P. R. GOKULAKRISHNAN,, J. ( 1 ) THESE two Letters Patent Appeals arise out of the oral judgment passed by the learned single Judge of our High Court in Special Civil Applications Nos. 1329 and 1330 of 1984. The short facts of the cases are that these two appellants were appointed as temporary constables in November 1983 and they were on probation. They underwent some departmental training and had to appear at the departmental examinations. They appeared at the two of the examinations and on 20/02/1984 it is alleged that they were found indulging in unfair practice at the examination by copying from a chit which was recovered from them during the examination in the presence of another candidate and the Drill Instructor who was assisting the Supervisors. They were not allowed to further appear in the examinations and their services came to be terminated by the impugned order dated 2-3-1984. The order states that as their services are not required by the Department and that as the appointment is solely on temporary basis the appellants are relieved from the service after office hours on 2-3-1984 by paying one weeks notice pay as per Rule 33 of the B. C. S. R. Parts. These orders are challenged on two grounds: (1) that the termination is arbitrary and violative of Articles 14 and 16 of the Constitution because persons similarly situated and junior to the appellants were continued in service and the appellants were arbitrarily singled out for discriminatory and hostile treatment and (2) that the impugned orders of termination were penal because the foundation for that action was the alleged misconduct of copying and unfair practice at the departmental examination and the appellants had no opportunity to meet with that allegation and therefore the order is violative of the principles of natural justice. ( 2 ) THE learned single Judge of our High Court after considering the facts of the case and observing that the order of termination is not based upon the unfair practice adopted by the appellants herein but termination simpliciter since they were probationers dismissed the Special Civil Applications. According to the learned Judge the unfair practices alleged against the appellants are not the foundation for the termination order but that was the motive behind such an order passed. The learned single Judge in deciding this aspect of the case relied upon the decision in Govt. According to the learned Judge the unfair practices alleged against the appellants are not the foundation for the termination order but that was the motive behind such an order passed. The learned single Judge in deciding this aspect of the case relied upon the decision in Govt. Branch Press v. D. B. Bellappa reported in AIR 1979 SC 419 and the decision in State of U. P. v. Bhoop Singh reported in AIR 1979 SC 684 . In AIR 1979 SC 429 the Supreme Court observed:"if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory or for a like reason which marks him off a class apart from other temporary servants who have been retained in service there is no question of the applicability of Art. 16. Conversely if the services of a temporary Government servant are terminated arbitrarily and not on the ground of his unsuitability unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service a question of unfair discrimination may arise notwithstanding the fact that in terminating his service the appointing authority was purporting to act in accordance with the terms of the employment". The Supreme Court in that decision finally held as follows:"the termination of service was made arbitrarily and not on ground of unsuitability or other reason. It was further observed that it was perhaps open to the Government to say in view of the complaint alluded to in the show-cause notice against the integrity and fidelity of the employee that the former had lost confidence in the latter and considered him unsuitable to be continued in the post which was one of trust and confidence. But when the Government instead of taking any such plea has with obdurate persistency stuck to the position that the employees service has been terminated without any reason it amounted to nearly admitting that the power reserved to the employer under the conditions of the employment has been exercised arbitrarily". But when the Government instead of taking any such plea has with obdurate persistency stuck to the position that the employees service has been terminated without any reason it amounted to nearly admitting that the power reserved to the employer under the conditions of the employment has been exercised arbitrarily". In yet another decision reported in State of U. P. v. Bhoop Singh ( AIR 1979 SC 684 ) which was referred to by the learned single Judge the Supreme Court observed:" It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order". Thus in this decision the Supreme Court differentiated between motive and the foundation for taking action in terminating the service of a probationer. The learned single Judge found that the authorities concerned did not base their conclusion on the unfair practice adopted by the appellants in their examination. With that view he dismissed both the Special Civil Applications filed by the appellants. We have carefully gone through the affidavit in support of the main petition the reply affidavit and the order of termination passed by the authorities concerned and other records. The order of termination of the appellant in L. P. A. No. 233 of 1985 reads as follows:"you Mr. Anopsingh Jatuba as temporary unarmed recruit constable at present at Police Head Quarters Service is not required by the department and as your is solely on temporary basis you are relieved from the service after office hours of today by paying one week notice pay as per Rule-33 of the B. C. S. R. Part-1". The order of termination of the appellant in L. P. A. No. 234 of 1985 reads as follows:"you Mr. Jyamansingh Raiyabji as temporary unarmed recruit constable at present at Police Head Quarters Service is not required by the department and as your appointment is solely on temporary basis you are relieved from the service after office hours of today by paying one week notice pay as per Rule-33 of the B. C. S. R. Part-1". ( 3 ) THERE is nothing in the termination order that such termination was made on the ground of unsuitability unsatisfactory conduct or the like. ( 3 ) THERE is nothing in the termination order that such termination was made on the ground of unsuitability unsatisfactory conduct or the like. If it is the question of misconduct the authorities concerned ought to have followed the procedure set up under Article 311 (2) or otherwise they will be condemning a person without being heard. If it is for the purpose of simply terminating the services of a probationer the order should have stated that he is not suitable to be continued in service. In the absence of any of these adjectives for terminating the services of the appellants herein we have to took into the affidavit-inreply filed by the respondents herein. It is stated by the respondents in the affidavit filed by one Gupta District Superintendent of Police Jamnagar that the termination of services of the appellants has nothing to do with the act of copying at the examination in C Division held at P. T. S. Baroda on 20-2-1984. The affidavit further states that however on going through the papers of enquiry received form the Principal P. T. S. Baroda it is noticed that the appellants were outarred for the examination for the act of copying. It is in the affidavit filed on behalf of the respondents that the conduct of the appellants which is a gross misconduct cannot be tolerated in a disciplined force like Police. It further states that all the candidates were instructed and warned to refrain from malpractices in the examination or else the defaulting one would be sent back to their districts. In spite of that if a candidate indulges in the copying he has to blame himself for the consequences. The affidavit finally states that the services of the appellants were merely terminated so that they may not be debarred from service in any other Government Department. Reading these averments in this affidavit-in-reply it is clear that the authorities concerned had the foundation for the termination only from the malpractice of copying made by the appellants herein. It is just to give them some opportunity to enter alia some other service these allegations were not mentioned in the termination order. This is clear from the last averment made by the respondents in the affidavit filed on their behalf by Mr. Gupta the Deputy Superintendent of Police. It is just to give them some opportunity to enter alia some other service these allegations were not mentioned in the termination order. This is clear from the last averment made by the respondents in the affidavit filed on their behalf by Mr. Gupta the Deputy Superintendent of Police. In the decision in Anoop Jaiswal v. Government of India reported in AIR 1984 SC 636 the Supreme Court has observed as follows:"the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of mis-conduct involving stigma has been made in infraction of the provision of Art. 311 (2 ). Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment the court would not be debarred. merely because of the form of the order in giving effect to the rights conferred by law upon the employee". The Supreme Court has further observed:"if on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for the incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground if the servant has not been afforded a reasonable opportunity to defend himself as provided in Art. 311 (2) of the Constitution". ( 4 ) IN the decision in Nepal Singh v. State of U. P. reported in AIR 1985 SC 84 the Supreme Court had occasion to consider the termination order of the authority concerned in respect of a Sub Inspector who was working in a temporary capacity. This temporary Sub Inspector came in for criticism for contracting a second marriage without following Government Servants Conduct Rules. The Superintendent of Police in this case had described this Sub Inspector as a corrupt Officer who was not straight forward. This temporary Sub Inspector came in for criticism for contracting a second marriage without following Government Servants Conduct Rules. The Superintendent of Police in this case had described this Sub Inspector as a corrupt Officer who was not straight forward. While so the Deputy Inspector General of Police Bareilly Range purporting to act under the Rules passed an innocuous order simply stating that services of this Sub Inspector were not required any more and as such his services were terminated with a months pay in lieu of notice. This was questioned by way of a writ petition by the concerned Sub Inspector before the High Court and a single Judge of the High Court dismissed the writ petition. On appeal the Division Bench concurred with the single Judge and dismissed the appeal. On appeal to the Supreme Court the Supreme Court observed:"it is well settled that in dealing with a Government servant the State must conform to the constitutional requirements of Arts. 14 and 16 of the Constitution. An arbitrary exercise of power by the State violates those constitutional guaran tees for a fundamental implication in the guarantee of equality and of protection against discrimination is that fair and just treatment will be accorded to all whether individually or jointly as a class. When a Government servant satisfies the Court prima facie that an order terminating his services violates Arts. 14 and 16 the competent authority must discharge the burden of showing that the power to terminate the services was exercised honestly and in good faith on valid considerations fairly and without discrimination". ( 5 ) IN that case instead of taking proceedings for the misconduct the Deputy Inspector General of Police by an innocuous order simply terminated the services of the Sub Inspector after dropping the enquiry against him. In that connection the Supreme Court observed:"we may observe that where allegations of misconduct are levelled against a Government servant and it is a case where the provisions of Art. 311 (2) of the Constitution should be applies it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The Court will view with great disfavour any attempt to circumvent the constitutional provision of Art. 311 (2) in a case where that provision comes into play". With the above said observation the Supreme Court set aside the judgment of the High Court and allowed the appeal by quashing the impugned order of termination. Applying the principles laid down in the above said Supreme Court decisions it is clear that the respondents terminated the services of the appellants not because their work is not satisfactory but because of the fact they have indulged in unfair practice of copying. This is very clear from the affidavit-in-reply filed by one Gupta on behalf of the respondents. Further the authority concerned while terminating the services had the report of the Principal P. T. S. Baroda which states that the appellants were not permitted to write the examination for their act of copying. When especially these facts have been taken into consideration and when as a matter of fact the affidavit-in-reply clearly states that the appellants services were merely terminated so that they may not be debarred from service in any other Government Department it amply establishes the foundation for the termination is the malpractice adopted by the appellants herein If that be so the orders of termination without affording any opportunity to the appellants must fail. The simple order of termination as if the petitioners are only probationers is merely a camouflage for an order of dismissal for misconduct and as such the same cannot be upheld in as much as the appellants never had an opportunity to meet such allegations levelled against them. Article 311 (2) has been clearly violated in this case. ( 6 ) THE learned single Judge committed a mistake in observing that the appellants cannot succeed by creating a dilemma i. e. if the respondents allege any charges against the appellants the same will be hit by Article 311 (2) and if no charges are levelled against the appellants the termination will be hit by discrimination offending Article 14 of the Constitution. We are not concerned with regard to the difficult situation the respondents have been put in in terminating the services of the appellants. We are more concerned as to whether the foundation for the termination is the malpractice indulged in by the appellants in copying at the examination hall. We are not concerned with regard to the difficult situation the respondents have been put in in terminating the services of the appellants. We are more concerned as to whether the foundation for the termination is the malpractice indulged in by the appellants in copying at the examination hall. As we have seen from the facts of the case and the allegation in the affidavit-in-reply the respondents terminated the services of the appellants only for the malpractices and they did not mention the same in order to give an opportunity to the appellants to seek some other government employment without any stigma attached-to them. The other point as regards violation of Article 14 will not arise in as much as we have found that the order of termination has to fail since the procedure laid down under Article 311 (2) has not been followed on the facts and circumstances of the present case ( 7 ) FOR all these reasons the Letters Patent Appeals are allowed quashing the orders of terminations passed by the respondents with a direction to reinstate the appellants forthwith with continuity of service. The appeals are allowed. No order as to costs. No orders on C. As. (ATP) .