Case ID: 1661

Judgment:
Appeal No. 472 of 1962. Appeal from the judgment and decree dated December 23	 1960	 of the Bombay High Court in First Appeal No. 464 of 1958. R.K. Garg	 S.C. Agarwala	 D.P. Singh and M.K. Ramamurthi	 for the appellants. S.V. Gupte	 Additional Solicitor General	 V.D. Mahajan and R.N. Sachthey	 for the respondent. October 23	 1963. The Judgment of the Court was delivered by WANCHOO J. This is an appeal against the judgment and decree of the Bombay High Court on a certificate granted by that Court. The appellant was in the service of the Union of India. He was appointed on June 11	 1949 as an officiating Assistant Director Grade II in the office of the Textile	 Commissioner	 Bombay and was working as such till September 15	 1954. The appointment was temporary and his services were liable to be terminated on one month 's notice on either side. He was posted after the date of his appointment in the Textile Commissioner 's office at Ahmedabad and continued to work there 193 till February 1954. He was transferred to Bombay in February 1954 and was informed in August 1954 that his services would be terminated from September 15	 1954. No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him. He therefore brought a suit in the City Civil Court at Bombay	 and his contention was that his services had been terminated unjustifiably and maliciously as the Regional Director of Production in the Textile Commissioner 's office at Ahmedabad was against him. Because of this on December 29	 1953	 the appellant 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. The appellant went on to state in the plaint that certain enquiries were held against him behind his back but the matter was not pursued and he was transferred to Bombay in February 1954. While he was at Bombay he received the notice terminating his services. He claimed that he was a quasi permanent employee under the Central Civil Services (Temporary Service) Rules	 1949	 (hereinafter referred to as the Rules) and no action under r. 5 of the Rules could be taken against him. He was further entitled to the protection of article 311 of the Constitution and as his services were terminated without complying with that provision the order was bad and liable to be set aside. It was further contended that if r. 5 applied to him	 it was bad inasmuch as it was hit by article 16 of the Constitution and in any case the order passed against him was bad as it was discriminatory. The appellant therefore prayed that the order of August 13	 1954 by which his services were terminated be declared illegal and inoperative and he be declared a quasi permanent employee and reinstated in service. There was also a claim for arrears of salary and costs of the suit and such other consequential reliefs as the court might deem fit to give. The suit was opposed by the Union of India and its main defence was that the appellant was not a quasi permanent employee and that r. 5 of the Rules I SCI/64 13 194 applied to him and that action was properly taken under ' that rule when terminating the appellant 's services by order dated August 13	 1954. It was also contended that r. 5 was perfectly valid and that there was no discrimination practised against the appellant when his services were terminated. It was admitted that the memo. dated December 29	 1953 was issued to the appellant and he was directed to submit his explanation in respect of the irregularities mentioned therein to the Under Secretary	 Government of India	 New Delhi and to state why disciplinary action should not be taken against him. It was also admitted that from December 1953 onwards some department inquiry was conducted against the appellant but it was averted that the said departmental inquiry was not pursued as the evidence against him was not considered to be conclusive. But as the appellant 's work was not found satisfactory	 he was transferred to Bombay in February 1954 to give him a chance of improvement. As his work and conduct were ultimately found to be unsatisfactory	 his employment was terminated under r. 5 of the Rules as he was a temporary employee. On these pleadings three main questions arose for decision before the trial court	 namely	 (i) whether the appellant was a quasi permanent employee and r. 5 of the Rules did not apply	 to him (ii) whether r. 5 was invalid as it was hit by article 16 of the Constitution and in any case whether the action taken against the appellant was discriminatory	 and therefore hit by article 16 of the Constitution	 and (iii) even if the appellant was a temporary government servant	 whether he was entitled to the protection of article 311(2) of the Constitution in the circumstances of this case. The trial court held on all these points against the appellant and dismissed the stilt. The appellant then went in appeal to the High Court. The High Court agreed with the trial court and dismissed the appeal. The appellant then applied for a certificate to appeal to this Court	 which was granted; and that is how the matter has come up before us. 195 The first question that fails for consideration is whether the appellant was a quasi permanent employee and r. 5 did not apply to him. If the appellant is held to be a quasi permanent employee	 he will be entitled to the protection of article 311(2) and as admittedly the provisions of article 311(2) were not complied with in the present case	 his suit would have to be decreed and no further question would arise for decision. Rule 3 of the Rules	 which falls for consideration in this connection	 is as follows: "A Government servant shall be deemed to be in quasi permanent service: (i) if he has been in continuous Government service for more than three years; (ii) if the appointing authority	 being satisfied as to his suitability in respect of age	 qualifications	 work and character	 for employment in a quasi permanent capacity has issued a declaration to that effect	 in accordance with such instructions as the Governor General may issue from time to time. " The contention on behalf of the appellant is that as there is no conjunction "and" between the two sub clauses of r. 3	 a Government servant must be deemed to be quasi permanent if he complies with either of the two sub clauses. It is urged that a temporary government servant will become quasi permanent if he has been in continuous government service for more than three years or if a declaration is made in his favour as required by sub cl. The appellant thus reads the word "or" between the two sub clauses. On the other hand	 the respondent contends that looking at the scheme of the Rules the word "and" should be implied between the two sub clauses and that both the clauses must be fulfilled before a Government servant can be deemed to be in quasi permanent service. In this connection our attention was drawn to two cases of this Court in which this rule was mentioned. In Parshotam Lal Dhingra vs Union of India	(1) this Court	 when referring to r. 3 at p. 858	 used (1) [1958] S.C.R. 196 the conjunction "or" between the two sub clauses. Learned counsel for the appellant relies on this to show that we should read the word "or" between the two sub clauses. We are however of opinion that this Court was not specifically dealing with the interpretation of r. 3 in that case and what has been said there about r. 3 was merely for purposes of illustration. The other case of this Court to which reference has been made is K.S. Srinivasan vs Union of India.(1) There while quoting r. 3 at p. 1307	 this Court used the word "and" between the two subclauses. That is probably due to the fact that the brochure on "Central Civil Services (Temporary Services) Rules 1949" printed by the General Manager	 Government of India Press	 New Delhi	 1959	 contains the word "and" between the two sub clauses in r. 3. That also in our opinion is not conclusive in favour of the respondent	 because it is not disputed before us that in the Government gazette where the Rules were first published	 neither the word "and" nor the word "or" appears between the two sub clauses of r. 3. This aspect of the matter was considered by the Bombay High Court in B.M. Pandit vs Union of India(2) where the learned Judges pointed out at p. 48 that they found from the copy of the gazette of the Government of India in which these Rules were first published that neither the word "and" nor the word "or" appeared between the two subclauses and this position is accepted on behalf of the respondent before us. The question therefore arises whether we have to read the two sub clauses conjunctively or disjunctively. We may add that the Bombay High Court ' in the case mentioned above read the two sub clauses conjunctively and we are of opinion that view is correct. The object of these Rules obviously was to provide for some security of tenure for a large number of temporary government servants who had to be employed in view of World War II and also to provide for former employees of the Governments of Sind	 the North West Frontier Province and Baluchistan (1) ; (2) A.I.R. 1962 Bom. 45. 197 who had come to India on account of the Partition. This protection was afforded to temporary government servants and the government servants of the other type by the device of creating quasi permanent service. Rule 3 provided in what circumstances a government servant shall 'be deemed to be quasi permanent. Quasi permanent service is defined in r. 2(2) as meaning "temporary service commencing from the date on which a declaration issued under r. 3 takes effect and consists of periods of duty and leave (other than extraordinary leave) after that date. " R	 de 3 therefore must be read with r. 2(b) which defines "quasi permanent service". Under r. 2(b)	 quasi permanent service begins from the date on which a declaration is issued under r. 3. It follows therefore that before a government servant can be deemed to be in quasi permanent service a declaration must be issued under the second sub clause of r. 3	 for that is the sine quo non for the commencement of quasi permanent service. Without such a declaration quasi permanent service cannot begin. If therefore the appellant 's contention were to be accepted and a temporary government servant can be deemed to be in quasi permanent service	 if only the first sub clause has been fulfilled	 viz.	 that he has been in continuous government service for more than three years	 there will be complete irreconcilability between r. 2(b) and the first clause of r. 3. Therefore	 reading these two rules together the conclusion is inevitable that we must read the two sub clauses conjunctively and hold that both conditions must be fulfilled before a Government servant can be deemed to be in quasi permanent service	 namely	 (i) that he has been in continuous government service for more than three years	 and (ii) that the appointing authority after satisfying itself as to suitability in various respects for employment in quasi permanent capacity has issued a declaration to that effect. It is however urged that the definitions in r. 2 have to be read subject to there being nothing repugnant in the subject or context and it is contended that in the context of r. 3 the two sub clauses must be read disjunctively. 198 We are of opinion that there is no force in this argument	 and as a matter of fact the context of r. 3 itself requires that rule must be read in harmony with the definition of "quasi permanent service" in r. 2(b)	 for it could not possibly be the intention of the rule making authority to create disharmony between the definition in r. 2(b) and the provision in r. 3. The contention on behalf of the appellants that the two sub clauses are independent and have to be read disjunctively must be rejected and it must be held that both the conditions in r. 3 must be satisfied before a government servant can be deemed to be in quasi permanent service. This will in our opinion also be clear from the scheme of the Rules following r. 3. Rule 4 provides that "a declaration issued under r. 3 shall specify the particular post or the particular grade of posts within a cadre in respect of which it is issued	 and the date from which it takes effect. " This rule is clearly meant to apply to all quasi permanent employees and shows that no government servant can be deemed to be in quasi permanent service until a declaration has been issued. Rule 6 provides that "the service of a Government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as a government servant in permanent service. " Now under the definition of r. 2(b)	 quasi permanent service begins with a declaration issued under sub cl. (1)of r. 3. Therefore the protection of r. 6 can only be given to a quasi permanent employee after a declaration has been made. This again shows that a declaration is necessary before a Government servant can claim to be in quasi.permanent service. Rule 7 provides that a government servant in respect of whom the declaration has been issued under r. 3	 shall be eligible for permanent appointment on the occurrence of a vacancy in the specified posts which may be reserved for being filled from among persons in quasi permanent service. This again shows that a quasi permanent employee can become eligible for permanent appointment only when a declaration has been issued under 199 r. 3. Again r. 8 provides that a government servant in quasi permanent service shall as from the date on which his service is declared to be quasi permanent be entitled to the same conditions of service in respect of leave	 allowances and disciplinary matters as a government servant in permanent service holding the specified post. Here again the benefit of r. 8 can only be availed of by a quasi permanent government servant in whose favour a declaration has been made. Then r. 9 provides that a government servant in quasi permanent service shall be eligible for a gratuity under certain circumstances. This gratuity will be at the rate of half a month 's pay for each completed year of quasi permanent service	 such gratuity being payable on the basis of the pay admissible to such government servant in respect of the specified post on the last day of his service. This again contemplates a declaration before the benefit of r. 9 can be claimed by a quasi permanent employee. Rule 10 provides that where a government servant in quasi permanent service is appointed substantively to a permanent pensionable post	 the entire period of quasi permanent service rendered by him shall be deemed to be qualifying service for the grant of gratuity and pension. Now under r. 2(b) quasi permanent service only commences after the declaration and therefore unless a declaration is made	 the benefit of r. 10 cannot be taken by a quasi permanent employee. The scheme of the rules therefore clearly shows that a declaration under r. 3 is necessary before a temporary government servant can claim to be a quasi permanent employee. Otherwise if the two sub clauses of r. 3 were to be read disjunctively the result would be that a person may become a quasi permanent employee under sub cl. (1) but will get none of the advantages mentioned above. We are therefore satisfied that the scheme of the Rules and the harmony that is essential between r. 2(b) defining "quasi permanent service" and r. 3 laying down how a government servant can be deemed to be in quasi permanent service require that the two sub clauses should be read conjunctively and that two conditions 200 are necessary before a government servant can be deemed to be in quasi permanent service	 namely	 (i) continuous service for more than three years	 and (ii) declaration as required by sub cl. (ii)of r. 3. It is not in dispute that though the appellant had been in service for more than three years by 1954	 no declaration as required by sub cl. (ii) of r. 3 has ever been made in his case. He cannot therefore claim to be in quasi permanent service. It follows therefore that he cannot claim the benefit of r. 6	 which lays down that the services of a government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service. If he could claim the benefit of r. 6	 he would have been certainly entitled to the protection of article 311. As he is not entitled to the benefit of r. 6	 he cannot claim the benefit of article 311 (9.2) on the ground that he must be deemed to be in quasi permanent service. The appellant therefore must be held to be still in temporary service when his services were dispensed with in August 1954. The rule that applies to a temporary government servant is r. 5 which lays down that "(a) 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. (b) The period of such notice shall be one month	 unless otherwise agreed to by the Government and by the Government servant; Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances	 at the same rates at which he was drawing them immediately before the termination of his services	 for the period of the notice or	 as the case may be	 for the period by which such notice falls short of one month or any agreed longer period." 201 In short r. 5 gives power to the Government to terminate the services of a temporary government servant by giving him one month 's notice or on payment of one month 's pay in lieu of notice or such shorter or longer notice or payment in lieu thereof as may be agreed to between the Government and the employee concerned. This rule is being attacked on the ground that it is hit by article 16	 which provides that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". We have not been able to understand how this rule can possibly be hit by article 16	 which provides for equality of opportunity. These Rules show that there are two classes of employees namely	 (i) permanent employees	 and(ii) temporary employees	 the latter being divided into two sub clauses (a) quasi permanent	 and (b) temporary. It is well recognised that the Government may have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate. There can also be no doubt	 if such a class of temporary servants could be recruited that there would be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different in some respects from those of permanent employees. Further we see no denial of equal opportunity if out of the class of temporary employees some are made quasi permanent depending on length of service and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees. It has been urged on behalf of the respondent that article 16 in any case will not apply to matters relating to termination of service. We do not think it necessary for present purposes to decide whether article 16 would apply to rules relating to termination of service. We shall assume for the purposes of this appeal that article 16 will apply even in the case of rules relating to termination of service. But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate 202 equality of opportunity provided in article 16. The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances. In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service. We are therefore of opinion that considering the nature of the employment of a temporary government servant	 a provision like that in r. 5 in respect of termination of service is a. reasonable provision which cannot be said to deny equality of opportunity provided in article 16. The attack therefore on r. 5 on the ground that it is hit by article 16 of the Constitution must fail. It is next urged that even if r. 5 is good	 the order by which the appellant 's services were dispensed with was bad	 because it was discriminatory. In this Connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were junior to the appellant and did not have as good qualifica tions as he had. We are of opinion that there is no force in this contention. This is not a case where services of a temporary employee are being retrenched because of the abolition of a post. In such a case a question may arise as to who should be retrenched when one out of several temporary posts is being retrenched in an office. In those circumstances	 qualifications and length of service of those holding similar temporary posts may be relevant in consider ing whether the retrenchment of a particular employee was as a result of discrimination. The present however is a case where the appellant 's services were terminated because his work was found to be unsatisfactory. We shall deal with the question whether termination in this case is liable to be set aside on the ground that article 311 (2) was not complied with later; but where termination of the service of a temporary 203 government servant takes place on the ground. that his conduct is not satisfactory there can in our opinion be no question of any discrimination. It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him	 irrespective of what their conduct is. Therefore even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service	 it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct. A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory. We therefore reject the contention that the appellant was denied the protection of article 16 and was treated in a discriminatory manner. We now come to the last question whether the appellant Was entitled to the protection of article 311(2) of the Constitution	 even though he was a temporary government servant. It is well settled that temporary servants are also entitled to the protection of article 311(2) in the same manner as permanent government servants	 if the government takes action against them by meting out one of the three punishments i.e. dismissal	 removal or reduction in rank: (see Parshotam Lal Dhingra vs Union of India("). But this protection is only available where discharge	 removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. It is also not disputed that the mere use of expressions like "terminate" or "discharge" is not conclusive and in spite of the use of such innocuous expressions	 the court has to apply the two tests mentioned in Parshotam Lal Dhingra 's case(1)	 namely (1) whether ( ) ; 204 the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied	 it must be held that the servant had been punished. Further even though 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 right exists under the contract or the rules	 to terminate the service the motive operating on the mind of the Government is wholly irrelevant. It is on these principles which have been laid down in Parshotam Lal Dhingra 's case() that we have to decide whether the appellant was entitled to the protection of article 311(2) in this case. Before however we consider the facts of this case	 we should like to make certain general observations in connection with disciplinary proceedings taken against public servants. It is well known that government does not terminate 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 temporarily. 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 and/or 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 and	/or conduct of a temporary servant (1) ; 205 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 and/or 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 311(2). 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. In 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 this inquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the conduct of a public servant. In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross examine the witnesses tendered against him. He has also the right to give documentary and oral evidence in his defence	 if he thinks necessary to do so. After the enquiry is over	 the enquiry officer makes a report to the Government or the authority having power to take action against the servant concerned. The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved	 it determines tentatively the punishment to be inflicted 206 on the public servant concerned. It then communicates a copy of the enquiry officer 'sreport and its own conclusion thereon and asks himto show cause why the tentative punishment decidedupon be not inflicted upon him. This procedure is required by article 311(2) of the Constitution in the case of the three major punishments	 i.e.	 dismissal	 or removal or reduction in rank. The servant concerned has then an opportunity of showing cause by making a represen tation that the conclusions arrived at the departmental enquiry are incorrect and in any case the punishment proposed to be inflicted is too harsh. 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 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 thecase of temporary employee or a governmentservant holding a higher rank temporarily it mustnot be confused with the regular departmentalenquiry (which usually follows such a preliminaryenquiry) 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 311(2) 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 207 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. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government	 and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in article 311 that the government servant is entitled to the protection of that Article. That is why this Court emphasised in ParshotamLal Dhingra 's case(1) and in Shyamlal vs The Stateof Uttar Pradesh(2) that 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 is irrelevant. In Shyamlal 's case(2) what happened was that the government servant concerned was called upon to explain certain matters which cast an imputation upon him; but later it was made perfectly clear to him by the government that it was not holding any formal departmental enquiry against him with a view to inflicting any of the three major punishments	 although the government desired to give him an opportunity to show cause why he should not be compul (1) (1958] 1 S.C.R. 828 (2) 208 sorily retired	 and after considering his explanation he was compulsorily retired under the relevant service rule. It was held in that case that this did not amount to punishment within the meaning of article 311(2)	 even though there was some imputation at an earlier stage and even though the servant concerned was asked to explain why he should not be compulsorily retired. As we have said already it is not usual for government to take action against a public servant without rhyme or reason and that is why in the case of temporary servants or servants holding higher ranks to which they have no right some kind of preliminary enquiry is usually held before the government decides to dispense with their set vice or revert them to their substantive posts. The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e.g. r. 5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of article 311(2). Whether such termination would amount to dismissal or removal within the meaning of article 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service. Let us now turn to the facts of this case. On December 29	 1953	 a memorandum was given to the appellant under the signature of the Under Secretary to the Government of India. By that memorandum he was informed about four matters and his explanation was called in that connection. The first matter referred to his punctuality in attending office and his absenting himself from duty without prior intimation and instances in that respect were brought to his notice. The second matter was with respect to irregular claims for mileage allowance in respect of his visits to mills some of which were never made. Instances of these were also brought to his notice. The third matter related to a certain visit to a certain mill on a certain date which was 209 never undertaken. The fourth matter was general relating to his work and conduct being not satisfactory and his not attaching due importance to the performance of his duties in accordance with the instructions of the Regional Director. He was required to submit his explanation by January 6	 1954 and also asked to state why disciplinary action should not be taken against him. The contention on behalf of the appellant is that this memorandum really amounted to a chargesheet against the appellant and he was asked to give an explanation thereto and also to state why disciplinary action should not be taken against him. Stress is laid on the last sentence of the memorandum where the appellant was asked why disciplinary action should not be taken against him. It may be conceded that the way in which the memorandum was drafted and the fact that in the last sentence he was asked to state why disciplinary action should not be taken against him might give an impression that the intention was to hold a formal departmental enquiry against him with a view to punishing him. But though this may appear to be so	 what is important to see is what actually happened after this memo randum for the courts are not to go by the particular name given by a party to a certain proceeding but are concerned with the spirit and substance of it in the light of what preceded and succeeded it. It is true that in the written statement of the respondent it is stated that from December 1953 onwards a departmental enquiry was being conducted against the appellant	 though the written statement went on to say that departmental enquiry was not pursued as the evidence was not considered to be conclusive. In actual fact however it is not even the case of the appellant that any enquiry officer was appointed to hold what we have called a formal departmental enquiry in which evidence was tendered from both sides in the presence of the appellant. This is clear from para 8 of the plaint in which it is said that some enquiries appeared to have been held after the memorandum of December 1953 but were 210 not pursued further. It is however clear that no formal departmental enquiry as contemplated under article 311(2) read with the relevant Central Services Rules was ever held after the notice of December 29	 1953	 as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross examine witnesses produced against him and would also have been entitled to lead evidence. It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should not be taken against him	 no departmental enquiry followed that memorandum and the matter was dropped. That is further borne out by the fact that the appellant was transferred from Ahmedabad to Bombay in February 1954	 which would be most unlikely if a departmental enquiry was going on against him in Ahmedabad. The respondent 's case in this connection is that it gave up the departmental enquiry even though it was contemplated and transferred the appellant to Bombay in order to give him a chance of improvement. The appellant worked in Bombay for over six months and thereafter the Government finally decided to terminate his services under r. 5 as his work and conduct were found unsatisfactory even after his transfer to Bombay. On these facts there can in our opinion be no doubt that even if a departmental enquiry was contemplated in December 1953 it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him on December 29	 1953; what appears to have happened is that after the appellant was transferred to Bombay where he worked for six months more	 the government came to the conclusion that his work and conduct were not satisfactory and therefore decided to terminate his services under r. 5. We cannot accept the proposition that once government issues a memorandum like that issued in this case on December 29	 1953	 but later decides not to hold a departmental enquiry for taking punitive action	 it can never thereafter proceed to take action against a temporary government servant in the terms of r. 5	 211 even though it is satisfied otherwise that his conduct and work are unsatisfactory. The circumstances in this case are in our opinion very similar to the facts in Shyamlal 's case(")	 the difference being that in that case he was compulsorily retired and in this case the appellant 's services have been terminated. In Shyamlal 's case(1) also at one stage	 the government made imputation against his conduct but later withdrew them and did not follow up the matter by holding a departmental enquiry. This is exactly what happened in the present case and it was more than six months after that the appellant who had in the meantime been transferred to Bombay was discharged in the terms of r. 5 because his work and conduct were found unsatisfactory. The order terminating his services makes no imputation whatsoever against him and in the circumstances it cannot be said that the termination of his service is visited with any evil consequences as explained in Parshotam Lal Dhingra 's case(2). We are therefore of opinion that on the facts of this case article 311(2) has no application and the appellant was not entitled to the protection of that Article before his services were terminated under r. 5	 for the termination of service here does not amount to infliction of the penalty of dismissal or removal. It remains now to consider certain cases on which reliance was placed on either side. Strong reliance has been placed on behalf of the appellant on Madan Gopal vs The State of Punjab(3). In that case Madan Gopal was a temporary government servant. A charge sheet was served on him on February 5	 1955 and he was charged with having taken bribes in two cases. He was also asked to explain why disciplinary action should not be taken against him. He was further asked to state if he wanted to be heard in person and also to put forth any defence. It will be clear that charges were served upon Madan Gopal (1) ; (2) ; (3) [1963]1 3 S.C.R. 716. 212 in that case while in the present case no charges were ever served on the appellant and the communication of December 29	 1953 was headed as a memorandum. Further the charge sheet in Madan Gopal 's case(	) besides asking him to state why disciplinary action should not be taken against him also asked him to state in his reply if he wanted to be heard in person and wanted to put forward any defence	 which clearly showed that a departmental enquiry was going to be held particularly when the charges were given by the Settlement Officer who had apparently been appointed the enquiry officer for the purpose. Further in Madan Gopal 's case(	) an enquiry was held and a report was submitted by the enquiry officer to the Deputy Commissioner. The enquiry officer found Madan Gopal guilty of the charges and recommended that he should be removed from service immediately. On the basis of this report an order was passed by the Deputy Commissioner which stated in so many words that it had been established that bribes had been taken by Madan Gopal and that he accepted the report of the Settlement Officer. The Deputy Commissioner then went on to order that the services of Madan Gopal were terminated on payment of one month 's pay in lieu of notice. Obviously in that case a departmental enquiry was held by the enquiry officer	 a report was made to the Deputy Commissioner who was apparently the authority to dismiss or remove Madan Gopal and he passed the order terminating his services on the basis of the report	 though he did not use the word "dismiss" or "remove" in his order. In those circumstances this Court held in conformity with what had been said in Parshotam Lal Dhingra 's case(2) that the mere use of the word "termination" would not conclude the matter and as the facts showed as they did in Madan Gopal 's case() that the order was one of dismissal or removal and was passed as a punishment after inquiry	 article 311(2) should have been complied with. The facts of that case in our opinion are very different from the facts in the present case. (1) [1963] 3 S.C.R. 716. (2) ; 213 As we have already pointed out no departmental enquiry was really held after the memorandum of December 29	 1953 in this case and no enquiry officer was appointed and no report was made by any enquiry officer. Whatever might have been the intention behind the memorandum dated December 29	 1953	 the matter was not pursued and the departmental enquiry if it was ever intended to be held was dropped. The appellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and conduct were still unsatisfactory that government took action under r. 5 and dispensed with his services. On the facts of the present case therefore it cannot be said that the order of dispensing with the services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal or dismissal. The next case is The State of Bihar vs Gopi Kishore Prasad(1). That was a case of a probationer and this Court laid down five propositions therein. It is the third proposition therein on which strong reliance has been placed on behalf of the appellant. It is in these terms : "But	 if instead of terminating such a person 's service without any enquiry	 the employer chooses to hold an enquiry into his alleged misconduct	 or inefficiency	 or for some similar reason	 the termination of service is by way of punishment	 because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of article 311(2) of the Constitution. " it is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer and the same it is said will apply to a temporary employee as the two (1) A.I.R. 1960 S.C. 689. 214 stand more or less on the same footing the protection of article 311(2) would be available. We are of opinion that this is reading much more in the proposition then was ever intended by this Court. In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquiries showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified. The order further said that his work was wholly unsatisfactory and in consideration of those matters	 it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged. His explanation was then considered and the Government finally decided to discharge him. The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that article 311(2) was applicable in that case and that is why some enquiries were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that. In those circumstances this Court held that as government had purported to take action under article 311	 the action was bad as the protection envisaged by that Article was not afforded to the servant concerned. The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of article 311. All that the third proposition lays down is that if the govern ment chooses to hold an enquiry purporting to act under article 311 as was the case in that case	 it must afford to the government servant the protection which that Article envisages. Gopi Kishore Prasad 's case(1) was considered by this Court in a later case in the State of Orissa (1)A.I.R	 215 vs Ram Narayan Das	(1) which was also a case of a probationer. In Ram Narayan Das 's case	(1) the order was to the effect that the government servant was discharged from service for unsatisfactory work and conduct from the date on which the order was served on him. This Court in Ram Narayan Das 's case(1) referred to the rules	 which provided that " where it is proposed to terminate the employment of a probationer	 whether during or at the end of the period of probation	 for any specific fault or on account of his unsuitability for the service	 the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it	 before orders are passed by the authority competent to terminate the employment" and pointed out that action in accordance with the rules would not be hit by article 31 1. Gopi Kishore Prasad 's case(1) was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasad 's case(2) referred to "an enquiry into allegations of misconduct or inefficiency With a view	 if they were found established	 to imposing punishment and not to an enquiry whether a probationer should be confirmed	 which means that where the Government purports to hold an inquiry under article 311 read with the Rules in order to punish an officer, it must afford him the protection provided therein. The third proposition therefore in Gopi Kishore Prasad 's case(2) Must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct. The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under article 311(2) but ends up with a mere order of termination. In such a case the form of the order is immaterial and the termination of service may amount to dismissal or (1) ; (2) A.I.R. 1960 S.C. 689. 216 removal. The same view has been taken in Jagadish Mitter vs Union of India(1) We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants, services were terminated under r. 5 was an order inflicting the punishment of dismissal or removal to which article 311(2) applied. It was in our opinion an order which was Justified under r. 5 of the rules and the appellant was not entitled to the protection of article 311(2) in the circumstances. The appeal therefore fails and is hereby dismissed. In the circumstances we pass no order as to costs. Appeal dismissed. 
5407	Civil Appeal No. 5(NT) of 1975. From the Judgment and Order dated 15.9. 1971 of the Allahabad High Court in Civil Misc. Writ Petition No. 5324 of 1970. Prithvi Raj, Mrs. Rekha Joshi and Ashok K. Srivastava for the Appellants. Manoj Swarup, 'Ms. Lalita Kohli and Pramod Swarup for the Respondent. The Judgment of the Court was delivered by 759 SABYASACHI MUKHARJI, J. The question involved in this appeal is whether the respondent herein M/s. Kasturi Lal Hat Lal is liable to the State of Uttar Pradesh for payment of the Central Sales Tax in respect of the transactions of sale of coal. The Sales Tax Officer in this case passed an order making the respondent liable for the payment of tax on certain transactions during the period from 1st October, 1965 to 31st March, 1966 amounting to Rs.9,08,548.81 and tax liability was imposed at the rate of 2% thereof amounting to Rs. 18,170 98. The Sales Tax Officer found that the assessee carried on business in coal. The Sales Tax Officer noted that the Bilties, concerning this kind of sale of coal had been prepared in the name of the dealer. The dealer endorsed these Bilties (R.Rs) and gave these to the diverse parties in U.P. The parties in U.P. on receiving these Bilties got the goods released. The dealer admitted that the Bilties (R.Rs.) having been endorsed to the parties in U.P. were given to them at the time, while the goods were in the state of movement between Bihar and U.P. The bills connected with Bilties (R.Rs.) of this kind had also been prepared by the dealer and the money had been realised by the dealer from the purchasing parties. The Sales Tax Officer was of the view that the sale of coal effected in that manner came under interstate sale and as such was liable under section 3(b) of the , by transfer of document when the goods were in movement. It was the case of the dealer that the goods had been sold to an unregistered dealer and he too was not a registered dealer for the year 1965 66. Therefore, there was no question of imposition of any Sales Tax. The Sales Tax Officer did not agree with this view and imposed liability for the said Rs. 18 170 98. Challenging the said imposition an application was moved before the High Court under Article 226 of the Constitution by the dealer. The application was allowed and the order of assessment was set aside. The High Court having considered the facts and circum stances of this case noted that the main contention raised on behalf of the assessee was that inasmuch as the movement of the goods had started from the State of Bihar, the tax if any, payable on such sales, was assessable in Bihar and the Sales Tax Officer, Lucknow had no jurisdiction to make the order of assessment. The High Court in the light of Section 9(1) of the was of the view that the appropriate State" would be the Sales Tax Officer in Bihar and as such the imposition was not possible in the manner it was done. The assessee succeeded before the High Court on this ground. The question for determination is whether that is so? 760 The High Court noted that in the previous case of Karam Chand Thapar and Bros. (Coal Sales) Ltd. vs The Sales Tax Officer	 Moradabad and others	 (Civil Miscellaneous Writ No. 4356 of 1969) the High Court had taken the same view on more or less identical facts on 24th of July	 1970. We were told at the Bar that in the said matter leave had been granted under Article 136 of the Constitution by this Court. We wanted to know whether the matter had been disposed of by this Court and if so what was the fate of the same and had adjourned this appeal on this account. Neither the assessee nor the revenue has been able to enlighten us on this point. Under the (hereinafter called 'the Act ')	 Section 2(a) stipulates that the "appro priate State" means (i) in relation to a dealer who has one or more places of business situate in the same State	 that State; (ii) in relation to a dealer who has places of busi ness situate in different States	 every such State with respect to the place or places of business situate within its territory. On the other hand clause (b) of section 2 defines "dealer" to mean any person who carries on (whether regularly or otherwise) the business of buying and selling	 in the manner indicated in sub clause (b). It is not con fined to a registered dealer only. Section 3 is the charging section and is in Chapter II dealing with the formulation of principles for determining when a sale or purchase of goods takes place in the course of interState trade or commerce or outside a State or in the course of import or export. Sec tion 3 stipulates that a sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or purchase (a) occasions the movement of goods from one State to another	 or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another. There are two explana tions to that section and explanation 1 provides that where goods are delivered to a carrier or other bailee for trans mission	 the movement of the goods shall	 for the purposes of clause (b)	 be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee. Explanation 2 enjoins that if the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State. Section 6 deals with the liability to tax on inter State sales. Section 6(1) provides that subject to the other provisions contained in the Act	 every dealer is liable to pay tax under the Act on all sales effected by him in the course of inter State trade or com merce during any year on and from the date so notified. Sub section (1A) of section 761 6 provides that a dealer shall be liable to pay tax under the Act on sale of any goods effected by him in the course of inter State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State. Subsection (2) of section 6 stipulates that notwithstanding anything contained in sub section (1) or sub section (1A)	 where a sale of any goods in the course of inter State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another	 any subsequent sale during such movement effected by transfer of documents of title to such goods to the Government or to a registered dealer other than the Government	 if the goods are of the description referred to in sub section (3) of section 8	 shall be exempt from tax under the Act. Sub section (2) of section 6 provides that no such subsequent sale shall be exempt from tax under that sub section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time or within such further time as that authority may	 for sufficient cause	 permit	 (a) a certificate duly filled and signed by the registered dealer from whom the goods were purchased containing the prescribed particulars in the prescribed form obtained from the pre scribed authority; and (b) if the subsequent sale is made (i) to a registered dealer	 a declaration referred to in clause (a) of sub section (4) of section 8	 or (ii) to the Government	 not being a registered dealer	 a certificate referred to in clause (b) of sub section (4) of section 8. Sub section (1) and sub section (2) of section 9 of the Act are material for our present purpose and read as follows: "9(1) The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter State trade or commerce	 whether such sales fail within clause (a) or clause (b) of section 3	 shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of subsection (2)	 in the State from which the movement of the goods commenced; (2) Subject to the other provisions of this Act and the rules made thereunder	 the authorities for the time being empowered to assess	 re assess	 collect and enforce payment of any tax under general sales tax law of the appropriate State shall	 on behalf of the Government of 762 India	 assess	 re assess	 collect and enforce payment of taX	 including any penalty	 payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law	 including provisions relating to returns	 provisional assessment	 advance payment of tax	 registration of the transferee of any business	 imposition of the tax liabil ity of a person carrying on business on the transferee of	 or successor to	 such business	 transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family	 recovery of tax from third par ties	 appeals	 reviews	 revisions	 references	 compounding of offences and treatment of documents furnished by a dealer as confiden tial	 shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force	 the Central Government may	 by rules made in this behalf make necessary provision for all or any of the matters specified in this sub section. " It is clear from the analysis of the scheme of the Act that the Central Government imposes tax and it is by the Central Government the tax is imposed for inter State sale but it is collected by the Government in accordance with the provisions of sub section (2) of section 9 of the Act in the State. It will be clear from sub section (2) of section 9 that the "appropriate State" imposes and collects the tax on behalf of the Government of India. The question is which is the "appropriate State" in a transaction of the nature or the type with which we are concerned Where tax on inter State sale was sought to be imposed. In order to be a sale or inter State transaction the sale must occasion the move ment of goods. Here in the instant case	 it appears that there were Railway receipts which were endorsed in favour of the parties in U.P. It is by that endorsement that title was transferred to the purchases and that transaction occasioned the movement of the goods	 in other words	 caused inter State sales to take place	 namely	 the sale which occasions the movement of goods from one State to another from the State of Bihar to the State of U.P. Counsel for the revenue sought to urge at one point of time that as the railway receipts were endorsed in U.P. in favour of different 763 parties such a sale would not be an inter State sale that would have occasioned the movement of goods. If that is the position here which counsel for the revenue sought to urge then a tax on such sales as an internal sale might have been levied under the U.P. Sales Tax Act. But that would not be the case of sale on a transaction which occasions the move ment. For this purpose section 9 provides for the collection and levy by the "appropriate Government". The "appropriate Government" means in relation to a dealer who has one or more places of business situate in the same State	 that State or in relation to a dealer who has places of business situate in different States	 every such State with respect to the place or places of business situate within its tern tory. It is not the position in the instant case. It was contended on behalf of the revenue that in the State of Uttar Pradesh	 the concerned Sales Tax Officer was fully competent to make the assessment. The High Court was of the view that this argument proceeded on an omission to consider the opening words of section 2 which is the definition clause	 and which makes the definitions given thereunder subject to the context. Sub section (1) of section 9 confers jurisdiction to make the levy and collection of the tax on the State where the movement of the goods commences	 and so the determinative test for discovering the jurisdiction of a particular State	 in an inter State sale	 is the place where the movement of the goods commences. The words "appropriate Government" given in sub section (3) of that section must necessarily refer to the State which by section 9(1) has been conferred jurisdiction to levy and collect the tax. The provisions must be harmonised. It was next contended that the case of the respondent fell within the ambit of the proviso to Section 9(1). We have.noted that the provisions of the proviso can apply only if the sale is by a registered dealer. Here the admitted position is that the dealer is not a registered one. It was urged on behalf of the revenue that inasmuch as section 7 of the Act required every dealer to obtain registration within the prescribed period and in the event of not obtaining such a registration	 penal conse quences ensue under section 10 of the Act	 the words "regis tered dealer" as used in the proviso to section 9 do not refer necessarily to a dealer who has obtained registration under section 7	 but to a dealer who should have obtained such a registration. In other words	 counsel tried to import the equitable maxim by stating an argument in the manner that if registration in the facts of a particular case was compulsory then such registration should be deemed to have been made as by law enjoined that it should have been made. Equity	 it was said the maxim long time ago "looks upon a thing as done which ought to have been done. " But that is not the position in a fiscal statute. The fiscal statute with which we are concerned recognised registration and 764 non registration and imposes liabilities on registration and consequences for non registration. It is not	 therefore	 possible to look upon a thing as done which ought to have been done for which Legislature has separately featured differently in a fiscal statute of this nature. The Act provides machinery provisions for the imposition and reali sation of the Central Sales Tax. It must be read in a com monsense point of view. It is clear here that registration of dealer is impor tant because the proviso states that in the case of sale of goods during their movement from one State to another	 the sale subsequent to first sale in respect of the same goods being also a sale which fell under sub section (2) of sec tion 6	 the tax shall be levied and collected on a subse quent sale which had been effected by a transfer of docu ments of title to such goods by a registered dealer in the State from which the registered dealer obtained or as the case may be could have obtained the form prescribed in clause (a) of sub section (4) of section 8 of the Act in connection with purchase of such goods. Sub section (2) of section 6 provides that where a sale of goods in the course of inter State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another	 any subse quent sale during such movement effected by a transfer of documents of title to such goods to the Government or to a registered dealer other than the government	 if the goods are of the description referred to in sub section (3) of section 8	 shall be exempt from tax under this Act. The proviso stipulates that no such subsequent sale shall be exempt from tax under this sub section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time	 a certificate as mentioned therein. In this case	 the subse quent sale if there be any in U.P. did not occasion the movement of the goods. It is therefore	 not subject to inter State sales tax. In that view of the matter we are of the opinion that the Sales Tax Officer in U.P. was not the appropriate au thority either to impose or collect the duty on inter State sale. The High Court was right in the view it took. This appeal must therefore	 be dismissed with costs. H.L.C. Appeal dis missed.

Summary:
The appellant was in the service of Union of India	 his appointment being temporary liable to be terminated on one month 's notice on either side. He was appointed in June 1949. On August 1954 he was informed that his services would be terminated from September 1954. No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him. Before such termination the appellant 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. Certain preliminary enquiries were held against him but he was not heard therein. No regular departmental enquiry however followed and the proceedings were dropped. Claiming that he is a quasi permanent servant he brought a suit against the Union of India alleging that the termination of his service was not justified. He prayed in the suit for a declaration that the termination of his service was illegal. He also claimed arrears of salary. The trial Court dismissed the suit and he appealed to the High Court 191 without success. The present appeal was filed on a certificate granted by the High Court. The first contention raised by the appellant was that he was a quasi permanent employee and r. 5 of the Central Civil Service (Temporary Service) Rules	 1949 did not apply to him. Secondly it was contended that r. 5 was invalid as it was hit by article 16 of the Constitution and in any event the action taken against him was discriminatory and therefore hit by article 16. It was further contended that even if the appellant was a temporary servant he was entitled to the protection of article 311 (2) of the Constitution. : (i) Sub cls. (1) and (2) of r. 3 should be read conjunctively and not disjunctively and both the conditions contained therein should be fulfilled before a Government servant can be deemed to be in quasi permanent service. The Government servant has to show that he has been in continuous Government service for more than three years and that the appointing authority has made a declaration under sub cl. (2) of r. 3. This being the position	 since no declaration has been made in his case	 the appellant cannot claim the benefits of r. 6 which places a quasi permanent servant and a permanent servant on the same footing in the matter of termination of service. Hence he cannot claim the protection of article 311(2) on the ground that he must be deemed to be in quasi permanent service. B.M. Pandit vs Union of India	 A.I.R. 1962 Bom. 45	 Purshottarn Lal Dhingra vs Union of India	 ; and K.S. Srinivasan vs Union of India	 ; 	 distinguished. (ii) R. 5 which provides for termination of the services of a temporary Government servant by giving him one month 's notice is not hit by article 16. The classification of Government servants into permanent	 quasi permanent and temporary is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory. (iii) Where termination of service of a temporary Government servant takes place as it has taken place in the present ease	 on the ground that his conduct is not satisfactory there cannot be any question of any discrimination. The contention of the appellant that he was denied the protection of article 16 and was treated in a discriminatory manner is rejected. (iv) Temporary Government servants are also entitled to the protection of article 311(2) in the same manner as a permanent Government servants	 if the Government takes action against them by meting out one of the three punishments i.e. dismissal	 removal or reduction in rank. purshottam Lal Dhingra vs Union of India	 ; Held	 that when a preliminary enquiry is held to determine whether a prima facie case for a formal departmental enquiry is made out in the case of a temporary employee or a Government servant holding a higher rank temporarily there is no question 192 of its being governed by article 311(2). Such a preliminary enquiry may even be held ex parte. It is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishments that the Government servant gets the protection of article 311. Shyamlal vs State of U.P. ; and Purshottam Lal Dhingra vs Union of India	 ; 	 explained. Held	 that even if a departmental enquiry against the appellant was contemplated it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him. Simply because the Government issued such a memorandum but later decided not to hold a departmental enquiry for taking punitive action	 it cannot be said that the Government can never thereafter proceed to take action under the terms of r. 5 even though it is satisfied otherwise that the appellant 's conduct and work are unsatisfactory. Madan Gopal vs State of Punjab	 [1963] 3 S.C.R. 716	 State of Bihar vs Gopi Kishore Prasad	 A.I.R. 1960 S.C. 689. State of Orissa vs Ram Narayan Das	 ; and	 Jagdish Mitter vs Union of India	 A.I.R. distinguished.