Hansaria J. — The petitioner joined the SSB (Special Service Bureau) as a Constable on 26.1.1969. One of the terms of appointment of the petitioner was that the petitioner's service could be terminated for­thwith by payment of an amount equivalent to the petitioner's pay and allowances for one month or on a month's notice by either side. The petitioner's service did come to be terminated forthwith on the strength of the proviso to sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965. This order was passed on 28.4. 1974. The petitioner submitted many representa­tions to take him back in service but to no effect. Ultimately, this petition was filed in 1976 under Article 226 of the Constitution. 2. The contention of the petitioner is that the order of termination though innocuous on the face of it. has to be regarded as one of dismissal and as such violative of Article 311 (2) of the Cons­titution inasmuch as the order was founded on an alleged indisciplined act of the petitioner. As per the petitioner he had to undergo strenuous training from March 26,1974, and though he did his utmost in the training, he was found indisciplined. By Memo of even No. dated 17.4.74, the petitioner was called to submit an explanation which he did in time. Thereafter, the impugned order was passed on 28.4.1974 by the Area Organiser of S.S.B., Tripura. 3. Shri Das appearing for the petitioner has contended that if the veil is lifted it would be seen that the petitioner's service was terminated because of the alleged indisciplined act of the petitioner which would render the order of termination as one of punishment which cannot be maintained for violation of Article 311(2) of the Constitution. 4. The law relating to this branch of service jurisprudence is no longer in dispute. Right from Dhingra’s case, AIR 1958 SC 36 , which is a decision by a Constitution Bench, it has been held that the use of expression "termination" or "discharge" is not conclusive. This is what was stated, in this connection, in that case : “In short, if the termination of service is founded on the right flowing from contract or the service rules, then, prima facie, the termination is not a punishment and carried with it no evil consequences and so Article 311 is not attracted. This is what was stated, in this connection, in that case : “In short, if the termination of service is founded on the right flowing from contract or the service rules, then, prima facie, the termination is not a punishment and carried with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may nevertheless choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualifications then it is a punishment and the requirement of Article 311 must be complied with.” 5. Another Constitution Bench examined this question in Champak Lai vs. Union of India, AIR 1964 SC 1854 . It was stated in this decision that it is well-known that an employer like the Government does not terminate the service of a public servant be he even a tem­porary savant without reason. In a given case, the Government may find it necessary to terminate the service of a temporary servant if it is not satisfied with his conduct or his suitability for the job. The dissatisfaction with the work and/or conduct of a temporary servant may arise on a complaint against him. In such cases, two courses are open to Government. It may decide to dispense with the service of the servant without any action being taken to punish him for his bad work and or conduct, or the Government may decide to punish such a servant. Even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. A formal departmental enquiry may thereafter take place. The Consti­tution Bench emphasise d that the preliminary enquiry must not be confused with the regular departmental enquiry. It was then stated that so far as the preliminary enquiry is concerned, there is no ques­tion of it being governed by Article 311(2) of the Constitution. A formal departmental enquiry may thereafter take place. The Consti­tution Bench emphasise d that the preliminary enquiry must not be confused with the regular departmental enquiry. It was then stated that so far as the preliminary enquiry is concerned, there is no ques­tion of it being governed by Article 311(2) of the Constitution. It was stated that such an enquiry may even be held ex-parte, for it is merely for the satisfaction of the Government, though usually for the sake of fairness explanation is called from the servant concerned even in such an enquiry. 6. This question came to be examined by 7-Judge Bench in Samsher Singh vs. State of Punjab, AIR 1974 SC 2192 and it was observed as below :- “The form of the order is not decisive as to whether the order is by way of punishment. Even innocuously worded order terminating the service made in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provisions of Article 311 in such a case the simplicity of the form of the order will not give any sanctity.” It was also stated : “No abstract proposition can be laid down that where the service of probationer are terminated without saying anything more in the order of termination than that the services are termi­nated it can never amount to punishment in the facts and circums­tances of the case. If probationer is discharged on the ground of misconduct or inefficiency or for similar reason without proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it may in a given case amount to removal from service within the mean­ing of Article 311(2) of the Constitution.” 7. We may now refer to State of U.P. vs. Ram Chander, AIR 1976 SC 2547 , wherein the law on the question was examined in detail and on the facts of the case it was held that the order of ter­mination was not punitive in character. What had happened in that case was that the respondent was appointed as a temporary clerk in 1954. Seven years later he was required to appear in a departmental examination. An optional typewriting test was also held. The Executive Engineer in question allegedly detected some other clerk attempting to impersonate and appear for respondent. What had happened in that case was that the respondent was appointed as a temporary clerk in 1954. Seven years later he was required to appear in a departmental examination. An optional typewriting test was also held. The Executive Engineer in question allegedly detected some other clerk attempting to impersonate and appear for respondent. The Executive Engineer obtained the explanation of both the clerks and reported the matter to the Superintending Engineer. Considering the explanations tendered by the clerks to be unsatisfactory, the Superintending Engineer brought the matter to the notice of the Chief Engineer, who wrote back to the Superintending Engineer to award suitable punishment to the aforesaid two clerks. The Superin­tending Engineer thereafter issued notice terminating the services of both the clerks. It was this order which was challenged and after going through the law, the judgment 6f the High Court which was in favour of Ram Chander was set aside on appeal being preferred by the State. While coming to this decision, the Bench noted with approval the judgment rendered in State of Punjab vs. Sukh Raj, AIR 1968 SC 1089 , wherein the following five propositions had been laid down :- 1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public servant with any evil cons­equences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form pre ceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art. 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article". 8. 5. If there be a full-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article". 8. It is well-known that the service of even a temporary public servant is not terminated without any reason. In trying to fund out whether the simple worded order of termination was termina­tion simpliciter or a punishment what has to be looked into is whether the alleged misconduct or any other cause which lay be­hind the order was the mere motive or foundation of the order. This has been the view of the Apex Court right from Dhingra. AIR 1958 SC 36 . to the case of Ravioder Kumar vs. U.P. State Handloom Corporation, AIR 1987 SC 2408 . The riddle which has to be solved while dealing with a case of the present nature is whether the alleged delinquently was the motive or foundation of the order. In this regard, however, no strait-jacket test has been laid down to distinguish as to whether the motive has become the foundation. It has to be decided by the Court with reference to the facts of the given case. As stated in Ravinder Kumar (supra), the motive and foundation are ''certainly two points of one line ordinarily apart but when they come together 'motive' does get transformed and merges into foundation." In this case what had happened was that after the appellant had been appointed on 30.10.76, he obtained two promotions while still working in the temporary status. In 1932, the appellant was placed under suspension which order had come to be issued as a result of preliminary enquiry in which it was found that the appellant was responsible for misconduct, dereliction of duty, mismanagement and showing fictitious production while the appellant had acted as Deputy Production Manager. On 1.2.83, the suspension order was revoked and on 10.2.83 the order of ter­mination was passed. This order was innocuously worded. After going through the law on the subject, the Apex Court Ultimately held that the order was not open to challenge as the same was innocuous in terms and did not cast any stigma on the appellant, nor did it visit him with any evil consequences. It was also held that the order was not founded on misconduct. After going through the law on the subject, the Apex Court Ultimately held that the order was not open to challenge as the same was innocuous in terms and did not cast any stigma on the appellant, nor did it visit him with any evil consequences. It was also held that the order was not founded on misconduct. The order was, therefore, not held as violative of Article 311 (2) of the Constitution. 9. Shri Das has urged that in the present case the order was one of dismissal as it was founded on the alleged act of indiscipline of the petitioner which was noted on 26th March, 1974. In this connection, the learned counsel has placed strong reliance on the case of Anoop Jaisawal vs. Government of India, AIR 1984 SC 636 . There, what has happened was that the appellant after being selected for appointment in the I. P. S. was undergoing training as a probationer. On a particular date all the trainees arrived late at the place where P T/unarmed combat practice was to be conducted, although prior intimation was sent to them in this regard. This delay was considered as an incident which called for an enquiry. The appellant was considered to be one of the ring leaders who was responsible for the delay. Explanation was called for from all the probationers. The appellant in his explanation sincerely regretted the lapse while denying the charges of instigating others in reporting . late. After receiving the explanations of the probationers including the appellant all were interviewed individually. On the basis of the explanation and interview but without holding any further enquiry, the Director recommended to the Government that the appellant should be discharged from the service. The Government accordingly passed the order of discharge on the ground of unsuitability for being a member of the I. P. S. (Indian Police Service). On these facts, the order of termination was held to be in reality an order of punishment. It may be noted that in the termination order itself it was stated that the appellant was unsuitable for being a member of the said service. As such, the order on the face of it cast a stigma on the probationer. On these facts, the order of termination was held to be in reality an order of punishment. It may be noted that in the termination order itself it was stated that the appellant was unsuitable for being a member of the said service. As such, the order on the face of it cast a stigma on the probationer. Of course, this was not the reason for setting aside the order of discharge what had weighed was the facts and circumstances of the case which showed that an explanation has been called for from the appellant regarding the alleged act of indiscipline. Similar explanations were called for from others and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders, were not seriously taken note of. On these facts, it was pointed out that the order of discharge though non-committal would not stand alone. It was held that the recommendation of of the Director which was the basis of foundation of the order had to be read along with the termination order for the purpose of determining its true character. 10. Shri Das then referred us to Jagadish Prasad vs. Sachiv, Zila Ganana Committee, Muzaffarnagar, AIR 1986 SC 1108 , in which the termination order was passed on the ground that the appellant had concealed the facts of his removal from service under the former employer on charge of corruption at the time when he applied for the post without giving any opportunity of hearing at all before making the order of termination of the service. It was therefore held that the termination order was not an innocuous order which on the face of it cast stigma inasmuch as in the order of termination itself it was clearly stated that the appellant was caught for corruption while working in the previous employer which fact was concealed while applying for appointment under the new employer. It was also stated in the order of termination that because of removal of the appellant on the charge of corruption at the hands of the previous employer he is not suitable person for employment. The facts of the present case are entirely different inasmuch as the order on the face of it is quite innocuous. 11. It was also stated in the order of termination that because of removal of the appellant on the charge of corruption at the hands of the previous employer he is not suitable person for employment. The facts of the present case are entirely different inasmuch as the order on the face of it is quite innocuous. 11. We are lastly referred to Jarnail Singh & ore vs. State of Punjab, AIR 1986 SC 1626 , in which the ad-hoc service of the appellant had been arbitrarily terminated as no longer required while the respondents retained other surveyors. The Court after going through the entire materials on record came to the conclusion in para 20 that the termination orders had come to be passed on the ground that there were adverse remarks in the service record of the appellants as well as there were serious allegations of embezzlement of fund against some of the persons. These aspects of the case became known from the affidavit filed in the case. Relying on these facts, the Departmental Selection Committee had not recommended the cases of the concerned persons as fit for regularisation. In this back ground, it was held that orders of termination were really made by way of punishment and they were not orders of termination simpliciter. Another ground given for setting aside the order of termination was that though in the case of the appellants it was stated that their services were no longer required, the respondents had retained other surveyors who were junior to the appellants. This termination was thus held to be in contravention in Articles 14 and 16 of the Constitution. 12. In so far as the case at hand is concerned, the submission of Shri Das is that the facts are similar to those of Anup Jaiswal (supra). As in that case, so also here, an explanation was called for and after receiving the same but without holding any further enquiry, the order of termination was passed. It is, therefore, contended by the learned counsel that we should hold in the present case also that the order of termination is punitive in nature. As in that case, so also here, an explanation was called for and after receiving the same but without holding any further enquiry, the order of termination was passed. It is, therefore, contended by the learned counsel that we should hold in the present case also that the order of termination is punitive in nature. In so far-as the factual part of the case is concerned, there is nothing to doubt the case of the petitioner inasmuch as these averments were clearly made in para 6 of the petition which have not at all been controverted by the respondent, the Union of India. We are, therefore, inclined to think that the alleged act of indiscipline was the foundation of the impugned order. We are conscious of the fact that in Samsher Singh (supra) it w is held that even holding of enquiry is not always conclusive, what is decisive according to this decision is whether the order is really by way of punishment. Now, if the petitioner was taken to have acted in an undisciplined way, and an explanation for the same was called for, we would think that it was the alleged act of indiscipline which led the respondents to terminate the service ,of the petitioner. This would show that the alleged act on indiscipline, was not merely a motive but the foundation of the order. 13. For the reasons aforesaid, the petition is allowed by quashing the impugned order. Before parting, we would,, however, like to state that time has come when some formula which in a work-a-day world would indicate with definiteness as to when a simple order of termination would be regarded as punishment, is evolved. Otherwise, much is left to guess as to when the exercise of contractual or statutory power of termination of a temporary hand would be ulti­mately found as one of punishment rather than of discharge simpliciter. The law on the subject is rather hazy and it would be in the interest of all concerned if a formula is evolved in this regard, otherwise the position would be as was noted by Krishna Iyer, J. in para 159 of Semsher Singh, where it was said : “'Again, could it be that if you summarily pack off a pro­bationer, the order is judicially unscrutable and immune ? If you conscientiously seek to satisfy yourself about allegat­ions by some sort of enquiry you get caught in the coils of law, however, harmlessly the order may be phrased. And, so this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be 'the substance of the matter', and the 'foundation' of the order. When does 'motive' trespass into 'foundation' ? When do we lift t he veil of form to touch the 'substance' ? When the Court says so. These 'Freudian' frontiers obviously fail in the work-a-day world and Dr Tripathi's observations in this context are not without force. He says : 'As already explained, in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of the departmental enquiry a search for the 'substance of the matter' will be indisting- useable from a search for the motive (real, unrevealed object) of the order. Failure to appreciate this relationship between motive (the real, but unrevealed object) and form (the apparent, or officially revealed object) in the present context has led to an unreal interplay of words and phrases whereon symbol* like 'motive', 'substance', 'form' or 'direct' parade in different combinations without communicating precise situations or entities in the world of facts'." Remarks made in para 160 are more pertinent as the Hon'ble Judge said : "The need, in this branch of jurisprudence, is not so much to reach perfect justice but to lay down a plain test which the administrator and civil servant can understand without subtlety and apply without difficulty. After all, between 'unsuitability' and 'misconduct,' 'than partitions do their bounds divide.' And over the years, in the rulings of this Court, the account has shifted, the cannons have varied and predictability has proved difficult because the play of the legal light and shade has been baffling." The delay in delivery of judgment has occurred because by the date (4. 10. 88) this judgment has become ready one of us (Srivastava, J.) was holding Court in Kohima and after he came the Court closed for Long Vacation and re-opened yesterday. J. M. Srivastava J. — I agree.