GUPTA, J. - (1.) WE have heard learned counsel for the petitioner.
(2.) THE petitioner was appointed as a temporary Assistant Medical Officer, on an adhoc basis, and his services were liable to be terminated at any time without assigning any reason, on giving a month's notice on either side. THE petitioner appeared for selection before the Union Public Service Commission for appointment to the post of Assistant Medical Officer, in accordance with the provisions of the Indian Medical Department (Assistant Medical Officers Glass II Recruitment) Rules, 1967, but he could not be selected. Even after the rejection of his candidature by the Union Public Service Commission, the petitioner was allowed to continue on the aforesaid post in a purely temporary capacity on adhoc basis and his term was extended from time to time. By the order of the General Manager, Northern Railway, issued in March 1976 the petitioner's service was terminated with effect from the date of expiry of one month's notice from the date of service of such notice. THE case of the petitioner before this Court is that he was removed from service without recourse to proceedings under Art. 311 of the Constitution, and the order of termination, is in fact one of removal from service and is, therefore, bad in law. It has also been argued by the learned counsel that the petitioner was unlawfully discriminated against as other persons who were also not selected by the Union Public Service Commission, were allowed to continue on the posts of Assistant Medical Officer in a temporary capacity on adhoc basis, although the petitioner's service was terminated by the order Ex. 2. The order of termination of service of the petitioner (Ex 2) in innocuous in nature and does not cast any stigmas. But the contention of the learned counsel is that merely the from of the order is not conclusive but its true nature must be considered by this Court. In the wait petition a show cause notice was issued to the respondents and in the reply filed by the Railway Administration it has been stated that the services of temporary Assistant Medical Officers, working on adhoc basis were extended from time to time by Railway Board and for such extension review of the performance of the persons working on the posts of Assistant Medical Officer on adhoc basis was undertaken. The competent authority on review found the service of the petitioner to be unsatisfactory and the service of the petitioner was terminated not by way of penalty but purely for administrative reasons. The law relating to the discharge of temporary employees has now been well settled by a catena of cases decided by their Lordships of the Supreme Court. In the case of Jagdish Mitter vs. Union of India (1) it was held that the appropriate authority may make an enquiry whether the temporary employee deserves to be continued. Such an enquiry is actuated solely by the desire to decide the simple question as to whether the temporary servant should be continued or not and is undertaken for that purpose alone without any desire to attach any stigma to him An enquiry of this character must be distinguished from a formal depertmental enquiry which is undertaken for the purpose of punishing an employee. In case after such an enquiry, the authority decides to terminate the service of the temporary employee such termination would not amount to dismissal or removal as no stigma attaches to it. The test in such cases must be, does the order cast an aspersion of attach a stigma to the person when it purports to discharge him. If the answer to this question is in affirmative, then not withstanding the form of the order, termination of service must be held in substance to amount to dismissal. But if the answer is in the negative, then it is discharge simpliciter. The following observations of Gajendra Jadkar J,, as he then was, may be usefully reproduced: - "it is true that the tenure held by a ternporary public servant or a probationer is of a precarious character. His services can be terminated by one month's notice without assigning any reason either under the terms of contract which expressly provide for such termination or under the relevant statutory rules governing temporary appointments or appointments of probationers. Such a temporary servant can also be dismissed in a punitive way; that means that the appropriate authority possesses the powers to terminate the services of a temporary public servant; it can either discharge him purporting to exercise its power under the terms of contract or the relevant rule, and in that case, it would be a straight-forward and direct case of discharge and nothing more; in such a case, Art. 311 will not apply. The authority can also act under its power to dismiss a temporary servant and make an older of dismissal in a straightforward way; in such a case, Art. 311 will apply. This simple position is sometimes complicated by the fact that even while exercising its power to terminate the services of a temporary servant under the contract or the relevant rule, the authority may in fairness enquire whether the temporary servant should be continued in service or not. It is obvious that temporary servants or probationers are generally discharged, because they are not found to be competent or suitable for the post they hold, In other words, if a temporary servant or a lis probationer is found to be satisfactory in work, efficient, and otherwise eligible, it is unlikely that his services would be terminated, and so, before discharging a temporary servant, the authority may have to examine the question about the suitability of the said servant to be continued and acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not. There is no element of punitive proceedings in such an enquiry, the idea in holding such an enquary is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rules; in such a case it would not be open to the temporary servant to invoke the protection of Art. 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged. " The same view was also taken in Champaklal vs. Union of India (2) wherein their Lordships applied the two tests mentioned in Purshottam Lal vs. Union of India (3), viz. (1) whether the servant had a right to the post, or (2) whether he has been visited with evil consequences, and if either of the tests is satisfied, it must be held that the servant had been punished. The principle governing such cases was laid down this by their Lordships of the Supreme Court, "even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. " This matter was again raised before their Lordships of the Supreme Court in State of Punjab vs. Sukh Raj Bahadur (4), and after a consideration of the entire case law on the subject, their Lordships laid down the following five propositions : - " (1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 31l 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 and evil consequences or casts an as person 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 Art. 311 of the Constitution. (5) If there be a full-scale departmental enquiry envisaged by Art. 311 i. e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereunder will attract the operation of the said articles. " In our view the case of the petitioner is covered by the fourth proposition, laid down by their Lordships in Sukh Raj Bahadur's case, inasmuch as the order of termination in the case of the petitioner is in unexceptionable from and it was preceded by an enquiry launched by the superior authorities only for the purpose of ascertaining whether the petitioner should be further retained in the service. In Ramgopal Chaturvedi vs. State of Madras (5) their Lordships of the Supreme Court held that the temporary Government servant had no right to hold the office and the competent authority could terminate his service in accordance with the service rules or the contract of employment, It was held that in case the impugned order did not involve any element of punishment nor did it deprive the temporary Government servant of any vested right to any office, then the termination was valid.
(3.) IN Samsher Singh vs. State of Punjab (6) their Lordships of the Supreme Court while considering the case of a probationer laid down the law as under: - "before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. IN the absence of any Rules governing a probationer in this respect the authority may come to the conclusion, that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigme at the time of termination of probation If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Art. 311 (2) he can claim protection. . . . . . . . . The fact of holding an enquiry, is not always conclusive. What is decisive is whether the order is really by way of punishment. " It was held in the aforesaid case, relying on the decision in Champaklal's case (supra), that a preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee does not attract Art 311 of the Constitution. Thus it is well settled that an order terminating the services of a temporary employee under the rules of employment or under the contract of service and without any thing more will not attract Art. 311. There is nothing to show that although the order is in unexceptionable form the termination of services of the petitioner was by way of punishment. In the present case there is a simple order of discharge without casting any aspersion against the temporary employee or attaching any stigma to his character. If a screening was made by the authority concerned for the purpose of deciding the question of further retention of the petitioner in service and it was found on such screening that it was not desirable to continue the petitioner in further employment, then it can only be said that the termination of the service of the petitioner was a discharge simpliciter. The unsatisfactory work of the petitioner may only be the motive for the minating his service but clearly it was not the basis for the same. The learned counsel for the petitioner relied upon the decisions in K. B. Pnadnis vs. State of Maharashtra (7) and State of Bihar vs. Mishra (8 ). Both those cases have been considered by their Lordships of the Supreme Court in Samsher Singh's case (supra) and decision in those cases was based on the peculiar facts there of and are not applicable to the facts of the present case. In State of Bihar vs. Mishra (supra), relied upon by the learned counsel for the petitioner, it has been laid down that where a departmental enquiry is contemplated and is not in fact proceeded with, Art. 311 would not be attracted unless it can be shown that the order though in unexceptionable form is made following a report based on misconduct. In the present case there is no finding of any misconduct on the part of the petitioner but on screening he was found to be unsuitable for further retension in service. ;