Andhra HC (Pre-Telangana)
K. Dasarath vs Labour Court-I And Anr. on 27 March, 2002
Equivalent citations: 2004(4)ALT194
ORDER P.S. Narayana, J.
1. The order dated 27-4-1993 of 1st respondent made in I.D.No. 149/87 is impugned in the present Writ Petition.
2. The case of the petitioner in brief is as follows:
The petitioner was employed in 2nd respondent-Company and was initially taken into service on 22-3-1985 and though initially he was appointed as probationer it was extended twice and thereafter there had been no specific order extending the probation after 21-9-1985 and the petitioner continued to be employed upto 28-12-1995 when his services were terminated abruptly. Questioning the said termination order the petitioner moved the 1st respondent in. I.D.No. 149/87 on a reference made by the Government of A.P. The 2nd respondent had taken a stand that the petitioner was an extended probationer even after 21-9-1985 and he was terminated on the ground that his work was unsatisfactory, The 1st respondent had negatived the relief to the petitioner and aggrieved by the same, the present Writ Petition is filed. The 2nd respondent-Company, in short hereinafter referred to as "Management" had taken a stand that the Writ Petition is liable to be dismissed on the ground of laches inasmuch as the award was challenged after a lapse of over three years. It is also stated that the impugned award was made on appreciation of evidence and this Court cannot reappreciate such evidence and what the Court has to examine is whether there was some evidence or no evidence at all for the conclusions reached by the quasi-judicial authorities and in the counter-affidavit itself the Management had narrated all the details and also several decisions relating to the principles for issuance of a writ of certiorari and also the rights of a probationer.
3. Sri Jagan Mohan, the learned Counsel representing the writ petitioner had submitted that there was no order passed by the Management either extending the period of probation after 21-9-1985 or otherwise and hence it should be taken that the petitioner continued in employment as a regular employee. The learned Counsel further contended that the petitioner was appointed on compassionate grounds in a permanent vacancy and therefore confirming his probation or temporary employment is only illusory. The learned Counsel further contended that even in the termination order, the Management had not shown that the petitioner was terminated in terms of the non-extension of probation, but had clearly stated it to be misconduct and hence unless a regular enquiry is conducted in accordance with law, the order of termination is not sustainable. The learned Counsel further had maintained that the 1st respondent had lost sight of this crucial and important aspect. The learned Counsel also had drawn my attention to Exs.W-1 to W-9 and also Ex.W-11 and also had taken me through the oral evidence available on record. The learned Counsel further had contended that the six months probation period specified by the Standing Orders had lapsed by expiry of six months and even in this view of the matter, the order of termination is bad. The learned Counsel also had drawn my attention to the decisions of Apex Court in High Court of Madhya Pradesh v. S.N. Jhavar, 2001 (4) LLN 1248 (SC) and D.P. Banerjee v. S.N. Bose National Centre for Basic Sciences, Calcutta, and had contended that in view of the second category of cases specified by the Apex Court in the decision referred (1) supra, this Court may have to necessarily come to the conclusion that the order of termination is bad. The learned Counsel also had taken me through certain aspects of Ex.M-8 not containing the signature and also Exs.-M-5 and M-6, the Progress Reports and ultimately had submitted that even otherwise in the case of termination of services of a probationer, the substance of the order may have to be looked into whether the Management had thrown out the workman out of employment as a punitive measure though in fact the order as such may not specify the same and in the light of the facts and circumstances necessarily the Court may have to arrive at a conclusion that the termination is not a termination simpliciter for the unsatisfactory work of the probationer, but something more, keeping in view the alleged misconduct and hence the order of termination is only by way of punishment and not an order of termination simpliciter of a probationer for unsatisfactory work. The learned Counsel further contended that this dispute was made on reference and hence the provisions of Section 2-A of the Industrial Disputes Act, 1947 may not be much relevant. The learned Counsel also had placed reliance on Central Inland Water Transport Corporation Limited v. Brojo Nath, and had also drawn my attention to the preamble of the Industrial Employment (Standing) Orders Act, 1946 and also the scope and ambit of the said Act. The learned Counsel also had drawn my attention to the claim statement and the stand taken by the petitioner that the termination is contrary to the Standing Orders. It was further contended that inasmuch as a stigma is attached, the termination order is not a termination simpliciter and it is the substance of the order which may have to be looked into and if all the facts and circumstances are taken into consideration it is clear that the power had not been exercised bona fide, but because of certain political reasons also, and while concluding the submissions the learned Counsel also had stated that here is an order of termination which will definitely shock the conscience of the Court and hence the impugned award cannot be sustained.
4. Sri Sridharan, the learned Counsel representing the Management with all vehemence had contended that the Writ Petition at the threshold is liable to be dismissed on the ground of laches inasmuch as the Writ Petition was filed after a period of over three years and absolutely there is no whisper even about the delay and when the delay was not explained at all, the writ Court is definitely entitled to refuse the relief to the petitioner under Article 226 of the Constitution of India. The learned Counsel placed strong reliance on Dr. L. Ramamohan v. Registrar, University of Health Sciences, Vijayawada, 1996 (4) ALT 719 = 1996 (4) ALD 1059 (D.B.) and also two other judgments of this court in W.P. Nos. 8219/2000 and 7967/2000. The learned counsel further while making several submissions on merits had contended that the termination of the petitioner in fact will not amount to retrenchment at all in view of Section 2(oo)(bb) of the Industrial Disputes Act, 1947, in short hereinafter referred to as "I.D. Act". The learned Counsel also had maintained that it is a case of non-renewal of contract and hence the petitioner, hereinafter referred to as "workman", cannot invoke the jurisdiction of the 1st respondent at all on the ground that the provisions of the I.D. Act are attracted. The learned Counsel had taken me through the appointment letter and the conditions specified therein and also had drawn my attention to different provisions of the I.D. Act, in particular Section 25-F and also 2(oo)(bb) of the said I.D. Act. The learned counsel also had drawn my attention to certain Standing Orders and the Model Standing Orders and had submitted that the question of deemed confirmation is not contemplated at all. The learned Counsel also had contended that the case of a probationer does not fall under Section 2-A of the I.D. Act and inasmuch as no letter of confirmation was given, there is no question of invoking Section 25-F of the I.D. Act. The aspect whether an employee is a confirmed employee or not is not within the purview of the Labour Court and it is not even an incidental power and hence the case of the probationer cannot be dealt with in this view of the matter. The learned Counsel also had contended that in view of the appointment letter and the certified Standing Orders, the case may definitely fall either under the first category or under the third category and will not fall under the second category as contended by the writ petitioner. The learned Counsel also had explained the decisions of the Apex Court referred (1) and also (2) supra. The learned Counsel also had drawn my attention to the oral evidence let in by the parties and had taken me through the cross-examination of WW-1 wherein several admissions were made by the Workman. The learned Standing Counsel representing the Management also had placed strong reliance on The Rajasthan State Road Transport Corporation v. Krishna Kant, , K.A. Barot v. State of Gujarat, 1990 (79) FJR 606, Dr. T.C.M. Pillai v. The Indian Institute of Technology, , Dhanjibhai Ramjibhai v. State of Gujarat, , L.I.C. of India v. M. Venugopal, 1993 (66) FLR 876, M. Venugopal v. L.I.C. of India, , Oswal Pressure Die Casting Industry v. Presiding Officer and Anr., 1998 (93) FJR 233 and K.V. Krishnamani v. Lalitkala Academy, 1996 (5) Supreme 438.
5. Heard both the Counsel at length.
6. The first question raised by the learned Standing Counsel representing the Management is that inasmuch as there is a delay of 3 years in filing the Writ Petition, the Writ Petition is liable to be dismissed on the ground of laches. It is no doubt true that there is some delay in filing the Writ Petition. It is also no doubt true that in the decision referred (4) supra, a Division Bench of this Court held that when the petitioner approached the Court with some delay, convincing reasons are to be given. In the other two unreported Judgments i.e., in W.P.Nos. 8219/2000 and 7967/2000 also, no doubt the same view was expressed. But however, the Writ Petition was admitted in the year 1996 and it is a matter relating to an award of Labour Court wherein the relief to set aside the order of termination had been negatived. Though the question of delay also may be significant, in throwing away the Writ Petition at the threshold the writ Court is expected to look into the facts and circumstances also and necessarily the Writ Petition need not be dismissed in limine on the ground of delay only without adverting to the merits and demerits of the matter if the Court feels that the matter may have to be adjudicated on merits. In the light of the observations made by me above, I am not inclined to accept the contention of the learned Standing Counsel for the Management that the Writ Petition is liable to be dismissed in limine on the ground of laches alone. Hence, now I proceed to deal with the matter on merits.
7. Ex.W-1, the letter of employment as Worker-Trainee, reads as follows:
"We are pleased to offer you employment as a Worker-Trainee on the following terms and conditions:
(a) Your period of training may be extended for such period as it may be deemed necessary at the sole discretion of the Management.
(b) You may be offered employment in the Company at its sole discretion as a Probationary Worker (8.1) on successful completion of your training depending upon the availability of vacancies. Mere completion of training will not confer any right of employment as a probationary worker or otherwise.
(c) During the period of training, your services are liable for termination without any notice or compensation in lieu thereof and without assigning any reasons whatsoever.
(d) You will be governed by the Company's certified Standing Orders, in respect of conduct and discipline".
Ex.W-2 is the letter of employment as a probationary worker dated 4-4-1985 and the contents of the letter may be relevant. The said letter reads as follows:
"This is to confirm the terms upon which you are offered Probationary Employment with VST Industries Limited which are:
(a) You will be employed as a Probationary Worker for a period of four months.
(b) Your terms of employment are governed by the Certified Factory Standing Orders.
(c) You will be paid a Merged Basic Wage calculated at the rate of Rs. 737/- per month.
(d) You may be discharged from the service of the Company without notice.
(e) You may leave the service of the Company without notice.
(f) In the event of the Company deciding to offer you further employment on the expiry of your Probationary Period, you will be advised in writing."
Condition (a) of Ex.W-2 specifically says that the petitioner will be employed as a Probationary Worker for a period of four months and further Condition (d) specifically says that the petitioner may be discharged from the service of the Company without notice. The petitioner had examined himself as WW-1 and after deposing several details, WW-1 had stated in the cross-examination as follows:
"It is true that I got appointment in the respondent company due to the retirement of my mother only and not on account of general recruitment as the company took policy to give appointment to the children of the retired employees. It is true that it is mentioned in Ex.W-2 appointment order that at any time I can be discharged from service without any notice. It is not true to say that I did not discharge my duties properly and sincerely during the probation and that due to the same my probationary period was extended by 2 more months. It is not true to say that the work period between 22-3-85 till 21-5-85 was a trial period during which the performance of my duties will be considered. It is also not true to say that I was discharged from service as I failed to work properly. It is true that there is no relation or concern between my removal by the respondent and the union elections during that period."
The petitioner also had deposed further in the self-same cross-examination as follows:
"It is true that under Ex.W-11 was appointed as a trainee in the beginning and not as a regular employee Under Ex.W-2 I was posted as probationer. It is true under Ex.W-3 Clause (d) I can be discharged even without any notice. It is true that during my probationary period the Mgt conducted a domestic enquiry against me for my threatening and intimidating any other worker or employee, and that I was also suspended on that account. Ex.W-3 is the punishment order. I did not prefer any appeal or any petition to higher authorities against W.3. It is true under Ex.W-4 my probation period was extended. It is not true to say that I did not question the said extension. I did not put in any written representation questioning the said extension under Ex.W-4. Under Ex.M-5 the probationary period was extended further and Mgt obtained my signatures. Ex.M-6 is another report of extension of probation. I accepted the said extension without any protest".
Apart from the evidence of W.W.1, there is also the evidence of M.W.I Vasudeva Rao and Sri Shantamma and Nathanial - M.W-2 and M.W.3. The 1st respondent on receipt of reference made by the Government of Andhra Pradesh in No. B/145/87, dated 6-7-1987 by the Deputy Commissioner of Labour, Ranga Reddy, had decided the said I.D.No. 149/87 and the reference made was to the effect:
"Whether the removal of Sri K. Dasarath Ex-Workman from (service) by the Management of V.S.T. Industries Limited, Azamabad, justified."
8. As can be seen from the impugned award made in I.D.No. 149/87 on the file of the 1st respondent, at paragraph-7, the point mentioned hereunder, had been framed for consideration:
"Whether the petitioner is entitled to be reinstated with all full backwages and with attendant benefits. If not, to what relief is entitled to?"
The 1st respondent after recording the evidence of W.W-1 and M.W-1 to M.W-3 and marking Exs.W-1 to W-14 and Exs.M-1 to M-12 and also Ex.X-1, has arrived at the conclusion that the order of removal of the petitioner-workman from service by the respondent Management is legal and valid and hence the workman is not entitled to any relief.
9. The fact that the petitioner had been on probation and the probation had been extended is not in dispute at all. What had been strenuously contended by the Counsel for the petitioner is that the maximum period of probation is only six months and hence if a person is continued in service beyond that period, it should be deemed that such workman had been confirmed and hence the termination is bad. The yet another contention raised was that for certain political reasons and also in view of certain undisputed facts it is clear that though the termination was made on the ground of unsatisfactory work in fact it is not so and the said termination was made only by way of punishment or as a stigma and though the workman was only a probationer at the relevant time, regular enquiry has to be conducted after affording opportunity and in this view of the matter also the order of termination is not sustainable. Hence, in view of the deemed confirmation after the expiry of the period and also in view of the fact that the order of termination was made as a punitive measure, which was made without any enquiry, such order is not sustainable and both these aspects had not been appreciated in proper perspective by the 1st respondent.
10. As can be seen from the impugned order, several details had been discussed and in fact even the relevant provisions of the I.D. Act also had been dealt with at the appropriate places and reasons had been recorded why the 1st respondent was inclined to uphold and confirm the order of termination made by the Management. It is no doubt true that Ex.M-8 was not signed by the workman and Exs.M-5 and M-6 are the Progress reports. The Counsel for the workman had made elaborate submissions to convince the Court that in the light of these proceedings, it is clear that the action is not bona fide and definitely an order of termination of this nature shocks the conscience of the Court and a serious attempt was made to convince the Court that in the light of the Standing Orders specifying the time of probation, this case falls under the second category as enunciated in the decision referred (1) supra.
11. I had already dealt with the conditions incorporated in Ex.W-2. The Industrial Employment (Standing Orders) Act, 1946 (Act 20 of 1946) is an Act to require employers in industrial employments formally to define conditions of employment under them and whereas it is expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. Section 2(a) of The A.P. Industrial Employment (Standing Orders) Rules, 1953, Schedule-I, Model Standing Orders, dealing with 'probationer' specifies as follows:
"Probationer means a workman who is provisionally employed to fill a permanent vacancy and who has not completed six months of satisfactory service in the agreement in the post.
Provided that the employer may in any particular case where he is not satisfied with the work and conduct of any workman extend the probation by such period not exceeding six months as he may consider necessary.
Provided further that the employer shall inform the concerned workman in writing of such extension atleast a week before the completion of the probation."
Section 3(c) of Schedule I-A of Industrial Employment (Standing Orders) Rules, 1946, dealing with probationer reads as follows:
"A probationer is one who is provisionally employed to fill a vacancy in a permanent post and has not completed three months service in that post unless the probationary period is extended. If a permanent workman is employed as a probationer in new post, he may, at any time during the probationary period not exceeding three months, be reverted to his old permanent post unless the probationary period is extended."
Section 3(b) of Factory Standing Orders of the Management dealing with a Probationary Worker reads as follows:
"A Probationary worker is one who is provisionally employed to fill a permanent vacancy in Clerical Staff, Class 'A' or Class 'B' and who has not satisfactorily completed four months continues service therein, and has not been confirmed as permanent in that post by the Company. The period of probation may be extended at the discretion of the Company. No probationer can be said to have become permanent unless an order in writing is given to that effect.
If a permanent workman is employed on trial in a new post or higher post he may at any time during the trial period be reverted to his substantive post without notice. The period of trial shall be four months and may be extended at the discretion of the Company."
It is clearly stated in the said Factory Standing Orders that the period of probation may be extended at the discretion of the Company and no probationer can be said to have become permanent unless an order in writing is given to that effect. Section 2-A of the I.D. Act was introduced by Act 35 of 1965, which deals with Dismissal etc., of an individual workman to be deemed to be an industrial dispute. As far as invoking Section 2-A of the I.D. Act is concerned, no doubt, the learned Counsel for the workman had stated that inasmuch as this is a matter on reference, the decisions rendered in this regard may not be of any help. Section 2(oo) of the I.D. Act deals with Retrenchment and Section 2(oo) (bb) reads as follows:
"retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) ...........
(b) ..........
termination of the service of the workman as a result of non-renewal of the contract of the employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein."
This provision Section 2(oo) (bb) was introduced by Act 49 of 1984. Section 25-F of the I.D. Act deals with conditions precedent to retrenchment of workmen.
12. In the decision referred (1) supra, the Apex Court at page 1253 held:
"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 in 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. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend 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 the 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 to the same require a specific act on the part of the 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."
These are the tests which had been relied upon by both the counsel - the counsel for the workman contending that the case falls under the second category and the counsel for the Management contending that the case falls either under the first category or third category and not under the second category at all.
13. The relief prayed for in the Writ Petition is to quash the impugned award on certain grounds. In Nagendra Nath Bora v. Commissioner of Hills Division, , while dealing with the aspect of issuance of writ of certiorari it was held:
"It is clear from an examination of the authorities of this Court as also of the courts in England, that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent on the face of the record and not every error either of law or fact, which can be corrected by a superior court, in exercise of its statutory powers as a court of appeal or revision.
So far as we know, it has never been contended before the Court that an error of fact, even though apparent on the face of the record, could be a ground for interference by the court exercising its writ jurisdiction. No ruling was brought to our notice in support of the proposition that the court exercising its powers under Article 226 of the Constitution, could quash an order of an inferior tribunal, on the ground of a mistake of fact apparent on the face of the record.
But the question still remains as to what is the legal import of the expression error of law apparent on the face of the record". Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned? This court, as observed above, has settled the law in. this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law in England are, therefore, the same. It is also clear on an examination of all the authorities of this Court and of those in England, referred to above, as also those considered in the several judgments of this Court, that the common-law writ, now called order of certiorari, which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction."
In Syed Yakoob v. K.S. Radhakrishnan, , it was held as follows:
The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law-which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Katnath v. Syed Ahmed Ishaque , Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam (1958 SCR 1240), and Kaushalya Devi v. Bachittar Singh ."
In P. Kasilingam v. P.S.G. College of Technology, (1981) SCC (L & S) 192 the aspect of termination and the exercise of certiorari jurisdiction had been dealt with. In Basappa v. Nagappa, while dealing with the aspect of exercising the jurisdiction of the High Court through the writs of certiorari it was held that one is the area of jurisdiction and the qualifications and conditions of its exercise and the other is the observance of law in the course of its exercise. In Sadhuram v. Delhi Transport Corporation, it was held that the High Court is not entitled to interfere with the findings on jurisdictional facts while a Writ Petition was filed challenging the award of the Labour Court.
14. In the light of this background, several of the submissions made by the learned Counsel representing the workman, which are all factual aspects, need not be discussed in detail. It is no doubt true that all those aspects were brought to the notice of the Court to show that the order of termination is either arbitrary or not in bona fide exercise of power. In the decision referred (2) supra, it was held:
"As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, Objection (as he then was) in Madan Gopal v. State of Punjab, , there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in R.S. Gupta v. U.P. State Agro Industries Corporation Ltd., and reference was made to the development of the law from time to time starting from Parshottam Lal Dhingra v. Union of India, , to the concept of 'purpose of inquiry' introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das, and to the seven-Bench decision in Samsher Sing v. State of Punjab, and to post Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the 'motive' and what is the 'foundation' on which innocuous order is based".
In the decision referred (5) supra, it was held:
"The expression "Industrial Dispute" is defined in Section 2(k) to mean any dispute or difference (i) between employers and employers; (ii) between employers and workman; and (iii) between workmen and workmen, provided such dispute is connected with the employment non-employment, terms of employment or conditions of labour of any person. It is well settled by several decisions of this court that a dispute between the employer and an individual workman does not constitute an industrial dispute unless the cause of the workman in espoused by a body of workmen [see Bombay Union of Journalists v. "The Hindu" ]. Of course, where the dispute concerns the body of the workers as a whole or to a section thereof, it is an industrial dispute. It is precisely for this reason that Section 2-A was inserted by Amendment Act 35 of 1965. It says "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute". By virtue of this provision, the scope of the concept of industrial dispute has been widened, which now embraces not only Section 2(k) but also Section 2-A. Section 2-A, however, covers only cases of discharge, dismissal, retrenchment or termination otherwise of services of an individual workman and not other matters, which means that - to give an example - if a workman is reduced in rank pursuant to a domestic enquiry, the dispute raised by him does not become an industrial dispute within the meaning of Section 2-A. (However, if the union or body of workmen espouses his cause, it does become an industrial dispute.) We have given only one instance; there may be many disputes which would not fall within Section 2(k) or Section 2-A. It is obvious that in all such cases, the remedy is only in a civil Court or by way of arbitration accordiang to law, if the parties so choose. The machinery provided by the Industrial Disputes Act for resolution of disputes (in short Section 10 or 12 does not apply to such a dispute."
In Indian Overseas Bank v. IOB Staff Canteen Workers Union and Anr., 2000 (1) LLJ 1618 it was held that the findings of fact recorded by Industrial Tribunal based on proved facts cannot be considered to be based upon no evidence. In the decision referred (6) supra, it was held that the probationer does not get confirmation without specific order. In the decision referred (7) supra it was held that the suitability of an employee does not depend merely on the excellence or proficiency in work and many factors enter into consideration and a particular attitude or tendency displayed by an employee can well influence the decision of the confirming authority while judging his suitability or fitness for confirmation and it was also held that where the probationer, an Assistant Professor did not disclose the fact that he had executed a bond to serve another University and he adopted an attitude questioning the Rules and Regulations of the Institute as well as orders made by superior authorities the Institute could take these factors and decide not to confirm him and to give him due notice of termination of his service. In the decision referred (8) supra, it was held:
"It is then submitted that the appellant enjoyed a legitimate expectation of being confirmed on the expiry of two years of probation and on successfully completing the qualifying tests and training undergone by him. We are not impressed by that contention. It was open to the State Government to consider the entire record of service rendered by the appellant and to determine whether he was suitable for confirmation or his services should be terminated. There was no right in the appellant to be confirmed merely because he had completed the period of probation of two years and had passed the requisite tests and completed the prescribed training. The function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service".
In the decision referred (9) supra, it was held that the probationer who has not fulfilled the conditions prescribed in the appointment order would not be entitled for confirmation and such termination will come within the scope of Section 2(oo) (bb) of the I.D. Act and hence it is not a retrenchment. In fact, the same matter was carried to the Supreme Court in the decision, referred (10) supra wherein it was held as follows:
"REGULATION 14 aforesaid has to be read as a statutory term of the contract of employment between the Corporation and the appellant. The order of appointment had fixed a target in respect of the performance of the appellant which admittedly the appellant failed to achieve within the period of probation which was extended up to two years. As such the Corporation was entitled not to confirm the appellant in terms of the order of appointment and to terminate his service during the period of probation without any notice in terms of Regulation 14(4 aforesaid. Clauses 10 and 11 of the order of appointment along with Regulation 14 shall be deemed to be stipulations of the contract of employment under which the service of the appellant has been terminated. Any such termination, even if the provisions of the Industrial Disputes Act were applicable in the case of the appellant, shall not be deemed to be "retrenchment" within the meaning of Section 2(oo), having been covered by exception (bb). Before the introduction of Clause (bb) in Section 2(oo), there were only three exceptions so far as termination of the service of the workman was concerned, which had been excluded from the ambit of retrenchment (a) voluntary retirement; (b) retirement on reaching the age of superannuation; and (c) on ground of continued ill-health. This court from time to time held that the definition of "retrenchment" being very wide and comprehensive in nature shall cover, within its ambit termination of service in any manner and for any reason, otherwise than as a punishment inflicted by way of disciplinary action. The result was that even discharge simpliciter was held to fall within the purview of the definition of "retrenchment". (State Bank of India v. N. Sundra Money , Santosh Gupta v. State Bank of Patiala . Now with introduction of one more exception to Section 2(oo), under Clause (bb) the Legislature has excluded from the purview of "retrenchment" (i) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry; (ii) such contract being terminated under a stipulation in that behalf contained in contract of employment. It need not be impressed that if in the contract of employment no such stipulation is provided or prescribed, then such contract shall not be covered by Clause (bb) of Section 2(oo). In the present case, the termination of service of the appellant is as a result of the contract of employment having been terminated under the stipulations specifically provided under Regulation 14 and the order of the appointment of the appellant. In this background, the non-compliance of the requirement of Section 25-F shall not vitiate or nullify the order of termination of the appellant."
In the decision referred (11) supra, it was held that once it was found that the assessment made by the employer was supported by some material and was not mala fide it was not proper for the High Court to interfere and substitute its satisfaction with the satisfaction of the employer and the High Court was also wrong in holding that in order to support its satisfaction it was necessary for the appellant to produce some reports or communication or evidence to show that the performance of the respondent was below the expected norms. Reliance also was placed on the decision referred (12) supra.
15. As already discussed supa, the impugned award was made by the Labour Court on appreciation of the material available on record and none of the tests laid down for exercise of the jurisdiction of this Court to interfere under Article 226 of the Constitution of India had been made out except pointing out several of the factual aspects. The consistent view of the Apex Court always has been that the probationer cannot claim the right of confirmation as a matter of right and it is the overall assessment of the competent authority to judge the same taking into consideration several facts and circumstances. The mere fact that Ex.M-8 was not signed by the workman by itself cannot assist the workman in any way to get the relief especially in the light of the clear findings recorded by the Labour Court while making the impugned award. In the light of the established facts the question whether Section 2-A of the I.D. Act can be invoked or not in the case need not be elaborately dealt with. In the light of the conditions which had been specified even the letter of appointment and inasmuch as the probation was not extended subsequently, it cannot be said that there is any deemed confirmation in this regard. This view taken by me also is in consonance with the Standing Orders of the Management and also the consistent view expressed by the Apex Court in several J decisions.
16. It is no doubt true that certain I allegations had been made that for political I reasons and for certain other past misconduct the order of termination was made. But, however in the light of the clear j documentary evidence specifying the I conditions in Ex.W-2 and also in the light of Section 2(oo) (bb) of the I.D. Act and in view of the limitations imposed in exercise of the jurisdiction under Article 226 of the Constitution of India, I do not think that any substantial grounds had been made out by the workman - writ petitioner, so as to interfere with the impugned award made in this regard.
17. Hence, in the light of the detailed discussion and also the view expressed in several of the decisions referred to supra, and inasmuch as mere sympathy cannot be an effective substitute to the effective legal contentions, I am constrained to hold that the Writ Petition is devoid of merits and accordingly the same is dismissed. But, however in the facts and circumstances of the case, this Court makes no order as to costs.