JUDGMENT V. K. Mehrotra, J. - This is a plaintiffs second appeal who has lost from the lower appellate court. 2. Sohanpal Singh, the plaintiff, worked as an Assistant Tahsildar in Bulandshahr Subtreasury after his appointment initially as a temporary money tester in the year 1954. He was prosecuted for some embezzlement that took place there but was acquitted on July 4, 1967 by the Assistant Sessions Judge. During the period of his trial, he was under suspension. The Collector, Bulandshahr reinstated him retrospectively on Nov. 28, 1968 with effect from Dec. 15, 1965. The same day, however, another order was passed terminating the services of the plaintiff in the following terms: "Your temporary services are hereby terminated as the same are no longer required. You will get one months pay in lieu of one months notice." Both the orders, namely, the one of reinstatement and the other terminating his services, were served upon the plaintiff when he reported for duty at Anoopshahr Tahsil on Dec. 14, 1968. 3. The plaintiff filed a writ-petition (Ext. A-2) under Article 226 of the Constitution challenging the order of termination of his service. That writ petition was dismissed summarily by this Court by a one word order (Ext. A-1) Rejected. Thereafter, on the same grounds which had been raised in the writ petition, the plaintiff filed the suit, out of which this appeal arises, for a declaration that the order dated Nov. 28,1968 terminating his services was illegal, void and ultra vires and that he continued to be in the service of the State of Uttar Pradesh as an Assistant Tahsildar. A sum of Rs. 1674-50 was also claimed as arrears of salary. 4. The suit was filed, inter alia, on the ground that the order of termination was mala fide; that it was bad also on the ground that no opportunity was afforded to the plaintiff under Article 311 of the Constitution and that the order was also bad as it was passed in breach of principles of natural justice and further that a months pay in lieu of the notice period had not been given to the plaintiff, rendering the order bad. 5. The State of Uttar Pradesh contested the suit on various grounds. 5. The State of Uttar Pradesh contested the suit on various grounds. Apart from justifying the order on merits, it also pleaded that the suit was barred on the principle of res judicata on account of dismissal of the plaintiffs writ petition filed earlier. 6. The trial court framed several issues of which issue No. 4 was "whether the suit is barred by the principle of res judicata on account of the dismissal of the writ petition of the plaintiff? Its effect?" On this issue it held that the order passed by the High Court while rejecting the writ petition was not a speaking order, the suit could not be held to be barred on the principle of res judicata. Reliance was placed by the trial court on the decision of the Supreme Court in the case of Daryao v. State of U. P. ( AIR 1961 S.C. 1457 ) for this view. On merits, the trial Court held that the plaintiff was a temporary employee yet, having regard to the circumstances in which the order of termination had been passed, it was clear that it was by way of punishment and that inasmuch as no opportunity had been afforded to the plaintiff, the same was bad in law. The trial Court placed reliance upon the decision of a learned Single Judge of this Court (W. Broome, J.) in the case of Harish Chandra Gupta v. Dist. Magistrate, Bulandshahr (Civil Misc. Writ No. 3995 of 1962 - decided on July 22, 1964) for coming to this conclusion. It, therefore, decreed the plaintiffs suit and declared that the order dated Nov. 28, 1968 terminating his services was illegal, that the plaintiff continued to be in the service of the State of Uttar Pradesh and further that he was entitled to a decree for Rs. 1674-50 on account of the salary claimed by him. He was also held entitled to pendente lite and future salary on payment of necessary court fee in the execution side. The State of Uttar Pradesh appealed against the decree. 7. The learned District Judge, who heard the appeal, reversed the decree. He took the view that the plaintiff being a temporary Government servant could not claim any opportunity, as was being attempted by him, before the termination of his service which was brought about by an innocuous order. The State of Uttar Pradesh appealed against the decree. 7. The learned District Judge, who heard the appeal, reversed the decree. He took the view that the plaintiff being a temporary Government servant could not claim any opportunity, as was being attempted by him, before the termination of his service which was brought about by an innocuous order. The learned Judge referred to some Supreme Court decisions in this regard and attempted to distinguish the decision in Harish Chandra Guptas case in the following terms; "10. Learned Trial Judge based his opinion upon unreported writ decision in Harish Chandra Gupta v. District Magistrate, Bulandshahr, decided by Honble W. Broome on 22-7-1964. A certified copy of the judgment was produced. It appears that Harish Chandra a clerk in Panchayat Office in Bulandshahr Collectorate was prosecuted for abetment of embezzlement and forgery, convicted by the trial judge and therefore, dismissed by the District Magistrate. He was acquitted on appeal. Thereafter he applied for reinstatement and on 3-12-1962 the District Magistrate passed two orders, one reinstating him and the other terminating his services as no longer required. It was held that even if Harish Chandra was only temporary, he could not be dismissed or removed without a show cause notice "ostensibly his services have been merely terminated, but the narration of facts set forth above discloses clearly enough that this termination of his service was illegal " Impugned order of termination of service was quashed. The writ decision does not say that termination of services was by way of punishment so as to have been preceded by show cause notice and departmental inquiry. The writ decision as well does not say if rule 114 of the Manual of U. P. Government orders was complied with and a months notice or, in lieu of notice, a months salary was given to the temporary servant whose services were terminated." 8. Later on, the learned Judge observed that even though he had disagreed with the trial Judge about merits, he agreed with him that the suit was not barred by Section 11 C. P. C. The writ petition had been disposed of by means of a non-speaking order and that the dismissal of the writ petition in limine, as held in Daryao and others case, would not create a bar of res judicata. Allowing he appeal, the learned District Judge dismissed the plaintiffs suit with costs throughout. Hence, the present second appeal. 9. Appearing for the appellant, Sri K. B. L. Gaur, his learned counsel, has urged that the facts and circumstances of the instant case were exactly similar to those in the case of Harish Chandra and that the lower appellate court was not justified in taking a view contrary to the one taken by this court in that ease. The suit, according to his submission, was rightly decreed by the trial court. 10. There is substance in the submission of Sri Gaur. In State of Bihar v. Shiva Bhikshuk Mishra ( AIR 1971 SC 1011 ) : (1971 Lab IC 724), the Supreme Court, after noticing some of its earlier decisions, observed as follows: "We are unable to accede to the contention of the appellant that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of a Government officer in the impugned order it cannot be held to have been made by way of punishment. The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. In Dhabas case Civil Appeal No. 882 of 1966 D/- 7-4-1969 : (AIR 1969 NSC 21), it was not found that the order of reversion was based on misconduct or negligence of the officer. So far as we are aware no such rigid principle has ever been laid down by this court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. 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 (see S.R. Tewari v. District Board, Agra (1964) 3 SCR 55 : ( AIR 1964 SC 1680 ). 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 (see S.R. Tewari v. District Board, Agra (1964) 3 SCR 55 : ( AIR 1964 SC 1680 ). 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 he examined and the overriding test will always he whether the misconduct is a mere motive or is the very foundation of the order. (emphasis supplied). 11. The undisputed facts of the present case are that the plaintiff; who had joined as a temporary money tester in Bulandshahr Sub-treasury in the year 1954 and had been subsequently promoted as Assistant Tahsildar, was placed under suspension on Dec. 15, 1965 on account of some embezzlement and faced a criminal trial in that connection. Upon his acquittal by the Assistant Sessions Judge on July 4, 1967, he prayed for reinstatement but in vain. He, therefore, served a notice under Section 80 CPC upon the Collector, Bulandshahr who, thereafter, by an order dated Nov. 28, 1968 directed his reinstatement with effect from Dec. 15, 1965. The same day, namely, on Nov. 28, 1968 the impugned order of termination of the plaintiffs services was passed by the Collector. This order of termination was served upon the plaintiff when he had gone to join his duty at Anoopshahr sub-treasury on Dec. 14, 1968. The circumstances aforesaid clearly indicate that the basis of the order of termination of the plaintiffs services clearly was the fact of embezzlement in the treasury for which he had been prosecuted by the respondents, though unsuccessfully. The mere fact that the impugned order was innocuous in nature and did not cast any stigma upon the plaintiff, who was a temporary employee, did not absolve them of the obligation of affording him an opportunity guaranteed by Article 311 of the Constitution. The present was a case identical to the one which was decided by W. Broome J. and on which if reliance had been placed on behalf of the plaintiff in the courts below. 12. The present was a case identical to the one which was decided by W. Broome J. and on which if reliance had been placed on behalf of the plaintiff in the courts below. 12. Harish Chandra Gupta, the petitioner in writ petition No. 3995 of 1962 decided by W. Broome, J. was a clerk in the Panchayat Office attached to the Bulandshahr Collectorate. He was prosecuted for abetment of offences under Sections 409, 468 and 4711 PC and was convicted on those charges by the Sessions Judge of Bulandshahr on Oct, 30,1961. Consequently, the District Magistrate, Bulandshahr dismissed him from service on Nov. 14, 1961. Harish Chandra Gupta was acquitted in appeal preferred by him against his conviction by this court on Aug. 2, 1962, He, therefore, applied for his reinstatement and on Dec. 3, 1962, the District Magistrate passed two orders - one reinstating him and the other terminating his services, as no longer required. Ostensibly, his services had been merely terminated but from the facts aforesaid, this court inferred that it was an order of dismissal which could not be passed without giving an opportunity. The order was consequently quashed. 13. The learned District Judge clearly misdirected himself in law in attempting to distinguish the decision of this court on the grounds on which he purported to do so. The circumstances of the instant case could brook no such distinction. The trial Judge was right in taking the view that the impugned order dated Nov. 28, 1968 was one of punishment and could not be sustained as it had been passed without any opportunity having been afforded to the plaintiff before it was passed. 14. The learned Standing Counsel, appearing for the respondents, when faced with the reversal of the decision of the District Judge on merits, strenuously contended that the suit itself was barred on principles of res judicata and that the view, to the contrary, of the two courts below was unsustainable. His submission is that notwithstanding the dismissal of the writ petition filed earlier by the plaintiff by a non-speaking one word order Rejected, the suit would be barred on principles of res judicata and that the plaintiff was consequently not entitled to any relief therein. His submission is that notwithstanding the dismissal of the writ petition filed earlier by the plaintiff by a non-speaking one word order Rejected, the suit would be barred on principles of res judicata and that the plaintiff was consequently not entitled to any relief therein. He has placed reliance for this submission upon a Full Bench decision of the Lucknow Bench of this Court in the case of, R. S. Sial v. State of U.P. (1971 All WR (HC) 582) : (1971 Lab IC 976) in which Jagdish Sahai, J. observed that "merely because an order is non-speaking it cannot be held that the dismissal is on preliminary grounds and not on merits. To hold it so would be to add some words to the word "dismissed" and to destroy the comprehensiveness of that word." 15. The decision of a High Court on a writ petition under Article 226 on merits on the matter after contest operates as res judicata in a subsequent regular suit between the same parties with respect to the same matter (See: Gylabchand v. State of Gujarat (AIR 1965 SCI 153) and Union of India v. Nanak Singh ( AIR 1968 SC 1370 ). Where, however, the decision in a petition under Article 226 is not given on merits, the same would not operate as res judicata. See: Joseph v. State of Kerala ( AIR 1965 SC 1514 ). 16. In Daryao v. State of U. P. ( AIR 1961 SC 1457 ), Gajendragadkar, J, speaking for a Constitution Bench, observed (in para 19 of the report) as follows: "If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits, it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without, passing a speaking order in that behalf may strongly suggest that the court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 32. If a petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us. (Emphasis supplied) 17. Later, in Virudhunagar Stefel Rolling Mills Ltd. v. Govt, of Madras ( AIR 1968 SC 1196 ), Wanchoo, C.J. speaking again for the Constitution Bench, observed, after extracting quotation from the aforesaid decision, as follows: "It is true that this court said in that case . that if a writ petition under Article 226 is dismissed on merits after contest it would bar a petition under Article 32 on the same facts. But the later observations at the same page show that was not the only case in which there would be a bar of res judicata. Even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order dismissing it in limine. This is perfectly clear from the later observations made at page 592 in the same case. Even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order dismissing it in limine. This is perfectly clear from the later observations made at page 592 in the same case. Where, therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merits, that would still amount to Res judicata and would bar a petition under Article 32. The petitioners only proper remedy in such a case would be to come in appeal from such a speaking order passed on the merits, even though the High Court may not have issued notice to the other side. What has been decided in Daryaos case, (1962) 1 SCR 574 = ( AIR 1961 SC 1457 ) is that the High Court should have decided the petition on the merits by a speaking order. If that is done, it is immaterial whether notice was issued to the other side or not before such a decision was given. The bar arises not because there was a notice issued but because the High Court has dealt with the merits of the petition before it and has passed a speaking order even though no notice might have been issued." (Emphasis supplied) 18. In M/s. Tilokchand Motichand v. Commr. of Sales Tax, Bombay ( AIR 1970 SC 898 ), Hidayatullah, C. J., speaking with the majority, observed (in para 6 of the report) that : "Then again this court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expression is somewhat inapt and unfortunate. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expression is somewhat inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarised as "interest reipublicae res judicatas non rescindi" but the motivating factor is the existence of another parallel jurisdiction in another court and that court having been moved, this court insists on bringing its decision before this Court for review. Again this court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this court in a suitable case entertains the application before itself. Another restraint which this court puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this Court has refrained from taking action when a better remedy is to move the High Court under Article 226 which can go into the controversy more comprehensively than this court can under Article 32." (Emphasis supplied) 19. In Hoshnak Singh v. Union of India ( AIR 1979 SC 1328 ), the Supreme Court observed (in para 7 of the report) that : "The earlier petition was dismissed by a non-speaking one word, order dismissed'. The High Court may as well dismiss the petition in limine on the ground of delay or laches or on the ground of alternative remedy. The second petition after pursuing the alternative remedy would not be barred by the principles analogous to res judicata. The High Court may as well dismiss the petition in limine on the ground of delay or laches or on the ground of alternative remedy. The second petition after pursuing the alternative remedy would not be barred by the principles analogous to res judicata. More often a petition under Article 226 is dismissed on the ground that before invoking the extraordinary jurisdiction of the High Court, if the petitioner has an alternative remedy under a statute under which the right is claimed by the petitioner, the court expects the petitioner to exhaust the remedy and in such a situation the petition is dismissed in limine." After noticing the aforesaid earlier decisions, the Court observed (in para 10 of the report) that : "It is, therefore, incontrovertible that where a petition under Article 226 is dismissed, in limine without a speaking order such a dismissal would not constitute a bar of res judicata to a subsequent petition on the same cause of action, more so, when on the facts in this case it appears that the petition was dismissed presumably because the petitioner had an alternative remedy by way of a revision petition under Section 33 of the 1954 Act which remedy he availed of and after failure to get the relief he moved the High Court again for the relief " 20. The principle, therefore, which appears settled by the string of decisions of the Supreme Court over a period of nearly two decades is that where a petition under Article 226 of the Constitution is dismissed in limine without a speaking order such dismissal would not operate as res judicata in respect of subsequent proceeding by way of a suit etc. in respect of the same cause of action. Jagdish Sahai, J. was obviously in error when he said in the case of R. S. Sial (Supra) that "merely because an order is non-speaking, it cannot be held that the dismissal is on ] preliminary grounds and not on merits". The learned Judge, it appears, overlooked the observation of the Supreme Court in Daryaos case, which admittedly had been cited before him, that ".... The learned Judge, it appears, overlooked the observation of the Supreme Court in Daryaos case, which admittedly had been cited before him, that ".... in the absence of a speaking order, it would not be easy to decide what factors weighed in the mind of the court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merit and as such constitutes a bar of res judicata .....". In fact, the reason which commended itself to Jagdish Sahai, J. for taking the view that the bar of res judicata will be attracted even if the earlier writ petition had been dismissed in limine without a speaking order is in direct conflict with the dictum of the Supreme Court in Daryaos case, which has been consistent by restated by the Supreme Court in its subsequent decisions, noticed above. 21. The facts in R. S. Sials case (1971 Lab IC 976) (All) (FB) were these: R. S. Sial, who was in the employment of the erstwhile Transport Department of the Government of Uttar Pradesh, was a confirmed Assistant General Manager. He was transferred as an officiating General Manager, Aligarh on Apr. 15, 1961 but was later on reverted to his substantive post. He filed a writ petition at Allahabad which was dismissed on Sept. 12, 1967 by a Division Bench by a single word order dismissed. Thereafter, he filed a writ petition in theLucknow Bench of the High Court which came up for hearing before Lakshmi Prasad, J. who referred the case to a larger Bench. The matter was then placed before a Division Bench which referred it to a Full Bench. 22. The first question which, according to the Full Bench, arose for consideration was whether the petition filed at Lucknow was barred by res judicata and by rule of finality on the ground that a writ petition on the same facts was dismissed by a Bench on Sept. 12, 1967. The leading judgment, as noticed earlier, was of Jagdish Sahai, J. who, at the very outset, observed (in para 5 of the report) that : "Whereas Mr. 12, 1967. The leading judgment, as noticed earlier, was of Jagdish Sahai, J. who, at the very outset, observed (in para 5 of the report) that : "Whereas Mr. R. N. Trivedi who has appeared for the petitioner has contended that the earlier writ petition was dismissed on the ground that the petitioner had not exhausted his departmental remedies, the case taken by the State is that it was a case of dismissal on merits." The learned Judge proceeded to observe that: "It is true that the order dismissing the earlier writ petition is not a speaking order in the sense that reasons for dismissal have not been recorded and the only word used is "dismissed". In my opinion the word "dismissed" is comprehensive enough to include dismissal on merits and cannot be read to mean dismissal on the preliminary ground that the petitioner had not exhausted his departmental remedies. In the absence of ,any qualifying words the word "dismissed" must ne read in its widest amplitude so as to include dismissal on merits also." After noticing the decision of the Supreme Court, in Daryaos case, the learned Judge observed that: "In my opinion this decision does not lay down a hard and fast rule that if a writ petition is dismissed in limine by a single word order "dismissed", the judgment would not operate as res judicata in my opinion the instant writ petition is barred by res judicata. But even if it were not so the writ petition would still fail on merits which I have discussed a little later." Then the learned Judge proceeded to observe (in para 7 of the report) that :- "Admittedly the petitioner did not file an appeal in the Supreme Court nor did he make an application for a certificate in this court. The order dated 12th Sept. 1967, therefore, became final and the instant writ petition is liable to be dismissed also on the basis of the rule of finality which governs all judicial proceedings. R. 7 of Chap. XXII of the Rules of Court reads:- "Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts." It is not in dispute that the instant petition is on the same facts. R. 7 of Chap. XXII of the Rules of Court reads:- "Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts." It is not in dispute that the instant petition is on the same facts. What is contended is that this rule would not bar a subsequent writ petition if the earlier one was dismissed on a preliminary ground. I have already held above that there is nothing to indicate that the earlier writ petition was dismissed on a preliminary ground and not on merits. I am, therefore, of the opinion that the instant petition is barred by this rule also." The aforesaid observations would suggest that on the facts of that case, the learned Judge was of the view that the earlier writ petition of Sial was dismissed on merits. He also found against Sial on merits as well. U. S. Srivastava, 1 concurred with Jagdish Sahai, J. by observing that he agreed and had nothing to add while O. P. Trivedi, J. observed that he had seen the judgment of Jagdish Sahai, J. and was in respectful agreement with his conclusions. He gave his own reasons for upholding the order of reversion on merits. 23. The material on the record of the instant case does not indicate that when the writ petition filed by the plaintiff earlier was dismissed by this Court, it had been dismissed on merits. The learned counsel for the respondents has not been able to point to any such material from which it can be inferred that it was so dismissed. On facts too, this case cannot be said to be akin to the one which was decided by the Full Bench. The objection that the suit, out of which the present Second Appeal arises, was barred on the principle of res judicata cannot, therefore, be upheld. 24. The inevitable consequence of the aforesaid discussion is that the plaintiff is entitled to the decree claimed. The appeal succeeds and is allowed. The decree of the lower appellate court is set aside and that of the trial court restored. The plaintiff shall also be entitled to his costs.