$~R-241
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6199/2002
Decided on 26th November, 2013
RAMESH KR. DOGRA ..... Petitioner
Through: Mr. Som Dutta Sharma, Mr. Gaurav
Bhardwaj, Mr. Amandeep Singh and
Ms. Garima Bhardwaj, Advs.
versus
P.O. LABOUR COURT-I & ANR. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK A.K. PATHAK, J (ORAL)
1. Aggrieved by the Award dated 4th February, 2002 of the Labour Court No. I, Delhi petitioner-workman has preferred this writ petition under Article 226 of the Constitution of India. By the impugned Award Industrial Adjudicator has held that petitioner had not completed 240 days of service, inasmuch as, his services were terminated during the probation period without casting any stigma on him, thus, petitioner was not entitled to any relief.
2. Secretary (Labour), Govt. of NCT of Delhi referred the disputes to the Labour Court for adjudication in the following terms :- W.P. (C) 6199/2002 Page 1 of 11
"Whether the services of Sh.Ramesh Kumar Dogra have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"
3. Petitioner alleged in the statement of claim that he was appointed as an „Accountant‟ with effect from 1st August, 1991 vide letter of appointment dated 15th July, 1991 issued by the respondent-management. In terms of the appointment letter, petitioner was to remain on probation for a period of 160 days. Petitioner successfully completed 160 days on 7th January, 1992. However, his services were illegally terminated on 31st January, 1992. In the written statement before the Conciliation Officer respondent had alleged that petitioner had removed certain important documents from the office and in this regard an FIR was registered on 31st January, 1992 at Police Station Cannaught Place, New Delhi. It was further alleged that petitioner had indulged in undesirable activities, therefore, on 7th January, 1992 he was handed over a warning letter for his misconduct. However, no such letter dated 7th January, 1992 was served on the petitioner. No charge-sheet was served on the petitioner regarding alleged misconduct on his part nor any enquiry was held, thus, termination was punitive and bad in law. Neither any notice was served on the petitioner nor any notice pay in lieu of notice W.P. (C) 6199/2002 Page 2 of 11 period was tendered, thus, Section 25-F of the Industrial Disputes Act, 1947 (for short, the Act) was violated rendering the termination illegal. It was prayed that petitioner be reinstated with full back wages and continuity of service.
4. In written statement, respondent alleged that it was not an industry within the meaning of the Act. It was stated that in terms of appointment letter the petitioner was put on probation for 160 working days not including holidays and Sundays. Petitioner had not completed 160 days and, in fact, completed only 152 working days. On 7th January, 1992 petitioner was handed over a warning letter. Petitioner had committed theft of documents. It was denied that termination letter dated 31st January, 1992 was in violation of principles of natural justice. It was denied that termination was stigmatic. It was stated that termination was simplicitor on account of non- confirmation of probation period.
5. Following issues were framed by the Industrial Adjudicator on 27 th July, 1995:-
"1. Whether the management is not an industry as defined under Industrial Disputes Act?
2. Whether the workman left the service of his own, if so, its effect? O.P.M.W.P. (C) 6199/2002 Page 3 of 11
3. As per terms of reference."
6. Upon scrutiny of material on record Industrial Adjudicator has held that petitioner had worked for less than 240 days in a year preceding the date of his termination, thus, compliance of Section 25-F of the Act was not necessary. Reliance was placed on Karnal Central Coop. Bank Ltd. vs. P.O. Industrial Tribunal-cum-Labour Court, Rohtak & Ors. 1994 II LLJ 1005 wherein it is held thus:-
"The Industrial workers who do not complete 240 days of service have not industrial rights under the Act and cannot, therefore, avail of the machinery provided under the Act for the settlement of their disputes. The policy of the Act draws a distinction between those with services of 240 days and more and others with less. It was not necessary for the management in the present cases to comply with the provisions of Sec. 25(H) of the Act before dispensing with the service of the workman as he admittedly had less than 240 days of service."
7. Reliance was also placed on Ram Gopal Saini vs. The Judge, Labour Court No. 2, Jaipur and Others 2001(89) FLR 778 wherein it has been held thus:-
"The petitioner has not completed 240 days of working in a calendar year, therefore, compliance of Section 25-F of the Act was not required in the instant case. Further the appellant utterly failed to prove this fact that respondents have violated the provisions of section 25-H and 25-G of the Act by way of any documentary evidence before the Labour Court which was to be proved by the appellant. Mere mentioning the names of W.P. (C) 6199/2002 Page 4 of 11 the junior persons, who have alleged to be appointed after retrenchment of the appellant does not serve the purpose".
8. Industrial Adjudicator has also placed reliance on Indian Silk Manufacturing Co. (P) Ltd. vs. Gamprasad R. Jaiswal & Ors. (1998) II LLJ 116 Bom on the point that compliance of Section 25-F of the Act was not necessary in the cases where workman had failed to prove that he was in employment for a continuous period of 240 days in a calendar year preceding the date of termination. Industrial Adjudicator has further held that petitioner was on probation and since his termination was within the probation period without casting any stigma it was not open to challenge. Reliance was placed on Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Science and Another AIR 2002 SC 23 wherein it was held that termination of services of a probationer merely on the ground that his work and conduct was not found satisfactory is not stigmatic. Reliance was also placed on H F Sangati vs. RG High Court of Karnataka & Ors. 2001 89 FLR 231 SC wherein it was held that a probationer could be discharged from services, inter alia, on account of unsuitability for the service.
9. Learned counsel for the petitioner has vehemently contended that in its reply before the Conciliation Officer respondent had alleged that W.P. (C) 6199/2002 Page 5 of 11 petitioner had committed theft of files and an FIR was registered in this regard. However, no such FIR was registered nor such allegation was proved before the Industrial Adjudicator, thus, termination of petitioner on the alleged misconduct was bad in law, inasmuch as, the misconduct was „foundation‟ of termination order. Termination on the ground of misconduct without holding enquiry was against the principles of natural justice and was illegal. Reliance has been placed on Anoop Jaiswal vs. Government of India & Another AIR 1984 SC 636. I do not find any force in this contention of the learned counsel for petitioner.
10. A perusal of termination letter clearly indicates that his termination was simplicitor during the probation period, without attaching any stigma. Termination letter dated 31st January, 1992 reads as under :-
"SURYA KIRAN MAINTENANCE SOCIETY SURYA KIRAN BLDG. 19, KASTURBA GANDHI MARG, NEW DELHI - 110001 No. SKMS/Per/RKD/92 Dated 31/1/92.
Mr. Ramesh Kumar Dogra 190, Gopal Park, Chander Nagar New Delhi - 51.
Subject: TERMINATION OF SERVICES FROM SURYA
KIRAN MAINTENANCE SOCIETY AS AN
ACCOUNTANT.
W.P. (C) 6199/2002 Page 6 of 11
Dear Sir,
Further to our letter No. SKMS/Per/RKD/92 dated 07 Jan 92 handed over to you personally by the undersigned and receipt obtained.
It is to inform you that you had shown no improvement in your conduct for which you were apprised to improve by 31st Jan 92 as such your services are hereby terminated w.e.f. 31/1/92 (AN). This warning was given to you very clearly in our letter dated 7/1/92.
Please also note that as you were in the probation period till today, your services are terminated and no confirmation to extend your services is granted to you.
As you had left the office by observing holiday (1/2 day), the letter is posted to you by Regd. Post (AD) and UPC Post.
Yours faithfully Sd/ Estate Manager (Major DL Sharma) (Retd.)"
11. Relevant clauses of appointment letter dated 15th July, 1991 reads as under :-
2. We are pleased to inform that you have been selected in the interview held on 9/7/91 and you are hereby offered the post of „ACCOUNTANT‟ in Surya Kiran Maintenance Society, Surya Kiran Building, 19 KG Marg, New Delhi-1. You will join the duty on 1/8/91 and you would be considered having joined the duty from the date you, perform the duty. You would produce medical certificate for your fitness for duty from the Recognised Medical Practitioner (MBBS) on the day for you join the duty.
3. You would be on probation period for 160 days (working days). After going through your performance, you would be confirmed. Your charter of duties is attached.W.P. (C) 6199/2002 Page 7 of 11
12. A perusal of appointment letter makes it clear that petitioner joined the respondent on 1st August, 1991 and was put on probation for 160 working days. It has been specifically mentioned in Clause 3 of the appointment letter that after going through the performance confirmation will follow. It is well settled that confirmation is not automatic on completion of probation period. A probationer has to be confirmed by issuing a letter in writing. In this case, no such letter was ever issued, inasmuch as, in the letter of termination it is mentioned that "as you were in the probation period till today, your services are terminated and no confirmation to extend your services is granted to you". Thus, probation of the petitioner was not confirmed and he was terminated during the probation period. The termination order is not stigmatic as no misconduct has been alleged therein. No other document was placed on record by the petitioner to indicate that any memo was issued to him regarding theft of files and the said act was „foundation‟ of the termination order. If some misconduct is „motive‟ for issuances of letter of termination simplicitor the same would not be punitive in nature. In case misconduct is „foundation‟ of the termination only then termination can be termed as punitive. Judgment relied upon by the learned counsel for the petitioner is in the context of W.P. (C) 6199/2002 Page 8 of 11 different facts and is of no help to the petitioner.
13. Learned counsel for the petitioner has next contended that termination of petitioner amounts to retrenchment within the meaning of Section 2(oo) of the Act, thus, compliance of Section 25-F of the Act was mandatory. Non compliance of Section 25-F renders the retrenchment illegal, thereby entitling the workman reinstatement straightway. It is contended that Section 25-F of the Act has to be complied with even in respect of casual workers. Petitioner was appointed on a regular post, thus, compliance of Section 25-F was mandatory. Reliance has been placed on S.M. Nilajkar & Ors. vs. Telecom, District Manager, Karnataka JT 2003 (3) SC 436. I do not find any force in this contention of learned counsel either. Relevant it would be to refer to Section 25 of the Act which reads as under :-
"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 W.P. (C) 6199/2002 Page 9 of 11
(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."
14. A bare perusal of aforesaid provision makes it clear that Section 25-F of the Act will be attracted in the cases where workman is in continuous service for not less than one year with the employer. „Continuous service‟ is defined in Section 25-B of the Act which reads as under :-
"(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock- out or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
(b) ........................."
15. A perusal of aforesaid provision makes it clear that if a workman W.P. (C) 6199/2002 Page 10 of 11 renders 240 days continuous service in a calendar year he shall be deemed to be in continuous service for a period of one year. In this case, petitioner had not completed 240 days continuous service in a calendar year preceding his termination, thus, Section 25-F is not attracted.
16. For the foregoing reasons, writ petition is dismissed being devoid of merits.
A.K. PATHAK, J.
NOVEMBER 26, 2013 ga W.P. (C) 6199/2002 Page 11 of 11