William Broome, J. - (1.) A large number of connected writ petitions have been referred to this Bench for decision, in which the main point to be decided is whether the petitioners were temporary Govt. servants or probationers. Two of the petitions ( Nos. 3494 and 3555 of 1970), however, stand in a class by themselves, for learned counsel appearing for the petitioners in these cases has argued that even if the petitioners are held to be temporary employees, they will still be entitled to relief, because the orders terminating their services were in effect orders of punishment, which attracted the provisions of Art. 311 of the Constitution. We propose therefore to deal with these two petitions separately. The facts of these two cases may be briefly stated. Ram Saran Lal, the petitioner in writ petition No. 3494 of 1970, was appointed as a Sub -Inspector of Police (in a temporary capacity, according to the averments in the counter -affidavit) in February 1964. On 16 -9 -1969, after he had been working for some years, he was served with a charge -sheet u/S. 7 of the Police Act regarding undue delay in the submission of case diaries; and on 29 -9 -1969 further charges were framed against him by means of a supplementary letter. A regular inquiry was started on the basis of these charges and a number of witnesses were examined by the Inquiring Officer. On 11 -3 -1970 the prosecution evidence was closed and the petitioner was asked to file a list of defence witnesses; and on 24 -3 -1970 he was informed that one of the prosecution witnesses, whose cross examination had been deferred, would be available for cross examination on 2 -4 -1970. The witness, however, did not turn up on the date fixed; and no further steps seems to have been taken to record any more evidence in that inquiry. Instead, on 6 -4 -1970 the petitioner was served with a show cause notice, asking him to show cause why he should not be discharged from service on the basis of certain adverse entries in his character roll as well as on account of the delayed submission of case diaries etc., covered by the earlier charge -sheets. He submitted a detailed explanation in reply on 26 -4 -1970 and included therein a list of the defence witnesses whom he wished to examine. This was followed by the issue of the impugned notice dated 12 -5 -1970, informing him that his services were being terminated as they were no longer required.
(2.) Mahesh Singh Khushwaha, the petitioner in writ petition No. 3555 of 1970, was similarly appointed as a sub -inspector of police in February 1964. On 7 -5 -1970 a notice was issued asking him to show cause within 8 days as to why departmental action should not be taken against him for keeping a previous convict in his employ and thus 'harboring a bad character'. But before the expiry of the 8 days allowed for the submission of his reply the impugned order dated 13 -5 -1970 was issued, terminating his services on the ground that they were no longer required.
(3.) The question that calls for decision in these two cases is whether the impugned orders, though ostensibly mere orders for termination of the petitioners' services were in actual fact orders of dismissal or removal based on the charges that had earlier been leveled against the petitioners. As pointed out by the Supreme Court in the State of Bihar v/s. Shiva Bhikshuk Mishra ( : 1970 II Labour Law Journal 440), The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct.........the entirety of the circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. The order impugned in that case was one of reversion; but the same principles have been held to apply in cases of termination of services as well vide R.K. Bhatt v/s. Union of India (1970 II Labour Law Journal 587).;