Punjab-Haryana High Court
The President vs The Presiding Officer And Another on 28 February, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
Civil Writ Petition No.2816 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. Civil Writ Petition No.2816 of 2013
The President, Maha Sabha Gurukul Vidyapeeth ......Petitioner
Versus
The Presiding Officer and another ......Respondents
2. Civil Writ Petition No.2818 of 2013
The President, Maha Sabha Gurukul Vidyapeeth ......Petitioner
Versus
The Presiding Officer and another ......Respondents
Date of Decision:28.2.2013
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Dr. Balram K. Gupta, Sr. Advocate with
Ms. Madhu Sehgal, Advocate for the petitioner.
RAJIV NARAIN RAINA, J.
This order will dispose of CWP No.2816 of 2013 and CWP 2818 of 2013 as similar facts and law points are involved in both these cases. For convenience, the facts are culled out from CWP No.2816 of 2013.
In this petition filed under Articles 226/227 of the Constitution of India, the award dated 18.4.2011 (P-1) passed by the Labour Court, Panipat, in reference No.238 of 2002 has been called in question.
The order of termination dated 10.2.2001 has been held bad on account of non compliance of mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short "the Act") inasmuch as the workman was not put to notice of termination, nor retrenchment compensation was paid and one month's pay in lieu of notice remained unpaid. There is also no dispute that the workman had completed 240 days of continuous service in the twelve calendar months preceding the date of termination.
Civil Writ Petition No.2816 of 2013 2
The further necessary facts for adjudication of this matter as pleaded by the workman are that he was appointed on 14.7.1999 by the petitioner-management in the pay scale of 750-940/- and he worked upto 10.2.2001. The case of the petitioner-management is that the workman was appointed as Chowkidar on temporary/ad-hoc basis on 28.1.2000. Thereafter, a selection committee was constituted to make recommendation for regular appointment to the post of Chowkidar. The name of Ramphal was recommended for regular appointment. Appointment order dated 29.5.2000 followed. The workman joined services as Chowkidar on 1.6.2000. A copy of the appointment letter dated 29.5.2000 has been placed on record as Annexure P-2. Condition No.2 of the appointment letter is worded thus:
"2. You will be on probation for a period of one year after completion of probation period your services will be regularized automatically."
In terms of the letter of appointment, the probation period would have come to an end on 30.4.2001. Condition No.3 of the appointment letter reads thus:
"3. The appointment will be terminated on one month's notice or one month's salary in lieu thereof on either side and after the confirmation, whenever effected, three months notice or three months salary in lieu thereof will be required on either side." About 2 months and 20 days short of completion of probation period which would have led to automatic regularization, Ramphal was dished out a termination order dated 20.2.2011 (P-4) which reads as follows:
" To Sh. Ram Phal Chowkidar Civil Writ Petition No.2816 of 2013 3 Mahila Ayurvedical College, Khanpur Kalan Subject: Termination of Service You were absent from duty on tomorrow night which is against the Service Rules. It was your duty to take care of security of girl students but you did not perform your duty. It is against the principles of Institution.
Many complaints have been received from girl students against you. Keeping in view your negligence in maintaining security of girl students, your services are hereby terminated with immediate effect. You may hand over your charge to Sh. Bharat Singh.
Sd/-President Mahasabha Kanya Gurukul Khanpur Kalan, Sonepat." (emphasis added) The order discloses foundation of misconduct based on complaints received from girl students of negligence in maintaining security. It is not the case of the management that any fact finding or regular inquiry was held into the complaints of misconduct against the workman including that of absence from duty on a single night. The defence of the management is that Ramphal could have been dealt with in terms of the appointment order. Admittedly, Ramphal was a regular direct recruit. He had a right to prove his worth till the end of period of probation under normal circumstances. His work and conduct would have remained under scrutiny upto 30.4.2001. In Express Newspapers (P) Ltd v. Presiding Officer, Labour Court; AIR 1964 SC 806 the Supreme Court held:
"It appears clear to us-that without anything more an appointment on probation for six months gives the employer no right to terminate the services of an employee before six months had expired-except on ground of misconduct or other sufficient reasons in which case even the services Civil Writ Petition No.2816 of 2013 4 of a permanent employee could be terminated. At the end of six months period the employer can either confirm him or terminate his service if found unsatisfactory"
To return; no show cause notice or explanation call or warning letter or an admonishment either oral or written was issued to Ramphal to improve himself. The complaints, if any, by the girl students were not put to him nor his explanation was sought on those complaints. What those complaints were is hard to find on the present paper book. The defence in the written statement clearly establishes that the foundation of the termination order was based on complaints and negligence in the performance of duties. It is well settled that the form of the order is not conclusive of its true nature and it might merely be a camouflage for an order founded on misconduct. The entirety of circumstances attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is mere motive or is the very foundation of the order; see: State of Bihar & others vs. Shiva Bhikshuk Mishra; (1970) 2 SCC 871.
It was open to the management to have passed an order of termination simpliciter without entering into the field of misconduct attaching stigma. The real motive may be founded on misconduct or dereliction of duty but if it is not spoken of for prospective employers the Court may not insist on sifting the foundation through a sieve, in the case of a probationer to fault the termination. But if the foundation of the order is misconduct then it ought to have been preceded in the case of a probationer with at least a preliminary fact finding inquiry, however brief, if not a full fledged regular inquiry on the alleged complaints. In the circumstances, the Civil Writ Petition No.2816 of 2013 5 least that was expected to support foundation of the order of termination in anticipation of judicial review was to have asked Ramphal-workman for his explanation on those complaints, before taking final decision on retention in service during probation. If his explanation was not found satisfactory, action could have been taken against him by simpliciter discharge on the ground that his work and conduct was not found satisfactory. The present case is, however, not one of discharge simpliciter. I may not be understood to say that in all cases probationers have a right to regular inquiry on grounds of either misconduct or with a view to establish the question of retention in service or discharge. All I wish to say is that probationers have a right to performance assessment though based on subjective satisfaction of the employer but tempered with objective review on relevant considerations from the stand point of a prudent reasonable man.
The termination order appears to this Court to be punitive in nature. The nexus between motive and foundation is well settled by a catena of judgments. See: Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Science and another; 2002 (1) SCC 520; Union of India and others v. Jaya Kumar Parida; 1996(1) SCC 441 and Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre For Basic Sciences, Calcutta; (1999) 3 SCC 60.
Motive is 'the moving power which impels action for a definite result" or "which incites or stimulates a person to do an act". See Chandra Prakash Shahi v. State of Uttar Pradesh; (2000) 5 SCC 152. That is for oblique purpose, by abuse of authority and power to terminate during probation. The right to terminate during probation is subject to scrutiny of industrial courts and industrial adjudication. No Constitutional provisions Civil Writ Petition No.2816 of 2013 6 have to be considered when one is dealing with industrial employees, see U.B. Dutt & Co (P) Ltd v. Workmen; AIR 1963 SC 411.
To draw a parallel from criminal law, it can be said that when the basic foundation of the prosecution case crumbles down, motive becomes inconsequential. See: State of Punjab v. Sucha Singh and others; (2003) 3 SCC 153.
In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. and others; (2003) 3 SCC 263, it has been held in para 11 as follows:
"11. An order of termination simpliciter passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is stated to be attached to an employee discharged during the period of probation. The learned counsel on either side referred to an relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Dipti Prakash Banerjee after referring to various decisions indicated as to when a simple order of termination is to be treated as "founded" on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is explained, thus:(SCC pp.71-72) "21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order Civil Writ Petition No.2816 of 2013 7 of termination would be valid."
From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In the process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."
If the management had passed a simpliciter order that the services during probation were found not satisfactory without attaching stigma publicly, it would yet be open to the management on judicial review of its action to have disclosed the real motive to the Court in response to a lis and have got away lightly. But this is not the case here. The order is stigmatic and punitive in its operation and has been passed without offering even minimal right of hearing. It would fall in the penumbra of cases that lie in the category of 'no notice, no hearing' and application of the strict rule of audi alteram partem. The man has been condemned unheard. Civil Writ Petition No.2816 of 2013 8
Be that as it may, the object of termination in these two cases appears to have been to get rid of the workmen on fault theory short of completion of probation period which assured automatic regularization on successful completion. The probation-cum-confirmation Clause 2 above is of a type usually hard to find in appointment letters.
The effect of non compliance of Section 25-F of the Act are by now well known in different fact situations through a series of pronouncements of the Supreme Court recently in the cases of Anoop Sharma vs Executive Engineer Public Health Division No.1, Panipat, Haryana; (2010) 5 SCC 497, Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192 and Devinder Singh vs. Municipal Council, Sanaur; (2011) 6 SCC 584. Though there may be contravention of Section 25-F of the Act but that would not automatically lead to reinstatement. Relief would yet depend on a host of relevant factors like the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute as explained recently in Civil Appeal No.8415 of 2009 decided by the Supreme Court on 31.1.2013 in Asst. Engineer, Rajasthan Dev. Corp. & Anr. v. Gitam Singh after noting the earlier decisions of the Supreme Court in Harjinder Singh and Devinder Singh' cases (supra). However, the present is not a case strictly involving Section 25-F of the Act.
The termination order (P-4) is without doubt "retrenchment" within the meaning of Section 2(oo) of the Act inviting rigours of Section 25 F of the Act.
In view of the above, I have little left except to confirm both Civil Writ Petition No.2816 of 2013 9 the impugned awards which grant reinstatement with continuity of service but with 25% back wages payable from the date of demand notice dated 13.8.2001. The writ petitions are consequently dismissed in limine as not warranting admission for any further probe.
All said and done, this order will not preclude the respondent workmen from claiming back wages higher than those awarded. In case such challenge is laid, that question would be decided on its own merits without reference to this order except that it upholds reinstatement.
( RAJIV NARAIN RAINA ) JUDGE 28.2.2013 rajeev