Dismissed

Jagdish Singh v. Judge Labour Court Ors.

Rajasthan HC1 Apr 2015CW/3355/2013

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's appeal against an Labour Court award granting compensation in lieu of reinstatement. The Court held that despite the illegal termination, the Labour Court acted within its discretion to deny full back wages given the petitioner's 37-day service tenure and the 30-year delay in adjudication.

What did the court decide?

The writ application was dismissed, upholding the Labour Court's award of compensation in lieu of reinstatement.

Jagdish Singh Vs Judge Labour Court Ors. — Pension and Retirement Benefits | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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O R D E R

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S.B. Civil Writ Petition No.3355/2013 Jagdish Singh Vs. Judge, Labour Court No.1, Jaipur & Ors.

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Date of Order: 01.04.2015

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PRESENT

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HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA

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Mr. Ankul Gupta, for the petitioner.

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The petitioner in the instant writ application is aggrieved of the award dated 12^th June, 2012, to the extent of molding the relief for grant of compensation to the tune of Rs.one lac in lieu of reinstatement and has approached this Court, praying for the following relief(s):

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“(i) to modify the award dated 12/6/2012 passed by Labour Court No.1, Jaipur Rajasthan to the extent of issuing direction holding the petitioner entitled to reinstatement in service with full back wages from the date of his removal from service with all consequential benefits.

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(ii) Cost of the petition be awarded in favour of the petitioner.

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(iii) Any other appropriate writ, order or direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the case, may also be passed in favour of the petitioner.”

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Briefly, the indispensable skeletal material facts necessary for appreciation of the controversy raised needs to be first noticed. The petitioner was, initially appointed on the post of Conductor, purely on temporary basis for 30 days vide order dated 30^th June, 1982, on probation. On 10^th August, 1984, while on duty, he was found carrying two passengers

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without tickets; leading to imposition of penalty of his removal from service, on 31^st August, 1984. The petitioner, challenging the penalty, instituted a civil suit in the Court of Additional Chief Judicial Magistrate No.2, Jaipur City, Jaipur, which was lateron withdrawn in view of the verdict of the Hon'ble Supreme Court in the case of Krishnkant Vs. Roadways; AIR 1995, 1715 . On an industrial dispute raised, the State Government made a reference on 30^th December, 1998, to the Labour Court.

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The Labour Court, taking into consideration, the statement of claim, response to the statement of claim, evidence adduced by the parties and materials available on record, concluded that the employment of the petitioner was terminated during the period of probation. The statement deposed by witness, produced on behalf of the R.S.R.T.C., in the cross examination, the witness admitted the fact that during the course of inspection two passengers were found without tickets while the petitioner was on duty as conductor on the vehicle. The Labour Court also recorded a finding that the basis of termination of the employment was the unsatisfactory work of the petitioner, as was evident from the materials available on record, and arrived at the conclusion that the termination of the employment was illegal. However, instead of direction for reinstatement as a consequence relief thereof; the Labour Court allowed compensation to the tune of Rs.one lac in lieu of reinstatement.

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Learned counsel for the petitioner, reiterating the pleaded facts and grounds, of the writ application, assailed the impugned award to the extent of moulding of the relief for grant of compensation in lieu of reinstatement firstly, for once the finding arrived that the termination of the employment of the petitioner was on account of 'unsatisfactory work', the relief of reinstatement ought to have been allowed and compensation. Secondly, there was no delay on the part of the petitioner for he was availing the remedy before the Civil Court and withdrew the proceedings in view of law declared by the Hon'ble Supreme Court and availed of the remedy in accordance with law. Thirdly, the order of termination of the employment was stigmatic and was rightly held to be illegal, and therefore, as a consequence reinstatement has to be the relief. Hence, the Labour Court committed gross error while making the relief to compensation in lieu of reinstatement.

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According to the learned counsel, the fact that the petitioner worked only for 37 days, after his appointment on 24^th July, 1984, was not a good reason for the Labour Court to mould the relief of reinstatement for compensation. The very fact that the respondents admitted the incident that the petitioner was found carrying two passengers without tickets, is the basis of termination of his employment. Therefore, an enquiry was necessary and an order of his termination simplicitor could not have been made. In support of his submissions, the learned counsel has placed reliance on the

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opinion of the Hon'ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) And ors.; 2013 (10) SCC 324, referring to the propositions culled out on a survey of earlier judgments. Reliance has also placed on the opinion in the case of V.P. Ahuja Vs. State of Punjab and others; 200 (3) SCC 239, State Bank of India and Others Vs. Palak Modi and another; 2013 (3) SCC 607 and the opinion of the Division Bench of this Court in the case of Mukut Behari Vs. Executive Director, Hotel Clarks Amer & Anr., decided on 13^th January, 2015 .

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I have heard the learned counsel for the petitioner and with his assistance perused the materials available on record. 7. Indisputably, the petitioner was appointed on 24^th July, 1984, on probation and his employment was terminated on 31^st August, 1984. Though, the learned counsel admits the fact that an order of appointment, in fact, was made but has not placed the same on record. The fact that the employment of the petitioner was terminated by a written order dated 31^st August, 1984, though admitted but the document has not been placed on record.

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From the materials available on record, it is evident that the petitioner was appointed on probation and only worked for 37 days, as has been recorded by the Labour Court. The appointment of the petitioner dates back to the year 1984 and so also the termination. A period of almost 30 years has elapsed from the date of termination until the award was made by the Labour Court-I, Jaipur.

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In the case of Deepali Gundu Surwase (supra) , the propositions culled out by the Hon'ble Supreme Court specifically takes note of facts and circumstances, which are to be considered by the adjudicatory authority while deciding the issue of back wages, proposition No.(ii) reads thus:

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“(ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

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Under proposition (v), the Hon'ble Supreme Court

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further observed thus:

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(v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrong doings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.”

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The issue of appointment on probation has been subject matter of several decisions by the Hon'ble Apex Court of the land in the back drop of the singular facts of those cases. In

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the instant case at hand, the petitioner, who was appointed on probation for two years on 24^th July, 1984, was found carrying two passengers without tickets while he rendered service of 37 days only.

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Needless to say that during the period of probation, the suitability of the recruit/appointee has to be seen. If the employer finds that the services of the recruit/appointee are not satisfactory, which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. Considering somewhat similar controversy in the case of Krishnadevaraya Education Trust and Anr. Vs. L. A. Balakrishna; (2001) 9 SCC 319, the Hon'ble Supreme Court observed that if the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma.

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Their Lordship further observed that if such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge, the employer states

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that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.

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In the case at hand, admittedly, the order of termination was simplicitor as stated by the learned counsel though he has not placed the copy of the order on record.

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The main thrust of the argument is that in the cross examination the witness, who appeared on behalf of the Corporation, admitted the fact that during the course of inspection on 10^th August, 1984, the petitioner was found carrying two passengers without tickets. Thus, the statement deposed by the witness in response to a question during the cross examination or a statement in the response filed to the statement of claim, cannot form the subject matter of the order itself.

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The opinion of the Division Bench, as referred to and relied upon, by the learned counsel for the petitioner in the case of Mukut Behari (supra), was in the back drop of domestic enquiry, and therefore, the observations made therein, are of no help to the petitioner in the instant case at hand.

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In the case of State Bank of India and Others Vs. Palak Modi and another (supra) ; 2013 (3) SCC 607, the

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Hon'ble Supreme Court observed thus:

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The ratio of the above noted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general suitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.

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There is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Bank's right to punish a probationer for any defined misconduct, misbehaviour or misdemeanor. In a given case, the competent authority may, while deciding the issue of suitability of probationer to be confirmed, ignore the act (s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanor constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct."

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In the case of State Bank of India & Ors.(supra), the controversy dealt with by the Hon'ble Supreme Court was with regard to the use of unfair means in test/exam.

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Be that as it may, in the instant case at hand, the Tribunal even after having arrived at conclusion that to the effect that the termination of the employment of the petitioner was illegal, has accorded the relief of compensation in lieu of reinstatement, having regard to the factors obtaining in the instant case wherein the termination and appointment of the petitioner dates back to the year 1984, and he worked only for 37 days. That being the case, the instant matter does

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not call for any interference with the discretion exercised by the Labour Court in due exercise of appreciation of the facts and attending circumstances and materials available on record, while moulding the relief for grant of compensation in lieu of reinstatement.

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By now, it is well settled law that Labour Court/Industrial Tribunal while adjudicating an industrial dispute relating to discharge or dismissal, are vested with wide discretion and if the discretion vested is exercised keeping in view the facts and attending circumstances of the case, having regard to the pleaded facts, evidence adduced and material available on record, it will not be open for the High Court, in exercise of writ jurisdiction under Article 226 and 227 of the Constitution of India, to interfere with the same, but for well settled principles propounded by the Hon'ble Supreme Court, for exercise of writ of certiorari while examining the legality and validity of an order/award passed by the Labour Court or Industrial Tribunal.

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All the cases referred to and relied upon by the learned counsel for the petitioner are the matters wherein the discretion exercised by the Labour Court/Industrial Tribunal, was interfered with by the higher Court while examining the order/award passed by the Labour Court/Industrial Tribunal in exercise of writ jurisdiction. In the case of Mukut Behari Vs. Executive Director, Hotel Clarks Amer & Anr., D.B.Civil Appeal (Writ) No.414/2014; decided vide judgment dated

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13^th January, 2015, the Division Bench of this Court examined a case wherein the learned Single Judge interfered with the award passed by the Labour Court while answering the reference, with direction for reinstatement of the workman therein with continuity of service and 20% of back wages. The learned Single Judge, while upholding the findings of the Labour Court, for the writ Court had limited jurisdiction and there was no perversity in findings. The learned Single Judge further observed that the Labour Court had not ignored any material or relied of any material not produced before it, still interfered with the award and the relief granted, invoking the principle of 'loss of confidence' and modified the relief of reinstatement with 20% back wages with continuity of service, by compensation. The Division Bench of this Court allowed the intra-court appeal and restored the award passed by the Labour Court.

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From the pleaded facts, attending circumstances and evidence adduced by the parties, it is an admitted fact that the petitioner workman was appointed on probation vide order dated 24^th July, 1984, and his employment was terminated on 31^st August, 1984, after a period of 37 days. Both the orders either of appointment or termination have not been placed on record.

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The award has been assailed to the extent of modification of the relief claiming reinstatement, for the reason that though the order of termination was simplicitor

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but was found to be bad in the eye of law, as the witness who appeared on behalf of the Corporation, in his crossexamination deposed that the petitioner was found carrying two passengers without tickets during the course of inspection on 10^th August, 1984. Be that as it may, since neither the order of termination has been challenged before the Labour Court nor has been placed on record, therefore, the contents and import of the language of the order terminating the employment of the petitioner is not open for any discussion at this stage in writ proceedings.

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Having regard to the singular facts of the case at hand, where the appointment dates back to the year 1984 and the petitioner-workman rendered service only for 37 days. Further, a period of also 28 years had already elapsed by the date, the impugned award dated 12^th June, 2012 was made, and by now a period of more than 30 years has elapsed. In the attending facts and circumstances, having regard to the nature of appointment, the period for which the petitioner worked and the time period elapsed i.e. 28 years; the discretion exercised by the Labour Court while moulding the relief for compensation in lieu of reinstatement, cannot be faulted so as to warrant any interference in exercise of writ jurisdiction under Article 226 and 227 of the Constitution of India.

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