Delhi High Court
Management Of Mahavir Senior Model ... vs Shri Ram Surat Mishra S/O Shri Than Singh on 15 September, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
Page 3169
1. By this writ petition the petitioner has challenged the validity of the Award dated 15.6.2001 passed by Labour Court No. III, Karkardooma Courts, Delhi, whereby the petitioner has been directed to reinstate the respondent with 30 % back wages.
2. Brief facts are that the respondent alleged that he was working with the management as Driver since March 1991. His last drawn wages were Rs.1300/- per month. In the month of January, 1995 he came to know that he was being paid the salary of a Chowkidar and not that of a driver. He asked the management on 17.1.1995 to pay him the salary of a driver from the date of his appointment. On this the Principal of petitioner school become annoyed and terminated his services w.e.f. 17.1.1995. Neither he was given a charge sheet nor he was given any notice. He was not paid retrenchment compensation nor any salary in lieu of notice period. Juniors to him were retained in service. He reported the matter to the Labour Department on 23.2.1995.
3. On the basis of the pleas of workman/ respondent, following dispute was referred for adjudication to Labour Court:
Whether the services of Shri Ram Surat Mishra have been terminated illegally and/ or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect.
4. The case of the management is that workman had worked only for a short duration. He joined the management on 2.4.1991 and left services of the management on 5.7.1991 of his own . Thereafter, he again joined services of the management on 8.8.1994 purely on trial basis and worked only up to 16.1.1995, so he had been with the management only for a short period. He was on probation and since his work was not satisfactory he was removed from service during probation. No notice or charge sheet was required to be given to him.
5. Before the Tribunal both the parties led evidence and management produced record of employment and salary paid to the respondent. The management also examined official from the Provident Fund department to prove the period for which respondent had worked with the management. After going through the evidence, the Tribunal came to the conclusion that the workman's allegation that he worked with the management from March, 1991 till 15.1.1995 was false and the contention of the Page 3170 management that he worked only for few days i.e. from 8.8.94 till 16.1.1995 was correct and proved. After arriving at the conclusion that the workman had not worked for 240 days with the management at any point of time, the Tribunal observed that the provisions of Section 25G of the Industrial Disputes Act, 1947 ( for short the Act) had not been complied with. Management at the time of termination of service of the workman had not adopted the principles of 'last come first go' as laid down under Section 25G of the Act. Management had not given opportunity to the workman to offer himself for re-employment. Thus there was violation of Section 25H of the Act and the termination was illegal, even if there was no violation of Section 25F of the Act.
6. During the evidence, the management produced the letter it had written to the Director of Education about termination of the services of respondent. In the letter written to Education Director, the management had stated that services of respondent were terminated with effect from 17.1.1995 due to following reasons: misbehavior with staff and students negligence towards performance of his duties including maintenance of the vehicle he threatened to damage the vehicle and cause harm to the students and staff rash driving- thereby causing dents to the bus financial misdemeanor
7. The Tribunal held that the real reason for termination of service of the workman were the allegations stated above and it was the duty of the management to hold an inquiry and give opportunity to respondent to rebut the allegations. The termination of the services was therefore, not legal and justified. The Tribunal also turned down the arguments of the petitioner that the services of the respondent were governed by the statutory rules as applicable to the employees provided under 'The Delhi School Education Act, 1973' and 'The Delhi School Education Rules, 1973'. Under Rule 105, the services of an employee who is on probation, can be terminated during probation period without the approval of the Director in case of a minority institute. The Tribunal held that educational institute was an industry and the Industrial Disputes Act would be applicable.
8. The order of the Tribunal has been challenged by the petitioner on the grounds that
i) Tribunal could not have held that there was violation of Section 25G and H of the Act in absence of any finding to the effect as to who was junior driver to the respondent that after retrenchment of workman, management had made fresh appointment. Re-employment in terms of Section 25H of the Act pre- supposes a valid termination and therefore constitutes a different cause of action and could have been gone into by the Labour Court only if reference had been made in this regard, so the Tribunal gave an Award without jurisdiction.
ii) Labour Court had failed to appreciate that as per Rule 105 of the Delhi School Education Act and Rules, 1973, an employee on probation can be terminated without notice in case his work and conduct during this period is not found satisfactory. No consent of Director, Education was necessary for minority schools and the petitioner school being a minority school there was no requirement for consent. There was no Page 3171 requirement under the law for the petitioner to hold an enquiry before terminating the services of the workman.
iii) That in terms of PIL M.C. Mehta v. Union of India, Supreme Court had given stringent directions in respect of drivers of school buses. Respondent/workman could not have been allowed to work as driver of the school bus and could not have been allowed to play with the lives of the innocent children.
iv) That the petitioner being an educational institute was not industry.
9. Learned Counsel for the respondent argued that school was covered under the provisions of Act. There was no infirmity in the order of the learned Tribunal and the petitioner was bound to hold an inquiry since the services of the respondents were terminated for misconduct. The petitioner has not followed the principles of natural justice by not giving opportunities to the respondent to explain his conduct.
10. I have learned Counsel for the parties and perused the record.
11. In 1988 SCC (LandS) 53,(C.M.C. Hospital Emp. Union v. C.M.C. Vellore Association) Supreme court held that the Industrial Disputes Act shall apply to educational institutes even if they are minority institutes and protected under Article 30(1) of Constitution of India Act applies to all industries irrespective of religion, cast to which the party belongs. In view of this decision of Supreme Court it cannot be said that Industrial Disputes Act does not apply to the employees of the school (Teachers are not workman). I consider that the Act shall be applicable in case of the petitioner institute in respect of employees other than teachers.
12. It is undisputed that the respondent workman did not approach the appropriate government or the labour Court with clean hands. The respondent contended that he had worked with the management from March 1991 to January 1995 continuously whereas he had worked initially for 3 to 4 months in 1991 and thereafter he had joined the institute on 8th August 1994 and worked till 16.1.1995. He worked with the management only for 162 days inclusive of Sundays/ Saturdays and holidays in 1994-1995. The reference was on the basis of allegations of respondent that he had worked from March, 1991 to January, 1995 and had been terminated without payment of retrenchment compensation, without any notice, without any charge sheet. Once this basis of the reference had gone and it had been proved from the records that workman had worked only for 162 days and he made false claim of having worked for four years, the claim of the respondent was liable to be dismissed on the ground of not coming to court with clean hands and concealment of facts. No reference was made to the Tribunal whether the provisions of Section 25G and 25H have been complied with. The question of application of Sections 25 G and H arises only if the workman has been retrenched in terms of Section 2(oo) and 25F. It was not the case of respondent that he has been retrenched and principle of last come first go has not been followed or that after retrenching him, someone else has been employed as a driver. Respondent case was that he has been wrongfully terminated. It is settled law that the Tribunal gets jurisdiction from the reference made to it and Page 3172 Tribunal cannot travel beyond the reference. In (2006) II LLJ 246 State Bank of Bikanair and Jaipur v. O.P. Sharma, the Supreme Court held:
The Industrial Court, it is well settled, derives its jurisdiction from the reference. See Mukand Ltd. v. Mukand Staff and Officers' Association . The reference made to the CGIT specifically refers to only one question, i.e. whether any illegality was committed by the management in giving appointment to one Vijay Kumar in place of the respondent in violation of Section 25-H of I.D. Act, 1947. Non maintenance of any register in terms of Rule 77 of the I.D. Rules was thus not in issue. Before the Industrial Court, the parties adduced evidence. An attempt was made by the respondent herein to show that one Vijay Singh was appointed, although the name of one Vijay Kumar appeared in the reference. An attempt was also made by the respondent to show that Vijay Kumar and Vijay Singh are one and the same person. In fact, one Voucher was produced which was allegedly issued in the name of one Vijay Sharma. The said contentions of the respondent were denied and disputed by the appellate herein. (Para 8) The specific issue which was, therefore, referred for determination by the Labour Court, related to the dispute as regards violation of Section 25-H of the Act. If the said provisions had not been found to be violated, the question of setting aside the order of termination by the Labour Court did not and could not arise. The learned Single Judge proceeded on the premise that the High Court, in exercise of its writ jurisdiction, cannot sit in appeal over the award of the Labour Court. The Learned single Judge was right, but then, only because the jurisdiction of the High Court, while exercising of its power of judicial review was limited, it would not mean that even a jurisdictional error could not have been corrected. The provisions of Article 226 and 227 of the Constitution of India would be attracted if the inferior Tribunal has, inter alia, committed a jurisdictional error. What would be the ground for judicial review, in regard to the orders passed by the inferior Tribunal is no longer a res integra. (para 12) In the instant case, the award of the Labour Court suffers from an illegality, which appears on the face of the record. The jurisdiction of the Labour Court emanated from the order of the reference. It could not have passed an order going beyond the terms of the reference. While passing the award, if the Labour Court exceeds its jurisdiction, the award must be held to be suffering from a jurisdictional error. It was capable of being corrected by the High Court in exercise of its power of judicial review. The High Court, therefore, clearly fell in error in refusing to exercise its jurisdiction. The award and the judgment of the High Court, therefore, cannot be sustained. Consequently, the appeal allowed and the judgment of the High Court is set aside. The award is set aside to the extent of order of reinstatement with back wages. The writ petition filed by the appellant in the High Court is thus, allowed.(Para 14) Page 3173
13. In the present case Tribunal travelled beyond the reference. I, therefore, consider that the Award passed by the Tribunal was without jurisdiction.
14. Even if it is considered that the Tribunal had presumed that the termination was illegal and had sought to consider the applicability of Section 25H and 25G of the Act, the Tribunal should have given notice of its intention to the parties and asked them to lead evidence to show whether any person has been employed as driver after the termination of the workman. Even a Tribunal cannot take parties by surprise and could not have made observation that the management had not pleaded that at the time of termination of the service of the workman the principles of ' last come first go' was applied. It was for the workman to lead evidence to show that after him some driver was appointed and that driver was not retrenched. There was no reference before the Tribunal under Section 25G and 25H of the Act, neither party had led any evidence in this respect and the Tribunal passed order on the basis of conjuctures and surmises. In fact there were no pleading on these counts. Respondent merely made vague allegations that persons junior to him were not terminated, without specifying any name. No issue was framed by the Tribunal on this count.
15. The petitioner's institute was governed by the 'The Delhi School Education Act, 1973' and 'The Delhi School Education Rules, 1973'. Even if the Industrial Disputes Act applies to the petitioner and an employee can raise a dispute which can be referred to the industrial Tribunal, the application of rules under 'The Delhi School Education Act, 1973' is not excluded by Industrial Disputes Act. Therefore, it cannot be said that these rules do not apply. Rule 105 of 'The Delhi School Education Rules, 1973' reads as under:
105. Probation- (1) Every employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing authority ( with the prior approval of the Director) and the services of an employee may be terminated without notice during the period of probation if the work and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory:
(Provided that the provisions of this sub-rule relating to the prior approval of the Director in regard to the extension of the period of probation by another year, shall not apply in the case of an employee of a minority school: Provided further that no termination from the service of an employee on probation shall be made by a school, other than a minority school, except with the previous approval of the Director.) (2) If the work and conduct of an employee during the period of probation is fond to be satisfactory, he shall be on the expiry of the period of probation or the extended period of probation as the case may be, confirmed with effect from the date of expiry of the said period.
(3) Nothing in this rule shall apply to an employee who has been appointed to fill a temporary vacancy or any vacancy for a limited period. In terms of above the workman could not have been appointed but on probation for a period of one year and his work and conduct had to be watched during this period, before he was made a regular employee. The services of an employee of a Page 3174 school can be terminated during the period of one year in the same manner as that of a probationer. Since the petitioner did not find the services of respondent during this period satisfactory, the petitioner was not bound to keep the respondent employed and was not bound to suffer by keeping an incompetent driver for full term of probation and continue to run risk to lives of children.
16. Sending of letter to the Director of education informing that why service of workman was terminated does not amount to termination of the workman for a misconduct. An employer is supposed to watch the conduct of the probationer and if he makes a note of his working attitude and the deficiency in him and informs somebody about deficiency and unsatisfactory work that does not put an obligation on the employer to initiate an enquiry. The termination of the respondent was made simpliciter and could not have been held to be punitive. Record shows that the misconduct enumerated in the letter written to Director of Education did not form part of the termination order nor it is the case of the respondent that he was terminated because of misconduct. Therefore, it could not be said that termination was punitive.
17. In Municipal Committee of Sirsa v. Mushi Ram 2005 SCC ( LandS) 277-, the appellant appointed respondent as Octroi Moharrir. The appointment letter stated that services of the respondent could be terminated without assigning any cause at any time during the period of probation. During the course of evidence before Labour Court a witness had admitted that when the Administrator inspected the octroi post he had found that the respondent had allowed certain vehicles carrying goods to go without charging of octroi fees, contrary to rules. Records also showed that immediately after this instance the services of the respondent were terminated. Labour Court and the appellant bench of the High court held that though the discharge was simpliciter but in reality it was a colourable exercise of power without holding an inquiry. Supreme Court held:
Law on this question by now is well settled. This Court in the case of Krishnadevaraya Education Trust v. L.A. Balakrishna while considering the similar situation held thus : ( SCC pp. 320-21, paras 5-6)
5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/ appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, naturally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it stats that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.
Page 3175
6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.
10 It is clear from the above that if the order of termination indicates that it is a termination simpliciter and does not cast any stigma on the employee by the said order of termination the mere fact that there was an inquiry into his conduct earlier would not by itself render the termination invalid. Applying the said principle, we see that the order of termination in the present case is an order of discharge simpliciter. But in the course of the inquiry, the Labour Court noticed that on an earlier day there was some incident where the administrative officer found some lacunae in the working of the respondent but based on that no charge sheet was served nor inquiry was conducted. However, the appellant came to the conclusion that it is not in its interest to continue the respondent's services, hence, discharged him. In the back ground, the mere fact that there was a misconduct on the part of the respondent which was not enquired into ipso facto does not lead to the conclusion that the order of termination is colourable and in fact is a punitive order. ( para 10)
11. In H.F. Sangati v. Registrar General, High Court of Karnataka this Court while considering the discharge of a probationary Munsif held : ( SCC P. 118) The impugned order does not cast any stigma on the appellants. Al that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsif. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to hold any formal proceedings of inquiry before making the order. ( para 11)
13. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences this Court again considering a similar case held: ( SCC p. 528, para 21)
21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. ( para 13)
14. From the above, it is seen that in the absence of the three facts as mentioned therein, namely,
(a) a full scale formal enquiry Page 3176
(b) into allegations involving moral turpitude or misconduct which
(c)culminated in a finding of guilt the termination cannot be held to be bad. ( para 14 )
15.This Court in the said case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences further held: (SCC p. 522) It cannot be held that the enquiry held prior to the order of termination turned the otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists in the present case.
An affidavit cannot be relied on to improve or supplement an order. Equally, an order which is other wise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. ( para 15 )
16. From the above, it is clear assuming that there was some sort of misconduct, as noticed in the evidence of the witnesses of the management in the cross examination, the same could not be used as evidence by the Labour Court or by the appellate court for coming to the conclusion that an order of termination which is otherwise simpliciter in nature is motivated by any consideration other than the decision of the management as to the satisfactory nature of the workman concerned. (para 16)
18. It is obvious that the Tribunal in this case has misdirected itself by using letter written to Director of Education enumerating the reasons of terminating respondent for coming to conclusion that the order of termination was punitive in nature and the petitioner was required to hold an enquiry, while the termination was a simpliciter termination.
19. For the reasons stated above, the writ petition is allowed. Impugned order dated 15.6.2001, passed by the Labour Court No. III is hereby set aside.