# RANENDRA CHANDRA BANERJEI v. UNION OF INDIA

- **Citation:** [1964] 2 S.C.R. 135
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. HrnAYATULLAH, K. C. DAS GuPTA, j. C. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ranendra-chandra-banerjei-v-union-of-india-2830
- **Pages:** 10

## Headnote

P11blic Servant-Probationer-Discharg• from servir;,, for
unsali•faclory work-If tntitled to 7irottrtion under the Con•titution and the Rule8-Ci·•il Sm·ices (Cla•sification, Control «nd
Appeal) Rul11, rr. 3 (a), 49, 55-B-Con8titution of India,
Art. 311 (2).
The appellant was appointed on probation for one year
as Programme Assistant on May 3, 1949, on condition that
his 1ervice1 might be terminated without any notice and cause
being assigned during that period.
He agreed and joined service on these terms on July 4, 1952, 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 rr. 49 and
55-B of the Civil Services Rules did not apply and that he was
governed by the contract of hio service.
Held, that in the present case the appellant was a pro·
bationer 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. 311. As a prob•tioner he would
be liable to be discharged during that period subject to the
196~
Thi T•t• Oil Mill•
Co,, Lti.
v.
W1.1rkmen
Gajendrag5ikar J.
1963
Feiruary 11.
JjfjJ
li•nenJ11, Ck4nJr•
••n1rj1e
••
Uri;•n •f lniia
136
SUPREME COURT REPORTS [1964] VOL.
ruk• in force in that connection and a• Explanation 2 to r; ~9
had been deleted long before the action wa• taken, he wa• not
entitled to the protection of Art. 311.
Par.shottam Lal Dhingra v. If nimt of India, [ 1958] S. C. R.
828 and State of Oris•a v. Ram Narai11 Dai [!961) l S.C.R,
606, referred to.
Held, tuther, that r. 5j.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 ground, on which the probationer i• considered
unsuitable for retention are r.01nrnunicated to him and any
explanation given by him wit!1 respect to tho•e ground, was
duly considered before an order was pa.sed.
In the present
casr, thecdore, the appellant w.is given the opportunity a• envisaged by r. 55-B and the appeal therefore, must be di.missed.
C1vrL APl'ELLA'l'E JumsDIC"fION : Civil Appeal
No. 271 of 19ti2.
Appeal from the Judgment and order dated
May l8, 19:ifl of the Punjab High Court (Circuit
Bench) at Delhi in L. !'. A. No. 24-D of 1956.
K. H. Jlehta, for the appellant.
N. 8. Bindra, fl. H. Dhe.bar for R. N. 8achthey, for the respond en ts.
HJti3.
February 18. The Judgment of the
Court was delivered by
W ANCHOO ].-This is an appeal on a certi·
ficate granted by the Punjab High Court.
The
app~llant was selected for the post of Programme
Assistant on May :3, 194!) and was appointed on
probation fo~ one year'. and '.he l~tter o~ appo!ntment
said that dunng the said penod his services might be
terminated without any notice and
without any
cause being assigned.
He was asked to accept the
nft'er on this condition. The appellant accepted tbe
...
2 S.C.R.
SUPREME COURT REPORTS
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 ir1formed that his probation period
,:ould not be extended and was called upon to show
cause why his services should •not be terminated.
The appellant showed cause.
, He was finally informed 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. 311 (2) of the
Constitution and

## Text

2 S.C.R.
SUPRE~fE C< r 1RT REPORTS
135
appellant to reinstate Mr. Banerjee is set aside. In
the circumstances of the case, there would be no order
a~ to costs.
Appeal allowed.
RANENDRA CHANDRA BANERJEI
v.
UNION OF INDIA
(P. B. GAJENDRAGADKAR, K. N. WANCHOO,
M. HrnAYATULLAH, K. C. DAS GuPTA and
j. C. SHAH jj.)
P11blic Servant-Probationer-Discharg• from servir;,, for
unsali•faclory work-If tntitled to 7irottrtion under the Con•titution and the Rule8-Ci·•il Sm·ices (Cla•sification, Control «nd
Appeal) Rul11, rr. 3 (a), 49, 55-B-Con8titution of India,
Art. 311 (2).
The appellant was appointed on probation for one year
as Programme Assistant on May 3, 1949, on condition that
his 1ervice1 might be terminated without any notice and cause
being assigned during that period.
He agreed and joined service on these terms on July 4, 1952, 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 rr. 49 and
55-B of the Civil Services Rules did not apply and that he was
governed by the contract of hio service.
Held, that in the present case the appellant was a pro·
bationer 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. 311. As a prob•tioner he would
be liable to be discharged during that period subject to the
196~
Thi T•t• Oil Mill•
Co,, Lti.
v.
W1.1rkmen
Gajendrag5ikar J.
1963
Feiruary 11.
JjfjJ
li•nenJ11, Ck4nJr•
••n1rj1e
••
Uri;•n •f lniia
136
SUPREME COURT REPORTS [1964] VOL.
ruk• in force in that connection and a• Explanation 2 to r; ~9
had been deleted long before the action wa• taken, he wa• not
entitled to the protection of Art. 311.
Par.shottam Lal Dhingra v. If nimt of India, [ 1958] S. C. R.
828 and State of Oris•a v. Ram Narai11 Dai [!961) l S.C.R,
606, referred to.
Held, tuther, that r. 5j.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 ground, on which the probationer i• considered
unsuitable for retention are r.01nrnunicated to him and any
explanation given by him wit!1 respect to tho•e ground, was
duly considered before an order was pa.sed.
In the present
casr, thecdore, the appellant w.is given the opportunity a• envisaged by r. 55-B and the appeal therefore, must be di.missed.
C1vrL APl'ELLA'l'E JumsDIC"fION : Civil Appeal
No. 271 of 19ti2.
Appeal from the Judgment and order dated
May l8, 19:ifl of the Punjab High Court (Circuit
Bench) at Delhi in L. !'. A. No. 24-D of 1956.
K. H. Jlehta, for the appellant.
N. 8. Bindra, fl. H. Dhe.bar for R. N. 8achthey, for the respond en ts.
HJti3.
February 18. The Judgment of the
Court was delivered by
W ANCHOO ].-This is an appeal on a certi·
ficate granted by the Punjab High Court.
The
app~llant was selected for the post of Programme
Assistant on May :3, 194!) and was appointed on
probation fo~ one year'. and '.he l~tter o~ appo!ntment
said that dunng the said penod his services might be
terminated without any notice and
without any
cause being assigned.
He was asked to accept the
nft'er on this condition. The appellant accepted tbe
...
2 S.C.R.
SUPREME COURT REPORTS
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 ir1formed that his probation period
,:ould not be extended and was called upon to show
cause why his services should •not be terminated.
The appellant showed cause.
, He was finally informed 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. 311 (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 be half 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 he was en tit led 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 (il) 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
1963
Ranenirti Chandrn
B&nerjee
v.
Union of [ndil!
H1anchoo J.
1963
Rmund1a Chand1a
8antrj11
v.
l.l11iofl of India
~V!lndwo J.
138
SUPREME COURT REPORTS [1964) vot.
this Court; and that is how the matter has come up
before us.
It is not in dispute that the appellant was never
confirmed iu l1is appui11tmcnt.
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 probatio11 period was extended from time tu
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 wm 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 arc 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, Parshotrm1 Lal Dhi11,1;ra v. U12ion of India(')].
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. :ll I (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 \~ay of punishment.
U) [t958] S. C.R. 828.
'
-
'
-
•
2 S.C.R.
SUPREME COURt REPORTS
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 '.l'he State of Ori8sa v. Rant Narain Dos (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 <imount 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 on October 10, 194 7.
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, 194 7
(I) (1961] 1 S.C.R.'606,
1963
Rancndra Chan.drn
Banerjea
v.
Union of India
Wanchoo J,
1963
Rontridro (Ji.,ui,4
Banrrje•
v.
Union •f India
H'011rhoo J,
140 SUPREME COURT REPORTS [1964] VOL.
was substituted.
This new Explmu1tfrm 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 i'ifi."
Therefore when action was taken against the appellant in 'l!.l52, it was this E.r.plm11Jtiun 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 gr,pfonation
2 tor. 49 as it existed
after the amendment of
October, I !H7 must therefore fail as that Hxplrmation
had been deleted long before
action was taken
against the appellant.
The main contention of the
appellant therefore that he wa5 entitled to the protection of Art. :i 11 must fail.
In the alternative, it has been urged on behalf
of the appellant that he was entitled to the prot~c
tion of r. 55-B and as that rule was not complied
with, the termination o( 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 servie~s were liable to be
\
-
-
-
2 S.C.R.
SUPREME COURT REPORTS
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 ;
1963
Rarundra Charuir•
Baner}ee
v.
Union of India
Wan1;hoo J.
1963
Rtuitttdra ClwAdra
B41ltrj11
v.
Union of lntfia
11-an<hoo 1.
I
'
142
SUPREME COURT REPORTS (1964] VOL.
(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
on! y in case of persons for whose appointment and
conditions of employment special provision is made
by or under any law fur 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·lndia 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 th<' time being in force.
That term is
nothing more than the usual term C'oe finds in lctlers
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. 5:3-B will apply to the appellant and is not excluded by r. 3 (a).
The next question is
whether r. 5.5-B was
complied with. The facts in that connection are
these.
On December Ci, l!J.'iJ soon after the appellant's probation was extended up to J unc 3, I 052,
he was informed that during the period hr. had been
employed his work had been found to be much below
the standard required for the post.
The main <lefects
that were found were also pointed out to him.
namely, "(i) immature taste, (ii) cannot be entrusted
to work without supervision, and (iii) has frw 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 st;in<lard at least of "n avtrage Programme
Assistant.
He was further informed that he should
l
-
-
2 S.C.R. SUPREME COURT REPORTS
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 ba(k 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 l;,ys down that the probationer
shall be appri1ed of the grounds on which it was
proposed to terminate his services and given an
opportunity to show cause against it. \'Ve are of
opinion that the appellant's contention must be
rejected.
The appellant was apprised of the grou'lds
on which it was proposed to discharge him.
But
wh'.lt jq urged is that the elaborate procedure provided
I
1963
Ran,,ndra Chartdu.
Banerjee
••
Union of'fndia
Wanchoo J.
1963
Hot-t.ritlra Chandro
v.
Un.011 of ln1ia -
Utcn(h9o 1
144 SUPREME COURT REPORTS [1964] VOL.
in r. 55 should have been
gone through under
r. 55-B also.
Rule 55 however deals with cases of
rerrn>\'al. dismissal or reciuction in rank, which arc
spccilically covered by Art. :Ill ('.?J of the Constitu·
tion 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 unsuitable 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.Ji5-B. Generally
speaking the purpose of a notice under r. 55-B is
to
~certain, 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. :35-B.
We therefore
dismiss the
appeal, though for
slightly different
_reasons.
In the circumstances there will be no order
as to costs.
Appeal dismiesed .
•