Ramesh Kr. Dogra vs P.O. Labour Court-I & Anr.
2013 Latest Caselaw 5445 Del

$~R-241
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 6199/2002

                                               Decided on 26th November, 2013

          RAMESH KR. DOGRA                                ..... Petitioner
                       Through:          Mr. Som Dutta Sharma, Mr. Gaurav
                                         Bhardwaj, Mr. Amandeep Singh and
                                         Ms. Garima Bhardwaj, Advs.
                             versus

          P.O. LABOUR COURT-I & ANR.                         ..... Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J (ORAL)

1. Aggrieved by the Award dated 4th February, 2002 of the Labour Court

No. I, Delhi petitioner-workman has preferred this writ petition under

Article 226 of the Constitution of India. By the impugned Award Industrial

Adjudicator has held that petitioner had not completed 240 days of service,

inasmuch as, his services were terminated during the probation period

without casting any stigma on him, thus, petitioner was not entitled to any

relief.

2. Secretary (Labour), Govt. of NCT of Delhi referred the disputes to the

Labour Court for adjudication in the following terms :-

"Whether the services of Sh.Ramesh Kumar Dogra have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. Petitioner alleged in the statement of claim that he was appointed as

an „Accountant‟ with effect from 1st August, 1991 vide letter of appointment

dated 15th July, 1991 issued by the respondent-management. In terms of the

appointment letter, petitioner was to remain on probation for a period of 160

days. Petitioner successfully completed 160 days on 7th January, 1992.

However, his services were illegally terminated on 31st January, 1992. In

the written statement before the Conciliation Officer respondent had alleged

that petitioner had removed certain important documents from the office and

in this regard an FIR was registered on 31st January, 1992 at Police Station

Cannaught Place, New Delhi. It was further alleged that petitioner had

indulged in undesirable activities, therefore, on 7th January, 1992 he was

handed over a warning letter for his misconduct. However, no such letter

dated 7th January, 1992 was served on the petitioner. No charge-sheet was

served on the petitioner regarding alleged misconduct on his part nor any

enquiry was held, thus, termination was punitive and bad in law. Neither

any notice was served on the petitioner nor any notice pay in lieu of notice

period was tendered, thus, Section 25-F of the Industrial Disputes Act, 1947

(for short, the Act) was violated rendering the termination illegal. It was

prayed that petitioner be reinstated with full back wages and continuity of

service.

4. In written statement, respondent alleged that it was not an industry

within the meaning of the Act. It was stated that in terms of appointment

letter the petitioner was put on probation for 160 working days not including

holidays and Sundays. Petitioner had not completed 160 days and, in fact,

completed only 152 working days. On 7th January, 1992 petitioner was

handed over a warning letter. Petitioner had committed theft of documents.

It was denied that termination letter dated 31st January, 1992 was in

violation of principles of natural justice. It was denied that termination was

stigmatic. It was stated that termination was simplicitor on account of non-

confirmation of probation period.

5. Following issues were framed by the Industrial Adjudicator on 27 th

July, 1995:-

"1. Whether the management is not an industry as defined under Industrial Disputes Act?

2. Whether the workman left the service of his own, if so, its effect? O.P.M.

3. As per terms of reference."

6. Upon scrutiny of material on record Industrial Adjudicator has held

that petitioner had worked for less than 240 days in a year preceding the date

of his termination, thus, compliance of Section 25-F of the Act was not

necessary. Reliance was placed on Karnal Central Coop. Bank Ltd. vs. P.O.

Industrial Tribunal-cum-Labour Court, Rohtak & Ors. 1994 II LLJ 1005

wherein it is held thus:-

"The Industrial workers who do not complete 240 days of service have not industrial rights under the Act and cannot, therefore, avail of the machinery provided under the Act for the settlement of their disputes. The policy of the Act draws a distinction between those with services of 240 days and more and others with less. It was not necessary for the management in the present cases to comply with the provisions of Sec. 25(H) of the Act before dispensing with the service of the workman as he admittedly had less than 240 days of service."

7. Reliance was also placed on Ram Gopal Saini vs. The Judge, Labour

Court No. 2, Jaipur and Others 2001(89) FLR 778 wherein it has been held

thus:-

"The petitioner has not completed 240 days of working in a calendar year, therefore, compliance of Section 25-F of the Act was not required in the instant case. Further the appellant utterly failed to prove this fact that respondents have violated the provisions of section 25-H and 25-G of the Act by way of any documentary evidence before the Labour Court which was to be proved by the appellant. Mere mentioning the names of

the junior persons, who have alleged to be appointed after retrenchment of the appellant does not serve the purpose".

8. Industrial Adjudicator has also placed reliance on Indian Silk

Manufacturing Co. (P) Ltd. vs. Gamprasad R. Jaiswal & Ors. (1998) II LLJ

116 Bom on the point that compliance of Section 25-F of the Act was not

necessary in the cases where workman had failed to prove that he was in

employment for a continuous period of 240 days in a calendar year

preceding the date of termination. Industrial Adjudicator has further held

that petitioner was on probation and since his termination was within the

probation period without casting any stigma it was not open to challenge.

Reliance was placed on Pavanendra Narayan Verma vs. Sanjay Gandhi PGI

of Medical Science and Another AIR 2002 SC 23 wherein it was held that

termination of services of a probationer merely on the ground that his work

and conduct was not found satisfactory is not stigmatic. Reliance was also

placed on H F Sangati vs. RG High Court of Karnataka & Ors. 2001 89 FLR

231 SC wherein it was held that a probationer could be discharged from

services, inter alia, on account of unsuitability for the service.

9. Learned counsel for the petitioner has vehemently contended that in

its reply before the Conciliation Officer respondent had alleged that

petitioner had committed theft of files and an FIR was registered in this

regard. However, no such FIR was registered nor such allegation was

proved before the Industrial Adjudicator, thus, termination of petitioner on

the alleged misconduct was bad in law, inasmuch as, the misconduct was

„foundation‟ of termination order. Termination on the ground of misconduct

without holding enquiry was against the principles of natural justice and was

illegal. Reliance has been placed on Anoop Jaiswal vs. Government of India

& Another AIR 1984 SC 636. I do not find any force in this contention of

the learned counsel for petitioner.

10. A perusal of termination letter clearly indicates that his termination

was simplicitor during the probation period, without attaching any stigma.

Termination letter dated 31st January, 1992 reads as under :-

"SURYA KIRAN MAINTENANCE SOCIETY SURYA KIRAN BLDG. 19, KASTURBA GANDHI MARG, NEW DELHI - 110001

No. SKMS/Per/RKD/92 Dated 31/1/92.

Mr. Ramesh Kumar Dogra 190, Gopal Park, Chander Nagar New Delhi - 51.

      Subject:       TERMINATION OF SERVICES FROM SURYA
                     KIRAN MAINTENANCE SOCIETY AS AN
                     ACCOUNTANT.


       Dear Sir,

Further to our letter No. SKMS/Per/RKD/92 dated 07 Jan 92 handed over to you personally by the undersigned and receipt obtained.

It is to inform you that you had shown no improvement in your conduct for which you were apprised to improve by 31st Jan 92 as such your services are hereby terminated w.e.f. 31/1/92 (AN). This warning was given to you very clearly in our letter dated 7/1/92.

Please also note that as you were in the probation period till today, your services are terminated and no confirmation to extend your services is granted to you.

As you had left the office by observing holiday (1/2 day), the letter is posted to you by Regd. Post (AD) and UPC Post.

Yours faithfully Sd/ Estate Manager (Major DL Sharma) (Retd.)"

11. Relevant clauses of appointment letter dated 15th July, 1991 reads as

under :-

2. We are pleased to inform that you have been selected in the interview held on 9/7/91 and you are hereby offered the post of „ACCOUNTANT‟ in Surya Kiran Maintenance Society, Surya Kiran Building, 19 KG Marg, New Delhi-1. You will join the duty on 1/8/91 and you would be considered having joined the duty from the date you, perform the duty. You would produce medical certificate for your fitness for duty from the Recognised Medical Practitioner (MBBS) on the day for you join the duty.

3. You would be on probation period for 160 days (working days). After going through your performance, you would be confirmed. Your charter of duties is attached.

12. A perusal of appointment letter makes it clear that petitioner joined

the respondent on 1st August, 1991 and was put on probation for 160

working days. It has been specifically mentioned in Clause 3 of the

appointment letter that after going through the performance confirmation

will follow. It is well settled that confirmation is not automatic on

completion of probation period. A probationer has to be confirmed by

issuing a letter in writing. In this case, no such letter was ever issued,

inasmuch as, in the letter of termination it is mentioned that "as you were in

the probation period till today, your services are terminated and no

confirmation to extend your services is granted to you". Thus, probation of

the petitioner was not confirmed and he was terminated during the probation

period. The termination order is not stigmatic as no misconduct has been

alleged therein. No other document was placed on record by the petitioner

to indicate that any memo was issued to him regarding theft of files and the

said act was „foundation‟ of the termination order. If some misconduct is

„motive‟ for issuances of letter of termination simplicitor the same would

not be punitive in nature. In case misconduct is „foundation‟ of the

termination only then termination can be termed as punitive. Judgment

relied upon by the learned counsel for the petitioner is in the context of

different facts and is of no help to the petitioner.

13. Learned counsel for the petitioner has next contended that termination

of petitioner amounts to retrenchment within the meaning of Section 2(oo)

of the Act, thus, compliance of Section 25-F of the Act was mandatory. Non

compliance of Section 25-F renders the retrenchment illegal, thereby

entitling the workman reinstatement straightway. It is contended that

Section 25-F of the Act has to be complied with even in respect of casual

workers. Petitioner was appointed on a regular post, thus, compliance of

Section 25-F was mandatory. Reliance has been placed on S.M. Nilajkar &

Ors. vs. Telecom, District Manager, Karnataka JT 2003 (3) SC 436. I do not

find any force in this contention of learned counsel either. Relevant it

would be to refer to Section 25 of the Act which reads as under :-

"Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month' s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service] or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."

14. A bare perusal of aforesaid provision makes it clear that Section 25-F

of the Act will be attracted in the cases where workman is in continuous

service for not less than one year with the employer. „Continuous service‟ is

defined in Section 25-B of the Act which reads as under :-

"(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock- out or a cessation of work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) ........................."

15. A perusal of aforesaid provision makes it clear that if a workman

renders 240 days continuous service in a calendar year he shall be deemed to

be in continuous service for a period of one year. In this case, petitioner had

not completed 240 days continuous service in a calendar year preceding his

termination, thus, Section 25-F is not attracted.

16. For the foregoing reasons, writ petition is dismissed being devoid of

merits.

A.K. PATHAK, J.

NOVEMBER 26, 2013 ga