Delhi Transport Corporation vs Sh. R.K. Tiwari & Anr.
2012 Latest Caselaw 4256 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                      W.P. (C) 3841/2000
+                        Date of Decision: 19th July, 2012

#     Delhi Transport Corporation          ....Petitioner
!                  Through: Mr. Sarfaraz Khan, Advocate

                            Versus

$     Sh. R.K. Tiwari & Anr.              ...Respondents
                 Through: Mr. Atul T.N., Advocate for
                             Respondent-2

      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

                        JUDGMENT

P.K.BHASIN, J:

In this writ petition the petitioner-management(DTC) assails the correctness of the award dated 11th January, 1999 passed by the Industrial Tribunal whereby the petitioner- management was directed to reinstate the respondent no. 2- workman, who was employed with it as a conductor and whose services were terminated during the period of his probation, with all consequential benefits.

2. The respondent no. 2 was appointed as a conductor by the petitioner on 16th, April, 1985 and his appointment was purely temporary. He was put on probation for a period of one year. On 29th July, 1985 while he was on duty on a DTC bus the checking officials of DTC intercepted that bus and during checking they found that the respondent no.2- workman had sold one used ticket of Re.1/- denomination to one of the passengers travelling in his bus and respondent no. 2 himself was found to be in possession of another used ticket of Re. 1 which was also meant to be resold. The respondent no.2 is stated to have accepted his fault and had assured not to repeat such a thing in future.

3. The petitioner-management, however, did not take a chance and terminated the services of the respondent no.2 workman in exercise of its power under clause 9(a)(1) of the DRTA(Conditions of Appointment & Service) Regulations, 1952(hereinafter to be referred to as „Regulation 9‟) vide order dated 23rd, August,1985. Feeling aggrieved, the respondent no. 2 raised an industrial dispute which came to be referred for adjudication to the Industrial Tribunal.

4. The petitioner-management contested the claim of the respondent no. 2 and it had justified the termination of his services by taking a plea that he being on probation his services could be terminated without assigning any reason as per Regulation 9.

5. The Industrial Tribunal after trial answered the reference in favour of the respondent no.2-workman and consequently his reinstatement in service was ordered. It was held in the impugned award that the termination of the services of respondent no. 2-workman was illegal since no enquiry was held against him nor any evidence was adduced by the petitioner - management before the tribunal to justify his termination.

6. Feeling aggrieved by the award of the industrial tribunal this writ petition was filed by the petitioner-management. It was contended by the learned Counsel for the petitioner-DTC that since respondent no. 2 was on probation when his services were terminated there was no necessity of either holding any enquiry against him nor was compliance of Section 25-F of the Industrial Disputes Act required to be

done since the termination of the services of a probationer did not amount to retrenchment.

7. Mr. Atul T.N, learned counsel for respondent no.2- workman, on the other hand, contended that there is no scope for any interference by this Court in the award under challenge since no perverse conclusion had been arrived at by the Tribunal since admittedly no enquiry was held against the workman before getting rid of him and the same was necessary even if he was removed from service when he was still a probationer. It was contended that an industrial workman who enjoys certain privileges under the Industrial Disputes Act has to be dealt with in accordance with the provisions of this Act even if he happens to be a probationer.

8. In view of the fact that there is no dispute about the fact that services of respondent no.2-workman were terminated when he was a probationer as per his contract of employment all that needs to be seen is as to whether an employer is required to conduct any enquiry against such an employee when some kind of misconduct on the part of the probationer is brought to the notice of the Disciplinary Authority during

the period of probation and also whether the termination simpliciter of a probationer amounts to retrenchment or not.

9. Answers to these two legal questions are to be found in the judgments of the Hon‟ble Supreme Court. In "Oil and Natural Gas Commission and Ors. Vs. Dr. Md. S. Iskender Ali", (1980)3SCC428 the Supreme Court was considering the case of termination of the services of a probationer. The Court took note of many of its earlier judgments on the point and laid down the legal position. The relevant paragraphs from this judgment are being re-produced below:-

"3. It appears that during the period of his probation there were some reports against the respondent as a result of which a departmental enquiry was held against him but which does not appear to have been proceeded with nor was any punishment imposed on him. After he had completed the period of one year on 15-10-1966 his probation was extended for another six months and before his services were terminated, there was no express order either confirming him or extending the period of probation. Ultimately, by an order dated 28th July 1967 the services of the respondent were terminated with effect from 28th July 1967..............................

4. The respondent felt aggrieved by the termination of his services and filed a writ petition in the High Court on the ground that the order terminating his services was mala fide

and was in fact passed by way of penalty entailing evil consequences. The plea taken by the respondent found favour with the High Court which allowed the petition and quashed the order of the appellant terminating the services of the respondent.................................................................

5. The only point raised before us by the appellants was that as the respondent was a mere probationer and the order terminating his services was an order of termination simpliciter without involving any stigma or penalty, the High Court was in error in quashing the order of termination and directing the reinstatement of the respondent. The counsel for the appellants submitted that reading the order per se there is nothing to indicate that it was passed by way of punishment. As the respondent was a temporary employee on probation, it was open to the employer to terminate his services at any time before he was confirmed. If the employer was satisfied that he was not suitable for being retained in service. The counsel for the respondent, on the other hand, submitted that the order, though per se innocuous, was really a cloak to conceal the real mischief which the order purported to perpetuate as the order of termination was preceded by a full-fledged departmental inquiry and a regular chargesheet was submitted against the respondent, it was because the respondent was found guilty that he was punished by way of dismissal from service. In other words, the argument of the respondent was that the order of termination of the services passed by the appellant was an order which amounted to dismissal from service involving a clear stigma and would, therefore, attract the provisions of Article 311 of the Constitution and was rightly quashed by the High Court

6. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

7. The confidential roll reflecting the assessment of the work of the respondent during the period 31-12-1965 to 30-12- 1966 clearly shows that the officer was careless and lacking in sense of responsibility. The report also shows that the

reporting officer recommended that the period of probation should be extended. In accordance with the recommendation, the period of probation, was further extended by six months-The learned Counsel for the respondent submitted that the remarks made in the assessment roll went to show that the intention of the appointing authority was to proceed against the respondent by way of punishment. We are, however, unable to agree with this submission. It is obvious that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained.............................................................................

8. It was then vehemently contended by the respondent that as the appointing authority chose to institute a departmental inquiry against the respondent for dereliction of duty and negligence in not attending to a baby who died due to his carelessness, the enquiry should have been carried to its logical end and charge-sheet having been framed, the provisions of Article 311 of the Constitution were clearly attracted and therefore it was not open to the appellants to have terminated the services by giving the order a cover of termination simpliciter. In other words, the contention was that the real motive behind the termination of the service of the respondent was to inflict a punishment on him and as the appellants did not comply with the requirements of Article 311 of the Constitution, the order impugned was illegal. We are, however, unable to agree with this argument. In the first place, it has been clearly pleaded by the Government in its counter-affidavit that although an enquiry was held yet it was not continued and no punishment was imposed on the respondent. In this connection, relevant portion of paragraph 11 of the counter-affidavit before the High Court may be extracted:-

A preliminary enquiry was made before the charge was framed and on the enquiry report a prima facie case having been found against the petitioner due charge was framed

against him. No punishment under Regulation 28 of Oil and Natural Gas Commission (Conduct, Discipline and Appeal) Regulation was inflicted on the petitioner.

9. In these circumstances, therefore, it is obvious that as the respondent was merely a probationer, the appointing authority did not consider it necessary to continue the enquiry but decided to terminate the services of the respondent as he was not found suitable for the job. It is well settled by a long course of decisions of this Court that in the case of a probationer or a temporary employee, who has no right to the post, such a termination of his services is valid and does not attract the provisions of Article 311 of the Constitution. In the case of Shamsher Singh and Anr. v. State of Punjab, 1974 (1974)IILLJ465SC , the matter was considered in all its aspects by a Constitution Bench comprising seven Judges of this Court and the Court adumbrated the following propositions :-

Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this.... The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment... A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2)....

An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is

not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct.

10. Similarly, the matter was previously considered in Parshotam Lal Dhingra v. Union of India, (1958) ILLJ 544 SC where the following observations were made:-

Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of Ms employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Govern-men servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking Article 311(2) will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules, is, prima facie and per se, not a

punishment and does not attract the provisions of Article

311.

11. All these decisions were reviewed in the case of State of U.P. v. Ram Chandra Trivedi [1977] 1 S.T.R. 462 where this Court observed as follows :-

Keeping in view the principles extracted above, the respondent's suit could not be decreed in his favour. He was a temporary hand and had no right to post. It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month's notice. The order to which exception is taken is ex facie an order of termination of service simpliciter. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct. In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution.

We, therefore, agree with the submission made on be- half of the appellant that the High Court was in error in arriving at the finding that the impugned order was passed by way of punishment by probing into the departmental correspondence that passed between the superiors of the respondent overlooking the observations made by this Court in I.N. Saksena v. State of Madhya Pradesh, (1967)IILLJ427SC that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research.

12. The facts of the present case appear to be on all fours with those of the aforesaid decision. From the undisputed facts detailed by us in an earlier part of the judgment, it is

manifest that even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such a power flowed from the contract of service it could not be termed as penalty or punishment.

13. The matter was again considered at great length by a recent decision of this Court in the case of State of Maharashtra v. Veerappa R. Saboji and Anr. :

(1979)IILLJ393SC , where Untwalia, J., observed thus:

Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such an order.

14. Applying the principles enunciated by this Court in various cases to the facts of the present case, the position is that the order impugned is prima facie an order of termination simpliciter without involving any stigma. The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the respondent who was a probationer and had no right to the service. The respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment.

15. Reliance was, however, placed by the respondent on a decision of this Court in the case of The State of Bihar v. Gopi Kishore Prasad, (1960)ILLJ577SC , where it was held that although termination of the service of a person holding the post on probation cannot be said to deprive him of any right to the post and is no punishment but where

instead of terminating a person's service the employer choose to hold an enquiry into his alleged misconduct and proceeds by way of a punishment, such a course involves a stigma and an order of termination is bad. Such, however, is not the case here. The short history of the service of the respondent clearly shows that his work had never been satisfactory and he was not found suitable for being retained in service and that is why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him. In these circumstances, therefore, if the appointing authority considered it expedient to terminate the services of the respondent-a probationer--it cannot be said that the order of termination attracted the provisions of Article 311 of the Constitution. Thus, if the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned as held and observed by this Court in the cases cited above."

10. Similar observations were made by the Hon‟ble Supreme Court in a subsequent judgment in "Radhey Shyam Gupta vs. UP State Agro Industries Corporation Ltd. & Anr.", JT 1998(8) SC 585 and again the same view was reiterated by the Supreme Court in "State of UP and Ors. Vs. Ashok Kumar", (2005) 13 SCC 652.

11. In the present case, the petitioner - management had not conducted any enquiry even though there was some report made by the checking officials of DTC to the Disciplinary Authority in respect of the checking of the bus of respondent

no. 2 - workman in which they found one passenger to be in possession of one used ticket and one used ticket with the respondent no. 2. Since the respondent no. 2 - workman was a probationer at that time, the petitioner - management could have very well decided not to hold any regular enquiry against him to find out the truth of the report made by the checking officials and having not done so and taking recourse to its authority under the contract of employment to terminate the services of the respondent no. 2 - workman during the period of probation without assigning any reason and terminating his services, no fault can be found with that decision and the learned Industrial Tribunal was not justified in directing reinstatement of the respondent no. 2 - workman simply on the ground that before terminating his probation some kind of enquiry should have been held against him. The termination of the services of the respondent no. 2 - workman in the facts and circumstances of the case was not at all stigmatic or punitive. It was a case of termination simpliciter.

12. Since the respondent no. 2 - workman was only a probationer at the time of termination of his services that termination was retrenchment also requiring compliance of

Section 25-F of the Industrial Disputes Act in view of Section 2(oo)(bb) of the Industrial Disputes Act in which retrenchment is defined and it is clearly provided that termination of the services of a workman as a result of non- renewal of the contract of employment or of such contract being terminated under a stipulation in that behalf contained in the contract of employment does not amount to retrenchment. This was held to be so by the Supreme Court in "M. Venugopal vs. Divisional Manager", (1994) 2 SCC

323.

13. In view of the afore-said legal position the impugned award of the Industrial Tribunal is totally unsustainable being contrary to the well settled legal position applicable to the termination of services of probationers even if they are industrial workmen to whom the provisions of Industrial Disputes Act apply. This writ petition is, therefore, allowed and the impugned Award of the Industrial Tribunal is set aside. Parties are, however, left to bear their own costs.

P.K. BHASIN, J July 19, 2012