V.S. Deshpande, J.
1. This is plaintiff's appeal. The plaintiff was appointed as a temporary clerk under an order of the Collector of Sholapur dated 18-7-1959. In terms of clause 3 of the said order, the plaintiff's service were liable to be terminated without assigning any reason. By an order dated 20th March, 1969 the Collector did terminate his service. On appeal to the Commissioner, the said termination order was set aside on 13th August, 1969 for want of one month's prior notice. The plaintiff was then reinstated, but again discharged with effect from 22nd September, 1970, by notice dated 22nd August, 1970. The plaintiff challenged this order in appeal without success. He did not get any response to his revision application from the Government till he instituted the present suit on 9th June, 1973.
2. The plaintiff's case can be summed up in his own words by quoting paragraph 3 of his plaint, thus 'The plaintiff's services were again vindictively terminated by giving him one month's notice dated the 22nd August, 1970 by the Collector of Sholapur under his order No. RB/EST/2325/70. Neither reasons were assigned, nor enquiry was held. The plaintiff has a good record of service and during his tenure of service he did not receive any memo or show-cause notice and no blame was ever put on him at any time. The persons, namely, Shri K. B. Gham, K. R. Mudhavikar in all about 127 employees out of which Shri A. G. Adki, R. T. Kulkarni, R. Y. Vaidya, R. G. Karajgi who were the junior most have been contained in service. From this it will be clear that the order of termination of services of the plaintiff was grossly arbitrary and discriminatory and by way of punishment for no ostensible cause and further as a vengeance for a getting the prior order of discharge, set aside preferring an appeal to the Commissioner. The rules of natural justice and the rights under Art. 311 of the Constitution of India are violated and gross discrimination is made and the fundamental rights of the plaintiff to be in service are denied to him by utterly disregarding the provisions of Arts. 14 and 16 of the Constitution of India. He prayed for reinstatement, and salaries due to him till the date of the suit as also future salaries till reinstatement as if he was in service. The plaint does not contain other details of arbitrariness or vindictiveness.
3. The defendant in its written statement denied the charge of discrimination, vindictiveness and arbitrariness. It is urged that the plaintiff's services were liable to be terminated without assigning reasons in terms of clause 3 of the appointment order, his services being purely temporary, and he not having been ever confirmed. It is then indicated that there were complaints against him when he was serving at Pandharpur and memos were twice served on him. It was decided to terminate his services when no improvement was found. The earlier order of discharge dated 20th March, 1969 being found by the Commissioner in appeal to be defective, fresh order to that effect was required to be issued on 22-8-1979 in compliance with the appellate order. Any obligation to hold departmental inquiry in respect of services of such persons was denied as also the allegation as to the termination being by way of punishment.
4. In support of his case the plaintiff examined himself as his sole-witness. No oral evidence was produced on behalf of the defendant. On this material, the learned Judge negatived plaintiff's case and dismissed his suit.
5. Mr. Rane, the learned advocate for the plaintiff-appellant, contends that the order of termination dated 22-8-1970 is vindictive. There was no fresh incident, so contends Mr. Rane after first order dated 20-3-1961, and the plaintiff was reinstated consequently. We are unable to see any substance in this contention. It is clear that the Collector, the competent appointing and dismissing authority had already reached a conclusion to terminate the plaintiff's services even before the order was passed on 20-3-1969. This order in implementing the said decision was found to be defective either for want of one month's notice as expressly indicated in the order, or for making reference to some confidential communication as explained in the written statement. Nothing turns really on how precisely the said order was defective and, therefore, ineffective. The order was required to be issued afresh on 22-8-1970 to give effect to the same decision which was obviously proposed earlier. What had happened earlier is indicated in paragraph 5 of the written statement. Mere absence of fresh incident after reinstatement cannot make same earlier decision vindictive. There is no specific reference to any earlier act or omission of any person to justify inference of vindictiveness. The contention is thus devoid of any merit.
6. Mr. Rane then contends that the impugned termination is arbitrary as the order dated 22-8-1970 does not indicate any reasons. Now, existence of reason is one thing and indication or disclosure thereof in the order is another thing. That, terms of the contract of service, or the rules governing the same, permit such termination without assigning any reason, does not and cannot mean that any Government or its officers, bound by the 'Rule of Law' can do so without the existence of some reasons. It is difficult to imagine how any Government or its officers can afford to act, capriciously, or at its sweet will, or arbitrarily or for its or his private reasons as distinguished from public and relevant reasons. Any such act will be clearly violative of Arts. 14 and 16 of the Constitution in which this 'Rule of Law' is codified.
7. In reply to this averment in the plaint, the defendant has disclosed the reason in para 5 of the written statement. The said para reads as follows :
'That the contention of the plaintiff that he had good record of service and during his tenure of service he did not receive any memo or show-cause notice and no blame was ever put on him at any time is utterly false and the same is denied by the defendant. That while plaintiff was working in the office of the Sub Divisional Officer, Pandharpur Division, Pandharpur, his record of service was not at all clean but most unsatisfactory. There were many complaints against him. That he did not improve in spite of two memos and sufficient time from 4-7-67 to 24-1-1969 was given to him for improvement. Then on the confidential letter from the Sub Divisional Officer, Pandharpur Division, Pandharpur, the Collector of Sholapur, was pleased to terminate the services of the plaintiff by his order dated 20-3-69. But however, the termination of service of the plaintiff by order dated 22-8-1970 was not by way of punishment as is contemplated under Art. 311 of the Constitution.'
8. It is not possible to do this termination to be arbitrary or without reason in the face of his clear clarification. No disclosure of reason in the termination order, so permissible under the express contract or service rules, did not thus mean that there were no reasons in existence whatsoever.
9. It is true that the defendant has neither placed such complaints and memos on the record nor has it made any attempt to prove the existence or truthfulness thereof. But as rightly contended by Mr. Shenoy, the learned Assistant Government Pleader, the same was never made the basis of the attack and put in issue by the plaintiff nor did he deny their existence in his evidence, though he expressly denied receipt of such memos after reinstatement. The defendant was not thus called upon to produced or prove the same. That he should not deny the existence of such complaints in his evidence at the trial in spite of the averments in para 5 of the written statement and rather choose to restrict his denial on oath to not receiving memo after his reinstatement is not without significance. This may not justify any reference of their truthfulness. In the absence of any challenge to their truthfulness, however, the Government cannot be said to have been called upon to explain how it found the same to be dependable. The burden to allege and prove even malice in law is always on the person challenging the order. (See paragraph 15 of the Supreme Court Judgment in Pawan Kumar's case : (1976)IILLJ266SC .
10. Mr. Rane then contends that the order is clearly punitive and is void, it having been passed without any enquiry and any opportunity to the plaintiff to meet the case against him. As seen earlier, the plaint does not aver any facts beyond a bald allegation of the termination being by way of punishment. The order of termination itself does not purport to terminate the service by way of punishment. The wording therein does not seek to attach any stigma on the plaintiff.
11. Mr. Rane, however, contends that the form of the order is never conclusive and the Court is not powerless to go behind even an innocuous order to verify if it was factually punitive and the termination is clocked as termination simpliciter to avoid compliance with requirements of Art. 311 and the review thereof by the Court. Reliance is placed by Mr. Rane on the Judgment in the case of State of Bihar v. S. B. Mishra, : (1970)IILLJ440SC , in this behalf. That the form of the order can never be conclusive and that the Court can if the case is so made out, go behind it to ascertain the truth and the substance of the matter can hardly be disputed. It is too elementary to require any more discussion. Such going behind the order however will be an exercise in futility, if the right to pass the order and the facts giving rise to the said right are not challengeable. Whether, however, termination of the services of the Government servant without enquiry violates Art. 31(2) depends, mainly, on whether the said servant has any right to the said post held by him. It is now well settled that Art. 311 is not attracted if a probationer or a temporary Government servant is removed from his post, or even when permanent Government servant is compulsorily retired, in accordance with valid service rules, or is when such servants are reduced in rank from their officiating superior posts to their substantive posts, without any inquiry, provided no stigma is cast against them, underlying reason being that incumbents do not possess any right to the such posts. It will be enough to refer to the Supreme Court judgment in State of Bombay v. Saubhagchand Doshi, : 1SCR571 , and the leading judgment in Dingra's case : (1958)ILLJ544SC . Doshi was compulsorily retired before the date of superannuation but after reaching the age after which such retirement was permissible under Rule 165A of the Civil Services Rules on being found of some blameworthy conducts, without enquiry. He was found to have been involved in criminal breach of trust in a preliminary enquiry. The Supreme Court upheld the order holding that Art. 311 had no application to the cases where such misconduct merely furnishes motive and not the basis of the action. In the case of Ram Gopal v. State of M. P. : (1970)ILLJ367SC the Supreme Court upheld the termination of a temporary Civil Judge on account of misconduct discovered in a preliminary enquiry holding that neither Art. 311 was attracted nor the question of violation of the principles of natural justice, was involved as no evil consequences were involved in a matter where there was no right to the post itself. It is, therefore, necessary first to ascertain if the plaintiff had any right to the said post not withstanding his having hold the post for 10 years.
12. A faint attempt was made by Mr. Rane to rely on para 2 of the order of the Collector dated 19th June, 1964, including plaintiff's name at S. No. 36 amongst the clerks in the subordinate revenue service in Sholapur District, declared to have been 'enlisted for permanent clerks post' with effect from 1-8-1961 in the order of seniority indicated therein. Para 2 requires them to be treated 'as fresh recruits' and enables them to draw the indicated higher scales of pay with difference of arrears from the date of such confirmation 'after regular enlistment.' It is thus a list of those found eligible for confirmation and not of those already confirmed. Mr. Rane did not dispute this position. According to him, however, this order has the effect of making the employees such as the plaintiff, quasi-permanent till they were ultimately confirmed as contemplated. This is how, according to Mr. Rane, the plaintiff had ceased to be temporary. Our attention, however, was not drawn by Mr. Rane any Rules Circulars of the Government in this behalf to justify any such conclusion. There are no pleadings to that effect. Nor was the defendant called upon to meet any such case. More importantly, in the plaint as also in the evidence, the plaintiff has proceeded on the basis that he was holding the post temporarily and was not made permanent till he was discharged by the order dated 22nd August, 1970. The claim thus to have become quasi-permanent is untenable. The plaintiff thus was a temporary servant having no right to post as such within the ratio of Dingra's case.
13. Mr. Rane, however, contends that even a temporary servant having no right to the post cannot be removed or reduced in rank, on one sided unenquired allegations as held in S. B. Mishra's case (supra). Now Mishra was holding the substantive post of sergeant on 9-1-1948 and was officiating in the post of Subedar Major on promotion when he is alleged to have assaulted his orderly. He was first reverted to his substantive post and after enquiry dismissed from service. Facts as reported do indicate that the demotion from officiating post to the substantive post was found by the Supreme Court to be punitive and ultimate dismissal by the authority competent to dismiss Sergeant, but not so competent to dismiss the Subedar Major, was held to be invalid. A permanent Government servant is held to have no right to any post in which he only officiates temporarily on promotion pending confirmation in the same manner and for the same reason as temporary servant is held to have no right to his post. Analogy of facts of Mishra's case (supra) as indicated in the report does, therefore, furnish some support to Mr. Rane's arguments.
14. However, mere analogy or even identity of facts of a case furnish the decision therein as precedent for other cases. Secondly, Mishra's case neither seeks to distinguish the previous cases cited above nor adverted to in the judgment itself, nor record any dissent therefrom. Beyond apparently indicating analogy to the facts, it does not say a word in support of the proposition canvassed before us by Mr. Rane, that unsatisfactory record of service of a temporary Government servant cannot furnish motive for his discharge or his such discharge attracts Art. 311. Judgment of Mitter J., in State of Punjab v. Sikh Raj Bahadur, : (1970)ILLJ373SC in Mishra's case, in terms indicates how in such instances the said Article is not attracted. Sukh Raj's case itself was one of reversion from officiating higher post to his substantive post, due to certain, uninvestigated allegations. After adverting to several cases, Mitter J., upheld reversion as not attracting Art. 311, indicating in para 17, how the case was in line with the ratio of State of Orrisa v. Ram Narayan Das, : (1961)ILLJ552SC , and unreported judgment in Benjamin's case discussed in para 15 of the judgment. In both these cases, termination of temporary Government servants was found not to have attracted Art. 311, because of their having no right to the post. Mishra's case (supra) itself refers in paragraph 3 to other judgments of the Supreme Court in R. S. Dabha's case A.I.R. 1969 S.C. 21, in which also identical view was taken. Mishra's case also is referred to subsequently in State of Uttar Pradesh v. Sughar Singh, : (1974)ILLJ260SC , Samsher Singh v. State of Punjab, : (1974)IILLJ465SC , Regional Manager v. pawan Kumar and State of U. P. v. Ram Chandra, : (1977)ILLJ200SC , and Bishan Lal v. State of Haryana, : (1978)ILLJ316SC , in all of which cases Art. 311 is held not to have a application to the discharge of temporary Government servants, even if their unsatisfactory performance furnishes the motive for such termination.
15. In the case of Samasher Singh (supra) the Constitution Bench of seven Judges has repeated the same legal position holding that no punishment was involved in finding a probationer unsuitable for job due to factors involving even moral turpitude and it was permissible to simply discharge him without holding enquiry and without casting any stigma to enable him to have 'a chance to make good in other walks of life.' Such a case was distinguished from the one in which an enquiry was held after charge-sheeting the probationer but services were terminated without complying with the remaining stage of Art. 311(2). The learned Chief Justice then finally observed :
'An order terminating the service of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Art. 311. When a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Art. 311 will not be attracted unless it can be shown that the order though unexceptionable in from is made following a report based on misconduct.'
16. In the face of this unequivocal statement of law by a Bench of law by a Bench of seven Judges of the Supreme Court, Mishra's cases referred but not distinguished or overruled, cannot be said to have laid down the law differently. Mishra's case and a few other cases in which regular disciplinary proceedings were initiated with a view to punish the Government servant but dropped later to avail of the choice to discharge without enquiry due to his having no right to the post, do create an impression as if discharge simpliciter even of temporary servants, attracts Art. 311. This is why Alagiriswami, J. in S. P. Vasudeva v. State of Haryana, : 2SCR184 , strongly described this legal position 'confusing'. Another Bench of the Supreme Court in Bishan Lal Gupta's case (supra) subsequently held the 'confusion', if any, not to be so insoluble, if the facts in each case are carefully examined. The very act of instating proceedings and dropping them abruptly creates distracts in the very truth of the allegations, and termination simpliciter on the basis thereof appears on its face at any rate to have been resorted to as easy course to cover embarrassment. Such course expose the authority to the charge of mala fides, i.e., malice in facts as well as in law. Sughar Singh's case (supra) as clarified subsequently is an instance in point. Where facts relied are found (1) either to have been made a pretense for getting rid of the unwanted public servant or (2) negligently assumed to exist, the case at once turns out to be one of malice in fact or law. Such cases based on their peculiar facts stand on a different footing altogether, and are obviously not intended to disturb the law reiterated in the above quoted passage.
17. Mr. Rane also relied on the judgment of the Supreme Court in Govt. Branch press v. D. B. Belliappa. : (1979)ILLJ156SC . The facts again strikingly analogous. The judgment quashing the order terminating the service of a temporary servant, however, is upheld by the Supreme Court, not on the ground that Art. 311 is attracted to such cases, but because the State, stuck to the untenable claim of it having a right to terminate services without regard to whether any reason exists or not, 'with obdurate persistency.' rather than disclose the reasons and indicate how it was not obligatory on it to hold enquiry for removal of temporary Government servant from the post to which he had no right. Such right of the Government to so terminate service is emphasised at the end of paragraph 23 of the judgment after making reference to the cases decided earlier.
18. Mr. Rane then relies on the judgment of the Supreme Court in State of U.P. v. Sughar Singh, and contends that termination of the plaintiff's service and retention of his juniors is discriminatory and violative of Arts. 14 and 16 of the Constitution. As observed by Wanchoo, J., in Champa Lal's case : (1964)ILLJ752SC , in the passage quoted in para 23 of Belliappa's case (supra), no question of discrimination arises in case where services are terminated on account of unsatisfactory record. If, however, allegation as to unsatisfactonness is demonstrated to be a pretense or baseless, the act becomes arbitrary and open to the attack of discrimination. It is necessary first to notice that Sughar Singh's judgment has been explained by Beg., J., as he then was, in the case of Regional Manager v. Pawan Kumar, and by Jaswant Singh, J. in the case of State of U.P. v. Ramchandra. Ratio of Sughar Singh's case cannot be correctly appreciated unless it is borne in mind how Sughar Singh had demonstrated that the suspicion indicated in his service record as to his having tempered with the date of birth was entirely unfounded. Once this very ground furnishing motive for reversion was found to be non-existent, the reverting authority stood exposed to the charge of discrimination, there being no reason to mark off Sughar Singh for any class of blameworthy Government servants. Allegation of he having been picked and chosen turned out to be irrefutable. This cannot be said of the plaintiff in this case, in that allegations against him are not shown to be baseless.
19. There is thus no merit in the appeal. The same is accordingly dismissed .
20. In the circumstances of the case, there will be no order as to costs.