JUDGMENT
Bahadur, J.
1. This is a petition under Article 226 of the Constitution against the order of the Collector of Shahabad dated the 19th May, 1964, terminating the services of the petitioner with effect from the 19th June, 1964.
2. The petitioner was appointed to the post of Kalyan Graingoia Sevak, otherwise known as Thana Welfare Officer, on temporary basis, and he joined the post at Arrah on the 23rd November, 1956. After sometime he was transferred to Chanari Block in Sasaram Subdivision, It appears that on the 22nd March, 1959, one Mt. Ballia made a complaint against the petitioner at the Chanari police station that he had committed rape on her. The matter was investigated by the police, who found the allegation to be false and the petitioner, who was made an accused, was consequently discharged by the order of the Sub-divisional Officer dated the 24th November, 1959, (Annexure ‘A’ to the petition) That in October, 1960, the petitioner was transferred in the same subdivision of Sasaram to one Kargahar Block, and in May, 1964, the petitioner received the following order of discharge passed by the Collector of Shahabad:
“Memo No. 1180/W
Shahabad Collectorate. Dated, Arrah the 19 May, 64.
To,
Shri Dhananjai Singh
Kalyan Graingoia Sewak, Kargahar.
You are hereby informed that your services will be terminated on the expiry of one month from the date of issue of this notice and that you should treat yourself discharged with effect from the said date i.e. from 19-6-64.” (Annexure ‘B’ to the petition).” Against this order, the petitioner moved the Commissioner of Patna Division and the Commissioner passed an order which was conveyed to him by the Regional Development Officer by a Memo dated the 18th June, 1965. The order is in the following terms:
“There is no provision for appeal against termination of services of temporary Government Servants and hence the petition filed by Shri Dhananjai Singh. Ex. Thana Welfare Officer, Kargahar against the order of Collector, Shahabad terminating his temporary services cannot be entertained. The petition is disposed of accordingly.”
3. Mr. Jagat Narain Prasad Sinha, on behalf of the petitioner raised the following two grounds:
(i) That the petitioner’s discharge from service was not a purely termination of service but was a punishment, and as such ha was entitled to the protection of Article 311 (2) of the Constitution.
and (ii) That the petitioner had an excellent service record and the order of dicharge must, therefore, be held to be punishment and as such it was mala fide. In my opinion, neither of these grounds can stand.
4. On the points raised by Mr. Sinha, the principal question for consideration in this case is whether the petitioner, who was appointed as a temporary servant, was entitled to the protection of Article 311 of the Constitution, and whether the order of discharge is by way of punishment. It will, therefore, be convenient to deal with the said two points together as they more or less overlap.
5. Mr. Sinha has contended that after the matter was dropped by the Sub-divisional Officer by his order dated the 24th November, 1959, the Superintendent of Police had written to the Collector on the 9th September, 1960, that after proper investigation the case against the petitioner was found to be false, which was started on account of enmity by some persons of Chanari Block, and the matter had been taken to the higher authority by one of the enemies and it was referred to the then Collector of the District (Mr. S.S. Dhanwa,) who, after making necessary enquiries, informed the Government that since the allegations against the petitioner were false, there was no ground to take any action against him, but that he might be transferred from Chanari. He was, therefore, transferred to Kargahar Block in October, 1960. Learned counsel has urged that after the transfer of Mr. Danawa, another Collector, Mr. Nandeshwar Prasad was posted at Arrah. He again took up the matter, on being pressed by the Government and informed the secretary of the Welfare Department to Government that in his opinion the petitioner was not entirely free from blame and suggested discharge of the petitioner, as he was on temporary basis. Consequently, the petitioner was discharged. Learned counsel’s submission is that once the matter had been enquired into and the then Collector (Mr. Dhanwa) had closed the matter, the reopening of the matter is clearly mala fide and the discharge must necessarily amount to punishment.
6. In my judgment, the submission is untenable, because, Mr. Prasad, who succeeded Mr. Dhanwa as Collector was not bound by the opinion expressed by his predecessor and it appears from his letter dated the 10th September, 1961, addressed to the Secretary, Welfare Department, (Annexure V) that he had given reasons for recommending that the services of the petitioner should be terminated after giving him a month’s notice without assigning any reason. It appears from this letter that he has examined the matter in great detail and took the view that there might be some truth in the allegation against the petitioner for which he was not entirely free from blame. He has given six grounds, which, in my opinion, are good grounds by which the Collector could take the view, as he has done, that the allegations might not have been proved in a criminal court beyond reasonable doubt, yet these materials were sufficient to have reasonable suspicion against the allegations made against the petitioner. Having examined the matter carefully, I am satisfied that the petitioner could not be said to be entirely free from blame in this matter and the Collector was, therefore, right in taking the view that as he was a Welfare Officer in the Block the allegations were serious and as such his services should be terminated after giving him proper notice.
7. Mr. Sinha has further contended that the record of service of the petitioner was very good and his efficiency was highly commended and appreciated by the officers of the Department, because he had made large collections of rent and had also made collection of gold for the National Defence Fund during the Chinese aggression. The annual remark also shows that the petitioner had good character and he was declared to be the best among the Block staff and his promotion had been recommended by the authorities. Cause has been shown by the State and it is said that the petitioner’s work was no doubt satisfactory but he was of average efficiency and lacked drive. The remarks are contained in Annexure I. It is true that the petitioner’s work was otherwise found to be satisfactory and he had obtained fairly good remarks but this by itself would not support the contention raised by Mr. Sinha that he could not have fallen into a lapse as was alleged against him, for which he was made an accused in a case under Section 376 of the Indian Penal Code.
The motive behind the order of termination from service is immaterial and it is now well settled that the court is not concerned with the motive behind the order. There can be no doubt that the Government may take the allegations against the petitioner into consideration and may have rightly thought that the petitioner being a Welfare Officer was not proper person to be retained in service any further and, as such, as he was appointed on a temporary basis, should be given one month’s notice before he was discharged. In my opinion, the protection afforded to a servant under Article 311 of the Constitution is not available to the petitioner on the facts of this case.
8. Mr. Sinha has based his case on the decision of the Supreme Court reported in S. Sukhbans Singh v. State of Punjab, AIR 1962 S C 1711. In this case their Lordships of the Supreme Court observed that Article 311 made no distinction between permanent and temporary posts and extended its protection equally to all Government servants holding permanent or temporary posts or officiation in any one of them But the protection under Article 311 could be available only where dismissal, removal or reduction in rank was sought to be inflicted by way of punishment and not otherwise One of the tests for determining whether the termination of service was by way of punishment or otherwise was whether under the Service Rules but for such termination the servant had fix right to hold the post. The appellant in Sukhbans Singh’s case was a directly recruited Tehsildar appointed in the year 1936 and, according to him, his work was found to be extremely satisfactory and was, therefore, promoted to an Extra Assistant Commissioner on probation in 1946. In 1952, he was reverted to the post of Tehsildar by an order duly served on him. This order was followed by a warning served on him on September 18, 1953, and in this warning it was clearly stated that the officer was guilty of misconduct in several respects. The officer challenged the validity of the order reverting him to the post of Tehsildar on the ground it amounted to punishment, and he also alleged that it was the result of male fides The Supreme Court considered the relevant material adduced in the proceeding, which showed that the record of the officer was extremely satisfactory and that the order reverting him showed that the Government was acting mala fide.
9. Mr. Sinha’s contention is that the case of the petitioner is completely covered by the decision in Sukhbans Singh’s case because. In the present case, the order of discharge terminating the service of the petitioner is based on mala fides as Collector was of the view that the petitioner was not altogether free from blame in the criminal case. In my opinion the submission of learned counsel is without substance, because, the motive appearing in the mind of the authority in terminating the services of the temporary servant, like the petitioner, does not alter the character of the termination and it is not material whether Article 311(2) is attracted to such termination.
In a latter decision of the Supreme Court in Jagdish Mitter v The Union of India, AIR 1964 SC 449, where their Lordships have examined a large number of decisions on the application of the provisions of Article 311, it has been held that every order terminating the service of a public servant, who is either a temporary servant, or a probationer, will not amount to dismissal or removal from service within the meaning of Article 311 It is only when the termination of the public servant’s services can be shown to have been ordered by way of punishment that it can be characterised either as dismissal or removal from service Their Lordships have further observed that it is now well settled that the protection of Article 311 could be invoked not only by permanent public servants, hut also by public servants who are employed as temporary servants, or probationers and so, if a temporary public servant or a probationer is served with an order by which his services are terminated, and the order unambiguously indicates that the said termination is the result of punishment sought to he imposed on him, he can legitimately invoke the protection of Article 311 and can challenge the validity of the said termination on the ground that the mandatory provisions of the Article 311 (2) have not been complied with.
10. In that case the appellant was appointed temporary Second Division Clerk in the General Post Office, Lahore for a period of six months, in October, 1946. At the end of the initial period of six months his appointment was continued from time to time until he was posted in the office of the Post Master General at Ambala in August, 1947 Whilst he was working in that post, the impugned order was passed by which his services were terminated. The order discharging him was in the following terms:
“Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month’s notice of discharge, with effect from November, 1, 1949.”
11. Their Lordships of the Supreme Court after examining the fact and after discussing the various decisions of the Supreme Court held that when the order referred to the fact that the servant was found undesirable to be retained in government service, it expressly cast a stigma on the servant and in that sense, it had to be held to be an order of dismissal and not a mere order of discharge. It is, therefore, clear that in the instant case the order of discharge, referred to earlier (vide Annexure ‘B’) does not show that the petitioner was found to be undesirable to be retained in service and it merely said that his services would be terminated on the expiry of one month from the date of issue of notice. As such, the order of discharge cast no aspersion against the petitioner and attach ed no stigma to his character.
12. The appointment of the petitions to the post of Thana Welfare Officer was temporary and, therefore, he had no right to the post held by him and his services could be terminated on giving him one month’s notice, which had been done in this case. I am, therefore, of the view that, as the petitioner’s services were purely temporary he had no right to the post and the order of this charge could not be said to be punishment
13. In Jagdish Mitter’s case, AIR 1964 SC 449 the decision in Sukhbans Singh’s case bas been explained in paragraph 18 of the Report at page 456 and it will be useful to reproduce the relevant portion below:
Thus, the decision in this case was based mainly, if not solely on the ground that the reversion of the officer was mala fide. It is true that in the course of the judgment, this Court has observed that having regard to the sequence of events which led to the reversion followed by the warning administered to the officer considered in the light of his outstanding record, the revision could also be held to be a punishment, but the officer’s plea which proved effective was the plea of mala fides against the Government”.
Thus, the ratio decidendi in Sukhbans Singh’s case, AIR 1962 SC 1711 is that even where no reasons were given for termination, it can be shown from the antecedent and other circumstances that it was mala fide mid intended to be penal. In the present case the petitioner has not been able to substantiate his plea of mala fide. It is, however, true that the reason behind Government’s order is clearly the reason that the petitioner had been implicated in a criminal case, which, though could not stand scrutiny by a criminal court, yet was sufficient to hold that the petitioner was not a proper person to be entrusted with the work of the Thana Welfare Officer, and as such his services could no longer be retained. The impugned order does not say that it was undesirable to continue his service and it further does not say that any stigma had been attached to him. All that it says is that his services would be terminated on the expiry of one month, for the reason that he was a temporary servant. I am, therefore, of opinion that the points raised by learned counsel have no substance and must be rejected. I do not think that the provisions of Article 311(2) are attracted to the facts of this case. There can be, however, no doubt that the impugned order is a simple order of discharge in which no aspersion has been cast against the petitioner and no stigma attaches to his character.
14. For the foregoing reasons, the petition fails and is rejected. In the circumstances of the case, there will be no order for costs.
Narasimham, C.J.
16. I agree.