N. K. BATABYAL, J. ( 1 ) THE writ petitioner by a Memo dated 22nd June, 1976 was appointed to act temporarily as Peon-cum-Process Server under the Labour Directorate of Government of West Bengal subject to satisfactory police verification and medical examination. A true copy of the appointment letter has been annexed with the writ petition and marked as letter "a". He states that while he was serving under the Block Development Office, Suri-I, Birbhum he was arrested by police on 12th March, 1979 in connection with a criminal case. He was detained in the police custody from 12th March, 1979 to 12th July, 1979 in connection with G. R. Case No. 259/79 (Sessions Case No. 46/79 of Suri Sessions Division ). The petitioner states that at the time of his arrest on 12th March, 1979 he handed over an Earned Leave application to his brother to submit the same to his office on his behalf. The said application was submitted in the office on 14th March, 1979. The Block Development Officer, Suri-I by his Memo dated 23rd March, 1979 informed the petitioner to join office immediately. A copy of the said memo has been annexed with the writ petition and marked "b". The said letter was handed over to the writ petitioner when he was in jail custody and in that view of the matter he could not comply with the direction of the said memo. On 17th April, 1979 the petitioner sent an intimation through the Jail Authorities to the Block Development Officer, Suri-I informing him that he could not attend his duties as he was detained in jail. A copy of the said letter has been annexed and marked "c". The petitioner was released in the morning of 13th July, 1979 and by the order of Court he had to leave the District of Birbhum for a month and put up with one of his relatives at No. 11, Central Sinthy Road, Flat No. KG/ii, Dum Dum, 24-Parganas. From that residence he sent an intimation to the Block Development Officer, Suri-I stating why he could not resume his duties in terms of the order dated 23rd March, 1979. A true copy of the said letter has been marked as annexure "d" to the writ petition. From that residence he sent an intimation to the Block Development Officer, Suri-I stating why he could not resume his duties in terms of the order dated 23rd March, 1979. A true copy of the said letter has been marked as annexure "d" to the writ petition. No suspension order was passed upon the petitioner till the first week of July, 1979, during the pendency of the criminal proceeding, the petitioner was served with an order of termination of his service which was issued by the Labour Commissioner, Govt. of West Bengal on 6th July, 1979. By the said letter the Service of the petitioner was terminated with effect from 13th March, 1979. A true copy of the letter has been annexed with the writ petition and marked Annexure "e". Thus the letter terminating the service was given retrospective effect. The petitioner asserts that the respondent authorities have no right or authority to go beyond the rules and terminate the service of the petitioner according to their whims and caprices without due compliance with the provisions of W. B. S. R. part-I and of West Bengal Services (CC and A) Rules, 1971. The petitioner has further stated that the said criminal case has terminated in favour of the petitioner on 13. 2. 1980. A copy of the judgment is annexed with the writ petition and marked "f". The petitioner made representation before the authorities for withdrawal of the order of termination with a certified copy of the judgment of the learned Court. Thereafter, the petitioner received a letter from the Labour Commissioner, West Bengal on 20-9-86 in which it was stated that the petitioner's service was confirmed with effect from 1-12-1979. The said letter is annexed with the writ petition and marked as Annexure "g". The petitioner was served with another letter on 24-9-86 issued by the authorities concerned stating that the petitioner was promoted. A copy of the said letter has been annexed with the writ petition and marked "h". Thereafter the petitioner made several representations for allowing him to join his duties and for withdrawal of the termination order but he was not allowed to join. A copy of the said letter has been annexed with the writ petition and marked "h". Thereafter the petitioner made several representations for allowing him to join his duties and for withdrawal of the termination order but he was not allowed to join. ( 2 ) BEING aggrieved by and dissatisfied with the action of the respondents, the writ petitioner has come before this court for the issue of a Rule asking the respondents to show cause as to why a writ in the nature of mandamus should not go commanding them to recall, rescind, cancel, withdraw and forbear from giving effect to or any further effect to the impugned order being Annexure "e" to the writ petition and to allow the petitioner to join his duties on the basis of the order of Criminal Court being Annexure "p" to the writ petition and also for a writ of certiorari commanding the respondents to certify and transmit to this court all the records and papers for doing conscionable justice in this case and for other reliefs. ( 3 ) IN the supplementary affidavit filed on behalf of the petitioner copies of four letters written by the petitioner to the Block Development Officer and the Labour Commissioner, Govt. of West Bengal were filed and made part of the record. ( 4 ) IN the affidavit-in-opposition filed on behalf of the respondents, the material allegations in the writ petition have been denied except what are specifically admitted in the affidavit-in-opposition. The fact that the petitioner was appointed to act temporarily as a peon-cum-process-Server under the Labour Directorate as stated by him are not denied. It has been stated that no application for leave as stated in paragraph 5 of the writ petition was received by the office of the sanctioning authority. As the petitioner was not a regular employee and the terms of his appointment were provisional subject to satisfactory report from police, he was dismissed from service with effect from 13-3-1979 on receipt of the adverse report from police. It has been stated that the provisions of the West Bengal Service Rules are applicable only to the regular employees of the Government of West Bengal. The petitioner who was not a regular employee of the Government of West Bengal, was not entitled to the benefits of the Service Rules. According to the respondents, the writ petition should be dismissed with costs. The petitioner who was not a regular employee of the Government of West Bengal, was not entitled to the benefits of the Service Rules. According to the respondents, the writ petition should be dismissed with costs. ( 5 ) THE basic facts, as it appears from the material on record, are that the writ petitioner was appointed provisionally to act temporarily as peon-cum-process Server under the Labour Directorate, Government of West Bengal subject to satisfactory reports of police verification and medical examination as per Annexure "a". It was stated in the said notice that the appointment was provisional and liable to be termination without notice. It was also stated therein that the other conditions of service would be the same as were applicable to other Government servants of the same category under the Rules and Orders of the Government. It has been urged by the Learned Counsel for writ petitioner that no formal order of suspension was issued against client even after he was arrested by the police in connection with a criminal case. The petitioner was arrested by police in connection with a criminal case on 12th March, 1979 in connection with G. R. case No. 259/79 (Sessions case No. 46/79 of the Sessions Division of Suri ). The petitioner was released on bail on 13th July, 1979 on certain conditions, so he was in jail custody in connection with a criminal case for more than 48 hours. Rule 7 sub-rule (3) of the W. B. Services (CC and A) Rules, 1971 provides as follows :-" (3 ). A Government servant who is retained in custody for a period exceeding 48 hours under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or otherwise shall be deemed to have been suspended, by an order of the Appointing Authority, with effect from the date of his detention and shall remain under suspension until further orders. A Government servant who is undergoing a sentence of imprisonment shall also be dealt with in the same manner pending a decision on the disciplinary action taken against him". ( 6 ) THE W. B. S. (CC and A) Rules, 1971 apply to all Government servants as per Rule 2 (1) except the persons specified thereunder. A Government servant who is undergoing a sentence of imprisonment shall also be dealt with in the same manner pending a decision on the disciplinary action taken against him". ( 6 ) THE W. B. S. (CC and A) Rules, 1971 apply to all Government servants as per Rule 2 (1) except the persons specified thereunder. Therefore, the petitioner in the case before us comes within the ambit of the Rules of the said Rules and therefore he comes within the sweep of Rule 7 sub-rule (3) of the said Rules. As the petitioner was kept in custody with a criminal case for more than 48 hours he was deemed to have been suspended from his service until further orders with effect from the date of his detention. Therefore, the contention that the petitioner was not put under suspension by any formal order does not hold good. ( 7 ) THE next important point is whether the order terminating his service as per Annexure "e" is legal, valid and binding. On the face of it, it appears that though the order is dated 6th July, 1979 but it has been given effect to with retrospective effect from 13th of March, 1979. In paragraph 10 of the writ petition it has been stated that during the pendency of the criminal proceeding the petitioner was served with an order of termination of his service with retrospective effect. The exact date of service has not been spelt out anywhere. In the affidavit-in-opposition also the exact date of service has not given. From the copy of the judgments of the Sessions Court marked Annexure "f", it appears that the judgment was delivered on 13. 2. 80. Therefore, the letter terminating the service could not be served after that date. Taking the most beneficial view in favour of the petitioner it can be stated that the letter terminating the service could not be served after 13. 2. 80. Hence it is presumed that the said letter was served on 13. 2. 80. ( 8 ) THE learned Counsel for the writ petitioner has argued that the writ petitioner was entitled to the protection of Article 311 of the Constitution before termination of his service. Unfortunately, I cannot agree with the learned Counsel for the reasons given below. ( 9 ) IT has been held in M. Vesghose v. Union of India ( AIR 1963 Cal. Unfortunately, I cannot agree with the learned Counsel for the reasons given below. ( 9 ) IT has been held in M. Vesghose v. Union of India ( AIR 1963 Cal. 421 ) that when a person is employed in temporary employment on condition that services can be terminated at any time without assigning any reason and not for mis-conduct such a termination cannot be challenged as illegal or unconstitutional as the termination was under the terms of special contract. It has further been held in O. N. G. C. v. Md. Iskendar Ali (AIR 1980 SC 1242) and in Union of India v. P. S. Bhatt ( AIR 1981 SC 957 ) that termination of service of a temporary servant without any stigma or punishment will not attract Article 311 of the Constitution. The petitioner in our case was given a provisional appointment to act temporarily as a peon-cum-process Server of a particular establishment. ( 10 ) IN State of U. P. v. Kaushal Kishore Shukla (1991) 1 SCC 691 , it has been held that the respondent being a temporary Government servant had no right to hold the post and the competent authority terminated his service by an innocuous order of termination without casting any stigma on him. The termination order does not indict the respondent for any misconduct. The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent's suitability and continuance in service. There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary enquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent's services by an innocuous order in accordance with the terms and conditions of the service (para 8 of the judgment ). ( 11 ) IN that case in paragraph 12 of the reported judgment it has been further held that in Nepal Singh's case [nepal Singh v. State of U. P. , (1985) 1 SCC 56 ], is no authority for the proposition that the service of an ad hoc and temporary employee cannot be terminated even if the competent authority is on assessment of the work and conduct of the work and conduct of the employee finds him unsuitable for the service. The court's observation in Nepal Singh case that the inquiry against Nepal Singh on certain charges were dropped and his service were terminated under the Rules applicable to the temporary Government servant with a view to circumvent the protection of Article 311 (2) of the Constitution and as such the order of termination was illegal, must be confined to the facts of that case. The decision of Nepal Singh case in this regard is per incuriam. ( 12 ) IN the case at hand, in paragraph 7 of the affidavit in opposition filed on behalf of the respondents, it has been stated that as the writ petitioner was not a regular employee and the terms of his appointment were provisional subject to satisfactory report from police he was dismissed from service with effect from 13. 3. 1979 on receipt of the adverse report from the police leading to the conclusion that his conduct was unbecoming of a Government servant. It may be argued that from this averment in the affidavit-in-opposition it can be inferred that the order of termination is the outcome of a punitive action against the writ petitioner on account of the adverse report. But this point has also been dealt with in the decision in Kaushal Kishore Shukla's case (supra) where it has been held that the allegations made against the respondents contained in the counter affidavit by way of defence filed on behalf of the appellants also do not change the nature and character of the order of termination. Therefore, the defence taken in the affidavit-in-opposition cannot be taken help of for explaining the nature of the order terminating the service. Moreover in Ram Gopal Chaturbadi v. State of U. P. (AIR 1980 SC 158), it has been held that the State Government has the right to terminate the service of a temporary Government servant without issuing any notice to show cause. In view of the discussion made above, I hold that the petitioner was not entitled to the protection of Article 311 (2) of the Constitution of India in this case. In view of the discussion made above, I hold that the petitioner was not entitled to the protection of Article 311 (2) of the Constitution of India in this case. ( 13 ) WITH regard to the question of the retrospective effect of the order of termination, the general rule is that an order of dismissal or discharge can be given effect to only from the date of the order and not from any date earlier when Government servant was actually in service (Jeeva Ratanm v. State of Madras, AIR 1966 SC 951 ). In that case it has been held also that when a retrospective order of dismissal is made, it will be valid from the date of the order, though not from the earlier date. "date of order" means the date when the order is communicated to the Government servant concerned or otherwise published (State of Punjab v. Amar Singh, AIR 1966 SC 1318 ). In another case of the Supreme Court it has been explained that this does not mean that the Government order does not take effect until it is actually received by the employee concerned; it means that it takes effect from the date when the order is sent out for despatch or communication to the employee and thus goes out of control of the authority who made it (Pratap v. State of Punjab, AIR 1964 SC 72 para 16 ). ( 14 ) IT is obvious that the order of termination marked Annexure "e" date 6-7-1979 would take effect either from the date of publication or from the date on which is was served upon the Government servant. In this case there is no material on record to show on which date the letter actually went out of the control of the authority issuing the letter. But we have it that it could not be served later than 13-2-1980. Therefore, it will be reasonable to hold that the order of termination came into operation with effect from 13-2-1980. As a result, the writ petitioner is entitled to get full salary and allowances for the period from 13-3-1979 to 13-2-1980. ( 15 ) THE learned Counsel for the writ petitioner has drawn the attention of the court to Annexures "g" and "m" to the writ petition. As a result, the writ petitioner is entitled to get full salary and allowances for the period from 13-3-1979 to 13-2-1980. ( 15 ) THE learned Counsel for the writ petitioner has drawn the attention of the court to Annexures "g" and "m" to the writ petition. From Annexure "g" dated 20-9-86 it appears that the writ petitioner by an office order of the Labour Commissioner, Government of West Bengal while acting as temporary Peon-cum-Process Server was appointed substantively to the post of Peon-cum-Process Server in an appropriate scale. From Annexure "h" dated 24-9-1986 i. e. 4 days after the date on which Annexure "g" was passed, the writ petitioner was promoted along with many others to Grade-I Group D post provisionally in the appropriate scale. The learned Counsel has submitted that though his client was given substantive appointment and promoted in 1986 but he was not allowed to join his work in holding of those orders. Therefore, his client is entitled to get full wages for the period during which he has not allowed to join his work unlawfully. I cannot unfortunately agree with the contention of the learned Counsel for the writ petitioner simply because both the Annexures "g" and "h" touching the writ petitioner were passed through mistake as his service had already been terminated and so the petitioner could not take advantage of the mistake. It has been stated in paragraph 12 of the affidavit-in opposition that the order of confirmation was erroneously issued and later on it was detected and rectified in another order issued by the Labour Commissioner. There is no affidavit-in-reply denying the statement made in paragraph 12 of the affidavit-in-opposition. Naturally, the writ petitioner cannot reap any advantage of the erroneous orders marked Annexures "g" and "m" to the writ petition. ( 16 ) IN view of the discussions made above, the writ petition succeeds in part. The prayer for recalling, rescinding, cancelling or withdrawing the impugned order being Annexure "e" to the writ petition is refused but respondents are directed to pay full salary and allowances for the period from 13-3-1979 to 13-2. 1980 as stated above within three months from the date of communication of this order together with interest at the rate of 8? per cent per annum from 14-2-1980 up to the date of actual payment. 1980 as stated above within three months from the date of communication of this order together with interest at the rate of 8? per cent per annum from 14-2-1980 up to the date of actual payment. The writ petitioner is not entitled to any other relief in the circumstances of the case. No order is made as to costs. Appeal allowed.