S.S. Chadha, J.
(1) This petition under Article 226 of the Constitution of India seeks a writ of certiorari to quash the order dated August 6, 1981, terminating the services of the petitioner in pursuance of the proviso to Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965.
(2) A requisition was sent to the Employment Exchange to sponsor qualified and experienced persons for appointment as General Duty Medical Officers (Ayurvedic) Grade Ii in the Directorate General of Health Services, New Delhi. The petitioner was also sponsored as one of the eligible candidates and appeared for selection. The petitioner was selected for appointment to the post of Ayurvedic Physician under Central Government Health Scheme, Delhi on ad-hoc basis pending filling up the post by the nominee of the Union Public Service Commission on the terms and conditions contained in the appointment letter dated July 25, 1980, One of the conditions was that the private practice of any kind, whatsoever is prohibited. The petitioner joined the post and earned one increment. By the impugned order passed in pursuance of the proviso to Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965 (hereinafter referred to as 'the Rules') the Director General of Health Services terminated the services oF the petitioner under Central Government Health Scheme, Delhi and directed that the petitioner shall be entitled to claim a sum equivalent to the amount of his pay plus allowances For the period of notice at the same rates at which he was drawing them immediately after the termination of his service.
(3) The petitioner on the next dale i.e., August 7, 1981 submitted an appeal/review under Rule 5 (2) to the Secretary, Ministry of Health and Family Welfare disclosing certain facts and asking for immediate reinstatement. The Director by his letter dated September !0, 1981 called for certain information from Kalyan Puri Police Stntion. No decision was taken on the representation of the petitioner. 'I lie petitioner then submitted to another representation to the State Minister of Health without any response and then preferred the present writ petition.
(4) I have heard Mr. B.S. Chaiya, the learned counsel for the petitioner and Mr. Y.K. Sabharwal, the learned counsel for the respondents and have also perused the original records voluntarily produced by the counsel for the respondents.
(5) It is well settled that the services of a temporary servant can be terminated under the Rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. If the order visits the Government servant with any evil consequences or casts an aspersion against his character or integrity, then it must be considered to be one by way of punishment no matter whether he was a temporary servant. An order terminating the services of a temporary Government servant may be ex-facie innocuous in that it does not cast any stigma on the petitioner or visits him with the penal consequences, but if it is discovered on the basis of material adduced that although innocent in its terms the order was passed in fact with a view to punishing the Government servant, then it is punitive order which can be passed only after complying with Article 311(2) of the Constitution of India.
(6) I have thereforee examined the entire range of the facts on the record of the writ petition and those contained in the records produced. The function of the Court is to discover the nature of the order and to find out if the authority intended to punish the petitioner, or having regard to the character, conduct and suitability in relation to the post held by him it was intended to simply terminate his services.
(7) The order on the file expresses that it has sufficiently been proved that the petitioner is doing private practice and thereforee his services be terminated under Rule 5. The proof is furnished by one Shri R.C. Verma. It is necessary to notice additional facts at this stage. The petitioners secured the degree of B.I. M.S. from A and U, Tibia College, Delhi in the year 1974 and thereafter he set up his practice at Shop No. 19 Gulabi Bhawan, Mandawli. Fazalpur, Delhi in the year 1976, He had taken that shop on rent from Shri R.C. Verma at a rental of Rs. 50.00 per month. After the appointment of the petitioner in Government service, the petitioner discontinued his professional practice at the aforesaid premises but did not surrender his tenancy to Shri R.C. Verma. According to the petitioner he was awaiting his confirmation and regularisation in the service and in the meantime kept Shri G.R. Prashar as a care-taker in the shop.
(8) Shri R.C. Verma lodged an Fir No. 161 registered in the Police Station Patpar Ganj, Delhi. The relevant extract in English translation is as under:
'PER report No. 10 Daily Diary dated 18-4-1981 Police Post Patpar Ganj, Delhi, Shri R.C. Verma s/o Shri Gulab Singh R/o 19, Gulabi Bhavan, Mandawli Fazalpur, Delhi at about 12.50 P.M. told to (2) above that I live in the aforesaid address and there are 4 shops and all the four shops have been given on rent. Out of these shops, one shop I had given on rent about 5 years back @ Rs. 80.00 to Dr. R.K. Dixit, Dr. R.K. Dixit gave this shop to G.R. Prashar, who started doing practice in this shop. Few days back I came to know that G.R. Prashar has not got any qualified degree for doing practice nor he is B.A.M.S. as is written by him on the Board. He also issues Medical certificates with bogus registration No. and he is cheating the people by telling that he is B.A.M.S. qualified doctor. I fear that by giving wrong medicine anybody can become victim of death. Against him action may be taken under the law. Heard the statement and it is correct. sd/- in English (R.C. Verma)'.
(9) A police raid was conducted and a criminal case Fir No. 161 under Sections 419/420/468 and 471 of the Indian Penal Code was registered against G.R. Prashar and he was also arrested in that case. It is significant to note that neither the petitioner was arrested nor there is any report during the course of investigation that the petitioner was doing private practice during the period of his Government service. Shri R.C. Verma, according to the petitioner, in connivance with certain police officials illegally occupied the said premises and these premises were attached by the Sub-Divisional Magistrate and Proceedings under Section 145 Criminal Procedure Code . are pending in the Court of S.D.M. Shahdara. On another complaint a case has been registered against Shri R.C. Verma and his son Kamal under Section 448/388 I.P.C. and that both were arrested in that case. That case is also pending.
(10) The petitioner by his letter dated May 30, 1981 informed the Director of those incidents. In his words :
'FINDING themselves in a difficulty the landlord and the police official concerned by my filing the case in the Court of Law now they are bent upon harassing me in one way or the other. I appreciate that they may not implicate me in some false case to get my services, terminated by hook or crook. Actually the landlord and the Police officials have already threatened me for the consequences if I approach some body for justice. I also apprehend that they may make some false complaint to my employer.'
(11) In the meanwhile Shri R.C. Verma had addressed a letter to the Director alleging that the petitioner had been carrying on illegal private practice, charging high fee from the innocent patients regularly from 1-8-80 to 18-4-1981 when the police made a surprise raid at his private clinic at 19, Gulabi Bhavan, Mandawli Fazalpur, Delhi when some complaint was lodged against him and Shri G.R. Prashar was arrested and all the records and medicines etc. were seized. An officer suggested that a reference to the authorities of the Kalyan Puri Police Station be made to find out from them whether the raid was conducted by them at the private clinic of the petitioner on 18-4-1981 and the records/medicines were seized by them and whether a report of their investigation had been submitted by them for taking necessary action against the petitioner. The Director however, recorded on the file on July 24, 1981 that it had been sufficiently proved that the petitioner is doing private practice and so his services should is terminated under Rule 5. It is thereafter that the impugned order has been issued.
(12) Subsequent to the passing of the impugned order the Director wrote to the Station House Officer, Kalyan Puri Police Station calling for a report. The report of the Station House Officer dated October 13, 1981 says:
'AS regards Shri R.K. Dixit no proof was found that he was doing practice privately while he was in Government Service and hence he was neither arrested nor involved so far. On the other hand it is our legal and moral duty to inform you earlier if Shri R.K. Dixit was involved any where in this case but when you, yourself, asked us, it is being submitted to you that neither Shri R.K. Dixit is arrested in this case nor he is proved to do private practice regularly during the period of his Government service.'
(13) It is true that no Government servant can engage directly or indirectly in any trade of business or indulge in negotiating or getting other employment except with the previous sanction of the Government. This is so specified in Central Civil Service (Conduct) Rules, 1964. A similar condition has been specified in the appointment letter of the petitioner. Any violation would be a misconduct of the Government Servant for which he had to be charged. If the charge is established during a departmental enquiry, then a punishment could be imposed but not otherwise. The power of termination of the service under proviso to Rule 5 (1) is intended to be exercised when it relates to an enquiry into the unsuitability of the Government or a motive in that regard. In this case the allegations were that the petitioner was engaged in private practice in violation of the terms and conditions of employment and the conduct rules. This was held to be established and proved from the statement of Shri R.C. Verma without any enquiry. It is significant to note that in the FIR. No. 161 dated 18-4-1981, no such allegation is made that the petitioner is doing private practice. The Investigation Officer also did not find that the petitioner was doing practice privately while he was in Government service. The petitioner forewarned the competent authority of a false complaint likely to be made by Shri R.C. Verma and yet the petitioner was not confronted. The material produced by Shri R.C. Verma before the Director was not put to the petitioner in order to examine in minute detail. The complaint of Shri R.C. Verma was clearly with ulterior motives. If any documentary material was in existence then it would have been at the said shop when it was searched by the police on April 18, 1981. No such material was found there. It has not been brought on record as to how Shri R.C. Verma came in possession of the old prescription register or certain cash memos produced at a later stage before the Director. Those records which were produced were examined by the officers of the respondents and opinion expressed that these could not be relied upon. An opinion was expressed freely and frankly that the order passed by the Director was arbitrary, capricious and it had not been established from the evidence that the petitioner was doing private practice when he was in Government Service. In 'Anoop Singh Jaiswal v. Government of India and another 1984 LI.C. 343, their Lordship of the Supreme Court held :
'IT is significant that in the very same decision it is stated that the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. As observed by Ray, C.J. in Samsher Singh's case (supra) the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2). It is, thereforee, new well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.'
(14) The circumstances preceding to the passing of the impugned order and attending to it show that the foundation of the order is the alleged misconduct of doing private practice while in Government Service. The order is wholly arbitrary and has to be quashed.
(15) Accordingly, the writ petition is allowed. The impugned order of termination of the services of the petitioner is quashed. He is treated to be in service with all consequential benefits. On the facts and circumstances of the case I make no order as to costs.