C.M. Lodha, J.
1. This it a plaintiff's appeal arising out of a suit for declaration that the order of Divisional Engineer, Telegraphs. Ajmer Division Ajmer dated 12.7.1960 marked Ex. 13 terminating the plaintiff's service is void and that he still continues in the service and is entitled to all the benefits thereof. A money decree for Rs. 5853.72 paisa was also prayed for on account of arrears of pay and allowances for the period commencing from 12.7,1960 upto the date of the suit, i. e. 12.9.1963.
2. The facts of the case lie within a narrow compass. The plaintiff was appointed as officiating clerk on a temporary basis in an existing vacancy by an order dated 24.41954 (Ex. 1) He was declared successful in the examination (prescribed for clerks and R.M.S. Sorters before being declared quasi-permanent or confirmed) by an office order dated 11.2.1960 (Ex 2) On 25 4.1960 a notice was issued to the plaintiff by the Sub-Divisional Officer, Telegraphs, Bikaner Sub-division, Bikaner to show cause why the penalty of censure be not imposed on him for leaving Head-quartets without permission on 5.3.1960 and availing leave without the permission of Sub-Divisional Officer, Telegraphs, Bikaner and there by behaving in a most irresponsible manner and causing breach of discipline. This is notice Ex. 3. Another notice dated 17.5.1960 (Ex. 3) was issued to the plaintiff to show cause why the penalty of with-holding one increment without effecting future increments be not imposed upto him for not submitting Public Complaint statement for Feb. 1960 on due date. This notice is Ex. .4. On 17.6.1960 the plaintiff submitted two separate replies to the aforesaid notices Ex A. 6 No evidence was recorded in support of the charges nor any conclusion Was arrived at but the plaintiff was served with one month's notice of discharge dated 9.6.1960 (Ex 12) and on completion of the period of one month's notice, his service was terminated with effect from 12.7.1960 by order dated 12 7.1960 (Ex 13). The plaintiff filed appeal to the higher authority but was unsuccessful and then instituted the present suit on two grounds viz. (i) that be was a confirmed employee and therefore his services could not be terminated under Rule 5 of the Central Civil Service, Rules (Temporary Service) Rules, 1049, and (ii) that the impugned order of the termination (Ex. 13) is by way of punishment and is therefore bad being in violation of Article 311 of the Constitution. The suit was resisted by the Union of India, which pleaded inter alia that the order dated 12.7 1960 was not void & illegal. Certain other pleas regarding limitation and validity of notice Under Section 80 CPC were also taken, but they were decided against the defendant by the trial court and have not been pressed thereafter.
3. The Civil Judge, Ajmer dismissed the suit by his judgment and decree dated 29.10.1958 and on appeal by the plaintiff the learned District Judge, Ajmer affirmed the judgment and decree by the trial court Hence this appeal.
4. Leraned Counsel for the appellant has urged in the first instance that the plaintiff was a confirmed candidate and therefore his services could not have been terminated by one month's notice. In this connection reliance has been placed on para 15 of Ex.5. 'Recruitment to Central Subordinate Services of the Indian Posts and Telegraphs Department (Instructions to Applicants)'.
5. It is contended that the plaintiff was an approved candidate having undergone Clerk's Training for the prescribed period with effect from 21-12-1955 to 27-3-19S6 and was appointed in a permanent vacancy and had been thereafter declared successful in the examination prescribed for clerks before being declared quasi permanent or confirmed. It may be pointed out that the learned District Judge has held in this connection that Ex 5 contains only instructions to the applicants & does not have force of law & further that the plaintiff was not appointed on probation for one year.
6. Leraned Counsel for the applicant expressed his inability to point out any provision of law under which Ex 5 had been issued. He was not even able to show on what date these instructions had been issued. I am, therefore unable to agree with the leraned Counsel that Ex.5 has the force of law and the plaintiff can avail of the benefits provided therein.
Para 15 of Ex.5 reads under:
Appointment : After the prescribed course of training, a trained and qualified candidate will on the occurrence of a vacancy, be appointed on probation for one year at the end of which he will be confirmed it found suitable in every respect. If during the period his work or conduct is not found satisfactory, he will be liable to be removed from service without notice. Candidates selected for clerical end Sorter's Cadre will have to pass confirmation examination as prescribed by the rules.
The order of appointment of the plaintiff (Ex.1) does not show that the plaintiff was appointed on probation for one year. On the other hand it clearly provides that the appointment confers no right on the official to permanent appointment in the Department and his services are liable to termination at any time on one month's notice, and without assigning any reasons whatsoever. In these circumstances, Ex 5 can be of no help to the appellants.
7. In the alternative, leraned Counsel for the appellant relied on para 12 of Appendix 17 of the Posts and Telegraphs Manual, Volume IV Establishments (Third Edition) which provides for appointment on probation. It is sufficient to state that this provision also applies only to candidates appointed on probation for one year, a condition not fulfilled by the appellant. Moreover, it has not been proved that the plaintiff was appointed in a permanent vacancy. The plaintiff, therefore, cannot be said to be a confirmed candidate. The authorities relied upon by the leraned Counsel for the appellant in this connection: State of Haryana and Ors v. Rajindra Sareen 1972 SLR 112, and Shri Kedar Nath Bahl v. The State of Punjab and Ors. 1972 SLR 320 are distinguishable and have no application to the facts and circumstances of the present case. Both these cases pertain to persons appointed as probationers.
8. In Shri Kedarnath Bahl v. The State of Punjab and Ors. 1972 SLR 320 it was observed that 'unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period or is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. No such condition exists in the present case. Hence, I do not, see any force to the first contention of the leraned Counsel and hereby over-rule it.
9. Coming to the second contention the argument of the leraned Counsel is that the order of termination of the plaintiff's service was not a pure 'accident of service' but was an order in the nature of punishment and therefore Article 311 of the Constitution is attracted. In this connection reliance was placed on Appar Apar Singh v. The State of Punjab and Ors. 1971 (6) SLR 713, K.H. Phadnis v. State of Maharashtra 1971 SLR 345. The State of Bihar and Ors. v. Shiva Bhikshuk Mishra 1970 SLR 863. State of Uttar Pradesh and Ors. v. Sughar Singh : (1974)ILLJ260SC . State of Punjab v. Manohar Lal 1973 SLR 304. Sharat Chand Misra v. State of Uttar Pradesh and Ors. 1972 SLR 184. and Sarju Singh v. The Additional District Magistrate (Planning) 1973 SLR 90.
10. On the other hand Mr. Ashok Mathur, learned Deputy Government Advocate appearing for the Union of India has contended that the order Ex.13 is innocuous and it cannot be said that it has an inherent stigma or that it otherwise suffers from any such vice and consequently, it is argued that Article 311 is not attracted. In support of his contention he has relied upon The State of U.P v. Shyamlal Sharma 1972 SLR 53, Benjamin v. Union of India 1967 (11) LLJ 718 and State of Punjab v. Sukhraj : (1970)ILLJ373SC .
11. In Appar Apar Singh v. The State of Punjab and Ors. 1971 (6) SLR 71 after a review of the earlier decisions of the Supreme Court, it was observed that 'in order to find out whether an impugned order is one passed by way of punishment, the form in which the order is expressed is not decisive and the circumstances preceding or attendant on the order have to be examined in each case. It is also clear that the motive behind the passing of the order is of no consequence.' In that case, the plea of the State that the enquiry conducted against the appellant was only to find out the suitability of the appellant to continue as a Principal and that as he was found to be unsuitable he was reverted, was not accepted by their Lordships. On the other hand, they found that the enquiry was held with a view to investigate into the allegations made against the appellant & one of the allegations related to a very serious matter. Their Lordships further found that no doubt the order by itself and on the face of it was innocuous but the finding recorded by the Deputy Directors against the appellant and their recommendation to impose punishment upon the appellant were the very foundation for the Government for passing the impugned order of reversion In this view of the matter, their Lordships set aside the impugned order being in violation of Article 311(2) of the Constitution.
12. In K.H. Phadnis v. State of Maharastra 1971 SLR 345 their Lordships came to the conclusion that the facts and circumstances brought out in bold relief that the order of reversion was in the nature of punishment. It that case the appellant was faced with certain charges of receiving money and gifts at the time of marriage of his daughter The appellant denied the allegations. The Secretary to the Government virtually threatened to repatriate the appellant to his parent Department. The Minister visited the officer of the appellant. The Police conducted an enquiry. The appellant himself had asked for an enquiry. At the time of the passing of the order of reversion the appellant not only protested but also asked the Government to wait for the completion of the investigation. The Government did not accede to that request Subsequently the investigation indicated that the appellant was totally free from blame or taint. In these circumstances it was held that the order of reversion was not 'a pure accident of service' but an order in the nature of punishment which attracted Article 311.
13. In the State of Bihar and Ors. v. Shiva Bhikshuk Mishra 1970 DLR 863 their Lordships held that the entirety of circumstances preceding or attendant on impugned order must be examined and the over riding test will always be whether the misconduct is a mere motive or is the very foundation of the order. In making these observations their Lordships relied upon two earlier decisions of the Supreme Court: Champak Lal Chiman Lal Shah v. The Union of India 1964 SCR 190 and Union of India and Ors. v. R.S. Dhaba : 19ITR143(SC) and quoted with approval the following observations from the latter:
The test for attracting Article 311(2) of the. Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the foundation of the order of termination of service of the temporary employee (see the decision of this Court in Champaklal Shah v. The Union of India : (1964)ILLJ752SC . In the present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the respondent and, therefore, it cannot be held that the order of reversion was made by way of punishment and the provisions of Article 311 of the Constitution are consequently attracted.
It was also observed after reference to S.R. Tewari v. District Board Agra and Anr. : (1964)ILLJ1SC that the form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. Their Lordships further laid down that the entirety of circumstances preceding or attendant on impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. In that case the Commandant wrote to the Deputy Inspector General of Police that after an enquiry against the appellant he was of the opinion that the respondent had actually assaulted his orderly by taking the law into his own hands, but that the incident may be dropped without taking action and the appellant may be censured for his unsatisfactory behaviour. The Deputy Inspector General of Police, however, recommended to the Inspector General of Police that an enquiry be held against the delinquent officer by a Board, The Inspector General of Police served a notice upon the respondent to attend the Board of Enquiry for answering the charges of misconduct; but within 12 days of doing so the respondent was reverted to his substantive post and a few days after, the respondent was dismissed from service. The question that arose for decision was whether the order of dismissal was bad being in violation of Article 311(1) of the Constitution. The High Court found and the Supreme Court concurred in the finding of the High Court that the order of reversion was directly and proximately founded on what the Commandant and the Deputy Inspector General of Police had said relating to the respondent's conduct generally and in particular with reference to the incident of assault by him on his orderly. In this view of the matter, the order of reversion as well as the subsequent order of dismissal were set aside.
14. In State of Uttat Pradesh and Ors. v. Sughar Singh : (1974)ILLJ260SC it was found that from out of a group of about 200 officers most of whom were junior to the respondent, the respondent, alone had been reverted to the substantive post of Head Constable, and, therefore, it was held that there was no administrative reason for the reversion of the respondent. It was also found that the post which the respondent held in an officiating capacity had not been abolished nor there were any administrative reasons for reverting the respondent to his substantive post. In the High Court it had been stated by the counsel appearing for the State that the order of reversion was a result of the adverse entry made in the appellant's confidential character roll 'If this statement of the learned standing counsel has to be accepted' their Lordships observed, ''it is impossible to resist the suggestion that the respondent's order of reversion was really an order of punishment in disguise in which event the order must be struck down for non-compliance with the requirements of Article 311 of the Constitution'. In that case the State faced a dilemma in as much as if it was not a case of punishment, it became difficult to explain why this discrimination was made against the respondent vis-a-vis 200 other officers, who were junior to him in the substantive cadre; That would make the order liable to be struck down as violative of Article 16 of the Constitution. If, on the other hand, the order had to be justified with reference to the adverse entry in the character roll, it became a case of infringement of Article 311 of the Constitution. However, their Lordships found that the compelling logic of totality of circumstances attending the order of reversion indicates that if the order was not discriminatory & had to be justified with reference to the proceedings against the respondent and the earlier order regarding his character roll, it was impossible to avoid the criticism that it was really a punishment in the garb of an order of reversion. In this view of the matter it was held that the order of reversion was passed by way of punishment. But their Lordships further observed that even if it were not so, the order would be liable to be quashed on the ground of contravention of Articles 14 and 16 of the Constitution.
15 Leraned Counsel for the appellant has laid great emphasis on Sughar Singh's case : (1974)ILLJ260SC and has argued that in the present case also persons junior to the appellant were retained in service whereas the appellant's service were unlawfully dispensed with. In this connection reliance has been placed on para No. 10 of the plaint that the impugned order of termination of his services is discriminatory in as much as persons junior to the plaintiff had been retained in service. But this allegation has been denied by the respondent. The plaintiff Shankerlal P W 1 stated in his examination-in-chief that 30 to 35 persons were junior to him at the time when his services were terminated. When cross-examined on this point, he has stated that he does not know the names of the juniors. Thus, in my opinion, the appellant has failed to establish that the order of termination of his services was discriminatory being in violation of Article 16 of the Constitution. In fact the appellant did not rely on this plea in any of the two courts below and no such argument was raised before any of the two lower courts. It appears to ma that the leraned Counsel for the appellant has pressed into service this argument simply with a view to bring the case within the rule laid down by their Lordships in Sughar Singh's case : (1974)ILLJ260SC
16 In The State of U.P. v. Shyamlal Sharma 1972 SLR 53 it was observed that 'unless it was established from the order of compulsory retirement itself that a charge of imputation against the officer was made the condition of the exercise of that power or that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal or removal in the nature of penalty or punishment. In coming to this conclusion their Lordships relied on an earlier case of that Court: I.N. Saksena v. State of Madhya Pradesh : (1976)IILLJ154SC wherein it was observed that 'where an order requiring a Government servant to retire compulsorily contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Article 311. But where there are no express words in the order itself which would throw any stigma on the Government servant we cannot delve into secretariat files to discover whether some kind of stigma can be inferred on such research.' In the conclusion it was held that the High Court fell into an error by holding that the order of compulsory retirement contained stigma by going behind the order of retirement.
17. In Benjamin v. Union of India 1967 (11) LLJ 718 it was observed that where the Government had a right under the contract or the rules to terminate the service, the motive operating on the mind of the Government is wholly irrelevant and that even in a case where formal Departmental Enquiry is initiated against a temporary Government servant it is open to the authority to drop further proceedings in the Departmental Enquiry and to make an order of discharge simpliciter against the temporary servant. In that case the enquiry was not completed and it was thought that if a proper departmental enquiry was to be completed it would take a much longer time. The Chairman, therefore, recommended that the services of the appellant be terminated under Rule 5 of the Civil Services Rules. In this state of facts their Lordships were pleased to hold that it was clear that the intention of the authority was not to in pose a stigma against the appellant but to make a simple order of discharge under Rule 5 of the Central Civil Services Rules and that the appellant was not entitled to invoke the protection of Article 311(2). The facts of the present case are very much similar to Benjamin's case 1967 (11) LLJ 718.
18. In State of Punjab v. Sukhraj : (1970)ILLJ373SC the departmental enquiry did ret proceed beyond the stage of submission of a charge sheet followed by the respondent's explanation thereto. The enquiry was not proceeded with, there were no sittings of any enquiry officer, no evidence was recorded and no conclusion arrived at on the enquiry. In these circumstances, the principles in Madan Gopal v. State of Punjab : (1964)ILLJ68SC or Jagdish Mitter v. Union of India : (1964)ILLJ418SC , were held to be not applicable. But the case was held to be in line with the occasion of the Supreme Court in State of Orissa v. Ramnarayan Das : (1961)ILLJ552SC .
19. In Jagdish Mittar v. Union of India : (1964)ILLJ418SC the Supreme Court said:
Take a case where the authority initiates a formal departmental enquiry against a temporary servant, but whilst the enquiry is pending it takes the view that it may not be necessary or expedient to terminate the services of the temporary servant by issuing an order of dismissal against him. In order to avoid imposing any stigma which an order of dismissal necessarily implies, the enquiry is stopped and an order of discharge simpliciter is served on the servant. It must be held that the termination of services of the temporary servant which in form & in substance is no more than his discharge affected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued for some alleged misconduct. That is a why in dealing with temporary servants against whom formal departmental enquiries may have been commenced but were not pursued to the end, the principle that the motive operating in the mind of the authority is immaterial, has to be borne in mind.
20. Thus the law appears to be well settled that it is to be decided on the facts and circumstances of each case whether the misconduct of the officer is a mere motive for the order of termination of service or whether it is the very foundation of the order. Applying this test to the present case it is clear that the Departmental Enquiry did not proceed beyond the stage of service of charge sheet followed by the appellant's explanation thereto. No evidence was recorded and no conclusion was arrived on the enquiry. It is further clear that the respondent did cot want to take any punitive action against the appellant and since according to the conditions of service as well as the Rules applicable to temporary servants the services of the appellant were liable to termination at any time on one month's notice and without assigning any reasons whatsoever, the respondent discharged the appellant from service after giving one month's notice. In these circumstances it cannot be said that the alleged misconduct of the appellant was the very foundation of the impugned order of termination of service. On the other band it was an order of discharge simpliciter against a temporary servant, in an unexceptionable form and consequently it does not attract the operation of Article 311 of the Constitution.
21. The result is that I do not see any force in this appeal, and hereby dismiss it. But in the circumstances of the case, I make no order as to costs.