Mrs. Pravin Bahl vs Office Of Secretary Labour & Ors.
2009 Latest Caselaw 243 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


                                               Reserved on : 15.01.2009

%                                           Date of decision : 23.01.2009


+                         LPA No. 2376 OF 2006

MRS. PRAVIN BAHL            ...     ...     ...      ...    ...        ... APPELLANT

                            Through : Mr. B.K. Pal, Advocate.

                                 -VERSUS-

OFFICE OF SECRETARY LABOUR & ORS.                   ...    RESPONDENTS

                            Through : Mr. Swea Ram and
                                      Mr. R.K. Bachchan,
                                      Advocates for UOI / R - 1.
                                      Mr. D.R. Thadani,
                                      Advocate for R - 2.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                Yes

2.        To be referred to Reporter or not?                 Yes

3.        Whether the judgment should be
          reported in the Digest?                            Yes


SANJAY KISHAN KAUL, J.

1. The appellant was appointed as a Junior Stenographer by

respondent No. 2 Management with effect from

21.10.1980 initially on probation for a period of one year.

The appellant claims that the appointment letter itself

indicated that the probation period could be extended

only if her work was not found to be satisfactory. The

appellant had to be paid a consolidated salary of Rs.700/-

per month and on confirmation, the salary was to be

enhanced to Rs.1,000/- per month. The probation period

was extended for the appellant on expiry of one year up

to 30.04.1982 whereafter her services were terminated.

2. The appellant was aggrieved by the termination of her

services as it is her case that she was active in Union

activity and the Marketing Manager under whom she was

working had misbehaved with her since she refused to

yield to his wishes. The dispute between the workman

and the Management was referred by the Secretary,

Delhi Administration under Section 10 of the Industrial

Disputes Act, 1947 ( hereinafter to be referred to as, 'the

said Act' ) to the Industrial Tribunal on 10.03.1983 as to

whether the termination of the services of the appellant

were unjustified and / or illegal and if so, what directions

were necessary in that regard.

3. The stand of the Management, on the other hand, was

that in terms of the letter of appointment, the appellant

was on probation for a period of one year or such further

extended period as the Management might decide in its

sole discretion and that she was to remain on probation

until a letter of confirmation was issued to her. Since the

work of the appellant had been found to be

unsatisfactory by the Management, her probation was

initially extended and thereafter her services terminated.

4. The Presiding Officer of the Labour Court made and

published the Award dated 31.01.1990 in favour of the

workman. The findings returned by the Tribunal show

that as per the letter of appointment, the appellant was

initially to be kept on probation for a period of one year,

which could be extended at the sole discretion of the

Management and she was to remain on probation until

the letter of confirmation was issued to her. The record

also showed that till completion of her initial probation

period, the appellant had never been issued any warning

regarding unsatisfactory work. The probation period was,

however, extended on the basis of her performance and

appraisal report of the same Officer against whom the

appellant had made allegations. The Labour Court also

found that the extension of probation was on account of

the appellant workman not yielding to the pressure of the

superior to sit after office hours, who proposed to her

that in case she was not confirmed, he would pay the

difference of pay from his own pocket. The appellant had

refused to oblige and it is the same Officer, who had

given the adverse appraisal report dated 15.11.1981 to

the effect that the appellant had been advised to

improve her work, but did not show any improvement.

This was held to be clearly an afterthought since at the

relevant stage of time, no caution had been extended to

the appellant. The Labour Court found that the

termination of services of the appellant was illegal and

unjustified. However, since the appellant was working

with another organization in the meantime, she was held

entitled to difference of wages which she had earned

uptill the date of the Award. The appellant was also held

to be deemed to be in continuous service from the date

of termination of her services and she was directed to be

re-instated from the date of termination of her services.

5. Respondent No. 2 Management aggrieved by the said

Award filed a civil writ petition before this Court being

CWP No. 1416/1990, which was also dismissed on

08.05.1990. Respondent No. 2 Management thereafter

filed a Special Leave Petition being SLP (Civil) No. 7198-

99/1990, but that also met the same fate on 20.11.1995.

It was further directed that the appellant would join the

duty during 1st to 15th December, 1995 and that she

would be permitted to join in terms of the Award and

would be entitled to all the benefits given under the

Award. The appellant joined the duty on 11.12.1995.

6. It may be noticed that there is some controversy about

the position prevalent after filing of the SLP by

respondent No. 2 Management as it is the case of

respondent No. 2 that it asked the appellant to join and

the appellant failed to join. The appellant, on the other

hand, had moved an application under Section 36A of the

said Act for sending the Award for certain clarification,

which had been dismissed on 26.11.1990 and that order

was upheld by this Court in writ proceedings being CWP

No. 178/1991. The appellant is stated to have filed

another application on 20.03.1995 for implementation of

the Award. The writ petition filed by the appellant was

ultimately disposed off on 25.07.1995 in view of the fact

that the application filed by the appellant for

enforcement of the Award was pending before the

competent authority. Respondent No. 2 disputed the

correctness of the amount and the jurisdiction of the

forum to decide the matter regarding the amount to be

paid to the appellant.

7. The appropriate authority passed an order on 13.09.1995

informing the appellant that for purposes of re-

instatement, she may approach the District Labour

Officer while for purposes of enforcing her dues, she may

approach the appropriate Labour Court for getting the

amount computed. As noticed above, all this transpired

prior to the SLP being dismissed.

8. The appellant after having joined duty addressed a letter

to respondent No. 2 Management on 16.12.1995

requiring the Management to pay certain amounts due to

her in terms of the Award. Since the amount was not

paid, a contempt petition was filed by the appellant

before the Supreme Court being Contempt Petition No.

101-102/1996 in SLP (C) No. 7198-99/1990, but the same

was dismissed with the clarification that the appellant

was not precluded from taking recourse to other legal

remedies for recovery of the amount. It is at this stage

that the appellant filed another application under Section

36A of the said Act on 16.05.1996. Soon thereafter on

01.06.1996, respondent No. 2 confirmed the appellant in

service which, in turn, implied that she was till that date

paid only the minimum wages applicable. The

application filed by the appellant under Section 36A of

Management. The appellant addressed a letter dated

10.01.1997 to the appropriate authority seeking to

withdraw the application under Section 36A of the said

Act and sought action under Section 33-C (1) of the said

Act. Respondent No. 2 once again challenged the

amount claimed and jurisdiction of the appropriate

authority alleging that no amount was due. However, the

appropriate Government issued a letter dated

24.07.1997 to the Recovery Officer for appropriate action

to recover the amount resulting in a notice of recovery

dated 11.08.1997 being issued by the said Recovery

Officer for Rs.2,43,376.60. It is this recovery, which was

challenged by respondent No. 2 by filing a civil writ

petition being WP (C) No. 3410/1997, which has been

allowed in terms of the impugned order dated

23.08.2006.

9. We heard learned counsel for the parties at length.

10. It is not disputed by learned counsel for the parties that

the crux of the dispute is as to whether the order of re-

instatement passed by the Labour Court and upheld right

till the Supreme Court amounted to a direction to

respondent No. 2 Management to put the appellant back

in the position of a person on probation, thus, entitling

her only to those emoluments or whether she was to be

treated as having been confirmed on the date, her

probation ended in view of the finding of the Labour

Court that the action of termination by respondent No. 2

Management was unsustainable in law.

11. Learned Single Judge has taken note of the fact that the

appellant was confirmed by an order dated 01.06.1996

and did not raise any objection about the same and the

same was superfluous in case her plea was that she

already stood confirmed or that she was entitled to be

treated as confirmed and, thus, entitled to the

consequential emoluments. The second limb of the

reasoning rests on the appellant having invoked the

provision of Section 36A of the said Act, which amounted

to an admission that the amount claimed by her needed

to be adjudicated upon and, thus, a recovery certificate

could not have been issued.

12. Learned Single Judge framed the following three

questions to be examined :-

(i) Whether the direction to reinstate into service a workman would ipso facto amount to a direction by the industrial adjudicator to reinstate the workman as a confirmed employee in the post she/he was holding as a probationer wherefrom he was terminated from service;

(ii) Whether the appropriate government had any authority to pass an order for issuance of

a recovery certificate for recovery of dues claimed by the respondent No. 4 without an adjudication by the Labour Court on the same as directed by the order dated 13th September, 1995; and

(iii) Whether the appropriate government by its order dated 13th September, 1995 having held that the respondent No. 4 was required to go to the appropriate court for getting the amount of her dues computed, had authority or jurisdiction to review the same."

13. Learned Single Judge found on the first question that

there was neither any claim nor issue raised that the

appellant was to be considered as a confirmed employee

or was entitled to the same wages as those of a

confirmed employee and that there was no grievance

with regard to the extension of probation nor

adjudication on that aspect. The Award had directed only

payment of the amount, which would have been drawn

by the appellant had she continued in service. In this

behalf, as noticed above, the factum of the appellant

having sought reference under Section 36A of the said

Act has also been taken note of. Learned Single Judge

also finds that the Labour Court did not find that the

order holding extension of probation was an act of

victimization nor was any order passed for confirmation.

Learned Single Judge had noticed that the appointment

letter itself provided for continuation of probation till the

confirmation letter was issued, which letter had not been

issued earlier. A reference has been made to a large

number of judgments to appreciate the meaning of 're-

instatement' to imply that the person was put in the

original position in which he/she was before he/she was

dismissed.

14. Learned Single Judge has referred to various judgments

cited at the bar by learned counsel for the appellant to

advance the plea that there cannot be an indefinite

continuation of probation. In that behalf, learned Single

Judge has distinguished the judgments by stating that in

those cases, specific periods were provided for

confirmation or a maximum period for probation.

Learned Single Judge has also referred to numerous

judgments on the scope of the proceedings under Section

33-C (1) of the said Act that the same is only to enforce a

liability, which is not in dispute.

15. We are unable to persuade ourselves to agree with the

conclusion of learned Single Judge. The legal proposition

is not in dispute that in proceedings under Section 33-C

(1) of the said Act, the amount in question should have

been quantified and not a disputed amount. However, in

the present case, the dispute really is not of

quantification, but as to the effect of the Award of the

Labour Court since it is a stand of respondent No. 2

Management that the appellant is to be treated as if on

probation till she was confirmed in 1996. Thus, though

numerous judgments have been referred to by the

learned Single Judge in the impugned order for the said

proposition, it amounts to only stating settled law while

what has to be analysed is as to whether it applies to the

given facts of the case.

16. The order of reference itself was quite clear, which

envisaged the determination of the question whether the

termination was unjustified and/or illegal and if so, what

directions were necessary. The Labour Court found that

though in terms of the letter of appointment, the

probation period could be extended and the confirmation

was subject to issuance of such a letter, the termination

itself was illegal, as it was without any basis. The

termination was motivated by a subsequent confidential

report of the superior Officer of the appellant, who was

trying to put pressure on her to sit after office hours to

which she did not yield. No warning had been issued to

the appellant. In such a situation, while a confirmation

letter was in order, a letter of extension of probation was

issued solely on the subsequent confidential report of the

superior Officer and thereafter the appellant was

terminated from her services on the extended period of

probation being completed. Once this action was held to

be motivated by extraneous considerations and without a

factual basis, we fail to appreciate how there can be an

extension of probation for an indefinite period of time. It

must necessarily be implied that the appellant was

entitled to a confirmation if she was found to be

performing her job satisfactorily though that would

require a formal confirmation letter being issued. The

formal confirmation letter was not issued in view of the

mala fide confidential report of the superior Officer of the

appellant which was without any factual basis resulting in

the extension of the probation of the appellant and

subsequently her termination. The meaning as to what

has to be understood by issuance of a confirmation letter

cannot be extended to imply that a person can be kept

on probation for an indefinite period of time by a

Management for ulterior considerations. In our

considered view, learned Single Judge failed to

appreciate the gist of the legal thought which permeates

the various judgments cited by her that there cannot be

an indefinite period of probation. To accept the

conclusion of learned Single Judge would amount to the

appellant being treated as if she is on probation since

1980 for a period of sixteen years till her confirmation in

1996! This would be contrary to the direction of the

Award which has been upheld right till the Supreme

Court. Not only that, the view taken by learned Single

Judge would defeat the very object for which the said Act

was promulgated, i.e., to resolve industrial disputes and

create industrial peace and harmony and not to deny the

legitimate dues of the workman on technical

considerations.

17. There are really no disputed facts in the present case as

the dispute is not of quantification of the amount, but of

the principle. Once the appellant was entitled to

confirmation, as a natural sequitor to the findings of the

Labour Court, the appellant would be entitled to all such

benefits as were available to other personnel of

respondent No. 2 Management, who were serving under

similar circumstances. That is what the appellant has

claimed and is not disputed by the Management. The

dispute raised by the Management is only that the

appellant is required to be paid only salary as if she was

on probation.

18. No doubt, an order of re-instatement would require the

appellant to be placed in the same position as she was,

as enunciated in various legal pronouncements.

However, the position of the appellant was of an

employee, who had completed the initial probation

period and ought to have been confirmed in the absence

of any unsatisfactory service, but was terminated. Since

confirmation was the logical corollary and not

termination in view of the findings of the Labour Court,

the effect of re-instatement would be that from the date

when the probation period of the appellant was over, she

should be deemed to have been confirmed with all the

consequential benefits.

19. We are of the view that if the appellant had been ill-

advised to file certain applications under Section 36A of

the said Act, that cannot defeat her rights. The appellant

was under the misconception that she was obliged to

proceed under the said provisions and the appropriate

authority also wanted the quantification of the amount,

while the fact remained that the case was one of simple

enforcement of the financial consequences of the Award

which could be carried out by invoking the provisions of

Section 33-C (1) of the said Act as was ultimately done.

20. We are unable to derive an adverse inference against the

appellant merely because at the stage of confirmation,

she did not plead that the same should not be issued.

What was the appellant supposed to say - 'that she

should not be confirmed'. This would be very hyper-

technical view of the factual matrix where the appellant

has been made to run from pillar to post to get her legal

dues. The appellant was sought to be deprived of the

consequences of having succeeded in the legal

proceedings by respondent No. 2 Management.

21. We are, thus, of the considered view that the appellant is

entitled to the emoluments of a confirmed employee and

not of a person on probation from the date her initial

period of probation was over. Since we have found that

there is no dispute about quantification of the amount,

the recovery certificate was rightly issued in view of the

amount having been quantified as the dispute was only

one of principle, which stands settled in favour of the

appellant workman.

22. Learned Single Judge has also found in respect of the

third question that there was no power of review on the

appropriate authority since the power of review was not

inherent and must be conferred by law. Once again,

there is no dispute about this abstract proposition of law.

However, the present case is not one of any review of the

order, but of the appellant having taken recourse to a

legal remedy, which was not required, i.e., Section 36A of

the said Act, on which certain orders were passed by the

appropriate authority. The appellant ultimately took

recourse to the proceedings under Section 33-C (1) of the

said Act and on the proceedings being filed under the

relevant provision, the appropriate authority was not

precluded from passing the correct orders for recovery of

the amount.

23. Learned counsel for the appellant has also invited our

attention to the judgment of the Constitution Bench of

the Supreme Court in The Sawtram Ramprasad Mills Co.

Ltd., Akola v. Baliram Ukandaji & Anr., AIR 1966 SC 616

where the scope and ambit of Section 33-C (1) has been

clarified and it has been observed in para 5 as under :-

"5. The next contention is that the claim for lay off is not a claim for money due because calculations have to be made before the money due can be found. This argument has been considered on more than one occasion and it was rejected recently by this Court in Kays Construction Co. (P) Ltd. v. State of U.P. (C.As. 1108 and 1109 of 1963, D/-26-11-1964 : (AIR 1965 SC 1488). It is not essential that the claim which can be brought before the Government or its delegate under Section 33-C (1) must always be for a predetermined sum. The Government or the Labour Court may satisfy itself about the exact amount and then take action under that Section. In the present case, the dates of lay off are known and each workman will show to the Second Labour Court that he is qualified to receive compensation for lay off. That will be shown from the muster roll

which the employer is required to maintain and it will then be a simple arithmetical calculation which, in our judgment, S. 33-C permits to be made. If there is any question whether there was lay off or not the Labour Court will decide it. This argument, therefore, has no force."

(emphasis supplied)

24. We, thus, find that respondent No. 1 has correctly

computed the amount as per the aforesaid principles and

issued the recovery certificate. The appellant has been

deprived of her dues for a long period of time by the

machinations of respondent No. 2 Management.

25. We allow the appeal and set aside the impugned order

dated 23.08.2006. The Recovery Officer shall now

proceed to recover the amounts in terms of the recovery

certificate.

26. The appellant shall also be entitled to costs from

respondent No. 2 Management quantified at Rs.10,000/-.

SANJAY KISHAN KAUL, J.

JANUARY 23, 2009 SUDERSHAN KUMAR MISRA, J. madan