JUDGMENT
Tapan Kumar Dutt, J.
1. The writ petitioners/appellants filed the writ petition challenging the award dated 31.10.1986 passed by the First Industrial Tribunal, West Bengal and also for not giving effect to the letter dated 07.04.1988 issued by the Assistant Labour Commissioner, West Bengal.
2. The issue before the Tribunal was whether the termination of the service of respondent No. 4 is justified and what relief, if any, is he entitled to. The Tribunal held that the action of the Company, i.e. the writ petitioner/appellant in terminating the service of the respondent No. 4 is illegal and unjustified and that the respondent No. 4 is entitled to reinstatement with full back wages and other benefits to which he would have been entitled to had he been service with effect from 01.04.1982. The Hon’ble First Court by order dated 02.05.2002 dismissed the writ petition which was filed by the appellants by holding that the Tribunal after hearing the parties and examining materials on record, including the evidence on record, held that the respondent No. 4 was a workman within the meaning of the Industrial Disputes Act, 1947 and that the Tribunal rightly held that the writ petitioner/appellant had failed to establish that the respondent No. 4 had been appointed on probation and that such findings of facts cannot be interfered with in proceedings under Article 226 of the Constitution of India and that there are no grounds for interference with the findings of facts arrived at by the Tribunal. The Hon’ble First Court was also pleased to note that the writ petitioner/appellant did not adduce any documentary evidence to substantiate its contention that the respondent No. 4 had been appointed on probation and that the Tribunal did not consider the oral evidence adduced by the writ petitioner/appellant in this regard creditworthy. Challenging such order dated 2nd May, 2002 passed by the Hon’ble First Court, the present appeal has been filed by the writ petitioner/appellant.
3. In this case the respondent No. 4 joined service on 05.11.1981. A notice of termination of his service dated 30.03.1982 was issued by the writ petitioners/appellants and according to the respondent No. 4 such notice did not contain any reason. The respondent No. 4 wrote a letter dated 03.04.82 to the appellant/petitioner seeking reinstatement in his service without any loss of pay and in the said letter he took the stand that he was not appointed as a workshop Mechanic on probation. According to the respondent No. 4 he was never on probation. The respondent No. 4 issued another letter in May, 1982 but the management remained silent and at last the dispute was referred to the Labour Commissioner, West Bengal. The conciliation proceedings failed and ultimately the dispute was referred to the Tribunal for adjudication. The Company, that is the appellant, filed a written statement along with the list of documents and stated that the order of reference was bad and not maintainable in law and that the respondent No. 4, at the material time was an employee of the Company, but he was not a workman within the meaning of the said Act of 1947 and he was employed mainly in a managerial/administrative capacity and his terms and conditions of service are quite different from those of the workmen under employment of the Company. According to the appellant, the respondent No. 4 was appointed as a probationary works assistant in the management cadre on a consolidated salary of Rs. 600/- per month and he worked till 03.04.1982 when his services were terminated on account of his inadequacy for the job. According to the appellant at the time of interview the respondent No. 4 was categorically told that on appointment he will have to serve minimum probationary period of 6 months before being considered for confirmation and the respondent No. 4 accepted his such terms. The appellants’ stand is that the respondent No. 4 during his tenure of 5 months’ service under the appellants failed to give satisfactory service and it was found that he was not suitable for the post for which he was appointed. The Tribunal found that it appears from the termination letter dated 30.03.1982 that the services of the respondent No. 4 was terminated with effect from 01.04.1982 without assigning any reason. It appears from the materials on record that a dispute was raised as to in which capacity the respondent No. 4 was appointed and also whether or not the respondent No. 4 was appointed on probation. It further appears that there was no formal letter of appointment but it is the case of the company that at the time of interview the respondent No. 4 was told that on appointment he will have to serve minimum probationary period of 6 months’ service before being considered for confirmation. The Tribunal came to the conclusion that the company failed to establish that the respondent No. 4 was appointed on probation for a period of 6 months. It appears from the award passed by the Tribunal that it was argued on behalf of the appellants before the Tribunal that there is no designation of any person employed in the jute mills, like mechanic but the Tribunal held that there is no evidence in this regard. The Tribunal relied upon the termination letter and held that in such letter the designation of the respondent No. 4 has been shown as workshop-mechanic. The Tribunal also held that in the absence of any appointment letter being issued by the Company the contentions raised on behalf of the Company, that is the appellants, have got no substance. The Tribunal also held that the Company failed to produce any document to show that the respondent No. 4 was vested with any managerial power or that he acted in managerial/administrative capacity. The Tribunal also held that the respondent No. 4 has no paper to prove that he was appointed as a permanent workshop mechanic, even though the respondent No. 4 has taken the stand that he was a workshop mechanic. The Tribunal held that in the instant case admittedly no enquiry was held before the services of the workman concerned were terminated and the workman concerned were terminated and the workman concerned was not given any charge-sheet by the Company before termination of his services. Ultimately, the Tribunal found that the action of the appellants in terminating the services of the respondent No. 4 without assigning any reason and without holding any enquiry on the basis of any chargesheet was mala fide and it amounted to victimization and unfair labour practice. The Tribunal also found that the Company failed to prove that the respondent No. 4 was appointed on condition that he was to serve a minimum probationary period of 6 months before being considered for confirmation and that the company also failed to establish the respondent No. 4 was in a managerial/administrative capacity. The Tribunal also found that the Company also failed to establish that the respondent No. 4 was not suitable for the job. The Tribunal held that the respondent No. 4 was appointed as workshop mechanic as would appear in the letter of termination dated 30.03.1982 and that the respondent No. 4 is a workman within the meaning of the provisions of Section 2(s) of the Industrial Disputes Act. The Tribunal held that the terms and conditions of service of the respondent No. 4 were not forthcoming and the allegations made in the written statement of the company being unsubstantiated the plea raised by the company is untenable. The Tribunal observed that if the work of the respondent No. 4 was not satisfactory as alleged by the Company then in that even the respondent No. 4 should have been charge-sheeted and dealt with according to the rules of natural justice but that has not been done in the instant case and the respondent No. 4 was not given any opportunity to know as to why his services were terminated. The Tribunal held that the Company has failed to establish that the services of the respondent No. 4 were terminated during the probationary period. In such circumstances, the Tribunal passed the award dated 31.10.1986 as already indicated above.
4. The learned Advocate for the appellants contended that the respondent No. 4 was allowed to join the service verbally without any letter of appointment and without following the Standing Order and that his service was subsequently terminated simpliciter without any stigma and that the respondent No. 4 did not work for a period of 240 days. The respondent No. 4 joined service on 05.11.1981 and his service was terminated with effect from 01.04.1982. It was further submitted on behalf of the appellants that the writ petition was heard exparte in the absence of the learned Advocate for the writ petitioners since the learned Advocate for the writ petitioners had to leave for his native village near Suri in the district of Birbhum due to serious illness of his mother who subsequently expired some time in April, 2002. Be that as it may, the fact remains that the writ petitioners could not place their case before the Hon’ble First Court at the time of hearing.
5. The learned Advocate for the appellants has submitted that the respondent No. 4 was not entitled to get any relief. The said learned Advocate referred to Sections 25B and 25F of the said Act of 1947 and submitted that since the respondent No. 4 did not work for 240 days in 12 months preceding his termination the Tribunal could not have granted relief of reinstatement to the respondent No. 4. The said learned Advocate next submitted that the onus of proving that the workman rendered continuous 240 days of service lies on the workman himself. A decision reported at Essen Deinki v. Rajiv Kumar was referred to. In the said reported case the respondent workman joined the services of the appellant in that case as a helper on 01.07.1990 and continued till 26.02.1991 and the service was terminated on the ground that in his short stay with the appellant his work was not found to be of desired standard. In the said reported case the appellant did not feel it expedient to comply with the provisions of Section 25F because of non-completion of 240 days in the preceding 12 calendar months.
6. The Hon’ble Apex Court in the said reported case relied upon a decision reported at Range Forest Officer v. S.T. Hadimani and was of the opinion that it was for the workman to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. In the said report the Hon’ble Supreme Court was pleased to restore the order of the Labour Court which had passed an award holding that the workman concerned had not completed 240 days and therefore the termination was held to be valid and compliance with Section 25F was not required in terms of the provisions of the luduslrial Disputes Act, 1947.
7. The next decision cited by the said learned Advocate is reported at (2005) 8 SCC 481 Batala Coop. Sugar Mills Ltd. v. Sowaran Singh. From the facts of the said reported case it appears that in that case the employee took the stand that reference was factually and legally erroneous as the services of the workman were never terminated and in fact the workman had abandoned the job. It also appears that the employer took the stand that the workman was engaged on casual basis on daily wages for a specific period and for specific work and he was never issued any appointment order in respect of any regular post and/or on regular basis. The Labour Court, in the facts of the said reported case, came to the finding that there was no material to show that the workman had left the job of his own accord and employer also had not proved that the workman had worked for less than 240 days in 12 calendar months preceding the date of termination and accordingly the Labour Court held that there was violation of Section 25F of the said Act and directed the reinstatement of the workman with 50% back wages; the employer filed a writ petition which was dismissed and challenging such order of dismissal the appeal was filed before the Hon’ble Supreme Court. The Hon’ble Supreme Court came to the conclusion that the relief granted to the workman by the Labour Court and the High Court cannot be maintained and was also of the view that the onus is on the workman to prove that he was working for more than 240 days. The Hon’ble Supreme Court was pleased to take into consideration the decision reported in Range Forest Officer’s case (supra). The learned Advocate for the appellant cited some other reported cases on the same point.
8. The next submission made by the learned Advocate for the appellant was that the respondent No. 4 was not appointed under any rule or Standing Order and as such the initial appointment was illegal and/or irregular in as much as even though there is specific standing order in respect of such appointment, such standing order has not been followed and the said standing order was filed at the time of hearing before the learned Tribunal. Accorditig to the said learned Advocate the respondent No. 4 has no legal right in respect of his service. It was submitted that the onus was upon the respondent to prove his nature of service and the respondent No. 4 failed to discharge such onus and also failed to produce any document to show that he was a permanent employee. According to the said learned Advocate if the initial appointment was made in violation of the terms of the standing order and/or rules the appointment is purely temporary and/or illegal.
9. The said learned Advocate referred to the decision reported at Ashwani Kumar and Ors. v. State of Bihar and Ors. In paragraph 13 of the said report the Hon’ble Supreme Court was pleased to observe that
there would never rise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could even be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be.
Another decision was referred to being reported at R.N. Nanjundappa v. T. Thimmaiah and Anr. on the point of the initial appointment being by way of infraction of the rules.
10. The next submission of the appellants’ learned Advocate is that the authorities concerned of the appellants/writ petitioners are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his suitability for the job.
The said Learned Advocate referred to a decision reported at State of Punjab and Ors. v. Sukhwinder Singh. A portion of paragraphs 19 and 20 of the said report are quoted below:
19. …As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry “for the purpose of imposing punishment” and an order of discharge or termination of service as a result thereof “punitive in character”, the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
20. In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was a habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of the Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16.3.1990 was, in fact, based upon misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh v. State of Punjab the period of probation gives time and opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent’s absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules.
12. The said learned Advocate contended that the principle of natural justice would be attracted only’when the services of some persons are terminated as a punitive measure or a stigma is attached thereto. On the said point the decision reported at State of Uttar Pradesh v. Neeraj Awasthi and Ors. was referred to. The said learned Advocate submitted that in the instant case the termination was not by way of a punitive measure as no stigma is attached thereto. Reference was made to the decision at Rajasthan State Road Transport Corporation and Ors. v. Zakir Hussain. It appears that in the facts of the said reported case the respondent was a temporary employee on probation for a certain period and his services were terminated by an order of termination simpliciter without any stigma and evil consequences visiting him since it was found that his services were not found to be satisfactory. In paragraph 34 of the said report the Hon’ble Supreme Court was pleased to observe As already noticed, the services of the respondent were terminated simpliciter and does not contain any stigma and, therefore, there was no requirement under the law to hold any enquiry before terminating the services. The Courts below have also committed serious error in granting back wages along with reinstatement. Even otherwise, the respondent has not led any evidence before the Trial Court except his own ipse dixit to show that his services were terminated on the ground of any alleged misconduct. Therefore, it was not obligatory on the part of the Corporation to hold an enquiry before terminating the services.
13. The learned Advocate for the appellant next cited the decision reported at Escorts Limited v. Presiding Officer and Anr. In the said reported case it appears that the labour Court found that the service of the workman had been terminated in violation of Sections 25F and 25G of the said Act of 1947 and, therefore, termination was illegal and unjustified and the labour Court directed that the workman be reinstated with continuity of service and full back wages. A writ petition was filed against such award but such writ petition was also dismissed and the review petition was also dismissed and challenging such orders of the High Court concerned the appeals were filed before the Hon’ble Supreme Court. The Hon’ble Supreme Court was pleased to hold that
Since the services of the workman were terminated as per the terms of the contract of employment, it does not amount to retrenchment under Section 2(OO) of the Act and the Labour Court was in error in holding that it constituted retrenchment and was protected by Sections 25-F and 25-G of the Act.
14. The learned Advocate for the appellant next submitted that the services of probationer can be terminated by an order of termination simpliciter and there is no question of giving hearing to the employee before termination of service. He relied upon a decision reported at 1993 (66) FLR (SC) 79 Unit Trust of India and Ors. v. T. Bijaya Kumar and Ors. The Hon’ble Supreme Court was pleased to hold in the said report that
The very purpose of placing a person on probation is to try him during the probation period to assess his suitability for the job in question. It is settled law that an order of discharge is not an order of punishment and, therefore, there was no question of giving a hearing before termination of service.
15. The learned Advocate for the appellant next submitted that in every case back wages cannot be granted whenever the Tribunal directs reinstatement in service and an order granting back wages cannot be passed in a mechanical way but several factors have to be taken into consideration before granting of back wages. He relied upon the decision reported at 2005 Supreme Court Cases (L & S) 716 General Manager, Haryana Roadways v. Rudhan Singh.
16. The learned Advocate for the appellant also submitted that the appellant No. l is a sick Industrial Company and it has been already registered as a sick unit under BIFR and the appellate authority for industrial and financial reconstruction at New Delhi has passed an order sanctioning the scheme and as such no proceeding against the appellant No. 1 shall lie and/or be proceeded with except with the consent of the Board or the Appellate Authority under the provisions of Sick Industrial Companies (Special Provisions) Act 1985.
17. Another decision reported at Regional Manager, S.B.I v. Rakesh Kumar Tewari was cited at the Bar and paragraph 18 of the said reported case was referred to. Paragraph 18 of the said reported case is quoted below:
18. The respondent’s case in the first appeal of violation of paragraph 497 of the Shastri Award was also wholly misconceived. That paragraph deals with the rights of apprentices and has no application to temporary employees like the respondent. Assuming that there was a violation of the Shastri Award by the appellant in both cases either in not issuing appointment letters or not maintaining a seniority list, service book in respect of temporary employees etc., this would not mean that therefore the respondents had been properly appointed and their services wrongly terminated. Admittedly no procedure whether in law or under any award or settlement was followed in appointing either of the respondents in both appeals. No condition of services were agreed to and no letter of appointment was given. The nature of the respondents’ employment was entirely ad hoc. They had been appointed without considering any rule. It would be ironical if the person who have benefited by the flouting of the rules of appointment can rely upon those rules when their services are dispensed with.
18. The learned Advocate for the respondent No. 4 submitted that the respondent No. 4 was appointed as a workshop mechanic and the appointment was substantive and regular even though no appointment letter was given by the writ petitioners/appellants. He also submitted that the respondent No. 4’s service was terminated by a letter which described the respondent No. 4 as workshop mechanic and such termination was without assigning any reason. The said learned Advocate further submitted that the Tribunal after considering the evidence and the materials on record came to the findings as already indicated above and that the respondent No. 4 is a workman within the meaning of the said Act of 1947 and that the respondent No. 4 was not a probationary and in the absence of the appointment letter, the appellants have failed to prove the respondent No. 4 was a probationary and that the respondent No. 4’s service was quite satisfactory because before termination of his service there was no enquiry about the performance and, therefore, the allegations of unsatisfactory service is not tenable in the eye of law. The learned Advocate further argued that even if it is assumed for the sake of argument that the respondent No. 4 was a probationary then also reasons should have been assigned by the company after holding proper enquiry while terminating the services of the respondent No. 4.
19. The learned Advocate for the respondent No. 4 submitted that the learned Tribunal passed the award after appreciation of the evidence on record and the Writ Court cannot interfere with such findings. The said learned Advocate also submitted that there is no infirmity and/or perversity in the order of the tribunal and as such it does not call for any interference.
20. It is true that normally the Writ Court should not interfere with the findings arrived at by the Tribunal after a proper consideration of the materials on record but in the instant case there are two glaring facts which cannot be disputed. Firstly, no appointment letter was issued to the respondent No. 4 at the time of his appointment. Secondly, the respondent No. 4 did not work for more than 240 days. He joined service on 05.11.1981 and the notice of termination of service was dated 30.03.1982. Therefore, this period turns out to be less than 150 days. Even if it is assumed that the respondent No. 4 was not on probation the fact that he worked for less than 150 days cannot be disputed and during this period the appellants/writ petitioners found that the respondent No. 4 was not suitable for the job. It appears that the respondent No. 4 also did not insist for a regular letter of appointment and there is substance in the submissions of the learned Advocate for the writ petitioner/appellant that the respondent No. 4 was allowed to join service without any letter of appointment and without following the standing order and/or any rules. Such appointment was without following any procedure under law. It appears that the appointment itself was illegal and/or irregular since there is a specific standing order in respect of such appointment and such standing order has not been followed. The learned Advocate for the appellant has rightly submitted that the respondent No. 4 does not have any legal right in respect of his service. The aid learned Advocate has also rightly submitted that the respondent No. 4 has failed to discharge the onus with regard to the nature of his service and also failed to produce any document to show that he was a permanent employee. This Court is of the view that even if it is assumed that the respondent No. 4 was a workman in terms of the provisions of the said Act of 1947, even then, in the facts and circumstances of the instant case, it cannot be said that the respondent No. 4 was a permanent employee under the appellants/writ petitioners. This Court is also of the view that the respondent No. 4 was not entitled to any opportunity of hearing. It is quite probable that the respondent No. 4 who joined service on 05.11.1981 and was served with the notice of termination dated 30.03.1982, was on probation and the appellant/writ petitioners were entitled to watch the work, ability, efficiency and competence of the respondent No. 4 to ascertain whether or not the respondent No. 4 was suitable for the job. If the appellants/writ petitioners had found that the respondent No. 4 was not suitable for the job, it was up to the appellants/writ petitioners to discontinue the services of the respondent No. 4.
21. It appears from the materials on record that the services of the respondent No. 4 were terminated simpliciter without any stigma. In the view of this Court the Tribunal wrongly laid emphasis on the fact that no charge sheet was given by the Company and no enquiry was held before terminating the services of the workman. The Tribunal wrongly came to the conclusion that the action of the writ petitioners/appellants in terminating the services of the respondent No. 4 without assigning any reason and without holding any enquiry on the basis of any charge sheet was mala fide and it amounted to victimization and unfair labour practice. The Tribunal erred in not taking into consideration the fact that the appointment of the respondent No. 4 was not legal and proper and also not in accordance with the relevant rules and/or standing order. It cannot be said that the respondent No. 4 has any legal right in respect of his service. Since no stigma was Attached to the order of termination and since the order of termination was not a punitive measure, there was no necessity for holding any enquiry before issuing the order of termination. The writ petitioners/appellants were entitled under the law to terminate the services of the respondent No. 4 since the writ petitioners/appellants found that the respondent No. 4 was not suitable for the job concerned. It is a settled law that an order of discharge and/or termination simpliciter is not an order of punishment and therefore there was no question of giving an opportunity of hearing to the respondent No. 4 before termination of his services.
22. This Court cannot accept the submission of the learned Advocate for the respondent No. 4 that reasons should have been assigned by the Company after holding proper enquiry while terminating the services of the respondent No. 4. This Court also cannot accept the submission of the said learned Advocate that the respondent No. 4 was appointed as a workshop mechanic and the said appointment was substantive and regular even though no letter of appointment was given by the writ petitioners/appellants. In the absence of any letter of appointment this Court cannot accept such submission of the said learned Advocate merely because the respondent No. 4 was described as a workshop mechanic in the letter of termination.
23. The Tribunal also came to the finding that the terms and conditions of the service of the concerned workman are not forthcoming and that no letter of appointment was issued. The Tribunal was, however, wrong in coming to a finding that if the work of the respondent No. 4 was not satisfactory he should have been charge sheeted and dealt with according to the rules of natural justice. This approach of the Tribunal was erroneous.
24. In view of the discussions made above we are constrained to interfere with the order passed by the Hon’ble First Court and also the award passed by the learned Tribunal. Accordingly, we set aside the Hon’ble First Court’s order dated 2nd May, 2002 which has been challenged in this appeal and we also set aside the award dated 31st October, 1986 passed by the learned Tribunal. We allow this appeal by holding that the termination (simpliciter) of the services of the respondent No. 4 by the writ petitioners/appellants was legal and proper.
There will, however, be no order as to costs.
Urgent xerox certified copy of this order be given to the parties, if applied for, on compliance of usual formalities.
Pinaki Chandra Ghose, J.
25. I agree.
