JUDGMENT
N.C. Kochhar, J.
1. The brief facts, giving rise to this writ petition under Articles 226 and 227 of the Constitution of India, against the award dated November 22, 1991 (Annexure 9), passed by the learned Central Industrial Tribunal, Jaipur (“the Tribunal”) in Case No. C.I.T. 36/1988, are as under:
The Bundi Chittorgarh Kshetriya Gramin Bank (“the petitioner-bank”), after selecting Shi Gagan Bihari Pareek (the respondent No. 2) for the post of Filed Supervisor, issued to him the appointment-letter dated May 22, 1985 (Annexure 1), offering him the said post in the pay-scale of Rs. 640-20-900-25-1000-30-1180. According to the term, contained in the appointment-letter, he was to be on probation for a period of two years, which period could be extended by the petitioner-bank in its absolute discretion, and during the period of probation, his services were liable to be terminated, without assigning any reasons, with one month’s notice or one month’s emoluments in lieu thereof The appointment-letter further provided that if on the expiry of the period of probation, the work, conduct etc. of the respondent No. 2, were found satisfactory and he was found medically fit, he would be confirmed in the service of the petitioner-bank. The respondent No. 2 joined the services of the petitioner-bank on June 6, 1985 Vide letter dated June 18, 1987, the period of probation of the respondent No. 2, was further extended for a period of six months, and vide letter dated July 16, 1987 (Annexure 2), his services were terminated on the ground that they were no more required. Along with Annexure-2, a cheque for Rs, 1, 140, equivalent to one month’s salary of the respondent No. 2, was also given to him. The respondent No. 2 filed an appeal before the appellate authority of the petitioner-bank who dismissed it and there-upon the respondent No. 2 raised an industrial dispute, and the following question was referred to the learned Tribunal:
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2. In the statement of claim, the respondent No. 2 pleaded that he had completed two years’ service on June 5, 1987 and the period of probation not having been extended till that date, he stood confirmed after the expiry of two years from the date of his joining and that the letter dated June 18, 1987 could not extend the period of probation, as he stood confirmed before the said letter was issued. He also pleaded that the order, terminating his services, was punitive in nature and was against the principles of natural justice, as no charge-sheet had been served on him and no enquiry was conducted by the petitioner-bank, before tenninating his services. He also alleged that the petitioner-bank had retained the services of those Field Supervisors, who had joined the service after the date of joining of the respondent No. 2 and that while terminating the services of the respondent No. 2, the petitioner-bank had not paid to him the retrenchment-compensation and, as such, the order of termination was in violation of the provisions of Sections 25F and 25G of the Industrial Disputes Act, 1947 (“the Act”). He also pleaded that the order (Annex.2) had been issued due to malafides of Shri P.P. Sharma, the Chairman of the petitioner-Bank. The petitioner-bank contested the claim-petition and pleaded that the respondent No. 2 remained on 12 days’ leave, without pay and, as such, his period of probation continued till June 17, 1987 and his period was extended from June 18, 1987, for a further period of six months. It was also denied that the respondent No. 2 stood confirmed after the expiry of two years. It was denied that the order (Annex.2) was punitive in nature or any enquiry was required to be conducted, and it was pleaded that since during the period of probation, the work of the respondent No. 2 was not found satisfactory, his services were terminated in accordance with the terms of his employment. The malafides on the part of the Chairman of the petitioner-bank, were also denied. It was also pleaded that neither the respondent No. 2 was a “workman” within the meaning of the Act, nor the termination of his services could be termed i as “retrenchment” and, as such, the provisions of Sections 25F and 25G of the Act, were not required to be complied with. The learned Tribunal, after recording the evidence, produced by the parties and hearing their learned counsel, held that the respondent No. 2 had failed to prove any malafides on the part of the Chairman of the petitioner-bank but that although, the said respondent was on probation, the termination amounted to “retrenchment”, in view of the decision of the Apex Court in the case, Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiah and Anr. etc., reported in (1984 -I- LLJ -110), and that the termination-letter (Annex.2) having been issued without complying with the provisions of Sections 25F and 25G of the Act, was illegal. Consequently, vide the impugned award (Annex. 9), it has been held that the respondent No. 2 is entitled to be reinstated, with all back-wages, besides receiving Rs. 100 as costs of the proceedings. Feeling aggrieved, the petitioner-bank has approached this Court by filing this writ petition.
3. I have heard the learned counsel for the petitioners.
4. Initially, Shri R.K. Kala, the learned counsel for the petitioner, had challenged the finding of the learned Tribunal that the respondent No. 2 is a “workman” within the meaning of the Act, but after going through the allegations and the evidence on record, he, very fairly, did not press the argument and gave it up.
5. The learned counsel for the petitioner, has submitted that the services of the respondent No. 2, had been terminated under a stipulation in that regard, contained in the contract of his employment and, as such, the learned Tribunal came to a wrong conclusion that such termination amounted to “retrenchment” within the meaning of the Act and that the termination of the respondent No. 2 having been made without complying with the provisions of Sections 25F and 25G of the Act, was illegal.
6. Clause (oo) of Section 2 of the Act, which defines the term “retrenchment”, reads as under:
“2(oo) ‘retrenchment’ means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include —
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf;
(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health.”
The bare reading of the above-said provision, shows that termination by the employer, of the services of a workman, for any reason, whatsoever, would constitute “retrenchment’, except in the cases, mentioned in the Section itself and such excepted cases are where the termination is by way of punishment; inflicted as a result of disciplinary action, voluntary retirement of the workman; retirement of the workman, on reaching the age of superannuation, if the contract of employment between the employer and the workman, contains a stipulation in that behalf; termination of the services of the workman, as a result of non-renewal of the contract of employment between the employer and the workman concerned, on its expiry or such contract being terminated under a stipulation in that behalf, contained in the contract itself; and termination of the services of a workman, on the ground of continued ill-health. In other words, the termination of the services of a workman on either of the above-said excepted grounds, would not amount to “retrenchment”.
7. In the present, the appointment-letter (Annexure 1), contains a stipulation that the services of the respondent No. 2, could be terminated, without assigning any reason, with one month’s notice, or one month’s emoluments in lien thereof, during the period of probation.
8. Initially, Shri, G.L. Pareek, the learned counsel for the respondent No. 2 had contended that after the expiry of the period of two years from the date of his joining, the respondent No. 2 stood confirmed automatically, but after perusing the case-law, he gave up this argument and conceded that the respondent No. 2 was on probation, when his services were terminated vide the order dated July 16, 1987 (Annexure 2). He also very fairly conceded that the order of termination, having been passed in term of the stipulation, contained in Annexure-1, the termination in the case of the respondent No. 2, would 1 not amount to “retrenchment” and further that the Tribunal erred in relying on the decision of the case of Karnataka State Road Transport Corporation (supra), without noticing the insertion of Sub-clause (bb) in Clause (oo) of Section 2 of the Act.
9. In this view of the matter, the petitioner-bank was not required to follow the procedure, as laid down in Sections 25F and 25G of the Act, while terminating the services of the respondent No. 2.
10. Shri Pareek has, however, contended that there was no material to show that the services of the respondent No. 2 were not satisfactory and, as such. the order, terminating his services, was not justified and was illegal.
11. Not only this point was not raised before the learned Tribunal, at the time of arguments, even in the statement of claim, it had not been pleaded that during the period of probation, the respondent No. 2 was never informed of any lapse on his part and on the contrary, during the course of his cross-examination, it has been admitted by the respondent No. 2 that he had received letters from the petitioner-bank, asking him to improve his work and as such, this argument is without any force.
12. It has next been contended by Shri pareek that the term, contained in Annexure-1. authorising the petitioner-Bank, to terminate the services of the respondent No. 2, during the period of probation, conferred arbitrary and unguided powers on the petitioner-bank and, as such, the said term was unconstitutional. Reliance has been placed on many authorities, but, none of them, relates to a probationer, whose services were terminated during the period of probation, on the ground that they were not found satisfactory during that period. The only authority, which requires to be noticed and on which, much stress was laid, is of M.K. Agarwal v. Gurgaon Gramin Bank and Ors., reported in 1987 (Supp.) SCC 643, but, the above-said decision is also of no assistance to the respondent No. 2 as the employee in the case before the Apex Court, was not a probationer, but a confirmed one. whose services had been terminated under Regulation 10(2)(a) of the Gurgaon Gramin Bank (Staff) Services Regulations, 1980, and the Apex Court had struck down the above-said regulation on the ground that it gave arbitrary and unguided powers to the management.
13. No other point has been raised before me.
For the reasons mentioned above, I hold that the learned Tribunal erred in coming to the conclusion that the termination-order the (Annexure 2), was illegal/unjustified and in directing that the respondent No. 2 should be reinstated, with all back-wages and other benefits.
14. Consequently, the writ petition is allowed and the impugned award dated November 22. 1991 (Annex-9), is quashed. The parties are. however, left to bear their own costs.