Punjab-Haryana High Court
Amarjeet Singh vs Presiding Officer on 26 September, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
LPA No. 1743 of 2011 (O&M)
Date of Decision: September 26, 2011
Amarjeet Singh
...Appellant
Versus
Presiding Officer, Labour Court, Patiala and others
...Respondents
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE GURDEV SINGH
Present: Mr. D.S. Patwalia, Advocate,
for the appellant.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR, ACJ
1. The instant appeal under Clause 10 of the Letters Patent is directed against the judgment dated 1.6.2011 rendered by the learned Single Judge dismissing the writ petition filed by the petitioner-appellant against the award dated 17.8.1992 (P-14), passed by the Presiding Officer, Labour Court, Patiala.
2. Brief facts of the case are that on 24.7.1985 the petitioner-appellant was appointed as Laboratory Incharge in the Patiala Cooperative Super Mills Ltd., Patiala, as a result of the interviews conducted by the Punjab State Federation of Cooperative Sugar Mills Ltd. (P-1). He joined the service on 23.8.1985. As per para 4 of the appointment letter he was to remain on probation for a period of one year from the date of appointment, which could be extended for another year. In para 5 of the appointment letter it was further stipulated that during the initial or extended period of LPA No. 1743 of 2011 (O&M) 2 probation, his services could be terminated without any notice. On 24.8.1986, the probation period of the petitioner-appellant was extended for a period of one year. In fact, while extended the period of probation for one year w.e.f. 24.8.1986, the petitioner- appellant was advised to work hard and to come up to the expectation of his superiors. Despite that it was found that he had shown no sign of improvement in his way of working. The Managing Director again gave adverse report about his work and conduct and he was found totally unfit for the job as Laboratory Incharge (P-2). On 27.8.1987, the Managing Director, Punjab State Federation of Cooperative Sugar Mills Ltd. passed an order terminating the services of the petitioner-appellant under Rule 2.8(c) of the Punjab State Cooperative Sugar Mills Service (Common Cadre) Rules, 1981 (for brevity, 'the Rules') w.e.f. 21.8.1987. The basis of passing the order of termination was the report of the then Managing Director of the Patiala Cooperative Sugar Mills Ltd., Rakhra.
3. On 9.10.1987, the petitioner-appellant served a demand notice under Section 2 of the Industrial Dispute Act, 1947 (for brevity, 'the Act'). On 16.3.1989 (P-5), the Additional Labour Commissioner, Punjab, made the following reference to the Labour Court, Patiala, under Section 10(1)(c) of the Act:-
"Whether termination of services of Sh. Amarjit Singh, workman is justified and in order? If not, to what relief/exact amount of compensation is he/she entitled?
4. Thereafter proceedings under the Act were initiated by the Labour Court, Patiala and the award was eventually passed on 17.8.1992 (P-14). A perusal of the award shows that the following three issues were framed by the Labour Court: LPA No. 1743 of 2011 (O&M) 3
"1. Whether there is relationship of master and servant between the parties?
2. If issue No. 1 is not proved, whether the order of termination of services of the workman is justified and in order?
3. Relief."
5. In para 6 of the award the Labour Court has noticed that in the demand notice the date of termination order has been mentioned as 28.8.1987, on the basis of which the reference was made whether the termination of the petitioner-appellant is justified and in order. However, the Labour Court found that on 28.8.1987 there was no termination of the workman-petitioner-appellant. The Labour Court further observed that the termination order was passed by the SUGARFED whereas it was not made a party by the workman in the demand notice or by the Additional Labour Commissioner in the reference dated 16.3.1989. Accordingly, the Labour Court answered the reference as bad for non-joinder of necessary party and further held that there being no termination of the workman on 28.8.1987, no adjudication upon the reference could be undertaken (P-14). Thereafter, the petitioner-appellant also filed an application for recall of award dated 17.8.1992 but the same was dismissed by the Labour Court on 22.1.1993 (P-18). The relevant portion of the order reads thus:
" I have heard the learned representatives of the parties once more on the facts of the case. I do not find anything sterling in the arguments of the representative of the workman to amend the Award after recalling it. The termination of the workman was ordered by Federation of Sugarfed, Chandigarh on 27.7.87 but while LPA No. 1743 of 2011 (O&M) 4 challenging the termination through the Demand Notice, the Workman had not made Sugarfed a party & instead of his termination of 27.7.87, he mentioned that date to be 28.7.87. It is not possible for me to decide beyond the terms of the reference as originally sent to this court for adjudication. There being no termination of the service of the workman on 28.7.87 & the Authority which terminated him being not a party before me, the reference was returned against the workman. This is now no stage to make the sugarfed a party in the case at this late stage or to allow amendment in the date of termination."
6. The petitioner-appellant then filed CWP No. 11412 of 1993 relatable to the instant appeal. The learned Single Judge has found that the Labour Court has committed an error in declining the prayer of the petitioner-appellant on the ground that the same pertained to the order dated 27.8.1987, whereas the order was, in fact, passed on 21.8.1987. Learned Single Judge also noticed that the reference made to the Labour Court does not indicate that it pertains to any order of specific date. It was only to the extent whether the termination of the services of the petitioner-appellant was justified or not. However, on the basis of the order placed on record by the respondents along with the written statement (R-1), the learned Single Judge reached the conclusion that the services of the petitioner-appellant were terminated on 21.8.1987 itself. Thus, the learned Single Judge rejected the claim of the petitioner- appellant that his services were terminated after the expiry of the period of probation. The learned Single Judge also expressed the opinion that SUGARFED was/is a necessary party which the LPA No. 1743 of 2011 (O&M) 5 petitioner-appellant failed to implead because the order of termination of his services has been passed by it. Therefore, to that extent the finding of the Labour Court has been approved by the learned Single Judge.
7. Having heard learned counsel for the petitioner- appellant and perusing the paper book with his able assistance, we are of the considered view that there is no merit in the instant appeal warranting its admission. The only issue involved in the present case is whether the order terminating the services of the petitioner-appellant was passed on 27.8.1987 as has been claimed by the petitioner-appellant or it was passed on 21.8.1987. The petitioner-appellant in support of his claim has placed reliance on the order, which has been placed on record as Annexure P-2. A perusal of the same would show that in the endorsement the date mentioned is 27.8.1987 whereas in the last para of the order it has been stated that the services of the petitioner-appellant have been terminated w.e.f. 21.8.1987. On the other hand, the respondents have stated in para 4 of the reply on merits that keeping in view his work and conduct, his period of probation was extended for one year. Thereafter the matter was placed before the Registrar Cooperative Societies, Punjab on 21.8.1987 and it was decided to terminate the services of the petitioner-appellant with immediate effect. In that regard a copy of the Agenda Item No. 2 along with the decision taken by the Registrar Cooperative Societies, Punjab, has been placed on record (R-1). The said decision was conveyed to the petitioner-appellant and others on 27.8.1987. For clarity, the relevant extract of Annexure R-1 is reproduced as under:-
" This case was to be considered by the Administrative Committee in its meeting fixed for LPA No. 1743 of 2011 (O&M) 6 27/8/87. In the meanwhile propriety of the Administrative Committee dealing with this case and such like other cases was examined. The Managing Director, Sugarfed discussed with Addl. RCS, Sh. S.S. Bajwa and R.C.S.. During these discussions, it was felt that there being no Board of Directors of the Sugarfed, Administrative Committee could not be constituted and thus such cases could only be disposed of by R.C.S. in his capacity as Supervisory Officer of Sugarfed. In the circumstances the case is submitted to RCS as Supervisory Officer of Sugarfed. Considering the poor performance of Shri Amarjit Singh during the period of his probation, he has not been found fit to be confirmed. In the circumstances RCS may kindly consider the case of Shri Amarjit Singh and make a decision whether Shri Amarjit Singh's services are to be terminated or he is to be confirmed in the service of Sugarfed.
Sd/- Managing Director Sugarfed Punjab, Chandigarh. 21.8.87.
R.C.S. Punjab/ Supervisory Officer, Sugarfed Punjab, Chandigarh.
As proposed, his services are
terminated with immediate effect. M.D.
to pl. convey order and take other
necessary action.
Sd/- 21.8.1987
R.C.S./S.O.
M.D.
Sd/- M.D.
21.8.87.
M.Admn.
Supdt.
Put with the relevant file.
A.III 21.8.87."
LPA No. 1743 of 2011 (O&M) 7
8. It is, thus, evident that the order of termination of the services of the petitioner-appellant was passed on 21.8.1987 itself by the Registrar, Cooperative Societies, Punjab, in his capacity as Supervisory Officer, Sugarfed Punjab, Chandigarh. The said order, however, was communicated on 27.8.1987. The irresistible conclusion, therefore, is that the services of the petitioner-appellant were terminated within the period of probation which was to expire on 23.8.1987.
9. In so far as the legal position is concerned it is well settled principle of law that services of an employee could be dispensed with during the operation of the probation period even without show cause or holding any inquiry. The rationale behind this principle is that a probationer does not have any substantive right to hold the post and he is not entitled to protection under Article 311 of the Constitution. In that regard reliance may be placed on the judgment of Hon'ble the Supreme Court rendered in the case of Kamal Nayan Mishra v. State of M.P., M.P., (2010) 2 SCC 169.
169It is equally well settled that even compliance of principles of natural justice is not necessary while terminating/dispensing the service of an employee during his probation period. If the competent authority after assessment of work and conduct of an employee during the period of his probation is satisfied and passes an order of termination simplicitor recording such satisfaction regarding the unsatisfactory service of the employee, the order could not be held to be erroneous or illegal on the ground that it amounts to a stigmatic order or casts any aspersion on the employee. For the aforementioned proposition reliance may be placed on the judgment of Hon'ble the Supreme Court rendered in the case of Rajesh Kohli v. High Court of J&K, J&K, (2010) 12 SCC 783.
783LPA No. 1743 of 2011 (O&M) 8
10. As a sequel to the above discussion, we find no legal infirmity in the view taken by the learned Single Judge. Accordingly, this appeal fails and the same is dismissed.
(M.M. KUMAR) Acting Acting Chief Justice (GURDEV SINGH) SINGH) September 26, 2011 2011 Judge PKapoor