JUDGMENT : ( 1. ) NO wonder the widening horizon of the emergent Service jurisprudence has not enlightened the vision of the Court below which resulted in a very salutary and wholesome decision being nullified. ( 2. ) RESPONDENTs counsel has laboured hard, but I am not prepared to go with him to put on blinkers and plug my ears and refuse to look at or heed the message written in golden letters in the several monumental decisions rendered by the Apex Court (see -Government Branch Press vs. D. B. Belliappa, AIR 1979 SC 429 ; W. B. S. E Board vs. Desk Bandhu Ghosh, AIR 1985 SC 722 ; C. I. W. T. vs. Brojo Nath AIR 1986 SC 1571 . Indeed, I acknowledge my debt to the supreme light which kindled my vision in rendering decisions in this Court in the case of Smt. Sushila Shirdhonkar (Second appeal No. 213 of 1974 decided on 28-10-1986) and Kumari Raja Bai Gourkar (Second appeal No. 180 of 1986 decided on 5-1-1987 ). ( 3. ) THE facts are few, but bleneding. On 1-6-1953 vide Ex. D/2, the plaintiff first got inducted into the service of the State as a Time Keeper on a petty salary of Rs. 64/-per month in the Public Works Department at Sheopur in District Morena. It is not disputed that he lost his job subsequently when, on 8-8-1958, vide Ex. D/1, he again got into service. This time, care was taken to put a lapel on his torn jacket branding him "work-charged" employee and his salary was fixed at Rs. 69/- per month. What has further to be extracted from the letter of appointment is that his services were "liable to termination without any notice in case of inefficiant work or any misconduct". Even at this stage, I might note that basis for the order was para 107 of P. W. D. Manual, Vol I, and I quote: "107. Appointment orders - Before a person is appointed to the work establishment the amount of his pay should be fixed and communicated to him. He should be told that this reengagement will be terminated summarily, if there is any serious misconduct on his part, or otherwise, at one months notice or on the completion of the work for which he is engaged, whichever is earlier. He should be told that this reengagement will be terminated summarily, if there is any serious misconduct on his part, or otherwise, at one months notice or on the completion of the work for which he is engaged, whichever is earlier. If joining expenses are to be allowed to him under paragraph 111 he should be informed accordingly. " ( 4. ) AFTER eight years; one fine morning, on 8-8-1968, he was served with "notice for termination from service" which is proved as Ex. P/1. It merely states "as your services are no longer required your services shall stand terminated after expiry of a months time from the date of issue of this order". It is the validity of this notice which is challenged and the suit laying the challenge was decreed by the trial Court A very reasonable and reasoned, exhaustively written, judgment was rendered dealing threadbare law and facts with an enlightened vision. With reference to the pleadings as also evidence, the finding rendered by the trial Court, which remained undisturbed at the appellate stage is pressed for my consideration by appellants counsel, Shri Swami sharan, to submit that the impugned judgment of reversal is not tenable in law. At paras 20 and 21 of its judgment, the finding appears on a consideration of the evidence of d. W. 1 who was the Executive Engineer, P. W. D. during whose tenure services of the plaintiff were terminated. In his evidence, he admitted that the plaintiff was engaged in "union activities" and the trial Court held in categorical terms that plaintiff had suffered the penalty for his said activities and indeed also for other acts of "misconduct" to which d. W. 1 deposed in his evidence. He stated that the plaintiff had prepared false muster rolls and had used criminal force against one of his colleagues. Trial Court rightly took the view of the settled law that Article 311 would be attracted when services of any government servant were terminated for any misconduct despite the camouflaged order terminating simpliciter the services. ( 5. ) UNFORTUNATELY, the Court of appeal below attached more importance to the afore-quoted provision of the P. W. D. Manual and held that the impugned order passed in accordance therewith was legal and valid and plaintiff could not be granted relief. ( 5. ) UNFORTUNATELY, the Court of appeal below attached more importance to the afore-quoted provision of the P. W. D. Manual and held that the impugned order passed in accordance therewith was legal and valid and plaintiff could not be granted relief. The Court held mat the question whether the plaintiff was victimised for Union activities or for dereliction of duties was besides the point because a "temporary employee can be chucked off by a months notice". ( 6. ) ON facts, nothing more needs be said, but I propose to proceed now to look at the case-law, courageously and labouriously cited by the Government Advocate. Ram gopal Chaturvedis case ( AIR 1970 SC 158 ) is the main decision on which the learned counsel as also the Court of appeal below has relied. It was held therein that Rule 12 of m. P. Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 was not violative of Articles 14 and 16 of the Constitution and services of a "temporary" government servant may be terminated on one months notice whenever the government thinks it necessary or expedient to do so for administrative reasons. However, it was also held that Article 311 was not attracted to such a case of termination in terms of the Rule aforesaid when no stigma was caused by such an order on the character or integrity of the delinquent and the order was not passed by way of punishment Need I say anything more than that the decision was misread by the Court below and it was misapplied and that counsels reliance on this decision would not avail him even in this Court ? ( 7. ) THE next case is of State of Uttar Pradesh vs. Nandkishore (AIR 1972 SC 1267)wherein it was held that an appointee does not become permanent employee automatically unless he was so declared or appointed by the Government It was merely held in that case that termination of service of such an employee was not illegal and article 311 was not attracted. The decision does not deal with the contingency where an order passed was in the nature of penal action. Shri Sinha also has pressed in service jagdish Mittals case (AIR. 1964 SC 449) but has mis read the true message of the decision. The decision does not deal with the contingency where an order passed was in the nature of penal action. Shri Sinha also has pressed in service jagdish Mittals case (AIR. 1964 SC 449) but has mis read the true message of the decision. Indeed, the ringing declaration we read in the decision is to the effect that when "termination of the public servants services can be shown to have been ordered by way of punishment" it can be characterised either as "dismissal or removal from service". It was further observed that "it is now settled that the protection of Article 311 can be invoked not only by permanent public servants, but also by public servants who are employed as temporary servants or probationer" and that it applies equally to a case where "termination is the result of punishment sought to be imposed on him". A division Bench decision of the Orissa High Court in the case of Christo Seboki Joel vs. District Judge, Koraput (1976 Lab. I. C. 1029) is also pressed in service. A temporary clerk putting in 13 years service was removed from service and his removal was not held "purnitive", but an act of prudent master in normal discharge of his duty. To this decision, I may only say that I must respectfully differ from the view expressed by their lordships because of what I must read in Anoop Jaiswals case ( AIR 1984 SC 636 )holding that even a probationer is entitled to the protection of Article 311 (2 ). I do not see how the decision in the Orissa case rendered on the footing that the clerk did not pass departmental examination or that he was given opportunity therefor, and was found negligent in duties can stand along with the law stated in Anoop Jaiswal (supra ). ( 8. ) IT is my constitutional duty to make it clear and set at rest all doubts that the government may entertain about the validity of aforesaid paragraph 107 in the face of the decisions in Desh Bandhu (supra) and Brojo Nath (supra) that "hire and fire" ethos of even a statutory provision must be consumed by the fire of the Rule of Law which forms the bedrock of the Constitution. There is no place for any Henry VIII clause in any enacted law in our constitutional policy. There is no place for any Henry VIII clause in any enacted law in our constitutional policy. Without giving any reasons in any order terminating services of an employee, by merely serving a prior notice of the proposed action, services of an employee even of a State undertaking cannot be terminated is the holding of Desh Bandhu as also of the later decision in Brojo Nath (supra) which has similarly held that even a contract of employment to the contrary, between a State undertaking and its employee, is unconstitutional because such a contract is not only violative of Section 23 of the Contract Act, but also Articles 14,39 (a), 41 and 226. I have taken the view in Smt. Sushila Shirdhonkar (supra) that it would be a case of "removal" from service attracting Article 311 (2) when services of a Government servant are terminated even under statutory rule enabling his compulsory retirement and that such an order had to be tested with reference to Articles 14, 16, 21 and 311 (2) of the constitution. When the complaint was that the order was a penalty, it was Courts duty to lift the veil and denude the camouflage. In Rajabai Gourkar (supra) I have taken the view that premature termination of service of a Government servant has to be tested with reference to Articles 14, 16, 21, 39 (a), 41, 43 and 311 (2) of the Constitution. Because, the order of compulsory retirement passed in that case did not manifest on its face the reasons that it was passed in "public interest", as was mandated by the statutory requirement. Reliance was placed in that case on D. B. Belliappa (supra) wherein their lordships held that even when services of a temporary Government servant are terminated in accordance with the conditions of his service, the order can be tested with reference to Article 16 and also Article 311 (2) of the Constitution and absence of reasons in the order must kill the order. In the instant case the impugned order, Ex. P-1, mentioning no reasons at all and trial Courts finding that the plaintiff was, in fact, punished for "misconduct" and "union activities", the judgment and decree passed by that Court could not be set aside. In doing so, the lower appellate Court acted illegally. ( 9. In the instant case the impugned order, Ex. P-1, mentioning no reasons at all and trial Courts finding that the plaintiff was, in fact, punished for "misconduct" and "union activities", the judgment and decree passed by that Court could not be set aside. In doing so, the lower appellate Court acted illegally. ( 9. ) AN upshot of the above discussion necessarily leads to a single, solitary and salutary conclusion that the appeal must succeed. It is accordingly allowed and indeed, with costs in this case. The impugned judgment and decree are set aside and those of the trial Court are upheld ( 10. ) SO much for the day but I would consider it advisable to bring it to the notice of the concerned authorities that it is high time that the P. W. D. Manual be revised and provisions like para 107 are deleted to abide by the supreme mandate of Article 141 of the Constitution. Indeed presence of such a provision in the Manual may not only result in untold miseries and harassment to petty employees who are engaged on "work-charged" basis, State is bound to lose revenue by litigating unnecessarily. It has been just now stated at the Bar that new Rules have now been framed but those are not before me. I shall be happy to note if those rules are made conforming to the constitutional requirement In any case, it is a matter to be checked up and I would be happy if concerned authorities find themselves bound to undertake this constitutional task. ( 11. ) A copy of this order be sent each to the authorities concerned : Chief secretary to Government of Madhya Pradesh; Chief Engineer/secretary, Public works Department, Madhya Pradesh, Bhopal. Order accordingly.