S. Nainar Sundaram, J.
1. The second respondent was earlier in the service of the petitioner under contract. However, on 3rd January, 1977, he was appointed as a Probationary Clerk and he was put on probation for a period of six months with effect from 7th January, 1977. Clause 2 of the order of appointment specifically states that at the end of the probationary period if the 2nd respondent is found suitable he will be confirmed and absorbed in the service of the petitioner and the decision of the petitioner will be final. This necessarily implies that if the services of the 2nd respondent are found to be not suitable, his services are liable to be terminated. The manager of the Rajapalayam branch of the petitioner, where the 2nd respondent worked, made his remarks on 14th June, 1977, with regard to the quality of the services rendered by the 2nd respondent during the period of probation as follows:
He is a very slow worker and the output of work (productivity) is poor. His handwriting is very bad, but he has a good knowledge of his work. He has so far availed leave on loss of pay for 6 days. However, we recommend that he may be taken on our regular service.
On the basis of this report, the petitioner obviously assessed the suitability of confirming the 2nd respondent in its service and came to the conclusion that his performance is. not satisfactory. Hence, by order, dated 1st July, 1977, stating that the 2nd respondent's performance during the probationary period is not satisfactory and he is not fit for confirmation, it terminated his services forthwith. As against this order of the petitioner the 2nd respondent preferred an appeal to the 1st respondent under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947, hereinafter referred to as 'the Act'. The 1st respondent opined that the termination of the services of the 2nd respondent was based on extraneous consideration; the head office of the petitioner-bank has ignored the conclusion of the branch manager; the adverse remarks, which ought to have been communicated to the 2nd respondent were not communicated and hence the termination is not bona fide. In this view, the 1st respondent set aside the order of termination of the service of the 2nd respondent passed by the petitioner. The petitioner challenges the order of the 1st respondent, dated 30th November, 1978, in the present writ petition.
2. The main ground urged by Mr. M.R. Narayanaswami, learned Counsel for the petitioner, is that when the services of a probationer are terminated on the ground that his work as a probationer was not satisfactory. It cannot be held that such termination was for misconduct and should have been effected only after an enquiry putting the probationer on notice of the adverse remarks and calling upon him to offer his explanation. The learned Counsel, in support of this proposition, cites the judgment of Ismail, J., as he then was, in M. Palaniswami v. M.C.W. Employees' Co-operative Stores (1974) 46 F.J.R. 330.
3. As against this submission, Mr. R. Natarajan, learned Counsel appearing for the 2nd respondent, would submit that the final conclusion of the branch manager was for taking the 2nd respondent on regular service) and this ought not to have been ignored by the head office of the petitioner when it terminated the services of the 2nd respondent.
4. The remarks of the branch manager, to a very great extent, indicate that it is not suitable to continue the services of the 2nd respondent after the probationary period. It cannot be stated that the head office of the petitioner is bound to take note of the ultimate recommendation of the branch manager when substantial portions of the remarks do not speak well of the services of the 2nd respondent as a probationer and are not complimentary to him. The obligation to confirm will arise only if, at the end of the probationary period, the 2nd respondent is found suitable. As pointed out above, if the services of the 2nd respondent are found to be not satisfactory, the petitioner is not bound to confirm the services of the 2nd respondent and can terminate the same on the ground of un-suitability. This is what has been done in the instant case. Such an order of termination cannot be equated to termination on the ground of misconduct, which, of course, must necessarily be proceeded by a domestic enquiry. In this context, I am in respectful agreement with the dictum of Ismail, J., as he then was, in the decision referred to above. The order of termination is in accordance with the order of appointment prescribing probation and stipulating confirmation only if the services are found suitable. Such an order cannot be deemed to cast any stigma so as to say it is an order by way of punishment.
5. Even where Article 311(2) of the Constitution of India, is invoked, the, Supreme Court in Commodre Commanding Southern Naval Area v. V.N. Rajan : (1981)IILLJ1SC , has held:
Where the decision to terminate the services of the servant had been taken at the highest level on the ground of unsuitability of the servant in relation to the post held by him and it was not by way of any punishment and no stigma was attached to him by reason of the termination of his services; termination could not be said to be vitiated for non-observance of Article 311(2).
6. The legal position being clear as above, it is not possible to sustain the order of the 1st respondent. This obliges me to interfere in writ proceedings and accordingly, the writ petition is allowed. But there will be no order as to costs.