the facts and circumstances of the case indicate that the substance of the order of termination is by way of punishment, the Court can go behind the formal order of discharge to find out the role and cause of action. The order of discharge of probationer, on the ground of unsuitability if otherwise is found to be based upon facts indicating commission of alleged misconduct, the order would be surely punitive in nature.” 6.6 A further decision delivered by learned Single Judge of this Court dated 05.09.2018 in Special Civil Application No.889 of 2018 in which also the relevant observations about the same issue contained in para:5.3 deserves consideration and hence the same is referred to herein after: “5.3 All the aforesaid principles squarely apply in facts of the case of the present petitioner. The decision in Manishbhai Nayanbhai Mod (supra) came to be confirmed by the Division Bench in Letters Patent Appeal No.189 of 2018 decided on 20th February, 2018. In addition to the other reasoning endorsed to by the Division Bench, the following was also stated which stands in complete answer to the contentions raised on behalf of the respondents. “4.1 ... ... ... As a necessary corollary, when there is a breach of procedure of instituting full-fledged departmental inquiry, particularly, when termination order referred to following of Gujarat Civil Services [Discipline & Appeal] Rules, 1971, the issuance of show cause notice, receiving reply and then to take final decision to terminate services of an employee was unjust, unreasonable, arbitrary, in breach of the Rules, 1971, violative of principles of natural justice and Article 14 of the Constitution as it would not make any difference whether the employee was appointed temporarily for a fixed term on a fixed salary incorporating various conditions.” In wake of the aforesaid circumstances which are prevailing on record, this Court is of the opinion that conclusion arrived at by the learned tribunal is not only unjust but perverse to the record. On the contrary, the reasons which are mentioned are not well supported by the record but even though there is a reference about the serious allegations surprisingly tribunal found that letters and memos constitute mere motive of termination and not the foundation. On the contrary, tribunal appears to have refrained from examining the issue though having jurisdiction. Hence, this material irregularity of exercising jurisdiction deserves to be interfered with. On the contrary, tribunal appears to have refrained from examining the issue though having jurisdiction. Hence, this material irregularity of exercising jurisdiction deserves to be interfered with. Accordingly, the order of tribunal is not just and proper, not in consonance with the propositions of law laid down on the issue as stated herein above and since the action of management is per-se found to be illegal, this Court is inclined to grant relief as prayed for in the petition. 7. Accordingly, the petition deserves to be allowed. However, while granting relief of reinstatement, since the conduct of the petitioner is under clout prior to termination, reinstatement is ordered with 50% back wages. Since the petitioner has actually not worked during the interregnum period and, therefore, from peculiar background and circumstance of this case, the Court has deviated from general principle of granting 100% backwages. Accordingly, the impugned orders are quashed and set aside and the petitioner is ordered to be reinstated in service with 50% backwages and the same shall be paid within a period of eight weeks from the date of receipt of writ of this Court. The petition is accordingly partly allowed, to the aforesaid extent. 8. In view of the judgment and order passed today in the main matter, the Civil Application does not survive and it is disposed of accordingly.