Jitendriya Mohanty Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.5191 of 2024

An application under Articles 226 & 227 of the Constitution of India

Jitendriya Mohanty . Petitioner Represented By Adv. Mr.Subir Palit, Senior Advocate with Mr. Niranjan Nayak, Advocate.

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-versus-

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. State of Odisha and Another Opposite Parties Represented By Adv. Mr. Jayant Kumar Bal, AGA (For O.P. No.1) Mr. Ashok Mohanty, Senior Advocate along with Mr.G.P. Dutta, Advocate (For O.P. No.2)

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CORAM:

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THE HON’BLE MR. JUSTICE A.K.MOHAPATRA

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Date of hearing : 21.04.2025 | Date of Judgment : 28.07.2025

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A.K. Mohapatra, J. :

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1. The present Writ Petition has been filed with a prayer to quash the impugned order No.5190 dated 02.03.2024, under Annexure-6 to the Writ Petition and the impugned advertisement dated 03.03.2024, under Annexure-7 to the present Writ Petition. Along with a further prayer to direct the Opposite Parties, particularly Opposite Party No.2 to allow the Petitioner to continue as the Company Secretary in the “Odisha Police

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Housing & Welfare Corporation Ltd.” And extend all consequential service benefits as are due and admissible to the Petitioner.

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FACTS

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2. A concise overview of the facts leading to the filing of the present Writ Petition is as follows; initially, the Odisha State Police Housing & Welfare Corporation Ltd. (herein referred to as “the Corporation”) floated an online advertisement dated 10.07.2023, a copy of which has been attached as Annexure-1 to the present Writ Petition, inviting prospective applications for appointment to the sanctioned regular post of Company Secretary, with 14.08.2023 fixed as the last date for applying to the said post. Following such advertisement, the Petitioner sent his application dated 03.08.2023, under Annexure-2. After the Petitioner had submitted his application, he received a letter No.l1776/OPHWC dated 24.08.2023, under Annexure-3 to the present Writ Petition, issued by the DGM (Admn.), requesting him (the Petitioner) to appear at the Corporate Office of the Odisha State Police Housing & Welfare Corporation Ltd. for the Personal Interview scheduled to be held on 01.09.2023.

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3. Subsequently, the Petitioner along with some other candidates appeared for the Personal Interview before a panel comprising of the Chairman, one Independent Director and one domain expert. In the end, the Petitioner stood successful in the interview process and was offered

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appointment vide Office Order No.18125/OPHWC dated 02.09.2023, annexed to the Writ Petition as Annexure-4. The appointment of the Petitoner has also been approved at the 152^nd Board meeting of the Corporation (a copy of the minutes of the said meeting has been attached as Anexure-5 to the Writ Petition). Following his appointment, the Petitioner has joined in his duty on 03.10.2023.

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4. While the matter stood thus, the Petitioner was continuing in his post. On 02.03.2024, the Petitioner had availed sick leave and during his sick leave, the Petitioner received a termination letter No.5190/OPHWC dated 02.03.2024, annexed to the present Writ Petition as Annexure-6, wherein the Petitioner was communicated that his service has been terminated with immediate effect and he has been directed to handover the charge to Shri Manoranjan Mohapatra, the Financial Advisor of the Corporation. Aggrieved by the aforesaid letter of termination, under Annexure-6, the Petitioner has approached this court with the prayer as made hereinabove.

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CONTENTIONS OF THE PETITIONER

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5. Heard Mr.Subir Palit, learned Senior Counsel appearing for the Petitioner along with Mr. Niranjan Nayak, learned counsel. The Learned Senior Counsel for the Petitioner, at the outset, has questioned the legality of the impugned termination order dated 02.03.2024, under Annexure-6,

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on the ground that the termination order is wholly unjustified and unsustainable in law. It is the contention of the Learned Senior Counsel for the Petitioner that the impugned termination order has been issued by the Opposite Party No.2 without following the well-established principles of natural justice. Referring to the said termination order dated 02.03.2024, the Learned Senior Counsel for the Petitioner further submitted that the Opposite Party No.2 has not given any opportunity of hearing to the present Petitioner before issuing such termination order. Moreover, the aforesaid termination order also does not reflect any grounds on which the Petitioner’s service has been terminated. To substantiate his contentions, the Learned Senior Counsel for the Petitioner has referred to observations of the Hon’ble Supreme Court in Sridhar vs. Nagarpalika, Jaunpur and Ors. reported in AIR 1990 SC 397 ; Nagarjuna Construction Company Ltd. Vs, Govt. of Andhra Pradesh , reported in (2008) 16 SCC 276 and Smt. Kanungo vs. State of Orissa and Ors. reported in 2023 (III) ILR-CUT-36

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6. At this point, the Learned Senior Counsel for the Petitioner referred to the Counter Affidavit filed by the Opposite Party No.2, specifically paragraphs-11 & 12 of the said Counter Affidavit and contended that in the said paragraphs of the Counter Affidavit, the Opposite parties have, for the first time, pointed out the reason for termination of the service of the Petitioner. However, nothing in this respect was ever communicated

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to the Petitioner before the impugned termination order was passed against him. As such, it was contended that the impugned termination order dated 02.03.2024, under Annexure-6, is an entirely arbitrary and non-speaking order since no reason has been spelt out in the said order for the termination of the Petitioner. It is the Learned Senior Counsel’s contention that the abrupt order of termination issued against the Petitioner does not in any way align with the actual performance of the Petitioner during his period of engagement. It was submitted that during the entire time the Petitioner was engaged in his duty as the Company Secretary, he has satisfactorily discharged all the different works assigned to him and at no point in time was the Petitioner communicated/ noticed with regard to any deficiency in the discharge of his duties.

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7. Next, the Learned Senior Counsel for the Petitioner has contended that on the face of the record the impugned order of termination passed vide the order No.5190 dated 02.03.2024 is clearly a non-speaking order which does not contain any grounds/ reasons for such termination of the Petitioner’s service. Therefore, the impugned order cannot in any way be termed as a termination simpliciter. Rather, the order of termination is clearly punitive in nature and it has been passed in gross violation of the established principles of natural justice., The Learned Senior Counsel further stated that, the termination of service of an employee is considered as one of the harshest punishments in service jurisprudence,

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especially when such an order of termination has been passed against the Petitioner without there being any inquiry into the matter and without there being any definitive reasoning provided by the Opposite PartyCorporation for passing such an order of termination.

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8. The learned Senior Counsel for the Petitioner went on to refer to the impugned advertisement dated 10.07.2023 under Annexure-1 to the Writ Petition and submitted that the advertised post of ‘Company Secretary’ is a regularly sanctioned post. Moreover, the said advertisement does not contain any stipulation with regard to the selected candidate undergoing a Probation period after appointment. However, when the appointment letter dated 02.09.2023, under Annexure-4, was issued in favour of the Petitioner, the said appointment letter, specifically under clause (6), provides for a probation period of one year form the date of joining. It is also the Learned Senior Counsel’s contention that the Opposite Party No.2 has also not disputed the aforesaid fact that the advertisement dated 10.07.2023, under Annexure-1, did not contain any stipulation whatsoever with regard to the period of probation, whereas, the appointment order dated 02.09.2023, issued by the Opposite Party No.2, has, for the first time, inculcated such criteria of undergoing a probation period of one year after appointment. The relevant Clause-6 of the aforesaid appointment order dated 02.09.2023, under Annexure-4, is reproduced herein below for better appreciation;

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“ 6. Probation:

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You will be under probation for a period of one year from the date of your joining. The management shall confirm on completion of probation period on satisfactory performance and conduct and attendance during the period of probation. However, the probation period may be extended due to non-performance and un-satisfactory conduct. You may please note that you will continue to be under probation till you are confirmed in writing ”

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9. With regard to the termination of the service of the Petitioner

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during his period of probation, the Learned Senior Counsel for the Petitioner contended that the law with regard to the termination of service of Probationers is no more res integra and it is a well settled principle of law that even though the Petitioner was a probationer, the termination of his service will require the observance of and compliance with the principles of natural justice. Since no such procedure has been followed in the present instance, the Learned Senior Counsel for the Petitioner contended that the Opposite Party-Corporation have punished the Petitioner, under the guise of him being a probationer, by terminating his service. To buttress his arguments the Learned Senior Counsel for the Petitioner has placed reliance on various decisions of the Hon’ble Supreme Court, such as; paragraph-36 of State Bank of India vs. Palak Modi reported in (2013) 3 SCC 607 , paragraph 7 of V.P.Ahuja vs. State of Punjab , reported in AIR 2000 SC 1080 ; Radhey Shyam Gupta v. U.P.

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State Agro Industries Corpn. Ltd. , reported in (1999) 2 SCC 21 ; Abhay Jain v. High Court of Rajasthan , reported in (2022) 13 SCC 1 ; Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences , reported in (1999) 3 SCC 60 ; Samsher Singh v. State of Punjab and Anr. , reported in (1974) 2 SCC 831 and Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha reported in (1980) 2 SCC 593 .

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10. At this point, the Learned Senior Counsel for the Petitioner has referred to the Rejoinder Affidavit filed by the Petitioner, specifically the ‘Office Order for Amended Rule 9(C) of the Bye-Law of OSPH&WC’, under Annexure-A/1 to the Rejoinder Affidavit, and submitted that the Opposite Party No.2, while referring to the aforesaid rules in the Counter Affidavit filed on his behalf, has suppressed certain other relevant clauses of the said Rule. In this context, the Learned Senior Counsel for the Petitioner referred to Clause 9(C)(iii)(a) and 9(D) of the aforementioned amended rules and contended that in the event of a penalty of dismissal or removal being imposed on the delinquent officer by the chairman-cumManaging Director, who is the appointing authority, a regular enquiry with reasonable opportunities as per the principles of natural justice shall be afforded to the delinquent. He further contended that the present Petitioner was appointed as the Company Secretary against a regularly sanctioned post and his appointment was approved by the Board of

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Directors of the Corporation in their 152^nd and 153^rd Board Meeting. Also, it is clear from the impugned order of termination dated 02.03.2024 that the Petitioner has been removed from service. Therefore, the aforesaid rules clearly apply to the case of the Petitioner and the Petitioner should have been provided with reasonable opportunity of being heard before terminating his service. Additionally, the Learned Senior Counsel for the Petitioner also contended that the aforesaid rules cannot be read in isolation and the said rules must be in consonance with Article 14 of our Constitution.

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11. Mr. Palit, the learned Senior Counsel for the Petitioner drew the attention of this Court to the circumstances surrounding the termination of the Petitioner and contended that the service of the Petitioner has been terminated only after four months of his probation period and there were still eight months left out of the one year probation of the Petitioner. In fact, for the last five months of his service, the Petitioner was completely kept in the dark and not a single notice/communication was issued to him demonstrating his inefficiency or pointing out any lacunae in his work. It was never brought to the notice of the Petitioner in what way his actions have been against the interest of the corporation, as has been stated in the Counter Affidavit filed by the Opposite Party No.2. Rather, during the last five months, the Petitioner has discharged his duties diligently by conducting different meetings and he has also been assigned various

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additional works by the Chairman of the Corporation apart from his normal duties. In this context the Learned Senior Counsel for the Petitioner has referred to the copy of the office orders assigning additional works to the Petitioner, under Annexure-B/1 Series to the Rejoinder. However, it was only when the Petitioner availed a sick leave due to an illness that the order of termination, sans any reason, was passed against him without any prior notice or communication.

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12. In fact, it is the contention of the Learned Counsel for the

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Petitioner that the Opposite Party No.2 has, for the first time in his Counter Affidavit, stated that the Petitioner was not discharging his duties properly and his actions were detrimental to the affairs of the corporation. Such conduct of the Opposite Party No.2 is a clear illustration of their malafide intention and vindictiveness towards the Petitioner. Moreover, such sudden and unreasoned termination is most likely to hamper any future prospects of employment of the Petitioner especially considering the fact that the Petitioner is around 50 years of age and has never before in his career faced such adverse actions. The Learned Senior Counsel for the Petitioner again submitted that conduct of the Opposite Parties is especially confounding when considering the fact that the Petitioner is not a fresher and has a long service history of more than 16 years, and, in his prolonged service career the Petitioner has never received any complaints with regard to his work.

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13. To further underscore the malafide intentions of the Opposite

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Parties, the learned senior counsel for the Petitioner has drawn the attention of this Court to the termination order dated 02.03.2024 and the newer advertisement issued just a day later on 03.03.2024 (under Annexures-6 and 7 respectively), and contended that after the illegal and unjust termination of the Petitioner, the Opposite Party-Corporation have floated a fresh advertisement the very next day in the local daily Samaj , inviting applications for the post of Company Secretary, with the walk-in interview set to be held on 06.03.2024 at the Corporate Offices of the Corporation. This undue urgency displayed by the Opposite PartyCorporation to fill-up the post of Company Secretary clearly indicates their malafide intention and deliberate attempt to harass the Petitioner. Further demonstrating the vindictiveness of the Opposite Parties towards the Petitioner, the Learned Senior Counsel has contended that once the Petitioner was terminated vide order No.5190 dated 02.03.2024, he handed over the charge of Company Secretary to the financial advisor to the corporation. However, after a few days another letter was issued to the Petitioner to hand over certain documents, to which the Petitioner responded that he had already handed over the said documents. The corporation again issued another letter to handover certain records and documents, to which the Petitioner replied that the records called for have already been handed over. Despite such intimation by the Petitioner,

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another letter was issued by the corporation, bearing letter No.8213/OPHWC dated 08.04.2024, to the effect that if the Petitioner does not attend the office by 10.04.2024 and handover the documents, then an FIR would be lodged against him. The copies of all relevant letters and orders have been attached under Annexure-C/1 series.

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14. Lastly, Learned Senior Counsel for the Petitioner submitted that the Petitioner has an old and ailing mother, a sister with mental illness and has a child with special needs who requires constant care and treatment. Being the sole bread-earner of his family, the abrupt and harsh nature of his termination has caused immense hardship and suffering to the Petitioner. Accordingly, it was prayed that the impugned termination order dated 02.03.2024, under Annexure-6 and the advertisement dated 03.03.2024, under Annexure-7, be quashed and that the Petitioner be reinstated in service along with all consequential service benefits.

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CONTENTIONS OF THE OPPOSITE PARTY-CORPORATION

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15. Heard Mr. Asok Mohanty, learned Senior Advocate appearing for the Opposite Party No.2 along with Mr. G.P. Dutta, learned counsel. The learned Senior Counsel for the Opposite Party-Corporation, at the outset, vehemently opposed to the prayer made by the Learned Senior Counsel for the Petitioner and supported the impugned order of termination

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bearing Order No.5190/OPHW dated 02.03.2024 issued against the Petitioner.

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16. A counter affidavit has been filed by the Opposite Party No.2Chairman-cum-Managing Director in opposition of the stance taken by the Petitioner in the Writ Petition. The said Counter Affidavit reveals that the Petitioner’s service has been terminated due to the fact that he was not discharging his duties properly and his actions were detrimental to the affairs of the corporation. The Counter Affidavit further discloses that the Opposite Party No.2 has taken the stand that since the Petitioner was under probation, there was no requirement for adhering to the principles of natural justice while terminating the service of the Petitioner. Referring to the aforesaid Counter Affidavit filed by the Opposite Party No.2, the learned Counsel for the Opposite Parties further submitted that the appointment letter No.18125/OPHWC dated 03.10.2023, specifically Clause-8 thereof, titled “Rules and Regulations”, enumerates that in the event there is any infringement of any rules of the corporation or the terms of the appointment or disobedience of orders or negligence of duties by the Petitioner, the Petitioner will have to face dismissal/ discharge from service of the corporation.

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17. Furthermore, again referring to the same Counter Affidavit by the Opposite Party No.2, the learned Senior Counsel for the Opposite Party No.2 contended that the averments made by the Petitioner in paragraph-4

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of the Writ Petition, to the effect that the corporation does not have its own service rules, is not correct. It was submitted that the corporation has its own Employee’s Conduct Rules titled “The Odisha State Police Housing and Welfare Corporation Employees Conduct Rules, 2013”. Additionally, since it is already established that the Petitioner was under Probation after his appointment, the Appointing Authority i.e. Chairmancum-Managing Director of the Corporation has rightly terminated the service of the Petitioner as per Rule-9(C)(i)(ii) of the aforesaid Odisha State Police Housing and Welfare Corporation Employees Conduct Rules that came into effect on 08.04.2013.

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18. One of the primary arguments of Mr. Mohanty, the learned Senior Counsel for the Opposite Party-Corporation is that since the Petitioner was under probation during the termination of his service, there was no requirement of adhering to the principles of natural justice. At this point, the Learned Counsel for the Opposite Party-Corporation, has referred to the Clause-6 of the appointment order No.18125/OPHW dated 02.09.2023, headlined “Probation” and contended that the said clause clearly stipulates that the Petitioner is to remain under Probation for a period of one year from the date of his joining as the Company Secretary, which is liable to be extended based on his performance and he shall continue in probation until it is confirmed in writing that his period of probation is complete. The learned Senior Counsel for the Opposite

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Parties contended that in the present case while the Petitioner was under probation, his performance was found not to be suitable for continuing in the post of Company Secretary, as is borne out from the Counter Affidavit filed by the Opposite Party No.2. As such, his service was terminated by the Order No.5190/OPHWC dated 02.03.2024, which is a simple order of termination. Furthermore, the learned Senior Counsel for the Opposite Parties has stated that the Petitioner being a Probationer cannot claim any right to the said post of Company Secretary.

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19. The second crucial contention raised by the Learned Senior Counsel appearing for the Opposite party-Corporation is that the impugned order of termination dated 02.03.2024 issued against the Petitioner, is a termination simpliciter and not stigmatic in nature. The learned Counsel for the Opposite Parties further submitted that on the face of the order of termination dated 02.03.2024, under Annexure-6, it is evident that the said order is a termination simpliciter. As such, the Opposite Party-Corporation was under no legal obligation to conduct any proceeding or enquiry, neither was there any requirement to issue any notice to the Petitioner since, being a Probationer, it is well within the right of the Corporation to terminate the employment of the officer on probation by issuing a termination order which is simpliciter in nature. To buttress his arguments, the Learned Senior Counsel for the Opposite Party-Corporation has placed reliance on the decisions of the Hon’ble

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Apex Court in State of Bihar vs. Gopi Kishore Prasad , reported in 1969 SCC OnLine 40 specifically para 6; Rajesh Kohli vs High Court Of J.&K. & Anr , reported in 2010 (12) SCC 783 , specifically paragraphs 23 to 28; Krishnadevaraya Education Trust v. L.A. Balakrishna , reported in (2001) 9 SCC 319 specifically paragraphs 5, 6 and 7; State of Punjab v. Sukhwinder Singh reported in (2005) 5 SCC 569 and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences reported in (2002) 1 SCC 520 .

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20. Furthermore, as a counter to the Petitioner’s argument that the since the Counter Affidavit by Opposite Party No.2 provides the reason for the termination of the Petitioner, the order of termination becomes stigmatic in nature, the Learned Senior Counsel for the Opposite PartyCorporation submitted that the original order of termination dated 02.03.2024, under Annexure-6 to the writ petition, simply states that the service of the Petitioner has been terminated with immediate effect and nothing more. It is only in the Counter Affidavit filed by the Opposite Party No.2 where it has been stated that the Petitioner’s service has been terminated because the Petitioner was not discharging his duties properly and he had acted in detriment to the affairs of the Corporation. In such context, Mr. Mohanty, learned Senior Counsel for the Opposite PartyCorporation has advanced the argument that reliance cannot be placed on an affidavit to supplement or provide reasoning for an order which has

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been passed earlier to the affidavit. To lend credence to his stance, he has

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relied on the decision of the Hon’ble Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences , reported in (2002) 1 SCC 520 , specifically paragraphs 33, 34 and 35, where the Hon’ble Apex Court has referred to the ratio expounded in the case of Mohinder Singh Gill v. Chief Election Commr., New Delhi , reported in (1978) 1 SCC 405;

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“ 33. It was finally argued by the appellant that the intention of the respondents to punish him was clear from the following statement in the affidavit filed on their behalf:

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“It is important to mention herein that even honesty and integrity of the petitioner was also under cloud as he took undue favours by misusing his position, from the suppliers and maligned the reputation of the Institute.”

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34. That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. Chief Election Commr., New Delhi [(1978) 1 SCC 405 : AIR 1978 SC 851] : (SCC p. 417, para 8)

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“[W]hen a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.”

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35. Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was held

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in State of U.P. v. Kaushal Kishore Shukla [(1991) 1 SCC 691 : 1991 SCC (L&S) 587 : (1991) 16 ATC 498] : (SCC p. 705, para 13)

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“The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.” ”

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21. In such view of the matter, the learned Counsel for the Opposite Party-Corporation, submitted that the Opposite Parties have committed no illegalities in terminating the service of the Petitioner by issuing a letter of termination simpliciter dated 02.03.2024, under Annexure-6 to the Writ Petition, and no prior enquiry or adherence to any principles of natural justice was required since the Petitioner was under Probation. As such, it was contended that the order of termination dated 02.03.2024 is just and proper, and requires no interference by this Court.

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ANALYSIS OF THE COURT

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22. Heard Mr. Subir Palit, learned Senior Advocate, appearing for the Petitioner and Mr. Asok Mohanty, learned Senior Advocate, along with Mr. G.P. Dutta, learned counsel, appearing for the Opposite Party No.2. Perused the records, the documents, writ petition, and the Counter filed by the Opposite Party No.2 and the Rejoinder filed on behalf of the Petitioner.

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23. Now, it is undisputed that initially the corporation floated an advertisement, dated 10.07.2023, for appointment to the post of Company Secretary in the corporation. Pursuant to the advertisement, the Petitioner filed his application and was called for the interview, which he succeeded

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in. Thereafter, the offer of appointment vide office order No.18125/OPHWC dated 02.09.2023 was issued to the Petitioner, which he accepted and joined in the service on 03.10.2023. Moreover, the Petitioner’s appointment was also approved at the 152^nd board meeting of the corporation, as is evident from the minutes of the said meeting annexed as Annexure-5 to the Writ Petition. After about five months, since the Petitioner was appointed as the Company Secretary, the Petitioner’s service has been terminated vide order No.5190/OPHWC dated 02.03.2024. It is this order of termination under Annexure-6 that is the focal point of the issue involved in the present Writ Petition.

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24. The main thrust of the Petitioner’s argument in the preset case is that the order of termination of service has been issued against the Petitioner without there being any strict adherence to the established principles of natural justice and that the Petitioner has not been given any notice with regard to the termination of his service, neither has he been given an opportunity of being heard. The Petitioner has also taken the stance that the termination of his service by the corporation is motivated by vindictiveness and malafide intentions. The Opposite Party-

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Corporation, specifically the Opposite Party No.2-Chairman-cumManaging Director of the Corporation, has naturally refuted the Petitioner’s stance. The Opposite Party No.2 has made a twofold argument in support of the order of termination, i.e., the Petitioner being a probationer at the time of termination, the Opposite Party-Corporation was well within its right to terminate the Petitioner’s service and that the order of termination being a termination simpliciter, is not bound by the protection afforded by Article 311 of the Constitution of India. Therefore, the principal issue which requires adjudication by this Court is whether the impugned order of termination of the service of the Petitioner dated 02.03.2024 (under Annexure-6), is stigmatic in nature?

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25. Law regarding termination of service of a government employee, is

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no more res integra and has been time and again reiterated by the Hon’ble Supreme Court in a catena of decisions. By now, it is settled law that the punishments of dismissal, removal or reduction in rank cannot be thrust on the government servant without affording the government servant the protection under Article 311(2) of the Constitution of India, i.e., a reasonable opportunity to defend himself must be provided to the government employee in such eventuality. The appointment of a government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally, on the servant so

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appointed, a substantive right to the post and he becomes entitled to hold a “lien” on the post. In such case, the Government cannot terminate the service of such employee unless it is entitled to do so by virtue of a special term of the contract of employment, or by the rules governing the conditions of his service; for instance, on attainment of the age of superannuation prescribed by the rules, or on the fulfilment of the conditions for compulsory retirement or, subject to certain safeguards, on the abolition of the post or on being found guilty, after a proper enquiry on due notice to him of the alleged misconduct, negligence, inefficiency or any other disqualification (reference maybe had to paragraphs 11 and 12 of Parshotam Lal Dhingra v. Union of India , reported in 1957 SCC OnLine SC 5 ).

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26. However, in the present case, it is clear on the face of the record that the Petitioner was on probation after he joined in service. Such fact is borne out specifically from clause-6 of the appointment letter No.18125/OPHWC dated 02.09.2023. so far, the rights of a probationer are concerned, the Hon’ble Supreme Court in Parshotam Lal Dhingra’s case ( supra ) observed that an probationer, akin to a person appointed by a Private Employer, can be considered to have been “ taken on trial ”. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is

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terminated by a notice. In para 11 of Parshotam Lal Dhingra’s case

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( supra ), the Hon’ble Supreme court has additionally observed that;

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“ 11…In short, in the case of an appointment to a permanent post in a government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time…

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12. The position may, therefore, be summarised as follows: In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and

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his service may be terminated unless his service had ripened into what is, in the service rules, called a quasipermanent service…”

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27. Likewise, in State of Bihar v. Gopi Kishore Prasad , reported in

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1959 SCC OnLine SC 40 , which was decided prior to Parshotam Lal Dhingra’s case ( supra ), the Hon’ble Supreme court, in paragraph-6, summarised the position with regard to “the termination of service or discharge of a probationary public servant” as follows;

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“…

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(1) Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.

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(2) The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.

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(3) But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.

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(4) In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down.

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(5) But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause.”

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(Emphasis supplied)

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28. In State of Punjab v. Sukhwinder Singh , reported in (2005) 5 SCC

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569 , the respondent-Probationer, who was a constable, had remained absent from his duty for a while and was discharged from his service by a non-speaking order. At the stage of second appeal, the Hon’ble High Court of Punjab and Haryana, while hearing the appeal of the Probationer, ruled in favour of the Probationer on the ground that he was discharged because of his absence from duty and, absence from duty being misconduct, the order of termination is a punitive in nature. Consequently, the High Court had declared the order of discharge “wholly illegal and contrary to law”. The Hon’ble Supreme Court allowed the appeal and set aside the judgement of the High Court and the Additional District Judge, and observed that;

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“ 19. …As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry “for the purpose of

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imposing punishment” and an order of discharge or termination of service as a result thereof “punitive in character”, the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.”

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29. A somewhat of a similar proposition of law has been laid down in

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Krishnadevaraya Education Trust v. L.A. Balakrishna reported in (2001) 9 SCC 319 , wherein the Hon’ble Apex Court held that a Probationer is on test and if his services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services. The mere fact that in response to the challenge the employer states that the services were not satisfactory, would not ipso facto mean that the services of the probationer were terminated by way of punishment. Moving along in similar lines, the Hon’ble Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences reported in (2002) 1 SCC 520 , after referring to large number of earlier decisions, have very clearly laid down the test to determine if an order of termination is stigmatic or not in paragraphs 21 & 29;

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“ 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 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.

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Conversely if any one of the three factors is missing, the termination has been upheld.

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…

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…

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29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. ”

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30. Similarly, in Samsher Singh v. State of Punjab and Anr. , reported

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in (1974) 2 SCC 831 , in paragraphs 63, , the Hon’ble Supreme Court has held that;

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“ 63. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing ca use against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.

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64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection.

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…

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…

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66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive (see K.H. Phadnis v. State of Maharashtra [(1971) 1 SCC 790: 1971 Supp SCR 118] ). ”

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(Emphasis supplied) In an ordinary sense, what flows from the above decisions is that

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when the services of the employee, who is under probation, is terminated by an order of termination, without anything more being reflected in the said order of termination, then the termination in that case would not attract the protection of Article 311(2).

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31. Further, in Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basis Sciences, Calcutta , reported in (1999) 3 SCC 60 , the Hon’ble Supreme Court was dealing with the issue of “When can an order of termination of a probationer be said to contain an express stigma?” And after a detailed discussion, the Hon’ble Apex Court reached the conclusion that “ There is 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

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'stigma'. It depends on facts and circumstances of each case and language or words used to ascertain whether termination order contains stigma ”. Additionally, In paragraph 37 of the aforesaid judgement in Dipti Prakash’s case ( supra ), while deciphering the issue as to whether

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‘stigma’ in the order of termination can be inferred from any concomitant orders, previous or subsequent, the Hon’ble Supreme Court, after analyzing a few of its earlier decisions, has arrived at the conclusion that;

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“…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…”

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In a similar vein, in Indra Pal Gupta vs. Managing Committee,

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Model Inter College, Thora , reported in (1984) 3 SCC 384 , the Hon’ble Apex Court has also observed that

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“ …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… ”

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32. This Court shall now examine the decision of the Hon’ble Supreme

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Court in SBI v. Palak Modi , reported in (2013) 3 SCC 607 , which has been strongly relied upon by the Petitioner in support of his contention. On perusal of the aforesaid decision, it can be seen that in Palak Modi’s case ( supra ) the Respondent-Probationers were required to undergo an examination (Objective Test) and 18 candidates, including the Respondent-Probationers, were suspected of using unfair means in the said examination. However, only the Respondent-Probationers were terminated from service, based on the Bank’s assessment of the seating arrangement for the examination. No opportunity of being heard was provided to the Respondent-Probationers before terminating their service. Furthermore, the relevant rules in Palak Modi’s case ( supra ), specifically Rule 16(3), stipulated the Bank is required to provide one month’s notice or one month’s emoluments before terminating the service of the Probationer. No such factual or procedural circumstances can be seen in the case of the present Petitioner. In fact, the Hon’ble Supreme Court in

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Palak Modi’s case ( supra ) has taken into consideration a catena of

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decisions governing the field, which have also been referred to by this

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Court, and made the following observation in para 25;

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“The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.”

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33. Moreover, the fundamental principle underlying in decision of the

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Hon’ble Supreme Court in Palak Modi’s case ( supra ) can be found in paragraphs 36 and 37 of the judgement where the Hon’ble Supreme Court has made the following observation;

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“ 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

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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 simpliciter, the employer has punished the employee for an act of misconduct.

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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 complete 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, which was approved by the 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. 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

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against the charge of use of unfair means. In other words, they were condemned unheard which, in our considered view, was legally impermissible.”

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(emphasis supplied)

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Therefore, it is evident that the suspicion cast upon the Respondent-Probationers in Palak Modi’s case ( supra ) constituted the foundational basis for their termination, rather than a general assessment of their unsuitability for the role. The Hon’ble Supreme Court, in Palak Modi’s case ( supra) , effectively lifted the veil to unearth the real reason underlying the termination, which was held to be in violation of the established principles of natural justice. Accordingly, the facts in Palak Modi’s case ( supra) are distinguishable from those of the present case.

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34. With regard to the Petitioner’s submission that Rules 9(C)(iii)(a) and 9(D) of “The Odisha State Police Housing & Welfare Corporation Employees Conduct Rules-2013” have not been followed by the Opposite Party-Corporation, it can been seen, as per Rule 3 read with Rule 2(b), that the aforesaid rules apply to persons appointed to permanent or temporary posts either on ad hoc or contractual basis, but not casual employees. However, such Rules are silent with regard to their applicability to a Probationer. Now, on perusal of the Appointment Order of the Petitioner dated 02.09.2023 under Annexure-4, specifically clause/ paragraph 6, it can be seen that there is a stipulation to the effect that the appointee will be on probation for a period of a year, which might be

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extended and the employee shall be on probation until it is confirmed in writing that his period of probation is completed. By harmonious construction of the aforesaid Rules and the Appointment Order, it can be deduced that the said Rules will apply to the employee once his/ her probation period is over and the said employee survives the probation period, i.e., once the probation period is over, the Probationer transforms fully into an employee of the Corporation and shall be governed by the aforesaid Rules. Moreover, the order of termination of the Petitioner, dated 02.03.2024 under Annexure-6 reveals that the Petitioner has been “terminated” from service which is not included in Rule 9(C)(iii)(a) that only covers “Dismissal, removal”. Therefore, such contention of the Petitioner that that Rules 9(C)(iii)(a) and 9(D) of the aforesaid 2013 Rules have not been followed by the Corporation, does not hold force in view of the analysis made hereinabove.

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35. It is in the light of the above discussion, that this Court is now required to test the probity of the impugned order of termination dated 02.03.2024. On a bare perusal, it can be seen that the said order of termination is a single page order which does not contain any addendums or annexures. The termination order also does not refer to any other documents or other records. In fact, there does not appear to be any prior or subsequent order that have been passed either with regard to the termination of the Petitioner, or with regard to the performance of the

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petitioner, except, the Counter Affidavit filed by the Opposite Party No.2 wherein, specifically in paragraph 11 and 12 thereof. However, as it so appears, such supplementary reasoning to the order of termination dated 02.03.2024 in the Counter filed by the Opposite Party No.2, is legally unacceptable by the well settled principle enunciated by the Hon’ble Supreme in Mohinder Singh Gill v. Chief Election Commr. , reported in (1978) 1 SCC 405 that;

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“ …when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out… ”

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In other words, neither it is open to the Opposite Party-Corporation to supplement the termination order by sub additional averments, nor is the Petitioner required to be bothered by such averments in the counter affidavit which are nullity and non est in the eyes of law. Moreover, since this Court holds that such averments could not be used against the Petitioner, it is not open to Petitioner to rely upon such averments in counter affidavit to establish before this Court that the termination order is punitive in nature solely because of such legally unacceptable averments in the counter affidavit by Opposite Party No.2

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36. On a holistic consideration of the entire facts and circumstances, it can be very well concluded that the impugned order of termination dated 02.03.2024 is a self-contained order. Further, on a perusal of the actual contents of the order of the said termination, it is borne out that the said order simply conveys that the service of the present Petitioner as Company Secretary has been terminated with immediate effect. Also, he has been directed to hand over his charge to the Financial Advisor of the Office. Therefore, what is clear from such order of termination is that such order does not contain any material which would suggest that any aspersion or stigma has been cast on the service of the Petitioner. This implies that the order of termination dated 02.03.2024, under Annexure-6 to the present Writ Petition, is indeed a termination simpliciter and does not infringe the well-established principles of natural justice. Therefore, this Court has no hesitation in concluding that the aforesaid order of termination dated 02.03.2024, under Annexure-6 is not stigmatic in nature and that the grounds taken against the Petitioner in the Counter Affidavit cannot be used against him in any manner. Accordingly, this Court is not inclined to interfere either with the impugned order of termination bearing Order No.5190 dated 02.03.2024, under Annexure-6 to the Writ Petition or the fresh advertisement dated 03.03.2024, under Annexure-7 to the present Writ Petition.

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37. With the aforesaid observation, the present Writ Petition is

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disposed of. However, there shall be no order as to costs.

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(A.K. Mohapatra)

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Judge

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Orissa High Court, Cuttack The 28^th July, 2025/Debasis Aech, Secretary