PRESIDENT Vs. SANJAYKUMAR MAHENDRAKUMAR MEHTA

JUDGEMENT

(1.) Learned Advocate Mr. Bharat G. Jani appearing on behalf of the petitioner and Learned Advocate Mr. I. M. Pandya appearing on behalf of the respondent on caveat. In the present petition award passed by the Labour Court, Kalol in Reference No. 133 of 1989 dated 14th May, 1999 has been challenged by the petitioner. In the said award the Labour Court has set aside the order of termination and granted reinstatement with continuity of service with 50% back wages of interim period.

(2.) The brief facts of the present petition are that the respondent workman was appointed as a Clerk in the year 1984 by the petitioner. Thereafter, the respondent workman was appointed on 2nd November, 1985 as a daily rated ad-hoc Clerk by the petitioner. Thereafter, the respondent workman was appointed by order dated 29th August, 1986 with effect from 1st August, 1986 in the post of Clerk on probation for the period of one year with a condition that if during the probationary period the work of respondent is not found satisfactory then his service shall be terminated as per rules of the petitioner. Thereafter, by order dated 9th May, 1988 considering, the unsatisfactory work of respondent workman, the probationary period was extended after period of one year from 1st August, 1987. In the said order dated 9th May, 1988 extension of probationer period, the fact of negligence, unsatisfactory work and charge sheet was referred by the petitioner. The said one year period was over on 31st July, 1988. Thereafter, the probationary period was not extended but, the respondent was remained in service after completion of probationer period from 31st July, 1988. The effect of none extension of probationary period, the respondent workman was continued in service without any order of confirmation from 1st August, 1988 till the date of termination i.e. 7th September, 1988. The service of the respondent workman was terminated by the petitioner on 7th September, 1988. In the termination order allegation of misconduct, stigma and incident of unsatisfactory work has been referred by the petitioner. It is made very clear in the termination order that service of respondent has terminated because of misconduct as mentioned in the order, unsatisfactory work and negligence. Thereafter, the respondent has challenged the termination order dated 7th September, 1988 before the Labour Court, Kalol being reference No. 133 of 1989. Before the Labour Court, the respondent has filed statement of claim on 27th March, 1990 and the respondent has filed written statement on 22nd September, 1992 vide Exh. 5 and 12 respectively. Thereafter, the petitioner has produced 40 documents vide Exh. 14 which are exhibited from 16 to 54 then respondent has produced letter of District Registrar of cooperative Society vide Exh.71 then respondent was examined vide Exh. 55 and the witness of petitioner Shri Virsangbhai Chelabhai was examined and thereafter, another witness Shri Rohitkumar Jentilal of the petitioner was examined vide Exh.68. Thereafter, the Labour Court has heard the matter on merits and considered the evidence on record and came to the conclusion that service of the respondent was terminated by the petitioner on the basis of allegation, stigma, misconduct and unsatisfactory work. But, before terminating the service of the respondent undisputedly no departmental inquiry was initiated against the respondent and the respondent has completed about four years service continuous and completed 240 days continuous service. Even though Section 25-F has not been followed by the petitioner and therefore, the evidence on record and also keeping in mind the delay from 1989 to 1993 when first time the respondent was examined before the Labour Court, therefore, considering the evidence of the respondent the Labour Court has granted 50% back wages of interim period with a direction of reinstatement with continuity of service by award dated 14th May, 1999. This award is under challenged by the petitioner.

(3.) Mr. Jani appearing on behalf of the petitioner has read the relevant documents on record before this Court. Mr. Jani submitted that during the probationary period if work of the respondent is not found satisfactory then it is a right of petitioner to terminate the service of such probationer. Mr. Jani also submitted that respondent was not working in satisfactory manner and various memos were given to him to improve his conduct but ultimately, his conduct was not improved then by resort the service of the respondent was terminated. Mr. Jani also submitted that it was not malafide action or colourable exercise of power by the petitioner as unsatisfactory work has been admitted by the respondent in reply to various memos. He pointed out that in all twenty memos were given to the respondent. He also read the evidence of Shri Virsangbhai, Rohitbhai and respondent. He also submitted that there was no victimisation by the petitioner in terminating the service of the respondent. He relied upon some of the decision of the Apex Court reported in the case of Oil and Natural Gas Commission and others v. Dr. Md.S.Iskander Ali reported in A.I.R. 1980 S.C. page 1242 wherein, it has been observed that termination simpliciter of probationer appointed in temporary post after dropping inquiry against him and work of probationer never satisfactory the termination did not attract Article 311. He also relied upon the decision of Triveni Shankar Saxena v. State of U.P. and others reported in A.I.R. 1992 S.C. page 496 wherein, it has been observed that termination of service person employed temporariy as Lekhpal selected de novo as Consolidator in Consolidation Department holding post of temporary Assistant Consolidator Officer adverse entries about unsatisfactory performance against him passing of order of termination (simpliciter) without casting stigma or disclosing penal consequences against him not illegal. He also relied upon another decision of the Apex Court in the case of Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar and another reported in A.I.R. 1993 S.C. page 392 wherein, it is observed that termination simpliciter termination of service of probationer after preliminary inquiry taking into consideration overall performance and some actions or inaction does not amount to removal from service as punishment. Number of tearing of veil to find out real nature of order of termination. Applicable, where direct nexus exists between charges levelled and action taken. He also relied upon other decision in case of State of U.P. and another v. Km. Prem Lata Mishra and others reported in A.I.R. 1994 S.C. page 2411 wherein, it is observed that temporary servant termination of service on grounds, of unsatisfactory work, unsuitability, and unfitness and not by way of punishment valid not necessary to conduct departmental inquiry under the service rules.