JUDGMENT

R.L. Gulati, J. - The petitioner was a Store Keeper-cum-Cashier in the Planning Department of the State of U.P. He was found to have made some alternations in the stock register in respect of the purchase of certain articles, which were shown subsequently to have been delivered to a Veterinary assistant Surgeon. The Veterinary Assistant Surgeon denied having received the stock and he reported to the Additional District Magistrate (Planning) that the petitioner was guilty of interpolation in the stock register. This led to the institution of an enquiry by the District Live Stock Officer. In this enquiry the statement of the petitioner was recorded and the statement of other persons were also recorded. The District Live Stock Officer gave a report to the Additional District Magistrate (Planning) that the petitioner was guilty of the interpolation alleged against him. On receiving this report the Additional District Magistrate Planning, dismissed the petitioner from service by his order dated 28th December, 1967. This order has been challenged in this petition under Article 226 of the Constitution.

2. The impugned order has been challenged on the ground that the same has been passed without affording to the petitioner the protection as envisaged under Article 311(2) of the Constitution. Admittedly no opportunity, as contemplated by Article 311 (2) of the Constitution was given to the petitioner before the order of dismissal was passed. Mr. R.M. Sahai, the learned standing counsel states that the petitioner was a temporary employee and he could be dismissed at any time was not entitled to any opportunity. His contention is that the order of dismissal does not recite that the petitioner was dismissed by way of punishment and that the Enquiry held before the passing of the impugned order was nearly an enquiry conducted to ascertain as to whether the petitioner was suitable for being retained in the Government service. It has nowhere been stated in any of the counter affidavits filed on behalf of the Department that the petitioner was a temporary employee. Even if he was a temporary employee, the petitioner was entitled to the protection of Article 311 (2) of the Constitution, if the order of dismissal was passed by way of punishment. That position is not denied.

3. No doubt, the order of dismissal does not disclose the reason why it was passed but having regard to the circumstances in which the order was passed, it is clear that the only reason behind the impugned order was the charge of interpolation in the account books and probable misappropriation. The enquiry which was conducted against the petitioner was not a preliminary enquiry with a view to finding out his suitability for the Government service but was directed against a definite charge of interpolation and embezzlement and the impugned order was a direct result of the enquiry. In fact, on the basis of that enquiry the value of the embezzled articles was sought to be recovered from the petitioner. The circumstances proceeding and following the order of dismissal show very clearly that the petitioner was dismissed for his having embezzled certain amount of the Government. The case of Ramgopal Chaturvedi v. State of Madhya Pradesh and others, 1969 SLR 427 : AIR 1970 SC 158 is thus clearly distinguishable. There the enquiry was found to have been held only with a view to ascertaining the desirability or suitability of the petitioner being retained in Government service. That is not the position in the present case. The appropriate decision, which may apply in the instant case is the case of State of Bihar and others v. Shiva Bhikshuk Mishra, 1970 SLR 863 : AIR 1971 SC 1011, where it has been held that even if the order of dismissal is innocuous in terms and does not contain any recital of misconduct, the court should take into consideration the circumstances surrounding the case to find out the real motive behind the order of dismissal. In the instant case, I am satis