ORDER
Y.B. Suryavanshi, J.
1. The petitioner Ashokbabu Jaduvanshi, an ex-Process Writer on the establishment of the District Court, Jhabua, has filed this petition under Articles 226/227 of the Constitution of India challenging the order of termination of his services (Annexure ‘C’) dated 6-3-1985, passed by the District and Sessions Judge, Jhabua, on the ground that the services of the petitioner are terminated with effect from 6-3-1985 as no longer required.
2. It is common ground that the petitioner belongs to Class-Ill category of employees. He was appointed on 26-8-1982 as Process Writer until further orders, with a condition that he would appear for interview when held and in the event of the petitioner’s being unsuccessful in the interview, he would be relieved, without notice (Order dated 26-8-1982, Annexure ‘A’). Thereafter, he was attached in the Record Section till 15-7-1984 and then posted vide order No. 302 dated 12-7-1984, as Process Writer, where he continued to work as such till 28-2-1985. The petitioner was arrested by police, Jhabua on charges under section 302/201, Indian Penal Code on 1-3-1985 and was in district Jail, Jhabua, till 13-5-1985 when he was released on bail by the order of the High Court dated 9-5-1985. While in Jail, he was served an order of suspension passed by the District and Sessions Judge, Jhabua (respondent No. 2) on 5-3-1985 (Annexure ‘B’). The suspension order stated, that there is a report by the Town Inspector against the petitioner, who is a temporary public servant, of being arrested in Crime No. 31 of 1985 under section 302/201, Indian Penal Code and, therefore, under Rule 9 of the M.P. Civil Servants (Classification, Control and Appeal) Rules, 1966 (hereinafter, referred to as “the Rules”), the petitioner is suspended. There is also no dispute that on the following day of the suspension order, i.e. on 6-3-1985, the District and Sessions Judge passed the impugned order Annexure ‘C’ stating that the services of the petitioner a temporary Process Writer on the establishment of the District and Sessions Judge, Jhabua, are terminated with effect from 6-4-1985 as no longer required.
3. The petitioner’s case is that he submitted an application on 13-5-1985 for reinstatement followed by the subsequent reminder dated 16-5-1985, but his application was dismissed by respondent No. 2, vide order dated 29-5-1985 (Annexure ‘D’). The impugned order is challenged mainly on the ground that the petitioner was not afforded an opportunity of being heard before passing of the impugned order; that the service of the order of suspension and termination of services on the same day is in violation of the provisions of the Rules; that before imposing a major penalty, i.e. removing him from service, he was not afforded an opportunity to show cause or of being heard; that the impugned order has been passed without holding an enquiry. Hence, the prayer is that the impugned order be quashed by a suitable writ or direction.
4. Respondent No. 2 filed return stating, that the appointment of the petitioner was temporary, on conditions as alleged but there is nothing on record available to show that the petitioner appeared in the interview and was successful; that in the context of the criminal case pending the services of the temporary employee have been terminated by giving him one month’s notice according to Rule 12(a) of the M. P. Government Servants (Temporary and Quasi Permanent) Rules, 1960, and which are in accordance with law and there has not been any contravention of the principles of natural justice; that there was no necessity of holding a Departmental Enquiry as the appointment was purely on temporary basis and that too on the conditions mentioned in the appointment order; that the Sessions Trial No. 2 of 1987 on the basis of the said charges is pending in the Court of the Sessions Judge, Jhabua.
5. The petitioner filed a rejoinder disputing the averment that there was no interview; that Annexure R-2 dated 12-7-1984 further clarifies that 4 other persons besides the petitioner were interviewed and have been posted at proper places; that the impugned order is innocuous and the actual intention behind it is that it was based on the pending criminal case in which the petitioner was arrested and suspended; that it is not a case of termination simpliciter but in fact based on the background of criminal case against the petitioner; that the criminal case, vide judgment dated 12-1-1989 ended in acquittal, and on the principle of ‘last come first go’, the services of other Process Writers appointed after him and who were junior to him, should have been terminated before the termination of his services; that, therefore, it would be clear that the services of the petitioner have not been terminated as no longer required, much less on the ground that the post was also abolished.
6. The short question, which falls for consideration is : whether the impugned order terminating the services of the petitioner is innocuous order of termination simpliciter passed in accordance with the terms and conditions of the appointment order or in substance, based on the circumstance of the criminal case against the petitioner though it is couched in innocuous terms.
7. The learned counsel for the petitioner, Shri K. L. Sethi strongly relied on two decisions for the submission that mere form of the order is not sufficient to hold that the order of termination was innocuous. Where the order of termination is simpliciter in accordance with the terms of appointment without attaching any stigma to the employee, then the substance of the order, i.e. the attending circumtances as well as the basis of the order that have to be taken into consideration. When an allegation is made assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil to see the real circumstances as well as the basis and foundation of the order complained of. The Court in such a case will lift the veil, and will see whether the order was made on the ground of misconduct/inefficiency or not. Basing those submissions on Jarnail Singh and Ors. v. State of Punjab and Ors., A.I.R. 1986 S.C. 1626, it was urged that the impugend order though couched in innocuous terms and does not attach any stigma, but it has been passed just one day after the order suspending the petitioner. It was also urged that the services were terminated as no longer required but Ors. have been retained and continued. The other decision relied upon is Smt. Rajinder Kaur v. Punjab State and Anr., A.I.R. 1986 S.C. 1790. In our view, both the decisions are quite distinguishable on their own facts. In A.I.R. 1986 S.C. 1790 (supra), a Lady Constable after completion of training, was posted in Police Lines, Hoshiarpur. The Superintendent of Police discharged her by an order in the following terms : “Lady Constable Rajinder Kaur No. 732 is unlikely to prove an efficient police officer. She is, therefore, hereby discharged from the Police Force under P.P.R. 12.21 with effect from today (9-9-1980).” The main contention was that it was made by way of punishment and not simply in accordance with the conditions of appointment and the rule concerned. This was a case where an enquiry was made by the D.S.P. as to the character of the appellant into the allegation that she stayed one or two nights with a constable and evidence was recorded therein without giving the appellant any opportunity of hearing in the enquiry and without giving her any opportunity of cross examination of the witnesses and the impugned order was made after the completion of the investigation on the ground of her misconduct, which caused a stigma on her service career. Therefore, it was held that though the order of discharge was in accordance with the conditions of service but it was merely a camouflage for an order for dismissal from service on the ground of misconduct. Since it was passed without giving an opportunity to cross-examine the witnesses in the enquiry, it was in total contravention of the provisions of Article 311(2) of the Constitution. In Jarnail Singh’s case (supra), the petitioners were surveyors and we find that there were specific averments by the petitioners (refer para. 9) supported by affidavits that the action of termination was founded in fact on allegations of serious misconduct as they were accused of certain shortage. Therefore, on facts of that case, it was held, that the orders of termination of services were liable to be quashed as they are not termination simpliciter according to the terms of the appointment without any stigma and the mandatory procedure prescribed by Article 311(2) of the Constitution is violated.
8. State of Punjab v. Sukharaj, A.I.R. 1968 A.C. 1089 was one of the decisions which was referred, wherein it has been held that the services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. The circumstance preceding or attendant on the order of termination has to be examined in each case, the motive behind it being immaterial. Still another decision in State of Bihar v. Shiv Bhikshuk Mishra A.I.R. 1971 S.C. 1011 was considered, wherein the Apex Court has held that:
“So far as we are aware, no such rigid principle has ever been laid down by this Court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government Officer, it must be held to have been made in the ordinary course of administrative routine and the Court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct.” …..”But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.”
9. In the instant case, the order of suspension passed under Rule 9 of the Rules is only a sequel rather automatic. Rule 9 reads :-
9. (1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor, by general or special order, may place a Government servant under suspension –
(a) xx xx xx xx xx (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial. (2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority - (a) with effect from the date of his detention, if he is detained in custody whether on a criminal charge or otherwise, for a period exceeding forty-eight hours. (b) xxx xx xxx xx xxx
10. It is not disputed that the petitioner was arrested and on his own averments, he had been in jail from 1-3-1985 to 13-5-1985 when he was released on bail. It is not, therefore, surprising that when the fact was reported, the appointing authority passed the suspension order on 5-3-1985. The grievance of the learned counsel for the petitioner is that the impugned order was passed on the very next day. Undisputedly, the petitioner is a temporary employee. The only preceding or attendant point in the case before us is that the order of termination was passed in the wake of the arrest. It appears that arrest of a court employee on serious criminal charges only furnished a motive for the termination, to reiterate State of Punjab v. Sukhraj (supra) that is immaterial. There was no further enquiry overt or confidential and the impugned order did not attach any stigma.
11. (a) This brings us to the consideration of Rule 12 of the Rules, which reads as under :
“12. (a) Subject to any provision contained in the order of appointment or in any agreement between the government and the temporary government servant, the service of a temporary Government servant, who is not in quasi-permanent service, shall be liable to termination at any time by notice in writing given either by the government servant to the appointing authority or by the appointing authority to the Government servant:
Provided that the services of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing then immediately before such termination, or, as the case may be, for the period by which such notice falls short of one month:
Provided further, that the payment of allowances shall be subject to the conditions under which such allowances are admissible.
(b) The period of such notice shall be one month unless otherwise agreed between the Government and the Government servant.”
(b) This rule gives the Government servant as well as the appointing authority a right to terminate the employment of a temporary Government servant. A permanent Government servant has a right to the post and his services cannot be terminated without following the procedure laid down in the Disciplinary Rules. There was no question of considering the misconduct at the stage when the trial would have taken its own course according to law. The termination was not by way of any punishment to attract Article 311 of the Constitution of India. A few decisions may be referred with advantage. In the case of Ramgopal Chaturvedi v. State of M.P., 1969 MPLLJ (SC) 706 = A.I.R. 1970 S. C. 158, the services of a temporary Civil Judge were terminated. The Hon’ble the Chief Justice had dictated a note regarding him indicating therein that Ramgopal Chaturvedi did not enjoy good reputation for honesty and had been roaming with a girl for over a year and his relations with her were not innocent. The Supreme Court had held that the appellant was a temporary servant and was not in quasi-permanent service. The appellant’s services were subject to the relevant rules and could be terminated on one month’s notice under Rule 12.
(c) “Where an order is passed terminating the services of a temporary employee on one month’s notice and it in fact leaves no stain on the character of the petitioner nor does it visit him with penal consequences, i.e. it does not attach any stigma, the Court will not go behind the order to find out its background. The Bench consisting of three Judges held that “on the face of it, the order did not cast any stigma on the appellant’s character or integrity and it was not passed by way of punishment to attract Article 311 and it was immaterial that the order was preceded by informal enquiry into his conduct with a view to ascertain whether he should be retained in service.” “Rule 12 is not violative of Articles 14 and 16 of the Constitution.” “The services of temporary Government servant may be terminated on one month’s notice whenever the Government thinks it necessary or expedient to do so for administrative reasons and it is impossible to define beforehand of the circumstances, in which the discretion can be exercised. The discretion was necessarily left to Government.”
(d) In I.N. Saxena v. State of Madhya Pradesh, 1976 MPU (SC) 481 – A.I.R. 1967 S.C. 1264, it was observed that “where an order requiring a Government servant to retire compulsorily contains express words, from which a stigma can be inferred the order may amount to removal under Article 311 of the Constitution. But where there are express words in the order itself, which would throw any stigma on the Government servant, we cannot dwell to Secretariat file to discover whether some kind of stigma can be inferred on such research.”
(e) Similarly, a Bench of Hon. Judges following the decision in A.I.R. 1967 S.C. 1264 (supra), The State of U.P. v. Ramchandra Trivedi, A.I.R. 1976 S.C. 2547 has held that where there are no express words in the impugned order itself, which throw a stigma, the Court would not dwell into secretariat files whether some kind of stigma would be inferred. The order must be ex facie an order of termination of services simpliciter. It was also observed that the plaintiff could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution.
(f) In Jagdish Mitter v. Union of India, AIR 1964 SC 449, a Bench of 5 Judges held, that the order of discharge of the temporary servant stating that he was “found undesirable to be retained in Government service” was an order requiring compliance of Article 311(2) of the Constitution.
(g) In the case of State of Maharashtra v. Virappa, AIR 1980 SC 42, Their Lordships made an observation that “ordinarily and generally, the rule laid down in most of the cases is that we have to see on the face of it and find whether it casts any stigma. In such a case, there is no presumption that the order is arbitrary or mala fide, unless a very strong case is made out and proved by the Government Servant, who challenges such an order.”
(h) Again in Nepal Singh v. State of UP and Ors., AIR 1980 SC 1459, the scope of enquiry called for in such a case as referred in Virappa’s case (supra), was considered and it was observed that “on the question, which calls for determination in all such cases is whether the facts satisfy the criteria repeatedly laid down by this Court that an order is not passed by way of punishment and is merely an order of termination simpliciter, if the material against the Government servant, on which the superior authority acted, constitutes the motive and not the foundation of the order. The application of the test is not always easy. In each case, it is necessary to examine the entire range of facts and consider whether in the light of those facts, whether the authority intended to punish the Government servant or having regard to the character, conduct or suitability in relation to the post held by him, it was intended simply to terminate his services. The function of the Court is to determine the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order.”
12. Having considered the aforesaid authorities and the circumstances obtaining in this case, we find that the petitioner was a temporary Government servant, whose services have been terminated as no longer required and the order is in consonance with Rule 12 of the M. P. Government Servants (Temporary and Quasi Permanent Service) Rules, 1960, referred above; and that it ex facie does not cast or disclose any stigma on the petitioner, but is an order of termination simpliciter. The petitioner was a temporary Government Servant employed in the Court but accused of serious charges of murder etc. and administrative considerations and expediency may have furnished the motive for dispensing with the services of such a person without stigmatising him in his service career, leaving it to the Court of law to take its own decision in the criminal case pending against him. Thus, administrative considerations and expediency, as has been held in the decisions referred above, may have furnished the motive, but they are not foundation and the action is not by way of any punishment, for invoking Article 311 of the Constitution of India. It is, therefore, clear that the impugned order does not suffer from any vice or illegality or violation of Article 311 of the Constitution of India.
13. In the result, the petition is devoid of any merit and is hereby dismissed with no order as to costs. The security amount was dispensed with, hence it is not necessary to pass any orders in that behalf.