J.S.Trivedi, J. - (1.) This is a plaintiff's appeal against the judgment and decree of District Judge, Ghazipur allowing the appeal and dismissing the plaintiff's suit. The plaintiff appellant was appointed a Tracer in the Consolidation Department on 19-11-56 From 13-12-56 he worked as a Draftsman. On 22 8-57 he was retrenched. On 12-11-57 he was again re-appointed as a Draftsman. On 3-7-64 he was reverted as a Tracer but the order was never communicated to the appellant and he continued to work as a Draftsman On 9-7-64 the Consolidation Officer made a report that the plaintiff was not a capable Draftsman. By order dated 16-7-64 the plaintiff appellant was then reverted as a Tracer. Exhibit 5 on record is the order of reversion The plaintiff appellant then made a representation and on 10-8-64 his representation was rejected. He thereafter filed an appeal. While forwarding the appeal Consolidation Officer reported that the appellant was thoroughly incompetent and was not fit to be kept in service. On 1-10 64 the appellant's services were terminated by S O, C. Sri S, K. Srivastava.
(2.) The suit out of which this appeal arises was then filed challenging the order of termination on the ground that the order in effect was an order of dismissal. The learned Munsif decreed the plaintiff's suit quashing the order of termination. In appeal the lower appellate Court allowed the appeal and dismissed the plaintiff's suit. According to the finding of the lower appellate Court the order was an order of termination only and not of dismissal.
(3.) Learned counsel for the appellant's contention is that the lower appellate Court committed an error of law in holding that the order was a mere order of termination and not of dismissal. His contention is that the whole order passed by the S. O. C. amounts to an order of dismissal. His further contention is that while considering whether the order amounts to an order of termination or dismissal the background in which the order was passed was relevant for determining whether the order of termination was an order by way of punishment and was a mere camouflage or cloak for dismissing an employee by way of punishment. On the other hand learned counsel appearing for the State has contended that if the order ex facie is a simple order of termination the motive for termination is immaterial. Reliance his been placed by him on:- (1) Mahant Akhey Dass v. Gurdial Singh and others (AIR 1971 SC 834) ; (2) Ram Gopal Chaturvedi v. State of Modhya Pradesh (MR 1970 SC 158) ; (3) R. S Raizada v. State of U. P. and others (AIR 1971 Allahabad 271) . In the State of Punjab and another v. Sukh Raj Bahadur (AIR 1968 S.C. 1089 at page 1094) their Lordships of the Supreme Court laid down the following five propositions for determining the nature of the order: "(I) The services of a temporary servant or a probationer can be terminated under the runs of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. (2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. (3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. (4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. (5) If there be a full scale departmental enquiry envisaged by Article 311 i.e an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article.";