JUDGMENT : P.K. Mohanti, J. - Petitioner seeks issuance of a writ quashing the order of termination of his service passed by the Deputy Accountant General (Administration), Orissa. 2. Petitioner was appointed as a temporary upper division clerk in the Office of the Accountant General, Orissa, Bhubaneswar on 9-2-1973. His service was terminated by the order in Annexure in exercise of the powers under the proviso to Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. On 27-5-1974 he submitted a representation to the Comptroller and Auditor General of India, New Delhi which as rejected on 9-12-1971 vide Annexure-3. Then he filed a writ application in O.J.C. No. 712 of 1975 for quashing the order of termination on the ground that he was not paid his salary forthwith along with the order of termination in accordance with Rule 5 of the said Rules, but subsequently he withdrew that writ application. His main contentions in the present writ application are (1) that the order of termination of service is violative of the equality clause enshrined in Articles 14 and 16 of the Constitution of India because persons junior to him have been retained in service while his service was termination; (2) that the order has been passed as a punitive measure without drawing up a formal disciplinary proceeding against him and (3) that the order has been passed mala fide. 3. The opposite parties denied the allegation of mala fide on the ground of vagueness. With regard to the Petitioner's allegation that the order was passed as a punitive measure, the opposite parties contended that the service of the Petitioner was terminated by an innocuous order in exercise of the power under Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965 and the order does not visit him with penal consequences. As regards the Petitioner's allegation of arbitrary discrimination, the opposite parties took the stand that the mere fact that his juniors were retained in service does not amount to discrimination. It was further contended that the present writ application having been filed after a lapse of about five years it is liable to be dismissed on the ground of delay and laches. 4. The allegation of mala fide is very vague. It was further contended that the present writ application having been filed after a lapse of about five years it is liable to be dismissed on the ground of delay and laches. 4. The allegation of mala fide is very vague. There is no specific allegation that the opposite parties were prompted by any ulterio motive or that they passed the impugned order to feed fat any grudge against the Petitioner. A discriminatory order is not necessarily mala fide. A heavy burden lies on the person who alleges mala fide and in our opinion the Petitioner has failed to discharge the same. 5. As regards arbitrary discrimination, the Petitioner asserted in paragraph 11 of his writ petition that he had been unfairly discriminated inasmuch as while terminating his service his juniors in the cadre were allowed to continue. A list of five juniors who have been retained in service was furnished in paragraph 3 of the writ petition. In reply to the above averment in the writ petition, the opposite parties contended that the mere fact that the Petitioner's juniors were retrained in service does not amount to discrimination as the service of the Petitioner was terminated under Rule 5 of the aforesaid rules without assigning any reasons. 6. Mr. Rath appearing on behalf of the Petitioner contended that if it be a termination simpliciter it would be violative at Articles 14 and 16(1) of the Constitution in the sense that the persons junior to the Petitioner have been retained in service and they have not been shown to have any better service record than the Petitioner. He relied on a recent decision of the Supreme Court in the case of The Manager, Government Branch Press and Another Vs. D.B. Belliappa Wherein it was held that even in case of temporary employees, If juniors are retained and a senior, although temporarily employed, is thrown out by taking recourse to the terms of employment there would be an infraction of Articles 14 and 16 of the Constitution. The learned Standing Counsel (Central) also relied upon this decision in support of his contention that there would be no infraction of Articles 14 and 16 if it can be shown that the Petitioner's service was terminated because his work was found to be unsatisfactory. The learned Standing Counsel (Central) also relied upon this decision in support of his contention that there would be no infraction of Articles 14 and 16 if it can be shown that the Petitioner's service was terminated because his work was found to be unsatisfactory. In order to fortify his stand the learned Standing Counsel produced at the time of hearing the file relating to the termination of the Petitioner's service From the notices and order recorded in the file it appears that the Petitioner's service was terminated on the following grounds: (i) that he was most irregular in attending office and was absenting from office without any prior intimation; (ii) that he was involved in some criminal cases; and (iii) that he was prosecuting his studies in the law college without permission of the authorities. Since these grounds were not taken in the return filed by the opp. parties, the Petitioner had no opportunity of controverting them. The opp. parties did not plead that they should not be held to have acted in contravention of Articles 14 and 16 of the Constitution because the Petitioner stood as a class by himself. It has not been shown to us that any adverse remark was recorded in the Confidential Character Roll of the Petitioner nor has it been shown to us as to whether any of the juniors who have been retained in service has a better service record than the Petitioner. No special circumstance or reason was disclosed by the opp parties in their return which would justify discriminatory treatment to the Petitioner as a class apart from his juniors who have been retained in service. In paragraph 12 of his writ petition the Petitioner specifically alleged that he had not been found to be unsuitable nor his work had been found to be unsatisfactory and that he had been removed from service arbitrarily in gross violation of Articles 14 and 16 of the Constitution. These allegations were not controverted by the opp. parties. In the impugned order (Annexure-1) no reason has been assigned for termination the service of the Petitioner and in the return it is stated that the service of the Petitioner was terminated without specifying the ground for termination in accordance with the provisions of Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965. parties. In the impugned order (Annexure-1) no reason has been assigned for termination the service of the Petitioner and in the return it is stated that the service of the Petitioner was terminated without specifying the ground for termination in accordance with the provisions of Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965. It was stated in paragraph 7 of the return that the appointing authority was to satisfy itself by obtaining necessary information fur consideration as to whether the service of a Government servant would be dispensed with and after going through the information so obtained the appointing authority was to pass order of termination by virtue of the powers conferred on it in terms of the order of appointment. But the opp. parties withheld the information from the Court. 7. In The Manager, Government Branch Press and Another Vs. D.B. Belliappa their Lordships laid down as follows: ...The protection of Articles 14 and 16 will be available even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors similarly circumstanced. It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to term innate the latter's employment without notice. But such discretion has to be exercised in accordance with reasons and fair play and not capriciously. Bendt of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic policy is founded.... Since a charge of arbitrary discrimination has been levelled against the opp. parties. it was incumbent on them to show that the Petitioner stood as a class by himself. There was absolutely no allegation in the return filed by the opp. parties that the Petitioner was considered unsuitable or that his service was found to be unsatisfactory. In course of hearing of this writ application when the decision of the Supreme Court in The Manager, Government Branch Press and Another Vs. D.B. Belliappa was cited on behalf of the Petitioner, the opp. parties finding themselves in an uncomfortable position tried to impress upon us by producing their office file that the Petitioner's service was terminated on account of negligence of duty and misconduct, The opp. D.B. Belliappa was cited on behalf of the Petitioner, the opp. parties finding themselves in an uncomfortable position tried to impress upon us by producing their office file that the Petitioner's service was terminated on account of negligence of duty and misconduct, The opp. parties did not however produce any material to show that persons junior to the Petitioner have better service records than the Petitioner. Since no material with regard to their records of service was produced. we are not in a position to accede to the contention that the Petitioner stood as a class by himself, We hold that the equality clause enshrined in Articles 14 and 16 of the Constitution has been contravened and the impugned order is liable to be quashed. 8. The next question that arises for consideration is whether the order of termination was passed as a punitive measure. In para 10 of the writ petition, the Petitioner specifically averred that if the file relating to the termination at his service would be called for, it would show that he was really punished without drawing up a formal disciplinary proceeding against him. In reply to this averment the opp. parties stated in para 7 of their return that the file referred to in paragraph 10 of the writ petition was not relevant. On 23.10.1979, the Petitioner filed an application for a direction to the opp parties to produce the file asserting that It would clearly show that though the order of termination was innocuous on the face at it yet it was punitive in nature When this application came up for hearing on 26.10.1979 the learned Counsel for the opp. parties agreed to keep the file ready with him and make it available at the time of hearing, if necessary, subject to the claim of privilege if any to be raised at the time of hearing. The opp. parties produced the file on 26-11-1980 in course of the hearing of the Writ application when they were placed in an uncomfortable position being confronted with the decision of the Supreme Court in The Manager, Government Branch Press and Another Vs. D.B. Belliappa. On a reference to the order dated 2-4-1974 recorded to the file, we are inclined to hold that the impugned order is founded on charges of misconduct and negligence of duty. D.B. Belliappa. On a reference to the order dated 2-4-1974 recorded to the file, we are inclined to hold that the impugned order is founded on charges of misconduct and negligence of duty. Though the action taken by the authorities is in an innocuous form, the real intent of it is penal. As we shall presently discuss the substance and not merely the form of an order is relevant for determining as to whether the order of termination is a termination simpliciter or by way of punishment. 9. In the case of Samsher Singh Vs. State of Punjab and Another a 7-Judge Constitution Bench of the Supreme Court after fererring to the earlier decisions on the point observed in para 63 at page 2205 as follows: 63. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(i) of the Constitution. In paragraph 66 at page 2206 the Court held: 66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entit1ed to attract Article 311. Again in paragraph 67 it was observed: 67. An order terminating the services of a temporary servant or probationer under the rules of employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and If an enquiry is not in fact proceeded with Article 311 Will not be attracted unless it can be, shown that the order though unexceptionable in form is made following a report based on misconduct.... 10. In the case of State of U.P. and Others Vs. Sughar Singh their Lordships in paragraph 12 at page 428 observed as follows: 12. 10. In the case of State of U.P. and Others Vs. Sughar Singh their Lordships in paragraph 12 at page 428 observed as follows: 12. In many cast's though Government take action under the terms of a contract of employment or under the specific service rules for the purpose of terminating the service or reducing the rank of an officer the teal motive or inducing factor which influences the Government to take action is different and is connected with some disqualification or inefficiency of the officer. In other words, Government, while pretending to act in terms of the contract of service of service rules, in reality wants to get rid of the officer concerned or to reduce him to a lower rank by way of punishment for his misconduct or inefficiency or disqualification. In such a case, the action taken by Government is in an innocuous form but the real intent of it is penal.... 11. In the case of State of Punjab v. Prakask Singh Oheema 1975 B.B.C.J. 386 it has been again reiterated by the Supreme Court that an order terminating the service of a temporary servant, if it is by way of punishment will attract Article 311 of the Constitution and in that context also it has been reiterated that the form of the order is not conclusive, it is the substance of the matter that has to be looked into. 12. In a recent decision of the Supreme Court in the case of State of Maharashtra v. Veerappa B. Baboji AIR 1980 S.C. 42 , it was indicated: ...There may still be another kind of case where although the termination of services is intended by way of punishment, the order is framed as a termination simpliciter. In such a case, if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect It if the procedural safeguards contemplated by Article 311(2) of the Constitution have not been satisfied.... 13. Having regard to the aforesaid pronouncements of the Supreme Court and having gone through the file relating to the termination of service of the Petitioner, we have no doubt that the impugned order is founded on allegation of misconduct and negligence of duty. 13. Having regard to the aforesaid pronouncements of the Supreme Court and having gone through the file relating to the termination of service of the Petitioner, we have no doubt that the impugned order is founded on allegation of misconduct and negligence of duty. These are positive allegations, which, if established, would justify removal of a Government servant from service. These allegations could not form basis of the impugned order unless the Petitioner had been given a reasonable opportunity of being heard, which was obviously not afforded. The provisions of Article 311 of the Constitution were clearly attracted and it was not open to the authorities to have terminated the service by giving the order a cover of termination simpliciter. The order must therefore, be struck down fat noncompliance with the requirements of Article 311 of the Constitution. 14. It is true that the present writ application has been filed five years after the Impugned order was passed. But in order to determine whether the Petitioner is guilty of delay and laches, the facts of each case have to be taken into consideration. In the present case, the impugned order was passed on 2-4-1974 and the representation made by the Petitioner was rejected on 26-7-1974. Then in 1975 the Petitioner filed a writ application in O.J.C. No. 712 of 1975 which was allowed to be withdrawn in 1977 on valid grounds. The present writ application was filed on 11-4 -1979. In these circumstances, the delay cannot be considered to be fatal to the present writ application. Moreover, in the absence of a plea that on account of the delay the opp. parties have been prejudiced in any manner, mere delay cannot be considered as a bar to the entertaining of this writ application. 15. In the premises aforesaid, the Petitioner must succeed and the impugned order of termination must be quashed. 16. The writ application is allowed, but in the circumstances without any order as to costs. The impugned order in Annexure is quashed and It is declared that the Petitioner should be treated as still continuing in service and entitled to all service benefits. 16. The writ application is allowed, but in the circumstances without any order as to costs. The impugned order in Annexure is quashed and It is declared that the Petitioner should be treated as still continuing in service and entitled to all service benefits. The authorities would, however, be entitled to consider and decide the question, after giving the Petitioner a reasonable opportunity of being heard, It the Petitioner is liable to be removed from service on account of the afforested allegations or any other allegations which may justify removal from service. N.K. Das, J. 17. I agree. Final Result : Allowed