JUDGMENT J.K. Mehra, J.
(1) By this order I will be disposing of two cross writ petitiions, one filed by the Management and the other filed by the workman impugning the same Award of the Presiding Officer of the Labour Court Iv, Delhi.
(2) The facts giving rise to the present case briefly stated are as under:
(3) The workman who is respondent no. 2 in C.W.P. No. 2228/83 and is the petitioner in C.W.P. No. 1395/84 had applied for a job of Junior Executive with the Management on 12th October 1976 and was appointed as Junior Executive by the petitioner company with effect from 15th February 1977 by a letter of appointment dated 24th February 1977. He was appointed on probation for three months. Before handing over the letter of appointment it is alleged that the workman was clearly told that he will have to pass a typing test within three months from the date of his appointment and the workman had given an undertaking on 23rd February 1977 confirming that he would clear typing test with a minimum speed of 30 words per minute within three months and he would also undergo an aptitude test.
(4) Certain very important facts which came to light during the hearing were that execution of this undertaking was not initially admitted by the workman but was admitted in the course of his cross- examination. It was found missing from the Court file, but on the Management's representative bringing this fact to the notice of the Labour Court a duly certified duplicate copy thereof was produced by the workman and very strangely on the next adjourned date the Presiding Officer found that the original documents had been received back by post along with a letter addressed to his residential address. The probation period according to the letter of appointment was to end on 14th May 1977. It is further stated by counsel for Management that on 13th May 1977 the workman was called for typing test in terms of his undertaking dated 23rd February 1977 itself but the workman refused to take the test and walked out of the office of the then Company Secretary Shri Rajiv Gujral (MW 1). Consequently the Management terminated the services of the workman vide letter dated 14th May 1977 It is alleged by Management that the workman was called by Shri Rajiv Gujral and delivered letter on 14th May 1977 but the workman refused to accept it and walked out of the room and he continued to evade service of the said letter of termination for the next three or four days as a consequence whereof the Management sent the letter by post at the residential address of the workman. The workman on 20th May 1977 submitted a letter applying .for five days leave. In response the Management seat its letter informing the workman that the management had already sent its letter of 14th May 1977 terminating his services forthwith and informing him that in the circumstances the question of his applying for leave did not arise. The workman challenged this claim of the Management and alleged that he had continued to attend his duties even after his letter asking for leave upto 10th June which fact has been disputed by the Management. He alleges that he was called on 13th May 1977 on the pretext that he would be given the letter of confirmation. He was not to take any typing test as other persons who were appointed to similar post were not called upon to do so. He has also disputed that on 14th May 1977 any letter of termination was handed to him.
(5) Afterwards the workman approached the labour authorities and conciliation proceedings resulted in failure. The appropriate government, therefore, referred the dispute for adjudication to the said Labour Court. The terms of reference were as under:- "WHETHER the action of the management in terminating the services of Shri B.S.Negi is legal and justified and it not, to what relief is he entitled and what directions are necessary in this respect."
(6) On the parties being summoned the parties appeared and filed their respective pleadings. After the filing of the pleadings the Labour Court framed the following issues:-
1)Whether the claimant Shri B.S.Negi is a workman within the meaning of Section 2(s) of the Industrial Dispute Act?
2)Whether the claimant has raised a valid demand on the management? If not, its effects and
3)As in the reference.
AGAIN on 17th December 1972 the following three more issues were framed:
4)Whether the constitution of this Court is bad in law and as such it has no jurisdiction to adjudicate open the reference.
5)Whether the reference is bad in law for non application of mind by the appropriate Govt as alleged in the written statement; and
6)Whether the workman has been gainfully employed? If so, for what period and its effects?
(7) Both the parties led their respective evidence. The Labour Court after considering the evidence and hearing the parties, decided Issue Nos. 1,2,4,5 and 6 against the Management. The real contest was only on issue No. 3 based on terms of reference which was contested by both the parties. The Labour Court after reviewing the evidence led by the parties before him has come to the finding that;
A)the workman was appointed with effect from 15th February 1977 and not 12th October 1976;
B)he refused to take the typing test when called upon to do so on 13th May 1977;
C)the Management issued letter of termination dated 14th May 1977 which was sent by Upc as well as under registered Ad post on 20th May 1977. While the Upc is presumed to have been served, the registered Ad cover was returned with the postal stamp of 20th May 1977 with the report/letter antedated of refusal to receive on 22nd May 1977.
(8) He has, however, held that the workman continued to hbe in service till 19th May 1977 even after completion of his probation period and he accepted the verdict of the workman that the letter of termination was signed subsequently but anti-dated and cannot take retrospective effect. The Labour Court has held that after the completion of the probation on 14th May 1977 the petitioner continued to work till 19th May 1977 and for that reason he could not be deemed to be on probation and he could be deemed either to have been conrned or to be on temporary employment in terms of the ratio of the case of Mohan Lal Vs. Bharat Electronics Ltd. reported as . The Labour Court was also influenced by a Division Bench Judgment of this Court in the case of India Tourism Development Corporation reported as 1987 Slr (42) 373 when the termination for unsatisfactory performance was held to be bad. The case before the Division Bench of this Court was not a case where a person was put on probation. For that reason and also on facts that case will have no relevance for deciding the present case. The Labour Court had consequently set aside the termination and held him to be entitled to reinstatement with continuity of service and payment of back wages. But keeping in view that the workman had hardly worked for three months with the management and that a long period had lapsed since he had not worked for the management found it to be a fit case of not to grant reinstatement and awarded compensation in the sum of Rs. 35,000.00 . Mr. Negi has filed a writ petition challenging this part of the award and claiming reinstatement with full back wages. In the present case there was an admitted breach of an undertaking admittedly given by the petitioner himself and he had failed to take the test of clearing the typing examination as per the undertaking. He in fact refused to take the typing test.
(9) A Division Bench of this Court had an occasion to consider the question of confirmation of a probationer in the case of B.S.Sokhi versus Chairman-cum-Managing Director, Punjab & Sind Bank reported as . Thereafter considering the various pronouncements of the Hon'ble Supreme Court in different cases this Court had concluded that where-ever it is specifically provided that the period of probation cannot be extended beyond a certain period fixed under the contract of the rules applicable and the employee is allowed to continue to work beyond that maximum period, .he could be deemed to have been either confirmed or allowed to on tinue as a temporary employee but he in such cases would cease to be a probationer. But in case there is no such embargo in the contract of employment the probation could be extended and in any event the employee would not cease to be a probationer. The result would be that it does not follow that at the end of such specified period of probation he obtained confirmation automatically even though no order of confirmation is passed in that behalf, unless the terms of appointment clearly indicate that the confirmation would automatically follow at the end of the specified period or as has been noticed above, if there are specific service rules to that effect. The mere expiration of the probation period does not necessarily lead to confirmation. (See State of Punjab versus Dharam Singh, reported as wherein the Hon'ble Supreme Court had held: "3.This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rulesè. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the me fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed. This view was taken in Sukhbans Singh v. State of Punjab, , G.S.Ramaswamy v. Inspector General of Police, Mysore State, Bangalore, , Accountant General, Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, Civil Appeal No. 548 ' of 1962, D.00 23.1.1964 (SC) D.A.Lyall v. Chief Conservator of Forests, U.P., Civil Appeal No. 259 of 1963, D.00 24.2.1965 (SC) and State of U.P. v. AkbarAli, . The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication. In all these case, the conditions of service of the employee permitted extension of the probationary period for an indefinite time and there was no service rule forbidding its extension beyond a certain maximum period."
(10) A reference be also made to the cases of Kedar Nath Bahl Vs. The State of Punjab and Others reported as ; Mr. Sukhbans Singh Vs. State reported as ; and G.S. Ramaswamy Vs. Inspector General of Police, Mysore State, Bangalore reported as (11) Therefore I find that in the aforesaid judgment of Mohan Lal Vs. Bharat Electronics Ltd. by two judges of the Hon'ble Supreme Court the ratio of the Constitution Bench in the judgment of the State of Punjab Versus Dharam Singh has not been noticed. In any event on facts of this case the ratio of even this judgment is not applicable as the termination had in fact been decided on and letter of termination was tendered on 14th May 1977. In a case of Dhanjibhai Ramjibhai Vs. State of Gujarat reported as , subsequent to the case of Mohan Lal Vs. Bharat Electronics Ltd. (supra), the Hon'ble Supreme Court has observed as under; "11.A distinction is sought to be drawn between a probationer whose services are terminated on the expiry of the period of two years and a probationer, who has completed the normal span of two years and whose services are terminated some time later after he has put in a further period of service. We are unable to see any distinction. It is perfectly possible that during the initial period of probation the confirming authority may be unable to reach a definite conclusion, on whether the candidate should be con- firmed or his services should be terminated. Such a candidate may be allowed to continue beyond the initial period of two years in order to allow the confirming authority to arrive at a definite opinion. It seems to us difficult to hold that a candidate enjoys any greater right to confirmation if he is allowed to continue beyond the initial period of probation."
(12) I also find that the Labour Court in reaching the conclusion of the letter of termination having been anti-dated has erred and such conclusions of the Labour Court are contrary to the evidence on record and are, therefore, erroneous. The fact of the letter of termination having been tendered has been deposed to by the management witness Mr. Rajiv Gujral (MW1)who has clearly stated as under:
"ON14th May 1977, I had called Sh. B.S.Negi to deliver the letter Ex. MW-2 and he refused to accept and walked out of my room......"
"ON13.5.1977 Mr. B.S.Negi was called for a typing test as per his under talcing Exhabit Mwi, he, refused to give the test and walked out. His services were not found satisfactory and his services were terminated on completion of probationary period........It is wrong that I called Mr. B.S.Negi for letter of confirmation to be delivered to him on 13.5.1977. Instead I had called him for a typing test only."
(13) MW-2 Mr. B.R.Kapoor stated that "After his termination of service he never resumed duty nor he was told by me to resume duty on 10.6.1977 or afterwards".
(14) Their testimony could not be shaken in this behalf. Furthermore the fact that on 13th May 1977 Mr. Negi was called upon by Mr. Gujral is not disputed by Mr. Negi also but he has stated that he was called for the delivery of letter of confirmation. A reading of the entire evidence completely disproves such an assertion. The testimony of the management witness in this behalf could not be shaken. It was argued that Mr. Inder Sharma was not in Delhi on 14th May 1977. This suggestion had been denied by the management witness Mw 2 Mr. B.R.Kapoor. He has further stated that: "Mr. Inder Sharma, Managing Director, has signed Mw 2 and I identify the signatures. It is wrong to suggest that Mr. Inder Sharma was not in Delhi on 14.5.1977 because he has signed the letter dated 14.5.1977 and therefore he was in Delhi." Furthermore MW-1 has clearly stated having called the workman on 14th May 1977 to his room to deliver the letter of termination.
(15) In view of the above discussion I find that the Award of the Labour Court suffers from errors of law and facts apparent on the face of the record and cannot be sustained. I also find that the letter of termination was tendered to workman on 14th May 1977 but he refused to accept it. This fact clearly put an end to the contract of employment on the last day of his probation. Even if it was to be assumed for the sake of argument that the workman was attending office till 19th May 1977 there was nothing in the contract which would give rise to any presumption of Mr. Negi having been allowed to continue as temporary employee and there was no bar on the extension of probation nor was there any ceiling on the probation period imposed on the management in the present case. I also find that the management had taken a conscious decision on Mr. Negi's failure to even taking typing test contrary to his undertaking and his work being unsatisfactory which resulted in the management taking the decision to terminate Mr. Negi on the conclusion of his probation period that is 14th May 1977. Even assuming that Mr. Negi though tendered the letter and had refused to accept the service of such letter or even taking Mr. Negi's version to be correct that the letter was in fact issued only on 19th or 20th of May 1977 that would not give rise to any presumption that the workman had been allowed to become a confirmed employee or a temporary employee and had ceased to be a probationer in the light of the law laid down by the Hon'ble Supreme Court. For that reason I hold that the termination of Mr. B.S.Negi the workman as probationer on the conclusion of his probation period was in order and such termination could not be faulted. The result of this discussion is that the Rule issued in Civil Writ Petition No-2228/83 is made absolute and that the award of the Labour Court is set aside and the termination of Mr. Negi in terms of his letter of termination is upheld as valid.
(16) The management had deposited a sum of Rs. 35,000.00 before the Labour Court out of that sum of Rs. 17,500.00 has already been withdrawn by Mr. Negi. This amount is not returnable to the management as per orders dated 21st November 1983 passed in Cwp No. 2228/83 in C.Ms. bearing No. 433/83 & C.M. 4598/83. However I feel that in the facts and circumstances management should bear the costs of workman which are assessed at Rs. 10.000.00 which sum can be withdrawn by the workman out of the balance amount of Rs. 17,500.00 lying in deposit with the Labour Court. The management will be entitled to withdraw balance sum of Rs. 7500.00 from the Labour Court.
(17) Both the writ petitions i.e. C.W.P. No. 2228/83 and C.W.P. No. 1395/84 are disposed of in the above terms.