Civil Appeal No 443 of 1985
503 From the Judgment and order dated 651985 of the Allahabad High Court in CMWP No 2822 of 1983
Dr YS Chitale Mrs Rekha Pandey SP Pandey Atul Tiwari Pinaki Misra Mrs Mamta Kachawala and Miss Bina Gupta for the Appellant
MK Banerjee Solicitor General AK Ganguli Gopala Subramaniam KJ John MM John Harish N Salve and Miss Nisha Srivastava for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
This is an appeal by special leave
The appellant was employed on the production side of the Uttar Pradesh State Handloom Corporation a public sector undertaking hereinafter referred to as Corporation  for short on temporary basis
Having been appointed on 30th of October 1976 as Bunker Sewa he obtained two promotions while still working in temporary status and by 1983 was working as Deputy Production Manager
The appellant s letter of appointment as far as material stated With effect from the date of taking over charge Shri Rabindra Kumar Mishra  is hereby appointed as Bunker Sewa  on the following terms and conditions 1 That his appointment is temporary and his services are liable for termination with one month s notice or one month s pay in lieu of notice from either side On November 22 1982 the appellant was placed under suspension and that order read as follows As a result of preliminary enquiries made by the Central Manager on 13111982 of the Production Center Kunda and other Centres under the same it has come to notice that Sri RK Misra former Dy
Production Manager Kunda is responsible for misconduct dereliction of duty mismanagement and showing fictitious production of terrycot cloth
He is therefore placed under suspension with immediate effect     Underlinings are ours 504 On the 1st of February 1983 the order of suspension was A revoked and on 10th of February 1983 the impugned order terminating his services being to the following effect was passed The undersigned hereby gives notice to Shri RK Misra Deputy Production Manager Production Center Kunda Prataapgarh Salon Rai Bareilly that his services are no more required and his service will be deemed to be terminated from receipt of this notice by him
It is directed that he will be entitled to receive one month s salary in lieu of notice period on the same rate on which he was receiving salary before termination of his service
 The appellant challenged the order of termination of his service before the Allahabad High Court but the High Court declined to interfere by holding that the termination was not punitive and the question of breach of principles of natural justice did not arise
It is not disputed that the employer Corporation is State  within the meaning of Article 12 yet it has not been contended and rightly that the protection of Article 3112 of the Constitution is avilable to the employees of the Corporation
The appellant has however claimed that he is entitled to the protection of Article 14 and 16 of the Constitution though his order of termination is innocuous the setting in which it has been made clearly makes it an order of dismissal and the High Court has gone wrong in holding that the order of termination was not punitive as service was determined by the order of termination attaching stigma the appellant was entitled to a hearing commensurate with rules of natural justice and in the absence of that opportunity of being heard the order is liable to be quashed
It cannot be disputed that temporary service can be terminated by notice
The order of appointment in the appellant s case made it abundantly clear that with a month s notice or payment of salary m lieu of notice such termination could be effected by either side Rule 63 of the Corporation Rules made in exercise of Article 127 of the Articles of Association of the Uttar Pradesh State Handloom Corporation Limited recognised such a power
That Rule provides  1
The appointing authority may at any time during the pendency of the temporary tenure terminate the services of a temporary employee by giving him one month s notice or emoluments for such lesser period by H 505 which the notice falls short of one month
The temporary employee on his part shall have the option of quitting service by giving one month s notice to the appointing authority or paying to the Corporation an amount equal to his one month s pay   The order of termination of service in this case is indeed innocuous
The appellant is not entitled to the protection of Article 3112 of the Constitution not being a member of a civil service of the Union or a State nor holder of a civil post under the State but his own Service Rules provide under Rule 68 that if the punishment of discharge or dismissal is imposed an enquiry commensurate with requirements of natural justice is a condition precedent
Admittedly no such enquiry has been held
The question that crops up here for determination therefore is whether the impugned order was an order of termination simpliciter or really amounted to an order of dismissal
In Purshotam Lal Dhingra vs Union of India   a Constitution Bench of this Court stated This use of expression terminate  or discharge  is not conclusive
In spite of the use of such innocuous expressions the Court has to apply the two tests mentioned above namely
1 whether the servant had a right to the post or the rank or 2 whether he has been visited with evil consequences of the kind herinbefore referred to If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311 which give protection to Government servant have not been complied with the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant
This view has been approved by another Constitution Bench of this Court in Champaklal Chimanlal Shah vs The Union of India  19641 5 SCR 190
After indicating approval Wanchoo J as he then was spoke for the Constitution Bench thus It is well known that Government does not terminate 506 nate the services of a public servant be he even a temporary servant without reason nor is it usual for Government to reduce a public servant in rank without reason even though he may be holding the higher rank only tempoarily
One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end
In that case there is nothing further to be said and his services terminate when the post comes to an end
Similarly a Government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end
But besides the above the Government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job andor his work
The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure
This dissatisfaction with the work andor conduct of a temporary servant may arise on complaint against him
In such cases two courses are open to Government
It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work andor conduct
Or the Government may decide to punish such a servant for his bad work or misconduct in which case even though the servant may be temporary he will have the protection of Article 3112
But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work
ln this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered
It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him
An enquiry officer who may be himself in the case where the appointing authority is other than the Government is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and his enquiry is held in accordance with the principles of natural 507 justice
This is what is known as a formal departmental enquiry into the conduct of a public servant   Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out and it is very necessary that the Two should not be confused
Even where Government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually is held to satisfy Government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post for as we have said already Government does not usually take action of this kind without any reason
Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee or a Government servant holding a higher rank temporarily it must not be confused with the regular departmental enquiry which generally follows such a preliminary enquiry when the Government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant
Therefore so far as the preliminary enquiry is concerned there is no question of its being governed by Article 3112 for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right
In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein
Such a preliminary enquiry may even be held ex parte for it is merely for the satisfaction of Government though usually for the sake of fairness explanation is taken from the servant concerned even at such an enquiry
 Both Pershotam Lal Dhingra s case supra and Champaklal s case 508 supra were referred to and relied upon in Shamsher Singh  Anr
vs State of Punjab  This is a case which was heard by a 7 Judge Bench
Ray CJ who spoke for the majority of five considered all the cases rendered by this Court till then touching on the point and at page 841 of the Reports stated as follows 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
 In Sharnsher Singh s case supra the ratio of the two earlier Constitution Bench judgment was approved
On facts it was found that the order of termination though innocuous in form was really an order by way of punishment removing the appellant from service on the basis of charges of gross misconduct found to have been established by an exparte enquiry conducted by the SP Vigilance Department with the only object of ascertaining truth of the alleged misconduct and for the purpose of dismissing or removing the appellant if charges were found established
It was ultimately on the basis of specific findings recorded by the SP Vigilance that the appellant s services were terminated
The Court found that the enquiry by the SP Vigilance was essentially and in character and object different from the informal enquiry into the and in object different from the informal enquiry into the suitability of the appellant
Ray CJ
in Shamsber Singh s case supra further pointed out The fact of holding an enquiry is not always conclusive
What is decisive is whether the order is really by way of punishment  
A probationer whose terms of services provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 3112
An order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract Article 311
Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted 509 unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct  In Regional Manager  Anr
vs Pawan Kumar Dubey  it was observed by this Court thus 1 We think that the principles involved in applying Article 3112 having been substantially explained in Shamsher Singh s case supra it should not no longer be possible to urge that Sughar Singh s case could give rise to some misapprehension of the law
Indeed we do not think that the principles of law declared and applied so often have really changed
But the application of the same law to the differing circumstances and facts of various cases which have come up to this court could create the impression some times that there is some conflict between decisions of this Court
Even where there appears to be some conflict it would we think vanish when the ratio decidendi of each case is correctly understood
It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar
One additional or different fact can make a word of difference between conclusions in two cases even when the same principles are applied in each case to similar facts  
As we have already observed though the provisions of Article 3112 of the Constitution do not apply the Service Rules which are almost at par make the decisions of this Court relevant in disposing of the present appeal
In several authoritative pronouncements of this Court the concept of motive  and foundation  has been brought in for finding out the effect of the order of termination
If the delinquency of the officer in temporary service is taken as the operative motive in terminating the service the order is not considered as punitive while if the order of termination is founded upon it the termination is considered to be a punitive action
This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated
It may also be necessary to find out whether the officer should be tried for some more time on temporary basis
Since both in regard to a temporary employee or an officiating employee in a higher post such H 510 an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character
In a large democracy as ours administration is bound to be impersonal and in regard to public officers whether in Government or public Corporations assessments have got to be in writing for purposes of record
We do not think there is any justification in the contention of the appellant that once such an assessment is recorded the order of termination made soon thereafter must take the punitive character
There may be cases where an enquiry is undertaken and prima facie material for serious charges are found by disclosing the result of such preliminary enquiry the officer concerned is put under suspension in contemplation of disciplinary action
After such steps have been taken the employerappropriate authority decides not to continue the departmental proceedings but makes an order terminating the service as has been done in this case
Counsel for the respondents pointed that that in the matter of ordering termination of service of a temporary employee the order follows a review of his working
Unless the termination is ordered because there is no need for the post in the absence of reasons for termination the action is open to challenge as arbitrary particulary when other similarly situated employees are continued in service
When reasons are given they are bound to disclose adverse features of the employee and disclosure of such features become the ground of challenge of the order on the plea that termination is not innocuous
To meet this position the distinction between motive  and foundation  has been adopted by the courts
As long as the adverse feature of the employee remains the motive and does not become transformed as the foundation of the order of termination it is unexceptionable
No straight jacket test can be laid down to distinguish the two and whether motive  has become the foundation has to be decided by the court with reference to the facts of a given case
The two are certainly two points of one line ordinarily apart but when they come together motive  does get transformed and merges into foundation
As has been held by a three Judge Bench in State of UP vs Ram C handra Trivedi  the position in regard to cases of the present nature is clear and the examination of the decisions of this court shows that there is no real conflict in their ratio decidendi
On facts as established in different cases courts have applied the known 511 tests and in order that complete justice may be done on the facts found there have been punishable deviations
We may point out that this Court in a Consitution Bench judgment in the case of State of Orissa  Anr
vs Ram Narayan Dass    indicated The fact of the holding of an enquiry is not decisive of the question
What is decisive is whether the order in the light of the decisions laid down in Parshotam Lal Dhingra s case
Keeping in view the principles indicated above it is difficult to accept the claim of the appellant
He was a temporary servant and had no right to the post
It has also not been denied that both under the contract of service as also the Service Rules governing him the employer had the right to terminate his services by giving him one month s notice
The order to which exception is taken is expressly an order of termination in innocuous terms and does not cast any stigma on the appellant nor does it visit him with any evil consequences
It is also not founded on misconduct
In the circumstances the order is not open to challenge 
We may point out that the learned Solicitor General appearing for the Corporation had at the commencement of the arguments suggested that the appellant could be given some compensation for termination
Ordinarily under the law he would not be entitled to compensation in a case of this type but since he has been put out of employment at an advanced age and it may be difficult for him to get an alternate employment while dismissing his appeal we think it reasonable to call upon the Corporation to pay a consolidated amount of Rs25000 Rupees Twenty five Thousand only
Accordingly the appeal is dismissed
The amount of Rs25000 as indicated above may be paid to the appellant within one month from today
There would be no order for costs
PSS Appeal dismissed


Summary:
Respondent No 1 who was functioning at the relevant time as the commissioner of Archives and Historical Research Tamil Nadu delivered a speech at a function held by the History Association of the Presidency College Madras criticising the time capsule buried in the precincts of the Red Fort at Delhi which led to a furore both in Parliament as well as in the national press
The Government feeling greatly embarrassed by the controversy started a disciplinary inquiry against him on the view that being a civil servant it was not desirable that he should have participated in a public discussion on the time capsule but later on dropped the same
However just a day before that a signed news item appeared in a newspaper about the controversy regarding the time capsule stating that a Government spokesman had charged respondent No 1 as trying to sabotage the civil services from within 
Having failed in his efforts to ascertain from the Government the identity of its spokesman who had made this offending utterance against him or to induce it to issue a contradiction through the Press respondent No 1 addressed a letter to the correspondent of the newspaper asking him to disclose the name of the Government spokesman
The correspondent in his reply stated that the Government spokesman was respondent No 2 the Chief Secretary to the Government who during a telephonic conversation with him had made the offending utterance
Respondent No 1 made a representation to the Government with regard to his grievance in this behalf but finding that there was no response applied for sanction of the Government under r 17 of the All India Services Conduct Rules 1968 seeking permission to institute a suit against respondent No 2 for damages for defamation
The Government refused to grant the permission and respondent No 1 moved the High Court under article 226 of the Constitution against the order of refusal
The writ petition was dismissed by a Single Judge who inter alia in his judgment referred to a concession made by the Advocate 491 General appearing for the appellants that the act complained of was an official act and therefore the intended suit was to vindicate an official act which was the subject matter of a defamatory criticism
Respondent No 1 preferred an appeal under cl
15 of the Letters Patent and a Division Bench allowed the appeal holding that the refusal of the State Government to grant the requisite permission under r 17 could not be justified on the ground of public interest
B Allowing the appeals  HELD According to its plain terms r 17 of the All India Services Conduct Rules 1968 is in the nature of a restraint on a member of the All India Services from bringing a suit for damages for defamation for an act done in the exercise of his official duties as a public servant or from going to the press in vindication of his official act or character
Explanation to r 17 seeks to restrict the scope and effect of the restraint placed by r 17
No member of the Service is prohibited from vindicating his private character or any act done by him in his private capacity
Proviso thereto however casts on him a duty to report to the Government regarding such action
497B c l In the instant case respondent No 1 made a speech incidentally at a time when he was holding the post of the commissioner of Archives  Historical Research at a function organised by the History Association of the Presidency College Madras
He was invited to make a speech on the occasion presumably for his attainments in the field
But the speech delivered by him on the occasion could not be treated to be an official act of his and therefore the suit brought by him against respondent No 2 the then Chief Secretary of Tamil Nadu could not be treated to be a suit for the vindication of his official act
It is common knowledge that persons of erudition and eminence are often times asked to grace such occasions or make a speech and when they do so undoubtedly they give expression to their personal views on various subjects
By no stretch of imagination can it be said that while doing so they act in the discharge of their official duties merely because they happen to hold public office
499A D During the course of his judgment the learned Single Judge adverts to paragraph 17 of the writ petition where respondent No 1 has averred that his intended suit was to vindicate his private character and not to vindicate any official act
The case of respondent No 1 therefore throughout has been that r 17 of the Rules was not attracted to the suit and indeed he specifically aver that he was entitled to file a suit even 492 without the permission of the Government under r 17
However he goes on to say that if a suit were to be filed it might land him into trouble in that disciplinary proceedings might be taken against him for having instituted a suit without previous permission of the Government
On the assumption that such sanction was necessary under r 17 he moved the High Court for grant of an appropriate writ under article 226 of the Constitution apparently by way of ex abundanti cautela
The learned Single Judge did not deal with the scope and ambit of r 17 in view of the concession made by the learned Advocate General
We have no manner of doubt that the appellants are not bound by the concession made by the learned Advocate General before the learned Single Judge that the act complained of was an official act
It is unfortunate that the State Government was not properly advised at the earlier stages of the proceedings in insisting upon the view that such permission was required under r 17 and that it was justified in refusing to grant the permission prayed for
The concession made by the learned Advocate General being on a matter of law is not binding
498D G