Hansaria, J.- The point for determination in this petition under Article 226 of the Constitution is whether the transfer of the petitioner to Bombay is penal in nature or was it due to operation/administrative ground. The key to solve this riddle, according to the respondents, lies in deciding as to whether the complaints which were made against the petitioner and about the veracity of which the answering respondents were satisfied, after a confidential domestic enquiry, was the motive of the transfer or its foundation. 7. The broad facts are that the petitioner joined the Civil Aviation Department in 1965, as Aerodrome Operator Grade-I. In course of time, he was promoted as Assistant Aerodrome Officer. This was in 1973. He was initially posted at Gauhati and than in June, 1975 he was transferred to Dum Dum. In June, 1977, be was brought back to Gauhati which was, accor­ding to the petitioner "en compassionate ground" inasmuch as he has to support with his meagre salary his old widow mother, his brother one unmarried sister and his wife and daughter. Some complaints were made against the petitioner that he was preventing persons belonging to a certain community working at the Aerodrome in carrying cut their welfare activi­ties. In pursuant to this complaint, an enquiry was held in the first week of October by respondent No. 6 in which the petitioner was asked certain questions relating to his having quarrelled with his sub-ordinate Bengali Officer. Respondent No. 6 is said to have examined certain other persons behind the back of the petitioner. A report was thereafter submitted by this respondent, a copy of which was not made available Jo the petitioner. In November 1979, the petitioner learnt from one Sonadhar Das that respondent No. 5 told him (Sonadhar Das) that the petitioner was going to be transferred as there were complaints against him of his troubling persons of Bengali Community at the Gauhati Airport. In fact, the petitioner was so transferred by an order dated 15.12.79 (Annexure-3) to Bombay which order, inter alia, states that he is being trans­ferred “on administrative/operational grounds". The transfer order has also stated that the petitioner ''should note that no representation will be entertained against the transfer". This order has been challenged on the ground that it was mala fide and nothing but an act of victimization. The transfer order has also stated that the petitioner ''should note that no representation will be entertained against the transfer". This order has been challenged on the ground that it was mala fide and nothing but an act of victimization. It is the contention of the petitioner that he had been transferred with an inten­tion to punish him. In the affidavit-in-opposition on behalf of respondents Nos. 1 to 5, which has been sworn by respon­dent No, 4, the facts of receipt of complaints against the petitioner has not been denied. Their case is that a confiden­tial enquiry was initiated in pursuant to the complaints against the petitioner for the limited purpose of ascertaining the prima Jade truth about the same. As there was no formal departmental enquiry, the question of giving opportunity of hearing etc. did not really arise. On completion of the confidential enquiry it was thought by the authorities that it was not desirable to retain the petitioner at Gauhati Airport any more. Further there was an urgent necessity of posting an Assistant Aerodrome Officer at Bombay Airport from the operational point of view and, as such, the transfer of the, petitioner has been made on operational and administrative grounds ; what has been stated in paragraph 8 of the affidavit-in-opposition, in this regard, is as follows : " ........Some complaints was (sic) received against the petitioner and the same were confidentially enquired into by the departmental authorities with a limited purpose -to satisfy themselves about the prima facie truth of the same and after the enquiry the departmental authority considered that it was not desirable to retain the petitioner at Gauhati Airport and so he was transferred to Bombay as per terms and conditions of his service on operational and administrative grounds vide clause 11 of the General Principles of transfer." 3. There can be no denial that the petitioner is liable to be transferred anywhere in India on operational/administrative/compassionate grounds. That the petitioner could be transferred anywhere in India is one of the terms and conditions under which the petitioner was selected for undergoing training. The transfer on operational/administrative grounds is one of the general prin­ciples of transfer policy in the Civil Aviation Department as-would appear from paragraph 11 of Annexure-A to the affidavit-in-opposition. That the petitioner could be transferred anywhere in India is one of the terms and conditions under which the petitioner was selected for undergoing training. The transfer on operational/administrative grounds is one of the general prin­ciples of transfer policy in the Civil Aviation Department as-would appear from paragraph 11 of Annexure-A to the affidavit-in-opposition. As against this policy guide-line in Annexure-A, the petitioner has referred to a Memorandum of the Civil Aviation Department dated 23.11.79 (Annexure-1 to the petition) wherein reference has been made to a memorandum of the Ministry of Finance intimating that there will be no annual transfer during the year 1980 between any two stations, except promo­tional transfer, or on expiry of deputation period. According to Shri Sarma, the present transfer is in violation of this Memorandum. 4. The matter as presented to me has to be examined to see if the transfer was founded on the conclusion of the depart­mental authority that it was not desirable to retain the peti­tioner at Gauhati Airport, or whether the same was mere motive. As a grievance has been made by the petitioner about his not having been associated in the enquiry which was conducted by respondent No. 6, it has also to be seen whether it was incumbent on the part of the authorities to have done so. The submission of the Shri Laskar for the respondents is that as it was a preliminary enquiry and had been conducted only to satisfy the mind of the authorities whether the complaints were prima facie acceptable, rules of natural justice were not required to be observed in the enquiry. It is the further case of the respondent that if any order had been passed based on the finding arrived in such an enquiry, no fault can be found with that order when on the face of it the order in question has cast no stigma on the petitioner. 5. To satisfy me about this proposition in law, Shri Laskar seeks to draw strength from the decision of the Supreme Court dealing with the question as to when termination of the service of a temporary servant or probationer could be regarded as punitive, attracting the operation of Article 311 of the Con­stitution. According to the learned Counsel some principles should govern the case at hand. According to the learned Counsel some principles should govern the case at hand. I am first referred to the State of Punjab vs. Sukhraj, AIR 1968 SC 1089 wherein after referring to the earlier decisions of the Court, Mitter, J. laid down five propositions. The fourth and fifth propositions which have been pressed into service by Shri Laskar read as follows : "4. An order of termination of service in unexcep­tional 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 Inquiry officer is appointed, a charge-sheet submitted, explanation called for and con­sidered, any order of termination of service made there­after will attract operation of the said Article". The fifth proposition seems unexceptionable, butt the validity of the fourth has been shaken by subsequent cases including the one in Shamsher Singh vs. State of Punjab, AIR 1974 SC 2192 , a decision of a Constitution Bench of the Seven Judges. Really, the problem is not quite simple. As late as on 8.10.75, it was regarded as 'confusing' by a three-Judge Bench in S.P. Vasudeva vs. State of Haryana, AIR 1975 SC 2292 . 6. I was then referred by Shri Laskar to the State of U.P. vs. Ram Chandra, AIR 1976 SC 2547 . This decision has noted the culling down of the law by Mitter, J. in the five proposi­tions in Sukhraj (Supra). In paragraph 16 it was stated after noting various other decisions that : "The form of the order, however, is not conclusive of its true nature. The entirety of the circumstances preceding or attendant on the impugned order must be examined by the Court and the over-riding tests will always be whether the misconduct is a mere motive or is the very foundation of the order.'” The decision of the Supreme Court in Shamsher Singh (supra) was thereafter noted. I shall have occa­sion to refer to this case a little later. The principles on the touch-stone of which the order impugned in Ram Chandra (Supra) was examined have been noted in paragraph 23 of the judgment. It has been stated that the order in question was ex-facie an order of termination of service simpliciter. I shall have occa­sion to refer to this case a little later. The principles on the touch-stone of which the order impugned in Ram Chandra (Supra) was examined have been noted in paragraph 23 of the judgment. It has been stated that the order in question was ex-facie an order of termination of service simpliciter. It did not cast any stigma on the respondent nor did it visit him with evil consequences, nor was it founded on misconduct. So, the mere fact that the order of transfer has not cast any aspersion on the petitioner is not conclusive of the matter. It has further to be seen whether it has visited him with evil consequences or is it founded on miscon­duct. The petitioner has contended that the impugned order visits him with evil consequences inasmuch as he had been transferred to Gauhati on his representation on compassionate ground as he has to support a large family which includes his old widow mother, two brothers, his unmarried sister, as already noted. As such, transfer to Bombay is most likely to put the petitioner in diffi­culty and would cause suffering of his family. What is more important for the case at hand is to see whether the view of the departmental authority that it was undesirable to retain the petitioner at the Gauhati Airport was the foundation of the order of transfer or merely a motive. 7. Shri Laskar has submitted that as in the present case the enquiry was merely to satisfy the mind of the authority about certain allegations leveled against the petitioner and was not a full-fledged departmental enquiry, any order based on the finding arrived at in course of such an enquiry cannot be re­garded as punitive in nature. I do not think if any such broad proposition can be accepted. No doubt, it is correct that in Sukhraj (supra) one of the propositions laid down was in the line of the submission of Shri Laskar. But Sukhraj is not the final word. A Constitution Bench of seven Judge had occasion to deal with this aspect in Shamsher Singh, of which reference has already been made. No doubt, it is correct that in Sukhraj (supra) one of the propositions laid down was in the line of the submission of Shri Laskar. But Sukhraj is not the final word. A Constitution Bench of seven Judge had occasion to deal with this aspect in Shamsher Singh, of which reference has already been made. What was stated by Ray, C.J. on behalf of five Hon'ble Judge in this connection in para 63 was that : "No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punish­ment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct or inefficiency or for similar reasons without proper enquiry and without his getting reasonable opportunity of showing cause against his discharge, it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution." In para 65 it was observed that the fact of holding an enquiry is not always conclusive. What is decisive is whether order is really by way of punishment. It was further pointed out in para 67 that where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexcep­tionable inform is made following a report based on misconduct. 7A. In that case, two orders were challenged-one related to the appellant Shamsher Singh and another to Ishwar Chandra. The facts relating to the latter Officer deserve to be noted as they are more relevant for the case at hand. Before doing so, it may be observed that the law relating to probationer is the same in this regard as is applicable to a temporary Government servant. The facts relating to the latter Officer deserve to be noted as they are more relevant for the case at hand. Before doing so, it may be observed that the law relating to probationer is the same in this regard as is applicable to a temporary Government servant. Ishwar Chand was a member of the Punjab Civil Service (Judicial Branch) and his service had been terminated by passing the following order : "On the recommendation of the High Court of Punjab and Hariyana, the Governor of Punjab is pleased to dispense with the services of Shri Ishwar Chand Agrawal, P. C. S. (Judicial Branch) with immediate effect under Rule 7 (3) of the Punjab Civil Services (Judicial Branch) Rules, 1951, as amended from time to time." Rule 7 (3) had provided, inter alia, that on completion of period of probation of any member of the service, the Governor could on the recommendation of the High Court confirm him in appointment or of his work or conduct was reported by the High Court to be unsatisfactory, dispense with his services. One f of the grievances of Ishwar Chand was that the termination was by way of punishment. It was his case that he had been removed from service on the basis of charges of gross-misconduct by an exparte enquiry conducted by the Vigilance Department. The enquiry was said to be in breach of Article 311 of the Constitution as also in violation of the principles of natural justice. It was found by the Supreme Court that the enquiry conducted by the Officer nominated by the Director of Vigilance had recorded the statements of witnesses behind the back of this appellant. The enquiry was to ascertain the truth of allegation of misconduct. Neither the report nor the statements recorded by the Inquiry Officer reached the appellant. The Inquiry Officer gave his findings which were accepted by the High Court who wrote to the Government that in light of the report, the appellant was not a suitable person to be retained in service. The order of termination was because of the recommendation in the report. On these facts the order of termination of Ishwar Chand was regarded as clearly by way of punishment. It was pointed out that the form the order was not decisive. The order of termination was because of the recommendation in the report. On these facts the order of termination of Ishwar Chand was regarded as clearly by way of punishment. It was pointed out that the form the order was not decisive. Even an innocuously worded order terminating the service may in the facts and circum­stances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the proviso to Article 311. In such a case simplicity of the form of the order will not give any sanctity. Ray, C. J. stated that, that was exactly what had happe­ned in the case of Ishwar Chandra and the order of termina­tion was set aside. 8. Ishwar Chand's was thus not a case where a depart­mental proceeding as such had been initiated. It was an enquiry, I by an officer of the Vigilance Department to satisfy the authorities about the charges levelled against Ishwar Chand not even communicated to him. The case was thus not covered by the fifth proposition mentioned by Mitter, J. in Sukhraj (Supra). Despite this the order was set aside as it was regarded by way of punishment. 9. The concurring judgment in Shamsher Singh was by Krishna Iyer, J. on behalf of self and Bhagwati J. In para 158 of the judgment, it has been noted that there has been a shift from the factum of enquiry to the object of the enquiry. The observations in para 159 relating to-motive-versus substance deserve notice ; "In some cases the rule of guidance has been stated to be 'the substance of the matter' and the 'foundation' of the order. When does 'motive trespass into 'foundation'? When do we lift the veil of 'form' to touch the subs­tance'? When the Court says so. These 'Freudian' fron­tiers obviously fail in the work a day world......" Krishna Iyer, J. then approved the observation of Dr. Tripathi in "Spotlights on Constitutional Interpretation that : "......in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of departmental enquiry a search for the 'substance of the matter' will be indistinguishable from a search for the motive (real, unrevealed object) of the order. Tripathi in "Spotlights on Constitutional Interpretation that : "......in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of departmental enquiry a search for the 'substance of the matter' will be indistinguishable from a search for the motive (real, unrevealed object) of the order. Failure to appreciate this relationship between the motive (the real, but unrevealed object) and form (the apparent, or officially revealed object) in the present context has led to an unreal interplay of words and phrases wherein symbols like 'motive', 'substance', 'form' or 'direct' parade in diffe­rent combinations without communicating precise situations or entities in the world of facts." His Lordship, therefore, felt in paragraph 160 that the need in this branch of jurisprudence is not so much to reach perfect justice but to lay down a plain test which the administrator and civil servant can understand without subtlety and apply without difficulty. 10. According to me the test to be applied in this regard is yet to be formulated with any degree of definiteness. This controversy has really eluded the Court so far. 11. That between motive and foundation that even partitions do their bounds divide would be apparent from the facts of Ram Chandra (Supra). The order in this case was not regar­ded as founded on misconduct though what has happened was that the respondent's service had been terminated after somebody else was detected as impersonating the respondent in a depart­mental examination which he was required to pass. The exec­utive Engineer had obtained explanations of both the concerned persons and submitted the same to the Superintending Engineer, who regarded the explanation as unsatisfactory and brought the matter to the notice of the Chief Engineer. The Chief Engineer asked the Superintending Engineer to award suitable punishment to the two persons which included the respondent. Thereafter an innocuous letter stating that the respondent's services will not be required was issued. 12. The position in law is thus 'confusing' as pithly and candidly stated by Alagiriswamy, J. in Vasudeva (Supra). This was so regarded because after all no Government servant, a probationer or temporary is discharged or reverted arbi­trarily and without any rhyme or reason indeed if it were so done, the order would be bad on this ground alone. (See Manager, Government Branch Press vs. Belliappa AIR 1979 SC 492). This was so regarded because after all no Government servant, a probationer or temporary is discharged or reverted arbi­trarily and without any rhyme or reason indeed if it were so done, the order would be bad on this ground alone. (See Manager, Government Branch Press vs. Belliappa AIR 1979 SC 492). Now, if reason has to be fathomed in all cases of discharged or reversion, it will be difficult to distinguish as to which action is discharge or reversion simpliciter, and which is by way of punishment. I would think that the position as it stands is that there is no objective test to determine the question whether in a given case misconduct was merely a motive or its foundation, Everything seems to depend in the ultimate analysis on the subjective satisfaction. 13. With great respect and utmost humility I, therefore, say that the leading light of law is yet to illuminate well the path to be trodden to reach the goal of unravelling the dicho­tomy and difference existing between motive and substance. Something could perhaps be done if the solution advanced by Alagiriswamy, J. in Vasudeva (supra) that such orders cannot be questioned "except on the basis of malafides in the making of the order", is accepted. In the alternative, as recently held by a Division Bench of Delhi High Court in Union of India vs. B.C. Gupta, 1980 SLJ 316, if an action is taken on the basis of a specific incident of misconduct, the same may be regarded as the foundation of the action. This would be so even if the misconduct in question was gone into exparte in a preliminary enquiry. On the other hand, if the decision is arrived at by taking into consideration the specific incident of miscon­duct along with a number of other facts and an over-all view, say of the performance and conduct of the employee is taken, the misconduct in question may be regarded as merely a motive. 14. Till this is done, the quest for justice it seems has to be in some wilderness. Let that be tried and seen whether the conclusion of the authorities that it was not desirable to retain the petitioner at Gauhati Airport was merely a motive or the foundation of the impugned order. 14. Till this is done, the quest for justice it seems has to be in some wilderness. Let that be tried and seen whether the conclusion of the authorities that it was not desirable to retain the petitioner at Gauhati Airport was merely a motive or the foundation of the impugned order. A reading of paragraph 8 of their affidavit which has been quoted above, clearly shows that on the authorities being satisfied that it was not desirable to retain the petitioner at Gauhati Airport, he was transferred though something has been said about operational ground also. Nothing has been said in the counter-affidavit as to what was the urgent necessity of posting the person like the petitioner at the Bombay Airport. I would, therefore, think that at the beck and call of the authority in transferring the petitioner was its conclusion that it was not desirable to retain him at Gauhati Airport. Thus, according to me, it was the foundation of the order and not merely the motive. If the test in a case like the present one be, as urged by Shri Laskar, whether a misconduct was merely a motive or foundation of the order, and in case it be latter, the order could be regarded as penal, I hold that the present transfer was punitive in nature as it was founded on the complaint against the petitioner. As this conclusion re­garding undesirability of the petitioner's stay at Gauhati had been reached in pursuant to an enquiry held at the back of the petitioner, the same has to be regarded as violative of the principles of natural justice. Such an order cannot, therefore, be sustained. 15. Before concluding, I would like to observe that the respondents case before me been that the petitioner was trans­ferred because of the report relating to complaints against the petitioner which had led the authorities to come to the conclusion that the presence of the petitioner was not desirable at Gauhati, i.e. the complaints were the foundation of the order, and con-elusion about undesirability of the petitioner's stay at Gauhati Airport was the administrative reason (as harmony among the staff posted at one place has to be maintained) of the transfer, which otherwise did not involve any penal consequence or adver­sely affect the petitioner, I do not know what my conclusion would have been. Instead, I was addressed on the motive versus foundation controversy. Support from cases relating to termi­nation or reversion was also sought to be drawn to satisfy me that the order was not founded on the complaints in question and as such had not been passed as a punishment. The res­pondents have not succeeded in this effort. 16. The result is that, I allow the petition and quash the impugned order.