Judgment

SHARMA, J. :- The appellant was appointed temporarily as an Assistant Jailor in the State of Madhya Pradesh and his services were terminated in 1965 without assigning any reason. He filed the suit out of which the present appeal arises challenging the termination order as illegal on the ground that although it was, on its face, a termination order simpliciter it was passed as a measure of punishment without holding an inquiry. The suit was dismissed by the trial court but on appeal the First Additional District Judge, Gwalior decreed the same. The State of Madhya Pradesh. challenged the judgment before the High Court in second appeal which was allowed and the suit was again dismissed. The plaintiff-appellant has now come to this Court in the present appeal by special leave.

2. The issue on which the result of the present case is dependent is whether the impugned order of termination of the appellants services had been passed as a measure of punishment or not. If the answer be in the negative, the appellant being a temporary servant had no right to continue service which could be terminated without assigning any reason as was done. The First Appellate Court answered the question in favour of the appellant and granted him a decree as prayed for while the trial court and the High Court took a different view.

3. The learned counsel for the appellant contended that in view of several recent decisions of this Court the form of order terminating the services of a government servant is not conclusive of its true nature and it is the duty of the court to examine its real character and further if the court be of the view that the order of termination has been in the facts and circumstances of a given case passed by way of punishment without holding an inquiry it should strike it down as illegal. We will assume the legal position accordingly but the difficulty of the appellant is that the conclusion reached by the High Court appears to be correct, namely, that the plaintiff-appellant has not been able to show that he was removed front service by way of punishment.

4. The decision of the High Court has been challenged before us on the ground that the finding of the lower appellate court was binding on the High Court in second appeal and in view of S. 100 of the Code of Civil Procedure it had no jurisdiction to re-appraise the evidence and come to a contrary finding.

5. The appellants counsel placed before us the judgments of the First Appellate Court and the High Court as also the pleadings of the parties and the evidence led by them in support of the correctness of the findings of Additional District Judge, Gwalior.

6. According to the statements made in the plaint, a departmental inquiry on the basis of certain allegations had been initiated against the appellant in 1964 but was left inconclusive. Later, another allegation was made against him in December 1964 that he had sent an anonymous complaint on behalf of some of the prisoners to the Vigilant Commissioner. The appellant after sending his reply proceeded on leave. Later he made a prayer for his transfer from Gwalior to Indore. He was interviewed with the Inspector General of Prisons when he accepted that in fact he had written the anonymous complaint and tendered his apology. The Inspector General is stated to have condoned the lapse and assured him that he would be transferred to Indore as prayed for. His service was terminated soon thereafter.

7. The appellant has also made allegations of mala fides against Shri B.N. Shukla, Superintendent, Gwalior Jail, who according to his case was instrumental in getting him thrown out of service. In the written statement of the defendants Nos. 1 and 2, it was pleaded that the case of the plaintiff-appellant that he was removed from service by way of punishment was incorrect. The defendants did not deny the inconclusive disciplinary inquiry of 1964 nor the facts that an allegation was made against him about tending of the anonymous-complain