Madras High Court
Ms.Borax Morarji Ltd vs The Presiding Officer on 22 August, 2007
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/08/2007 CORAM: THE HONOURABLE MR. JUSTICE K.CHANDRU WRIT PETITION (MD) No.4129 of 2004 Ms.Borax Morarji Ltd., rep. through its Manager, 2-1A 3 and 4, Nedimangad Road, Shenbagaramanputhur, Kanyakumari District 629 304. ... Petitioner vs. 1.The Presiding Officer, Labour Court, Tirunelveli. 2.R.Selvam ... Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records pertaining to the order passed by the 1st respondent in I.D.No.67 of 1998 dt. 30.6.2004 and quash the same as illegal, arbitrary, perverse and unconstitutional. !For petitioner ... Mr. R.Aravindan ^For respondents ... No appearance for R2 :ORDER
The petitioner is a company registered under the Indian Companies Act having its office at Bombay and it is having a Timber Division at Shenbagaramanputhur (hereinafter referred to as "the management").
2. In this Writ Petition, they are seeking to challenge the Award of the first respondent/Labour Court made in I.D.No.67 of 1998 dated 30.6.2004 by which the second respondent's dismissal order dated 30.12.1997 was set aside and he was directed to be reinstated in service with continuity of service. However, there was no direction given towards back ages.
3. Pending the Writ Petition, this Court directed payment under Section 17-B of the I.D.Act by an order dated 29.1.2005 made in W.P.M.P.(MD)No.4146 of 2004. The other portion of the interim order for depositing the amount and subsequent permission to withdraw was cancelled by a further order dated 13.12.2005 in W.P.M.P.(MD)No.2661 of 2005 as the said order was made by not taking into account the fact that the Labour Court had not given the benefit of back wages.
4. Mr. R.Aravindan, learned counsel for the petitioner submitted that the Award suffers from material irregularities and the contention of the 2nd respondent was not supported by legal evidence. The learned counsel further submitted that the second respondent was only a Probationer at the relevant period and he was not discharged on account of any misconduct and the termination came to be passed during the extention period of probation and that there was no automatic confirmation of his probation period. Further, terminating the service of the petitioner would not amount to retrenchment within the meaning of Section 25-F of the I.D.Act. As such, the termination will fall outside the scope of retrenchment in view of Section 2(o)(bb) of the I.D.Act.
5. It is seen from the records that before the Labour Court, the second respondent had filed 10 documents which were marked as Exs.W.1 to W.10 and the Management had filed 13 documents and they were marked as Exs.M.1 to M.13. While the second respondent examined himself as WW.1 and the management examined 7 witnesses viz., MW.1 to MW.7. The Labour Court on an analysis of the evidence adduced before it both oral and documentary and upon hearing the parties came to the conclusion that the management had failed to prove that the second respondent's work was unsatisfactory and there was no documents filed to prove it before the Labour Court in support of such contention and even during the oral evidence of MW.1, D.Chandra Mounleeswaran had accepted the same. It was also accepted that they had not given one month's pay in lieu of notice before termination and even before the termination, no enquiry was conducted as according to them since in the ppointment order dated 23.12.1996 Ex.M.5, it was stated that if the workman absents himself without proper leave, that workman can be set out without notice.
6. The Labour Court also held that the term "workman" found in Section 2(s) of the I.D.Act will include a trainee and that the termination of the petitioner without notice was against the principles of natural justice and Section 25-F has been contravened in this regard.
7. Basing upon the judgment in Life Insurance Corporation of India and another vs. Raghavendra Seshagiri Rao Kulkarni [AIR 1998 Supreme Court 327], the Labour Court denied giving back wages. However, the workman had not challenged that portion of Award. Even before this Court, he is not appearing either in person or represented through counsel.
8. Before this Court, renders a finding on the contentions raised by the petitioner, certain facts must be stated. The second respondent was given an appointment order dated 31.10.1995 (Ex.W.3). In it, it is mentioned that training was to be for a period of 12 to 18 months from the date of joining but, however, curiously, this order was to take effect from 3.10.1995 i.e. 28 days prior to the order was issued. In the same order, it was stated that there will be a probation for 6 months/1 year, he will be taken in the employment subject to availability of vacancies and subject to his completing the training period to the satisfaction of the company. Subsequently, by an order dated 1.10.1996 (Ex.W.5), his training was extended by three months.
9. Thereafter, by an order dated 23.12.1996 (Ex.W.6), the second respondent was given an appointment as Utility Operator with effect from 1.12.1996. Once again, a probation of 12 months was prescribed with effect from 1.12.1996. In the same order, it was stated in para 5 that any misconduct or absence will result in his discharge without notice. Again by a letter dated 29.11.1997 (Ex.W.7), his probation was extended by one more month from 1.12.1997 to 31.12.1997. Further, by an order dated 30.12.1997 (Ex.W.8), the petitioner's services were terminated stating that they were unable to absorb him in any suitable position and his services were terminated in terms of paras 5 and 6 of their appointment order dated 23.12.1996.
10. This had necessitated the second respondent to raise a dispute before the Government Labour Officer at Tirunelveli and a petition was filed by the second respondent. The petitioner/management filed a reply statement dated 28.3.2000 in which it was stated that the training period of the second respondent was extended due to poor performances and habitual absenteeism and it was also stated that the workman during the probation period, on 8.9.1997, they received a complaint from the senior fitter stating that he was always giving problems and disturbing his work and that the second respondent was keeping a knife to attack him and the Security Personnel Officer on verification found that a knife was in his hand bag and it was handed over to the Personnel Department and that the second respondent was given a oral warning. Again on 13.9.1997, during his work, two casual labourers complained that he would kill the senior fitter with the help of wooden planks and this was also reported to the superiors. Therefore, his performance was poor and his record of discipline was not good, which finally resulted in his termination. These admission clearly shows that the foundation for the issuance of the order of termination was based on a misconduct.
11. Learned counsel for the petitioner relied on the following judgments of the Supreme Court:
(i) M.Venugopal v. Divisional Manager, Life Insurance Corporation (1994 (1) L.L.N. 545)
(ii) Oswal Pressure Die Casting Industry, Faridabad Vs. Presiding Officer and another [(1998) 3 Supreme Court Cases 225]
(iii) Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and another [(2002) 1 Supreme Court Cases 520]
12. The first case relates to an appointment by a statutory Corporation viz., LIC., wherein emphasis was made that the Regulation made under Section 48(2A) of the LIC Act will override the provisions of the I.D.Act and therefore, the termination of a probationer cannot be said to be a retrenchment.
13. The second case related to the termination of the service of a probationer and therefore, in view of the said matter and there being no mala fide on the part of the management in terminating his service, it was found that the Labour Court or the High Court should not substitute its satisfaction to that of the employer.
14. In the third case cited above, it was not matter which had arisen out of any labour laws or Award of the Labour Court and it was a matter concerning service law and therefore, it may not have a direct bearing on the present dispute arising out of an industrial dispute where the Labour Court has been empowered to go behind any order and pierce its veil and find out whether it was done as a cloak for dismissal.
15. It is admitted by the learned counsel for the petitioner that it does not have certified standing orders of its own and that model standing orders framed by the State Government will apply in terms of Section 12-A of the Industrial Employment (Standing Orders) Act, 1946. Under the model Standing Orders framed by the State gives definitions for various classification of workmen and the definition relating to permanent workmen and probationer, which reads as follows:
"2. Definitions:- (a) a 'permanent workman' is one who is employed on a permanent basis and includes any person who has satisfactorily completed the prescribed period of probation in the same or higher or equivalent category in the industrial establishment.
(b) A 'probationer' is one who is provisionally employed to fill a permanent vacancy in a post and has not completed the period of probation which which shall be three months in the case of unskilled workmen and six months in respect of those other than unskilled:
Provided, in any particular case, the management may extend the period of probation of any workman upto a further period equivalent to the period of probation prescribed, if they are not satisfied with the work and/or conduct of any workman during the period of probation. In any case where the period of probation is extended, the concerned workman shall be informed in writing at least one week before the normal date of the completion of probation and in the absence of any such intimation the workman shall be deemed to have satisfactorily completed his probation on the normal date. If a permanent workman is employed in a different post, he may, at any time during the probationary period, be reverted to his old permanent post." (Emphasis Added)
16. If this provision is applied, there is no question of the worker/second respondent being considered to be a probationer eternally and there is no right on the part of the petitioner/management to indefinitely give probation for a longer period than what has been prescribed under the Model Standing Orders.
17. Therefore, in the light of the various exhibits filed before the Labour Court, it must be presumed that the workman had completed the prescribed period of probation well on time as it had also resulted in his automatic confirmation in the absence of the employer extending the probation before seven days before the expiry of the probation as provided under the Standing Orders referred to above.
18. Any order by the management extending the probation will have no legal bearing in the light of the Supreme Court judgment in Western India Match Company Ltd., vs. Workmen [(1974) 3 Supreme Court Cases 330]. The following passages found in Paragraphs 10 and 11 are relevant for the purpose of the case.
"10. In the sunny days of the market economy theory people sincerely believed that the economic law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workman. Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But the experience of the working of this law over a long period has belied their faith. Later generations discovered that the workman did not possess adequate bargaining strength to secure fair terms and conditions of service. When the workmen also made this discovery, they organised, themselves in trade unions and insisted on collective bargaining with the employer. The advent of trade unions and collective bargaining created new problems of maintaining industrial peace and production for the society. It was therefore considered that the society has also an interest in the settlement of the terms of employment of industrial labour. While formerly there were two parties at the negotiating table - the employer and the workman, it is now thought that there should also be present a third party, the State, as representing the interest of the society. The Act gives effect to this new thinking. By Section 4 the Officer certifying the Standing Order is directed to adjudicate upon "the fairness or reasonableness" of the provisions of the Standing Order. The Certifying Officer is the statutory representative of the society. It seems to us that while adjudging the fairness or reasonableness of any Standing Order, the Certifying Officer should consider and weigh the social interest in the claims of the employer and the social interest in the demands of the workmen. Section 10 provides the mode of modifying the Standing Orders The employer or the workman may apply to the Certifying Officer in the prescribed manner for the modification of the Standing Orders Section 13(2) provides that an employer who does any act in contravention of the Standing Order shall be punishable with fine which may extend to one hundred rupees. It also provides for the imposition of a further fine in the case of a continuing offence. The fine may extend to twenty-five rupees for every day after the first during which the offence continues.
11. The special agreement, in so far as it provides for additional four months of probation, is an act in contravention of the Standing Order. We have already held that. It plainly follows from Sections 4, 10 and 13(2) that the inconsistent part of the special agreement cannot prevail over the Standing Order. As long as the Standing Order is in force, it is binding on the Company as well as the workmen. To uphold the special agreement would mean giving a go- by to the Act's principle of three-party participation in the settlement of terms of employment. So we are of opinion that the inconsistent part of the special agreement is ineffective and unenforceable. "
19. In the light of the legal provisions as well as binding precedents of the Supreme Court, there is no doubt, the second respondent cannot be considered to be a probationer. Unfortunately, the settled legal provisions of law was not brought to the notice of the first respondent/Labour Court, and it proceeded only on the factual matrix of the case.
20. Even assuming that the second respondent was held to be probationer, in the light of the judgment of the Supreme Court in Agra Electric Supply Co.Ltd., Vs. Sri Alladdin and others [1969 (2) Supreme Court Cases 598], it cannot be said to have been passed in conformity with the power to terminate his service under the standing orders. The following passages found in paragraphs 15 and 16 are relevant for the purpose of this case:-
"15. Now, it is a well-settled principle of industrial adjudication that even if an impugned order is worded in the language of a simple termination of service, Industrial Tribunals can look into the facts and circumstances of the case to ascertain if it was passed in colourable exercise of the power of the management to terminate the service of an employee and find out whether it was in fact passed with a view to punish him. The letter of appointment clearly states that the workman, Shameem Khan, was appointed as a probationer for a period of 6 months with power to the resident engineer to extend the period of probation. Ordinarily, that would mean that at the end of the probation period the company would have to decide whether to confirm him to a permanent post or, if that is not possible, to terminate his service. Standard Order 2( c ) provides that a probationer is an employee who is provisionally employed to fill a permanent vacancy in a post and who has not completed the period of probation thereunder. It also lays down that the normal period of probation shall be 6 months but the resident engineer has the discretion to extend that period, the maximum period of probation being 12 months in all. Ordinarily, this would mean that a probationer's service cannot be terminated except for some misconduct until the expiry of the probation period. The letter of appointment, no doubt contained a provision that the service of the workman was liable to termination even during the probationary period. That provision, however, must be read to mean that the appointment was subject to the management's power of termination as provided in the standing orders. Standard Order 14 provides for such a power and lays down that the service of "any employee" (which expression includes a probationer as is clear from the classification of employees in Standard Order
2) can be terminated on grounds (a ) to (f) therein set out. It is quite clear that the termination of service of the concerned workman cannot be attributed to any one of these grounds. Therefore, that order cannot be said to have been passed in conformity with the power to terminate his service under the standing orders.
16. But apart from this consideration, the Labour Court came to a finding on the evidence before it that the real reason for passing the impugned order was not the alleged unsatisfactory work on the part of the workman but his having unauthorisedly used the motor-cycle and causing damage to it, that the order was punitive and not a simple termination of service and was therefore in colourable exercise of the power of termination. This finding is clearly one of fact and meant that the Labour Court rejected the evidence led by the management that the work of the concerned workman was found unsatisfactory. It is impossible to say from the evidence before the Labour Court that that finding was perverse or such as could not be reasonably arrived at. In that view, it is impossible to interfere with the order of the Labour Court relating to workman, Shameem Khan."
21. In the light of the above, there is no error or illegality committed by the first respondent/Labour Court in ordering the reinstatement of the second respondent with continuity of service. The Writ Petition will stand dismissed. There will be no order as to costs. The petitioner/management is directed to implement the impugned Award within a period of four weeks from the date of receipt of copy of the order.
asvm To The Presiding Officer, Labour Court, Tirunelveli.