Delhi District Court
Smt. Savitri Devi vs M/S Raj Kumari Amrit Kaur Child Study ... on 11 April, 2008
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IN THE COURT OF MS. NISHA SAXENA, POLC, FAST
TRACK-XXI, KARKARDOOMA COURTS, DELHI
ID No. 700/06/99
Smt. Savitri Devi,
H-32,
N.P.L. Colony,
New Delhi. ........Workman
Versus
M/s Raj Kumari Amrit Kaur Child Study Centre,
The Lady Irwin College,
Sikandra Road,
New Delhi-110001. .......Management
Appearances : AR for workman Shri O.P Badani.
AR for the management Shri Sanjay Rawat.
References : 1. Smita Paul vs. Principal, St. Anthony's Ser.
Sec. School and another 2006 LLR 147.
2. B.S. Chopra vs. The management of Karnataka
Handloom Development Corporation Ltd and another 2006
LLR 204.
3. Kunwar Arun Kumar vs. U.P. Hill Electronics
Corporation Ltd and others, 1997 (2) SCC 191.
Date of Institution : 22.10.1999
Date of reserving for award : 10.04.08
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Date of award : 11.04.08
AWARD
01. Secretary (Labour) Govt. of the National Capital
Territory of Delhi vide his order No. F.24(3459)/99-Lab./41564-68
dated 08.10.99 has referred the industrial dispute between M/s
Raj Kumari Amrit Kaur Child Study Centre, The Lady
Irwin College, Sikandra Road, New Delhi-110001 and its
workman Smt. Savitri Devi, H-32, N.P.L. Colony, New Delhi
for adjudication as per the following terms of reference:-
"Whether the services of Smt. Savitri Devi
have been terminated illegally and/or
unjustifiably by the management, and if so,
to what relief is she entitled and what
directions are necessary in this respect?"
02. Briefly stated, the facts as projected in the statement of
claim are that the claimant Savitri Devi was appointed as an Ayah
in Rajkumari Amrit Kaur Child Study Centre on 01.10.96 on
probation for a period of two years. She has alleged that the
supervisor Smt. Sarita Devi wanted her to work at her residence
after school hours which was not acceptable as she had to look
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after her own small children. When she refused, Sarita Devi
threatened her with dire consequences and made false complaint
against her that she was not able to hear properly and was not
working properly in the school. On 16.12.97, she was informed
that her probation had been extended for one year because of her
hearing problem and she would be made permanent on the basis of
her medical certificate to the effect that she had no hearing
problem. Despite a certificate from the doctor from Ram Manohar
Lohia Hospital that she had no hearing deficiency, she was
dismissed from her service w.e.f. 1.6.98. She has claimed that she
has been unemployed since then and is virtually on the verge of
starvation. She has sought reinstatement in service with full back
wages. The stand of the management is that the services of
Savitri Devi were never terminated and the same came to an end
on the expiry of probation period. It is stated that at the expiry of
one year of the probation, her case was reviewed by the advisory
committee and it was considered necessary that her probation
period should be continued for one more year as it was found that
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she was not suitable to handle small children who need a lot of
care, caution and with tender love and affection. On the expiry of
the said fixed stipulated period in the contract, her services
automatically came to an end. Her termination is a consequence
of the non-renewal of the contract of employment on the expiry of
the contract and the same is covered within the ambit and scope of
exception of section 2(oo)(bb) of the Industrial Disputes Act.
03. On the pleadings, following issues were settled.
1.Whether the services of the workman came to an end as per section 2(oo)(bb) of the I.D. Act after the end of probation period?
2. As per terms of reference.
04. Parties were given an opportunity to prove their case by way of evidence. Claimant Savitri Devi examined herself as WW1 and proved her affidavit as Ex. WW1/A and relied upon the documents Ex. WW1/1 to Ex. WW1/3. On behalf of the management, Smt. Indu Kaura, Coordinator, Lady Irwin College was examined as Ex. MW1/A. She proved her affidavit as Ex. MW1/A and the documents relied upon are Ex. MW1/1 to Ex. 5 MW1/5. MW2 is Smt. Madhur Mohan who proved her affidavit as Ex. MW2/A and also relied upon the documents Ex. MW2/1 to Ex. MW2/2.
05. I have given my anxious consideration to the rival contentions of AR for workman Shri O.P. Badani and AR for the management Shri Sanjay Rawat and meticulously and scrupulously gone through the entire record.
06. My findings on the issues are as hereunder.
Issue No. 1 : Whether the services of the workman came to an end as per section 2(oo)(bb) of the I.D. Act after the end of probation period?
It has been claimed by the management that the services of workman came to an end as per section 2(oo)(bb) of the Industrial Disputes Act after the end of the probation period. The claimant was appointed as an Ayah on probation basis for a period of two years in terms of appointment letter dated 27.09.96 w.e.f. 1.10.96. Her appointment was probationary in nature and confirmation was to take place only if her work was found to be satisfactory. The letter of appointment dated 27.09.96 Ex. MW1/1 6 appointing her w.e.f. 01.10.96 is in the following terms :-
"Dear Ms. Savitri Devi, Apropos your interview for the post of an ayah in Rajkumari Amrit Kaur Child Study Centre, we are pleased to inform you that you have been selected for the post w.e.f. October 1, 1996.
Your monthly emoluments on the basis of the pay scale 470-8-550-EB-9-595 plus allowances will be Rs. 1484.00. Your working hours will be from 12.15 p.m. to 6.00 p.m. You will be on probation for a period of two years. During the probation, you will be entitled to only 12 casual leaves per year.
You are expected to maintain a cheerful and loving attitude towards all the children in school and fulfill whatever duties are assigned to you to the satisfaction of the authorities. Your service will be confirmed after the probation period only if your work is found to be fully 7 satisfactory.
Please confirm your acceptance in writing."
The management has claimed that during probation period her work was not found satisfactory and she was given a number of opportunities to improve her performance. It has been claimed that the work and performance at the school involved handling small children, handicapped children who require utmost care and attention. The failure of the claimant to improve her performance was against the interest of the small children and she did not pay any heed to the repeated insistences of verbal cautioning. It is stated that the management was left with no other option but to bring an end to her probationary employment on account of her unsatisfactory performance vide letter dated 30.04.98 which was to take effect from 1.6.98. The letter dated 30.04.98 Ex. MW1/2 says that due to her performance being not satisfactory her probation was further extended by one year. Many complaints were received against her. Since she did not improve her work despite repeated cautioning her services were being 8 terminated w.e.f 1.6.98. The main contention of AR for workman is that the letter is stigmatic in nature and is not a simpliciter termination and therefore, it does not fall under section 2(oo)(bb) of the Industrial Disputes Act. It has been claimed by the management that it never terminated services of the claimant and the alleged termination is a consequence of the non renewal of the contract of probationary employment between the management and the claimant and such contract being terminated under a stipulation in that behalf contained therein. It has been alleged on behalf of the workman that there was motive behind victimizing her while terminating her services as she refused to work at the residence of Smt. Sarita who harassed her to work at her residence after duty hours. False complaints were made against her work. The letter dated 16.12.97 Ex. WW1/3 has been relied upon by the workman stating that her probation was extended for another year on the allegations that she was hard of hearing and was not doing her work sincerely. They also referred to one previous letter dated 29.09.97 in which she was cautioned. It is also mentioned in the 9 letter that the supervisor Smt. Indu Kaura would tell her about the right doctor from whom she should get herself checked so that her services could be confirmed. It has been stated by the workman that though she obtained requisite certificate from doctor stating that she had no hearing deficiency vide mark B, but the management continued to harass her and dismissed her w.e.f. 1.6.98. The management has placed on record letter dated 29.09.97 Ex. MW1/6 vide which the claimant was cautioned about her unsatisfactory performance. She was informed that she was not taking full interest in the work. It was stated that she was not doing the cleanliness properly; that she was assigned work of looking after children from 5.00 to 5.20 but she has to be called several times. Sometimes, she leaves children unattended while playing and does not take proper care of them. She has been cautioned that she was on probation and that if she did not improve her work her services could be terminated. In Smita Paul vs. Principal, St. Anthony's Ser. Sec. School and another 2006 LLR 147, it was held that "Termination of a 10 probationer for unsatisfactory performance cannot be termed as stigmatic or based on misconduct." In another relevant case law, B.S. Chopra vs. The management of Karnataka Handloom Development Corporation Ltd and another 2006 LLR 204, the management terminated services of the workman stating that "As your overall performance and conduct were found to be unsatisfactory, probation was further extended. Inspite of sereral opportunities given to you, you have not improved your performance. Therefore, you are hereby terminated from the services of the corporation as per clause 3 of the appointment letter." The court held that "Even when a show cause notice is issued to a probationer during the probation period but the same is not followed with an enquiry, it will not nullify his termination after the expiry of probation period more so when the notice of termination categorically stated that he has failed to improve his performance."
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07. Merely recording unsatisfactory performance of the probationer during the probation period by the management will not render the termination of the probationer as illegal. During the period of probation, the employers are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service, they are entitled to record the findings of unsatisfactory performance of the work and duties during the period of probation. Under these circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry. That does not amount to any stigma. I am fortified in my opinion by Kunwar Arun Kumar vs. U.P. Hill Electronics Corporation Ltd and others, 1997 (2) SCC 191. Generally speaking, when a probationer's appointment is terminated it means that probationer 12 is unfit for the job, whether by reason of misconduct or inaptitude, whatever, the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
08. In the instant case, the termination order does not refer to any misconduct or deficiency in hearing. In the letter dated 29.9.97 and 16.12.97 a reference has been made to her deficiency in hearing but in the termination order there is no such mention. Otherwise also, it is the case of the workman that doctors of Ram manohar Lohia Hospital issued a certificate saying that there was no deficiency in hearing. In the letter dated 13.04.98 terminating her service w.e.f. 1.6.98, no stigma has been cast upon her. It does not contain any statement casting aspersion on her conduct or 13 character that it can be treated as an order of punishment, but it merely highlights the unsuitability of the claimant. The expression 'unsatisfactory' is used in relation to the work of the claimant and it would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service. In view of the aforesaid observations, I hold that the termination of the services of the claimant is a result of non- renewal of contract of employment on expiry of the probation period and therefore, it is covered under section 2(oo)(bb) of the Industrial Disputes Act. I accordingly hold that the services of the workman came to an end after the end of her probation period. Issue no. 1 is accordingly decided in favour of the management and against the workman.
08. Issue no. 2 : As per terms of reference.
Since I have already held that the services of workman came to an end as per section 2(oo)(bb) after the expiry of the probation period. There is nothing on record to hold that her services were terminated illegally or unjustifiably by the 14 management. She is not entitled for any relief from the court. Issue no. 2 is accordingly decided in favour of the management and against the workman.
ANNOUNCED IN THE OPEN COURT ON: 11.04.2008 (NISHA SAXENA) PRESIDING OFFICER, LABOUR COURT, KARKARDOOMA COURTS, SHAHDARA, DELHI 15