JUDGMENT
Lalit Mohan Sharma, J.
1. By this writ application, the petitioners have prayed for quashing the award dated 29-11-1975 (Annexure 2) in Reference No. 14 of 1972 so far as it relates to Items 2, 7 and 9 of the reference. The petitioner No. 1 is a Labour Union and petitioner No. 2 is a workman who is interested in the second item of Annexure ‘1’, the reference made by the State Government on the basis of which the impugned award has been given.
Item No. 2.
2. This dispute has been referred to by Annexure 1 in the following terms:
Whether the change in the service conditions of Shri R.K. Poddar during his probationary period is justified? If not, to what relief he is entitled
3. The case of the petitioner No. 2 is that he applied for appointment to the post of Technician Grade-3 in 1963 and he was offered the post of Instrument Technician Grade-4 by a letter dated 1-4-1964 (Annexure 3) which he refused to accept by his reply dated 28-4-1964 (Annexure 4). In the meantime, the petitioner had again applied for the post of Technician Grade-3 (Piping) on 13-3-1964. By a letter (Annexure 6) dated 24-4-1964 he was given another offer to the post for which he applied on certain conditions mentioned therein. Besides the other terms, the first and the ninth terms, as mentioned in Annexure 6 were as follows:
1. You will be on probation for a period of six months from the date you take charge, but the period may be extended or reduced. If your work is found to be satisfactory during this probationary period, your service will be continued and you may be confirmed in service. During the probationary period your service will be liable to be terminated without notice and without assigning any reason. Your continuance in service shall be subject to your being found medically fit by the Company’s Medical Officer or by a Government Medical Officer of the status of a Civil Surgeon. Your service will not be regarded as confirmed until a letter of confirmation is issued by the Management.
9. The Management reserves the right to terminate your appointment at its absolute discretion, after giving you one month’s notice or on payment of one month’s wages in lieu of notice. Similarly, you shall be at liberty to resign from the service after giving one month’s notice. This clause does not apply to service during the probationary period which will be governed by the provisions of clause No. 1. The power to terminate your services will vest with the Chairman the General Manager or with such other officer of the company authorised by them, or to whom the power in that behalf has been delegated by them, either generally or by a special order.
The petitioner accepted the terms and joined the post. He however before the period of six months was over, received a letter dated 22/23-7-1964, a true copy whereof is Aanexure 7, whereby he was placed in the post of Pipe Fitter Grade-4 with retrospective effect from 24-4-1964 on the ground that he could not carry out the work of the Pipe Fitter independently. The contents of the letter are reproduced below:
The letter No. P/Est, 3921 dated 24-4-1964, placing you in the permanent set up as Technician Grade-3 (Pipe Fitting) is hereby withdrawn. It has been decided to place you as Pipe Fitter Grade-4 as you could not carry out the work of the Pipe Fitter Grade-3 independently. Your joining as Pipe Fitter Grade-4 will be effective from 24th April 1964, the date on which you reprorted for duty in the Personnel Department.
It is the admitted position before us that the petitioner thereafter worked as Pipe Fitter Grade-4 till 1969 when he was promoted and posted as Technician Grade-3 with effect from 25-5-1969. It is not disclosed in the writ application as to when the dispute challenging Annexure 7 was raised by the petitioner which was ultimately referred by Annexure 1 and even on a querry by the Bench during the arguments, the learned Counsel for the petitioner could not give the information.
4. The Presiding Officer, Industrial Tribunal, held that the reduction in grade of the workman did not amount to victimisation or unfair labour practice, and the management was not prejudiced against him in so doing. The order passed by the management in this regard, therefore, could not be interfered with but the order of reduction in the post could not have been validly passed with retrospective effect. The Tribunal, accordingly, held that the petitioner No. 2 was entitled to the difference of pay between the two posts for the period 2-4-1964 to 23-7-1964.
5. R.J. Krishna, appearing on behalf of the petitioners, contended that the view of the Tribunal rejecting the claim for the period 24-7-1964 to 24-9-1969 was illegal and fit to be set aside. The argument is that the petitioner was entitled to remain on probation for the full period of six months and he could not have been sent down during this period. The ground on which the petitioner was demoted was, in substance, of inefficiency and the petitioner was entitled to be heard before a decision against him could be taken. It was also suggested that there was no matrial to show that the petitioner was not able to carry out his work of Pipe Fitter Grade-3 independently. Mr. J. Krishna further contended that even after expiry of the period of six months fixed for probation, there cannot be an automatic termination of the service of a workman and the petioner No. 2 must be deemed to have continued in the higher post He relied upon the decisions in The Management of the Express News. papers (P) Ltd. v. The Presiding Officer, Labour Court , The Management of Utkal Machinery Ltd. v. Workman, Santi Patnaik A.I.R. 1966 S.C. 1951., and the Management of Brooke Bond India (P) v. Y.K. Gautam .
6. I do not find any merit in the contention raised on behalf of the petitioner No. 2 that his service as a Pipe Fitter Grade-3 was terminated in the circumstances which attracted the principles of natural justice requiring a notice of show cause to be served on the petitioner and art opportunity to be given to him to prove that he was efficient. It is true that even a probationer cannot be dismissed or discharged on a ground which amounts to stigma, without a proper enquiry, but otherwise an appointment on probation does not give a right to the post and it can be terminated without taking recourse to an enquiry. It has also to be borne in mind that the purpose of putting a servant or workman on probation is to find out whether he is fit for the work proposed to be assigned to him on a regular basis. If his work is not considered up to the mark and he is not taken in service substantively it can infereutially indicate that his work has not been found satisfactory but that will not give any right to be heard. An assessment of satisfactory work of a probationer is inherent and if he is not found suitable and his service is accordingly terminated, the principles of natural-justice are not automatically attracted unless he is condemned. In the present case, I do not find that an aspersion was cost or a stigma was made against the petitioner. It is also not correct to say that the petitioner was actually performing his duties satisfactorily and there was no reason for premature termination of his period of probation. The Tribunal has referred to certain materials showing that the petitioner was not able to carry out the work of Pipe Fitter Grade-3 independently and I do not find any reason to take a different view. Besides there are other important circumstances which support the view. The petitioner No. 2 was given another post without leaving him jobless for a single day which he promptly accepted and continued till. 1989, when he was duly promoted. He also filed a representation in 1967. a true copy where of is Annexure ‘A’ at page 92 of the records wherein he claimed to have improved and gained additional knowledge between 1964 and 1967 which made him eligible for promotion. I am, therefore, of the view that the petitioner was not discharged from his service on a ground which amounted to stigma and he had no grievance against the same when the impugned order was passed. He took advantage of the benefits offered to him and enjoyed the same for a number of years and cannot now be permitted to challenge the same,.
7. It also follows from what has been mentioned above that the Management in terminating the petitioner’s period of probation did not act capriciously, unreasonably or unjustly nor did it amount to victimisation of the petitioner or to an unfair labour practice. Mr. J. Krishna has been fair in not founding his arguments on these grounds; but he has contended that since the period of probation had been fixed at six months, it could not have been cut down and for this reason the petitioner must be held to be entitled to the higher pay throughout the period for which he was placed in the post of Pipe Fitter Grade-4. The question for decision is, therefore, as to whether the six months period of probation could have been validly reduced by the Management for the purpose of terminating the petitioner’s employment as Technician Grade-3.
8. It is true that in settling disputes between the employers and workmen, the function of an Industrial Tribunal is not confined to administration of justice in accordance with the terms of employment. The Tribunal has not merely to interpret or give effect to the contractual right and obligation of the parties. It can create new right and obligation between them which it considers essential for keeping industrial peace. This principle has been fully recognised in this country and adopted by the Courts in the field of industrial adjudication. But the power in this regard cannot be arbitrarily exercised. The Labour Courts should exercise discretion according to rules of reason and justice and not on a fanciful opinion. The industrial adjudicators have to determine the rights and wrongs of the claims made and while so doing have to follow the principles of justice, equity and good conscience. In this background, it was held in Rohtas Industries Ltd. v. Brijnandan Pandey (19564) 2 L.L.J. 444., that the Tribunal cannot ignore altogether the existing obligation without any rhyme and reason. Developing this aspect, the Supreme Court in New Maneckchowk Spinning and Weaving Co. Ltd. v. Textile Labour Association (1961) 1 L.L.J. 621. observed that although an industrial Court in an appropriate case is entitled to impose new obligations on the parties before it or modify contracts in the interest of industrial peace; it cannot do anything and everything when dealing with an industrial dispute, as the power is conditioned by the subject matter with which it is dealing and also by the existing industrial law. Shah, J. in Delhi Cloth and General Mills Ltd. v. Its Workmen (1969) 2 L.L.J. 755., cautioned that ”temptation to be crusaders instead of adjudicators must be firmly resisted. The Courts have however held that there are no absolutes and no for-mule which can invariably give correct answers to different problems arising in different circumstances. Shah, J. in Delhi Cloth and Genera/ Mills Ltd. v. Its Workmen (supra) observed that it would be futile to attempt to reduce grounds of the decision given by the Industrial Tribunals and other Courts to the dimensions of any recognised principles. Coming to the present case, it appears that the first terms in Annexure 6, quoted above, in paragraph 3, stated that the period of six months could be extended or reduced and the service was liable to be terminated even during the said period. The ninth term, also quoted above is also in this spirit. I do not find any reason to hold that this condition must be ignored irrespective of the fact that the Management is not being unreasonable in enforcing it or is not taking any undue advantage therefrom. Mr. J. Krishna failed to point out any principle of justice or equity or of expediency, in support of the wide proposition that a fixed and unalterable period of probation must be granted to the workman without any right to the Management to reduce it. The point, therefore, fails.
8. Before closing the case, I should mention that if the action of the employer is mala fide or it amounts to victimisation of the workman or an unfair labour practice or is so capricious and unreasonable as to lead to the inference that it has been resorted to for ulterior motive, it has to be struck down and it cannot be defended on the basis of such an agreement. In the present case, no such question arises and I am, therefore unable to find any principle on which the petitioner’s claim can be allowed. In the Management of the Express Newspapers (P) Ltd. v. The Presiding Officer Labour Court (supra) relied upon by the learned Counsel for the petitioners the term of appointment of the workman fixed the period of probation at six months without any right in the Management to reduce the period. Besides it was held in that case that the Management’s action was not bona fide and amounted to victimisation of the employee. In The Management of Utkal Machinery Ltd. v. Workmen, Santi Patnaik (supra), the terms of employment were similar to those in the case before me but the relief to the workman was not granted on the ground that the Management could not have terminated his services prematurely. Acknowledging the Management’s right in this regard, it was held that if the validity of the termination was challenged, it would be competent for the Industrial Tribunal to enquire whether the order of termination had been effected in the bona fide exercise of the power conferred by the contract. If the discharge of the employee has been ordered by the Management in bona fide exercise of its power, the Industrial Tribunal will not interfere with it but it is open to the Industrial Tribunal to consider whether order of termination is mala fide or whether it amounts to victimisation of the employee or an unfair labour practice or is so capricious and unreasonable as to lead to the inference that it has been passed for ulterior motive and not in bona fide exercise of the power arising out of the contract. In such a case, it is open to the Industrial Tribunal to interfere With the order of the Management and to afford proper relief to the employee”. The observations, quoted above, instead of supporting the petitioner help the respondents before me. This decision was followed in The Management of Brooke Bond India (P) Ltd. v. Y.K. Gautam, (supra) and the judgment in the case rested on the finding that the order of termination passed against the probationer salesman was capricious, unreasonable and not justified. None of the decisions placed by Mr. J. Krishna supports him.
9. The other workmen who are Interested in Item Nos. 7 and 9 have not joined the application.
Item No. 7.
10. The letter of reference mentions this question in the following terms:
Whether Sarbshri (1) A.K. Bose, (2) Mahendra Narayan Singh (3) K. Ramchandram, Electrical Supervisors are entitled to higher scales of pay? If so, what should be the scale of pay and from which date?
The scale of pay of Electrical Supervisors other than Shri A.K. Bose, Shri Mahendra Narayan Singh and Shri K. Ramchandram was fixed on the basis of an award of the Labour Commissioner. Before the award, all of them were getting the same scale of pay. In the counter affidavit filed on behalf of the respondent No. 1, it was mentioned that the persons concerned in the present item were daily wage earners and after competition of a particular work, a question arose as to what would happen to the work force in different categories who were temporary workers. There was a reference made under Section 10 of the Industrial Disputes Act on the question as to whether the temporary workmen should be put on permanent cadfe or not and, if so, how many of them should be absorbed. By the award, it was held that 756 persons should be retained and the rest of the workmen should be retrenched. The farther details of this award are given in paragraph 10. This award was implemented by a bilateral agreement as contained in Annexure 9 to the writ application. This document settles the matter against Shri A.K. Bose, Shri Mahendra Narayan Singh and Shri K. Ramchandram, No reply has been filed by the petitioner against the counter affidavit. Mr. J. Krishna took us through the memorandum of settlement (Annexure 9) but he could not point out any error in the interpretation either put by the respondent No. 1 in his counter affidavit or by the Tribunal in paragraph 15 of Annexure 2. It was, however, urged that since other workmen similarly situated as Shri A.K. Bose, Shri Mahendra Narayan Singh and Shri K. Ramchandram were given higher pay scale by Annexure 9 these persons were also entitled to the same. The case of the Management before the Tribunal as also before this Court in its counter affidavit is that higher scale was allowed on the quality of work of the particular workman and since the afforesaid persons were not as efficient as others, they were not given the same scale. I do not think it necessary to go into this aspect since the matter must be deemed to be concluded by Annexure 9. The Union appears to be a party to the settlement and the Tribunal has mentioned in paragraph 15 that the “Union admits the award to be binding….” I, therefore, do not find any merit in the petitioner’s case on this point.
Item No. 9.
11. The last question which was pressed by the petitioner before us was referred to in the following terms:
Whether Shri B.N. Misra, Radiographer, is entitled to the scale of pay at par with the scales of pay of Charge hands? If so, from which date?
This question also is concluded by the memorandum of settlement (Annexure 9) and no argument was addressed as to why the petitioner No. 1 or B.N. Misra, Radiographer, could not be found by the same, This item also, therefore, appears to have been correctly decided by the Tribunal.
12. In the result, I do not find any merit in this writ application, which is accordingly dismissed, but without costs.
Brishketu Saran Sinha, J.
13. I agree.