Hawa Singh vs P.O. Labour Court
2006 Latest Caselaw 634 Del

JUDGMENT

Gita Mittal, J.

1. The petitioner assails an order dated 11/13th September, 1990 passed by the respondents terminating his service on the ground that termination of his service was stigmatic and could not have been effected without conduct of inquiry.

2. The undisputed factual matrix is that the petitioner was appointed as a driver with the Delhi Fire Service by an order dated 20th April, 1989 on two years probation. The petitioner contends that while so posted at the Kirti Nagar fire service station on 4th October, 1989 a call was received with regard to the occurrence of a fire in the factory. While the petitioner was driving a fire truck, the petitioner was compelled to swerve as an auto rickshaw had come in the wrong direction from the wrong side and to avoid this vehicle, the petitioner was compelled to move the fire truck. As a result, the fire vehicle had overturned. The vehicle was damaged and there was a loss to the tune of Rs. 1,65,000/- to the management.

3. The petitioner alleges that the respondents were persuaded by this accident to pass the order of termination of his service on 11/13th September, 1990 and consequently this termination which was effected without an inquiry was stigmatic and illegal. In this behalf, reliance is placed on judicial pronouncement Om Prakash Goel v. H.P. Tourism Development Corporation Ltd. and 1992 (5) SLR 661 entitled Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar and Anr. The petitioner also places reliance on entitled Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. and Ors. to contend that even if the order of termination did not mention any reasons which could be considered stigmatic, but from an examination of the background and at tendant circumstances, a conclusion could be arrived at that the alleged misconduct was the real basis and design to terminate the services of a probationer. In such circumstances, the order of termination of the services of the probationer would not be legally sustainable.

4. On the other hand, Mr. Alakh Kumar, learned Counsel for the respondent has vehemently opposed the writ petition and has contended that the appointment of the petitioner itself stipulated that it was with effect from 1st April, 1989 for a period of two years and it was inherent and implicit in such appointment that the petitioner's performance be found suitable. In the instant case, according to learned Counsel for the respondent, the petitioner's services were terminated by the order dated 11/13th September, 1990 and that the order was innocuous without any colour of stigma attached thereto and that the same was not based on any misconduct on the part of the petitioner. It is further contended that the order has to stand on its own legs and anything said in the counter affidavit would not impart stigma or reasons for the order of termination of service. It is further submitted that the averments in the affidavit have been made only to point out the nature of service rendered by the petitioner.

Reliance has been placed on several pronouncements of the Apex Court and of this Court in support of the submission that the order of termination in the instant case was that of termination simplicitor and was not stigmatic in any manner and consequently could not be assailed by the petitioner. The respondent has submitted that there was no legal requirement to conduct a domestic inquiry before terminating the service of a workman who was on probation as the authorities were not satisfied with the work and conduct of the petitioner was not up to the mark.

5. Having heard learned Counsel for the parties at great length and perused the available record, I find that the petitioner was admittedly on probation. The termination of services of the petitioner was effected while he was still on probation by an order which is dated 11/13th September, 1990 which reads as hereunder:

   No. F.2/EStt/DFS/90-429/D                   Dated : 11.9.1990
 

 13.9.1990
 

 OFFICE ORDER 
 

 The probation period of Driver 15/48 Hawa Singh posted at Kirti Nagar Fire Station is hereby terminated with effect from the afternoon of 11th September, 1990.
 

 He is directed to hand over the complete charge of his post to the Officer-in-Charge, Kirti Nagar Fire Station.
 

 This issue in continuation of office message dated 11.9.1990 conveyed through Headquarters Control.
 

 Sd/- 

 Dy. Chief Fire Officer-I 

 Delhi Fire Service 
 

6. This order even when examined closely would reflect that the same does not appear to cast any kind of aspersion on the petitioner or any stigma on his reputation. The order at the face of it appears to be totally innocuous and merely informs the petitioner that his probation period stands terminated with effect from 11th September, 1990.
 

7. So far as the instance on which the petitioner is basing his entire writ petition is an incident which has occurred on the 4th October, 1989. The petitioner has contended that because of the accident which resulted for no fault of the petitioner, termination of his services has been effected.
 

8. The petitioner complained against his termination to the labour authorities. The concerned authority considered the matter and by an order dated 4th September, 1990 referred the following dispute for adjudication on the following terms:
  Whether the termination of services of Shri Hawa Singh is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect? 
 

 The labour court examined the matter at length and after consideration of the evidence which was laid by the parties before it and several judicial pronouncements, answered the reference against the workman by the award dated 13th January, 2000. 
 

9. The petitioner has accepted the fact that his services were not terminated immediately upon the happening of the incident on 4th October, 1989 and he was permitted to continue the work on probation till his services were terminated by the order passed on 11/13th September, 1990, that is for almost a year after the occurrence.
 

10. In the counter affidavit which has been filed before this Court, undoubtedly the respondents have indicated that the services of the petitioner were terminated after making an overall assessment of his performance during the period of his probation and as the same was not found to be satisfactory.
 

11. It is trite that a person on probation has no right to be confirmed and its is equally well settled law that the services of a person on probation can be terminated by an order of termination simplicitor without holding any inquiry. 
 

12. The petitioner has placed reliance on the reference to the accident which had occurred in the counter affidavit. However, the impact of such statement in the counter affidavit on the order passed would need to be examined in the light of the principles of law laid down by the Supreme Court. 
 

13. Both parties have placed strong reliance on the pronouncement of the Apex Court in Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences. In this case, the court was called upon to consider the circumstances in which an order of termination of services of the probationer could be said to be punitive or not. In this behalf, the court held thus:

20. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab , there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in R.S. Gupta v. U.P. State Agro Industries Corporation Ltd. and reference was made to the development of the law from time to time starting from Parshottam Lal Dhingra v. Union of India ) to the concept of 'purpose of inquiry' introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das and to the seven Bench decision in Samsher Singh v. State of Punjab and to post Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the 'motive' and what is the 'foundation' on which innocuous order is based.

22. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid.

Thus, it is not every case in which there may be allegations against the workman but the order of termination did not disclose any such allegations, that the order would be held to be bad. In such a case upon examination of the material, the order would be sustained if a conclusion could be arrived at that the allegations were in the nature of the motive for the order of simplicitor termination.

14. Therefore, in the instant case, the order of termination has to be examined in the light of the principles laid down above.

15. In AIR 1998 SC 327 Life Insurance Corporation v. Raghvender Sheshagiri Rao Kulkarni, it was held that when a clause in the letter of appointment of the employee on probation clearly stipulated that he could be discharged from service, at any time during the period of probation without any notice or without assigning any cause and he was discharged from service during probation in terms of the regulations, such termination could not be held to be bad on the ground of failure of the corporation to give opportunity of hearing to the probationer.

16. To the same effect are the principles laid down by the Apex Court in Rajasthan Adult Education Association and Anr. v. Kumari Ashoka Bhatacharya and Anr. In this case, despite several letters to the respondent to show improvement in her work, she failed to do so. In these circumstances, her services were dispensed with by a simple letter of termination of service. It was held by the Apex Court that the letter terminating her services does not cast any stigma on her and hence the appointment was legally within the right of the employer to terminate the temporary employment of the respondent without notice or inquiry.

17. It is well settled that a probationer has no right to the post hold by him and his services can be terminated in accordance with the rules. In Unit Trust of India v. T. Bijaya Kumar and Anr., the court held that the very purpose of placing a person on probation is to try him during the probation period and to assess his suitability for the job in question. It is settled law that an order to discharge simplicitor is not an order of punishment and consequently there is no question of giving a hearing before the termination of his service.

18. It has been held by the Apex Court that a person who has been appointed on probation does not have a right to be confirmed even merely because he had completed the period of probation of two years and had passed the requisite test and successfully completed the prescribed training. In this behalf, reliance can be appropriately placed on the principles laid down by the Apex Court in 1985 (51) FLR 77 Dhanjibai Ramjibhai v. State of Gujarat.

19. The Division Bench of this Court had occasion to examine a similar order of termination of services of a probationer in 1987 (55) FLR 67 between K.C. Mangia and the Central Warehousing Corporation and Ors. It was held by the Division Bench that a probationer's service can be terminated if he is found unsuitable for being absorbed in the service. If the order of termination which is issued does not contain any stigma or reference to any charge of misconduct on the part of the probationer. There is no obligation to afforded him an opportunity of being heard in respect of termination of service.

20. The petitioner has placed strong reliance on the pronouncement of the Apex Court in Mathew P. Thomas v. Kerala State Civil Supply Corporation Limited and Ors. in support of the submission that the language and form of the termination order would not be conclusive of the issue as to whether the order is stigmatic or not and that the circumstances and the basis thereof have to be examined. The petitioner was referring to the allegations made in the show cause notice issued to him to contend that the allegations were such which were stigmatic in nature and that the order of termination was not an innocuous order simplicitor of termination. It would be useful to consider the principle laid down by the Apex Court in para 11 of the pronouncement which reads thus:

11. An order of termination simpliciter passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Deepti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. , after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during period of probation. The learned Counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Deepti Prakash Banerjee (supra), after referring to various decisions indicated as to when a simple order of termination is to be treated as 'founded' on the allegations of misconduct and when complaints would be only as motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is complained, thus:

21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid.

From long line of decisions it appears to us whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in our or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter but the real face behind it is to get rid of services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.

21. Therefore, even if there was material available on the record before the authority which is the basis the order of termination, existence of such material by itself would not make an order simply terminating the service of the employee as stigmatic. Such material may be a motive for passing the order of termination however it is open to an employer to not to proceed by way of a disciplinary inquiry against an employee against whom there were complaints. In such a case, the complaints would only be in the nature of motive and not the foundation and would not render the termination order bad in law.

22. In the instant case, the labour court has found no force in the submission made on behalf of the petitioner and a clear finding has been returned to the effect that in the impugned award dated 13th January, 2000 to the effect that the petitioner has failed to establish any nexus between the action taken and the charges which were levelled against the workman. It was held that the termination of services of the petitioner did not amount to retrenchment as it was termination simplicitor during the probation and hence was not illegal or unjustified on the part of the management.

23. In the instant case, the petitioner has rested his entire case that his services were terminated on the allegation against the workman that he was involved in an accident on 4th October, 1989. However, I find that the same did not result in the termination of his services. The petitioner was given a fair opportunity to show that he was suitable for the job in question. It is after assessment of his performance during the period of probation and after finding him not suitable for the post that the order dated 13th September, 1990 has been passed long after the accident terminating his probation.

24. The Apex Court had also occasion to examine the issue which has been raised raised in the instant case. In 2001 LLR 260 Krishnadevaraya Education Trust v. L.A. Balakrishna in response to the challenge by the workman to the order of termination simplicotor, the employer stated that the services of the probationer were not satisfactory. In this behalf, it was observed by the Apex Court thus:

5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.

6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.

In view of the foregoing principles, the reference to the accident and the financial loss to the Delhi Fire Service in the counter affidavit, that is in response to the challenge by the petitioner instant case would not ipso facto that the services of the probationer were terminated by way of punishment. Even at the sake of repetition, it should be pointed out that even after the accident, the petitioner was permitted to continue to work till his probation came to an end as per the letter of appointment. The petitioner was given a fair chance to show his working.

25. In the Om Prakash Goel v. H.P. Tourism Development Corporation, the case relied upon by the petitioner, a disciplinary inquiry had been commenced which gave strength to the submissions made on behalf of the probationer. This is not the position in the instant case.

26. In the light of the aforestated discussion, I find no reason to interfere with the findings returned by the labour court. The same are in consonance with the applicable principles laid down by the authoritative and binding judicial pronouncements of the Apex Court which have been noticed hereinabove.

27. There is yet another aspect of the matter. Admittedly, the petitioner was appointed on 20th April, 1989 and his services were terminated by the order passed on 11/13th September, 1990. The petitioner had rendered service of barely a year and five months. The matter was referred for adjudication by the order of the appropriate government passed on 4th September, 1992. The industrial adjudication culminated in the award which was passed against the workman on 13th January, 2000 and the matter has been pending in this Court ever since. The fact that the workman had worked for such a short period prior to the termination of his services and the long period which has elapsed since the same would itself disentitle the workman to any relief in the matter.

For all the foregoing reasons, I find no merit in this writ petition which is hereby dismissed.