DEVI PRASAD SINGH AND V. D. CHATURVEDI, JJ. Heard Smt. Aruna Mishra, learned standing counsel on behalf of the petitioners and Sri Shailendra Singh Chauhan learned counsel appearing on behalf of opposite party No. 1. Present writ petition under Article 226 of the Constitution of India has been preferred against the judgment and order dated 27. 2. 1993 (Annexure -1) passed by the U. P. Public Services Tribunal. 2. The opposite party No. 1, who is the member of Provincial Armed Constabulary (in short P. A. C.), had joined the force at Jhansi in the year 1984. The controversy in question relates allegation to the fact that the opposite party No. 1 while he was posted in Etawah, on account of misconduct, a notice dated 18th August, 1989 was served upon him, in response to which he submitted a reply. After receipt of reply, by an order dated 18th August, 1989 the private respondent was punished for ten days Physical Drill (P. D. ). Learned standing counsel submits that respondent No. 1 has refused to oblige the department to accept the punishment and proceeded on leave on 2nd September, 1989. Thereafter, his services have been terminated by an order dated 6th October, 1989. 3. Order of termination was assailed by the opposite party No. 1 before the U. P. Public Services Tribunal on the ground of its being violative of Article 311 (2) of the Constitution of India. It was pleaded before the Tribunal that the order of termination was not simplicitor and it has been passed as a measure of punishment without holding regular departmental enquiry. The Tribunal after hearing learned counsel for the parties and going through the record, recorded a finding that the order of termination is not a simplicitor one and has been passed in violation of Article 311 (2) of the Constitution of India, hence not sustainable. 4. Smt. Aruna Mishra, while assailing the impugned judgment and order (Annexure-1) submitted that the order of termination is simplictor one and does not cast stigma. It has been passed exclusively on the basis of the performance of the private respondent in the department, hence it cannot be treated as punishment and the Tribunals decision is not correct. 4. Smt. Aruna Mishra, while assailing the impugned judgment and order (Annexure-1) submitted that the order of termination is simplictor one and does not cast stigma. It has been passed exclusively on the basis of the performance of the private respondent in the department, hence it cannot be treated as punishment and the Tribunals decision is not correct. Rebutting the argument advanced by the learned standing counsel the counsel for the private respondent submitted that while exercising the power of judicial review, the Tribunal and this Court got power to lift the veil and in case it is found that termination order has been passed on account of certain misconduct, then such order shall not be sustainable being punitive in nature. 5. We have considered the arguments advanced by learned counsel for the parties at length and perused the record. There appears to be no dispute that immediately after the order of punishment for ten days physical drill was passed, the services of private respondent was terminated. It is also alleged that after award of punishment, the opposite party No. 1 had gone on leave and tried to disobey the order of punishment dated 18. 8. 1989 and not undergone the sentence of physical drill. 6. From the material on record, there appears to be no doubt that the order of termination is preceded by the punishment of physical drill and after a short span of time, the order of termination has been passed. The Tribunal has relied upon the judgment of Honble Supreme Court in Jagdish Mitter v. Union of India, AIR 1964 SC 449 and observed that the impugned order of termination casts stigma, since it has been passed as a measure of punishment. The Tribunal has observed that the impugned order of termination cannot be held as simplicitor as the reason behind passing the said order is the alleged misconduct of the private respondent. 7. It is settled proposition of law that even temporary Government servants are entitled for protection guaranteed by Article 311 of the Constitution of India. In case authorities want to dispense with the services of a temporary Government servant for misconduct, then they have to follow the course of regular enquiry before awarding the order of punishment. 8. It is also settled principle of law that even a temporary Government servant charged for misconduct is entitled to face regular enquiry. In case authorities want to dispense with the services of a temporary Government servant for misconduct, then they have to follow the course of regular enquiry before awarding the order of punishment. 8. It is also 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 Jagdish Prasad Singh v. State of U. P. , 1990 LCD 486; Avatar Singh v. State of U. P. , 1998 LCD 199; Town Area Committee, Jalalabad v. Jagdish Prasad, 1979 (1) SCC 60 ; Managing Director, U. P. Welfare Housing Corporation v. Vijay Narain Bajpai, 1980 (3) SCC 459 ; State of U. P. v. Shatrughan Lal, 1998 (6) SCC 651 ; Chandrama Tewari v. Union of India and others, AIR 1998 SC 117 and Anil Kumar v. Presiding Officer and others, AIR 1985 SC 1121 . 9. Simplicitor 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 dis continuance 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 Article 311 of the Constitution of India. Special Constitution Bench of Honble Supreme Court (Seven Honble Judges) in case in Shamsher Singh v. State of Punjab and another, AIR 1974 SC 2192 , had distinguished the motive and foundation. Honble 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 Honble Supreme Court (Seven Honble Judges) in case in Shamsher Singh v. State of Punjab and another, AIR 1974 SC 2192 , had distinguished the motive and foundation. Honble 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 Article 311 In such a case the simplicity of the form of the order will not give any sanctity. " 10. In the case of Shamsher 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 Honble 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 misconduct against a probationer or temporary servant, the employer must be presumed to have abandoned his right to terminate simplicitor 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 ). 11. 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 Dhingras case, AIR 1958 SC 36 (para 158 ). 12. Samsher Singhs case was again reiterated and explained by Honble Supreme Court in the case in Gujarat Steel Tubes Limited etc. etc. v. Gujarat Steel Tubes Mazdoor Sabha and others, AIR 1980 SC 1896 . 12. Samsher Singhs case was again reiterated and explained by Honble Supreme Court in the case in Gujarat Steel Tubes Limited etc. etc. v. Gujarat Steel Tubes Mazdoor Sabha and others, AIR 1980 SC 1896 . While considering distinction between motive and foundation, Honble 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 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. " 13. In a case in Om Prakash Goel v. Himanchal Pradesh Tourism Development Corporation Limited, Shimla and another, (1991) 3 SCC 291 , Honble 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) 14. 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. Honble Supreme Court treated it as an order of dismissal and quashed the termination order. 15. In a case, in Radhey Shyam Gupta v. U. P. State Agro Industries Corporation Limited and another, (1999) 2 SCC 21 : 1998 (4) AWC 201 (SC), Honble Supreme Court observed as under : "27. Honble Supreme Court treated it as an order of dismissal and quashed the termination order. 15. In a case, in Radhey Shyam Gupta v. U. P. State Agro Industries Corporation Limited and another, (1999) 2 SCC 21 : 1998 (4) AWC 201 (SC), Honble 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. The principle enunciated by aforesaid judgment (supra) has been reiterated in the case, in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, (1999) 3 SCC 60 : 1999 (2) AWC 1184 (SC ). In the case of Dipti Prakash Banerjee (supra), Honble 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. " 16. In the case in Chandra Prakash Shahi v. State of U. P. and others, (2000) 5 SCC 152 : 2000 (3) AWC 1848 (SC), Honble Supreme Court after considering the previous judgments of the Honble Supreme Court reiterated the aforesaid principle and observed that in case after scrutiny it is found that the order of termination is passed on misconduct, then such order shall amount to dismissal from service. 17. In the case in Afar Singh Pal v. Union of India and others, (2000) 3 SCC 588 : 2000 (2) AWC 1499 (SC), Honble 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 simplicitor order of retrenchment and shall be punitive amounting to dismissal. 18. 18. However, in a case in State of Punjab and others v. Sukhwinder Singh, (2005) 5 SCC 569 , where the services of a probationer were terminated without any departmental enquiry or fact finding enquiry, purely keeping in view the ability, efficiency and seniority in service, Honble Supreme Court observed that the order of termination is not punitive but is a simplicitor and Article 311 of the Constitution of India is not attracted. 19. In another case in A. P. State Federation of Coop. Spinning Mills Limited and another v. P. V. Swaminathan. (2001) 10 SCC 83 : 2001 (2) AWC 1291 (SC), while considering a question as to whether the order of termination is simplicitor or punitive, Honble Supreme Court held that even if an order of termination is simplicitor, 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) 20. Honble Supreme Court has reiterated the aforesaid principle in the cases in Bank of India v. Indu Rajagopalan and others, (2001) 9 SCC 318 ; Shailaja Shivajirao Patil v. President, Honble Khasdar U. G. S. Sanstha and others, (2002) 10 SCC 394 : 2002 (1) AWC 681 (SC); Dhananjay v. Chief Executive Officer, Zila Parishad. Jalna, (2003) 2 SCC 386 : 2003 (2) AWC 998 (SC); Mathew P. Thomas v. Kerala State Civil Supply Corporation Limited and others, (2003) 3 SCC 263 : 2003 (2) AWC 1193 (SC) and State of Punjab and others v. Balbir Singh, (2004) 11 SCC 743 . 21. In the case of Balbir Singh (supra), Honble 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. 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 simplicitor and not punitive in nature. The nature of enquiry is another factor to ascertain the punitiveness of the order of termination. Honble 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 ). 22. Again Honble Supreme Court has reiterated the aforesaid principle in the cases in State of U. P. and others v. Ashok Kumar, (2005) 13 SCC 652 : 2006 (5) AWC 4293 (SC) : State of U. P. and others v. Vijay Shanker Tripathi, (2005) 6 SCC 135 : 2005 (6) AWC 5367 (SC); Hart Ram Maurya v. Union of India and others, (2006) 9 SCC 167 ; Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar, (2008) 2 SCC 479 : 2007 (7) AWC 7447 (SC) and Union of India and others v. Rajesh Vyas, (2008) 3 SCC 386 . 23. In a recent judgment in Jaswant Singh Pratap Singh Jadeja v. Rajkot Municipal Corporation, (2007) 10 SCC 71 , Honble 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 culminated 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. " 24. 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. " 24. In view of settled proposition of law, we do not find that the impugned judgment and order passed by the Tribunal suffers from any impropriety or illegality. While allowing the claim petition, the Tribunal has also given liberty to proceed afresh in accordance with due compliance of Article 311 of the Constitution of India. Since no interim order was passed by this Court, the opposite party No. 1 was restored in service and he is discharging his duties and nothing has been brought on record which may indicate that after delivery of judgment by the U. P. Public Services Tribunal the work and conduct of the private respondent are not satisfactory. 25. In view of the above, we are not inclined to interfere with the impugned judgment and order passed by the U. P. Public Services Tribunal. However, so far as the payment of arrears of salary is concerned, we provide that the opposite party No. 1 shall not be entitled for payment of arrears of salary prior to the period of the delivery of judgment by the U. P. Public Services Tribunal, i. e. , 27th February, 1993, in case already not paid. However, he shall be entitled for other benefits. 26. Subject to the aforesaid observations and modifications the writ petition is dismissed. .