Orissa High Court
Jitendriya Mohanty vs State Of Odisha And Another . Opposite … on 28 July, 2025
Author: A.K. Mohapatra
Bench: A.K.Mohapatra
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.
-versus-
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)
CORAM:
THE HON'BLE MR. JUSTICE A.K.MOHAPATRA
Date of hearing : 21.04.2025 | Date of Judgment : 28.07.2025
A.K. Mohapatra, J. :
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
Housing & Welfare Corporation Ltd.” And extend all consequential
service benefits as are due and admissible to the Petitioner.
FACTS
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.
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
Page 2 of 36
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 152nd 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.
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.
CONTENTIONS OF THE PETITIONER
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,
Page 3 of 36
on the ground that the termination order is wholly unjustified and un-
sustainable 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
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
Page 4 of 36
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.
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 Party-
Corporation for passing such an order of termination.
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;
Page 6 of 36
“6. Probation:
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”
9. With regard to the termination of the service of the Petitioner
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.
Page 7 of 36
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.
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-cum-
Managing 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 152nd and 153rd 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.
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
Page 9 of 36
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.
12. In fact, it is the contention of the Learned Counsel for the
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.
Page 10 of 36
13. To further underscore the malafide intentions of the Opposite
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 Party-
Corporation 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,
Page 11 of 36
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.
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.
CONTENTIONS OF THE OPPOSITE PARTY-CORPORATION
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
Page 12 of 36
bearing Order No.5190/OPHW dated 02.03.2024 issued against the
Petitioner.
16. A counter affidavit has been filed by the Opposite Party No.2-
Chairman-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.
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
Page 13 of 36
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. Chairman-
cum-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.
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
Page 14 of 36
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.
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
Page 15 of 36
Apex Court in State of Bihar vs. Gopi Kishore Prasad, reported in 1969SCC 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.
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 Party-
Corporation 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 Party-
Corporation has advanced the argument that reliance cannot be placed on
an affidavit to supplement or provide reasoning for an order which has
Page 16 of 36
been passed earlier to the affidavit. To lend credence to his stance, he has
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;
“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:
“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.”
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)
“[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.”
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
Page 17 of 36
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)
“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.””
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.
ANALYSIS OF THE COURT
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.
Page 18 of 36
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
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 152nd 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.
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-
Page 19 of 36
Corporation, specifically the Opposite Party No.2-Chairman-cum-
Managing 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?
25. Law regarding termination of service of a government employee, is
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
Page 20 of 36
appointed, a substantive right to the post and he becomes entitled to holda “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).
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
Page 21 of 36
terminated by a notice. In para 11 of Parshotam Lal Dhingra‘s case(supra), the Hon’ble Supreme court has additionally observed that;
“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…
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 andPage 22 of 36
his service may be terminated unless his service had
ripened into what is, in the service rules, called a quasi-
permanent service…”
27. Likewise, in State of Bihar v. Gopi Kishore Prasad, reported in
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;
“…
(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.
(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.
(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.
(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.
Page 23 of 36
(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.”
(Emphasis supplied)
28. In State of Punjab v. Sukhwinder Singh, reported in (2005) 5 SCC
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;
“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
Page 24 of 36
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.”
29. A somewhat of a similar proposition of law has been laid down in
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;
“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.
Page 25 of 36
Conversely if any one of the three factors is missing, the
termination has been upheld.
…
…
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.”
30. Similarly, in Samsher Singh v. State of Punjab and Anr., reported
in (1974) 2 SCC 831, in paragraphs 63, , the Hon’ble Supreme Court has
held that;
“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.
Page 26 of 36
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.
…
…
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] ).”
(Emphasis supplied)
In an ordinary sense, what flows from the above decisions is that
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).
Page 27 of 36
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
‘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
‘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;
“…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…”
In a similar vein, in Indra Pal Gupta vs. Managing Committee,
Model Inter College, Thora, reported in (1984) 3 SCC 384, the Hon’ble
Apex Court has also observed that
Page 28 of 36
“…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…”
32. This Court shall now examine the decision of the Hon’ble Supreme
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
Palak Modi’s case (supra) has taken into consideration a catena of
Page 29 of 36
decisions governing the field, which have also been referred to by this
Court, and made the following observation in para 25;
“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.”
33. Moreover, the fundamental principle underlying in decision of the
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;
“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
Page 30 of 36
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.
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 themselvesPage 31 of 36
against the charge of use of unfair means. In other words,
they were condemned unheard which, in our considered
view, was legally impermissible.”
(emphasis supplied)
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.
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
Page 32 of 36
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.
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
Page 33 of 36
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;
“…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…”
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
Page 34 of 36
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.
Page 35 of 36
37. With the aforesaid observation, the present Writ Petition is
disposed of. However, there shall be no order as to costs.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 28th July, 2025/Debasis Aech, Secretary
Signature Not Verified
Digitally Signed
Signed by: DEBASIS AECH
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 28-Jul-2025 19:21:15
Page 36 of 36