JUDGMENT : D.P. Mohapatra, J. - The petitioner who was appointed as a temporary Sepoy in the Central Excise Department has filed this writ petition challenging the order dated 30-11-1977 of termination of his service passed by the Assistant Collector (Headquarters), Central Excise, Bhubaneswar (Annexure-4 to the writ petition) in purported exercise of powers under Rule 5 of sub-rule (i) proviso of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter called 'the Rules'). Rule, 5 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 the termination of his services or, as the case may be, for the period by which such notice falls short of one month." 2. The gist of the petitioner's case is that on the complaint made by one Hrudananda Mallik he was asked by the authority to explain certain allegations. Due to some difficulties he was not able to submit his explanation in spite of an extension having been granted for the purpose. Then followed the impugned order terminating his services. A representation submitted by the petitioner against the said order was also rejected. According to the petitioner, the back ground of the case suggests that the order is punitive even though it has been couched in innocuous terms. Hence, the order having been passed in contravention of Article 311 of the Constitution of India it is liable to be quashed. The petitioner placed reliance on the memo dated 23-8-1977 addressed to him by the Assistant Collector, Central Excise. Hence, the order having been passed in contravention of Article 311 of the Constitution of India it is liable to be quashed. The petitioner placed reliance on the memo dated 23-8-1977 addressed to him by the Assistant Collector, Central Excise. Rourkela asking him to submit his explanation and to produce some papers on the points mentioned therein (Annexure-2 to the writ petition) and a reminder issued by the said authority on 31-10-1977 extending the time for submission of explanation and cautioning the petitioner that if he does not submit his explanation within the extended period, it would be taken that he has nothing to submit to the memo dated 23-8-1977. The petitioner wants the Court to infer from these two documents that charges were framed against him and he was asked to explain and since he failed to submit his explanation within the stipulated period the order of termination had been passed without any further enquiry. 3. The contention on behalf of the opposite parties, on the other hand, is that no disciplinary proceeding was initiated against the petitioner. The memorandum and the reminder referred to above relate to a preliminary enquiry to ascertain the truth or otherwise of the allegations contained in the letter of Hrudananda Mallik. On examination of the matter since it was found that the petitioner was a temporary employee whose services could be terminated under rule 5(i) of the Rules and the order terminating his service was passed in exercise of the powers under the said provision. 4. Though fairly lengthy arguments were advanced by the counsel for both the parties and number of decisions were cited on the question whether the misconduct is the foundation of the impugned order or merely the motive, it is unnecessary to refer to them in view of the facts that emerge from the records in the case. In course of hearing the records of the case were produced by the learned counsel appearing for the opposite parties. On a perusal of the same, we find that no disciplinary proceeding was contemplated against the petitioner at any time. All that was intended by the authority was to give him an opportunity to have his say regarding the allegations contained in the letter of Hrudananda Mallik, for further consideration by the authority. On a perusal of the same, we find that no disciplinary proceeding was contemplated against the petitioner at any time. All that was intended by the authority was to give him an opportunity to have his say regarding the allegations contained in the letter of Hrudananda Mallik, for further consideration by the authority. We also find that after making their own enquiry a note was submitted that sufficient materials were available to draw up formal charges and initiate a regular departmental proceeding against the petitioner and an alternative was also available to terminate his services under the provisions of the Rules since he was a temporary employee. The later suggestion was accepted by the competent authority in passing the order terminating the petitioner from service. It is clear from the record that no finding of guilt has been given by the competent authority against the petitioner regarding the misconduct alleged against him and hence it cannot be said that the misconduct was the foundation for the impugned order. The allegations made against the petitioner may at best amount to a motive for the said order. This position is made further clear when the representation of the petitioner against the impugned order was dealt with in the department. It is clearly mentioned that no order of punishment was passed against him and his suitability to continue in the post was considered before passing the order of termination. In view of the factual position indicated above, it is needless to refer to the decisions cited, since there is no controversy regarding the principle enunciated therein that if the misconduct is the foundation of the order, no matter if it is couched in innocuous terms, the order is punitive and the provisions of - Article 311 are attracted. 5. In view of the discussion aforesaid, the writ petition is devoid of merit and it is accordingly dismissed. But in the circumstances of the case, there will be no order for costs. Dr. B.N. Misra, J. - I agree. Final Result : Dismissed