Subramonian Poti, J.
1. This is an appeal against the decision of Chandrasekhara Menon J. quashing the order of termination of the services of the respondent and directing reinstatement with effect from 8-2-1968 with all consequential benefits. Respondent who was the petitioner in the Original Petition under Article 226 of the Constitution was a postman in the Posts and Telegraphs Department. He was a temporary civil servant. He was governed by the Central Civil Services (Temporary Service) Rules, 1965, His services were terminated under Rule 5 (1) of the said rules by Ext. P-4 order. Representation against Ext. P-4 order was rejected by the Chairman, Postsand Telegraphs Board, New Delhi, the 3rd appellant in the appeal. Ext. P-10 is the communication concerning such rejection. Ext. P-4 order as confirmed by Ext, P-10 was challenged in the Original Petition and that challenge succeeded before the learned single Judge.
2. The learned Judge has found that in the circumstances in which the order of termination was passed a case of punishment can be clearly spelt out and on the basis of the tests laid down by the Supreme Court the order Ext. P-4 has to be taken as an order of punishment. Since the requirements of Article 311(2) had not been complied with the order was held to be void. This view taken by the learned single Judge is challenged in this appeal.
3. It may be taken as well settled by a series of decisions by the Supreme Court that an order of termination of the services of a temporary civil servant without showing reason for such termination would not, for that reason, be bad. If the order terminating the services of a civil servant is under the rules of employment, without anything more, such termination will not attract Article 311 of the Constitution. If the order of termination is as a punishment for misconduct such an order would be bad even in the case of a temporary civil servant. The mere fact that an enquiry into allegations of misconduct had preceded the order of termination need not by itself mean that the termination is by way of punishment. If the motive for the termination is the allegation of misconduct that will not vitiate the order of termination provided the foundation of the order is not such misconduct. What is decisive is really whether it can be found in any given case that the order is by way of punishment.
4. The order Ext. P-4 which was challenged before the learned single Judge does not indicate any reason for such termination. But in the counter-affidavit filed on behalf of the appellants the background of such termination was indicated. In the counter-affidavit, in answer to the allegations in the Original Petition, it was stated thus :
'This is a case of termination ofservice of a temporary employee for continued bad performance and bad conduct. He was severely warned four times but there was no improvement. Hence, his service had to be terminated. He had been made aware of his bad work and conduct and was given an opportunity to improve. But since his work and conduct continued to be the same his services had to be terminated. The termination of services cannot mean reversion to a lower cadre. It means absolute severance of all connections with the Department'
5. It was contended before the learned single Judge that the above averments in the counter-affidavit were indicative that punishment has been inflicted on the petitioner in the guise of retrenchment simpliciter. Reliance was placed on certain decisions of the Supreme Court on this aspect of the case. The learned single Judge noticed the distinction between motive for termination and foundation for the order of termination and proceeded to state-
'What is stated in the instant case in the counter-affidavit is that the case of termination of the petitioner was for continued bad performance and bad conduct and his termination cannot mean reversion to a lower cadre; it means an absolute severance of all connections with the department. It clearly spells out a case of punishment.'
It may appear from the consideration of the question by the learned single Judge that it is proper to assume that in every case where it is averred that it is due to continued bad performance and bad conduct of a temporary civil servant that his services are terminated, it should be taken to be a case of imposition of a punishment. It is the correctness of this view that is challenged before us.
6. In P. L. Dhingra v. Union of India, AIR 1958 SC 36 Das C. J., speaking for the majority observed thus (at p. 49) :--
'In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Governmenthas, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the 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.' Thus in a case where a person has no right to a civil post as in the case of a temporary civil servant if the service rule is invoked to terminate the services prima facie the termination is not a punishment. But the Government may choose to punish a temporary civil servant for his misconduct, negligence, inefficiency or other disqualification and if they choose to terminate his services for that reason then the procedure under Article 311 of the Constitution applies to such a case. That is how the question whether action by way of termination is founded on charges of misconduct, inefficiency or negligence becomes relevant. In State of Punjab v. Sukh Raj, AIR 1968 SC 1089, Mitter J., speaking on behalf of the Court, after reviewing the decisions on the question summarised the position thus (at p. 1094):--
'On a conspectus of these cases, the following propositions are clear:--
1. The services of a temporary servant or a probationer 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.
2. 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.
3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
4. 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 beretained in service, does not attract the operation of Article 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged by Article 311 i. e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article.'
7. Evidently it is Clause 4 of this paragraph which applies to the case before us. Merely because there has been an enquiry and even the forming of an opinion as to whether a civil servant should be retained in service or not, the order of termination is not vitiated. A Bench of 7 Judges in Samsher Singh v. State of Punjab, AIR 1974 SC 2192 reviewed the earlier decisions of the Court and observed thus (at p. 2205) :--
'No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services arc terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given cart amount to removal from service within the meaning of Article 311(2) of the Constitution.'
If the misconduct, inefficiency or other similar reasons be the foundation for the discharge that is a case which would attract Article 311 of the Constitution. The Supreme Court has, in a subsequent decision in State of U. P. v. Ram Chandra, AIR 1976 SC 2547, affirmed the view expressed in the earlier decision.
8. In the above view the only question here is whether the bad performance and the bad past conduct of the Postman whose services were dispensed with in the case by Ext. P-4 was the foundation for the order of termination or was only a motive. This is a matter essentially for pleadings. We have gone through the pleadings in this case. The petitioner does not aver in the petition that the order Ext. P-4is founded on charges of misconduct or inefficiency and as such it is bad. It is not possible to say that in every case where the authority terminating the services of a temporary civil servant notices the past bad conduct of a person it must be assumed that it is the foundation for the order of termination. Whether it is so would bp a matter for pleading and proof. On the material before us it is not possible to say that the authority who passed Ext. P-4 order intended to inflict a punishment upon the respondent for his past misconduct or inefficiency. On the materials before the learned single Judge the could not have said that the order of termination was bad for that reason.
9. At the hearing counsel for the appellants wanted us to peruse the file relating to the termination of the services of the petitioner to show that the appellants never wanted to take any action against the respondent for termination as a matter of punishment. Reference to past misconduct in the counter-affidavit was only to furnish the background for the action taken against the respondent. We are satisfied that this is so.
In these circumstances we see no justification to quash Ext. P-4 order which is seen to be one of termination of services in accordance with the relevant service rules. Hence we set aside the Judgment of the learned single Judge, allow the Appeal and dismiss the Original Petition. In the circumstances of the case we direct the parties to suffer costs in this Appeal and also in the Original Petition.