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PETITIONER: STATE OF UTTAR PRADESH AND ANR.

       Vs.

RESPONDENT: KAUSHAL KISHORE SHUKLA

DATE OF JUDGMENT11/01/1991

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) OJHA, N.D. (J) SAWANT, P.B.

CITATION:  1991 SCR  (1)  29        1991 SCC  (1) 691  JT 1991 (1)   108        1991 SCALE  (1)15

ACT:      Civil Service--Assistant Auditor--Ad hoc and  temporary employee--Holding  of preliminary inquiry--Does  not  affect the nature of the termination order.

HEADNOTE:      The  respondent  was  appointed  on  18.2.1977  as   an Assistant  Auditor under the Local Funds Audit  Examiner  of State  of U.P. on ad hoc temporary basis for the term  fixed in the order of his appointment and his services were liable to be terminated at  any time without assigning any  reason. After  his initial appointment, his services  were  extended from time to time till 28.2.1981.  He was awarded an adverse entry  in  his  character roll for the  year   1977-78  both regarding  his  conduct as also his  work.   The  respondent alongwith  one Rajendra Prasad Pandey, another  Sub-Auditor, were  deputed  to audit the accounts of Raja  Raghbar  Dayal Inter  College, Sitapur in respect of the year 1979-80.   It is  alleged that while auditing the account, they  acted  in excess  of  their authority in as much as they  audited  the ’Boys Fund Accounts’, issued audit note and also irregularly demanded  and collected Rs. 2,000 as audit fee,  and  issued receipt  under their signature.  On complaint a  preliminary enquiry  was  held  and the allegations  were  found  to  be correct.    After  the  preliminary  inquiry   report,   the respondent  was  relieved from his duties from  Sitapur  and directed  to  join  his duty at  Allahabad.   Whereupon  the respondent  proceeded on leave and did not join his duty  at Allahabad.    The  respondent’s  services   were   therefore terminated  by  order dated 23.9.1980 and by  another  order services of Pandey were also terminated.  Both of them filed writ  petitions  in  the High Court  contending  that  their termination  orders  were  illegal  having  been  passed  in violation  of Article 311 of the Constitution.  Whereas  the writ  petition filed by Pandey was dismissed, the one  filed by  the  respondent was allowed.  The High Court  held  that since  juniors  to the respondent were retained  in  service while  the respondent’s services were terminated, the  order of termination was discriminatory in nature.  The High Court further held that the order of termination was founded on an adverse entry awarded to the respondent hence it was not  in

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good faith; the punishment awarded to the respondent was not proportionate to the alleged offence.  Against the -                                                         30 said order, the State of U.P. filed a appeal after obtaining special  leave.  The question involved for consideration  is whether the order terminating the services of the respondent is vitiated in law?      Allowing the appeal, this Court,      HELD:  Holding of preliminary inquiry does  not  affect the nature of the termination order. [42C)      In  the  instant case the respondent  was  a  temporary Government Servant and there was adverse regarding his  work which was reflected in the adverse remarks made for the year 1977-78.  The competent authority held a preliminary inquiry in regard to the allegations of improper conduct in carrying out   unauthorised  audit  of  Boys  Fund   of   educational institution.   On  result  of  the  preliminary  inquiry  no charges  were framed against the respondent, no officer  was appointed  for holding the departmental inquiry instead  the competent  authority  chose to  terminate  the  respondent’s services  in  exercise  of its powers  under  the  terms  of contract a well as under the relevant rules applicable to  a temporary Government servant. [42A-C]      The  principle ’last come first go’ is applicable to  a case  where on account of reduction of work or shrinkage  of cadre,   retrenchment  takes  place  and  the  services   of employees  are terminated on account of  retrenchment.   But this  principle  is  not  applicable to  a  case  where  the services  of  a  temporary employee are  terminated  on  the assessment  of his work and suitability in  accordance  with term and conditions of his service.  On the admitted set  of facts,  the order of termination in the instant case,  could not  be  rendered illegal or unjustified on  the  ground  of juniors  being retained in service.  The view taken  by  the High Court is not sustainable in law. [33D-H]      Appeal  allowed,  High  Court order  set  aside  as  it interfered  with  order of termination in a  casual  manner. [42D]      Parshotam Lal Dhingra v. Union of India. [1958]  S.C.R. 828; The State of Orissa & Anr. v. Ram Narayan Das, [1961] 1 S.C.R.  606; R.C. Lacy v. The State of Bihar & Ors.,  C.A.No 590/62  decided on 23.10.1963; Champaklal Chimanlal Shah  v. The  Union  of India, [1964] AIR S.C.449; A.G.  Benjamin  v. Union of  India,  C.A. No. 1341/66  decided  on  13.12.1966; Shamsher  Singh & Anr. v. State of Punjab, [1975]  1  S.C.R. 814; State of Punjab & Anr. v. Shri Sukh Raj Bahadur, [1968] 3 S.C.R.                                                        31 234; R.K. Misra v. U.P. State Handloom Corporation, [1988] 1 S.C.R. 501, referred to.      Nepal  Singh v. State of U.P. & Ors., [1985]  1  S.C.C. 56;  Ishwar Chand Jain v. High Court of Punjab &  Haryana  & Anr., [1988] 3 S.C.C. 370 distinguished.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal (C) No.  137 of 1991.      From  the  Judgment and Order dated  20.2.1989  of  the Allahabad High Court in W.P. No. 3096 of 1980.      Yogeshwar Prasad and Ms. Shoba Dixit for the Appellants.      R.B.  Datar,  R.K.  Khanna  and  Surya  Kant  for   the Respondent.      The Judgment of the Court was delivered by

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    SINGH, J. Leave granted.      This  appeal  is directed against the judgment  of  the Allahabad High Court (Lucknow Bench) setting aside the order dated 23.9.1980 terminating the respondent’s services.      The sole question which falls for consideration in this appeal is whether the order dated 23.9.1980 terminating  the respondent’s  services,  who was admittedly  an  ad-hoc  and temporary  employee is vitiated in law. The High  Court  has held  that since juniors to the respondent were retained  in service while the respondent’s services were terminated, the order  of  termination  was discriminatory  in  nature.   It further held that since the order of termination was founded on an adverse entry awarded to the respondent  his character roll  without giving him any opportunity on the ground  that he  was  not  suitable, the order "cannot be said  to  be  a decision  given  in  good faith."  The  High  Court  further observed:  "Even  if any punishment was to  be  awarded,  it should  have been proportionate to the alleged offence ,  if any."  On these findings the High Court held that the  order of  termination  suffered  from apparent error  of  law,  it accordingly  allowed  the  respondent’s  writ  petition  and quashed the order of termination.      The  factual matrix of the case is in a short  compass. The respon-                                                        32 dent,  was  appointed  on ad-hoc basis on  18.2.1977  as  an Assistant Auditor under the Local Funds Audit Examinater  of the  State  of Uttar Pradesh, for a fixed period  ending  on 31.8.1977.   In  December,  1977 the  respondent  was  again appointed on ad-hoc basis for a period ending on  28.2.1978. Since the regular appointment could not be made in time, the respondent’s services were extended from time to time.   The last  extension  was granted on 21.1.1980 and  the  extended period of service was to expire on 28.2.1981.  The terms and conditions of respondent’s service as contained in the order of  appointment  stated  that the  appointment  was  ad-hoc, purely  temporary  for the term fixed in the order  and  his services  were liable to be terminated at any  time  without assigning  any reason.  He was awarded an adverse  entry  in his  character roll for the year 1977-78.  The entry  stated that the respondent’s work was poor and he should work  hard and  take  interest  in  the  work.   The  respondent   made representation against the entry but the same was  rejected. The  respondent  and  Rajendra Prasad  Pandey  another  Sub- Auditor  both  were deputed to audit the  accounts  of  Raja Raghunbar Dayal Inter College, Sitapur for the year 1979-80. While  carrying  on the Audit the  respondent  and  Rajendra Prasad  Pandey both are alleged to have acted in  excess  of their authority in auditing the "Boys Fund Accounts" of that College for the year 1978-79 on their own accord without any authority for the same.  They issued audit note under  their own  signatures and also irregularly demanded a high  amount of Rs. 13,250.70 as audit fee and collected an amount of RS. 2,000  as  audit fee for which they  issued  receipts  under their own signatures.  On receipt of complaint a preliminary inquiry  was  held that it was found  that  the  allegations against  the  respondent  and Rajendra  Prasad  Pandey  were correct  and both of them had acted beyond  their  authority and collected a sum of Rs. 2,000 as audit fee for the  audit of  the  Boys Fund Accounts, although the Boys Fund  of  the Institution did not fall within the purview of audit of  the Local Funds Audit and no fee was chargeable for the audit of such  Fund.   After  the  preliminary  inquiry  report,  the respondent  was  relieved from his duties from  Sitapur  and directed to join his duties at Allahabad, but the respondent

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proceeded on leave and did not join his duties at Allahabad. Ultimately, the respondent’s services were terminated by the order dated 32.9.1980 and on the same day by another  order, service  of  Rajendra Prasad Pandey  were  also  terminated. Both the aggrieved persons filed writ petitions in the  High Court at Lucknow Bench under Article 226 of the Constitution contending  that  their  termination  orders  were  illegal, having  been  passed  in violation of  Article  311  of  the Constitution.   The writ petition filed by  Rajendra  prasad pandey was dismissed but the respondent’s writ petition  was allowed by a                                                        33 Division  Bench  of the High Court on the  ground  as  noted earlier.      There  is no dispute that the respondent was an  ad-hoc and temporary employees and the terms and conditions of  his employment  were regulated by the U.P. Temporary  Government Servant   (Termination  of  Services0   Rules,  1975.    The contract  of service as contained in the appointment  letter also stipulated the terms and conditions of the respondent’s employment that his services were liable to be terminated at any  time without assigning any reason or compensation.   In the counter-affidavit filed before the High Court the  order of   termination  was  defended  on  the  ground  that   the respondent’s  work and conduct were not satisfactory and  he was unsuitable for the service, therefore his services  were terminated.  To support that contention the appellant placed reliance  on the adverse entry awarded to the respondent  in the  year 1977-78 and also on the allegations  made  against him  with  raged  to  the audit of the  Boys  Fund  of  Raja Raghubar  Dayal  Inter College.  The High  Court  held  that since  junior  persons  to the respondent  in  service  were retained, the order of termination was rendered illegal.  In our  opinion,  the  principle of ’last  come  first  go’  is applicable  to a case where on account of reduction of  work or  shrinkage  of  cadre retrenchment takes  place  and  the services   of  employees  are  terminated  on  a  count   of retrenchment.  In the event of retrenchment the principle of ’last  come  first go’ is applicable under which  senior  in service   is  retained  while  the  junior’s  services   are terminated.  But this principle is not applicable to a  case where the services of a temporary employee are terminated on the  assessment  of his work and suitability  in  accordance with terms and conditions of his service.  if out of several temporary  employees  working in a department  a  senior  is found  unsuitable on account of his work and conduct, it  is open  to the competent authority to terminate  his  services and retain the services of juniors who may be found suitable for  the  service.   Such  a  procedure  does  not   violate principle of equality, enshrined under Articles 14 and 16 of the  Constitution.  if a junior employees  is  hard-working, efficient  and honest his services could not  be  terminated with  a view to accommodate the senior employee even  though he  is found unsuitable for the service.  if this  principle is not accepted there would be discrimination and the  order of   the   termination  of  a  junior  employee   would   be unreasonable  and  discriminatory.  On the admitted  set  of facts, the order of termination in the instant  case,  could not  be  rendered illegal or unjustified on  the  ground  of juniors  being retained in service.  The view taken  by  the High Court is not sustainable in law.                                                        34      The   High   Court  held  that   the   termination   of respondent’s  services on the basis of adverse entry in  the character  roll  was not in good faith  and  the  punishment

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imposed on him was disproportionate.  it is unfortunate that the  High  Court  has  not recorded  any  reasons  for  this conclusion.  The respondent had earned an adverse entry  and complaints  were  made  against  him  with  regard  to   the unauthorised  audit  of  the Boys  Fund  in  an  educational institution,  in respect of which    a  preliminary  inquiry was   held  and  thereupon,  the  competent  authority   was satisfied  that  the  respondent was not  suitable  for  the service.   The  adverse  entry as well  as  the  preliminary inquiry report with regard to the complaint of  unauthorised audit  constituted adequate material to enable to  competent authority  to  form  the  requisite  opinion  regarding  the respondents  suitability  for service.   Under  the  service jurisprudence a temporary employee has no right to hold  the post  and  his  services  are liable  to  be  terminated  in accordance with the relevant service rules and the terms  of contract  of  service.  If on the perusal of  the  character roll  entries or on the basis of preliminary inquiry on  the allegations   made  against  an  employee,   the   competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are  terminated, no exception can be taken to such an  order of termination.      A  temporary  Govt. Servant has no right  to  hold  the post, his services are liable to be terminated by giving him one month’s notice without assigning any reason either under the terms of the contract providing for such termination  or under the relevant statutory rules regulating the terms  and conditions  of temporary Govt. servants.  A temporary  Govt. servant  can, however, be dismissed from service by  way  of punishment.  Whenever, the competent authority is  satisfied that  the  work and conduct of a temporary  servant  is  not satisfactory  of that his continuance in service is  not  in public interest on account of his unsuitability,  misconduct or  inefficiency,  it may either terminate his  services  in accordance  with the terms and conditions of the service  or the relevant rules or it may decide to take punitive  action against  the temporary Government servant. if it decides  to take  punitive action may hold a formal inquiry  by  framing charges  and  giving  opportunity to the  Govt.  servant  in accordance   with  the  provisions  of  Art.  311   of   the Constitution.   since,  a temporary Govt.  servant  is  also entitled  to  the protection of Article 311(2) in  the  same manner  as  a  permanent  Govt.  servant,  very  often,  the question  arises  whether  an order  of  termination  is  in accordance  with the contract of service and relevant  rules regulating  the  temporary  employment or it is  by  way  of punishment.   It  is now sell-settled that the form  of  the order is not conclusive                                                        35 and it is open to the Court to determine the true nature  of the   order.   in  Parshotam   Lal  Dhingra  v.   Union   of India,[1958] SCR 828 a Constitution Bench of this Court held that  the  mere  use  of  expressions  like  ’terminate’  or ’discharge’  is  not conclusive and in spite of the  use  of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against  the Govt. servant is punitive in nature.  The Court further held that  in determining the true nature of the order the  Court should  apply  two tests namely: (1) whether  the  temporary Govt.  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 order of termination of a temporary Govt. servant is by  way of  punishment.  It must be borne in mind that  a  temporary

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Govt. servant has no right to hold the post and  termination of  such  a  Govt.  servant does  not  visit  him  with  any evil consequences.   The  evil  consequences  as   held   in Parshotam  Lal  Dhingra’s case (supra) do  not  include  the termination  of  services of a temporary  Govt.  servant  in accordance  with the terms and conditions of  service.   The view  taken by the Constitution Bench in Dhingra’s case  has been  reiterated  and  affirmed by  the  Constitution  Bench decisions  of this Court in the State or Orrisa and anr.  v. Ram Narayan Das, [1961] 1 SCR 606; R.C. Lacy v. The State of Bihar  &  Ors.,  C.A.  No.  590/62  decided  on  23.10.1963; Champaklal  Chimanlal Shah v. The Union of India,  [1964]  5 SCR 190; Jagdish Mitter v. The Union of India, [1964] AIR SC 449;  A.G.  Benjamin  v. Union of in‘ia,  C.A.  No.  1341/66 decided on 13.12.1966 and Shamsher Singh & Anr. v. State  of Punjab,[1975] 1 SCR 814, These decisions have been discussed and  followed  by a three Judge Bench in State of  Punjab  & Anr. v. Shri Sukh Raj Bahadur, [1968] 3 SCR 234.      Learned  counsel  for  the respondent  urged  that  the allegations  made against the respondent in respect  of  the audit  of  Boys  Fund of  an  educational  institution  were incorrect  and he was not given any opportunity  of  defence during  the  inquiry which was held ex-parte.  had  he  been given the opportunity, he would have placed correct  facts before the inquiry officer. His services were terminated  on allegation of misconduct founded on the basis of an ex-parte enquiry report.  He further referred to the allegations made against the respondent in the counter-affidavit filed before the  High Court and urged that these facts demonstrate  that the  order  of  termination was in substance,  an  order  of termination  founded on the allegations of  misconduct,  and the  ex  parte enquiry report.  In order to  determine  this question,  it  is necessary to consider the  nature  of  the respondent’s  right  to hold the post and to  ascertain  the nature and purpose of the inquiry held against                                                        36 him.  As already observed, the respondent being a  temporary Govt.  servant  had  no  right to hold  the  post,  and  the competent authority terminated his services by an  innocuous order of termination without casting any stigma on him.  The termination  order  does not indict the respondent  for  any misconduct.    The  inquiry  which  was  held  against   the respondent  was  preliminary  in  nature  to  ascertain  the respondent’s  suitablity and continuance in service.   There was  no  element of punitive proceedings as no  charges  had been  framed, no inquiry officer was appointed, no  findings were recorded, instead a preliminary inquiry was held and on the   report  of  the  preliminary  inquiry  the   competent authority   terminated  the  respondent’s  services  by   an innocuous order in accordance with the terms and  conditions of his service.  Mere fact that prior to the issue of  order of  termination, an inquiry against the repondent in  regard to  the allegations of unauthorised audit of Boys Fund,  was held does not change the nature of the order of  termination into that of punishment as after the preliminary inquiry the competent  authority took no steps to punish the  respondent instead it exercised its power to terminate the respondent’s services in accordance with the contract of service and  the Rules.      In State of Orissa & Anr. v. Ram Narain Dass, [1961]  1 SCR  606  a Constitution Bench of this court  considered  the question  and  indicated  "the fact of  the  holding  of  an inquiry  is not decisive of the question.  What is  decisive is whether the order is by way of punishment in the light of the tests laid down in Purshottam Lal Dhingra’s case."

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    In  Jagdish Mitter’s case (supra) a Constitution  Bench of this Court held that every order terminating the services of a temporary public servant does no amount to dismissal or removal  from  service merely because an  inquiry  was  held before  the  order  of termination was  passed.   The  Court observed  that  the  appropriate  authority  has  power   to terminate  a temporary public servant either by  discharging him under the terms of contract or the relevant rules or  by holding departmental disciplinary inquiry and dismissing him from  service.   Before  passing order  of  termination  the competent   authority  may  hold  inquiry  in  fairness   to ascertain whether the temporary servant should be  continued in   service  or  not.   While  discussing  the  nature   of preliminary inquiry the Court observed as under:           "There  is no element of punitive  proceedings  in          such  an  enquiry;  the idea  in  holding  such  an          enquiry is not the punish the temporary servant but          just to decide whether he                                                        37           deserves to be continued in service or not. If  as          a result of such an enquiry, the authority comes to          the  conclusion that the temporary servant  is  not          suitable  to  be continued, it may  pass  a  simple          order   of  discharge  by  virtue  of  the   powers          conferred  on  it by the contract or  the  relevant          rule;  in such a case, it would not be open to  the          temporary servant to invoke the protection of  Art.          311  for the simple reason that the  enquiry  which          ultimately  led to his discharge was held only  for          the purpose of deciding whether the power under the          contract  or the relevant rule should be  exercised          and the temporary servant discharged." In  Champaklal chiman lal Shah’s case (supra) the  appellant therein  was a temporary employee of the  Union  Government. His  services were terminated without assigning any  reasons and  without  affording him  opportunity  of  showing-cause. Before  passing  the  order  of  termination  the  competent authority  had issued a notice to Champaklal Chimanlal  Shah calling  upon him to explain certain irregularities  and  to show-cause  why  disciplinary  action should  not  be  taken against  him.  In response to the notice, he  submitted  his explanation  thereupon, certain preliminary  enquiries  were held,  but  he was not given opportunity to place  his  case during   the  preliminary  enquiry.   However,   after   the preliminary enquiry to regular departmental enquiry was held instead  proceedings for departmental enqiury  were  dropped and  the  services  of Chimanlal  Shah  were  terminated  in accordance  with  the terms and conditions of service  of  a temporary Govt. servant.  The termination order was assailed on the ground that the order of termination was in substance an  order of punishment.  the Constitution Bench  held  that the order of termination was not an order of punishment  and the appellant was not entitled to the protection of  Article 311(2) of the Constitution.  The Court emphasised that  when a  preliminary  enquiry is held against  a  temporary  Govt. employee,   it  must  not  be  confused  with  the   regular departmental  inquiry which usually follows the  preliminary inquiry,  after the government decides to frame charges  and to  get a departmental enquiry made, with a view to  inflict one of the three major punishments on the Govt. servant.  So far  as  the preliminary enquiry is concerned, there  is  no question  of  it  being governed by Article  311(2)  of  the Constitution, as it is made for the purpose of collection of facts to enable to the competent authority to decide whether punitive action should be taken or action should be taken in

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terms  and  under  the  contract of  service  or  the  rules applicable  to  a  temporary government  servant.   A  Govt. servant has no right to insist for affording him opportunity during such enquiry and such an                                                   38 ex-parte  enquiry  is not initiated in law in  view  of  the purpose and object of preliminary enquiry.  On an  elaborate discussion, the Court observed as under:           "In short a preliminary enquiry is for the purpose          of collection of facts in regard to the conduct and          work of a government servant in which he may not be          associated  so  that the  authority  concerned  may          decide  whether  or  not  to  subject  the  servant          concerned  to the enquiry necessary under Art.  311          for  inflicting one of the three major  punishments          mentioned therein.  Such a preliminary enquiry  may          even  be  held ex parte for it is  merely  for  the          satisfaction of government, though usually for  the          sake  of  fairness, explanation is taken  from  the          servant concerned even at such an enquiry.  But  at          that  stage  he has no right to be  heard  for  the          enquiry  is  merely  for the  satisfaction  of  the          Government,  and  it is only  when  the  government          decides to hold a regular departmental enquiry  for          the  purposes of inflicting one of the three  major          punishments  that the government servant  gets  the          protection  of  Art. 311 and all  the  rights  that          protection  implies  as  already  indicated  above.          There  must therefore be no confusion  between  the          two  enquiries and it is only when  the  government          proceeds  to  hold a departmental enquiry  for  the          purpose of inflicting on the government servant one          of  the three major punishments. indicated in  art.          311 that the government servant is entitled to  the          protection of that Article.  That is why this Court          emphasised in Parshotam Lal Dhingra’s case  (supra)          and  in  Shyamlal v. The State  of  Uttar  pradesh,          [1955]  1  SCR 26 that 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   is          irrelevant." The above principles were reiterated by another Constitution Bench  of  this  Court in R.C. Lacy’s case  (supra)  dealing with  the  case of reversion of a  permanent  Govt.  servant officiating  on a higher post.  The Bench observed that  the Government might find it necessary to terminate the services of  a  temporary employee if it is not  satisfied  with  the conduct  or  work  of an employee  and  the  same  reasoning applies  to a public servant who is reverted from  a  higher post  to  his substantive lower post, if the higher post was held in a temporary nature.  Before terminating the services of a temporary servant or reverting the person                                                        39 officiating  in a higher post to his substantive  post,  the Govt.  may hold a preliminary enquiry to form the  requisite satisfaction  for the continuance of the  officiating  govt. servant.  Such an inquiry does not change the nature of  the order of the termination or reversion.      In   A.G.   Benjamin’s  case  (supra)   the   appellant was  temporarily employed as a Store Officer in the  Central Tractor Organisation, his services were terminated under the Central  Civil  Service (Temporary Service) Rules,  1949  by granting  him  one month’s salary in lieu of notice.  A  .G. Benjamin contended that the order of termination was in fact

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an  order  of  punishment, which  had  been  passed  without affording  him  the protection under Article 311(2)  of  the Constitution.  In that case before the issue of  termination order,  a  notice had been issued to Benjamin  for  showing- cause  as to why disciplinary action should not be taken  on the  allegations  made against him in respect of  which  the charges  had  been framed and an enquiry  officer  had  been appointed.    After   the  charges  were  framed   and   the explanation  of Benjamin was obtained, the Chairman  of  the Central  Tractor  Organisation  submitted  a  note  to   the Government  that the departmental proceedings may take  much longer time and he was not sure that after going through all the  formalities  of departmental enquiry Benjamin  will  be dealt  in  the way he deserved, therefore, he  suggest  that action  should  be taken under Rule 5 of the  Central  Civil Service (Temporary Service) Rules, 1949 for terminating  his services by giving him one month’s salary in lieu of  notice as he was a temporary Govt. servant.  The Minister concerned accepted   the   recommendations,   whereupon,   order    of termination was issued terminating the services of Benjamin. While  assailing the order of termination, it was  seriously contended  before  this Court that in view  of  the  charges being  framed and the enquiry officer having been  appointed the  order  of  termination in substance  was  an  order  of punishment  and the recourse to the temporary service  rules had   been  taken  only  to  circumvent  Art.  311  of   the Constitution.    The   Constitution   Bench   repelled   the contention  and  held  that  the  preliminary  enquiry  held against the Govt. servant must not be taken to mean that the Govt.  had  taken decision to inflict  major  punishment  on Benjamin.  The Court held that no temporary Govt. servant is entitled to opportunity in the preliminary inquiry as "there is  no element of punitive proceedings in such  an  inquiry; the  idea in holding such an inquiry is not to   punish  the temporary  government servant but just to decide whether  he deserves  to be continued in service or not."   Further  the Constitution  Bench  held that even if  formal  departmental inquiry is initiated against the temporary Govt. servant, it is   open  to  the  competent  authority  to  drop   further proceedings in the departmental enquiry                                                        40 against the temporary govt. servant and to have recourse  to Rules   applicable   to  a  temporary  Govt.   servant   for terminating his services.  The Court observed as under:           "If  therefore  the authority  decides,  for  some          reason,  to  drop the formal  departmental  enquiry          even  though  it  had been  initiated  against  the          temporary  govt. servant, it is still open  to  the          authority to make an order of discharge simpliciter          in terms of the contract of service or the relevant          statutory  rule.   In  such  cases  the  order   of          termination  of  services of  the  temporary  govt.          servant  which in form and 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 in  service          for some alleged inefficiency or misconduct." We  have referred to the above decision in detail to  dispel any  doubt  about  the  correct  position  of  low.   It  is erroneous  to  hold that where a  preliminary  enquiry  into allegations  against  a temporary govt. servant is  held  or where  a  disciplinary  enquiry  is  held  but  dropped   or abandoned  before  the issue of order of  termination,  such

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order is necessarily punitive in nature.      Learned  counsel for the respondent placed reliance  on the decisions of this Court in Nepal Singh v. State of  U.P. & Ors., [1985] 1 SCC 56 and Ishwar Chand Jain v. High  Court of  Punjab & Haryana & Anr., [1988] 3 SCC 370 in support  of his  contention  that the termination order is  punitive  in nature.   In Nepal Singh’s case a disciplinary  inquiry  was instituted  against  Nepal Singh who was  a  temporary  sub- Inspector  of Police, on the charge of having  contracted  a second  marriage  during  the life time of  his  first  wife without  prior permission of the Government in violating  of Rule  29  of the U.P. Government  Servants’  Conduct  Rules, 1956.  Before any finding could be rendered the inquiry  was dropped   for  want  of  territorial  jurisdiction  of   the concerned  Superintendent  of Police,  and  thereafter,  his services  were  terminated  in  accordance  with  the  rules applicable  to the temporary Government servants  by  giving him  one  month’s  pay  in  lieu  of  notice.   nepal  Singh unsuccessfully  challenged the order of  termination  before the High Court, but his appeal was allowed by a three  Judge Bench  of  this  Court.  This Court  quashed  the  order  of termination  on  three grounds.  Firstly,it  held  that  the order of termination was arbitrary, violative of                                                        41 Articles  14  and  16  of  the  Constitution  as  power   of termination  had not been exercised honestly, in good  faith for  valid considerations.  Secondly, the grounds  mentioned in  the report of the superintendent of Police on the  basis of  which  the  services  of  the  Sub-Inspector  had   been terminated  were mere allegations and there was no  definite material  for terminating his services.  Thirdly, the  Court held  that  since the inquiry against  Nepal  Singh  on  the charges had been dropped for want of jurisdiction and  since no  attempt was made to institute a proper inquiry,  instead his services were terminated on the allegation of misconduct the order of termination was violative of Article 311(2)  of the   Constitution.   The  Court  further  held   that   the termination   order  had  been  passed  to  circumvent   the constitutional   provision   of   Art.    311(2)   of    the Constitution.  The facts and circumstances in Nepal  Singh’s case  were quite different than those in the  instant  case. However,  Nepal  Singh’s  case  is  no  authority  for   the proposition  that  the services of an ad-hoc  and  temporary employee   cannot  be  terminated  even  if  the   competent authority  on an assessment of the work and the  conduct  of the  employee  finds him unsuitable for  the  service.   The Court’s  observations in Nepal Singh’s case that  since  the enquiry  against nepal Singh on certain charges was  dropped and  his services were terminated under the rules applicable to the temporary govt. servant with a view to circumvent the protection of Art 311(2) of the Constitution and as such the order  of termination was illegal, must be confined  to  the facts  of  that case.  It appears that he decisions  in  the case  of  Champaklal (supra) and R.C. Lacy (supra)  and  the principles laid down therein were not brought to the  notice of  the Bench.  Had those decisions been placed  before  the Court,  the  finding  that the termination  order  had  been passed  to  circumvent the provision of Art.  311(2)  merely because departmental inquiry was dropped and the termination order had been passed, may not have been made.  The decision of  Nepal Singh’s case in this regard is per  incurium.   In Ishwar  Chand  Jain’s  case  the  order  of  termination  of Probationary Judicial Officer was set aside by this Court on the  ground  that no relevant material had been  taken  into consideration  in assessing the satisfactory nature  of  the

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work  and  conduct of the Officer on probation.   The  Court held  that  some of the material which had been  taken  into account in adjudging the Judicial Officer’s work and conduct as  unsatisfactory  was not relevant.  The decision  has  no relevance  to the instant case.  We are, therefore,  of  the opinion  that  neither of the two cases relied upon  by  the respondent lend any support to his case.  On the other  hand our  view is fully supported by the decision of three  Judge Bench  of  this Court in R.K. Misra v. U.P.  State  Handloom Corporation, [1988] 1  SCR 501.      In  the  instant  case the repondent  was  a  temporary Government  servant and there was adverse  report  regarding his work which was reflected in the adverse remarks made for the   year   1977-78.   The  competent  authority   held   a preliminary  inquiry in the allegations of improper  conduct in  carrying  out  unauthorised audit of  Boys  Fund  of  an educational  institution,   On  result  of  the  preliminary enquiry  no charges were framed against the  respondent,  no officer  was appointed for holding the departmental  inquiry instead  the  competent authority  chose  to  terminate  the respondent’s  services  in exercise of its power  under  the terms  of  contract  as well as  under  the  relevant  rules applicable  to a temporary Govt. servant. It never  intended to   dismiss  the  respondent  from  service.   Holding   of preliminary  inquiry  does  not affect  the  nature  of  the termination   order.   The  allegations  made  against   the respondent  contained in the counter-affidavit by way  of  a defence filed on behalf of the appellants also do not change the  nature and character of the order of termination.   The High  Court  failed  to  consider  the  question  in  proper perspective and it interfered with the order of  termination in a casual manner.      We,  accordingly,  allow the appeal and set  aside  the order  of the High Court  and dismiss the respondent’s  Writ Petition.  There will be no order as to costs. Y.Lal                                        Appeal allowed.                                                        43