JUDGMENT
Jawahar Lal Gupta, J.
1. The petitioner is aggrieved by the award dated December 13, 1991 of the Industrial Tribunal, Faridabad. The Tribunal has ordered the reinstatement of the workman with full back wages leaving the petitioner at liberty to take appropriate action in accordance with law. A few facts may be noticed.
2. On June 8, 1988, the petitioner offered an appointment to the respondent as Bcautician-Cum-Hair Dresser on contract basis. A copy of this offer is at Annexurc P.1 with the writ petition. It was inter-alia mentioned that the respondent would have to “enter into an agreement …. You will be joining duty only after execution of the agreement as above.” Accordingly, the respondent executed an agreement on June 16, 1988. In paragraph 5 of this agreement, it was stipulated as under;-
“That the employee would not be at liberty to leave his services before the expiry of five years from the date of completion of training but the employer would have a right to terminate his services in case his work is not found satisfactory or is found guilty of any misconduct in employment or violates any of the terms and conditions specified in the letter of appointment or in this agreement at any time.”
3. The respondent joined duty in pursuance to the above agreement. She was posted at Hotel Raj Hans, Surajkund. On November 29, 1988, the Divisional Manager informed the respondent that she had “abused and shouted on Shri Rohtas Kumar, Shampoo boy in presence of guests and staff on November 27, 1988 & November 28, 1988.” It was further observed that “you have also left your duties at 4.P.M. on November 28, 1988 without taking any prior permission from the undersigned or Incharge Health Club.” She was called upon to explain her position within two days of the receipt of the letter. A copy of this letter is on record at An-nexure P-3 with the writ petition. It has also been averred in the petition that right from the beginning “the work conduct of Respondent No. 2 was found totally unsatisfactory. She was habitual late-comer. She was found sleeping in working hours. Her behaviour towards superiors, co-worker and the customers was always found abusive which was damaging to the business of the ptitioner where soft, cordial and courteous behaviour is the need of the hour… The respondent No. 2 was asked to ‘mend’ herself several times verbally as well as in writing. But she did not ment herself…. Under the circumstances, keeping in view the interest of the business the services of the respondent No. 2 was (were) terminated as per Clause 5 of the agreement by an order simpliciter…” On December 30, 1988, the petitioner passed an order terminating the services of the respondent. She was “relived of her duties w.e.f. December 30, 1988 (A.N.) as her services are no more required.”
4. Aggrieved by the action of the petitioner, the respondent-workman resorted to proceedings under the Industrial Disputes Act, 1947. The matter was referred to the learned Labour Court. Vide award dated December 13, 1991, the claim of the respondent has been accepted. Aggrieved by the order, the petitioner has approached this Court through the present writ petition.
5. The respondent has not filed any ‘written’ statement controverting the averments in the writ petition.
6. Counsel for the parties have been heard. Mr. K.K. Gupta, learned counsel for the petitioner, has contended that the petitioner had terminated the services of the respondent in strict conformity with the terms of appointment and that the action of the Labour Court in ordering her reinstatement is wholly illegal and untenable. On the other hand, Mr. B.M. Lal, for the respondent, has contended that she had a right to continue in service for aperiod of five years. The action of the petitioner in terminating her services before the expiry of five years is contrary to the terms of appointment and thus the action of the Tribunal in ordering her reinstatement is legal and valid.
7. The primary question for consideration in this case is :-
Is the termination in conformity with the terms of appointment or does it violate any provision of the Industrial Diputes Act?
8. A persual of paragraph 5, as extraced above, shows that the employer had clearly ‘ ‘reserved a right to terminate the services in case his work is not found satisfactory…” It is no doubt true that the employee was under a duty to serve for a period of five years. However, this was only a right given to the employer by virtue of which the employee was divested of her right to leave the service before the expiry of the period. Her appointment was, however, terminable at any time in case her work was not found to be satisfactory. In other words, she was as if on probation. The employer had to judge her suitability and if at any time her performance was not found to be satisfactory, her services could be terminated. The respondent had voluntarily accepted this term and executed the agreement on June 16, 1988. That being so, it could not be said that the respondent had a right to continue in service for the full length of five years. In my view, the employer had an option to terminate the services at anytime if her work was not found to be satisfactory.
9. A persual of the award given by the Labour Court shows that the petitioner led evidence showing that the behaviour of the respondent towards her colleagues was not proper. She was found sleeping on December 2, 1988 during duty hours. She had misbehaved with Shri Rohtas, a shampoo boy and Smt. Kailash Devi. The efforts of the Divisional Manager to persuade her to improve herself did not bear any fruit. Evidence was also led to show that she was irregular in attending to her job and that on many occasions she was found coming late and leaving the place of work during working hours. Still further, even in the writ petition filed in this Court, it had been alleged that her work was unsatisfactory. All the above mentioned allegations have been reiterated, It is in this situation that the services of the respondent were terminated by passing innocuous order. Inspite of the evidence produced by the petitioner, the Labour Court has not gone into the question referred to it and merely observed that “Even if the charges are taken to have been proved before this Court she had a right to be notified of these charges in advance so that she could have a right to defend herself properly. I am not going into the details of the charges because the termination of her service has flown from an order of termination dated 23.12.1988 at Ex.M8 and for that matter that letter is only a relevant document to provhde assistance to the Court to adjudge as to under what circumstances her services were terminated. The letter Ex.M.8 does not speak of any misconduct or misbehaviour on the part of the workman… In the absence of any standing orders or any other service rules, the only document which is binding upon both the parties, is the letter of appointment and the agreement/contract of service. In both these documents there is no power vested with the employer to terminate the services of this employee before the full terms of contracted period, but for Clause 5 of the agreement. No ingredients of cluase 5 of the agreement have been mentioned in the order of termination at Ex.M.8. I, therefore, hold that the order of termination at Ex.M.8 being not in conformity and being not in consonance with the terms of the agreement or letter of appointment of employee is illegal, violative and colourful exercise of powers by the management.”
10. This finding is totally contrary to the evidence on the records and the pleadings of the parties. Firstly it is the admitted position that in the written statement filed on behalf of the petitioner all the above noticed facts had been mentioned. Consequently, the Tribunal has erred in observing that the respondent had no notice of the allegations against her. Secondly, according to para 5 of the terms of agreement, the petitioner had a clear right to terminate the services of the respondent, if her work was found to be unsatisfactory. This is precisely what has been done. The ingredients of Clause 5 of the agreement have been fully complied with in the present case. The mere fact that no allegation was made in the order of termination or no stigma was cast therein has not prejudiced the interest of the respondent in any manner whatsoever. On the contrary it appears to have been avoided only with the object of ensuring that her interest was not prejudiced in the matter of getting any future employment. In such a situation, the finding of the Tribunal that the order is illegal cannot be sustained.
11. It has not been shown that the order of termination was in any way violative of any of the provisions of the Industrial Disputes Act. On the contrary, the termination being in strict conformity with the terms of appointment and the contract of employment having been terminated in accordance with the stipulation therein, the respondent could have no legitimate grievance which could be remediable by resort to proceeding under the Industrial Disputes Act. Even otherwise, the services of the respondent had been terminated within less than seven months of her joining the post. Taking the totality of circumstances into consideration, the action of the petitioner cannot be said to be either unfair or illegal.
12. Civil Misc. Application No. 846 of 1994 had been filed by the petitioner pointing out that the respondent had been asked to join duty in pursuance to the award of the Labour Court. She had reported for duty on May 12, 1993. She, according to the averments in the applications, visited the office on or about the first day of the month in order to claim her wages and would remain absent thereafter. In view of the fact that the writ petition is being accepted, the application has become infructuous and no further orders are necessary therefor.
13. In view of the above, the writ petition is allowed and the impugned award is set aside. Howerver, parties are left to bear their own costs.