Punjab-Haryana High Court
Hans Raj vs Presiding Officer Labour Court And Ors. on 30 July, 1996
Equivalent citations: (1996)114PLR701
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT
1. Feeling aggrieved by the award dated 21.9.92 passed by the Labour Court upholding the termination of his service, the petitioner has approached this Court by filing writ petition under Article 226 of the Constitution with the prayer to quash the impugned award.
2. Petitioner joined service as clerk on 11.2.1982 under the Controller, Printing and Stationary Department, Punjab, Chandigarh. His service was terminated on 15.7.1983 during the period of probation. Industrial dispute raised by the petitioner was referred to the Labour Court, Patiala for adjudication. After hearing the parties and considering their respective cases the Labour Court held that termination of service of the workman (petitioner) was in accordance with the terms of contract of employment. The Labour Court also held that the provisions contained in the Punjab Printing and Stationery Department Service Rules, 1964 and the Punjab Civil Services (Punishment and Appeal) Rules, 1970 are special provisions and they would prevail over the provisions of the Industrial Disputes Act, 1947 (for short, the Act') and, therefore, he was not entitled to relief of reinstatement.
3. Three questions which arise for determination by this Court are:
(i) Whether termination of service of a workman in accordance with the terms and conditions of contract of employment can be treated as retrenchment for the purposes of 'the Act';
(ii) Whether the provisions of the Punjab Printing and Stationery Department Services Rules, 1964 (for short, '1964 Rules') and the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for short, '1970 Rules') over-ride the provisions of 'the Act' and a person who is workman within the meaning of Section 2(s) of the Act is not entitled to the relief of re-instatement despite the fact that his service is terminated in violation of Section 25F of 'The Act'; and
(iii) Whether service of a probationer can be terminated on the basis of allegations of misconduct without holding an enquiry in accordance with principles of natural justice and such termination can be justified simply on the basis of terms contained in the letter of appointment ?
Re: Question No. (i) The term "retrenchment" has been defined in Section 2(oo) of 'the Act'. It will be useful to reproduce definition of "retrenchment" as it stood on 15.9.1983 i.e. the date of termination of service of the petitioner. The same reads as under :-
"2 (oo) "retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -
(a) voluntary retirement of a workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
(c) termination of the service of a workman on the ground of continued ill health."
Clause (bb), which came to be inserted in Section 2(oo) by the Industrial Disputes (Amendment) Act No. 49 of 1984, reads as under:-
"(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of the such contract being terminated under a stipulation in that behalf contained therein."
4. The amendment made in the definition of "retrenchment" was brought into force w.e.f. 18.8.1984 and, therefore, no help can be derived from clause (bb) to exclude the termination of service of the petitioner from the definition of "retrenchment' and if it is held that termination of service of the petitioner amounts to retrenchment within the meaning of the term as it stood up to 15.9.1983 and the same is held to be void on account of violation of the provisions of Section 25F or other provisions contained in Chapter V-A of the Act, then the clause (bb) cannot be made use of to justify the retrenchment. The Amending Act No. 49 of the 1984 cannot be treated as retrospective in its operation and it cannot legalise or validate the termination of service of a workman which was otherwise illegal or void or inoperative. In Maye College v. Labour Court, 1983(1) LLN 724, a Division Bench of Rajashtan High Court discussed the principles of interpretation of the statutes and held that clause (bb) added to Section 2(oo) by the Amending Act No. 49 of 1984 was not retrospective but was prospective. The same view has been taken by Bombay. High Court in S.S. Sambra v. Chief Regional Manager, State Bank of India, Nagpur, 1992 (1) LUJ 684; by Gujarat High Court in Bharat Heavy Electricals Limited v. R.V. Krishna Roy, 1990(1) LLJ 87 and by another Division Bench of Rajasthan High Court in the New India Assurance Company v. Central Industrial Tribunal, Jaipur, 1995 Lab.I.C. 395.
5. We respectfully agree with the view taken by Bombay, Gujrat and Rajasthan High Courts that clause (bb) which has been inserted in the Act by Amending Act No. 49 of 1982 cannot be treated a retrospective so as to validate termination of service of a workman which was otherwise illegal and void due to violation of Section 25F or other provisions of the Act.
6. We may further add that if at all the Legislature wanted to validate the illegal orders of retrenchment or wanted to infuse life in the dead orders, nothing prevented it from giving retrospective effect to clause (bb) by enacting an express provision to that effect. In our opinion, if an order is invalid at the time when it was made then it cannot get validated on account of subsequent amendment in the Act unless the amendment is given retrospective effect or the legislature enacts Validating Act with the object of removing the legal flaw in the order.
7. Having held that clause (bb) which has been added to the Act w.e.f. 18.8.1984, cannot in any manner support the order dated 15.7.1983, we shall now examine whether termination of service brought about in accordance with the terms and conditions of contract of employment can be treated as retrenchment.
8. Definition of the term 'retrenchment' as it stood prior to the insertion of clause (bb) took within its fold termination of service of a workman for any reason whatsoever with few exceptions like termination of service as a result of disciplinary action, voluntary retirement, retirement on reaching the age of superannuation and termination of service on the ground of continued ill health. With the insertion of clause (bb) in Section 2(oo), two more types of cases have been taken out of the purview of the term 'retrenchment'. One of them is the termination of service due to non-renewal of contract of the employment and the other is termination of service under a stipulation in the. contract of employment. Therefore, all types of termination of service except those which fall within the excepted categories will have to be treated as retrenchment.
9. In Hari Prasad Shivshankar Shukla v. A.D. Divikar, AIR 1957 S.C. 121. their Lordships of the Supreme Court took the view that the word 'retrenchment' as defined in Section 2(oo) of the Act does not include termination of service of a workman on a bona fide closure of an industry and held as under:-
"In the absence of any compelling words to indicate that the intention was even to include a bona fide closure of the whole business, it would, we think, be divorcing the expression altogether from the context to give it such a wide meaning as it contended for by learned counsel for the respondents.......It would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termination of service of all workers by the employer when the business itself ceases to exist."
10. In State Bank of India v. Shri N.Sundara Money, 1976(1) SCC 822, Krishna ' Iyer J, who spoke for the Court took a different view and observed as under:-
"Termination.....for any reason whatsoever" are the key words. Whatever the reason, every termination spells retrenchment. So the sole question, has the employee's service been terminated? Verbal apparel apart the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced.....True, the section speaks of retrench ment by the employer and it is urged that some act of violation by the employer to bring about the termination is essential to attract Section 25F and automatic extinguishments or service by effluxion of time cannot be sufficient... Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provisions. A preemptive provision to terminate is struck by the same vide the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision."
11. Although reference was not made to Hari Prasad's case in Sundara Money's case, the matter was considered in Hindustan steel Ltd. v. Presiding officer, Labour Court, Orissa and Ors., 1976(4) SCC 222 and after making a reference to both the previous cases, the Supreme Court preferred the interpretation in N. Sundara Moneys case. The same view was reiterated in Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherji and Ors., 1977(4) SCC 415; Santosh Gupta v. State Bank of Patiala, (1980)3 SCC 340; Management of Karataka State Road Transport Corporation, Bangalore v. M. Boraiah and Anr., (1984)1 SCC 244; Gammon India Limited v. Niranjan Das, (1984)1 SCC 509. Despite these decisions, the question was again raised before the Supreme Court and the matter was then examined by the Constitution Bench. After making reference to and an analysis of the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd. Chandigarh v. Presiding Officer, Labour Court, Chandigarh, (1990)3 SCC 682, held as under:-
"Though there are apparent incongruities when the definition clause S. 2(oo) is considered in the context of the main provisions viz. Ss. 25F, 25C, 25 it but there is room for harmonious construction.
The definition contained in S.2 are subject to their being anything repugnant in the subject or context. The principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking as contemplated in the aforesaid Section, it would be inconsistent to read into the provisions as right given to workman "deemed to be retrenched" a right to claim re-employment as provided in Section 25H. In such cases as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compensation in accordance with S.25F.
As result of construing retrenchment in its wider sense, the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workmen, whose services has been terminated, may have been affected by introduction of Ss.2(oo), 25F and the other relevant sections, Secondly, it may be said, the rights as such are not effected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the affected workmen, perhaps for immediateting over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes state pro ratione volunt an populi; the will of the people stands in place of a reason.
The express exclusion of volitional element in clauses (a) and (b) of S. 2(oo) namely, voluntary retirement and retirement on reaching the stipulated age of retirement implies that those would otherwise have been included. If those cases were to be included, termination on abandonment of service, or an efflux of time and on failure to quality although only consequential or resultant, would be included as those have not been excluded. Thus, there appears to by a gap between the first part and the exclusion part. However, when such a gap is disclosed, the remedy lies in an amending Act. The Court has to interpret a statute and apply it to the facts.
The wider literal meaning has since been adopted by the Supreme Court in Sundara Money and subsequent cases rejecting the narrow, natural and contextual meaning. The question of the subsequent decisions of the Supreme Court being per incuriam on ground of failure to apply the law earlier laid down by the Constitution Bench of the Court in Hari Prasad Shukla case could arise only if the ratio in Sundara Money and subsequent decisions in the time was in conflict with the ratio in Hari Prasad and Anakapalle. Analyzing the complex syllogism of Hariprasad case it appears that its major premise was that retrenchment meant termination of surplus labour of an existing industry and the minor premise was, that the termination in that case was of all the workmen on closure of business on change of ownership. The decision was that there was no retrenchment. However, Hari Prasad case is not an authority for the proposition that S. 2(oo) only covers cases of discharge of surplus labour and staff. The judgments in Sundara Money and the subsequent decisions in the line could not be held to be per incuriam in as much as in Hindustan steel and Santosh Gupta cases, the Division Benches of the Supreme Court had referred to Hari Prasad case, and rightly held that its ratio did not extend beyond a case of termination on the ground of closure and as such it would not be correct to say that the subsequent decisions ignored a binding precedent. In a fast developing, branch of industrial and Labour Law it may not always be of particular importance to rigidly adhere to a precedent, and a precedent may need be departed from if the basis of legislation changes."
12. Thus, controversy regarding the scope of the term 'retrenchment' has been set at rest by the Constitution Bench decision of the Supreme Court in Punjab Land Development and Reclamation Corporation's case (supra). The Constitution Bench has unequivocally accepted the wider literal meaning given to the word 'retrenchment' in State Bank of India v. N. Sundara Money (supra) and has rejected the argument that decision in N.Sundara Money's case should be treated as per incuriam because it was decided without taking note of the earlier decision in Hari Prasad Shukla's case (supra). The Constitution Bench has clearly observed that the question which arose before the Court in Hari Prasad Shukla's case related to closure of an industrial establishment and the Court was not called upon to directly (determine the meaning of the term 'retrenchment' under Section 2(oo).
13. In Santosh Gupta v. State Bank of Patiala, AIR 1980 SC 1219, their Lordships held that termination of service of a workman on the ground of her failure to pass the test which was necessary for confirmation amounted to retrenchment within the meaning of Section 2(oo) and, therefore, the requirements of Section 25F had to be complied with.
14. In Management of Karnataka State Road Transport Corporation, Bangalore v. M.Boraiah, AIR 1983 SC 1320, their Lordships held that termination of service of a probationar would also amount to retrechment and observed:-
" 'Retrenchment' as defined in S. 2(oo) of the Industrial Disputes Act, covers every case of termination of service except those which have been embodied in the definition and, therefore, discharge from employment or termination of service of a probationer would also amount to retrenchment."
15. In Syed Azam Hussain v. Andhra Bank Ltd., 1995(1) SLR, page 707, their Lordships of the Supreme Court examined the legality of an order dated 2.1.1971 whereby service of the appellant was terminated during the extended period of probation while he was holding the post of clerk. Their Lordships nullified the order of termination of service by observing :-
"It cannot be disputed that the appellant had completed 240 days of service since he, had joined duty on April 6, 1970 and his services were terminated on January 2. 1971. The appellant was a "workman" for the purpose of S. 2(s) of the Industrial Disputes Act, 1947. Since he was employed in the clerical grade with the respondent Bank, which is an "industry" under Section 2(j) of the Industrial Disputes Act, 1947, the termination of appellant's service was, therefore, 'retrenchment' under Section 2(oo) of the Industrial Disputes Act, 1947 and it could be done only in accordance with the provisions contained in S. 25F of the Industrial Disputes Act, 1947."
16. In the light of the above discussion, we hold that even though service of the petitioner was terminated in accordance with the conditions incorporated in the letter of appointment which authorised the employer to terminate the service of the petitioner during the period of probation, the same will have to be treated as retrenchment within the meaning of section 2(oo) as interpreted by the Apex Court in Sundara Monny's case (supra) and in Punjab Land Development and Reclamation Corporation. Ltd. v. Presiding officer, Labour Court, Chandigarh (supra).
Re Question No. (ii)
17. The Punjab Printing and Stationery Department Service Rules, 1964 and the Punjab Civil Services (Punishment and Appeal) Rules, 1970 have been enacted by the Governor of Haryana in exercise of powers vesting in him under proviso to Article 309 of the Constitution of India and, therefore, these rules have the force of law. However, that does not logically lead to the conclusion that they would constitute special provisions vis-a-vis the Industrial Disputes Act, 1947 and they will over-ride the provisions of 1947 Act.
18. Article 309 of the Constitution of India empowers the appropriate legislature to enact laws for regulating the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. The only limitation on the exercise of this power is that the provisions contained in the enactments of legislature shall remain subject to the provisions of the Constitution. Proviso to Article 309 empowers the President or such other person as he may direct and the Governor of a State or such person as the Governor may direct, to make rules regulating the recruitment and the conditions of service of persons appointed to such posts under the Union and the State respectively, until provision in that behalf is made by or under Act of the appropriate legislature. Therefore, the power to frame rules can be exercised only till the time the appropriate legislature enacts law on the subject. It is, therefore, logical to say that if the appropriate legislature has already enacted a legislation which regulates the recruitment and the conditions of service of persons appointed in connection with the affairs of the Union or the State, then power under proviso to Article 309 cannot be exercised on that subject. If at all rules are framed under proviso to Article 309 in relation to a field which is already occupied by the law enacted by the appropriate legislature then such rules will be subservient to the Act of the legislature and in the event of any inconsistency between the two pieces of legislations the law enacted by the legislature will prevail as against the rules framed under proviso to Article 309.
19. Provisions of the Industrial Disputes Act, 1947 deserve to be examined vis-a-vis the provisions contained in 1964 Rules and 1970 Rules in the light of the above discussed principles. '1947 Act' is a piece of legislation enacted by the Parliament in exercise of its power under Entries 22, 23 and 24 of List-Ill - Concurrent List of the Seventh Schedule of the Constitution. Any person employed under a public or a private employer will be entitled to the benefit of the provisions of 1947 Act if it is proved that he falls within the definition of "workman" under Section 2(s) of 1947 Act and he is employed in the establishment which is covered by the definition of "industry" under Section 2(j) of the Act. There are several government departments rendering services to the public by co-operation between the officers and employees. They fall within the definition of 'industry' under Section 2(j) as interpreted by the Apex Court in Bangalore Water Supply and Sewerage Corporation v. A. Rajappa, AIR 1978 SC page 548. Only those activities of the government are excluded from the definition of "industry" which pertain to the sovereign or regal functions of the State. Thus, a person holding civil post in the service of the State may also be a 'workman' within the meaning of Section 2(s) and he will be entitled to the benefits which are available to workmen under the provisions of 1947 Act. Such benefits being available to the employee under the provisions of the Act. Such benefits being available to the employee under the provisions of the Act of an appropriate legislature, the rules framed under proviso to Article 309 of the Constitution cannot take ' away those rights and, therefore, it must be held that the provisions of 1964 Rules and 1970 Rules cannot over-ride the provisions of the industrial Disputes Act, 1947 and they cannot be used to deprive an employee workman of the rights flowing from the provisions of the Industrial Disputes Act, 1947 which include a right to seek reinstatement on the basis of adjudication by Labour Court/Industrial Tribunal against unlawful termination of service.
20. There is another angle from which the issue needs examination. The Act of 1947 contains a complete machinery for settlement and adjudication of disputes between the employer and the employee who are covered by the provisions of the Act. The adjudicating machinery constituted under the Act is vested with wide powers to give appropriate relief to the workman while adjudicating the industrial disputes. No such machinery is to be found in the provisions of 1964 Rules or 1970 Rules. In so far as 1964 Rules are concerned, they merely provide for the constitution of service, the method of recruitment, the qualifications, seniority, confirmation and other service conditions of the employees employed in the Printing and Stationery Department. Rules of 1970 are omnibus in character and they contain provisions to deal with acts of misconduct. Employees governed by 1970 Rules can be punished after following the procedure prescribed in the rules. Right of appeal and review is also given under these rules. However, there is no provision in 1964 Rules or 1970 Rules parallel to those contained in Sections 10, 11, 11A, 12 and Chapter V-A, Chapter V-B etc. of 1947 Act. Thus, it is clear that 1947 Act, on the one hand, and the Rules framed under proviso to Article 309 on the other hand, occupy different fields and there is no real conflict between them.
21. In this connection we may refer to D.N. Banerjee v. P.R. Mukherjee, AIR 1953 SC 58 in which argument was raised before the Apex Court that the employees of the Municipality cannot be reinstated under the Industrial Disputes Act, 1947 because that would amount to encroachment upon the powers of the Municipal Commissioner to dismiss or appoint municipal servants. While rejecting this argument, the Apex Court held: -
" It is not necessary to dwell at any length on points (c), (d) and if the industrial Disputes Act applies to Municipalities and their employees, the power to reinstate dismissed employees, held in - Western India Automobile Association v. Industrial Tribunal, Bombay, 1949 F.C.R, 321 to be within the competence of a tribunal under the Act, will trench no doubt on the power to appoint and dismiss conferred on the chairman and Commissioners of Municipalities under Ss. 66 and 67, Bengal Municipal Act. This invasion of the provincial field of legislation does not however, render the Industrial Disputes Act of the central legislature invalid, as we have to pay regard primarily in the pith and substance of the challenged Act in considering the question of conflict between the two jurisdictions Industrial and labour disputes are within the competence of the central legislature, and the impugned Act deals with this subject and not with local Government, the point is covered by - 'Prafulla Kumar v. Bank of Commerce Ltd., Khulna' 74 Ind App 23 (P.C.)."
That apart if at all, we were to hold that there is a conflict between 1964 Rules and 1970 Rules on the one hand, and the provisions of the 1947 Act on the other hand, the latter would prevail in so far as Chapter V-A of 1947 Act is concerned; Section 25- J(1), which is a part of Chapter V-A of 1947 Act, contains a non-obstante clause and it gives over-riding effect to the provisions of chapter V-A as against anything inconsistent contained in any other law including the Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946. Of course, proviso to Section 25-J(1) saves more beneficial provisions contained in any other Act or Rules, Orders or Notifications issued there under or under any standing order, Award, Contract of Service etc. The intention of the Legislature appears to be that if the provisions of Chapter V-A are advantageous to the workman as against the provisions contained in any other law, the workman shall be entitled to the benefit of Chapter V-A, but if benefit is available to the workman under any Act or Rules or Order or Notification or Standing order, Award, Contract of Service etc., then such benefit shall be protected.
22. The affect of non-obstante clause contained in Section 25-J(1) has been considered in R.BA. Mill's Company v. Labour Court, Nagpur, AIR 1972 SC 451 and it his been held that the provisions of the Standing orders framed by the company cannot deprive the workman of the rights which are available to him under Chapter V-A of the Industrial Disputes Act, 1947.
23. In a converse case where the provisions of the standing orders were more beneficial as compared to the provisions of Chapter V-A, the Apex Court held that the provisions contained in the Standing Orders will prevail (R and H Districts Electrical Supply Company v. State of U.P., AIR 1966 SC 1471).
24. In L. Robert D' Souza v. Executive Engineer, Southern Railways, AIR 1982 SC 854, their Lordships of the Supreme Court considered this issue in the light of Rule 2505 of the Railway Establishment Manual which authorised the employer to terminate the service of daily wage employee without any notice or compensation. Their Lordships rejected the argument that provisions of Section 25F were not required to be complied with and held:-
"Therefore, assuming that he was a daily rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25F of the Act and his service terminated for any reason whatsoever and the case does not fall in any of the excepted categories, not -withstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act."
25. In CWP No. 4273 of 1996, Ram Sumer v. Presiding Officer, Industrial, Tribunal and Anr., decided on 31.5.1996, this court has considered the applicability of the provisions of Chapter V-A of 1947 Act vis-a-vis the Punjab Shops and Commercial Establishments Act, 1958 and after examining the provisions of the two enactments a Division bench has held that the right available to a workman to seek reinstatement due to violation of the provisions contained in Chapter V-A cannot be curtailed by invoking Section 22(2) of the Punjab Shops and Commercial Establishment Act. This court held as under:-
"Though there may appear to be some overlapping of the provisions of '1947 Act' and '1958 Act' in certain respects, the two enactments operate in different fields and there is no inconsistency between the same. No doubt Section 22 of '1958 Act' provides remedy to an employee in a case of unreasonable* termination of service and where the employer fails to comply with Section 22(1) but the remedy available to the workman is of a very limited character, namely, compensation of two months 'salary. For contravention of Section 22(1), the employer can also be made liable to pay penalty in the form of fine under Section 26. However, the provisions of Section 22 cannot be said to have the effect of excluding or barring the remedy available to the employee under the '1947 Act' against wrongful termination of service. The remedy available to an employee under '1947 Act' against wrongful termination of service of not restricted to the case of retrenchment but the same is available in the cases of all kinds of wrongful termination of services. The magnitude of power available to the adjudicating body under Section 11A is also much wider. Moreover, if Section 25J of '1947 Act' is read alongwith Section 33 of '1958 Act' any doubt regarding the applicability of the provisions of '1947 Act' to the employees of shops and commercial establishments stands removed. A conjoint reading of these provisions shows that the employee has a right to take advantage of the more beneficial provision. If the provisions of the '1947 Act' are more beneficial then those would prevail in view of proviso to Section 25-J(1). This is also the purport of Section 33 of '1958 Act' which saves rights and privileges available to an employee on the date of enforcement of '1958 Act'. '1947 Act' is a statute which was effective on the date of commencement of '1958 Act' and, therefore, the benefit of provisions of Section 25F, 25G and 25H, which were available to the employees of shops and commercial establishments, will continue to be available to them after the commencement of '1958 Act'."
Re:- Question No. (iii)
26. A person appointed on probation can ordinarily be removed from service in accordance with the terms and conditions of the contract of employment on the ground of unsatisfactory performance or failure to give satisfaction during the period of probation. If such an employee challenges the termination of his service on the ground of arbitrariness, the court can examine whether there was some material on the basis of which the employer could form an opinion that the employee is not fit to be continued in service. If there is a total absence of such material an inference can be drawn by the court that the termination of service has been brought about arbitrarily, as held by the Supreme Court in Syed Ahmed Hussain v. Andhra Bank (supra).
27. However, if the employer seeks to terminate the service of a probationer on the basis of allegation of misconduct, then the termination would be punitive and the employer will not be entitled to take shelter of the terms and conditions of employment. In such a case the court will lift the veil and find out the real basis of the order passed by the employer to dispense with the service of the workman, not withstanding the cloak of innocuousness in the order of termination of service, and if it is found that an inquiry consistent with the rules of natural justice has not been made then an order of reinstatement can be 'passed. It is not necessary for us to make a detailed analysis of the legal position on this aspect in view of the decision of the Apex Court (seven Judges Bench) in Shamsher Singh v. State of Punjab, AIR 1974 S.C. 2192 and a later decision in Anup Jaiswal v. Government of India, AIR 1984 SC 636.
28. Having recorded our opinion on the three above noted questions, we shall now examine the legality of the impugned award. The learned Labour Court has upheld the termination of service of the petitioner on the ground that service of the petitioner was terminated in accordance with the conditions of appointment letter and the rules framed under proviso to Article 309 of the Constitution of India. He has rejected the argument of the petitioner's representative that termination of service of the petitioner was invalid on account of violation of section 25F by holding that the provisions of 1964 Rules and 1970 Rules over-ride the provisions of the Industrial Disputes Act, 1947. However, while recording the aforementioned conclusions, the, Labour Court has not at all examined the Issues raised before it in a correct perspective. The learned Presiding Officer failed to notice Section 25J. He also over-looked the fact that termination of service of the petitioner was founded on the allegation of misconduct, namely, that the petitioner had attempted to cheat the government and his matriculation certificate was bogus. These two factors constituted the foundation of the action taken by the authorities of the department and admittedly no inquiry consistent with the rules of natural justice was held by the respondents No. 2 and 3 before terminating the petitioner's service. It is also an admitted position that even though the petitioner had worked for a period of more than 240 days, neither any notice nor pay in lieu, thereof nor retrenchment compensation was paid to him on or before 15.7.1983. Thus on both the counts termination of service of the petitioner was liable to be declared as nullity. In our considered opinion, by ignoring the material legal issues, the Labour Court committed a patent illegality in upholding the termination of service of the petitioner.
29. For the reasons stated above, we allow the writ petition and quash the award (Annexure P-5) as well as the termination of service of the petitioner brought about vide order dated 15.7.1983. Consequently, the petitioner shall be entitled to reinstatement with continuity of service. However, for back wages we leave the petitioner free to avail the remedy under Section 33-C(2) of 1947 Act, as has been held in Managing Director. U.P, State Warehousing Corporation v. Vijay Narain Bajpai, AIR 1980 SC 840. We also make it clear that in case the petitioner makes an application for back-wages, it shall be open to the respondents to plead and prove that the petitioner was gainfully employed during the intervening period and on that account he is not entitled to whole or part of the back Wages. We also make it clear that for the period between 21.9.1992 and 27.3.1996 i.e. the date of award and the date of filing of the writ petition, the petitioner shall not be entitled to wages.