DEPUTY EXECUTIVE ENGINEER Vs. JAYANTIBHAI CHHIMABHAI

JUDGEMENT

(1.) Learned Advocate Ms. Sejal K. Mandavia appearing on behalf of the petitioner and Learned Advocate Mr. D.M.Thakker appearing on behalf of the resondent. Rule Mr.D.M.Thakker Learned Advocate on behalf of respondent is waiving the service of rule with the consent of both the Learned Advocates, the matter has been taken up for final hearing today. In the present petition, the award passed by the Labour Court, Surat in Reference No.62 of 1986 dated 14th October, 1998 has been challenged wherein, the Labour Court, Surat has granted reinstatement with continuity of service with full back wages of interim period. The respondent was appointed as a Seaman with effect from 14th August, 1980 and remained in service up to 29th September, 1982 and his service was terminated on 29th September, 1982. The said termination order was challenged by the respondent-workman before the Labour Court, Surat in Reference No. 62 of 1986. The statement of claim was filed by the respondent-workman and reply was submitted by the petitioner. The contention of the petitioner was that he was appointed on probation and his probation period was not found satisfactory and he was remained negligence and also remaining absence without prior permission and he was not found fit for the post. Both the parties were produced documentary evidence on record and also submitted written argument by both the parties. Before the Labour Court, the contention was raised by petitioner that respondent was working on probation for specific period, his work was not found satisfactory and by effluxion of time, his service was terminated and respondent was a daily rated employee and such termination cannot be considered to a retrenchment and Section 2(oo)(bb) is applicable and therefore, Section 25-F is not applicable. The contention of petitioner has been examined by the Labour Court and the Labour Court has come to the conclusion that service of respondent-workman was terminated on 29th September, 1982 after completion of probation period, the respondent was remained in service because, the probation period was six months from 14th August, 1980 but, respondent has completed more than two years continuous service and therefore, neither his service was extended on probation and nor he was made permanent. Therefore, respondent-workman was continued in service after completion of probationary period and therefore, his service was not terminated by effluxion of time as per terms and condition of probationer order and the Labour Court has also considered that service of respondent was terminated because of allegation, misconduct and stigma without holding departmental inquiry against the respondent. Therefore, the Labour Court has set aside the termination order and granted full back-wages as gainful employment has not been found to be proved by the petitioner. The reasons given by the Labour Court in paragraph 8 of the award that service of respondent-workman was not terminated in terms of order of probation and therefore, Section 2(oo)(bb) is not applicable in the present case but, respondent was remained in service after completion of probationary period more than two years and service of respondent-workman was terminated because of misconduct, stigma and allegation without holding any departmental inquiry against the respondent-workman.

(2.) Ms. Mandavia submitted that the Labour Court has committed gross error not to appreciate the contention raised by the petitioner. She cited the decision of the Apex Court reported in 1997(8) Supreme Court Cases page-461. She also submitted that in present case the termination was 29th September, 1982 and dispute was raised in the year of 1986 after the period of four years even though, the Labour Court has granted full back-wages from date of termination. She also submitted that the reference was pending before the Labour Court in all twelve years and petitioner is a public body and State Authority has to bear the burden of full back-wages which ultimately the sufferer is public exchequer. Therefore, she submitted that the award of granting full back-wages is required to be interfered and Mr.D.M.Thakker appearing on behalf of respondent-workman has not seriously objected the contention of petitioner.

(3.) The contention of Learned Advocate for the petitioner relied upon the decision of the Apex Court reported in 1997(8) S.C.Cases page-461 to the effect that Life Insurance Corporation of India and Another v. Radhvendra Sheshgiri Rao Kulkarni wherein, it is observed that termination of probationer in terms of appointment letter does not amount to retrenchment. But, recently the said question has been examined by the Apex Court in case of Dipti Prakash Benarji v. Satyendra Nath Bose National Center for Basic Sciences, Culcutta and others reported in 1999 S.C.Cases Labour Court and Service page-596 wherein, it is observed by the Apex Court that it is true that the Supreme Court in some of the cases has held that termination order is not punitive where employer has been given suitable warning or has been advised to improve himself or whether he has been given a long rope by way of extension of probation. However, in all such cases there were simple order of termination which did not contain any words amounting to stigma. On the other hand, there is a stigma in the impugned order which cannot be ignored because, it will have effect on the appellant's future. Stigma need not be contained in termination order but, may also be contained in an order or proceeding referred to in termination order or in an Annexure thereto and would vitiate the termination order. Similarly, in case of V.P.Ahuja v. State of Punjab and Others reported in 2000 A.I.R. Supreme Court Weekly page-792, the Apex Court has observed that a probationer, or temporary servant, is also entitled to certain protection and his service cannot be arbitrarily, nor can those service be terminated in a punitive manner without complying with the principle of natural justice. The termination order founded on the ground that the probationer had failed in the performance of his duties administratively and technically. Ex facie, is stigmatic. Such an order which, on the face of it, is stigmatic, could not have been passed without holding a regular inquiry and giving an opportunity of hearing to the probationer. Plea that, probationer cannot claim any right on post as his services could be terminated at any time during the period of probation without any notice, as set out in the appointment letter, cannot be contenanced. Thereafter, the recently the Apex Court in case of Narsing Pal v. Union of India and Others reported in 2000 A.I.R. S.C.Weekly page-1141 has observed in relying upon the decision of the Apex Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha, A.I.R. 1980 S.C. page-1896. The relevant observation of paragraph-53 is as under :