JUDGMENT A.N. Varma, J. - The petition is directed against the order dated 30-3-1979 passed by the U.P. Public Service Tribunal dismissing the claim petition filed by the petitioner against the order dated 13-12-1973 passed by the Additional Director of Industries, U.P. terminating his services. 2. These are the essential facts. The petitioner was at the relevant time temporary Asstt. Manager, Industrial Estate. By the impugned notice dated 13-12-1973, the Additional Director Industries, U.P. terminated the services of the petitioner stating that the services of the petitioner were no longer required and that he was being given one month's pay in lieu of the notice. Aggrieved by this notice, the petitioner filed a writ petition in this Court which was dismissed on 8-8-1975. Thereafter, he unsuccessfully challenged that order by way of a special appeal which stood abated as a result of the 42nd amendment of the Constitution. After the abatement of the appeal, the petitioner filed a claim petition before the aforesaid Tribunal. In the claim petition the impugned notice was challenged on two grounds First, that the order purporting to terminate the petitioners service though innocuous on its fact was in truth and substance punitive in character attracting the application of Article 311 of the Constitution and as no notice was admittedly given under that provision, the order of termination must be held to be void ; Secondly, he was discriminated against inasmuch as there were two Assistant Managers junior to him who have been retained in service. 3. Both these pleas have been rejected by the Tribunal. It has held that the impugned order was one of termination simpliciter and not one passed by way of punishment. It negatived the second ground mentioned above stating that the petitioner has failed to establish that Assistant Manager junior to him whose record of service was the same or worse than that of the petitioners have been retained in service. 4. It negatived the second ground mentioned above stating that the petitioner has failed to establish that Assistant Manager junior to him whose record of service was the same or worse than that of the petitioners have been retained in service. 4. Sri Ashok Khare, the learned counsel for the petitioner concentrated mainly on the first point and in support relied heavily on Annexure VII to the petition which purports to be an extract of the notings appearing on pages 27 to 34 of the official file, which according to the learned counsel demonstrated conclusively that the impugned order was founded entirely on allegations of misconduct and immoral activities imputed to the petitioner and consequently the impugned order was liable to be struck down as breaching the constitutional guarantee embodied under Article 311 of the Constitution. 5. The submission necessitates a look at the nothings extracted in Annexure VII to the petition. Annexure VII begins with a note dated 13-6-1973 addressed to the Joint Director of the Industries. It refers to a letter of the Government dated 1-5-1973 with copies of the report submitted by the Superintedent of Police CID (Cr.) U. P., Lucknow in connection with a complaint lodged against one Sri A.A. Khan Additional Development Officer, Roorkee. The note further states that according to the CID report, S.N. Asthana was responsible for engaging in immoral activities and that he should be properly punished for that. The note then goes on to say that Sri Asthana being a temporary Government servant, his service should be terminated and that the direction of the Commissioner/Director of Industries who was Sri Asthanas appointing authority might be obtained. 6. Upon this note, the Joint Director called for a detailed comments which are mentioned in the note dated 18-6-1973. According to this note, it appears that CID held responsible Sri Asthana for : (i) making a forged signature in the Hotel Register in the name of some fictitious person against the room which was allotted to Sri A.A. Khan, (ii) bringing a girl for the enjoyment of Sri Khan. 7. The Government took a serious view of the matter and recommended to the Director of Industries to take suitable punitive action against Sri Asthana, the services of Sri Khan having already been terminated. The Joint Director also appears to have asked for the C.R. of Sri Asthana. 7. The Government took a serious view of the matter and recommended to the Director of Industries to take suitable punitive action against Sri Asthana, the services of Sri Khan having already been terminated. The Joint Director also appears to have asked for the C.R. of Sri Asthana. After examining the entire matter the Joint Director addressed a note to the Commissioner/Director of Industries stating that the findings of the Vigilence Department against Sri Asthana were highly damaging. However, since Sri Asthana was a temporary servant, it was proposed that his services be terminated forthwith and he be given a months pay in lieu of one months notice. The Director of Industries called for a more detailed analysis of Sri Asthana s case and also desired to have a look at the C.R. of Sri Asthana. The Joint Director then submitted a detailed note according to which one Sri Sharma had applied for a loan of Rs. one lakh to the Directorate, Sri A.A. Khan was deputed to make an enquiry on the spot and send his recommendation. Sri Khan accordingly reached Bareilly in the night of 30th July, 19/0 and stayed in a Hotel which was booked by Sri Asthana under some fictitious name either at his own instance or in collusion with Sri S.D. Sharma. With a view to influencing Sri Khan, Sri Asthana brought a girl in his jeep which met with an accident within the Hotel premises causing a furore. The police and the City Magistrate reached the spot and made an enquiry which was subsequently entrusted to the Vigilence Commissioner. The report of the Vigilence Commissioner was then submitted to the effect mentioned above. Finally the Joint Director recommended that Sri Asthana was a temporary hand. The Charges against him were serious. His record of service was also not very impressive. According to the C.R. entires Sri Asthana was an average worker. The entries for the years 1969-70 and 1970 to 72 were positively adverse and damaging. The matter was then examined by the Additional Director of Industries (Establishment) who submitted his comments vide his note addressed to the Director of Industries dated 5-12-1973, the relevant part of that is being extracted below "As far as Sri Asthana is concerned, there is very little to doubt the incident as also his involvement in it. The matter was then examined by the Additional Director of Industries (Establishment) who submitted his comments vide his note addressed to the Director of Industries dated 5-12-1973, the relevant part of that is being extracted below "As far as Sri Asthana is concerned, there is very little to doubt the incident as also his involvement in it. The incident in which he went to the extent of procuring a girl for Sri Khan was difinitely a most reprehensible one which does not at all be fit a Government servant. While there is no intention to punish Sri Asthana by doing, so, I do feel that the retention of a person of such loose morals in definitely not in the public interest. Perhaps disciplinary proceedings, if taken, might lead to the same outcome but at this stage also I am firmly of the opinion that his continuance in Government employment would not be in the public interest. If D.I. approves, Sri S.N. Asthana may be given notice for termination of his service. Sd/-Arvind Varma 5-12-1973 Addl. Director of Industries U.P." Below this note is endorsement of the Director of Industries : " I agree." 8. The Departmental nothings summarised above clearly bring out two facts : first, that the Vigilance Commissioners report pertaining to the episode involving Sri A.A. Khan and the petitioner led to review of the petitioners record of service ; second, that two courses were suggested to the Commissioner-cum-Director of Industries at various stages, namely, (i) That the petitioner be suitably punished for his immoral activities consisting of procuring girl for Sri Khan etc. and, (ii) that he being a temporary Government servant, his services may be terminated by a simple notice giving him a months salary in lieu thereof. The Commissioner-cum-Director of Industries after making an in depth inquiry-including the Character Roll entire of the petitioner-decided upon the latter course and terminated the petitioners services by means of the impugned order. 9. It is in this background that we have to consider for the question raised by the petitioner. Several authorities were cited by the learned counsel for the petitioner touching the question in what circumstances the order of termination innocuous on its fact may be regarded as punitive in character. The decisions cited were 1974 Supreme Court 423, 1986 Supreme Court 1790, 1986 Supreme Court 1626 ; 1984 Supreme Court 636. Several authorities were cited by the learned counsel for the petitioner touching the question in what circumstances the order of termination innocuous on its fact may be regarded as punitive in character. The decisions cited were 1974 Supreme Court 423, 1986 Supreme Court 1790, 1986 Supreme Court 1626 ; 1984 Supreme Court 636. Each case turned on its own facts. None of these can be said to be in pari maria to be of real assistance. In each case, the veil was lifted so to say. Antecedent and surrounding circumstances were examined to find out true and real character of the order. Several tests were attempted to serve as a guideline. But ultimately the preponderating test which seems to have been recommended as presiding a satisfactory solution to his vexed question is whether the delinquency of the officer in temporary service was a mere operating motive or it was the foundation of the order. 10. If the misconduct was mere operating motive and not the foundation, the impugned action cannot be assailed as violating of Article 14 or 311 of the Constitution. If, on the other hand, the delinquency of the foundation of the order then even if the order is expressed in a language or from which is perfectly innocuous it would be liable to be quashed as preaching Article 14 or 311 if the opportunity contemplated thereunder have not afforded to the officer. 11. That, to my mind, seems to be prevailing view as was reiterated in a recent case of Ravindra Kumar Misra v. The U.P. State Handloom Corporation Ltd. and another reported in AIR 1987 Supreme Court page 2408. In this case, the services of a temporary employee of the Corporation, which was a Public Sector Undertaking and an instrumentality of the State within the meaning of the Article 12 of the Constitution had been terminated by means of a simple notice stating that his services were no longer required. Before this notice the petitioner had been placed under suspension as a result of a preliminary enquiry held against him. A little later the order of suspension was revoked and a few days thereafter the services of the employee were terminated by means of the above notice. The notice was challenged on the selfsame ground, namely, that the same was punitive in nature having been passed on charges of misconduct, dereliction of duties, mismanagement etc. A little later the order of suspension was revoked and a few days thereafter the services of the employee were terminated by means of the above notice. The notice was challenged on the selfsame ground, namely, that the same was punitive in nature having been passed on charges of misconduct, dereliction of duties, mismanagement etc. without calling upon the petitioner to answer those charges. The Contention was repelled by the Supreme Court on the ground that the delinquency of the officer may have been an operating motive in terminating his services but it could not be said that the same was the foundation. Their Lordships further ruled that as an employer, the Corporation had a right to assess the service record of the officer, a temporary hand, to determine whether he should be confirmed/retained a service or his services should be terminated. The order assailed in that case was in their Lordshipss opinion being the result of such assessment, no exception could be taken to the exercise of powers by the Corporation giving the employee a simple notice of termination. AH the leading decisions on the subject beginning from Purshotam Lal Dhingara's case reported in AIR 1958 Supreme Court page 36, Shamsher Singh's case AIR 1974 SC 2192 and Champaklal Shah's case AIR 1964 SC 1854 were referred to and relied on. Some of these were decisions rendered by Constitution Benches. The observations in Champak lal case were extracted at page 2411 were referred to with approval: "In such cases two courses are open to Government. It may decide to dispense with the services of the servant or revert him to his substantive post 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 for his bad work or misconduct, in which case even though the servant may be temporary, he will have the protection of Article 311 (2). "(Emphasis added). Finally, at P. 24/3 (para 6) their Lordships summed up law thus: "As we have already observed, though the provisions of Article 311 (2) of the Constitution do not apply, the Service Rules which are almost at par make the decisions of this Court relevant in disposing of the present appeal. "(Emphasis added). Finally, at P. 24/3 (para 6) their Lordships summed up law thus: "As we have already observed, though the provisions of Article 311 (2) of the Constitution do not apply, the Service Rules which are almost at par make the decisions of this Court relevant in disposing of the present appeal. In several authoritative pronouncements of this Court, the concept of motive and foundation has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operating motive in termination the service, the order ; not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis, since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary merely because the appropriate authority proceed to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character. In a large democracy as ours administration is bound to be impersonal and in regard to public officers whether in Government or public Corporations, assessments have got to be in writing for puposes of record. We do not think there is any justification in the contention of the appellant that once such an assessment is recorded, the order of termination made some thereafter must take the punitive character." 12. Again in paragraph 8 of the judgment, their Lordships ruled that so long as the adverse feature of the employee remains the motive and does not become transformed as the foundation of the order it in unexceptionable. 13. These being the settled legal premises, the facts of the present case may be examined. The petitioner was a temporary Government servant as conceded before the Tribunal and not seriously challenged before me. 13. These being the settled legal premises, the facts of the present case may be examined. The petitioner was a temporary Government servant as conceded before the Tribunal and not seriously challenged before me. Under the terms of appointment, his services were liable to be terminated on a months notice or salary in lieu thereof. The impugned order is perfectly innocuous on its face. Far from carrying any stigma it does not even hint at it. It simply states that the services of the petitioner are no longer required' The Vigilence too was primarily directed against A. A. Khan though the report submitted after investigation carried imputation against the petitioner too. The report led to an assessment of the petitioners record of service by the concerned superiors with a view to ascertaining whether the petitioner who was a temporary hand was fit and suitable for the service. On the appraisal of the service record, two proposals were mooted : one, to punish him for his supposed misconduct and the other, to terminate his services by a simple notice. The Director of Industries preferred the latter course of action and terminated his services. 14. From the facts summarised above and the nothings of the official file, it is apparent that the Vigilence report carrying imputations against the petitioner merely provoked a review and appraisal of the petitioners record of service and while the allegations of misconduct appearing in the Vigilence report may have operated as the motive for the impugned action it is impossible to hold that the same provided the foundation of the order of termination. As mentioned above, the episode implicating the petitioner only led to an assessment of the petitioners record of service. If the authorities left a record of their views on the Official File the same could not by itself and without more be utilised for assailing the order of termination innocuous on its face as being punitive in character. Indeed, the competent authority, namely, the Director of Industries had both the proposals before him but he preferred not to take punitive action against the petitioner. Instead he decided in favour of terminating the petitioners services by a simple notice. The impugned action hence cannot be characterised as punitive. 15. Indeed, the competent authority, namely, the Director of Industries had both the proposals before him but he preferred not to take punitive action against the petitioner. Instead he decided in favour of terminating the petitioners services by a simple notice. The impugned action hence cannot be characterised as punitive. 15. There remains one more case cited by the learned counsel reported in J.T. 1987 (4) SC 35 : UPLBEC 1988 (1) 213 Harpal Singh v. State of U.P. & another, Civil Appeal No. 10/8 of 1987. In this case, the Supreme Court held that if the order of termination is grounded upon adverse entries, then even if the impugned order is innocuous on its face, the Court had jurisdiction to per below to find out what exactly is the foundation of the order. This decision, in my opinion, lends no support to the petitioner. In that case the filling was that the adverse entries were the foundation of the order under challenge, in the present case, we have before us the entire background in which the impugned order was passed. The episode showing the involvement of the petitioner in the entire sordid affair led to an assessment of the petitioner's record of service which disclosed that at best the petitioner was an average worker with a few adverse entries also to his credit Thereupon, two courses were suggested to the Competent Authority. The Competent Authority declined to take punitive action against the petitioner. The allegation of misconduct, therefore, never crossed the stage of motive and got transformed into the foundation of the order. The dictum laid down in Ravindra Kumar's case (supra) thus directly applies. 16. The above discussion brings me to the second point that of unfair discrimination between the petitioner and Hiralal Varma and D.N. Sharma. The Tribunal has observed that the allegations of the petitioner that the record of service of these two officers was not better than that of the petitioner remained unsubstantiated In this Court also the allegation made by the petitioner in paragraph 22 of the petition has been denied in paragraph 17 of the counter affidavit in which it is asserted that on an overall assessment of the petitioners work and conduct he was not considered suitable to be retained in service. The allegation that the records of service of Hiralal Varma and D.N. Sharma were inferior to that of the petitioner has also been denied in this paragraph. The second submission too thus fails. 17. In the result, the petition fails and is dismissed. But I make no order as to costs.