Full Judgment Text
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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
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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
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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
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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.
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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,
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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
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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 ;
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(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
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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
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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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