Ranendra Chandra Banerjee vs Union of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 18 February, 1963

Coram: J.C. Shah, K.C. Das Gupta, K.N. Wanchoo, M. Hidayatullah, P.B. Gajendragadkar

In this appeal, the Supreme Court considered a certificate that had been granted by the Punjab High Court. The appellant, who had been selected for the post of Programme Assistant on 3 May 1949, had been appointed on a probationary basis for a period of one year. The appointment letter expressly stated that during the probationary period his services could be terminated without any notice and without any cause being assigned, and that he was required to accept the appointment on that condition. The appellant accepted the offer and entered upon his duties on 4 June 1949. Although his initial period of probation was scheduled to expire on 3 June 1950, the probation was extended repeatedly. On 4 July 1952, the appellant received a notice informing him that his probation could not be extended further and that he was required to show cause why his services should not be terminated. After submitting his explanation, he was informed that the explanation was unsatisfactory and that his services would be terminated effective after 31 August 1952.

The appellant subsequently instituted a petition under Article 226 of the Constitution in the Punjab High Court. His principal contention was that he was protected by Article 311(2) of the Constitution, which requires that the procedure prescribed by that article be observed before dismissal of a government servant. He argued that the failure to accord him the protection of Article 311(2) rendered the termination order illegal. In addition, the appellant submitted that his service was governed by Rules 49 and 55‑B of the Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as “the Rules.” He maintained that, because the termination had been effected without compliance with those rules, he was entitled to reinstatement.

The Punjab High Court held that the appellant was not entitled to the protection of Article 311(2) of the Constitution. The court further concluded that Rules 49 and 55‑B of the Rules did not apply to the appellant, because his employment was governed by the contractual terms of his appointment, which expressly permitted termination without notice or cause during the probationary period. The High Court also observed that, in view of Rule 3(a) of the Rules, the provisions of Rules 49 and 55‑B could not be invoked against the appellant. Consequently, the petition was dismissed. Nevertheless, the High Court granted a certificate, stating that the matter was fit for an appeal to the Supreme Court, and that certificate enabled the appellant to bring the case before this Court.

The record shows that the appellant was never confirmed in his appointment. It is also undisputed that, although the appointment letter specified a probationary period of one year, the probation was subsequently extended on multiple occasions. The High Court had earlier observed that while the letter of appointment did not expressly state that the probation could be extended, it was implicit that the probation would continue until such time as the appellant was either confirmed or discharged, and that the clause permitting termination without notice or cause during probation applied throughout the extended period.

In the present matter the appellant was appointed on probation for a period of one year, but his probation was extended repeatedly. The Court agrees with the High Court that although the appointment letter did not expressly state that the probation could be extended, it was implicit that the probation would continue until the appellant was either confirmed in his post or discharged. The same letter also contained the term that his services could be terminated without any notice and without assigning any cause during the probationary period.

The first issue for determination was whether the appellant was entitled to the protection of Article 311(2) of the Constitution. If such protection applied, it was undisputed that the requirements of that provision had not been complied with before his services were terminated. It is now well settled that the protection of Article 311 extends to temporary government servants only when a dismissal, removal or reduction in rank is imposed as a punishment. Conversely, when the termination of a temporary servant’s services is not punitive, Article 311 does not apply and the servant may be terminated under the terms of his contract or by giving the usual one‑month notice, as explained in Parshotam Lal Dhingra v. Union of India [(1958) S.C.R. 828.]. It is equally well settled that a government servant who is on probation may be discharged, and such discharge does not amount to dismissal or removal within the meaning of Article 311(2); consequently, the protection of that article does not arise where a probationer’s services are terminated in accordance with the applicable rules and not as a punishment. A probationer has no right to retain the post he occupies and, under the terms of his appointment, may be discharged at any time during the probationary period, subject to the relevant rules, as held in The State of Orissa v. Ram Narain Das. The appellant in this case was undeniably a probationer, and there is no doubt that the termination of his service was not punitive and therefore could not be described as dismissal or removal within the meaning of Article 311(2). As a probationer, he was liable to be discharged at any time during the probation, subject to the governing rules. Accordingly, the High Court was correct in holding that the appellant was not entitled to the protection of Article 311(2) of the Constitution.

Nevertheless, the appellant contended that the rules themselves imposed an obligation to comply with Article 311(2) before a probationer could be terminated. In support of this contention reliance was placed on Explanation 2 to Rule 49 of the Rules, as amended on 10 October 1947. That explanation read: “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.”

In the judgment, the Court quoted the Explanation to rule 49 as it stood after the amendment of 10 October 1947, which read: “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.” The Court observed that if that Explanation had been in force in 1952, when the appellant’s service was terminated, the appellant’s contention that article 311(2) of the Constitution applied to him would have been correct. However, the Court noted that rule 49 had been further amended in November 1949, at which time Explanation 2 was deleted and a new Explanation was inserted, replacing both earlier explanations. The new Explanation, which was operative at the relevant time, stated: “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) … does not amount to removal or dismissal within the meaning of this rule or of rule 55.” Consequently, when action was taken against the appellant in 1952, the governing provision was this new Explanation. The Court therefore held that if the appellant’s services were terminated in accordance with the terms of his appointment and the applicable probation rules, and not as a punitive measure, he could not invoke the protection of article 311(2). The appellant’s reliance on the earlier Explanation to rule 49 was dismissed because that Explanation had been repealed well before the termination of his service. The Court concluded that the appellant’s principal claim to constitutional protection failed. In the alternative, the appellant argued that rule 55‑B should protect him and that its non‑observance rendered his termination illegal. The High Court had held that rule 55‑B did not apply because the appellant’s appointment letter expressly stated that his services could be terminated without notice and without assigning any cause. The High Court reasoned that, where the terms of a contract conflict with the rules, the contractual terms prevail under rule 3(a). This raised two questions: first, whether rule 3(a) precludes the appellant from the protection of rule 55‑B; and second, whether the appellant was afforded the safeguards of rule 55‑B before his service was terminated, assuming that rule applied. Rule 55‑B had been inserted into the Rules in November 1949 and read as follows: “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.” The Court noted that this rule would clearly apply to the appellant, who was a probationer, unless rule 3(a) rendered it inapplicable because of the term in his appointment letter. Rule 3(a) provides that the rules apply to every person in whole‑time civil employment of the Government in India, except where a special provision is made by law.

Rule 55‑B was quoted in the judgment as follows: when the employment of a probationer is to be terminated, either during the probationary period or at its conclusion, on the ground of a specific fault or of unsuitability for the service, the probationer must be informed of the reasons for the proposed termination and must be given a chance to show cause before the competent authority passes the termination order. The Court observed that this rule clearly applied to the appellant because he was a probationer and the rule was in force at the relevant time. However, the Court examined whether Rule 3(a) might render Rule 55‑B inapplicable because of a clause in the appellant’s letter of appointment stating that his service could be terminated without notice or cause. Rule 3(a) provides that the Rules apply to every person in whole‑time civil employment of the Government of India, except where a special provision for appointment and conditions of service is made by or under any law then in force. The Court noted that the appellant’s appointment was in the All‑India Radio service and that no special provision under any statute had been shown to govern the appointment or conditions of service of employees of that service. Consequently, the clause in the letter of appointment could not be regarded as a statutory special provision. The Court further held that such a clause was a usual term found in probationary appointment letters and did not override the statutory Rules. Accordingly, the Court concluded that Rule 55‑B was not excluded by Rule 3(a) and therefore remained applicable to the appellant.

The next issue before the Court was whether the requirements of Rule 55‑B had been complied with in the appellant’s case. The Court set out the relevant facts. On 6 December 1951, shortly after the appellant’s probation had been extended to 3 June 1952, he received a communication stating that his work during the period of employment had been judged to fall far below the standard required for the post. The communication detailed three principal deficiencies: an immature taste, an inability to work without supervision, and a lack of logical thinking and systematic planning. The appellant was informed of these defects and was given an opportunity to remedy them and to make efforts to raise his performance to the level expected of a Programme Assistant. This notice therefore constituted an opportunity to show cause and an invitation to improve, as mandated by Rule 55‑B, before any termination order could be issued.

The appellant was told that he must bring his performance up to at least the level of an average Programme Assistant. He was further instructed to achieve this improvement through systematic concentration on his subjects, diligent application to his duties, and by undertaking wider studies and establishing professional contacts. He was also advised to seek the guidance and assistance of his senior officers whenever such help was required to effect the necessary improvement. Finally, he was informed that no further extension of his probation would be granted after the present period and that failure to meet the required standard could result in termination of his services. Accordingly, the appellant had been warned to improve his work as early as December 1951, and the warning was recorded as the first formal notice of deficiency. On 4 July 1952, a notice was served on the appellant granting him an opportunity to show cause why his services should not be terminated and stating that any representation he made would be considered. The notice expressly observed that the appellant’s work had failed to reach the average standard expected of a Programme Assistant and identified four specific defects. The defects were described as (i) immaturity of taste with a lack of tact and discretion, (ii) inability to think logically and plan systematically, and (iii) absence of sense and background of an average man. A fourth defect identified in the notice was that the appellant could not be entrusted with any work without the constant supervision of senior officers. The appellant responded to notice by submitting an explanation, which authorities examined, and on 31 July 1962 they communicated that his explanation was unsatisfactory and that his services would cease after 31 August 1952.

The appellant contended that the steps taken did not satisfy the requirements of rule 55‑B, which he argued demanded a more elaborate procedure. Rule 55‑B provides that a probationer shall be informed of the specific grounds on which his discharge is proposed and shall be given an opportunity to show cause against that proposal. The judgment held that the appellant had indeed been apprised of the grounds for his proposed discharge and had been afforded a chance to explain himself. The appellant’s argument was that the detailed procedure laid down in rule 55, which applies to removal, dismissal or reduction in rank, should also have been followed in the case of a probationer. Rule 55, however, deals with matters that are covered by article 311(2) of the Constitution and prescribes a procedure intended for those three major punishments. Because discharge of a probationer is not regarded as a punishment, the procedure of rule 55 does not apply to a case governed by rule 55‑B. Consequently, compliance with rule 55‑B is satisfied once the authority identifies the deficiencies that render the probationer unsuitable for retention, communicates those deficiencies to him, and gives him a reasonable opportunity to show cause. The notice served on 4 July 1952 and the subsequent consideration of the appellant’s explanation fulfilled those requirements. Therefore the appellate tribunal concluded that the appellant had been given the opportunity envisioned by rule 55‑B and that the procedural compliance was adequate.

The Court observed that a ground based solely on the probationer’s alleged unsuitability could not be given effect unless the probationer was first afforded a reasonable opportunity to respond. It held that if a probationer receives such an opportunity and his reply is considered with proper regard, the requirements of Rule 55‑B are satisfied. The Court explained that, in general, the purpose of a notice issued under Rule 55‑B is to determine, after hearing the probationer’s explanation, whether the probationer should be retained in service. Accordingly, compliance with the rule is deemed complete when the reasons for deeming the probationer unsuitable are communicated to him, and his explanations concerning those reasons are duly evaluated before any final order is made. The Court noted that these steps had been followed in the case before it. Consequently, the Court concluded that the appellant had, in fact, been given the opportunity contemplated by Rule 55‑B and therefore could not be said to have been denied his procedural rights. On that basis, the Court dismissed the appeal, stating that the dismissal was for reasons slightly different from those previously discussed. The Court further ordered that no costs would be awarded in the circumstances.