Appeal No 25876
Appeal by Special Leave from the Judgment and Order dated 3 1 75 of the Allahabad High Court in Second Appeal No 226166
GN Dikshit and OP Rana for the Appellant
Promod Swarup and Manoj Swarup for the Respondent
The Judgment of the Court was delivered by JASWANT SINGH J
This appeal by special leave is directed against 464 the judgment and decree dated January 3 1975 of the High Court of Judicature at Allahabad setting aside the judgment and decree dated July 27 1965 of the Second Additional Civil Judge Jhansi whereby the latter affirmed the judg ment and decree of the trial Court dismissing the respond ent s suit for declaration that order dated November 29 1961 passed by the Superintending Engineer Circle IV Irrigation Works Jhansi UP terminating the services of the respondent was void and ineffective in law and he was entitled to recover a sum of Rs 2147 as arrears of pay and dearness allowance from the appellant
The facts leading to this appeal are The respondent herein was appointed as a temporary clerk in Gur Sarain Canal Division Jhansi
on May 16 1954
Seven years later he was required to appear in a departmental examination which was held in July 1961
On July 12
1961 an optional typewriting test was held by the Department
In that test the Executive Engineer Investigation and Planning Division Jhansi it is alleged detected Gopal Deo Santiya a clerk of Bhander Canal Division attempting to personate and appear for the respondent
He obtained the explanation of both the clerks and reported the matter to the Superintend ing Engineer of his Division
Considering the explanations tendered by the clerks to be unsatisfactory the Superin tending Engineer brought the matter to the notice of the Chief Engineer Irrigation Department Lucknow
The Chief Engineer wrote back to the Superintending Engineer asking him to award suitable punishment to the aforesaid two clerks
The Superintending Engineer thereafter issued orders terminating the services of both the clerks
The order that was passed in respect of and served on the respondent ran as follows  No E 70IV259 Dated Jhansi November 29 1961 OFFICE MEMORANDUM Shri Ram Chandra Trivedi Temporary Routine Grade Clerk is hereby served with one month s notice to the effect that his services shall not be required after one month from the date of receipt of this Notice
sd SP Sahni Superintending Engineer
 The respondent attempted to have the above order re scinded by making representations to the Chief Engineer and the Minister of Irrigation UP which proved abortive
The respondent thereupon challenged the aforesaid order of termination of his services by instituting the aforesaid suit averring inter alia that the order not being an order of termination of his service simpliciter but being one passed by way of punishment attracted the applicability of Article 311 of the Constitution which not having been com plied with rendered the order void and ineffective in law
The suit was resisted by the appellant on the ground that the respondent was only a temporary hand that under the contract of service as also the rules applicable to tempo rary Government servants the respondent was liable to be discharged any time even though an enquiry in respect of a charge of misconduct might have been insti 465 tuted against him and that the impugned order not having been passed a measure of punishment but being a simple order of termination of the respondent s services without casting any stigma on him or visiting him with evil conse quences was valid both under the aforesaid rules and the contract of service
The grounds of attack made against the impugned order did not find favour with the trial Court which dismissed the suit
Aggrieved by the judgment and decree of the trial Court the respondont took the matter in appeal to the Second Additional Civil Judge Jhansi who affirmed the judgment and decree of the trial Court
Both the Courts found that the impugned order was valid in law as it was a simple order of termination of service and not having been passed by way of punishment it did not attract the provisions of Article 311 2 of the Constitu tion
Dissatisfied with these judgments the respondent preferred a second appeal to the High Court of Judicature at Allhabad which as already stated was allowed by a learned Single Judge of that Court
While oversetting the concurrent findings of fact ar rived at by the courts below and decreeing the respondent s aforesaid suit the learned single Judge went through the official correspondence preceding the passing of the im pugned order and observed that a close scrutiny of the facts on record showed that the order was passed by way of punish ment on the basis of the enquire proceedings and as a result of the recommendation made by the Executive Engineer fol lowed by the direction issued by the Chief Engineer that the respondent should be suitably punished
It is against this judgment and decree that the present appeal has been pre ferred by the State of UP Mr Dixit learned counsel appearing on behalf of the appellant has urged that the High Court acted illegally in reversing the concurrent findings of fact arrived at by the courts below and quashing the impugned order which was a simple order of termination of the respondent s services and had been validly passed in accordance with the rules relat ing to temporary Government servants and the contract of service
He has further contended that the learned Single Judge could not probe into the departmental files to support his finding that the impugned order was passed against the respondent by way of punishment
He has
in support of his submissions relied upon a number of decisions of this Court
As against this it has been vehemently urged by Mr Garg learned counsel for the respondent that the constitutional position in regard to orders of the impugned nature is not well settled in view of the conflicting decisions of this Court particularly in view of the observations made in State of UP  Ors
vs Sughar Singh1 and The State of Punjab vs
PS Cheema 2 Mr Garg has further contended that the circumstances attending the issue of the impugned order clearly establish that it was passed by way of punish ment
It would in our opinion be appropriate at the outset to refer to the I decisions of this Court which have an important bearing on the instant 1  1974 1 SCC 218
2 AIR 1975 SC 1096
466 case and to dispel the doubts sought to be created by Mr Garg with regard to the constitutional position in relation to the applicability of Article 311 2 of the Constitution resulting from the said decisions
In Satish Chandra Anand vs The Union of India1 it was held by this Court that any and every termination of service does not amount to dismissal or removal and a termination of service brought about by exercise of a contractual right is not per se dismissal or removal
On the same reasoning this Court laid down in Shyam Lal vs State of UP2 that the termination of service by compulsory retirement in terms of specific rule regulating the conditions of service is not tantamount to the infliction of punishment and does not attract Article 3112
In Parshotam Lal Dhingra vs Union of India3 which is regarded as the Magna Carta of the Indian Civil Servant Das CJ speaking for the majority made the following illuminat ing observations  Shortly put the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment express or implied or under the rules governing the conditions of his service the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punish ment for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto
But if the servant has no right to the post as where he is appointed to a post permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules the termination of his employment does not deprive him of any right and cannot therefore by itself be a punishment
One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant but for such termination had the right to hold the post
If he had a right to the post as in the three cases hereinbefore mentioned the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311
In other words and broadly speaking article 311 2 will apply to those cases where the Government servant had he been employed by a private employ er will be entitled to maintain an action for wrongful dismissal removal or reduction in rank
To put it in another way if the Government has by contract express or implied or under the rulesthe right to terminate the employment at any time then such termination in the manner provided by the contract or the rules is prima facie and per se not a punishment and does not attract the provi sions of article 311
It does not however follow that except in the three cases mentioned above
in all other cases
termination of 1  2 19551 SC R 26
3 section C R 828
467 service of a Government servant who has no right to his post eg where he was appointed to a post temporary or permanent either on probation or on an officiating basis and had not acquired a quasi permanent status the termina tion cannot in any circumstance be dismissal or removal from service by way of punishment  Cases may arise where the Government may find a servant unsuitable for the post on account of misconduct negligence inefficiency or other disqualification
If such a servant was appointed to a post permanent or temporary either on probation or on an offciating basis then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government
Again if the servant was appointed to a post permanent or tempo rary on the express condition or term that the employment would be terminable on say a month s notice as in the case of Satish Chander Anand vs The Union of India supra then the Government might at any time serve the requisite notice
In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment express or implied or under the rules regulating the conditions of service if any be applicable and ordinarily in such a situation the Government will take this course
But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant
has been such that he deserves a punishment entailing penal consequences
In such a case the Government may choose to proceed against the servant on the basis of his misconduct negligence inefficiency or the like and inflict on him the punishment of dismissal removal or reduction carrying with it the penal consequences
In such a case the servant will be entitled to the protection of article 311 2
The position may therefore be summed up as follows Any and every termination of service is not a dismissal removal or reduction in rank
A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal as has been held by this Court in Satish Chander Anand vs The Union of India supra
Likewise the termination of service by compulsory retire ment in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punish ment and does not attract article 311 2 as has also been held by this Court in Shyam Lal vs The State of Uttar Pradesh supra
In either of the two above mentioned cases the termination of the service did not carry with it the panel consequences of loss of pay or allowances under r 52 of the Fundamental Rules
It is true that the misconduct negligence inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule nevertheless if a 468 right exists under the contract or the rules to termi ate the service the motive operative on the mind of the Government is as Chagla CJ has said in Shrinivas Ganesh vs Union of India1 wholly irrelevant
In short if the termination of service is founded on the right flowing from contract of the service rules then prima facie the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted
But even if the Government has by contract or under the rules the right to terminate the employment without going through the procedure prescribed for inflicting the punish ment of dismissal or removal or reduction in rank the Government may nevertheless choose to punish the servant and if the termination of service is sought to be founded on misconduct negligence inefficiency or other disqualification then it is a punishment and the requirements of article 311 must be complied with
As already stated if the Servant has got a right to continue in the post then unless the contract of employment or the rules provide to the contrary his services cannot be termi nated otherwise than for misconduct negligence ineffi ciency or other good and sufficient cause
A termination of the service of such a servant on such grounds must be a punishment and therefore a dismissal or removal within article 311 for it operates a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances
It puts an indelible stigma on the officer affecting his future career
A reduction in rank likewise may be by way of punishment or it may be an innocuous thing
If the Government servant has a right to a particular rank then the very reduction from that rank will operate as a penalty for he will then lose the emoluments and privi leges of that rank
If however he has no right to the particular rank his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment
But the mere fact that the servant has no title to the post or the rank and the Government has by contract express or implied or under the rules the right to reduce him to a lower post does not mean that an order of reduction of a servant to a tower post or rank cannot in any circum stances be a punishment
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences
Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules in truth and reality the Government has terminated the employment as and by way 1 AIR 1956 Bom
469 of penalty
The use of the 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 hereinbefore 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 In Gopi Kishore Prasad vs Union of India1 it was held by this Court that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence his discharge would not have the effect of removal by way of punishment but if instead of taking the easy course the Government chose the more difficult one of holding an enquiry into his alleged miscon duct and branded him as a dishonest and incompetent officer it would attract Article 311 2 of the Constitution
In The State 2 Orissa  Anr
vs Ram Narayan Das2 where July 28 1954 a notice was served on the respondent who was appointed as a Sub Inspector on probation in the Orissa Police Force in the year 1950 to show cause why he should not be discharged from service for gross neglect of duties and unsatisfactory work and where the explanation tendered by him was considered to be unsatisfactory by the Deputy Inspector General of Police who passed an order discharging the respondent from service for unsatisfactory work and conduct and where the respondent contended that the order was invalid on two grounds i that he was not given a reasonable opportunity to show cause against the proposed action within the meaning of Article 311 2 and ii that he was not afforded an opportunity to be heard nor was any evidence taken on the charge it was held that the order of discharge did not amount to dismissal and did not attract the protection of Article 311 2 of the Constitution as the respondent was a probationer and had no right to the post held by him and his services were terminated in accordance with the rules which permitted his being discharged at any time during the period of probation
The case of Madan Gopal V State of Punjab3 where the order terminating the employment of the appellant who was a temporary Government servant was qashed on the ground that it was in the nature of an order of punishment which had been passed without complying with the provisions of Article 311 2 of the Constitution is clearly distinguishable
In that case the order of termination of the 1 AIR 1960 SC 689
2  3 1963 3 SCR 716
470 appellant s service which was preceded by an enquiry into his alleged misconduct was based on the finding of miscon duct which amounted to casting a stigma affecting his future career
In Rajendra Chandra Banerice vs Union of India1 where the appellant was appointed as a probationer for one year which was extended from time to time on condition that his services might be terminated without any notice and cause being assigned during that period and he agreed and joined the service and where later on during the period of his probation he was called upon to show cause why his services should not be terminated and he was finally in formed that the explanation given by him was not satisfacto ry and his services would stand terminated on a specified date it was held by this Court that the termination of his service was not by way of punishment and could not amount to dismissal or removal within the meaning of Article 311
In Champaklal Chimanlal Shah vs The Union of India2 where the appellant whose appointment being temporary was liable to be terminated on one month s notice on either side was informed without assigning any cause after the expiry of about five years that his services would be terminated with effect from a specified date but before the termina tion he was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him and certain preliminary enquiries were also held against him in which he was not heard but no regular departmental enquiry followed and the proceedings were dropped it was held by this Court after considering the cases of Gopi Kishore Prasad vs Union of India supra State of Orissa vs Ram Narayan Das supra
Madan Gopal vs State of Punjab supra and Jagdish Mitter vs Union of India3 that such a regular departmental enquiry though contemplated was not held against the appellant and no punitive action was taken against him there was no question of the case being gov erned by Article 3112 or the Constitution
It was fur ther held in that case that it is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishment  that the Government servant gets the protection of Article 311
In State of Punjab  Anr
vs Shri Sukh Raj Bahadur4 where the Punjab Government reverted the respondent from his officiating appointment in the Punjab Civil Service Executive Branch to his substantive post in the Delhi Administrative after issuing him a charge sheet to which the respondent replied but the enquiry was not proceeded with it was held by this Court that the respondent could not complain against the order reverting him to his former post because the order of reversion was not by way of punishment
In that case Mitter J who spoke for the Bench laid down the following propositions  1  2 3 AI R 4  471 1
The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without any thing more would not attract the operation of article 311 of the Constitution
The circumstances preceding or attendant on the order of termination of service have to be examined in each case the motive behind it being immaterial
If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity it must be considered to be one by way of punishment no matter whether he was a mere probationer or a temporary servant
An order of termination of service in unex ceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of article 311 of the Constitution
If there be a fulI scale departmental enquiry envisaged by article 311 ie an Enquiry Officer is appointed a charge sheet submitted explanation called for and considered and order of termina tion of service made thereafter will attract the operation of the said Article
 The principles laid down in Parshotam Lal Dhingra s case supra Champaklal Chimanlal Shah s case supra and Shri Sukh Raj Bahadur s case supra were reiterated by this Court in Union of India  Ors
RS Dhaba1
State of Bihar  Ors
vs Shiva Bhikshuk Mishra2 and RS Sial vs The State of UP  Ors3 where it was laid down that the test for attracting Article 3112 of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee
The form of the order however is not conclusive to its true nature
The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the over riding test will always be whether the misconduct is a mere motive or is the very foundation of the order
In RS Sial vs The State of UP  Ors
3 to which one of us brother Khanna J was a party it was made clear in unambiguous terms that it may be taken to be well settled that even though misconduct negligence ineffi ciency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule nevertheless if a right exists under 1  2 3 472 the contract or the rules to terminate the services the motive operating on the mind of the Governments is wholly immaterial
The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity
The decision of this Court in State of Uttar Pradesh  Ors
vs Sughar Singh supra where the order of the re spondent s reversion held to have been passed by way of punishment to which our attention has been drawn by Mr Garg and which has led to a certain amount of misunderstanding turned upon a clear statement made before the High Court by the Standing Counsel for the State that the foundation of the order of reversion was the adverse entry made in his confidential character roll
The constitutional position has now been made crystal clear by a Bench of seven Judges of this Court in Shamsher Singh  Anr
vs State Punjab1 where the learned Chief Justice after an exhaustive review of the decisions of this Court observed  No abstract preposition can be laid down that where the services of a probationer are termi nated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case
If a probationer is discharged on the ground of misconduct or ineffi ciency or for similar reason without a proper enquiry and without his getting a reasonable oppor tunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 2 of the Con stitution
Before a probationer is confirmed the author ity concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post
In the absence of any Rules governing a probationer in this respect the authority may come to the conclu sion that on account of inadequacy for the job or for any temperamental or other object not involv ing moral turpitude the probationer is unsuitable for the job and hence must be discharged
No punishment is involved in this
The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry
But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation
If on the other hand the probationer is faced with an enquiry on charges of misconduct or inef ficiency or corruption and if his services are terminated without following the provisions of Article 311 2 he can claim protection   1  473 The fact of holding an inquiry is not always conclusive
What is decisive is whether the order is really by way of punishment 
A proba tioner whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 2
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 unless it can be shown that the order though unex ceptionable in form is made following a report based on misconduct
 The Division Bench judgment of this Court in PS Chee ma s case supra on which strong reliance has been placed by Mr Garg is also clearly distinguishable and no help can be derived therefrom by the respondent
In that case both the trial Court and the first appellant Court had come to a concurrent finding of fact that the impugned order of termination was by way of punishment
It would also be seen that in that case on a representation being made by the respondent to the then Chief Minister of the State the latter after consideration of the matter had ordered that in view of the respondent s previous good record he did not deserve the punishment of termination of service only on account of a few bad reports and that the respondent should continue in service and his case should be reviewed after he earned another report from the Excise and Taxation Commissioner for the year 1964 65
In a recent decision of this Court in The Regional Manager  Anr
vs Pawan Kumar Dubey1 to which one of us was a party Sughar Singh s case supra which is the sheet anchor of Mr Garg s contention was also adverted to and it was explained therein that that case did not depart from earlier decisions on applicability of Article 311 2 or Article 16 of the Constitution
The following observations made in Pawan Kumar Dubey s case supra should suffice to clear the doubts that may still be lurking in some quarters as to the ratio decidendi of Sughar Singh s case supra  We think that the principles involved in applying Article 3112 having been sufficiently explained in Shamsher Singh s case supra it should no longer be possible to urge that Sughar Singh s case supra 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 cir cumstances and facts of various cases which 1  474 have come up to this Court could create the impres sion sometimes that there is some conflict between different 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 cir cumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar
One addition al or different fact can make a world of differ ence between conclusions in two cases even when the same principles are applied in each case to simi lar facts
This Court s judgment in Sughar Singh s case supra shows that it was only following the law on Article 3112 of the Constitution as laid down repeatedly earlier by this Court
It specif ically referred to the following cases Parshottam Lal Dhingra vs Union of India supra State of Punjab vs Sukh Raj Bahadur supra State of Orissa vs Ram Narayan Das supra RC Lucy vs State of Bihar1 Jagdish Mitter vs Union of India supraA G Benjamin vs Union 01 India2 Ram Gopal Chaturvedi vs State
of Madhya Pradesh3 Union of India vs Galendra Singh4 Divisional Personnel Officer vs Raghavendrachar5 Union of India vs Joswant Ram6 Madhav vs State of Mysore7 State of Bombay vs
Abraham8
In Sughar Singh s case supra this Court summarised the propositions of law deducible from the cases mentioned above and while considering the ap plicability of some of the propositions of law to the facts of the case it did observe that on the face of it the action against Sughar Singh did not appear to be punitive
Nevertheless on a total consideration of all the facts including the admission in the High Court before Verma CJ by the Standing Counsel appearing on behalf of the State that the reversion order could not be ex plained except as a result of the adverse entry made two years earlier it had finally applied the ratio decidendi of the State of Bihar vs Shiva Bhikshuk Mishra supra where this Court had affirmed the opinion of the High Court on facts that the reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the Plaintiff and by way of punishment to him
On this view of the case it was not really necessary for this Court to consider whether the reversion of Sughar Singh was contrary to the provisions of Article 16 also
CA No 590 of 1962 decided on 23 10 1963 
2 3  4 1972 2 S CR 660
5  6 AIR1958 sc 905 7 19621 1 SCR 886 8 1962 Supp 2 SCR 92 475 We do not think that Sughar Singh s case supra in any way conflicts with what has been laid down by this Court previously on Article 3112 of the Constitution or Article 16 of the Constitution Thus on a conspectus of the decisions of this Court referred to above it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to any one to urge with any show of force that the consti tutional position emerging from the decisions of this Court in regard to cases of the present nature is not clear
It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court it cannot disregard or skirt the views expressed by the larger bench es
The proper course for a High Court in such a case as observed by this Court in Union of India  Anr
KS Subramanian1 to which one of us was a party is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice hardened as it has into a rule of law is followed by this Court itself
Keeping in view the principles extracted above the respondent s suit could not be decreed in his favour
He was a temporary hand and had no right to the post
It is also not denied that both under the contract of service and the service rules governing the respondent the State had a right to terminate his services by giving him one month s notice
The order to which exception is taken is ex facie an order of termination of service simpliciter
It does not cast any stigma on the respondent nor does it visit him with evil consequences nor is it founded on misconduct
In the circumstances the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311 2 of the Constitution
We therefore agree with the submission made on behalf of the appellant that the High Court was in error in arriv ing at the finding that the impugned order was passed by way of punishment by probing into the departmental correspond ence that passed between the superiors of the respondent overlooking the observations made by this Court in IN Saksena vs State of Madhya Pradesh2 that when there are no express words in the impugned order itself which throw a stigma on the Government servant the Court would not delve into Secretariat flies to discover whether some kind of stigma could be inferred on such research
We also find ourselves in agreement with the contention advanced on behalf of the appellant that the High Court failed to appreciate the true legal and constitutional position and upset the concurrent findings of fact arrived at by the Courts below that the impugned order was not by way of punishment ignoring the well settled principle of law that a second appeal cannot be
entertained on the ground of erroneous finding of fact however gross the error might seem to be
See Paras 1  C2  476 Nath Thakur vs Smt
Mohani Dasi  Ors1 Sri Sinna Ramanu la Jeer  Ors
vs Sri Ranga Ramanuja Jeer  Anr
2 R Ramachandra Ayyar vs Ramalingam3 and Madamanchi Ramappa  Anr
vs Muthaluru Bojappa4
For the foregoing reasons the contentions of Mr Dixit are upheld and those of Mr Garg are repelled
In the result we allow the appeal set aside the judg ment and decree of the High Court restore the judgments and decrees of the Courts below and dismiss the respond ent s suit
In the circumstances of the case the parties are however left to pay and bear their own costs of this appeal
VPS Appeal allowed


Summary:
The respondent was appointed as a temporary clerk in an engineering division of the Government
The attempt of another clerk to impersonate and appear for him in a depart mental examination was detected
The Executive Engineer obtained explanations from both the clerks and reported the matter to the Superintending Engineer who brought the matter to the notice of the ChiefEngineer
The Chief Engi neer wrote to the Superintending Engineer to award suitable punishment
The Superintending Engineer passed the order that the respondent a temporary clerk is hereby served with one month s notice to the effect that his services shall not be required after one month from the date of receipt of this notice
 The respondent filed a suit challenging the order on the ground that the termination was one passed by way of punishment and therefore attracted Art 311 of the constitution
and since the provisions of the Article had not been complied had not been complied with the order was void
The Trial Court and the First Appellate Court dismissed the suit
But the High Court wentthrough the official correspondence preceding the passing of the impugned order and observing that a close scrutiny of the facts on record showed that the order was passed by way of punishment on the basis of the enquiry proceeding and as a result of the recommendation by the Executive Engineer followed by the direction issued by Chief Engineer allowed the second appeal
Allowing the appeal to this Court HELD 1 It is no longer open to any one to urge that the constitutional position in regard to cases of the present nature is not clear
An examination of the deci sions of this Court shows that there is no real conflict in their ratio decidendi
Even if there is a conflict the proper course for a High Court is to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of this Court
This practice is followed by those Court itself and has hardened into a rule of law
475B C Union of India  Anr
KS Subramanian   followed
State of UP  Ors vs Sughar Singh 1974 2 SCR 335   The State of Punjab vs
PS Cheema AIR 1975 SC 1096 Satish Chandra Anand vs The Union of India   Shyam Lal vs State of UP   Parshotam Lal Dhingra vs Union of India   Gopi Kishore Prasad vs Union of India AIR  The State of Orissa  Anr
vs Ram Narayan Das   Madan Gopal vs State of Punjab 1963 3 SCR 716 Rajendra Chandra Banerjee vs Union of India   Champakal Chimanlal Shah vs The Union of
India  Jagdish Mitter vs Union of India AIR 1964 SC 449 State of Punjab  Anr
vs Shri Sukh Raj Bahadur   Union Of India 463  Ors
RS Dhaba  State of Bihar  Ors
vs Shiva Bhikshuk Mishra RS Sial vs The State of UP  Ors  Shamsher Singh  Anr
vs State of Punjab  and The Regional Manager  Anr
vs Pawan Kumar Dubey 1976 3 SCR 540 referred to
2 Before it is held that an order terminating the services of a Government servant amounts to punishment the Court must hold that either of the two testsnamely a that the servant had a right to the post or b that he had been visited with evil consequences such as forfeiture of pay etc is satisfied
Therefore 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 contem plated but an enquiry is not in fact proceeded with article 311 will not be attracted unless it can be shown that the order though
unexceptionable in form is made following a report based on misconduct
Even though misconduct negli gence inefficiency or other disqualification may be the motive for the order of termination if a right exists under the contract or the rules to terminate his services then article 3112 is not attracted unless the misconduct or negli gence is the very foundation of the order
Where there are no express words in the impugned order itself  which throw a stigma on the Government servant the Court would not delve into secretariat files to discover whether some kind of stigma could be inferred on such research
469 A B 473 C 471 H 475 F Parshotam Lal Dhingra vs Union of India 1958 SCR 828 RS Sial vs The State of UP  Ors
1974 3 SCR 754 Shamsher Singh  Ant
vs State of Punjab  and 1
N Saksena vs State of Madhya Pradesh  followed
3 The respondent was a temporary hand and had no right to the post
Under the contract of service and the service rules applicable to him the State had the right to terminate his services by giving him one month s notice
The order ex facie is an order of termination of service sim pliciter
It does not cast any stigma on the respondent nor does it visit him with evil consequences nor is it founded on misconduct
Therefore the respondent could not invite the Court to go into the motive behind the order and claim the protection of article 3112 of the Constitution
475 D E 4 The High Court failed to appreciate the true legal and constitutional position and upset the concurrent findings of fact arrived at by the Courts below ignoring the well settled principle of law that a second appeal cannot be entertained on the ground of erroneous findings of fact however gross the error might seem to be
475 G H Paras Nath Thakur vs Smt
Mohani Das  Ors
1960 1 SCR 271
Sri Ramanuja Jeer  Ors
vs Sri
Ranga Ramanuja Jeer  Anr   P Ramachandra Ayyar vs Ramalingam  and Madamanchi Ramappa   Anr
vs Muthaluru Bojappa   referred to