PATHAK, J.:- By this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 20th September, 1968, by which his services had been terminated in pursuance of sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965 with one month's notice. 2. The petitioner was appointed as Field Exhibition Officer by order dated 21st December, 1965 of the Director of Advertising & visual Publicity in the same Directorate on a purely temporary capacity with effect from the forenoon of the 29th November, 1965 until further orders and he joined and continued to serve in that post. As a result of reorganisation of the said Directorate, the post of Field Exhibition Officer, which was previously included in Grade IV of the Central Information Service and carried a scale of Rs. 270-10-290-15-410-EB-15- . 485, was excluded from the Central Information Service and was made a Gazetted post in the same Directorate in the scale of Rs. 350-20-450-25-575. By order dated 6-10-67, the petitioner along with other Field Exhibition Officers who had been similarly appointed to the non-Gazetted post on ad hoc basis previously was appointed by the Director of Advertising and Visual Publicity, Ministry of Information and Broadcasting, Governent of India, to the Gazetted post on a purely temporary capacity pending regular recruitment to the post according to the recruitment rules (Vide Notification No. 17/34/64-Est dated 6-10-67). These posts of Field Exhibition Officers were not permanent even at that stage. On receipt of certain complaints regarding the alleged irregularities committed by the petitioner, who was functioning as Field Exhibition Officer in the said Directorate at Gauhati as well as by certain other members of the Gauhati Field Exhibition Unit, a preliminary enquiry was conducted on the departmental basis and pending disciplinary proceedings the petitioner was suspended by order dated 25th January 1968/4th February 1968 by the Director of Advertising and Visual Publicity under Rule 10(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter called the 'Civil Service Rules'). On enquiry the petitioner was informed by letter No. 1-9/67-V dated 24-6-68 that the investigation was pending in the case. By a notification dated 7-8-67 the Union Public Service Commission invited applications for recruitment to 20 posts of Field Exhibition officers in the said Directorate under the Ministry of Information and Broadcasting.
On enquiry the petitioner was informed by letter No. 1-9/67-V dated 24-6-68 that the investigation was pending in the case. By a notification dated 7-8-67 the Union Public Service Commission invited applications for recruitment to 20 posts of Field Exhibition officers in the said Directorate under the Ministry of Information and Broadcasting. The petitioner who submitted an application in response to the advertisement was called for interview along with 171 other candidates, but the Union Public Service Commission did not select him. Thereafter by order dated 20-9-68 the Director 9f Advertising and Visual Publicity terminated the services of the petitioner with one month's notice in pursuance of Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965 (hereinafter called the "Temporary Service Rules"). 3. The learned counsel for the petitioner submitted that while the petitioner was serving as Field Exhibition Officer, though temporarily, disciplinary proceedbig against him was started under the provisions of the 'Civil Service Rules' and he was placed under suspension under Rule 10(1) (a) of the said Rules and while the disciplinary proceeding was pending his services were terminated by way of punishment though it was purported to be under Rule 5(1) of the 'Temporary Service Rules', and thus Article 311(2) of the Constitution was attracted to the case and the impugned order of termination was bad in law for non-compliance with' the provisions of Article 311(2) of the Constitution, 4. The learned counsel of the respondents, on the other hand, submitted that a preliminary enquiry was conducted on the departmental basis against the petitioner and some others and after the preliminary enquiry, the matter was referred to the Central Bureau of Investigation for necessary investigation and no disciplinary proceeding was conducted by the department. The petitioner was informed by letter dated 24-6-68 that the investigation was pending in the case. The termination of the petitioner's services under Rule 5(1) of the 'Temporary Service Rules' had nothing to do with the pending enquiry concerning the petitioner. His services were replaced by those of a regularly selected person through Union Public Service Commission. As the petitioner was not selected by the Union Public Service Commission, his services had to be terminated as required under the provisions of the Rules with one month's notice.
His services were replaced by those of a regularly selected person through Union Public Service Commission. As the petitioner was not selected by the Union Public Service Commission, his services had to be terminated as required under the provisions of the Rules with one month's notice. The termination of services of the petitioner was not by way of punishment and as such it did not attract Article 311(2) of the Constitution of India and the petitioner was not entitled to any remedy in this case, 5. The point that falls for determination in the case is whether the impugned order of termination of services of the petitioner was by way of punishment or it was an order of termination of services simpliciter under Rule 5(1) of the 'Temporary Service Rules'. The impugned order Is In the following terms: "In pursuance of sub-rule (1) of R. 5 of the Central Civil Services (Temporary Services) Rules 1965; I hereby give notice to Shri N. B. Chakrabarty, Field Exhibition Officer, ad hoc at present under suspension that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on him, Sd/- R. Streeniyasan, Director of Advertising and Visual Publicity." 6. The cases in and the circumstances under which the provisions of Art. 311(2) of the Constitution of India are attracted have been summarised by the Supreme Court in the case of P. L. Dhingra v. Union of India, AIR 1958 SC 36 , as follows : x x X X X X 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 Article 311 15 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 Article 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 other wise 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 punishment and, therefore, a dismissal or removal within Article 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. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has right to particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for deter-. mining whether the reduction in such cases is 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 that although in form the Government had purported to exercise its aright 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.
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? If the case satisfies either of the two tests then it must be held that the servant has been punished and 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 of the constitutional right of the servant." 7. In the instant case, the admitted position is that the petitioner was holding the post temporarily, and he was not in quasi-permanent service and as such his service could be terminated with one month's notice under Rule 5(1) of the 'Temporary Service Rules', That being the position, the present case does not satisfy the first test mentioned by the Supreme Court. Let us consider whether the petitioner's case falls within the. second test as laid down by the Supreme Court in the above decision. The petitioner was suspended because there were allegations of defalcation against him and disciplinary proceeding was either contemplated or was pending against him. After his suspension admittedly there was a preliminary enquiry and the petitioner's case was submitted to the Central Investigation Bureau for necessary investigation. The Government may dispense with the services of a temporary government servant if his services are either not required or the Government finds that he is for any reason not suitable to be retained in service and in such cases his services may be terminated under R. 5(1) of the 'Temporary Service Rules'.
The Government may dispense with the services of a temporary government servant if his services are either not required or the Government finds that he is for any reason not suitable to be retained in service and in such cases his services may be terminated under R. 5(1) of the 'Temporary Service Rules'. When the services of such a temporary government servant are terminated under Rule 5 (1) of the "Temporary Service Rules' it does not ordinary visit with evil consequences or loss of pay and allowances as contemplated under the second test laid down by the Supreme Court, The Government may also after contemplating to draw up proceedings against a temporary officer for allegations against him, choose not to draw up proceedings but dispense with his services under Rule 5(1) of the "Temporary Service Rules'. But if the Government decides' to draw up proceedings against a temporary officer and accordingly a charge of serious allegations is framed against him and proceeds with the disciplinary proceedings against him and thereafter without completing or withdrawing the disciplinary proceedings, terminates the services of the temporary officer, ordinarily such an order of termination of services of temporary officer under Rule 5(1) of the 'Temporary Service Rules' may not be hit by non-compliance of Article 311(2) of the Constitution; but there may be cases in which the termination order Itself on the face of it may carry indelible stigma on the officer endangering his future appointment and entailing evil consequences, which may amount to punishment and the case may attract Article 311(2) of the Constitution, according to the second test as laid down by the Supreme Court. 8. In the instant case, the impugned order while terminating the services of the petitioner has described him as "at present under suspension". On the face of it, the impugned order leaves the stigma on the petitioner that he is a suspended officer, and any future employer may reasonably think that the petitioner must have been suspended in service on some serious allegations and may refuse employment to the petitioner on that ground alone. In our opinion, the inclusion of the words "at present under suspension" in the order itself carries an Indelible stigma on the petitioner which may stand in his way in any future employment in government service or elsewhere. That being the position, we hold that the impugned order though passed under Rule.
In our opinion, the inclusion of the words "at present under suspension" in the order itself carries an Indelible stigma on the petitioner which may stand in his way in any future employment in government service or elsewhere. That being the position, we hold that the impugned order though passed under Rule. 5(1) of the 'Temporary Service Rules' carries an indelible stigma on the petitioner entailing evil consequences and may seriously affect his future employment and, therefore, the case comes under the second test laid down in such matters by the Supreme Court. In the circumstances, we hold that since admittedly the provisions of Article 311(2) of the Constitution were not complied with in terminating the services of the petitioner the impugned order must be struck down as violative of Article 311(2) of the Constitution of India. 9. In the result, the impugned order dated 20th September, 1968, is quashed and the Rule is made absolute. The petition is allowed with costs. Hearing Fees Rs. 200/-. 10. S. K. DUTTA, C. J.: I agree. Rule made absolute