Ayub Khan vs Rajasthan Board of Muslim Wakfs

Sandeep Mehta, J.—By way of the instant writ petition, the petitioner has approached this Court against the order Annexure-10 dated 13.1.2000 whereby the petitioner''s services were terminated.

Facts in brief as set out in the writ petition are that the petitioner was given temporary part time appointment on the post of a clerk in the Rajasthan Board of Muslim Wakfs for being posted at its Jodhpur office vide order dated 4.4.1995. The appointment of the petitioner was made in the pay scale of Rs. 950-1680 prescribed for L.D.C. The appointment order Annexure-2 specifically stipulated that the appointment was purely temporary and the petitioner''s services were liable to be terminated at any moment and without any prior notice. The services of the petitioner were thereafter extended for a period of one year vide order Annexure-3 dated 17.10.1996. He was further granted extension for a period of three months and one year vide orders Annexure-4 dated 18.3.1997, and Annexure-5 dated 2.5.1998 respectively.

The petitioner submitted an application Annexure-6 for being regularised on 5.2.1998. He was served a registered notice dated 21.8.1999 conveying him of grave departmental irregularities committed by him and action was proposed against him under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958). The Chief Executive of the Rajasthan Board of Muslim Wakf, Jaipur gave the petitioner a notice to appear before him personally or submit an explanation within a period of 15 days from the date of the notice.

The petitioner submitted a reply to the aforesaid notice on 8.9.1999 vide letter Annexure-8. It was claimed in the reply that the petitioner was appointed as a L.D.c. and was not having any experience of accountancy but despite that, he was forced to perform the duties as an Accountant. He pleaded that the mistakes and errors which occurred while making entries in the cash book etc. could be attributed to his lack of knowledge of accountancy. The petitioner, by way of the reply requested that the notice for initiation of disciplinary proceedings be dropped.

In the meantime, an F.I.R. Annexure-9 came to be registered against the petitioner at P.S. Udaimandir for the offences under Sections 409 and 420 I.P.C.

Ultimately, the Chief Executive Officer of the Rajasthan Board of Muslim Wakfs and by resorting to the powers available under Rule 23A-2(a) of the Rajasthan Service Rules issued an order dated 13.1.2000 Annex. 10 terminating the services of the petitioner. A cheque of three months'' salary for the notice period and the remainder of the salary amounting to Rs. 45,459/- was also sent to the petitioner along with termination order. The petitioner, upon receiving the termination order, submitted a representation Annexure-11 claiming that his dismissal from service was bad in the eye of law and that the order be withdrawn. However, when the representation was not responded to, the petitioner has approached this Court by way of the instant writ petition assailing the order Annex. 10 dated 13.1.2000 whereby he was removed from service allegedly without resorting to the procedure stipulated in the C.C.A. Rules of 1958.

The respondents have filed a reply to the writ petition claiming that the removal of the petitioner from services was a termination simplicitor and is not stigmatic and thus the respondents were not required to resort to any departmental enquiry as per C.C.A. Rules before terminating the services of the petitioner. It is further claimed that as the petitioner''s appointment was purely temporary, his services could have been terminated even without any notice as stipulated in the appointment order Annexure-2 dated 25.8.1995 itself. It is averred in the reply that the petitioner''s services were never regularised and thus the action of the respondents in resorting to the provision of Rule 23A-2(a) of the R.S.R. for terminating his services cannot be called in question. The claim of the petitioner that he was forced to perform the duties of accountant is refuted in the reply wherein it has been submitted that the respondents were entitled to utilize his services as such. It is further mentioned in the reply that an F.I.R. was registered against the petitioner as he was involved in committing irregularities in the accounts of the Board and indulged in embezzlement of a huge sum of Rs. 15,06,500/- which was fraudulently entered in the account books as having been distributed to 309 fictitious women against the alleged expenses for marriages of their daughters without there being any particulars like addresses etc. of the women concerned. In para-10 of the reply it is averred that the services of the petitioner were terminated by order Annex. 10 dated 13.1.2000 after giving him three months salary as per Rule 23A-2(a) of the R.S.R. The petitioner was served a notice Annex. A-1 dated 5.10.1999 proposing to terminate his services by resorting to Rule 23A-2(a) of the R.S.R. but he did not reply to the said notice. As the notice remained unanswered and upon the expiry of the notice period, the petitioner was paid three months'' salary for the notice period as well as the arrears of salary and thereafter his services were terminated. The respondents in the reply specifically pleaded that since the petitioner unconditionally accepted the salary of the notice period by encashing the cheque, he is estopped from making any challenge to the termination order on any ground whatsoever. It is further pleaded in the reply that if the petitioner so desired, he could have submitted an explanation to the notice of termination but he chose to remain silent and has preferred the instant writ petition after the termination was effected and thus as per the respondents, the petitioner is not entitled to the relief claimed in the writ petition. Specific denial has been made to the ground raised by the petitioner that his dismissal from service was stigmatic and contrary to the procedure prescribed in Article 311 of the Constitution of India. It is averred in the reply that as the petitioner was a temporary employee, his services were liable to be terminated by resorting to Rule 23A-2(a) of the R.S.R. and as such, the procedure laid down in Article 311 of the Constitution of India has no application in the facts and circumstances of the case.

The petitioner has filed a rejoinder to the reply claiming therein that the respondents appointed one Mohd. Siraj s/o Mohd. Umar r/o Jodhpur as an L.D.C. vide order dated 25.8.1995 i.e. after the petitioner was appointed in the same pay scale. Services of Mohd. Siraj were confirmed by the respondents vide order Annexure-12 dated 15.5.1998. The petitioner by way of the rejoinder claimed that the action of the respondents in not regularising his services despite taking such action in regards to Mohd. Siraj who was junior to the petitioner in service is highly arbitrary and amounts to hostile discrimination being violative of principles of equity and natural justice as enshrined in Article 14 and 16 of the Constitution of India.

Mr. M.R. Singhvi, learned Sr. Counsel for the petitioner submitted that the termination of the petitioner''s service amounts to stigmatic dismissal and thus could not have been resorted to without holding proper department enquiry stipulated in the CCA Rules. He further submitted that the notice Annexure R-1 which has been annexed by the respondents with the reply is also bad in the eye of law because once the respondents had proposed disciplinary proceedings against the petitioner, then it was incumbent upon them to hold a proper departmental enquiry in accordance with the Rules of 1958. Once they had resorted to the procedure stipulated in the C.C.A. rules, thereafter, they were estopped from resorting to Rule 23A-2(a) for terminating the petitioner''s services. He submitted that termination of the services of the petitioner vide order Annexure-10 which was passed without providing any opportunity of hearing is grossly unjust and arbitrary. In support of his arguments, he has placed reliance on the following decisions:-

(1) The Manager, Government Branch Press and Another Vs. D.B. Belliappa, .

(2) Chandra Prakash Sahai Vs. State of U.P. Reported in 2000 AIR SCW-1816 (equivalent citation being AIR 2000-SC-1076).

Relying on the above judgments, he contended that even in case of termination of service of a temporary employee, the protection of Article 311 is available against arbitrary action. He contended that the order Annexure-10 whereby the services of the petitioner were terminated by resorting to the provisions of Rule 23A-2(a) of the R.S.R. is prima facie bad in the eye of law and deserves to be quashed. He urged that though the order Annexure-10 has been passed by resorting to Rule 23A-2(a) of the R.S.R. but the language of the order clearly shows that the same is stigmatic and it is not a case of termination simplicitor because before passing of the said order the petitioner had been given a notice Annexure-7 dated 28.9.1999 whereby it was proposed to initiate disciplinary proceeding under Rule 16 of the Rules of 1958 against the petitioner. Thereafter the respondents realised that the proceedings in pursuance of the notice would prove futile in light of the reply submitted by the petitioner. Thus, acting in a malafide fashion, they resorted to Rule 23A-2(a) of the R.S.R. and terminated the petitioner from service without providing him any opportunity of hearing and, therefore, the impugned order deserves to be quashed and the writ petition deserves to be accepted.

Per Contra Mr. Ravi Bhansali, learned counsel appearing for the respondents reiterated the contents of the reply and submitted that the petitioner is not entitled to the relief claimed for in the writ petition. He stressed upon Rule 23A-2 (a) of the R.S.R. and contended that as the petitioner did not reply to the notice Annex. R/1 dated 5.10.1999 and also encashed the cheque of the notice period unconditionally, he is estopped from challenging the termination order Annex. 10.

Heard and considered the arguments advanced by the learned counsel for the parties and perused the material on record and the case law cited at the bar.

The first question which, this Court is called upon to answer is as to whether the petitioner''s removal from service vide Annexure-10 was a termination simplicitor or was a stigmatic. The petitioner himself has not disputed that when the termination order came to be passed, he was in the temporary service of the respondents. He himself filed the application Annexure-6 for regularization of his services. The terms of the petitioner''s appointment order Annexure-2 stipulate that the appointment of the petitioner was purely temporary and he was liable to be removed from service at any moment of time without any prior information. Rule 23A-2(a) of the R.S.R., which is the bone of contention in the case, reads as under:-

"23A-2(a). The service of a temporary Government servant who has been in continuous Government service for more than three years and who satisfied the suitability in respect of age and qualification prescribed for the post and has been appointed in consultation with the Rajasthan Public Service Commission where such consultation is necessary, shall be liable to termination at any time by a notice of three months given in writing either by the Government servant to the appointing authority or by the appointing authority to the Government servant.

Provided that the service of any such Government servant may be terminated forthwith, and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rate at which he was drawing immediately before the termination of his service for the period by which such notice falls short of three months, as the case may be."

(Emphasis supplied)

Upon a bare perusal of the plain language of the rule, it is evident that the termination of services of a temporary government employee by resorting to the said rule would be termination simplicitor and not a stigmatic termination.

The petitioner was initially given a notice Annexure-7 conveying that a departmental inquiry under Rule 16 of the CCA Rules was proposed against him. Upon information being received regarding grave financial irregularities committed by him, an F.I.R. Annexure-9 also came to be registered against him wherein he was alleged to have embezzled a huge sum of Rs. 15,06,500/-.

Thereafter he was given a notice Annexure-R/1 dated 5.10.1999 whereby the respondents proposed to terminate the services of the petitioner by resorting to Rule 23A-2(a) of the R.S.R. It is not in dispute that the petitioner did not reply to the notice Annex. R/1 dated 5.10.1999. The petitioner deliberately did not file the notice Annex. R/1 on record while preferring the writ petition. Be that as it may, as the notice Annex. R/1 was not contested by the petitioner, the order Annexure-10 terminating his services came to be passed. The petitioner without any protest accepted and encashed the cheque of Rs. 45459/- towards three months'' notice period and the arrears of salary which was sent to him along with the termination order Annexure-10. Since the services of the petitioner were temporary, his appointing authority was empowered to take into account his conduct before confirming or regularizing his services. The notice Annexure-7 which was given to the petitioner and the F.I.R. Annexure-9 give ample indication that the appointing authority had considered the conduct of the petitioner and that is why he was asked to explain himself through the notice Annex. R-1. The confirmation or otherwise of a temporary employee in any event would be subject to the manner in which he conducts himself during tenure of his temporary service. Receipt of complaints of financial irregularities committed by the temporary employee during his employment would entitle the appointing authority to evaluate his conduct without holding a regular enquiry and thereafter to take a decision not to continue him in service and instead pass an order of termination. The tenure of temporary service is the period during which the employee has to prove his mettle to the employer. Failure to do so would entitle the appointing authority to resort to Rule 23A-2(a) of the RSR and terminate his service. Such an action would be a termination simplicitor rather than a stigmatic termination as contended by the petitioner''s counsel.

A similar question was examined by the Hon''ble Apex Court in the case of Ravindra Kumar Misra Vs. U.P. State Handloom Corpn. Ltd. and Another, . Relying on earlier constitution bench judgments in the cases of Champaklal Chimanlal Shah Vs. The Union of India (UOI), , Parshotam Lal Dhingra Vs. Union of India (UOI), ; and Samsher Singh Vs. State of Punjab and Another, , the Hon''ble Apex Court ruled in Ravindra Kumar Misra''s case as below:-

"This is an appeal by special leave. The appellant was employed on the production side of the Uttar Pradesh State Handloom Corporation, a public sector undertaking-(hereinafter referred to as ''Corporation'' for short) on temporary basis. Having been appointed on 30th of October, 1976 as Bunker Sewa he obtained two promotions while still working in temporary status and by 1983 was working as Deputy Production Manager. The appellant''s letter of appointment, as far as material, stated:-

"With effect from the date of taking over charge Shri Rabindra Kumar Mishra... is hereby appointed as Bunker Sewa...... on the following terms and conditions:-

(1) That his appointment is temporary and his services are liable for termination with one month''s notice or one month''s pay in lieu of notice from either side On November 22, 1982 the appellant was placed under suspension and that order read as follows:-

"As a result of preliminary enquiries made by the Central Manager on 13.11.1982 of the Production Center, Kunda and other Centres under the same, it has come to notice that Sri R.K. Misra, former Dy. Production Manager, Kunda, is responsible for misconduct, dereliction of duty, mismanagement and showing fictitious production of terrycot cloth. He is, therefore, placed under suspension with immediate effect............... "

(Under linings are ours) On the 1st of February, 1983 the order of suspension was A revoked and on 10th of February, 1983 the impugned order terminating his services being to the following effect was passed:-

"The undersigned hereby gives notice to Shri R.K. Misra, Deputy Production Manager, Production Center, Kunda, Pratapgarh, Salon Rai Bareilly that his services are no more required and his service will be deemed to be terminated from receipt of this notice by him. It is directed that he will be entitled to receive one month''s salary in lieu of notice period on the same rate on which he was receiving salary before termination of his service."

The appellant challenged the order of termination of his service before the Allahabad High Court but the High Court declined to interfere by holding that the termination was not punitive and the question of breach of principles of natural justice did not arise.

It is not disputed that the employer-Corporation is ''State'' within the meaning of Article 12; yet it has not been contended-and rightly-that the protection of Article 311(2) of the Constitution is available to the employees of the Corporation. The appellant has however, claimed that he is entitled to the protection of Article 14 and 16 of the Constitution; though his order of termination is innocuous the setting in which it has been made clearly makes it an order of dismissal and the High Court has gone wrong in holding that the order of termination was not punitive; as service was determined by the order of termination attaching stigma the appellant was entitled to a hearing commensurate with rules of natural justice and in the absence of that opportunity of being heard the order is liable to be quashed.

It cannot be disputed that temporary service can be terminated by notice. The order of appointment in the appellant''s case made it abundantly clear that with a month''s notice or payment of salary in lieu of notice such termination could be effected by either side Rule 63 of the Corporation Rules made in exercise of Article 127 of the Articles of Association of the Uttar Pradesh State Handloom Corporation Limited recognised such a power. That Rule provides:-

"1. The appointing authority may, at any time, during the pendency of the temporary tenure terminate the services of a temporary employee by giving him one month''s notice or emoluments for such lesser period by which the notice falls short of one month.

The temporary employee, on his part, shall have the option of quitting service by giving one month''s notice to the appointing authority or paying to the Corporation an amount equal to his one month''s pay.. "

The order of termination of service in this case is indeed innocuous. The appellant is not entitled to the protection of Article 311(2) of the Constitution not being a member of a civil service of the Union or a State nor holder of a civil post under the State but his own Service Rules provide under Rule 68 that if the punishment of discharge or dismissal is imposed, an enquiry commensurate with requirements of natural justice is a condition precedent. Admittedly no such enquiry has been held. The question that crops up here for determination, therefore, is whether the impugned order was an order of termination simpliciter or really amounted to an order of dismissal. In Parshotam Lal Dhingra Vs. Union of India (UOI), . a Constitution Bench of this Court stated:-

"This use of expression ''terminate'' or ''discharge'' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely. (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.

This view has been approved by another Constitution Bench of this Court in Champaklal Chimanlal Shah Vs. The Union of India (UOI), . After indicating approval, Wanchoo, J. as he then was, spoke for the Constitution Bench thus:-

"It is well known that Government does not terminate the services of a public servant, be he even a temporary servant without reason; nor is it usual for Government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily. One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end. In that case, there is nothing further to be said and his services terminate when the post comes to an end. Similarly a Government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end. But besides the above, the Government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work. The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and/or conduct of a temporary servant may arise on complaint against him. In such cases two courses are open to Government. It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct. Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary, he will have the protection of Article 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him. An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and his enquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the conduct of a public servant.......

"Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the Two should not be confused. Even where Government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually is held to satisfy Government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already, Government does not usually take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee or a Government servant holding a higher rank temporarily it must not be confused with the regular departmental enquiry (which generally follows such a preliminary enquiry) when the Government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is concerned, there is no question of its being governed by Article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right. 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 or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 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."

Both Purshotam Lal Dhingra''s case (supra) and Champaklal''s case (supra) were referred to and relied upon in Samsher Singh Vs. State of Punjab and Another, . This is a case which was heard by a 7-Judge Bench. Ray, CJ., who spoke for the majority of five considered all the cases rendered by this Court till then touching on the point and at page 841 of the Reports stated as follows:-

"The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts 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. In such a case the simplicity of the form of the order will not give any sanctity."

In Shamsher Singh''s case (supra) the ratio of the two earlier Constitution Bench judgment was approved. On facts it was found that the order of termination though innocuous in form was really an order by way of punishment removing the appellant from service on the basis of charges of gross misconduct found to have been established by an exparte enquiry conducted by the S.P. Vigilance Department with the only object of ascertaining truth of the alleged misconduct and for the purpose of dismissing or removing the appellant, if charges were found established. It was ultimately on the basis of specific findings recorded by the S.P. Vigilance that the appellant''s services were terminated. The Court found that the enquiry by the S.P. Vigilance was essentially and in character and object different from the informal enquiry into the and in object different from the informal enquiry into the suitability of the appellant. Ray, CJ. in Shamsher Singh''s case (supra) further pointed out:-

"The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment..... A probationer whose terms of services provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2).

An order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct."

In The Regional Manager and Another Vs. Pawan Kumar Dubey, it was observed by this Court thus: 1 "We think that the principles involved in applying Article 311(2) having been substantially explained in Shamsher Singh''s case (supra) it should not no longer be possible to urge that Sughar Singh''s case could give rise to some misapprehension of the law. Indeed we do not think that the principles of law declared and applied so often have really changed. But the application of the same law to the differing circumstances and facts of various cases which have come up to this court could create the impression some times that there is some conflict between decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a word of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.. ".

As we have already observed, though the provisions of Article 311(2) of the Constitution do not apply, the Service Rules which are almost at par make the decisions of this Court relevant in disposing of the present appeal. In several authoritative pronouncements of this Court, the concept of ''motive'' and ''foundation'' has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operative motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character. In a large democracy as ours, administration is bound to be impersonal and in regard to public officers whether in Government or public Corporations, assessments have got to be in writing for purposes of record. We do not think there is any justification in the contention of the appellant that once such an assessment is recorded, the order of termination made soon thereafter must take the punitive character.

There may be cases where an enquiry is undertaken and prima facie material for serious charges are found; by disclosing the result of such preliminary enquiry, the officer concerned is put under suspension in contemplation of disciplinary action. After such steps have been taken, the employer/appropriate authority decides not to continue the departmental proceedings but makes an order terminating the service, as has been done in this case.

Counsel for the respondents pointed that that in the matter of ordering termination of service of a temporary employee, the order follows a review of his working. Unless the termination is ordered because there is no need for the post, in the absence of reasons for termination, the action is open to challenge as arbitrary, particularly when other similarly situated employees are continued in service. When reasons are given, they are bound to disclose adverse features of the employee and disclosure of such features become the ground of challenge of the order on the plea that termination is not innocuous. To meet this position, the distinction between ''motive'' and ''foundation'' has been adopted by the courts. As long as the adverse feature of the employee remains the motive and does not become transformed as the foundation of the order of termination it is unexceptionable. No straight jacket test can be laid down to distinguish the two and whether ''motive'' has become the foundation has to be decided by the court with reference to the facts of a given case. The two are certainly two points of one line-ordinarily apart but when they come together ''motive'' does get transformed and merges into foundation.

As has been held by a three-Judge Bench in The State of U.P. Vs. Ram Chandra Trivedi, the position in regard to cases of the present nature is clear and the examination of the decisions of this court shows that there is no real conflict in their ratio decidendi. On facts as established in different cases, courts have applied the known tests and in order that complete justice may be done on the facts found, there have been punishable deviations.

We may point out that this Court in a Constitution Bench judgment in the case of The State of Orissa and Another Vs. Ram Narayan Das, , indicated:-

"The fact of the holding of an enquiry is not decisive of the question. What is decisive is whether the order in the light of the decisions laid down in Parshotam Lal Dhingra''s case.

Keeping in view the principles indicated above, it is difficult to accept the claim of the appellant. He was a temporary servant and had no right to the post. It has also not been denied that both under the contract of service as also the Service Rules governing him the employer had the right to terminate his services by giving him one month''s notice. The order to which exception is taken is expressly an order of termination in innocuous terms and does not cast any stigma on the appellant nor does it visit him with any evil consequences. It is also not founded on misconduct. In the circumstances, the order is not open to challenge.

We may point out that the learned Solicitor General appearing for the Corporation had at the commencement of the arguments suggested that the appellant could be given some compensation for termination. Ordinarily, under the law he would not be entitled to compensation in a case of this type, but since he has been put out of employment at an advanced age and it may be difficult for him to get an alternate employment, while dismissing his appeal we think it reasonable to call upon the Corporation to pay a consolidated amount of Rs. 25000 (Rupees Twenty-five Thousand only).

Accordingly the appeal is dismissed. The amount of Rs. 25,000 as indicated above may be paid to the appellant within one month from today. There would be no order for costs."

(emphasis supplied)

Hon''ble Apex Court whilst deciding the Ravindra Kumar''s case, approved the argument advanced by the employer''s counsel that in the matter of directing termination of services of temporary employees, the order follows a review of his working. Unless the termination is ordered because there is no need for the post, in the absence of reasons for termination, the action is open to challenge as arbitrary, particularly when other similarly situated employees are continued in service. When reasons are given, they are bound to disclose adverse features of the employee and disclosure of such features become the ground of challenge of the order on the plea that termination is not innocuous. To meet this position, the distinction between ''motive'' and ''foundation'' has been adopted by the courts. As long as the adverse feature of the employee remains the motive and does not become transformed as the foundation of the order of termination, it is unexceptionable. It was concluded by the Hon''ble Supreme Court in the aforesaid judgment that the petitioner therein was a temporary servant and had no right to the post. Under the contract of service governing the parties, the employer had the right to terminate his services by giving him one month''s notice. The order of termination was found to be a termination order in innocuous terms. It did not cast any stigma on the employee nor did it visit him with any evil consequences. The order was, therefore, held to be not open to challenge.

The said judgment was also followed in the case of Governing Council of Kidwai Memorial Institute of Oncology, Bangalore Vs. Dr. Pandurang Godwalkar and another, . The controversy involved at the case at hand is squarely covered by the aforesaid decision of the Hon''ble Apex Court.

The arguments advanced by the counsel for the petitioner on the basis of the contentions in the rejoinder that another person named Mohd. Siraj who was junior to the petitioner was regularized in service and the petitioner was denied the said benefit, and therefore, the action of the respondents is arbitrary and violative of principle of equality is also of no avail to the petitioner because the right to be regularized as has been discussed above is subject to the review of performance during the tenure of temporary service. Since, the petitioner''s performance in temporary service of the respondent employer was not satisfactory but was rather prone with complaints of embezzlement, the action of the respondents in giving precedence to aforesaid Mohd. Siraj over the petitioner while confirming in service cannot be said to be arbitrary by any stretch of imagination.

Two judgments were relied upon by the petitioner''s counsel in support of the arguments. In Manager Govt. Branch Press and. Anr. vs. D.B. Belliawpa (supra) the Apex Court held that if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory or for a like reason which marks him off a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Art. 16. However, conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. There cannot be two views about the proposition laid down by the Hon''ble Apex Court in the aforesaid case. Nonetheless, the fact remains that in the case at hand, ample material was available with the employer to justify the reasons for non regularization and consequent termination of the services of the petitioner. An F.I.R. for embezzlement of a huge sum of Rs. 15 lacs was registered against the petitioner. Thereafter the petitioner was served with a notice Annexure R/1 in pursuance whereof, he was given time to explain himself against the proposed termination of his service. He chose not to reply to the said notice and accepted the salary for the notice period. Thus, this Court is of the opinion that the judgment in the case of Manager, Govt. Branch Press Vs. D. Vliappa (supra) is of no avail to the petitioner.

In Chandra Prakash Shahi Vs. State of U.P. (supra), Hon''ble Supreme Court dealt with the issue regarding the nature of the order of termination being simple or punitive. The theory of motive or foundation was reiterated and it was held that for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. It was held that in that situation, the order would be founded on misconduct and it will not be a mere matter of "Motive". It was further held that "Motive" is the moving power which implies action for a definite result, or to put it differently, "Motive" is that which incites or stimulates a person to do an act. If the factor which insights the employer to terminate the services of the employee on the basis of general unsuitability, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. In such a case, the foundation for order of termination would be the allegation of misconduct and as such the order could not be passed without resorting to the appropriate procedure for disciplinary action.

Testing the facts of the case at hand in light of aforesaid proposition, this Court has no hesitation in holding that motive for termination of the service of the petitioner may have been the allegations leveled against him but the foundation of the order was not the allegation of misconduct.

As a consequence of the above discussion, the contention advanced by the learned counsel for the petitioner that the termination of the services of the petitioner amounts to a stigmatic dismissal on the basis of allegations levelled against him in the communication Annexure-7 has no legs to stand. The petitioner is not entitled to the protection of Article 311 of the Constitution of India. The petitioner himself acquiesced to the order of termination by accepting the salary of the notice period and the arrears of salary offered to him. Thus, he is not even entitled to challenge the impugned termination order.

As a consequence, the writ petition has no merit and the same is dismissed. No order as to costs.