JUDGMENT By the Court.—Heard learned Counsel for the petitioner Shri P.N. Singh and Smt. Aruna Mishra, learned Counsel appearing on behalf of the respondents. 2. Present writ petition under Art. 226 of the Constitution of India has been preferred against the judgment and order dated 4.11.1997, passed by the U.P. Public Service Tribunal dismissing the claim petition No. 171/I/90. 3. In brief, the facts of the case are that the petitioner was a Jeep Driver and was posted at Ghazipur in the year 1976. He was placed under suspension by an order dated 30.10.1980. A charge-sheet dated 8.2.1981 was served upon the petitioner raising various allegations which precisely relates to absence from duty from time to time and not complying with the orders passed by some of the authorities. The petitioner has submitted a reply to the charge-sheet. Thereafter, the enquiry officer has submitted a report to the District Magistrate. Instead of passing of order in pursuance to the enquiry report, the competent authority has terminated the petitioner from service by the impugned order dated 30.9.1981. The order of removal has been passed in pursuance to U.P. Temporary Government Servants (Termination of Service) Rules, 1975, in short, “1975 Rules”. Feeling aggrieved with the impugned order of termination, the petitioner approached the U.P. Public Services Tribunal. The tribunal dismissed the claim petition precisely on the ground that being a temporary Government servant, the petitioner was removed from service. 4. While assailing the impugned judgment, the learned Counsel for the petitioner has submitted that even assuming that the petitioner was a temporary Government servant but since he was served with a charge-sheet to which he submitted a reply and the enquiry was concluded and instead of taking a decision in pursuance to enquiry report, the order of termination has been passed under rules, hence the order of termination is not sustainable under law. It has been further submitted that after service of charge-sheet, no oral evidence was recorded. The petitioner was also not afforded any opportunity to lead evidence in defence. However, copy of the enquiry report was provided to the petitioner. It is also submitted that since the entire enquiry was held in violation of principle of natural justice without recording of oral evidence and also without providing opportunity to cross-examine the witnesses, the order passed by the competent authority under 1975 Rules terminating the petitioner’s services is bad in law. It is also submitted that since the entire enquiry was held in violation of principle of natural justice without recording of oral evidence and also without providing opportunity to cross-examine the witnesses, the order passed by the competent authority under 1975 Rules terminating the petitioner’s services is bad in law. It has also been submitted that the order of termination is punitive in nature. The petitioner’s Counsel also submits that the order of termination does not disclose that it has been passed in pursuance to the enquriry report. 5. On the other hand, learned Standing Counsel submits that the order of termination is innocuous and has been passed under 1975 Rules and it does not suffer from any infirmity. 6. I have considered the arguments advanced by the parties’ Counsel at length and perused the record. 7. There is no dispute over the settled proposition of law that in case the services of a temporary Government servant is terminated in pursuance of 1975 Rules(supra) and without casting any stigma, then ordinarily, the employee will not have any case to assail such order unless the order suffers from any illegality but in the case in hand, there appears to be different facts and circumstances which calls for adjudication by this Court. 8. Admittedly, the charge-sheet was served upon the petitioner in response to which, the petitioner has submitted a reply. The enquiry officer has also submitted a report indicting the petitioner’s conduct. The copy of the enquiry report also reveals that the finding of fact has been recorded by the enquiry officer to the effect that the petitioner was unauthorisedly absent from duty and he has not obeyed the order, passed by the authorities. 9. The petitioner’ Counsel has also invited attention of this Court to the letter dated 14.10.1980, sent by the Sub Divisional Magistrate to the District Magistrate raising certain complaint against the petitioner’s conduct. Thus, from the finding of facts recorded by the enquiry officer, at the face of record, it is evident that the petitioner has been charged with misconduct and in consequence thereof, later on, decision was taken to terminate the petitioner’s services. 10. However, instead of dismissing the petitioner’s services with reference to the enquiry report, the authorities took a decision to adopt recourse to ‘1975 Rules’ which empowers the State Government to terminate the services of temporary Government servant after serving a month’s notice. 10. However, instead of dismissing the petitioner’s services with reference to the enquiry report, the authorities took a decision to adopt recourse to ‘1975 Rules’ which empowers the State Government to terminate the services of temporary Government servant after serving a month’s notice. 11. It is settled principle of law that even a temporary Government servant charged for misconduct is entitled to face regular enquiry. Regular enquiry means after service of charge-sheet and receipt of reply to the charge-sheet, oral evidence should be recorded with opportunity to cross-examine the witnesses. Thereafter, the delinquent employee has a right to lead evidence in defence and opportunity of personal hearing should be given by the enquiry officer vide 1990 LCD 486, Jagdish Prasad Singh v. State of U.P., 1998 LCD 199, Avatar Singh v. State of U.P., 1979 (1) SCC 60 , Town Area Committee, Jalalabad v. Jagdish Prasad, 1980 (3) SCC 459 , Managing Director, U.P. Welfare Housing Corporation v. Vijay Narain Bajpai, 1998(6) SCC 651 , State of U.P. v. Shatrughan Lal, AIR 1998 SC 117, Chandrama Tewari v. Union of India and others and AIR 1985 SC 1121 , Anil Kumar v. Presiding Officer and others. 12. In the present case, it appears that the enquiry was not held in accordance with law as settled by this Court and Hon’ble Supreme Court. The enquiry proceedings suffer from substantial illegality. 13. Simpliciter order of termination under 1975 Rules may be passed in case the Government does not require the services of the employee for reasonable cause or a decision is taken keeping in view the service rendered by the temporary Government servant for discontinuance of service. Thus, in the matter of temporary Government servant, if the motive for termination of service is innocuous and based on requirement and it cannot be faulted. However, in case the foundation of the order of termination even if it is simplicitor, is misconduct or punitive in nature, then the employees shall be entitled for the protection of Art. 311 of the Constitution of India. Special Constitution Bench of Hon’ble Supreme Court (Seven Hon’ble Judges) in the case reported in AIR 1974 SC 2192 , Shamsher Singh v. State of Punjab and another, had distinguished the motive and foundation. Hon’ble Supreme Court held that “only the form of the order is not decisive as to whether the order is by way of punishment. Special Constitution Bench of Hon’ble Supreme Court (Seven Hon’ble Judges) in the case reported in AIR 1974 SC 2192 , Shamsher Singh v. State of Punjab and another, had distinguished the motive and foundation. Hon’ble Supreme Court held that “only the form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Art. 311. In such a case the simplicity of the form of the order will not give any sanctity”. 14. In the case of Samsher Singh, Justice Krishna Iyer as a member of the Bench observed that the “Constitution is a declaration of Articles of faith and not compilation of law and there should not be any confusion for the constitutional rights and privilege”. While relying upon the legal proposition as settled by Hon’ble Supreme Court in the case of Gopi Kishore, AIR 1960 SC 689 , His Lordship ruled that “where the State holds an enquiry on the basis of complaints of mis-conduct against a probationer or temporary servant, the employer must be presumed to have abandoned his right to terminate simpliciter and to have undertaken disciplinary proceedings bringing in its wake the protective operation of Article 311. At first flush, the distinguishing mark would therefore appear to be the holding of an inquiry into the complaints of misconduct” (para 157, page 2231). 15. His Lordship again proceeded to observe that “real motive behind the removal is irrelevant and the holding of an enquiry leaving an indelible stain as a consequence alone attracts Article 311(2). What is decisive means whether the order is by way of punishment, in the light of the tests laid down in Purshottam Lal Dhingra’s case AIR 1958 SC 36 ". (para 158) 16. Samsher Singh’s case was again reiterated and explained by Hon’ble Supreme Court in the case reported in AIR 1980 SC 1896 , Gujarat Steel Tubes Limited, etc. etc. v. Gujarat Steel Tubes Mazdoor Sabha and others. (para 158) 16. Samsher Singh’s case was again reiterated and explained by Hon’ble Supreme Court in the case reported in AIR 1980 SC 1896 , Gujarat Steel Tubes Limited, etc. etc. v. Gujarat Steel Tubes Mazdoor Sabha and others. While considering distinction between motive and foundation, Hon’ble Supreme Court observed that “‘master and servant’ 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 documens 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.” 17. In a case reported in (1991) 3 SCC 291 , Om Prakash Goel v. Himanchal Pradesh Tourism Development Corporation Limited, Shimla and another, Hon’ble Supreme Court observed that in a case of an order of termination even that of a temporary employee the Court has to see whether the order was made on the ground of misconduct. If such a complaint was made and in that process the Court would examine the real circumstances as well as the basis and foundation of the order complained of and if the Court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoid an enquiry as warranted by Article 311(2) of the Constitution, then such a termination is liable to be quashed. (para 4) 18. In the case of Om Prakash Goel (supra), regular charge-sheet was served along with documents and the delinquent employee has replied to the charge-sheet. Thereafter, the order of termination was passed without referring the charge-sheet. Hon’ble Supreme Court treated it as an order of dismissal and quashed the termination order. 19. In a case, reported in (1999)2 SCC 21 , Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Limited and another, Hon’ble Supreme Court observed as under : “27. Thereafter, the order of termination was passed without referring the charge-sheet. Hon’ble Supreme Court treated it as an order of dismissal and quashed the termination order. 19. In a case, reported in (1999)2 SCC 21 , Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Limited and another, Hon’ble Supreme Court observed as under : “27. 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 direct a decision about the truth of the allegations. But if he conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and the termination will be bad. 20. The principle enunciated by aforesaid judgment (supra) has been reiterated in the case, reported in (1999)3 SCC 60 , Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others. 21. In the case of Dipti Prakash Banerjee (supra), Hon’ble Supreme Court observed that “Material which amounts to stigma need not be contained in termination order of a probationer but might be contained in documents referred to in the termination order or in its annexures.” 22. In the case reported in (2000)5 SCC 152 , Chandra Prakash Shahi v. State of U.P. and others, Hon’ble Supreme Court after considering the previous judgments of the Hon’ble Supreme Court reiterated the aforesaid principle and observed that in case after scrutiny it is found that the order of termination is passed on mis-conduct, then such order shall amount to dismissal from service. 23. In the case reported in (2000)3 SCC 588 , Nar Singh Pal v. Union of India and others, Hon’ble Supreme Court held that where during pendency of the criminal trial, an order of termination is passed on account of involvement in criminal case, it shall not amount to simpliciter order of retrenchment and shall be punitive amounting to dismissal. 24. In another case reported in (2001)10 SCC 83 , A.P. State Federation of Coop. 24. In another case reported in (2001)10 SCC 83 , A.P. State Federation of Coop. Spinning Mills Limited and another v. P.V. Swaminathan while considering a question as to whether the order of termination is simpliciter or punitive, Hon’ble Supreme Court held that even if an order of termination is simpliciter, the Court is not debarred from looking at the attendant circumstance, namely the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same. (paras 3 and 4) 25. Hon’ble Supreme Court has reiterated the aforesaid principle in the cases reported in (2001)9 SCC 318 , Bank of India v. Indu Rajagopalan and others, (2002)10 SCC 394, Shailaja Shivajirao Patil v. President, Hon’ble Khasdar UGS Sanstha and others, (2003)2 SCC 386 , Dhananjay v. Chief Executive Officer, Zila Parishad, Jalna, (2003)3 SCC 263 , Mathew P. Thomas v. Kerala State Civil Supply Corporation Limited and others and (2004)11 SCC 743 , State of Punjab and others v. Balbir Singh. 26. In the case of Balbir Singh (supra), Hon’ble Supreme Court held that in order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the “object of the enquiry”. If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simpliciter and not punitive in nature. The nature of enquiry is another factor to ascertain the punitiveness of the order of termination. 27. Hon’ble Supreme Court in the case of Balbir Singh (supra) further held that when the termination is preceded by a full-scale formal enquiry into allegations involving misconduct which culminated in the finding of guilt, then such order may be punitive (paras 7 and 11). 28. 27. Hon’ble Supreme Court in the case of Balbir Singh (supra) further held that when the termination is preceded by a full-scale formal enquiry into allegations involving misconduct which culminated in the finding of guilt, then such order may be punitive (paras 7 and 11). 28. Again Hon’ble Supreme Court has reiterated the aforesaid principle in the cases reported in (2005)13 SCC 652 , State of U.P. and others v. Ashok Kumar, (2005)6 SCC 135 , State of U.P. and others v. Vijay Shanker Tripathi, (2006)9 SCC 167 , Hari Ram Maurya v. Union of India and others, (2008)2 SCC 479 , Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar and (2008)3 SCC 386 , Union of India and others v. Rajesh Vyas. 29. In a recent judgment reported in (2007)10 SCC 71 , Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation, Hon’ble Supreme Court held in para 9 as under : “The tests governing termination of probation is no longer res integra. When a disciplinary enquiry is initiated on the premise that there are serious allegations of misconduct on the part of the delinquent officer; his explanation thereupon had been rejected pursuant whereto a full-scale formal enquiry has been initiated culminating in a finding of guilt, the order terminating the service would be held to be stigmatic. There may also be cases where the allegations involved moral turpitude on the part of the delinquent officer. The language used in the order of termination of service may ex facie be stigmatic. The language used therein may also show that there was something over and above the assertion that the officer was found unsuitable for the job. The aforementioned tests, however, are not exhaustive.” 30. In view of the above, since regular enquiry was held and the enquiry officer submitted his report, indicting the petitioner’s conduct, it was not open for the respondents to pass an order under 1975 Rules. The order of termination under 1975 Rules could have been passed only in case a decision would have been taken at initial stage without holding regular enquiry. The statutory power conferred by a rule under Art. 309 of the Constitution like in the present case which flows from 1975 Rules (supra) cannot be utilised as a waiver to deprive the citizen or Government employee from the constitutional protection. The statutory power conferred by a rule under Art. 309 of the Constitution like in the present case which flows from 1975 Rules (supra) cannot be utilised as a waiver to deprive the citizen or Government employee from the constitutional protection. The right flowing from the Constitution in the form of compliance of natural justice or reasonableness or justness in the State action cannot be circumvented or diluted under the garb of statutory provisions like in the present case, 1975 rules. 31. Once the regular enquiry was held which seems to suffer from substantial illegality, then it was not open for the respondents to adopt recourse to 1975 Rules. It is not a case where the enquiry proceedings were dropped and recourse of Rules 1975 have been adopted. In the present case, reply was submitted to the charge-sheet and the enquiry officer has submitted his report. In such a situation, it was not open for the respondents to proceed under 1975 Rules by passing an order of termination. 32. The foundation of passing the impugned order of termination is the allegation of misconduct which was duly enquired by the enquiry officer but not in accordance with law. Since the very foundation of the impugned order of termination is the finding of fact recorded by the enquiry officer, it seems to be punitive in nature and is not liable to survive being hit by Art. 14 of the Constitution of India. 33. Though, learned Standing Counsel tried to defend the State action under the garb of 1975 Rules with the plea that the State has got power to pass a simpliciter order of termination of temporary Government servant but the Public Service Tribunal has also not accepted the plea raised by the State Counsel in this Court. Learned Tribunal also recorded a finding that the petitioner has been removed in pursuant to disciplinary enquiry and his services have not been terminated simpliciter. The tribunal also recorded a finding that it is a case of removal after proper enquiry and the petitioner has been punished in consequence of departmental enquiry. It is not a case of termination. Thereafter, the tribunal recorded a finding that the order of removal was passed in pursuance to regular departmental enquiry which does not suffer from any illegality. 34. It is not a case of termination. Thereafter, the tribunal recorded a finding that the order of removal was passed in pursuance to regular departmental enquiry which does not suffer from any illegality. 34. So far as the enquiry is concerned, as held in the preceding paras, it suffers from substantial illegality and not sustainable under law. On the other hand, since the impugned order of termination seems to be punitive in nature, the defence set up by the learned Standing Counsel under the garb of 1975 Rules is also not sustainable. The tribunal has failed to exercise jurisdiction vested in it. 35. Though while deciding the controversy in question, U.P. Public Service Tribunal has failed to exercise jurisdiction vested in it but since already more than a decade has passed, hence it shall not be proper to remand the controversy for decision afresh. Hence the controversy is adjudicated and set at rest by this Court. 36. Accordingly, writ petition deserves to be and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 4.11.1997 (Annexure-1), passed by the State Public Service Tribunal, Lucknow and the order of termination dated 30.9.1981 (Annexure-2). The petitioner shall be restored in service forthwith with consequential benefits. However, the petitioner shall not be entitled for payment of arrears of salary since he has not discharged duty but for all other purposes, he shall be deemed to be in service and shall be entitled for all benefits in accordance with rules. ————