Ranendra Chandra Banerjee Vs. Union of
India [1963] INSC 41 (18 February 1963)
18/02/1963 WANCHOO, K.N.
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.
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.
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 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 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 (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 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.
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