Gujarat High Court
Indian vs Harikishan on 4 July, 2011
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/14195/1993 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14195 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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INDIAN
OIL CORPORATION LTD - Petitioner(s)
Versus
HARIKISHAN
DAHYABHAI VYAS - Respondent(s)
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Appearance :
MRS
MAUNA M BHATT for
Petitioner(s) : 1,
MR RP BHATT for Petitioner(s) : 1,
MR DG CHAUHAN for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 15/10/2010
ORAL
JUDGMENT
1. By way of this petition under Article 227 of the Constitution of India the petitioner-Indian Oil Corporation has prayed for an appropriate writ, order or direction quashing and setting aside the impugned judgement and award dated 30/09/1993 passed by the Labour Court, Ahmedabad in Reference (L.C.A.) No. 835/1982 by which the Labour Court has partly allowed the Reference directing the petitioner-Indian Oil Corporation to reinstate the respondent-workman on his original post without back wages and other consequential rights.
2. The facts leading to the present Special Civil Application in a nutshell are as under;
2.1. The respondent was appointed as a probationer vide order dated 10/10/1980 and joined the duty on 13/11/1980. It is the case on behalf of the petitioner that in the order of appointment itself it was specifically mentioned that the probation was for a period of one year from the date of the respondent taking the charge and the period could be extended or reduced and if the work of the respondent was found to be satisfactory, then and then only, he would be confirmed in service. It is the case on behalf of the petitioner that therefore the service is not to be considered as confirmed until the letter of confirmation is issued by the management. It is the case on behalf of the petitioner that despite various warnings issued to the respondent about unsatisfactory performance, respondent used to remain absent without permission, and he failed to carry out the duties and instructions and there was no improvement in the conduct, behaviour and the manner of the respondent. It appears that the period of probation was thereafter extended by three months up to 12/02/1982 and on expiry of the period of probation i.e. 12/02/1982, service of the respondent was put to an end with future effect from 12/02/1982. Being aggrieved and dissatisfied with the above termination, the respondent raised an industrial dispute, which was referred to the Labour Court, Ahmedabad, which was numbered as Reference (L.C.A.) No. 832/1982, and the Labour Court vide impugned judgement and award dated 30/09/1993 partly allowed the Reference by directing the petitioner to reinstate the respondent solely and mainly on the ground that after completion of period of one year probation as probation was not further extended and as in the meantime memos were issued and the order of termination was by way of punishment, the petitioner was required to hold departmental inquiry. It appears that the Labour Court observed and considered that as after the period of completion of one year the probation was not extended for some time and, therefore, he was to be treated as confirmed employee and, therefore, the Labour Court held that before terminating the service of the respondent the petitioner ought to have held the departmental inquiry. Being aggrieved and dissatisfied with the same, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India.
3. Shri Manish Bhatt, learned Senior advocate appearing on behalf of the petitioner has vehemently submitted that the Labour Court has materially erred in treating the respondent-workman as permanent despite the fact that the respondent was on probation and the probation period was not extended and in the appointment order it was specifically mentioned that unless and until specific order is passed to make him permanent, after his work was found satisfactory, he should be treated as probationer. It is further submitted that the work of the respondent was found to be unsatisfactory and on expiry of the period of probation when the service of the respondent was put to an end on and from 12/02/1982 there was no question of holding any further departmental inquiry. It is submitted that as such the order of termination was termination simplicitor and, therefore, there was no question of holding any inquiry. Shri Bhatt, learned Senior advocate appearing on behalf of the petitioner has submitted that as such the controversy in question is squarely covered by the recent decision of the Hon'ble Supreme Court in the case of KAZIA MOHAMMED MUZZAMMIL Vs. STATE OF KARNATAKA AND ANR reported in (2010) 8 SCC 155.
It is submitted that as held by the Hon'ble Supreme Court when the discharge of the probationer was on the ground of unsuitability during the probation period unless the workman is able to show circumstances supported by cogent material on record that the order is stigmatic and is intended to overreach the process of law, the Court cannot interfere with the discharge order, which is prima facie not stigmatic. It is further submitted that it is held by the Hon'ble Supreme Court in the said decision that there cannot be automatic confirmation even on completion of the probation period and, therefore, the deemed or automatic confirmation cannot be inferred. Relying upon the above decision and making the above submission, it is requested to allow the present petition.
4. Shri D.G. Chauhan, learned advocate appearing on behalf of the respondent has tried to support the impugned judgement and award passed by the Labour Court by submitting that as after the order of appointment on probation, the said period of probation expired and there was no extension of probation period for some time, when the Labour Court has held and treated the respondent as deemed confirmed in service and when it was found that the performance of the respondent-workman was found to be unsatisfactory, the petitioner was required to hold departmental inquiry and when in absence of any departmental inquiry the respondent was terminated, the Labour Court has rightly passed the impugned judgement and award directing the petitioner to reinstate the respondent on his original post without back wages and, therefore, it is requested to dismiss the present petition.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that admittedly the appointment of the respondent was on probation initially for a period of one year with condition that the said period could be extended or reduced and only if the work was found to be satisfactory he would be confirmed in service. In the said order it was specifically mentioned that at the end of the probation period the service of the respondent can be terminated without notice and without issuing any reason and the service of the respondent is not to be regarded as confirmed unless the letter was issued by the management. It is to be noted that his period of probation was extended up to 12/02/1982 and on completion of the probation period his work was found to be unsatisfactory and, therefore, the respondent came to be terminated with effect from 12/02/1982. Considering the aforesaid conditions made in the appointment order even if for some time/period after completion of the initial probation period of one year the period of probation was not extended, in that case also, considering the conditions stipulated in the initial order of appointment there was no automatic confirmation in service. In the order of appointment it is specifically mentioned that the services were not to be regarded as confirmed unless the letter of confirmation is received by the management and, therefore, the Labour Court has materially erred in treating the respondent as deemed and confirmed employee. It is to be noted that as such thereafter his period of probation was extended up to 12/02/1982 and at the end of the period of probation his services came to be terminated as his work was not found satisfactory. Considering the order of termination it is an order simplicitor and, therefore, the Labour Court has materially erred in treating the respondent as deemed confirmed on completion of the initial period of one year of probation and consequently has materially erred in holding that as the performance of the respondent was found to be unsatisfactory the petitioner was required to hold departmental inquiry before terminating service of the respondent. The aforesaid cannot be sustained in light of the recent decision of the Hon'ble Supreme Court in the case of KAZIA MOHAMMED MUZZAMMIL (Supra).
It is submitted by Shri Bhatt, learned advocate appearing on behalf of the petitioner that the case on hand is squarely covered by the decision of the Hon'ble Supreme Court in the case of KAZIA MOHAMMED MUZZAMMIL (Supra). In the aforesaid decision, the Hon'ble Supreme Court has analyzed in detail the concept of deemed extension and the automatic confirmation. It is observed that if under the Rules and/or order of appointment it provides that after completion of the probation period if the employees performance is found to be satisfactory issuance of formal order is necessary and/or required, unless and until the formal order of confirmation is issued there is no automatic confirmation and/or deemed extension. It is also further held by the Hon'ble Supreme Court in the said decision that when the employee is discharged on the ground of unsuitability during the probation period and the order is not stigmatic the Court should not interfere with such an order of discharge from service. Considering the aforesaid decision of the Hon'ble Supreme Court, the impugned judgement and award passed by the Labour Court cannot be sustained and the same deserves to be quashed and set aside.
6. In view of the above and for the reasons stated hereinabove, the present petition succeeds. The impugned judgement and award dated 30/09/1993 passed by the Presiding Officer, Labour Court, Ahmedabad in Reference (L.C.A.) No. 835/1982 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No cost.
(M.R. SHAH, J.) siji Top