Delhi District Court
Sh. Kapil Dev @ Rajender Kumar vs M/S Tyre Junction on 22 November, 2007
ID NO. 170/2005
IN THE COURT OF MS. MAMTA TAYAL: PRESIDING OFFICER: LABOUR
COURT-I : ROOM NO.50: KARKARDOOMA COURTS: DELHI.
ID NO. 170/2005
BETWEEN
Sh. Kapil Dev @ Rajender Kumar
S/O Sh. Harkhoo Sharma
R/O 7/184, Mithapur Extension,
New Delhi.
........ Workman
AND
M/s Tyre Junction
Through Jyoti Taneja
Opp. Onida Mathura Road,
Badarpur, New Delhi.
........ Management
AWARD
1.The claim petition has been filed by the claimant directly vide notification no. F-25/(1) Secretary/Lab. /03/22 dated 27/2/2004 read with notification no. 15/4/ILC (L) Lab./03/2821 dated 22/08/2003 in which the claimant prayed for reinstatement along with all consequential benefits including back wages and continuity of service.
2 The brief facts as stated by the workman in his claim 1 ID NO. 170/2005 petition are that he had been diligently and honestly working with the management w.e.f. 25.10.1994 as a helper. His last drawn wages were Rs. 2,800/- per month. The management adopted anti labour practice against the workman by not providing him the legal benefits such as bonus, overtime, leave encashment. It was further contended that had had gone to his native village on 05.02.2005 with prior permission of the management for some urgent work but when he came back, he was not allowed to join his duties and he was terminated on 26.02.2005 without assigning any reason. He had not been paid the earned wages for February,2005. It was further averred that he was a permanent employee of the management and no misconduct was proved against him. He sent a demand notice dated 01.03.05 but to no avail. The workman is unemployed since his termination.
2 The claim of the workman was contested by the management by filing written statement. The relationship and appointment of the claimant is admitted. It was contended that the workman was appointed on daily wages on oral agreement. The workman was not performing his duties satisfactorily. 2 ID NO. 170/2005 Management was not interested to continue him in the service but he was interested in working with the management. When the management refused to continue him in the service after completion of oral agreement, he filed the present petition with false allegations.
3 In rejoinder, the contentions of the management were controverted and his own submissions were reaffirmed by the claimant.
4 On the pleadings of the parties, following issues were framed on 12.07.2005 :-
1) Whether the services of the claimant were terminated illegally or unjustifiably?
2) Relief
5 The workman tendered himself as WW-1. The management, on the other hand examined M.s Jyoti Taneja, partner of management as MW-1. Evidence was closed and written final arguments were filed by both the parties. 3 ID NO. 170/2005 6 I have carefully considered the matter and gone through the records. I have also perused the written arguments filed by the both the sides.
My findings on the above issues are as follows:-
ISSUE NO.1 :-
7 In nutshell the claim of the workman is that he was initially appointed as driver with the management vide letter dated 12.06.1985 and was brought on monthly rate of pay w.e.f. 12.12.85 vide memo dated 27.07.1986. On 21.08.1986, the bus being driven by him met with an accident and on next day he was terminated without following the procedure established by law. He was charged for the offence of committing an offence and was convicted by the lower court. But vide order dated 21.01.2000 Ld. Sessions Court acquitted him holding him innocent. Thereafter the workman repeated requests to the management for review of his termination order but to no avail. Hence, he raised an industrial dispute leading to the present reference. It is not disputed by the workman in his cross- examination that on the date of his 4 ID NO. 170/2005 termination he was still on probation. His services had not been confirmed as the probation period was not completed. The workman has also not disputed the testimony of MW1 that initially he was appointed as retainer crew driver on daily wages and he was placed on probation vide letter dated 27.07.86 for a period of one year starting from 12.12.85. The admitted facts which crystalise this discussion are that at the time of initial appointment the workman was only engaged on daily basis temporarily and did not have any right to job whatsoever. It has been held in the caton of judgments by Hon'ble Supreme Court that these kind of stop gap arrangements cannot be regularised as they will amount to back door entry into the public employment which can be done only after adhering to the constitutional provisions. After his initial appointment as daily wager the department placed the workman on probation vide letter Ex.MW1/6 clearly stipulating that during probation period the services of the workman shall be liable to termination at any time without notice and without assigning any reason. It is not in dispute that the workman was still in probation when he his services were terminated. Though AR for workman argued that the termnation without enquiry was bad as it was on account of the accident allegedly caused by the workman wherein he was acquitted by the 5 ID NO. 170/2005 Ld. Sessions Court but in my considered opinion there is no merit in this contention.
8 In 'Abhijit Gupta vs. S.N.B. National Centre, Basic Sciences and Other-2006-II-LLJ-777' it was held that the termination of probationer's service did not ipso facto become stigmatic for stating explicitly what was implicit in every order of termination of probationer's appointment.
9 In case titled as 'Vinod Kumar Walia vs. Presiding Officer, Labour Court and another 2005 LLR 338', the Hon'ble High Court relied on the decision of Hon'ble Supreme Court in 'Governing Council of Kidwai Memorial Institute of Oncology, Bangalore vs. Dr. Pandurang Godwalkar and another, AIR 1993 SC 392' wherein it was held that:-
"Generally in connection with an order of termination, a question is raised before the court as to what is the motive behind the termination of the service of the employee concerned whether the reason mentioned in the order of termination has to be accepted on its face value or the background in which such order of termination 6 ID NO. 170/2005 simplicitor has been passed should be examined to find out as to whether an officer on probation or holding a temporary appointment has been, in fact, dismissed from the service without initiating any departmental enquiry. If an employee who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge, then a plea cannot be taken that as his service was temporary or his appointment was on probation, there was no requirement of holding any enquiry, affording such an employee an opportunity to show that the charge levelled against him is either not true or it is without any basis. But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simpliciter after some preliminary enquiry it cannot be held that as some enquiry had been 7 ID NO. 170/2005 made against him before the issuance of order of termination is really amounted to his removal from service on a charge as such penal in nature. When an appointment is made on probation, it pre-supposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation. He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed. The principle of tearing, of the veil for finding out the real nature of the order shall be applicable only in a case where the court is satisfied that there is a direct nexus between the charge so levelled and the action taken. If the decision is taken, to terminate the service of an employee during the period of probation, after taking into 8 ID NO. 170/2005 consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment. It need not be said that the appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee.
Even if such employee while questioning the validity of an order of termination simpliciter brings on the record that some preliminary enquiry or examination of some allegations had been made, that will not vitiate the order of termination. Reference in this 9 ID NO. 170/2005 connection may be made to the case of 'Oil and Natural Gas Commission vs. Dr. Mohd. S. Iskender Ali, AIR 1980 SC 1242: 1980 (3) SSC 428: 1980 II LLJ 155' where it was pointed out that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained. It was also said that even if misconduct, negligence, inefficiency may be the motive or the influencing factor which induced the employer to terminate the service of the employee which such employer admittedly had under the terms of the appointment, such termination cannot be held to be penalty or punishment..."
9 In 'Vinod Kumar Walia vs. Presiding Officer, Labour Court and another (Supra)' it was held that termination of a probationer, for unsatisfactory work, will neither be stigmatic nor punitive when it has been made in accordance with the contract of his service as stipulated in the appointment letter inter-alia providing that the 10 ID NO. 170/2005 probationary services can be terminated by the management during the probation period.
10 In another case of 'Municipal Committee of Sirsa vs. Munshi Ram (2005) 2 S.C.C. 382', it has been held by Hon'ble Apex Court that the services of probationer can be terminated for not being able to complete the period of probation satisfactorily. Besides this MW1 has affirmed that the management has also sent one month's notice salary and retrenchment compensation for 15 days along with termination letter dated 22.08.86 but the same was refused to be received by the workman. The relevant documents were proved as Ex.MW1/3 & MW1/4. This was not challenged or controverted in cross- examination. It was no where suggested that no such amount was sent by the management or that the workman had refused to receive the notice pay and the retrenchment compensation. This testimony of MW1 stands unrebutted leading to the conclusion that the services of the workman have not been terminated illegally or unjustifiably by the management. 11 Besides this it is also important to note at this stage that the workman was admittedly terminated in 1986 and the reference was raised in 2003 and there is no reasonable and sufficient 11 ID NO. 170/2005 explanation for the delay in raising the dispute. Inordinate delay in raising an industrial dispute by the workman has been held as fatal. Admittedly, no specific limitation period is provided for raising an Industrial Dispute in I.D Act, still the court has to see the delay in approaching the court as a stale claim as held in 'Krishi Utpadan Mandi Samiti vs. Pahal Singh 2007 LLR 579'. Same was the view expressed by Hon'ble Bombay High Court in the case of 'Union of India vs. Narayana M (2002) IVLLJ (Supp) Bom. 912'. In another case reported as 'Nedungadi Bank Ltd. vs. K.P. Madhawanketty & ors.' Hon'ble Supreme Court held seven years delay in raising an industrial dispute as fatal. In another recent case of 'Assistant Engineer, C.A.D , Kota vs. Dhan Kunwar 2006, LLR 1220'', the Apex Court set aside the award of reinstatement as the dispute was raised after eight years of termination. In circumstances, in absence of any just and reasonable explanation for delay of 17 years in raising the dispute after termination, I am of the opinion that the claim is not maintainable being stale. The issue is decided accordingly in favour of management and against the workman.
12 I therefore, hold that the workman is not entitled to any relief or directions in this reference. The reference is answered 12 ID NO. 170/2005 accordingly. Copies of the award be sent to the appropriate government for publication as per law after necessary compliance by Ahlmad. File be consigned to record room.
Announced in the open court (MAMTA TAYAL)
nd
on 22 November, 2007 PRESIDING OFFICER LABOUR COURT-I
KARKARDOOMA COURTS, DELHI
(SIX COPIES ATTACHED)
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