JUDGMENT : P. D. Desai, J. This second appeal has been placed before me to resolve a difference of opinion between A. D. Desai, and M. C. Trivedi J., on the question whether the impugned order of termination of service of the respondent, who was a temporary Government servant, was violative of Article 311(2) of the Constitution of India, although on the face of it, it was innocuous. A.D. Desai, J., was of the view that there was nothing in this case to indicate that the impugned order, which was ex facie a simpliciter order of termination, was penal in nature and that it must consequently be held that it was passed in exercise of the power which inheres in the-State to terminate the services of its temporary servants without holding any inquiry. M. C. Trivedi, J., on the other hand, was of the view that the impugned order was not an order of discharge simpliciter aid that it was a camouflage to deprive the respondent of the protection of Article 311(2). The question which arises is as to which out of these two views is preferable in the facts and circumstances of the present case. 2. A few of the material facts which have a bearing on the point under consideration may be set out. The respondent was appointed as an auxiliary hand in the Government Press at Rajkot on January 3, 1963. He was admittedly a temporary Government servant. On September 16, 1967, the respondent was served with a confidential memo charging him with interpolations in the rates quoted by M/s Mahmad Alibhai & Sons and alleging that he was guilty of breach of trust. The respondent was asked to furnish an explanation in that connection on or before September 20, 1967. The explanation was furnished by the respondent on September 18, 1967. He denied all the allegations levelled against him in the show cause notice. It is not in dispute that no regular departmental inquiry was held thereafter. However, the services of the respondent were suddenly terminated by an order dated October 10, 1967 passed by the Manager, Government Printing and Stationery Press, Rajkot-The order in question reads as follows :- "The services of Shri Madhusudan T. Asher, Auxiliary hand. Government Press, Rajkot are terminated with effect from 11-11-1967 (A.N.)". 3. The respondent thereupon filed a civil suit challenging the aforesaid order of termination. Government Press, Rajkot are terminated with effect from 11-11-1967 (A.N.)". 3. The respondent thereupon filed a civil suit challenging the aforesaid order of termination. The contention of the respondent was that the impugned order, though innocuous in form, was in substance penal in nature and that, since it was passed without following the procedure prescribed under the statutory rules and without complying with the provisions of Article 311(2) of the Constitution of India, it was ultra vires. The respondent relied in this connection upon the show-cause notice which had preceded the issuance of the order of termination of service. 4. The defence of the appellant-State was that the impugned order was passed by it in exercise of its power to terminate the services of a temporary Government servant under the relevant rules and (hat it was not penal in nature. It was contended by the appellant-State that the show-cause notice issued to the respondent a few days prior to the termination of his services had nothing whatsoever to do with the action of the State in terminating the services of the respondent. 5. The trial Court came to the conclusion that the impugned order was passed by way of punishment and that the same was passed without following the procedure prescribed in the statutory rules and that it was also contrary to the constitutional protection conferred by Article 311(2) of the Constitution. Accordingly, the Trial Court passed a decree declaring the impugned order to be illegal and unconstitutional and directing the appellant-State to pay to the respondent arrears of salary from November 12, 1967 till the date of the suit together with notice charges The Trial Court further directed the appellant-State to continue to pay to the respondent a sum of Rs 83/- per month as pay arid Rs 47/- as dearness allowance and Rs 7.50 as house rent allowance, in all Rs. 137.50 from the date of the suit till the date of reinstatement with yearly increment of Rs 2/- per year and consequential benefits. 6. In appeal, the District Court concurred in the material findings recorded by the Trial Court and confirmed its decree. The present Second Appeal is directed against the concurrent decision of the two Courts below which have taken a view in favour of the respondent as aforesaid. 7. 6. In appeal, the District Court concurred in the material findings recorded by the Trial Court and confirmed its decree. The present Second Appeal is directed against the concurrent decision of the two Courts below which have taken a view in favour of the respondent as aforesaid. 7. When the appeal reached for hearing before A.N. Surti, J., he felt that there was some conflict in the decisions of the Supreme Court in Jagdish Mitter v. Union of India, A.I.R. 1964 S.C. 449 and S. P. Vasudev v. State of Haryana, A.I.R 1975 S.C. 2292. The learned Judge, therefore, referred the matter to a larger Bench. The appeal than reached hearing before a Division Bench. The two learned Judges, who constituted the Bench, though they were agreed on the main principle, namely, that an order of termination of service, which might be innocuous on the face of it, may still partake the character of a penal order, differed on the question whether the order of termination in question passed against the respondent in the present case was an order of discharge simpliciter or whether it was a penal order which was passed in violation of the constitutional guarantee contained in Article, 311(2). It is under these circumstances that the matter has been placed before me for resolution of the difference aforesaid. 8. The legal position bearing on the question under consideration is now well-settled. In Samsher Singh v. State of Punjab and another, A.I.R. 1974 Supreme Court 2192, the Full Bench of seven Judges of the Supreme Court, after reviewing the entire case law on the subject has laid down certain principles which provide sufficient guidelines on the point under consideration. The learned Chief Justice who spoke for himself and four of his colleagues pointed out that if a right existed under a contract or services rules to terminate the services of a probationer, the motive operating on the mind of the Government was wholly irrelevant. The reason why the motive was irrelevant was that it inhered in the state of mind which was not discernible. However, if the order of termination of service was founded on misconduct and negligence, inefficiency or other disqualification, then it was a punishment which violated Article 311 of the Constitution. In such a case, the termination having been founded on misconduct, etc. However, if the order of termination of service was founded on misconduct and negligence, inefficiency or other disqualification, then it was a punishment which violated Article 311 of the Constitution. In such a case, the termination having been founded on misconduct, etc. it provided an objective and manifest proof which did not make it necessary to delve into the mind of the authority making the order. The learned Chief Justice observed that no abstract proposition could be laid down that where the services of a probationer were terminated without saying anything more in the order of termination than that the services are terminated, it can never amount Co a punishment in the facts and circumstances of the case. If an probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of shoeing cause against his discharge, it might in a given case amount to removal from service within the meaning of Article 311 (2) of the Constitution. The learned Chief Justice further pointed out that the authority might in some cases be of the view that the conduct of the servant may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the servant with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation, if, on the other hand, the servant was faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services were terminated without following the provisions of Article 311 (2), he could claim protection. The decision in State of Bihar v. Gopi Kishore Prasad, A.I.R. 1960 S C. 6&9 was in terms approved, where it was held that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the affect of removal by way of punishment. If, however, instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent the order of termination would be penal. If, however, instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent the order of termination would be penal. It was observed that the fact of holding an inquiry was not always conclusive-What was decisive was whether the order was really by way of punishment. Therefore, if there was an inquiry, the facts and circumstances of the case will have to be looked into in order to find our whether the order was one of dismissal in substance. It was, therefore pointed out that if the facts and circumstances of the case indicated that the substance of the order was that the termination was byway of punishment, then a probationer was entitled to claim protection of Article 311 because it was the substance of the order and not the form which would b; decisive, la paragraph 67 at page 2206, the learned Chief Justice summarised the whole position in the following words: "An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted useless it can be shown that the order though unexceptionable in form is made following a report based on misconduct" 9. In the concurring judgment, Krishan Iyer, J., who spoke for himself and Bhagwati, J. observed that in a series of cases, the Supreme Court had wrestled with the problem of devising a principle or rule to determine the question, namely, where non-punitive termination of probation for unsuitability ends and punitive action for delinquency begins. The learned judge in terms approved the decision in Gopi Kishore's case (supra), which was also approved by the learned Chief Justice, and held that where the State holds an enquiry on the basis of complaints of misconduct against a probationer or temporary servant, the employer must be presumed to have abandoned his right to terminate simpliciter and to have undertaken disciplinary proceedings bringing in its wake the protective operation or article 311. The learned Judge then pointed out that between 'unsuitability' and 'misconduct', "then partitions do their bounds divide" and observed : "over the years, in the rulings of this Court, the accent has shifted, the canons have varied and predictability has proved difficult because the play of legal light and shade has been baffling. The learned Chief Justice, has in his judgment tackled this problem and explained the rule which must govern the determination of the question as to when termination of service of a probationer can be said to amount to discharge simipliciter and when it can be said to amount to punishment so as to attract the inhibition of Article 311. We are in agreement with what the learned Chief Justice has said in this connection." 10. We are in agreement with what the learned Chief Justice has said in this connection." 10. It would thus appear that by an unanimous voice, the Supreme Court has now spoken on the subject finally and the well-settled legal position appears to be as follows (1) that if a right exists under a contract of service rules to terminate the services of a probationer or temporary servant, the employer can undoubtedly in exercise of the said right terminate the services of the employee; (2) that in such a case, the motive operating on the mind of the employer would be wholly irrelevant; (3) that if the order of termination is, however, sought to be founded on misconduct and negligence efficiency or other disqualification, then it would be penal in nature and if is made in contravention of the statutory rules or the protection of Article Bit 12), it would be ultra vires; (4) that no abstract proposition could be aid down that where a probationer of temporary servant is discharged without saying anything more in the order of termination than that the services have been terminated, it could never amount to a punishment in the facts and circumstances of the case ; (5) that if the facts and circumstances of the case indicate that the substance of the order was that the termination was by way of punishment, the employee would be entitled to the protection of the relevant statutory rules and Article 311 because it is the substance of the order and not the form which is decisive ; (6) that the employer in some oases might be of the view that the conduct of the employee might result in dismissal or removal on an inquiry and, in such cases, he may without holding an inquiry simply discharge the employee with a view to giving him a chance to make good in other walks of life without a stigma and such an order of termination would not be penal in nature; (7) that if, on the other hand, the employee was faced with an inquiry on charges of misconduct or efficiency or corruption or the like and his services were terminated without following the provisions of the relevant service rules of Article 311(2), he could ordinarily claims that the order was ultra vires; in other words, if, instead of following the easy course of simply terminating the services without holding any inquiry, the employer chose the more difficult one of starting proceedings against the employee and branding him as a dishonest or incompetent person, the order of termination may be presumed to be penal in nature; and (8) that where the employer hold an inquiry on the basis of a complaint of misconduct against a probationer or temporary servant, the employer mast by taken to have abandoned his right to terminate simpliciter and to hive undertaken disciplinary proceedings bringing in its wake the protective operation of Article 311. 11. Reliance however, was sought to be placed on behalf of the appellant on a still later decision of the Supreme Court in State of U. P. v. Ram Chanda Trivedi, (1976) 4 Supreme Court Cases 52 and it was urged that it is not open to the Court to take the view that the impugned order was penal in nature and that it was not an order of termination of service simpliciter, having regard to the fact that ex facie it does not cast any stigma nor does it visit the respondent with evil consequences. I am afraid that the true import of the decision in that case is not appreciated when the aforesaid argument is advanced on behalf of the appellant. The decision in the said case does not lay down any principle different from that laid down in Samsher Singh's case (supra). In fact, in paragraph 16 of the judgment in Trivedi case (supra), the principles laid down in the earlier decisions of the Supreme Court have been in terms affirmed and it has been observed that the decided cases laid down that, the test for attracting Article 311 (2)of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order." It would thus appear that the legal position in this behalf is well-settled and it is in the light of the well-settled legal position that the question which falls for determination in this case will require to be decided. 12. Now, before we proceed to examine the validity of the impugned order in the light of the aforesaid principles, it requires to be borne in mind that this court is seized of the matter in a Second Appeal. 12. Now, before we proceed to examine the validity of the impugned order in the light of the aforesaid principles, it requires to be borne in mind that this court is seized of the matter in a Second Appeal. The Courts below have upon appreciation of evidence including oral evidence, concurrently arrived at the conclusion that the impugned order is not an order of discharge simpliciter but a penal order which was passed in violation of the constitutional protection of Article 311. This concurrent finding of fact recorded by the Courts below cannot be upset by this court in Second Appeal unless it is shown to be unreasonable or perverse or arrived at upon application of wrong principles of law. In Trivedi's case (supra), the Supreme Court observed that the High Court which was seized of the matter in Second Appeal ought not to have entertained a challenge to the concurrent decision of the Courts below holding that the impugned order in that case was not by way of punishment by ignoring the well settled principle of law that a second appeal cannot be entertained on the ground of erroneous finding of fact, however gross the error might seem to-be. This observation would apply with full force in the facts of the present case which, of course, presents a converse picture. Here, the two Courts below have taken the view that the impugned order is not an order of discharge simpliciter but it is a penal order passed in violation of Article 311 (2). Such a finding of fact cannot be allowed to be challenged howsoever gross the error might be in appreciation of evidence unless, of course it could be shown, as earlier stated, that the finding is unreasonable or perverse or that it is arrived at upon misapplication of well-settled principles of law. I am not satisfied that the concurrent decision of the Courts below suffers from such a vice and it is, therefore, not permissible to me to reverse the aforesaid finding of fact arrived at in favour of the respondent by the Courts below. 13. That apart, even on merits, it is not possible to say that the concurrent decision of the Courts below suffers from any error of law. 13. That apart, even on merits, it is not possible to say that the concurrent decision of the Courts below suffers from any error of law. If we look at the entirety of the circumstances precedent or attendant on the impugned order, it is abundantly clear that the alleged misconduct of the respondent for which the show cause notice was issued against him only a few days before the order of termination came to be passed is the very foundation of the order and that the appellant having chosen the more difficult course of starting disciplinary proceedings against the respondent and branding him as a dishonest person, the appellant must be presumed to have abandoned its right to terminate the services of the respondent by an order of discharge simpliciter and even if an apparent order of discharge simpliciter is passed, it must be treated as a penal order. But that is not all. There are other circumstances which go to show that this is not a case where an innocuous order of discharge which is not founded on the alleged misconduct of the respondent has been passed. The respondent was in the employment of the appellant for a period of more than 4 years on the date of the termination of his service The evidence on record shows that the services of the respondent were not dispensed with on account of retrenchment or abolition of post, for the immediate superior of the respondent admitted in bis evidence that, after the respondent was discharged from services, he had called from the Employment Exchange the names of citable persons for being appointed in his place. The evidence on record does not disclose that, except for the misconduct alleged against the respondent, there was anything which rendered him unsuitable to hold the post. The evidence on record does not disclose that, except for the misconduct alleged against the respondent, there was anything which rendered him unsuitable to hold the post. If these circumstances are borne in mind and they are appreciated alongwith the further circumstance, namely, that a regular notice was served upon the respondent after holding some sort of a preliminary inquiry just a few days prior to the termination of his services charging him with interpolation and breach of trust and requiring him to show cause and that those proceedings were dropped after the respondent gave his explanation and the impugned order of discharge came to be passed soon thereafter, the only conclusion which can possibly be drawn is that what was at the root or base of the impugned order of termination of service was the alleged misconduct of the respondent. It would thus appear that the courts below were right in drawing the conclusion that they did and that no ground is made out to interfere with the concurrent decision of the Courts below. 14. From the foregoing discussion, it would appear that I am inclined to agree with the view taken by M. C Trivedi J. and accordingly, this appeal will stand dismissed. The appellant will pay the costs of this appeal to the respondent. Appeal dismissed.