A service of probationer can be terminated simplicitor, even if there are certain allegations of misconduct - if the allegations are not the basis for termination; SC.

Supreme Court of India

Chief Justice S A Bobde, Justice B R Gavai and Justice Surya Kant

The SC {Rajasthan High Court v. Ved Priya & Anr.} holds that it may not be true that just because there existed on record some allegations of extraneous considerations that the High Court was precluded   from terminating the services   of Respondent No.1   in   a simplicitor   manner   while   he   was on   probation. It was held that the unsatisfactory performance of a probationer and resultant dispensation of service at the end of the probation period, may not necessarily be impacted by the fact that   meanwhile   there   were   some   complaints   attributing   specific misconduct, malfeasance or misbehavior to the probationer. It was held that if the genesis of the order of termination of service lies in a 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 simplicitor order of termination, in fact, intends to punish the probationer without establishing the charge(s) by way of an enquiry. However, it was held that 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.

Further held since respondent No.1 has 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. Independently also, it was held that the foundation was the allegations but it was based upon a holistic assessment of the respondent’s service record. It was further held that even taking an effects-­based approach, the   order   of   non-­confirmation   or   the   preceding circumstances   would   prejudice   the   respondent, meriting   a   higher procedural requirement.

The present case is one where the first      respondent  was a probationer and not a substantive appointee. The High Court had allowed the writ petition filed by Ved Priya (Respondent No. 1 – a former judicial officer) and directed his reinstatement with consequential benefits and seniority. The said judgment and reinstatement was set aside by the SC.