R. D. Saxena v. State of U. P. — 1968 DIGILAW 75 (ALL)

JUDGMENT M. H. Beg., J. - Each of the five petitioners, R. D. Saxena, M. R. Sangal, K. P. they raised common questions of fact and law for decision. Each petitioner was employed as a temporary Government servant on the post of a District Supply-cum Town Rationing Officer at the time when his services were terminated by an order dated 17th April, 1967. Identically worded orders, passed on the same date against the petitioners, are challenged on facts and circumstances detailed below. 2. A complaint or more than one complaint had been received against each petitioner and had been sent to the Vigilance Commission of U. P. for investigation. An enquiry was thus pending against each petitioner when a new Government came into power in Uttar Pradesh in April, 1967, and embarked upon a declared policy of a war against corruption in the administration. A list of names of those Government servants against whom proceedings were pending before the Vigilance Commission was called for by the new Government. The names of the five petitioners were the only names of temporary officers on the list sent up with a report containing the opinion that there was no legal obstacle in the way of termination of services of these temporary employees. 3. It may be mentioned here that the Supply Department had acquired an unsavoury reputation and there was an impression among members of the public that corruption and dishonesty were rampant there. Consequently, it could not be said that an effort to eliminate corrupt officials from that Department was anything other than laudable and highly desirable. No activity of a welfare State can be successful without efficient and honest Government Officers who could execute the policies of the State without misusing their powers. The cases of the petitioners, however, do not appear, from the material on the record and from the file sent to the Chief Minister which was also sent to this Court, to have been individually considered by anybody before their services were terminated. The petitioners complained that no opportunity was given to any of them to put forward any explanation in defence of any allegations before it was decided to terminate their services in circumstances which clearly indicated that punishment was the real object. 4. The petitioners complained that no opportunity was given to any of them to put forward any explanation in defence of any allegations before it was decided to terminate their services in circumstances which clearly indicated that punishment was the real object. 4. The petitioners sought to make a great deal out of the fact that the matter went up to the Chief Minister who, after examining the file, gave the advice that it was necessary to take severe and swift action against officers who were either corrupt or believed to be corrupt. The file certainly discloses a very honest expression of opinion by the Chief Minister that the proposed action, even if it appeared to be harsh and 'unwarranted by facts', should be taken. It was observed there by the Chief Minister that he would (to quote exact words) "prefer injustice to some individuals rather than, our people should continue to suffer and go hungry for want of food and corrupt officers make their pile". Hence, the petitioners pleaded that judgment had been really passed against them on bloc by the Chief Minister himself without either hearing them or anybody examining any case individually. 5. The petitioner, R. D. Saxena, filed an affidavit that he had actually seen the opinion and direction given by the Chief Minister and gave his own interpretation to it. He stated that it was to the effect that "even if one or two innocent persons have to be sacrificed in this process," termination of the services of the temporary Government servants on the list should take place forthwith. He stated that it was to the effect that "even if one or two innocent persons have to be sacrificed in this process," termination of the services of the temporary Government servants on the list should take place forthwith. On the other hand, Shri R. A. Chisti, Secretary, Food and Civil Supplies Department, gave his own rather elaborate explanation of the Chief Minister's opinion as follows in a counter- affidavit filed in this court : "The Chief Minister has been of the view that, with the acute food problem facing the State, public servants in the Food Department should be strictly honest, and that, in case of serious complaints against the temporary officers, if a conclusion is reached, in view of complaints and allegations against them, that their services should be terminated, it would be desirable to terminate their services under the powers vested in the Government, in respect of temporary officers, even if on the assumption that an elaborate enquiry may indicate that the termination was not warranted because it would not be right to allow the people to continue to suffer, under such officers." 6. The file, which was placed before this Court and was examined by it at the time of the admission and at the hearing of the petitions, does not contain either the exact language used by the petitioner or that used by Shri Chisti by way of explanation of what the Chief Minister really meant. The statement contained in paragraph 15 of the counter-affidavit of Shri Shiva Prasad Srivastava, Superintendent, Food and Civil Supplies Department, that there was "no order of the kind" by the Chief Minister, as alleged by the petitioner, even if technically correct, tries to conceal the fact that the Chief Minister had expressed the opinion mentioned above even if it was not in the form of an "order". The suggestion made on behalf of the petitioners that they were hastily chosen victims of a policy of mere make believe and window dressing and that their services were terminated only to impress the public that the new Government was more efficient and ruthless than its predecessor in dealing with corruption, so that the action taken against them was mala fide in fact or dishonest, is not substantiated. What could be held to be proved was that the new Government had launched a drive against corrupt officers, which was publicised, and that the services of the petitioners were terminated as a part of an attack upon corruption. 7. The fact that the new Government had launched a campaign against corruption, which involved the petitioners, was given publicity by newspapers. On 8th May, 1967, the National Herald published the following news items- "SERVICES OF FIVE D. S. Os. TERMINATED Lucknow-Sunday-Services of the five District Supply Officers have been terminated and the District Supply Officer has been suspended pending an enquiry by the State Government on "serious charges of corruption and misuse of their official position", according to an official spokesman. A senior Marketing Inspector has also been removed from service on the same charges, he added-PTI." 8. No attempt was made by anyone to deny the correctness of this news which was widely circulated. Again, the All-India Radio broadcast a similar news item from Lucknow on or about 8th May, 1967. The correctness of assertions of the petitioner about the news published by the National Herald and broadcast by the All-India Radio was not denied by the opposite parties, but it was stated, in the counter-affidavit filed in reply, that the publication of this news was not authorised by anybody on behalf of the Government. 9. K. P. Goel, petitioner in Writ No. 2833 of 1967, stated that, on or about 15-h May, 1967, the Hon'ble Chief Minister of U. P., Shri Charan Singh, called a press conference at the Secretariat, and a cyclostyle statement, giving the details of "disciplinary action" taken since 1-4-1967 against gazetted officers, including the above-mentioned five District Supply Officers, was then handed over to the Press on behalf of the Government. In paragraph 16 of the counter-affidavit sworn by Shri Venkatramani, Deputy Secretary, Food and Civil Supplies Department of the Government of U. P., it is admitted that the above-mentioned statement made by K. P. Goel in paragraph 22 of his petition is "correct and a matter of record." The cyclostyled statement, of which a copy has been filed, may here be reproduced verbatim :- "Details of disciplinary action taken against Gazetted Officers since April, I, 1967. 1. 1. Orders of suspension have been passed against 20 officers on the recommendation of Vigilance Department or otherwise :- (i) I. A. S. 1 (ii) P. C. S. 3 (iii) U. P. P. S. 1 (iv) Judicial Officers 2 (v) D. S. O. 1 (vi) District Cane Officer 1 (vii) P. M. S. (Doctors) 2 (viii) Block Development Officer 1 (ix) Asstt. Engineer (Irr.) 1 (x) Transport Department 7 R. T. O. 2 A. R. T. O. 1 Gen. Manager 1 Accounts Off. 1 Serv. Manager 1 Asstt. Service Manager. 1 2. Eleven DSOs have been removed from their jobs. Services of 5 have been terminated and the other 6, who had not been found fit by the PSC some 18 months ago, have been reverted. They have all been replaced by Deputy Collectors. 3. One Sales Tax Officer and one Assistant Sales Tax Officer have been reverted. 4. No. of officers against whom open enquiries have been instituted- District Magistrate 2 I. P. S. Officers 2 P. C. S. Officers 2 P. W. D. Engineers 3 Irrgn. Engineers 6 P. M. S. Doctors 2 Judicial Officers 3 Sales Tax Officer. 1 ____ 21 ____ 5. Secret enquiry has been ordered against the conduct of two District Magistrates." 10. Thus, undisputed facts disclose that there was an understandable drive by the new Government of Uttar Pradesh, in April, 1967, to root out corruption and to remove dishonest officers of the State. The contents of the document reproduced above placed the action taken against the five petitioners under the heading: "Details of disciplinary action." The termination of their services is placed in the same category as any other "Disciplinary action". It has been specifically stated in this document that 11 District Supply Officers have been "removed," services of the five of whom have been terminated, and the other six have been reverted. In other words, the termination of the petitioners' services was described as "removal" which is a punishment, in an officially publicised document issued on behalf of the government. The inescapable inference, from the above mentioned facts and sequence of events, is that the petitioners have been tarred and branded as corrupt officers, although the notices of termination of their services purport to have been issued in accordance with the Notification No. 23011I-B-1953 dated. January 30, 1953, and are couched in language which is innocuous. 11. The inescapable inference, from the above mentioned facts and sequence of events, is that the petitioners have been tarred and branded as corrupt officers, although the notices of termination of their services purport to have been issued in accordance with the Notification No. 23011I-B-1953 dated. January 30, 1953, and are couched in language which is innocuous. 11. Before proceeding fur her, I may deal with the contentions based upon the alleged invalidity of the rules for termination of the services of temporary Government servants contained in the above mentioned Notification of 80th January, 1953, and the alleged inapplicability of these rules to the cases of the petitioners. It is contended on behalf of the petitioners that powers conferred by the proviso to Article 309 of the Constitution are only capable of exercise by the Governor himself. The Notification, however, purports to have been signed by the Chief Secretary, Shri B. N. Jha, underneath the endorsement: "By order". It is contended that this power could not be exercised by any authority or officer on behalf of the Governor, but it had to be personally exercised by the Governor before whom the rules ought to have been placed. It is submitted that the Governor had to consider and sign the Notification showing that the above-mentioned rules were made by the Governor himself. The petitioners relied, for this contention, on certain observations, made in Jayanti Lal Amratlal Shodan v. F.N. Rana, A.I.R. 1964 SC 648, where a question relating to the ambit of Article 258 (1) of the Constitution, appertaining to the delegation of powers in respect of any matter to which the executive power of the Union Government extends, was under consideration. It is evident that the observation, of the majority of their Lordships of the Supreme Court, that power to make rules regulating recruitment and conditions of service of persons appointed to posts and services in connection with the affairs of the Union under Article 309 is a power which could not be delegated was only a reference to an argument advanced in that case and not the opinion of the Court. The majority of their Lordships did not accept the argument. The majority of their Lordships did not accept the argument. Moreover, the proviso to Article 309 of the Constitution expressly provides that "the rules may be made by such person as the Governor may direct" in the case of services and posts in connection with the affairs of a State. If the proviso to Article 309 of the Constitution specifically authorises the Governor to direct some other person to make such rules on his behalf, I do not think that the contention that it was a power vested in the Governor as "persona designate" is tenable. It does not appear to me that the Supreme Court laid down any such proposition in the case cited on behalf of the petitioners. The Supreme Court was neither construing the proviso to Article 309 nor dealing with any rules framed under it. 12. Reliance was placed on behalf of the opposite parties on sub-clauses (2) and (3) of Article 166 of the Constitution. It was pointed out that the Governor had himself made rules for the conduct and transaction of the business of the Government of the State and that the impugned rules had been framed by the U. P. cabinet under the authority duly conferred by the Governor by means of rules properly made by the Governor. It was also contended that the Notification having been duly authenticated under S. 166 (2) of the Constitution, its validity could not be questioned. Apart from this, it was also pointed out, on behalf of the opposite parties, that the power to terminate the services is included in the power to appoint by reason of Section 16 of the U. P. General Clauses Act see P.K. Bose v. C.J. of Calcutta, A.I.R. 1956 SC 285. Hence, it was rightly urged, the only effect of the invalidity of the rules prescribing the mode of termination of services of temporary Government servants would be to disentitle persons affected to the benefit of a month's notice or salary in lieu of notice. I, therefore, reject the contention that there was a legal obstacle in the way of exercise of power to terminate services because of any invalidity of the notification containing the rules for such termination of services. 13. I, therefore, reject the contention that there was a legal obstacle in the way of exercise of power to terminate services because of any invalidity of the notification containing the rules for such termination of services. 13. It was then contended that the Notification contains Rule 3, which makes it clear that it is applicable only to those persons who are appointed to civil posts after the Notification. Each of the petitioners had put in service extending over a number of years going back prior to January 30, 1953. On behalf of the opposite parties, it was pointed out that each of the petitioners was appointed as a District Supply-cum-Town-Rationing Officer only after 30th January, 1953, so that the rules contained in the Notification were applicable. As the services terminated were those of Supply Officer appointed to their posts after 1953, the rules were prima facie applicable. The tenures of other posts occupied by the petitioners temporarily before their appointments as District Supply Officers had automatically ended upon their appointments as District Supply Officers. 14. The next question raised was whether the petitioners had been discriminated against and denied the protection of Article 16 of the Constitution inasmuch as they were said to be arbitrarily and unreasonably chosen for the termination of their services. The result was that persons junior and less qualified than the petitioners continued in service whereas the services of the petitioners had been terminated even though the posts held by them were not abolished. There was no scheme of retrenchment in operation. 15. The petitioners relied on Sukhnandan Thakur v. State of Bihar, A.I.R. 1957 Patna 617 where, with regard to the test to be employed by the Government in selecting candidates for employment, Ramashwamy, J. held that the test had to be rational or reasonable, that is to say, not based "on extraneous or collateral considerations which should have no relevance in a matter of this description." A basis of selection giving preference to "political sufferers" and "displaced persons" was held to be a test mixed with irrelevant considerations in contravention of the guarantee given by Article 16 (1) of the Constitution. A reference was also made to Doddaiah v. State, A.I.R. 1967 Mysore 223. A reference was also made to Doddaiah v. State, A.I.R. 1967 Mysore 223. Relying upon certain observations of the Supreme Court in Champaklal Chimanlal Shah v. Union of India, A.I.R. 1964 SC 175, it was held there that Article 16 (1) of the Constitution was contravened even in the case of temporary Government servants when their services were terminated in spite of the fact that services of Junior and less qualified temporary Government servants were retained without showing any extraordinary circumstances justifying the distinction made. 16. There is now no doubt that, as pointed out by a Full Bench of this Court, in Abdul Ahad v. I.G. Police, A.I.R. 1965 Alld. 142, the protection of Article 16 (1) of the Constitution is available to a Government servant not only at the stage of his appointment but also at subsequent stages including that of termination of service. It is, however, dear that if a justifiable ground of distinction in terminating a Government servant's services can be made out the guarantee given by Article 16 (1) would not be in. fringed. In Champaklars case the Supreme Court held that the mere fact that junior and less qualified persons are retained in Government service cannot constitute unjustifiable discrimination where other circumstances, such as an unsatisfactory background which necessarily meant causes for complaint, may be present. The question whether a Government servant was given due opportunity of being heard because he was punished in substance must be kept apart from the question whether he was being actually discriminated against unjustifiably on some unreasonable or improper ground. If there appears to be a ground of action against the Government servant concerned which can be reasonably co-related to a just or rational and proper policy, the action itself would not be vitiated as unjustifiable discrimination would not be proved in such a case. Action taken on the ground, as in the case with the petitioners before me that persons proceeded against are believed to be corrupt can certainly be related reasonably to a policy for the welfare of the public and purity of administration which are so essential for the success of the schemes of a welfare state. 17. Action taken on the ground, as in the case with the petitioners before me that persons proceeded against are believed to be corrupt can certainly be related reasonably to a policy for the welfare of the public and purity of administration which are so essential for the success of the schemes of a welfare state. 17. In Union of India v. P.K. More, A.I.R. 1962 SC 630, the Supreme Court had held that the fact that the petitioner had been detained under the Bombay Public Security Measures Act would provide a sufficient justification for distinguishing the petitioner's case from that of others retained in service. It was held there also that the mere fact that employees junior in service to the petitioner were retained in service could not constitute a violation of Articles 14 and 16 of the Constitution. 18. It was urged that the petitioners had been discriminated against inasmuch as the mere existence of complaints was not a reasonable ground for putting them in the class of undesirable or dishonest or corrupt officers. It was pointed out that hones: officers are more liable to be complained against by dishonest influential people with whom the honest officers may be obliged to deal firmly without showing fear or favour. The suggestion was that the existence of a complaint, viewed in this light, may indicate that the Government servant was really honest. The only way to decide anything justly on such a matter it was urged, was to give an opportunity of being heard to the individual whose future may be affected by a..........decision. It was contended that this principle of procedural propriety was implicit in Article 15 which applies to all Government servants. Even the power to terminate service contained in Article 310 was controlled, it was urged by a procedural protection to ensure that mistaken or misguided or unreasonable or arbitrary action, hit by Articles 14 and 16, is not taken. In other words, even apart from punitive action, governed by Article 311, every action which may be taken for some actual or supposed fault of a Government servant was said to be hedged with a duty to give some opportunity to the servant concerned to explain what may be capable of explanation even though that opportunity may not be so full or elaborate as that contemplated by Article 311. 19. 19. In a celebrated English case, Cooper v. The Board of Works for Wandsworth District, (1863) 14 CNS 180, Byles, J. enunciated a primor dial principle of natural justice in the following words : "The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. "Adam" (says God), "where art thou ? Hast thou not eaten of the tree whereof I commanded thee that thou shouldst not eat ?" 20. Such a principle has been characterised in Queen Empress v. Polpi, ILR 13 Alld. 171 by Mahmood, J. as a principle of "universal jurisprudence." Recently, in Ridge v. Baldwin, (1964) Appeal Cases 40, the House of Lords reviewed a large number of authorities and reaffirmed the principle that mobody vested with a power to decide a matter affecting the rights and property of another could justly do so without affording him an opportunity of being heard in defence. 21. The Supreme Court of India has also held in the State of Orissa v. Binapani Dei, A.I.R. 1967 SC 1269 :- "The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is-protected against exercise of arbitrary authority by the State of its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person duty to act judicially is implicit in the exercise of such power. If the essentials of justice are ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case." 22. If the essentials of justice are ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case." 22. The Supreme Court, however, laid clown a principle of natural justice in the broad terms set out above with reference to a case in which the Government servant affected had a right to continue in service for a certain period. It is also clear that the observations contained in Ridge v. Baldwin, (1964) Appeal Cases 40 were made in a case in which the action was manifestly punitive. In Champaklal's case the Supreme Court made it clear, as it had done in earlier cases, that a temporary Government servant, against whom punitive action protected by Article 311 was not being taken, had no right to be heard before termination of his service even when this was done due to some personal fault or shortcoming of the servant. It was held there that a short preliminary inquiry for the purpose of collecting facts for the satisfaction of the Government itself in regard to the conduct and work of a Government servant, or in order to decide whether punitive action, protected by the procedural safeguards of Article 311, should be taken or services of a temporary Government servant should be terminated, can be ex parte. Their Lordships observed. (at page 1862) :- "Such a preliminary inquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an inquiry. But at that stage he has no right to be heard for the inquiry is merely for the satisfaction of the Government and it is only when the Government decides to hold a regular departmental inquiry for the purposes of inflicting one of the three major punishments that the Government servant gets the protection of Article 311 and all the rights that the protection implies as already indicated above." 23. It is ture that the above mentioned view of the Supreme Court was not taken with specific reference to any rule of natural Justice, as a part of any procedural fairness implied by the guarantee contained in Article 16 (I) of the Constitution, independently and apart from the protection given by Article 311 in cases of punishment. nevertheless, the general observations made by the Supreme Court on the question of Opportunity to be heard in cases of termination of services of temporary Government servants appear to rule out the contention that a temporary Government servant has any right to be heard even if his services are being terminated for some fault on his part, unless he can show that he is being punished in substance. 24. I may also refer to Bairagi Ram v. State of U.P., A.I.R. 1966 Alld. 92 where a Division Bench of this Court held that the alleged arbitrariness of the "unbridled power" of the Government to terminate the services of a temporary Government servant could not be questioned on the ground that it violates Articles 14 and 16 of the Constitution inasmuch as the content of this power is laid down by Article 310 of the Constitution itself. There was a presumption that the power to terminate will be exercised fairly and honestly. It follows from this view also that the power of the Government to terminate the services of temporary Government servants, contained in Article 310 of the Constitution, is only controlled, so far as procedural protection required by rules of natural justice goes, by Article 311 of the Constitution. In the face of these authorities, it cannot be contended that Articles 14 and 16 imply some procedural protection in cases of termination of service in addition to and outside what is contained in Article 311 (2) . And, Article 311 (2) which exhausts procedural protection, is confined to cases of "punishment" as contemplated by law. 25. The next and the last question which arises is whether the petitioners were being manifestly punished so as to entitle them to the protection of Article 311 (2) of the Constitution. As already indicated, the termination of the services of the petitioners was a part of the drive to root out corruption and to eliminate dishonest officers from the administration. The next and the last question which arises is whether the petitioners were being manifestly punished so as to entitle them to the protection of Article 311 (2) of the Constitution. As already indicated, the termination of the services of the petitioners was a part of the drive to root out corruption and to eliminate dishonest officers from the administration. It is true that the mere background of alleged dishonesty or corruption, even if the allegations operate as the cause of the action taken, is not enough to convert the termination of services into punitive action, as held in Champaklal's case. It is also clear that where the character of the proceedings is such that it attaches a stigma to the Government servant, the proceeding becomes punitive. A large number of cases were cited on behalf of the opposite parties which only show that no single factor is decisive of the question whether the termination of service is penal in character. These cases may now be referred to. 26. In S.C. Anand v. Union of Indian, A.I.R. 1953 SC 250, it was held that termination of service of a temporary Government servant in terms of the contract of service could not entitle him to the protection of either Article 311 or violate Article 14 or 16 of the Constitution. In Shyam Lal v. State of U.P., A.I.R. 1954 SC 369 it was held that, in the case of a compulsory retirement, an imputation against the servant, which was not a condition for the exercise of the power to retire, did not operate as a stigma. In H.P. Singh v. Govt. of U.P., A.I.R. 1957 SC 886, it was held by the Supreme Court that there is no distinction in principle be.ween a termination in terms of the contract and one in accordance with the rules of service. In the State of Bombay v. S.M. Doshi, A.I.R. 1957 SC 892, it was pointed out that where inefficiency or misconduct did not furnish the very basis of the action, but only provided the background, the mere holding of an enquiry, to determine which kind of action should be taken, would not convert the action into a punishment. 27. In the State of Bombay v. S.M. Doshi, A.I.R. 1957 SC 892, it was pointed out that where inefficiency or misconduct did not furnish the very basis of the action, but only provided the background, the mere holding of an enquiry, to determine which kind of action should be taken, would not convert the action into a punishment. 27. In P.L. Dhingara v. Union of Indian, A.I.R. 1958 SC 36, it was held that the termination of services in terms of contract of service or under the rules is not prima facie or per se a punishment which could attract the provisions of Article 311 (2) of the Constitution. It was pointed out there that the protection of Article 311 (2) was confined to cases where the Government servant had either a right to the post or where he was visited with evil consequences of a specified kind flowing from the action. It was explained that Article 311 (2) was attracted where termination is said to be founded on misconduct. negligence, inefficiency, or other disqualification, as it puts an indelible stigma on the servant. It was further clarified that imputations operating on the mind of the authority taking action were not relevant in determining whether the proceeding was punitive or a termination of service simpliciter. It was also held there that the mere form of the order or use of innocuous language in it would not determine the character of the proceeding. 28. In State of Bihar v. Gopi Kishore, A.I.R. 1960 SC 689, the decision turned upon the fact that the order of termination of service of a probationer contained the statement that the petitioner had acquired a bad reputation for corruption. It was held that the probationer, having been thus branded as a corrupt officer, was entitled to the protection of Article 311 (2) of the Constitution. In Daleep Singh v. State of Punjab, A.I.R. 1960 SC 305 a compulsory retirement for "administrative reasons" was held to be outside the purview of Article 311 because although inefficiency or misconduct may have furnished the background, it did not constitute the basis of the action taker?, against the petitioner. State of Orissa v. Ram Narayan, A.I.R. 1961 SC 177 was a case in which an enquiry to ascertain whether a probationer was fit to be confirmed was held to fall outside the scope of Article 311 (2) of the Constitution. State of Orissa v. Ram Narayan, A.I.R. 1961 SC 177 was a case in which an enquiry to ascertain whether a probationer was fit to be confirmed was held to fall outside the scope of Article 311 (2) of the Constitution. In Madan Gopal v. State of Punjab, A.I.R. 1963 SC 531, the decision turned upon the form of the enquiry itself which had been held, in that case, with the object of awarding punishment and was followed by a report giving conclusions. The mere fact that the final order was that of termination could not change the character of the proceeding which was held to be punitive as it cast a stigma upon the petitioner. 29. Jagdish Mitter v. Union of India, A.I.R. 1964 SC 449 was a case in which an order terminating the services of a temporary Government servant, mentioning that the servant had been found undesirable to be retained in Government service, was held to have expressly cast a stigma. The petitioner was held to be entitled to the protection of Article 311 (2) of the Constitution. It was remarked there, inter alia :- ".......we must bear in mind that the real character of the termination of services must be determined by reference to the material facts that existed prior to the order". 30. This case was relied upon on behalf of the opposite parties to contend that facts subsequent to the termination order could not be looked into at all by this Court. The observation quoted above was, however, made in the context revealed by the passage which follows : "Take a case where a temporary servant attacks the validity of his discharge on the ground of mala fides on the part of the authority. If in resisting the plea of mala fides the authority refers to certain facts justifying the order of discharge and these facts relate to the misconduct, negligence or inefficiency of the said servant, it cannot logically be said that in view of the plea thus made by the authority long after the order of discharge, it should be held that the order of discharge was the result of the considerations set out in the plea. What the court will have to examine in each case would be, having regard to the material facts, existing upto the time of the dis charge, is the order of discharge in substance a dismissal ?" 31. Thus, the observations only indicated the manner in which evidence on the question should be logically considered. They were not meant to exclude any evidence which may be relevant for finding out the true character of the action taken. It was pointed out once again here that it was not the motive for the action taken which was relevant or material, but the effect of what was done had to be considered. In this case, the effect was held to be to stigmatise the servant. 32. Coming to more recent cases, I find that, in the State of U.P. v. Madan Mohan Nagar, A.I.R. 1967 SC 1260, it was held that an order of compulsory retirement stating that the public servant had 'outlived his utility' did cast a stigma and amounted to the punishment of "removal", which attracted the provisions of Article 311 (2) of the Constitution. In this case, the Supreme Court disapproved and overruled the view taken by a Full Bench of this Court, in Abdul Ahad v. Inspector General of Police, AIR 1965 Allahabad 142, that the recitals in the order could not determine the question whether a stigma was cast upon the Government servant against whom the observations were made in the order. In I.N. Saksena v. State of Madhya Pradesh, A.I.R. 1967 SC 1264, the Supreme Court, dealing with a case of compulsory retirement, observed that where there were no express words which would cast any stigma on the Government servant, the court "could not delve into secretariat files to discover whether some kind of stigma could be inferred on such research." It was pointed out that the petitioner's counsel could not produce a single case of compulsory retirement where a stigma had been inferred apart from the express words used. The order against the Government servant was held not to be punitive as it did not, in express words, contain any stigma. 33. The order against the Government servant was held not to be punitive as it did not, in express words, contain any stigma. 33. The last mentioned cases were relied upon, by the learned Standing Counsel for the State, to contend that all that can be or need be looked at, to determine whether a stigma is or is not cast by the action taken, is the order of termination of service and its contents. The contention was that, if no stigma can be inferred from the express terms of the order, it cannot be a case of punishment in the eye of law. I do not think that the cases cited above lay down that so simple a formula is applicable to all cases of termination of service. The question whether, upon a particular set of facts, a Government servant was or was not stigmatised, is essentially a question of fact. Conclusions on such a question are bound to vary with the facts of each case. The Supreme Court has repeatedly held that the innocuous language in which the order is expressed does not conclude matters. The decisions in last mentioned cases were not meant to revise that view. The observations made there must be understood as pronouncements on facts of each individual case and no,hing more. They did not enunciate any rigid rule. 34. In Champaklal, A.I.R. 1962 SC 1711 case, the Supreme Court thus stated the result arrived at after a survey of cases on the subject: "Whether such termination would amount to dismissal or removal within the meaning of Article 311 (2) would depend upon facts of each case and the action taken by the Government which finally leads to the termination of service "It was also observed there : "...... the courts are not to go by the particular name given by a party to a certain proceeding but are concerned with the spirit and substance of it in the light of what preceded and succeeded it." We are, therefore, bound to examine that "spirit and substance" as revealed by patent facts and circumstances. It is only when it is not reasonably possible or practicable to reach a satisfactory conclusion on facts which can be conveniently placed before us in proceedings under Article 226 of the Constitution that a petitioner is left to obtain relief, if he can, by means of an ordinary civil suit. 35. It is only when it is not reasonably possible or practicable to reach a satisfactory conclusion on facts which can be conveniently placed before us in proceedings under Article 226 of the Constitution that a petitioner is left to obtain relief, if he can, by means of an ordinary civil suit. 35. I may now deal with the cases which are relied upon in particular on behalf of the petitioners. In Sukhbans Singh v. State of Punjab, A.I.R. 1962 SC 1711, the Supreme Court went into the record of service of the Government servant and determined, after a review of the whole set of facts, that the order of reversion of a probationer was punitive and meant to punish him for what was considered to be misconduct. Hence, the Government servant was held to be entitled to the protection of Article 311 (2). The order of reversion was even characterised as mala fide. The enquiry was not confined in scope by their Lordships to the form of the order or the nature of the proceedings taken against the Government servant. Again, in P.C. Wadhwa v. Union of India, A.I.R. 1964 SC 423, the order of reversion of a police officer from the post of Superintendent of Police to that of an Assistant Superintendent of Police was held to be punitive. All the facts relating to the reversion were examined by their Lordship of the Supreme Court who observed :- "Therefore, what is to be considered in a case of this nature is the effect of all the relevant factors present therein. If on a consideration of those factors the conclusion is that the reduction is by way of punishment involving penal consequence; to the officer even though the Government had a power to pass the order of reduction, the provisions of Article 311 of the Constitution are attracted and the officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him." 36. The petitioners relied strongly upon a decision of this Court in J.S. Verma v. State of U.P., A.I.R. 1962 Alld. 471, where an order of termination of service of a Government servant was read in the light of a circular issued simultaneously to the other officers in the Department. The circular contained aspersions against the conduct and integrity of the Government servant concerned and was meant to deter other servants. 471, where an order of termination of service of a Government servant was read in the light of a circular issued simultaneously to the other officers in the Department. The circular contained aspersions against the conduct and integrity of the Government servant concerned and was meant to deter other servants. The action was held to be punitive although the order terminating service was framed in innocuous terms. There, Dhavan, J. held : "It is true that the Government were entitled to terminate the plaintiff's services for any reason whatsoever and their motives in getting rid of him are irrelevant. But, there is a difference between motives which are locked within the bosom of the removing authority or confined to the files, and reasons which are published to the whole world. In this case, the Government did not keep their reasons to itself but published them in a circular addressed to the other cloth inspectors. Simultaneously with the order terminating the plaintiff's services, they published the allegation against him as deterrent to other.. One of the attributes of punishment is that its publication serves as a deterrent. Government cannot in fairness make use of a servant's removal as a deterrent to others by publishing the reasons for the termination of the services which cast stigma on his reputation but not give him the benefit of the constitutional safeguards to which he is entitled before being removed under a stigma." 37. It was urged that the above-mentioned decision in J. S. Verma's case was not binding on me as it was a single judge decision of this Court although the manner of reporting the case gives the erroneous impression that it is a Division Bench authority. The name of the learned Judge who merely delivered the judgment is mentioned as though both their Lordships had actually heard the case and participated in making the decision. Nevertheless, I consider it binding upon me unless I were to disagree with the view taken in that case, in which event a reference to a larger Bench would have been called for. See : Mahadeolal Kanodia v. Administrator General of West Bengal, A.I.R. 1960 SC 936. With great respect, I entirely agree with the line of reasoning of Dhavan, J. And, I do not find it possible to distinguish the cases before me from J. S. Verma's case on principle. See : Mahadeolal Kanodia v. Administrator General of West Bengal, A.I.R. 1960 SC 936. With great respect, I entirely agree with the line of reasoning of Dhavan, J. And, I do not find it possible to distinguish the cases before me from J. S. Verma's case on principle. The principle may be thus explained : A temporary Government servant is not entitled to the protection of Article 311 if the termination of his services is colourless in the sense that it is unaffected by the background of the Government servant which may contain complaints or allegations of misbehaviour or of other defects of the servant. He is not entitled to this protection even if the action terminating his services is coloured by his background or by his personal defects and dis-qualifications so long as this colour is not spilt. If, however, the colour is so spilt as to attach itself to the servant's record and to become a blot which may mar his future prospects and career, he becomes entitled to claim the protection of Article 311 (2) of the Constitution. 38. The result of the foregoing discussion of authorities on the subject is that termination of the services of a temporary Government servant would not attract the protection conferred by Article 311 of the Constitution even if the action is induced by the belief that the servant is unsuitable or dishonest. But, if publicity is given to that belief in order that the action against the Government servant may act as deter-rent to others, the effect would be that the action would become punitive. The Government servant concerned can, in such an event, complain that his property in his good name has been taken away from him without giving him due opportunity to meet what operated against him. It was held in Prasiddh Narain v. State of U.P., A.I.R. 1964 Alld. 278, a Division Bench decision cited on behalf of the State : "One has property in ones good name and is deprived of the property when one is given a bad name. The principle of natural justice that a person should not be deprived of his property without being heard applies when he is deprived of his property in good name. The principle of natural justice that a person should not be deprived of his property without being heard applies when he is deprived of his property in good name. When a civil servant is given a bad name it amounts to punishing him because he is deprived of this property and consequently terminating services of a temporary servant on the ground that his work and conduct has been found to be bad and amounts to removal within the meaning of Article 311". 39. With great respect, I concur with the view expressed above by Desai, C. J. I think that the principle laid down there applies fully to the cases before me. 40. Before parting with these cases, I may observe that, although, abstract question of justice are always difficult to determine, yet, the concrete terms in which justice is to be understood are enshrined in our Constitution. The principles laid down by the Constitution and the concepts of justice contained in it are binding not only upon the judiciary but also upon the Executive and Legislative organs of State in the country. Justice in concrete terms cannot be dissociated from the procedure to be observed for ensuring that every class of persons protected by the Constitution, including Government servants of every category is justly treated. The protection given by Article 311 of the constitution is meant to. safeguard Govt. servants against punitive action taken in such a way that innocent persons may be unjustly penalised. Although, no authority can claim immunity from liability to err, yet, the observance of the procedural safeguards goes a long way in ensuring that possibilities of error and injustice are reduced to a minimum. Speaking for myself, I am unable to see why action in accordance with Article 311 (2) of the Constitution should be either difficult or long drawn out if grounds of complaint against a servant are genuine. 41. In the result, as I have reached the conclusion that the action taken against the petitioners was really punitive because it had the result of stigmatising them, the notices of termination of their services issued on 17-4-1967 must be and are hereby quashed. 41. In the result, as I have reached the conclusion that the action taken against the petitioners was really punitive because it had the result of stigmatising them, the notices of termination of their services issued on 17-4-1967 must be and are hereby quashed. It will be open to the opposite parties to take appropriate punitive proceedings against the petitioners, if they so decide, under Article 311 of the Constitution with the object of eliminating corruption from the supply Department of the State of U. P. The petitioners are entitled to their costs.