Petitioner challenged termination as daily wager conductor, claiming violation of industrial dispute provisions. HC held termination simplicitor was not punitive, no enquiry needed, and Labour Court award was correct. Writ petition dismissed.
Petitioner's writ petition dismissed; Labour Court award upholding termination of petitioner's services.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6306/1999
Deoki Nandan son of Shri Hukam Chand, R/o Asnawar, Tehsil Jhalrapatan, District Jhalawar
----Petitioner
Versus
For Petitioner(s) : Mr. V.L. Mathur For Respondent(s) : Mr. Anirudh Singh Rathore
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Reserved on : 05/05/2023 Pronounced on : 16/05/2023
Judgment
(1) This petition is directed against the impugned award dated 16.3.1999 passed by Labour Court, Kota, in Case no. 21/1998 by which oral termination order dated 29.10.1984 of the petitioner has been held to be valid.
(2) Counsel for the petitioner submits that the petitioner was appointed as Conductor on 30.5.1984 and his services were terminated orally on 29.10.1984. Counsel submits that a vague remark was issued against the petitioner that nine passengers were found without ticket. Counsel submits that neither any charge-sheet was given nor any enquiry was held against the petitioner, hence his termination order is punitive. Counsel
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submits that there was violation of the provisions of Section 25F, G, H of the Industrial Disputes Act, 1947 (for short “Act of 1947”). Counsel submits that while relying on para nos. 34 and 35 of the judgment of Hon’ble Apex Court in the case of Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd (1999) 2 SCC 21 that termination order of the petitioner has been found to be valid by the Labour Court. Counsel submits that during pendency of the matter before the Labour Court, affidavits were submitted by both sides but no findings were recorded by the Labour Court hence, interference of this court is warranted and appropriate direction be issued to the respondents to reinstate the petitioner back in service.
(3) Per contra, the counsel for respondents opposed the arguments raised by the petitioner and submitted that the petitioner hardly worked with the employer for eighty-one days and had not completed one year of service and during inspection of the bus on the route of Aklera-Jhalawar, nine passengers were found without ticket though the petitioner had charged the fare of tickets from seven passengers. Counsel submits that termination of the petitioner on 29.10.1984 was simplicitor and the same was not passed with any remark, hence the same cannot be said to be punitive.
(4) Heard and considered the submissions made by both sides and perused the material available on the record.
(5) Perusal of the record indicates that the petitioner was engaged on daily wages as Conductor on 30.5.1984 and during
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inspection of the bus it was found that nine passengers were found without ticket, while the petitioner had charged fare from seven passengers, hence the services of the petitioner were terminate orally on 29.10.1984.
(6) Now the issue before this court is “whether the impugned termination of the petitioner is punitive?” If yes, “whether enquiry was required to be conducted against the petitioner after serving charge-sheet to the petitioner?”
(7) Perusal of the record indicates that the petitioner was engaged on daily wages. He petitioner was not a regular or confirmed employee and his services were not found to be satisfactory during his eighty-one days of services and accordingly the same were terminated. Meaning thereby, the status of petitioner was of an employee working as daily wager.
(8) The law with respect to termination of services of a daily wager or probationer is now well settled. Termination has to be by a non-stigmatic order. If the services of a daily wager or probationer is found not satisfactory, his termination order will not amount to a termination order being a stigmatic one. Hon’ble Apex Court in the case of Chaitanya Prakash v. H. Omkarappa (2010) 2 SCC 623, has held that there is no need to follow the principles of natural justice while terminating services of a probationer and even if the termination order refers to the unsatisfactory service of the probationer, the order is not stigmatic. Paras 18 and 21 of the said judgment would be useful to be reproduced here, which reads as under :-
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“18. It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In this connection, we make a reference to the decision of the Supreme Court in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences (2006) 4 SCC 469, wherein also a similar letter was issued to the employee concerned intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. We have considered the ratio in light of the facts of the said case and we are of the considered opinion that the basic facts of the said case are almost similar to the one in hand. There also, letters were issued to the employee concerned to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. In the result, a letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination.
“14. ...As pointed out in this judgment, expressions like ‘want of application’, ‘lack of potential’ and ‘found not dependable’ when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service.”
(8.1) In the case of Rajesh Kumar Srivastava v. State of
Jharkhand (2011) 4 SCC 447, Hon’ble Supreme Court has held that while taking a decision to terminate the services of the probationer, no notice is required to be given to the probationer nor is the probationer required to be given any opportunity of hearing. Para 10 of the said judgment reads as under :-
“10. The aforesaid decision to release him from service was taken by the Respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the Appellant nor is he required to
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be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the Appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not.”
(8.2) In the case of Progressive Education Society v. Rajendra (2008) 3 SCC 310, it has been held by the Hon’ble Apex Court that unless a stigma is attached to the termination or the probationer is called upon to show cause for any shortcoming which may subsequently be the cause of termination of the probationer’s services, the Appointing Authority is not required to give any explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory.
(8.3) Hon’ble Supreme Court in the case of Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Ltd (1997) 2 SCC 191, has held that during the period of probation, the authorities are entitled to assess the suitability of the candidates, and if it is found that the candidate is not suitable to remain in service, his services can be terminated without issuing notice or conducting any enquiry against him. It has been held in para 5 as under :-
- The petitioner challenged the order of termination in the High Court. The High Court without going into the question whether or not it is a stigma, came to the conclusion that the respondents had totally lost confidence in the appellant and that he was totally unsuitable for the job for which he was employed and, therefore, he was found not entitled to any enquiry. Consequently, it dismissed the writ petition. Shri Sehgal, learned Senior Counsel for the petitioner, contends that the finding recorded amounts to a stigma; action taken without conducting enquiry and giving an opportunity to the petitioner, is violative of Article 311(2) of the
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Constitution and the rules made thereunder. Therefore, he is entitled to an opportunity to being heard and be dismissed only on the ground of misconduct and not by termination simpliciter. We do not agree with the learned Counsel. The reasons mentioned in the order may be a motive and not a foundation as a ground for dismissal. During the period of probation, the authorities are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service they are entitled to record a finding of unsatisfactory performance of the work and duties during the period of probation. Under these circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry. That does not amount to any stigma. If the record does not support such a conclusion reached by the authorities, different complexion would arise. In this case, they have recorded the finding that the petitioner was regularly absent on one ground or the other. Under these circumstances, the respondents terminated his services. We do not find any illegality in the action taken by the respondents.”
(8.4) Reiterating the earlier views, the Hon’ble Apex Court in the case of Unit Trust of India v. T. Bijaya Kumar Patra 1993 (1) LLJ 240, has held that a probationer’s services can be terminated during his probation if the same were not found satisfactory and it has also been held that an order of discharge is not an order of punishment, so there is no need of any hearing before termination of service. It has been held in para 10 as under :-
“10. In State of Orissa v. Ram Narayan Das this Court held that the services of a probationer can be terminated in accordance with the rules because a probationer has no right to the post held by him. The very purpose of placing a person on probation is to try him during the probation period to assess his suitability for the job in question. It is settled law that an order of discharge is not an order of punishment and, therefore, there was no question of giving a hearing before termination of service. The decisions in Madan Mohan Prasad v. State of Bihar, Samsher Singh v. State of Punjab, Anoop Jaiswal v. Govt. of India do not take any different view.”
(8.5) Hon’ble Apex Court in the case of Allahabad Bank Officers Association v. Allahabad Bank (1996) 4 SCC 504, has pointed out the expressions like "want of application”, “lack of
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potential” and “found not dependable” when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service.
(9) Hence, in view of above judgments it is safely concluded that the termination of petitioner was simplicitor and the same was not punitive and it does not cast any stigma upon the petitioner. Therefore, his termination order is not stigmatic and punitive, which requires any enquiry to be conducted. It is now settled law that there is a difference between motive for removal and foundation for removal and once unsatisfactory services or any misconduct is only the motive for removal, and is not the foundation for removal, it is not necessary that principles of natural justice have to be followed before termination of services of such a daily wager, like the petitioner.
(10) While passing the impugned award, the Labour court has placed reliance upon paras 34 and 35 of the judgment of Hon’ble Apex Court in the case of Radhey Shyam Gupta (supra). Hon’ble Apex Court has held that the termination of the service 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. Hon’ble Apex Court has dealt with the analogy of motive and foundation in paras 33 to 36 as under :-
- 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
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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 (1961) 1 LLJ 552. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklal case (1964) 1 LLJ 752. The purpose of the preliminary inquiry 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 inquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed -- if at that point of time, the inquiry 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 (1970) 1 LLJ 373 and in Benjamin case (1967) 1 LLJ 718 (SC). In the latter case, the departmental inquiry 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 (1980) 2 SCC 593 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 the 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 .
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(11) Perusal of the record indicates that services of the petitioner were terminated simplicitor i.e. without any charges of misconduct, hence the respondents were not supposed to conduct any enquiry before terminating services of the petitioner.
(12) In view of above factual aspects of the matter, the impugned order of termination of the petitioner is not punitive, hence no enquiry was required to be conducted. The Labour Court has simply followed the procedure for deciding the reference after considering the affidavits and documents cited by both sides. The procedure was followed in contemplation of the procedure prescribed under the Act of 1947. Such procedure adopted by the Labour Court cannot be said to be any enquiry about the motive or foundation of misconduct of the petitioner.
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(13) This court does not find any error committed by the Labour Court in passing the impugned award against the petitioner. Hence this petition stands dismissed.
(ANOOP KUMAR DHAND), J.
db/
3 issues framed by the court
Whether termination of services of a daily wager employee engaged for only 81 days without confirmation was punitive requiring an enquiry?
Whether lack of notice or hearing violates natural justice principles when terminating daily wager services simplicitor?
Whether the Labour Court erred in upholding the oral termination order without a formal enquiry?
Colour shows how this judgement treated each authority
Radhey Shyam Gupta v. U.P. State Agro Industries Corporation LtdReferred¶14
Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd (1999) 2 SCC 21 · Who else cites this
Chaitanya Prakash v. H. OmkarappaRelied on¶8
Chaitanya Prakash v. H. Omkarappa (2010) 2 SCC 623 · Who else cites this
Abhijit Gupta v. S.N.B. National Centre, Basic SciencesReferred¶8
Abhijit Gupta v. S.N.B. National Centre, Basic Sciences (2006) 4 SCC 469 · Who else cites this
Allahabad Bank Officers Assn. v. Allahabad BankRelied on¶8
Allahabad Bank Officers Assn. v. Allahabad Bank (1996) 4 SCC 504 · Who else cites this
Rajesh Kumar Srivastava v. State of JharkhandRelied on¶8
Rajesh Kumar Srivastava v. State of Jharkhand (2011) 4 SCC 447 · Who else cites this
Progressive Education Society v. RajendraRelied on¶8
Progressive Education Society v. Rajendra (2008) 3 SCC 310 · Who else cites this
Kunwar Arun Kumar v. U.P. Hill Electronics Corporation LtdRelied on¶8
Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Ltd (1997) 2 SCC 191 · Who else cites this
Unit Trust of India v. T. Bijaya Kumar PatraRelied on¶8
Unit Trust of India v. T. Bijaya Kumar Patra 1993 (1) LLJ 240
State of Orissa v. Ram Narayan DasReferred¶8
State of Orissa v. Ram Narayan Das
Ram Narayan Das caseReferred¶8
Ram Narayan Das case (1961) 1 LLJ 552
Champaklal caseReferred¶8
Champaklal case (1964) 1 LLJ 752
Sukh Raj Bahadur caseReferred¶8
Sukh Raj Bahadur case (1970) 1 LLJ 373
Benjamin caseReferred¶8
Benjamin case (1967) 1 LLJ 718
Gujarat Steel Tubes caseReferred¶8
Gujarat Steel Tubes case (1980) 2 SCC 593 · Who else cites this
1 provisions across 1 enactments
Deoki Nandan
Judge, Labour Court, Kota
Chief Manager, Rajasthan State Road Transport Corporation, Jhalawar
Anoop Kumar Dhand
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
