Satish Chandra, J.:— The principal question raised in this appeal is whether the order terminating the temporary services of the appellant from the post of Sub-Inspector of Police is in law an order of dismissal or removal from service so as to attract Art. 311(2) of the Constitution.

2. The appellant was employed as a temporary Sub-Inspector of Police. In 1969 he was posted at Shahjahanpur. The Superintendent of Police, Shahajahanpur drew up disciplinary proceedings under Sec. 7 of the Police Act against the appellant on the charge that while he was posted at Pithoragarh he had in November, 1964 contracted a second marriage while his first wife was alive. This was done without prior permission of the Government in violation of Rule 29 of the U.P Government Servants Conduct Rules, 1956. The appellant denied the charge and filed a written statement. The Superintendent of Police recorded the evidence for the prosecution as well as the defence. At this stage the Deputy Inspector-General of Police, Barelly visited Shahjahanpur towards beginning of February, 1970. On a presual of the file he found that the offence for which the appellant was charged was committed by him at Pithoragarh which was in a police range different than the one to which Shahjahanpur appertained and that without an order of transfer, the proceedings at Shahjahanpur were incompetent. On this view he, on 12th March, 1970, passed an order quashing the disciplinary proceedings.

3. On 8th March, 1970, the Inspector-General of Police, Uttar Pradesh issued a Circular to the Superintendents of Police in the State requiring them to submit a list of the Sub-Inspectors, who fell in any of the following three categories:

(1) Whose reputation and integrity is very low and/or

(2) Who are generally involved in scandals, like. drinking, immorality etc. which blackens the face of the U.P Police, and/or

(3) Every where they are a big problem because they encourage, gambling, excise offences, brothels, criminals, etc.

4. The Superintendent of Police, Shahjahanpur drew up a list of such Sub-Inspectors and sent it to the Deputy Inspector-General of Police, Bareilly on 4th April, 1970. The appellant's name, was included in the list. In respect of the appellant the Superintendent of Police made the following note:

“A corrupt officer, who is not straight forward. Married two wives against Government Servants Conduct Rules. Does not do his duty sincerely. Wherever he goes creates problem.”

5. On receipt of this report the Deputy Inspector-General of Police, Bareilly on 27th April, 1970 passed the impugned order terminating the appellant's service. On its face the order was innocuous. It did not refer to any of the matters mentioned in the report of the Superintendent of Police.

6. The appellant challenged the order of termination by way of a writ petition. It was pleaded that the order quashing the disciplinary proceedings was ante-dated and passed malafide merely to Validate the order of termination. It was also urged that the impugned order was passed by way of imposing a punishment of dismissal or removal from service and so it attracted Art. 311(2) of the Constitution. The learned Single Judge repelled both these submissions and dismissed the writ petition.

7. The appellant does not dispute the finding that disciplinary proceedings under Sec. 7 of the Police Act could be conducted in the same police range in which the offence was committed. From the materials it is cleat that the Deputy Inspector General of Police quashed the disciplinary proceedings on the ground that they were not competent in a different range. The appellant's allegation that the order was not passed on 12th March, 1970 but it was really passed subsequently and ante-dated or that it was passed malafide to validate the order of termination has not been established by any cogent material. We have no hesitation in affirming the finding of the learned Single Judge on this point.

8. For the appellant it was urged that formal departmental proceedings were commenced to inquire into the charge that the appellant had married again while his first wife was alive and was as such guilty of gross negligence and remissness in the discharge of the duties and unfitness for the same, yet although the discipilinary proceedings were quashed before any finding could be reached, the Superintendent of Police specifiially mentioned in his report that the appellant had married two wives against the Government Servants Conduct Rules. It was urged that it was evidence that the gravement of the charge levelled against the appellant was the real reason for the termination of the appellant's services. The authorities intended to impose the punishment of dismissal or removal in the guise of a simple order of termination.

9. The learned Standing Counsel, on the other hand, contended that the Deputy Inspector-General of Police, passed the impugned order because on receipt of the evaluation of the appellant's work and performance it was found that he was not suitable to be retained in service. The order was not sought to be founded on any misconduct. Learned counsel for either party relied upon several decisions of the Supreme Court in support of their respective submissions.

10. The language of an order is not decisive upon its true character. In P.L Dhingra v. Union of India . A.I.R 1958 S.C 36., it was held that a simple order of termination or reversion could become the imposition of punishment of removal or reversion if the order visits the servant with any penal consequence or affects or forfeits rights or benefits already earned or accrued to him. It was also held that it is true that misconduct, negligence or inefficiency or other disqualification may be the motive or inducing factor which induce the Government to take action, but if the termination of service is founded on the right following from the service rules then, prima facie, the termination was not a punishment and so Art. 311 is not attracted. But if the Government, nonetheless chooses 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.

11. The question as to when misconduct, negligence etc. form the motive or the inducing factor or the foundation for the termination was explained in Jagdish Mitter v. Union of India . A.I.R 1964 S.C 449.. It was observed that the temporary servants or probationers are generally discharged because they are not found to be competent or suitable for the post they hold. Before discharging a temporary servant the authority may have to examine the question of the suitability of a servant to be continued. Such an enquiry is held only for deciding whether the servant should be continued or not. There is no element of punitive-action in such an enquiry. Even if a formal enquiry is held into certain specified charges, but while the enquiry is pending the authority takes the view that it may not be necessary or expedient to terminate the services of the servant by issuing an order of dismissal against him, the enquiry is stopped and an order of discharge simpliciter is passed. The discharge cannot, in law, be regarded as dismissal because the appointing authority was actuated by the motive that the said Government servant did not deserve to be continued for some “alleged” misconduct.

12. The decisions of the Supreme Court in State of Punjab v. Sukh Raj Bahadur . A.I.R 1968 S.C 1089. and A.S Benjamin v. Union of India . Civil Appeal No. 1341 of 1966 decided on 13-12-1966. were cases where disciplinary proceedings were launched on the basis of specified charges but the same were dropped without reaching any conclusion and a simple order of termination or reversion was passed. It was held that the order was valid.

13. In the cases of State of Orissa v. Ram Narain Das . A.I.R 1961 S.C 177. and R.C Lacy v. State of Bihar . Civil Appeal No. 590 of 1962 decided on 23-10-1963. the Supreme Court found that the enquiry was held with a view to evaluate the suitability of the officer and so the order was not by way of punishment.

14. In State of Bihar v. Gopi Kishore Prasad . A.I.R 1960 S.C 689. and Madan Gopal v. State of Punjab . A.I.R 1963 S.C 531. the Supreme Court found that regular enquiry into specified charges was held in order to take punitive action. The charges having been found proved at such an enquiry the order of dismissal or reversion being based on the findings was in the nature of punishment. The case of Appar Apar Singh v. The State of Punjab . 1970 3 SCC 338. is also a case where an informal enquiry was held into specified charges of misconduct. The charges were found proved and the finding resulted in the order of reversion. It was held that the order was passed by way of punishment.

15. The cases of Union of India v. R.S Dhaba . 1969 3 SCC 603. and Champaklal Chimanlal Shah v. Union Of India . . 1964 5 S.C.R 190. and Jabir Singh Bedi v. Union . C.A No. 1272 of 1966 decided on 12-M968. are cases where no enquiry was conducted but a recommendation to revert the officer was made because of a large number of complaints against the integrity of the officer and adverse reports from superior officers. It was held that the order was based upon an evaluation and assessment of the performance of the official in the officiating post and that the order was passed on the ground of unsuitability and that could not be deemed to be by way of punishment.

16. There are three decisions of the Supreme Court which require a little closer consideration. In K.H Phandia v. State of Maharasthra . 1971 1 SCC 790 the appellant was faced with certain charges of accepting money at the time of marriage of his daughter. The appellant denied the charges. The Secretary to the Government of Maharashtra, Agriculture and Forests Department told the appellant about the complaints against him in April, 1962. The Minister of Civil Supplies in the month of April, 1962 visited the appellant's office and said that there were complaints against him. The appellant requested a thorough enquiry in connection with such complaints. Subsequent to the visit of the Minister an Inspector of Police of the Anti-Corruption Branch took possession of several files of various fair price shops for scrutiny. At the time of the passing of the order the appellant protested that the same should be postponed till the completion of the investigation. The Government did not accept to the request of the appellant and reverted him. Later the police report exonerated him of the charges. Though the service record of Shri Phandia was good, yet because of this solitary incident he was reverted. The fact that the police enquiry exonerated the officer accentuated the intent of the Government to punish him because they were convinced that he was guilty. The order was held to be penal.

17. In State of Bihar v. Shiva Bhikashuk Mishra . 1971 1 SCC 790 S.B Mishra was officiating as a temporary Subedar Major. On September, 22, 1950 he slapped his orderly. His Commanding Officer informed the Deputy Inspector-General of Police of this incident intimating that on an enquiry he had found the incident to be true. The Deputy Inspector-General of Police addressed a note to the Inspector-General of Police that S.B Mishra was not suitable or fit to be promoted to the post of Subedar Major. As the present charge against him was serious an order of reversion would meet the case, because, it was obvious that he was not likely to make either a suitable Subedar Major or Serogeant Major. The Supreme Court held that the order of reversion was directly and proximately founded on what the Commandant and the Deputy Inspector-General said relating to the respondent's (S.B Misra's) conduct generally and in particular with reference to the incident of assault by him on his orderly. The order was held to have been passed by way of punishment. It appeared from the note of the Deputy Inspector-General of Police that though he mentioned reasons for S.B Mishra's unsuitability but he recommended his reversion because of the serious incident of slapping the orderly. It seems to us that the Supreme Court felt that the dominant intent of the authority was to punish Shri Misra for the incident of slapping the orderly.

18. The case of Ram Gopal Chaturvedi v. State Of Madhya Pradesh . 1970 2 SCC 871 is in the same category. Shri Chaturvedi was functioning as Civil Judge in Madhya Pradesh, in 1964 when his services were terminated. It appeared that the High Court had received some complaints that Shri Chaturvedi was associating with a young girl against the wishes of her father. The Chief Justice of the High Court made an enquiry and admonished the appellant for this conduct. On his return the Chief Justice dictated a note indicating that there was substance in the complaint that the appellant was mainatianing the girl and that his relations with her were not innocent. The note then stated;

“Shri Chaturvedi did not enjoy good reputation at Morena and Kolaras where he was posted before his posting at Gwalior. Shri Bajpai, District Judge, Gwalior also informed me that Shri Chaturvedi was not honest and that in collaboration with the Traffic Inspector he has taken money from accused persons in many cases under the Motor Vehicles Act.”

19. No charge-sheet was served against the appellant nor was any departmental inquiry held against him. On March 10, 1964 the Madhya Pradesh High Court passed a resolution that the State Government should terminate the appellant's services. The State Government accepted this re-commendation and passed a simple order of termination. The Supreme Court held that the High Court did not find the appellant fit to be retained in service and the Government took the same view. The enquiry was held with a view to see whether he should be retained in service. In this case the order of termination was based upon his conduct generally but with reference to a particular incident as well. It appears to us that the only fact which distinguishes this case from the decision in Shiva Bhikashuk Mishra's case is that in Chaturvedi's case the Court felt that the authority's dominant intention was that the officer was unsuitable and the order was not based primarily upon any specific misconduct.

20. Our attention was also invited to the cases of Jagdish Prasad Shastri v. State of U.P . 1970 3 SCC 631 and R.K Bhatt v. Union Of India . 1970 2 L.L.J 587.. In both these cases the Supreme Court did not decide any thing. After making some general observations the cases were remanded to the High Court for evaluation of facts. They are not helpful.

21. The decision of the Supreme Court in State of Mysore v. P.R Kulkarni . ???. shows that if an order is based upon collateral facts or irrelevant considerations it is liable to be struck down as arbitrary. A conspectus of these authorities shows that a simple order of termination or reversion would amount to punishment or reduction in rank if:

1. The Government servant holds a permanent post in a substantive capacity, because in that case a simple order of termination or reversion necessarily involves casting a stigma by removing him from a post which he has a right to hold.

2. Where the order expressly uses words which cast a stigma on the character or conduct of the officer; like ‘corrupt officer’ State of Bihar v. Gopi Kishore Prasad ‘found undesnable’ Jagdish Milter v. Union of India, ‘outlived utility’ State of Uttar Pradesh v. Madan Mohan Nagar . A.I.R 1967 S.C 1270.. But terms like for general unsuitability: Dalip Singh v. State of Punjab . A.I.R 1960 S.C 1305. or ‘in public interest’ (T.G Shivacharana v. State of Mysore)21, do not cast any stigma.

3. If the order is directly based upon findings of guilty of misconduct etc. reached at an enquiry either formal or informal, or where the order is based upon the Government's conviction that the officer was guilty of some specific misconduct, the order is deemed to have been passed by way of punishment.

4. Where the order is based on specific allegations of misconduct as well as general evaluation of assessment of his performance, the predominant intention is to be seen. If the dominant intent was to punish because of the misconduct the order will be a punishment.

5. If the order is based on a general assessment of the officer's performance in order to find out his suitability to hold the post, the order does not involve any punishment irrespective of the fact whether an enquiry was held for this purpose or the assessment was made on the existing record of service.

22. In the present case the Inspector-General had issued a circular requiring the Superintendents of Police to submit a list of Sub-Inspectors who fell in arty of the three categories:

(1) Whose reputation and integrity is very low and/or

(2) Who are generally involved in scandals, like drinking, immorality etc. which blackens the face of the U.P Police, and/or

(3) Everywhere they are a big problem because they encourage gambling, excise offences, brothels, criminals, etc.

23. The report of the Superintendent, of Police against the appellant was:

“A corrupt officer, who is not straightforward. Married two wives against Government servants conduct Rules. Does not do his duty sincerely. Wherever he goes creates problem.”

24. The first sentence (corrupt officer) brought, the appellant within the first category, namely, his integrity was very low. The third clauses covered the third category, namely, that he was a problem. The second clauses, that he married two wives against the Government Servants Conduct Rules did not bring him in any of the tree categories. Marrying twice over was not an offence. The gravement of the charge was that he did this without prior permission of the Government. The charge was technical, and not one which involved scandals, like drinking, immorality etc. which blackens the face of the U.P Police as mentioned in the second category of the Circular. In our opinion the dominant intention appears to have been to terminate the services of the appellant because he was found unsuitable to be retained in service. The order does not seem to be founded directly or proximately on the allegation that the appellant married two wives against Government Servants Conduct Rules. In our opinion the impugned order cannot be characterised as imposing the punishment of dismissal or removal from service. The order on its terms is innocuous. It does not cast any stigma.

25. In the result the appeal fails and is accordingly dismissed with costs.

Appeal dismissed.