Surrinder Nath Uttam vs The State of Punjab and Another

Mehar Singh, J.—This judgment will dispose of two appeals, under clause 10 of the Letters Patent, No. 66 by Surindra Nath Uttam, and No. 67 by Ram Sarup, both of the year 1963; from the order, dated January 25, 1963, of Dua J., reported as Surindra Nath Uttam v. The State of Punjab 1963 Cur.L.J. (P&H) 260, dismissing a writ petition of each appellant under Article 226 of the Constitution in which each appellant sought relief to have the order of the State Government, dated April 4,'' 1959, terminating the service of each, either being a temporary Government servant, by paying each one month''s pay and allowances in Heir of notice in accordance with the terms and conditions of his temporary employment, quashed.

The two appeals involve substantially the same facts and questions of law and consequently are being considered together. The facts are taken from the writ petition of Surindra Nath Uttam appellant; and the conclusion reached on those facts having regard to the law applicable will be the same in the appeal of Ram Sarup appellant. The appellants were holding temporary posts in the Estate Office. Capital Project, Chandigarh; Surindra Nath Uttam appellant was a cashier and Ram Sarup appellant was an accountant. The cash was in charge of Surindra Nath Uttam appellant but the chest had a double lock, one key of which remained with either appellant. It could only be opened when both the keys were used. Surindra Nath Uttam appellant joined Government service on January 31, 1946 as a junior clerk in the office of the Deputy Commissioner, Criminal Tribes, at Lahore, and after partition his services came under the Deputy Commissioner, Criminal Tribes, Jullundur. He was transferred from that office to the office of the Custodian Evacuee Property. Jullundur and took charge on January 8, 1948. He was selected as a temporary senior clerk, on a temporary post sanctioned till further orders, by the Estate Officer, Capital Project, Chandigarh. He joined that post on June 1, 1952. He was allowed to keep a shadow lien on his post in the Evacuee Department ''subject to no effect of any retrenchment in the Evacuee Department''. On June 17, 1957, he took over as cashier in the same office. He alleged in his petition that he and Ram Sarup appellant, who was accountant in the same office, became victims of jealousy and factional feelings in that office.

On August 26, 1957, in the morning, a surprise raid was organised under the order of the Secretary (Capital Project), which raid was supervised by Under Secretary (Capital Project), to check the actual cash in the chest with the entries in the cash-books. This appellant has averred that he was not present as in the morning he was attending Hindi-Punjabi classes, and the Estate Officer was not co-opted with the raid-party. According to the cash-books, the cash balance was Rs. 5,900.81 nP., out of which Rs. 615/- had been advanced, against receipts, for work in connection with the Independence Day celebrations, leaving a cash balance of Rs. 5,285.81 nP. The Under Secretary found Rs. 4,836.07 Paise in the double lock chest, thus in that chest there was shortage of Rs. 449.74 nP. It appears that while the raid was going on, this appellant turned up and he produced a sum of Rs. 450/- lying in a drawer of his counter. The Under Secretary discovered that there was no cash transaction that morning and the double lock chest had not been opened. The recovery of these amounts in this manner is accepted by this appellant in his petition, but his grievance has been that there was really no shortage and the Under Secretary made no entry in the cash-book with regard to any such shortage. On September 27, 1957, memorandum, copy annexure ''E'' was given to him in which the facts about the raid as given above were stated. It was pointed out that as there was no transaction on the morning of August 26, 1957, and the double lock chest had not been opened, the amount of Rs. 450/- could not be counted as cash in the chest. He appears to have been questioned about the matter and it was stated in the memorandum that the explanation rendered by this appellant was that the money received during the day was kept in the drawer of his counter and was transferred to the chest in the evening, but he forgot to keep the amount of Rs. 450/- in the chest on August 24, 1957, and thus that remained lying in the drawer of his counter. It was explained that Rs. 2,446.13 nP, were received in the office on that date, which amount was given to him lump sum in the evening, and it was suggested that it was improbable that while he should show the other amount in the chest but he should forget about Rs. 450/-. The memorandum proceeded-"It is considered that the sum of Rs. 450/- was taken by you on the 24th or 25th and was brought that morning (on 26th August, 1957) to be put in the chest. Please explain reasons for the above shortage in the cash and state why your services should not be terminated. Your explanation should be furnished within four days of the receipt of this charge-sheet." In his explanation this appellant said that there was no shortage at all between the hard cash balance and the balances in the various cash-books. On the morning of August 26, 1957, he produced one amount from the chest and the remaining amount of Rs. 450/- from a locked drawer, thus marking up the total cash balance. However, apparently it showed an excess of 26 nP. He said that immediately he rendered an explanation of that amount saying that 19 nP. had been received from the Estate Officer on August 24, for a private telephone call on August 5, a bill for which was shown to the Under Secretary, and the remaining amount of 7 nP. was due to gain by conversion. This, it appears, means a gain by conversion of the previous currency of annas into new currency of Naya Paise. He denied having taken away the amount of Rs. 449.74 nP. as stated in the letter of which the copy is Annexure ''E'', or Rs. 450/-, as stated in his explanation, on August 24 or 25, and brought back the same on August 26. He explained at some length that he did not return to the office on the particular morning till about 10.45 a. m., by which time the raid was on and consequently he had no opportunity to leave any amount in the drawer on August 26, 1957. He rendered explanation about the receipt of the other amount also. In the end he said that there was no mistake for which he could be penalised.

In the case of the other appellant, Ram Sarup, the letter, Annexure, E. 2 with this petition, of November 14, 1957, required him to explain how, in spite of the cash having been in the double lock chest, there was shortage of Rs. 449.74 nP. and how was it that he did not make sure that the cash balance in the chest was according to the balance in hand. As stated, he was the accountant and had the other key of the other key of the double lock of the cash chest. He admitted in his explanation that he held the other key of the chest. But he explained that on August 26, 1957, at about 11 a. m. he was called by the Under Secretary (Capital Project) and the Superintendent of the Estate Office in the cashier''s room. There he was asked to hand over the keys to the cashier and then made to stand outside the counter. The cashier was called upon to produce the cash with him. He took out some cash from the chest and some from the drawer. He contend that he was not taken into confidence and when he tried to explain to the Under Secretary (Capital Project) about the custody of the cash, he was not allowed to do so on the ground that he had nothing to do with that. The cashier explained the shortage and he said that there was no shortage at all. He then pointed to the notice of the Estate Officer. At the same time he took the position that the surprise check was unconstitutional because the Estate Officer, the drawing and disbursing officer, was not taken into confidence. He then explained that there were no rules under which it was his duty to have the key of the double lock of the chest or to count the cash, which was taken out of and placed in the chest any number of times during the day. Then he said that the idea of giving the other key to him was to avoid possibility of theft or robbery during night hours. He disowned responsibility for any shortage. He queried the basis of the explanation from him, because he said it was not his duty to see to the correctness of the cash balance, and particularly pointed out that he could not be held responsible for the correctness of the cash as the transactions used to be made by all cashiers beyond office hours by re-opening the cash-books under the orders of the Estate-Officer, and that, according to him, happened also after office hours when he had left with the key for his residence. Another matter which he touched upon was that he was not ordered or authorised to undertake verification of cash and as holder of the other key he was not responsible for the money taken away from the cashier for deposit into the treasury or taken out for disbursement during the course of the day. He disowned responsibility for any shortage.

After the explanations of the two appellants had been obtained the matter was considered by the then Secretary of the Capital Project Department, Mr. D.P. Nayar. Ordinarily what that officer wrote in the office note on the file and what the Minister said on such a note is an unpublished record and nobody has a right to have recourse to such record. The respondents need not have produced the same. But as they have done so and as argument has been addressed with reference to such record, it becomes necessary to set down briefly what happened. Mr. D.P. Nayar said in his note that although a sum of Rs. 450/- was found in the drawer of the cashier, and perhaps that was irregular strictly from the point of view of audit, from practical considerations the possibility of taking out certain cash during the course of the day and keeping it for day to day use and returning the balance at the end of the day could not be ruled out together. In spite of the Under Secretary having reported that the chest had not been opened prior to 11 o''clock on August 26, 1957. he was of the opinion that he possibility of withdrawing some money from the chest for the performance of his normal duties and transactions by the cashier during the course of the day could not be strictly ruled out altogether. He then dealt with the possibility of the amount of Rs. 450/- having been withdrawn on August 24 or 25, 1957, and ruled out any such possibility with regard to August 25, saying nothing with regard to August 24. He thought that all that happened was that the cashier had committed a certain irregularity in not placing the cash book in the chest on the last working day as he should have done. He was of the opinion that in the circumstances nothing could be said against the accountant and he could not be implicated in the matter. In regard to the cashier he said that a warning in the circumstances would suffice. He pointed out that there were no rules governing the procedure of keeping and maintaining the cash and the cash-books. This note was made on June 28, 1958. On August 18, 1959, the Minister proceeded to say-"A serious allegation of shortage of cash was made and a check was arranged by Secretary (Capital Project) under the supervision of Under Secretary (Capital Project). On inquiry no shortage was found. Accordingly no warning need be issued to the cashier. In fact he has already been put to unnecessary worry. Rules regarding: safe custody of cash should be framed immediately." It has been the allegation of Surindra Nath Uttam appellant that he had enemies in the Estate Office who saw that the order of the Minister was not given effect to and kept the file detained in office. Afterwards the protfolio of the Capital Project came, to be entrusted to another Minister and Mr. B.B. Vohra became Additional Secretary (Capital Project). This appellant states in his petition that the Superintendent of the Estate Office, and the Assistant in charge, had access to Mr. B.B. Vohra and they managed to prevent implementation of the orders of the Minister. Return to the petition of this appellant has been made by Mr. B.B. Vohra, who, by the time the return was made, became Secretary in charge of the Capital Project Department. He has given categorical denial to the allegations of this appellant that there were factions in the Estate Office and has stated that the insinuations made by this appellant against the officers of the Estate Office are unwarranted. It appears that after the change of the portfolio, under the instructions of the Additional Secretary (Capital Project) who was at the time Mr. B.B. Vohra, the Under Secretary in the Department re-examined the cases of both the appellants in regard to the particular incident of shortage of Rs. 449.74 nP. in the double lock chest of the Estate Office on August 26. 1957. In his note of December 5, 1958, he was of the opinion that the explanation rendered by Surindra Nath Uttam appellant was unbelievable and that the conclusion reached by the then Under Secretary (Capital Project), after check, that the cashier, Surindra Nath Uttam appellant, must have brought the amount of Rs. 450/- from outside and put it in the drawer, was nothing but the truth. In regard to Ram Sarup appellant, he was of the opinion that this appellant could not disown responsibility for the actual cash in the safe, because in the case of a double lock safe, the accountant was responsible for the correctness of the cash in the safe according to the balance in the cash-books. He then said that in the circumstances I would suggest that the minimum penalty for both these officials who are temporary hands is to dispense with their services.'' This note of the Under Secretary was then considered by the Additional Secretary (Mr. B.B. Vohra) on December 16, 1958: In regard to the explanation of Surindra Nath Uttam appellant, he was of the opinion that even if the explanation of this appellant was to be accepted, he showed gross carelessness in handling cash by leaving it in his drawer on August 24, 1957. But he was further of the opinion that his explanation could not, in the circumstances of the case, be accepted. He pointed out that out of the excess of 26 nP., the explanation with regard to 19 nP., was not tenable because, even if what this appellant said was accepted, this amount was not a part of the transactions which he as cashier was expected to officially handle and show in his cash-books No corresponding entry in the cash-books for this amount had been found. After applying himself to the facts of the case he found this appellant''s explanation not true and in fact said that it was entirely incorrect. He also found that the responsibility for the irregularity of the removal of cash from the double chest on August 24 or 25 was to be shared by the accountant, Ram Sarup appellant. In the end he said-"As regards punishment, I would favour the termination of the services of both these temporary hands, without any reasons being assigned. This is the quietest and the most effective way of dealing with officials whose integrity is in doubt, as in the present case." The cases then came before the Secretary (Capital Project) who, after considering the circumstances, on December 17, 1958, recorded his opinion that ''I would also endorse the view of Additional Secretary that the appropriate action in this case would be the termination of services of these officials without assigning reasons. Public Works Minister may kindly see for approval. The case, it may be observed, calls for a review of orders dated 18th August, 1958 on page 24 and 25/n passed by Public Works Minister''s predecessor.'' On April 2, 1959, the Minister agreed with the recommendation of the Secretary. On April 4, 1959, by a communication, of which the copy is Annexure ''H'' with the petition of Surindra Nath Uttam appellant, the services of the two appellants were terminated, the communication stating that it had been decided by the Government that the services of those temporary officials should be terminated and the communication asked the Chief Engineer and the Estate Officer (Capital Project) to take action in that respect saying-"It is accordingly requested that the services of the afore-mentioned officials may be terminated by paying each of them one month''s pay and allowances in lieu of the notice in accordance with the terms and conditions of their temporary employment immediately and they should be relieved under advice to this office." At the time Ram Sarup appellant had been transferred to the office of the Chief Engineer, Capital Department, while Surindra Nath Uttam appellant was still in the office of the Estate Officer (Capital Project). It has been necessary to give these details because of the arguments founded by the learned counsel for the appellants on how the cases of the appellants were dealt with in the Department.

In paragraph 10 of his petition Surindra Nath Uttam appellant says that it appeared to him that simultaneously with the termination of his services orders were pissed by the State Government debarring him from any future employment, and, though no orders to that effect were conveyed to him, he cites instances from which he draws this inference. The first instance is that on and from May 13, 1959, he secured a temporary post in the office of the Director of Industries, Punjab, at Chandigarh, bat he was relieved of his duties on June 3, 1959, by an order to that effect made in that Dapartment. The copy of that order is Annexure ''I'' to his petition, but nothing is indicated in that order why this appellant was relieved of his duties. There is absolutely nothing to show that that was in consequence of any information conveyed by the Capital Project Secretariat to the Director of Industries in regard to the previous termination of the service of ''this Appellant in the. Estate Office. The second instance cited by this appellant is that he secured a temporary post of a clerk in ''the Department of Civil (Home) Defence, which was offered to him on June 2, 1959. The appointment was subject to the approval of the Subordinate Services Selection Board. When reference was made to that Board for approval of the appointment, the Secretary of the Board in his letter of August 26, 1959, wrote back to the Director Civil (Home) Defence saying-"Please terminate the services of Shri Surindra Nath Uttam as he has been removed from the Estate Office on the charge of defalcation....". A copy of that letter is annexure ''K'' with the petition of this appellant. This appellant further avers that the Special Adviser to Punjab Government (previously Director of Civil (Home) Defence) referred the case back to the Board for reconsideration, but the Secretary of the Board in his memorandum of October 15, 1959, wrote back that "there is no point for reconsideration in this case. The Board regret their inability to approve the appointment of a candidate where the question of defalcation of money is involved... The services of Shri Surindra Nath Uttam may please be terminated within ten days hereof under intimation to the Board and in the vacancy the recommended of the Board may be appointed. In case no reply is received within ten days the matter will have to be referred to Government...". The Special Adviser by his order of October 27, 1959, relieved Surindra Nath Uttam appellant of his duties. Here again there is no material on the record and no suggestion how the Subordinate Services Selection Board came by the knowledge that the services of this appellant had been terminated in the Estate Office on account of defalcation of money. It has been stated during the hearing of these appeals at the Bar by the learned counsel for the appellants that the learned Single Judge when hearing the case had before him the whole file with regard to this appellant before the Subordinate Services Selection Board. The learned counsel did not see the file but he has said that the learned Judge did look into it. In the judgment of the learned Judge there is not one single word that in that file he found any communication from the Capital Project Secretary or from any agency connected with that Secretariat showing that intimation had been given by that Secretariat to the Subordinate Services Selection Board of the reason for the termination of the services of this appellant in the Estate Office. The learned Judge has considered these matters in fair detail in his judgment, and, if any such communication had been on the file, it is to be expected that the learned Judge would not have overlooked such an obvious matter.

In the return on behalf of the respondents by the Secretary of the Capital Project Department, in paragraph 10, it is stated that ''Punjab Government did not pass any order debarring the petitioner from any further Government employment, Regarding the matters mentioned, in sub-paras (i), (ii), and (iii), it was for the petitioner to convince the: authorities mentioned therein about his suitability for employment under them. The respondents in the petition are hot responsible for the actions of those authorities.'' The three sub-paragraphs to which reference is made thus are the paragraphs in which two illustrations are given by the appellant, Surindra Nath Uttam, of how he lost temporary posts that he secured after the termination of his service from the Estate Office. So. that in spite of the fact that this appellant first lost his job with the Director of Industries and then with (the Department of Civil (Home) Defence, it is not a fact established that was due to any orders made by the respondents or any information conveyed by them in regard to the reason of the termination of his services from the Estate Office. The question why the Director of Industries terminated the services of this appellant is not capable of answer, for there is not even a suggestion imputing any reason in that behalf. In so far as the Department of Civil (Home) Defence is concerned, it does appear that the Subordinate Services Selection Board somehow came to know that this appellant had had his services terminated from the Estate Office on a charge of defalcation, but, as stated, there is nothing to establish that that knowledge was gained by the Board from any order of the respondents or from any information conveyed to it by the respondents. In fact in his writ petition this appellant has never alleged any such thing. In this respect there is another matter that has been considered by the learned Judge and to which reference has been made by the learned counsel for this appellant, and that is a letter of which the copy is annexure ''N'' dated April 22 and 23, 1959, by the then Public Works Minister to Goswami Ganesh Dutt of the Sanatan Dharam Pritinidhi Sabha, Punjab, in Paharganj, New Delhi. It appears that the gentleman wrote to the Minister about this appellant, obviously with regard to the termination of his services, and this is how the material part of the reply of the Minister reads-"Before taking the decision to terminate the services of this official (Surindra Nath Uttam) along with one other, all the facts were duly considered and I am sorry to inform you that this was the least punishment that could be awarded to him...". With reference to this material what this appellant has stated in his writ petition is that he inferred from having lost temporary jobs twice that that must have been because of some orders passed by the respondents or some information conveyed by them to these particular Departments. There is no basis for this inferrence or guess.

It was in these circumstances that Surindra Nath Uttam appellant alleged in his writ petition that his was a case of dismissal because in consequence of the impugned order terminating his services he has in fact been punished because no Government Department would employ him, he having been relieved of temporary employment soon after having been given a chance in the circumstances as explained. He has sought support of this from the use of the word ''punishment'' in the letter of the Minister to Goswami Ganesh Dutt. The respondents have taken the position that the services of this appellant were terminated in the terms of the contract of his employment and the rules applicable to him, the respondents having done nothing by way of punishment or penalty so far as he is concerned. In regard to the letter of the Minister to Goswami Ganesh Dutt, it has been explained that it was a private communication and obviously it has been contended that it did riot operate as a bar to this appellant securing Government employment. The position with regard to Ram Sarup appellant, as already stated, is the same, except that in his case no employment was obtained by him and no question of his being relieved of the same arose. It is apparent that if in the case of Surindra Nath Uttam appellant the termination of his services was by way of punishment or penalty, the same result must follow in regard to the termination of the services of Ram Sarup appellant.

The learned judge considered all these facts arid circumstances and also the two instances in which Surindra Nath Uttam appellant, after the termination of his temporary services in the Estate Office, had secured temporary employment and had soon after been relieved, particularly having regard to what has been stated in the memoranda of the Subordinate Services Selection Board, and came to the conclusion that the services of this appellant were terminated in the terms of his contract of service and under the rules applicable to him, it not being a case of punishment or penalty attracting Article 311 of the Constitution. In this respect the learned Judge has referred to a letter, copy annexure ''R. 1'' with the respondents'' return, written on April 7, 1959, on an application made by this appellant, to the Additional Custodian of Evacuee Property of Jullundur to this effect - "Services of Shri Surindra Nath Uttam, Clerk, Estate Office, have been terminated with effect from the afternoon of 4th April, 1959, by paying him one month''s pay and allowances in lieu of notice in accordance with the terms and conditions of his employment in this office, vide copy of Government orders enclosed. His application for absorption in your office is enclosed in original for consideration." It was on April 14, 1959, that the services of this appellant had been terminated and on his application on April 7, 1959, this communication was addressed by the Estate Officer to the Additional Custodian. It is obvious that in this communication there is not a word giving any reason for the termination of the services of this appellant. It does not go to state anything which would operate directly or indirectly to mar the chances of this appellant for future employment under Government. It merely said that this appellant''s services were terminated in accordance with the terms and conditions of his employment. There is nothing in the communication which refers to any stigma upon this appellant so as to be an obstruction to his obtaining employment under the Government. The learned Judge also took into consideration delay on the part of this appellant in approaching this Court by way of a petition under Article 226. On these considerations the learned Judge dismissed the petition of this appellant as also that of Ram Sarup appellant. These appeals, as stated, are directed against that order.

of the appellants, Ram Sarup has died during the pendency of his appeal and his legal representatives have been brought on the record to represent him in his appeal. The learned counsel on his behalf has explained that the reason for that is that if the appeal of Ram Sarup deceased appellant succeeds, he shall be taken to have remained in service to the date of his death, to which date then his legal representatives would be entitled to the recovery of emoluments due to him. The only other matter that may be noted at this stage is that during the hearing of the arguments it has come out that Surindra Nath Uttam appellant is at present employed in the local Legislative Assembly Secretariat. This fact he has not disclosed in his writ petition. The learned counsel on his behalf has endeavoured to explain that this omission has been made by him because he was not getting employment and at the same time he has said that if he had made the disclosure he might have met the same fate as before, The learned counsel has also said that in any case the Secretariat of the Legislative Assembly is not under the State Government and the employment cannot be said to have been obtained by this appellant under the State Government. It is apparent that this fact has been deliberately suppressed by this appellant. The object of suppression is also clear and that is that his having obtained employment in the Secretariat of the Legislative Assembly and he having been in employment on the date of the filing of the writ petition he realised. that he had next to no case to urge that the respondents were responsible for his. not obtaining employment consequent upon the termination of his temporary services in the Estate Office. The learned counsel for this appellant has pressed that the Assembly. Secretariat would not care for what the Government thinks of this appellant, but it is, inconceivable that the employment of this. appellant in the Assembly Secretariat has remained a secret and was not known to the respondents or the subordinates of the respondents. If they had chosen to interfere and convey the information in regard to the. termination of the services of this appellant with the allegation of defalcation of money apart from the question whether or not the State Government has directly anything to do with the Assembly Secretariat, anybody responsible as in charge of that Secretariat would obviously have been very Seriously affected by such information, The fact remains that to the. time of the hearing of the appeals this appellant has still been in the. employment of the Legislative Assembly Secretariat.

The learned counsel for the appellants has, in these appeals, advanced three arguments, (a) that the order terminating the services of the appellants was mala fide, (b) that the new Minister had no power to review the order of his predecessor and thus the order terminating the services of the appellants is without jurisdiction, and (c) that, in view of the circumstances of the cases, when the substance of the matter is looked at, these are cases in which punishment or penalty was awarded to each one of the two appellants and, as is clear from the case of. Surindra Nath Uttam appellant, evil consequences have ensued as a result of the action taken by the respondents in terminating the services of this appellant who has twice been relieved of the temporary posts that he secured, and that the position with regard to Ram Sarup appellant is no different. In so far as the first argument is concerned, it is only based on the allegation of Surindra Nath Uttam appellant in paragraph 9 of his petition that factions in the Estate Office led by the Superintendent and the Assistant Incharge, who had access to Mr. B.B. Vohra, managed to prevent the implementation of the order of the Minister made on August 18, 1958. Mr. B.B. Vohra has in his affidavit given denial to this. When he made the affidavit he was the Secretary in charge of the Capital Project Department. It is not expected that an officer in that position would make a wrong statement. There is the bare averment of this appellant in this respect with nothing in support of it. So, there is no evidence that Mr. B.B. Vohra, when Additional Secretary of the Capital Project Department, was motivated by some ulterior motive and influenced by his subordinates to have the re-consideration of the cases in so far as the two appellants are concerned. This argument is without any basis. In regard to the second argument of the learned counsel he had said that the business rules for the conduct of the executive business of the Punjab Government require that where a Minister is to reconsider and review an earlier order made by his predecessor or even by himself, the case has to go to the Council of the Ministers, but the rules, a copy of which has been found in the library of this Court, have been looked into and no such rule has been found. In any event, in the case of a temporary Government servant in the terms of the contract of his employment and the rules applicable to him, the Government is entitled to consider from time to time retention of such a person in service. So that this argument even on this consideration is not acceptable. In this respect the learned counsel has referred to Dwarka Chand v. State of Rajasthan (Supra). What was held in that case was that once a departmental enquiry is over and a public servant has been exenerated, no second departmental enquiry on the same facts can be ordered unless there is a specific provision for reviewing an order of exeneration in the service rules or any law. The appellants'' cases are not cases of a formal departmental enquiry. They were temporary employees and their retention in service or otherwise could be considered at any time by the authority concerned. This case has no bearing on the facts of the present case. There is nothing else which the learned counsel for the appellants has been able to urge how the Minister was not in a position to reconsider the case and the desirability or otherwise of retaining either of the appellants in service of the Government. It is not shown how his order is without jurisdiction. In the petitions no such position has been taken. The learned counsel for the appellants has explained that this state of affairs came to light when the respondents agreed to produce the unpublished record with regard to the cases of the two appellants. I have already pointed out that nobody has the right to have access to such unpublished record, for if it was otherwise, it would be practically impossible to carry on the day-to-day executive administration. In these appeals, however, the respondents have chosen to produce those records and the substantial part on which reliance has been placed on behalf of the appellants has already been reproduced. Even when all that has been taken into consideration, nothing shows that the Minister had not the power and jurisdiction to consider whether or not either of the appellants should be retained in Government service. So that this argument does not succeed.

The substantial argument in the case is really the third argument. It is based on the non-compliance with the provisions of Article 311 of the Constitution. It is a fact that these provisions have not been co-plied with. The question, however, is do these provisions apply to the facts and circumstances of these cases? It is settled by the decisions of their Lordships in Parshotam Lal Dhingra Vs. Union of India (UOI), , Madan Gopal Vs. State of Punjab, , Jagdish Mitter Vs. The Union of India (UOI), and Champaklal Chimanlal Shah Vs. The Union of India (UOI),

(1) that in the case of a temporary Government servant, the Government may (i) terminate his services within the scope of the contract of service and the rules applicable without assigning any reason, or (ii) take note of his misconduct and proceed, after proper enquiry, to punish him or impose a penalty on him;

(2) that where the Government decides to terminate the services of a temporary Government servant in the terms of the contract of service and the rules applicable to him, before doing that, (a) it may inform itself by an enquiry, which has been described sometimes as a preliminary enquiry and at others as an informal enquiry, of the basis available for such action, because normally if there is no reason, the Government does not act in an arbitrary manner to terminate services of an employee, and (b) where a formal enquiry has been started but has not come to an end, it may drop such an enquiry and proceed to take action to terminate the services of such an employee, and in such circumstances provisions of Article 311 of the Constitution are not attracted:

(3) that where the Government decides to punish a temporary employee or impose penalty upon him for misconduct, it must proceed according to the provisions of Article 311, hold a formal enquiry on definite charge or charges and, if the conclusion is adverse to such an employee, it may proceed to impose one of the penalties stated in the Article, but, as stated, it must in that event comply with the provisions of that Article;

(4) that to see whether the Government has proceeded to terminate the services of a temporary employee in the terms of his contract of service and the rules applicable or by way of punishment or imposition of penalty, it is not only the language of the order terminating the services that is to be the deciding factor, but it is the substance of the matter that has to be taken into consideration, and if the substance of the matter is a penal consequence flowing from the action taken against such an employee, that is a case of punishment or imposition of penalty attracting the provisions of Article 311 in spite of the innocuous language that might have been used in the order of termination of services; and

(5) that the motive for termination of services of a temporary employee, obviously when that takes place according to the terms and conditions of his contract of service and the rules applicable to him and not as punishment or penalty, is irrelevant, though the court will go into the question of mala fide termination of services where the fact is established.

It is obvious that it is the facts and circumstances of the case that have to be looked into to decide whether a particular case is or is not that of punishment or imposition of penalty leading to the consequence of marring the future chances of employment of a temporary Government servant. It is in the light of this that the facts of the cases in the present appeals have to be considered.

The facts are (i) that both the appellants were temporary Government servants, (ii) that an irregularity was found in the handling of the cash in the Estate Office by the cashier, and both the cashier and the accountant, either of whom had a key of the double lock chest, have been found not to have rendered satisfactory explanation in that respect, (iii) that no format enquiry against each appellant was either initiated or conducted, either appellant was given what has been described as a charge-sheet giving details of what happened so as to enable him to render an explanation of his conduct and either did so. (iv) that one Minister, on the recommendation of the Secretary in the Department, was of the opinion that no such irregularity had been shown, but on reconsideration his successor accepted the recommendation of the successor of the Secretary in the Department that it was not desireable to retain the appellants in service, (v) that, when within three days of the date of the order of termination, of his services Surindra Nath Uttam appellant applied to the Estate Officer for his reversion to the Custodian Department, from where he had come, that officer sent the reply, copy Annexure R. 1, in which all that was stated was that the services of this appellant had been terminated according to the terms of contract of service, and nothing was said that that was because of any misconduct on his part of which the consequence might have been to debar him from re-employment in that Department or any other Department, (vi) that, although in the case of two temporary employments obtained subsequently by Surrindra Nath Uttam appellant, he was soon relieved of the duties, and in the case of one at the instance of the Subordinate Services Selection Board making reference to a charge of defalcation against him in the Estate Office, there is no material on the record, and indeed no suggestion in this respect, that the Estate Office or any authority in the Capital Project Department was responsible for conveying information to those Departments that the services of this appellant had been terminated on account of misconduct, and (vii) that the Under Secretary (Capital Project) and the Additional Secretary (Capital Project) in their notes respectively of December 5 and 16, 1958, with regard to the proposed action against the appellants, used the word ''punishment'', though the Secretary does not do so and he merely uses the expression ''appropriate action'', which was approved by the Minister, and subsequently the Minister himself in his demi-official letter, Annexure ''N'', of April 22/23, 1959, while replying to Goswami Ganesh Dutt, a private individual, has used the word ''punishment'' with regard to the action taken against Surindra Nath Uttam appellant. These are the facts from which conclusion is to be derived whether this is or is not a case of punishment or penalty attracting the provisions of Article 311. It seems to me obvious that the word ''punishment'' used by the Under Secretary Capital, the Additional Secretary Capital and the Minister in his demi-official letter written to a private individual some time after the date of the order impugned, has been used in a loose and an inaccurate sense, and the mere use of this word will not mean that the action that has been taken against the appellants in the termination of service of each is by way of punishment or penalty. It is not so much the language used that matters but the resulting consequence of what has been done in the termination of the services of a temporary employee. So that this does not advance the argument on the side of the appellants. The learned counsel has then pressed that the nature of the proceedings against the appellants has been punitive. In support of this he says that the communications addressed to the appellants calling their explanation in regard to the incident of deficiency in cash from the double lock chest are shown as a charge-sheet in each case, the Secretary in the Capital Project Department, who in the first instance absolved both the appellants of responsibility, has used the word ''charge'' against each appellant in that respect, and the learned counsel urges that such statements be read together with the word ''punishment'' as used by the authorities to which reference has already been made and the fact that Surindra Nath Uttam appellant lost two jobs afterwards, in regard to one of which the reason for that as given by the Subordinates Services Selection Board was his misconduct in the Estate Office. He continues that if all this material is taken cumulatively only one inference is available that either appellant''s services were terminated on account of misconduct as a measure of punishment or penalty of which the consequence has been established in the case of Surindra Nath Uttam appellant as depriving him of future employment under the Government. It is a surprising approach because when communications were addressed to the appellants, although in the same the word ''charge'' has been used, to explain their conduct in regard to the shortage of cash in the double lock chest, the authorities were doing nothing but being fair in giving an opportunity to either appellant to explain his conduct before it was decided whether he should or should not as a temporary amployee be retained in service any longer. This fair approach by the authorities concerned is now turned upon them as evidence of their conduct to punish either appellant, with the consequence that he should not be able to procure employment subsequently. Nothing can be farther from the truth. There has been no enquiry of a formal nature in this case.

Either appellant was given a fair opportunity to explain his conduct and this part of the proceedings does not savour of the nature of a formal enquiry in which the object is, on the evidence, to arrive at a finding with regard to the alleged misconduct of the Government servant. It has already been explained that the word ''punishment'' has been loosely used by the Under Secretary and the Additional Secretary in their notes and the Minister in his communication to a private individual. It has further been shown that there is absolutely nothing to indicate in what circumstances the Director of Industries relieved Surindra Nath Uttam appellant of his temporary post and that though the Subordinate Services Selection. Board called upon the Department of Civil (Home) Defence to terminate the temporary services of this appellant because of a charge of defalcation in the Estate Office, it has not been established that the knowledge about that fact came to the Board from any source connected with the authorities terminating the temporary services of this appellant. It has been pointed out that the learned Single Judge had the record of the Board with regard to the case of this appellant before him and If there had been any communication by the authorities terminating the services of this appellant to the Board, it is inconceivable that the learned Judge would have overlooked that. The learned counsel could not say, in the circumstances that there was any such communication. There is no averment in the petition of this appellant about any such communication. It is as likely as anything that the Board gained knowledge of this fact otherwise, may be from a rival candidate for a job, because in one of its communications, reproduced in paragraph 10 of the petition itself, the Board directed the Department of Civil (Home) Defence to give the vacancy to its recommended. In any case, there is no material on the record that those authorities who were responsible for the termination of the services of this appellant did or said anything more than the order of termination of his services, in fact on his application within about three days of the date of that order his case was recommended back for re-employment in the Custodian Department without any reference to any allegation of misconduct against him. In. these circumstances it is stretching too far to say that even when the circumstances to which the learned counsel for the appellants has made:, reference are taken cumulatively, it is a case in which the services of either appellant have been terminated in consequence of a formal enquiry into his misconduct which enquiry was held with the object of punishing; him or penalising him in the event of the misconduct having been proved, or that what has been done by the authorities terminating the services of either appellant has had the consequences emanating from their action so as to deprive either appellant of future employment under, the Government. The fact is that even Surindra Nath Uttam appellant is now employed in the Secretariat of the Punjab Legislative Assembly. In spite of this the learned counsel for the appellants has laid particular emphasis on Madan Gopal''s case and has contended that even on facts that case is parallel to the cases of these appellants. This is not correct. Their Lordships give the details of what happened in that case in this manner-"The appellant was a temporary employee, and his employment was liable to be terminated by ''notice of one month'' without assigning any reason. The Deputy Commissioner, however, did not act in exercise of this authority : the appellant was served with a charge-sheet setting out his misdemeanour, an enquiry was held in respect of the alleged misdemeanour and his employment. was terminated because in the view of the Settlement Officer-with which view the Deputy Commissioner agreed the misdemeanour was proved.

Such a termination amounted to casting a stigma affecting his future carrier''. In the present case though it may be said that the communication addressed to each appellant to explain his conduct was described as a charge against him, but no formal enquiry has been held and no finding in any such enquiry has been given with regard to the misconduct of either appellant. What has happened is that the explanation of either appellant has not been accepted hiving been found unsatisfactory. So that on facts Madan Gopal''s case is vastly different from the facts of the cases of the present appellants. The appellants'' cases are not in which the termination of the service of either has been accompanied by a stigma marring his future prospects of employment and so in either case there has been no punishment or penalty accompanying the termination of the temporary services, according to the terms and conditions of the contract of service, with the result that Article 311 is not attracted to these cases.

In consequence both the appeals fait and are dismissed, but, in the circumstances of these cases, the parties are left to their own costs.

Falshaw, C.J.

I agree.