AWADHESH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this case the petitioner Awadhesh Kumar was appointed on probation as an upper division clerk by the Deputy Commissioner of Singhbhum on the 10th of January, 1956. Paragraph 3 of the letter of appointment, which is Annexure B to the application, stated that

(2.) On behalf of the petitioner the contention put forward is that the discharge of the petitioner without making any enquiry was a violation of Article 311 of the Constitution and the order of discharge dated the 8th of September, 1959, was ultra vires and illegal. We do not think there is any merit in this contention. It was, held by the Supreme Court in Parshotam Lal Dhingra v. Union of India, 1938 SCR 828 : (AIR 1958 SC 36), that the appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant or remove him from service. The proposition laid down in Dhingra's case, 1958 SCR 828 : (AIR 1958 SC 36), has, however, been qualified by the Supreme Court in a later case, State of Bihar v. Gopi Kishore Prasad, 1960 BLJR 220 : (AIR 1960 SC 689). In that case it was pointed out by the Supreme Court that if a probationer is discharged on the ground of alleged misconduct or inefficiency or for some similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will be tantamount to a removal from service within the meaning of Article 311 (2) of the Constitution, and will, therefore, be liable to be struck down. In a still later case State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, the Supreme Court has observed that an order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification may appropriately be regarded as one by way of punishment, but an order of discharge of a probationer following upon any enquiry to ascertain whether he was fit to be confirmed is not of that nature, and to such a case Article 311 (2) has no application. The present case is governed by the principle laid down in Dhingra's case, 1958 SCR 828 : (AIR 1958 SC 36), because no enquiry whatever was held on any charge of negligence, misconduct or inefficiency of the petitioner, and the principle laid down in Gopi Kishore Prasad's case, 1960 BLJR 220 : (AIR 1960 SC 689), cannot be applied to the present case.

(3.) But even if the provisions of Article 311 (2) of the Constitution do not apply to this case, the question still remains whether there is a violation of the legal provisions regulating the procedure for the discharge of a probationer. In our opinion, the order of discharge passed by the Deputy Commissioner of Chaibasa dated the 8th of September, 1959, is ultra vires and illegal because the statutory requirements for discharge of the petitioner have not been complied with Rule 2 and Explanation I of the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935, reads as follows :