R.N. Misra, J.
1. This is an application for a writ of certiorari to quash the order of termination of service.
2. By order dated 25-2-1971, petitioner was appointed as a forester and it was stated :-
'... The appointment is purely temporary and terminable at any time without assigning any reason therefor and also the services are terminable when the candidates sponsored by the Planning and Co-ordination Department will join.' On 4th of Dec. 1973, petitioner's services were terminated in terms of the following order:
'The services of Shri J, K. Mangaraj, Forester on Special Duty with headquarters at Panasput are hereby terminated with immediate effect as per the conditions of his appointment order.' A copy of the aforesaid order was communicated to the petitioner with the following note:
'Copy forwarded to Shri J. K. Mangaraj, Forester, C/o Shri Bidyadhar Chaudhury, Bolagarh, Dist-Puri for information and necessary action in continuation of this office memo No. 5519 (2) dated 27-11-73 and the telegram sent early. He should immediately handover charge failing which the matter shall be reported to the- Police as he has been absconding from duty without prior permission.........'. Petitioner's representation against the order of germination was rejected. Petitioner assails the order of termination by contending that the order was penal in character, a stigma attached to the petitioner in terms of the order and, therefore, without following the procedure laid down in Article 311(2) of the Constitution, petitioner's services could not have been terminated. In other words, the impugned order is not a termination simpliciter, but attaches a stigma.
3. In the counter affidavit filed by the Divisional Forest Officer, it has been pleaded that the petitioner had a temporary appointment and it was terminable at any time without assigning any reason. As petitioner had no right to the post, he is not entitled to any relief in the writ petition. It has also been pleaded that the order under Annexure-9 is a termination simpliciter and is innocuous and does not visit the petitioner with any penal consequences. It has been further indicated that the petitioner had left the place of service by making an application for casual leave from 8-11-1973 to 13-11-1973 with permission to avail Sunday i.e. 11-11-1973 on the ground of his father's illness. The leave application was rejected and petitioner was telegraphically required to report to duty. No application for extension of leave was received after 13-11-1973. The telegraphic communication required him to join duty by 30th of Nov. 1973, but it was not responded to and the belated application came for extension of leave on the ground of his own illness. Petitioner was in the habit of going on leave without permission and overstaying his leave. Keeping the unsatisfactory conduct of the petitioner's service in the background, the appointing authority terminated his service in terms of the order of appointment.
4. Mr. Rath, learned counsel for the petitioner, has placed reliance on a series of authorities to support his contention that even where the order of termination is in innocuous terms it is open to the Court to enquire and find out whether the apparent innocuous order does indeed visit the temporary servant with a punishment. The form of the order is inconclusive and it is the substance of the matter which determines the character of the termination of the services (See Jagdish Mitter v. Union of India, AIR 1964 SC 449).
There js no dispute before us that the protection of Article 311(2) of the Constitution is available to a temporary public, servant. If the order unambiguously indicates that the termination is the result of punishment sought to to imposed on the temporary servant, he can legitimately invoke the protection of Article 311 and challenge the validity of the termination on the ground that the mandatory provision of Article 311(2) has not been complied with. The dispute is in regard to cases where the order ex facie does not impose a punishment. In the case of State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089, the Court observed:
'An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.''
In the case of Ram Gopal Chaturvedi v. State of Madhya Pradesh, AIR 1970 SC 158, an attempt was made to indicate that the apparently innocuous order of termination had the employee's delinquencies in the background. Dealing with this argument, the Court indicated:
'It was next argued that the impugned order was passed by way of punishment without giving the appellant an opportunity to show cause against the proposed action and was therefore violative of Article 311 of the Constitution. In this connection, counsel for the appellant drew our attention to the statement of case filed on behalf of the respondent. It appears that there were complaints that the appellant was associating with a young girl named Miss Laxmi Surve against the wishes of her father and other members of her family. The Chief Justice of Madhya Pradesh made inquiries into the matter and on Feb. 19, 1964 he admonished the appellant for this disputable conduct. On his return to Jabalpur on Feb. 28, 1964 the Chief Justice dictated the following note:
'During my recent visit to Gwalior, I probed into the matter of Shri R. G. Chaturvedi, Special Magistrate (Motor Vehicles) Gwalior, giving shelter to a girl named Kumari Laxmi Surve, the daughter of a Chowkidar employed in the J. C. Mills Gwalior; the enquiry made by me revealed that Shree Chaturvedi has been associating with this girl for over a year and his relations with her are not at all innocent. He is sheltering and supporting Miss Surve against the wishes of her father and other members of her family. This is evident from the fact that on 14th Dec. 1963, when the girl was at the residence of Shri Chaturvedi and when her younger brother came to take her back, his house was stormed by a mob of 300 to 400 persons............
Shri Chaturvedi is still maintaining the girl. Shri Chaturvedi did not enjoy good reputation at Morena and Kolaras where he was posted before his posting at Gwalior. Shri Bajpai, District Judge, Gwalior, also informed me that Shri Chaturvedi was not honest and that in collaboration with the Traffic Inspector he has taken money from accused persons in many cases under the Motor Vehicles Act.' No charge-sheet was served on the appellant nor was any departmental inquiry held against him. On March 10, 1964 the Madhya Pradesh High Court passed a resolution that the State Government should terminate the appellant's services. Having regard to this resolution the State Government passed the impugned order dated March 25, 1964. On the face of it, the order did not cast stigma on the appellant's character or integrity nor did it visit him with any evil consequences. It was not passed by way of punishment and the provisions of Article 311 were not attracted.
It was immaterial that the order was preceded by an informal inquiry into the appellant's conduct with a view to ascertain whether he should be retained in service.........'.
The Constitution Bench of the Supreme Court in an earlier case (Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854), dealing with a similar case pointed out:
'We now come to the last question whether the appellant was entitled to the protection of Article 311(2) of the Constitution, even though he was a temporary government servant. It is well settled that temporary servants are also entitled to the protection of Article 311(2) in the same manner as permanent government servants, if the government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank: (see 1958 SCR 828: AIR 1958 SC 36). But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. It is also not disputed that the mere use of expressions like terminate or discharge is not conclusive and in spite of the use of such innocuous expressions the court has to apply the two tests mentioned in Parshotam Lal Dhingra's case, 1958 SCR 828 : (AIR 1958 SC 36) namely (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the servant had been punished. Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. It is on these principles which have been laid down in Parshotam Lal Dhingra's case, 1958 SCR 828 : (AIR 1958 SC 36) that we have to decide whether the appellant was entitled to the protection of Article 311(2) in this case.' Having heard learned counsel for parties and after reading the record as also the file relating to petitioner's service, which was produced before us by learned Government Advocate at the instance of the petitioner, we are satisfied that petitioner's delinquency in absenting himself from duty without appropriate leave was a motive and not foundation for the order of termination. We are, therefore, not inclined to interfere in the matter.
5. The writ application fails and is dismissed. We do not, however, make any direction for cost.