Calcutta High Court
Kusum Products vs State Of West Bengal And Ors. on 19 March, 2002
Equivalent citations: (2002)2CALLT125(HC), [2002(94)FLR321]
JUDGMENT D.P. Kundu, J.
1. In this writ proceeding the writ petitioner has challenged the award dated 6.8. 1988 passed by 1st Industrial Tribunal West Bengal in Case No. VIU-297/84.
2. In the award the learned Tribunal inter alia, held as follows:
"Considering all the aspects of this case I am of opinion that withholding of standing orders in this case gives benefit to the concerned workmen. No explanation has been given for non-production of standing orders before this Tribunal by the Company.
In view of Appendlx-A, Model Standing Orders, Clause (3) (a) of Rule 10 of Bengal Industrial Employment (Standing Orders) Rules, 1945 I have no hesitation to hold that the concerned workman is deemed to have been confirmed by implication as he worked for 340 days. In view of my findings above I am constrained to say that the termination of services of the concerned workman Sri Swapan Bhattacharjee is unjustified.
M/s. Kusum Products Ltd. Is directed to reinstate the concerned workman Sri Swapan Bhattacharjee in service in permanent post together with all back wages and other amunltles.
This is my award"
3. By virtue of letter dated December 21, 1982 issued by the Works Manager of the respondent company the petitioner was appointed as Assistant on probation for a period of six months from date of joining duty with a provision to extend the period of probation, if required. It was specifically stated in the aforesaid letter of appointment dated December 21, 1982 that unless the petitioner is confirmed in writing he should continue to be on probation. The relevant part of the letter of appointment dated December 21, 1982 is set out hereufider:
"We are pleased to offer you an appointment as 'Assistant* in our Time Office on a basic salary of Rs. 270/- (Rupees Two hundred seventy only) per month, excluding Variable Dearness Allowance you will be in 'C' grade. Your date of Joining duty is 1st December, 1982.
You will be on probation for a period of six months from the date of your Joining duty which may be extended. If required. Unless you are confirmed in writing you shall continue to be on probation.
Further terms and conditions shall be mentioned in usual appointment letter which will be made over to you in due course.
Please sign the duplicate copy of this letter Indicating your acceptance."
4. By a letter dated December 10, 1983 issued by Works Manager of the respondent Company services of the petitioner were terminated with effect from 11th December, 1983 on the ground that the management had not found the petitioner suitable/fit for the Job. The relevant part of the letter of termination dated December 10, 1983 is set out hereunden "You are hereby Informed as under:
1) That you were appointed by the Company to work as an Assistant in the Time Office of its factory at Rlshra in terms of its letter of appointment dated the 21.12.82 on extended probation for a period of six months from the date of your joining duty. It was also expressly stipulated in the said letter of your appointment as 'Probationer' that unless you were confirmed in writing you shal continue to be on probation.
2) That the management has not found you suitable/fit for the Job.
3) That the management, without casting any Imputation/stigma against you, hereby terminates your such employment with this Company with effect from tomorrow the 11th December, 1983.
4) That as an abundant precaution, but without prejudice to its rights and contentions in the matter of such termination of your services, the following amounts viz:
i) One month's wages in lieu of notice,
ii) 15 days wages as compensation and in addition to your earned wages etc. as due, have this day been remitted to you per postal Money Order at you last recorded address."
5. Consequent upon termination of service of the petitioner an Industrial dispute was raised and Government of West Bengal, Labour Department by an order dated 28.11.84 referred the following Issues to the 1st Industrial Tribunal, West Bengal for adjudication.
"ISSUE Whether the termination of service of Shri Swapan Bhattacharjee is justified? To what relief, if any is he entitled?"
6. The case of the workman is that as he was kept in service beyond the maximum period of probation he should be deemed to have been confirmed and, therefore, a permanent workman within the meaning of Model Standing Order No. 2(3)(a) and his service could not be terminated in the way it was sought to be terminated by the letter of termination dated December 10, 1983. Model standing Order No.2(3)(a) reads as follows:
"(a) "permanent workman" means a workman who has been engaged on a permanent basis and includes any person, who has satisfactorily completed a probationary period of six months in the same of another occupation in the Industrial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal strike) or involuntary unemployment:
Provided that the probationary period of any person may be extended upto a maximum period of nine months if his service is not considered satisfactory at the end of the initial probationary period of six months."
7. In this connection Model Standing Order No. 2 (3)(b) which has defined the term "probationer" is also important to take note of. The said Model Standing Order No. 2(3)(b) reads as follows :
(b) "probationer" means a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed six months' service or the further extended period of service in that post as provided in the proviso to Clause (a)."
8. The case of the Company is that when the letter of appointment dated December 21, 1982 clearly stipulated that unless the workman is confirmed in writing he should continue to be on probation then unless a written order of confirmation is passed confirming the workman, the workman cannot be deemed to have been confirmed and a permanent workman of the Company. The learned Advocate for the Company argued that even assuming that the provisions of Model Standing Orders apply, as held by the learned Tribunal, then also the workman cannot be deemed to be a permanent workman before working as a probationer for 15 months followed by an order of confirmation.
9. The learned Advocate for the workman in support of his argument that the workman should be deemed to be a permanent workman after completion of the period of probation referred to and relied upon the following decisions.
1. The State of Punjab v. Dharam Singh ;
2. Dayaram Dayal v. State of M.P. ;
3. Wasim. Beg v. State of Uttar Pradesh ;
4. Karnataka State Road Transport Corporation and Anr. v. Manjunath (AIR 2000 SC 1070),
5. Cooperative Central Bank Ltd. v. Addl, Industrial Tribunal, Andhra Pradesh ;
6. Sukdev Singh. v. Bhagat Ram
10. The learned Advocate'for the Company in support of his argument referred to and relied upon the following decisions.
1. Express Newspapers, Ltd, v. Labour Court Madras ;
2. State of U.P. v. Akbar Ali ;
3. Kedar Wath Bahl v. The State of Punjab ;
4. Dhanjtbhat Ramjlbhai v. State of Gujarat (AIR 1985 SC 606);
5. Satya Narayan Athya v. High Court of M.P. ;
6. Director, Ministry of Coal and Ors. v. Bimlendu Kumar (1997 SCC 217);
7. High Court of Madhya Pradesh v. Satya Narayan Jhavar ;
8. Parry & Co. Ltd. v. P.C. Pal (1970 (2) LLJ 429);
9. Shankar Chakravarti v. Britanla Biscuit Co. Ltd. (1979 Lab. 1C 1192);
10. Collector of Customs. Calcutta v. Biswanath Mukherjce (1974 CLJ 251)
11. In State of Punjab v. Dharam Singh (supra), a five Judges Bench of Supreme Court held that when the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on a probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, then he cannot be deemed to continue in that post as a probationer by implication. The Supreme Court held that such an implication is negatived by the service rules forbidding extension of the probationary period beyond the maximum period fixed by It. It was held by Supreme Court that in such a case it is permissible to draw the Inference that the employee allowed to continue in the post on completion of the maximum period of probation had been confirmed in the post by Implication.
12. In Dayaram Dayal v. State of M.P. (supra) a two Judges Bench of Supreme Court considered Rule 24 of Madhya Pradesh judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 and following Constitution Bench decision of Supreme Court in State of Punjab v. Dharam Slngh (supra) held that the incumbent would be deemed to have been confirmed on the expiry of four years maximum period of probation prescribed under the rules.
13. In Wastm Beg v. State of Uttar Pradesh (supra) Supreme Court held that in the said case no maximum period of probation was prescribed either by the letter of appointment or by the rules. It was held that the rules laid down that an employee shall be deemed to have been a confirmed employee after he has successfully completed the period of probation. From the affidavit filed by the Corporation as well as the report of the Managing Director it was clear to the Court that the Incumbent was considered by the Board as having satisfactorily completed his period of probation on 9.1.1979 i.e. before expiry of one year period of probation and was considered as a regular employee from 10.1.1979. Thus in view of the stand taken, the Incumbent had successfully completed the period of probation and he was deemed to have become a confirmed employee in terms of the rules referred to in Wastm Beg v. State of Uttar Pradesh.
14. The question of deemed confirmation, which is dependent upon the service rules, has been subject matter of consideration before the Supreme Court, times without number and there are three lines of cases on this point. It is Important to refer to High Court of Madhya Pradesh v. Satya Narayan Jhauar (supra) as this case was referred to a three Judges Bench of Supreme Court because the correctness of the decision in Dayaram Dayal v. State of M.P. (supra) was doubted by a two Judges Bench of Supreme Court. In High Court of Madhya Pradesh v. Satya Narayan Jhauar (supra) large number of decisions of Supreme Court were considered by a three Judges Bench of Supreme Court. The decisions considered by the three Judges Bench Include (1) The State of Punjab v. Dharam Singh (supra), (2) Dayaram Dayal v. State of M.P. (supra) and (3) Wasim Beg v. State of Uttar Pradesh (supra). In paragraph 11 of the reported decision in High Court of Madhya Pradesh v. Satya Narayan Jhavar (supra) the three Judges Bench observed as follows :
"The question of deemed confirmation in service jurisprudence, which is dependent upon language of the relevant service rules, has been subject matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that where while there is a provision in the rules for initial probation and extension is also provided beyond which it is not permissible to extended probation. The Inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been passed. The last line of cases is where though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
15. It is Important to mention that decision in State of Punjab v. Dharam Singh (supra) rendered by Constitution Bench of Supreme Court was approved by seven Judges Bench of Supreme Court in Samsher Singh v. State of Punjab but it was distinguished because of the language of the relevant rule specially explanation to the said rule.
16. In High Court of M.P. v. Satya Narayan Jhavar (supra) the three Judges Bench of Supreme Court held that the decision of two Judges Bench of Supreme Court in Dayaram Dayal case (supra) did not lay the correct position with regard to the interpretation of Rule 24 of the rules which was under consideration in Dayaram Dayal case (supra).
17. In paragraph 37 of Satya Narayan Jhavar case (supra) the three Judges Bench of Supreme Court clearly stated the law relating to deemed confirmation of a probationer. The said paragraph 37 is set out hereunder:
"Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant rules, it can be inferred on the basis of the relevant rules by implication, as was the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation has been provided in service rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to Seven Judges Bench Judgment of this Court in the case of Samsher Singh (supra) and Constitution Bench decisions in the cases of Sukhbans Stngh (supra), G.S. Ramaswamy (supra) and Akbar All Khan (supra)."
18. In Karnataka State Road Transport Corporation v. S. Manjunath (supra) the decision was reddered by two Judges Bench of Supreme Court. In S. Manjunath (supra) Supreme Court considered Regulation No. 11 of Karnataka State Road Transport Corporation Service Regulation and in view of the words used in the said Regulation 11 the two Judges Bench of Supreme Court in S. Manjunath (supra) held that after maximum period of probation the service of the employee cannot be put to an end except by means of departmental disciplinary proceedings after following the mandatory requirements of law.
19. From the discussions made hereinabove it is clear that confirmation or deemed permanent servant of a probationer, who is a new recruit, entirely depends upon the terms of appointment contained in the letter of appointment and the terms contained in the rules guiding the service conditions of such workman. In the instant case, in the letter of appointment dated December 21, 1982, it was clearly stated that the concerned workman would be on probation for a period of six months from the date of joining duty which may be extended if required. It was also clearly stated that unless the workman was confirmed in writing he should continue to be on probation. Admittedly no order of confirmation in writing was issued. Under the circumstances it should be presumed that his period of probation was extended. His service was terminated with effect from 11th December, 1982. Thus the workman concerned worked less than 12 months. The question for determination is whether the workman concerned worked beyond the maximum period of probation. Assuming that Model Standing Orders apply in the Instant case it has to be seen whether under Model Standing Order No. 2(3)(a) the workman can be considered as a "permanent workman". In Model Standing Order No. 2(3)(a) It has been clearly stated that the initial period of probation is six months which may be extended upto a maximum period of nine months. Thus it is abundantly clear that under proviso to Model Standing Order No. 2(3)(a) the extension period of probation can be for a maximum period of nine months. Initial period of probation is six months. Extension period of probation is maximum nine months. Thus a workman can be kept as a probationer for a total period of fifteen months. The learned Tribunal wrongly came to the conclusion that under the Bengal Model Standing Orders the maximum period of probation may be nine months and on the expiry of nine months the concerned workman is deemed to be confirmed by implication. If a workman is allowed to work as a probationer beyond fifteen months then in view of Model Standing Order No. 2(3)(b) and in view of Supreme Court decision in Dharam Stngh (supra) the workman will be deemed to be a "permanent workman" within the meaning of Model Standing Order No. 2(3)(a). Admittedly in the instant case no order of confirmation in writing was issued. Admittedly the workman concerned worked as a probationer less than twelve months. Therefore, both in terms of the letter of appointment dated December 21, 1982 and Model Standing Order 2(3)(a) the workman concerned cannot be treated as a 'permanent workman".
In view of the discussions made hereinabove I am of the opinion that the decision of the learned Tribunal that the concerned workman should be deemed to have been confirmed by implication as he worked for 340 days is not good in law and should therefore be set aside.
20. Admittedly the writ petitioner has its own standing order certified under Industrial Employment (Standing Orders) Act. 1946. Under the circumstances, in view of Section 12A of the Industrial Employment (Standing Orders) Act, 1946, Model Standing Order cannot have any manner of application after the certified standing order came into operation. Therefore, in the facts and circumstances of the present case. Model Standing Order has no manner of application. Non production of certified standing order before the learned Tribunal may Justify inference adverse to the interest of the company but that cannot Justify application of Model Standing Order in view of the Section 12A of the Industrial Employment (Standing Orders) Act. 1946. The learned Tribunal could have directed the company to produce the certified standing orders before the learned Tribunal. The learned Tribunal never directed the company to produce the certified standing order though it was in evidence that the company is having a certified standing order. The learned Tribunal erred in law in relying upon the Model Standing Orders.
21. In paragraph 8 of the written statement before the learned Tribunal the company stated as follows :
"The allegations contained in paragraphs 5 and 6 of the said written statement of the workman concerned are wholly after-thoughts, concoctions and are denied. The said Shri Bhattacharjee's service having not been found satisfactory during the period of probation which continued to be so after the initial period of such probation, the same were terminated and in terminating the service of Shri Bhattacharjee, the Company as an abundant precaution complied with relevant provisions for payment of his legal dues as condition precedent and which were tendered to him as a part of the same transaction. The Company categorically and vehemently denies that the said letter of termination was accepted by the said Shri Bhattacharjee under duress or under compulsion and/or intimidation as alleged."
22. In his evidence O.P.W-1 the Personnel Manager of the Company stated that from time to time the concerned workman was Instructed to do his work but in spite of such instructions his services were found to be unsatisfactory even in extended period and as such his services were terminated. Thus it is clear that both in the pleadings and also in the evidence the company stated that the work of the concerned workman, while functioning as a probationer, was not found to be satisfactory.
23. In view of the discussions made hereinabove I set aside the award passed by the learned Tribunal which is under challenge in the present writ proceeding. The matter is sent back to the learned Tribunal for deciding the dispute in accordance with law within six months from the date of communication of this order.