Jai Prakash vs Govt. Of Nct Of Delhi And Anr.
2006 Latest Caselaw 1398 Del

JUDGMENT

Manju Goel, J.

1. The petitioner having been offered the job of an Assistant Fitter was placed under training from May, 1981 to May, 1984 and was thereafter appointed as an Assistant Fitter vide order dated 28.4.1986 but was put out of employment vide order dated 14.10.1986. He raised an industrial dispute which was referred for adjudication to Presiding Officer, Labour Court-II, Delhi. By the impugned judgment the Labour Court returned a finding against the petitioner on the ground that the petitioner did not have any lien on the service as he was a probationer. The grounds for challenge are as under:

a) the impugned order is based on conjectures and surmises as the respondent could not substantiate its stand before the Labour Court;

b) the High Court had struck down Rule 9(1)(i) of DRTA (Conditions of Appointment and Services) Regulations, 1952 under which the service of the petitioner have been terminated and, therefore, the order of termination should be set aside;

c) the petitioner was already working for the respondent since 15.5.1981 and, therefore, had completed more than 240 days in service and thereafter he could not have been terminated under Rule 9(1)(i) of DRTA (Conditions of Appointment and Services) Regulations, 1952; and

d) no ground of termination was communicated to the petitioner.

2. The petitioner seeks a writ of mandamus for setting aside the impugned order dated 1.10.2001 and reinstatement with consequential benefits and full back wages. On behalf of the respondent it is contended that the petitioner was appointed vide Memo dated 15.4.1986 for a period of one year on probation which could be extended for two more years and during the period of probation his work was not satisfactory. Some facts of the conduct of the petitioner have also been given by the respondent. On 12.10.1986 the petitioner drove Bus No.DHP-2686 unauthorisedly in the depot workshop as a result of which he met with an accident and the bus crushed into the wall of a room and injured one worker. The respondent claims that this act of the petitioner showed that he was not discharging his duties satisfactorily.

3. At the time of hearing before this Court, none of the grounds mentioned above has been pressed. The only ground pressed before this Court is that his services were terminated on account of misconduct and, therefore, his services could not have been terminated without observing the procedure for imposing penalty namely an enquiry into his misconduct and an opportunity to explain. The fact that the petitioner was undergoing a period of probation is not being disputed before this Court. Nor is it disputed that the impugned order of termination is only an order of termination simplicitor without any stigma of misconduct. The order is reproduced below:

The service is of Sh. JAI PRAKASH S/O Tara Chand, Asstt. Fitter, B. No. 10542 Pay T.No.53126 are hereby terminated with immediate effect under Clause 9(a)(1) of the D.R.T.A. (Condition of appointment & Service) Regulation, 1952.

He is required to deposit all the D.T.C. articles in his possession within 24 hours of the receipt of this memo. Non-deposit of D.T.C. articles by him in accordance with the instructions contained in office order no. 21 dated 27.1.1954 will render him liable to pay a penalty of Rs. 2/- per day for the days he keeps any of the D.T.C. articles in his possession after the specified period of 24 hours.

4. Before the Labour Court the respondent disclosed the fact that the petitioner while on duty on 12.10.1986 drove Bus No. DHP-2686 unauthorisedly and dashed into the wall of a room resulting into injuries to one Shri Balbir Singh, Fitter. The Labour Court, however, referred to the terms of appointment and held that his services had been terminated in terms of the conditions of service of the probationer which did not amount to retrenchment within the meaning of Section 2(OO) of the Industrial Disputes Act. The Labour Court also observed that the services of the probationer could be terminated after making overall assessment of his performance during the period of probation and no notice is required to be given to him before his services were terminated. The Labour Court relied upon the judgment of the Supreme Court in the case of M. Venugopal v. Divisional Manager, LIC of India, Machilipatnam as also on the judgment of the High Court of Kerala in the case of Geiovanola Binny Lt. v. Industrial Tribunal Kalicut . The Labour Court returned the Award that the termination was legal and justified.

5. The petitioner's counsel has relied upon three judgments, two of the Punjab & Haryana High Court and one of the Supreme Court. In the case of Municipal Committee, Suman through its Executive Officer v. Presiding Officer, Labour Court, Patiala and Anr. 1992 LLR 797 the order of termination, inter alia, mentioned that the employee "has not performed his duties properly and it has been done in an irresponsible manner and with indiscipline". In the case of V.P. Ahuja v. State of Punjab and Ors. 2000 LLR 473, the order of termination, inter alia, says, "he failed in performance of his duties administratively and technically." Obviously both these orders cast stigma on the employee whose services were being terminated. These two cases are, therefore, not the ones which can be relied upon by the petitioner with any profit. The third case relied upon by the petitioner is Sat Narain v. Haryana State Co-operative Apex Bank Ltd. 1995 LLR 351 in which before the probationer's services were terminated the employee had been called upon to submit his explanation about his work and conduct. The employee challenged the order of termination on the ground that the employer had not held any enquiry in accordance with Statutory Rules and principles of natural justice. This order of termination was found to be illegal by a Single Judge of the Punjab & Haryana High Court. Relying upon this, it is submitted on behalf of the petitioner that although the termination of the services of the petitioner was apparently an order of termination simplicitor, in actual effect it was an order of dismissal inasmuch as the services of the petitioner were terminated on account of the alleged misconduct of unauthorisedly driving a bus and causing an accident, damaging a structure and a worker.

6. The law on the aspect is by now fairly well settled. It will be sufficient to refer to the recent judgment of the Supreme Court in the case of State of Punjab and Ors. v. Sukhwinder Singh . The probationer in that case was absent without leave for 22 days before he was served with an order of termination simplicitor. The Supreme Court observed, in the first place, that the probationer has no right to the post and can be discharged within the period of probation in case he was not found to be suitable. Even when there were allegations of misconduct and there was a summary enquiry against the probationer, the Supreme Court held, referring to its earlier judgments in the cases of Bishan Lal Gupta v. State of Haryana and Ors. ; Oil and Natural Gas Commission v. Dr. Md. S. Iskander Ali and Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar and Anr. , that if the same was followed by an innocuous order of termination, the termination could not be looked at as an order of punishment and, therefore, the same was valid. The Supreme Court observed in the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. that it has already been held that an order of termination can be punitive only when three factors were present (a) a full-scale formal enquiry; (b) into allegations involving moral turpitude or misconduct which culminated in a finding of guilt. Unless all these factors were present, the Supreme Court held, an order of termination of a probationer could not be held to be punitive. It is not the case of the petitioner that any procedure of disciplinary action for either major penalty or minor penalty was at all initiated against him. His conduct of unauthorisedly driving a bus and causing an accident was an indication of his unsuitability to the job although it may at the same time have been an act of misconduct. The delinquency could be an operating motive in termination of service and such an order could not be considered as punitive. Only if the order of termination was founded on the delinquency, could be termination be described as punitive? This view has been expressed by the Supreme Court in the case of Ravindra Kumar Misra v. U.P. State Handloom Corporation Ltd. AIR 1987 SC 2408. In the present case if these principles are applied, the termination of the petitioner can be said to be a termination simplicitor. His termination is not founded on the misconduct or delinquency in as much as the procedure for punishment, as described above, was not undertaken.

7. In view of the above discussion, I feel that the petitioner has no ground to assail the impugned Award. The petition is accordingly dismissed.