Delhi Transport Corporation vs The Presiding Officer, Labour ...
2003 Latest Caselaw 428 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present writ petition is filed by the petitioner challenging the legality of the award passed by the Presiding Officer, Labour Court No. 1, Delhi in ID case No. 7/1992. The workman/respondent No. 2 was appointed on 19.5.1982 as a Retainer Crew Driver by the Delhi Transport Corporation. He was appointed on monthly rates of pay on temporary basis and was on probation for a period of one year vide order dated 2.2.1983. The respondent No. 2 continued to be on probation when his service was terminated by the petitioner Corporation under Clause 9(a)(i) of the DRTA (Conditions of Appointment and Services) Regulation 1952.

2. On 19.7.1991, the respondent No. 2 served a demand notice for reinstatement and subsequently raised an industrial dispute. The appropriate Government referred the said dispute for adjudication on the following terms of reference:

"Whether the termination of services of Shri Kartar Singh is illegal and/or unjustified and, if so, to what relief is he entitled and what directions are necessary in this respect."

3. Before the Labour Court, it was urged by the workman that his termination from service was illegal as there was no compliance of Section 25F of the Industrial Disputes Act. It was alleged by the workman that no notice was issued to the workman before termination of his service. On the pleadings of the parties, the Labour Court framed two issues in the following manner:

1. Whether the services of the workman terminated illegally under Clause 9(a)(i) of the D.R.T.A. (Conditions of Appointment and Service) Regulation 1952, if so, its effect?

2. As in terms of reference.

4. Thereafter the Labour Court received the evidence adduced by the parties. The Labour Court thereafter proceeded to decide the reference and passed the award on 1.2.1999 in favor of the workman holding that the termination of service of the workman under Regulation, 1952 was illegal and not sustainable and that the workman would be entitled to the back wages @ 50% of the wages with effect from August, 1991. The Labour Court discussed the evidence adduced by the parties under issue No. 1 at length. It was found by the Labour Court that the workman had worked with the management for 513 days and that his services were terminated due to an accident allegedly caused because of negligence of the workman. After discussing the evidence on record and the legal position, the Labour Court held that the termination of the service of the workman under Regulation 1952 is unsustainable and illegal as admittedly there was no compliance of Section 25 of the Industrial Disputes Act. The Labour Court recorded that it is an admitted case that the workman had worked for a year when his services were terminated during his probation period and that in that view of the matter the ratio of the decision of the Supreme Court in Mohan Lal v. Bharat Electronics Ltd. is clearly applicable. It was also held that the case of the workman was not covered under any of the exceptions as were in existence at the relevant time of termination of services and that there was apparent violation of Section 25F of the Industrial Disputes Act. The aforesaid findings were challenged in this writ petition by the Counsel for the petitioner contending, inter alia, that the management has the power and jurisdiction to terminate the services of an employee during the period of probation in which case the provisions of Section 25F would not be applicable. In support of his submission, the Counsel for the petitioner relied upon the amended provision of the definition under Section 2(oo)(bb).

5. I have considered the aforesaid submission of the learned Counsel appearing for the petitioner. Section 2(oo) read with Clause (bb) of the Industrial Disputes Act is in the following manner:

(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........."  
 

6. The aforesaid Clause (bb) was inserted in the Statute in Section 2(oo) with effect from 18.8.1984. If the aforesaid provision was on the statute book at the relevant time, the employee's service would be and could be liable to be terminated otherwise than retrenchment, for admittedly he was appointed only on probation, subject to his appointment being terminated on his failure to satisfactorily complete the probation. The aforesaid insertion of Sub-clause was made in the Statute by an amendment dated 18.8.1984. It cannot be disputed that the aforesaid amendment did not have any retrospective effect. The aforesaid amendment was inserted to overcome the principle laid down by the Supreme Court in State Bank of India v. Sundara Mony, [1976] 49 FJR 78, and other cases to the effect that, even when a person appointed only for a specific period or where the order of appointment specifically stated that at the end of a specific period his appointment was liable to be terminated, he was entitled to be retained in service until duly retrenched in terms of Section 25F. With the aforesaid amendment the aforesaid principle laid down by the Supreme Court was negatived. But the same was operative only prospectively by the statutory amendment, which came into force on 18.8.1984. That the aforesaid amendment is not retrospective is also held so even by the Rajasthan High Court in the case of Principal, Mayo College, Ajmer v. Labour Court reported in 1988 Vol.2 LLJ 351 (DB). In the said decision the Division Bench of the Rajasthan High Court held that Clause (bb) as added to Section 2(oo) by the Amending Act No. 49 of 1984 would have no retrospective effect, as it is part of the definition Clause. The Kerala High Court also in the case of J. Samson Jayasingh v. Malayalam Plantations Limited reported in 1988 Vol. 73 FJR 337 held that the aforesaid amendment would not have any retrospective effect. In the decision in the case of Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiah and Anr. , it was held by the Supreme Court in paragraph 13 in the following manner:

"Once the conclusion is reached that retrenchment as defined in Section 2(oo) of the Disputes Act covers every case of termination of service except those which have been embodied in the definition, discharge from employment or termination of service of a probationer would also amount to retrenchment. Admittedly the requirements of Section 25-F of the Disputes Act had not been complied with in these cases. Counsel for the appellant did not very appropriately dispute before us that the necessary consequence of non-compliance of Section 25-F of the Disputes Act in a case where it applied made the order of termination void. The High Court, in our opinion, has, therefore, rightly come to the conclusion that in these cases the order of retrenchment was bad and consequently it upheld the Award of the Labour Court which set aside those orders and gave appropriate relief."

7. The aforesaid conclusions embodied in the aforesaid paragraph are squarely applicable to the facts of the present case. The service of the workman was terminated on 3.1.1984 when the amendment and insertion of Clause (bb) into Section 2(oo) had not become effective. Therefore, termination of service of the probationer was not embodied in the definition at the time when the aforesaid action was taken against the workman and, therefore, in the facts and circumstances of the present case, the order of termination of service of the petitioner, who was continuing as a probationer, was not a case which is embodied in the definition and, therefore, the same amounted to retrenchment. Admittedly the requirements of Section 25F of the Industrial Disputes Act was not complied within the present case. In that view of the matter, I find no merit in this petition, which is dismissed but without any costs.