R.N. Misra, J.
1. Petitioner was serving as an extra-departmental delivery agent -- a civil post under the Union Government. By order dated 27-8-1976, he was put off duty on the ground that allegations of misconduct against him were under enquiry. On 6th of October, 1976 -- hardly six weeks thereafter -- his services were terminated in terms of Annexure-3. Petitioner thereupon moved this Court under Article 226 of the Constitution for quashing of the order of discharge and contended:--
(i) Two grounds are indicated in Rule 6 of the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964, for termination of service. As the order of termination does not specify the ground upon which the order of termination is based, the order itself is vitiated; and
(ii) Though the order of termination prima facie is an innocuous one, it really amounts to an order of dismissal, as it is based upon allegations of misconduct.
2. When the application was placed before a Division Bench for hearing, petitioner relied upon an unreported decision of this Court dated 24-3-1977 in O. J. C. No. 1591 of 1975 (Paramananda Sahu v. Union of India, while the opposite parties relied upon a later decision of this Courtreported in (1978) 46 Cut LT 117 : (1978 Lab IC 1473) (Ramesh Chandra Baisak v. Inspector of Post Offices Dhenkanal Subdivision). The Division Bench dealing with the present case was of the opinion that there was conflict between the ratio of the two cases referred to above and, therefore, wanted this application to be placed before a larger Bench for disposal.
3. Rule 6 of Rules provides:--
'Termination of Services.-- The services of an employee who has not already rendered more than 3 years continuous service from the date of his appointment shall be liable to termination by the appointing authority at any time without notice for generally unsatisfactory work, or on any administrative ground unconnected with his conduct.'
In Paramananda Sahu's case (O. J. C. 1591 of 1975), it was contended that the order should have indicated which of the two grounds mentioned in the section formed the basis of the order of termination and reliance was placed on the decision of the Kerala High Court in the case of A.K. Sathi v. The Senior Superintendent of Post Offices, Ernakulam and ors., 1973 (17) Kerala Law Journal 501, where the learned Judges of that High Court had said :--
'.... It is evident from the language of Rule 6 that an employee like the appellant could have been dismissed only on one of the two grounds mentioned in the rule, either for generally unsatisfactory work or on any administrative ground. Since no ground is mentioned in the order of dismissal, it is clear that the rule has not been complied with.'
After extracting the above passage from the Kerala case, the Division Bench proceeded to say :--
'We accept that decision as laying down the correct principle and as the impugned order (Annexure-3) has not complied with Rule 6, it is bad in law and is liable to be quashed.'
The other Division Bench decision in Ramesh Chandra Baisak's case ((1978) 46 CLT 117), referred to the Bench decision of this Court in Paramananda Sahu's case and indicated :--
'Undoubtedly, the power conferred under Rule 6 is exercisable in the event of two alternatives being satisfied, namely (i) generally unsatisfactory work or (ii) administrative ground. It is not the petitioners case that either of these grounds is not existent in the instant case, nor is it his stand that as Rule 6 was invocable in the event of any of the alternatives beingsatisfied, as the appropriate alternative had not been indicated, mind had not been applied by the appropriate authority in making the order. Once such a case is not made out, we are not prepared to accept the proposition laid down by the Kerala High Court that mere reference to Rule 6 while making an order contemplated thereunder would not satisfy the requirement of law. It is not disputed that Rule 6 authorises making of the order contemplated therein in the event of any of the two alternatives being applicable. When Rule 6 is quoted as the basis of the order, it would follow that one of the alternatives mentioned therein did exist. It is open to the party challenging the order to show that neither of the alternatives existed and, therefore, the power under Rule 6 was not exercisable. To accept the contention that unless one of the alternatives had been indicated, exercise of power under Rule 6 would be bad, would not be proper.. ...'
Paramananda Sahu's case was disposed of at the stage of admission and in the order passed by this Court, there has been no indication in clear terms that the order became vitiated on account of the alternatives in Rule 6 having not been indicated. It may be contended that the Kerala decision had laid down the proposition that way and since this Court accepted the ratio of the Kerala case, the position would be that unless one of the alternatives in Rule 6 had been indicated, the order of termination is not sustainable. It has not been stated in the order of this Court that there was any assertion in the writ application by the petitioner of that ease that neither of the grounds indicated in Rule 6 existed. There are only two alternatives in Rule 6 and unless the petitioner alleges that in passing the order of termination mind had not been applied, from the bare position that the Rule only had been quoted without ever indicating any of the two alternatives as the ground for the order, it cannot be assumed that mind had not been applied. If there had been appropriate allegation, the authority making the order could indicate application of mind by producing appropriate material to exhibit application of mind in the matter of making of the order. We are not in a position to assume non-application of the mind from the mere fact that the Rule as such and not one of the alternatives contained therein had been referred in the order of termination as a ground in support of it. We do not think, there is any necessity to examine the correctnessof the earlier Bench decision and the same must be confined to its own facts.
4. Law is fairly settled that mere wrong labelling of the statutory provisionor referring to a wrong enabling provision for making of an order would not vitiate the order as long as there is statutory jurisdiction or power vested in the authority making the order. See, Indian Alluminium Company etc. v. Kerala State Electricity Board etc., AIR 1975 SC 1967.
5. Since the entire case had been referred to the Full Bench, Mr. Ramdas canvassed his second contention in support of the writ application, namely, the order of termination in the instant case is really one of dismissal and in the absence of an appropriate disciplinary proceeding, the order could not have been made. Petitioner admittedly was a temporary servant. It is settled position of law that even a temporary servant is entitled to the protection of Article 311 of the Constitution: See, Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 and Jagdish Mitter v. The Union of India, AIR 1964 SC 449. In the first case it was said that the words used in an order of termination may not be the determinative feature as to whether the order is a termination simpliciter or is really one of dismissal couched in apparently innocuous form. In the second case referred to above, the Supreme Court indicated the legal position that way too. In the case before us, petitioner was put off duty on 27th of August, 1976, on allegations of misconduct said to have been under enquiry. On 6th of October, 1976, the order of termination has been passed. In the counter affidavit, averments have been made alleging misconduct in support of the order of termination. The brief gap between the order putting the petitioner off duty and the order of termination and the stand taken in the counter affidavit in support of the order of termination leaves no room for doubt that the order of termination has actually been founded upon misconduct though no clear reference has been made to misconduct and reliance has been placed on Rule 8 alone. We are, therefore, inclined to accept the submission of Mr. Ramdas that the impugned order of termination virtually amounted to dismissal and could not have been made in the absence of an appropriate disciplinary proceeding.
6. The writ application has accordingly to be allowed. The impugned order of termination under Annexure-3 is quashed. Petitioner is entitled to his normal servicebenefits on the footing that he continued in service unaffected by the order under Annexure-3. Petitioner shall have costs of the proceeding. Hearing fee is assessed at rupees one hundred.
7. I agree.
P.K. Mohanti, J.
8. I agree.