JUDGMENT 1. THIS is an appeal by the petitioner against the order passed by Bachawat, J. dated june 22, 1959 in C. R. 1016 of 1957. The facts as appearing in the petition are as follows : the petitioner was working as a forest Guard since 1952, which post he held till 1954. On January, 5, 1954 an order was issued by Divisional forest Officer, Malda Division, which was to the following effect: "From The Divisional Forest Officer, Malda Division. To Sri Jagannath Ghose, Forest Guard. Through the Range Officer, Balurghat Range. Subject : Dated: 5.1.54. As your works are not satisfactory, your services will be dispensed with, with effect from the afternoon of 31st January, 1954. Sd. Illegible 4.1.54. Divisional Forest Officer, Malda Division. Forwarded for 7.1.54. Seal. dated, Malda, The no. Copy forwarded to the Range officer, Balurghat Range for information with reference to his no. 310/bg-15 dated 12.12.53. He should immediately contact the appropriate authority so that the chowkidar, concerned, is properly punished. 3 statements in original are returned herewith for taking necessary action "this order was followed by another order of the same date which is to the following effect. "Government OF WEST BENGAL directorate of Forests. Office of the Divisional Forest Officer, malda Division Office Order No. 13 dated, Malda, the 5th Feb. 58. Service of Sri jagannath Ghosh, Forest Guard are dispensed with effect from the forenoon of the 1st February, 1954 as his works are not satisfactory and also he is medically unfit for government service. Sd/- A. Bose, divisional Forest Officer. Malda Division. No. 299 (2) 6-2. dated, Malda, the 5th Feb. 54. Copy forwarded to the following for information is continuation of this office: no. 37/1/6-2 dated 5.1.54. 1) Sri Jagannath Ghosh, F. G. htrough the Range Officer, Balurghat range. 2) The Range Officer, Balurghat range. Sd – Illegible. 5.2.54 divisional Forest Officer, Malda Division 2. THE petitioner preferred appeal against these orders on February 28, 1954 to the Conservator of Forests, but the appeal was rejected on 12.4.54. A further appeal was taken to the Assistant Secretary to the Government of west Bengal, Forest and Fisheries Department, which was also rejected in 18.6.54. Another petition for consideration was filed on 6th September, 1955 which was rejected by the Conservator of forests on 29th February, 1956. A further appeal was taken to the Assistant Secretary to the Government of west Bengal, Forest and Fisheries Department, which was also rejected in 18.6.54. Another petition for consideration was filed on 6th September, 1955 which was rejected by the Conservator of forests on 29th February, 1956. The petitioner thereafter filed an application in this Court under Article 226 (i) of the Constitution contending, inter alia, that the order dismissing him from service was untenable in law, inasmuch as no proceedings were drawn against him before the impugned orders were passed and further the provisions of article 311 of the Constitution were not complied with. It was also contended that the petitioner should have been given an opportunity to challenge the alleged physical unfitness as alleged in the subsequent order of January 5, 1954. On this application a Rule was issued on April 12, 1957, calling upon the respondents to show cause why a Writ in the nature of Mandamus should not issue directing them to withdraw or cancel the purported order of discharge. There was also a prayer for issue of a Writ in the nature of Certiorari quashing the impugned order. On the Rule being served the respondents entered appearance and affidavit-in-opposition was filed on their behalf. It was stated that the petitioner was appointed a temporary Guard on december 1, 1952. While acting as a forest. Guard there was complaint before the Forest Range Officer, Balurghat Range to the effect that the petitioner was negligent in his work and took hush money. On considering the complaint the following order was passed by the Divisional Forest Officer "this Jagannath will never improve. He should be given one month's notice and his service should be dispensed with w.e.f. the afternoon of 31.1.54. " 3. THIS order was passed on December 30, 1953. There was another order assured in continuation of this order on 5th January, 1954 on receipt of the medical report. In that report it was stated that the petitioner was suffering from enlarged spleen and hydrocele on both sides. Opinion of the Medical officer, who was the Civil Surgeon, west Dinajpur, Balurghat, was as fellows : "i consider him temporarily unfit to enter the service of Government for the reasons given enlarged spleen and hydrocele." 4. THE earlier order was passed before the medical report was received. Opinion of the Medical officer, who was the Civil Surgeon, west Dinajpur, Balurghat, was as fellows : "i consider him temporarily unfit to enter the service of Government for the reasons given enlarged spleen and hydrocele." 4. THE earlier order was passed before the medical report was received. The termination was also on the ground of medical unfitness which was claimed to be the main reason. It was further stated that the petitioner received his salary upto 4th February, 1954. For these reasons, it was submitted that the petitioner was entitled to no relief. The petitioner filed an affidavit-in-reply reiterating the allegations in the petition. It was further stated that no copy of the medical report was given to the petitioner to enable him to prove his fitness. It was submitted that no opportunity was given to him to counter charge based on the allegation which were totally untrue. The learned Judge held that the petitioner was holding a temporary post with no right to the post, the appointment being on purely on temporary basis. There was thus no forfeiture of right or benefit already earned and accordingly there was no penal consequence following the order. The Court was of opinion that discharge of temporary government servant was not per se punishment and not being dismissal or removal, Article 311 (2) had no application in this view of the matter, the rule was discharged. The present appeal is against this decision. 5. MR. A.P. Chatterjee, learned Advocate appearing for the appellant, submitted that the learned Judge committed an error in thinking that the service of a temporary Government servant can be terminated for alleged misconduct, since such temporary government servant had no right to his post, nor is there any forfeiture of the right which he did not have. This contention need not detain us long since it is now settled law, as stated in State of Punjab v. Sukh Raj Bahadur, A.I.R. 1968 S.C. 1089 on a conspectus case that "if the order visits the public servant with 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. "It was also laid down there that an order of termination of service in unexceptionable form proceeded by an enquiry to whether such servant could be retained in service does not attract Article 311 of the constitution. In a very recent decision again in R. S. Sail v. State of U.P, A.I.R. 1974 S.C. 1317 it was held that the officiating and temporary servants are entitled to protection if the Government takes action against them by meeting out one of the punishments of dismissal or removal on alleged misconduct. 6. IN this case it will be seen that in the order of discharge though he was dismissed for unsatisfactory service the forest Ranger was directed to ensure that the Chowkidar concerned should be punished. In paragraph 7 of the affidavit-in-opposition it was expressly stated that there was a complaint that the petitioner took hush money and the divisional Forest Officer considered the complaint and passed the impugned order observing that "this Jagannath will never improve. He should be given one month's notice and his services should be dispensed with w.e.f. the afternoon of 31.1.54. "Since the order passed earlier on January 5, 1954 was by way of punishment for misconduct for taking hush money, there could be no dispute that the order cast an aspersion on his integrity and accordingly on the above decisions cited article 311 of the Constitution was attracted. As no proceeding under article 311 was followed, the termination of service for the alleged misconduct as contained in Annexure "a" cannot be sustained. It appears that by another order passed later on the same date the petitioner was dismissed on the ground that he was medically unfit. We have seen that the petitioner was declared temporarily unfit by the Civil Surgeon, west Dinajpur, Balurghat and this report was received on the same day when the order of termination on the medical ground was issued. 7. THE question for consideration now is if the Government servant is entitled to dispute or challenge the medical report before any action is taken on that basis. Termination of service on the ground of medical unsuitability does not per se amount to any punishment as it casts no aspersion on the character or integrity of the public servant. Mr. Chatterjee, however, relied on the decision in Union of India v. Someswar Banerjee, A.I.R. 1954 Cal. Termination of service on the ground of medical unsuitability does not per se amount to any punishment as it casts no aspersion on the character or integrity of the public servant. Mr. Chatterjee, however, relied on the decision in Union of India v. Someswar Banerjee, A.I.R. 1954 Cal. 499 in which an order of dismissal of a Government servant on the ground of inefficiency due to physical incapacity was challenged. Section 240 (3) of the government of India Act, 1935 was applicable to the case which provided that "no such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. . . . . . . . ''. 8. A Division Bench of this Court held that the removal from service which put an end to the service of the public servant was dismissal and section 240 (3) was attracted. It was held that the dismissal on the ground of inefficiency due to physical incapacity clear the comes within the provisions of section 240 (3) of the Government of India act and accordingly the dismissal was contrary to law and was set aside. Mr. S.K. Roy Chowdhury, Learned Advocate appearing for the respondents has referred to the decision in md. Sagiruddin v. District Mechanical engineer, A.I.R. 1973 S.C. 1306. In that case a railway servant who was holding a post carrying higher pay scale was found medically unfit for such post and was absorbed in another employment though carrying lower pay scale for which he was declared fit, in accordance with the provisions of Rule 152 of the Railway Establishment Code it was held that it could not be said that he was either punished or any stigma was cast on his character inasmuch as the action was not taken as the disciplinary measure to attract the provisions of Article 311. This was obviously a case of reduction in rank on medical ground, but the Court held that Article 311 did not come into operation. 9. IN the case of Madan Gopal v. State of Uttar Pradesh, in Civil Appeal no. This was obviously a case of reduction in rank on medical ground, but the Court held that Article 311 did not come into operation. 9. IN the case of Madan Gopal v. State of Uttar Pradesh, in Civil Appeal no. 2195 of 1965 dated March 13, 1965, reported in (1968) 10 S.C. Notes P. 136 it was held by a Constitution Bench of five Judges of the Supreme Court that when a person's services are terminated on medical ground of physical incapacity, it did not amount to removal within the meaning of Rule 49 of the civil Services (Classification, Control and Appeal) Rules and Article 311 (2) of the constitution. 10. ON these authorities the law laid down by the Bench Decision of cur high Court relief on by the appellant can have no binding force and it must accordingly be held that the termination of service on medical ground did not attract Article 311 of the Constitution. The petitioner being in temporary service was not entitled to notice under the Rules and the order dated february 5, 1954 being served on the same date, it took effect from the said date. As we have already noted there was no challenge in the contemporaneous appeals that the order was malafide or false or motivated. Mr. Roy Chowdhury has taken some other grounds contending that as the order passed in appeal was not sought to be quashed in the Rule, the petitioner was guilty of gross delay and there was a fatal defect of parties in not making the State of West Bengal a party respondent in the Rule. This contention has been opposed by Mr. Chatterjee who submitted that the orders of the superior authority were passed on the petitioner's representation as no appeal lay in law. He further submitted that there was no unreasonable or unaccounted for delay nor the application suffered from any fatal defect of parties. In view of our findings as indicated above, we do not propose to enter into these question in controversy. In the premises the appeal fails and is dismissed. There will be no order as to costs.