JUDGMENT Gulati, J. - This is a petition under Article 226 of the Constitution. 2. The petitioner was appointed a Sub-Inspector of Police on 16.2.1964, after he had passed through the Police Training college, Moradabad, in the year 1966 he was posted as Sub Inspector of Police at the Police Station Jahanabad in the District of Fatehpur. In August,1966, the petitioner went to the house of one Chedue, who was wanted in some offence. Chedue was not present at his house. The petitioner enquired the where-abouts of Chedue from his wife, Amina Bibi. On her refusal to divilge the whereabouts of her husband, she is alleged to have been given cane beating by the petitioner. Amina Bibi filed a complaint under section 323, Indian Penal Code in the court of the A.D.M.(J), Fatehpur. The petitioner was found guilty and was fined Rs. 20/- on 27.10.1966. He filed a revision which was finally dismissed by the second temporary Civil and Sessions Judge, Fatehpur on 29.7.1968. Thereafter, his services were terminated by an order dated January 21,1969, by the Deputy Inspector General of Police, Kanpur. The petitioner preferred an appeal against that order to the Inspector General of Police, U.P. on 7.3.1969 followed by a supplementary appeal on 8.9.1969. The appeal was rejected on July 7,1970. Thereafter, he submitted a petition to the State Government on September 4,1970. This petition has also been rejected by the State Government by an order dated September 25,1971. The petitioner has now approached this Court under Article 226 of the Constitution praying for writs of certiorari and mandamus. 3. The complaint of the petitioner is that his service were terminated by way of punishment because of the case against him under section 323, Indian Penal Code and as the requirements of Article 311(2) were not complied with the order terminating his service is void. A counter affidavit has been filed on behalf of the respondents by one Anwer Ahmad Jafri, who is a File clerk in the office of the Superintendent of Police, Fatehpur. Mr. Jafri in Paragraphs Nos. 4, 17 and 19 of his affidavit has denied the allegation that the petitioner's service were terminated by way of punishment. Mr. Jafri has stated that the termination of the petitioner's service was not due to his conviction under Section 323, Indian Penal code. I am afraid it is not possible to accept these averments of Mr. 4, 17 and 19 of his affidavit has denied the allegation that the petitioner's service were terminated by way of punishment. Mr. Jafri has stated that the termination of the petitioner's service was not due to his conviction under Section 323, Indian Penal code. I am afraid it is not possible to accept these averments of Mr. Jafri. 4. Before I state my reasons, I may point out that in a case like the present one where the main question for determination is whether the order removing the petitioner from service was passed by way of punishment for a misconduct the counter affidavit should have been filed by the authority who passed the impugned order or at least by some other senior officer who had dealt with the petitioner's case. The File Clerk in the office of the Superintendent of Police was not the proper person to reply properly to the contentions raised in the petition. Such a person could have no personal knowledge of the facts and circumstances of the case. Indeed, Mr. Jafri, when he denied the allegation of the petitioner that his removal from service was by way of punishment arising directly out of his conviction under section 323, Indian Penal Code did so not on personal knowledge, but on perusal of the record. The record, if anything, belies the averments of Mr. Jafri, as would be evident from what follows:- 5. Immediately after the petitioner's conviction under section 323, Indian Penal Code by the A.D.M.(J) Fatehpur, the following entry in his character roll was awarded in the year 1966:- "An unbalanced and quick tempered officer. Investigation work below average. He was convicted and sentenced Rs. 20/- as fine under section 323, Indian Penal Code. Also earned one misconduct entry in 1966. Conduct unsatisfactory. Integrity certified." 6. The Deputy Inspector General of Police, Kanpur Range, Kanpur, also gave an adverse remark to the petitioner in the Annual Inspection Note for the period of 7.5.1967 to 10.5.1967 and in that note he also noted that he would like to know the result of the petitioner's appeal. Then the Superintendent of Police, Fatehpur, made enquiries from the public prosecutor about the result of the petitioner's revision by his letter dated 2.2.1968. Then the Superintendent of Police, Fatehpur, made enquiries from the public prosecutor about the result of the petitioner's revision by his letter dated 2.2.1968. A few days later by his letter dated 16/17 February,1968, the Deputy Inspector General of Police, Kanpur, enquired about the result of the petitioner's revision from the Superintendent of Police, Fatehpur. On 24th February,1968, the Superintendent of Police, Fatehpur, replied to the Deputy Inspector General of Police that the petitioner revision was still pending. The revision petition of the petitioner was dismissed on July 29,1968. This information was sent by the Superintendent of Police, Fatehpur to the Deputy Inspector General of Police, Kanpur, by his letter dated August 20,1968. Thereupon, the D.I.G., Kanpur, wrote a note to the Superintendent of Police, Kanpur, in the following words:- "Please let me know what action do you propose to take departmentally in the matter. Please send a brief note about the case and the character roll of the Sub Inspector early." The aforesaid letter was followed by a reminder dated 7th January,1969 which reads:- "Reference your letter No. A-123/68 dated 25.12.1968 regarding revision filed by Sub Inspector Sri Jagdish Narain Singh of District Banda in the Sessions Court, Fatehpur, against his conviction under section 323, Indian Penal Code. It is very distressing that almost in one year it has not been possible to indicate what action you propose to take departmentally against the Sub Inspector consequent to his conviction under section 323, Indian Penal Code. Please expedite this now and if necessary obtain C.R. from Banda or elsewhere by Special messenger." 7. The Superintendent of Police, Fatehpur, submitted his report to the Deputy Inspector General of Police on 9th January,1969, in which he recommended that departmental action under section 7 of the Police Act and Paragraph No.493 of the Police Regulations may be taken against the petitioner. Then came the impugned order dated January 21,1969, passed by the D.I.G., Kanpur. 8. The sequence of events set out above leaves no room for doubt that the authorities concerned were anxious to take some disciplinary action against the petitioner consequent upon the case against him under section 323, Indian Penal Code. As soon as the petitioner's revision petition was dismissed, the Superintendent of Police suggested action against the petitioner under section 7 of the Police Act. As soon as the petitioner's revision petition was dismissed, the Superintendent of Police suggested action against the petitioner under section 7 of the Police Act. The D.I.G. of course, passed a simple order of termination and did not take proceedings under section 7 of the Police Act. But there is no manner of doubt that the impugned order was passed as a direct result of the petitioner's conviction under section 323 and the adverse entry made in his character roll consequent upon his conviction. The petitioner was a temporary hand and his services could be terminated on one month's notice. The D.I.G. apparently decided to terminate the petitioner's service in accordance with the conditions of his employment, rather than to institute proceedings under section 7 of the Police Act or to conduct an enquiry as contemplated by Article 311 of the Constitution. 9. It appears that the Police authorities were not aware of the constitutional position that even a temporary servant is entitled to the protection guaranteed under Article 311 of the Constitution. In paragraphs Nos. 23, 24 and 25 of the writ petition the petitioner has stated that no administrative exigency arose as necessitated his discharge. The post he was holding had not been abolished, nor had any body come back from deputation for whom he had to make room. He has also stated that several persons recruited after him have been retained in service, although they are junior to him. He has mentioned two such names in paragraph 26 of the writ petition. This averment of the petitioner has not been denied. 10. It is true that the impugned order does not contain any imputation so as to caste stigma on the petitioner's character as a character as a Government employee. It is a simple order of termination on one month's notice and such an order could be passed in accordance with the terms of the contract of the petitioner's service. However, the tenor of the impugned order alone does not clinch the matter in favour of the Department. The surrounding circumstances in which the order was passed have to be taken into consideration. However, the tenor of the impugned order alone does not clinch the matter in favour of the Department. The surrounding circumstances in which the order was passed have to be taken into consideration. In K.H. Phadnis v. State of Maharashtra, AIR 1971 SC 998 : 1971 (2) SLR 345 this is what the Supreme Court has observed in Paragraph No.17.- "Therefore, though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of accident of service, in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not 'a pure accident of service' but an order in the nature of punishment. Article 311 will be attracted." In the instant case the facts and circumstances to which reference has already been made bring out clearly that the order of termination was in the nature of punishment. The order was not in conformity with the provisions of the Constitution. The same view has been expressed by the Supreme court in S.R. Tewari v. the District Board, Agra, AIR 1964 SC 1980. Similarly, the Supreme Court in the case of State of Bihar v. Shiva Bhikshuk Mishra, 1970 SLR 863 : 1970 (II) LLJ 440 has pointed out:- "The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct......the entirety of the circumstances preceding or attendant on 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." 11. These two cases were cases of reversion, but the same principles have been held to apply in cases of termination of service as well, vide R.K. Bhatt v. Union of India, 1970 SLR 867 : 1970 (II) LLJ 587 . These two cases were cases of reversion, but the same principles have been held to apply in cases of termination of service as well, vide R.K. Bhatt v. Union of India, 1970 SLR 867 : 1970 (II) LLJ 587 . These principles have been applied by a Full Bench of this Court in Ram Saran Lal v. State of U.P., 1971 AIR 379. That was a case of termination of service. The Court observed:- "The close sequence of dates in his case is signification on 7.5.1970 he was asked to show cause why departmental action should not be taken against him and on 13.5.1970 before he could file any reply, the impugned order was issued terminating his service. It is difficult to imagine that the termination of the petitioner's services had no connection with the show cause notice only six days earlier; and we find ourselves constrained to hold, therefore, that the misconduct mentioned in the notice was the very foundation of the impugned order, which was consequently an order of punishment." 12. The learned Standing Counsel has relied upon the case of the State of Punjab and another v. Sukh Raj Bahadur, AIR 1968 SC 1989. That was a case of reversion of a probationer and the Supreme Court held on the facts of that case that the order of reversion had not been passed by way of punishment. In paragraph 16 in that judgement, the Supreme Court has laid down the following propositions:- "On a conspectus of these cases, the following propositions are clear: 1. The service of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity. It must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity. It must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of Article 311 of the Constitution. 5. If there be a full scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any orders of termination of service made thereafter will attract the operation of the said Article." Applying these principles it is clear that the impugned order in the instant case, though innocuous in nature and warranted by the conditions of the petitioner's employment appears to be an order of punishment, if regard is had to the circumstances preceding it. The authorities were anxious to take disciplinary proceedings against the petitioner on his conviction for an offence under section 323, Indian Penal Code and in fact disciplinary proceedings were proposed against him by the Superintendent of Police. But the Deputy Inspector General of Police passed the impugned order without taking any disciplinary proceeding obviously to deprive the petitioner of the protections contained in Article 311 of the Constitution. 13. The case of Ram Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158 also does not lay down any contrary proposition. There the High Court found that a temporary Civil Judge was not a fit person to be retained in service and it asked the Government to terminate his services. Following that advice, the Government terminated his service under rule 12 of the Madhya Pradesh Government Servants (Temporary and Quasi Permanent Servants) Rules,1970. The Supreme Court held that on the facts of the case Article 311 of the constitution was not attracted. This case can be distinguished on the simple ground that in the case before me it is not the case of the Police Department that the petitioner's services were terminated because he was not a fit person to be retained in service. This case can be distinguished on the simple ground that in the case before me it is not the case of the Police Department that the petitioner's services were terminated because he was not a fit person to be retained in service. The enquiry which the Deputy Inspector General of Police repeatedly made from the Superintendent of Police with regard to the outcome of the petitioner's revision petition was intended to take disciplinary proceedings against him after his revision petition had been dismissed. 14. Lastly, the learned Standing counsel relied upon State of U.P. v. Shyam Lal Sharma, 1972 ALJ 896. That was a case of compulsory retirement. From a reading of that Judgement it appears that in the case of compulsory retirement, unless it is established from the order of compulsory retirement itself that a charge of imputation against the officer is made the condition of the exercise of that power a premature retirement by itself is not regarded as a punishment. This principle will not apply to cases involving reversion and termination of service, where the court is expected to take into consideration the attendant circumstances, even though the impugned order is innocuous in terms. 15. In the end, the petition succeeds and is allowed. The orders dated 21.1.1969 (Annexure 'II') dated 7.7.1970 (Annexure VI) and dated 25.9.1971 (Annexure VI) are quashed. It shall, however, be open to the authorities concerned to pass a fresh order in accordance with the law. 16. The petitioner is entitled to the costs.