Karnataka High Court
Mary Kutty vs The Hindusthan Times And Anr. on 24 March, 2006
Equivalent citations: ILR2006KAR1772, 2007(3)KARLJ294, 2006 (3) AIR KAR R 400
Author: Anand Byrareddy
Bench: Anand Byrareddy
ORDER Anand Byrareddy, J.
1. The Petitioner was appointed by the respondent as a Telex Printer Operator on a salary of Rs. 600/-, as on 10.10.1984. She was designated as a part time Telex Printer Operator at Bangalore, though she was doing full time work of typing, telephone, operator, Clerical and cutting and filing of news paper work. She continued to discharge her duties and the respondent management had changed her designation as a trainee-Clerk with additional responsibilities. This was a ruse adopted by the management in order to circumvent the legal provisions of the Industrial Disputes Act, 1947. The said workman even after change of designation was continued to be treated as a trainee and the period of appointment as a trainee was extended from time to time. The last of such extension was by a letter dated 12.1.1990 as at Ex.M.5, extending the training period from 2.1.1990 to 31.5.1990. By a letter Ex.M.8, the petitioner was informed that if she does not improve her performance and behaviour, she would be automatically removed from 30.11.1990. Thereafter by issuing Ex.M-9, she was terminated whereunder, the respondent management had stated as follows:
You had been allowed to undergo training as Junior Clerk/Typist vide our letter dated May 23, 1989 for a period of six months. As during training period you failed to pick up and learn the work and also your behaviour was not found to be satisfactory, the training period was extended twice.
In spite of the ample opportunity given to you, you have failed to pick up the work and improve your behaviour. The arrangement with you, therefore, will stand terminated on the expiry of the extended training period on November 30, 1990.
Thereafter, the petitioner had made a respresentation seeking reinstatement. The management not having complied, it is in this back ground that the petitioner had raised an industrial dispute by filing an application under Section 10(4-A) of the Industrial Disputes Act, 1947. The Labour Court having found that since the petitioner was appointed as a trainee, her service was terminated after the completion of the training period and it cannot be said that there is a violation or contravention of the provisions of the Industrial Disputes Act, 1947. It is this, which is under challenge.
2. Smt. Shwetha Anand, appearing for the petitioner would submit that it is not disputed that though the petitioner was discharging the work of a full time employee, she has been designated as a trainee and that her training period was extended from time to time. The petitioner had borne this treatment out of sheer desperation as she did not have another alternative and she is aggrieved even if her status is taken as a trainee. The fact that the order of designation is per se stigmatic would render the order illegal. The Labour Court was therefore in error in proceeding to hold that there is no violation or contravention of the provisions of the Industrial Disputes Act, in the facts and circumstances. In that, the Labour Court had only considered whether the terms of appointment considered the status of the petitioner as being, that of a trainee and therefore holding that the management was in order in proceeding to terminate the services of the petitioner, after the end of such training period, even though the petitioner was appointed in the year 1984 and had continued discharging full time duties till the year 1990 when she was unceremoniously dismissed by the stigmatic order referred to herein above. The counsel would submit that the law laid down by the Supreme Court in the case of Wasimbeg v. State of Uttar Pradesh and Ors. , has succinctly laid down the legal proposition insofar as a probationer is concerned, as spelt at paragraphs 15 and 16 thereof, which read as follows:
15. Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this question. In those cases where the Rules provide for a maximum period of probation beyond which probation cannot be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab v. Dharam Singh ; M.K. Agarwal v. Gurgaon Gramin bank ; Om Prakash Maurya v. U.P. Co-operative Sugar Factories Federation, Lucknow ; State of Gujarat v. Akhilesh C. Bhargav .
16. However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation beyond the maximum period, the Courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh v. State of Punjab which was the decision of a Bench of seven Judges where the principle of probation not going beyond the maximum period fixed was reiterated but on the basis of the Rules which were before the Court, this Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corporation, Raipur v. Ashok Kumar Misra . In Satya NarayanAthya v. High Court ofMadhya Pradesh , although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence the termination was upheld.
She would thereafter submit that in the case of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre For Basic Science, Calcutta and Ors. the Supreme Court has dealt with cases on the question of stigma at paragraphs 30 and 31 as follows;
30. We may advert to a few cases on the question of stigma. We shall refer initially to cases where a Special Rule relating to termination of probationer required a particular condition to be satisfied and where the said condition was referred to in the order of termination. In Hari Singh Mann v. State of Punjab , the probationer was governed by Rule 8(b) of the Punjab Service Rules, 1959 and the fact that the word 'unfit' as required by the Rules was used, was held not to be a ground for quashing the order on the ground of 'stigma', for to hold that in amounted to 'stigma' would amount to robbing the authority of the right under the rule. Similarly where a Rule required a show cause notice issued and an inquiry to be conducted before terminating probation, such as Rule 55-B of the Central Civil Services (CCA) Rules, there would be no question of characterising the simple order of termination as one founded on the allegations which were the subject of the inquiry. That was because, in such a case, the purpose of the inquiry was to find out if the officer was to be continued in service and not to find out if he was guilty. State of Orissa v. Ram Narayan Das ; Ranendra Chandra v. Union of India . In State of Gujarat v. Akhilesh C. Bhargav , the termination order merely referred to Rules 12(bb) of the Indian Police Service (Probationer) Rules, 1959. It was contended that the reference to the said Rule 12 (bb) itself amounted to a stigma but this was rejected following Ram Narayan Das case .
31. We shall next advert to some more cases and to particular words employed while passing orders of termination of probationers. In State of Bihar v. Gopi Kishore Prasad AIR 1960 SC 6889, a show cause notice was given seeking a reply to the allegation regarding the officers' bad reputation and in regard to certain perverse decisions given by him in his judicial functions during the period of probation. The termination order stated that certain facts were brought to the notice of the Government about his unsatisfactory work and conduct and that grave doubts had arisen about his integrity which indicated that he was a corrupt and an unreliable officer. It was also said that confidential inquiries revealed that he was a corrupt officer and that annual confidential reports of his superior officer referred to his bad reputation and therefore his work during the period of probation was not satisfactory. The Constitution Bench of this Court held that it was a clear case of stigma and the matter indeed required a full-fledged departmental inquiry under Rule 55 of the CCS (CCA) Rules. In Jagdish Mitter v. Union of India the use of the words "undesirable to be continued" in service was held by the Constitution Bench to amount to stigma. This case was followed in State of U.P. v. Madan Mohan Nagar where the order said that the officer had 'outlived his utility' and such an order was held to amount to a stigma. Jadish Mitter was approved by the Seven Judge Bench in Samsher Singh's case on this point. But in Kanwar Arun Kumar v. U.P. Hill Electronics Corporation , the termination order used the word 'unsatisfactory' and the same was upheld as it did not amount to stigma. In two cases arising under industrial law, one in Chandu Lal v. Pan American World Airways and Kamal Kishore Lakshman v. Pan American Land Ways Inc. where the termination order used the word 'loss of confidence', the said orders were held to contain stigma and therefore punitive. In Jagdish Prasad v. Sachiv, Zila Gaon Committee , the termination order stated that the officer had concealed certain facts relating to his removal from an earlier service on charge of corruption and therefore not suitable for appointment. This was held to amount to stigma. But in Union of India v. R.S. Dhabe , where the order merely said found unsuitable', it was held not to amount to stigma. In Allahabad Bank Officers Association v. Allahabad Bank , the order was one of compulsory retirement and said that a Special Committee had unanimously recommended for the officers' compulsory retirement, that the Chairman and Managing Director agreed with the Committee's views regarding want of application to Bank's work and lack of potential and that the officer was also found to be not 'dependable'. This Court after referring to a number of cases explained that the words 'not dependable were used, in the context of the facts of the case and not as an aspersion on his reputation but in relation to his work and were to be understood in that sense in the setting of the words 'want of application' and or 'lack of potential'. It was observed:
Any person reading the letter on the order of compulsory retirement would not be led to believe that there was something wrong with Appellate 2 as regards his conduct or character. They would only indicate that he had ceased to be useful to the Bank in his capacity as a Manager.
Again in High Court of Judicature of Patna v. Pandey Madan Mohan Prasad Sinha it was held that termination of probationer on basis of un-communicated adverse remarks, was valid.
The counsel would submit that cases, where, there is assessment by the employer of the performance of the employee who is a trainee and thereafter proceeded to terminate the period of training therein, is not stigmatic. Allegations with regard to the character and conduct, without being preceded by an enquiry, however, would certainly be stigmatic. In the present case, she would submit that the letter of termination clearly alludes to the character and conduct of the petitioner without indicating the instance or circumstance, which warranted such reference to the conduct or character and therefore she would submit that the order of termination is clearly stigmatic and hence wan-ants interference of this Court.
3. The Counsel appearing for the respondent has significantly remained absent, even though the matter was called on several occasions namely 10.3.2006, when the counsel for the petitioner was heard for the first time. Thereafter the matter was adjourned to 15.3.2006 where again the Counsel for the respondent reamined absent and it was posted on 17.3.2006 and finally to this day. The Counsel for the Petitioner has recapitulated the legal position. It is unfortunate that the counsel for the respondent has completely ignored the case being listed for final hearing from time to time.
4. Having regard to the facts and circumstances and the case law, I agree with the counsel for the petitioner. The order of termination, impugned in the present petition, is stigmatic.
5. Accordingly the petition is allowed. The award is quashed. The respondent is directed to reinstate the petitioner. There shall however, be no order as to back wages.