JUDGMENT R.M. Sahai, J. - M/s. Estrela Batteries Ltd. engaged in the business of manufacturing and selling dry cell and batteries in Bombay organised sale of its products in U.P. through it Salesmen at Kanpur. If appointed opposite party No. 3, Om Prakash Pandey as a Salesman at Kanpur on 13th Feb., 1969 on probation for 'six months. In June he was warned. His services were terminated on 1-9-69. His case was taken up by Iron and Engineering Workers Union, Begumpura, Kanpur. The conciliation proceedings failed. The State, thereafter referred the dispute under Section 4K of the U.P. Industrial Disputes Act to the Labour Court which gave its award on 4th Oct., 72 and directed workmans reinstatement and declared him to be entitled to full wages. 2. In the written statement filed before the Labour Court the petitioner, apart from justifying the discharge raised a preliminary objection that Iron and Engineering Workers Union, Begumpura, Kanpur, was not competent to raise any industrial dispute in respect of O.P. Pandey an employee of M/s. Estrela Batteries Ltd. Kanpur as M/s. Estrella Batteries Ltd. Kanpur is not an engineering unit but an establishment as defined in Section 2 (4) of U.P. Dookan Aur Vanijya Adhiniyam 1962 and deals in the sale of electrical goods and not Engineering product. 3. The Labour Court found that the espousal of the workman's case by Iron and Engineering Work was proper and its withdrawal during continuance of proceeding and Sri Pandeys representation thereafter by Loha Spat Karmchari Union of which Sri Pandey become a member since 10-4-71 has no material bearing as once the cause had been espoused it did not cease to be industrial dispute merely due to change in representation. It repelled the preliminary' objection and did not find any merit in the submission that a Salesman is not a workman. The order terminating the service was held to be bad on the ground that his probation having not been extended, Sri Pandey, stood automatically confirmed, in view of the terms of appointment. In any case as the foundations of the order was, "we, however, regret that you have not exhibited performance that we should continue you in our service any longer", which reflected on the conduct of the workman it was not innocuous and being penal in nature could not be passed without affording any opportunity to him. 4. In any case as the foundations of the order was, "we, however, regret that you have not exhibited performance that we should continue you in our service any longer", which reflected on the conduct of the workman it was not innocuous and being penal in nature could not be passed without affording any opportunity to him. 4. The first question is whether the opposite party was a workman as contemplated in Section 2 (z) of U.P. Industrial Disputes Act, 1947. According to the definition any person employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work shall be deemed to be a workman. In B.S.O.S.D. Company v. Management Staff Association, ( AIR 1971 SC 922 ) : (1971 Lab IC 699) it was held by the Supreme Court that what has to be seen for deciding whether a person is workman or not is the main or substantial work for which he is employed to do. The Labour Court found that the management did not lead any evidence on the specific nature of duties performed by the opposite party. On the evidence led on behalf of the opposite party it was held that as the opposite party used to sell the Company's goods, delivered it to the Company's dealers, and submit report in respect of the sale to the employer's he was performing both manual and clerical job. This finding had not been challenged in the writ petition. What is urged is that the opposite party being a Salesman was not a skilled or unskilled, manual, supervisory or technical or clerical staff of the company. It was maintained that his only job was to promote sales in the State of Uttar Pradesh and such a person is not workman as held by the Supreme Court in Bunnah Shells case (supra). It is no doubt true that the Supreme Court held that a District Sales Representative whose only duty is to promote sales is not a workman but as pointed out earlier it is not the description but the actual work performed by an employee which is determinative of whether he is a workman or not. As the finding of the Labour Court is that the petitioner although described as Salesman was required to perform duties which were manual in nature he was obviously covered by the definition of workman. As the finding of the Labour Court is that the petitioner although described as Salesman was required to perform duties which were manual in nature he was obviously covered by the definition of workman. There is no merit in the submission that the manual or clerical duties performed by the workman were only incidental as the petitioner did not lead any evidence on this point. 5. It was then argued that the dispute raised was individual dispute and not an industrial dispute as the cause of the workman was not espoused by any Union and the Union which espoused workmans cause was not competent to do so. Further the workman was not its member. There were certain additional issues raised before the labour Court but they have not been pressed before us. Reliance has been placed on Management of Utkal Machinery v. Shanti Patoaik ( AIR 1966 SC 1051 ); Bombay Union of Journalists v. Hindu, Bombay, ( AIR 1963 SC 318 ); Joginder Nath v. Union of India, 1975 Lab IC 347 (350) : ( AIR 1975 SC 511 ); Vishin Das v. State of U.P., (1971 Lab IC 769) (All). 6. The preliminary objection raised before the Labour Court that Iron and Engineering Workers Union was not engaged in the same or similar trade does not appear to have been pressed before the Labour Court. Nor any evidence appears to have been led in this behalf. It has been found by the Labour Court that the workman and other Employee's of the concern were members of this Union. There appears to be no direct evidence on this point. But the labour Court drew an inference from the statement of the workman. As the workman and other Employee's had been found to be members of the Union and the petitioner did not lead any evidence on this point the Labour Court in our opinion, did not commit any error in recording a finding that espousal of the workman's cause by the Union was proper. 7. Coming to the question of automatic confirmation of the opposite party No. 3 it would be seen that he was appointed on probation for six month's in Feb. 69. His services were terminated on 1st Sept., 69. It is admitted that the probation was not extended nor is there any order or letter confirming appointment of opposite party as Salesman. Coming to the question of automatic confirmation of the opposite party No. 3 it would be seen that he was appointed on probation for six month's in Feb. 69. His services were terminated on 1st Sept., 69. It is admitted that the probation was not extended nor is there any order or letter confirming appointment of opposite party as Salesman. The status of a probationer continues to be the same and the mere fact that the services of a probationer are not terminated or there is no order extending his probation does not amount to an automatic confirmation. In Management of the Express Newspaper Private Ltd., Madurai v. Presiding Officer Labour Court Madurai, (1964) 1 Lab LJ 9 (11) : ( AIR 1964 SC 806 at p. 807) it was held by the Supreme Court that, "there can in our opinion be no doubt about the position in law that an employee appointed on probation for six month's continues as a probationer even after the period of six month's if at the end of the period his services had either not been terminated or he was confirmed. It appears clear to us that without anything more an appointment on probation for six month's gives employer no right to terminate the services of an employee before six month's had expired except on the ground of misconduct or other sufficient reasons in which case even the services of a permanent employee can be terminated. At the end of six month's period the employer either can confirm or terminate his services because his services are found to be unsatisfactory. If no action is taken by the employer either by way of confirmation or by way of termination the employee continues to be in service as a probationer." Similar is the view taken in respect of probationers in Government service. The workman could not therefore claim to be confirmed automatically after expiry of probation. Labour Court found that automatic confirmation was visualised in the appointment letter. We have perused the appointment letter copy of which has been filed as Annexure-A1 to the writ petition. We do not find any such condition. Rather condition No. 2 contemplates, 'upon satisfactory completion of the probationary period your services will be confirmed in writing. The finding of the Labour Court therefore, that the workman stood automatically confirmed cannot be maintained. 8. We do not find any such condition. Rather condition No. 2 contemplates, 'upon satisfactory completion of the probationary period your services will be confirmed in writing. The finding of the Labour Court therefore, that the workman stood automatically confirmed cannot be maintained. 8. The question still is whether the Labour Court was justified in concluding that the order was penal in nature as it reflected on the work and conduct of the workman. From the series of decisions both under the Industrial Disputes Act and in relation to Government servants it is settled that the services of a probationer during probation cannot be dispensed with except on ground of misconduct. See (1964) 1 Lab LJ 9 : ( AIR 1964 SC 806 )), (supra) State of Punjab v. Sukhraj Bahadur ( AIR 1968 SC 1089 (1095)) : (1968 Lab IC 1286), Brooke Bond Ltd. v. V. K. Goulain ( AIR 1973 SC 2634 (2636) : (1973 Lab IC 1587)). It is equally well settled that after expiry of probation the Management, employer or the Government may confirm or discharge the employee. And such discharge is not by way of punishment but in exercise of the employer's right. See (1964) 1 Lab LJ 9 : (AIR 1964 SC 306) (supra) and Samsher Singh v. State of Punjab ( AIR 1974 SC 2192 ) : (1974 Lab IC 1380). 9. The learned counsel for the opposite party No. 3 relied on Utkal Machinery v. Shanti Patnaik ( AIR 1966 SC 1051 ) in support of the submission that the discharge being for unsatisfactory work it was not innocuous rather it was by way of punishment for misconduct. It was emphasised that in the absence of any Standing Order or agreement termination or discharge on ground of unsatisfactory work amounted to punishment. It is no doubt true that the decision does support the argument of the learned counsel for the opposite party No. 3. But the termination in this case also was during the period of probation. Moreover the facts of the case and the findings were such that the use of the word unsatisfactory in the termination order viewed in the light of the circumstances preceding the order left no doubt that the order was vindictive and as such punitive. But the termination in this case also was during the period of probation. Moreover the facts of the case and the findings were such that the use of the word unsatisfactory in the termination order viewed in the light of the circumstances preceding the order left no doubt that the order was vindictive and as such punitive. In the quotation from Express Newspapers case ( AIR 1964 SC 806 ) (supra) quoted by us above the Supreme Court held that the probationer could be discharged if sit the end of probation his work was not found satisfactory. In Samsher Singh v. State of Punjab ( AIR 1974 SC 2192 ) : (1974 Lab IC 1380) the Supreme Court held (at pages 1392, 1393 of Lab IC): "Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post in the absence of any rule governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object nor involving moral turpitude the petitioner is unsuitable for the job and hence must be discharged no punishment is involved in the case...." From the above it is clear that if the termination of a probationer is not for moral turpitude or objects like that he cannot claim that his termination was punitive merely because he was found unsatisfactory for the work. The very purpose of probation is to judge the suitability of a person appointed on a particular post. If the employer after the end of probationer period is not satisfied that the employee can carry out the work satisfactorily he has a right to discharge him. Such discharge does not amount to punishment. The mere use of the word unsatisfactory which only indicates the assessment of the employee during the period he was on probation does not make it penal nor it can be considered to be stigma on his competency nor can it be characterised as misconduct. In absence of such assessment it may be said that the employer acted arbitrarily or capriciously in discharging the probationer. In Municipal Corpn. In absence of such assessment it may be said that the employer acted arbitrarily or capriciously in discharging the probationer. In Municipal Corpn. of Greater Bombay v. P.S. Malvenkar ( AIR 1978 SC 1380 ) : (1978 Lab IC 1096) the Supreme Court considered the question whether termination of an employee on account of his unsatisfactory record of service could be considered as punitive. It was held (at p. 1100 of Lab 1C): "It is, however, not necessary for us in the present case to pronounce on this controversy since we find that in the present case the reason given for terminating the service of the respondent was unsatisfactory record of service. No misconduct was alleged against the respondent nor was any misconduct made the foundation for passing the impugned order of termination. The order of termination was clearly not passed by way of punishing the respondent for any misconduct. The view that the service of the respondent was not satisfactory was undoubtedly based on past incidents set out in the record but for each of these incidents punishment in one form or another had already been meted out to her and it was not by way of punishment for any of these incidents, but because as gathered from these incidents, her record of service was unsatisfactory that her service was terminated by the management under Standing Order 26. It is, therefore, not possible for us to regard the order of termination as punitive in character so as to invite the applicability of Cl. (2) of Standing Order 21 read with Standing O. 23. The finding of the Labour Court, therefore, that the order was punitive in nature cannot be. maintained. 10. The learned counsel for the petitioner produced before us a copy of the Standing Order in which misconduct has been defined. A perusal of it shows that a very large number of items are covered under this head. As the word 'misconduct' has been defined it can legitimately be claimed by the opposite party that his discharge was for one of the reasons which is covered by the definition of misconduct and therefore it is punitive. The Labour Court has not applied its mind to this controversy nor was its attention drawn to this aspect of the matter either by the employer or by the employee. The Labour Court has not applied its mind to this controversy nor was its attention drawn to this aspect of the matter either by the employer or by the employee. It cannot be doubted that if in the Standing Order unsatisfactory performance is covered under the definition of misconduct'then the opposite party No. 3 could not be discharged without affording any opportunity and the order of his discharge would be invalid. It would therefore be expedient to direct the Labour Court to- decide the controversy in this regard afresh. 11. The result is that the findings of the Labour Court on the question that the opposite party No. 3 Was a workman and the dispute raised on his behalf was an industrial dispute are affirmed; but the findings that the said opposite party stood automatically, confirmed and that the order terminating his services is punitive are quashed. The Labour Court, however, is directed to decide the controversy whether unsatisfactory performance under the relevant standing order constitutes misconduct. The petition, therefore, succeeds and is allowed. The award of the labour Court is quashed. It is directed to decide the Adjudication Case No. 126 of 1970 afresh in accordance with law and in the light of the observations made above. The parties shall bear their own costs.