JUDGMENT K. N. Seth, J. - The suit giving rise to the present appeal was filed by the plaintiff respondent, who was an Accounts Clerk in the District Agricultural Office, Deoria, for a declaration that the order dated 16-12-1964 terminating his service was illegal, void and ineffective on the ground that the order was passed by way of punishment and no opportunity to show cause had been provided; that neither a months notice nor one months salary in lieu of notice had been given, and that the order was mala fide. The plaintiff further claimed recovery of his salary from 1st January, 1965 till 7th April, 1965. 2. The suit was contested principally on the ground that the said order was not of dismissal but a simple order of termination of service in accordance with the terms of the contract of service. The allegations of mala fide were also denied. 3. The trial court decreed the suit holding that the order dated 16-12-1964 amounted to dismissal by way of punishment and that it was also illegal for want of one months notice or payment of one months salary in lieu thereof. The plea of malafide was, however, negatived. The lower appellate court held that the impugned order was a simple order of termination and not of dismissal or removal from service and the provisions of Article 311 were not attracted. It, however, came to the conclusion that the services of the plaintiff could have been terminated without prior notice but as one months pay was not given when the impugned order was passed, the order was illegal. 4. Two questions arise for consideration in this case: (1) Whether the payment of one months salary in lieu of notice was a condition precedent to the validity of the order and (2) whether the impugned order was an order of dismissal by way of punishment so as to attract Article 311 of the Constitution of India or it was an order of termination of service in accordance with the terms of the contract of service. 5. There is no dispute that the service of the plaintiff was temporary. 5. There is no dispute that the service of the plaintiff was temporary. The relevant rules regarding notice is contained in the Notification No. 230/II-B-1953, dated January 30, 1953, which reads as follows :- "In exercise of the powers conferred by the proviso to Article 309 of the Constitution of Ind a, the Governor of U. P. is pleased to make the following general rule regulating the termination of services of temporary Government servants: (1) Notwithstanding anything to the contrary in any existing rules and orders on the subject, the services of a Government servant in temporary service shall be liable to terminate at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant. (2) The period of such notice shall be one month given either by the appointing authority to the Government servant, or by the Government servant to the appointing authority, provided that in the case of notice of the appointing authority the latter may substitute for the whole or part of this period of notice pay in lieu thereof; provided further that it shall be open to the appointing authority to relieve a Government servant without any notice or accept notice for a shorter period without requiring the Government servant to pay any penalty in lieu of notice." Interpreting these rules the Supreme Court in State of Uttar Pradesh v. Dinanath Rai, Civil Appeal No. 1934 of 1968, decided on October 11, 1968 held :- "It seems to us that the meaning of the statutory rule is clear. It gives option to the Government to either give a months notice or to substitute for the whole or part of this period of notice pay in lieu thereof. The rule does not say that the pay should be given in cash or by cheque at the time the notice is issued. Knowing the way the governments are run, it would be difficult to ascribe this intention to the rule making authority. The rule does not say that the pay should be given in cash or by cheque at the time the notice is issued. Knowing the way the governments are run, it would be difficult to ascribe this intention to the rule making authority. There is no doubt that the Government servant would be entitled to the pay in lieu of notice but this he would get in the ordinary course." It is clear from the aforesaid decision that the giving of notice or the making of payment of one months pay in lieu thereof is not a condition precedent to the validity of an order terminating the services of a temporary employee. The same question came up for consderation before a Bench of this Court in The Director of Technical Education, U.P., Kanpur v. Sri John. Mohammad, Special Appeal No. 227 of 1974, decided on 26-8-1974. Relying on Dinanath Rai's r/o case the Bench held that the rules entitle the temporary employee to one months pay in case he is not given the requisite notice. The pay need not be given at the time the notice is issued, that is to say, at the time when the order terminating his services is issued or served. The entitlement to one months pay can be enforced in the usual way if the Government does not make it good. On the question whether the requirement of giving one months pay in lieu of notice is not a condition precedent to the validity of the order then would the non-recital of the entitlement to pay make the order bad, the Court relying on Swadeshi Cotton Mills Company Limited v. State Industrial Tribunal, A.I.R. 1961 S.C. 1381, came to the conclusion that in cases where certain condition precedents have to be satisfied lack of recital as to their existence or of me fact of their satisfaction does not invalidate the order and in this view the non-recital of a fact which is not a condition precedent cannot possibly invalidate the order. It must therefore, be held that the payment of one months salary in lieu of notice was rot a condition precedent to the validity of the order nor was the order invalidated on the ground of non -recital of the entitlement to the pay in the notice. 6. It must therefore, be held that the payment of one months salary in lieu of notice was rot a condition precedent to the validity of the order nor was the order invalidated on the ground of non -recital of the entitlement to the pay in the notice. 6. In support of the plea that the impugned order was an order of dismissal by way of punishment reliance was placed on the fact that before the impugned order was passed a notice dated 29th September, 1964 was served on the plaintiff alleging that he was not discharging his duties properly and he was asked to improve his work failing which his services would be terminated. In this connection reference was also made to allegations contained in the written statement to the effect that a few days before the impugned order was passed the plaintiff was found absent from duty without leave and that certain papers were found incomplete. 7. It is well settled that the language of an order is not decisive of its true character. In Parshotam Lal Dhingra v. Union of India, 1958 A.L.J. 372, the Supreme Court laid down two tests to determine the true character of the order: (1) whether the servant had a right to the post or the rank and (2) whether he has been visited with evil consequences such as forfeiture of pay and allowances, loss of seniority in his substantive rank, stoppage or postponement of future chances of promotion. The Court observed that :- "A termination of service brought about by the exercise of a contractual rights not per se dismissal or removal.............Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311 (2).......................... In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. 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 of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C. J., has said in Shrinivas Ganesh v. Union of India, A.I.R. 1956 Bombay 455, wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract, or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted." The question as to when misconduct, negligence etc. form the motive or the inducing factor or the foundation for the order of termination was explained in Jagdish Mitter v. The Union of India, A.I.R. 1964 S.C. 449. The court observed: "It is obvious that temporary servants or probationers are generally discharged, because they are not found to be competent or suitable for the post they hold. In other words, if a temporary servant or a probationer is found to be satisfactory in his work, efficient, and otherwise eligible, it is unlikely that his services would be terminated, and so, before discharging a temporary servant, the authority may have to examine the question about the suitability of the said servant to be continued and acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not. There is no element of punitive proceedings in such an enquiry; the idea m holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not. There is no element of punitive proceedings in such an enquiry; the idea m holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not. If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule, in such a case, it would not be open to the temporary servant to invoke the protection of Article 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged." It was further held that where the authority initiates a formal departmental enquiry against a temporary servant, but whilst the enquiry is pending, it takes the view that it may not be necessary or expedient to terminate the services of the temporary servant by issuing an order of dismissal against him, the enquiry is stopped and an order of discharge simpliciter is served on the servant. Then on the authority of Parshottam Lal Dhingra's case it must be held that the termination of services of the temporary servant cannot in law be regarded as dismissal because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for the alleged misconduct. 8. The same view was taken in The State of Punjab v. Sukh Raj Bahadur, A.I.R. 1968 S.C. 1089 where disciplinary proceedings were initiated on the basis of certain specified charges but they were dropped without reaching any conclusion and a simple order of termination or reversion was passed. After considering a number of earlier decisions, the Court formulated the following propositions :- (1) The services 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. (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) 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 order of termination of service made thereafter will attract the operation of the said article." 9. In The State of Bihar v. Shiva Bhikshuk Mishra, A.I.R. 1971 S.C. 1011, the following rule has been laid down :- "It may be that an order which is innocuous on the face 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 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." 10. In view of the principles laid down in the aforesaid cases the fact that the plaintiff was served with a notice pointing out that he was not discharging his duties properly and that he must improve his work could not convert the simple order or termination of service into one of dismissal so as to attract Article 311 of the Constitution. 11. The allegations contained in the written statement could also not be pressed into service in determining the true nature of the impugned order. As laid down in Jagdish Mitter's case the real character of the termination of services must be determined by reference to the material facts that existed prior to the order. 11. The allegations contained in the written statement could also not be pressed into service in determining the true nature of the impugned order. As laid down in Jagdish Mitter's case the real character of the termination of services must be determined by reference to the material facts that existed prior to the order. Where the validity of the order is attacked on certain grounds and in resisting the attack the authority refers to certain facts justifying the order of discharge and these facts relate to the misconduct, negligence or inefficiency of the servant, it cannot logically be said that in view of the plea thus made by the authority long after the order of discharge, it should be held that the order of discharge was the result of the consideration set out in the said plea. In the present case the plaintiff attacked the order terminating his services on the ground of malafides. The defendant had to meet those allegations and if in that connection it was pointed out that, the plaintiff was inefficient or negligent in his duties or that on a certain occasion he was found absent from duty without leave, those facts could not be taken into consideration in determining the true character of the impugned order. 12. Learned counsel for that respondent placed reliance on the decision of the Supreme Court in State of Uttar Pradesh v. Sughar Singh, A.I.R. 1974 S.C. 423. In this case Sughar Singh, a Sub-Inspector of Police, had been reverted as a Head Constable. It was conceded by the Standing Counsel appearing for the State that the order of reversion was as a result of adverse entry made in his confidential character roll. In view of that statement the Court found it impossible to resist the suggestion that the order of reversion was really an order of punishment in disguise. The Court also took into consideration the fact that at least 200 Head Constables, who had taken training as Cadet Sub-Inspectors of Armed Police at Sitapur after the respondent and who were junior to the respondent had still been allowed to retain their status as Sub-Inspector and had not been reverted to their substantive posts of Head Constable. The Court also took into consideration the fact that at least 200 Head Constables, who had taken training as Cadet Sub-Inspectors of Armed Police at Sitapur after the respondent and who were junior to the respondent had still been allowed to retain their status as Sub-Inspector and had not been reverted to their substantive posts of Head Constable. The Court felt that if it was not a case of punishment, it becomes difficult to explain why this discrimination was made against the respondent vis-a-vis at least 200 other officers who were junior to him in the substantive cadre and that would make the order liable to be struck down as violative of Article 16 of the Constitution. It was observed that the compelling logic of the totality of circumstances attending the order of reversion indicates that if the order is not discriminatory and has to be justified with reference to the proceedings against the respondent and the earlier order regarding his character roll, it is impossible to avoid the criticism that it was really a punishment in the grab of an order of reversion. No such situation exists in the case in hand and the ratio of the decision in Sughar Singh's case is not attracted. 13. There is no material on record to indicate that the order was mala fide and the learned counsel for the respondent rightly did not attempt to attack the order on that ground. 14. In the result the appeal is allowed. The suit of the plaintiff is dismissed. The parties shall bear their own costs throughout.