JUDGMENT : Rajeshwar Singb, J. 1. The appointing authority terminated the service of a government employee. He filed a claim petition before the u. P. Public services tribunal, the tribunal allowed the petition, quashed the termination order, and directed that the petitioner would continue in service with alt consequential benefits. Against that judgment of the tribunal the state has filed the present writ petition. 2. The facts are that the employee was a warden in jail. He was temporary. During his seveen years of service 16 petty punishments were awarded to him. On 12-11-1976 there was some upheaval in jail and the prisoners went out of control and started pelting brick-bats. In this respect a magistrate also made an enquiry. About 10 days thereafter on 22-11-76, the service of the petitioner was terminated by a simple order. The petition was filed in the year 1986 that is ten years after the' date of termination order. The tribunal held that the order was punitive and passed without giving any opportunity of being heard. The plea of the employer that the claim was time-barred, was rejected. 3. The first point is whether the service of the petitioner was terminated for his work being unsatisfactory as was alleged by the employer, or the order was passed as a measure of punishment as held by the tribunal. The tribunal was impressed by the fact that the order of termination was passed only ten days after the incident that occurred in jail and there was also some enquiry by the magistrate. This was not the solitary incident and as pointed out earlier during seven years of his temporary service the petitioner earned 16 punishments. Then this incident of the jail came as a last straw on the camel's back. Therein, according to the employer, the petitioner had apart to play and so on the whole his services were found unsatisfactory, and being a temporary employee his services were terminated. 4. The mere fact that the magistrate made some sort of enquiry and the order was passed within ten days after the incident does not seem to make any difference. The enquiry made by the magistrate was not departmental enquiry. It was rather a magisterial enquiry. In the case of gujarat steel tubes ltd., v. Gujarat steel tubes mazdoor sabha (1980) 2 SCC 593 koshal, j. In the minority judgment laid down the test very clearly. The enquiry made by the magistrate was not departmental enquiry. It was rather a magisterial enquiry. In the case of gujarat steel tubes ltd., v. Gujarat steel tubes mazdoor sabha (1980) 2 SCC 593 koshal, j. In the minority judgment laid down the test very clearly. He said that the question therefore is whether the misconduct is the "foundation" of the order of discharge of merely the reason which weighed with the employer in effecting the termination. For an order to be founded on misconduct, it must be intended to have been passed by way of punishment, that is, it must be intended to chastise or cause pain in body or mind or harm or loss in reputation or money to the concerned worker. If such an intention cannot be spelled out of the prevailing circumstances, the order of discharge or the reasons for which it was ostensibly passed, it cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge in the interest of the factory or of the general body of workers themselves. So the real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order, that is, the intention with which it was passed. If the intention was to punish, that is, to chastise, the order may be regarded as an order of dismmissal, and for judging the intention, the question of mala fides (which is the same thing as a colourable exercise of power) becomes all important. If no mala fides can be attributed to the management, the order of discharge must be regarded as one having been passed under the relevant rule for discharge even though the reason for its passage is serious misconduct. 5. The majority view was expressed by krishna iyer and desai, jj. It was observed by the their lordships that even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dunious servant. Then it is not dismissal but termination simpliciter. He may not like to investigate nor take the risk of continuing a dunious servant. Then it is not dismissal but termination simpliciter. If no injurious record of reasons of punitive cut-back on his full terminal benefits is found. 6. The case of state of u. P. V. Ram candra trivedi 1976 (2) slr 859 was decided by three judges of the supreme court. It was a unanimous judgment without any dissenting note. There was a temporary clerk whose department examination was held after 7 years. It was detected that another clerk was misrepresenting for him in the examination. Explanation of both the clerks were called. The executive engineer reported the matter to the superintending engineer. The superintending engineer brought the matter to the notice of the chief engineer. The chief engineer wrote back to the superintending engineer to give suitable punishment, and the superintending engineer passed termination order. The supreme court held that the order was valid and it was not founded on misconduct. It may be noted here that it was a single incident of misconduct. The record indicated that the chief engineer directed that punishment be given. As the incident took place in the examination hall the authorities must have been practically convinced that misconduct was there, and it was not a mere case of suspicion. Still, it was not taken to be a case of punishment and the termination order was upheld. This case has continuously been relied upon and referred in several cases. (i) the manager, government branch press v, d. B. Belliappa (1979) 1 SCC 477 , (2) state of uttar pradesh v. Bhoop singh verma (1979) 2 SCC 111 , (3), state of maharashtra v. Veerappa r. Saboji (1978) 4 SCC 466, and (4) oil and natural gas commission v. Dr. Md. S. Iskendar ali (1980) 3 SCC 428. Not only this, this case has recently been relied upon in the case of ravindra kumar misra v. U. P. State handloom corporation ltd., 1987 (supp) SCC 739. In this case an employee had been suspended. On february 1, 1983, the order of suspension was revoked and on february 10, that is just after 9 days, the order of termination services was passed. In this case an employee had been suspended. On february 1, 1983, the order of suspension was revoked and on february 10, that is just after 9 days, the order of termination services was passed. Still the supreme court held that the impugned order is expressly an order of termination in innocuous terms and does not cast any stigma on the appellant nor does it visit him with any evil consequences. It was not founded on misconduct. The employee was a temporary servant and had no right to the post. Under the circumstances, the order is not open to challenge. In the case before us, the employee had a previons bad record. After an incident, magistrial enquiry was made but no suspension was ordered and no departmental enquiry to find out his guilt started. At the most, it was a case of suspicion against the employee. The employer keeping the previous record, of the employee in view did not bother himself to make further enquiry, rather the employer passed an order of simple termination which did not visit the employee with any evil consequences and did not cast any stigma. The employer was thus within his rights. If we hold otherwise and say that in every case, even in respect of a temporary employee, the employer must make a formal enquiry, it will negative the right of the employer to watch the work of the employee during the period of probation and to decide whether to keep him in service or not. Thus the provision of probation will become meaningless. 7. Under the aforesaid circumstances, it appears that the order passed against the employee was not punitive. The employer, who thought the work of the employee to be unsatisfactory, merely got rid of the employee by an order of termination simpliciter. 8. This order was passed in the year 1976. The contention of the state was that there was no right of appeal or revision against the order of termination. The tribunal has not referred to any provision showing that an appeal or revision could be filed against the order of termination. So, the appeal or revision filed by the employee can at best be termed as representation. The first representation which the employee called appeal was dismissed in 19"7. The tribunal has not referred to any provision showing that an appeal or revision could be filed against the order of termination. So, the appeal or revision filed by the employee can at best be termed as representation. The first representation which the employee called appeal was dismissed in 19"7. The second representation made to higher authority which the employee called revision may not have been attended to or the employer did not think it proper to send any reply. If there is no statutory provision of appeal or revision, then by merely making a representation an employee can not extend the period of limitation. So, the claim petition filed ten years after the termination should be barred by limitation. I think it is so barred. The result is that the petition should succeed. It is allowed. The order of the tribunal dated 17-8-1987, setting aside the order of termination, is quashed. 9. However, both the parties shall bear their own costs throughout. Petition allowed.