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: Civil Appeal 271 of 1962

Decision Date: 18 February 1963

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

In this case the Supreme Court, comprising Justices K.N. Wanchoo, P.B. Gajendragadkar, M. Hidayatullah, K.C. Das Gupta and J.C. Shah, recorded that the petitioner, Ranendra Chandra Banerjee, had been appointed on probation as a Programme Assistant for a period of one year. The appointment letter, dated May 3 1994, expressly stated that during the probation his services could be terminated without any notice and without assigning any cause. The petitioner accepted these terms and entered service on July 4 1932. Subsequently he was called upon to show cause why his services should not be terminated; the explanation he gave was held to be unsatisfactory and his services were therefore terminated after August 31 1952. He then moved an application under Article 226 of the Constitution, seeking protection under Article 311(2) and relief under Rules 49 and 55‑B of the Civil Services (Classification, Control and Appeal) Rules. The High Court dismissed the application, holding that the petitioner was governed by the contract of his service and was not entitled to the constitutional protection, and that the aforementioned rules did not apply.

The Supreme Court examined whether the termination amounted to dismissal or removal within the meaning of Article 311. It observed that the petitioner was a probationer and that termination during probation is not a punitive measure; consequently such termination cannot be characterised as dismissal or removal for the purposes of Article 311. The Court noted that a probationer may be discharged during the probationary period subject to the rules in force at the relevant time, and that Explanation 2 to Rule 49 had been deleted long before the action was taken, eliminating any basis for claiming protection under Article 311. The Court referred to the authorities 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) in support of its reasoning.

Further, the Court held that Rule 53‑B applied to the petitioner and was not excluded by Rule 3(a). It explained that the purpose of a notice under Rule 55‑B is to determine, after considering any explanation the probationer may give, whether the probationer should be retained. Compliance with Rule 55‑B is satisfied when the grounds for deeming the probationer unsuitable are communicated to him and his explanation on those grounds is duly considered before an order is passed. In the present case the Court found that the petitioner had been afforded the opportunity envisaged by Rule 55‑B. Accordingly, the Court concluded that the appeal must be dismissed.

The appeal was dismissed. The matter arose under the civil appellate jurisdiction in Civil Appeal 271 of 1962, which challenged the judgment and order dated 18 May 1959 issued by the Punjab High Court (Circuit Bench) at Delhi in L P A No 24‑D of 1956. Counsel K B Mehta represented the appellant, while counsel N S Bindra and R H Dhebar appeared for the respondents, identified as R N Sachthey. The judgment was delivered on 18 February 1963 by Justice Wanchoo.

This appeal concerned a certificate that the Punjab High Court had granted, permitting the case to be taken to this Court. The appellant had been selected for appointment as Programme Assistant on 3 May 1949 and was appointed on a one‑year probationary basis. The appointment letter expressly stated that, during the probationary period, his services could be terminated without any notice and without assigning any cause. The appellant was required to accept the appointment on that condition, which he did, and he entered service on 4 June 1949.

The original period of probation expired on 3 June 1950, but the probation was subsequently extended on several occasions. On 4 July 1952, the appellant received notice that his probation could no longer be extended and that he was required to show cause why his services should not be terminated. The appellant responded with a written explanation, but he was later informed that his explanation was unsatisfactory and that his services would be terminated effective 31 August 1952.

Following the termination, the appellant filed a petition under Article 226 of the Constitution in the Punjab High Court. He contended that he was entitled to the protection afforded by Article 311(2) of the Constitution and that the termination order was therefore illegal because that protection had not been observed. He further argued that the Civil Services (Classification, Control and Appeal) Rules, specifically rules 49 and 55‑B (referred to as “the Rules”), governed his appointment, which would entitle him to the safeguards contained in those rules. Since his termination had occurred without compliance with the Rules, he claimed a right to reinstatement.

The Punjab High Court held that the appellant was not covered by the protection of Article 311(2). It further concluded that rules 49 and 55‑B of the Rules did not apply to him because his service was governed by the contractual terms of his appointment, which permitted termination without notice or cause during probation. The Court also found that, in view of rule 3(a) of the Rules, the contractual provision excluded the application of rules 49 and 55‑B. Consequently, the petition was dismissed. However, the High Court granted a certificate confirming that the case was appropriate for appeal to this Court, leading to the present proceedings. It is not in dispute that the appellant had not been confirmed in his appointment.

It was undisputed that the appellant had never been confirmed in his appointment. The appointment letter stated that he would be on probation for one year, but his probation was subsequently extended on several occasions. The Court agreed with the High Court that, although the letter of appointment did not expressly state that the probation could be extended, the document implicitly provided that the probation would continue until the appellant was either confirmed 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 principal 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 not disputed that the statutory conditions prescribed by that article had not been observed before his services were terminated. It was well settled that the protection of Article 311 extended to temporary government servants where dismissal, removal or reduction in rank was inflicted as a punishment. Equally well settled, however, was the principle that when the services of a temporary government servant were terminated for reasons other than punishment, Article 311 did not apply, and the termination could be effected under the terms of the contract or by giving the usual one‑month notice. [see, Parshotam Lal Dhingra v. Union of India (1)]. Further, it was also settled that a government servant who was on probation could be discharged, and such discharge would not amount to dismissal or removal within the meaning of Article 311 (2); consequently, it would not attract the protection of that article provided the discharge was carried out in accordance with the applicable rules and not as a punitive measure. (1)[1958] S. C. R. 828.

The Court noted that a probationer possessed no right to the post he held and, under the terms of his appointment, could be discharged at any time during the probationary period subject to the governing rules [see The State of Orissa v. Rant Narain Das (1)]. The appellant in the present case was undeniably a probationer, and there was no doubt that his termination was not punitive in nature and therefore could not be classified as dismissal or removal within the meaning of Article 311. As a probationer, he was liable to be discharged during the probationary period in accordance with the rules in force. Accordingly, the High Court was correct in holding that the appellant was not entitled to the protection of Article 311 (2) of the Constitution. Nonetheless, the appellant contended that the rules themselves imposed a duty to comply with Article 311 (2) before a probationer’s services could be terminated.

In examining the matter, the Court considered the effect of Explanation 2 to rule 49 of the Rules as amended on 10 October 1947. That Explanation stated that the discharge of a probationer, whether during or at the end of the probationary period, for a specific fault or because of unsuitability, constituted removal or dismissal within the meaning of the rule. The appellant had contended that, had this Explanation been in force at the time the action was taken against him in 1952, his claim that article 311(2) of the Constitution applied would have been correct. However, the Court found that rule 49 underwent a further amendment in November 1949, by which Explanation 2 was repealed and a new Explanation was inserted, replacing both explanations that had existed after the 1947 amendment. The new Explanation, which was operative at the relevant time, read that the termination of employment of a person appointed on probation, whether during or at the end of the probationary period, “in accordance with the terms of the appointment and the rules governing the probationary service” does not amount to removal or dismissal within the meaning of this rule or of rule 55. Consequently, when the appellant’s services were terminated in 1952, the governing provision was this new Explanation. Because the termination was carried out in accordance with the appointment terms and the applicable rules and was not a punitive measure, the appellant could not rely on the protection of article 311(2). His reliance on the deleted Explanation 2 therefore failed, as that provision had been removed well before any action was taken against him, and his principal claim to constitutional protection could not succeed.

The appellant also argued, alternatively, that he was entitled to the protection of rule 55‑B and that the failure to comply with that rule rendered his dismissal illegal. The High Court had held that rule 55‑B did not apply because the letter of appointment expressly stated that his services could be terminated without notice and without assigning any cause. The High Court reasoned that, where a contractual term conflicts with a rule, the contractual term prevails under rule 3(a). This raises two questions for consideration: first, whether rule 3(a) indeed precludes the appellant from invoking the protection of rule 55‑B; and second, whether, if rule 55‑B were applicable, the appellant had been afforded its protection before the termination of his service was effected.

In this case the Court examined whether Rule 55‑B could be invoked to terminate the appellant’s service, noting that the rule had been inserted into the service regulations in November 1949. Rule 55‑B provides that when a probationer is proposed to be dismissed either during the probationary period or at its conclusion, for any specific fault or because of unsuitability, the probationer must be informed of the reasons. The probationer must also be given an opportunity to show cause before the competent authority passes an order of termination. Since the appellant was a probationer and the rule was in force at the relevant time, the rule would clearly apply to him unless Rule 3(a) rendered it inapplicable because of the clause in his appointment letter. Rule 3(a) stipulates that the service rules apply to every person in whole‑time civil employment of the Government of India, except where a person’s appointment and conditions of employment are governed by a special provision made by or under any law then in force. It further excludes application of the rules only for those categories specifically listed in the provision. The Court noted that no special provision had been shown to exist for appointments and conditions of service of personnel in the All‑India Radio service under any statute then prevailing. Consequently, the clause in the appellant’s appointment letter, which stated that his services could be terminated without notice or cause, could not be considered a statutory special provision. The Court characterized that clause as a routine term commonly found in letters of appointment issued to probationers, rather than a law‑based exception. Therefore the High Court’s conclusion that Rule 55‑B was displaced by the appointment‑letter clause was deemed erroneous by the Court. The Court held that Rule 55‑B indeed applied to the appellant and that the exclusion articulated in Rule 3(a) did not bar its operation in this case. Having resolved the applicability issue, the Court turned to the question of whether the requirements of Rule 55‑B had been satisfied in the appellant’s termination. The factual record showed that on 6 December 1951, shortly after the appellant’s probation had been extended to 3 June 1952, he was informed that his work had been found substantially below the standard required for the post. The notice identified specific deficiencies, namely an immature taste, inability to work without supervision, and a lack of logical thinking and systematic planning. He was therefore given

In December 1951, after the appellant’s probation had been extended to 3 June 1952, he was told that his performance was far below the standards expected of a Programme Assistant. The authorities identified three principal shortcomings: an immature taste, the inability to work without supervision, and a lack of logical thinking and systematic planning. He was then offered a chance to correct these deficiencies and was advised to improve by concentrating systematically on his subjects, applying himself diligently to his duties, and expanding his studies and professional contacts. He was instructed to seek guidance and assistance from senior officers whenever necessary to achieve the required improvement. The communication also warned that no further extension of probation would be granted after the current period and that failure to reach the required standard could result in termination of his services. Thus, the appellant received a clear warning to improve his performance as early as December 1951.

On 4 July 1952, the appellant received a formal notice inviting him to show cause why his services should not be terminated and indicating that any representation he made would be duly considered. The notice stated that his work had not met the average standard of a Programme Assistant and listed four specific defects: immaturity in taste and lack of tact and discretion; inability to think logically and plan systematically; deficiency of programme sense and necessary background for an average programme officer; and inability to work without supervision. The appellant responded to this notice, providing an explanation, which was examined by the authorities. On 31 July 1952, he was informed that his explanation was unsatisfactory and that his service would be terminated effective 31 August 1952.

The appellant argued that this procedure did not satisfy the requirements of rule 55‑B, which mandates that a probationer be informed of the grounds for proposed termination and be given an opportunity to show cause. The Court rejected this contention, noting that the appellant had indeed been apprised of the grounds for his proposed discharge and had been given a chance to respond. The appellant further contended that the detailed procedure of rule 55, applicable to removal, dismissal, or reduction in rank under Article 311(2) of the Constitution, should also have been followed under rule 55‑B. The Court clarified that rule 55 deals with punitive actions such as removal, dismissal, or reduction in rank, whereas rule 55‑B concerns the discharge of a probationer, which is not a punishment. Consequently, the only requirement under rule 55‑B is to point out the work defects that render the probationer unsuitable for retention and to allow the probationer to show cause, with due consideration of any explanation offered. Having satisfied these requirements, the Court concluded that the appellant had been given the opportunity envisioned by rule 55‑B. Therefore, the appeal was dismissed, and no order as to costs was made.

The Court explained that the probationer must be informed of the defects identified in his work and must be allowed to show any reason why the proposal to terminate his services on the ground of unsuitability should not be given effect. When such a chance is afforded to a probationer and the explanation he provides in response is duly considered, the Court held that this satisfies the requirements of Rule 55‑B. In general, the purpose of a notice issued under Rule 55‑B is to determine, after hearing the probationer’s explanation, whether he ought to be retained in service. Accordingly, compliance with the rule is achieved if the specific reasons that render the probationer unsuitable for retention are communicated to him, and if his responses to those reasons are carefully evaluated before any final order is made. The Court observed that the present proceedings followed exactly this procedure. The appellant had been told the grounds of his unsuitability, had been given an opportunity to respond, and his response had been considered before the decision to terminate his service was taken. Hence the Court concluded that the appellant had indeed been given the opportunity envisaged by Rule 55‑B. For those reasons, the Court dismissed the appeal. The Court noted that the dismissal was based on reasoning that differed slightly from earlier points, but nonetheless no order regarding costs was made. The appeal was therefore dismissed.