Termination of employment under Rule 5 of the Central Civil Services (Temporary Service) Rules 1949 is not a punishment and does not attract the provisions of Article 311 of the Constitution, unless the Government chooses to proceed against the servant on the basis of misconduct, negligence, inefficiency, or the like, and inflict a punishment carrying penal consequences.

H.K. Bose, J.

1. THIS is an application under Article 226 of the Constitution for an appropriate Writ for cancellation of an order dated the 25th February 1958 terminating the employment of the petitioner as an Inspector of Central Excise and for directing the opposite parties to forbear from giving effect to that order.

2. ON 30th July 1946 the petitioner was appointed as a temporary Inspector in the Central Excise Collectorate, Calcutta, having its jurisdiction over West Bengal and Orissa. ON 1st May 1951 the petitioner was allowed to cross the probationary stage in the prescribed time scale of pay with effect from 1st January 1950 and the petitioner was warned that if the petitioner failed to pass the departmental examination for Inspectors within the next permissible chances his increment in the time scale of pay would be stopped until further orders, and he would be liable to be discharged or reverted as the case might be. The prescribed time scale of pay at the time was Rs. 80-Prob-100-5-120 E.B.-8-200-10/2-220. The petitioner appeared for the first time in the departmental examination in May 1953 but he passed only in three out of the five papers and on account of this failure of the petitioner to pass the departmental examination completely, the petitioner's increment in the time scale of pay was stopped with effect from 1st August 1953. The petitioner was thereafter called upon to appear in the two papers in which he had failed, at the departmental examination which was to be held at Calcutta on 13th May 1954, while he was at Banamalipur in Puri district, having been transferred there on 9th May 1954. The petitioner received intimation about the examination on 12th May 1954 and he at once made arrangements for coming down to Calcutta but in-spite of his efforts he missed the examination in paper No. i and appeared only in Paper II. ON 3rd May 1955 the petitioner received an order under Rule 6 of the Central Excise Departmental Examination Rules 1049 discharging the petitioner from service with effect from the date of service of the Order. ON 10th May 1955 the Order was served on the petitioner and he was relieved from Government service on the same date.

The petitioner thereupon sent several representations to the Central board of Revenue on 12th May 1955, 4th July 1955 and 12th September 1905. On 7th October 1955 the petitioner was reappointed as a temporary Lower Division Cleric. The petitioner made repeated representations against this order and after some correspondence the petitioner was informed on 7th January 1956 that tile petitioner had been removed from his service as Inspector for failure to pass the departmental examination and he was appointed as a Lower Division Clerk as a special case on compassionate grounds. On 28th June 1956 the petitioner moved this Court under Article 226 of the Constitution and Sinha, J. issued a rule on the opposite parties to show cause why the order dated 3rd May 1955 should not be cancelled or quashed. On 7th January 1957 during the pendency of the Rule the order of discharge elated the 3rd May .1955 was cancelled and the petitioner was reinstated in service in the grade of Inspector of Central Excise, with effect from the date of his discharge, and was posted to Kalimpong division. The petitioner joined his post at Kalimpong on 31st January 1957. Sometime thereafter he was transferred to Kurseong. The petitioner after his reinstatement made several representations for payment of his arrears of salary but no reply was received to such representations. The petitioner however was given another chance after his reinstatement to pass the departmental examination in Papers I and II held on 6th July 1957 and 8th July 1957 in which the petitioner appeared but he failed in both the papers. Before appearing in the examinations the petitioner by his letter dated the 27th May 1957 asked for supply of some books from the department of Central Excise Collectorate and the books were