CLEMEND V FERNANDEZ Vs. GIOVANOLA BINNY CO LTD

JUDGEMENT

(1.) THIS is an appeal from the judgment of a learned single Judge allowing a writ petition filed by the management in question for quashing an award passed by the Industrial Tribunal, Calicut, on the basis of an application filed by the appellant-worker under Section 33a of the Industrial Disputes Act, 1947 hereinafter referred to as the Act.

(2.) THE appellant was appointed as a fitter by the management for a period of one month with effect from 18th November, 1963. Thereafter by an order dated 8-1-1964, marked as Ext. M2 before the Tribunal, the appellant was appointed as production worker. The terms of the appointment were that the appellant would be on probation for a period of one year with effect from 1-1-1964, that during the period of probation his services are liable to be terminated without any reason being assigned, that if after the period of probation it is found that his work and conduct are satisfactory he would be confirmed in his appointment, and that he will be bound by the rules of the company's Standing Orders in force from time to time. The management terminated the services of the appellant by Ext. W2 order on 19-11965. That order reads: We regret to advise that it has been decided not to confirm your appointment. In the circumstances we are considering your employment as terminated with effect from to-day. At the time when this order was passed an industrial dispute (I. D. No. 74 of 1964) between the management and the workers was pending adjudication before the Tribunal. That dispute arose in consequence of a strike in the factory of the management, the cause of the strike being the failure of the management to accede to the demand of the workers who were all probationers to confirm them. One of the issues referred for adjudication concerned the confirmation of the workers.

(3.) THE appellant alleging that the termination of his services by Ext. W2 contravened the provisions of Section 33 of the Act filed an application under Section 33-A of it for reinstatement. His case was that he was an active participant in the strike and the management, therefore, harboured ill-will towards him on that account; and his services were terminated not because it was found by the management that his work or conduct was unsatisfactory, but for the reason that he had engaged himself in organising the strike which was unpleasant to the management, and, therefore, the order terminating his services was an act of victimisation. The management, on the other hand, contended that the appellant was not confirmed in the post although the period of his probation was over and that the management had the right to terminate the services of the appellant without assigning any reason as he continued in service only as a probationer. They also contended that the work and conduct of the appellant were unsatisfactory during the period of probation.