JUDGMENT A. N. Dikshita. - This Second Appeal under Section 100, C.P.C. has been preferred against the judgment and order dated 4-8-78 passed by I Additional Civil Judge, Agra dismissing the appeal preferred by the appellant against the judgment and order dated 29-11-77 decreeing the suit by the Munsif, Agra, (Court No. 10) in Suit No. 350 of 1975. D/d. 29.11.1977. Genda Lal v. Union of India. 2. Facts in brief are that the appellant filed a suit for declaration that his services have been wrongfully terminated and that he continuous in service as before together with the recovery of arrears of salary and pendency of the salary. The appellant had alleged that he was appointed as a painter in the office of the Commanding Officer No. 31, Wing Air Force Station, Agra on 20-5-71 and was receiving Rs. 342.97 per month as emoluments. He was faithfully and intelligently performing his services but on account of the annoyance of Group Captain Sri K. P. Mishra who then was a Commander, for his (Appellant's) refusal to do his house work. A warning was issued on 20-7-73 to which the appellant protested. Infact the appellant was required to comply with the orders of Section Commander regarding extra work. On his failure to do so he was charge-sheeted by the Senior Administrative Officer Commanding by letter dated 22-2-74 on the charge of corruption, misconduct and negligence of duties. The plaintiff'-appellant alleged that the said charge-sheet was false and a correct reply to the charge-sheet was submitted. The charges as enjoined in the charge-sheet were withdraw n on 11-11-74 by the Group Commanding Officer but his services were terminated on 31-3-75 by one month's notice on the ground that his services were not required. The appellant thus alleged that the impugned order of termination is illegal, ultra vires, mala fide and is not binding. 3. The respondent contested the suit except that it was admitted that the appellant was appointed w.e.f. 15-4-71. Other allegations of the plaint were denied. It was contended by the respondent that the termination order has been rightly passed and is legal and valid. 4. On the pleading of the parties following issue were framed : 1. Whether the court fee paid is not sufficient ? 2. Whether the suit is barred by Section 80, C. P. C. for want of legal notice ? 3. It was contended by the respondent that the termination order has been rightly passed and is legal and valid. 4. On the pleading of the parties following issue were framed : 1. Whether the court fee paid is not sufficient ? 2. Whether the suit is barred by Section 80, C. P. C. for want of legal notice ? 3. Whether the suit is not legally maintainable ? 4. Whether the work conduct and behaviour of the plaintiff was satisfactory during the period of service ? 5. Whether the services of plaintiff were terminated because of personal bias and by way of punishment ? 6. Whether the termination of plaintiff from services is legal and valid ? 7. To what relief, if any, is the plaintiff entitled ? 5. While recording a finding on issue No. 2 as regards that the suit is barred by Section 80, C.P.C. for having not sent the notice the trial court came to the conclusion that the notice was sent to the respondents and the suit is not barred. Similar was the finding of the trial court on issue No. 3 that the suit is maintainable. As regards issue No. 4 regarding the work, conduct and behaviour of the plaintiff, the trial court found that the appellant had been decorated with a star and ribbon and medal and as such held that the conduct and behaviour of the appellant was satisfactory. While recording a finding on issue No. 5, it was held that the services of the plaintiff were terminated because of personal bias and by way of punishment. As regards issue No. o whether the termination of the plaintiff' from the service is legal and valid it was found by the trial court that the termination of the services of the appellant vide order dated 31-3-75 is illegal. The suit was thus decreed and it was declared that the appellant's services have not been lawfully terminated nor are they capable of being terminated and the appellant continuous and shall be deemed to continue in the Government service. The suit was decreed for Rs. 685.95 besides pendinte lite and future emoluments at the rate of Rs 342,97 per month and as may be enhanced from time to time and grade. 6. The suit was decreed for Rs. 685.95 besides pendinte lite and future emoluments at the rate of Rs 342,97 per month and as may be enhanced from time to time and grade. 6. Feeling aggrieved against the judgment and order decreeing the suit the respondent preferred appeal (Civil Appeal No. 17 of 1978 - Union of India v. Genda Lal). The first appellate court framed the following points for determination of the controversy : "If the termination of the plaintiff's services was only under the provisions of sub-rule (1) of Rule 5 of Central Civil Service (Temporary Service) Rules, 1965 or it amounted to punishment and stigma against the plaintiff and has some nexus with charge-sheet dated 22-2-1974." 7. After considering the various facets of the controversy the court came to the conclusion that the appellant's services is simpliciter under Rule 5 of the Central Civil Service Temporary Services Rules and it did not amount to be a punishment nor does it cast any stigma upon his career. The appeal so preferred by the respondent was thus allowed and the judgment and order dated 29-11-77 passed by the trial court decreeing the suit was set aside. Hence, this appeal. 8. Heard counsel for parties. Learned counsel for the appellant Sri G N. Verma has submitted that recourse to Rule 5, which is reproduced below in order to terminate the services of the appellant, was in fact a device to dispense with his services. It has been submitted that earlier on account of annoyance of one Group Captain Sri K. P. Mishra, steps were taken for the initiation of departmental proceedings for misconduct against him and pursuant thereto a charge-sheet was issued. The termination is only punitive in character and it would be wholly competent for the court to find out the circumstances to ascertain the real motive behind such termination. I find merit in this submission. 9. Admittedly, the appellant was appointed as a painter in the office of the Commanding Officer No. 31, Wing Air Force, Agra on 20-5-71 (respondents have alleged that the appellant was appointed from 15-4-71). I find merit in this submission. 9. Admittedly, the appellant was appointed as a painter in the office of the Commanding Officer No. 31, Wing Air Force, Agra on 20-5-71 (respondents have alleged that the appellant was appointed from 15-4-71). However, on account of having earned annoyance and displeasure of one Group Captain Sri K. P. Mishra, then Commanding Officer of the said station, for the appellant's refusal to do additional house work at his residence, a warning was issued on 20-7-73 with a direction that the appellant shall do the work at the house of the Commanding Officer as per direction. Such a direction was stubbornly protested which resulted in issuance of charge-sheet dated 22-2-74 inter alia on the ground of corruption, misconduct and negligence of duty. 10. It may be significant to mention that before the departmental proceedings could culminate, the charge-sheet was withdrawn on 11-11-74 by the Group Commanding Officer. 11. It is to be salutary found that though charge-sheet was withdrawn which would show that f the charges perhaps could not have been proved, the respondents terminated the services of the appellant vide order dated 31-3-75 after the expiry of one month of service of the notice on the ground that his services were no more required by the department. It was an action which could not be deemed to be bona fide and in fact smacks of mala fide. 12. It may again be noteworthy that at the time when the appellant's services have been terminated the appellant had already put in about 4 years of service. It was an action which could not be deemed to be bona fide and in fact smacks of mala fide. 12. It may again be noteworthy that at the time when the appellant's services have been terminated the appellant had already put in about 4 years of service. Rule 5 (1) (a) of the Central Civil Services (Temporary Service) Rules, 1965 provides as under : "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 sura equivalent to the amount of his pay plus allowances for the period of the notice as 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." 13. In this context, it is necessary to advert to Rule 3 of the said rules which provide as under : "(3) A Government servant shall be deemed to be in quasi-permanent service : (i) if he has been in continuous temporary service for more than three years ; and (ii) if the appointing authority, being satisfied having regard to the quality of his work, conduct and character as is his suitability for employment in a quasi-permanent capacity under the Government of India, has made a declaration to that effect." 14. A bare reading of Rule 3 would clearly show that a Government servant shall be deemed to be a quasi-permanent if he has worked for more than three years. 15. There is no dispute that the appellant had been in service for more than three years. 16. Rule 5 of the said rules enjoins termination by notice in writing but it is clearly postulated that only such temporary Government servants shall be liable to be terminated at any time who are not in quasi-permanent service. 15. There is no dispute that the appellant had been in service for more than three years. 16. Rule 5 of the said rules enjoins termination by notice in writing but it is clearly postulated that only such temporary Government servants shall be liable to be terminated at any time who are not in quasi-permanent service. In view of Rule 3 the appellant would be deemed to be in quasi-permanent service and as such Rule 5 of the rules cannot be invoked so as to terminate the services of the appellant. The recourse to rule 5 is thus wholly unwarranted and absolutely illegal. Another aspect of this case is though does not require a consideration, but in view of the submissions on behalf of the counsel for the respondents that the respondents had rightly invoked the provisions of Rule 5 and in any case have ample power to dispense with the services of a temporary employee. The submission is wholly ill-merited and is in the teeth of the law laid down by Supreme Court. 17. It has been shown above that upon the displeasure or annoyance of Group Captain Sri K. P. Mishra, Air Officer Commanding, a charge-sheet was issued which subsequently withdrawn and where after the termination order was passed. Learned counsel for the respondents had submitted that the order of termination is simpliciter. There is no merit in this submission. Some animus was indeed lurking in the mind of Group Captain Shri K. P. Mishra. The contention of learned counsel for the respondents was that the termination is not stigmatic but is a term non simpliciter. The submission being bereft of common sense and prudence does not permit to subscribe to such a view. Time and again courts have held that it has power to go behind the notice for passing the termination order which may appear to be simpliciter but was otherwise punitive. The circumstances surrounding facts of the case dazzling by revealed mala fides on the part of Group Captain Sri K. P. Mishra and the termination order is resultant of such annoyance. It was the revengeful attitude by the officers who did not see the light of the law. 18. The circumstances surrounding facts of the case dazzling by revealed mala fides on the part of Group Captain Sri K. P. Mishra and the termination order is resultant of such annoyance. It was the revengeful attitude by the officers who did not see the light of the law. 18. In the case of Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 , it was held that the form of 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 inquiry into allegation * of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2). In such a case the simpliciter in the form of order will not give any sanctity. The order was thus found to be illegal and was set aside. It is, thus, well settled that 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. 19. The learned counsel for the appellant has further placed reliance in the case of Anoop Jaiswal v. Government of India & Another, AIR 1984 SC 636 , in which it was held : "In short, if the termination of service is found on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequence as 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 disqualification, then it is a punishment and the requirements of Article 311 must be complied with." 20. In the case of Jarnail Singh v. State of Punjab, MR 1986 SC 1626, it was held that the ad hoc services of the petitioners have been arbitrarily terminated as no longer required while the authorities have retained other surveyors who are juniors to the petitioners The court held that the termination of the services of the petitioners are illegal and bad being in contravention of the Fundamental rights guaranteed under Articles 14 and 15 of the Constitution. 21. The learned counsel for the appellant has further submitted to fortify to his submission that the termination of the appellant is punitive in character and intent. Reliance has been placed in the case of Nepal Singh v. State of U. P. & Others, AIR 1985 SC 84 and K C. Joshi v. Union of India, AIR 1985 SC 1046 . 22. Supreme Court has time and again glorified the golden principles of andi alteram partem. Such celebrated views of Supreme Court in various cases Nepal Singh v. State of U. P. (supra) ; Jarnail Singh v. State of Punjab ; K. C. Joshi v. Union of India, AIR 1985 SC 1046 ; O. P. Bhandari v. I. T. D. C., AIR 1987 SC 111 clearly reveal and magnify the golden rule of reasonable opportunity being given and failure to do so would tantamount to violation of principles of natural justice. In the case of Ramendra Nath v. Mandi Samiti, A full bench of this Court (Lucknow Bench) 191 A. W. C. p. 540 : (1989) 1 UPLBEC 371 (FB) (LB) that the employee of statutory corporation in the absence of any service rules are also entitled to the benefit of principles of natural justice in the matter of termination of service in case there services are terminated by innocuous order by way of termination without giving them an opportunity of hearing. 23. In the case of State of Bihar v. Shiv Bhikshuk Mishra (supra it was held that the entirety of circumstances preceding or attendant on the impugned order must be examined and the over-riding test will always be whether the misconduct is a mere motive or is the very foundation of the order. 24. Learned counsel for the respondents has submitted that the termination order was a discharge simpliciter. 24. Learned counsel for the respondents has submitted that the termination order was a discharge simpliciter. Instantly it is clearly reflective of a vicious exercise and an abuse of power by the respondents while arbitrarily dispensing with the service of appellant on the plain edifice that it is discharge simpliciter. The order dispensing with the service of appellant is unconscionable and deserves to be rightly declared illegal. 25. Learned counsel for the appellant has laid stress to the view taken by the Supreme Court in Central Inland Water Transport Corporation Ltd. & another v. Brojo Nath Ganguly and another, (1986) 3 SCC 156 . It was held in this case that the actions of an instrumentality or agency of the State must, therefore, be in conformity with Article 14 of the Constitution. It was further held in this case as under : "The progression of the judicial 'concept of Article 14 from a prohibition against discriminatory class legislation to an invalidating factor for any discriminatory or arbitrary State action has been traced in Tulsiram Patel case (at pages 473-476). The principles of Datural justice have now come to be recognised as being a part of the constitutional guarantee contained in Article 14." Action of the respondents is both arbitrary and unreasonable and it also wholly ignores and sets aside the andi alteram partem rule and is thus violative of Article 14 of the Constitution. New and dynamic interpretations have been given by the Courts to the concept of equality which is the subject-matter of that Article. The violation of a rule of natural justice would result in arbitrariness which is the same as discrimination. Article 14 however, is not the sole repository of the principles of natural justice. It only guarantees that an action of the State which violates them would be struck down. This view was taken in the case of Union of India v. Tulsiram Patel, (1985) 3 SCC 398 . Article 14 however, is not the sole repository of the principles of natural justice. It only guarantees that an action of the State which violates them would be struck down. This view was taken in the case of Union of India v. Tulsiram Patel, (1985) 3 SCC 398 . The Rules or Regulations which provide for termination of services of the employees by merely giving simple notice of termination cannot co-exist with Articles 14 and 16 (1) of the Constitution while examining a similar eventuality in regard to the termination of service of an employee, a confirmed employee, by giving him 90 days notice or pay in lieu thereof the Supreme Court held in O. P. Bhandri v. Indian Tourism Development Corporation Ltd. and others, (1984) 4 SCC 377) that such rule or regulation must die so that the fundamental rights guaranteed by the constitutional provisions as enshrined in Articles 14 and 16 remain alive. 26. Arbitrariness and abuse of power in terminating the services of the appellant has been viciously exercised and much against the established principles of natural justice. This Court and the Supreme Court have time and again laid emphasis on the observance of principle of natural justice, in various decisions but still the functioning of State or the public undertakings is ignorant about it, thus depriving a person to seek protection of such sacrosanct principle. The rule or regulation which banishes employer-employee relationship has to be held of no avail to the respondents. The Supreme Court on more than one occasion has frowned upon such regulations and has struck them down. In the case of West Bengal State Electricity Board v. Desh Bandhu Ghosh, AIR 1985 SC 722 , the Supreme Court has held that such regulations suffer from the vice of enabling discrimination and being arbitrary in nature deserves to be struck down. In this case Desh Bandhu Ghosh who was appointed as permanent employee was terminated with immediate effect in view of Regulation 34 of the West Bengal State Electricity Board Regulation. 27. In Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another (supra) the Supreme Court observed that the principles of natural justice were well recognised as being part of the constitutional guarantee contained in Article 14 of the Constitution. Any violation of the principles of natural justice would result in arbitrariness. 27. In Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another (supra) the Supreme Court observed that the principles of natural justice were well recognised as being part of the constitutional guarantee contained in Article 14 of the Constitution. Any violation of the principles of natural justice would result in arbitrariness. Judged from this angle the action of the respondents in terminating the services of the appellant without any opportunity, it has to be held that it is arbitrary and most unreasonable and thus liable to be struck down being violative of the constitutional guarantee conferred under Articles 14 and 16 of the Constitution of India. 28. It would thus necessarily support the contention of the appellant that the termination order was the outcome of the bad faith and smacks of mala fides of respondent No. 3. This view finds support in the case of Harmandil Pathak and others v. Sankatha Singh and another, 1966 ALJ 994. 29. In the case of S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 , it was held that where allegations of mala fide have been attributed and the person against whom such allegations have been made has not come forward to deny them, it would be clear that mala fide stand proved. No doubt no reasons have been assigned while terminating the services of the respondent. It has thus been contended that the order of termination is discharge simpliciter without attaching any stigma attributable to the conduct of the respondent. But the surrounding circumstances attending on the impugned order clearly reveal that the order of termination is not a discharge simoliciter but is the outcome of malefic design resulting in the passing of the termination order. The form of order is not conclusive of its true nature. It may be a cloak or camouflage while passing the impugned order. However, innocuous the order may appear at its face and may not contain any stigma still the entirety of circumstances preceding or attendant on the impugned order has to be examined. In the absence of a denial the impugned order had been manifestly passed with malafide intentions and it has to be adjudged the order was punitive having been passed with mala fide intention. 30. In the absence of a denial the impugned order had been manifestly passed with malafide intentions and it has to be adjudged the order was punitive having been passed with mala fide intention. 30. It has been submitted that even removal from service overstaying leave as provided in the service regulations there is automatic termination of service on overstay still removal from service without giving an opportunity to show-cause is illegal within the postulates of Article 311 of the Constitution of India while making the submission the learned counsel of the appellant has rightly placed reliance on the case of G. Shanker v. State of Rajasthan, AIR 1966 SC 492 . 31. The order of termination passed in the instant case therefore, cannot be sustained and is, as mentioned above negative of Article 14, 16 and 311 of the Constitution of India. 32. Significantly though the appellant has earned annoyance of Group Captain Sri K. P. Mishra and a charge-sheet for misconduct attributing the corruption, misconduct and negligence of was issued but it is to be recognised that the appellant awarded President Award in recognition of his good services. He decorated with Pachisi Star and ribbon and also Sangram Medal. Such a glorious career was abruptly ended. 33. It is thus clear that the termination of the appellant was wholly illegal, arbitrary and constitutional. 34. Another aspect of the case also deserves consideration. Right of livelihood had been recognised as enshrined in Article 21 of the Constitution of India. Such a right has been recognised as a fundamental right protected by Article 21 of the Constitution of India. In the case of Olga Talus Bombay Municipal Board, (1985) 3 SCC 545 it has been held that the right of employment would be protected under Article 21 as such livelihood depends on his continued employment. In the case of Dr. Surendra Kumar Shukla v. Union of India, 1985 U. P Local Bodies and Educational Cases, p. 789 a division bench of this Court (of which I was member) had taken a similar view. 35. In view of the above, the appeal deserves to be allowed and is allowed with costs. The judgment and decree dated 4-8-79 passed by 1st Additional Civil Judge, Agra is hereby set aside and the judgment and decree of the learned Munsif, Agra (Court No. 10) dated 28-11-1977 decreeing the suit is hereby affirmed. 36. 35. In view of the above, the appeal deserves to be allowed and is allowed with costs. The judgment and decree dated 4-8-79 passed by 1st Additional Civil Judge, Agra is hereby set aside and the judgment and decree of the learned Munsif, Agra (Court No. 10) dated 28-11-1977 decreeing the suit is hereby affirmed. 36. The respondents are further directed to treat the petitioner in service with full benefit till date deeming that the appellant was in continuous service. The respondents are further directed to pay the entire amount which has become due to the petitioner within two months from today and shall also accord all the benefits that have accrued to him.