B.N. Banerjee, J.
1. On December 9, 1955, the petitioner was selected for appointment as an Income-tax Officer, Class II, Grade III, on certain terms and conditions. The terms which are material for the purpose of this Rule are set out below :-
(i) * * * *
(ii) You will be on trial for a period of two years. During this period you will be under training, and will also have to pass the prescribed departmental examination which will be held half-yearly.The above period of trial will not be extended and if you fail to pass the departmental examination within the prescribed time, your services will be liable to be terminated.
(iii) If, in the opinion of the Government, your work or conduct during the period of trial is unsatisfactory, or shows that you are unlikely to become an efficient Income-tax Officer, the Government may discharge you at any time during the period of trial.
(iv) The post to which you will be appointed on successfully completing your period of probation is at present temporary. If, however, certain of these posts are made permanent, you will be considered for confirmation along with others on your successfully completing the period of trial and also being found fit in every respect for confirmation.
* * *
(vii) It should be clearly understood that your appointment is temporary and subject to any change in the constitution of the Income-tax Service, Class II, which the Union Government may think proper to make from time to time, and that you will have no claim for compensation in consequence of any such changes.
The petitioner was asked to indicate his acceptance of the terms of appointment, if be was prepared to serve on those terms.
2. On the petitioner agreeing to accept service on those terms he was appointed with effect from December 15, 1955 but the formal letter of appointment was issued later on viz., on January 17, 1956. A relevant extract from the aforesaid letter is set out below: -
'In exercise of the powers conferred by subsection (3) of Section 5 of the Indian Income-taxAct, 1922 (XI of 1922) the Commissioner of Income-tax, West Bengal, Calcutta, hereby appointsthe under-mentioned person as Income-tax Officer.
NameDate of joining.
I.Sri Harabilas Biswas15/12/55 (Forenoon)
Accordingly, he is, with effect from the date noted against his name, appointed to officiate as Income-tax Officer, Class II, Grade III and until further orders in the Income-tax Department, West Bengal, Calcutta in the scale of pay of Rs. 275-25-500-E.B.-30-650E.B.-30-800/.- under the terms and conditions intimated to him in the Government of India, Ministry of Finance (Revenue Division), letter F. No. 22 (10)-Ad.VI/54/IV, dated the 9th December, 1955, which has been accepted by him.'
3. Although initially app9inted on probation for two years, the petitioner's probationership did not come to an end with the expiry of the period of two years but was extended from time to time the last of such extensions being made on October 24, 1961, whereby the probationership of the petitioner was extended up to March 31, 1962. The-petitioner never objected to such extensions of probationership being granted to him. Now, however, he states that he should have been declared as a quasi-permanent servant, after he had put in three years of service or should have been confirmed in the temporary service.
4. The Respondent, Commissioner of Income-tax, in his affidavit-in-opposition, however, gives-certain reasons as to why the petitioner could not be confirmed on the expiry of the first period of his probationersbip. It is stated in the said affidavit-in-opposition that the petitioner was required to pass certain departmental examinations. The-petitioner took as many as seven chances to complete the said examination, the last one being a special chance allowed to him as against three normal chances allowed in the ordinary course. It is further stated in the said affidavit-in-opposition-that the petitioner could not successfully complete the period of his trial or probation, within the prescribed period of two years; the authorities, however, gave him further chances for successful completion of his trial, by extending the period of disprobation from time to time.
5. Be that as it may, the petitioner takes up the position that he thought that it would not be convenient for him to continue as a temporary Income-tax Officer, even after service of six longyears. He further states that he made up his mind to practise as an Income-tax practitioner. Since under the new Income-tax Act of 1961, which was to come into effect from April 1, 1962, restrictions were created regarding the right of Officers, who had served in the Income-tax Department, to practise before the departmental authorities after leaving the department, the petitioner thought that he should take immediate steps for getting himself released from service, so that he might begin his practice as an Income-tax practitioner before the prohibition imposed upon retired or resigned officers of the Income-tax Department against practising, under the new Income-tax Act, came into operation. In furtherance of the decision taken by the petitioner, he alleges, he tendered his resignation by a letter, dated January 24, 1962, addressed to the Respondent Commissioner of Income-tax, through the Inspecting Assistant Commissioner. It is necessary for me to set out the material extract from the above letter of resignation, which is made an Annexure to the affidavit-in-opposition filed by the Respondent Commissioner, in order to show that the purpose behind the resignation, as alleged in the petition, is not the purpose which appears from the letter of resignation itself. The material extract from the letter of resignation reads as follows:-
'I beg to submit herewith my resignation on the ground as given under :-
1. I joined the Income-tax Department as an I. T. O. Clause II on and from 15-12-55 on the Ad hoc Recruitment basis and unfortunately I have not yet been confirmed in the said post although quite a considerable period has elapsed since my joining the post and there is no hope of being confirmed in the near future.
2. I am likely to be transferred to a Mofussil District this year and because my wife has been ailing for more than two years and was in the Hospital for a long period of three months in the last year and the education of my children may be dislocated, it will eventually cause a serious effect upon me and my family.
Under the circumstances, I would humbly request you to accept my resignation with effect from 1-3-62 (forenoon).
In the event there is no difficulty, the letter of resignation may kindly be accepted with effect from 16-2-62.
I may kindly be intimated about the acceptance of the Resignation at an early date.'
6. The petitioner alleges that the aforesaid letter was handed over to the Supervisor, Range V, Calcutta, so that it might reach the Commissioner of Income-tax, through the proper official channel, at or about the date of the said letter. He, however, admits that the letter was alleged to have been received by the Respondent Income-tax Commissioner on February 6, 1962.
7. This version of the handing over of the letter by the petitioner to the Supervisor, Range V, Calcutta, is disputed by the Respondent Commissioner of Income-tax. In paragraph 6 of the affidavit-in-opposition he states as follows :-
'I further state that on the 6th February, 1962, a letter of resignation bearing the date of24th January, 1962, was made over by the petitioner to Shri Hari Pado Roy, Income-tax Officer, Howrah who in his turn handed it over to the Supervisor, I. A. C. Range V on the same date. The letter was entered on the relevant register on. the 7th February, 1962.'
Of this statement in the affidavit-in-opposition, there is a supporting affidavit, affirmed by Hari Pado Roy, Income-tax Officer of Howrah? who affirms the following statement:-
'The petitioner handed over to me a closed cover on 6th February, 1962, for the purpose of handing it over to Supervisor, Office of Inspecting Assistant Commissioner of Income-tax Range V, Calcutta. I was given to understand that it contained his letter of resignation from the Department. I, on that date, accordingly handed it over to Sri Promotho Nath Ghosh, Supervisor.'
8. It is undisputed that the petitioner's letter of resignation has not been accepted, although the petitioner sent reminders to the Commissioner of Income-tax and even saw him so that his resignation might be accepted within a short time. The Commissioner of Income-tax, in his affidavit-in-opposition explains why the resignation of the petitioner could not be forthwith accepted. He says that a special inspection of the work of the petitioner was necessary to be made and his explanation in connection with the inspection obtained and only thereafter it was possible to consider whether' the petitioner's letter of resignation should be accepted or not. Having failed to obtain the acceptance of his resignation by March 31, 1962, the petitioner applied for leave before the Inspecting Assistant Commissioner of Income-tax, Range V, by a letter dated March 1, 1962. The letter reads-as follows :-
Application for casual leave for 2nd and 3rd and for 5th to 7th March, 1962, and for 9th March, 1962.
I beg to apply for casual leave for six days as indicated above, both for personal reasons as well as for my wife's illness from Mums as well as from Cystocele (suffering from this disease for a very long period).
In the circumstances, I shall be grateful if you would kindly grant me six day's casual leave as mentioned above excluding Sundays and Holidays.
Sd/- H. Biswas.
I. T. O. D. Ward Howrah.'
9. No leave was granted to the petitioner. He was, however, suspended from service on the ground of a contemplated disciplinary proceeding against him by a letter, dated March 6, 1962, which order of suspension was said to have been served by affixation at the place of residence of the petitioner on March 6, 1962. Thereafter, on March 9. 1962, the petitioner was served with a charge-sheet, for misconduct, and a notice was sent to him to the effect that it was proposed to hold an enquiry against him under Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules,1957.
10. It is in these circumstances that the petitioner moves this Court asking for a writ in the nature of a writ of certiorari quashing the order of suspension and the notice on the petitioner to show cause against the charges levelled against him, for a writ of Prohibition commanding the respondent to forbear from taking any steps in the aforesaid disciplinary proceeding, and for a writ of mandamus commanding the respondents either tocancel or to withdraw or to rescind the charge-sheet on the petitioner, and further to restrain themfrom taking any steps in pursuance thereof.
11. Mr. Bankim Chandra Dutt, learned Advocate for the petitioner, argued, in the first place, that the petitioner was appointed on probation for a period of two years only; there was a clause in the condition of service of the petitioner that the probationary period shall not be extended; that extensions made of the probationary period from time to time were therefore illegal, or, alternatively,the period of the petitioner's probationary service must be deemed to have come to an end with the expiry of the last extension, namely, with March 31, 1062. In support of this contention, Mr. Dutt strongly relies on clauses 2, 3 and 4 of the petitioner's condition of service contained in the letter from the Ministry of Finance (Revenue Division) Government of India, dated December 9, 1955, which I have already set out.
12. In my opinion, this argument is not verywell conceived. The condition of appointment was no doubt to the effect that the petitioner shall be on probation for two years and that his probationer-ship shall not be extended. But the condition was not such as could not be varied by agreement mutually arrived at. When the petitioner was not made permanent in the temporary post, even after the expiry of his initial probationary period, he might have refused to serve another period on probation. But the probationership of the petitioner was sought to be extended. The petitioner accepted the extensions and worked under those terms. Having received the advantage of the extensions of probationership, it does not befit him now to contend that such extensions were illegal and could not be made by the appointing authority ofthe petitioner. Then, again, it is not the law that on the expiry of the period of probation, a civil servant can claim a status other than that of a probationer. If he is not confirmed in the appointment in which he had been appointed on probation, he must be deemed to be continuing on probation even thereafter. This is the view which was taken by a Bench decision of this Court in the case of Naresh Chandra Gangopadhya v. Director of Fisheries, Government of West Bengal, reported in : AIR1959Cal100 . Chakravartti, C. J., (Lahiri, J., agreeingwith him) observed in that case :-
'A great deal of controversy appears to have taken place before the learned Judge as to whether the appellant had continued to be a mere probationer in Government service or had become a confirmed member by reason of his having been retained in employment after the expiry of the probationary period. The learned Judge held thatthe appellant had continued to be a probationer and I find no good reason to dissent from that view. It is quite true that the probationary period was for two years only and that even after the expiry of that period, the appellant had not been discharged but kept in service. At the same time, he had not been confirmed. It has also to be noticed that by the very terms of his appointment he was to be confirmed, only if he satisfied both of two conditions, one of which was satisfactory work during the probationary period and the other of which was the passing of a departmental examination. Admittedly, he did not pass a departmental examination during the probationary period and obviously his work was not considered satisfactory. It may have been wrong for Government not to hold a departmental examination within the probationary period and the appellant, if he was so minded, might have taken appropriate steps at the appropriate time for forcing Government to hold a timely examination. This point, however, which is somewhat in the appellant's favour, loses a great deal of its force, if one remembers that when the examination was ultimately held in 1951, the appellant failed to pass it. Be that as it may, whatever might have been the reason for Government not confirming him, the fact remains that he was not confirmed and if he was not confirmed, he could not claim any status other than that of a probationer.'
13. A similar, view was also taken by the Madras High Court in the case of R. Venkatapathy v. Deputy Inspector General of Police, reported in AIR 1958 Mad 216.
14. Mr. Dutt, however, wanted to distinguish the case of the petitioner from the two reported judgments on the ground that in the condition of appointment of the petitioner there was a term to the effect that the probationary period shall be for two years only and shall not be extended. I have already expressed the view that after having got the advantages of the extension of the period of probation, it is not open to the petitioner to make a grievance that the probationary period should not be extended. Also, I have observed that the condition of service was not such as could not be varied by agreement, and I hold that it was in fact varied by agreement. I, therefore, come to the conclusion that the petitioner was in service up to March 31, 1962, as a probationer.
15. Even assuming for the sake of argument that the probationership of the petitioner could not be extended in the manner in which it wag done, which of course I do not hold, the expiry of the probationary period would not have the effect of termination of the service of the petitioner. If the service of the petitioner was at all to be terminated, that had in fact to be done by the appointing authority, and such termination of service must not be inferred from the mere fact that the probationership of the petitioner came to an end by the efflux of time if at all. The position, therefore, would be that the petitioner was in service in his temporary appointment, whether as a probationer or otherwise, and while in service, he was liable to be proceeded against departmentally by the appointing authority.
16. Mr. Dutt argued, with great emphasis that even if the petitioner's service had not come to an end by reason of the expiry of the periodof probationership, it must be taken to have come to an end by reason of the letter of resignation submitted by him. In this connection, he relied upon Rule V of the Central Services (Temporary Service) Rules, 1945, which is as follows :-
'Role V. (a) The service of a temporary Government servant who is not in a quasi-permanent service, shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant.
(b) The period of such notice shall be one month, unless otherwise agreed to by the Government or by the Government Servant.'
Relying on the provisions of the aforesaid Rule, Mr. Dutt contended that the petitioner had sent a notice of resignation to the respondent Commissioner of Income-tax on January 24, 1962, asking to be relieved of his service either with effect from March 1, 1962, or earlier, with effect from February 16, 1962. He contended that the resignation having terminated the relationship of master and servant, in any event with effect from March 1, 1962, the respondent Commissioner of Income-tax could not thereafter start disciplinary action against the petitioner, as his employer or appointing authority. As a proposition of law, Mr. Dutt is quite correct in contending that the right to proceed against an employee departmentally subsists so long as there remains the relationship of master and servant between the employer and the employee. As soon as that relationship comes to an end the employer or the appointing authority can no longer punish an employee departmentally. The employer or the appointing authority may have to take recourse thereafter to a court of law, if it at all wants to proceed against the employee for any misconduct of his. If the letter of resignation submitted by the petitioner had really terminated his service under the respondents, then I would have found a great deal of force in the argument of Mr. Dutt that the petitioner could no longer be proceeded against in a departmental disciplinary proceeding. But the question for my determination is, whether the letter of resignation sent by the petitioner was a sufficient and proper notice of resignation, having the effect of terminating his service with effect from March 1, 1962.
17. Assuming for the sake of argument that Rule V of the Central Services (Temporary Service) Rules, 1945, applies to the petitioner, which of course Mr. Meyer, learned counsel for the respondents, strongly disputes, even then it is difficult to hold that the notice sent by the petitioner was a sufficient notice under that Rule. Rule V provides that the period of notice of resignation shall be one month, unless otherwise agreed to by the Government or by the Government servant. If the notice was served on the respondent Income-tax Commissioner on February 6, 1962, then, by asking to be relieved of his appointment with effect from March 1, 1962, the petitioner did not give to the respondent Commissioner one month's notice, as contemplated by Rule V.
18. Mr. Dutt, however, tried to get rid of this difficulty by contending that the notice was sent to the Supervisor, Range V, Calcutta, on or about thedate of the said letter, I have already noted that this statement is not accepted by the respondent Commissioner. From the affidavit-in-opposition filed by the respondent Commissioner as well as from the supporting affidavit of Haripada Roy, the Income-tax Officer, Howrah, it appears that the petitioner never handed over the letter to the Supervisor, Range V, Calcutta, for being made over to the respondent Commissioner of Income-tax, through the proper official channel, but that the petitioner made over the letter to a colleague of his, namely, Haripada Roy, who, in his turn, handed over the letter to the Supervisor, Range V, Calcutta. Haripada Roy, in his affidavit, states that he handed over the letter to the Supervisor, Range V on February 6, 1962, the date when the petitioner entrusted him with the delivery of the letter. The case made by the petitioner that he himself made over the letter to the Supervisor, Range V, Calcutta, at or about the date of the letter, namely, January 24, 1962, is being disputed by the respondent Commissioner, and it is difficult for me to resolve this disputed question of fact in a petition under Article 226 of the Constitution on affidavits only. Moreover, the statement made by the respondent Commissioner that the letter reached his office on February 6, 1962, is supported by the affidavit of Haripada Roy, Income-tax Officer, Howrah, The statement of the petitioner that he himself made over the letter of resignation to the Supervisor, Range V, not only stands alone, but stands contradicted both by the Commissioner of Income-tax and Haripada Roy. In these circumstances, I do not find any reason why I should place implicit reliance on whatever is stated by the petitioner in his petition, and disregard anything to the contrary appearing in the affidavit-in-opposition,
19. Mr. Dutt realised bis difficulties in this respect and made a desperate attempt to establish the version of the case pleaded by the petitioner, on the ground that the statement of the petitioner to the effect that he had himself handed over the letter to the Supervisor, Range V, Calcutta, was not denied by the Supervisor himself by way of a supporting affidavit to the affidavit-in-opposition of the Commissioner of Income-tax, and therefore, the aforesaid statement of the petitioner must not be treated as having been sufficiently denied in the affidavit-in-opposition. I cannot accept this argument. The onus was on the petitioner to establish that he himself made over the letter of resignation to the Supervisor, Range V, Calcutta, OH or about January 24, 1962. If the petitioner wanted to have this statement supported, he might have tried to use an affidavit, affirmed by the said Supervisor, in support of the statement in the petition. He, however, did not care to do so. He wants to shift the onus of disproving the statement in the petition on the respondent. In my opinion, it was not necessary for the respondent, the Income-tax Commissioner, to have his denial supported by an affidavit of the Supervisor, and I do not attach any value to this branch of the argument of Mr. Dutt.
20. As already observed, if the letter of resignation was served on the respondent on February 6, 1962, it was not a sufficient letter of resignation under Rule V above referred to and did not terminate the service of the petitioner under that Rule. If the petitioner was in service, thennothing prevented the respondents from initiating disciplinary action against him on a charge of misconduct.
21. Faced with this difficulty, Mr. Dutt contended that the petitioner was a probationer, and rule V did not apply to him. Fortunately for Mr. Dutt, that is also the argument of Mr. Meyer, learned counsel for the respondents. It is nobody's case that a probationer cannot resign his service. But before a probationer resigns, he must give reasonable notice of termination of his service. Mr. Dutt contended that even if the letter of resignation reached the respondent Commissioner of Income-tax on February 6, 1962, even then the termination of the employment with effect from March 1, 1962, would be a period of proper notice.
22. It is difficult to accept this branch of the argument, because in the petition the petitioner throughout took the stand that he was not a probationer but in temporary service under the respondent, and that he served the notice of termination of his service under the provisions of Rule V of the Central Services (Temporary Service) Rules 1945. Having failed to make out that case, it does not behove the petitioner to veer round and take a new stand, to the effect that he was not a probationer throughout and was entitled to terminate his service on reasonable notice. In the next place, assuming for the sake of argument that that is so, I do not find any reason to hold that in the case of a probationer the period of notice shall be less than the period of notice required of a temporary servant in a temporary appointment.
23. Mr. Dutt relied on a decision of the Mysore High Court in the case of B. V. Venkatacharya v. Messrs The Mysore Sugar Co. Ltd., reported in AIR 1954 Mys 175, in which a notice of termination served on November 23, 1946, terminating the services of the employee, a probationer in that case, on December 9, 1946, was held to be sufficient notice of termination. That was the case of a probationer in an industrial employment, and I am not willing to import the considerations which weighed with their Lordships of the Mysore High Court in the matter of termination of services of a probationer in an industrial establishment into termination of the services of an Income-tax Officer in probationary employment. In my opinion, as in the case of a temporary Government servant, a probationary Government servant also may terminate his service by one month's notice.
24. Since I am of the opinion that the petitioner was in service, either as a probationer or as a temporary servant, I have to hold that the respondents were in no way debarred from starting departmental proceedings against the petitioner, who was in service. For the reasons aforesaid, I am disinclined to interfere in this matter and grant to the petitioner the prayers made in the petition.
25. I make it perfectly clear that I do not express any opinion on the merits of the charges of misconduct made against the petitioner. I merely hold that the letter of resignation by the petitioner was ineffective because of the shortness of notice, and that the petitioner was in service at the point of time when the charge sheet was served onhim. That being the position, the enquiry againsthim must go on. I therefore, discharge the rule, but make no order as to costs.