JUDGMENT R.C. Shrivastava, J. 1. The suit, out of which this second appeal by defendants has arisen was instituted by the respondent for declaration that an order dated 1-5-1979 terminating his services was entitled to his pay and other benefits for the period from 1-5-1979 onwards. 2. The respondent was initially appointed temporarily as anti Malaraia Lascar in Indian Air Force at Gwalior wide order dated 4-6-1977 (Ex P-14) He was relieved of that post on 31-10-1977 and temporarily absorbed as a labourer (Mazdoo) in E.M.E Workship of the army at Gwalior. The post of labourer was accepted by him vide Ex. D-2. On 30-4-1979 the appellant No 2, who the Commanding Officer of the workshop, passed an order (Ex. P-5) terminating the respondent's services. It reads as follows. Order of termination of service issued under the proviso to sub-rule (1) of rule 5 of the Central Services (Temporary Service) Rules, 1965. In pursuance of this proviso to sub-rule (1) of rule of the Central Civil Services (Temporary Service Rules, 1965, I hereby terminate forthwith the service of Shri Mohan Lal Labourer and direct that he shall be paid a sum equivalent to the amount of pay and allowances for a period of one month (in lieu of the period of notice) calculated at the same rate at which he was drawing them immediately before the date or which this order is served on /or as the case may be tendered by him. Then, a letter dated 1-5-1979 (Ex P-3) was sent by the appellants No. 2 to the respondent. It reads as follows: Shri Mohan Lal, Labourer, Nai Basti, Tikchnia, Meat Market ke peechey, Morar, Gwalior 6 (MP) ORDER OF TERMINATION FROM GOVERNMENT SEVICE. (1) Older of termination from Government service in accordance with sub-rule I of rule 5 of the Central Civil Service (Temporary Service) 1965, in respect of T. No. 126 Labourer Shri Mohan Lal, is enclosed herewith. His services have been terminated w.e.f. 30 April 79. (2) His pay for the month of April 79 along with the pay for another month in lieu of notice period is being sent through Money Order. Mo. receipt No. is 0807 dated 2 May 78. Thus, the services of the respondent were terminated, on 6-9-1979 he sued the appellants for the reliefs mentioned in the preceding paragraph The suit was contested by the appellants. Mo. receipt No. is 0807 dated 2 May 78. Thus, the services of the respondent were terminated, on 6-9-1979 he sued the appellants for the reliefs mentioned in the preceding paragraph The suit was contested by the appellants. The claim was decreed by the trial Court, which held that the impugned order was vitiated as it was mala fide. First appeal preferred by the appellants having been dismissed; they preferred this second appeal. 3. This appeal was admitted only on the following substantial question of law. (i) Can the plea of mala fide sufficient to quash the order without stigma passed by a competent authority ? (ii) Whether the defence is competent to pass the order in exercise of powers under rule 5 and can the said order be interefered with by the Courts below ? (iii) Whether the Courts below are competent to interfere in the order without stigma and whether the Courts could go behind the order so passed ? The same questions had been formulated in the memorandum of appeal. 4. In the being of the month of April 1979, a departmental inquiry was contemplated against the respondent. Ex. P-7 is the statement of 'articles of charges' framed against him. It reads as follows. Statement of articles of charge framed against Shri Mohan Lal labourer (temporary) Article I That said Shri Mohan Lal while functioning as Labourer (temporary) during the period on 2 April 79, he was told by the Officer Commanding to get two blankets repaired by another unserviceable blankets. Where as he got only one blanket repaired rendering to blankets UNSV and causing a loss of one blanket to the State. Article 11 That during the aforesaid period and while functioning in the aforesaid office, the said Shri Mohan Lal when asked by NKP Gopal i/c QM section he said rudely 'Mujhe Jo Kaha Gaya Ohikarke Laya Hun'. Article III That during the aforesaid period and while functioning in the aforesaid office, the said Shri Mohan Lai, Labourer (temporary) on being inquired by the Officer Commanding he replied rudely that Yen Aik Jhut Boita Hai, by the above acts, T.No. 126 Labourer (temporary) Shri Mohan Lal exhibited lack of conduct and devotion to duty thus violating rule 3 of CCS (CCA) Rules 1964. Ex. Ex. P-8 is the statement of 'imputation of misconduct or misbehaviour' in support of the articles of charges', It reads as follows: Statement of imputation of misconduct or misbehaviour in support of the articles of charge framed against Shri Mohan Lal Labourer (temporary) Article I On 2 April 79 at 10.00 hrs at the QM section while the Codemnation was being done. The Officer Commanding called T No. 126 Labourer Shri Mohan Lal (temporary) and shown him two repairable blankets along with another UNSV blanket. He told him to get the above two repairable blankets repaired by using the UNSV blanket. For easy identification he got the UNSV blanket cut into two pieces. Then the Officer Commanding explained him the way repair has to be carried out on the two blankets. The Officer Commanding has explained him twice about the repair. Then Shri Mohan Lal Labourer (temporary) said in the presence of every body that 'Sahab Mai Samajh Gaya Abhi Karwakar Lata Hun'. But he got one blanket repaired by cutting two blankets. Thus the state is at a loss of an repairable blanket. Article II In the after-noon at 15.00 hrs Shri Mohan Lal labourer (temporary) after being asked by NKP Gopal i/c QM section, how you have got one blanket repaired ? He replied rudely that 'Mujhe Jo Kaha Gaya Ohi Karke Laya Hun.' Article III On being inquired by the Officer Commanding how you have got only one blanket repaired instead of two blankets ? He replied rudely that Mujhe Jo Kaha Gaya Ohi Karke Laya Hun Aur Ye Naik Jhut Bolta Hai. The departmental inquiry was not continued and the service of the respondent were terminated as above. 5. Article 311(2) of the Constitution of which protection was claimed by the respondent reads as follows, No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. 6. In the case of Samshersingh v. State of Punjab ( AIR 1974 SC 2192 ), decided by a Constitution Bench Comprising of seven Judges of the Supreme Court, it was observed- 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. 6. In the case of Samshersingh v. State of Punjab ( AIR 1974 SC 2192 ), decided by a Constitution Bench Comprising of seven Judges of the Supreme Court, it was observed- 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 unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. The following observations made by their Lordships of the Supreme Court in the case of Parshotamlal Dhingra v. Union of India ( AIR 1958 SC 36 ) are also note worthy. If the Government has, by contract, express or implied, or under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules, is prima facie and per se, not a punishment and does, not attract the provisions of Article 311. The above mentioned and other decisions were reviewed by their Lordships of the Supreme Court in the case of State of U P. v. Ramchandra Trivedi, AIR 1976 SC 2547 , wherein their Lordships observed as follows. Keeping in view the principles extracted above, the respondent's suit could not be decreed in hit favour. He was a temporary hand and had no right to the post. It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month's notice. The order to which exception is "taken is ex facie an order of termination of service simpliciter. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor it is founded on miscondent. In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor it is founded on miscondent. In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution. We, therefore, agree with submission made on behalf of the appellant that the High Court was in error in arriving at the finding that the impugned order was passed by way of punishment by probing into the departmental correspondence that passed between the superiors of the respondent overlooking the observations made by this Court in I.N. Saksena v. State of M.P., ( 1967 2 SCR 496 ) : ( AIR 1967 SC 1264 ) that when there are no express words in the impugned order itself which throw a stigma on the Govt. servant, the Court would not delver into Secretariat files to discover whether some kind of stigma could be inferred on such research. All the above mentioned decisions were referred to by their Lordships of the Supreme Court in the case of Oil and Natural Gas Commission and others v. Dr. Md. S. Iskander Ali (AIR 1980 SC 1242). In that case, the Government servant, whose services were terminated, had been appointed on probation. A departmental inquiry was held against him but it was not proceeded with nor was any punishment imposed on him as a result thereof. The order terminating his services were as follows: Under para 2 (iii) of offer of appointment No. 52/35/65/ENT dated October 16, 1965, the service of Dr. Md. Iskander Ali., Medical Officer still on probation, is hereby terminated with effect from the date of the service of this order on him. Feeling aggrieved thereby, the employee filed a writ petition in High Court on the ground that the order was mala fide and was in fact passed by way of penalty entailing evil consequences. The plea taken by him found favour with the High Court which allowed the petition and quashed the termination order. The opposite party took the matter to the Supreme Court by special leave. The plea taken by him found favour with the High Court which allowed the petition and quashed the termination order. The opposite party took the matter to the Supreme Court by special leave. Their Lordships observed- In these circumstances, therefore, it is obvious that as the respondent was merely a probationer, the appointing authority did not consider it necessary to continue the enquiry but decided to terminate the services of the respondent as he was not found suitable for the job. It is well settled by a long course of decisions of this Court that in the case of a probationer or a temporary employee, who has no right to the post, such a termination of his services is valid and does not attract the provisions of Article 311 of the Constitution. Relying upon the above quoted observations made in the case of State of U P. v. Ram Chandra Trivedi (supra), their Lordships observed- The facts of the present case appear to be on all fours with those of the aforesaid decision. From the undisputed facts detailed by us in an earlder part of the judgment, it is manifest that even it misconduct, regligance, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such a power flowed from the contract of service it could not be termed as penalty or punishment. The following observations made by their Lordships in the case of State of Maharashtra v. Veerappa R. Saboji ( AIR 1980 SC 42 ) were also quoted by their Lordships with approval. Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such on order. In the case of Nepal Singh v. State of U. P. and others ( AIR 1980 SC 1459 ). In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such on order. In the case of Nepal Singh v. State of U. P. and others ( AIR 1980 SC 1459 ). Their Lordships observed - It is now settled law that an order-terminating the services of a temporary Government servant and ex facie innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its terms the order was passed in fact with a view to punishing the Government servant, it is a punitive order which can be passed only after complying with Article 311(2) of the Constitution. The scope of the enquiry called for in such a case has been out line by one of us in State of Maharashtra v. Vearappa R. Saboji, LIR 1980 SC 42 : (1979 Lab. IC 1389) But the question which calls for determination in all such cases is whether the facts satisfy the criterion repetedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation, for the order. The application of test is not always easy. In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior-authority intended to punish the Government servant or, having regard to this character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services. The function of the Court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order. The function of the Court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order. In the, case of State of Maharashtra v. Veerappa R. Saboji and other (supra), Untwalia, J. observed as follows- Even in the case of a temporary or officiating Government servant his services cannot be terminated by way of punishment casting a stigma on him in violation of the requirement of Art. 311(2). This principle, is beyond any dispute but the difficulty comes in the application of the said principle from case to case. If a Government servant is compulsorily retired or one who is officiating in a higher post is reverted to his parent cadre, or when the service of an officiating or temporary Government servant are dispensed with by an order of termination simpliciter, then problems arise in finding out whether it is by way of punishment. In different kinds of situation different views have been expressed. Yet the underlying principle remains the same. One should not forget a practical and reasonable approach to the problem in such cases Ordinarily and generally, and there may be a few exceptions any of the three course indicated above is taken a recourse to only if there are some valid reasons for taking the action against the Government servant. If a probe in the matter is allowed to be made in all such cases then curious results are likely to follow. In a given case there may be valid reasons, may be of a serious kind, which led the authorities concerned to adopt one course or the other as the facts of a particular case demanded if one were to say in all such cases that the action has been taken by way of punishment then the natural corollary to this would be that such action could be taken if there was no such reason in the background of the action. Then the argument advanced is that the action was wholly arbitrary mala fide and capricious and therefore, it was violative of Art. 16 of the Constitution. Where to draw the line in such cases? Then the argument advanced is that the action was wholly arbitrary mala fide and capricious and therefore, it was violative of Art. 16 of the Constitution. Where to draw the line in such cases? Ordinarilly and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government, servant who challenges such an order. The Government is on the horns of the dilemma in such a situation. If the reasons are disclosed, then it is said that the order of the Government was passed by way of punishment If it does not disclose the reasons then the argument is that it is arbitrary and violative of Art. 16 What the Government is to do in such a situation? In my opinion therefore the correct and normal principle which can be culled out from the earlier decisions of this Count is the one which I have indicated above. In that connection, in the same case, the following observations made by Pathak, J are also note worthy- The law, it seems to me, is that where the service of a temporary Government servant or a probationer Government servant are terminated by an order which does not ex facie desclose any stigma or penal consequences against the Government servant and it merely a termination order simpliciterm there is no case ordinarily for assuming that it is anything but that it purports to be. where, however, the order discloses on the face of it that a stigma is cast on the Government servant or that it visits him with penal consequences, then plainly the case is one of punishment. There may still be another kind of case were although the termination of services is intended by way of punishment the order is framed as termination simpliciter. There may still be another kind of case were although the termination of services is intended by way of punishment the order is framed as termination simpliciter. In such a case, if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by 311(2) of the Constitution have not been satisfied. In the case of Commodore Commanding, Southern Naval Area Cochin v. V.N. Rajan, ( AIR 1981 SC 965 ), it was held that, even a temporary Government servant is entitled to the protection of Art. 311(2) where the termination of involves a stigma or amounts to punishment and that, where the decision to terminate the services had been taken on the ground of unsuitabaility of the servant in relation to the post held by him and it was not by way of any punishment and no stigma was attached to him by reason of the termination of his services, the termination could not be said to be vitiated for non observance of Article 311(2). 7. Thus legal position with regard to a temporary Government servant is as is as follows: (i) He does not have a right to hold the post. (ii) His services can be terminated in accordance with the terms of his employment or the rules applicable to him by a termination-order-simpliciter. (iii) His services cannot be terminated by way of punishment casting a stigma on him in violation of Article 311(2) of the Constitution. (iv) Even when a departmental inquiry is contemplated or held against him. it is open to the appropriate authority to drop, withdraw or discontinue it and terminate his services in accordance with the terms of employment of the rules applicable to him and not by way of punishment. (v) The fact that a departmental inquiry was contemplated or held against him but was dropped, withdrawn or discontinued before terminating his services under the terms of employment or the rules applicable would not be sufficient to hold that the termination was by way of punishment. (v) The fact that a departmental inquiry was contemplated or held against him but was dropped, withdrawn or discontinued before terminating his services under the terms of employment or the rules applicable would not be sufficient to hold that the termination was by way of punishment. (vi) Where his services are terminated by an order which does not exfacie disclose any stigma or punishment and is merely a termination order simplicifer, there is no case ordinarily for assuming that it is anything but that it purports to be, ordinarily and generally, the Court has to look to the order on the face of it and find whether it amounts to punishment. (vii) Where the termination order does not ex-facie disclose stigma or punishment and is framed as a termination simpliciter, it is open to him to show that the order was in fact passed by way of punishment but he has to make out a strong case. (viii) Unless he makes out a strong case that the order was by way of punishment, a termination order simpliciter passed in accordance with the terms of this employment or the rules applicable to him, the termination holds good and the servant cannot seek protection of Article 311(2). (ix) Even if misconduct, negligence, inefficiency or unsuitability may be the motive or the inducing factor which influences the employer to terminate the services of the employee, the termination order simpliciter passed in accordance with the terms of employment or the rules applicable cannot be termed as penalty or punishment. 8. The respondent was holding a temporary post. Therefore, his services could be terminated under rule 5 (1) of the Central Civil Services (Temporally Service) Rules, 1965, That rule reads as follows. 5. (1) (a). 8. The respondent was holding a temporary post. Therefore, his services could be terminated under rule 5 (1) of the Central Civil Services (Temporally Service) Rules, 1965, That rule reads as follows. 5. (1) (a). The services of a temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government Servant; (b) the period of such notice shall be one month; Provided that the service of any such Government servant may be terminated forthwith [and on such termination the Government servant shall be entitled to claim) a sum equivalent to the amount of his Pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before in termination of his services or, as the case may be, for the period by which such notice falls short of one month. In the order terminating his services, there is noting to indicate that it was passed by way of punishment. The order purports to be one of termination simpliciter passed under the said rule without involving any stigma or penalty. 9. It is not disputed that the appellant No. 2 was displeased with the respondents work and conduct. The appellant No. 2, who entered the witness box as D. W. I did not make secret of that fact. Instead, he narrated certain instances of the work, conduct and behaviour of the respondent in paragraph Nos. 13 to 19 of his deposition and finally, at the end of paragraph No. 19, he concluded as follows. On behalf of the respondent, evidence was adduced to show that he also used to make allegations and complaints against the appellant No. 2 and that the appellant No. 2 used to take action against him. Thus, it is clear that, due to his work, conduct and behaviour, the respondent was giving several causes for the annoyance of the appellant No. 2. In the department to which the appellant No. 2 and the respondent were serving, such work, conduct and behoviour of the respondent were certainly reprehensible and intolerable and the respondent was thereby, proving himself to be unsuitable for the post which he hold. In the department to which the appellant No. 2 and the respondent were serving, such work, conduct and behoviour of the respondent were certainly reprehensible and intolerable and the respondent was thereby, proving himself to be unsuitable for the post which he hold. Ultimately, a departmental inquiry, already referred to in paragraph No. 4 above, was contemplated against him but it was not continued and it was considered to be proper to terminate his services under rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965. In the circumstances, the respondent failed to show that the termination order was by way of punishment The lower Court has also not held that the termination order was by way of punishment All that it has held that it was actuated by 'Darbhavna' (sic) which means ill-will. That is not sufficient to convey that his termination was by way of punishment, for even an employer having ill-will against his temporary employee may not choose to terminate the services of the employee by way of punishment and may choose to terminate the-same in exercise of powers under the terms of employment or the relevant rules. 10. It follows that the respondent has not been able to make out any case for attracting the applicability of Article 311(2). The appeal must, therefore, be allowed. 11. In the result, therefore, the appeal is allowed. The decree appealed against is set aside and the suit is dismissed. The respondent shall be his costs and pay the appellants' costs-Counsel's fee, in view of the valuation, shall be up to Rs.30/- only, if pre-certified. Appeal allowed