A probationer’s discharge founded on alleged misconduct requires a fair opportunity of defence.

The applicant, appointed as a Medical Officer in 2018 and serving on probation, was selected for a postgraduate medical course in 2019. He applied through proper channel for study leave or other admissible leave but proceeded to pursue the course without formal permission.

The High Court directed the respondents to consider his representation under the applicable policy and rules; the Tribunal later issued a similar direction in T.A. No. 2421/2021. The respondents subsequently rejected his claim and terminated his probation under Rule 21(1) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, citing unauthorized absence. The applicant challenged that order as founded on misconduct and sought reinstatement and service benefits.

Whether the respondents could terminate the applicant’s probation under Rule 21(1) where the order was founded on alleged unauthorized absence and proceeding for higher studies without permission, without affording him an opportunity to defend himself

Whether setting aside the termination entitled the applicant to have his postgraduate-study period treated as duty and to receive consequential service and monetary benefits

Rule 21(1) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 empowers the appointing authority to terminate a probationer’s probation and discharge the probationer before the prescribed period expires; however, the order’s substance and foundation, rather than its label, determine whether it is a discharge simpliciter or an action founded on misconduct.

Where alleged misconduct forms the foundation of termination, the employer cannot avoid the applicable procedural fairness and natural-justice requirements merely by describing the action as termination of probation. Article 128 of the Jammu and Kashmir Civil Service Regulations, Vol. I, concerning absence without leave, does not dispense with fair determination where absence is made the basis of an adverse, stigmatic order.

The Tribunal also relied on Chartered Bank v. Chartered Bank Employees Union, AIR 1960 SC 919, on looking beyond the form of an order; Krushnakant B. Parmar v. Union of India, 2012 0 Supreme (SC) 139, on the relevance of whether alleged absence was willful; and its decision in Dr. Bilal Ahmad Wani v. UT of J&K & Ors., O.A. No. 649/2021, decided 27 March 2025, concerning termination of a probationer on allegations of unauthorized absence.

The Tribunal found that the impugned order was not based merely on an assessment of the applicant’s suitability during probation: it relied on alleged unauthorized absence and indiscipline arising from his pursuit of higher studies without prior permission.

Because the applicant had applied for leave and his request and continued service had been the subject of prior judicial directions, the circumstances surrounding his absence required consideration rather than being treated as conclusively established misconduct without an effective opportunity to respond.

The Tribunal therefore held that Rule 21(1) and Article 128 did not justify dispensing with fair procedure. It did not decide whether the applicant was entitled to study leave or whether his absence was justified; those matters were left for consideration in further proceedings.

It permitted the respondents, if authorized by the applicable rules, to initiate de novo proceedings concerning the applicant’s absence and pursuit of higher studies, subject to natural justice and an adequate opportunity to defend himself.

The quashing did not automatically entitle the applicant to have the study period treated as duty or to receive consequential benefits; those matters were to be decided by a reasoned order in light of the proceedings and prior judicial directions, with the exercise to be completed, as far as practicable, within four months.

No order as to costs was made.