JUDGMENT
B.N. Banerjee, J.
1. While transportation was a West Bengal Government concern, the petitioner was appointed as a driver, by the Director of Administration, in the Directorate of Transportation, in November 1952 on a monthly salary of Rs. 90 plus usual dearness and house-rent allowances. The appointment was subject to the following conditions:
(a) He shall be on probation for six months and unless he is appointed substantively on the expiry of his probationary period, his service will terminate without any further notice.
(b) The post is purely temporary and is terminable at any time without any notice.
In March 1953, the said Director of Administration promoted the petitioner to the position of a driver-mechanic with effect from March 1953, by office order No. 1918 (3), dated 26 March 1953, and attached him to the Lake Depot of the directorate. While working as such, the petitioner was suspended from office on 3 May 1958, by respondent 2, officer-in-charge, Lake Depot, and was put on a subsistence allowance. The petitioner was not informed of the reasons for suspension until 8 October 1958, when he was called upon to show cause why he should not be removed from service or otherwise punished for misappropriation of twelve items of tool entrusted to his care. The petitioner showed cause denying the charge. There was a departmental enquiry started against the petitioner in which the petitioner participated. As a result of the enquiry the following order was passed against the petitioner, on 5 March 1959:
His explanation referred to above has been duly considered and after careful consideration of the same the undersigned has come to the conclusion that the charge framed against him has been established in part.
So he is hereby warned to be more careful in future and allowed to resume duty forthwith.
The period of his suspension will be treated as on leave on such pay as is admissible under the rules.
The petitioner says that he moved against the order, under Article 226 of the Constitution and obtained a rule, which is said to be pending. With that, however, I am not at present concerned.
2. After the petitioner had obtained the rule from this Court, respondent 2, officer-in-incharge Lake Depot, terminated the service of the petitioner by a letter, dated 29 December 1959, in the language hereinafter set out:
Your temporary service in this directorate will not be required with effect from 1 February 1960.
You are directed to take one month’s salary in lieu of one month’s notice.
You are further directed to deposit all the articles issued to you by this directorate within seven days of receipt of this order failing which appropriate legal action will be taken against you to realize the same.
3. Against the aforesaid order the petitioner moved this Court, under Article 226 of the Constitution, praying for a writ of mandamus restraining the respondents from giving effect to the order dated 29 December 1969, for a writ of certiorari quashing the aforesaid order and for a writ of prohibition prohibiting the respondents from giving further effect to the order and obtained this rule on 16 March 1960.
4. Since after the issue of this rule the State Transport Corporation, established under the Road Transport Corporation Act, 1960, took over State transportation with effect from 15 June 1960 and the petitioner brought the Calcutta State Transport Corporation on the record.
5. The grounds on which this rule was originally issued were four in number, namely:
(a) The said purported order was passed without giving your petitioner any opportunity whatsoever of making any representation against the said purported order being made.
(b) The said purported order was made under colourable exercise of power solely with the purpose of preventing and/or hampering the hearing of the rule obtained by your petitioner as aforesaid and circumventing the due course of law.;
(c) The said purported order is a penal and disciplinary order as would appear from the letter itself.
(d) The said purported order has been made in complete violation of the rules of natural justice and rules and conditions of your petitioner’s service.
6. Thereafter, the petitioner filed an appellation on 14 December 1964, praying for leave to take an additional ground in the following effect:
For that, if it is contended that the petitioner should not be treated as having been substantively appointed though he “continued in service after the expiry of the period of six months and was even promoted, the position in law would be that his probationary period was extended and accordingly he was entitled to be apprised of the grounds of the proposal to terminate his service under Rules 55 and 55B of the Civil Services (Classification, Control and Appeal) Rules and to show cause against it before the order of termination of his service was passed by the authority.
That prayer was allowed by this Court on 21 December 1964.
7. I need take up for consideration the additional ground first of all, because it was that ground-which was argued with the greatest of emphasis. This ground was argued in an alternative form. It was, in the first place, argued that the promotion of the petitioner from the position of a probationary driver to that of a driver-mechanic had the result of ending the probationership and of conferring upon the petitioner a substantive appointment which could not be terminated in the manner done. It was contended alternatively that even if the petitioner was a probationer in the rank, Rule 55B of the Civil Services (Classification, Control and Appeal) Rules required the authority to apprise the petitioner of the grounds of termination of employment and to give him an opportunity to show cause against it this procedure not having been followed, the order of termination from service must not be sustained. Rule 55B, on which reliance was placed, is couched in the following language:
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 unsuitability in 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 aforesaid ground in both the forms of argument is untenable, even assuming that the aforesaid rule has any application to the service of the petitioner. It is a well-known proposition of law that a probationer after the expiry of probationary period does not automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provide for such a result. Even after the expiry of the period, he continues to be a probationer, but acquires the qualification for substantive permanent appointment. As an authority for the above proposition reference may be made to a decision of the Supreme Court in Sukhbans Singh v. State of Punjab 1963-1 L.L.J. 671. The petitioner was promoted during his probationary period and continued in the promoted post even after the expiry of the probationary period. But even in the promoted post, his position was not anything but that of a probationer although by efflux of time he might have acquired the qualification for a substantive permanent appointment. The first branch of the argument on the additional ground must therefore fail. The alternative argument is equally untenable. The order of termination of the service of the petitioner was not based on any fault of his or his unsuitability in service and as such did not attract the mischief of Rule 55B of the Civil Services (Classification, Control and Appeal) Rules. All that was stated in the letter of termination was that his service was no longer required. The terms of his appointment specifically provided that the appointment was terminable without notice. In the case of Ranendra Chandra Banerjee v. Union of India the Supreme Court observed that a Government servant, who was on probation, can be discharged during the period of probation and such discharge would not amount to dismissal or removal from service, within the meaning of Article 311(2) of the Constitution and further that the protection of the article would not be attracted where the service of a probationer was terminated in accordance with the rules and not by way of punishment. The Supreme Court further, observed that the probationer had no right to the post held by him and under the terms of his appointment was liable to be discharged at any time during the period of probation. In the instant case, the service of the petitioner was liable to termination at any time without notice and, regard being had to the terms of appointment, the order of termination in the form made was unexceptionable. The second branch of the argument must, therefore, fall.
8. Faced with this position, Sri Arun Prakash Chatterjee, learned advocate for the petitioner, fell back upon the original grounds, on which the rule was issued, and contended that the order of termination in reality was penal in character and was mala fide made in order to deprive the petitioner of the benefits of the earlier writ rule obtained by him. This allegation is denied in the affidavit-in-opposition and in the absence of particulars such an allegation is unworthy of being upheld, however suspicious the circumstances in which the order was made may appear to some to be.
9. If the order of termination was passed not by way of penalty, there is no question of any opportunity being given to the petitioner to show cause against the order and no question of violation of any principle of natural justice arises.
10. All the arguments advanced in support of this rule fail and this rule is discharged. There will be no order for costs.
