Termination of service of a temporary employee by an authority with the power to appoint, but not to dismiss or remove, does not violate Article 311 of the Constitution if it is not by way of punishment.

( 1 ) THIS is a petition under Article 226 of the Constitution filed by one Bhagwat Saran srivas-tava, who had been appointed as a consolidator on 11-11-1955.

( 2 ) ACCORDING to the petitioner, he had worked satisfactorily and that his record has been clean throughout. According to him on 20-4-1957 the Settlement Officer happened to be on an inspection tour in the petitioners circle. He required the Petitioners fortnightly diary which was in the custody of the Consolidation Officer, for inspection. During that period the petitioner had been recording, all the daily work on loose sheets of paper. He was also required to submit some further documents and the documents, according to the opposite party were not in accordance with rules. He was asked immediately to apply for leave for one month. Thereafter he was asked to get himself transferred. The same day opposite party No. 2 asked opposite party No. 3 to take charge from the petitioner in anticipation of leave. On 22-4-1957 the petitioner was asked to hand over charge to one Sukhdeo Lal Amin, (Consolidation ). The petitioner again joined on 22-5-57 in the forenoon. He was served with a notice to the following effect:

"please take notice that your services are no longer required in the department of Consolidation of Holdings and are terminated with immediate effect. You are however allowed one months pay in lieu of notice. "

The petitioner sent a representation to the Director of Consolidation, Lucknow, but he does not know what happened to it.

( 3 ) THE petitioners complaint is that he was afforded actually no opportunity to meet the charges against him, and that the termination of services was in direct contravention of Article 311 of the constitution. He further contends that the decision of the opposite party is based on bias against the petitioner and is against the principle of natural justice,

( 4 ) THE petition and the affidavit do not expressly state as to what was the authority that appointed the petitioner. For that purpose the petitioner asked the record to be summoned of the case, because, according to him, in a writ of certiorari it is the right of the parties to get the record summoned. So far as summoning of record is concerned, it can of right only be summoned in a case of certiorar. An order of termination of service is not a judicial or quasi-judicial order and under the circumstances there is no question of summoning of the record and issuing a writ of certiorar. In the prayer all the writs are asked for -- certiorari, mandamus, quo warranto, or any other writ or direction.

( 5 ) IN the counter affidavit it has been alleged that the appointment of the petitioner was on a temporary basis and his services have been terminated. It was not in any way by way of punishment but was innocuous, because his services were no longer required. As no charge was levelled against him there was no question of giving opportunity to him. According to the petitioner, he was a permanent employee and not a temporary one, though he has not specifically said so. In this petition the question whether he was a temporary employee or a permanent employee is a question of fact which could better be gone into if the petitioner had filed a suit. In the case reported in Union of India v. T. R. Varma, (S) AIR 1957 SC 882 it has been observed by their lordships of the Supreme Court that where a question of fact arises, the better course for the petitioner would have been to file a regular suit, because there he would not only be entitled to set the order quashed but he would also be entitled to the relief of arrears of pay. In the present case also it is more a question of arrears of pay rather than restoration to the service.

( 6 ) THE main argument of learned counsel for the petitioner is that under Article 311 (1)

"no person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State s