Mahavir Singh vs Delhi Transport Corporation
1994 Latest Caselaw 338 Del

JUDGMENT

Usha Mehra, J.

1. Petitioner, Mahavir Singh by this writ petition has challenged the order of his termination as Conductor by his employer, Delhi Transport Corporation (in short DTC). He has claimed continuation in service with consequential benefits therein.

2. Mr. S. N. Bhandari, counsel for the DTC at the outset took objection to the maintainability of this writ petition, inter alia, on the ground that even though the D. T. C. is an instrumentality of the State as defined under Article 12 of the Constitution of India, still this Court cannot entertain this petition in its extra-ordinary jurisdiction under Article 226 of the Constitution of India. The petitioner being a workman and DTC being an industry, the proper and efficacious remedy available to him is before the Labour Court under the Industrial Disputes Act (in the short the Act). In case the petitioner invokes the provisions of the Act, in that eventually D. T. C. would be in a position to defend its action by leading evidence before the Tribunal. Whereas in the writ petition this Court cannot go into disputed question of facts, not would be able to give directions of facts, nor would be able to give directions of reinstatement. Such direction can only be given by the Industrial Tribunal. This Court at best can quash the impugned order, but cannot reinstate the petitioner, therefore, proper and efficacious remedy is by raising industrial dispute.

3. In order to appreciate relevant contentions raised on merits and the objection raised by the counsel for respondent, the facts relevant to determine these contentions are that the petitioner was selected as Conductor. He passed the written test. Vide order dated October 1984, he was appointed a Retainer Crew Conductor. Subsequently on 27th June, 1988 he was appointed on regular rates of pay of Conductor. His appointment was purely temporary and he was to be on probation for a period of one year extendable up to two years. It was further the term of his employment that during the probationary period his service could be terminated at any time without notice and without assigning any reason. The other conditions of his appointment and services were to be as embodied in the D. R. T. A. (Conditions of Appointment and Service) Regulation, 1952 (in short Regulation). It is the case of the petitioner that he was performing his duties to the best of his ability, but D. T. C. implicated him regarding non issuing of six tickets to six passengers. According to the case of set up by D. T. C. on 23rd February, 1986, while he was on duty as Conductor in Bus No. 3052 of Route No. 403, which operated between Okhla and Old Delhi Railway Station, a group of 16 passengers boarded the said bus from Zoo to Ashram. At Ashram, the said bus was checked by the checking staff who found six passengers without tickets. Six unpunched tickets were recovered from him. He admitted his guilt before the passengers when confronted before them. Hence, he was challenged for mis-appropriation of DTCs funds. Thereafter vide letter dated 17th March, 1986 effective form 18th March, 1986, his services were terminated under clause 9(a) (i) of the Regulation. Along with this letter a sum of Rs. 1,487.30P as wages in lieu of notice and retrenchment compensation on account of his termination were sent.

4. Mr. G. D. Gupta, appearing for the petitioner challenged the impugned order of termination of three counts, firstly that this is not an order of termination simpliciter. It is in substance a camouflage for the misconduct related to the incident of 23rd February, 1986. The basis of termination being the solitary incident of 23rd February, 1986 amounting to misconduct and, therefore, the provisions of Clause 9(a) (i) of the Regulation are not attracted. Termination being a colourable exercise of the power of the D. T. C. based on the unilateral finding of the incident of 23rd February, 1986, therefore, it amounts to dismissal. Allegation levelled against the petitioner amounts to misconduct, therefore, the provisions of clause 9(a) (i) would be attracted in the facts and circumstances of this case. Clause 9(a) of the Regulation is reproduced as under :-

"9. Termination of services :

(a) Except as otherwise specified in the appointment orders, the service of an employee of the Authority may be terminated without any notice or pay in lieu of notice :-

(i) During the period of probation and without assigning any reason thereof.

(ii) For misconduct.

(iii) On the completion of specific period of appointment;

(iv) In the case of employees engaged on contract for a specific period on the expiration of such period in accordance with the terms of appointment.

(b) Where the termination is made due to reduction of establishment or in circumstances other than those mentioned at (a) above, one month notice or pay in lieu thereof will be given to all categories of employees."

5. Whenever there are allegations of misconduct followed by dismissal, an enquiry must proceed, failing which such a action is bad in law. Form of order is not decisive. If the veil is lifted it will show exfacie that the petitioner has been punished on account of the incident of 23rd February, 1986. Even though this order of termination is couched in terms of an order of termination simpliciter, but if we go behind the order in question, it would be amply clear that it was imposed by way of punishment. According to Mr. Gupta it is the substance of the order and the attending circumstances as well as the basis of the order that has to be looked into. While appreciating the challenge to the impugned order, the facts leading to the passing of impugned order are the allegation made by the checking staff that six unpunched tickets were recovered from the petitioner. Petitioner had refuted these allegations as the same were not supported by the testimony of the driver as well as A. T. I. Nand Lal. Moreover, his signatures were obtained under pressure on a blank paper, which the respondent has used as his admission of the said incident. Basing on these facts, the employer immediately thereafter terminated his services vide impugned order. From the narration of these facts the only irresistible conclusion which can be arrived as is that the impugned order has infact been based on the alleged misconduct of 23rd February, 1986, though couched in innocuous terms. In this background it has become incumbent upon his Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. The Court in such cases, Mr. Gupta contended, cannot close its eye and let an innocent workman suffer at the hands of an employer without even affording him an opportunity of being heard. Whenever termination order is made with a malafide intention writ petition is the only proper remedy. In such circumstances the petitioner's right under the common law stood violated as he has been deprived of the reasonable opportunity being heard and to defend his case against the allegations levelled. Therefore, the order of termination amounts to dismissal made without affording opportunity to explain. In such circumstances the petitioner cannot be forced to go the Labour Court or to raise industrial dispute. Even otherwise alternative remedy means which is available and which is not dependent on the opinion of other authority like appropriate government to refer or not to refer the dispute. Labour Court is not alternative remedy so as to bar the maintainability of this writ. The dispute raised in this writ petition has arisen out of the right and liability under the general and common law and not under the Act, hence writ Court is the proper forum. Petitioner had two remedies open to him, one to go the Labour Court and ask for reference, and second by way of this writ petition. He has chosen the second course which is permissible under law as his right under common law has been infringed.

6. In order to support his arguments Mr. Gupta placed reliance on the following decisions, namely, Mahabir V. D. K. Mittal & Anr. 1980 LIC page 19, Sukhi Ram v. State of Haryana 1982 (1) SLR page 663, Dr. Surendra Kumar Shukla, petitioner v. Union of India & Ors. 1986 LIC page 1516, Malik Singh, Chairman, The Kurukshetra Central Co-operative Bank Ltd., Kurukshetra & Ors. v. State of Haryana 1988 (5) SLR page 572, Anoop Jaiswal v. Govt. of India & Anr. 1984 (1) SLR page 427 page 427, Anup Singh Jatubha v. V. K. Gupta, Distt. Police Officer, Jamnagar 1986 (2) SLR page 759, Pramod Kumar Nayak v. Union of India & Ors. 1988 (2) SLR 524, Shri Om Prakash Goel v. The Himachal Pradesh Tourism Development Corporation Ltd. Shimla & Anr. , Jarnail Singh & Ors. v. State of Punjab & Ors. , Smt. Rajender Kaur v. Punjab State and Anr. , The Manager, Govt, Branch Press & Anr. v. V. D. B. Belliappa 1976 LIC 146, John Fernandez and Anr. Executive Engineer P. H. Dvn. Alleppey and Anr. 1979 LIC 255, Hardayal & Anr. v. The Union of India, New Delhi & Ors. 1976 LIC pages 1426, The Managing Director, U. P. Warehousing Corporation & Ors, v. Vijay Narayan Vajpayee , L. Michael & Anr. V. M/s. Johnson Pumps Ltd. 1975 LIC 399, Rohtas Industries Ltd. & Anr. v. Rohits Industries Staff Union & Ors. and The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke & Ors. .

7. The proposition of law in nutshell as laid down in all these cases is that if there is termination of services without complying with the provisions of rules and is based on misconduct or casts stigma then such a termination would amount to dismissal for which opportunity of being heard should be afforded to the workman. That the Civil Court will have jurisdiction to entertain suit in respect of industrial dispute arising out of the rights and liability under the general or common law and not arising or created under the Act. Mr. Gupta contended that his case is squarely covered by the second principle laid down by the Supreme Court in Premier Automobiles (supra) because the relief claimed by the petitioner has arisen under the general and common law, hence the jurisdiction of the writ Court is not barred. The petitioner in such circumstances cannot be forced to seek redressal his grievance before Labour Court. Even otherwise this writ petitioner is pending since May, 1988 it is too late in the day to ask the petitioner now to raise Industrial Dispute.

8. Second limb of Mr. Gupta's arguments was that even if the be presumed that the impugned order is a termination simpliciter then it will amount to retrenchment. In what that view of the matter the principal of natural justice has also been violated by the DTC by keeping his juniors in service. The principle of "last come first go" ought to have been followed. Having not done so, the termination is illegal and violative of Articles 14 & 16 of the Constitution of India. And lastly the termination on the ground of unsuitability is unsustainable on the facts of this case. He was never communicated at any stage any adverse remarks nor even a warning was administered to him regarding regarding his performance or conduct. Not even a single complaint regarding his conduct or performance was brought to his notice. In the absence of any adverse remarks or complaint against his performance or conduct, the respondent could not terminate his services on account of being unsuitable for the job. Hid probationary period had yet not come to an end hence there was no occasion for the respondent to judge hid performance either for confirming or for extending the probationary period. During the probationary period his services could be dispensed with only when there had been consistent complaints against his conduct or performance. But having not brought to his notice nor having placed any material on record for the scrutiny of his Court, such termination is punitive. Except bald statement that "he was found unsuitable for the job" no foundation has been laid to arrive at this conclusion. For these reasons the impugned order is bad in law. For the redressal of his grievances it is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of this Court. Affording of reasonable opportunity is not a right or liability created under the Act. This right is under the common and the general law and, therefore, it is for the petitioner to chose his forum either by making reference to Labour Court or filling this writ petition.

9. Mr. Bhandari on the other hand contended that the petitioner is a workman and the respondent/D. T. C. and industry as defined under Section 2(s) and (j) respectively of the Act. The dispute raised in this writ petition is an industrial dispute as defined under Section 2(k) of the Act. Even an individual workman can now raise industrial dispute after Section 2-A was brought on the Statute Book. In the facts and circumstances of this case petitioner's remedy is by way of invoking the jurisdiction of the Labour Court. Moreover, his termination cannot be termed as retrenchment. Prior to the amendment of the Act by Act 49 of 1984, every termination was treated as retrenchment. But on account of the exception provided under Section 2(oo) (bb) of the Act, the termination of service as a result of the non renewal of the contract being terminated under a stipulation in that behalf contained therein would not constitute retrenchment.

10. Relying on the above provisions, Mr. Bhandari contended that through the management was not required to give retrenchment compensation at the time of termination of his service yet as an abundant precaution the same was paid to the petitioner. Since, after the insertion of Section 2(oo) (bb) of the Act termination has not been treated as retrenchment hence the question of "last come first go" will not apply to this case. His services were terminated because he was found unsuitable for the job. This termination will not amount to dismissal nor cast any stigma on the petitioner. As against the termination, the right, obligation and remedy for the petitioner are available under the Act. Fifth Schedule of the Act is a clear pointer to the wide sweep of jurisdiction of the Labour Court. Section 2(ra) of the Act defines "unfair labour practice" to mean any of the practices specified in the Fifth Schedule. The Fifth Schedule, inter alia, deals with conducts which would amount to unfair labour practice on the part of the employer and the employees as well as on the part of the trade unions of workmen. Item 5 of the Fifths Schedule enumerates conducts which may amount to unfair labour practice on the part of the employer. The aforesaid conduct on the part of the employer while discharging or dismissing the workman may give rise to allegation of "unfair labour practice". Fifth Schedule read with other provision like section 25T and 25-U of the Act clearly indicate that the Statute prohibits unfair labour practices. Therefore, as and when conduct of the employer is one which falls under any of the aforesaid descriptions, it is open to the workman to challenge the said order of discharge or dismissal from service on the ground that the employer was guilty of unfair labour practice. Even though challenge to such conduct of the employer is available to workman under common or general law but that should not make any difference in view of the fact that the scope of enquiry by competent Labour Court into aforesaid conduct of employer is very wide and is in no way circumscribed and, therefore, the relief which could be granted under the Act is in no way incomplete or inadequate.

11. Reading of item 5(b) of the Fifth Schedule makes it clear that if action of the respondent was a colourable exercise of its power as alleged by the petitioner then the remedy for its redressal lie under the Act before the Labour Court. The petitioner can invoke the right under the Act and not under the common law. The strengthen his arguments he placed reliance on the Full Bench decision of Gujarat High Court in the case of Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad 1994 1 LLJ page 453 and of the Madras High Court in the case of T. Rajaiah & Ors. v. Southern Roadways Ltd. (represented by it Society) Madurai & Anr. 1991 1 CLR 884. In these cases courts after discussing various provision of the Act and rules came to the conclusion that the right of the workman which arise out of the Act and the Rules concerning his service conditions, for such workman the remedy against such order would be under the Act and not by way of invoking the jurisdiction of the Civil Court. Relying on the observations made in these cases, Mr. Bhandari contended that in the present case also the right which the petitioner wants to enforce is a creature of the Act, hence his remedy is to raise industrial dispute under Section 2-A read with Section 10 and Section 12(5) of the Act. Under the Act adequate remedy is provided including the relief of reinstatement and back wages which the aggrieved party cannot get from the Civil Courts.

12. Placing heavy reliance on Item 3 of Second Schedule, Mr. Bhandari contended that reading of this Item makes it clear that prima facie the dispute about the wrongful or illegal dismissal of the service would give rise and industrial dispute. Since the petitioner is alleging impropriety and illegality of the order passed by the respondent under the Regulation, this would give rise to an industrial dispute and such an industrial dispute can be tried only by the special court established and constituted under Section 7 of the Act. By virtue of Section 2-A, it shall be deemed to be an industrial dispute, rather under Sub-section 2-A of Section 10 of the Act, a duty has been cast on the Labour Court to dispose of such individual disputes within a period of three months. Hence, the petitioner cannot make any grievance on this account that this case will get delayed before the Labour Court.

13. He further placed reliance on the decision of Andhra Pradesh High Court in the case of M. H. Prasad & Ors. v. The Superintendent of Mines, Agnigundala Lead Project (Hindustan Zinc Ltd.) Bandalamottu & Anr. 1989 11 CLR page 384, where it has been held that when the service of an employee are terminated or dismissed for misconduct, the remedy for such an employee would be by way of raising industrial dispute and not by enforcing his right before Civil Court. He also placed reliance on the two decisions of Madhya Pradesh High Court, namely, Mukhtyar Singh v. Food Corporation of India & Ors. 1993 I CLR page 143 and Suresh Chandra Mathe v. Jiwaji University, Gwalior & Ors. 1993 II CLR 1032 wherein it has been held that even for an order of termination simpliciter but which in fact based on misconduct and for which no enquiry was held, the Writ Court is not the proper forum. The remedy for such a petitioner would be to invoke the jurisdiction of the Labour Court. He, therefore, contended that if the jurisdiction of the Labour Court are invoked, the employer will get a right to adduce evidence in justification of its action, even for the first time, when the industrial dispute arising there from is referred to the Labour Court. It would be wrong to quash such and order without letting the matter being adjudicated before the Labour Court. The award of the Labour Court will take care of all aspects and help to bring about an early and final settlement of all kinds of dispute between the parties. The writ court will not be able of adjudicate the disputes nor can do what the Labour Court is required and competent to do. Interference by this Court would cause prejudice to the respondent because it would be deprived of the valuable opportunity of proving the charge before the Labour Court. Reliance in this regard was placed on Supreme Court decision in the case Jitender Nath Biswas v. M/s. Empire of India Tea Co. and of Karnataka High Court in the case of Hariba v. Karnataka State Road Transport Corporation 1983 II LLJ Page 76, where in has been held that a consideration namely, that the opposite party should not be denied of a valuable defense is a goods consideration for not entertaining the writ petition. He also relied on the decision of this Court in the case of Sh. Suresh Kumar v. D. T. C. & Ors. C. W. P. No. 827/89 decided on 1st November, 1991. He therefore, contended that this Court decline to interfere in the impugned order in its extra ordinary jurisdiction. Reliance was also placed on the case of State of Uttar Pradesh & Anr. Kaushal Kishore Shukla , and on the Full Bench decision of the Allahabad High Court in the Case of Chandrama Singh v. Managing Director, Uttar Pradesh Co-operative Union 1991 II LLN 1084 and of Supreme Court in the case of The Workmen of M/s. Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. v. The Management and Ors. 1973 I LLJ page 278. In that case it was held that even after Section 11A of the Act, the employer has got right to justify his action and adduce evidence before the Labour Court even in case where no domestic enquiry held.

14. He also place reliance on the decision of Karnataka High Court in the Case of VISL Contract Workers Association v. Visvesaraya Iron Steel Ltd. Vol. 79 Factories Journal Reports page 172, wherein it has been held that jurisdiction of the Labour Court under the provisions of Act is very wide so as to include in its power to create fresh legal relationship also. In the case of dismissal or removal of a workman from service, the remedy of the aggrieved workman is to invoke Section 2A read with Section 10 of the Act instead of writ jurisdiction. To support his arguments, he also placed reliance on the decision of kerala High Court in the case of Kerala Rubber & Reclaims Ltd. & Ors. v. P. A. Sunny reported in Vol. 73 FJR 507. Relying on the Full Bench decision of the Patna High Court in the case of Dinesh Prasad Mandal v. State of Bihar & Ors. FLR 1985 (50) page 288. Mr. Bhandari, therefore, contended that if the plea that the writ Court itself must intervene in the right first instance of for any infraction of the rights under the Act, it is essence would render nugatory the extensive machinery provided under the Act. The petitioner was a probationer, he was not found suitable for the job, therefore his services were terminated without leveling any stigma. Such a termination will not amount to dismissal not punitive in nature. In similar circumstances Supreme court in the case of Unit Trust of India & Ors. v. Bijay Kumar & Anr. JT 1992 (6) SC 82 held that probationer has not right to the pot held by him. The order of termination is not an order of punishment and, therefore, there is no question of giving him hearing before terminating his services. Moreover, the reason for his termination is unsuitability for the job. The Supreme court in catena of cases held that when an employee is on probation and found unsuitable for the job, the employer has two remedies open to him either to dismiss him or to terminate his service without casting any stigma. Employer is at liberty to exercise either of these two options and if he chooses later one i.e. discharge simpliciter then it will not be called punitive. Respondent has not levelled any stigma while terminating his services, since the petitioner did not present correct facts regarding the incident of 23rd February, 1986 hence in the counter affidavit true happening of the incident of 23rd February, 1986 have been reproduced. By placing correct facts on record will not constitute this termination to be dismissal. Similar view was taken by the Supreme court in the case of State of Orissa & Anr. v. Ram Narayan Das . An order of discharge is not an order of punishment as held by Supreme court in the case of Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar & Anr. 1993 I CLR 323 and in the cases of State of Madhya Pradesh & Anr. v. Bhailal Bhai , Basant Kumar Sarkar & Ors. v. The Eagle Rolling Mills & Ors. and Thansingh Nathmal & Ors. v. The Supdt. of Taxes, Dhubri & Ors. . Bihar Rajya Vidyut Parishad Field Kamgar Union v. State of Bihar & Ors. and Kamal Kishore Lakshman v. The Management of M/s. Pan American World Airway Inc. & Ors. I LLJ 1987 page 107. Delhi High Court in the case of Indian Institute of Technology, New Delhi v. Jawahar Lal Mentani 1984 I LLN page 722 also took the same view. Hence according to Mr. Bhandari neither on law nor on facts this Court in its extra ordinary jurisdiction should interfere with the impugned order.

15. The bird eye view of the provision of the Act and the Schedule referred to provide specific remedies for the enforcement of workman's right and liabilities. It envisages different forums providing in detail the procedure for approaching them and enforcement of the award made by them. Rights under the Act are the creatures of the Statute. These rights spring form that Statue. It is infact self-contained Code up to itself creating and conferring the industrial rights there under an fashioning forums and remedies for their enforcements. It cannot be disputed that when a right stems from a Statue even in derogation of the general law the remedy of its enforcement is expressly provided must also be sought for within the same Statue. Admittedly this Court cannot travel in issues of fact and would otherwise interfere only the question of jurisdiction and errors patent in law, while authority under the Act is entitled to resolve disputes on facts hedged in by no constitutional limitations and indeed can interfere by substituting its own discretion for that of the employer whose action may be impugned.

16. In the background of this well established principle of law, we have to examine the case of the petitioner. In this petition one of the relief sought was infringement of Section 25F of the Act. However, at the very threshold of the arguments. Mr. Gupta, counsel for the petitioner gave up this relief. Therefore, what we have to see whether after giving up of the relief under Section 5-F of the Act petitioner's challenge to the termination simpliciter is a right stem out of the Act. If it is so, then the remedy is specifically provided under the Act. The gist of the averments and the contentions raised as set out above leaves little manner of doubt that the respondent will succeed or fail in ousting the jurisdiction of this court if he is able to establish that the case of the petitioner does not fall under the second principle laid down by the Supreme court in the case of Premier Automobiles (supra). In that case Supreme Court had summed up the law in four principles spelled out in para 23 of the judgment and are :

"1. If the dispute is not an industrial dispute nor does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil Court.

2. If the dispute is an industrial dispute arising out of a right or liability under the general common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

3. If the Industrial Dispute relates to the enforcement of right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

4. If the right which is sought to be enforced is a right created under the Act, such as Chapter-VA the remedy for is enforcement is either section 33C or the raising of an industrial dispute, as the case may be.

17. From the facts enumerated above and which are recapitulated even at the risk of repetition to arrive at the conclusion as to whether the right or obligation giving rise to the industrial dispute springs from a source other than the Act i.e. under the general and common law then under the second principle petitioner is given alternative remedies. It is his discretion to either resort to civil Court or to seek remedy under the Act. The petitioner was a probationer. During the period of probation, the management found him unsuitable for the job and terminated his services without assigning any reason. This termination per se does not cast any stigma. This termination is permissible under the regulation application to the petitioner. Management if finds that performance of a workman is not satisfactory, it can bring to an end such an agreement of service provided, of course, the rules must permit and is not malafide. In the present case rules permit the termination of a probationer under clause 9(i) (a) of the Regulation. Even if we travel behind the impugned order by lifting the veil and presume that it had some nexus with the incident of 23rd February, 1986, still the action of the management cannot be called malafide. The management has not assigned any reason to terminate his services nor levelled any stigma. The factum of the incident of 23rd February, 1986 is admitted. Petitioner signed the statement admitting his guilt before the passengers. In fact the management found him unsuitable for the job. To judge the performance of a probationer is the responsibility of the management. And when the management comes to the conclusion, even based on a incident, that workman is not suitable and terminate his service without levelling any stigma, such termination cannot be called penal nor can be interpreted in the backdrop of these facts a dismissal. From the law and the facts discussed above which will follow it cannot be said that this case is covered under Item 3 of the second Schedule. Therefore, when a case is not covered under the Second schedule then even though it is an industrial dispute falling under section 2A, it will not be referred to Labour Court under Section 10 read with Section 12(5) of the Act. Section 2A enables an individual workman to raise an industrial dispute without espousal. Section 2A reads as under :

"Section 2A - Dismissal, etc., of an individual workman to be deemed to be an industrial dispute - Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute.

Section 10 is reproduced as under :

Section 10[1] - Where the appropriate Government is of opinion the any industrial dispute exists or is apprehended, it may at any time, by order in writing -

(a) refer the dispute to a Board for promoting a settlement thereof; or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for enquiry; or

(c) refer the dispute or any matte appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second schedule, to a Labour Court for adjudication; or

(d) refer the dispute or any matter appearing to be connected with or relevant to the dispute, whether it relates to any matte specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication."

x x x x x x

Reading of these provision show that the dispute must be related to the matters specified in the second schedule. Second schedule reads as under :

The Second schedule

Matters within the jurisdiction of the Labour Court

Item 1. The propriety or legality of an order passed by an employer under the standing orders;

Item 2. The application and interpretation of standing orders;

Item 3. Discharge or dismissal of workman, including reinstatement of, or grant of relief to, workmen wrongfully dismissed".

18. In order to a tract the Item 3 of the Second schedule the condition precedent is the order do dismissal. These are statutory safeguards provided under the Act, the violation of which enables a workman to seek redressal of his grievances by knocking the door of the special courts as provided under Section 7 of the Act. In the absence of dismissal there is no infringement of the right under the Act. IT is only breach of the safeguard provided under the Second schedule that the special Court will get the jurisdiction. Sub Section 1 of Section 7 provides that for the adjudication of an industrial dispute relating to any matter specified in the Second Schedule the Labour court will have the jurisdiction. Sub Section 1 of Section 7 of the Act says :-

"Section 7(1) - The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts of the adjudication of industrial dispute relating to any matter, specified in the second schedule and for performing such other functions as may be assigned to them under this Act".

19. similarly by calling this termination as colourable exercise of management's power as stipulated under Item 5 of the Fifth schedule it would not make this termination as dismissal nor would oust the jurisdiction of this Court. Item 5 of the Fifth schedule is reproduced as under : -

"Item 5 :

To discharge or dismiss workman - (a) by way of victimisation;

(b) not in good faith, but in the colourable exercise of the employer's right;

(c) by falsely implicating a workman in a criminal case on false evidence or no concocted evidence;

(d) for patently false reasons :

(e) on untrue or trumped up allegations of absence without leave;

(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;

(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workmen, thereby leading to a disproportionate punishment."

20. The very heading of this Item shows that these provisions will come into play only when a workman challenges his dismissal or discharge on account of such dismissal having not been done in good faith or a colourable exercise of the employer's right. It leaves no manner of doubt that the dismissal is a pre-condition to invoke the provisions under this item. The reading of this item does not indicate that the case of termination simpliciter per rules would also be covered. The petitioner has not come to this Court to get his dismissal quashed. He wants to get his termination declared punitive, motivated, based on misconduct and ordered without holding enquiry in violation of principles of natural justice. Under the general and common law for an action of dismissal he ought to have been afforded and opportunity of being heard. Labour Court's jurisdiction would be attracted only when there had been dismissal and not when petitioner wants this Court to interpret his termination as dismissal. That is not what is envisaged under the second schedule. The termination in question is couched in such a way that per se it cannot be called dismissal. Having concluded so, the petitioner in these circumstances cannot be forced to go to Labour Court.

21. For the purpose of reference to Labour Court under Section 2A the management must assert that its action is punitive in nature amounting to dismissal. But that is not the case set up by the respondent-DTC, hence the management cannot be permitted to blow hot and cold in the same breach. Call its action termination simplicitor and at the same time asking this Writ Court to send him to Labour Court treating it to be a dismissal. Existence of an alternative remedy by way of industrial dispute which creates bar for the Civil Court has reference only to order of dismissal or discharge and not to an order of termination simpliciter. The objection that the respondent would be deprived of the opportunity to defend his case on merits if this court exercise its jurisdiction is also without force. The management could have led evidence before the Labour court provided if had dismissed the petitioner after following proper procedure. For the sake of repetition it may be may be mentioned that since it is not dismissal, therefore, therefore, his right has not arisen under the Act, hence question of invoking the jurisdiction of the Labour Court does not arise. Nor the institution of this writ petition would amount to taking away any right of the management.

22. The rights invoked in this petition are not the mere creature of the Act itself but exist de hors the same. His dispute and rights claimed therein are based on general and common law, because according to him his termination was colourable exercise of management's right, therefore, departmental enquiry must proceed and he ought to have been given opportunity to defend his action. The finding of the management was unilateral hence biased. This assertion he has based on common and general law and not under the Act. If that be so, the principle second of Premier Automobiles Ltd. case (supra) would apply. It is an industrial dispute but the rights and liabilities claimed have arisen out of common law, hence the petitioner had two choices, but he had chosen the one by failing this petition. The petition at no stage resorted to any of the remedies under the Act, therefore, to my mind, on principle as well as on binding precedent, petitioner would be entitled to claim relief if otherwise permissible by way of writ petition.

23. Reliance placed by Mr. Bhandari on the full Bench judgment of Gujarat High Court in Chandrakanta Tukaram Nikam case (supra) and of the Madras High Court in T. Rajaiah & Ors. case (Supra), are of no held to him. The Courts there were dealing with the rights arising out of the Act. In the case of Chandrakant Tukaram Nikam challenge was to the order alleged to have been passed by an incompetent officer against the rules. And in the case of T. Rajaiah the challenge was to his transfer which was alleged to be malafide and against the principles laid down in section 25T of the Act. Similarly in M. H. Prasad & Ors. case (supra) the order of dismissal was challenged on the ground of misconduct and, therefore, high Court opined that the remedy was by way of raising industrial dispute. Supreme Court in Jitender Nath Biswas case (Supra) was dealing with a workman who wanted specific performance of his contract of service. The Court after analysing various decisions and provisions of the Act held that Civil Court was not the proper forum. In Dinesh Prasad's case (Supra) the grievance of the petitioner was based on the provision under the Act. He had worked continuously for 335 days and, therefore, claimed benefit under Section 25B of the Act. In all these cases the right claimed accrued under the Act, therefore, the remedy was by way of invoking the jurisdiction under the Act.

24. In Bihar Rajya Vidyut Parishad field Kamgar Union case (Supra) the challenge was on the ground of violation of settlement arrived at between the management and the workman. It was directly covered under the Act. Therefore, the Labour Court was considered to be the proper forum. In Kamal Kishore Lakshman case (Supra) Supreme Court was dealing with a petitioner who had already invoked the jurisdiction of the Labour Court. In Basant Kumar Sarkar case (Supra) the Supreme Court ousted the writ jurisdiction because the challenge of the petitioner was based to the violation of provisions of section 1(3) of the Employees' State Insurance Act. In this background the Court opined that the proper remedy was either to make reference under Section 10 of the Act or under sections 74-75 of the Employee's State Insurance Act. In Thansingh case (Supra) the Court was dealing with the Assam Sales Tax Act, where there were disputed question of facts regarding the demand raised. Therefore the Court opined that the petitioner could not by-pass the machinery provided under the Statute by invoking the extra-ordinary writ jurisdiction. In State of M. P. case (Supra) the writ was dismissed because it was filed after a considerable long time. In Hariba's case (Supra) the Court was dealing with the grievance of the petitioner against the penalty of dismissal form service which was ultimately confirmed in appeal by the appellate authority. After examining various provisions of the Act, Court concluded that if a workman who is employed in an industry is dismissed/removed form service, and the said workman desires to challenge such an illegal order on the ground of violation of procedure as regulated by the prescribed rules or the rules of natural justice, the workman should resort to the remedy available under Section 10 of the Act and not under Article 226 of the Constitution of India. The Full Bench of the Allahabad High Court in Chandrama Singhs' case (Supra) was again dealing with the allegation of infringement of the provisions of section 25 of the Act. Similar was the case of Mukhiyar Singh and Suresh Chandra Mathe (Supra) respectively.

25. Therefore, none of these authorities relied by Mr. Bhandari, are of any help to him because in all these cases the rights and liabilities had accrued under the Act. Therefore, the remedy was to be found under the Act.

26. Krishna Iyer, J. in this case of Rohtas Industries Limited (Supra) spelt out the powers of the High Courts in the following words :-

"The expensive and extra ordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicated and so can affect any; person even a private individual - and be available for any (other) purpose - even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting article 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to the residence of such person.' The Supreme Court has spelt out wise and clear restraints on the use of this extra ordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or others exception circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large being the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights.

27. Applying this principle to the facts of this case if can be said that writ Court would have the jurisdiction particular when the grievances of the petitioner are based on the infringement of the principle of natural justice having been deprived of reasonable opportunity under the common and general law.

28. On facts it cannot be said that the impugned order was by way of punishment. An employer cannot be forced to keep a probationer continuously in the job particularly when his work was not found suitable. To judge the conduct and performance of a probationer is the exclusive domain of the management. Court cannot interfere with same unless such action is malafide. Since the management found during his probationary period that he was not suitable of the job of a Conductor there is nothing wrong to terminate his services. After all management cannot be forced to keep such a workman. Sometime one act of omission or commission is sufficient to terminate the contract of service. The doctrine of natural justice cannot be imprisoned within the strait jacket of a rigid formula, its application depends upon several factors. It cannot remain the same for all times to come nor will apply to all conditions. The rule of natural justice is not inflexible and that in the circumstances and the facts of each case, the requirement of natural justice have to be satisfied. This principle may differ in different circumstances. Therefore it would be wrong to say that since this termination had nexus with the incident of 23rd February, 1086, therefore, an enquiry ought to have been held. A conductors' job is a public dealing job. And if on checking by the checking staff it was found that he was in possession of six unpunched tickets which fact he admitted before the passengers even though subsequently he tried to explain it away, being a probationer the management has a right to terminate his services without levelling any stigma and without spoiling his career. This action cannot be called malafide nor based on any bias. In such circumstances if enquiry was not held, it cannot be said that principle of natural justice was infringed particularly when at the sport before the passengers he admitted his guilt.

29. Reference can be hand to the case of Unit Trust of India and Governing Council of Kidwai Memorial Institute of Oncology (Supra) where the Supreme Court opined that when an appointment is made on probation it pre-supposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation. If during the period of probation it is found that there was some action or inaction on the part of such an employee and his services are terminated then it cannot be said that it amounts to removal from service as punishment. It is not necessary, as Mr. gupta wants this Court to hold that the conduct of a probationer can only be judged at the time of his confirmation or at the time of extending his probation. In fact the appointing authority at the stage of confirmation or even during the period of probation is entitled to look into any complaint made in respect of such an employee while discharging his duties for the purpose of making an assessment of performance of such an employee. In the words of N. P. Singh, J. in the case of Governing Council :

"8. Even if such employee while questioning the validity of an order of termination simpliciter brings on the record that some preliminary enquiry or examination of some allegation had been made, that will not vitiate the order of termination. Reference in this connection may be made to the case of Oil and Natural Gas Commission v. Dr. Mohd. S. Iskender Ali , where it was pointed out that a temporary employee is appointed on probation for a particular period "only in order to test whether his conduct is good and satisfactory so that he may be retained". It was also said that even if misconduct, negligence, inefficiency may be the motive or the influencing factor which induced the employer to terminate the service of the employees which such employer admittedly had under the terms of appointment, such termination cannot be held to be penalty or punishment."

30. So far as the factum of incident of 23rd February, 1986 is concerned, that is also admitted. It was found that he had not is sued six tickets which remained unpunched with him. According to the employer he admitted the factum of having not issued six tickets by signing the statement of his guilt before the passengers During the probationary period of the checking staff found this inaction in his part. They recorded the statement of the passengers. No malafide can, therefore, be attributed. Almost in similar circumstances the division Bench of this court dismissed the writ petition in case of Sh. Suresh Kumar v. D. T. C. & Ors. C. W. No. 827/89, decided on 1st November, 1991.

31. even if the veil is lifted, as Mr. Gupta wants this scout to do and it is found that this termination had some nexus with the incident of 23rd February, 1986, still it cannot be said that the management should have held enquiry particularly when he admitted his guilt at the spot. To my mind, the management did not have any extraneous or irrelevant consideration when the decision making was done. In fact there is nothing in the order to conclude that it is penal or that it stigmatises the petitioner nor the impugned order suffers from the vice of bias, prejudice or malafide. As a matter of fact the order does not level any stigma on him. Management restored to the course of terminating his service simpliciter which cannot be called mala fide. It is not the case of the petitioner that there is no provision under the rules to terminate has services being a probationer. Having held that this termination was not punitive, the petitioner being a probationer has not right to he said post nor was entitled to hearing before termination of his service.

32. For the reasons stated above I find no merits in the writ petition. The same is accordingly dismissed.