N.U. Beg, J.
1. This is a second appeal by the State of Uttar Pradesh. The respondent in the case is one Om Pra-kash Garg. The respondent was employed as a lower Division Assistant in the U. P. Civil Secretariat in March 1942 as a temporary hand. Thereafter he was employed in the Department of Food and Civil Supplies in the capacity of a Reference Clerk. On the 30th of January, 1953, Temporary Servants Rules came into force. Under these rules the services of the respondent could be terminated by one month's notice on the part of the Government. The respondent is alleged to have been suspected of having committed the offence of bribery. In that connection the C. I. D. made investigation into the case. They put him up for identification. He could not be identified. The C. I. D., therefore, did not prosecute the respondent. They made a report to the Department. On the 14th of July, 1955, as a result of this report an entry was made in the character roll of the respondent. This entry is to the following effect :
'A good reference clerk. Suspected of having been involved in a case of obtaining illegal gratification by fraudulent means. C.I.D. enquired into the case but for technical reasons could not prosecute him. Is being noticed of.'
On the very next day, i.e. on the 15-7-1955, the applicant was served with one month's notice terminating his services under the contract. This notice is Ex. 1. Thereafter the respondent brought the present suit praying for a declaration to the effect that the order dated 15-7-1955 terminating his services was illegal and ultra vires. The Trial Court dismissed the suit. In appeal, however, the lower Appellate Court set aside the judgment and decree passed by the Trial Court, and decreed the suit. Dissatisfied with the judgment of the lower Appellate Court, the U. P. Government have filed this appeal.
2. Having heard the learned counsel for the parties 1 am of the opinion that this appeal should be dismissed. The learned counsel appearing on behalf of the appellant has relied on a case of the Supreme Court report in ParshotamLal Dhingra v. Union of India, AIR 1958 SC 36. In paragraph 28 of the judgment of that case it is observed that where misconduct of the employee is a mere motive for termination of his services the order would be innocuous. The learned counsel for the respondent has also relied on the tame case. He has invited my attention to a subsequent portion of the same paragraph which contains the following observations :
'But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflict' ing tire punishment of dismissal or removal, or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.'
Learned counsel for the respondent also invited my attention to a judgment of a Bench of this Court in SpecialAppeal Ho. 17 of 1959, State of Uttar Pradesh v. KhemChand Verma, decided on the 19th of August, 1959. Acertified copy of this judgment has been filed as Ex. 7 inthis case. The learned counsel for the parties have alsocited a number of other cases in which the above decisionof the Supreme Court has been interpreted. The interpretations placed on the above judgment of the Supreme CourtIn various cases do not appear to be quite consistent.Certain general principles, however, emerge from a perusalof these cases. They are:
First, that the order of termination itself is not conducive on the point :
Secondly, that the Court should not go by the mereform of the order but should examine the contents of theorder as well as the circumstances of the case for the purpose of determining whether the action taken in a particularcase was realty in the nature of punishment; and
Thirdly, that if the order of termination is a meregarb for camouflaging the real intention of the Government,which was to punish the employee, and the order has atendency to imperil the future prospects of the employeethen it should be construed to be a measure of punishment,and the provisions of Article 311 would be attracted.
3. Applying these principles and taking into consideration the facts and circumstances of the case, the lower Court gave a clear finding of fact to the effect that in the present case the foundation of action by the Government had a tinge of penal action.
4. On behalf of the appellant the learned counsel has argued that the finding given by the lower Court in this regard was without evidence. I am unable to accept this argument. The evidence has been referred to by the lower Court itself. The lower Court has relied primarily on two pieces of evidence. First, there is the adverse entry in the character roll of the respondent in which it Is expressly stated that the respondent was suspected of being involved in a case of bribery, and that was the reason why the notice was being issued against him. Secondly, the Court was impressed by the proximity of time between this adverse entry and the actual issue of notice which took place on the very next day. The lower Court also observed that the Trial Court was under the Impression that the adverse entry was made in February, 1955 and the actual notice was issued on the 15th of July, 1955. In this regard the Trial Court had misapprehended the evidence on record, because in fact the adverse entry was made on the 14th July i.e. on the day just preceding the issue of notice. I, therefore, findit difficult to hold that the finding given by the lower Court is not based on any evidence.
5. For the above reasons I am of the opinion that there is no force in this appeal. I, accordingly, dismiss it with costs.
6. Leave to appeal to a Bench is allowed.