JUDGMENT : Ramesh Sinha, C.J. 1.Challenge in this writ appeal is to order dated 01.11.2022 passed by learned Single Judge in Writ Petition (S) No.106 of 2020 whereby writ petition filed by the petitioner/appellant against order of his removal from service passed by the District & Sessions Judge, Durg has been dismissed. 2.Facts relevant for disposal of this writ appeal are that petitioner/appellant was appointed as Stenographer (Hindi) vide order dated 20.03.2018 in the Court of District and Sessions Judge, Durg along with other 11 candidates. It is the case of the appellant that Presiding Officer of Court of 3rd Civil Judge, Class- I Durg where the appellant was sent to discharge his duties has misbehaved with him on 30.01.2019, therefore, a complaint was made to the District Judge, Durg. District and Sessions Judge, Durg issued memo dated 05.08.2019 alleging that the petitioner/appellant has directly sent the photocopy of the complaint dated 01.02.2019 before the Registry of Hon’ble High Court of Chhattisgarh, which is misconduct as defined in Rule 3(3)(d)(x) of the Chhattisgarh Civil Services (Conduct Rules),1965 and punishable under Rule 10 of the Chhattisgarh Civil Services (Classification,Control and Appeal) Rules, 1966. Thereafter, a show cause notice dated 05.08.2019 was issued to the petitioner/appellant to explain within 3 days to which appellant submitted reply on 07.08.2019 stating that he has not made correspondence with the Registrar General of the High Court. Thereafter, the learned District Judge, Durg vide memo dated 27.08.2019 directed the appellant to explain as to how his complaint has been sent to the Registrar General and explain who has sent the complaint directly, otherwise it will be presumed that it has been sent by the petitioner/appellant only. The petitioner/appellant could not submit reply, therefore, a show cause notice was issued on 25.11.2019 why his services may not be terminated with immediate effect. The petitioner/appellant submitted reply to the memo of the District and Sessions Judge, Durg vide its letter dated 27.11.2019 explaining that the office bearer of the Employee’s Union has sought copy of the complaint from the petitioner, one of the Union leader has taken photo of the same and posted the same in WhatsApp group without his knowledge and permission. Thereafter, the print out of the complaint has been submitted before the Registrar General of the High Court. He was not involved in sending the complaint directly to the Registrar General. Thereafter, the print out of the complaint has been submitted before the Registrar General of the High Court. He was not involved in sending the complaint directly to the Registrar General. In support of his submissions, he has submitted affidavit and prayed that the proceedings be kindly closed. The Additional District Judge, Durg again sought clarification vide memo dated 05.12.2019 that the explanation given by him is not satisfactory, therefore, the petitioner/appellant has again submitted reply which was pending consideration. In the meantime, the impugned order dated 24.12.2019 has been issued by the District and Sessions Judge, Durg removing the petitioner/appellant from services on the ground that the services of the petitioner are not required and one month's salary has been paid to him. 3.The petitioner has filed the writ petition assailing the order of removal on the ground that without inquiry he has been removed which is in violation of Article 311 of the Constitution of India and prayed for reinstatement with full back wages. The learned Single Judge vide its order dated 01.11.2022 has dismissed the writ petition filed by the petitioner/appellant holding that “considering the entire facts and circumstances of the case and law on the subject, it is quite vivid that the petitioner is on probation and probationer’s services can be terminated if it is not required in view of the law laid down by the Hon’ble Supreme Court”. 4.Learned counsel for the appellant submits that from perusal of the records it is apparent that District Judge issued many show cause notices to the petitioner/appellant and the petitioner/appellant throughout denied the allegation levelled against him in the notices. However, suddenly without proper inquiry in the matter, appellant was removed from service which is stigmatic and punitive in nature. Order of removal is issued without subjecting the appellant to a regular inquiry in accordance with law. In support of his submission, he placed reliance upon the decision in the case of Chandra Prakash Shahi Vs. State of Uttar Pradesh & Ors. (2000) 5 SCC 152 . 5.Learned counsel for respondents have opposed the submissions made by learned counsel for the appellant and would submit that order or removal is not stigmatic or punitive in nature. The appellant was on probation and, therefore, he was removed from service with one month’s salary. State of Uttar Pradesh & Ors. (2000) 5 SCC 152 . 5.Learned counsel for respondents have opposed the submissions made by learned counsel for the appellant and would submit that order or removal is not stigmatic or punitive in nature. The appellant was on probation and, therefore, he was removed from service with one month’s salary. There is no illegality or infirmity in the order passed by learned Single Judge warranting interference in this writ appeal. 6.We have considered the rival submissions made by learned counsel for the parties and perused the documents annexed along with writ petition as also writ appeal. Operating part of the order whereby the appellant has been removed from services is reproduced hereunder:- ^^----------LVsuksxzkQj ¼fgUnh½ ds in ij inLFk Jh fM’ku flag Mgfj;k ifjoh{kk/khu orZeku inLFkkiuk LVsuksxzkQj U;k;ky; "kksM’k O;ogkj U;k;k/kh’k oxZ&2 nqxZ dh lsokvksa dh vkxs vko’;drk u gksus ls vkns’k fnukad 24-12-2019 ds vijkUg Ik’pkr~ ls lekIr dh tkdj] mls lsokeqDr fd;k tkrk gS A------------------ 7.Perusal of the documents enclosed along with writ petition would show that petitioner/appellant was appointed on the post of Stenographer (Hindi) vide order of appointment dated on 20.03.2018 on vacant post by a Committee constituted for making such appointment. The appointment order is placed on record in writ petition as Annexure P-2. 8.Appointment of the petitioner/appellant along with 11 others is on probation for a period of 2 years. From the nature of appointment of the appellant as is reflecting from Annexure P-2 it is appearing that the appellant was not appointed on temporary basis or for limited period. The nature of appointment of the appellant is on regular basis subject to his confirmation upon satisfactory completion of probation period and, therefore, in the opinion of this Court appellant who has been appointed on the vacant and sanctioned post following due process of appointment by the competent authority could not be removed by mentioning that “his services are not required”. 9.Appellant/petitioner has also placed on record documents along with writ petition, the notices issued by respondent No.2 seeking explanation on the allegations mentioned therein i.e. 05.08.2019, 27.08.2019, 25.11.2019 and 05.12.2019. Appellant also submitted explanation to the aforementioned notices and have also submitted reply. 9.Appellant/petitioner has also placed on record documents along with writ petition, the notices issued by respondent No.2 seeking explanation on the allegations mentioned therein i.e. 05.08.2019, 27.08.2019, 25.11.2019 and 05.12.2019. Appellant also submitted explanation to the aforementioned notices and have also submitted reply. Contents of the notice further reveal that the charges mentioned in the notice is that he has committed misconduct by his acts, and in another notice while leveling charge it is further mentioned to submit reply within three days as to why his services should not be terminated with immediate effect. 10.In the aforementioned facts of the case and the documents available in record which is issued by respondent No.2 seeking explanation from appellant would show that even otherwise removal of the appellant is not simpliciter but on certain allegations. 11.Hon’ble Supreme Court in the case of Chandra Prakash Shahi (supra) has considered the protection of Article 311 (2) of the Constitution of India to temporary employee as also to probationer and observed thus:- “26. In Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd., which related to a probationer, the whole legal position was reviewed by Brother M. Jagannadha Rao, J., in an illuminating and research- oriented judgment and after considering various decisions including the decision in Kaushal Kishore Shukla's case (supra) and a still later decision in Commissioner of Food & Civil Supplies, Lucknow, U.P. vs. Prakash Chandra Saxena, so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laying down the "Motive" and "Foundation" theory. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. Benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to a probationer and the court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated.” 12.Respondent No.2/employer ought not to have passed such an order in contravention of the provision under Article 311 (2) of the Constitution of India, instead they could have considered the candidature of the appellant at the time of his confirmation considering his overall performance or if required ought to have initiated the inquiry proceedings providing opportunity to defend allegation/charges in accordance with law. 13.For the foregoing discussions, in the opinion of this Court, the removal of the appellant only mentioning that “his services are not required” in the facts of the case where certain allegations are levelled, is not sustainable. 14.The learned Single Judge has relied upon the decision in the case of Rajasthan High Court Vs. Ved Priya and Anr. [ AIR 2020 SC 2811 : (2021) 13 SCC 151 ]. In the aforementioned decision Hon’ble Supreme Court in para-24 has also observed that “if the genesis of order of termination of service lies in specific act of misconduct, regardless of over all satisfactory performance of duties during the probation period, the Court will be well within its reach to unmask the hidden cause and hold that the simpliciter order of termination, in fact, intends to punish the probationer without establishing the charge (s) by way of an enquiry. However, when the employer does not pickup a specific instance and forms his opinion on the basis of over all performance during the period of probation, the theory of action being punitive in nature, will not be attracted . Onus would thus lie on the probationer to prove that the action taken against him was of punitive characteristics”. However, when the employer does not pickup a specific instance and forms his opinion on the basis of over all performance during the period of probation, the theory of action being punitive in nature, will not be attracted . Onus would thus lie on the probationer to prove that the action taken against him was of punitive characteristics”. 15.In the aforementioned decision, respondents therein who were initially appointed as Judicial Officer along with others, at the time of considering the candidature of those Judicial Officers for confirmation the High Court after taking into consideration the overall performance and the other requirement of a Judicial Officer under the service rules have confirmed services of ninety Judicial Officers, extended probation of one, two Judicial Officers who were before the Court were not confirmed and they were discharged. It is in that facts of the case, Hon’ble Supreme Court has held that the respondents therein failed to establish that the High Court intended or has actually punished him for any defined misconduct, it stands crystallized that the object of the High Court on the administrative side was to verify the suitability and not enquire into the allegations against the first respondent. Hon’ble Supreme Court did no find that the foundation was the allegations but it was based upon a holistic assessment of the respondent’s service records. 16.Facts of the case in hand is different. In the case at hand, the appellant was appointed on probation and he was removed from service only observing that “his services are not required”. Before passing the order of removal several notices were issued by respondent No.2 levelling allegation, explanation was sought on more than once and in last notice, it is also mentioned as to why his services be not terminated. It is not a case that the appellant’s services were not confirmed at the time of evaluation of his suitability for confirming him on the post he was appointed on probation after considering the overall performance of the appellant. 17.For the foregoing discussions, we find it difficult to uphold the order/judgment of learned Single Judge and it is accordingly set aside. 18.This takes us to consider the prayer of the appellant for grant of back wages. 17.For the foregoing discussions, we find it difficult to uphold the order/judgment of learned Single Judge and it is accordingly set aside. 18.This takes us to consider the prayer of the appellant for grant of back wages. 19.Perusal of the writ petition would show that the petitioner/appellant has not specifically pleaded that he is not gainfully employed or is employed on less wages than that which he was being paid during his employment under respondent No.2 However, once we held that removal of the appellant from service is contrary to the law we find it appropriate to consider the claim of appellant for grant of back wages. Hon’ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. (2013) 10 SCC 324 , while considering the grant of back wages to the employee has observed thus:- “38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.5. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.5. The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always keep in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. ” 20.Hon’ble Supreme Court in the case of Pradeep s/o Rajkumar Jain Vs. Manganese Ore (India) Ltd. & Ors. (2022) 3 SCC 683 , considering the claim of back wages, has observed thus:- “12. It is, undoubtedly, true when the question arises as to whether the backwages is to be given and as to what is to be the extent of backwages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase. In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court.” 21.Considering the facts and circumstances of the case and the decision of Hon’ble Supreme Court in the cases of Deepali Gundu Surwase (supra) and Pradeep s/o Rajkumar Jain (supra), we hold that the appellant is entitled to get 50% of back wages. 22.Accordingly, writ appeal is allowed. Respondent No.2 is directed to reinstate the appellant in service with 50% back wages. However, respondent No.2 will be at liberty to initiate proceedings against the appellant in accordance with law.