JUDGMENT R. M Sahai, J. - In this plaintiffs second appeal arising out of a suit for declaration that the order dated 19-11-71 passed by Town Engineer,Northern Railway removing plaintiff from service was illegal, two questions arise for consideration one, whether plaintiff was a temporary employee and if so whether the order removing him from service was in accordance with rules of the Establishment Code. 2. It is not disputed that plaintiff appellant was appointed as a casual labour on 28-8-68. On 17th Nov. 1970 the Town Engineer passed an order Ex. 3 that the following casual labour, who have worked for more than six months as casual labour under IOW(E)GKP are granted time scale of pay they will be governed by the rules and conditions applicable to temporary class IV Railway servants. In the list appended to this order appellant was shown at Serial No. 33, and he was given time scale from 29-9-69. It had been found by the two courts below that in view of this order passed in exercise of power under rules the appellant was a temporary employee. In order to support the judgment of the lower appellate court which despite this finding dismissed the suit, Sri Lalji Sinha the learned counsel appearing for railways urged that this finding is erroneous and being contrary to rules it should be set aside. He maintained that even if the finding is not set aside the appellant being only casual labour the order dismissing the suit should not be disturbed. Reliance was placed by him on sub-r. (13) of R. 102 of Railway Establishment Code, Vol. 1. 3. This sub-rule defines a temporary employee. It excluded a casual labour from it. This by itself is not sufficient. It is not the case of appellant nor have the courts below found that a casual labour is a temporary employee. Paragraph 250i(b)(i) of the Railway Establishment Manual which admittedly applies to appellant provides that a casual labour working as such continuously for six months is entitled to become a temporary employee. The appellant having been appointed on 28-8-68 and having worked continuously for six months was entitled to be treated as temporary employee. This entitlement matured into right when the Town Engineer passed the order on 17-11-70 and granted him time scale with effect from 20-9-69. The appellant having been appointed on 28-8-68 and having worked continuously for six months was entitled to be treated as temporary employee. This entitlement matured into right when the Town Engineer passed the order on 17-11-70 and granted him time scale with effect from 20-9-69. (sic) Paragraph 2511 of the Manual provides that a casual labour treated as temporary employee is entitled to all rights and privileges admissible to temporary employees. The rights privileges admissible to such labour also include the benefit of the Discipline and Appeal rules. The contention therefore that appellant was not a temporary employee is devoid of any merit. The finding recorded by the two courts below is well founded in law. 4. It may now be examined if the finding of appellate court that the order of removal was not violative of Article 311(2) of the Constitution nor did it suffer from infirmity pointed out by Hon'ble Supreme Court in Divisional Personnel Officer, Southern Railway v. T. R. Challappan, AIR 1975 SC 2216 : (1975 Lab I C 1598), can be sustained. For this it is necessary to mention few facts. From 29-9-69 (sic) to 16-11-70, the appellant worked as Khalasi. On 17-9-70 (sic) he was convicted and sentenced to undergo rigorous imprisonment under S. 147/323/325 I. P. C. The incident which led to conviction had nothing to do with work as Khalasi. It was a private affair. But as a result of conviction the appellant had to go to jail. Consequently he absented from 17-11-70 to 16-5-71. After release he presented himself before Inspector of Works on 17-5-71 but he was not allowed to join. He made representations in August and September but it was not heeded to. It is not clear whether any order was passed or not. On 6-10-71 the appellant made another representation (Ex. 3) to the Town Engineer. It was rejected on 9-11-71. The letter (Ex. 1) reads as under : "Subject: Application for appointment as casual labour. Ref: Your application dated 6-10-71 Your application referred to above has been considered and it has been decided that you cannot be re-engaged as casual labour being convicted in the criminal case." After this the appellant filed the present suit for declaration. 5. It has been seen above that the finding of two courts below that appellant was a temporary employee under Railway Establishment Code is supported by rules. 5. It has been seen above that the finding of two courts below that appellant was a temporary employee under Railway Establishment Code is supported by rules. Such an employee is liable to be removed only after disciplinary inquiry under Article 311 of the Constitution unless his case is covered in the provision, that is, he has been convicted on a criminal charge. The case of the appellant therefore was covered by the proviso. But R. 14, Railway Establishment Code, provides : "Where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit." This rule came up for consideration in Challappan's case (1975 Lab I C 1598) (S C) (supra). It was held (at p. 1606) : "This matter can be objectively determined only if the delinquent employee is heard and is given a chance to satisfy the authority regarding the final orders that may be passed by the said authority. In other words, the term `consider' postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. Such an enquiry would be summary inquiry to be held by the disciplinary authority after hearing the delinquent employee. It is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with under R. 14 of the Rules of 1968 which incorporated the principle contained in Article 311(2) proviso (a). This provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee. It is obvious that in considering this matter the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth." The courts below have differed on the applicability of these principles. According to appellate court as the Town Engineer passed the order on the representation he shall be deemed to have considered the facts and the order was in accordance with R. 14. It is true that hearing and objective consideration mentioned in the Supreme Court decision do not mean oral hearing or passing order after hearing aggrieved person but the test to find out whether the authority concerned has applied his mind or not has to be judged in the light of the sentence underlined in the extract quoted above. No underlining of sentence in quotation found in the copy of judgment - Ed. The disciplinary authority had no doubt power to terminate the services of the employee but he was required to consider the nature of the offence for which the employee was charged, conviction and its effect on the administration, whether retention of such employee would be conducive to the Department. This has been highlighted by giving illustration of conviction under Motor Vehicles Act. From para 17 it is further clear that in those cases the order passed by High Court was set aside as the order was passed only on consideration that the employee was convicted by criminal court. Similar error has been committed by appellate court in this case. From the order of the disciplinary authority it does not appear that he applied his mind at all as required by Supreme Court in Challappan's case. The order removing petitioner from service being contrary to R. 14 could not have been maintained. Reliance was placed on paras 26 and 29 of the written statement. It was urged that this being specific case of the department and there being no dispute that the plaintiff was absent the case should be sent to the court below for recording a finding on this issue or the order should be maintained because if the services of the appellant stood automatically terminated there was no question of re-employment or applicability of R. 14. The argument is devoid of any substance. There is no rule which provides that if a temporary employee remains absent for certain period then his services shall stand terminated. In the absence of any rule it was incumbent on the disciplinary authority to serve a show cause notice. The argument is devoid of any substance. There is no rule which provides that if a temporary employee remains absent for certain period then his services shall stand terminated. In the absence of any rule it was incumbent on the disciplinary authority to serve a show cause notice. As this has not been done the services of the plaintiff could not be said to have come to an end automatically. 6. In the result this appeal succeeds and is allowed. The decree and judgment passed by lower appellate court is set aside. The plaintiffs suit shall stand decreed with costs.