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PETITIONER: RANENDRA CHANDRA BANERJEE

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 18/02/1963

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1552            1964 SCR  (2) 135  CITATOR INFO :  RF         1964 SC 600  (139)  RF         1974 SC2192  (65)  RF         1976 SC1766  (6)  RF         1976 SC2547  (13)  D          1978 SC 363  (11)

ACT: Public  Servant--Probationer--Discharge  from  service   for unsatisfactory  work--If  entitled to Protection  under  the Constitution and the Rules--Civil Services  (Classification, Control and Appeal) Rules, rr. 3 (a), 49, 55-B-Constitution, of India, Art. 311 (2).

HEADNOTE: The  appellant was appointed on probation, for one  year  as Programme  assistant  on May 3, 1994 on condition  that  his services  might be terminated without any notice  and  cause being  assigned  during that period.  He agreed  and  joined service  on these terms on July 4, 1932, he was called  upon to show cause why his services should not be terminated  and as the explanation given was not satisfactory, his  services were  terminated after August 31, 1952.  On  an  application moved  under  Art. 226 of the Constitution  the  High  Court dismissed  the application and held that the  appellant  was not  entitled  to  the protection of Art.  311  (2)  of  the Constitution,  that  in. 49 and 55-B of the  Civil  Services Rules did not apply and that he was governed by the contract of his service. Held,  that  in  the  present  case  the  appellant  was   a probationer  and the termination of his service was  not  by way  of  punishment  and could not amount  to  dismissal  or removal within the meaning of Art. 31 1. As a probation  he, would .be liable to be discharged during that period subject to the 136 rules in force in that connection and as Explanation 2 to r: 49 had been deleted long before the action was taken, he was not entitled to the protection of Art. 311. Purushottam  Lal Dhingra v. Union of India, [1958] S. C.  R.

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828  and State of Orissa v. Ran Narain Das [1961]  1  S.C.R. 606, referred to. Held, further, that r. 53-B would apply to the appellant and was not excluded by r. 3 (a).  The purpose of a notice under r. 55-B was to ascertain, after considering the  explanation which a probationer may give, whether he should be  retained or not and in such a case it would be sufficient  compliance with  that rule if the grounds on which the  probationer  is considered unsuitable for retention are communicated to  him and  any  explanation  given by him with  respect  to  those grounds was duly considered before an order was passed.   In the  present  case therefore, the appellant  was  given  the opportunity   as  envisaged  by  r.  55-B  and  the   appeal therefore, must be dismissed.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal 271 of 1962. Appeal from the judgment and order dated May 18, 1959 of the Punjab  High Court (Circuit Bench) at Delhi in L. P. A.  No. 24-D of 1956. K.   B. Mehta, for the appellant. N.   S.  Bindra, R. H. Dhebar for R. N.. Sachthey,  for  the respondents. 1963.  February 18.  The judgment of the court was delivered by WANCHOO J.-This is an appeal on a certificate granted by the Punjab High Court.  The appellant was selected for the  post of  Programme Assistant on May 3, 1949 and was appointed  on probation  for one year, and the letter of appointment  said that   during  the  said  period  his  services   might   be determinated without any notice and without  any cause being assigned.   He  was  asked  to  accept  the  offer  on  this condition.  The appellant accepted the  137 offer  and  joined service on June 4, 1949.  His  period  of probation expired on June 3, 1950, but it was extended  from time  to time.  On July 4, 1952, the appellant was  informed that  his  probation period could not be  extended  and  was called  upon to show cause why his services should ’ not  be terminated.  The appellant showed cause.  He was finally in- formed   that   the  explanation  given  by  him   was   not satisfactory  and  that his services were to  be  terminated after August 31, 1952. The  appellant then filed a petition under Art. 226  of  the Constitution   in  the  Punjab  High  Court  and  his   main contention  was  that he was entitled to the  protection  of Art.  31  1  (2) of the Constitution and  as  this  was  not afforded  to  him  the order terminating  his  services  was illegal.   Besides  it was urged on his behalf that  he  was governed   by  rr.  49  and  55-B  of  the  Civil   Services (Classification,  Control  and  appeal)  Rules  (hereinafter referred to as the Rules) and therefore lie was entitled  to the protection of those rules.  As however his services  had been  terminated without compliance with those rules he  was in any case entitled to reinstatement. The  High Court held that the appellant was not entitled  to the  protection  of  Art. 311 (2) of  the  Constitution.  It further held that rr. 49 and 55-B of the Rules    did    not apply to the appellant and he was governed   by the contract of  his  service which provided that his services  might  be terminated  without any notice and without any  cause  being assigned  during  the period of probation.  The  High  Court further  held  that rr. 49 and 55-B would not  in  any  case

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apply  to  the appellant in the face of the  contract  under which  he  was appointed in view of r. 3 (a) of  the  Rules. The petition was consequently dismissed, but the High  Court granted  a certificate to the appellant that the case was  a fit one for appeal to 138 this  Court; and that is how the matter has come  up  before us. It, is not in dispute that the appellant was never confirmed in  his appointment.  It is also not in dispute that  though the letter of appointment said that the appellant will be on probation for a period of one year, his probation period was extended  from time to time.  We agree with the  High  Court that though the letter of appointment did not say in so many words  that the probation was likely to be extended, it  was implicit therein that the probation would continue till such time  as  the appellant was confirmed or discharged  and  so would  the-term in the appointment letter that his  services were liable to be terminated without any notice and  without any cause being assigned, during the period of probation. The  first question that falls for determination is  whether the appellant is entitled to the protection of Art. 311 (2); for if he is entitled to that protection it is not  disputed that  that  provision  was not complied with  in  this  case before his services were terminated.  It is now well settled that the protection of Art. 311 of the Constitution  applies to  temporary  government  servants  also  where  dismissal, removal  or reduction in rank is sought to be  inflicted  by way  of  punishment.  But it is equally  well  settled  that where  the  services of a temporary government  servant  are terminated not by way of punishment, Art. 311 will not apply and  the services of such a servant can be terminated  under the  terms  of the contract or by giving him the  usual  one month’s  notice  . [see, Parshotam Lal Dhingra v.  Union  of India  (1)].  Further  it is equally  well  settled  that  a government servant who is on probation can be discharged and such  discharge  would not amount to  dismissal  or  removal within the meaning of Art. 311 (2) and would not attract the protection   of  that  Article  where  the  services  of   a probationer are terminated in accordance with the rules  and not by way of punishment. (1)[1958] S. C. R, 828.  139 A probationer has no right to the post held by him and under the  terms of his appointment he is liable to be  discharged at  any time during the period of his probation  subject  to the rules governing such cases : [see The State of Orissa v. Rant Narain Das (1)].  The appellant in the present case was undoubtedly a probationer.  There is also no doubt that  the termination of his service was not by way of punishment  and cannot  therefore amount to dismissal or removal within  the meaning of Art. 311.  As a probationer he would be liable to be discharged during the period of probation subject to  the rules in force in that connection.  The High Court therefore was right in holding that the appellant was not entitled  to the protection of Art 311 (2) of the Constitution. It  is  however urged on behalf of the  appellant  that  the rules themselves made it obligatory that Art 311 (2)  should be  complied with before the services of a probationer  were terminated.   In  this  connection  reliance  is  placed  on Explanation 2 to r. 49  of the Rules, as amended of  October 10, 1947. That Explanation read as follows : - "The discharge of a probationer whether during or at the end of  the period of probation, for some specific fault  or  on account  of  his unsuitability for the service,  amounts  to

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removal or dismissal within the meaning of this rule." Now  if this Explanation were in force in 1952  when  action was  taken against the appellant, his contention  that  Art. 311 (2) applied to him would be correct, But we find that r. 49  was  further  amended  in  November  1949  and  by  that amendment Explanation 2 was deleted, and a new  Explanation, which took the place of Explanations 1 and 2 of the rule  as it ’Stood ’after the amendment of October 10, 1947 (1)  [1961]  S.C.R. 606, 140 was substituted.  This new Explanation which was in force at the relevant time, is in these terms "The termination of employment- (a)  of a person appointed on probation during or at the end of the period of probation, in accordance with the terms  of the appointment and the rules governing the probationary service ; or (b) (c) does  not amount to removal or dismissal within the  meaning of this rule or of rule 55." Therefore  when  action was taken against the  appellant  in 1952,  it was this Explanation which governed the  appellant and   accordingly  if  his  services  were   terminated   in accordance with- the terms of his appointment and the  rules governing his probationary service and  not as a measure  of punishment, the appellant     cannot claim the protection of Art. 311 (2). His contention based on Explanation 2 to r. 49 as  it  existed after the amendment of  October,  1947  must therefore  fail  as that Explanation had been  deleted  long before  action  was taken against the appellant.   The  main contention  of the appellant therefore that he was  entitled to the protection of Art. 311 must fail. In  the  alternative,  it has been urged on  behalf  of  the appellant that he was entitled to the protection of r. 55- B and  as that rule was not complied with, the termination  of his  service was illegal.  The High Court held that r.  55-B would  not apply to the appellant because in the  letter  of appointment issued to him it was said that his services were liable to be  141 terminated  without any notice and without any  cause  being assigned.  The reason why the High Court held that that term in  the letter of appointment would prevail over r. 55-B  is that  where there is conflict between the terms of  contract and the rules, the former must prevail, under r. 3 (a). Two  questions  thus arise in this connection the  first  is whether  in  view  of r. 3 (a) the  appellant  will  not  be entitled  to  the protection of r. 55-B, and the  second  is whether  he  was afforded the protection of r.  55-B  before action  was  taken  to terminate his service  if  that  rule applies.   Rule 55-B was inserted in the Rules in  November, 1949 and reads thus :- "Where  it  is  proposed to terminate the  employment  of  a probationer  whether during or at the end of the  period  of probation,  for  any  specific fault or on  account  of  his unsuitability  for  the service, the  probationer  shall  be apprised  of  the  grounds of such  proposal  and  given  an opportunity  to  show cause against it,  before  orders  are passed   by  the  authority  competent  to   terminate   the employment." This  rule  would clearly apply to the appellant who  was  a probationer as it was in force at the relevant time,  unless r. 3 (a) makes it inapplicable in view of the term mentioned above  in the letter of appointment issued to him.   Rule  3

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(a) lays down- "These  rules shall apply to every person in the  whole-time civil  employment  of a Government in India  (other  than  a person so employed only occasionally or subject to discharge at less than one month’s notice) except- (a)  persons  for  ’whose  appointment  and  conditions   of employment special provision is made by or under any law for the time being in force ; 142      (b)  x    x    x    x    x    x    x           x    x    x    x    x    x    x" Rule 3(a) thus excludes the application of the Rules only in case  of  persons for whose appointment  and  conditions  of employment special provision is made by or under any law for the  time being in force.  It has not been shown to us  that any  special provision has been made as to  the  appointment and  conditions  of employment of persons in  the  all-India Radio  service  by or under any law for the  time  being  in force.   It cannot be said therefore that the  term  already mentioned, which appears in the letter of appointment issued to  the appellant, is a special provision by virtue  of  any law  or  was inserted under any law for the  time  being  in force.   That term is nothing more than the usual  term  one finds in letters of appointment issued to persons  appointed on  probation.  The High Court was therefore in our  opinion not  right  in holding that r. 55-B will not  apply  to  the appellant because of this term in the letter of  appointment issued  to  him.   We hold that r. 55-B will  apply  to  the appellant and is not excluded by r. 3 (a). The next question is whether r. 55-B was complied with.  The facts  in  that connection are these.  On December  6,  1951 soon after the appellant’s probation was extended up to June 3, 1952, he  was informed that during the period he had been employed  his  work  had been found to  be  much  below  the standard required for the post.  The main defects that  were found  were also pointed out to him, namely,  "(i)  immature taste, (ii) cannot be entrusted to work without"supervision, and (iii) has few ideas but cannot think logically and  plan systematically."  He was therefore given an  opportunity  to remedy the defects and to make attempts to bring himself  up to the standard at least of an average Programme  Assistant. He was further informed that he should  143 do   so  by  systematic  concentration  on   his   subjects, application  to  his  job and by making  wider  studies  and contacts.   He  was told to seek guidance and  help  of  his senior officers wherever required in effecting the necessary improvement.   Finally  he  was told that it  would  not  be possible  to  give him any further  extention  of  probation after  the  present  one and that if his  work  during  that period  did  not  come  up to  the  required  standard,  his services  might have to be terminated.  The  appellant  thus had been warned to improve his work as far back as December, 1951.  On July 4, 1952, the appellant was given a notice  by which  he was afforded an opportunity to show cause why  his services should not be terminated and was informed that  any representation  made  by him in this regard  would  be  duly considered.   The notice said that the appellant’s work  had not come up to the average standard of a Programme Assistant and four defects were pointed out, namely, (i) immaturity in taste,  and want of tact and discretion, (ii)  inability  to think  logically  and  plan systematically,  (iii)  want  of programme  sense  and background necessary  for  an  average programme  man, and (iv) he could not be entrusted  to  work without supervision.  The appellant gave his explanation  in

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reply  to this notice which was duly considered and on  July 31, 1962, he was informed that his explanation had not  been considered  satisfactory and therefore his service would  be terminated after August 31, 1952. It  has been contended on behalf of the appellant that  this was not sufficient compliance with r. 55-B.  That rule  lays down  that the probationer shall be apprised of the  grounds on which it was proposed to terminate his services and given an opportunity to show cause against it.  We are of  opinion that  the  appellant’s  contention must  be  rejected.   The appellant  was  apprised  of the grounds  on  which  it  was proposed  to discharge him.  But what is urged is  that  the elaborate procedure provided 144 in   r. 55 ’should have been gone through under r.     55-B also.   Rule  55  however  deals  with  cases  of   removal, dismissal  or  reduction  in rank,  which  are  specifically covered  by  Art.  311  (2)  of  the  Constitution  and  the procedure prescribed therein is meant for these three  major punishments.   That procedure is not meant to be  applicable under   r.  55-B  which  deals  with  the  discharge  of   a probationer which is not a punishment at all.  Therefore  in a  case covered by r. 55-B all that is required is that  the defects  noticed  in the work which make a  probationer  un- suitable for retention in the service should be pointed  out to  him and he should be given an opportunity to show  cause against  the notice, enabling him to give an explanation  as to the faults pointed out to him and show any reason why the proposal   to   terminate  his  services  because   of   his unsuitability  should  not be given effect to.  If  such  an opportunity  is given to a probationer and  his  explanation in.  reply thereto is given due consideration, there  is  in our  opinion sufficient compliance with r. 55-B.   Generally speaking  the  purpose  of  a notice under  r.  55-B  is  to ascertain,   after  considering  the  explanation  which   a probationer  may give whether he should be retained  or  not and  in such a case it would be sufficient  compliance  with that  rule  if  the  grounds on  which  the  probationer  is considered unsuitable for retention are communicated to  him and  any  explanation  given by him with  respect  to  those grounds is duly considered before an order is passed.   This is what was done in the present case and it cannot therefore be  said  that the appellant was not given  the  opportunity envisaged  by  r. 55-B.  We therefore  dismiss  the  appeal, though for slightly different reasons.  In the circumstances there will be no order as to costs. Appeal dismissed. 145