JUDGMENT C.A. Vaidialingam, J. 1. In these proceedings under Art.226 of the Constitution Sri V.K. Krishna Menon, learned counsel for the writ petitioner, seeks to quash the order of the first respondent, dated 13th September 1960 terminating the petitioners services, as well as the consequential memorandum, Ext. P2, dated 16th September 1960 issued by the second respondent 2. The circumstances under which this writ petition has been filed are briefly as follows: The petitioner, a Medical Practitioner, has passed the M.B.B.S. examination of the Madras University in December 1945 and she has also passed the examination for diploma in Gynaecology and Obstetrics in 1948. After serving as a HouseSurgeon in the Stanley Medical Hospital and the Government Women and Children's Hospital, Madras, the petitioner claims to have specialised in midwifery, Gynaecology and Obstetrics and diseases of children. She was appointed as Honorary Assistant Surgeon in the General Hospital, Ernakulam in 1949. 3. In 1958, the State Government framed the necessary rules for recruitment and appointment of Honorary Medical Officers and the petitioner applied for the same and was appointed in or about 1958 as Honorary Medical Officer, General Hospital, Ernakulam, which post she held till 20th September 1960. 4. The petitioners services were terminated by the memorandum dated 16th September 1960 issued by the second respondent and the said order is Ext. P2. The petitioner alleges that in consequence of that order, she stands removed from service. 5. The petitioner further alleges that certain interested persons have been very active to trump up false charges against her in order to get her removed from the General Hospital and the petitioner further claims to be aware that the said interested persons had sent various petitions to the authorities concerned making reckless and irresponsible allegations against her conduct as a doctor and about her services in the Hospital. 6. The petitioner refers to the editor of a local Malayalam paper as one who has been very active in that respect. The petitioner has filed various cuttings from the particular newspaper, the editor of which, according to her, is very much inimically disposed towards her. The petitioner further alleges that apart from making wide allegations against her, there are also attempts on the part of the said newspaper to compel the Director of Health Services to take action against the petitioner. The petitioner has filed various cuttings from the particular newspaper, the editor of which, according to her, is very much inimically disposed towards her. The petitioner further alleges that apart from making wide allegations against her, there are also attempts on the part of the said newspaper to compel the Director of Health Services to take action against the petitioner. But notwithstanding the very grave provocation, justifiable under such circumstances, the petitioner in order to observe decency and decorum and in view of her position as a Government doctor, ignored those allegations. Though she was under the impression that even the authorities concerned have simply ignored those allegations, she was served with an order terminating her services under Ext. P2. 7. The petitioner claims to be either a member of the civil service of the State or in the alternative, holding a civil post under the State. The petitioner refers to certain Government Orders which will justify her taking up the position that she is a member of the civil service of the State. 8. Further, the petitioner alleges that though the order terminating her services namely, Ext. P2 purports to be passed under R.5 of the Rules, dated 25th April 1958, it is in effect and in substance not a termination of the service under that rule, but it is a termination of her services by way of punishment. The petitioner alleges that the order is really the result of the decision arrived at by the Government to terminate her services, not under R.5, but because of the allegations stated to have been made against her; and the act of termination is really a measure of disciplinary proceedings. The petitioner has raised several grounds of attack against this order Ext. P2 According to her, she is entitled to protection afforded to a Government servant under Art.311 (2) of the Constitution and in this case, she has been removed from service without being given a reasonable opportunity of showing cause against the action proposed. The order terminating her services is really by way of a punishment inflicted upon the petitioner. The petitioner had otherwise a right to continue in service for a period of five years and in consequence of this order, which has caused the premature termination of service, the evil consequence is that it has put an indelible stigma on the petitioner affecting her future career. The petitioner had otherwise a right to continue in service for a period of five years and in consequence of this order, which has caused the premature termination of service, the evil consequence is that it has put an indelible stigma on the petitioner affecting her future career. The petitioner further alleges that by purporting to take action under R.5, the Government have really very cleverly attempted to evade the consequences of Art.311 of the Constitution. For these reasons, the petitioner seeks to have the order quashed. 9. The District Medical Officer of Health, Ernakulam has filed a counter affidavit on behalf of the respondents, namely, the State of Kerala and the Director of Health Services, Kerala State. It is stated therein that subsequent to the passing of the rules evidenced by Ext. P1, and relied upon by the writ petitioner, fresh rules regulating appointments and conditions of service of Honorary Medical Officers, finally approved by the Government, have been issued on 25th April 1958, namely, Ext. R1. The petitioner was appointed as Honorary Medical Officer on 30th May 1958 as per the conditions laid down in Ext. R1. The petitioners services were terminated by Government order, dated 13th September 1960 and the said order of termination was under R.5 of the Rules Ext. R1. The order of the Government was communicated to the Deputy Director of Health Services, Trichur as also to the District Medical Officer (Health), Ernakulam. The order of the Government dated 13th September 1960 has been produced as Ext. R3. 10. The State further controverts the various allegations made in Para.4 to 7 of the petitioners affidavit and has stated that no coercion was brought to bear upon the Director of Health Services by the Editor of Jai Hind as suggested by the writ petitioner. The fact that there has been a large number of complaints published not only in the Jai Hind but other papers also against the staff of the General Hospital, Ernakulam including the petitioner, is admitted. But according to the State, most of those allegations, on inquiries, were found to be baseless and in consequence, no action was taken. 11. In March 1959, one Shri Kochappan made a complaint against the petitioner. The said complaint was inquired into by the Deputy Director of Health Services, Trichur on 15th February 1960 in the presence of the complainant and the petitioner. 11. In March 1959, one Shri Kochappan made a complaint against the petitioner. The said complaint was inquired into by the Deputy Director of Health Services, Trichur on 15th February 1960 in the presence of the complainant and the petitioner. It is also stated that though the petitioner was allowed to cross examine the complainant at the inquiry, she did not do so. The Deputy Director of Health Services submitted a report to the effect that the facts alleged in Kochappans complaint were true and that disciplinary action is called for against the petitioner. The report itself is relied upon as Ext. R4. The Government instructed the Director of Health Services to initiate disciplinary action against the petitioner and accordingly, the Deputy Director of Health Services, Trichur was also directed to take disciplinary action. But the Deputy Director of Health Services, Trichur sent a report on 6th July 1960 that further action against the petitioner by way of framing charges for regular disciplinary action will be of no avail, in view of the stand taken by the petitioner during the inquiry. The said officer also recommended that under the rules relating to the appointment and conditions of service of Honorary Medical Officers, namely, Ext. R1, the petitioners services can be terminated by the Government. The said report is relied upon as Ext. R.5. It is further stated that under these circumstances, Government decided to terminate the services of the writ petitioner by virtue of the powers vested in them under R.5 in Ext. R.1 and accordingly, they issued the order, dated 13th September 1960, Ext. R3 terminating the services of the petitioner. 12. The State further challenges the position taken up by the petitioner that the latter is a member of the civil service of the State or in any event, that she is holding a civil post under the State. It is further alleged that the petitioner is neither a member of the civil service nor can she be considered to be holding a civil post. The various concessions which have been shown to persons, situated like the petitioner, such as giving them the status of Gazetted Officers and permitting them to draw their honorarium of Rs. 100 on separate bills cannot according to the State, constitute the petitioner a member of the civil service of the State. The various concessions which have been shown to persons, situated like the petitioner, such as giving them the status of Gazetted Officers and permitting them to draw their honorarium of Rs. 100 on separate bills cannot according to the State, constitute the petitioner a member of the civil service of the State. In fact, the service regulations applicable to civil service are not at all applicable to Honorary Medical Officers. 13. It is further averred that the action taken by the Government under Ext R3 is nothing but an exercise of their powers under R.5 and there is no warrant or justification for the writ petitioner interpreting the said order as one passed by way of punishment. Though ordinarily, the Honorary Medical Officers will be eligible for continuing in that office for a period of 5 years from the date of their appointment, the Government can terminate the appointment at any time and without assigning reasons under R.5. Though no doubt, there were complaints against the petitioner, the State avers, that it did not think it worthwhile or necessary to institute disciplinary proceedings. But at the same time, the Government was of the view that it was not desirable to allow the writ petitioner to continue as Honorary Medical Officer and therefore her appointment was terminated under R.5. 14. R.17 relied upon by the writ petitioner, has no application whatsoever because no disciplinary action was contemplated by the State against the petitioner. Therefore the State takes the stand that the question of any violation of Art.311 (2) of the Constitution does not at all arise for consideration and in fact, Art.311 has no application to the petitioner. The State also takes up the position that the impugned order has not put an indelible stigma on the petitioner affecting her future career. 15. The Government further alleges that as powers have been exercised under rule 5, there is no question of any violation of the principles of natural justice either. There was no intention on the part of the State either to circumvent the provisions of Art.311 of the Constitution or R.17 of the rules governing the conditions of service of the petitioner. 16. The State further categorically makes averments that the order under attack is not one coming within the scope of R.17 of Ext. R1. There was no intention on the part of the State either to circumvent the provisions of Art.311 of the Constitution or R.17 of the rules governing the conditions of service of the petitioner. 16. The State further categorically makes averments that the order under attack is not one coming within the scope of R.17 of Ext. R1. The petitioner is not entitled to challenge the right of the Government to terminate the services by virtue of the powers vested under R.5. For all these reasons the State contends that the petitioner can have no grievance in law and that the order does not suffer from any of the infirmities alleged against it by the writ petitioner. 17. The petitioner has filed an additional affidavit on 13th January 1961. It is really more in the nature of a reply affidavit dealing with the various points raised in the counter affidavit filed on behalf of the respondents. 18. The petitioner more or less admits that the rules governing the appointment and conditions of service of Honorary Medical Officers is contained in Ext. R1. According to the petitioner, she has come to know about Exts. R 4 and R5 only when they were referred to in the counter affidavit and she alleges that they contained deliberately incorrect statements and the Government has been completely misled by the statements contained therein. 19. The petitioner further states that the wife of Kochappan, the complainant, appears to have been admitted in the hospital on 25th February 1959. But she had no occasion to see the patient, as she was at the material time in charge of Gynaec Ward and the patient was not admitted to that ward. But the petitioner later understood that the said patient was, as a matter of fact admitted in the Medical Ward under the charge of Doctor Vasudevan. The latter examined, and attended on the patient and the petitioner had no contact at all with the said patient either on 25th February 1959 or the next day when the patient appears to have left the hospital on her own account. 20. The petitioner admits that Kochappan did meet her on 25th February 1959 with the chit issued from the OutPatient Department. But as the chit was to the effect that the patient should see the physician, the petitioner asked Kochappan to go and meet the physician concerned. 20. The petitioner admits that Kochappan did meet her on 25th February 1959 with the chit issued from the OutPatient Department. But as the chit was to the effect that the patient should see the physician, the petitioner asked Kochappan to go and meet the physician concerned. But later the same day, Kochappan met her again when she was working in the Female Ward and so she requested him to go out of the ward inasmuch as no males can enter the Female Ward at that time. According to the petitioner, this conduct of hers is designated in the reports Exts. R4 and R5 as rude behaviour to the patient and her husband. 21. The petitioner further proceeds to say that after this incident, Kochappan must have made a complaint because the District Medical Officer, as also the Superintendent of General Hospital, conducted an inquiry and among others the petitioner was also questioned by the District Medical Officer, the petitioner having given a signed statement showing facts as far as she knew them. The petitioner further alleges that during the said inquiry, Doctor Vasudevan has given a statement that the concerned patient was admitted into his ward and that he attended on the said patient. After the inquiry, the petitioner states that the District Medical Officer submitted a detailed report about the whole incident. But the materials so gathered and the report appear to have been suppressed, as no reference is made to any of those matters in Exts. R.4 and R.5. 22. Regarding the matters referred to in Exts. R.4 and R.5, the petitioner states that the Deputy Director of Health Services came to Ernakulam and at her request the petitioner met her. At that time the petitioner saw Kochappan. But Kochappan did not make any statement when the petitioner was there. Though the Deputy Director asked the petitioner whether she likes to put any questions to Kochappan, the petitioner had replied that she had nothing to do with Kochappans wife and that regarding the allegation of rude behaviour, she has already given her explanation in the signed statement given to the District Medical Officer. 23. The petitioner further alleges that she was not shown any deposition given by Kochappan on which the petitioner could question him. Nor was she informed as to whether Kochappan has given any statement. 23. The petitioner further alleges that she was not shown any deposition given by Kochappan on which the petitioner could question him. Nor was she informed as to whether Kochappan has given any statement. Under these circumstances, the petitioner could not do anything further and therefore, she was allowed to go. Therefore, on these allegations, the petitioner avers that the various statements contained in Exts. R.4 and R.5 about an inquiry having been conducted in her presence and her not putting any questions to Kochappan are all grossly perverted facts. If the Deputy Director was really conducting an inquiry the petitioner should have been informed of the same, so that the petitioner could have also insisted upon a charge sheet being given to her so that she could have an opportunity of defending herself. 24. The various statements contained in Ext. R.5 are also very strenuously attacked by the writ petitioner as the petitioner has never seen the patient at all. Because she was not admitted in her ward, the finding of negligence and improper behaviour against her are absolutely unfounded and false. The petitioner further alleges that the Government acted illegally in agreeing with the Deputy Director of Health Services that sufficient cause exists for termination of the services of the writ petitioner. 25. The petitioner further states that she would have had absolutely no grievance whatsoever, if there had been a normal termination of her services under R.5. But taking the entire circumstances, the order as issued spells in the region of disciplinary action, penal consequence, and indelible stigma. 26. The petitioner further states that the opportunity for a Doctor to work as an Honorary Surgeon in a Government Hospital is a very valuable privilege which has been denied to the petitioner in future. Apart from losing her honorarium, the petitioner feels that the entire world has now got the impression that as a result of complaints against her, the petitioner has been removed from the cadre of Honorary Surgeons. 27. The petitioner further states that the order under attack on the face of it also shows that it cannot be such an innocent order passed under R.5, as it refers also to the complaint against the petitioner and it is with that statement that the termination of service is connected. 28. 27. The petitioner further states that the order under attack on the face of it also shows that it cannot be such an innocent order passed under R.5, as it refers also to the complaint against the petitioner and it is with that statement that the termination of service is connected. 28. From the various matters mentioned earlier, it will be seen that two questions arise for decision: (1) Whether the petitioner can be considered to be a member of the civil service of the State of Kerala or whether she can be considered to be holding a civil post in the State; and (2) Whether the order under attack is really a termination of service under the provisions of R.5 or whether the termination is really by way of punishment. 29. It is only if the petitioner can be considered to be a member of the civil service or holding a civil post that the question of the petitioner invoking the provisions of Art.311 of the Constitution arises at all. Again, even if the petitioner is held to be a member of the civil service or holding a civil post, unless the order under attack is held to be one passed by way of punishment, the violation of the provisions of Art.311 of the Constitution does not arise. Even the petitioner, in her reply affidavit, has categorically stated that if the order is one of terminating her services under R.5, she has absolutely no grievance. 30. Before I advert to the specific contentions raised by the learned counsel on both sides, it is desirable that I advert to the rules regulating the appointment and conditions of service of Honorary Medical Officers, Ext. R1 as well as the order of the State Ext R.3, dated 13th September 1960 terminating the services of the writ petitioner under R.5. In the proceedings of the Government Ext. R1, it is stated that the rules as finally approved by Government for regulating the appointment and conditions of service of Honorary Medical Officers in Government Medical Institutions in the State are enclosed. There is also a request to the Director of Public Relations to call for applications from suitable persons inviting their attention to the rules published. The rules themselves provide for various matters. There is also a request to the Director of Public Relations to call for applications from suitable persons inviting their attention to the rules published. The rules themselves provide for various matters. They provide for the classes of Honorary Medical Officers, their qualifications, the manner of selection and appointment, tenure of appointment, their honorarium, and also the duties and rules of conduct. They also deal with the powers of Honorary Medical Officers to issue necessary certificates to patients under their treatment and the rules also deal with the right of private practice subject to certain limitations. The hours of attendance are also prescribed and provision is also made for leave being granted to Honorary Medical Officers. There is also a provision for the Honorary Medical Officer tendering his or her resignation at any time subject to the acceptance of Government. 31. Two rules in particular, have to be noted for the present and they are R.5 and 17. R.5 deals with tenure of appointment and is to the following effect: "TENURE OF APPOINTMENT: A person appointed to the post of Honorary Medical Officer will hold the post for a period of 5 years at a time. Government may terminate the appointment at any time without any notice and without assigning any reason therefor. The Honorary Medical Personnel once appointed will be eligible for reappointment provided they are found suitable for re appointment by Government." Again, R.17 deals with disciplinary nation and is to the following effect: "DISCIPLINARY ACTION: In cases of disciplinary action against an Honorary Medical Officer, charges may be framed against him/her and he/she may be given an opportunity to meet those charges. The decision of the Government shall be final." Therefore, it will be seen that under R.5, an Honorary Medical Officer, once appointed will hold the post for a period of 5 years at a time; but power is given to the Government to terminate the appointment at any time without any notice and without assigning any reason therefor. 32. R.17 gives power to the Government to take disciplinary action against an Honorary Medical Officer and in those cases, the said rule further provides that charges are to be framed against the officer and the latter is to be given an opportunity to meet those charges. 33. Certain other roles in Ext. R1 will have to be considered when dealing with the contention of Mr. 33. Certain other roles in Ext. R1 will have to be considered when dealing with the contention of Mr. V.K.K. Menon that the petitioner is a member of the civil service or that she is holding a civil post in the State. 34. Ext. R3, omitting the unnecessary part of it, is to the following effect: GOVERNMENT OF KERALA ABSTRACT Establishment Dr. Rebecca Chanda Pillai, Honorary Medical Officer, General Hospital, Ernakulam Complaint Services Termination of Orders issued. HEALTH AND LABOUR DEPARTMENT (HEALTH) G.O. Rt. 3065/60/H. and I.D. Dated, Trivandrum, 13-9-1960. Read: Correspondence ending with letter No. E93025/59, dated 1181960 from the Director of Health Services. Under R.5 of the rules issued in G.O. Ms. 450/58/PHD, dated 2541958, governing the appointments and service conditions of Honorary Medical Officers, the services of Dr. Rebecca Chanda Pillai, Honorary Medical Officer, General Hospital, Ernakulam are terminated forthwith. X x x x (By order of the Governor) P. U. JOHN Assistant Secretary To The Director of Health Services The Accountant General. Forwarded/by order (Sd.) Superintendent. There is also another paragraph in Ext. R3 which has been omitted by me because it is not really necessary for the present purpose. It is really that part of Ext. R3 extracted above, that has been communicated to the writ petitioner under Ext. P2. Under Ext. R3, it will be seen that the Government are terminating the services of the writ petitioner under R.5 of the rules, Ext. R1. 35. The first contention of Mr. V.K.K. Menon, learned counsel for the writ petitioner is that the petitioner should be considered to be a member of the civil service of the State or at any rate, must be considered to be a person who holds a civil post under the State. 36. This aspect will have a considerable bearing on the question of the applicability or otherwise of Art.311 of the Constitution. If the petitioner cannot be considered to be either a member of the civil service of the State or a person holding a civil post under the State, irrespective of the merits of the action taken by the State in terminating her services, the applicability of Art.311 of the Constitution will not at all arise. No doubt, if this contention of Mr. No doubt, if this contention of Mr. V.K.K. Menon is accepted, then the further question will have to be investigated whether the termination of the service of the petitioner attracts the provisions of Art.311 of the Constitution. 37. According to Mr. V.K. Krishna Menon, the various rules governing the appointment and conditions of service of Honorary Medical Officers in Government Medical Institutions in the State will clearly show that the petitioner amply satisfies the requirements of Art.311 (1) of the Constitution. 38. On the other hand, it is the contention of the learned Government Pleader that the petitioner can neither be considered to be a member of the civil service of the State, or as a person holding a civil post under the State. 39. Apart from placing reliance upon the various rules contained in Ext. R1, Shri V.K.K. Menon, has also relied upon two other orders issued by the Government, namely, Exts. P8 and P9 to show that the petitioner is at least a person holding a civil post in the State. Ext. R1 contains 18 rules governing the appointment and conditions of service of Honorary Medical Officers. Rule 1 provides for Honorary Medical Officers being appointed to Government Medical Institutions with regard to the actual requirement of the institutions. Rule 2 divides them into two grades as Honorary Medical Officers I Grade and Honorary Medical Officers II Grade. Rule 3 prescribes the various qualifications for selection to the two grades of Medical Officers. Rule 4 prescribes the manner of selection and appointment of the officers to both the grades. There is also a provision in R.4 that the final selection and appointment is to be made by the Government. Rule 5 to which I have already made reference, deals with tenure of appointment. The tenure is stated to be 5 years and it is further stated that a person appointed to the post of Honorary Medical Officer will hold the post for a period of 5 years at a time. Power is given to the Government to terminate the appointment at any time without any notice and without assigning any reason therefor. Provision is also made in R.5 to the effect that Honorary Medical Officers once appointed will be eligible for reappointment provided they are found suitable for reappointment by Government. Rule 6 relates to the honorarium payable to the officers of the I Grade at Rs. Provision is also made in R.5 to the effect that Honorary Medical Officers once appointed will be eligible for reappointment provided they are found suitable for reappointment by Government. Rule 6 relates to the honorarium payable to the officers of the I Grade at Rs. 100 and to the II Grade at Rs. 60 per mensem with an option to the officers not to receive the honoraria, if they do not wish to draw them. Rule 7 which relates to the acceptance of fees prescribes that Honorary Medical Officers should abide by Government rules in force in regard to the acceptance of fees from patients of the Government Medical Institutions. Again R.8 which prescribes the duties, is to the effect that those officers should conform to the rules in force in the institutions in which they are working in So far as they relate to the admission, care and discharge of patients, the use of Government materials and also the term of attendance. Rule 9 provides for such officers having full control of professional work with regard to the patients allotted to them and there is also a further provision to the effect that officers having special qualifications, will be placed in independent charge of special duties mentioned therein and have full charge of that Department. Clause (c) of R.9 casts a duty on the Honorary Medical Officers to place their services at the disposal of the authorities in emergencies like riots, epidemics, etc , if required by the Head of the Medical Institution where they are working. Rule 10, which deals with the officers connection with press and general conduct, prohibits an Honorary Medical Officer from criticising any policy pursued by the Government either in a public speech or by communication to the press and there is a prohibition regarding such officers participating in any such discussion or criticism regarding the Medical Administration. Rule 11 empowers such officers to issue necessary certificates for patients under their treatment and they are prohibited from dealing with patients either in the outpatient or inpatient department excepting those patients who are specifically assigned to them. Rule 11 empowers such officers to issue necessary certificates for patients under their treatment and they are prohibited from dealing with patients either in the outpatient or inpatient department excepting those patients who are specifically assigned to them. Rule 12 exempts Honorary Medical Officers from Medicolegal work and in case there is any necessity for their attending to such work, provision is made for payment to them of the same allowance that is paid to the doctors in service Rule 13 allows such officers to take up private practice subject to the various restrictions mentioned therein. Rule 14 prescribes the hours of attendance of such officers to be either from 8 a.m. to 11 a. m. or 10 a. m. to 1 p.m. every day in the week subject to any change in the times that may be made by the doctor in charge of the Medical Institution concerned. But there is a duty on the Honorary Medical Officers to work for at least 3 hours every day in the hospital. Rule 11 again makes provision for an attendance register being maintained in each Government Medical Institution and there is an obligation on the Honorary Medical Officers to attend the institutions at the prescribed hour and to make a note of those facts in the attendance register both at the time of their arrival and departure. There is provision made for the Medical Officer in charge of the institution to make a weekly check of the attendance register. There is an obligation cast upon the Honorary Medical Officers to intimate the Medical Officer in charge of the hospital sufficiently early in case they are unable to attend the hospital during the prescribed hours. Rule 15 deals with the leave conditions of the Honorary Medical Officers and provision is made for grant of casual leave to such officers up to 20 days in a year by the Medical Officer in charge. There is also provision made for grant of leave of absence, other than casual leave, at the rate of 1/22 of the period of their duty subject to a maximum of 30 days at a time without allowance. It also prescribes for leave of absence, other than casual leave, for a period exceeding 30 days at a time being granted to Honorary Medical Officers, by the Director of Health Services, on medical grounds or for any other specific reason. It also prescribes for leave of absence, other than casual leave, for a period exceeding 30 days at a time being granted to Honorary Medical Officers, by the Director of Health Services, on medical grounds or for any other specific reason. There is also provision made for grant of study leave with the specific sanction of Government. Rule 16 makes the Honorary Medical Officer personally responsible for any loss sustained by Government through fraud or negligence on his part and the Medical Officer is also made liable to make good the value of Government property or equipment lost, damaged or destroyed by his default or carelessness. Rule 17 has already been adverted to by me and that deals with disciplinary action. It gives power to the Government to take disciplinary action against an Honorary Medical Officer and in those cases, it makes provision also for charges being framed as also an opportunity being given to the officer concerned to meet those charges & the decision of the Government is made final. Rule 18 deals with resignation and it provides that an Honorary Medical Officer may resign his appointment at any time subject to the acceptance of Government and there is also a provision to the effect that Government reserves its rights to modify or amend any of these rules at any time it thinks fit. 40. I have rather elaborately adverted to the various rules regulating the appointment and conditions of service of Honorary Medical Officers. These rules clearly show that Honorary Medical Officers are placed more or less in the same position as other Medical Officers of the Government and they are subject to various restrictions and liabilities. In particular, they have to abide by the rules governing other Medical Officers in the matter of accepting fees and in the matter of discharging their duties. In certain aspects full control is given to the Honorary Medical Officers. There is an obligation on the part of the Honorary Medical Officers to place their services at the disposal of the authorities in cases of emergencies like riots, epidemics, etc., when required. There is a restriction placed upon these officers from criticising the policy of the Government regarding the Medical Administration either through the press or in any public speech. They are given the right to issue certificates in respect of patients under their treatment. There is a restriction placed upon these officers from criticising the policy of the Government regarding the Medical Administration either through the press or in any public speech. They are given the right to issue certificates in respect of patients under their treatment. Though they are allowed private practice, that can be done only under the restrictions mentioned in R.13. 41. Again, their hours of attendance at the hospital are fixed and there is a duty to make an entry in the attendance register regarding the time of their arrival as well as their departure. Again if they are not able to attend during the prescribed hours, there is a duty on their part to inform the Medical Officer concerned of that fact so that other arrangements may be made for carrying on the work. Then there is provision made for grant of casual leave and also leave other than casual leave. They are made also liable for any loss sustained by Government through fraud or negligence as also for loss of any Government property through their default or carelessness. There is provision for taking disciplinary action against such officers and there is also provision made for the Honorary Medical Officer resigning his appointment subject to acceptance by Government. Therefore, the various matters mentioned above will clearly show that their position is almost similar in several aspects to the other Medical Officers who are in the regular service of Government. 42. In this connection, 2 other documents Exts. P8 and P9 relied upon by Mr. V.K.K. Menon, have to be considered. Ext. P8 is a communication sent by the State on 7th October 1958 to the Comptroller, Trivandrum. Evidently, the Comptroller seems to have raised a lot of points regarding the status of Honorary Medical Officers and the Government replied to the Comptroller point by point. Para.2 of the Governments reply is to the effect that Medical Officers in charge of institutions, are to draw and disburse the honorarium payable to Honorary Medical Officers so as to avoid unnecessary confusion and complication. But the Government states that the point of view that the Honorary Medical Officers are getting only Rs. 100 and therefore, they should be placed on the footing of non gazetted officers, is not correct. But the Government states that the point of view that the Honorary Medical Officers are getting only Rs. 100 and therefore, they should be placed on the footing of non gazetted officers, is not correct. The Government proceeds to state: "The Honorary Medical Officers are to all intents and purposes to be treated as Gazetted Officers and placed on a footing of equality with the opposite number in the Department. The reason for allowing the Medical Officer in charge to draw and disburse the honorarium is only for the administrative convenience." Paragraph 4 is to the effect that the Travelling Allowance payable to Honorary Medical Officers will be the same as is given to Assistant Surgeons drawing a salary of Rs. 200 exclusive of allowances. Para.5 again clarifies the position that casual leave for Honorary Medical Officers shall be the same as for the Medical Officers in the paid cadre. Again Para.6 deals with fixation of the number of posts for appointing Honorary Medical Officers. 43. Ext P9 is again a copy of a Government Order, dated 8th April 1959. That is to the effect: "Government order that all Honorary Medical Officers will be treated as Gazetted Officers. They will draw salary on their own bills as authenticated by the Comptroller." 44. I may also state that in Exhibit R.1, R.5 refers to a person appointed to the post of Honorary Medical Officer and such officer holding the post for a period of 5 years Para.6 of Ext. P8 also relates to fixing the number of posts for appointing Honorary Medical Officers. In my view, R.5 in Ext. R1 as well as Para.6 of Ext. P8 themselves give an indication that appointment as Honorary Medical Officer is appointment to the post of Honorary Medical Officer. No doubt, the learned Government Pleader contended that it may be that the Government has given certain rights and also placed certain restrictions on persons like the petitioner when they function as Honorary. Medical Officers, but those conferments of rights will not by themselves make them members of the civil service of the State or as holding a civil post in the State. 45. In this connection, Mr. V.K.K. Menon referred to certain decisions where the officers concerned in those cases have been treated as holding a civil post under the State. 46. In Md. M. Qidwai v. G.G. in Council AIR 1953 All. 45. In this connection, Mr. V.K.K. Menon referred to certain decisions where the officers concerned in those cases have been treated as holding a civil post under the State. 46. In Md. M. Qidwai v. G.G. in Council AIR 1953 All. 17 Sapru and Bhargava, JJ., had to consider whether a Sub-Permanent Way Inspector of O. T. Railway is a person holding a civil post so as to attract the provisions of S.240 of the Government of India Act, 1935. At page 21 it is observed: "There was some argument on the question as to whether the plaintiff was, at all a member of a civil service of the Crown. In India or held any civil post under the Crown in India. The use of the words member of a civil service indicates that this first clause is meant to apply to those persons who are members of a regularly constituted service and who are not merely holding posts under the Crown. There is nothing at all on the record or in the finding of the lower courts to show that the post which was held by the plaintiff was a post borne on the cadre of a regularly constituted service. There can, however, be no doubt that the plaintiff was holding a civil post under the Crown just before he was removed. The word civil used before the word post in this section is clearly meant to distinguish posts in the Defence Forces. The words civil post cannot be confined merely to posts which are borne on the cadre of any regularly constituted service. Learned counsel for the defendant did not press the argument further in view of the fact that in the case of Venkata Rao v. Secretary of State ( AIR 1937 PC. 31 ) their Lordships of the Privy Council recognised that a member on the clerical staff of the Government Press at Madras was holding a civil post under the Crown in India. The words civil post were examined by a learned Single Judge of the Lahore High Court in Pakistan in Yusuf Ali Khan v. Province of the Punjab (AIR 1950 Lah. 59) where the provisions of S.240, Government of India Act, 1935 were still applicable. The words civil post were examined by a learned Single Judge of the Lahore High Court in Pakistan in Yusuf Ali Khan v. Province of the Punjab (AIR 1950 Lah. 59) where the provisions of S.240, Government of India Act, 1935 were still applicable. Both these cases clearly show that all posts held by any public, servant, if the posts did not belong to the Military Department or the Defence Forces, must be deemed to be a civil post under the Crown." 47. In Brojo Gopal v. Commissioner of Police ( AIR 1955 Cal. 556 ) Mr. Justice Bose had to consider the status of a special constable appointed under S.12 of the Calcutta Suburban Police Act (Bengal Act 2/1866). The learned Judge in that case held that the status of such a special constable is for all practical purposes the same as that of an ordinary officer of the police force excepting that the special constable rendered services without remuneration and paid for his own uniform. But the learned Judge further held that though the office of a special constable enures only so long as a temporary emergency continues, he is nevertheless the holder of a civil post within the meaning of Art.311 of the Constitution. Therefore, in consequence, the learned Judge also held that such an officer in entitled to the privileges and protections under that Article. The learned Judge observes at page 557: "The words civil service and civil post are used in contradistinction to service in or post under the defence forces of the Government of India. It is true that the petitioner does not belong to the cadre of any regularly constituted service. His office of a special constable continues so long as the temporary emergency within the meaning of S.12, Calcutta Police Suburban Act continues. But he is nevertheless holder of a civil post. A discussion of the meaning of the expression civil post is to be found in the case of Md. Matteen Qidwai v. Governor General in Council ( AIR 1953 All. But he is nevertheless holder of a civil post. A discussion of the meaning of the expression civil post is to be found in the case of Md. Matteen Qidwai v. Governor General in Council ( AIR 1953 All. 17 )." The learned Judge rejected the contention of the Government Pleader that a person who does not receive any pay or remuneration, cannot be said to be holding a civil post as follows at page 558: "So the mere fact that the holder of an office under the Government does not get any remuneration, does not make him any the less a holder of a civil post under the Government." In fact, the learned Judge also observes at the same page: "If this contention is accepted as correct, even then an Honorary Magistrate cannot be regarded as a person holding a civil post under the State." The learned Judge sums up the position at page 558: "It will be a curious position indeed, if a special police officer appointed under S.12, Calcutta Suburban Police Act remains subject to all the penalties or punishment which can be inflicted on ordinary police officers for remiseness or neglect of duty but he is deprived of the ordinary privileges and protection which are available to an ordinary police officer including the privileges or protection afforded under Art.311 of the Constitution." 48. Again in Sher Singh v. State of M.P. AIR 1955 Nagpur 175, Mudholkar and Deo, JJ., had to consider whether a person appointed as a Home Guard can be considered to be holding a civil post under Art.311 (1) of the Constitution. In that case, the person concerned, an Ex-Service man, was appointed a Home Guard under the Central Provinces and Berar Home Guard Act, 1947. That officer when lawfully on duty had the same powers, privileges and protection as an officer of the police appointed under any enactment for the time being in force In that connection, the learned Judges had to consider the scope of the expression civil post and observed as follows at page 176: "The expression civil post means an appointment or office on the civil side of the administration as distinguished from the military side. As already pointed out, the certificate indicates that the petitioner was an officer in the police force. As already pointed out, the certificate indicates that the petitioner was an officer in the police force. As stated in the preamble, the Act was passed to create a body of volunteers to supplement the police force and to assist in any general measure of public welfare in Madhya Pradesh. There is therefore no doubt that the petitioner holds a civil post under the State." 49. In our High Court, in Francis v. State of Kerala 1960 KLT 708 my learned brother Mr. Justice Velu Pillai had to consider whether a person appointed as a Special First Class Honorary Magistrate can be considered to hold a civil post under Art.311 of the Constitution. The learned Judge quotes with approval the interpretation put upon that expression in Yusuf Ali Khan v. Province of the Punjab AIR 1950 Lahore 59 and Brojo Gopal v. Commissioner of Police AIR 1955 Cal. 556 . Notwithstanding that the officer concerned was not a salaried employee and was holding office for a particular period, the learned Judge held that the person concerned therein holds a civil post using that term in contradistinction with the post connected with the defence. The learned Judge observes at page 709 as follows: "As held in Yusuf Ali Khan v. Province of the Punjab (AIR 1950 Lahore 59), the term civil post must be construed according to the dictionary, and means an appointment or an office on the civil side of the administration, and even a temporary employee or the holder of a temporary post can be deemed to be the holder of a civil post. Judged by this test, I feel no doubt whatever that a Special Magistrate like his counter part in the regular service, holds a civil post. Bose, J., in Brojo Gopal v. Commissioner of Police ( AIR 1955 Cal. 556 ) considered the case of an Honorary Magistrate to be a fortiori case, while deciding that a Special Constable recruited temporarily under the Calcutta Suburban Police Act, 1866 can be deemed to be holding a civil post within the meaning of Art.311. I therefore come to the conclusion, that the petitioner was holding a civil post." 50. 556 ) considered the case of an Honorary Magistrate to be a fortiori case, while deciding that a Special Constable recruited temporarily under the Calcutta Suburban Police Act, 1866 can be deemed to be holding a civil post within the meaning of Art.311. I therefore come to the conclusion, that the petitioner was holding a civil post." 50. On the other hand, the learned Government Pleader, in support of his contention that the petitioner cannot be considered to be holding a civil post, relied upon two decisions namely, the one reported in Venkata Swamy v. Superintendent of Post Offices AIR 1957 Orissa 112 and the other in State of Rajasthan v. Madanswarup AIR 1960 Rajasthan 138. In the decision reported in Venkataswamy v. Superintendent of Post Offices AIR 1957 Orissa 112 the learned Chief Justice and Mr. Justice Das had to consider whether an extra departmental branch postmaster is a person holding a civil post. The learned Judges, after a consideration of the nature of their employment, and conditions of service, came to the conclusion that such an extra departmental branch postmaster cannot be considered to be holding a civil post under the Union Government. One significant matter that has been taken into account by the learned Judges was the fact that the extra departmental branch postmaster was allowed to go on leave, after putting his own nominees, agent or servant in charge of the post office. The learned Chief Justice observes at page 116 as follows: "This privilege is, I think decisive on the question at issue in the present application. It is inconceivable that any regular Government servant would be permitted to hand over charge of his office to his own nominee, agent or servant an I go on leave. I am therefore of the view that these extra departmental branch postmasters are mere agents of Government in respect of their postal work, and the terms and conditions of the agency are regulated by the relevant provisions of the Posts and Telegraphs Manual which are in the nature of terms of conduct of the agency." Therefore, in that case the learned Judges were of the view that those postmasters are mere agents to carry on the postal work. In this view, the learned Judges held that such a postmaster cannot be considered to be holding a civil post in the Union of India. In this view, the learned Judges held that such a postmaster cannot be considered to be holding a civil post in the Union of India. In my view, this decision does not advance the case of the State. 51. In the decision reported in State of Rajasthan v. Madanswarup, AIR 1960 Rajasthan 138 Modi and Bhandari, JJ., had to consider the position of an advocate appointed by the State as Government Advocate to conduct its criminal cases in High Court with liberty to have private civil practice. There again, after a consideration of the terms of appointment and other circumstances, the learned Judges were of the view that the precise relationship between the advocate and the State of Bikanir was that of a standing counsel and his client, and the plaintiff therein was never a member of a civil service or the Bikanir State or the holder of a civil post at any relevant time and therefore, Art.311 of the Constitution has no application. Again, it is the further view of the learned Judges that the contracts between the two parties were entirely professional contracts and did not involve the relationship of master and servant. This decision again, in my view, does not in any way assist the respondents. 52. It may be that it is not possible to hold that the writ petitioner is a member of the civil service of the State. But in my view, the petitioner can be considered to be a person who holds a civil post under the State at the material time. I have already referred to the terms and conditions of service of Honorary Medical Officers under Ext. R1. Again, I have also referred to the matters mentioned in Exts. P8 and P9. Ext. R1 and Ext. P8, both also refer to a person appointed to the post of Honorary Medical Officer and also refer to such person holding the post for a period of 5 years at a time. The appointment is made by the Government. The various duties of the Honorary Medical Officers are mentioned in Ext. R1; their hours of work, their being required to sign the attendance register, as well as their being made to inform the Medical Officer-in-charge sufficiently early in case they are, not able to attend at the prescribed time are all provided in the rules. The various duties of the Honorary Medical Officers are mentioned in Ext. R1; their hours of work, their being required to sign the attendance register, as well as their being made to inform the Medical Officer-in-charge sufficiently early in case they are, not able to attend at the prescribed time are all provided in the rules. Again their eligibility for taking casual leave and other kinds of leave are all provided for. The position of these Honorary Medical Officers is almost similar to that of their counter parts in the regular Medical Service in the State. Power is given to the State to take disciplinary action. Power is also given to the State to terminate their services. Provision is also made for the officers tendering their resignations subject to their being accepted by the Government. These officers are made liable for any loss or damage that may be caused by their negligence or carelessness. Private practice is allowed only subject to the conditions mentioned in the rules. In my view, all these clearly show that the petitioner must be considered to be holding a civil post in the State. 53. As observed by Mr. Justice Bose, it will be rather incongruous to hold that a person, like the writ petitioner, remains subject to all the terms and conditions mentioned in Ext. R1 but that she is deprived of the ordinary privileges and protection which are available to her counter part in the regular Medical Service, including the privilege of protection afforded under Art.311 of the Constitution. 54. Therefore, to conclude on this part of the case, I hold that the petitioner is a person holding a civil post in the State and as such she will be entitled to the protection afforded under Art.311 of the Constitution, if that Article is otherwise applicable in respect of the action taken by Government. 55. Then the question arises as to whether, in the circumstances in which action was taken by way of terminating the petitioners service under Ext. R3, the provisions of Art.311 of the Constitution are attracted and whether it can be said that there has been a violation of the conditions mentioned therein. 55. Then the question arises as to whether, in the circumstances in which action was taken by way of terminating the petitioners service under Ext. R3, the provisions of Art.311 of the Constitution are attracted and whether it can be said that there has been a violation of the conditions mentioned therein. As I have mentioned at the beginning of this judgment, the petitioner herself has stated in her reply affidavit that she would have had no complaint at all, if the termination, in question, is a normal termination of service under R.5 of Ext. R1. But her grievance is that the circumstances under which the impugned order was issued, spell in the region of disciplinary action, penal consequences and indelible stigma. The learned counsel urged that there has been really an attempt by the Government to bypass the normal procedure of an inquiry, on a report from the Deputy Director in this case. 56. In this connection, the learned counsel further urged that though it is stated in the order that action has been taken under R.5 really the action has been taken in the nature of a disciplinary proceeding. That is, in short, according to Mr. V.K.K. Menon, the termination of the petitioners services is really as and by way of punishment meted out by the State to the petitioner. 57. In this connection, the learned counsel placed considerable reliance on the report Ext. R4 as well as the recommendation contained therein that disciplinary action has to be taken as against the petitioner. Again the learned counsel referred to Ext. R5 to show that the Government has been practically misled by the Director of Health Services by making it appear that the writ petitioner will have no case, if an enquiry is to be conducted. The learned counsel further urged that the Director of Health Services has given the impression to the Government in Ext. R5 that the writ petitioner has absolutely no defence to the complaint made against her by Kochappan and he has practically avoided an inquiry being held by suggesting to the Government that action may be taken under the rules for terminating her services. 58. The learned counsel also urged that the Government itself, even according to the State, once decided to take disciplinary action. But after the receipt of Ext. 58. The learned counsel also urged that the Government itself, even according to the State, once decided to take disciplinary action. But after the receipt of Ext. R5, the Government issued the order under attack, terminating the petitioners service purporting to be under R.5 of Ext. R1. 59. The learned counsel also referred to the use of the expression complaint in Ext. R3. Therefore, taking the entire circumstances which led to the passing of Ext. R3, it unquestionably follows, the learned counsel urged, that the termination of the petitioners services, is not under R.5 as it innocuously purports to be, but really, as and by way of punishment. 60. The learned counsel further urged that even on the terms of R.17 in Ext. R1, disciplinary action can be, no doubt, taken. But there is an essential condition mentioned therein that charges will have to be framed against the officer & the Officer must be given an opportunity to meet those charges. She is also entitled to the protection guaranteed to her under Art.311 of the Constitution. What that guarantee of reasonable opportunity envisaged under Art.311 has been laid down by various decisions, including that of the Supreme Court. In this case, the Deputy Director of Health Services appears to have conducted a farce of an inquiry and has sent up a report under Ext. R4 damning the petitioner when she had no opportunity at all to place her defence No charges were framed from which the petitioner can know the nature of the case she is called upon to meet. No inquiry worth the name, and as understood in law, has been conducted. The petitioner had absolutely no opportunity to cross examine the persons whose statements have been used against her by the Deputy Director of Health Services. In fact, the learned counsel also urged that at an earlier stage, another report had been sent wherein the petitioner had been completely exonerated. No reference is made to that report and finding in Ext. R4. 61. The learned counsel also urged that his client is not only willing to face a regular inquiry, but would also welcome an inquiry, so that she may completely clear herself of all these gross and frivolous accusations made against her. The very grievance of the petitioner in this application, according to Mr. R4. 61. The learned counsel also urged that his client is not only willing to face a regular inquiry, but would also welcome an inquiry, so that she may completely clear herself of all these gross and frivolous accusations made against her. The very grievance of the petitioner in this application, according to Mr. V.K.K. Menon, is that instead of adopting the right and proper course of making the writ petitioner face an inquiry, the Government have really bypassed the inquiry and has denied an opportunity to the petitioner of placing the truth and nave ostensibly and to all outward purposes passed an order purporting to take action, on the basis of R.5 of Ext. R1. 62. On the other hand, the learned Government Pleader relied upon the various statements male in the counter affidavit filed on behalf of the respondents by the District Medical Officer of Health, Ernakulam. The learned Government Pleader placed considerable stress on the statements in Para.5 of the counter affidavit to show the circumstances under which the Government passed the order of termination Ext. R3. Again, the learned Government Pleader, after referring to Para.7 of the counter affidavit stated that no doubt at one stage there was a recommendation by the Deputy Director of Health Services, Trichur for taking disciplinary action against the petitioner. In fact, the Government also at one stage instructed the Director of Health Services to initiate disciplinary action against the petitioner, but later the Government dropped the idea of taking disciplinary action against the petitioner. The Government Pleader also urged that there were several complaints against the petitioner but the Government did not think it worthwhile or necessary to institute disciplinary proceedings against her. But at the same time, the Government did not consider it desirable to allow the petitioner to continue as Honorary Medical Officer and therefore, the Government decided to take action under R.5 and as such terminated her services. 63. The learned Government Pleader also placed reliance upon the two provisions contained in Ext. R1 namely, R.5 giving an absolute power to the Government to terminate the services of an Honorary Medical Officer at any time without notice and without assigning any reason therefor The learned Governed Pleader urged that there is an absolute power and the exercise of that power cannot be challenged by the writ petitioner. R1 namely, R.5 giving an absolute power to the Government to terminate the services of an Honorary Medical Officer at any time without notice and without assigning any reason therefor The learned Governed Pleader urged that there is an absolute power and the exercise of that power cannot be challenged by the writ petitioner. The learned Government Pleader also relied upon the provisions of R.17, under which disciplinary action can be taken, to show that action to be taken under rule 17, is something totally different from the absolute and unqualified power vesting in the Government under R.5. 64. If the Government had decided to take disciplinary action, it was perfectly open to them to do so and in that case, they would have observed the formalities prescribed in R.17 itself, as well as the conditions mentioned in Art.311 of the Constitution. 65. It may be that the order Ext. R3 refers in the preamble to complaints against the petitioner. Even assuming that the Governments motive in discharging the services of the petitioner was because of complaints received against her, that cannot in any way affect the legality and validity of the order Ext. R3 which has been passed under rule 5. The petitioner knew full well that she was applying for this post under those conditions mentioned in Ext. R1 and she has willingly accepted the post, subject to those conditions. It is not open to her to challenge the action of the Government. 66. As there is no question of the termination being brought about as a punishment, the learned Government Pleader urged that the provisions of Art.311 of the Constitution do not come into play. It has been laid down by various decisions of the Supreme Court that those provisions come into play only when the termination of an officers services is brought about as a punishment and not by virtue of the powers vested in the Government either under the contract or under the Service Rules. 67. If I accept the contention of Mr. V.K.K. Menon that the termination in this case of the petitioners services, though purporting to be under R.5, is really as and by way of punishment, there cannot be any controversy that the reasonable opportunity guaranteed to the petitioner under Art.311 of the Constitution, has not been afforded in this case. But I am not inclined to accept the contention of Mr. But I am not inclined to accept the contention of Mr. V.K.K. Menon that the termination of the petitioners services under Ext. R3, is by way of punishment. On the other hand, I am of the view that the termination of the petitioners services is only by virtue of the powers vested in the Government under R.5 of Ext. R.1 and therefore, there is no question of the violation of Art.311 in this case. This aspect is discussed by me immediately. 68. Sri V.K.K. Menon referred me to certain decisions of the various High Courts prior to 1958, where under certain circumstances, the High Courts have held that an order terminating an officers services is or is not by way of punishment. It is not really necessary to advert to those decisions prior to 1958, as the principles applicable to such cases, have been now laid down by Their Lordships of the Supreme Court in four later decisions reported in P.L. Dhingra v. Union of India ( AIR 1958 SC 36 ), P. Balakotaiah v. Union of India ( AIR 1958 SC 232 ), State of Bihar v. Gopi Kishore ( AIR 1960 SC 689 ), and State of Orissa v. Ram Narayan Das ( AIR 1961 SC 177 ). The question as to under what circumstances an order of termination of service, can be considered to be one passed by way of punishment, so as to attract the provisions of Art.311 of the Constitution, has been, if I may say so with great respect very elaborately considered and the principles laid down by Their Lordships of the Supreme Court in the decision reported in P.L. Dingra v. Union of Indian ( AIR 1958 SC 36 ). In fact, Shri V.K.K. Menon places considerable reliance on some of the observations of Their Lordships contained in this judgment as concluding the points that arise for decision in this case, in his favour. I have gone through the entire judgment very carefully and ultimately I am of the view that on the basis of the principles laid down by Their Lordships in that case, the order in question before me, cannot be considered to be one passed as and by way of punishment. 69. I have gone through the entire judgment very carefully and ultimately I am of the view that on the basis of the principles laid down by Their Lordships in that case, the order in question before me, cannot be considered to be one passed as and by way of punishment. 69. That a termination of service brought about by the exercise of a contractual right is not per se dismissal or removal has been held by the Supreme Court in Chander Anand v. Union of India [AIR 1959 SC 250]. Again, that the termination of service by compulsory retirement, in terms of specific rules regulating the conditions of service is not tantamount to the inflictment of a punishment and as such does not attract Art.311[2], has also been laid down by the Supreme Court in Shyamlal v. State of Uttar Pradesh [ AIR 1954 SC 369 ]. The position established by these two decisions has been accepted as correct by Their Lordships of the Supreme Court in the decision reported in P.L. Dhingra v. Union of India [ AIR 1958 SC 36 ], at page 49. The question that arose before Their Lordships of the Supreme Court in the decision in P.L. Dhingra v. Union of India [ AIR 1958 SC 36 ], was as to whether the reduction in rank of a person from a higher post to which he was appointed, on an officiating basis, can be considered to be a reduction in rank by way of punishment so as to attract the provisions of Art.311[2] of the Constitution. The ultimate decision of Their Lordships was: "There is no escape from the conclusion that the petitioner was not reduced in rank by way of punishment and therefore the provisions of Art.311 (2) did not come into play at all. In this view of the matter, the petitioner cannot complain that the requirements of Art.311 (2) were not complied with, for those requirements never applied to him." 70. In considering the case of the petitioner therein, Their Lordships had to consider the question as to the circumstances under which the provisions of Art.311 come into play. Their Lordships had also to consider the further question as to when an order for the termination of service can be considered to be inflicted as and by way of punishment and when it is not. Their Lordships had also to consider the further question as to when an order for the termination of service can be considered to be inflicted as and by way of punishment and when it is not. The learned counsel placed considerable reliance on the following passages occurring in the judgment of Their Lordships of the Supreme Court, At page 42 His Lordship, the learned Chief Justice observes: "In short in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period. In such a case the servant so appointed acquires a right to his tenure for that period which cannot be put an end to unless there is a special contract entitling the employer to do so on giving the requisite notice or the person so appointed is, on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself, found guilty of misconduct, negligence, inefficiency or any other disqualification and is by way of punishment dismissed or removed from service or reduced in rank." In this case, it is the contention of Mr. V.K.K. Menon that the appointment of the petitioner as Honorary Medical Officer was for a term of 5 years and under R.5 of Ext. R1 she has a right to continue in that post for 5 years. There has been a premature termination of service without the petitioner being given a reasonable opportunity to defend herself. 71. V.K.K. Menon that the appointment of the petitioner as Honorary Medical Officer was for a term of 5 years and under R.5 of Ext. R1 she has a right to continue in that post for 5 years. There has been a premature termination of service without the petitioner being given a reasonable opportunity to defend herself. 71. The further observation that is relied upon is contained at page 48 to the effect: "One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases herein before mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art.311. In other words and broadly speaking, Art.311 (2) will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank." 72. In my view, these observations relied upon by the learned counsel cannot support his contention that the order of termination in this case is one by way of punishment and that it entails also penal consequences or as observed by the Supreme Court in the said decision: "it puts an indelible stigma on the officer affecting his future career." 73. At page 43 of the reports Their Lordships refer to a number of decisions bearing on the question of construction of Art.310 and 311 and observe: "The cases, however, do not lay down or clearly indicate any test for ascertaining whether in any particular case a termination of service is inflicted by way of penalty so as to amount to dismissal, removal or reduction in rank within the meaning of Art.311 (2) or is brought about by the exercise of the right to terminate it arising out of the terms of employment agreed upon between the parties or contained in rules regulating the conditions of service subject to which the employment was made." At page 47 Their Lordships observe: "These statutory protections have now become constitutional protections as a result of the reproduction of the provisions of S.240 in Art.310 and 311 of our Constitution. It follows from the above discussion that both at the date of the commencement of the 1935 Act and of our Constitution the words dismissed, removed, and reduced in rank, as used in the service rules, were well understood as signifying or denoting the three major punishments which could be inflicted on Government servants. The protection given by the rules to the Government servants against dismissal, removal or reduction in rank, which could not be enforced by action, was incorporated in subs.(1) and (2) of S.240 to give them statutory protection by indicating a procedure which had to be followed before the punishments of dismissal, removal or reduction in rank could be imposed on them and which could be enforced in law. These protections have now been incorporated in Art.311 of our Constitution. The effect of S.240 of the 1935 Act reproduced in Art.310 and 311 as explained by this Court in S.A. Venkataraman v. Union of India ( AIR 1954 SC 375 ) has been to impose a fetter on the right of the Government to inflict the several punishments therein mentioned. Thus under Art. 311 (1) the punishments of dismissal or removal cannot be inflicted by an authority subordinate to that by which the servant was appointed and under Art.311 (2) the punishments of dismissal, removal and reduction in rank cannot be meted out to the Government servant without giving him a reasonable opportunity to defend himself. The principle embodied in Art.310(1) that the Government servants hold office during the pleasure of the President or the Governor as the case may be, is qualified by the provisions of Art.311 which give protection to the Government servants." After laying, down the nature of protection given to the Government servants under Art.311, Their Lordships sum up the net result of the discussion regarding Art.311 as follows at page 47: "The net result is that it is only in those cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore that if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated Cannot claim the protection of Art.311 (2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided." These observations emphasise, in my view, the position that only when dismissal, removal, or reduction in rank are sought to be inflicted, as and by way of punishment, that the protection guaranteed under Art.311 of the Constitution comes into full play. 74. Again, at page 48, after considering one test for determining whether the termination of service is by way of punishment or not, Their Lordships observe as follows: "To put in another way, if the Government has, by contract, express or implied, or under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Art.311." 75. Again, considering the question as to when a Government servant will be entitled to the protection of Art.311 (2), Their Lordships observe at page 49: "Cases may arise where the Government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification. If such a servant was appointed to a post, permanent or temporary, either on probation or on an officiating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government. Again if the servant was appointed to a post, permanent or temporary, on the express condition or term that the employment would be terminable on say a months notice as in the case of Satish Chander v. Union of India ( AIR 1953 SC 250 ) then the Government might at any time serve the requisite notice. In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course. In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course. But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences. In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences. In such a case the servant will be entitled to the protection of Art.311 (2)." The position is again summarised by Their Lordships at page 49 as follows: "The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India ( AIR 1953 SC 250 ) Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art.311 (2) as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh ( AIR 1954 SC 369 ). In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under R.52 of the Fundamental Rules. It is true that the 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, as Chagla, C. J., has said in Shrinivas Ganesh v. Union of India ( AIR 1956 Bom. 455 ) wholly irrelevant. 455 ) wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Art.311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency, or other disqualification, then it is a punishment and the requirements of Art.311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art.311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career." Their Lordships also lay down the real test for determining whether an order is not by way of punishment at page 49 as follows: "The real test for determining whether the reduction in such cases or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression terminate or discharge is not conclusive." 76. The use of the expression terminate or discharge is not conclusive." 76. Sri V.K.K. Menon urged that though ordinarily a termination of services brought about by the exercise of the power by the Government reserved under a contract or the rules may not be prima facie and per se a punishment, still taking all the other circumstances namely, the conduct of an enquiry and followed by a report Ext. R4 and the Government contemplating a disciplinary proceeding and their referring to complaint in Ext. R3, will clearly show that the order in question is only passed as a punishment. That is, even though the Government may have a right to terminate the services under R.5, in this case the Government have actually chosen to terminate the services of the petitioner by way of punishment as could be gathered from the other circumstances referred to. 77. The learned counsel also urged that the test laid down by Their Lordships, namely, of the order putting an indelible stigma on the officer affecting her future career is also satisfied in this case and the order also has visited the petitioner with penal consequences, namely, that she cannot hope to get reappointment as an Honorary Medical Officer in future and the order itself will be understood by the public as one of termination for misconduct. In my view the following principles clearly emerge from the above decision of Their Lordships of the Supreme Court: (1) Art.311 comes into play only in those cases where the Government intends to inflict the three forms of punishment of dismissal, removal, or reduction in rank. (2) If the termination is sought to be brought about otherwise than by way of punishment, the Government servant, whose services are terminated, cannot claim protection of Art.311(2). (3) If the Government has, by contract express or implied under the rules the right to terminate the employment at any time, then such termination in the manner provided by the contract or rules is prima facie and perse not a punishment and so does not attract the provisions of Art.311. (4) Termination of service brought about by the exercise of a contractual right or of compulsory retirement under terms of specific rule is not a dismissal or removal and it does not attract the provisions of Art.311 (2). (4) Termination of service brought about by the exercise of a contractual right or of compulsory retirement under terms of specific rule is not a dismissal or removal and it does not attract the provisions of Art.311 (2). (5) Misconduct, negligence, inefficiency and other disqualifications may have been the motive or even the inducing factor which has influenced the Government to take action under the terms of the contract of employment or a specific rule, but the motive operating on the mind of the Government is wholly irrelevant, so long as a right exists under the contract or the rules to terminate the services of the Government servant. (6) If the termination of service is founded on the right flowing from the contract or service rules, then prima facie the termination is not a punishment and carries with it no evil consequences and so Art.311 is not attracted. (7) Notwithstanding the power vested in the Government either under the contract or the rules to terminate the services of a Government servant, the Government may take the view that a simple termination of services is not enough and that the conduct of the servant is such that he deserves a punishment entailing penal consequences. (8) If the Government chooses to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirement of Art.311 must be complied with. (9) The test for determining whether the termination is or is not by way of punishment is to find out if the order for termination also visits the Government servant with any penal consequences. If the order entails or provides for forfeiture of pay, allowances, loss of security or stoppage or postponement of promotion those circumstances may indicate that although in form the Government have purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contractor employment or under the rules, in truth and reality, the Government has terminated the employment as and by way of penalty. 78. 78. Bearing in mind these principles which emerge from the decision of Their Lordships of the Supreme Court, in this case, it cannot be stated that the Government were of the view that a simple termination of the petitioners services under R.5 is not enough and that the conduct of the servant is such that she deserves the punishment entailing penal consequences. It cannot be stated in this case that the termination of service under Ext. R3 is founded on the petitioners misconduct, so as to constitute a punishment, and in turn attracting the provisions of Art.311. It is on the other hand a simple termination of the petitioners services by virtue of the unqualified and unrestricted powers vested in the Government under R.5 of Ext. R1. I will assume that the contention of the learned counsel that Ext. R3 is the result of various complaints stated to have been received by the Government as against the petitioner. That will not, in any way, advance the case of the petitioner because, as observed by Their Lordships of the Supreme Court, so long as the State has got the right to terminate the services under R.5, the motive operating in the mind of the Government is totally irrelevant. No doubt, there is that expression complaint used in Ext. R3. That will only show that the Government had knowledge of certain complaints made as against the petitioner. If the Government wanted to take action by way of punishment, it would have been perfectly open to the State to take action under the specific rule R.17 which provides for disciplinary action being taken as against Honorary Medical Officers. Notwithstanding that, the Government in this case, decided not to take disciplinary proceedings as against the petitioner, and decided to exercise their rights under R.5. 79. The order Ext R3 by itself does not place any disqualification as against the petitioner. The order does not any way debar her further applying for the post of an Honorary Medical Officer. As to whether she would be selected or not is a totally different matter. But the order, by itself, does not place any sort of bar against her claims being considered. The order does not any way debar her further applying for the post of an Honorary Medical Officer. As to whether she would be selected or not is a totally different matter. But the order, by itself, does not place any sort of bar against her claims being considered. The fact that the public, with whom the petitioner may come into contact, may proceed on the basis that the petitioner has been sent out for misconduct, has no basis in fact, because the order Ext. R3 does not purport to terminate her services as a punishment for any misconduct. 80. Again, in P. Balakotaiah v. Union of India ( AIR 1958 S.C. 232 ) at 238 Mr. Justice Venkitarama Aiyar observes. "But Art.311 has application only when there is an order of dismissal or removal and the question is whether an order terminating the services of the employees under R3 can be said to be an order dismissing or removing them. Now, this Court has held in a series of decisions that it is not every termination of the services of an employee that falls within the operation of Art.311, and that, it is only when the order is by way of punishment that it is one of dismissal or removal under that Article." 81. In Kamalakar v. Principal, Training College AIR 1960 Bom. 9 Dixit and Gokhale, JJ., following the decision of the Supreme Court in P.L. Dhingra v. Union of India AIR 1958 S.C. 36 have held that so long as the authorities do not make an order of discharge for misconduct but merely exercised their right to terminate the services of a Government servant, it is not open to an employee to complain that the authorities cannot terminate his services and that the termination is by way of punishment. The learned Judges also observed that in judging the question whether or not an order of discharge is accompanied by punishment, one must look to the language of the order of discharge to find out whether on the face of it, the order of discharge is by way of punishment. The learned Judges also observed that it is only if the authorities choose to discharge an employee by way of punishment, that the employee can claim the protection afforded by Art.311 of the Constitution. 82. The learned Judges also observed that it is only if the authorities choose to discharge an employee by way of punishment, that the employee can claim the protection afforded by Art.311 of the Constitution. 82. The decision of the Supreme Court in P.L. Dhingra v. Union of India AIR 1958 S.C. 36 has again been considered by the Supreme Court in State of Bihar v. Gopi Kishore AIR 1960 S.C. 689 . Mr. V.K.K. Menon quite naturally attempted to get support from this judgment, for his contention that when an inquiry has preceded the order of termination, the order must be considered to be one passed by way of punishment. 83. The Supreme Court in this case had to consider as to whether Art.311(2) of the Constitution had been violated in the case of a Government servant, who had been discharged as unsuitable on grounds of notoriety for corruption and unsatisfactory work in the discharge of his public duties. The material portions of the order of the Government discharging the Government servant in question have been extracted in full in the judgment of the Supreme Court. The matters mentioned therein clearly refer to various allegations made against the officer in question, enquiries having been made and findings recorded and the petitioner being asked to show cause regarding those matters. The explanation of the Government servant was considered by the Government to be unsatisfactory and the Government, by the order in question, directed the discharge from service of the officer for the reasons stated therein. 84. In the Patna High Court, where it was dealt with in the first instance Mr. Justice Ramaswami held that the provisions of Art.311 (2) of the Constitution have been violated. Mr. Justice Ramaswami also held that there has been a violation of the principles of natural justice. But the other learned Judge Sahai, J., did not express any opinion on the question relating to Art.311 (2) but agreed with the other learned Judge that there has been a violation of the principles of natural justice; and therefore, the writ petition filed by the officer was ultimately allowed by the High Court. 85. Against the judgment of the Patna High Court, the State of Bihar obtained special leave and took the matter to the Supreme Court. 85. Against the judgment of the Patna High Court, the State of Bihar obtained special leave and took the matter to the Supreme Court. Their Lordships of the Supreme Court were of the view that the controversy raised in that case, was completely covered by their previous decision given in P. L. Dhingra v. Union of India ( AIR 1958 SC 36 ). After considering the various principles laid down in the previous decision, Their Lordships observe at page 692: "It would thus appear that in the instant case though the respondent was only a probationer, he was discharged from service really because the Government had, on enquiry, come to the conclusion rightly or wrongly, that he was unsuitable for the post he held on probation. This was clearly by way of punishment and, therefore, he was entitled to the protection of Art.311 (2) of the Constitution. It was argued on behalf of the appellant that respondent, being a mere probationer, could be discharged without any enquiry into his conduct being made and his discharge could not mean any punishment to him, because he had no right to a post. It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way, without casting any aspersion on his honesty or competence, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any court. Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right in those circumstances, to insist upon the protection of Art.311(2) of the Constitution. That protection not having been given to him, he had the right to seek his redress in court. It must, therefore, be held that the respondent had been wrongly deprived of the protection afforded by Art.311(2) of the Constitution. His removal from the service, therefore, was not in accordance with the requirements of the Constitution." 86. That protection not having been given to him, he had the right to seek his redress in court. It must, therefore, be held that the respondent had been wrongly deprived of the protection afforded by Art.311(2) of the Constitution. His removal from the service, therefore, was not in accordance with the requirements of the Constitution." 86. The particular observations extracted above, if I may say so with respect, reinforces the earlier principle laid down that if the Government proceeds against a Government servant without casting any aspersions on his honesty or competence, his discharge would not in law, have the effect of removal from service by way of punishment and in those circumstances, the Government servant would have no grievance to ventilate in any court. It is only when the Government, instead of taking such an easy or direct course chooses to follow the more difficult one of starting disciplinary proceedings against an officer and branding him a dishonest and incompetent officer, that the latter has a right to insist upon the protection afforded to him under Art.311 (2) of the Constitution. In my view, the reliance placed upon this judgment by Mr. V.K.K. Menon is misplaced. As I have already mentioned, in the case before me the Government though once they decided to start disciplinary proceedings dropped that course and fell back upon their right under R.5. They have not branded the writ petitioner as in any way being guilty of misconduct on the basis of the allegations or complaint made against her. It is only a straight and simple termination under R.5 and nothing more. 87. Only two more decisions require to be noted and they are, the decision of the Allahabad High Court reported in Ram Dulari v. Inspectress of Girls Schools (AIR 1961 All. 64) and the latest decision of the Supreme Court in State of Orissa v. Ram Narayan Das ( AIR 1961 SC 177 ). 88. So far as the decision of the Allahabad High Court is concerned, it is not necessary for me to go into any great detail about the various aspects discussed by the learned Judges. 64) and the latest decision of the Supreme Court in State of Orissa v. Ram Narayan Das ( AIR 1961 SC 177 ). 88. So far as the decision of the Allahabad High Court is concerned, it is not necessary for me to go into any great detail about the various aspects discussed by the learned Judges. But that judgment is very useful for this purpose namely, the scope of the three decisions of the Supreme Court in P.L. Dhingra v. Union of India, AIR 1958 SC 36 , P. Balakotaiah v. Union of India AIR 1958 SC 232 and the State of Bihar v. Gopi Kishore AIR 1960 SC 689 have been fully considered and applied. In fact, that was a case where the Government initiated an inquiry into the conduct of a Government servant and actually framed charges also, but later on, ignoring the inquiry, terminated the services of the Government servant by giving one months notice. In spite of those circumstances, the learned Judges held that the termination does not in any way offend the provisions of Art.311 (2) of the Constitution. Copies of extracts have been given from the decisions of the Supreme Court. The learned Judges also placed considerable significance on the fact that the order dispensing with the services of the officer concerned did not impute any misconduct to the officer and it contained no stigma on the officer. Nor has it imposed any penalty on the officer which could in any way, be considered as resulting in penal consequences. 89. The last decision that requires to be considered is, as I mentioned earlier, the latest decision of Their Lordships of the Supreme Court in State of Orissa v. Ram Narayan Das AIR 1961 SC 177 . In the recent decision, Their Lordships have again examined the scope of their previous decisions in P.L. Dhingra v. Union of India AIR 1958 SC 36 and State of Bihar v. Gopi Kishore AIR 1960 SC 689 . That was a case where an inquiry as to whether a probationer was fit to be confirmed was conducted and the authorities came to the conclusion that he was not fit to be confirmed and in consequence, discharged the services of the probationer in question. That was a case where an inquiry as to whether a probationer was fit to be confirmed was conducted and the authorities came to the conclusion that he was not fit to be confirmed and in consequence, discharged the services of the probationer in question. At page 180 it is observed: "Whether it amounts to an order of dismissal depends upon the nature of the enquiry if any, the proceedings taken therein and the substance of the final order passed on such enquiry. Where under the rules governing a public servant holding a post on probation, an order terminating the probation is to be preceded by a notice to show cause why his service should not be terminated, and a notice is issued asking the public servant to show cause whether probation should be continued or the officer should be discharged from service the order discharging him cannot be said to amount to dismissal involving punishment. Undoubtedly, the Government may hold a formal enquiry against a probationer on charges of misconduct with a view to dismiss him from service, and if an order terminating his employment is made in such an enquiry, without giving him reasonable opportunity to show cause against the action proposed to be taken against him within the meaning of Art.311 (2) of the Constitution, the order would undoubtedly be invalid." 90. Finally after referring to their earlier decision in State of Bihar v. Gopi Kishore AIR 1960 SC 689 Their Lordships observed at page 189 as follows: "Therefore, that fact of the holding of an enquiry is not decisive of the question What is decisive is whether the order is by way of punishment in the light of the test laid down in Purushotham Lal Dhingras case ( AIR 1958 SC 36 ). We have carefully considered the evidence and the authorities to which our attention has been invited and we are definitely of opinion that the High Court was in error in holding that the order discharging the respondent from service amounted to dismissal which attracted the protection of Art.311 (2) of the Constitution." 91. Having regard to the various decisions referred to above, I am of the view that the order under attack namely, Ext. R3, communicated under Ext. Having regard to the various decisions referred to above, I am of the view that the order under attack namely, Ext. R3, communicated under Ext. P2, considered in the light of the tests laid down by Their Lordships of the Supreme Court in P.L. Dhingra v. Union of India AIR 1958 SC 36 is not an order passed by way of punishment. On the other hand it is only a simple termination of the petitioners services by the Government under R.5 of Ext. R1. Therefore the provisions of Art.311 (2) are not attracted and the second contention of the learned counsel, based upon non compliance of those provisions, has to be negatived. 92. To conclude, the petitioner must be considered to be holding a civil post in the State and she would be a person who is entitled to the protection afforded by Art.311 of the Constitution. But the order in question is not one passed by way of punishment, and it is only a simple termination of the petitioners services under R.5 of Ext. R1. Therefore, the petitioner is not entitled to call in aid the provisions of Art.311 (2) of the Constitution. Those provisions have no application to the present case. 93. In the result, the writ petition fails and is dismissed with costs of the respondents; one set.