Bombay High Court
Manganese Ore India Ltd. Thr Chairman ... vs Smt. Naseem Ahmad Wd/O Sayed Irshad ... on 3 September, 2021
Author: G.A. Sanap
Bench: A.S.Chandurkar, G.A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL No.291 OF 2010
IN
WRIT PETITION No.5603 OF 2009
The Management of Manganese Ore (India) Ltd.,
A Govt. Company incorporated under the
Companies Act, 1956,
having registered office at 1A MOIL Bhawan,
Katol Road, Nagpur, through its
Chairman-cum-Managing Director. : APPELLANT
...VERSUS...
Smt. Naseem Ahmad wd/o. Sayed Irshad Ahmad,
Aged about 38 years,
Occupation : Nil,
R/o. Plot No.113, Adarsha Colony,
Jafar Nagar,
Behind Police Line Takli, Nagpur. : RESPONDENT
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Masood Shareef,, Advocate for Appellant.
Shri A.H. Jamal, Advocate for Respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
AND
LETTERS PATENT APPEAL No.325 OF 2010
IN
WRIT PETITION No.5603 OF 2009
Smt. Naseem Ahmad wd/o. Sayed Irshad Ahmad,
Aged : 38 years,
Occupation : Nil,
R/o. Plot No.113,
Adarsha Colony, Jafar Nagar,
Behind Police Line Takli, Nagpur. : APPELLANT
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...VERSUS...
The Management of Manganese Ore
(India) Ltd., 3, Mound Road Extension,
Sadar, Nagpur, through its
Chairman-cum-Managing Director. : RESPONDENT
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri A.H. Jamal, Advocate for Appellant.
Shri Masood Shareef, Advocate for Respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : A.S.CHANDURKAR AND
G.A. SANAP, JJ.
RESERVED ON : 18th AUGUST, 2021.
PRONOUNCED ON : 3rd SEPTEMBER, 2021.
ORAL JUDGMENT : (Per : G.A. Sanap, J.)
Both the letters patent appeals arise out of the same Judgment dated 12th April, 2010 in Writ Petition No.5603/2009. The learned Single Judge partly allowed the writ petition and set aside the order dated 1st April, 2009 passed in Case No.CGIT/NGP/ 69/04 by the Presiding Officer & Central Government Industrial Tribunal-cum-Labour Court, Nagpur (in short, C.G.I.T.") upholding the order of termination of the employee from service and remanded the matter back to the C.G.I.T. Both the parties in the writ petition have challenged the order of remand passed by the learned Single Judge.
2. In this judgment the petitioner-employee before the C.G.I.T. would be referred as the appellant and the employer would ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 3/27 be referred as the respondent.
3. The appellant made a complaint to the Central Government about the unlawful termination of her services by the respondent. The Central Government, therefore, referred the dispute between the appellant and the respondent to the C.G.I.T.
4. On receipt of the notice in the Reference the appellant filed a Statement of Claim and challenged the order of termination dated 4th November, 1994. It is the case of the appellant that she was appointed on compassionate ground, in place of her husband after his death, vide order dated 10th November, 1992 for one year and posted at Beldongri Mine. As the place of posting was not convenient to the appellant she made a representation for giving posting near Nagpur. It is stated that during the period of probation her conduct and work was appreciated. The management thereafter extended her probation period for six months vide order dated 1st November, 1993 and at the same time transferred her from Beldongri Mine to Chikla Mine, which is at a distance of 100 km. from Nagpur. She joined Chikla Mine on 26 th November, 1993. Her probationary period was again extended for three months by order dated 10th May, 1994. On expiry of this period of three months again from 9th August, 1992 probationary period was ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 4/27 extended for three months. It is stated that after her transfer to Chikla Mine she worked there for three days. She could not attend the duty inasmuch as she was seriously ill. She proceeded on medical leave. It is alleged that the management of the respondent vide order dated 4th November, 1994 illegally terminated her services w.e.f. 10th November, 1994.
5. According to the appellant, on completion of the initial probationary period of one year on 9th November, 1993 she became the permanent employee of the respondent. The extension of probationary period on three occasions was unwarranted and contrary to the provisions of the Model Standing Order. She acquired the status of permanent employee from 9 th November, 1993 and, therefore, she was entitled for the benefits and rights as a permanent employee. It is alleged that the action of management respondent terminating her services presuming her being a probationer was illegal. She could not have been terminated without enquiry. The facts stated in the termination order are stigmatic. She was entitled for the retrenchment compensation. The appellant prayed for reinstatement with full back-wages and maintaining her seniority.
6. The authorized officer of the respondent filed the ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 5/27 written statement and opposed the claim. In sum and substance, the respondent denied the material facts pleaded in the Statement of Claim. It is contended that though the appellant was not entitled for the employment on compassionate ground, adopting humanitarian approach she was given employment. Her late husband died on Sunday due to massive cardiac arrest. He did not expire in the course of employment. The cause of death had no concerned with his employment. The appellant was appointed as a Clerk Grade-III and posted at a nearest Mine of Beldongri as a special case. She was appointed on probation for a period of one year subject to the terms and conditions as stipulated in the appointment order. The appellant was informed at the time of her appointment that the probationary period could be extended if her work is found unsatisfactory. The appellant was liable to be transferred in any of the offices of the respondent at the discretion of the management.
7. It is contended that the medical, education and other facilities are made available to all the employees at the place of posting. The appellant on her request was allowed to stay at Nagpur. She would attend duty daily from Nagpur to Beldongri. It is contended that she was not punctual. She did not show any ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 6/27 interest in the job. Therefore, she was warned and advised to improve herself. There was no change in her attitude. This conduct of the appellant adversely affected other staff members. There were frequent complaints from the Union to the respondent about the late attendance in the office by the appellant. The Union alleged that the management of the respondent was doing unnecessary favour to the appellant. Since her performance was not satisfactory and upto the mark, her probationary period was extended initially by six months. The management of the respondent with a view to grant her opportunity and to observe her performance under a different controlling officer transferred her to Chikla Mine. She was relieved from Beldongri on 9 th November, 1993. She refused to accept transfer order. She reported at Chikla Mine on 27th November, 1993 and worked there only for three days i.e. on 27, 28 and 29th November 1993. She applied for six days leave w.e.f. 30th November, 1993 to 5th December, 1993 but did not resume the duty on expiry of sanctioned leave. She went on extending her leave on medical ground. She never subsequently reported on duty at Chikla Mine.
8. It is the case of the respondent that the management has provided free medical facility to all the employees working in the ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 7/27 organization. The company has the Office of the Chief (Medical Services) at Nagpur, where free of cost medical treatment is given to all the employees. In case an employee requires a specialized consultation and treatment such case is referred to the concerned hospital of the choice of the employee by the Chief (Medical Services) at Nagpur. The petitioner though stayed at Nagpur did not approach the Company Medical Officer for treatment. She continuously forwarded the medical leave applications with the certificate of Civil Surgeon, Nagpur. She was advised, considering the situation, to report to the Chief Medical Officer, Nagpur for examination. She did not obey this order. The management of the respondent vide letter dated 16th April, 1994 sought confirmation about the certificate issued by the Civil Surgeon, Nagpur. There was no response from the Civil Surgeon. However, later on he did not issue any certificate. According to the respondent, the appellant had submitted bogus certificates of the Civil Surgeon. She did not report to the Medical Officer of the respondent Company for check-up. She did not work during the extended probationary period of six months and three months each from 11 th November, 1993. The management of the respondent took lenient view and extended her probationary period. The appellant ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 8/27 misused the concession granted to her. She was finally asked to report to the Chief Officer Medical for treatment. She did not obey the order. She submitted the medical certificate of the Ayurvedic Hospital for extension of her leave. The management of the respondent found that the appellant was not interested in doing service. Her performance was found unsatisfactory. Therefore, the management decided to terminate the services of the appellant. Accordingly, after paying her 14 days pay in lieu of notice terminated her services on the ground of unsatisfactory performance during the probationary period vide order dated 4 th November, 1994.
9. Against her termination the appellant made a complaint to the Government. The Government made reference to the C.G.I.T. As stated above, the learned Member of the C.G.I.T. vide award dated 1st April, 2009 rejected the reference. Being aggrieved by the award of the C.G.I.T. the appellant filed the writ petition. The learned Single Judge partly allowed the writ petition by setting aside the termination order and consequently the award passed by the learned Presiding Officer of the C.G.I.T. and directed the respondent to hold a proper enquiry into the absence of the petitioner from November 1993 onwards till the date of her ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 9/27 termination. The learned Single Judge further ordered that said enquiry shall be completed in accordance with law by the employer by 31st August, 2010 and if in the enquiry, the employer finds that the petitioner employee has deliberately kept away from services, as she was not interested in joining at any place out of Nagpur, the employer may pass further appropriate order in the matter. The learned Single Judge at the same time rejected the prayer made by the appellant for back-wages.
10. Both the appellant and the respondent being aggrieved by the above order preferred the Letters Patent Appeals as mentioned above. The ground of challenge to the impugned order have been set out in their respective appeal memos. According to the appellant, the learned Single Judge without recording any reason rejected the prayer for back-wages. The appellant has also contended that the learned Single Judge ought to have set aside the award in entirety. According to the respondent, the learned Single Judge has not considered the material on record in proper perspective. According to the respondent, the order passed by the earned Single Judge is not sustainable in law.
11. We have heard learned Advocate for the appellant and learned Advocate for the respondent. We have gone through the ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 10/27 record and proceedings.
12. The learned Advocate for the appellant submitted that the learned Single Judge has denied the relief of back-wages without assigning sound reasons. The learned Advocate submitted that after completion of probationary period of one year, the appellant became the permanent employee. The learned Advocate submitted that further extension of the probationary period was not at all justified on the basis of the oral and documentary evidence placed on record. The learned Member of the C.G.I.T. ought to have set aside the termination order. The learned Advocate for the appellant submitted that learned Single Judge ought to have reversed the order passed by the learned Member of the C.G.I.T. in entirety by granting her prayers in the complaint. The learned Advocate for the appellant submitted that the appellant on the basis of cogent and concrete evidence has established that she was suffering from serious illness of Hepatitis/Jaundice and, therefore she could not join her duties at Chikla Mine. The learned Advocate pointed out that the performance of the appellant could not have been observed on account of her absence due to medical leave. The learned Advocate submitted that before passing the termination order enquiry ought to have been conducted by ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 11/27 granting opportunity to the appellant to defend her stand. The learned Advocate submitted that the order of termination without conducting enquiry is stigmatic. The learned Advocate, therefore, prayed that the order passed by the learned Single Judge is required to be set aside and the complaint made by the appellant before the learned C.G.I.T. is required to be allowed by answering reference in her favour.
13. The learned Advocate for the respondent submitted that after the death of husband of the appellant, though the appellant was not entitled for an appointment on compassionate ground, she was given appointment by adopting humanitarian and sympathetic approach towards the appellant and her family. The learned Advocate submitted that the appellant was appointed on probation for one year with a specific stipulation in the appointment order that if the performance is unsatisfactory, she would not be continued in service. The learned Advocate submitted that there is an ample evidence to prove that the appellant was not sincere in attending her duties during probationary period of one year. The learned Advocate submitted that the appellant wanted posting at the corporate office of the respondent at Nagpur and, therefore, she was reluctant to work initially at Beldongri Mine and later at Chikla ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 12/27 Mine. The learned Advocate submitted that taking a sympathetic view the management of the respondent extended her probation with a hope that the appellant would improve her performance. The learned Advocate submitted that in the total extended period of six months and three months each twice she worked only for three days. In the submission of the learned Advocate the ground of the so-called illness is found to be untruthful by the learned Member of the C.G.I.T. The learned Advocate submitted that she failed to report to the Chief Medical Officer of the respondent at Nagpur for medical check-up despite specific instructions. The learned Advocate submitted that her conduct convinced the management of the respondent that she was not interested in doing the service. In the submission of the learned Advocate since the appellant was a probationer and during the probationary period her performance was found unsatisfactory, she was terminated. The learned Advocate submitted that the reasons for termination of the service by no stretch of imagination could be said to be stigmatic.
14. In order to appreciate the rival submissions of the parties, it would be necessary to consider the oral and documentary evidence on record. The consideration of the oral and documentary evidence is warranted to decide the sustainability of ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 13/27 the order passed by the learned Single Judge and consequently the order passed by the learned Member of the C.G.I.T. On minute perusal of the oral and documentary evidence we are convinced that the evidence on record is not sufficient to accept the case of the appellant. It is undisputed that the appointment on humanitarian ground was made though the appellant was not entitled to get the same. It is seen on perusal of the record that the appellant wanted posting at Nagpur, where she has been permanently residing. However, due to limitations and constraints of the management of the respondent she could not be accommodated. It has come on record that during the first year of the appointment she was absent from duty for 31 days. It is the grievance of the management of the respondent that she was not punctual in attending the office. There is ample documentary evidence to substantiate this contention. The letter dated 26 th May 1993 Exh.-M4 is part of the record. By this letter she was informed that she was not punctual in attending the duty. She was informed that her performance was not satisfactory. She was also informed that she was attending the office late. She was instructed to improve her performance. The same instructions were reiterated in the letter dated 1st November, 1993 when her probationary period ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 14/27 was extended by six months. It is, therefore, apparent that in the month of May 1993 she was put to notice that her performance was not satisfactory and she was instructed to improve her performance. In her evidence the appellant has not rebutted this documentary evidence. This fact would show that during the initial probationary period of one year her performance was not satisfactory. She was warned and instructed to improve her performance. It seems that the instructions and warning fell on deaf ears.
15. The management of the respondent on the basis of material placed on record has been proved to be most lenient and considerate. It can be seen on perusal of the evidence that the management of the respondent considering the position of the appellant being a widow of the deceased employee took pity on the appellant. The management in its wisdom reasonably believed that the appellant would improve her performance by extending her probationary period. It is pertinent to note that in view of the terms and conditions of the appointment letter, the management could have refused to extend the probationary period. The appellant could not have prevented the management. It is further apparent on the face of the record that the management of the ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 15/27 respondent with a view to ensure proper observance of the performance of the appellant by another superior officer transferred her to Chikla Mine. The appellant joined there and worked only for three days. It has, therefore, been proved that during the extended period of almost 12 months she worked only for three days. According to the appellant, the said posting at Chikla Mine was most inconvenient. She has also contended that she was suffering from Hepatitis/Jaundice and, therefore, she could not resume her duty after expiry of the initial leave period.
16. It is seen on perusal of the record that this ground of so-called of illness appears to be a excuse for not resuming the duties at Chikla Mine, which according to the appellant was inconvenient place and posting. Initially, she submitted the certificate for extension of leave from Civil Surgeon, Nagpur. The evidence would show that when the management of the respondent realized that something is fishy, the General Manager wrote a letter dated 16th April 1994 to the Civil Surgeon and brought this fact to his notice, as well as requested him to confirm whether the illness from which the appellant is suffering requires such a longer period of rest and also confirm whether the enclosed copies of the certificates are issued by him under his signature. It is ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 16/27 undisputed that there was no response from the Civil Surgeon, Nagpur. It is pertinent to mention at this stage that free of cost medical facilities have been provided by the management of the respondent to the employees and their family members. Similarly, in the case of serious ailment the employee is referred to the other hospital of the choice of the employee for the medical treatment. The appellant did not take advantage of the free treatment. Considering the fact that the appellant was facing financial hardship, she was expected to avail benefit of the free medical treatment. The appellant chose to go to other hospitals, though during the period of her absence she would not have been paid salary.
17. In our opinion this conduct would reflect on the bona fides of the appellant. There is ample evidence on record to establish that the concerned officer of the respondent requested the appellant to undergo the medical examination/check-up in the hospital of the respondent at Nagpur, but she refused to do it. The appellant instead of taking free of cost treatment at the hospital of the respondent preferred one Ayurvedic Hospital at Nagpur.
18. According to the appellant, she was suffering from Hepetitis/Jaundice. She has produced on record the medical ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 17/27 certificate from the Ayurvedic Hospital dated 6th May 1994. It is seen that on issuance of a letter by the General Manager to the Civil Surgeon dated 16th April, 1994 Civil Surgeon did not issue any certificate. She therefore, changed her stance and obtained certificate dated 6th May, 1994 in the next month from Ayurvedic Hospital. Perusal of this certificate would show that she was treated as a OPD patient. In this certificate it is mentioned that the appellant was suffering from "Kamshekh or such disease". There is no mention in this certificate that it was Hepatitis or Jaundice. The appellant wants the Court to believe that she was suffering from Hepatitis/Jaundice for one year and, therefore, she was under
treatment. It is pertinent to note that Jaundice affects the liver function. Jaundice is curable. It is common knowledge that it can be cured within a period of month or so. It is further pertinent to mention that the continuous ailment of Hepatitis/Jaundice may stop the functioning of the liver. The failure of the liver intails serious consequence which may include death. In our view, this ailment sought to be made a ground of a defence also doesn't appear to be probable.
19. In the context of the above it would be necessary to see whether the management of the respondent had right to extend the ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 18/27 period of probation. The learned Advocate for the respondent has placed on record the photo copy of Manganese Ore (India) Limited (Recruitment and Promotion Rules, 1977). It is pointed out that these Rules were in force on the date of the appointment of the appellant. Clause (7)(b) of the Rules provided for the probationary period of direct recruitment. As per this clause, the newly recruited employee would be on a probationary period of one year with a right to the management to curtail or extend the same depending upon the performance of the employee. It provides that the appointing authority in its discretion can grant one extension of six months duration of the probationary period. It further provides that if the performance is not improved by the employee then services shall be terminated without notices. In view of this Rule 7 sub-rule (b) the appellant was appointed on a probationary period of one year. The probationary period was initially extended for six months and subsequently on two occasions for three months each. In view of this position, the contention of the appellant that on expiry of one year probationary period she became permanent employee cannot be accepted. Two extensions of three months each would further indicate the benevolent approach of the management of the respondent. In the ordinary course of nature ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 19/27 the management was not required to show any sympathy as well as leniency to the appellant. The record would show that the management took pity on the appellant and granted her leeway beyond permitted limits. The record would show that the appellant failed to make use of the opportunity. It is, therefore, apparent that as per Rule 7 sub-clause (b) the management has a power to terminate the services without notice if the performance is not improved by the employee in the extended period of probation. It is not possible to accept the contention of the appellant that either she was appointed as a permanent employee or completed her probationary period on expiry of the initial one year appointment. The learned Presiding Officer of the C.G.I.T. on appreciation of the evidence came to the conclusion that her services were terminated on the ground of unsatisfactory performance. The learned Presiding Officer further found that the order of termination read in entirety would not cast any aspersion on the appellant and as such would not be stigmatic.
20. In view of prima facie consideration of the material on record we are convinced that the termination of the appellant was strictly according to law. In the context of the above finding of fact the submissions advanced by the leaned Advocate for the parties ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 20/27 vis-à-vis the judgment of the learned Single Judge needs consideration. The learned Single Judge while setting aside the award held that the reasonable opportunity was not granted to the appellant to establish her contention before termination of her services. The learned Single Judge has observed that the respondent without verifying the contention of the appellant with regard to her ailment came to the conclusion that her illness was fake. The learned Single Judge observed that the process of verification of the genuineness of the medical certificates from the Civil Surgeon was not completed. The learned Single Judge, therefore, found that the termination dated 4th November, 1994 was unsustainable. In this context it is pertinent to mention that the appellant specifically contended that she was seriously ill and, therefore, she could not attend the duty and as such her termination was illegal. The respondent categorically denied this fact. The respondent contended that she did not make use of free medical facility and refused to undergo the medical examination/check-up. In view of this factual position, the burden was on the appellant to prove that she was suffering from serious illness. The burden was on her to prove that her illness prevented her from resuming her duty. The appellant could have adduced ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 21/27 ample documentary evidence if she had been ill as stated by her. The respondent in our view cannot be blamed. We have already concluded that the management of the respondent shown sympathy and adopted benevolent approach towards the appellant. In our opinion, therefore, the negative burden could not be cast upon the respondent to prove the case of the appellant.
21. The reasonable approach adopted by the management of the respondent to grant an opportunity to the appellant to prove her credentials cannot be used against the respondent. The approach indicates that the management of the respondent consistent with its stand ensured that by establishing her credentials the appellant could continue to remain in employment. The opportunity offered was ample opportunity. In our opinion, if the findings of the learned Single Judge shifting the onus on the respondent to justify the absentisam of the appellant is upheld then it would be nothing short of causing dent to the goodness gracious gesture displayed by the management of the respondent towards the appellant. In our opinion the management could not be asked to explain the case and cause of the absence of the appellant from duty. It is pertinent to mention that the inquiry by management of the respondent to go to the root of the cause putforth by the ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 22/27 appellant for her absence cannot be made a ground to cast a burden on the respondent. This aspect has not been considered by the learned Single Judge in proper perspective.
22. It would now be necessary to consider the point whether the termination order is stigmatic or not. The learned Advocate in support of his submission that the termination order is stigmatic and, therefore, necessary enquiry ought to have been conducted by the management of the respondent has relied upon the decisions in the cases of Dipti Prakash Banerjee vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and others, reported in AIR 1999 SC 983, V.P. Ahuja vs. State of Punjab and others, reported in (2000)3 SCC 239, Union of India and others vs. Mahaveer c. Singhvi, reported in (2010) 8 SCC 220, Registrar General High Court of Gujarat and another vs. Jayshree Chamanlal Buddhbhatti, reported in 2014(2) SLR 241 (S.C.) 241. In the case of Dipti Prakash Banerjee vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and others, reported in AIR 1999 Supreme Court 983, it is held that use of words with regard to the conduct, performance, ability and capacity during the whole probationary period was not satisfactory in the termination order may not necessarily amount to stigmatic. Whether it would amount ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 23/27 to stigma or not depends upon the facts and circumstances of each. It is held that if the allegations constitute a motive and not the foundation for termination then such simple order of termination would be valid. The same principle has been laid down in the cases of V.P. Ahuja vs. State of Punjab and others reported in (2000)3 SCC 239, Union of India and others vs. Mahaveer c. Singhvi, reported in (2010) 8 SCC 220, Registrar General High Court of Gujarat and another vs. Jayshree Chamanlal Buddhbhatti, reported in 2014(2) SLR 241 (S.C.) 241
23. The learned Advocate for the respondent relying upon three decisions in the cases of Chaitanya Prakash and another vs. H. Omkarappa, reported in (2010)2 SCC 623, Abhijit Gupta vs. S.N.B. National Centre, Basic Sciences and others, reported in (2006) 4 SCC 469 and State Bank of India and others vs. Palak Modi and another, reported in (2013)3 SCC 607 and submitted that in this case the performance of the appellant was found unsatisfactory and her conduct clearly established that she was not interested in doing the service and as such the order of termination without casting any aspersion on the appellant could not be said to be stigmatic.
24. In the decisions of the Union of India and others vs. Mahaveer c. Singhvi & Registrar General High Court of Gujarat and ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 24/27 another vs. Jayshree Chamanlal Buddhbhatti, the Hon'ble Apex Court held that if a finding against a probationer is arrived at behind his or her back on the basis of the enquiry conducted into the allegations made against him/her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. It is held that on the other hand, if no enquiry was held or contemplated and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving him a hearing, the same would be valid. The Hon'ble Supreme Court of India has held that the probationer has no right to hold the post and his service can be terminated at any time during or at the end of the probation on account of general unsuitability for the post held by him. It is held that in such cases though the termination order is non-stigmatic, Court can lift the veil and examine whether in garb of termination simplicitor, employer had punished the employee for misconduct. It is held that the order of terminating services of the probationer for unsatisfactory service cannot be said to be stigmatic. If the termination is simplicitor due to unsuitability it cannot be a case of punishment for misconduct.
25. In our opinion the order of termination in this case by no ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 25/27 stretch of imagination could be said to be stigmatic. The appellant, as can be seen from the evidence was granted an opportunity to make use of the opportunity by extending her probation due to unsatisfactory performance and absentisam from duty. She did not make use of the opportunity. The management of the respondent on the basis of performance and her conduct came to the conclusion that she was not interested in the service of the respondent and also failed to carry out the reasonable instructions of the management and, therefore, her services were terminated. Perusal of termination order would show that aspersions were not cast upon the appellant. Substance of the facts already made known to the appellant was mentioned in the termination order. In our view, therefore, this order could not be said to be stigmatic. In the facts and circumstances we of the view that the proposition of law laid down in the decisions relied upon by the learned Advocate for the respondent supports the submission of the respondent that in the facts and circumstance the termination order could not be said to be stigmatic. In view of the facts and circumstances and the nature of termination order the submissions advanced by the learned Advocate for the appellant relying upon the judgments (supra) cannot be accepted.
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26. The learned Single Judge as well as learned Presiding Officer of C.G.I.T. rejected the prayer for back-wages made by the appellant. In our opinion the said order does not require interference. It is found that during the extended period of probation for 12 months the appellant attended her duty for three days only. Since the termination is held to be legal the appellant would not be entitled to get the back-wages. Similarly, she has failed to establish that due to serious illness she could not attend the duty. Therefore, in our view the finding of the learned Single Judge rejecting the prayer for back-wages does not warrant interference. In view of above, we conclude that the order passed by the learned Single Judge is required to be set aside. The order passed by the learned Presiding Officer of C.G.I.T. is required to be restored. Hence, following order :
ORDER
(i) The appeal filed by the respondent-Management of Manganese Ore (India) Ltd. bearing Letters Patent Appeal No.291/2010 is allowed.
(ii) The order passed by the learned Single Judge in Writ Petition No.5603/2009, dated 12th April, 2010 is set aside. ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 07:17:30 ::: J-lpa291&325.10.odt 27/27
(iii) The order passed by the learned Member of the Central Government Industrial Tribunal-cum-Labour Court dated 1st April, 2009 in Claim No.CGIT/NGP/69/04 is restored.
(iv) In view of above, the appeal filed by the appellant-
Smt. Naseem Ahmad wd/o. Sayed Irshad Ahmad bearing Letters Patent Appeal No.325/2010 stands dismissed.
(v) In view of the facts and circumstances, the parties shall bear their own costs.
JUDGE JUDGE
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