Himachal Pradesh High Court
Managing Director, H.R.T.C. And Anr. vs Pratap Singh And Anr. on 7 December, 1999
Equivalent citations: (2000)IILLJ779HP
Author: Lokeshwar Singh Panta
Bench: D. Raju, Lokeshwar Singh Panta
JUDGMENT Lokeshwar Singh Panta, J.
1. This writ petition has been filed by the Managing Director and Divisional Manager, Himachal Road Transport Corporation, seeking to quash the award dated July 8, 1997 of the Presiding Judge, Labour Court in Reference No. 98/1992, whereunder the termination order of the respondent-workman from service has been set-aside and quashed, directing the petitioners herein, to reinstate the 1st respondent-workman as driver with all legitimate payments of wages or salary and other incidental allowances.
2. The respondent-workman was appointed as driver on daily wages in Himachal Road Transport Corporation (for short HRTC), Nahan Region with effect from May 7, 1989 by office order dated December 18, 1989 filed Annexure P-1 to the writ petition. The services of the respondent-workman was regularised as driver with effect from September 1, 1989 and was placed on probation for a period of two years, which was to expire on August 31, 1991. However, his services were terminated during the probation period vide order dated March 26, 1991 marked Annexure P-2 on the ground that his services were no longer required by the Corporation. The respondent-workman raised industrial dispute under Section 10(1) of the Industrial Disputes Act, 1947, before the Labour Court on the ground that his services were terminated illegally, arbitrarily and capriciously without affording him an opportunity to explain his misconduct and misdemeanour. He alleged before the Labour Court that the Corporation was motivated by mala fide, bad-intentions and extraneous consideration to secure his illegal ouster from service without observing the canons of natural justice, fair-play and equity.
3. The Corporation resisted the claim of the respondent-workman before the Labour Court and contended that the respondent-workman was discharged from service during probation period because of the frequent complaints of irregular attendance, misbehaviour, disoedience and indiscipline received against him. It was also stated that the respondent-workman was also found under drunken condition or under the intoxication of liquor while on duty in his capacity as driver and he was said to have indulged himself in repeated lapses of causing accidents. The work of the respondent-workman was not found to be satisfactory and as such, he was discharged during probation period from service. The Labour Court concluded that the respondent-workman was discharged from service without giving him reasonable opportunity and non- compliance of rules of natural justice and fair play and that the discharge order constitutes a stigma on the personal life of the respondent-workman and, therefore, without giving him proper opportunity, the discharge order is found to be vitiated. The respondent-workman was directed to be reinstated in the service and held entitled for all legitimate payment of wages and other incidental allowances till the date of the award.
4. The petitioners have challenged the correctness and validity of the impugned award of the Labour Court mainly on the ground that the Labour Court has wrongly concluded that the termination entails stigma and punitive in substance and therefore, without affording opportunity to the workman, the order is vitiated.
5. In this writ petition, there are two respondents. Respondent No. 1 is the workman and respondent No. 2 is the Presiding Judge of the Labour Court. The writ petition was admitted on November 19, 1997. The respondent-workman has put in appearance through his counsel Mr. C.B. Singh and no counter has been filed to the writ petition by the respondent-workman.
6. We have heard Mr. M.S. Chandel learned Counsel for the petitioners and Mr. C.B. Singh learned Counsel for respondent-workman.
7. Mr. M.S. Chandel learned Counsel contended that the services of the respondent-workman were terminated during the probation period in terms of condition (ix) of the regularisation order when the work and conduct of the respondent-workman was found unsatisfactory by the Appointing Authority. He next contended that during the probation period, several complaints were received against the respondent-workman pertaining to his misconduct, misbehaviour with the passengers, driving the bus of the Corporation under intoxication and all these accusations were brought to his notice by giving him due opportunity to explain his conduct vide various communications marked Annexures P-4, P- 5, P-6, P-7, P-8, P-9, P-10 and P-11 placed on record, but the respondent-workman has not improved his behaviour and conduct and the consequence followed was that instead of holding any departmental enquiry against the workman, who was on probation, his services were terminated by the Appointing Authority without attaching any stigma and entailing civil consequences to him.
8. Per contra, Mr. C.B. Singh learned Counsel for the respondent- workman vehemently contended that the order of termination has been passed on the basis of the alleged complaints received by the petitioners against the workman and without affording opportunity to the workman the termination order is vitiated for non-compliance of the principles of natural justice. According to the learned Counsel, the foundation of the order of termination was on various complaints alleged to have been made against the respondent-workman by certain interested persons and, therefore, before the order of discharge could be passed, opportunity to defend himself ought to have been afforded to the respondent-workman by the employer and since it was not done, the order is bad in law and has been rightly quashed by the Labour Court.
9. We have carefully considered the rival contentions of the learned Counsel for the parties. The only question which arises for consideration in this writ petition is whether the services of the respondent-workman who can be said to have been appointed on probation, could not have been terminated without holding an enquiry or giving opportunity to the respondent-workman. The Labour Court has held that it was necessary to have given opportunity to the respondent-workman before coming to the conclusions that he was not found suitable or fit for being continued in service and since no such opportunity was given to the respondent-workman nor principles of natural justice have been complied with, therefore, the termination of the service of the respondent-workman was bad.
10. The respondent-workman along with six others was regularised/appointed as a driver on probation by office order dated December 18, 1989 which stated thus:
"In pursuance of the orders contained in Head Office memorandum No. HO: 9E-355/77-A (4) dated March 17, 1979 read with Head Office memo No. HO: 9E-22/74-A(II) dated April 18, 1979 and HO: 9E-355/77-A (4) dated May 7, 1979 and HO: 9E-481/82 dated October 6, 1989, the following officials are hereby regularised/appointed as Driver in the pay scale of Rs. 1025-2100 w.e.f. the dates shown against each on the terms and conditions laid down in para of this order:-
Sr. No. Name & Designation Date of engagement Unit Date of regularisation
1.
..
..
..
..
2. Pratap Singh, Driver 7.5.89 Nahan Unit 1.9.1989
3. ..
..
..
..
4. ..
..
..
..
5. ..
..
..
..
6. ..
..
..
..
7. ..
..
..
..
11. The regularisation/appointment of the above officials to the respective posts/grades is further subject to the following conditions: -
"(i) The post is purely temporary on year to year basis, his services are liable to be terminated at any time without assigning any reasons. If he wishes to resign his post he shall have to forfeit one month's salary.
(ii).....
(iii) .....
(iv) He shall be on probation for a period of two years to start with. In case his work and conduct during the period of probation is in the opinion of Appointing Authority not satisfactory, his services shall be liable to be dispensed with/without any notice. Further, even after the completion of probation period, the appointment may be terminated at any time by giving one month's notice or pay in lieu thereof by the Appointing Authority."
12. On March 26, 1991 the service of the respondent-workman was terminated by an office order which reads as under:-
"The services of Shri Pratab Singh s/o Shri Shankar Lal, who was appointed/ regularised to the post of Driver vide office order No. DM(N) 1-110-E/IV-26631 dated January 12, 1989, w.e.f. September 1, 1989 and placed on probation for 2 years in the first instance, are no longer required by the Corporation."
As noticed above, the termination order was challenged by the respondent-workman before the Labour Court, which held that the termination was bad and ordered reinstatement with full backwages. From the office order of appointment more specifically condition (ix) thereof, it is quite clear that the respondent-workman was appointed on probation for a period of two years to start with. The Labour Court had also held that the satisfaction of the management was vitiated by mala fide. It had struck down the order of termination that it was stigmatic, therefore, it could not have been passed without giving proper opportunity to the respondent-workman. We find that the whole approach of the Labour Court was wrong in holding that in order to support their satisfaction it was necessary for the petitioners to produce some reports or communications or other evidences to show that the performance of the respondent-workman was below the expected norms. In Oswal Pressure Die Castings Industry Faridabad v. Presiding Officer and Anr., 1998 (3) SCC 225 : (1998-I-LLJ-1074), their Lordships of the Supreme Court in fact situation of the case which is parallel in fact situation of the case on hand set- aside, the order of the High Court holding that where termination of the probationer was not mala fide and the termination of the probationer's services was in terms of appointment order on the last date of extended period of probation on account of not being found fit for confirmation, the High Court ought not to have interferred with such termination order.
13. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr., 1999 (2) SCC 21 : (1999-I-LLJ-432), their Lordships of the Supreme Court while considering the test to determine the termination of services of a temporary servant or one on probation have clarified that the distinction between the 'motive' and 'foundation' for the termination order. Their Lordships while taking into consideration a catena of judgments of the Apex Court held that if misconduct was the 'motive', the order was not punitive but if it was the 'foundation', it was punitive. In Shamsher Singh v. State of Punjab, 1974 (2) SCC 831 : (1974-II-LLJ-465), their Lordships of the Supreme Court pointed out that the employee being a probationer, "the enquiry against the respondent was for ascertaining whether he was fit to be confirmed." Their Lordships proceeded to hold that this enquiry was not of the same nature as an enquiry into charges of misconduct, negligence, inefficiency or other disqualification. On the facts of the case, the termination of a probationer was upheld inasmuch as, the purpose of the enquiry was to find out if the employee could be confirmed. The purpose of enquiry was not to find out if he was guilty of any misconduct, negligence, inefficiency or other disqualification.
14. Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854 : (1964-I-LLJ-752), was the case of preliminary enquiry which was intended to find out if a prima facie case was made out to start a regular departmental enquiry. The question before the Apex Court was whether a termination order passed soon after the completion of the preliminary enquiry could be treated as punitive. Their Lordships held that it could not be so held. Once the preliminary enquiry was over, it was not (sic) open to the employer not to make a regular enquiry for proving the guilt of the employee. The employer could stop at that stage and pass a simple order of termination. The facts as gathered or revealed in the preliminary enquiry would be the "motive" and not the "foundation" since there was no enquiry as to their correctness made. The order could not be quashed as being punitive.
15. In Radhey Shyam's case (supra), the enquiry in respect of allegation of having fraudulently taken Rs. 2000/- from the complainant, held by the enquiry officer after examining the witnesses, recorded their statements and gave a clear finding of the appellant accepting the bribe and even recommended his termination. All these were done behind the back of the appellant and thereafter the Managing Director passed the termination order the very next day. On the basis of the material on record, their Lordships held that it could not in such circumstances be stated that the report was a preliminary enquiry report and its findings were not definitive. The Court proceeded to hold that it was not a preliminary report where some facts were gathered and a recommendation was made for a regular departmental enquiry and that case was an obvious case where the report and its findings were the 'foundation' of the termination order and not merely the 'motive'. Their Lordships in paragraph 33 after analysing the number of decisions of the Supreme Court and English Law held as under (1999-I-LLJ-432 at 440):
"33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by shAH J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service because the purpose of preliminary enquiry is to find out if there is a prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by KRISHNA IYER, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive."
16. Applying the ratio of the decisions of the Apex Court, in the fact situation of the present case, we find that the services of the respondent-workman were terminated in consonance with condition (ix) contained in regularisation/appointment orders dated December 18, 1989 marked Annexure P-1. The petitioners have placed on record various documents pertaining to the misconduct of the respondent-workman such as driving the vehicle/bus under the influence of liquor, absented himself from duty, repeatedly causing the accidents and misbehaving with the passengers etc. etc. for which he was given opportunity to explain his conduct during the period of probation. After over-all assessment of the unsatisfactory work of the respondent-workman, the termination order Annexure P-2 was passed by the Appointing Authority and according to the assessment of the Appointing Authority, the work of respondent-workman was not found satisfactory. All the materials placed on record by the petitioners might have been taken into consideration by the Appointing Authority to assess the fitness or unfitness of the continuity of the respondent- workman in service and on overall assessment, the Appointing Authority, it appears found the respondent-workman not fit to be retained in service and simple order of his termination was passed. The materials taken into consideration can be said to be a 'motive' but not 'foundation' to discharge the services of the respondent-workman and from the language of the termination order, it is clear that the services of the respondent-workman were no longer required by the Corporation before his probation period came to an end. In the facts and circumstances of the case, we find that the order of termination was not punitive in nature and it was not vitiated either by mala fide or for non-compliance of the principles of natural justice. The termination during the period of probation of the respondent-workman by the petitioners after making over-all assessment was legal and justified and the Labour Court was wrong in holding that the order was punitive in nature attaching stigma to the respondent-workman. It was not proper for the Labour Court to interfere and substitute its satisfaction with the satisfaction of the employer. The whole approach of the Labour Court was wrong and, therefore, the order passed by it will have to be set aside.
17. For the above-stated reasons, we allow the writ petition, set-aside the award dated July 8, 1997 of the Labour Court in reference Case No. 98/92 impugned in this writ petition and hold that the impugned termination order was validly passed by the petitioners. The parties are left to bear their own costs.