Sharat Chand Misra v. State of U. P. — 1971 DIGILAW 295 (ALL)

JUDGMENT H. N. Seth, J. Sharat Chand Misra has filed this appeal against the judgment of a Single Judge of this Court dated 20th July, 1970 dismissing his writ petition directed against a resolution passed by the Zila Parishad, Hamirpur, dated 9-11-1963 terminating his services under rule 3-A(iv) of the Rules regarding Officers and servants of the District Board on payment of three months salary in lieu of notice. 2. Before the learned Single Judge, the petitioner advanced the following arguments in support of his case that the resolution terminating his services as Secretary of Zila Parishad, was illegal: 1. That rule 3A(iv) under which the petitioner's services have been terminated, confers arbitrary powers and is discriminatory and must,therefore, be struck down for contravening Article 14 of the Constitution. 2. Even assuming that rule 3-A(iv) is valid and en forcible, its requirement shave not been fulfilled in ti-c case of the petitioner because he was not paid three months' salary to which he was entitled in lieu of notice, either at the time when the impugned resolution was passed or when a copy of the resolution was served on him. 3. The resolution passed at the meeting of the Zila Parishad on 9-11-1963 was Invalid because the termination of petitioner's services was not a matter included in the agenda for that meeting and 4. The termination of the petitioner's services is a disguised order of punishment vitiated by mala fides. 3. The learned single judge did not accept the contention that rule 3-A(iv) of the rules regarding officers and servants of the District Board was invalid being in contravention of Article 14 of the Constitution.He did not find any defect in the resolution passed by the Zila Parishad terminating petitioners' services and held it to be valid. So far as the last point was concerned, the learned judge observed that there was nothing in the petition to show how any mala fides could be impugned to the entire Zila Parishad which passed the impugned resolution.Since it could not be said that the entire Zila Parishad bore an animus against the petitioner, the resolution was not tainted with mala fides and could not be interfered with. In the result he dismissed the writ petition. The petitioner "has now come up in appeal and has urged all the four arguments that were advanced before the learned Single Judge. 4. In the result he dismissed the writ petition. The petitioner "has now come up in appeal and has urged all the four arguments that were advanced before the learned Single Judge. 4. Learned counsel for the petitioner contended that the circumstances in which the resolution dated 9-11-1963 was passed, clearly indicate that the Zile Parishad terminated petitioner's services by way of punishment. The resolution was couched In such a manner so as to give it the appearance of a simple order of termination of service under rule 3-A(iv). In order to punish the petitioner the Board had to follow the procedure prescribed in notification No. 3537/IX-131-43 dated March 25, 1946, printed at page 193 of the District Board Manual 1952 Edition. According to the notification no officer or servant of the Board can be dismissed, removed or reduced without a reasonable opportunity being given to him for showing cause against the action proposed to be taken in regard to him. Any written defence tendered by him has to be recorded and a written order has to be passed thereon. The notification further provides that every order of dismissal, removal or reduction is to be in writing and Is to specify the charge brought,the defence and the reason for the order. It is contended that in this case before passing the resolution no opportunity for showing cause against the action proposed to be taken was given to the petitioner,and as such the order terminating his services is invalid. It was further contended that even if the petitioner was not able to make out a case of personal mala fides against each and every member of the Zila Parishad who participated in passing the impugned resolution,still the resolution terminating the petitioner's services counsel be struck down as a mala fide exercise of power inasmuch as an order which in fact was an order of punishment was deliberately made to appear as a simple order of termination under rule 3-A. 5. The Petitioner was appointed as a Secretary of the erstwhile District Board, Hamirpur, by a resolution dated 30th July, 1952. He was eventually confirmed on 31-7-1953. On 31st March, 1962 the Zila Parishad passed a resolution suspending the petitioner on the ground that there were certain allegations of over payments said to have been made by him and that these allegations were to be enquired into. He was eventually confirmed on 31-7-1953. On 31st March, 1962 the Zila Parishad passed a resolution suspending the petitioner on the ground that there were certain allegations of over payments said to have been made by him and that these allegations were to be enquired into. The petitioner thereupon filed a writ petition in this Court challenging the order of suspension. By its order dated 5th September, 1962, a Division Bench of this Court allowed the writ petition and quashed the order(suspending the petitioner. On 15th September, 1962 the Zila Parishad passed a resolution stating that a Committee of five members had been appointed to go Into the charges levelled against the petitioner.The Committee found those charges to be proved. Before taking final(decision the Committee recommended that an explanation be called for from the petitioner. The petitioner repeatedly refused to accept the charge sheet. The charge sheet was sent to him as per registered post at the address given by the petitioner but the same was returned by the post office as the petitioner was not found at his place. The charge sheet was sent to the petitioner a number of times through peon but either the petitioner refused to accept it or he was not found at his place. The petitioner had been asked not to leave the headquarter without permission, but he was very often absent from the headquarters without obtaining permission. Repeated attempts to serve the petitioner failed. In the circumstances, the allegations made against the petitioner were accepted and he was to be given a notice to show cause why his services be not terminated. Subsequently the petitioner appeared and made a request for being served with the show cause notice. Thereupon, the show cause notice was served on him on 20th October, 1962. The petitioner then made a request for being supplied with copies of the documents on which reliance was being placed against him. He also made a request for inspection of documents On 10th November, 1962, the Zila Parishad passed a resolution granting the petitioner leave for two years without pay with retrospective effect from 1st April, 1962 the date of the order of suspension which had been quashed by the High Court. The petitioner filed a writ petition which was allowed and the order granting leave to the petitioner was quashed. The petitioner filed a writ petition which was allowed and the order granting leave to the petitioner was quashed. The Zila Parisbad was directed to pay to the petitioner full remuneration which be would have received but for the order suspending him for the period beaning with 1st April, 1962 and ending on 30th April, 1963 The payment was required to be made within three months of the date of High Court's order. Thereafter the petitioner made certain representations for being paid his salary. Of 11th July, 1963 the Board passed a new resolution suspending the petitioner for the second time on the basis of four new charges levelled against him.The resolution was challenged by the petitioner the very same day by filing writ petition no. 2248 of 1963. before the High Court. He obtained an order staying the operation of the suspension order passed against him. Meanwhile, another resolution dated 7th October, 1963 was passed placing the petitioner under suspension a third time. This order was communicated to the petitioner by means of a letter No.304/V/71 dated 10th October, 1963. A second charge sheet consisting of five charge was given to the petitioner on 28th October, 1963 along with a letter from the Zila Parishad dated 24th October, 1963. The petitioner went up in appeal, before the State Government, against the suspension orders dated 11th July, 1963, and 7th October, 1963.While the charges levelled against the petitioner were pending, are solution for relieving the petitioner from his duties was put up before the meeting of the Zila Parishad on 9th November, 1963. There solution stated that it had come to the knowledge of the Zila Parishad that on the date of his appointment the petitioner was neither 32 years old nor had he worked on the post of a Secretary in any Board for a period of two years. Further the petitioner had not obtained any exemption in respect of his age or other conditions of employment in the result in accordance with the decision of the Lucknow Bench of the Allahabad High Court the resolution dated 30th July 1952, appointing the petitioner as Secretary of the Board was contrary to the provisions of Section 70(1) of the Zila Parishad Act and connected rules and,therefore, the Zila Parishad dispensed with the services of the petitioner.This resolution, however, was not passed as such. An amendment was,introduced to the proposed resolution by which nearly the entire body of the resolution was deleted and it was stated that the Zila parishad no more required the services of Shri Sharat Chand Misra, Secretary of the Zila Parishad and, therefore, his services were being terminated in accordance with rule 3-A (1V) as printed in the District Board Manual at page 189. The petitioner was to be given three months pay in lieu of notice. This amended resolution was carried in the meeting held on 9th November 1963. The petitioner has challenged the validity of this resolution. 6. According to the petitioner it is clear that the Zila Parishad initiated disciplinary proceedings against him in respect of which the charge sheets dated 11th July, 1963 and 7th October, 1963 had been issued. Suddenly his service were terminated by means of the impugned resolution dated 9th November, 1963. The fact that at the time of passing the impugned resolution determining the petitioner's services,disciplinary proceedings were pending against him has not been controverted in the counter affidavit. This fact has been specifically admitted on behalf of the Zila Parishad. 7. In this appeal the petitioner moved an application praying that certain documents be brought on record. These 'documents related to suit No. 3 of 1966, which is said to have been filed by the petitioner against the Zila Parishad. In that suit, the Adhyaksh of the Zila Parishad has filed written statement. In paragraph 52 of the written statement it was specifically mentioned that the plaintiff during his tenure of service was charge sheeted for various misconducts,mistakes, forgeries and neglect of duty for which his services had been rightly terminated. This application was allowed by us by cur order dated 11th February, 1971. As fresh material had been accepted in appeal for respondents were then given an opportunity to file such additional reply as they liked. An affidavit was filed by Sri Brij Kishore, Superintendent of the Zila Parishad Hamirpur, in which the fact that a written statement, containing the aforesaid allegation,had been filed in the suit was not denied In paragraph 3 of the affidavit Sri Brij Kishore stated that in as much as in the plaint filed by the petitioner in Civil Suit no. An affidavit was filed by Sri Brij Kishore, Superintendent of the Zila Parishad Hamirpur, in which the fact that a written statement, containing the aforesaid allegation,had been filed in the suit was not denied In paragraph 3 of the affidavit Sri Brij Kishore stated that in as much as in the plaint filed by the petitioner in Civil Suit no. 3 of 1966 in paragraphs 7, 8 and9 it had been asserted that the action of the Zia Parishad was mala fide, in the written statement it asserted as a matter of law that the petitioner's services were rightly terminated. The statement made in the written statement was not a statement of fact and as such the petitioner could not place any reliance on the averments made in its paragraph 52. 8. During the hearing Sri S. C Khare, learned counsel for Zila Parishad urged that in paragraph 52 of the written statement them was no admission by the Zila Parishad that the services of the Petitioner had been terminated on the basis of any misconduct on his part. He urged that the allegations made in paragraph 52 of the written statement merely amounted to this that the petitioner had been charge-sheeted for various misconducts, mistakes, forgeries and neglect of duty that and his services had been rightly terminated. According to him, this averment made in paragraph 52 of the written statement did not connect there solution terminating petitioner's services with the allegations of misconduct, mistakes, forgeries and neglect of duty in respect of which he had been charge sheeted We are unable to accept this contention.The relevant statement made in paragraph 52 of the written statement is as follows : "The plaintiff during his tenure of service was charge-sheeted for various misconducts, mistakes, forgeries and neglect of duties for which his services have been rightly terminated". ("The underlining is by us) The use of the words for which' clearly indicates that in the written statement it was being alleged that the reasons for terminating petitioner's services were various misconducts, mistakes, forgeries and dereliction of duty on his part. We are, therefore, unable to agree, with the argument raised by Sri S. C. Khare that the plea raised in this paragraph was merely a legal plea. In making the averment mentioned above, the Zila Parishad stated the real reason which prompted it to terminate the petitioner's services. We are, therefore, unable to agree, with the argument raised by Sri S. C. Khare that the plea raised in this paragraph was merely a legal plea. In making the averment mentioned above, the Zila Parishad stated the real reason which prompted it to terminate the petitioner's services. The statement made in the written statement therefore concerns a fact and cannot be described as a statement of a legal plea. 9. Sri S. C. Khare then argued that the statement contained In the written statement filed by Sri Ram Gopal. Adhyakash of the Zila Parishad was in a suit in which he himself had been arrayed as a party. Even if the statement in paragraph 52, amounted to an admission by the Adhyaksh it could not be treated as an admission made by the Zila Parishad, and, therefore, it was not binding on the Zila Parishad.It may be mentioned that the written statement was filed by Sri Ram Gopal both on his behalf and on behalf of the Zila Parishad as its Adhyaksh. The statement contained in paragraph 52 was. therefore,made by Sri Ram Gopal also on behalf of the Zila Parishad. At that time Sri Ram Gopal was Adhyaksh of the Zila Parishad and prima facie he was competent to make a statement on behalf of the Zila Parishad.In the circumstances, the statement made in paragraph 52 of the written statement cannot be ignored on the ground that it was not a statement made on behalf of the Zila Parishad. 10. Sri S. C. Khare then relied upon the case of Ramabai Sriniwas Nadgir v. Government of Bombay (A. i. R. 1941-Bombay 144), are contended that the admission made by a party in a pleading in a suit is pot binding on him in other proceedings. In this case a Division Bench of Bombay High Court held that a party was not bound by an admission in his pleading except for the purposes of the suit in which the pleading is delivered. It frequently happens that a party is prepared in a particular suit to deal with the case on a particular ground and to make an admission, but that admission is not binding in any other suit and certainly not for all times. 11. It frequently happens that a party is prepared in a particular suit to deal with the case on a particular ground and to make an admission, but that admission is not binding in any other suit and certainly not for all times. 11. While it is true that so far as an admission contained in a leading is concerned, it is binding on the party in so far as the suit, on which it has been made, Is concerned. it is binding In the sense that after making the admission the party cannot be permitted to take up a stand different from the one taken in the pleading. This, however,does not mean that an admission made by a party in the pleadings of a suit Cannot be relied upon as a piece of admissible evidence in subsequent proceedings. Whenever such an admission is brought on there cord of subsequent proceedings, it is admissible in evidence but the party making the admission can explain it away. The party concerned may show that the admission was made under soma misapprehension or that it did not ,really convey what the admission purports to convey.It may explain the circumstances in which the wrong admission was made. This, however, does not mean that the admission becomes inadmissible in evidence and cannot be relied upon by the other side. 12. When the admission made on behalf of the Zila Parishad in paragraph 52 of the written statement was brought to the notice of the respondents in these proceedings, the only explanation given by them was that it was merely an assertion that the services of the petitioner had been rightly terminated in law. No attempt was made on behalf of the respondents to show that the statement contained in paragraph 52 of the written statement conveyed something different from what the Zila Parishad wanted to convey in the written statement. There is, therefore,no reason to ignore the averment made in the written statement to the effect that the services of the petitioner were terminated (or the reason that there were allegations against the petitioner of misconduct etc. In respect of which he had been charge-sheeted. 13. There is, therefore,no reason to ignore the averment made in the written statement to the effect that the services of the petitioner were terminated (or the reason that there were allegations against the petitioner of misconduct etc. In respect of which he had been charge-sheeted. 13. It Is in this background that we have to judge whether the resolution determining the petitioner's services has been made by way of punishment and amounts to his dismissal or whether it was a 'pure and simple innocuous order terminating his services. 14. Sri S. N. Kacker, learned counsel for the petitioner contended that the petitioner was appointed to the post of Secretary on probation on 2nd of August. 1952. He was confirmed in that post on 31st July,1963. He argued that as the petitioner was holding a permanent post,termination of his service per se amounts to a punishing him by way of dismissal or removal. As admittedly no opportunity was given to him to show cause against the action proposed to be taken against him, as provided in the Regulations regarding dismissal, removal or reduction of officers and servants of the District Board, as contained in the notification no. 3537/IX-13143 dated 25th March, 1946, printed at page 193 of the District Board Manual, the order terminating his services is invalid. In this connection he relied upon the observations made by their Lordships of the Supreme Court in the case of P. L. Dhingro v. Union of India (A.I.R. 1958 S. C. 36). 3537/IX-13143 dated 25th March, 1946, printed at page 193 of the District Board Manual, the order terminating his services is invalid. In this connection he relied upon the observations made by their Lordships of the Supreme Court in the case of P. L. Dhingro v. Union of India (A.I.R. 1958 S. C. 36). In paragraph 12 of the judgment the learned Chief Justice made the following observations:- "The position may, therefore, be summarised as follows 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 superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his services cannot be terminated except by way of punishment for misconduct, negligence,inefficiency or any other disqualification found against him on proper enquiry after due notice to him." He also invited the attention of the Court to the observations made by the Supreme Court in paragraph 28 of the judgment where the learned Chief Justice has laid down the ultimate test for determining as to when an order of termination of services would amount to punishment.The observations made are to the following effect :- "The use of the expression 'termination' 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 beheld 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 gives 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." 15. Sri S. C. Khare, learned counsel for the respondent, on the other hand, contended that the real power of the Board to dispense with the services of the Secretary flowed from the power of appointment given to it under section 70 of the District Board Act. The manner in which that power is to be exercised has been stated in rule 3-A of the rules regarding officers and servants of the District Board printed at page 189 of the Manual. According to this rule the power to terminate the services of a Secretary would be exercised by giving him three months' notice or it sum equal to three months' pay in lieu of notice. He contended that even though the petitioner was a permanent servant of the Board, it was open to the Board to terminate his services by giving him three months' notice. If the services of the petitioner were 'terminated by giving him three months notice as provided in the rules, he had no right to hold the post thereafter. Termination of service even of a permanent servant, if it is made in accordance with the terms of the rules of service, cannot amount to punishing the servant concerned, and, therefore, no question of showing cause arises. In this connection he relied upon the following observation at page 48, column 2 bottom, made by the Chief Justice Das In P. L.Dhingra's case (supra) :- "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 this very connection he further relied upon the following observations in paragraph 28 of the judgment -. "It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract or employment or the specific service rule, nevertheless,if a right exists under the contract or the rules, to terminate the service the motive a operating on the mind of the Government is, as Chagla, C J. has said in Shrinivar Ganesh v. Union of India, wholly irrelevant. He contends that in the ins ant case, the termination of service is based on the service rules mentioned above and therefore, as observed by the Supreme Court such termination cannot amount to punishment. 16. Various observation made by Das, C. J. were scrutinised and considered subsequently by a By a bench of the Supreme Court, consisting of seven judges, in the case of Moti, Ram Deka v. General Manager North East Frontier Railway (A.I.R. 1964 -S C. 600), in this case, Mr. Justice Gajendra gadkar, delivering the judgment for the majority, observed as follows: "In regard to permanent servant, the learned Chef Justice has made some observation which it is now necessary to consider very carefully. "The appointment of a Government servant to a permanent post", observed the leaned C. J., may be substantive or on probation or on an the officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold alien on the post." On the same subject, the learned C. J. has later added that '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, be attains the age of superannuation 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 after due notice to him." Reading these two observations together,there can be no doubt that with the exception of appointments held under special contract, the Court took the view that wherever a civil servant was appointed to a permanent post substantively he had a right to hold that post until he reached the age of superannuation or was compulsorily retired, or the post was abolished In all other cases,if the services of the said servant were terminated, they would have to be in conformity with the provisions of Article 311(2), because termination in such cases amounts to removal. The two statements of the law to which we have just referred do not leave any room for doubt on this point. The two statements of the law to which we have just referred do not leave any room for doubt on this point. Later, during the course of judgment the learned C. J. proceeded to examine rule 49 and the explanations added to it, and then once again,he observed that 'it has already been said that where a person is appointed substantively to a permanent post in Government service,he normally acquires a right to hold the post until under the rules,he attains the age of superannuation or is compulsory retired and in the absence of a contract express or implied or a service rule, he cannot be turned our of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualification and appropriate proceeding are taken under the service rules read with Art. 311(2). Termination of service of such a servant so appointed must per se be it punishment, for it operates as a forfeiture of the servant rights and brings about a premature end of his employment." With respect, we ought to point out that though the learned C. J at this place purports to reproduce what has already been stated in the judgment', he has read-two significant additions because in the present statements, he refer; to a contractor service rules which may permit the authority to terminate the services of it permanent servant without taking the case under Art. 311(2),though such termination may not amount to ordinary or compulsorily retirement, the absence of contract, express or implied, or a service rule, which has been introduced in the present statement are not to be found in the earlier statements to which we have already referred.and addition of these two clauses apparently is due to the, Net that the learned C, J. considered Rule 49 and the explanations attached thereto and brought them into the discussion of a permanent servant,and that, we venture to think, is not strictly correct. As we have already seen, Explanation No. 1 to R. 49 is confined to the three' categories of officers specified by it in its columns (a), (b), and(c), and it has no relevance or application to the cases of permanent servants. As we have already seen, Explanation No. 1 to R. 49 is confined to the three' categories of officers specified by it in its columns (a), (b), and(c), and it has no relevance or application to the cases of permanent servants. Similarly the same statement is repeated with the observation as already stated, if the servant has got a right to continue in the post then,unless the contract of employment or the rules provide to the contrary,his services cannot be terminated otherwise than for misconduct, negligence,inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. "With respect, we wish to make the same comment about this statement which we have "already made about the statement just cited. In this connection, it may be relevant to add that in the paragraph where this statement occurs, the learned C.J. was summering up the position and the cases there considered the cases of Satish Chandra Anand, 1953 SCR 655 and Sham Lal, 1955 SCR 26 : These two cases were concerned with the termination of a temporary servant's services and compulsory retirement of a permanent servant respectively, and strictly speaking, they they do not justify the broader proposition enunciated at the end of the paragraph. At the conclusion of his judgment, the learned C. J. has observed that "in every case 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 consequence of the kind hereinbefore referred to." It would be noticed that the two tests are not cumulative, but are alternative, so that if the first testis satisfied, termination of a permanent servant services would amount to removal because his right to the post has been prematurely invaded.The learned C. J. himself makes it' clear by adding that if the case satisfies either of the two tests, then it must be held that the servant had been punished and the termination of services must be held to be wrongful and in violation of the Constitutional rights of the servant.It would thus be noticed that the first test would be applicable to the cases of permanent servants whereas the second test would be relevant in the cases of temporary servants, probationers and the like. Therefore,we do not think, the learned Add l. Solicitor-General is justified in contending that all the observations made in the course of this judgment in regard to permanent servants considered together support his contention. Besides, it we may do so, with respect, these observations are in the nature of obiter dicta and the learned Add l Solicitor -General cannot rely solely upon them for the purpose of showing that R. 148(3)or r. 149(3) should be held to be valid as a result of the said observations." 17. It may be mentioned that in Moti Ram Deka's case (supra) the validity of rule 148(3) and rule 148(4) of the Railway Establishment Code was questioned. It may be mentioned that in Moti Ram Deka's case (supra) the validity of rule 148(3) and rule 148(4) of the Railway Establishment Code was questioned. The said rule ran as follows : "148(3) Other (non pensionable) railway servants:- The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the period shown below.Such notice is not however required in cases of dismissal of removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity." NOTE: The appointing authorities are empowered to reduce or waive,at 'their discretion, the stipulated period of notice to be given by an employee, but the reason justifying their action should be recorded.This power cannot be, re delegated." "148(4) In lieu of the notice prescribed in this rule. It shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice." The Supreme Court ultimately concludes that rule 148(3) and 149(3)which permit the termination of a permanent railway servant in the manner provided by them were invalid because the terminal ion of service was removal of the said permanent railway servant and it contravened the constitutional safeguard provided in Article 311(2) of the Constitution. 18. A perusal of the majority judgment of the Supreme Court, in the case of Moti Ram D:.ka (Supra), shows that the Supreme Court was of opinion that the termination of the services of a permanent Government servant, who has a right to hold a post, before he reaches the age of superannuation or is compulsorily retired after putting in requisite numbers of years' service, per se amounts to punishment and any rule authorising termination of his service before such period by giving him notice would be invalid as being in contravention of Article 311(2)of the Constitution. This shows that even though there may be rule authorising the termination of service of a permanent Government servant by giving him notice, such is provision cannot be taken into consideration in determining whether the order of termination of service amounts to punishment or not. This shows that even though there may be rule authorising the termination of service of a permanent Government servant by giving him notice, such is provision cannot be taken into consideration in determining whether the order of termination of service amounts to punishment or not. This case further emphasises that in all cases where the services of a Government servant, who has a right to hold a post until the age of superannuation or till be is compulsorily retired, is terminated it will necessarily result in punishment, for it operates as forefeiture of a right. In such cases it cannot be argued that the order terminating the service of such a servant does not amount to punishment as there is a rule entitling the Government to determine the employment by giving him notice. 19. The position of a servant under the District Board Act is not cry much different from that of a Government servant. Just as in the case of a permanent Government servant, Fundamental Rule 56 prescribes the age of superannuation, in the same way in the rules framed under notification No. 1923A/IX-A-1(22)-67 dated 24 of June, 1968, it has been provided that the age of retirement from service of all employees of the District Board shall be 58 years. This indicates that once a District Board servant is permanently appointed to a post he get a right to hold the post till the age of superannuation, that is,58 years and termination of his employment before be reaches that age would per se be punishment as it entails forfeiture of his rights.In such a case the Regulation regarding dismissal, removal or reduction of officers and servants of the District Board, printed at page 193 of the Manual, comes into operation. According to this Regulation no officer or servant can be dismissed or removed without reasonable opportunity being given to him for showing cause against the action proposed to be taken against him Rule 3-A printed at page 189 of the Manual, has got to be read along with the Regulation printed at page 193. Whether rule 3-A applies or not it would be necessary to afford a reasonable opportunity to a servant to show cause against the action proposed to be taken against him, in case he is to be dismissed or removed from service. 20. Whether rule 3-A applies or not it would be necessary to afford a reasonable opportunity to a servant to show cause against the action proposed to be taken against him, in case he is to be dismissed or removed from service. 20. In our opinion, therefore, In a case where the order determining the service of a District Board employee amounts to punishment as it affects his rights to hold the post, it would not be correct to say that the order (ceases to be an order inflicting punishment because the employee has been given three months notice as provided In rule3-A. 21. In view of the fact that the petitioner had a right to the post of Secretary till he attained the age of superannuation and that right has been affected, the order terminating his services per se amounts to punishment. It operates as a forfeiture of his rights by bringing about a premature end of his employment. It was, therefore, obligatory upon the Zila Parishad to have followed the procedure prescribed for punishing its employees printed at page 193 of the Manual. Petitioner's services could not be determined merely by giving him three months notice. 22. The second argument raised on behalf of the petitioner is that even though the order terminating petitioner's service is innocuous and purports to be under rule 3A. the circumstances in which the order was made unmistakably point to the direction that it was made by way of punishment. As such also, the resolution for terminating his employment without affording opportunity to him to show cause, is invalid. Learned counsel for the Zila Parishad, on the other hand, argued that the order on the face of it was passed in exercise of the powers under rule 3-A and it was not competent for this Court to go into the motive behind the order and to test his validity on that basis. 23. In a recent decision of this Court In the case of Swami Saran Saxena v. State of U P. ( 1969 SLR 787 ), where the services of a temporary Judicial Officer were terminated by a simple order of discharge,it was held that in an appropriate case the Court has to see be truth and substance of the matter and has to determine whether an order though couched as a simple order of termination really amounts to removal from service. This Court found that the impugned order of termination visited the appellant with evil consequences inasmuch as his 12 years devoted service was suddenly snapped by the so called order of termination. The Court observed that it was true that the order in question itself did not cast any aspersion on the character or integrity of the appellant, bit there were three communications proceeding the order of termination in which the appellant's integrity and character were assailed by saying that hip conduct was most unbecoming and was not above board and that he was unfit to be retained in service.In the circumstances, this Court considered that the termination of service of the appellant was In fact by way of punishment, and as the order had been passed in violation of Article 311(2) of the Constitution,it was invalid. 24. The question whether it is open to a court to go behind an innocuously worded order passed by an authority came up for consideration before the Supreme Court in a number of cases recently. In these cases the earlier decisions of the Supreme Court were considered. The first of such cases is the case of State of Bihir v. Shiva Bhikshuk Mishra(1970 S. L R. 863). In this case after considering a number earlier decisions their Lordships of the Supreme Court made the following observation:- "We are unable to accede to the contention of the appellant that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of a Government Officer in the impugned order it cannot be held to have been made by way of punishment. The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. In Dhaba's case ( 1959 S.L R. 442) it was not found that the order of reversion was based on misconduct or negligence of the officer.So for as we are aware no such rigid principle has ever been laid down by this Court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government officer it must be held to have been made in the ordinary course of administrative routine and the Court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The farm of the order did not conclusive of its true nature and It might merely he a cloak or camouflage for an order founded on misconduct (see S R Tewari District Board Agra and another (1964 3S C. R. 55). It may be that an order which is innocuous on the fate and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances proceeding or attendant on impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order." 25. Similarly In the case of Jagdish Prasad Shastri v. State of U P.(1970 S. L. R 928) the Supreme Court observed as follows :- "It may be observed that according to the decision of this Court the mere form of the order reverting an officer to his substantive post even if be is appointed temporarily or in an officiating capacity to a superior post is not decisive. If the order is made for a collateral purpose or if in making the order the officer is actuated by malice,the order is liable to be set aside. If the order is made for a collateral purpose or if in making the order the officer is actuated by malice,the order is liable to be set aside. Again If the order is liable to penalty, even if on the face of it the order does not bear any such impress, the officer prejudiced by the making of that order is entitled to prove that he has been denied the protection of the guarantee under Article 311 of the Constitution, or of the protection of the rules governing his appointment. An order of reversion made due to exigencies of the service in consequence of which an officer who was temporarily appointed or appointed in an officiating vacancy may not be challenged. But the order passed maliciously or on collateral consideration, or denied to the civil servant the guarantee of the Constitution or of the rules governing his employment, is always open to challenge by appropriate proceedings. A perusal of the aforesaid observations indicates that even though an impugned order may be innocuously worded it is open to this Court to look to the real substance of the order and to find whether it was made in the exigencies of the service or was made of collateral considerations. If it Is found that the order terminating the service is made on collateral considerations, it will be open to the Court to go behind that order and to quash it. In Jagdish Prasad Shastri's case (supra) the Supreme Court was concerned with an order of reversion of an officer to his substantive post. If as order reverting an officer to substantive post can be questioned on the ground that it has been passed on collateral considerations, there is no reason why an order terminating the services of a permanent servant cannot be questioned on that ground. 26. In the case of Appar Apar Singh v. State of Punjab (1971) S.L.R.71) the appellant was officiating in the Punjab Education Service Class I and working as Principal of a college. Certain charges were levelled against him which were enquired into by two Deputy Directors of the Department of Education. This enquiry was conducted ex parte and behind the back of the appellant. The two Deputy Directors recommended that the appellant needed some exemplary punishment without being called upon to face a regular departmental enquiry. Certain charges were levelled against him which were enquired into by two Deputy Directors of the Department of Education. This enquiry was conducted ex parte and behind the back of the appellant. The two Deputy Directors recommended that the appellant needed some exemplary punishment without being called upon to face a regular departmental enquiry. The Government accepted the recommendations and passed a simple order reverting the appellant from Punjab Education Service Class I to Punjab Education Service Class II. The order by it self and on the face of it, was innocuous.The Supreme Court came to the conclusion that there was a close connection between the findings recorded by the two Deputy Directors and the order of reversions and the main point to be decided in the case was whether the findings so accepted by the Government operated only as a motive for passing the order of reversion or whether the report against the appellant was very foundation for passing the impugned order. The Supreme Court observed that it was not possible to accept the large proposition advanced on behalf of the State that merely because the appellant was officiating in Punjab Education Service Class I,the State bad the power to revert him to his substantive post of Punjab Education Service Class II and that such reversion will not amount to reducing the appellant in rank by way of punishment or nor it cannot be decided merely on the basis of the terms of the order but regard must be had to the attendant circumstances also.In order to find whether an impugned order is one passed by way of punishment, the form in which the order is expressed is not decision and the circumstances preceding or attending on the order have to be examined in each case. The Supreme Court further found that an ex parte enquiry had been conducted against the appellant. In that enquiry statements were recorded by the Deputy Directors which were not disclosed to the appellant, who had no opportunity of cross examine those witnesses. The Deputy Directors recorded findings that the allegations made against the Principal were corroborated by the students and the members of the staff and recommended that the appellant needed exemplary punishment without being called upon to notice a regular departmental enquiry. The Deputy Directors recorded findings that the allegations made against the Principal were corroborated by the students and the members of the staff and recommended that the appellant needed exemplary punishment without being called upon to notice a regular departmental enquiry. The Government accepted the findings of the Deputy Directors as well as their recommendation to impose punishment against the appellant and on its basis the order reverting the appellant was passed. In the circumstances, the findings recorded by the Deputy Directors against the appellant and their recommendations to impose punishment upon the appellant were the very foundation for the Government for passing the order reverting the appellant from his officiating post The Supreme Court further found that the reversion of the appellant was bated entirely and exclusively on the basis of the adverse findings recorded against him by the Deputy Directors and the report themselves formed the foundation of the order of reversion being passed. 27. In the case before us, there is no dispute that a number of charges were framed against the petitioner and, the enquiry in respect of those charges was pending with a view to punish him. In the written statement filed on behalf of the Zila Parishad and its Adhyaksh, in suit no. 3 of 1966, C there is clear admission that petitioner's service read admitted for various misconduct, mistake for geries and neglect of duty. In the circumstances it is clear that the allegations of various misconducts,mistakes, forgeries and neglect of duties made in the charge sheets,which are pending against the petitioner, have a vary close connection with the order terminating his set vices and are the foundation for the same. In the circumstances, there is no escape from the position that even though the resolution determining petitioner services is worded in an innocence manner it has been passed in order to punish him without complying with the rules for dismissal or removal of a Zila Parishad's servant. 28. We are, therefore of opinion that the impugned resolution dated 9-11-1963, terminating the petitioner's service under rule 3-A of the rules regarding officers and servants of the District Board, without affording an opportunity to the petitioner to show cause, is illegal and is liable to be set aside. 29. 28. We are, therefore of opinion that the impugned resolution dated 9-11-1963, terminating the petitioner's service under rule 3-A of the rules regarding officers and servants of the District Board, without affording an opportunity to the petitioner to show cause, is illegal and is liable to be set aside. 29. In this view of the matter it is not necessary to go into and discuss the other arguments raised in this special appeal, and there solution dated 9.11.1963 deserves to be quashed. 30. In his writ petition apart from praying for the quashing of there solution dated 9.11.1963, the petitioner further prayed that a writ of mandamus may be issued commanding the respondents not to give effect to the resolution terminating his service as also the resolution dated 11th July, 1963 and 7th October, 1963 suspending him as Secretary pending enquiry. After the resolution dated 9.11.1963 is quashed,there is no point in granting a further mandamus commanding the respondents not to give effect to their other resolutions. 31. So far as the two resolutions dated 11th July, 1963 and 7th October,1963, suspending the petitioner pending enquiry into the charge sheets are concerned, the argument of the petitioner is that the moment petitioner's service is terminated by the resolution dated 9-11-1963, the suspension orders came to an end. Even if the resolution terminating petitioner's services is quashed, the order of suspension, which ceased to be effective,will not revive. In this correction reliance war placed upon the cage of Om Prakash Gupta v. State of U. P., (A.I.R. 1955 S. C. 600).In this case the Supreme Court held that suspending inquiry comes to an end, and merges with the ultimate order determining employment Even if the order determining the employment is quashed, the suspension order determining the employment is quashed, the suspension order does not revive. We are accordingly of opinion that after the resolution determining petitioner's service in this case is quashed the suspension orders dated 11-7-1963 and 7-10-1963 will not revive. 32. We also do not consider it necessary to issue any mandamus commanding the respondents to pay the petitioner all the remuneration which he would have been entitled in terms of paragraph 76 (a) and 76(b) of the petition. In order to recover his remuneration the petitioner will have to initiate appropriate proceeding in which the precise amount payable to him may be determined. In order to recover his remuneration the petitioner will have to initiate appropriate proceeding in which the precise amount payable to him may be determined. In the circumstances, it is not necessary for us to declare the extent of petitioner's right in respect of the remuneration, which he is entitled to receive as a result of the order quashing the resolution dated 9.11.1963. Further relief claimed by the petitioner that mandamus be issued commanding the respondents to make available to the petitioner all the privileges and benefits under the U. P. Kshetra Samitie, and Zila Parishad Act to which he would have been entitled but for the impugned order, it is a relief which is rather vaguely worded No case has been made out to show that even after the resolution dated 9.11.1963 terminating petitioner's service is quashed, the petitioner sill not receive what is due to him in accordance with law. 33. In the result, we allow this appeal and set aside the judgment of the learned Single Judge. The petition filed by Sharnt Chand Misra is allowed, the resolution dated 9.11.1963 terminating his services as Secretary of the Zila Parishad is quashed. The order of the State Government dated 2.11.1963 rejecting the petitioner's representation against the resolution dated 9.11.1963 is also quashed. We further direct that as a result of the order made by this Court quashing there solution determining petitioner's services, the suspension order dated 11.7.1963 and 7.10.1963 do not revive and they will not by 'given effect to. The appellant is entitled to his costs both in the writ petition as also in this appeal.