Karnataka High Court
The Management, Indian Institute Of ... vs Smt. K. Shashikala on 17 February, 2005
Equivalent citations: 2005(3)KARLJ134, 2005 LAB. I. C. 1661, 2005 AIR - KANT. H. C. R. 780, (2005) 3 KANT LJ 134, (2005) 5 SERVLR 774, (2005) 2 KCCR 119
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
By the impugned award, the Central Government Industrial Tribunal-cum-Labour Court, Bangalore (hereinafter referred to as 'Tribunal' for short) allowed the reference in C.R. No. 10 of 2001 and set aside the Order of termination passed by the Director General, Indian Institute of Horticultural Research, Indian Council of Agricultural Research ('ICAR') (hereinafter referred to as 'Management' for short). and consequently, directed the 'management' to reinstate the workman-respondent herein to her original post which she was holding on the date of termination with fall back wages and continuity of service.
2. The records disclose that the workman-respondent was appointed to the post of T-6 (Technical Officer/Librarian) on 17-3-1992 in the establishment of Indian Institute of Horticultural Research (ICAR) on a temporary basis. She was put on probation for a period of two years, which was extended from time to time. Ultimately, her services were terminated by Order dated 29-6-1996 under Rule 5 of the ICAR (Temporary Service) Rules, 1965. The workman-respondent raised Industrial Dispute before the conciliation officer against the Order of termination on various grounds. As the conciliation proceedings failed, the Central Government referred the matter to the 'Tribunal' for adjudication of the dispute. The dispute, which was referred to the "Tribunal', is as under:
"Whether the action of the 'Management' of Indian Institute of Horticultural Research, Bangalore in terminating the services of Smt. K. Shashikala, Ex-Librarian (T-6) is legal and justified? If not, to what relief Smt. K. Shashikala is entitled?"
3. The workman examined herself as M.W. 1 and got marked 9 documents in support of her case. On behalf of the 'management', an Assistant working in the Administrative Department of the establishment of 'management' was examined as M.W. 1 and 9 documents were got marked. After appreciating the oral and documentary evidence adduced by the parties and after hearing, the Tribunal set aside the Order of termination and directed the 'management' to reinstate the workman to her original post, which she was holding on the date of termination.
4. Sri S. V. Shastry, learned Counsel appearing on behalf of the management-petitioner made three-fold submissions. Firstly, he contended that the petitioner establishment is not an "industry" and that the respondent is not the "workman" as defined under the provisions of the Industrial Disputes Act, 1947 ('Act' for short). Secondly, he contended that the respondent is governed by the provisions of the Indian Council of Agricultural Research (ICAR) (Temporary Service) Rules, 1965 (hereinafter referred to as 'Rules' for short) and therefore, the provisions of the I.D. Act is riot applicable; that as the petitioner establishment is a Central Government undertaking, the respondent-workman shall have to approach the Central Administration Tribunal for getting her grievances redressed. Thirdly, he contended that since the respondent-workman was still under probation, the termination Order issued against; her is an Order of discharge simpliciter and that therefore, no enquiry need be held against the respondent; that the discharge of a probationer under the Rules without any stigma to her employment does not amount to termination and consequently, the. dispute itself is not maintainable. On these grounds, he prayed for setting aside the award passed by the 'Tribunal'.
5. Per contra, Sri N. G. Padake, learned Counsel appearing on behalf of the respondent-workman vehemently contended that the petitioners' establishment is an industry and that the respondent is the workman. The contention of the petitioner that the petitioners' establishment is not an industry, was not taken either before the conciliation proceedings or before the Labour Court; Such a contention is taken for the first time before this Court; that the petitioners' establishment is a society registered under the provisions of Karnataka Societies Registration Act, 1960; looking to the nature of work entnisted to the petitioners' institution, it is clear that the petitioner is an industry; that by the activities of the petitioners' institution, the farming community in the country are the direct beneficiaries apart from medicinal industries; with the help of the petitioner, the farming community can produce good and sufficient quantity of foodgrains, fruits, vegetables and medicinal plants; that when two avenues viz., Central Administrative Tribunal and the Labour Court/Tribunal are available to the employee/workman, he is entitled to choose any one of forum for getting his/her grievances redressed; that Section 28 of the Administrative Tribunals Act does riot exclude the jurisdiction of the Industrial Tribunal/Labour Court constituted under the I.D. Act from adjudicating the question referred to it by the appropriate Government; that the action of the petitioner in terminating the services of the respondent-workman bristles with mala fides inasmuch as the impugned Order of termination is arbitrary and it is nothing but colourable exercise of power by the petitioner. Finally, he contended that since the higher officer in library Section or the officer who supervises the day-to-day work of the respondent is not examined before the Tribunal on behalf of the 'management', the Tribunal has rightly held that the petitioner has failed to establish that the Order of termination is just and proper. On these amongst other grounds, he prayed for dismissal of the writ petition.
6. Ongoing through the statement of objections filed by the petitioner herein before the 'Tribunal', it is clear that the petitioner herein has not at all contended before the Tribunal that the petitioner is not an industry and that the respondent is not workman. It is also not pleaded that the petitioners' establishment is not engaged in any trade or business. That apart, the petitioner has not placed any evidence before the Tribunal to demonstrate prima facie about its function/activities and its ultimate benefits to the society. Under such circumstances, the 'Tribunal' did not have any occasion to deal with the question, as to whether the petitioner is an industry or not. In view of the same, the Tribunal rightly, has only dealt with the question referred to it by the Government. By raising such question relating to the jurisdiction of Industrial Tribunal, the petitioner-management has impliedly questioned the validity of the Order of reference made by the Central Government on the ground that the reference does not pertain to. Industrial Dispute. Since there was no such contention raised either before the conciliation proceedings or before the 'Tribunal' and in the absence of evidence to that effect before the 'Tribunal' the Labour Court/Tribunal, in my view, has rightly thought it fit not to traverse beyond the points of dispute referred to it, particularly, when its jurisdiction has been preserved by Section 28(b) of the Administrative Tribunals Act, 1985. The question of fact, which is not raised before the Tribunal, cannot be allowed to be raised in these writ proceedings. Hence the first contention of the petitioner fails.
7. It is not in dispute that the petitioner is a society registered under the provisions of Societies Registration Act. The petitioners' main contention before the 'Tribunal' was that in view of the constitution of Central Administrative Tribunal, all the service matters of ICAR are to be adjudicated only by the Administrative Tribunal and that therefore, the Industrial Tribunal or Labour Court has no jurisdiction to decide such matters. There cannot be any disptite that the service matters pertaining to the establishment of the petitioner can be adjudicated before the Central Administrative Tribunal. But in view of the express provision made under Section 28(b) of the Administrative Tribunals Act, 1985, the jurisdiction of the Industrial Tribunal/Labour Courts is saved. In pursuance to the saved provision under Section 28(b) of the Administrative Tribunals Act, 1985, the workman has got two avenues to choose for getting her grievances redressed i.e., (a) Central Administrative Tribunal, (b) the Industrial Tribunal/Labour Court. There is no embargo for the workman to choose any one of the two avenues available to her. In the case on hand, the respondent-workman has chosen the forum of Tribunal for redressal of her grievances which was accepted by the Central Government and referred the dispute to the 'Tribunal'. Thus, the proceedings before the Industrial Tribunal cannot be said to be without jurisdiction. Hence, I do not find any substance in the second contention raised by the learned Counsel for the petitioner and consequently, the same is rejected.
8. Thus, it takes me to the third and last contentions raised by the learned Counsel. Though the Order of termination dated 29-6-1996 produced at Annexure-C is silent and does not disclose the reasons as to why the respondent-workman was terminated from her service, but the same is sought to be explained by the petitioner before the 'Tribunal' that the overall performance of the respondent-workman during her probation period was not satisfactory. However, the petitioner has not examined any officer before the Tribunal who has supervised or monitored the day-to-day work of the respondent-workman to justify its action in passing the termination Order against the respondent-workman particularly, on the aspect of unsatisfactory work of the respondent during her probationary period. The 'Tribunal' has assigned certain valid reasons for coming to the conclusion. The main reason assigned by the 'Tribunal' is that no person who supervised/monitored the work of. the respondent was examined to prove the allegation of unsatisfactory work made against the respondent. There cannot be second opinion that the onus of justifying the petitioners' action in terminating the petitioner from her services is on the petitioner, particularly when the respondent-workman had made serious allegations of mala fide action and unfair labour practice against the management-petitioner in her claim petition. But strangely, the management, without examining the person who actually supervised the work of the respondent, has chosen to examine one Dwarakanath, an assistant working in the administrative wing of the petitioners' establishment, who has not supervised the work of the respondent and who is not at all concerned with the day-to-day work of the respondent-workman. His evidence before the Tribunal discloses that he was working in the administrative department. Whereas, the respondent-workman was working in the library department. The respondent was drawing higher wages and was of higher cadre than that of the witness. The said witness namely, Dwarakanath has clearly admitted in his evidence that he has no connection whatsoever with the work of library and he has nothing to do with the supervision of library section. If it is so, he cannot have personal knowledge about the performance of the respondent-workman. Except this witness, nobody is examined on behalf of the management to prove the alleged unsatisfactory work of the respondent. In this view of the matter, in my considered opinion, the Labour Court has rightly rejected the evidence of M.W. 1 who was examined on behalf of the employer and consequently held that the employer has not proved its case that the performance of the respondent was unsatisfactory during her probationary period.
9. It is relevant to observe that though certain documents have been marked on behalf of the management, none of the authors of the confidential reports or the person who has monitored/supervised the work of the respondent-workman has come forward to give evidence against the respondent before the Tribunal to speak and substantiate the contents of those documents produced on behalf of the management before the Tribunal. It is settled law that in the absence of examination of concerned officer or the author of the documents marked before the Court, no credence should be given to those documents. Merely because some documents are placed on record, those documents cannot be accepted as proof thereof unless the author of those documents or the concerned officer in-charge of library Section is examined and is subjected to cross-examination. When the respondent-workman has made specific allegation of malice against the author of those documents, there is a duty cast upon the authority who is the custodian of those documents to rebut the said allegations by examining the author or the officer in-charge of the concerned Section or department. The 'Tribunal' on facts, has come to the conclusion that those documents are not sufficient to show that the work of the workman-respondent. herein is unsatisfactory. Merely because the probationary period is extended, one cannot presume that the work of the employee is not satisfactory. Such presumption is required to be proved when it was specifically asked to do so.
10. There cannot be any doubt that an employee can be discharged during the period of probation without assigning any reason, if such action is not tainted with mala fides. In the case on hand, the respondent is discharged from her service under Rule 5 of the ICAR (Temporary Service) Rules, 1965. It is not in dispute that the Order of appointment dated 17-3-1992 discloses that the respondent will be on probation for a period of two years from the date of her joining to the post and the same is liable to be extended at the discretion of the Competent Authority. It mentions that the failure to complete the period of probation to the satisfaction of the Competent Authority will render her liable to be discharged from services. The Order of appointment further mentions that the respondent's appointment may be terminated without assigning any reason by one month's notice on either side under Rule 5 of the 'Rules'. During the period of probation, however the Appointing Authority may terminate the services of the appointee without notice and without assigning any reason and without payment of salary in lieu thereof. In view of the aforesaid position, Sri S. V. Shastry, learned Advocate appearing on behalf of the management submits that the employer-petitioner herein has got every right to discharge the employee-respondent herein without assigning any reason and without issuing any notice. In other words, he submits that it is a case of discharge simpliciter and that therefore, the Tribunal is not justified in passing the award of reinstatement.
11. If the Order of appointment gives the employer the power to terminate the services of his employee without assigning any reason during the period of probation, it would be open to him to take recourse to the said terms and terminate the services of his employee. But when the validity of such termination is challenged in the Court of law/Industrial adjudication, it would be competent to the Industrial Tribunal to enquire whether such discharge has been effected in the bona fide exercise of the power conferred on the employer by the contract or by virtue of the Order of appointment. If the discharge has been ordered by the employer in bona fide exercise of its power, then the Industrial Tribunal may not interfere with it. The words used in the Order of discharge and the form which it may have taken are riot conclusive in the matter and the Industrial Tribunal would be entitled to go behind the words and the form and decide as to whether the Order is Order of discharge simpliciter or not. If it appears that the purported exercise of the power to terminate the service of the employee was in. fact the result of the misconduct alleged against her, then the Tribunal will be justified in dealing with the dispute on the basis of the facts to find out as to whether the Order in question is really an Order of discharge simpliciter. The exercise of power in question to be valid must always be bona fide. If the bona fides of the said exercise of power are challenged, then the Industrial Tribunal would be entitled to interfere with the Order in question. It is in this context that the Industrial Tribunal must consider as to whether the discharge is mala fide or whether it amounts to victimisation or an unfair labour practice or is so capricious or unreasonable as would lead to the inference that it has been passed for ulterior motives and not in bona fide exercise of the power conferred by the contract.
12. In this regard, it is relevant to note the mala fides alleged against the employer by the workman, in this case. In her claim, statement, the workman-respondent herein lias specifically averred as under:
"3. The first party being young, education thought that she is not slave but an employee of a responsible institution of free India and that made her not to accept any groupism or to be a party to harass any co-employee in the institution and that is the reason as to why she did not accept the averture made by the Director and the instruction of the Senior Administrative Officer to socially boycott Smt. Shobha R. Kaveri, Hindi Translator of the Institute. The first party continued to associate and friendly with Smt. Shobha R. Kaveri, as a responsible colleague arid freedom lover citizen of Independent India. This was not liked by the second party and to come down the zeal of the first party, the second party issued a memo dated 23-12-1992 making false allegations against the first party. The first party gave reply dated 22-1-1993 by making statement of facts and requested the second party to withdraw the same.
4. The second party did not take the first party's demand for withdrawal of the memo issued to her in the right spirit and as such issued one more note dated 3-2-1993 stating that she did not turn upon 2-2-1993 despite being sent word through Sri K. S. Puttaswamy Gowda. The first party did not receive any such message on 2-2-1993 though worked throughout and the same she brought to the notice of her superior officer, by a letter dated 3-2-1993. The said letter was forwarded to the Senior Administrative Officer with a shara that such messages should be routed through him. This irked the Senior Administrative Officer. The second party having come to know that there is an upright officer to protect the bold and fair first party, took a short cut and issued a memo dated 16-3-1993 making still more false allegations without ascertaining truth from the first party to create records against her.
5. The second party refused to permit the first party to do Ph.D by a memo dated 12-8-1993 and denied the opportunity to apply and join the Lecture post in the University of Mysore by a note dated 21-2-1994. It also extended the period of probation of the I party by a memo dated 10-1-1995. The second party also divested the Dr. K. C. Mohan from the charge of the Library by an Order dated 5-12-1995 as he was not ready to be a party to the grand design of the Senior Administrative Officer and the Director to tarnish the career of the first party as the said officer's ego did not like the independent attitude of the first party. Both these officers tried their best to subjugate the young lady, the first party by all means.
6. The second party after denying the opportunity to the first party to acquire higher knowledge/qualification and also better employment having failed to make the first party surrender to their design, by an Order dated . . . 7-1996 terminated the first party from service by colourable exercise of power".
The workman has also deposed before the Tribunal, in support of her allegation made in the claim statement. Though the employer-petitioner herein denied the aforesaid allegations, it has not ventured to substantiate its contention urged before the 'Tribunal' that the termination of the employee-respondent herein was not arbitrary, or was not as the result of malice or colourable exercisable of power. Once there is a reference as to the justification or otherwise of a termination of probationer to the 'Tribunal' by the appropriate Government, the onus is on the authority who has passed such Order of termination to prove to the satisfaction of the 'Tribunal' that the action of the management in terminating the services of the workman is legal, justified and not tainted with mala fides, particularly in the light of the serious allegations made by the workman. As aforesaid, since M.W. 1, the only witness examined on behalf of the employer had no occasion whatsoever to supervise the work and performance of the respondent, the Tribunal thought it fit, rightly, not to accept the allegation of the unsatisfactory work which was the basis for termination of the respondent-workman. On reconsidering the entire material on record, I find that the management has not established before the Tribunal, that its action in terminating the services of the respondent-workman was bonafide, legal and justified. I do not find any illegality in the conclusion arrived at by the Tribunal under the facts and circumstances of the case. Consequently, the writ petition is liable to be dismissed. The writ petition is, therefore, dismissed.