Khem Karan, J.
1. The petitioner was appointed on the post of Non-Medical Assistant on 31.7.1964, after undergoing prescribed training course of six months. Before he could be confirmed in his appointment, his services were terminated by a simplicitcr order dated 4.2.1970 passed by Swasthya Sewa Nideshak, Uttar Pradesh. Against his termination, he represented to the Secretary. Ministry of Health. Govt. of U. P. and also to the Hon'ble Chief Minister, but nothing was done by them. He, therefore, served a notice under Section 80 of C.P.C. and thereafter filed a regular Suit No. 813of 1972 in the Court of Munsif, Gorakhpur. The main ground taken in the suit was that the termination order was punitive in nature and was, therefore, bad for want of compliance of Article 311(2) of the Constitution of India. It was said that several juniors to the petitioner were retained and only the petitioner was removed from the job.
2. The State filed its written statement (copy of which is Annexure-4) in the said suit, contending, inter alia, that the services of the petitioner were terminated under the terms of the appointment on the ground of unsuitability and the termination order was not by way of punishment. It appears, some evidence was also received in the said suit, but before a final verdict could be given by the Civil Court. Uttar Pradesh Public Services Tribunal Act came into force and thereupon, the case stood transferred to the Services Tribunal. The Tribunal heard the parties counsel and thereafter dismissed the claim petition vide its judgment and order dated 20.12.1979, copy of which is Annexure-5. The Tribunal took the view that the termination order was not punitive in nature and was not bad in law for want of compliance of Article 311(2) of the Constitution.
3. The petitioner has now come to this Court with the prayer that the judgment dated 20.12.1979 of the Services Tribunal as well as the termination order dated 4.2.1970 passed by Swasthya Sewa Nideshak be quashed and he be treated to be in service and entire arrears of salary and other allowances be directed to be paid to him with all consequential benefits.
4. The opposite party No. 1 has filed counter-affidavit, reiterating the pleas taken in the written statement in the suit and before the Tribunal and saying that the termination was not punitive in nature, but was on the ground of unsuitability of the petitioner. It has been said that the petitioner was not amenable to the advice of his superiors and was not amending himself inspite of the warnings Issued to him from time totime. According to it, the petitioner was purely a temporary Government servant and hence his services were rightly terminated on the basis of his unsatisfactory work and conduct. It has been said that the judgment of the Tribunal is perfectly justified. There is no error apparent on the face of the judgment and so the petition deserves to be dismissed.
5. The petitioner has filed rejoinder-affidavit in October, 1999. refuting the allegation that his work was found to be unsatisfactory during his posting at Pipraich and stating that he was punished for his alleged misconduct mentioned in letter dated 5.10.1998 of Medical Officer Incharge Leprosy Control Unit Gorakhpur (Annexure-1) without affording him a reasonable opportunity of hearing as envisaged under Article 311(2) of the Constitution. He has filed few papers along with the rejoinder-affidavit.
6. We have heard Sri Z. Jilani, learned counsel for the petitioner and the learned counsel for the State and have perused the entire material on record of this writ petition.
7. Sri Jilani has contended that alleged Irregularities and misconduct as mentioned in letter dated 5.10.1968 (Annexure-1) of Medical Officer Incharge Leprosy Control Unit. Gorakhpur. are the foundation of termination order dated 4.2.1970 and so the same is bad in law. for want of compliance of Article 311(2) of the Constitution. On the other hand, learned counsel for the State has submitted that the irregularities and misconduct etc. enumerated in the letter dated 5.10.1968 (Annexure-1) were only the motive for terminating the services of the petitioner and were not the foundation of such decision. So, this termination cannot be characterised as punitive in nature. He has argued that service record of the petitioner was not satisfactory and so the appointing authority was well justified in terminating his services on the ground of unsuitability. He says that he had no right to the post and the termination did not cause any stigma or did not visit him with any evil consequences.
8. Admittedly, the petitioner was a temporary Government servant and so he had no right to the post. The order dated 4.2.1970 (Annexure-2), passed by Swasthya Sewa Nideshak. Uttar Pradesh, by which the services of the petitioner were terminated, does not contain any stigma. It is well-settled legal position that even if the order of termination does not contain any stigma or other adverse material, the Courts can lift the verbal veil to discover the true nature of it. on the allegation that the same is punitive in nature. If it is found that the termination order though innocuous on the face, is founded on any misconduct of the employee, the Courts may quash the same and grant appropriate relief to the petitioner or pass other suitable orders in the matter. But if on such scrutiny, it is found that the termination order simpllciter is not founded on any misconduct but is motivated by any such misconduct or unsuitability, the Court will not Interfere with the same.
9. Whether a particular order of termination is founded on any misconduct of an employee or misconduct or unsuitability is simply a motive for terminating the services of a temporary employee, has engaged the attention of the Apex Court in numerous cases and now we have a number of such judicial pronouncements. After referring to Purshottam Lal Dhingra v Union of India, AIR 1&58 SC 36. State of Bihar v. Gopi Kishore, AIR 1960 SC 689. Madan Gopal v. State of Punjab, AIR 1963 SC 531, Jagdish Mitter v. Union of India, AIR 1964 SC 449. Ramendra Chand Banerjee a Union of India, AIR 1963 SC 1552, Champak Lal Chiman Lal Shah v. Union of India, AIR 1964 SC 1864. Shamsher Singh v. State of Punjab. 1974 SCC (L & S) 550 and to several other cases on the subject, the Apex Court has recently in Radhey Shyam Gupta v. State Agro Industries, (1999) 2 SCC 21, laid down the following propositions for judging whether termination simpliciter Is punitive in nature or not :
(1) The termination of a temporary servant or one of probationer on the basis ofadverse entries or on the basis of an assessment that his work is not satisfactory, will not be punitive Inasmuch as the above facts are merely the motive and not the foundation. The reason why they are motive is that the assessment is not done with the object of finding out any misconduct.
(2) The position is not to be different even if a preliminary enquiry is held because the purpose of such enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry and is not to enquire into a particular misconduct.
(3) Even in a case where regular departmental enquiry is initiated, charge-sheet is served, reply is received. Inquiry Officer is appointed, if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the inquiry officer has not recorded evidence nor given any finding on the charges. The employer is entitled to say that he would not continue any employee against whom allegations were made, the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by terms of appointment or as permitted by the rules, was conferring a benefit on the employee as the employee would not suffer from any stigma.
(4) But in cases where the termination is preceded by an enquiry and evidence is recorded and finding as to misconduct of a definitive nature are arrived at, behind the back of the officer and where on the basis of such a report, the termination order is passed, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for afurther regular departmental enquiry.
10. The view taken by the Apex Court in R. S. Gupta's case (supra) has been followed in subsequent decision in Dipti Prakash Banerjee v. Satendra Bose, National Centre for Basic Sciences Calcutta, (1999) 3 SCC 60.
11. The Full Bench of our own High Court has also taken the same view in Km. Mamta Jauhari v. State of U. P., (1999) 1, UPLBEC 54. This Court relied on several cases including one State of U. P. and another v. Kaushal Kishore Shukla, (1991) 1 SCC 691. The view taken by the Apex Court in Kaushal Kishore Shukla's case was where the services of a temporary Government servant dispensed with by an order simpliciter, on the ground of unsuitabillty in terms of the contract of service or service rules, retaining the juniors, no complaint would be made of the violation of Articles 14 and 16 of the Constitution.
12. Let us examine the case in hand in the light of the law laid down by the Apex Court and this Court in the cases noted above.
13. Sri Z. Jilani, learned counsel for the petitioner has tried to say that misconduct and irregularities enumerated in the letter dated 5.10.1968 (Anncxure-1) were the basis for terminating the services of the petitioner. He says that the petitioner had given a satisfactory reply of the notice dated 5.10.1968 and had also submitted an additional reply, copy of which is Annexure-R-6. He says that the matter must have been enquired into, behind the back of the petitioner, in between the submission of the replies and the termination order dated 4.2.1970. He says that any enquiry held by the authorities into the allegations mentioned in Annexure-1. was ex parte and order of termination based on the conclusion of such enquiry, is bad in law for want of compliance of Article 311(2) of the Constitution. He has also said that excepting the irregularities and misconduct alleged in the letter of 5.10.1968 of the Medical OfficerIncharge, there was no other adverse material on the service record of the petitioner. According to him, in these circumstances, the termination order must be said to be based on the alleged irregularities or misconduct. Learned counsel for the State has, however, reiterated his earlier arguments and has said that there was no formal enquiry, no charge-sheet was served, no finding was recorded and the services of the petitioner were dispensed with on the basis of his unsatisfactory work and conduct.
14. There is nothing on record to prove that any decision was taken by the disciplinary authority, i.e., Nideshak Swasthya Sewa to initiate formal disciplinary proceedings against the petitioner for ascertaining the truth of the allegations or irregularities mentioned in Annexure-1. There is no material on the record to establish that any charge-sheet was served under the orders of the disciplinary authority or any inquiry officer was appointed or any formal enquiry was held or any finding was recorded behind the back of the petitioner. It is, therefore, difficult to say that allegations or irregularities enumerated in Annexure-1 were the foundation of the termination order dated 4.2.1970. The petitioner being a temporary Government servant, had no right to the post. The termination order itself does not mention any misconduct of the petitioner or does not cast any stigma. It is just possible that the irregularities or misconduct mentioned in the letter dated 5.10.1968 might have been the motive together with other material for terminating the services by a simpliciter notice.
15. We are not concerned with the truthfulness or otherwise of the allegations contained in the letter dated 5.10.1968 (Annexure-1). There is a clear cut assertion in the written statement and also in the counter-affidavit that at Pipraich, the work of the petitioner was totally unsatisfactory for which he was warned by his superiors. There is further assertion that he disobeyed the orders of his superior such asN.B.W., Medical Officer and even the Civil Surgeon. Gorakhpur. It was also said that when he was found absent or was found remiss in his duty, he started levelling allegations against the Medical Officer to the effect that he had confiscated relevant registers or had supplied expired medicines.
16. In the circumstances, the view taken by the Services Tribunal, cannot be said to be unjustified. The termination order dated 4.2.1970 passed on the ground of unsuitability cannot be termed as punitive in nature.
17. In the result, the writ petitionbeing devoid of merit, is herebydismissed, but with no orders as tocosts.