P.N. Shinghal, J.
1. The petitioner was appointed as an Assistant Engineer in the service of the Rajasthan State Electricity Board, respondent No. 1, hereinafter referred to as 'the Board', by order document No. 1 dated September 17. 1969. It was a probationary appointment. He joined service on September 27, 1969 and was posted as Assistant Engineer after some training. He has stated that he received a letter dated July 28, 1971 from the Chief Engineer in regard to certain complaints against him, and that he sent a reply stating that the complaints were false and frivolous. The period of his two years' probation expired on September 26, 1971. The Chief Engineer, according to the petitioner, asked him certain questions, which were replied by him, and he was placed under suspension by an order dated October 4, 1971 of the Chief Engineer. He made a representation to the Chairman of the Board on May 6, 1972, praying for reinstatement. The Board thereafter passed an order (document No. 4) dated May 25, 1972 extending the period of his probation by one year, with effect from September 27, 1971, under Regulation 29 of the Rajasthan State Electricity Board Service of Engineers (recruitment, promotion and seniority, etc.). Regulations, 1969, hereinafter referred to as 'the Regulations'. This was followed by order dated June 1, 1972 by which he was reinstated in service. He, therefore, took over charge of the office of Assistant Engineer (construction) at Bharatpur, on June 5, 1972. Ultimately order (document No. 5) dated September 25, 1972 was passed by the Board terminating his services on the ground that his work had been found 'unsatisfactory during the probationary period'. The petitioner has challenged that order on a number of grounds, and I shall refer to those arguments which have been urged by his learned Counsel for my consideration.
2. The Board has filed a reply traversing the petitioner's claim. The petitioner has filed affidavits dated January 22, 1973 and February 22, 1973, and I shall refer to the later of these affidavits as the petitioner's learned Counsel has placed reliance on it in certain respects.
3. As has been stated, the petitioner was appointed in the service of the Board by order (document No. 1) dated September 17, 1969. It has been stated in paragraph 2 of that order that the appointment would be subject to the conditions mentioned therein. Paragraphs 3 and 6 of the order are relevant for purposes of the controversy in this case and read as follows,-
3. They will be on probation for a period of two years and during this period they will have to undergo such training and pass such departmental examination as may be prescribed. The probationers, whose work is found to be unsatisfactory or who fail in the departmental examinations will be liable to be removed from service during oral the end of the probationary period.
6. All other conditions of service will be the same as are applicable from time to time to the other employees of the Board of similar category.
The Regulations were not in force at the time of the petitioner's appointment, for it has been stated by Mr. H. P. Gupta, learned Counsel for the Board, that they were brought into force from October 1, 1970. Regulation l(iii) provides that the Regulations shall apply to every 'member of the service'. The expression 'member of the service' has been defined in Regulation 3(f) to mean a person appointed to a post in the service 'under the provisions of these Regulations or of Rules in force previous to the introduction of these Regulations.' As the petitioners' appointment had not been made under the provisions of the Regulations, and as it has not been shown by the respondents that he was appointed under any Rules in force previous to the introduction of the Regulations, he could not be said to be a member of the service' within the meaning of Regulation 3(f). The Regulations were not, therefore, applicable to his case by virtue of Regulation l(iii).
4. Paragraph No. 6 of the petitioner's order of appointment (document No. 1), which has been extracted above, however, provided that all the other conditions of his service would be the same as were applicable from time to time to the other employees of the Board of similar category. It follows that the conditions of service which were not specifically stated in the order of appointment were to be the same as those applicable to the other employees of the Board under the provisions of the Regulations on and from October 1, 1970 when the Regulations came into force as aforesaid. Thus, in the absence of any provision in the order of appointment regarding extension of the period of probation, or the making of confirmation, the relevant provisions of Regulations 29 and 30 became applicable to the petitioner's employment.
5. There is another reason for this view. It has been well-settled by the decision of their Lordships of the Supreme Court in G. S. Ramaswamy v. I.G. of Police, Mysore : (1970)ILLJ649SC , that a probationer cannot, after the expiry of the probationary period, automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provide for such a result. Therefore, even though a probationer may have continued to act on the post to which he was appointed by probation for more than the initial period of probation, he cannot become a permanent servant merely because of the efflux of time, unless the Rules of service which govern him specifically lay down that he will be automatically confirmed after the initial period of probation is over. In that case their Lordships made a reference to Rule 486 which provided for confirmation at the end of the probationary period if the employee had given satisfaction, and laid it down that such a rule does not contemplate automatic confirmation as 'the condition of giving satisfaction must be fulfilled before a promoted officer can be confirmed' and that such a condition obviously means that 'the authority competent to confirm him must pass an order to the effect that the probationary officer has given satisfaction and is, therefore, confirmed.' Reference in this connection may also be made to their Lordships' decision in State of Uttar Pradesh v. Akbar Ali Khan : (1967)ILLJ70SC , where also they have taken the view that the employee does not cease to be a probationer after the expiry of the probationary period and that, without a specific order of confirmation, he continues as a probationer only and acquires no substantive right to the post. A similar view has been taken in a later decision of their Lordships in Kedar Nath v. State of Punjab : AIR1972SC873 .
6. I have, therefore, no hesitation in taking the view that the petitioner continued to be on probation even after the expiry of the probationary period of two years mentioned in paragraph 3 of document No. 1 because there was no provision for automatic confirmation, and that there is no reason why the provisions of Regulations 29 and 30 should not have been applicable to him as a probationer.
7. It has been argued by the learned Counsel for the petitioner that this could not be so and that the Regulations could not govern the petitioner's case as he had been appointed before they came into force. Reliance has also been placed on the decisions in Jyottrmoyee Sharma v. Union of India : AIR1962Cal349 ; State of Punjab v. Dharam Singh : 3SCR1 and State of Haryana v. Rajendra Sareen 1972-I L.L.J. 205, The argument is, however, untenable in view of the clear provisions of paragraph 6 of document No. 1, to which reference has been made above. I have gone through Jyotirmoyee Sharma v. Union of India case but that decision was taken before the law on the point was laid down in the aforesaid decisions of their Lordships of the Supreme Court, State of Punjab v. Dharam Singh (supra) was a different case for there the service rule fixed a certain period of time beyond which the probationary period could not be extended. State of Haryana v. Rajendra Sareen (supra) was also a different case for there the requirement of the rule was quite different.
8. The fact, therefore, remains that Regulation 29 and 30 became applicable to the petitioner's employment as the 'other conditions' of his service. Regulation 30 expressly provided that a probationer shall be confirmed in his appointment at the end of the period of his probation, if, inter alia, the Board was satisfied that he was fit for confirmation. It was, therefore, the requirement of the Regulation that an order of confirmation should have been passed by the Board, after examining the question whether the petitioner was fit for confirmation, and this also goes to show that the contention of the petitioner's learned Counsel that the petitioner was automatically confirmed after the expiry of the period of two years' probation is quite untenable. There was, therefore, no change in the petitioner's status and he continued to be on probation after the expiry of the period of two years specified in paragraph 3 of document No. 1.
9. Regulation No. 29 deals with the question of unsatisfactory progress during probation, and while it provides for removal from service in a case where it appears to the Board at any time during or at the end of the period of probation that the employee has not made sufficient use of his opportunities or that he has failed to give satisfaction the proviso to that Regulation reads as follows-
Provided that Board may extend the period of probation of any member of the service by a specified period not exceeding one year.
It, therefore, empowered the Board to extend theperiod of probation upto one year, and as there was no condition regarding extension of the probationary period in the petitioner's order of appointment (document No. 1), the condition regarding extension of the period) of probation stated in Regulation 29 became applicable as a condition of his service by virtue of paragraph 6,
10. Mr. Bhargava tried to get out of this conclusion by arguing that as the function of a proviso is to qualify or create an exception to what is contained in the preceding portion of the enactment, the proviso to Regulation 29 could not be interpreted as authorising the extension of the period of probation after its expiry. He has made a reference to 'Principles of Statutory Interpretation' by G. P. Singh, page 105, Commr. of Income-tax, Mysore v. Indo Mercantile Bank Ltd. : 36ITR1(SC) ; Shah Bhoiraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha : 2SCR159 , and to Craies on Statute Law 7th edition page 218, in regard to the scope and function of a proviso. This is, however, futile because there is nothing in Regulation 29 to require that the initial period of probation must be extended before its expiry. It has to be appreciated that, as has been shown, the terms and conditions of the petitioner's appointment, and the Regulations applicable to him, were such that there could be no automatic confirmation after the expiry of the two years' period of probation, and as the petitioner continue to be on probation when the Board passed its order (document No. 4) dated May 25, 1972 extending his period of probation by one year, it could not be said to matter if that order was made after the expiry of the initial period of probation. I am fortified in this view by the decision in State of Punjab v. Sukh Raj Bahadur A.I.R. 1961 S.C. 1089, where it has been held that the employee continues to be on probation even if the period of probation has expired and has not been extended by any order.
11. It has, however, been further argued that as the initial period of probation expired on September 26, 1971, the Board committed an illegality in extending it by its order (document No. 4) dated May 25, 1972, with retrospective effect from September 27, 1971. This argument is also futile because, as has been stated, the petitioner continued to be on probation even after the expiry of the two years period of probation on September 26, 1971, and, in the absence of any order of confirmation under Regulation 30, he did not become a permanent employee of the Board. In fact even though the period of his probation was initially stated to be two years in paragraph 3 of document No. 1, the maximum period of probation was increased to three years by virtue of Regulation No. 29 which became applicable to him in accordance with paragraph 6 of the order of his appointment. The maximum period of three years was thus to expire on September 26, 1972, and there is nothing wrong if the Board passed the order (document No. 4) dated May 25, 1972 extending the period of probation by one year well before the expiry of the period of three years. I do not find it possible to take the view that the Board's aforesaid order of May 25, 1972 did not have the effect of extending the 'petitioner's probationary period until September 26, 1972. The mere fact that the Board staled in its order that it had extended the period of probation with effect from September 27, 1971, could not detract from the validity of the order in its application to the petitioner's employment on and from the date when it was passed,
12. The fact, therefore, remains that the petitioner continued to be on probation when the impugned order (document No. 5), was passed by the Board on September 25, 1972, terminating his services. It is well settled that a Probationer has no right to the post held by him, and under the terms of his appointment he is liable to be discharged at any time during the period of his probation, without attracting the provisions of Article 311(2) of the Constitution. It would be sufficient in this respect to refer to the decision of their Lordships of the Supreme Court in Ranendra Chandra v. Union of India : 2SCR135 . The Board could, therefore, terminate the petitioner's employment by its aforesaid letter.
13. An argument has been made by the petitioner's learned Counsel that this could not be so as the order (document No. 5) of termination cast a stigma on the petitioner's competence and thus affected his future career and thereby attracted the provisions of Article 311(2) of the Constitution. Reliance in this connection has been placed on State of Bihar v. Gopi Kishore Prasad : (1960)ILLJ577SC . I have gone through that case. There the respondent was no doubt a probationer but he was discharged from service because the Government had, after enquiry, come to the conclusion that he was unsuitable for the post, and had stated in its order that certain facts which had been brought to the notice of the Government raised 'grave doubts regarding his integrity and indicated that he was a corrupt and unreliable officer.' It was, therefore, a case in which the impugned order cast a stigma on his competence. But this is not so in the present case because the impugned order (document No. 5) merely reads as follows:
The Board approved the termination of the services of Shri K.C. Sethia, Assistant Engineer w.e.f. 26-9-72 (A.N.) whose work has been found unsatisfactory during the probationary period.
The expression 'unsatisfactory' has no doubt been used in the order, but that could not be avoided as it was an express condition of paragraph 3 of the terms and conditions of the petitioner's employment (in document No. 1) that he was liable to be removed from service if his work was found to be 'unsatisfactory'. The order has, therefore, been passed in terms of the conditions of service, and is quite unexceptionable, as it serves the purpose of making it quite clear that the termination has been ordered only on the ground on which it is permissible under the terms and conditions of the appointment.
14. I would here like to make a mention of a decision of their Lordships of the Supreme Court in Union of India v. R.S. Dhaba : 19ITR143(SC) . The respondent there was promoted to officiate as Income-tax Officer Class II on April 8, 1953. On May 22, 1964, after some 11 years, he was reverted on the ground that he had been 'found unsuitable after trial to hold the post of Income-tax Officer, Class II.' Their Lordships took the view that the order did not contain any express words of 'stigma', and that it could not be held that the order of reversion was made by way of punishment or that the provisions of Article 311 of the Constitution were attracted to it. Even in the absence of an express term in the order of the respondent's appointment that he would be liable to reverson if he was found unsuitable after trial, their Lordships held that 'a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held', and that it is not by way of punishment to which Article 311 could be attracted. Their Lordships, view, if I may say so with respect, applies to the present case also, with the further fact that the petitioner's employment in this case has been terminated as his work was found unsatisfactory, which was an express condition for the making of such an order according to the terms and conditions of his appointment referred to above. Reference may also be made to State of Orissa v. Ram Narayan Das 1961-I L.L.J. 552 : A.I.R. S.C. 1961 177. There the probationery sub-inspector was discharged from service for 'unsatisfactory work and conduct.' The High Court took the view that the order cast an 'indelible stigma affecting his future career'', but their lordships of the Supreme Court overruled that view on the ground that the employee had no right to the post and that he was discharged under the terms of his employment. On the question of stigma, their Lordships held as follows,-
Again mere termination of employment does not carry with it 'any evil consequences' such as forfeiture of his pay or allowances, loss of his seniority, stoppage or postponement of his future chances of promotion, etc. It is then difficult to appreciate what 'indelible stigma affecting the future career' of the respondent was cast on him by the order discharging him from employment for unsatisfactory work and conduct.
The decision supports the view I have taken.
15. But apart from the argument that the impugned order cast stigma on the competence of the petitioner, his learned Counsel has argued that the order was invalid as it imposed the penalty of removal from service and thereby violated Article 311(2) of the Constitution as it was passed without holding any inquiry. My attention has been invited in this connection to State of Bihar v. Gopikishore Prasad : (1960)ILLJ577SC and to Debesh Chandra Das v. Union of India (1969) Serv LR 485, State of Bihar v. Shiva Bhikshuk Mishra 1970 Serv L.R. 863, (1971) Lab. I.C. 724 SC and Appar Apar Singh v. State of Punjab (1971) 2 Serv L.R. 71 S.C.
16. Their Lordships of the Supreme Court have examined this aspect of the matter also and have lucidly brought it out in State of Punjab v. Sukh Raj Bahadur (supra) that while the preceding or the attendant circumstances of the order of termination of service have to be examined in each such case, the motive behind the order is immaterial. The emphasis on the 'precedent' or the attendant: circumstances has been reiterated by their Lordships in State of Bihar v. Shiva Bhikshuk Mishra 1970 Serv LR 863 : (1971) Lab. I.C. 724 S.C., and it has been held in Appar Apar Singh v. State of Punjab (supra), that the motive behind the order is of no consequence. They have also laid down the test question whether any ex parte adverse report against the employe has operated only as the motive for the passing of the order of reversion or whether it was the very foundation for passing that order?
17. The preceding and the attendant circumstances have, therefore, to be examined whether any ex ports report was merely the motive for passing the order of termination of service or whether it was the very foundation of that order. Before doing So it will, however, be advantageous to refer to the facts which led to the decisions in State of Punjab v. Sukh Raj Bahadur (supra), and Union of India v. R.S. Dhaba (supra), in the earlier of these two cases, the respondent was appointed to the Punjab Civil Service (Executive Branch) on probation for a period of 18 months, from a post in the office of Chief Commissioner, Delhi. Although that period expired in July, 1954, it was not extended by any order. The respondent received a charge-sheet with a letter dated January 14, 1957 asking him to reply to the charges within a fortnight, and to state whether he would produce any defence or like to be heard in person. He sent a reply stating that he wanted an opportunity of being heard in person. He was, however, reverted to his substantive post by an order dated May 23/26, 1958. The charges against him were 'fairly serious', but even so their Lordships of the Supreme Court upheld the reversion because they found that the departmental enquiry did not proceed beyond the stage of the charge-sheet, followed by the respondent's explanation thereto. They refused to consider the motive for the order, and upheld the respondent's reversion even though it was ordered some four years after the expiry of the unextended period of probation.
18. I have, already made a reference to their Lordships' decision in Union of India v. R.S. Dhaba (supra), and it will be recalled that even though the respondent was reverted in that case on the express ground that he had been 'found unsuitable after trial' their Lordships took the view that it was not reduction in rank by way of punishment under Article 311 of the Constitution. They referred to the two tests laid down in Purshotam Lal Dhingra v. Union of India 1958 S.C.R. 828 : A.I.R. 1958 S.C. 39: (i) whether the servant has a right to the post or the rank or (ii) whether he has been visited with evil consequences, and took note of the facts that the respondent had no right to the post as he held it on probation and that the order did not visit him with evil consequences as it did not contain any express words of stigma and did not visit him with any other evil consequence. They went on to observe as follows,-
Futher, even though misconduct negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant.
19. The above decisions have a direct bearing on the present controversy. 1 may, however, refer also to D. K. Rai v. Excise Commissioner. M.P. : (1967)ILLJ97MP . There the employee was appointed as Excise Sub-Inspector on probation on June 1, 1948. No order of confirmation was made for a long time, and on November 28, 1963, the Excise Commissioner issued a notice asking him to show cause why he should not be punished suitably for accepting illegal gratification from the person mentioned in the notice. A departmental inquiry was then started on that charge, by the Collector, under the Civil Services (Classification, Control and Appeal) Rules and the employee was asked to submit his statement of defence as well as the list of witnesses. He denied the charge. While the inquiry was pending, an order was passed on February 24, 1964, terminating his service. Their Lordship held that as under the terms of the appointment the probationer had no right to the post and was liable to be discharged at any time, there was nothing wrong if his service was terminated in accordance with the rules, and not by way of punishment. They held that the opinion entertained by the respondents about the suitability of the employee in his service was 'at the most a motive operating in their mind in terminating his services', but that could 'not alter the character of the termination and make the order of termination an order of punishment.'
20. It is thus well-settled that even if a charge-sheet is framed, and a formal departmental inquiry against a temporary or probationary employee is initiated, the disciplinary authority may take the view that it would not be necessary or expedient to terminate the employment by way of penalty, and take recourse to termination in accordance with the terms or the rules of his employment. The disciplinary authority's motive in doing so would not be material so long as the order is not founded on any earlier inquiry or a finding thereon. It is in this state of the law that the following facts relating to the present case have to be examined:
21. The Chief Engineer asked for the explanation of the petitioner on July 28, 1971. The petitioner says that he (Chief Engineer) made certain queries on September 27/28, 1971. Thereafter the Chief Engineer suspended him by an order dated October 4, 1971 for the purpose of making an inquiry into the allegations. No inquiry was held, but the Chief Engineer, it appears, sent some sort of a preliminary report to the Board on November 3, 1971. No action was taken on that report, and it has not been alleged by the petitioner that any further inquiry was made from him or that a regular inquiry was instituted. The petitioner, therefore, applied for reinstatement on April 12, 1972. He made another application to the same effect on may 6, 1972, and expressly stated that he may be reinstated pending any detailed inquiry against him. The Board then passed an order on June 1, 1972 for his reinstatement, without prejudice to such action as might be taken on the basis of the departmental inquiry. The petitioner resumed his duty on June 5, 1972. The Chief Engineer addressed a letter to the Board the same day stating that the petitioner had been reinstated without any decision on the alleged irregularities, and he suggested that an inquiry officer may be appointed in the case. At the same time he undertook to send the monthly reports on the work of the petitioner asked for by the Board. Monthly reports were accordingly sent by the Executive Engineer concerned on July 7, 1972, August 10, 1972 and September I, 1972, In the meantime the Secretary of the Board sent a letter to the Chief Engineer on August 30, 1972, asking him to send the monthly reports along with his special assessment report so that the Board might be able to decide whether to confirm the petitioner. The Superintending Engineer addressed a letter on September 1, 1972, by which he forwarded copies of the reports regarding the petitioner's work. In that letter he stated, inter alia that the petitioner had not behaved properly with his subordinate officer in a particular case. He expressed the view that definite comments on the petitioner's work could only be given when the actual work was started sometime after the middle of September, 1972. As the extended period of the petitioner's probation was to expire, on September 26, 1972, the Board passed the impugned order (document No. 5) on September 25, 1972, terminated his services on the ground that his work had been found unsatisfactory during the probationary period.
22. These facts have been admitted by the learned Counsel for the parties, and they are quite sufficient to show that, in this case, no charge-sheet was at all prepared or issued to the petitioner, he was not called upon to explain any charge-sheet prepared under the provisions of the Rajasthan State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1962, no inquiry officer was appointed, no evidence was recorded and no report of inquiry was prepared. The disciplinary inquiry did not, therefore, commence at all, and there was thus no question of recording any finding on the basis of any report of inquiry. Moreover, it has neither been pleaded nor established that any ex parte finding was arrived at, on the basis of any earlier report, so that it cannot be said that the petitioner's termination 'was founded' on any such report.
23. This was, therefore, a case in which the Board was required to take a decision whether or not to retain the services of the petitioner on a substantive basis with effect from September 26, 1972 when the maximum period of three years' probation was to expire. The Board had before it some earlier camplaints against the petitioner, as well as the aforesaid monthly reports of his performance as an Assistant Engineer dated July 7, 1972, August 10, 1972 and September 1, 1972. It cannot, therefore, be blamed if it thought it advisable, under these circurnstances, to invoke the condition contained in paragraph 3 of the petitioner's order of appointment which provided specifically that if his work was found to be 'unsatisfactory', he would be liable to be removed from service during or at the end of the probationary period, and passed the impugned order (document No. 5) terminating his service on the ground that his work had been found 'unsatisfactory'. Such a decision could well have been taken by the Board and was, at any rate, not illegal, as it was made in accordance with the express terms of his appointment, did not cast a stigma on the petitioner and did not otherwise attract the provisions of Article 311(2) of the Constitution.
24. I have gone through the cases which have been cited by the petitioner's learned Counsel, State of Bihar v. Gopikishore Prasad 1960-I L.L.J. 262 (supra) was a different case altogether and 1 have already made a reference to its peculiar facts due to which the impugned order was held to cast a stigma on the competence of the employee. The facts of Debesh Chandra Das v. Union of India : 1SCR220 , were also different for there the employee was informed that he could be retained only if he accepted a lower post. Moreover, it was stated in the affidavit of the Union of India that the performance of the employee did not come to the standard expected of a Secretary, and he was informed that ho could be kept only in a lower post. In Stale of Bihar v. Shiva Bhikshuk Misra (supra) the order of reversion was based on or was founded on an earlier inquiry and it was rot merely the motive for the order. The facts of the decision in Appar Apar Singh v. State of Punjab (supra), were also quite different for there an inquiry was conducted ex parte, a finding was recorded by the Deputy Directors that the allegation against the employee had been proved, the Deputy Directors recommended that he needed an 'exemplary punishment' and the Government accepted that finding and the recommendation to impose punishment and he was, therefore, reverted. All these were, therefore, different cases and cannot avail the petitioner.
25. It has, however, been argued that the very fact that the petitioner was placed under suspension by the order dated October 4, 1971, is sufficient to show that the termination of his service was by way of a penalty. The argument is untenable in the facts and circumstances of this case. The petitioner was no doubt suspended for the purpose of making an inquiry into the allegations Against him, but he was reinstated by the order dated June 1, 1972, and resumed his duties on June 5, 1972 as aforesaid. It was stated in that order that the reinstatement was without prejudice to such action as was to be taken by the Board as a result of departmental inquiry but, even so, no departmental inquiry was ordered at all. It will be recalled that when the Chief Engineer pointed out in his letter of June 5, 1972 that the reinstatement had been ordered without any decision on the alleged irregularities committed by the petitioner, and suggested that an inquiry officer may be appointed, the Board did not order the issue of a charge-sheet and holding of a departmental inquiry. On the other hand, the Board contented itself with the issue of instructions to the concerned Executive Engineer and the Superintending Engineer to submit monthly reports about the performance of the petitioner as Assistant Engineer. Thereafter the Chief Engineer was asked on August 30, 1972 to send the monthly assessment reports along with his own report 'for purpose of the Board's considering whether to confirm or not the probationer'. In that letter the Board expressed its desire to take a decision well in time of the expiry of the probationary period. Those reports have been reproduced by the petitioner in his affidavit dated February 72, 1973, and it will be sufficient to say that they cannot be said to be complementary or encouraging. The Board has, on the other hand, specifically stated in its reply that even though the petitioner was, from time to time, asked by his superiors to show improvement, he did not avail of the opportunity, and that as there was absolutely no improvement in his work, and the work was not found satisfactory even at the end of the extended period of probation, the Board had no alternative but to terminate his service on the expiry of the period of probation. If in all these circumstances the Board did not think it proper to confirm the petitioner, and decided to terminate his services, it cannot be said that merely because the petitioner was suspended once by the Chief Engineer, the subsequent order of the Board to terminate his employment was a penal nature. Such orders have not been held to be penal by their Lordships of the Supreme Court even in cases where charge-sheets for serious misconduct had been issued against the employees.
26. An ancillary argument has been advanced that the suspension of the petitioner was by way of a step towards the holding of a departmental inquiry and that it was, therefore, penal in nature. The learned Counsel has made a reference to Regulation 9 of the Rajasthan State Electricity. Board Employees (Classification, Control and Appeal) Regulations, 1962, in which it has been stated that an employee charged for an act of misconduct is liable to be suspended by the competent authority. He has also placed reliance on S. Pratap Singh v. State of Punjab : (1966)ILLJ458SC . A perusal of the petition shows, however, that no such plea has been taken by the petitioner, and the Board was not, therefore, in a position to state the facts bearing on the argument of the learned Counsel. It has already been shown that even, the issue of a charge-sheet for a serious allegation of misconduct has not been held by their Lordships of the Supreme Court to be of a penal nature if it was not the subject-matter of an inquiry, and a mere order of suspension, with a view to holding an inquiry which was never held, cannot detract from that legal position Moreover, the order of suspension was recalled and the petitioner was reinstated by the order dated June 1, 1972. He has admitted that no charge-sheet was served on him at all, and it is not his case that any departmental inquiry was started against him. It is also not the petitioner's case that, after reinstatement, the full salary for the suspension period was ultimately denied to him. His learned Counsel was specifically asked to state whether the Board had withheld any part of the petitioner's salary or was refusing to pay it, after his reinstatement, but he was unable to say (hat this was so. The order of suspension was, at any rate, an order. which had spent itself after the petitioner's reinstatement- the more so as it was not followed by any disciplinary proceeding. There is also nothing to show, in so far as the petitioner's contentions in the writ petition are concerned, that his earlier suspension, followed by reinstatement, had the effect of making the impugned other (document No. 5) an order of a penal nature. On the other hand, the Board has, in its reply, specifically stated the position as follows,-
It was originally thought to take desciplinary action against the petitioner and with that view the Chief Engineer suspended him but on account of the representations made by the petitioner seeking mercy and pity, this respondent took a very liberal view and forgetting everything against the petitioner desired that the petitioner may have scope and time and full opportunity to still work and improve. If the petitioner had shown any improvement in his work during the extended period of probation after reinstatement this respondent would have been too happy to confirm him. There is no grudge against the petitioner.
I am, therefore, unable to think that there is any justification for the argument that the suspension of the petitioner made the impugned order an order of a penal nature or that it otherwise invalidated that order. In these facts and circumstances, the decision in : (1966)ILLJ458SC , has no real bearing on the controversy.
27. It has lastly been argued by the petitioner's learned Counsel that although there was no reason to think that the work of the petitioner was unsatisfactory, the Board terminated his employment and that the impugned order was, therefore, mala fide and was made in bad faith. He has placed reliance on Maledath Bhara han Malvali v. Commr. of Police : AIR1950Bom202 , for the purpose of contending that an order is made mala fide when the authority concerned permits itself to be influenced by considerations which it ought not to permit. The learned Counsel has made a reference to the four reports mentioned in the petitioner's affidavit dated February 22, 1973 to show that they were not adverse reports.
28. A perusal of the writ petition shows, however, that no such plea has been taken by the petitioner He has stated in paragraph 12(f) that the order extending the probation was mala fide, with the object of circumventing the procedure of the departmental inquiry, and in sub-paragraph (g) it has been stated that mala fide orders were passed for extending of the period of probation and for suspension. These pleadings cannot, however, sustain the aforesaid argument of the petitioner's learned Counsel. It may be mentioned that the position regarding a plea of bad faith has been stated as follows in S. A. dc Smith's 'Judicial Review of Administrative Action', second edition, at page 316,
A Court will not in general entertain allegations of bad faith made against the repository of a power unless bad faith has been expressly pleaded.
The argument is, therefore, not tenable as it is. On the other hand, the Board has stated in its reply that there were no mala fides and that if it wanted to take disciplinary action against the petitioner, it was not difficult to do so. It has further been stated that the Board took a 'lenient or rather Kind view and in order to help the petitioner extended the period of probation and reinstated him'. It has also been stated that the Board really provided another opportunity to the petitioner to improve his working. Apart from the Board's reply, I have already made a reference to the reports on the petitioner's work which have been reproduced in the petitioner's own affidavit dated February 22, 1973, and he has not been able to show that any irrelevant factor influenced the decision of the Board in terminating his employment. The petitioner has not. therefore, been able to make out a case of abuse of power by the Board. It may be mentioned that, as has been stated by S. A. de Smith at page 313, 'the burden of proving abuse of power is not lightly discharged, especially if bad faith is alleged.' In fact if the respondents had any ill-will against the petitioner, or wanted to run him down unnecessarily, there was no reason for them to reinstate him and give him a fresh opportunity of showing his worth.
29. No other point has been argued and as I find no force in this writ petition, it is dismissed. There will, however, be no order as to the costs.