Madras High Court
Pandian Roadways Corporation Ltd. vs Presiding Officer, Labour Court And ... on 21 July, 2000
Equivalent citations: (2001)IIILLJ1261MAD
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. Aggrieved by the award of the Labour Court, Madurai, in I. D. No. 94 of 1988, dated February 17, 1992, Pandian Roadways Corporation has filed the above writ petition.
2. According to the petitioner-Corporation, it is an undertaking of the Government of Tamil Nadu engaged in public transport. It has its own standing orders governing the service conditions of its employees. The petitioner has a right to recruit a probationer and put him on probation. The second respondent herein was engaged as a conductor Grade II by an order dated February 5, 1973. Even in the appointment order it is specifically stated that the second respondent will be under probation for a period of twelve months, which may be extended at the discretion of the management for such further period. As the performance of the second respondent was found to be unsatisfactory, his period of probation was further extended for a period of six months in three spells of two months each. Since the service of the second respondent was not found to be satisfactory even during the extended period of probation, at the end of the final period of probation, his service was terminated without casting any stigma. Aggrieved by the said action, the second respondent raised a dispute and the same was taken on file by the first respondent as I.D. No. 94 of 1988. The first respondent, on an erroneous consideration of the facts and circumstances of the case, has held that the standing order provided for probation only for six months and hence after completion of six months he is deemed to be regular, and Standing Order 13 had not been followed by the petitioner-management; accordingly, by the impugned order set aside the order of dismissal, against which the management has filed the above writ petition.
3. Heard learned counsel for the petitioner as well as the second respondent-workman.
4. The only point for consideration is whether the Labour Court is justified in holding that the period of probation provided under the standing order is only for six months and it is also justified in setting aside the order of dismissal for non-compliance with Standing Order 13 ?
5. There is no dispute that the second respondent herein was engaged as a conductor Grade II by an order dated February 5, 1973. Clauses 1 to 3 of the order, which are relevant, are extracted hereunder:
"You will be under probation for a period of 12 months, which may be extended at the discretion of the management for such further period or periods as it may deem fit.
(ii) You may be considered for confirmation on completion of the probationary period if a permanent vacancy exists.
(iii) Your services may be terminated at any time during the probation or on completion of the probation without notice, without assigning any reason and without payment of any compensation."
6. It is the case of the management that since the performance of the second respondent was found to be not satisfactory, his period of probation was further extended for a period of six months in three spells of two months each. It is also the case of the petitioner that even during the extended period of probation, the service of the second respondent was not found to be satisfactory and hence at the end of the final period of probation, the services of the second respondent were terminated without casting any stigma. By pointing out that the idea of placing a person on probation is for the purpose of testing and finding out his suitability to the post and if the employee is found to be wanting in any such qualities, namely, efficiency, honesty, sincerity and performance in work, the management has got every right to bring his probation to an end. According to learned counsel for the petitioner, in the event of such termination it cannot be contended that his services were terminated by way of punishment and an enquiry ought to have been held. Now, I shall consider the standing orders applicable to the employees of the petitioner transport corporation. The following standing orders are relevant:
"2. (1) 'permanent employee' is one who has been engaged on a permanent basis in work of a permanent nature and whose appointment has been confirmed in the form prescribed and in writing by the manager or other officer of the company authorised to do so and includes an employee who has satisfactorily completed his probationary period and on such completion is approved and confirmed by the manager or other officer of the company authorised to do so in writing to be a permanent employee.
2.(b) 'a probationer' is one who is provisionally employed to fill a permanent vacancy in a post and had not completed the period of probation, which shall be as follows:
(1) The probation period is fixed at 6 (six) months in 3 (three) spells in those other than unskilled and the third spell of six months should be sparingly used and after extraordinary circumstances. If at any time the management wants to extend the period of probation it ought to have informed the worker a week prior before the expiry of the probation. Otherwise, the worker is deemed to have completed the period of probation satisfactorily.
(2) The probation period is fixed at 6 (six) months in two spells in respect of unskilled workers. If at any time the management wants to extend the period of probation it ought to inform the worker a week before the expiry of the period of probation and otherwise the worker is deemed to have completed the period of probation satisfactorily.
13. Termination of employment of workmen.-(1) Subject to the provisions contained in Standing Order 17, no employer shall dispense with the service of any workman with not less than one year of continuous service except for a reasonable cause and without giving such workman at least one month's notice or wages in lieu of such notice.
(2) In cases of retrenchment as defined in Section 2(oo) of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), the provisions of the said Act shall apply.
(3) No order of termination of service of a workman shall be made unless the workman is informed in writing of the reasons for the termination of his services and is given an opportunity to show cause against such termination. A copy of the said order shall be communicated to the workman."
7. Mr. Rathinadurai, learned counsel appearing for the second respondent-workman, while pointing out that as per the standing orders the probation period is six months in three spells, has stated that if the management wants to extend the period of probation, they have to inform the worker a week prior before the expiry of the probation, otherwise the worker is deemed to have completed the period of probation satisfactorily. According to him, in view of the specific period prescribed in Order 2(b)(1) of the standing orders and inasmuch as the probationer comes under the definition of "employee" as per Standing Order 2, the failure to comply with Standing Order 13 vitiates the order of dismissal and the order setting aside the same by the Labour Court is well-founded. As per Standing Order 1(a), "employees" mean all work-people, male or female employed in the company.
8. The Labour Court, on the basis of Standing Order 2(b)(1), came to the conclusion that the total probation period is only for six months. According to it, the condition imposed in the appointment order of the second respondent-workman fixing probation for a period of twelve months cannot be sustained.
9. Though it is stated that it is open, to the management to prescribe an enlarged probation period, in view of the fact that the standing orders are applicable to the management and the employees, and in the absence of any such clause prescribing longer period, I am of the view that the period prescribed in Standing Order 2(b)(1) alone is applicable and the Labour Court is correct in holding that the initial appointment fixing twelve months as probationary period is contrary to their own standing orders.
10. Now, I shall consider various decisions cited by both sides. Mr. Vijay Narayan, by relying on a decision in the case of Hari Ram v. Presiding Officer 1998 (93) FJR 153 (P&H), would contend that it is open to the management while appointing a person on probation, to appoint him on probation for a period of one year. He further contended that the management can retain the probationer for a period of six months in terms of Standing Order 2(b)(1) in addition to the period prescribed in the terms of agreement. The learned single Judge of the Punjab and Haryana High Court in the said decision has approved the stand of the management.
11. With regard to the aspect, namely, whether the period prescribed in the contract of agreement prevails over the period prescribed in the standing orders, Mr. P. Rathinadurai has very much relied on a decision of the Supreme Court in the case of Western India Match Company Ltd. v. Their Workmen . The question raised in that case was whether the discharge of watchman with effect from May 1, 1966, is valid and whether the order of reinstatement is justified. The watchman was employed as a probationer on six months probation when the certified standing orders only provided for two months probation. He was discharged during six months probation period for the reason that his service during probation was not approved. An industrial dispute was raised and the Labour Court held that the discharge was neither mala fide nor an act of victimisation but the invalidity of the provision for six months probation inconsistent with the certified standing orders rendered the discharge invalid and ordered reinstatement with back wages. The contention put forth on the side of the management is that special agreement is not inconsistent with the standing order. Rejecting the said contention, their Lordships of the Supreme Court have held that the terms of employment specified in the standing orders would prevail over the corresponding terms in the contract of service in existence in the enforcement of the standing order. They further held that, while the standing orders are in force, it is not permissible to the employer to seek statutory modification of them so that there may be one set of standing orders for one set of employees and another set for the rest. Ultimately, their Lordships have held that the terms of employment specified in the standing order would prevail over the corresponding terms in the contract of service in existence on the enforcement of the standing order. After taking the said view, inasmuch as the special agreement provides four months probation, which is in contravention of the standing order, their Lordships upheld the order of the Labour Court ordering reinstatement with back wages. In our case also, as per Standing Order 2(b)(1), probation period is fixed at six months in three spells. On the other hand, in the appointment order the management had engaged second respondent herein as a conductor Grade II and put him under probation for a period of 12 months, which may also be extended at their discretion for such further period or periods.
In the light of the law laid down by the Apex Court in the above referred decision, viz., Western India Match Company Ltd. v. Their Workmen (supra), I am in agreement with the contention raised by the learned counsel for the second respondent and I hold that the initial appointment prescribing 12 months probation period is contrary to the standing orders. In the case of U. P. Co-operative Spinning Mills Ltd. v. State of U.P. 1978 (53) FJR 220, a Division Bench of the Allahabad High Court has held that standing orders would prevail over contract and that the terms of agreement, which are inconsistent with Standing Orders cannot be sustained.
12. In the case of Management of Karnataka State Road Transport Corporation v. M. Boraiah, , their Lordships of the Supreme Court have held that while discharging a probationer, requirements of Section 25-F of the Industrial Disputes Act had not been complied with, the same was void.
13. In the case of Wasim Beg v. State of U.P. , the Supreme Court has held that where the rules provide for a maximum period of probation beyond which probation cannot be extended, at the end of the maximum probationary period there will be a deemed confirmation of the employee unless the rules provide to the contrary.
14. In the case of V.P. Ahuja v. State of Punjab , their Lordships of the Supreme Court held that a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.
15. Mr. Vijay Narayan, by pointing out a decision in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, , would contend that inasmuch as at the end of the extended probationary period, the service of the workman was not extended, there is no stigma; accordingly the said order cannot be assailed. No doubt, in the termination order it is merely stated that "your probation having come to an end your services are terminated with effect from the close of work". There is no stigma and his future prospects of employment is not affected in any manner. Likewise, though in the counter-statement filed before the Labour Court, the management has highlighted several instances for not considering the case of the petitioner for regular appointment, in the termination order they have not assigned any reason. Inasmuch as the termination order does not contain any adverse comment, in the light of the said decision, viz., Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (supra), I hold that the termination of the probationer (second respondent herein) does not amount to stigma. In the case of Ganganagar Zilla Dughd Utpadak Sahakari Sangh Ltd. v. Priyanka Joshi,, the Supreme Court has held that the word "dismissal' cannot be regarded as by way of punishment. In the case of M. Venugopal v. Divisional Manager, Life Insurance Corporation of India,, their Lordships have held that if the performance of the employee concerned during the period of probation is not found to be satisfactory on overall assessment, then it is open to the competent authority to terminate his service.
16. In the light of the above factual and legal position, though the management is competent to terminate the service of the probationer, if the performance of the employee concerned during the period of probation is not found to be satisfactory on overall assessment, in the light of the fact that the period of probation fixed and applied is contrary to Standing Order 2(b)(1), I am unable to accept the argument of learned counsel for the management and I concur with the conclusion arrived at by the Labour Court. In view of the said conclusion, it is unnecessary to go into and consider whether Standing Order 13 is applicable to the second respondent-workman or not.
17. Coming to the award of the Labour Court, viz., reinstatement with continuity of service and 50 per cent of the back wages, admittedly the services of the workman were dispensed with, even on August 6, 1974. However, the dispute was referred and considered by the Labour Court only in the year 1988. Thus, there is an inordinate delay of nearly 14 years in approaching the Court. In such a circumstance, according to learned counsel for the management, the workman is not entitled to any back wages for the interregnum, as he has approached the Court after a lapse of 14 years. It is seen from the proceedings that after failure of conciliation in the year 1974, the Government did not refer the dispute to the Labour Court for adjudication. Here again, admittedly the workman did not approach this Court against the order of the Government declining to refer the dispute to the Labour Court for adjudication. Only in 1983 the workman filed a writ petition before this Court and on the basis of the direction issued by this Court in the year 1986, the Government referred the dispute to the Labour Court in 1987. Though the Government was also responsible to some extent, the fact remains that for the period between 1974 and 1983, the workman has not furnished any reason for not taking appropriate steps for approaching this Court. In such a circumstance and in view of the fact that the workman was not made permanent, it would not be justified in asking the management to pay back wages for the entire period. No doubt, the Labour Court granted 50 per cent back wages with continuity of service. The reason given by the Labour Court for granting 50 per cent of the back wages cannot be sustained. As a matter of fact, the workman has neither placed any acceptable material for not approaching the Government immediately after failure of conciliation in the year 1974, nor approached this Court for necessary direction to the Government for referring the dispute for adjudication. Accordingly, I hold that the workman has not explained the inordinate delay of nearly 14 years in approaching the Court. Hence, he is not entitled to any back wages for the said period. The contrary conclusion arrived by the Labour Court on this aspect is liable to be set aside.
18. In the light of what is stated above, while confirming the impugned award of the Labour Court regarding reinstatement with continuity of service, the direction for payment of 50 per cent of the back wages is set aside. Writ petition is allowed in part. No costs.