Delhi High Court
Yasmeen Sayed vs Central Warehousing Corporation on 17 May, 2013
Author: Valmiki J. Mehta
$~11.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8084/2012 & C.M.No.20128/2012 (stay)
% Date of Decision: 17th May, 2013
YASMEEN SAYED ..... Petitioner
Through: Mr.N.D.Pancholi, Adv.
Versus
CENTRAL WAREHOUSING CORPORATION ..... Respondent
Through: Mr.K.K.Tyagi, Adv. with Mr.Iftikhar
Ahmed, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not? Yes.
: VALMIKI J. MEHTA, J (Oral)
1. This writ petition is filed by the petitioner challenging the termination
order dated 7.6.2012 whereby the services of the petitioner have been
terminated by the respondent/employer/Central Warehousing Corporation.
The petitioner was a Management Trainee and the termination order was
passed as the services of the petitioner have been found not to be
satisfactory.
2. On behalf of the petitioner, it is contended that the officers of the
respondent did not forward the reports of the petitioner in time. It is further
argued that the assessment reports which have been prepared with respect to
the petitioner show that two officers have found that the petitioner was fit
for independently working as Manager. It is further argued that the
assessment reports during the training period shows that the work of the
petitioner has always been found to be satisfactory, and therefore,
termination order is unjustified in concluding that petitioner's services were
unsatisfactory. It is also argued that as per the Final Assessment Report of
the petitioner, the petitioner is found to have received 24 out of 40 marks in
presentation for 'service tax', and therefore, it cannot be said that the
petitioner's services were unsatisfactory. It is also argued that respondent
was actuated by malafides in passing the termination order. It is also argued
that the termination order is stigmatic, and therefore, liable to be set aside
besides also because it has been passed without hearing the petitioner.
3. On behalf of the respondent in the counter-affidavit, it is basically
contended that since as per the Final Assessment Report taken with earlier
assessment reports, the competent authority had reached a conclusion that
the services of the petitioner were not satisfactory, and the petitioner was
only a Management Trainee who as per the appointment letter would only
be taken in employment on satisfactory completion of services,
consequently, the services of the petitioner have been terminated.
4. Besides the Final Assessment Report, there are a total of 4 periodic
assessment reports so far as the petitioner is concerned. First report is by one
Sh.H.R.Arya which states that petitioner can independently work as
Manager. This report is dated 12.12.2011. Second report is the report of
Sh.G.Raja Rao dated 27.03.2012 which again states that petitioner can work
independently as Manager. However, there are 2 other reports, one of
Sh.Abhay Singh dated 24.03.2012 and the other of Sh.B.L.Samaria dated
22.03.2012, which state that petitioner cannot work independently as a
Manager. All the 4 reports give the remark of only satisfactory so far as the
work of the petitioner is concerned ie not of good or very good or excellent.
The final assessment of the petitioner is in terms of the Final Assessment
Report dated 24.05.2012 of a Regional Manager rank of the respondent, and
the relevant portion of which reads as under:-
1. Please evaluate the management trainee on the following parameters
during his/her training programme:
a Knowledge about general a
warehouse/ICD/Custom Bonded Good
Warehouses
b. Knowledge about RO working b Good
2. Comments on his/her behavioural aspects:
a. Approach & Zeal towards work a.
assigned Average
b. Initiative drive b. Average
c. Communication Skills c.
d. Willingness to accept d.
challenges & responsibilities. Average
e. Discipline e. Very Well disciplined
f. Leadership qualities/ability to f.
take decision Average
g. As a team player g. Average
3. Are you satisfied with the To some extent
performance of Management trainee
during his/her training?
4. If not, reason for
such Needs improvement in approach/zeal
dissatisfaction. and initiative to come up to SAMs
level
5. Do you think Management
Trainees is fit for his/her Needs more experience
appointment as Senior Assistant
Manager?
6. Comments on overall performance
of Management Trainee As Above
Sd/-
Susheel Tyagi
Regional Manager
Forwarded to:
The AGM (Per.), CWC, RO, New Delhi
Copy to:
AGM (Trng.), CWC, CO, New Delhi."
5. The aforesaid assessment report shows that basically the petitioner's
performance is rated as average on 5 counts, and good on 2 counts.
However, so far as the satisfaction with respect to the performance is
concerned, it is noted that it is only 'to some extent'. In the next very
paragraph, it is clarified that the petitioner in fact needs improvement in
approach/zeal for coming up to the Senior Assistant Managers (SAMs)
level. Most importantly in the next para which required assessment as to
whether the petitioner was fit for appointment as a Senior Assistant
Manager, the answer is in the negative by stating that the petitioner needs
more experience. It may be noted that besides the petitioner's 4 periodic
assessment reports of the training year, the petitioner also had given a
presentation which, as stated, has been marked only at 24 out of 40 marks,
with high difference/range in marking by the four officers concerned.
6. It is the employer which decides the suitability of the employee. It is
for this purpose that firstly an employee like the petitioner is put on the job
as a Management Trainee and not directly as a Sr. Asst. Manager/employee.
The object is that every employer has a right to judge the suitability of an
employee for being employed. The Final Assessment Report prepared by a
very high ranking official being the Regional Manager shows that the
competent authority has not found that the petitioner has the necessary
experience for being appointed as Senior Assistant Manager. In my opinion,
Courts cannot sit in the armchair of the competent authority to decide the
suitability of the employee, more so, because it is ill-equipped to do so. Of
course, Courts do interfere in certain cases where there is ex facie
discrimination or malafides found, however, considering that the petitioner
has received only about average reports in 2 out of 4 earlier periodic reports
state that the petitioner is not capable of being appointed as a Manager (this
is wrongly described because the form contains printed word 'Manager' and
what is actually intended is the word Senior Assistant Manager) because
petitioner was to be appointed as Sr. Asst. Manager and not Manager, and in
the Final Assessment Report against her I do not find that the respondent in
this case is actuated by malafides in passing the termination order dated
07.06.2012. Further, in my opinion, general allegations of malafides are not
enough, inasmuch as, malafides have to be alleged against each specific
officer who gave the different assessment reports finding the petitioner not
fit to be appointed as Senior Assistant Manager, and which factual aspects
are missing in the writ petition.
7. Therefore, I do not find that this Court in exercise of its extraordinary
power under Article 226 of the Constitution of India can interfere in the
facts as found in the present case and quash the termination order.
8. Counsel for the petitioner relied upon the provisions of Delhi Shops
and Establishment Act, 1954 being Sections 2(5); defining 'commercial
establishment', S. 2(7); defining 'an employee', S.2(8); defining 'an
employer', S. 2(9); defining 'an establishment' and Section 30 which
provides that services of an employee covered under the Delhi Shops and
Establishment Act, 1954 cannot be terminated except by giving one month's
notice and which having not been given in this case hence the termination
order is liable to be set aside.
9. Reliance in this regard is placed upon a Division Bench judgment of
this Court in the case of Kala Kendra Pvt. Ltd. Vs. Sh.K.K.Baweja & Anr.
ILR (1980) II Delhi 1355 which holds that if an employee is covered by the
Delhi Shops and Establishment Act, then the services of such contractual
employee cannot be terminated without giving one month's notice or one
month's wages in lieu of notice.
10. In my opinion, argument urged on behalf of the petitioner that
petitioner's services cannot be terminated without giving one month's notice
is misconceived for the reason that Section 30(3) provides the consequence
of not giving one month's notice or pay in lieu of notice and which
consequence is that a complaint has to be made before a Magistrate and the
Magistrate will, in addition to give an employee a month's salary, give
compensation to the employee up to one month's salary. The Magistrate
may also impose a fine under Section 40. Therefore, once the consequence
of non-compliance of Section 30 is provided in Section 30 itself, it is only
that consequence which will flow and it would not mean that the termination
order is to be set aside for the reason of not having given one month's notice
or pay. In my opinion, though I am not finally expressing one way or the
other, even one month's notice or pay may not be applicable because as per
the appointment letter, petitioner could always be terminated at any time
during the period of her training. There is no requirement in her
appointment letter of giving of a particular period of notice. At best the
petitioner will be entitled to one month's notice or pay but it will not render
termination of services of the petitioner bad in law, inasmuch as, once the
employer/respondent found the services of the petitioner not to be
satisfactory for confirmation in employment, the respondent will always be
entitled to terminate the services of the petitioner as a Management Trainee.
11. I may state that the Supreme Court in the judgment in the case of
Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam Prakash Srivastava &
Anr. (2007) 1 SCC 491 has held that even if the non-stigmatic termination
of services of the probationer refers to the performance being 'not
satisfactory', such an order cannot for that reason be said to be stigmatic.
The Supreme Court in this judgment further held that for terminating the
services of the probationer, the principle of audi alteram partem are not
applicable.
12. On behalf of the petitioner reliance is also placed upon the judgment
of a Division Bench of this Court in the case of Pradip Kumar Das Vs.
Union of India & Ors. 191 (2012) DLT 651 to argue that the services of an
employee can be terminated only after one month's notice and if no notice is
given, the termination would be bad in law. In my opinion, the judgment
relied upon does not apply because the Division Bench of this Court in the
said case was concerned with the statutory rules as applicable to CESTAT
members. While interpreting the relevant Rule 9(2), it was held that
termination has to be in terms of Rule 9(2). In the present case, I have
already observed that consequence of non-compliance of Section 30 is
specifically provided under sub-Section 3 of that section and which allows a
complaint to be filed before the Magistrate who can impose penalty up to
one month's pay and also a fine in addition.
13. I may state that counsel for the petitioner had prayed for time to file
rejoinder by moving an adjournment slip. Since filing of a rejoinder is not
compulsory in all cases, and in view of the admitted facts of the assessment
reports as also the language of the non-stigmatic termination order stating
that the petitioner's services are not found satisfactory, I have not acceded to
the request to grant time for filing rejoinder. The assessment of the petitioner
has necessarily to be only on the basis of the four periodic assessment
reports and then the Final Assessment Report and all of which were on
record for being considered. Surely, nothing else is required to be looked
into when the issue of satisfaction of services of a Management Trainee such
as the petitioner comes up except the admitted record which is already on
the file of this Court.
14. In view of the above, there is no merit in the petition, and therefore,
the same is dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J
MAY 17, 2013
'anb'
