What most attracts our general populace to government jobs is job security, in other words, Right to Hold the Post. A permanent government employee has a right to hold the post and cannot be removed or dismissed without following the procedure prescribed in Article 311(2) of the Constitution of India, 1950. Such employees can only be removed or discharged, when the post is abolished or he or she is declared to be guilty of misconduct, negligence or inefficiency that too after carrying out appropriate departmental proceedings. (See Gramin Yuvak Vikas Shikshan vs. Shivnarayan Datta Raut, 2026 LiveLaw (Del) 168)

However, the said protection ipso facto is not applicable to an employee whose appointment is temporary in nature i.e. 'contractual', 'fixed pay', 'project based', 'contingency paid' or employees who are on probation.

Service of such employees can be terminated with a simple order of discharge, also known as Termination Simpliciter. However, such employees are also entitled to certain protection. Their service cannot be terminated arbitrarily or punitively or by a stigmatic order without following the due process. When such order of termination is based on misconduct or casts aspersions and stigma on the employee and affects his or her right to future employment, then such order amounts to dismissal and the same cannot be passed without affording the employee an opportunity to present his or her case and without holding a proper inquiry in consonance with the principle of natural justice. Thus, in such case, they too, would become entitled to protection granted under Article 311(2). (See S B T S Devi Vs. State of A.P, Surinder Kumar Vs. Central Sanskrit University)

What is Termination Simpliciter, Punitive & Stigmatic?

Termination Simpliciter: When termination of service of a temporary or probationary employee is carried out in exercise of the contractual right of the employer or the governing rule and when such order of termination (1) is not punitive in nature, (2.) does not carry evil or civil consequences on the employee, (3.) does not cast stigma on the employee, (4.) does not hamper his or her right to future government employment, (5.) is not founded on misconduct, then such type of termination order is generally known as Termination Simpliciter. As such orders are neither punitive nor stigmatic, protection granted under Article 311 is not attracted and such orders can be passed without following the principles of natural justice. (See 2025 LiveLaw (SC) 261)

In certain cases, there is material or an allegation of misconduct against an employee. However, the employer has chosen not to go into it and has passed an order of termination simpliciter, then in such cases also, the principle of natural justice is not required to be followed. (See Ajay Ramesh Dinode Vs. State of Maharashtra)

Punitive: An order of termination is said to be punitive when either of the following test is satisfied, (1.) when the employee had the right to hold the post and the said right is forfeited, (2.) when the employee is visited with evil consequence, being loss of pay & allowances, or stigma which will affect his or her chances of future employment.

Stigmatic: Stigma means blemish or disgrace. When the termination order is founded on commission or omission of an act which amounts to misconduct then such order is stigmatic in nature as they cast stigma on the conduct, character and work of the employee. Further, an order of termination is stigmatic in nature when it entails serious consequences on the prospect of future employment of the employee. (See 2025 LiveLaw (SC) 261, 2026 LiveLaw (MP) 221)

Thus, it can be safely said that all punitive orders of termination are stigmatic and vice versa, all stigmatic orders of termination are punitive.

How to identify whether the order of termination is punitive and stigmatic:

The simplest way: Plain reading. If an order of termination on its plain reading casts stigma on the employee or carries a punitive flavor in cause or consequences, then the order is punitive and stigmatic.

However, it is not that simple in all cases. On some occasions, the employer tries to misdirect by using terminological cover or by not disclosing the reason of termination in the body of the order. In such cases there are three broad tests for identifying whether the order of termination is simpliciter or punitive / stigmatic, are: (1.) The language and tenor of the order, whether it is stigmatic / punitive, (2.) the motive and the foundation of the order and (3.) whether any inquiry was conducted in relation to any alleged misconduct, if yes, then irrespective of language and tenor of the order, the order is punitive / stigmatic. (See 2026 LiveLaw (Del) 168)

What is Motive: Motive is the driving force that prompts the authority to pass the order. If the motive is general 'unsuitability', 'unsatisfactory performance', 'non confirmation', then the order would be upheld in law as the same would not be punitive or stigmatic. However, if the motive is misconduct, registration of FIR, reluctance in performing his or her duty, disobedience, internal committee / inquiry report into aspects which are bordering on moral turpitude or misconduct, dereliction in duty, failing in performance of his or her duty, production of fake documents, questionable integrity, inefficiency, etc., then, the said order would be punitive / stigmatic.

What is Foundation: Foundation is the material and documents, referred to, relied upon, or enclosed with or annexed to the order while passing the said order. Foundation of the order is really what matters as the material which is stigmatic may not be in the termination order but can be certainly called for by the future employers and which would affect the chances of the employee getting future employment. (See Dr Vijayakumaran C.P.V. Vs. Central University of Kerala)

In a given situation, if the court feels that an order of simpliciter termination is a camouflage and the real basis of such order is punitive or stigmatic, then the court can lift the veil and look beyond the form of the order and ascertain the attendant circumstances on which the said order was passed. (See Govt of NCT of Delhi & ors. Vs. Virender, 2026 LiveLaw (Kar) 81)

It would be relevant to state that if an employer has carried out a fact finding exercise / preliminary inquiry / exploratory exercise or background verification to evaluate the suitability and carried out an assessment of the employee's performance and conduct without any finding of misconduct (in a given situation, while considering adverse grading and remarks), then it would not, by itself, make an order of simpliciter termination into a punitive or stigmatic one. The employer has a right to see whether such an employee is suitable to be continued or not. (See Gramin Yuvak Vikas Shikshan vs. Shivnarayan Datta Raut, 2025 LiveLaw (SC) 261, 2026 Livelaw (Del) 168)

Thus, if the order of termination is stigmatic or punitive, then even if the employee is a temporary, contractual, fixed pay, project based, contingency paid employee or employee on probation, his or her termination / dismissal / removal order can only be passed after a regular inquiry is conducted and with full fledged compliance with the principles of natural justice. (See 2022 LiveLaw (Guj) 33, Kotak Mahindra Bank Ltd. Vs. Aaraj Sharma, Rakeshkumar Bhursinghbhai Katara Vs. State of Gujarat – Special Civil Application no. 22588 of 2022, 2024 LiveLaw (SC) 628, 2025 LiveLaw (JKL) 295)

Further, even when the stigmatic / punitive order of termination is passed after issuance of show cause notice, the employee replying to the said SCN, a fact finding inquiring conducted behind the back of the employee without giving the employee the opportunity to defend his or her case or cross examine and giving one month's notice, then also, the order would be in violation of the settled principles and thus will be quashed and set aside by the court. (See 2025 LiveLaw (Chh) 5)

Our constitutional courts have even advised that where an employee is accused of misconduct bordering on criminality, he or she should not be terminated simpliciter and instead full fledged inquiry should be conducted against him or her and thereafter the employee should be punished. (See Para 10 of Dr Vijayakumaran C.P.V. Vs. Central University of Kerala)

Once the order of stigmatic / punitive termination is quashed and set aside, reinstatement always follows. In some cases, reinstatement is for the remaining period of the contract or the fixed term, and thereafter, it is open for the authority to decide whether the employee is to be continued or not. But for consequential benefits, our constitutional courts have taken different views, which are:

1. All consequential benefits are to be extended as the termination order has been declared to be illegal. (See 2022 LiveLaw (Guj) 33)

2. No back wages based on the principle of No Work, No Pay. (See Hiren Dahyabhai Rathod Vs. State of Gujarat, Rakeshkumar Bhursinghbhai Katara Vs. State of Gujarat – Special Civil Application no. 22588 of 2022)

3. Salary granted from the date on which the employee was terminated and till the date of his or her reinstatement, consequential benefits and benefits after reinstatement would be subject to the conclusion of proceedings against the employee. (See 2026 LiveLaw (Kar) 81)

4. The question of back wages, continuity and other benefits is left to the authority to decide subject to the outcome of any further action which it deems fit to initiate (See Para 11, 12 of Dr Vijayakumaran C.P.V. Vs. Central University of Kerala)

Due Process which should be followed by employer:

In such cases, where the employer is required to terminate services of an employee on punitive / stigmatic grounds, then the following procedure should be followed:

1. Issuance of a show cause notice to the employee leveling the said accusations against him or her.

2. Giving an opportunity to the employee to explain his or her actions or conduct.

3. If the employer is not satisfied, then a charge sheet is issued against the said employee, leveling the charges.

4. Granting an opportunity to the employee to submit his defense against the charge sheet.

5. Thereafter, the employer has to give reasonable opportunity to the employee to deny his guilt and establish his or her innocence and grant opportunity of cross examination.

6. Thereafter, the employer has to inform the employee about the punishment it proposes to impose

7. Grant the employee an opportunity to make representation against the propose punishment.

Once this procedure is followed, the employer can pass the stigmatic and punitive order of termination, if they so desire, but the same has to be a speaking and reasoned order. (See 2026 LiveLaw (MP) 221)

There are some rare instances which would be interesting to highlight:

In a case, though the order was stigmatic, the scheme under which the employee was employed was wound up before the matter could be decided. Thus, the court moulded the relief by directing that order of termination would not come in the way of the employee in getting future employment and also directed payment of salary for the interregnum period. (See 2025 LiveLaw (JKL) 295)

In a case, the employer terminated an employee on the ground of registration of FIR against the employee. Thereafter, the employer initiated an inquiry against him. In the said inquiry, charges were not proved. Thus, the employer passed an order giving the termination retrospective 'zero effect' to the order of termination. The courts held that such a process is unknown to law and is illegal and proceeded to quash / revoke the termination order and granted continuity and pay to the employee. (See Anil Kumar Vs. State of Rajasthan)

In a case where an employee was terminated vide a stigmatic order, the High Court refused to exercise its jurisdiction under Article 226 in the given facts where a guest faculty member had accepted that he was misbehaving and sending objectionable messages to a girl student and had tendered an apology for the same. The court, instead of quashing and setting aside the stigmatic order, directed that the said order may not be considered for future employment. (See 2026 LiveLaw (MP) 168)

Author is an Advocate practicing at High Court of Gujarat. Views are personal.