Judgment

PATHAK, J :- This appeal by special leave is directed against the judgment and order of the Allahabad High Court dated August 19, 1968 dismissing a second appeal arising out of a suit for declaration.

2. The respondent was appointed as a Sub-Inspector of Police in a temporary post in 1955. He was discharged from service on July 13, 1957. A writ petition filed by him in the allahabad High Court was allowed on August 4, 1959, and accordingly on December 15, 1959 he was reinstated in service. Thereafter, on January 21, 1960 his services were terminated by the Deputy Inspector General of Police, Agra Range, Agra.

3. On March 13, 1963 the respondent instituted a suit for a declaration that the order dated January 21, 1960 was illegal and void and that he continued as Sub-Inspector of Police in the Uttar Pradesh Police Service. It was alleged that on a false complaint made against him in respect of the custody and detention of one smt. Phoolmati, an enquiry had been made in consequence of which the appellant (sic) had been arbitrarily and illegally discharged from service on July 13, 1957. It was pleaded that although he was reinstated on the success of his writ petition in the High Court, his service were terminated a mere five weeks later although no ground had arisen since for doing so. It was asserted that order of January 21, 1960 was passed as a simple order of termination in order to avoid a departmental enquiry under Section 7 of the Police Act, which enquiry if held would have enabled him to expose the falsity of the allegations levelled against him. The suit was contested by the appellant, who maintained that the termination of the respondents services was not by way of punishment nor motivated by malice, and that it was a simple termination of the services of a temporary government servant on the ground that they were no longer required by the State. The suit was decreed by the learned Munsif, Etah and the decree was affirmed in appeal and second appeal. The High Court, in second appela, took the view that where an enquiry was instituted by a superior authority into a misconduct alleged against a government servant, the resulting termination of service was by way of punishment because it attached a stigma or amounted to a reflection on the competence of the government servant and affected his future career. The High Court held that the findings recorded during the enquiry on the original complaint against the respondent were responsible for the order terminating the respondents services, and it affirmed that the order was vitiated by mala fides.

4. Attacking the findings of the High Court, learned counsel for the appellant contends that in the first place the order terminating the respondents service had not been made by way of punishment, but was an order of termination simpliciter passed in accordance with the rules applicable to temporary government servants. In the second place, it is said, if the order is attributed to the complaint against the respondent concerning his conduct relating to Smt. Phoolmati it was open to the Deputy Inspector General of Police to take the circumstances of the case into account for the purpose of considering the suitability of the respondent for continuing in service. Learned counsel for the respondent points out that an enquiry had been originally instituted against the respondent which had resulted in an order terminating his service and, he urges, after the order of the High Court quashing his discharge on the ground of violation of Article 311 (2) of the Constitution it was obligatory on the superior authority, in case it proposed to terminate the respondents service, to institute a proper and complete departmental enquiry, providing an opportunity to the respondent to lead evidence and be heard in his defence, and only thereafter could it make an order against the respondent.

5. We are of the opinion that the appellant is right on both counts. Considered as an order made without