Case: Ranendra Chandra Banerjee Vs. Union Of India

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 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,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 toHigh 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 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.

Reasoning:
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 ofis 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 months notice . [see, Parshotam Lal Dhingra v. Union of India ([1958] S. C. R, 828.)]. 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. 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 ( )]. 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 werehas 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. 3in 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.