Management of the Pandiyan Roadways Corporation Ltd. Vs. Presiding Officer, Additional Labour Court and anr. - Court Judgment

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labour and industrial - reinstatement - whether non employment of respondent justified and if not to what relief he is entitled - appointment letter reveals that respondent to be considered for confirmation on completion of probation period - probation period extended again and again so contention of appellant that termination due to unsatisfactory performance not sustainable - in absence of notice of termination respondent deemed to have completed period of probation satisfactorily - held, respondent entitled to reinstatement with 25% back wages. - m. chockalingam, j. 1. this writ appeal challenges the order of the learned single judge of this court dated february 21, 1997, dismissing the writ petition no. 14070/1986 filed by the appellant herein for a writ of certiorari to quash the award made by the first respondent in i.d. no.323 of 1983 dated march 28, 1986. 2. admittedly the second respondent herein was appointed by the appellant-management as a driver on probation in theni branch for a period of six months with effect from august 1, 1979. the said period was extended on february 1, 1980 for another period of six months, which ended on july 31, 1980. again the said period of probation was extended for three months on august 1, 1980 and again for a period of two months on november 1, 1980. the appellant/management terminated the second respondent from service on february 1, 1981 on the ground of unsatisfactory performance. aggrieved by the said termination order, the second respondent gave a petition to the managing director of the appellant-corporation on march 4, 1981, protesting the order of termination. on january 31, 1980, the managing director told him that the second respondent drove the bus, which was involved in an accident. following the same, the second respondent presented a petition before the labour officer raising an industrial dispute, wherein the appellant submitted remarks-stating that since the second respondent's performance was not satisfactory, his services were terminated, and further added that they conducted an enquiry and decided that the second respondent was responsible for the accident. the government referred the said industrial dispute for adjudication as to whether the non- employment of the second respondent was justified, and if not to what relief he was entitled. before the labour court, both the employee and the management were given sufficient opportunity to putforth the oral and documentary evidence. after scrutiny of the evidence and available materials adduced by both sides and hearing the arguments advanced, the labour court passed an award holding that the order of dismissal was unsustainable and set aside the same with a direction that the management should reinstate the second respondent in service with back wages and continuity of service. the management sought for a writ of certiorari to quash the said award by filing a writ petition in w.p. no. 14070/1986 before this court, and the order of the learned single judge in that writ petition is now under challenge.3. the second respondent appointed as a driver on probation by the appellant/ management challenged the order of termination made on february 1, 1981 by the appellant/management on the ground of unsatisfactory performance. it is not in dispute that originally the second respondent was appointed by the appellant/management on august 1, 1979 on probation for a period of six months, which was extended for further periods viz. 6 months, 3 months and 2 months respectively till january 31, 1980. the second respondent was terminated from service on february 1, 1981 on the ground of unsatisfactory performance, which according to the second respondent was illegal and against the standing orders of the appellant/ management. what the appellant/management contended before the labour court, learned single judge and equally here also is that the order of termination was in accordance with the standing orders of the corporation and perfectly valid in the eye of law.4. arguing for the appellant/management, the learned counsel would urge that in the order of appointment of the second respondent, it is mentioned that during the period of probation, the services of the probationer could be dispensed with at any time without notice, without assigning any reason and without compensation also; that the second respondent having accepted the said order of appointment on the terms and conditions stipulated therein would be estopped from contending that he was not given notice or wages in lieu thereof; that it was not correct to state that the order of termination of the second respondent was against the provisions of clause 13 of the standing order, since it could have no application in the case of a probationer; that even assuming that the standing order 13 was attracted to the facts and circumstances of the case, the labour court has erred in holding that a violation of the standing order 13 would result automatically in the order of termination itself; being rendered illegally; that even assuming that the standing order 13 was applicable and was not followed by the appellant in the instant case, the second respondent as a probationer was entitled only to recover one month's wages in lieu of notice and the non-payment of the notice pay would not render the order of termination illegal or void: that under the facts and circumstances of the case either non payment of the notice pay or non-issuance of any notice would not vitiate the order of termination of the second respondent; that it was well settled proposition of law that if the rules provided for a maximum period of probation an upper limit on the period of probation, even if there was no order extending the period, of probation within the maximum period would not result in automatic confirmation; that in the instant case the maximum period of probation was upto february 1, 1981 and it was true that there was no order extending the period of probation beyond january 1, 1981. however it is submitted that the mere fact that there was no order extending the period of probation from january 1, 1981 to february 1, 1981 would not result in automatic confirmation and thus the finding of the labour court and the confirmation of the same by the learned single judge was clearly wrong; that it is pertinent to note that the appellant/management had found that the services of the second respondent were not at all satisfactory and hence under the circumstances the labour court should not have passed an award ordering reinstatement with back wages and continuity of service; that even assuming that there was technical defect in the order of termination, the learned single judge should not have confirmed the award of the labour court, ordering reinstatement with continuity of service and back wages; that by virtue of the said order, the second respondent had secured permanent status even though his work was found to be thoroughly unsatisfactory and thus the learned single judge without appreciating the contentions putforth, has dismissed the writ petition and hence the award of the labour court has got to be set aside by allowing the appeal.5. countering the above contentions of the appellant's side, the learned counsel appearing for the second respondent would urge that the labour court on proper appreciation of the oral and documentary evidence and in particular, the order of appointment, orders extending the period of probation and the clauses in the standing order of the appellant/management pertaining to the probationers has found that the termination was neither legal nor valid and has ordered for the reinstatement with back wages and continuity of service; that all these contentions now putforth before this court, were raised before the labour court and the learned single judge also and those contentions have been negatived on proper reasoning and hence the appeal has got to be dismissed.6. after careful consideration of the available materials and rival submissions, we are of the firm opinion that this appeal by the appellant-management is devoid of any merit whatsoever.7. the appellant-management appointed the second respondent as a driver on probation with effect from august 1, 1979 for a period of six months. a reading of the said appointment order would clearly reveal that he would be considered for confirmation on completion of the probationary period, if a permanent vacancy exists. the order of termination of the second respondent as found in page 9 of the typed set of papers does not speak about either any reason for such termination or any service of notice prior to the said termination order. 8. the learned counsel appearing for the appellant pointed out that number of accidents took place due to the negligent driving of the second respondent and thus his service was thoroughly unsatisfactory. he relied on clause 3 of the order of appointment dated august 10, 1979 stating:'your services can be terminated at any time during the probation or on completion of the probation without notice, without assigning any reason and without payment of any compensation.'9. in the instant case, the period of probation was extended by six months, three months and two months respectively. had it been true that the services of the second respondent were not satisfactory, the appellant/management could have well terminated his service at the earliest point of time and could not have extended the probation as found above. hence the contention of the appellant's side that the termination was due to the unsatisfactory performance of the second respondent does not seem to be sound. equally so is the next contention that the appellant-management could terminate the service of the second respondent without issuing any notice, without assigning any reason and without payment of any compensation,10. clause 2(b) of the standing order reads as follows:' 'a probationer' is one who is provisionally employed to fill, a permanent vacancy in a post and had not completed the period of probation which shall be as follows: (1)........... (2) the probation period is fixed at 6 (six) months in (two) spells in respect of unskilled workers. if at any time the management wants to extend the period of probation it ought to inform the worker a week before the expiry of the period of probation and otherwise the worker is deemed to have completed the period of probation satisfactorily.' 11. the order of appointment dated august 10, 1979 and the subsequent extension of the probation dated february 1, 1980, august 20, 1980 and october 8, 1980 respectively would cover the probation period till december 31, 1980. but the order of termination as found in page 9 of the typed set of papers was with effect from february 1, 1981. the date of appointment of the second respondent on probation from august 1, 1979 to the date of termination of service of the second respondent on february 1, 1981 would cover a period of 18 months. according to the above standing order, if the appellant-management wanted to extend the period of probation it should have informed the employee a week prior before the expiry of the probation and otherwise the worker was deemed to have completed the period of probation satisfactorily. in view of the above, the contention of the appellant that since the period of probation was only upto december 31, 1980; that there was no subsequent extension of the probation and thus the second respondent has not completed 18 months of service cannot be accepted for two reasons.12. firstly, in view of the above standing order, the appellant- management should have served a notice on the second respondent, but has not done so, and in the absence of the same, the second respondent was deemed to have completed the period of probation satisfactorily. secondly, it is admitted by the appellant- management that the second respondent continued to serve till the order of termination of service which was given effect from february 1, 1981, and thus, it would be clear that factually he continued to serve till january 31, 1981. 13. as per the standing orders, a workman can be employed on probation only for a period of 12 months or for such further extended period not exceeding 6 months. thus the period of probation cannot exceed 18 months. in the instant case, the second respondent has served for a period of 18 months. as per clause 13 of the standing orders, the employer cannot dispense with the service of any workman with not less than one year of continuous service except for a reasonable cause and without giving such workman atleast one month's notice or wages in lieu of such notice. though the second respondent has served for 18 months continuously, either no notice was served on him or no enquiry was conducted before terminating his service. thus the order of termination of the second respondent was contrary to the above standing order and it has got to be declared as bad. the order of the learned single judge confirming the award of the labour court in mat regard has to be confirmed.14. while passing of the award, setting aside the dismissal of the second respondent, the labour court has ordered reinstatement of the second respondent in service with back wages and continuity of service. the said order of the labour court was confirmed by the learned single judge. it is an admitted position that consequent to the order in the writ petition, the second respondent has been reinstated in service. we are of the firm opinion that the award of the labour court granting the second respondent full back wages and the confirmation of the same by the learned single judge are not proper.15. the learned counsel appearing for the appellant-management brought to our notice that on february 1, 1981, the second respondent was terminated from service and till 1985, he was conducting a cycle repair and hire shop, and thus it cannot be stated that he was without employment. a reading of the award would reveal that the appellant-management in order to prove the above contention relied on some documents. despite the production of those documents, the labour court was of the opinion that those documents had no probative value and practically the second respondent was not getting any net income worthy to be taken note of while considering the compensation. in view of the documents filed by the appellant-management to prove the fact that the second respondent was running a cycle shop and thus he was not without employment during 1981-85, the labour court was not proper in granting full back wages. considering all the facts and circumstances, we are of the view that the second respondent, apart from reinstatement and continuity of service, is entitled only to 25% of the back wages from the time of termination of service till the time of reinstatement. writ appeal is disposed of accordingly, but without any orders as to the costs.