General Manager, Bank of Baroda and Othersv.Ashok Kumar Singh & Others

Legal Analysis: General Manager, Bank of Baroda and Others vs. Ashok Kumar Singh & Others

Citation: 2026 INSC 589
Court: Supreme Court of India
Bench: Division Bench comprising Justice J.K. Maheshwari and Justice Atul S. Chandurkar
Judgment Author: Justice J.K. Maheshwari
Date of Decision: May 29, 2026
Nature of Judgment: Civil Appeal under Article 136 of the Constitution of India against the judgment of the Calcutta High Court, which had dismissed the Bank’s appeal against the Single Judge’s order setting aside the termination of a probationary officer.

Synopsis of the Judgment
The respondent was appointed as Probationary Assistant General Manager (Networking) by Vijaya Bank (later amalgamated with Bank of Baroda). He was placed under suspension for allegedly attempting to remove confidential tender documents. The suspension was revoked, but disciplinary proceedings were never initiated. His probation was extended twice citing unsatisfactory performance. Ultimately, his services were terminated under Regulation 16(3)(a) of the Vijaya Bank (Officers’) Regulations, 1982 read with the appointment letter, which allowed termination of a probationer by one month’s notice or pay in lieu thereof. The Single Judge of the Calcutta High Court set aside the termination, holding it was based on irrelevant considerations. The Division Bench dismissed the Bank’s appeal. The Supreme Court upheld the High Court, holding that the termination was punitive in nature (disguised as simpliciter) because it was founded on allegations of misconduct rather than genuine assessment of performance. The Court found that the three memos relied upon to demonstrate unsatisfactory performance lacked evidentiary value, and that the Bank had sought advice from the Central Vigilance Commission to terminate on grounds of misconduct but changed course to avoid a formal enquiry. The Court upheld the quashing of the termination but directed that the respondent would be entitled to 50% backwages and notional benefits.

1. Basic Information of the Judgment

• Case Title: General Manager, Bank of Baroda and Others vs. Ashok Kumar Singh & Others

• Civil Appeal No.: 4814 of 2017

• Bench: Justice J.K. Maheshwari and Justice Atul S. Chandurkar (Division Bench)

• Judgment Author: Justice J.K. Maheshwari

• Date of Decision: May 29, 2026

• Citation: 2026 INSC 589

• Appeal From: Impugned final judgment dated 16.10.2015 of the High Court of Calcutta in APO No. 30 of 2013, dismissing the Bank’s appeal against the order dated 18.10.2012 of the Single Bench in W.P. No. 2177 of 2005.

2. Legal Framework

Laws and Provisions Involved:

• Vijaya Bank (Officers’) Regulations, 1982: Regulation 16(3)(a) – termination of direct appointee on probation by one month’s notice or payment of one month’s emoluments in lieu thereof, if Competent Authority is of opinion that officer is not fit for confirmation.

• Constitution of India, 1950: Article 14 (equality), Article 16 (equality in public employment), Article 311 (protection to civil servants – not applicable to probationers).

• Indian Contract Act, 1872: Contract of employment – terms of appointment letter.

• Principles of natural justice: Right to be heard before adverse action, especially where termination is stigmatic or punitive.

Key Precedents Cited and Applied:

• Parshotam Lal Dhingra v. Union of India (AIR 1958 SC 36) – Distinction between termination simpliciter and termination by way of punishment.

• Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta (1999) 3 SCC 60 – If findings of misconduct are arrived at without enquiry, termination founded on allegations is bad; if no enquiry held and employer not inclined to conduct one, allegations are mere motive and termination is valid. Stigma can be inferred from documents referred to in termination order.

• Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (2002) 1 SCC 520 – Principles reiterated.

• Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. & Ors. (2003) 2 SCC 263 – Distinction between foundation and motive; if misconduct is the real basis, termination is punitive even if order is simpliciter in form; court can look behind the order.

• State of Punjab & Ors. v. Jaswant Singh (2023) 9 SCC 150 – Probationer has no right to hold post but cannot be arbitrarily discharged; subjective satisfaction must be based on objective facts.

• Sarita Choudhary v. High Court of M.P. (2022) – Termination on the basis of adverse ACRs or assessment remarks may be stigmatic and punitive; court must look into substance, not form.

What the Judgment is About: The judgment upholds the quashing of the termination of a probationary bank officer, holding that the termination was punitive in nature (founded on allegations of misconduct) rather than a genuine termination simpliciter for unsatisfactory performance. The Court found that the Bank had initially sought to initiate disciplinary proceedings for misconduct but, finding the process onerous, instead terminated the officer under the probation clause. The three memos relied upon to show unsatisfactory performance were held to be of no evidentiary value (one contradicted by government appreciation, another due to third-party technical fault, and the third uncommunicated). The Court reaffirmed the principle that what cannot be done directly (termination for misconduct without enquiry) cannot be done indirectly (termination under the guise of unsatisfactory performance).

3. Relevant Facts

• The respondent (Ashok Kumar Singh) was appointed as Probationary Assistant General Manager (Networking) by Vijaya Bank (since amalgamated with Bank of Baroda) on 05.01.2004, on probation for one year, extendable by another year.

• On 15.01.2005, he was placed under suspension on the allegation of attempting to take away four boxes of files containing highly confidential tender documents from his office cabin through his driver.

• On 16.02.2005, his probation was extended for six months (first extension) citing unsatisfactory performance during the initial probation period.

• On 12.04.2005, the Bank revoked the suspension without prejudice to its right to initiate disciplinary proceedings. No disciplinary proceedings were ever initiated.

• On 13.04.2005, he rejoined and was transferred to Kolkata Regional Office.

• On 04.07.2005, his probation was extended for another six months (second extension) again citing unsatisfactory performance.

• On 05.11.2005, his services were terminated under Regulation 16(3)(a) of the 1982 Regulations read with Clause 3 of the offer of appointment, on the ground that his performance during the entire period of probation was not satisfactory. He was paid one month’s emoluments in lieu of notice.

• The respondent filed a writ petition before the Calcutta High Court challenging the termination. The Single Judge allowed the writ petition on 18.10.2012, holding that the termination was based on irrelevant considerations and non-consideration of relevant factors.

• The Bank filed an appeal before the Division Bench, which was dismissed on 16.10.2015.

• The Bank appealed to the Supreme Court. During pendency, Vijaya Bank was amalgamated with Bank of Baroda (Gazette Notification dated 02.01.2019), and Bank of Baroda was substituted as the appellant.

• The Supreme Court, after hearing the parties, dismissed the appeal and upheld the High Court’s orders, but modified the relief by granting 50% backwages.

4. Issues

1. Whether the termination of a probationer under Regulation 16(3)(a) of the Vijaya Bank (Officers’) Regulations, 1982, which allows termination by one month’s notice or pay in lieu thereof, is absolute and unfettered, or whether it is subject to judicial review on grounds of arbitrariness, mala fides, or being punitive in nature.

2. Whether the termination of the respondent was a genuine termination simpliciter for unsatisfactory performance, or whether it was a punitive termination disguised as a simpliciter termination, founded on allegations of misconduct (the alleged removal of confidential documents) without holding a disciplinary enquiry.

3. Whether the three memos dated 23.07.2005, 14.09.2005 and 31.10.2005 relied upon by the Bank to demonstrate unsatisfactory performance had any evidentiary value, and whether they were sufficient to form a reasonable opinion of unsuitability.

4. Whether the termination order was vitiated by non-communication of adverse material (the memo dated 31.10.2005 was not served) and whether the principles of natural justice were violated.

5. Whether the High Court was justified in quashing the termination order, and what relief (backwages, consequential benefits) should be granted to the respondent.

5. Ratio Decidendi

A. The discretion to terminate a probationer under Regulation 16(3)(a) is not absolute; it must be exercised based on objective material and not arbitrarily (Paras 19-24).

The Court held that while a probationer has no right to hold the post, the employer (especially the State or its instrumentality) cannot act whimsically. The subjective satisfaction of the Competent Authority must be rooted in objective facts – such as performance appraisals, specific instances of deficiency, or credible assessments. The discretion cannot be used to punish an employee without following due process. The Court relied on Jaswant Singh and Sarita Choudhary to hold that termination during probation is not immune from judicial review on grounds of arbitrariness, mala fides, or being punitive.

B. A distinction must be drawn between termination simpliciter (for unsuitability) and punitive termination (founded on misconduct). If misconduct is the foundation, a disciplinary enquiry is required (Paras 21-22, 37-38, 41-45).

The Court referred to Dipti Prakash Banerjee and Mathew P. Thomas to explain the distinction:

• If the employer holds an enquiry, arrives at findings of misconduct, and then terminates, the termination is punitive and requires compliance with natural justice.

• If the employer does not hold an enquiry and merely uses allegations as the motive (i.e., the employer is not inclined to enquire but does not want to continue the employee), the termination may be valid as simpliciter.

• However, if the real basis for termination is misconduct, and the employer deliberately avoids a formal enquiry by using the probation clause, the termination is a colourable exercise of power and is liable to be set aside.

In the present case, the Court found that the Bank had initially sought advice from the Central Vigilance Commission to initiate major penalty proceedings against the respondent for misconduct (the alleged removal of confidential files). The Commission advised initiating disciplinary proceedings. However, the Bank, noting that the respondent was still on probation, changed course and sought advice to terminate under Regulation 16(3)(a) instead. The office note dated 05.11.2005 clearly stated that “it may not be necessary to hold the departmental enquiry” because the officer was on probation. The Court held that this was a clear case where misconduct was the foundation, not merely the motive. The Bank used the probation clause to bypass a formal enquiry, rendering the termination illegal.

C. The three memos relied upon by the Bank lacked evidentiary value and could not justify a finding of unsatisfactory performance (Paras 31-36).

The Court examined each memo:

• Memo dated 23.07.2005: The memo criticised the implementation of OLTAS (Online Tax Accounting System). However, a letter from the Central Board of Direct Taxes, Ministry of Finance, Government of India, dated 15.07.2005 (just eight days earlier), commended the Bank for “praiseworthy” performance in implementing OLTAS and advised other banks to contact the respondent for assistance. The Court held that the memo was issued on extraneous considerations and was contradictory to the government’s appreciation. It could not be read adversely against the respondent.

• Memo dated 14.09.2005: The memo alleged delayed credit of Rs.66 crores due to failure to use RTGS. However, the State Bank of India (SBI), which was responsible for the transfer, admitted in a letter dated 05.10.2005 that there was a “technical problem” on their part due to which the remittance could not be sent through RTGS. The respondent had even written to SBI seeking interest for the one-day delay. The Court held that no liability could be attributed to the respondent.

• Memo dated 31.10.2005: The memo contained multiple allegations (making a field engineer wait, tearing reports, using unauthorised internet access, etc.). The Court noted that the Bank failed to demonstrate that this memo was ever communicated to the respondent. An uncommunicated memo cannot be relied upon to the prejudice of an employee, as it violates natural justice. The memo had no evidentiary value.

D. The termination order was stigmatic and punitive; the Bank’s office note revealed that misconduct was the real basis (Paras 39-45).

The Court examined the office note dated 05.11.2005, which stated that the Central Vigilance Commission had advised initiating major penalty proceedings for misconduct, but since the respondent was on probation, the Bank sought advice to terminate under Regulation 16(3)(a). The note explicitly said: “it may not be necessary to hold the departmental enquiry… because the official is not a confirmed employee.” The Court held that this was a clear case of the Bank using the probation clause as a device to avoid a disciplinary enquiry. The termination was founded on misconduct, not on a genuine assessment of unsatisfactory performance. The principle “what cannot be done directly cannot be done indirectly” applies. The termination was therefore punitive and illegal.

E. The High Court was justified in quashing the termination, but the respondent is entitled only to 50% backwages (Paras 46-48).

The Court upheld the High Court’s decision to set aside the termination. However, having regard to the peculiar facts and circumstances (including the fact that the respondent had not worked from the date of termination until superannuation), the Court directed that the respondent would be entitled to 50% backwages from the date of termination up to the date of superannuation, along with notional consequential benefits. The Bank of Baroda (as the successor) was directed to comply within three months.

6. New Legal Principles Established / Reiterated

• Termination of a probationer is not immune from judicial review: Even though a probationer has no right to the post, the employer’s decision to terminate must be based on objective material and cannot be arbitrary, mala fide, or punitive. The discretion under Regulation 16(3)(a) must be exercised in a fair and reasonable manner.

• Foundation vs. motive test applied to probationers: If misconduct is the foundation (i.e., the employer would not have terminated but for the misconduct), then termination is punitive and requires a disciplinary enquiry. If misconduct is merely the motive (i.e., the employer, without holding an enquiry, decides that the employee is unsuitable), termination may be valid as simpliciter. The distinction depends on the facts and the employer’s conduct.

• Colourable exercise of power – using probation clause to avoid enquiry: If the employer initially initiates steps for disciplinary proceedings (e.g., seeking advice from the Vigilance Commission) and then, upon realising that the employee is on probation, terminates under the probation clause without holding an enquiry, the termination is a colourable exercise of power and is liable to be set aside. What cannot be done directly cannot be done indirectly.

• Uncommunicated adverse remarks cannot be relied upon: An adverse memo or report that is not served on the employee cannot be used to justify termination, as it violates the principles of natural justice.

• Contradictory contemporaneous documents (e.g., government appreciation vs. internal memo) indicate extraneous considerations: If an employee’s work is commended by an external authority (like the Government of India), an internal memo criticising the same work on the same subject is suspect and may be treated as issued on extraneous grounds.

7. Court’s Examination and Analysis of Concepts

• Examination of Regulation 16(3)(a) (Paras 19-24): The Court held that while the regulation gives the Competent Authority discretion to terminate a probationer, that discretion is not absolute. The opinion of the Authority must be formed on some material – performance appraisals, specific instances, or credible reports. A decision based on whims, fancies, or extraneous considerations would be arbitrary and violative of Article 14. The Court emphasised that even probationers are entitled to fair treatment.

• Analysis of the termination order and office note (Paras 39-45): The Court contrasted the termination order (which cited unsatisfactory performance) with the office note dated 05.11.2005 (which referred to the advice of the Central Vigilance Commission to initiate major penalty proceedings for misconduct). The office note explicitly stated that holding a departmental enquiry was unnecessary because the employee was on probation. The Court held that this was a classic case of using the probation clause as a shield to avoid a disciplinary enquiry. The termination was therefore punitive.

• Evaluation of the three memos (Paras 31-36): The Court performed a detailed factual analysis:
  For the memo dated 23.07.2005, the Court juxtaposed it with the Government of India’s appreciation letter dated 15.07.2005. The Court noted the stark contradiction and held that the memo was issued on extraneous considerations.
  For the memo dated 14.09.2005, the Court relied on SBI’s admission of a technical fault, absolving the respondent.
  For the memo dated 31.10.2005, the Court noted that the Bank could not prove service of the memo, and therefore it could not be used against the respondent.

• Application of Dipti Prakash Banerjee and Mathew P. Thomas (Paras 37-38, 42): The Court quoted extensively from these judgments to explain the distinction between foundation and motive. It held that in the present case, the misconduct was the foundation, not the motive. The Bank had already decided to initiate disciplinary proceedings based on the misconduct. The decision to terminate under the probation clause was a change of strategy to avoid the rigours of a formal enquiry. Therefore, the termination was invalid.

• Relief (Para 46-48): The Court upheld the quashing of the termination but, exercising its discretion, awarded only 50% backwages (instead of full backwages) and notional benefits, considering that the employee had not worked during the period.

8. Critical Analysis

Strengths: The judgment is a strong reaffirmation of the principle that probationers are not entirely at the mercy of the employer. It correctly distinguishes between genuine assessment of unsuitability and punitive action disguised as termination simpliciter. The detailed examination of the three memos demonstrates the Court’s willingness to go behind the order and examine the factual matrix. The reliance on the office note dated 05.11.2005 is a masterstroke – it exposed the Bank’s true intention to avoid a disciplinary enquiry. The judgment also sends a clear message to employers: if you have already initiated steps for disciplinary proceedings based on misconduct, you cannot later terminate under the probation clause to bypass natural justice. The award of 50% backwages is a balanced relief – it compensates the employee for the illegal termination but recognises that he did not actually work.

Potential concerns: The judgment does not explicitly overrule or distinguish earlier cases that held that probationers have no right to be heard before termination (e.g., Parshotam Lal Dhingra). Instead, it carves out an exception where the termination is punitive. This is consistent with the existing jurisprudence. Another concern is that the Court did not discuss whether the Bank could have terminated the respondent for misconduct after holding a proper enquiry. The Court held that the termination was illegal because it was done without enquiry. The Bank is not precluded from initiating disciplinary proceedings even now (though the employee has superannuated, so it may be moot). The judgment also does not explicitly address the fact that the respondent was given two extensions of probation, which might have indicated genuine dissatisfaction. However, the Court found that those extensions were themselves tainted by the same misconduct narrative.

Practical impact: This judgment will be cited by probationary employees in government and public sector undertakings to challenge terminations that are stigmatic or punitive. It will be used to argue that if the employer has initiated any steps towards disciplinary proceedings (e.g., suspension, show cause notice, referral to Vigilance Commission), termination under the probation clause without enquiry is illegal. Employers will be cautioned against using the probation clause as a device to avoid disciplinary proceedings. The judgment also emphasises the importance of communicating adverse remarks – an uncommunicated memo cannot be used to justify termination. For banks and financial institutions, the judgment may lead to greater scrutiny of termination orders passed during probation, especially where there is a history of suspension or misconduct allegations.

9. Final Outcome

• Civil Appeal No. 4814 of 2017: Disposed of (effectively dismissed, with modification of relief).

• The impugned judgment of the Division Bench of the Calcutta High Court dated 16.10.2015 and the order of the Single Bench dated 18.10.2012 were upheld insofar as they set aside the termination order.

• The termination of the respondent dated 05.11.2005 was held to be illegal and unsustainable.

• The respondent was held entitled to 50% backwages from the date of termination (05.11.2005) up to the date of his superannuation, along with notional consequential benefits.

• The Bank of Baroda (as the amalgamated successor of Vijaya Bank) was directed to settle the benefits within three months.

• The appeal was disposed of in the above terms, with no order as to costs.

• Pending applications, if any, were disposed of.

10. Practical Application

• For a probationary employee (plaintiff) challenging termination: If you are terminated during probation, examine whether the termination order is truly simpliciter or whether it is based on allegations of misconduct. If the employer had suspended you, issued a show cause notice, or referred the matter to a vigilance commission, argue that the termination is punitive and requires a disciplinary enquiry. Collect all documents – suspension order, show cause notice, correspondence with vigilance authorities, office notes. If the employer has not communicated any adverse memo or report, argue that those documents cannot be relied upon. If there is contemporaneous appreciation of your work from external authorities (e.g., government departments), use that to contradict internal memos. Cite this judgment and Dipti Prakash Banerjee to argue that the termination is a colourable exercise of power.

• For an employer (bank/public sector undertaking) terminating a probationer: Before terminating a probationer, ensure that the decision is based on a genuine assessment of unsuitability, not on allegations of misconduct. If there is any allegation of misconduct, either hold a disciplinary enquiry (if you intend to punish) or drop the charges and assess performance independently. Do not suspend the employee, then revoke suspension “without prejudice,” and then terminate under the probation clause – that will be seen as using the probation clause as a device. If you rely on performance reports or memos, ensure they are communicated to the employee and that the employee has had an opportunity to respond. Uncommunicated memos will be disregarded. Also, ensure that there is a contemporaneous record of performance assessment (e.g., annual confidential reports, specific instances of deficiency) that is not tainted by the misconduct narrative.

• For a High Court judge (while hearing a writ petition against termination of a probationer): Apply the “foundation vs. motive” test. Look beyond the form of the order. Examine whether the employer had initiated any steps towards disciplinary proceedings (suspension, charge sheet, reference to vigilance). If the employer has done so, termination under the probation clause without enquiry is suspect. Also, check whether the employer has relied on uncommunicated adverse remarks – those cannot be used. If the employee has produced contemporaneous appreciation from external authorities that contradicts internal memos, that indicates extraneous considerations. Quash the termination if it is punitive. If the employee has not worked during the period, consider awarding partial backwages (e.g., 50%) as a balancing measure.

• For a lawyer advising a probationary employee: Immediately upon termination, file a writ petition under Article 226, not a civil suit. Challenge the termination on the ground that it is punitive and stigmatic. Annex all documents: appointment letter, suspension order, revocation order, memos (if any), and any appreciation letters. If the employer has not served any memo, state that on affidavit. If the employer has sought advice from a vigilance commission, obtain that correspondence through RTI. Argue that the employer cannot be allowed to do indirectly what it cannot do directly. Seek quashing of the termination and reinstatement with backwages. If reinstatement is not possible (e.g., the employee has crossed age or the post is no longer available), seek compensation. After this judgment, courts may award partial backwages even if the termination is quashed.

11. Court Lines

• “In the realm of service law, particularly if the employer is the State, regardless of how sweeping or absolute the contractual language appears, such discretion is not unchecked or unscreened. The discretion should be based on some material, and the Authority cannot form an opinion based on whims and fancies.” (Para 20)

• “A distinction is required to be drawn between a routine non‑stigmatic termination for unsuitability and a disguised punitive termination. If the employer’s decision is founded on allegations of misconduct or severe deficiency, the termination is stigmatic. It cannot stand in absence of compliance of due process, and the probationer should be afforded an opportunity of hearing or to defend his case.” (Para 21)

• “If a discharged probationer can demonstrate that the termination was driven by personal bias, vindictiveness, or an ulterior motive of a superior rather than a genuine assessment of their work, such termination, even during probation, is liable to be set‑aside.” (Para 21)

• “The termination order was primarily predicated upon the ‘misconduct’ alleged against the Respondent No. 1. It cannot be said that Respondent No. 1 was terminated from services because his work was found to be simply unsuitable. Upon consideration of the material placed on record, it is evident that the alleged misconduct was for all intent and purposes, the motive as well as foundation for the termination, even though the formal order ostensibly cites unsatisfactory performance.” (Para 41)

• “While an employer undoubtedly retains the right to terminate services for genuine inefficiency, the law does not permit the use of ‘unsatisfactory performance’ as a disguise to bypass formal disciplinary proceeding. It is a settled proposition of law that what cannot be done directly cannot be done indirectly.” (Para 45)

• “If the Bank had not been satisfied with his work, there was no reason for the Government of India to advise other banks to contact the respondent for assistance in implementing OLTAS.” (Para 32, paraphrased)

• “The memo dated 31.10.2005 was never communicated to Respondent No. 1, effectively depriving him of an opportunity to put his defense. Therefore, any reliance placed on this uncommunicated memo would amount to violation of the principles of natural justice.” (Para 36)

12. Legal Strategy Insight

• For the employee (plaintiff): To successfully challenge a probationary termination, you must gather evidence that the termination was punitive, not simpliciter. The most powerful evidence is any document showing that the employer initiated steps towards disciplinary proceedings (e.g., suspension order, show cause notice, referral to vigilance commission, internal note recommending enquiry). Also, collect any contemporaneous appreciation of your work (e.g., letters from government departments, awards, positive feedback). If the employer relies on memos, check if they were served on you. If not, argue that they cannot be used. In your writ petition, specifically plead that the termination is a colourable exercise of power and that the employer used the probation clause to avoid a disciplinary enquiry. Cite Dipti Prakash Banerjee, Mathew P. Thomas, and this judgment. If you have not worked during the period, be prepared to accept partial backwages (the Court may grant 50% or less). Do not refuse partial backwages – it is better than nothing.

• For the employer (bank/PSU): When terminating a probationer, do not mix misconduct with performance. If there is misconduct, either (a) hold a disciplinary enquiry and impose punishment (which may include dismissal), or (b) ignore the misconduct and assess performance purely on work output. If you choose (b), ensure that you do not have any contemporaneous documents suggesting that you were pursuing disciplinary action. Do not suspend the employee and then revoke suspension “without prejudice.” If you do, the court will infer that the termination is linked to the suspension. If you rely on performance memos, serve them on the employee and give an opportunity to respond. Document the performance assessment in Annual Confidential Reports (ACRs) or regular appraisal notes. Avoid creating an office note that says “it may not be necessary to hold a departmental enquiry because the employee is on probation” – that note will be used against you. If the employee has been appreciated by external authorities, be careful before issuing contradictory memos.

• For the High Court (while adjudicating): When a probationer challenges termination, examine the following checklist:
  Was the employee suspended or issued a show cause notice for misconduct?
  Did the employer seek advice from a vigilance commission or any external body?
  Is there an internal note or correspondence indicating that disciplinary proceedings were contemplated?
  Are the memos relied upon served on the employee?
  Is there any contemporaneous appreciation of the employee’s work that contradicts the employer’s assessment?
  Does the termination order itself (or the accompanying documents) refer to misconduct?
  If any of these factors are present, the termination is likely punitive. Quash the termination. If the employee has not worked, consider granting 50% backwages (or less) as a balancing measure. Do not grant full backwages if the employee did not contribute to the organisation.

• For a lawyer drafting a termination order for a probationer: Use simple language: “Your services are terminated with immediate effect. One month’s emoluments are enclosed in lieu of notice.” Do not give reasons. Do not refer to any misconduct, memos, or investigations. Do not attach any documents. The order should be completely silent. If the employee asks for reasons, you may give them separately, but not in the termination order. This will make it harder for the employee to argue that the termination is stigmatic. However, if there is a background of suspension or disciplinary proceedings, the court will still look behind the order. The safest course is to either (a) complete the disciplinary enquiry and impose punishment, or (b) genuinely assess performance without any reference to misconduct.