JUDGMENT B.L. Yadav 1. Whether the older of termination of the services of the appellant, a probationer, after successful completion of the term of probation was a camouflage for an order of dismissal for misconduct, or was it a simple order of termination without attaching any stigma, and even if it appears an innocuous order of termination, can the court in the ends of fair play and justice lift the veil and find out the real nature of the order and if the innocuous order of termination was found to be an order of dismissal and penal in nature, can it be sustained without following the procedure under Art 311 (2) of the Constitution of India, are the short but significant questions that fall for determination in this second appeal filed by the plaintiff-appellant under Section 100 of the Code of Civil Procedure, 1908 (for short the Code). 2. The facts lie in a narrow compass and they are almost admitted. Plaintiff-appellant had filed a suit for declaration that the order of his termination from service, dated 26-3-76, was illegal, arbitrary, null and void and he continued in service of G. B. Pant University of Agriculture and Technology, Nainital. (for short the University). It was alleged that the plaintiff was appointed in March 1969 as Agriculture Inspector by the Vice-Chancellor of the University on the pay of Rs. 10/- per day, but on account of his good work he was appointed as Assistant Block Superintendent in December, 1972 in the grade of Rs. 200-15-350-20-450 in a permanent capacity and he was allowed four advance increments. Later on his basic salary was fixed at Rs. 260/- per month with effect from 11-12-1972. The appointment of plaintiff was in substantive capacity and against clear vacancy and after completion of the term as probationer he became permanent. His conduct was satisfactory. As there were some irregularities committed by his immediate superior officers, he has no option to make complaint and this provoked the authorities of the University which made secret enquiries against his conduct consequently his services were terminated arbitrarily by order dated 26-3-1976 by giving one month's salary in lieu of notice, without affording any opportunity of hearing. The order of termination would appear innocuous order of termination, but it was an order of dismissal, rather removal from service and the same could not have been passed without affording opportunity. The order of termination would appear innocuous order of termination, but it was an order of dismissal, rather removal from service and the same could not have been passed without affording opportunity. The order was challenged on the ground of being in violation of principles of natural justice and article 311 (2) of the Constitution. The suit was contested by the defendant, the University, stating that the plaintiff was appointed temporarily as Assistant Block Superintendent on 3-11-72 and he joined his duties the same day in the scale of Rs. 200-450, that he was not appointed in substantive capacity or against a permanent post, rather he continued to be a temporary employee till his services were terminated. It was specifically stated in the written statement that the work and conduct of the plaintiff was not found to be satisfactory. The annual increments were given to him in normal course and not on account of his work. He used to remain absent habitually from his duties without any permission or leave application. Once his absence was condoned by regularising the same after giving him a warning but he did not desist in repeating the same in future. He certainly made complaint against Bharat Singh, Block Supt. and on enquiry the same was found to be incorrect. He remained absent since 27-4-75 to 3-9-75, which period was regularised. Again he was absent without any leave application from 11-3-76. Due to his continued absence from duty his services were terminated by letter dated 26-3-76 and he was given a month's salary in lieu of notice as per rules His termination was not by way of punishment and he was not entitled for any relief sought for. 3. The trial court by its judgment and decree dated 24-4-81, decreed the suit. The defendant's first appeal was allowed by the judgment and order dated 8-7-82. The present second appeal has been filed by the plaintiff against that decree. 4. 3. The trial court by its judgment and decree dated 24-4-81, decreed the suit. The defendant's first appeal was allowed by the judgment and order dated 8-7-82. The present second appeal has been filed by the plaintiff against that decree. 4. Learned counsel for the appellant urged that under rules as a probationer he was confirmed and made permanent after completing two years period of probation and the same period could not been extended, hence his termination as a temporary employee giving one month's salary was illegal, and in the alternative it was urged that the order of termination was not a simple order of termination, but it was an order of dismissal and penal in nature with evil consequences and without affording opportunity of hearing before inflicting punishment and in particular without following the procedure under Article 311 (2) of the Constitution, the Impugned order could not have been passed. Reliance was placed on Ram Kishor v. Union of India 1983 ACJ 63 ; R. S. Sial v.. State of Uttar Pradesh, 1974 (1) SLR 827, at 830 ; Sri Om Prakash Goel v. The Himachal Pradesh Tourist Development Corporation Ltd. (JT, 1991 (3) SC 6). Learned counsel for the respondents, on the other hand, urged that even after completion of period of probation the appellant was not confirmed, nor be was a permanent employee, even after completion of probationary period he cannot be deemed to have been confirmed automatically and he was purely temporary employee, he abstained without application for leave beyond the period permissible under relevant rules and on account of continued absence from duty and negligence he was not entitled to the protection under Article 311 (2) of the Constitution. The impugned order was perfectly correct. There was no substantial question of law involved for interference in Second appeal. Reliance was place on State of U. P. v. Kaushal Kishor Shukla, 1991 (1) SCC 691 ; Om Prakash Goel v. H. P. Tourist Development Corporation Ltd. JIT 1991 (3), page 6". 5. Having heard the learned counsel for the parties there are two questions that fall for determination in the present Second appeal. The first is as to whether after completion of two years' probation period the appellant was confirmed or made permanent ? In other words, has he a right to the post ? 5. Having heard the learned counsel for the parties there are two questions that fall for determination in the present Second appeal. The first is as to whether after completion of two years' probation period the appellant was confirmed or made permanent ? In other words, has he a right to the post ? The next question is whether the order of termination, though innocuous in nature, was a camouflage for an order of dismissal of misconduct, and if so, whether the appellant could be dismissed without following the procedure prescribed under Article 311 (2) of the Constitution and the relevant rules. 6. It appears that the appellant was appointed on 30-11-72 as temporary Assistant Block Incharge and it was Indicated that his service conditions were mentioned in the form of contract executed by the plaintiff (Paper 20-C/1). The appointment letter stated that the appointment was temporary and for a period of two years in the first instance and in case he was confirmed after completion of two years period, he would become permanent, and in case after expiry of two years he was not confirmed, he shall be eligible for re-employment on the same job or to some higher position in the light of his work during that period. There was also a condition in the contract from that his services could be terminated by the University on giving him one month's notice at any time prior to the expiry of the period of two years. This contract from was executed on 29-11-72, where as the appointment (letter was dated 30-11-72. The case of the appellant was that after expiry of two years from the date of appointment till the order of termination in 1976, be continued in service and completed the probationary period and become permanent. But there appears to be no order passed by the authorities confirming the services of the appellant. Consequently as suggested by the learned counsel for the respondent I am of the opinion that under rules there was no automatic confirmation after completion of two years' period of probation, rather the provisions were that in case he was not confirmed within two years, after two years he would be eligible for re-employment on the same post or to some other higher post according to his work. Under Chapter 25 of the relevant Statute of the University under sub-clause (c) (1) it has been provided, that every employee of the University of his first appointment against a permanent post shall be on probation. In sub-clause (c) (iii) it is provided that at the end of probrationary period the employee may be confirmed provided his work and conduct was found to be satisfactory. In sub-clause (e) it was provided that after confirmation, the services of an employee of the University can be terminated inter alia on the ground of misconduct and abolition of post. Under Sub-clause (f) every employee against whom disciplinary action is intended to be taken, shall be given an opportunity of making a representation in writing. But as the appellant was not confirmed after completion of the period of two years, he' would be deemed to be a temporary employ and in my opinion, the Ist Additional District Judge has correctly held the appellant to be a temporary employee The next question is whether the services of a temporary employee could be terminated, obviously on the ground of misconduct, by passing a simple order of termination ? I have perused the order of termination (Pagger 7-Ga). It is innocuous in nature. It is dated 26-3-76 and to the effect that the services of Kesho Ram Assistant Block Superintendent are hear by terminated with effect from 1-3-76. He may be paid one month's salary in lieu of notice. The University contribution to his provident fund may be forfeited. The aforesaid order did not state that the services of the appellant were terminated on account of any misconduct or continued absence. But before entering into a bit detail discussion, there appears to be sufficient material on record including the averments made in the written statement filed by the defendant respondent and also the reply given by Sri Shankar Singh. Addl. Director Farm dated 19-10-78 to the learned Advocate of the appellant in reply to the notice sent stating in para 4 that the services of Kesho Ram were purely on temporary basis and that his work was never found satisfactory and he was often found absconding from his duties. Addl. Director Farm dated 19-10-78 to the learned Advocate of the appellant in reply to the notice sent stating in para 4 that the services of Kesho Ram were purely on temporary basis and that his work was never found satisfactory and he was often found absconding from his duties. Under these circumstances, his services were lawfully terminated after providing him adequate opportunity Similarly in para 8 of the written statement filed on behalf of the defendant respondent it was stated that a thorough enquiry on the complaint made by the plaintiff was ordered by the authorities and it was found that the allegations were false, untrue and baseless and the plaintiff has been habitually absconding from the place of duty and the head-quarter without submitting any leave application. He absented himself during the period 27-4-75 to 3-9-75. The period of absence was however, regularised later on after warning and he was given benefit of leave. He again absented himself from duty without any leave application and information with effect from 11-3-76. Due to Ibis continued absence from duty his services were terminated vide office Order No; Estt/16358/PF dated 26-3-76 from the date he absented himself. As he was a purely temporary employee of the University, the authorities of the University deemed proper to terminate the services of the appellant by order dated 26-3-76 by giving him one month's salary in lieu of notice as per rules. Under these circumstances, is is obvious that the services of the appellant was terminated on account of his misconduct including continued absence from duty. But the order of termination did not disclose that the misconduct or absence from duty was a ground for termination of service. After perusal of the entire evidence on record I am of the view that the services of the appellant were terminated on account of misconduct. 7. But the order of termination did not disclose that the misconduct or absence from duty was a ground for termination of service. After perusal of the entire evidence on record I am of the view that the services of the appellant were terminated on account of misconduct. 7. Ram Kishore v. Union of India (supra), was a case 'decided by learned and Honourable brother A. N. Verma, J. (for whom 1 have profound regards), where the services of a temporary Government servant were terminated, because he had over stayed the leave or absented beyond the period permissible under rules but that would mean that a simple order of termination was passed without affording any opportunity and without following the procedure prescribed- Considering the relevant case law on the subject including the decision of the Supreme Court it was held that in case the services of a temporary employee were terminated as he has overstayed leave or absented beyond the [period permissible under rules, it was an innocuous order of termination. But in substance it was an order of dismissal and the employee was entitled to the benefit of procedure contemplated under Article 311 (2) of the Constitution. This case applies to all fours to the facts of the present case. 8. In R. S. Sail v. State of U.P., 1974 (1) SLR. 827, (supra) was a case which does not directly help the appellant. In that case Constitution Bench case law relied upon by the respondent including Purshottam Lal Dhingra v. Union of India, AIR 1958 SC 36 , was considered with the case of Champak Lal v. Union of India and some other relevant case laws were considered and it was held that even though the temporary Government servants are also entitled to protection of Article 311 (2) of the Constitution, if the Government takes action against them by meeting out one of the punishments, i.e. dismissal, removal, reduction in rank. Appointment to a post on an officiating basis is, from the nature of employment, itself of a transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that it is terminable at any time As the appellant in that case was just holding an officiating post, consequently it was held that the Government servant so appointed did not acquire any right to the post and the impugned order did not involve any evil consequence. Consequently he was not entitled to the benefit of Article 311 of the Constitution. The ratio of the Full Bench decision of this Court reported in AIR 1971 Alld. 375, was negatived as in that case the petitioner was not held to be entitled to the protection of Article 311 of the Constitution, simply because he was holding officiating post and the impugned order did not entail any evil consequence and there was no reduction in rank, nor there was any aspersion cast on the appellant. State of Punjab v. Sukhraj Bahadur (supra), need not be considered as the same has been discussed in the case relied upon by the learned counsel for the respondent 9. State of U. P. v. Kaushal Kishore Shukla (supra), was a Division Bench decision of the Supreme Court decided on 11-1 - 91 and Honourable K. N. Singh, J. (as his Lordship then was), held after considering the Constitution Bench decisions of the Supreme Court in Purshottam Lal Dingra's case and also the Constitution Bench decision in STATE of Orissa v. Ram Narain Das, AIR 1961 SC 167, R. C. Lacy v. STATE of Bihar. (C. A. No 590 of 1962) decided on 23-10-63 (SC) Champak Lal Chaman Lal Shah v. Union of India, AIR 1964 SC 1854 , Jagdish Mitter v. Union of India, AIR 1964 SC 449 , A. G. Benjamin v. Union of India, (1967) 1 LLJ 718, Shamsher Singh v. STATE of Punjab, (1974) 2 SCC 821 and STATE of Punjab v. Sukhraj Bahadur, AIR 1968 SC 1989, held that temporary Government servants had no right to the post and the termination of such Government servant does not visit him with any evil consequence. 10. 10. Subsequent to the aforesaid case there was another decision rendered by the Supreme Court in Babulal v. State of 'Haryana, AIR 1991 SC 1310 , decided on 16-1-91 which was taken a contrary view that the view taken in State of U. P. v. Kaushal Kishore (supra). After considering certain recent cases of the Supreme Court including the case of Smt. Rajender Kaur v. State of Punjab, AIR 1986 SC 1790 , and Anup Jaiswal v. Union of India, AIR 1984 SC 636 and Hardeep Singh v. State of Haryana, 1989 (4) SLR 576, and it was held as follows: 'Moreover, from the squence of facts of this case the inference is irresistible that the Impugned order of termination of the service of the appellant is of penal nature having civil consequences. It is well settled by several decision of this court that though the order is innocuous on the face of it still then, the court, if necessary,, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside. Reference may be made in this connection' to the decision of this court in Smt Rajinder Kaur v. State of Punjab (1986) 4 SCC 141 , ( AIR 1986 SC 1790 ) in which one of us it a party". The aforesaid case of Babu Lal v. State of Haryana (supra), has been followed by a learned Single Judge in the case of Ram Nagina Singh v. State of U. P., 1992 AWC 615 . Om Prakash Goel's case (supra) is obviously in favour of the appellant and against the respondent, as it has taken a contrary view than taken in State of U. P. v. K. K. Shukla (supra) and was a case subsequent in time. 11. Under Article 141 of the Constitution of India the law declared by the Supreme Court is binding on all courts and tribunals in the country, but genuine judicial embarrassment is created when there are conflicting decision of the Supreme Court as the situation arose in the present case. 11. Under Article 141 of the Constitution of India the law declared by the Supreme Court is binding on all courts and tribunals in the country, but genuine judicial embarrassment is created when there are conflicting decision of the Supreme Court as the situation arose in the present case. The Division Bench case of the Supreme Court in State of U. P. v. Kaushal Kishors (supra) relied upon by the learned counsel for the respondent has also made a reference to the Constitution Bench cases and was decided on 11-1-91. But a different observation of the Constitution Bench case has been relied upon. whereas the same Constitution Bench case has been interpreted by a different Division Bench including Smt. Rajinder Kaur v. State of Punjab, (supra) which was a case relevant to the present controversy. In that case the controversy was whether a simple order of termination, even though innocuous in nature was an order of punishment. That was an order of discharge in respect of a constable, though stated to be made on the ground of inefficiency was found to be made on the ground of misconduct of staying in heights with male constables, without serving charge sheet and without affording opportunity to explain the charges, held that the order of discharge, though apparently innocuous, amounted to dismissal and violated Article 311 (2) of the Constitution. In that case of Smt. Rajinder Kaur (supra) reliance was placed on a Constitution Bench decision in Purshottam Lal Dinghra v. Union of India, AIR 1958 SC 36 , where it was held at page 49 para 8 as follows : "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 section 311 must be complied with" 12. The ratio of the Constitution Bench case as relied upon by the subsequent Division Bench case, i e Baku Lal v. State of Haryana (supra), and whereas the Division Bench case of State of U. P. v. Kaushal Kishore Shukla (supra) was decided on 11-1-91 (prior to the Division Bench case of Babu Lal v State of Haryana (supra). The Division Bench case in the State of U. P. v. Kaushal Kishore Shukla, (supra), relied upon a different passage from the Constitution Bench case of P. L. Dhingra v. Union of India (supra). But the relevant passage declaring the law on the subject was relied upon by subsequent Division Bench case Babu Lal v. State of Haryana, (supra), was not considered. Under these circumstances a judicial embarrassment is created as to which Division Bench case of their Lordships of Supreme Court, either earlier decided or subsequently decided, has to be considered as declaring law so as to be binding under Article 141 of the Constitution. Strictly speaking, with all humility, I have profound regards for the declaration of law contained in both the Division Bench cases, but so far as the doctrine of stare decisis is concerned, the complete doctrine is "STARE DECISIS ESI NON QUIETA MOVERE" which cannotes to stand by the decision and not to disturb what is settled it may be stated that this doctrine originated ia England and has the basis of common law. Similar is the doctrine formally routed in American Jurisprudence. To put it differently, this doctrine has been criticised over and again with a view to make expeditious adjudication of the case by limiting the need to re-litigate every person in every case and is regarded as rule of policy which permits predictability, certainly, uniformity and stability See Constitution Bench case in Woman Rao v. Union of India, AIR 1981 SC 271 . Under these circumstances, as laid down in Union of India v. All India Service pensioners Association, AIR 1988 SC 501 at page 506 para 5, I am of the view that the decisions of larger Bench prevail over the decisions of smaller Benches (of the Supreme Court), the following observations at page 504 may be noticed: "It has been repeadly laid down by the Supreme Court that the decision of the larger Bench prevails ever the decision of the smaller benches vide Gangapati Sitaram v. Waman Shripad, AIR 1981 SC 1956 , Muttulal v. Radhey Lal. AIR 1974 SC 1596 . Union of India v. K. S. Subramaniam, AIR 1976 SC 2433 . Even assuming that some aspects have not been taken into account by the Supreme Court, no Court or Tribunal of India can take a view different from that taken by the Supreme Court. As held by the Supreme Court in T. Govindaraja Mudaliar v. State of Tamil Nadu, AIR 1973 SC 974 "merely because the aspect presented in the present appeal was not expressly considered or a decision given, that will not take away the binding effect of those decisions of the Supreme Court." Vide Somawanti v. State of Punjab, AIR 1963 SC 151 ". 13. Before the Division Bench decision in the State of U. P v. Kaushal Kishore Shukla. relied upon by the learned counsel, for the respondent, there was another Constitution Bench ease on the point as indicated earlier. The relevant passage declaring the law in the Constitution Bench case in Purshottam Lal Dingra v. Union of India (supra) has already been referred to and the same was relied upon in para 8 of Smt Rajinder Kaur v. State of Punjab AIR 1986 SC 1790 . In that case another relevant passage in Anup Jaiswal v. Government of India, (1984) 2 SCR 453 = AIR 1984 SC 636 , has been relied upon under para J2 as follows : "Where the from of order is merely a camouflage for an order of dismissal or misconduct, it is always open to the court before which the order is challenged to go behind the from and ascertain true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee." 14. Similarly the following dictum laid down in the State of Bihar v. Shiva Bhikshak Mishra, (1971)2 SCR 191 , at page 196= 1971 SC 1011 was also referred to and relied upon under para 10 at page 1793 as follows: "The form of the order is not conclusive of its true nature and might merely to be a cloak and camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order." I am accordingly of the opinion in view of the conspectus of ail these decisions that where there are two Division Bench decisions rendered by the Supreme Court, the later in time may be preferred with all humility and regards as declaring law to be followed by High Courts in view of the provisions of Article 141 of the Constitution. Where however, there is larger Bench decision, i e. Constitution Bench case and there is another Division Bench case, it is the Constitution Bench case which shall prevail and may be taken to have declared law to be followed and to be binding under Article 141 of the Constitution. Where however, there is larger Bench decision, i e. Constitution Bench case and there is another Division Bench case, it is the Constitution Bench case which shall prevail and may be taken to have declared law to be followed and to be binding under Article 141 of the Constitution. In the present case I have tried to follow the declaration of law as laid down in the Constitution Bench in view of those authorities and after taking into consideration the nature of the impugned order, even though couched in innocuous terms, I have considered the case taken by the defendant respondent in their written statement and also the reply of notice given on behalf of the plaintiff and other evidence, I am of the view that the impugned order was merely a camouflage for an order of dismissal from service on the ground of misconduct and was passed without serving any charge sheet on the appellant and without asking for an explanation from and without giving opportunity to show cause against the order of dismissal from service, and, without giving him any opportunity to cross-examine the witnesses examined. In other words, the impugned order has been passed in complete disregard of the provisions of Article 311 (2) of the Constitution and other similar provision. 15. I am conscious of the limitations contained under Section 100 of the Code of Civil Procedure that the Second Appeal can be allowed only if it involves a substantial question of law. But there is no denying the fact that as to whether a simple order of termination, even though couched in innocuous words, can be said to be merely a camouflage for an order of dismissal from service on the ground of misconduct, involves substantial question of law having general public importance. To put it differently, the appeal also involves constitutional interpretation, particularly about the applicability of Article 311 (2) of the Constitution. Consequently, there is no escale but to set aside the impugned judgment and decree rendered by the lower appellate Court. 16. In view of the premises aforesaid, the present second appeal succeeds and is allowed. The impugned judgment and decree dated 24-4-1991 rendered by the lower appellate court is set aside and that of the trial court is restored. The suit of the plaintiff is decreed with cost throughout. Petition allowed.