Judgment Ramratna Singh, J. 1. This appeal under the Letters Patent and the cross-objection, are directed against a decision of the learned Single Judge of this Court setting aside the concurrent findings of the trial court find the first appellate court. They arise out of a suit by respondent No. 3. for a declaration that the notice of discharge served on, him and the consequent order of discharge from the service were illegal, void and inoperative on the ground that he was not given the second notice for showing cause against tho action proposed to be taken in regard to him as required by Sec.240 (3) of the Government of India Act, 1935. There were other grounds also pleaded by the plaintiff-respondent in the suit; but, as they were purely questions of fact, they were not considered by the learned Single Judge in second appeal. 2. The terms of appointment of the plaintiff as a temporary engineering overseer of the Government are contained in tho letter of appointment which reads thus : "B. Ramkishore Lal is appointed as temporary engineering overseer on Rs. 80.00 in the scale of Rs. 52-4-124 and is posted to Patna Sadar. He is directed to join at once." By memo No. 2105 dated the 24th March, 1949 issued by the Additional Director of Agriculture, Bihar, respondent No. 1 was transferred to Khunti. On receipt of this memo, he submitted an application to the Additional Director on the 29th March, 1949 to the following effect; "I beg to submit that both in my application and at the interview for my appointment to the post I made it perfectly clear to the Deputy Director of Agriculture, Patna Range who made the appointment that I could accept the appointment only if I was posted in the Patna Sadat subdivision where I have and had to make treatment of my wife in the Patna General Hospital oi her frequent Gall-Bladder troubles and on this stipulation I was appointed and posted to the Patna Sadar Subdivision after consultation with you and your approval. If you like, I may send you in original tho XRay examination of my wifes diseases. You may, if you like also consult the Deputy Director of Agriculture, Patna Range, who made the appointment whether my posting to the Patna Sadai (subdivision is not one of the terms of my appointment. If you like, I may send you in original tho XRay examination of my wifes diseases. You may, if you like also consult the Deputy Director of Agriculture, Patna Range, who made the appointment whether my posting to the Patna Sadai (subdivision is not one of the terms of my appointment. I am, therefore, unable to leave Patna whether in service or without it without taking risk of the life of my wife which I am not prepared to take nor can you, I have (hope?) advise me to take." Then, the Additional Director heard the plaintiff-respondent personally and passed the following order on the 29th March, 1949 : "Heard the applicant personally. He says that he joined this post on the undertaking from the D. D. A. that he would not be transferred from Patna Sadar, he cannot show anything in writing to support this claim, nobody can be appointed in this post with such undertaking. Hence, I cannot accept this. As regards his wifes illness, I offered him that I can post him to a district station where he will get medical facilities. He did not agree to this. He is not prepared to move from Patna Sadar. He asked me to send him or discharge him. Under the circumstances, I have no alternative. Please issue a discharge notice on the applicant at once." The question is, whether in these circumstances respondent No. 1 was entitled to an opportunity to show cause against the order of discharge. The learned single Judge observed with relerence to the words send him or discharge him that these words did not amount to resignation. He observed further that by the statements made by respondent No. 1 in his application or before the Additional Director he meant that he may have to continue in service after his transfer to (from?) Patna, to some other place only on taking the risk of the life of his wife, and at the same time he expressed the hope that the Additional Director of Agriculture would not advise him to take that risk. The learned Judge also observed that the giving of one months notice, to the respondent, of discharge indicated that the Additional Director did not interpret the statement of respondent No. 1 as amounting to resignation. 3. We are, however, unable to agree with the learned single Judge. The learned Judge also observed that the giving of one months notice, to the respondent, of discharge indicated that the Additional Director did not interpret the statement of respondent No. 1 as amounting to resignation. 3. We are, however, unable to agree with the learned single Judge. The words send him or discharge him have to be read with reference to the context. The contention of respondent No. 1 that he was appointed on the condition that he would always remain posted to Patna Sadai was rejected by the trial court as well as by the first appellate court; and after this concurrent finding of fact, this contention could not be considered in the second appeal. It is remarkable that in his application dated the 29th March, 1949, respondent No. 1 said that he was unable to leave Patna whether in service or without it. It is true that he also said that he could not do so without taking the risk of the life of his wife; but, at the same time he said that he was not prepared to take this risk. This indicates his attitude. Then, at the personal hearing, the Additional Director offered to post him to a district station where he would get medical facilities; but respondent No. 1 did not agree to this proposal and told the Additional Director that he was not prepared to move from Patna Sadar at any cost. In the circumstances, the contention of the learned Additional Government Pleader that the attitude taken by respondent No. 1 in his application dated the 29th March, 1949 as also before the Additional Director of Agriculture amounted to his voluntary willingness to be relieved of the job, unless he was kept permanently at Patna Sadar is sound. The fact that the authorities gave him one months notice of discharge does not justify the only inference that they did not treat his attitude as tantamount to be relieved from, the job; and, it is possible that the authorities served the notice as an abundant caution. 4. The fact that the authorities gave him one months notice of discharge does not justify the only inference that they did not treat his attitude as tantamount to be relieved from, the job; and, it is possible that the authorities served the notice as an abundant caution. 4. Even if it be assumed for the sake of argument that the attitude of the plaintiff-respondent did not amount to his request to be relieved of the job, in case he could not be kept at Patna Sadar, he has no cause of action inasmuch as his discharge after one months notice did not amount to any punishment and, therefore, the relevant provision of Sec.240 (3) of the Government of India Act, 1935 was not attracted. That provision is now incorporated in Article 311 of the Constitution. In Parshotam Lal Dhingra V/s. Union of India, AIR 1958 SC 36 , their Lordships said : "In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of sup-perannuation or is compulsorily retired after having put in the prescribed number of years service or the post is abolished and his service cannot be-terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry alter due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed of removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may bo terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service." In the present case, the plaintiff-respondent was appoint on a purely temporary basis and his appointment was not for a certain specified period, it is not his case that his temporary service had ripeued into a quasi-permanent service. Hence, he could be discharged on a reasonable notice; and, the notice of one month was certainly reasonable. In the same decision, while discussing the question whether a particular order of discharge amounted to punishment or not, their Lordships-said : "The use of the expression terminate or discharge is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? It the case satisfies either of the two tests then it must be held that the servant has been punished end the termination of his service must be taken, as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation or the constitutional right of the servant." The evil consequences, referred to in the above quotation, were explained by their Lordships in these words : "Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of emlpoyment, express or implied, or under the rules governing the con- ditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary cither on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as delined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself bo a punishment. 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 hereinbefore mentioned, the termination of his service will by itself be a punishment and be will be entitled to the protection of Article 311. In other words and broadly speaking, Article 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. To put it 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 Article 311." In the present case, respondent No. 1 had no right to the post which he was holding on a purely temporary basis, and, there is, therefore, no question of forfeiture of any right or evil consequences of loss of pay and allowances, nor the discharge of respondent No. 1 can be said to have put any tigma on him affecting his future career. Hence, I cannot be said that the employment of respondent No. 1 was terminated by way of penalty. Shri Basudeva Prasad, who appeared for the respondent, submitted that it was not open to the State of Bihar in the present appeal to contend that the order of discharge did not amount to an order of punishment, because the only question agitated on behalf of the State before the learned Single Judge was that the order of discharge was passed in acceptance of the alternative request of the plaintiff-respondent; but the learned Judge set aside the decisions of the courts below on the ground that respondent No. 1 had not been given an opportunity to show cause against the proposed action of discharge as required by Sec.240(3) of the Government of India Act, 1935, and such a notice would be neccessary only if respondent No. 1 had been discharged by way of penalty. It was, therefore, absolutely necessary in the present appeal to consider the question whether any penalty has been imposed on respondent No. 1, and the State Was, therefore, entitled to submit that no penalty had been imposed. 5 There was a cross-objection by respondent No. 1, but it contains only the arguments in support of the decision of the learned Single Judge, and these arguments have been discussed earlier. In fact, Shri Basudeva Prasad, who appeared for the plaintiff-respondent, did not deal at all with the cross-objection, and it must be dismissed. 6. In the result, the appeal is allowed with costs throughout, and the judgment of the learned Single Judge dated the nth December, 1957 is set aside. Kanahaiya Singh, J. 7 I agree.