Food Corporation Of India vs Daya Chand And Anr.
2006 Latest Caselaw 1921 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of award dated 8.4.1997 whereby the Tribunal held that the termination of service of Respondent No. 1 was illegal and as a result the respondent shall be considered to be continued in service with 50% back wages at the last drawn salary by him.

2. Briefly, the facts are that the respondent No. 1 was appointed as part time sweeper vide appointment letter dated 14.10.1986 under a settlement entered into between the petitioner and the Respondent No. 1 before Conciliation Officer. The relevant clauses of the appointment letter are as under:

(i) He will be eligible to draw a pay @ 50% of the wages as admissible to the regular class IV employees of the FCI on initial appointment for similar work.

(ii) That this part-time appointment at the first instance shall be for one year and it will be governed by the rules & regulation of Food Corporation of India.

(iii) That the workman shall be given benefits of seniority from 5.12.1985 and the workman shall not be entitled to any back wages for the period of unemployment after 5.12.1985.

(iv) That the workman shall work 4 hours daily i.e. two hours in the morning from 9.00 a.m. to 11.00 a.m. and 2 hours in the evening from 4.00 p.m. to 6.00 p.m. He shall be entitiled to all benefits as are admissible to the regular/part-time employees on satisfactory completion of one year service.

3. Respondent No. 1 in pursuance of above letters joined the petitioner. The services of respondent No. 1 were terminated after period of one year on 12.10.1987. The respondent raised an industrial dispute, which was referred for adjudication to the following effect:

Whether the action of the management of Food Corporation of India in relation to District Manager, FCI, Gurgaon, in terminating the services of Shri Daya Chand, s/o Shri Sagwa, Part-time Sweeper w.e.f. 12.10.1987, is just fair and legal? If not, to what relief the workman concerned is entitled?

4. The Tribunal while considering the dismissal, observed that it has come in the cross examination of the workman that he was caught in a drunken condition by the Deputy Manager on 22.5.1987 and was handed over to police. He was placed under suspension from 30.5.1987. A charge-sheet was issued to him. All these facts led to conclusion that actual reason of termination of service of the workman was this episode. Management had not complied with principle of natural justice by not giving an opportunity to the workman of being heard by way of holding domestic enquiry into the charges and in the garb of non renewal of service contract, terminated the service of respondent No. 1. Such termination was punitive. Management failed to lead any evidence to the fact that the service of workman from 14.10.1986 to 12.10.1987 was not satisfactory.

5. It is clear from the award that the Tribunal committed a grave error of law. The appointment of the respondent No. 1 was for a fix period of one year. His service was on contract and could have been renewed by the petitioner after one year, if the petitioner was satisfied with the work and conduct of the respondent, though, the petitioner was not under an obligation to renew the contract. During the contract period of one year the conduct of respondent No. 1 was such that he was caught by the Deputy Manager, in a drunken state and was handed over to the police and had to be charge-sheeted for that misconduct. This episode came on record in the evidence of the workman. Still, the Tribunal held that the management has failed to produce any evidence that service of respondent No. 1 was not satisfactory. I do not know what more evidence was required by the Tribunal to show the unsatisfactory conduct of a person, who comes in a drunken state to attend his duties.

6. The appointment of the respondent was only for one year and his services were terminated after one year without assigning any reason by non-renewal of the contract period. It was a termination simpliciter and it could not be held as punitive termination. No Court can force upon an employer an employee, who comes to office in drunken state and more so when the employee is on probation or on contract.

7. The Labour Court's observation that the termination was punitive does not stand the scrutiny of law. If a person is terminated during the probation or on expiry of contract period without assigning any reason it cannot be said to be a punitive termination. Of course, the employer while terminating the person on probation or on contract may, in the background, have the conduct of the employee. But, an employer has a right to terminate the services of a person on probation or on contract if he is not satisfied by the conduct or work, without assigning any reason.

8. In Municipal Committee of Sirsa v. Mushi Ram 2005 SCC (L&S) 277-, the appellant appointed respondent as " Octroi Moharrir". The appointment letter stated that services of the respondent could be terminated without assigning any cause at any time during the period of probation. During the course of evidence before Labour Court a witness had admitted that when the Administrator inspected the octroi post he had found that the respondent had allowed certain vehicles carrying goods to go without charging of octroi fees, contrary to rules. Records also showed that immediately after this instance the services of the respondent were terminated. Labour Court and the High court held that though the discharge was simpliciter but in reality it was a colourable exercise of power without holding an inquiry. Supreme Court held:

Law on this question by now is well settled. This Court in the case of Krishnadevaraya Education Trust v. L.A. Balakrishna while considering the similar situation held thus : ( SCC pp. 320-21, paras 5-6)

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, naturally 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 stats 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.

10. It is clear from the above that if the order of termination indicates that it is a termination simpliciter and does not cast any stigma on the employee by the said order of termination the mere fact that there was an inquiry into his conduct earlier would not by itself render the termination invalid. Applying the said principle, we see that the order of termination in the present case is an order of discharge simpliciter. But in the course of the inquiry, the Labour Court noticed that on an earlier day there was some incident where the administrative officer found some lacunae in the working of the respondent but based on that no charge sheet was served nor inquiry was conducted. However, the appellant came to the conclusion that it is not in its interest to continue the respondent's services, hence, discharged him. In the back ground, the mere fact that there was a misconduct on the part of the respondent which was not enquired into ipso facto does not lead to the conclusion that the order of termination is colourable and in fact is a punitive order. ( para 10)

11. In H.F. Sangati v. Registrar General, High Court of Karnataka this Court while considering the discharge of a probationary Munsif held : ( SCC P. 118) The impugned order does not cast any stigma on the appellants. Al that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsif. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to hold any formal proceedings of inquiry before making the order.

13. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences this Court again considering a similar case held: (SCC p. 528, para 21)

21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.

14. From the above, it is seen that in the absence of the three facts as mentioned therein, namely,

(a) a full scale formal enquiry

(b) into allegations involving moral turpitude or misconduct which

(c)culminated in a finding of guilt

the termination cannot be held to be bad. ( para 14 )

15. This Court in the said case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences further held: (SCC p. 522)

It cannot be held that the enquiry held prior to the order of termination turned the otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists in the present case.

An affidavit cannot be relied on to improve or supplement an order. Equally, an order which is other wise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order.

16. From the above, it is clear assuming that there was some sort of misconduct, as noticed in the evidence of the witnesses of the management in the cross examination, the same could not be used as evidence by the Labour Court or by the appellate court for coming to the conclusion that an order of termination which is otherwise simpliciter in nature is motivated by any consideration other than the decision of the management as to the satisfactory nature of the workman concerned.

9. I consider that the order of the Tribunal is perverse. The Tribunal misdirected itself by considering the cross examination of the workman to arrive at a conclusion that the order of termination was punitive in nature. In order to consider whether order is punitive in nature or not, the language of the order has to be seen. If, the order is silent about any misconduct, it cannot be considered as punitive. Merely because during the course of probation or during the course of contract, the workman had done such misconduct about which no enquiry was conducted, the termination cannot be termed as illegal. It is not necessary for an employer to conduct enquiry during probation period or contract period. The employer can keep a record of all such misconducts of the employee and at the end of contract period can refuse to keep an employee simpliciter or can refuse to renew the contract.

10. For the reasons stated above, the writ petition is allowed. Impugned award dated 8.4.1997 is set aside.