R. K. AGRAWAL, J. ( 1 ) BY means of the present writ petition, the petitioner seeks a writ of certiorari quashing the order of termination dated 28. 7. 1986, passed by the Assistant Commissioner (Administration)Sales Tax Gorakhpur Zone, Gorakhpur. respondent No. 2 contained in Annexure-5 to the writ petition, and the order dated 16. 2. 1993 passed by the U. P. Public Service Tribunal No. IV. Lucknow, rejecting the petitioners Claim Petition No. 363/f/iv/86, contained in Annexure-7 to the writ, petition. The petitioner further seeks a writ of mandamus commanding the respondents to reinstate the petitioner in service with full back wages with effect from the date of termination, i. e. . 28. 7. 1986. ( 2 ) THE facts of the case in brief are that the petitioner was appointed by the Assistant commissioner (Legal) Sales Tax. Gorakhpur Zone, Gorakhpur, respondent No. 3 on 11th january, 1979, on the post of peon in the Sales Tax Department. The appointment was purely temporary and was liable to be terminated at any point of time by giving either one months notice or one months salary in lieu thereof. ( 3 ) ON 4th February, 1985. the petitioner was suspended. The Sales Tax Officer (A) Azamgarh, was appointed as enquiry officer and he served two charge-sheets, dated 27th April, 1985, upon the petitioner containing certain charges. The petitioner submitted his explanation and also appeared in person before the enquiry officer. The enquiry officer submitted his report. However, the Assistant Commissioner (Administration) Sales Tax, Gorakhpur Range. Gorakhpur, vide order dated 28. 7. 1986. terminated the services of the petitioner by giving one months salary in lieu of one months notice. The said order recites that the services of the petitioner are no longer required and, therefore, his services are being terminated. The petitioner has alleged that neither any notice nor any opportunity of hearing was given to him by the assistant Commissioner, respondent No, 2. Even though the order of termination dated 28th july. 1986. recites that the services of the petitioners are no longer required, yet the said order has been passed on the basis of enquiry report submitted by the enquiry officer and. therefore, it amounts to punishment. The petitioner challenged the order dated 18th July. 1986. before the U. P. Public Service Tribunal, Lucknow, by filing a claim petition. 1986. recites that the services of the petitioners are no longer required, yet the said order has been passed on the basis of enquiry report submitted by the enquiry officer and. therefore, it amounts to punishment. The petitioner challenged the order dated 18th July. 1986. before the U. P. Public Service Tribunal, Lucknow, by filing a claim petition. The State of U. P. and other respondents filed their reply to the said claim petition before the Tribunal and in paragraphs 4 and 10 of the counter-affidavit, they had admitted that the order of termination was passed on the enquiry report. The U. P. Public Service Tribunal vide order dated 16. 2. 1993 dismissed the claim petition filed by the petitioner. The petitioner has challenged the order dated 28. 7. 1986 and 16. 2. 1993 in the present writ petition on the ground that the termination order was passed on the enquiry report and, thus, the foundation of the impugned orders was admittedly the enquiry report and charges levelled against the petitioner. The said order could have been only passed after affording opportunity of hearing to the petitioner and in absence of it. it cast stigma. The procedures adopted by the authority concerned clearly amount to circumventing the procedure prescribed under Article 3 U of the Constitution of India. The petitioner further contends that once the enquiry is concluded and report is submitted, the order of termination found on the said enquiry report cannot be treated as a simpliciter order of termination and, therefore, it is wholly illegal, contrary to law and cannot be sustained. ( 4 ) IN the counter-affidavit filed by one Shri A. K. Srivastava. Sales Tax Officer Grade II. Sector i. Azamgarh. on behalf of the respondent Nos. 1. 2 and 3, it has been stated that the petitioner was appointed purely on temporary basis as such he had no right to the post held by him. It has further been stated that the Bench of Assistant Commissioner (Judicial) Sales Tax in which the petitioner was appointed as a peon, had been abolished and consequently, the post against which the petitioner was appointed as Class IV employee. had also been abolished. It has further been stated that the Bench of Assistant Commissioner (Judicial) Sales Tax in which the petitioner was appointed as a peon, had been abolished and consequently, the post against which the petitioner was appointed as Class IV employee. had also been abolished. It has been also stated that Impugned order of termination is simpliclter order of termination and no stigma has been cast upon the petitioner by the impugned order and the said order has not been passed by way of punishment and as such it is not punitive in nature, therefore, notice was not given to the petitioner before terminating his services and the provision of Article 311 is not attracted at all in the present case. In para 3 (iv) of the counter-affidavit filed on behalf of respondent Nos. 1 to 3, it has been stated that "enquiry was held by the enquiry officer and enquiry report was submitted by the enquiry officer to the disciplinary authority concerned who was competent to take action and impose suitable penalty upon the petitioner on the basis of the said enquiry report. However. disciplinary authority instead of taking any action and imposing any penalty or punishment upon the petitioner on the basis of the said enquiry report and the enquiry proceedings decided to take a lenient view in the matter and dropped/abandoned the entire enquiry proceedings. Consequently. neither the enquiry report was served upon the petitioner nor any show cause notice for imposing any penalty was served upon the petitioner as the same were not needed because the disciplinary or competent authority has decided not to proceed further on the basis of the said enquiry proceedings and the enquiry report against the petitioner. The competent authority, however, decided to terminate the petitioners services in terms and conditions of his appointment by giving a months salary in lieu of a months notice to the petitioner so that the petitioner may not be debarred from further employment in future and any stigma may not be cast upon the petitioner. Thus, in fact Instead of imposing any penalty or punishment upon the petitioner by way of removal or dismissal from services, a slightly lenient view has been taken by the disciplinary or competent authority and the petitioner cannot take advantage of the said lenient view of the disciplinary authority in his favour. Thus, in fact Instead of imposing any penalty or punishment upon the petitioner by way of removal or dismissal from services, a slightly lenient view has been taken by the disciplinary or competent authority and the petitioner cannot take advantage of the said lenient view of the disciplinary authority in his favour. Moreover, tt is always open to the disciplinary authority to accept or reject the enquiry report as well as the recommendation made therein by the enquiry officer and also to drop or abandon the enquiry proceedings and to pass any other suitable orders. ( 5 ) THE petitioner in his rejoinder-affidavit has stated that the office of Assistant Commissioner (Judicial) Sales Tax is a part of Sales Tax Department as such the petitioner was an employee of the Sales Tax Department as he was appointed against regular vacancy. His termination was not based on account of alleged abolition of the department and the order of termination itself goes to indicate that services of the petitioner were terminated by the Assistant Commissioner (Administration) and there is no whisper at all about the abolition of the office of the Assistant commissioner (Judicial ). It has further been stated that the order of termination cannot be called as simpliciter in view of the fact that the services of the petitioner were terminated after an enquiry held on account of charge-sheet given by the respondents. ( 6 ) I have heard Shri Dinesh Dwivedi learned counsel for the petitioner and the learned standing counsel appearing for the respondents. ( 7 ) SHRI Dwivedi submitted that the impugned order of termination dated 28. 7. 1986 has been passed by respondent No. 2 after enquiry officer submitted his report thus the said report was the foundation for passing the impugned order of termination. Respondent No. 2 neither gave any notice nor any opportunity of hearing to the petitioner before passing the order of termination on 28. 7. 1986. Though in the said order a recital has been made that the services of the petitioner are no longer required yet the said order is not order of termination simpliciler. As the impugned order of termination has been passed in pursuance of the enquiry report submitted by the enquiry officer, hence it amounts to punishment. 7. 1986. Though in the said order a recital has been made that the services of the petitioner are no longer required yet the said order is not order of termination simpliciler. As the impugned order of termination has been passed in pursuance of the enquiry report submitted by the enquiry officer, hence it amounts to punishment. The provisions of Article 311 of the Constilution of india have not been followed, therefore, the impugned order cannot be permitted to stand. ( 8 ) ON the other hand, the learned standing counsel appearing for respondents, submitted that the petitioner was a temporary Government servant and he had no right to the post. It was always open to the appointing authority to terminate the services of the petitioner in accordance with the terms of the appointment order which provides for giving one months notice or one months salary in lieu thereof. The order of termination is an order simpliciter and does not cast any stigma upon the petitioner. Further the enquiry report submitted by the enquiry officer was not the sole basis for terminating the services of the petitioner. On the other hand his unsuitability has been made basis for terminating his services- The learned standing counsel relied upon the decision of Honble Supreme Court in the case of State of U. P. and another v. Kaushal Kishore. (1991) 1 SCC 691 , in support of his plea that even if a preliminary enquiry into the allegations against temporary Government Servant is held, the order of termination is not necessarily punitive. Shri Dinesh Dwivedi learned counsel for the petitioner relied upon the decision of the honble Supreme Court in the case of Nepal Singh v. State of U. P. and others. AIR 1985 SC 84 , in support of his plea that where the allegations of misconduct are levelled against a Government servant, it is a case where the provisions of Article 311 (2) should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore, it is entitled to avoid the mandate of that provision and resort to guise of an ex facie innocuous termination order. He also relied upon the decision of the Honble Supreme Court in the case of Om Prakash Goel v. Himachal Pradesh tourism Development Corporation Limited, Shimla and another, AIR 1991 SC 1490 . in support his plea that after serving the charge-sheet when the enquiry was conducted and completed the form of termination order is only a cloak for order of punishment. ( 9 ) IT is not in dispute that the enquiry officer served two charge-sheets, dated 27th April, 1985, on the petitioner. The petitioner submitted his explanation and before passing the impugned order, the enquiry officer has submitted his report. Neither any notice to show cause nor any opportunity of hearing, was given to the petitioner. Instead, the order of termination was passed on 28. 7. 1986 by respondent No. 2 on the ground that the services of the petitioner were no longer required. The petitioner was given one months salary in lieu of notice period. On these undisputed facts, the question arises as to whether the impugned order of termination dated 28. 7. 1986 is an order of termination simpliciter or not and whether the enquiry report has been the foundation for passing the Impugned order or not. If the enquiry report has been the foundation for passing the order of termination on 28. 7. 1986, then the said order is not an order of termination simpliciter but is an order of punishment and provisions of Article 311 (2) of the constitution of India, ought to have been complied with. However, if the enquiry report is only a motive and not the foundation then the order of termination dated 28. 7. 1986 is an order simpliciter and provisions of Article 311 (2) is not at all attracted. The Honble Supreme Court in the case of Radhey Shyam Gupta v. U. P. State Agro Industries Corporation Limited and another, JT 1998 (8) SC 585. had after considering its earlier decisions, reiterated the distinction between the words motive and foundation as given in the case of Gujarat Steel Tube v. Gujarat steel Tubes Mazdoor Sangh. 1980 (2) SCC 593 . had after considering its earlier decisions, reiterated the distinction between the words motive and foundation as given in the case of Gujarat Steel Tube v. Gujarat steel Tubes Mazdoor Sangh. 1980 (2) SCC 593 . The said distinction as pointed out by Honble supreme Court in the case of Gujarat Steel Tube (supra), runs as under : "masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceedings from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used. On the contrary, 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 dubious servant. Then it is not dismissal but termination simpliciter. if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here. Then it is not dismissal but termination simpliciter. if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here. " ( 10 ) THE Honble Supreme Court held that "in other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or to direct a decision about the truth of the allegations. But if he conducts an inquiry only for purpose proving the misconduct and the employee is not heard, it is a case where the inquiry is the foundation and the termination will be bad. " The Honble Supreme Court further held "that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in Ram Narayan Dass case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary Inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklals case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. It has been so decided in Champaklals case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed, if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadurs case and in benjamins case. In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujaral steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found and were merely the motive. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases. " ( 11 ) THE Honble Supreme Court referred to its earlier decisions in the case of State of U. P. v. Kaushal Kishore Shukla and held that it was a case where there was an adverse entry and only a preliminary report and then a simple order of termination was issued, which had been upheld. So far as its earlier decision in the case of Triveni Shanker Saxena v. State of U. P. , JT 1991 (1) SC 37 and State of U. P. v. Prem Lata Motors, 1994 (4) SCC 189 . are concerned, the Honble supreme Court held that the termination order was a simpliciter order which did not cast any stigma and there was no prior enquiry hence the orders of termination were upheld. The decision in the case of R. S. Gupta (supra), was followed subsequently by the Honble Supreme Court in the case of Dipti Prakash Banerjee v. Satyendra Nath Base National Centre for Basic Sciences calcutta and others, JT 1999 (1) SC 396. Applying the aforesaid principles laid down by the honble Supreme Court to the facts of the present case. I find that the charge-sheet was issued to the petitioner on 27th April, 1985 and the petitioner had submitted his reply and also appeared before the enquiry officer. The enquiry officer submitted his report to the appointing authority. However, the appointing authority neither gave any show-cause notice to the petitioner nor any opportunity of hearing to the petitioner before passing the order of termination dated 28. 7. 1986. The inquiry instituted against the petitioner was, thus, neither dropped nor abandoned. Thus, the disciplinary proceedings cannot be said to be the motive for passing the order of termination. On the other hand, the order of termination dated 28. 7. 7. 1986. The inquiry instituted against the petitioner was, thus, neither dropped nor abandoned. Thus, the disciplinary proceedings cannot be said to be the motive for passing the order of termination. On the other hand, the order of termination dated 28. 7. 1986 even though does not record any thing against the petitioner has been passed after the enquiry report had been submitted by the enquiry officer. Thus, the enquiry report is the foundation and not motive for termination of services of the petitioner. In this view of the matter, 1 am of the view that the order of termination dated 28. 7. 1986 is not an order of termination simpliciter. In fact, it is an order of dismissal of services of the petitioner. The respondent No. 2 did not give any opportunity of hearing to the petitioner before passing the impugned order and. therefore, the provisions of Article 311 of the constitution have not been complied with. The principles of natural justice have also been violated in the present case. Therefore, the order of termination dated 28. 7. 1986 and the order dated 16. 2. 1993 passed by the U. P. Public Services Tribunal cannot be sustained In law. ( 12 ) IN view of the above discussions, the writ petition succeeds and is allowed with costs. The impugned orders dated 28. 7. 1986 (Annexure-5 to the writ petition) passed by respondent No. 2 and 16. 2. 1993 (Annexure-7 to the writ petition) passed by the U. P. Public Services Tribunal, are hereby quashed. The petitioner shall be entitled to all consequential benefits. .