Shah, J. - (1.) This is appeal with a certificate granted by the Judicial Commissioner of Tripura under Art. 132 (1) of the Constitution.
(2.) Gopal Chandra Dutta Choudhury hereinafter referred to as 'the respondent' was appointed a constable in the Police force of Tripura by the Superintendent of Police Agartala by order dated April 18, 1954. The employment was temporary and was liable to be terminated with one month's notice, on December 6, 1957 the Superintendent of Police, acting under R.5 of the Central Services(Temporary Service) Rules, 1949, informed the respondent that his services "will be terminated with effect from January 6, 1958 A.M." The respondent presented an appeal to the Chief Commissioner against the order of termination. By letter dated April 11, 1958 the respondent was informed that as he was " an Ex-convict for theft, nothing can be done for him". In reply to another application addressed to the Chief Commissioner the respondent was informed by letter dated may 26, 1958 that he was already informed in connection with his previous appeal that as he was " an ax-convict in a case of theft' he "cannot be re employed by the Administration"
(3.) The respondent then filed in the Court of the Judicial Commissioner, Tripura, a petition for a writ under Art. 226 of the Constitution praying for a writ declaring that the order of the Superintendent of Police terminating his service was "illegal and for a writ of mandamus or a writ of certiorari directing the Chief Commissioner not to enforce the said order and for an order reinstating him in the police force of the Tripura Administration with retrospective effect. The Tripura Administration submitted in rejoinder that the respondent being a temporary employee of the police Force his services were lawfully terminated under R.5 of the Central Civil Services (Temporary Service) Rules, 1949. The Judicial Commissioner of Tripura held that the respondent was a temporary employee, but the order terminating the respondent's employment was invalid for it infringed the constitutional guarantee of protection of public servants under Art. 311, which applied to temporary as well as permanent public servants. In the view of the Judicial Commissioner, termination of employment of a temporary servant governed by the Central Civil Services (Temporary Service) rules, 1949 will not per se be treated as a punishment or dismissal or removal but it is open to the court even if an order merely of termination of employment of a temporary employee is passed to ascertain whether the order was intended to be of termination simpliciter or of dismissal entailing penal consequences, and that the order dated April 11, 1958 of the Chief Commissioner passed in appeal clearly indicated that the order of Superintendent of Police was one imposing penalty. He observed ; "this reply (dated April 11, 1958) will clearly indicate that though the superintendent of Police purported to terminate his service under the Central "Civil Services (Temporary Service) Rules, he meant to dismiss the petitioner from service as a punishment on the ground that he was an ax-convict and that it was intended that he should not be re-appointed in future in any department of the Government. Thus it cannot be gainsaid that the termination was in fact a punishment for previous misconduct debarring the petitioner from being employed even in the future, and that in passing the innocuous order (dated December 6, 1957- Annexure D), the Superintendent was really camouflaging his real intention. The real intention came to light, perhaps as the result of an oversight in communicating the orders in appeal to the petitioner. " ;