JUDGMENT : Heard learned advocate Mr. Jal Soli Unwalla with learned advocate Mr. Jit Patel for the petitioner and learned advocate Mr. Nilesh Pandya for the respondent - Corporation. 2. The challenge in this petition is directed against order dated 18th May, 2016 passed against the petitioner terminating his services. 3. The petitioner was appointed on 21st July, 2012 on the post of Assistant Station Officer upon being selected by the Selection Committee. The conditions on which he was appointed were reflected in the appointment order. It appears that show-cause notice dated 28th April, 2016 came to be issued to the petitioner in which allegations about misconduct were levelled. It was stated that while serving in the Fire Brigade Branch of the Vadodara Municipal Corporation on the post of Assistant Station Officer, the petitioner misbehaved with the Telephone Operator and tried to injure the Telephone Operator physically. It was stated that petitioner was habituated to commit such misconduct and while serving on the sensitive post, he acted with negligence and carelessness in discharge of duties and committed breach of Gujarat State Civil Services (Discipline and Conduct) Rules, 1971, even while on probation. 3.1 The petitioner was called upon to explain as to why his services should not be terminated for the aforesaid acts and conducts in view of conditions mentioned in the letter appointment. The petitioner replied on 06th May, 2016 and submitted that he had discharged his duties on all occasions diligently and he was serving with due dedication. It was stated that all allegations mentioned in the show-cause notice were based on false submissions made by Telephone Operator one Jagdishbhai R. Patel. It was stated by the petitioner that he had grievance about his promotional right being denied in future, in respect of which he had addressed a letter to Vigilance Commissioner and that such act was not liked by the Corporation. It was stated by the petitioner that during his four years period of service there was no complaint against him and that on several occasions, he had received urgent calls and discharged his duties at the time of fire. It was stated by the petitioner that during his four years period of service there was no complaint against him and that on several occasions, he had received urgent calls and discharged his duties at the time of fire. 3.2 Then immediately followed the impugned order in which it was inter alia stated that the petitioner has committed breach of the Discipline and Conduct Rules, 1971, that he had behaved untoward with the Telephone Operator, that he had committed act of insubordination time and again, that he was not reporting to duty regularly and he was habituated to commit misconduct. It was stated that such conduct on part of the petitioner who was holding the sensitive post could not be accepted and that the petitioner had failed to discharge his duties by acting with negligence. With recitals as above, it was mentioned in the order that services of the petitioner was not liable to be continued and was required to be terminated. The order provided for termination of petitioner’s services and further required recovery of amount, if any due from the petitioner. 4. Learned advocate for the petitioner submitted that the impugned order of termination was arbitrary and was not preceded by any inquiry. It was submitted that the petitioner was victimised, and that junior of the petitioner was favoured and was sent to training for promotional post of Divisional Fire Officer at Nagpur. It was stated that Special Civil Application No.5116 of 2016 was also filed by the petitioner raising grievance on the said count because of which, the respondent had developed hostile attitude against the petitioner and passed the order without holding any inquiry. It was submitted that order was punitive in nature and to further his submission, relied on the decision in Ratneshkumar Chaudhari v. Indira Gandhi Institute of Medical Services [ (2015) 15 SCC 151 ]. It was submitted that a punitive order founded on the allegations of misconduct could not have been passed without conducting inquiry. It was submitted that order was punitive in nature and to further his submission, relied on the decision in Ratneshkumar Chaudhari v. Indira Gandhi Institute of Medical Services [ (2015) 15 SCC 151 ]. It was submitted that a punitive order founded on the allegations of misconduct could not have been passed without conducting inquiry. 4.1 Learned advocate for the respondent relied on affidavit-in-reply filed on behalf of the Corporation to submit that the petitioner was appointed on a fixed salary for a fixed period of five years on 21st July, 2002 and that in the order of appointment it was specifically mentioned that his tenure was of fixed term and it was further highlighted that as per condition No.12, his service was liable to be terminated without any notice any time. Learned advocate for the respondent further submitted that in view of the nature of employment of the petitioner, he had no right to the post and the order of termination was passed for the reasons mentioned therein which was after giving notice to him. 4.2 In support of his submissions, learned advocate for the respondent relied on decision of the Apex Court in State of Uttar Pradesh v. Kaushal Kishore Shukla [ (1991) 1 SCC 691 ]. On that basis he submitted that if service of an ad-hoc and temporary government servant was terminated on the ground of unsuitability upon assessment of his work, there would be no violation of Articles 14 and 16 of the Constitution in such a situation. Learned advocate submitted that when the petitioner who was a temporary government servant on contractual basis was subject to order of termination, there was no illegality in it as his work and the behaviour was objectionable and he did not show commitment and attendance towards his work, and committed breach of Discipline and Appeal Rules as stated in the impugned order. What learned advocate highlighted was that the respondent was a fixed term employee and his termination was actuated in accordance with the terms of employment. 5. In wake of the impugned order, the question arise is as to whether the order was punitive and whether it ought to have been preceded with an inquiry against the petitioner in respect of what is alleged in the impugned order, even though the petitioner was a temporary employee appointed for five years. 5. In wake of the impugned order, the question arise is as to whether the order was punitive and whether it ought to have been preceded with an inquiry against the petitioner in respect of what is alleged in the impugned order, even though the petitioner was a temporary employee appointed for five years. 5.1 In judging whether termination is simpliciter or punitive, a trite distinction is made between motive of the order and foundation of the order. In Chandra Prakash Shahi v. State of U.P. [ (2000) 5 SCC 152 ], the Supreme Court explained the concept of motive and foundation in respect of probationer as under:- “Motive is the moving power which impels action for a definite result, or to put it differently, motive is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? It if was the factor of general unsuitability of the employee for the post held by him, the act would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were to be true in the preliminary inquiry.” (para 29) (emphasis supplied) 5.2 The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha [ (1980) 2 SCC 593 ] stated and observed thus,- "53. 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. 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, 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 proceeding 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." (Emphasis supplied) (Para 9) 5.3 Having delineated the aforesaid principles, the Apex Court held that the order in the case before it could not be treated as a simple order of retrenchment and that it was an order passed by way of punishment. It was held that such order of dismissal which was passed without holding a regular departmental inquiry cannot be allowed to be sustained. 5.4 The above statement of law that if the order is punitive and stigmatic in nature, even if the employee concerned is a temporary employee or holding the post as on probation, his dismissal or removal would warrant a regular inquiry and full-fledge compliance of natural justice, emanaged from the early decision of the Apex Court in Anoop Jaiswal v. Government of India [ (1984) 2 SCC 369 ]. In that case, the Apex Court held that it is permissible for the Court to go behind the formal order of discharge so as to find out the real cause of action. In that case, the appellant was an IPS Officer, undergoing training as a probationer, arrived late by about 22 minutes at the place, even though prior intimation was sent about the time on which, the candidates were required to reach the venue. In that case, the appellant was an IPS Officer, undergoing training as a probationer, arrived late by about 22 minutes at the place, even though prior intimation was sent about the time on which, the candidates were required to reach the venue. The incident of delayed reporting was considered to be one by the authorities calling for an inquiry and an explanation was sought for from the petitioner and all other probationer-trainees who had arrived late. On the basis of explanation, the Director recommended the Government for discharge of the appellant from service. The Government passed order of discharge on the basis of recommendation of the Director with whom, the only ground prevailing was that the appellant did not show any sign of repentance. The High Court dismissed the Writ Petition. However, the Supreme Court allowed the Appeal and held that the order was punitive. The appellant was directed to be reinstated with full benefits. 5.5 The principle stated was that even the form of the order may be merely a camouflage for order of dismissal actually passed on the basis of misconduct. In such circumstances, the Apex Court stated, it is always open to the court before which the order is challenged, to go beyond the form and ascertain the true character of the order. The Supreme Court held,- “If …. …. …. the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground where the aggrieved officer is not afforded a reasonable opportunity to defend himself as provided in Article 311(2). It is wrong to assume that it is only when there is a full scale departmental enquiry any termination made thereafter will attract the operation of Article 311(2).” (Paras 11 and 13) 5.6 It is the foundation of the order which really matters. It is wrong to assume that it is only when there is a full scale departmental enquiry any termination made thereafter will attract the operation of Article 311(2).” (Paras 11 and 13) 5.6 It is the foundation of the order which really matters. The Supreme Court in Anoop Jaiswal (supra) stated that if from the record and the attendant circumstances of the present case it becomes clear that the real foundation for the order of discharge of the appellant-probationer was the alleged act of misconduct, the impugned order would amount to termination of service by way of punishment and in absence of any enquiry held in accordance with Article 311(2), it was liable to be struck down. The Supreme Court thereafter directed reinstatement of the appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all. 5.7 In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [ (1999) 2 SCC 21 ] observed that the proposition of law operating two ways. In certain cases of temporary servants and probationers if the inquiry undertaken about the very conduct forms the motive of termination order, then the termination could not be said to be punitive merely because principles of natural justice have not been followed. In such circumstances, without becoming stigmatic, the employer can exercise its right to terminate service of the employee concerned. In the other line of decisions, the Supreme Court has ruled that if the facts revealed in the inquiry or from the narration of the order itself that the inquiry into the conduct was not the motive but it was a foundation and the allegation of misconduct considered against employee becomes foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted observations from Gujarat Still Tubes Limited (supra) terming them as instructive. 6. When the impugned order is assessed, evaluated and considered in light of the aforesaid principles, it is even not necessary to adopt the process of lifting of veil. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted observations from Gujarat Still Tubes Limited (supra) terming them as instructive. 6. When the impugned order is assessed, evaluated and considered in light of the aforesaid principles, it is even not necessary to adopt the process of lifting of veil. It is not necessary to remove the facade even, for, the order in these very recitals could be manifestly said to be based on allegations of misconduct. The plain reading of order castes stigma. It is a stigmatic action of termination of petitioner's service. Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a fullfledge opportunity to defend and thus by holding a regular departmental inquiry. The employer is not allowed to hire and fire employee. Even if the temporary, ad-hoc or probationer employee is driven out of service on the ground of misconduct without holding inquiry and stigma is caste on his career by the punitive order, it is also a facet of behaving with hire and fire attitude by the employer. 6.1 A bare reading of impugned order dated 18th May, 2016 goes to show that it was mentioned therein that the petitioner had behaved untoward with a Telephone Operator. It was stated that the petitioner took law in his hand and there was a dereliction in discharge of duties and he had committed breach of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971. The order unequivocally stated that as a government servant he was negligent and careless in discharge of his duties and though he was on a sensitive post of Assistant Station Officer, because of his behaviour and conduct, his services were liable to be terminated. It was mentioned that the explanation called for from the petitioner was not acceptable and in view of carelessness and negligency, his services were terminated. Evidently a stigmatic order it was containing allegations and mentioning of misconduct. The recitals in the impugned order themselves show the live nexus between misconduct alleged against the petitioner and the action of termination of his service by the employer. Evidently a stigmatic order it was containing allegations and mentioning of misconduct. The recitals in the impugned order themselves show the live nexus between misconduct alleged against the petitioner and the action of termination of his service by the employer. 6.2 Therefore, the petitioner is entitled to be reinstated in service, however since he was appointed on 21st July, 2012 for five years and termination of services was affected on 18th May, 2016, he would be entitled to continue on the post for the remainder period to make the total period for which he was appointed. 7. For the foregoing reasons and discussion, the action on part of the respondents in terminating the services of the petitioner is declared and held to be illegal. The impugned order of terminating the services dated 18th May, 2016 is hereby quashed. The respondents are directed to take back the petitioner in service on his original post and position with continuity of service and salary/wages for the interregnum as well as all consequential benefits as if the order of termination was not passed. Reinstatement of the petitioner directed by this order shall be upto the original period of his employment as per the order of appointment. The resultant monetary benefits shall be paid to the petitioner within a period of 08 weeks from the date of receipt of this order, which is permitted to be served directly, at the option of the petitioner. FURTHER ORDER At this stage, learned advocate Mr. Nilesh Pandya prays for stay of the aforesaid order for six weeks in order to approach higher forum. Since the respondent wants to approach higher forum, the present order may not be implemented for a period of six weeks. Petition allowed.