@JUDGMENTTAG-ORDER
Ajit Kumar Sinha, J.@mdashPresent writ petition has been preferred for issuance of an appropriate writ/writs in the nature of certiorari to quash the award dated 4.12.2003 passed by the Presiding Officer, Labour Court, Deoghar in reference Case No. 2/2002 vide which the learned Tribunal held that the workman was entitled to the relief sought for and directed the Management to reinstate the workmen on the same post within one month from the date of publication of the award and further directed to pay the entire back wages from the date of termination till the date of reinstatement.
2. There are two writ petitions being W.P.(L) No. 2908 of 2004 and W.P.(L) No. 2911 of 2004 and the facts and circumstances being identical, the same are being disposed of vide this common order.
3. The facts, in brief, are set out as under:
W.P. (L) No. 2908 of 2004
The respondent No. 2 workman Ratan Lal Kurmke was appointed as Chemist temporarily on 15.1.1997 in a consolidated salary of Rs. 3500/- per month and he continued to work till 30.11.1997. Again vide Office order dated 3.12.1997 he was kept on probation for one year with effect from 01.12.1997. His probation period was extended for six months with effect from 30.11.1998 vide order dated 26.12.1998. The petitioner employer terminated the services of respondent No. 2 with effect from 31.5.1999 and paid all the dues including his leave salary on 01.6.1999. His probation was not extended and it was a case of termination simpliciter on expiry of the probation period.
W.P. (L) No. 2911 of 2004
Likewise, in second writ petition the respondent No. 2 Rajesh Mohan was appointed as Stock Loading Assistant for a period of one year on probation and the same was extended for another six months and he was also terminated on 31.5.1999 on the expiry of the extended probation period.
4. An industrial dispute was raised and a reference u/s 10(1-C) was made. On 24.8.1999 the dispute was referred by State Government for adjudication to the Labour Court. The Labour Court vide a detail speaking impugned order dated 02.4.2004 directed to reinstate the workmen on the same post and to pay the entire back wages from the date of termination to the date of reinstatement which is sought to be challenged in both the writ petitions.
5. The main contention raised by Sri K.B. Sinha, learned Sr. Counsel appearing on behalf of the Management is that the award is illegal and unsustainable in the eyes of law since the Labour Court exceeded its jurisdiction and travelled beyond the scope of reference. The second contention raised by the learned Sr. counsel is that even on completion of 240 days It gives no right to regularisation in view of the settled law as held in
6. The learned Counsel appearing on behalf of respondent No. 2 submits that this Court in a writ jurisdiction cannot interfere with the findings of facts which according to him the same is a settled law. He further submits that the termination order was illegal and in violation of Section 25(F) of the Industrial Disputes Act. He also submits that u/s 2(oo) of the Industrial Disputes Act such termination order amounts to retrenchment.
7. I have considered the rival submissions and the pleadings and the case laws on issues. Before dealing with the merits of the matter it will be relevant to quote Section 2(oo) which defines retrenchment, Section 2(s) of the Industrial Disputes Act which defines workman and Section 25-F which provides for conditions precedent to retrenchment of workmen:
Section 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; or
(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;
''Section 2(s) "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
Section 25-F: Conditions precedent to retrenchment of workmen.-No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month''s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days'' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette.]
8. In the instant case the probation period was extended by six months with effect from 30.11.1998 vide Office order dated 26th December, 1998 and the termination order was issued on 31.5.1999 which is a termination simpliciter of a probationer and the same is quoted as under:
The services of Shri Rajesh Mohan, staff No. 3312, who is on probation, are terminated w.e.f. 31.05.99 (A.N.)
9. There are four exceptions carved out in Section 2(oo) which defines retrenchment and in the instant case 2 (bb) squarely applies to the present facts of the case. Here is a case where the workmen were employed by the employer on probation for a fixed period which was finally extended uptil 31.5.1999 and the workmen were terminated from service during the probation period under the stipulated terms and conditions of the contract of employment. In the appointment letter it is specifically stated as under:
During the probationary period, his services are liable for termination without assigning any reason.
10. Considering the aforesaid facts and circumstances and applying the law it will be evident that the non-renewal or refusal to further extend the contractual probationary period cannot be termed as retrenchment and or termination as contemplated u/s 2(oo) of the Industrial Disputes Act and it fells under the exception clause of Section 2(bb) and thus there was no need for a prior notice u/s 25-F of the Industrial Disputes Act.
11. The learned Presiding officer, labour Court, Deoghar neither considered the legal position nor the settled law and the exceptions carved out in Section 2(oo)(bb) of the Industrial Disputes Act and thus, the direction to reinstate the workmen with the entire back wages from the date of termination is on the face of it illegal and unsustainable in the eyes of law. Unfortunately it has not even considered the terms and conditions of the appointment letter.
12. The Hon''ble Supreme Court has time and again held that in case of employment on contract where period is specified as per the terms of the contract the same was liable to be terminated on the expiry of the contract and/or the scheme and or project coming to an end. Thus, the workmen cannot, therefore, complain that by the act of the employer his employment was coming to an abrupt termination.
13. The Hon''ble Supreme Court in an identical case reported in
The order of employment itself clearly sets out the terms thereafter which makes it clear that the facility of providing training to him could be put to an end at any time without assigning any reason whatsoever and his services could be regularized only on satisfactory completion of his training. If these clauses are read together, it is clear he was under probation during the relevant time and if his services are not satisfactory, the same could be put an end to. It is clear that the respondent had been appointed as a Trainee Service Technician and for a period he had to undergo the training to the satisfaction of the appellant and if his work was not satisfactory during that period the facility could be withdrawn at any time and he would be regularized only on completion of his training. Thus the respondent''s services were terminated before expiry of the probationary period. In such a case, question of issue of notice before terminating the service as claimed by the respondent does not arise. Escorts case is identical with the present case. Following the said decision and for the reasons stated therein these appeals are allowed. The order made by the High Court affirming the award made by the Labour Court is set aside and the claim made by the respondent is dismissed.
14. A Bench of three Hon''ble Judges in
15. Thus the issue is no more res-integra and the Hon''ble Supreme Court has time and again held that the person appointed on probation, his services can be terminated or dispensed with during or at the end of the period of probation without assigning any reason because such probationer does not acquire any right to hold or continue to hold such a post during the period of probation.
16. In the instant case also the appointment was on probation for a fixed period and the termination was at the end of the period of probation on the ground that the work was not satisfactory and thus it is neither punitive in nature nor cast any stigma for being interfered with.
17. Considering the aforesaid facts and circumstances of the case and the settled law this writ petition is allowed and the impugned order dated 4.12.2003 passed by the Presiding officer, Labour Court, Deoghar in reference case No. 2/2002 is set-aside.
