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"No. E-70/IV/259 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/- S.P. 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, U.P. 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-

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] 2 S.C.R. 335 =[1974] 1 S.C.C. 218. (2) A.I.R 1975 S.C. 1096.

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 v. The Union of India(1), 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 v. State of U.P.(2) 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 311(2).

In Parshotam Lal Dhingra v. Union of India(3) which is regarded as the Magna Carta of the Indian Civil Servant Das, C.J. 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, Art. 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 rules,the 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 Art. 311.

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 v. 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 Art. 311 (2), as has also been held by this Court in Shyam Lal v. 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 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 C.J. has said in Shrinivas Ganesh v. Union of India(1) 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 Art. 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 Art. 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 Art. 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) A.I.R. 1956 Bom. 455.