JUDGMENT
G.S. Singhvi, J.
1. Whether the service of the petitioner could be terminated by the competent authority of the Punjab State Civil Supplies Corporation Ltd. (for short, the Corporation) without complying with the mandatory provisions of Sections 25-F and 25-G of the Industrial Disputes Act, 1947 (for short, the Act) is the moot question which arises for determination in this petition filed for quashing award dated 7.5,1985 passed by Labour Court, Bhatinda in Reference No.693 of 1982.
2. The petitioner was appointed as Shop Assistant Grade-1 in the services of the corporation by its Managing Director vide order dated 28.9.1977. His services were terminated by the Managing Director of the Corporation vide order dated 7.8.1980 apparently because a First Information Report was registered against him on 1.8.1980 at Police Station, Zira under Section 7 of the Essential Commodities Act, 1955 read with sections 468/406 of the Indian Penal Code with the allegation that he had sold five bags of pulses in black-market to one Shri Chiman Lal. He was ultimately discharged by Judicial Magistrate, 1st Class, Zira vide order dated 12.3,1981. The petitioner challenged the termination of service in Civil Suit “No.88-I of 1981. Learned Sub Judge, 1st Class, Ferozepur dismissed the suit on 23.12.1981 on the ground that the Civil Court did not have the jurisdiction to entertain the controversy raised by the plaintiff (petitioner herein) which fell in the realm of an industrial dispute. Thereafter, the petitioner raised an industrial dispute which was referred by the State Government to Labour Court, Bhatinda.
3. In his statement of claim, the petitioner pleaded that termination of his service was vitiated due to violation of Sections 25-F and 25-G of the Act and the rules of natural justice.
4. Respondents No.3 and 4 supported the order terminating the services of the petitioner by asserting that he was only a probationer and his service could be terminated at any time in accordance with the terms and conditions embodied in the letter of appointment. They also pleaded that termination of the service of a probationer on account of unsatisfactory work and conduct did not amount to a stigma requiring compliance of the
rules of natural justice.
5. After considering the pleadings and evidence of the parties, the Labour Court answered the reference against the petitioner. In doing so, the learned Presiding Officer relied on the finding recorded by learned Sub-Judge 1st Class, Ferozepur that service of the petitioner, who was on probation, could be terminated at any time without complying with the rules of natural justice and without holding enquiry. This is clearly borne out from the following extracts of the impugned award:-
“It is no doubt correct that the judgment of the Civil Court does not bar the present proceedings. It is also a fact that no enquiry was conducted against the workman but from the record I find that misconduct stands established against the workman. It is proved that a case in respect of theft was registered against the workman and the acquittal of the workman in criminal case does not operate as a bar to departmental proceedings against the workman and as such, the management had also a right still to prove the misconduct of the workman in this court. Moreover, in a criminal case, the prosecution has to establish the guilt of the accused beyond any shadow of doubt by bringing definite evidence whereas in a proceedings like the one in hand, it is only preponderance of evidence establishing the misconduct of the workman, to a probable extent, which in any opinion has been done in this case by the management.
Here it is relevant to refer to the cross-examination of the workman Jagtar Singh WW/1 who admitted that in respect of the case of embezzlement he had appeared before the S.D.M. and he had admitted before him that he had sold five bags of gram belonging to the society. The workman tried to explain that his statement before the
S.D.M. was under police pressure but again he admits that he did not make any complaint in writing to any authority about police pressure and he further admitted that he had confessed his guilt before the S.D.M. This statement of the workman in his cross-examination coupled with the statement of Rajinder Singh MW/1 goes to prove that the workman was guilty of misconduct and as such, the order of termination of his service is justified and in order.”
6. Shri Ramesh Goyal, learned counsel for the petitioner assailed the impugned award mainly on the ground that while upholding the termination of the petitioners’ service, the learned Presiding Officer did not deal with all important issue relating to violation of the mandatory provisions of Sections 25-F and 25-G of the Act. He argued that even though the petitioner was a probationer, his service could not have been terminated without complying with the mandate of Sections 25-F and 25-G of the Act. In support of this argument, learned counsel relied on the judgments of the Supreme Court in Santosh Gupta v. State Bank of Patiala, A.I.R. 1980 S.C. 1219 and Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiah and Anr. A.I.R. 1983 S.C. 1320.
7. I have given serious thought to the arguments of the learned counsel and carefully perused the reasons assigned by the learned Labour Court for upholding the termination of the petitioners’ service. In my opinion, the award under challenge suffers from an error of law apparent on the face of it, inasmuch as, the Labour Court has failed to consider the pivotal issue raised by the petitioner, i.e., non compliance of the mandatory provisions contained in Section 25-F of the Act. The petitioner had not only pleaded before the Labour Court, but had also proved the fact that his service was terminated without giving notice and retrenchment compensation. Respondent Nos.3 and 4 did not controvert the fact that the petitioner had not been given notice or pay in lieu thereof and retrenchment compensation but pleaded that it was not necessary to do so because his service had been terminated on the ground of unsatisfactory performance during probation. In my opinion, even though the petitioner was a probationer, his service could not have been terminated without complying with the mandatory provisions of Sections 25-F(a) and 25-f(b) of the Act because it is an undisputed position that as on 7.8.1980, he had completed more than two years continuous service. This view of mine is supported
by the decisions of the Supreme Court in State of Bombay and others v. The Hospital Mazdoor Sabha and Ors. A.I.R. 1960 S.C. 610: State Bank of India v. N. Sundramoni, A.I.R. 1976 S.C. 1111; Delhi Cloth and General Mills Ltd. v. Shambhu Nath, A.I.R. 1978 S.C. 8; Santosh Gupta v. State Bani of Patiala (supra) ; S.K. Verma v. Industrial Tribunal-cum-Labour Court, New Delhi, A.I.R. 1981 S.C. 422 and Mohan Lal v. Management of Bharat Electronics Ltd., A.I.R. 1981 S.C. 1253. Unfortunately, the Labour Court over-looked this important aspect of the matter. Therefore, the impugned order will have to be treated as vitiated by an error of law requiring interference by this Court under Article 226 of the Constitution of India.
8. In the result, the writ petition’s allowed. Award Annexure P.2 is set aside. The termination of the petitioner’s service is declared illegal and quashed. Consequently, he shall be entitled to be reinstated in service with all benefits except back wages for which he shall be free to file application under section 33-C(2) of the Act. The last mentioned direction is being given in view of the law laid down by the Supreme Court in Managing Director, U.P. Warehousing Corporation and others v. Vijay Narayan Vajpayee, A.I.R. 1980 S.C. 840. It is also made clear that the competent authority of the Corporation shall be free to pass fresh order in accordance with law in the matter of termination of the petitioners’ service.