JUDGMENT CHANDVRKAR J. -. This judgment shall dispose of Special Civil Applications Nos. 1078, 1079 and 1080 of 1969. : The three petitioners who have filed these petitions held temporary employment as Malaria Surveillance Workers in an anti-malarial scheme which was apart of the National Malaria Eradication programme. They were all working in Bhandara district under the Malaria Officer. National Malaria Eradication Unit Bhandara. Their duty was to search out patients suffering from fever take out blood for inspection from suspected patients give treatment to the patients go from house to house to enquire into the disease; maintain records send reports and were required to perform other clerical and manual duties. It is not disputed that each of these workers had give a specific undertaking that his appointment was purely temporary and that his services were liable to be terminated without any notice and without any reason-being assigned. Accordingly the services of all the petitioners were terminated. The services of P.M. Dumbhare, petitioner in Special Civil application No. 1078 of 1969, were terminated by an order passed on 4-10-1966 and since this order was served on the petitioner on Anna Zagaduji Khandare, petitioner in Special Civil Application No.1079 of 1969, were terminated by a notice given on 3-5-1967 and the services of N.K. Madvi, petitioner in Special Civil Application No.1080 of 1969, were terminated by a notice dated 31-3-1967. Each one of these petitioner then filed an application under section 78-D of the Bombay Industrial Relations Act,1946, alleging that the order of termination was not passed bone fide and that it was really in the nature of victimization because the Malaria Officer did not approve of the Trade Union activities of the petitioners. It was also alleged that no charge-sheet was ever served nor was any enquiry made and since the junior employees working in the same cadre were retained, the termination amounted to retrenchment which was brought about without complying with the provisions of Chapter V of the Industrial Disputes Act, 1947. 2. The defence of the state to these applications was that the department itself was temporary and appointment of he petitioners were also temporary. The charge of victimization was denied and it was alleged that the termination is in terms of the contract entered into between he parties at the time of the appointment. 2. The defence of the state to these applications was that the department itself was temporary and appointment of he petitioners were also temporary. The charge of victimization was denied and it was alleged that the termination is in terms of the contract entered into between he parties at the time of the appointment. It is also alleged on behalf of the State that the activity of malaria eradication was not undertaken with the intention of making any profit, but was to relieve the suffering of mankind and was a philanthropic activity and not an industry, and therefore, the applications were not maintainable. The Labour Court held that the department in which the employees were working was an industry and consequently the applications were maintainable. The Court also held that the termination orders were not passed in the bona fide exercise of the power of the employer and that the termination orders were, therefore, illegal. Before the Labour Court reliance was placed on the decision of the Supreme Court in Madras Gymkhana Club Employees Union v. Gymkhana Club,1 but the Labour Court held that all the features of industry were existing in the activity of Malarja Eradication and that the State was rendering material services to the Community at large, and therefore, the department was an industry within the meaning of Bombay Industrial Relations Act. The termination of the services of all the 3 petitioners was, therefore, held to be illegal and improper and the State was directed to reinstate, them with full back-wages from we date of the termination to the date of their reinstatement at the rate at which they, were paid respectively at the time of their termination. 3. Against these, orders:, the. Director of Public Health, Maharashtra State and the Malaria Officer, National Malaria Etadication Unit, Bhandara filed 3 revision applications. By, a common order the Industrial Court took, the view that the termination order was not passed bona fide, but on the question whether the department in which the petitioners were working was an industry Page No. 271 •.. ~ I 1972 Mh.L.J.] P. M. DUMBHAJtE v. "DJR OF,PuB, HE~J,.TlJj MAR,; .. r .1- .;~ . .! " rr ":""; ", ~r", 1".). .~;:c -;;~_" . :_~."-" .<., within the. mean~~~, of the:BQrp~ay, Indu~~r~~I!R~J~tiQnsAct",1946,i~ held agai~st lhepeiitioners •. T~e J~~~tr,~l Qo~r,t J.tt;\d Jhat. the,a(:,tivity of eiadicalionot Majari~ could not. ~ I 1972 Mh.L.J.] P. M. DUMBHAJtE v. "DJR OF,PuB, HE~J,.TlJj MAR,; .. r .1- .;~ . .! " rr ":""; ", ~r", 1".). .~;:c -;;~_" . :_~."-" .<., within the. mean~~~, of the:BQrp~ay, Indu~~r~~I!R~J~tiQnsAct",1946,i~ held agai~st lhepeiitioners •. T~e J~~~tr,~l Qo~r,t J.tt;\d Jhat. the,a(:,tivity of eiadicalionot Majari~ could not. be styled as an activity analogous to;trade Ot, business an~. that the mere fact that the activity results in selVice to humanity· does not p::ake it anindustty,becabsC: the undertakingwast1ota.rtalogous ito trade ,or business" In this view of th~: matter; the Inclustriafddurt-catrte ,totheconclu,sion that the employees were not rendering ·niiterialserytce"totl1e soCi~ty"a~d ~he ·etfiplO}er "was, ho(,<a,rrY~r.:g::?n.:,~~Y)n;d~stfY, ~PQ . the"present- p«:titi°ll,ers could not. h,~lHyl~~a,s,~tdu¥~l,~,I:~f;~{Ilf:,nTl1e Qrd~r of the Laoour Courtdiiec·ting reinstatement "as, therefore, set aside. The three petitioners have;l0"Y file~ t~~~j ee6tiQn!l;CM-U~ngipgtht)~~rq~"oCthel~dus~ial ?Olitt. ., 4. It is vehemently contended on behalf of the peiitioner~ that the construction placed by the Supreme Court on the word "mou§try" as c1e:tinect in sfction 2 (J}, of the ,Industrial> Dispute$l:Aetjrll94Prdoes not goVern the- c6hstruct_ i;o.l!r. Qf "iDqy.!itry".C\s....d~finedjni8eaioir2{ 19}-()f; the <B6ifiba} Indi1!ltriaI Relations Act, 1946, and therefore, the Industrial Court was not justifieain hor<ling that the activity of malaria eradication was not an industry withiifthe meahing of section 2 (19) of the Bombay InditstfidIR~laH~s Attr 1,940~ " •. 5. If is iri~te~,sarf}t,.t1tj~z!sfa~et?·rer~ii.9.~~d~in·Ill~~J;i~ip~ovisions 6f the relevant statutes. In sectIOn 2 (j) of the Industrial Disputes Act, 194.7, the \yord "industry" isdennedas folJo~s I, .. :.].~, lr.. i;fov • "2 (j). "industry" me&lls any busillessi. ;tta<lei andertaklrig.· lUliliufaotiu!eor ooHlrig of empJoyelsand includes any calIin~. selvlce.empl01mellt.,~&I)dic •. af~,~or industrialoooopatiolh or a avocation of workmen," ,." !." 271: The Bombay Industrial ~eJatiotls Act,. beC3me.applicahle in the Vidarbha~ area of the State of Mahara,shtra. by . Mahar:ashtra :ActNo; XXUor 1965.\ Pri~r to this Act the law relatin~ to the settIemrnf,of industrial diSputes in : force in the Vidarbha areawastbeC.,P.and Bernr IndmtriaTDispUles. S~ttle-; .:n~nt Act, 1947 .,Sectil;)02 re3,) ,of tbe BQmb<l¥iAtt provideSithat imtMateajj~ in whi~p the Bombay.Indl;lstrj~,ll?j,sput~t1\ct!. I,938.,was, in, f\>rc~ ~mme~iately befole the commencemeritofihe BOmbay tndustrla:l~olatioll$Act. 1946, this, ACt shall apply to the industries to which the carlier Act applied.;rhen by, ~tib-sectiort (4) of section 2 the, St~te qov~e;nrr,ent hasb}eep!Sivenap~:wer to: issue a notification making applicable all or any ,of theproviS~OQ~ ()f t4e ~ct to; all or any other irldustries, whether generally or . in liriy l()cal:~~~",~sl}1ay be~ specified in suchnoi:ification:. 1946, this, ACt shall apply to the industries to which the carlier Act applied.;rhen by, ~tib-sectiort (4) of section 2 the, St~te qov~e;nrr,ent hasb}eep!Sivenap~:wer to: issue a notification making applicable all or any ,of theproviS~OQ~ ()f t4e ~ct to; all or any other irldustries, whether generally or . in liriy l()cal:~~~",~sl}1ay be~ specified in suchnoi:ification:. 10 this suJ)~sectionthere.i,a p,:oviso., It pro.; vides that on the commencement or the Bombay Irld~s~i~l.Rc=lations (Exten •. , sion and. Aniendfuent) Act; 1964,. ~Il,.~ef>rovisio\lS,9.ri!ieAcfs1il\U·apply to th6seiridustties in the Vidarhha,~r,e~;ott~e S~~teiow~ic~Ahe •. C~ntral Pro-~ vinces and Berar lrt~ustrial I?lsp4tes:SeuJ~~ent Act, t917~"~pplied. In order to appreciate the ·import. of :th~~. p,r~visionsJit i$lt~essaryto reproduce the material part ofsectioli 2: . ,;;;;" •. , ", ",." "., .. . (, •..... .. : .. ;" \ .• , " .• .:~ ",1 _. "2 (1). This Act extends tq t~e w~ole:et t~e Stl!de oflllaharashtta, .{2) •••••• (, .J:;;~";," ~. Provided that, On the. commencitmElbt,llttheBombiiY llidtistriarRel~tions (Extention, and: AineDdment).A:bt. 1964, this Act sbal100me into lo~ in: those areas of the Vid~ area of the . Sta.te i~ ,~iuah immediately before such oommenoem~t the Central PrQ"inoesand Betar Indug- .• ~.viaLDisPUtes..8eWtlmeni.Aat...w.7~wa,sin.f~, ~:.:..:.. ,, __ , . 272 P; M. DUMBHARE v DIR O,PuB HEALTH. MAR [19Z :Hh.L.J. (8) In the areas in which the Bombay Industrial Disputes Act, 1988 was in force immediately before the commencement of this Act, this Act shall apply to the industries to which the Aid Act applied; (4) The State Government may by noti1loation in the Official Gazette apply all or any of the provisions of this Act to all or any other industries, whether generally or in an local area, as may be specified in such notification ; Provided that on the commencement of the Bombay Industrial Relations (extention and Amendment) Act, 1964 an the provisions of this Act shall apply to those industries in the Vidarbha area of the State to which the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 applied." Then the only other material provision is in section 2(19) which defines "industry" as follows: "2 (19). "industry" mean………… (a) any business, trade, manufacture or undertaking or calling of employers; (b) any calling, service, employment, handicraft, or industrial oeei1pation or avocation of employees; and includes- (i) agriculture and agricultural operations; (ii) any breach of an industry or group of industries which the state Government may by notification in the Official Gazette declare to be an industry for the purposes of this Act." 6. It was contended on behalf of the respondents in this case that the definition of "industry" in section 2 (19) of the Bombay Industrial Relations Act, 1946 is not at all relevant for the present purpose, in view of the provisions of section 2 (4) of the Act and that the elaborate argument advanced on behalf of the petitioners that the ratio of the decisions in the Madras Gymkhana Club Employees Union v. The Management of the Gymkhana Club and The Management of Safdar Jung Hospital, New Delhi v. Kuldip Singh Seth;2 cannot be invoked because there is a material difference between the definitions in the Central Act and the Bombay Act does not require to be considered. 7. There is no dispute that with effect from 1-5-1965 which is the date of commencement of the Bombay Industrial Relations (Extension and Amendment) Act, 1964 (Act No. 22 of 1965) the Bombay Industrial Relations Act came into force in the Vidarbha area of the State in which immediately before such commencement the C. P and Berar Industrial Disputes Settlement Act, 1947 was in force. But the provisions of the Act by themselves did not become applicable to any industry because as required by sub-section (3) the Bombay Industrial Disputes Act, 1938 was not in force in the Vidarbha region immediately before the commencement of the Act and admittedly no notification has been issued. by the State Government in the exercise of its power under section 2 (4) of the Act making the provisions of the Act applicable to the activity which is alleged by the petitioners to be an industry in the instant case. The proviso to sub-section (4) of section 2 provides that all the provisions of the Bombay Industrial Relations Act, 1946, became applicable only to those industries in the Vidarbha area of the State to which the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, applied. The proviso to sub-section (4) of section 2 provides that all the provisions of the Bombay Industrial Relations Act, 1946, became applicable only to those industries in the Vidarbha area of the State to which the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, applied. The proviso, therefore, clearly indicates that in order to make the provisions of the Bombay Act applicable to any particular industry the provisions of the C. P., and Berar Industrial Disputes Settlement Act, 1947 must have been applicable earlier to that particular industry. In other words, unless an activity was an industry to which the provisions of the C. P. and Berar Industrial Disputes Settlement Act, 1947 were applicable, there was no question of the provisions of the Bombay Industrial Relations Act, 1946 becoming applicable to that activity. In order that an activity was an industry for the purposes of applicability of the C. P. and Berar Industrial Disputes Settlement Act, 1947, that activity had to fall within the definition of "industry" in the C. P. and Berar Act. Thus whether an activity in the Vidarbha area was an industry or not to which the provisions of the Bombay Act were applicable or not had, therefore, necessarily to be decided with reference to the definition of "industry" in the C.P. and Berar Industrial Disputes Settlement Act, 1947. Consequently the question whether the activity in which the petitioners were employed was an industry or not within the meaning of the term "industry" as defined in section 2 (19) of the Bombay Act does not at all arise in the instant case. Rerefence has; therefore, necessarily to be made to the definition of "industry" in the C. p. and Berar Industrial Disputes Settlement Act, 1947 which is given in section 2 (14) as follows: "2 (14). "industry" includes- (a) any business, trade, manufacturing or mining undertaking or calling of employers, (b) any calling, service, employment, handicraft or industrial occupation or avocation of employees, and (c) any branch of an industry or a group of industries;" 8. "industry" includes- (a) any business, trade, manufacturing or mining undertaking or calling of employers, (b) any calling, service, employment, handicraft or industrial occupation or avocation of employees, and (c) any branch of an industry or a group of industries;" 8. It is contended on behalf of the petitioners that the definition of "industry" in the C. P. and Berar Industrial Disputes Settlement Act, 1947 has been read as if it is in two parts in corporation of City of Nagpur v. Its Employees3 and that in view of that decision clause (b) in section 2 (14) of the C. P. and Berar Act must be read independently of clause (a) and that calling, service and employment of an employee must be taken to be artificially included in the definition of "industry". 9. Now it cannot be disputed that in the Nagpur Corporation case the question whether there is any distinction between the definition of "industry" in the Industrial Disputes Act, 1947 and the definition of the same word in the C P. and Berar Industrial Disputes Settlement Act, 1947 came up for consideration and referring to these two definition it was held that the ratio of the decisions of the Supreme Court in Baroda Borough Municipality v. Workmen4 and in D. N. Banerji v. P R. Mukherjee5 in which the word "industry", as defined in the Industrial Disputes Act, 1947 was construed, would be applicable to the definition of "industry" in the C. P. and Berar Act. Referring to the differences between the two definitions, the Supreme Court observed in the Nagpur Corporation case (cit. supra) in paragraph 6 of the judgment;, "In our view these differences do not justify us in taking a different view from that accepted by this Court in the foregoing decisions. Clause (a) of the definition defines industry with reference to the employers and clause (b) with reference to the employees. supra) in paragraph 6 of the judgment;, "In our view these differences do not justify us in taking a different view from that accepted by this Court in the foregoing decisions. Clause (a) of the definition defines industry with reference to the employers and clause (b) with reference to the employees. Excluding the words "manufacturing or mining undertaking" from clause (a) of the definition, the other words in clauses (a) and (b) thereof are comprehensive enough to take in all the categories which the definition of "industry" in the Industrial Disputes Act will take in." This decision is no doubt an authority for the proposition that the apparent difference between the two definitions does not require the word "industry" in the C. P. and Berar Act to be construed differently from the construction placed on it as defined in the Industrial Disputes Act, 1947. It is also true that relying on the decisions of the Supreme Court in earlier cases the word "industry" was construed as being very comprehensive and that it was held that the definition is in two parts, one part defining it from the stand-point of the employer and the other from the stand-point of the employee and that if an activity falls in either part of the definition, it Will be "industry" within the meaning of the Act. It is, however, apparent from the two later decisions of the Supreme Court in the Madras Gymkhana Club case and Safdar Jung Hospital Case (cit. supra) that the approach which was adopted by the same Court in the Nagpur Corporation case by reading the definition of "industry" in two parts was departed from and on a proper construction of the word "industry" it was found that the definition has to be read as a whole. 10. Reconsidering the definition of "industry" as defined in section 2 (j) of the Indus trial Disputes Act, 1947, the Supreme Court after reviewing the earlier decisions restated the legal position in the Madras Gymkhana Club case (cit. supra) as follows: "The definition of industry is in two parts. In its first part it moans any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. supra) as follows: "The definition of industry is in two parts. In its first part it moans any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. These activities are specified by five words and they determine what an industry is and what the cognate expression industrial is intended to convey. This is the denotation of the term or what the word denotes. We shall presently discuss what the words "business, trade, undertaking, manufacture or calling" comprehend. The second part views the matter from the angle of employees and is designed to include something more in what the term primarily denotes. By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry This part gives the extended connotation If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define industry. An industry is not to be found in every case of employment or service. An individual who employs a cook gets service from his employee whose avocation is to serve as a cook but as the activity of the individual is neither business, nor trade, nor an undertaking, nor manufacture, nor calling of an employer, there is no industry. By the inclusive part of the definition the labour force employed in an industry is made an integral part of the industry for the purposes of industrial disputes although industry is ordinarily something which employers create or undertake." In paragraph 23 of the judgment the Supreme Court observed: "The principles so far settled come to this Every human activity in which enters the relationship of employers and employees, is not necessarily creative of an industry. Personal services rendered by domestic and other servants, administrative services of public officials, service in aid of occupations or professional men, such as doctors and lawyers, etc, employment of teachers and so on may result in relationship, in which there are employers on the one side and employees on the other but they must be excluded because they do not come without the denotation of the term industry. Primarily, therefore, i4dustrial disputes occur when the operation undertaken rests upon co-operation between employers and employees with a view to production and distribution of material goods, in other words, wealth, but they may arise also in cases where the co-operation is to produce material services. The normal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expression trade, business and manufacture." The Supreme Court thus held that before the work engaged in by an employer can he described as an industry, it must bear the definite character of trade or business or manufacture or calling or must be capable of being described as an undertaking resulting in material goods or material services and while referring to the meaning which should be given to the word undertaking the Supreme Court observed in paragraph 26 that the word undertaking must be defined as "any business or any work or project which one engages in or attempts as an enterprise analogous to business or trade." Another test which was laid down by the Supreme Court in the same case was that where an activity is to be considered as an industry, it must not be causal but must be distinctly systematic and the work for which labour of workmen is required, must be productive and the workmen must be following an employment, calling or industrial avocation. It was also pointed out that when private individuals are the employers, the industry is run with capital and with a view to profits and these two circumstances may not exist when Government or a local authority enter upon business, trade, manufacture or an undertaking analogous to trade. 11. The conflicting views on the definition of "industry" were again considered by the Supreme Court in the Safdar Jung Hospitals case (cit. Supra). 11. The conflicting views on the definition of "industry" were again considered by the Supreme Court in the Safdar Jung Hospitals case (cit. Supra). Referring to the observations of the Court made in the earlier decision in Madras Gymkhana Clubs case in paragraph 20, the Supreme Court observed that the observations needed to be qualified and after referring to the definition of industry in section 4 of the Commonwealth Constitution and Arbitration Act (1909-1910) of Australia further observed in paragraph 11 of the judgment as under: "Although the two definitions are worded differently the purport of both is the same. It is not necessary to view our definition in two parts. The definition read as a whole denotes a collective enterprise in which employers and employees are associated. It does not exist either by employers alone or by employees alone. It exists only when there is a relationship between employers and employees the former engaged in business, trade, undertaking manufacture or calling of employers and the labour engaged in any calling. Service, employment, handicraft or industrial occupation or avocation. There first, therefore, be an enterprise in which the employers follow their avocations as detailed in the definition and employ workmen who follow one of the avocation detailed for workmen. The definition no doubt seeks to define industry with reference to employers occupation but includes the employees, for without the two there can be no industry. An industry is only to be found when there are employers and employees the former relying upon the services of the latter to fulfil their own occupations." (Italics is ours.) Having thus departed from the earlier approach adopted in several cases which read the two parts of the definition of "industry" in the Central Act independently of each other it was held that the word "industry" must take its colour from the definition and that it discloses that a workman is to be regarded as one employed in an industry if he is following one of the vocations mentioned in conjunction with his employers engaged in the vocations mentioned in relation to the employers. 12. The concept of material services was further expounded in paragraph 16 of the judgment in the following words: "What is meant by material services’ needs some explanation too. 12. The concept of material services was further expounded in paragraph 16 of the judgment in the following words: "What is meant by material services’ needs some explanation too. Material services are not services which depend wholly or largely upon the contribution of professional knowledge skill or dexterity for the production of a result. Such services being given individually and by individuals are services no doubt but not material services. Even an establishment where many such operate cannot lie said to convert their professional services, into material services. Material services involve an activity carried on through co-operation between employers and employees to provide the community with the use of something such as electric power, water, transportation mail delivery, telephones and the like. In providing these services there may be employment of trained men and even professional men, but the emphasis is not on what these men do but upon the productivity of a service organised as an industry and commercially; valuable. Thus the services of professional men involving benefit to individuals according to their needs such as doctors, teachers, lawyers, solicitors etc., are easily distinguishable from an activity such as transport service. The latter is of a commercial character in which something is brought into existence quite apart from the benefit to particular individuals. It is the production of this something which is described as the production of material services." The Supreme, Court has also observed that before an industrial dispute can be raised between employers and their employees or between employers and employers or between employees and employees in relation to the employment or non-employment or the terms of employment or with the conditions of labour of any person, there must be first established a relationship of employers and employees associating together, the former following a trade, business, manufacture, undertaking or calling of employers in the production of material goods and material services and the later following any calling, service, employment, handicraft, or industrial occupation or avocation of workmen in aid of the employers enterprise and it was not necessary that there must be a profit motive but the enterprise must be analogous to trade or business in a commercial sense. 13. 13. It is thus clear from the decisions of the Supreme Court in the Madras Gymkhana Club case and the Safdar lung Hospital case that before the work in which the employees are engaged can be described as "an industry" it must bear the character of trade of business or manufacture or calling of must be capable of being described as an undertaking resulting in material goods or material services. It is not necessary that the economic activity must be related to a profit motive, but what is material is that the material services must be brought into existence in a commercial way. We have already pointed out that there is no material difference between the definitions of industry given in the Industrial Disputes Act, 1947 and the one given in the C. P. and Berar Industrial Disputes Act, 1947 and the definition in the C. P and Berar Industrial Disputes Act must, therefore, be construed in the same manner as has been laid down by the Supreme Court in the Madras Gymkhana Club case and the Safdar Jung Hospital case. Thu; before an activity is sought to be termed as an industry under the C. P. and Berar Industrial Disputes Act, 1947 it has to be established that the employer is engaged in business, trade, undertaking or manufacture or a calling in the production of material goods and material services and that the employee is engaged in any calling, service, employment, handicraft or industrial occupation or avocation in and of the employers enterprise. Applying these tests it can hardly be said that the services rendered to the community at large by the State functioning through its malaria eradication activity would be an "industry" or that, these activities were analogous to trade or business. The State Industrial Court was, therefore, right in holding hat the malaria eradication activity undertaking by the State in the larger interest of public health of the community was not an industry. In view of this finding the Industrial Court was further justified in holding that the application filed before the Labour Court by the petitioners was not maintainable. 14. The State Industrial Court was, therefore, right in holding hat the malaria eradication activity undertaking by the State in the larger interest of public health of the community was not an industry. In view of this finding the Industrial Court was further justified in holding that the application filed before the Labour Court by the petitioners was not maintainable. 14. It was then contended that if the petitioners were held not entitled to invoke the jurisdiction of the labour Court, then the petition should be treated as one "challenging the order of termination and it is argued that the termination orders were illegal having been passed without complying with the provisions of Article 311" of the Constitution af India. Reliance was placed and the decision of the Supreme Court in State of Bihar and others v. Shiv Bhikshuk Mishra.6 In this case the Supreme Court has held that no rigid principle has been laid down by the Supreme Court that and has to merely look to the order and if it does not contain any imputation of misconduct of 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 a discover whether the order had been made by way of punishment. It is also held that the form of the order was not conclusive of its true nature and it might merely be a cloak or camouflage far an order founded an misconduct and that the entirety of circumstances preceding of attendant an the 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. 15. It was painted out by the learned counsel far the petitioners that in the return filed an behalf of the State it has been stated that the services of these petitioners were terminated an the ground that their work was unsatisfactory. It was, therefore, contended that the orders were really in the nature of punishment and were liable to be quashed. No such case was made out by the petitioners in their petition, but this case has now been raised in a rejoinder filed after the respondents had filed their return. The petitioners were not able "to. It was, therefore, contended that the orders were really in the nature of punishment and were liable to be quashed. No such case was made out by the petitioners in their petition, but this case has now been raised in a rejoinder filed after the respondents had filed their return. The petitioners were not able "to. make out a case either in the petition or in the rejoinder that their termination was for any particular misconduct or that the termination orders were founded on any particular misconduct. It is true that in a given case attendant circumstances may disclose that the termination order is in fact a camouflage and that the employer really did want to pass an order of termination by way of penalty, but it is also well established that in the case of a temporary employment the employee has no right to the post and that his services can be terminated in terms of the can tract without issuing any notice to show cause against the proposed action of termination. Ram Gopal Chaturvedi v. State of M. P.7 16. In Delhi Transport Undertaking v Balbir Saran Goels an order of termination passed in pursuance of the power under regulation 9 (b) of the Delhi Road Transport Authority (Conditions of Appointment and Service Regulations) governing an employee of the Delhi transport undertaking was challenged as a camouflage and the Supreme Court observed : "As regards the punishment having been: inflicted for misconduct the order being a mere Camouflage we are unable to endorse the view that an, such question could arise in the present case. Regulation 9 (b) clearly empowered the authorities to terminate the services after giving one months notice or pay in lieu of notice. The order was unequivocally made in terms of that regulation. Even if the employers of the respondent thought that he was a cantankerous person and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9 (b) and it was not necessary to dismiss him by way of punishment for misconduct." Now, it is not disputed that all the three petitioners held temporary employment and had given an undertaking that their employment was clearly understood to be temporary and was liable to termination on one months notice without giving any reasons. It is clear from the observations of the Supreme Court quoted above that even assuming that the services of the petitioners were terminated because their work was found to be unsatisfactory, the termination orders having been made in terms of the contract of employment, no enquiry as required by the provisions of Article. 311 of the Constitution was necessary and the petitioners cannot, therefore, make any grievance against the orders terminating their services which were of a. temporary nature. 17. It was then further contended that the termination orders were in violation of the provisions of Article 16 of the Constitution, because persons who were junior to the petitioners continued in. the employment, though they were also fined several times. 18. It is difficult to appreciate this contention. There was no right in the petitioners to continue in employment till employees junior to them were not terminated. See Union of India v. Prem Prakash.9 Even otherwise, there was no material on record to ascertain how the persons who have been retained in service stand in relation to the working capacity as compared with the petitioners. Merely because persons junior to the petitioners were fined on some occasions, as has been alleged by the petitioners, it does not necessarily follow that they were not fit to be retained in employment. The retention of the so called junior employees who were also temporary does not result in any discrimination against the petitioners and it is not possible to hold that any fundamental right of theirs has been violated. The petitioners when they took appointment knew it full well that their services were liable to be terminated without assigning any reason and it would necessarily be for the employer to determine as to which of the employees are rendering satisfactory service and it is not open to the petitioners to challenge the decision taken by the employer regarding termination of employment of these employees whose work is found to be unsatisfactory. 19. It was lastly argued very faintly that the orders determination are vitiated as being passed mala fide. No such case has been made out in the petition and even the averments in the -rejoinder are extremely vague and even a prima facie case of mala fides has not been made out. 20. In the view we have taken no interference is called for with the orders passed by the Industrial Court. No such case has been made out in the petition and even the averments in the -rejoinder are extremely vague and even a prima facie case of mala fides has not been made out. 20. In the view we have taken no interference is called for with the orders passed by the Industrial Court. The result, therefore, is that all the petitions fail and are rejected. In the circumstances of the case, however, there wilt be no order as to costs. Petitions rejected.