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Rajasthan High Court · body

2000 DIGILAW 1152 (RAJ)

Mohd. Yusuf v. Labour Court

2000-09-13

RAJESH BALIA

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Honble BALIA, J.–Heard learned counsel for the parties. (2). These two petitions arise out of the same Award given by Labour Court, Jodhpur dated 5.4.99 reinstating the employee with effect from the date of termination of his services with all consequential benefits with the rider that for the purposes of pay fixation and promotions the period from the date of termination to the date of reinstatement shall not be counted and he shall be reinstated at the lowest of the payscale applicable to Driver. It was also directed that until Feb., 1992 when the workman was reinstated in pursuance of the Award made in these proceedings earlier, he shall be entitled to Rs. 15,000 in lumpsum, and from 28.9.95 when his services were again terminated to the date of his reinstatement, he was awarded 20% of the backwages which would include the minimum of the pay-scale with dearness allowance payable thereon and no other amount shall be payable as arrears under the Award. Parties to the Award are Rajasthan State Road Transport Corporation -employer, and Mohd. Yusuf-employee, between whom this dispute has arisen. (3). Petition No. 3992/99 has been filed on behalf of the employer challenging the Award dt 5.4.99. The employer has challenged the Award inter-alia on the ground that before directing reinstatement of the employee he was not awarded any opportunity to justify the dismissal of the workman by treating it to be punitive for which an oppor-tunity was sought and also that before the termination of the services the workman had not actually worked for 240 days within the meaning of Sec. 25-B (ii) of the Industrial Disputes Act, and therefore, the Award of reinstatement is not sustainable. (4). The facts emerging from the Award disclose that the petitioner was appointed as Driver by the order dated 7.9.83 where he worked until 6.11.83. Thereafter, he was taken on duty on 16.6.84 at Ganganagar depot where he worked until 21.8.84 and thereafter he was appointed at Jodhpur. On 17.9.94, the workman was again appointed as Driver and he discharged his duties until his services were terminated on 12.6.85. Thereafter, he was taken on duty on 16.6.84 at Ganganagar depot where he worked until 21.8.84 and thereafter he was appointed at Jodhpur. On 17.9.94, the workman was again appointed as Driver and he discharged his duties until his services were terminated on 12.6.85. On a dispute having been raised in respect of the termination dated 12.6.85, the employer took the plea that the workman was appointed on probation on 20.05.1985 in pursuance of which he joined service on 8.06.1985 and his services were terminated on 12.6.85 because his services during probation were not found to be satisfactory. It was not a case of a punitive termination but a case of termination simplicitor. The workman has claimed that termination of the services on the ground of unsatis factory services was punitive in nature by way of punishment and no enquiry having been conducted before termination, the termination is invalid. Alternatively, the workman has also claimed that even if it be considered a case of termination simplicitor, he still is entitled to relief against illegal retrenchment. It was claimed that he has actually worked for more than 240 days during 12 calendar months immediately before the date of termination under the same employer, and therefore, he was entitled to protection under Sec. 25-F of the Industrial Disputes Act provisions of which have not been complied with. (5). In the first instance, by Award dated 17.2.92 the Labour Court found that the termination of the workmans services was not valid. He was reinstated with continuity of service and a consolidated sum of Rs. 15,000 was awarded until the date of said Award by way of backwages. The Award, in the first instance, was set aside by the learned Single Judge by holding that because the termination was effected during the probation period because of unsatisfactory conduct it does not amount to be a punitive order and by not counting the services rendered prior to the appointment on probation it was found that the petitioner was not entitled to benefit of protection under Sec. 25-F of the Act also and set aside the Award dated 17.2.92. At this juncture, it will be apposite to notice that in pursuance of Award dated 17.2.92, the workman was reinstated on 26.6.92. However, on a decision by the learned Single Judge setting aside the Award, he was again removed from service on 28.9.95. At this juncture, it will be apposite to notice that in pursuance of Award dated 17.2.92, the workman was reinstated on 26.6.92. However, on a decision by the learned Single Judge setting aside the Award, he was again removed from service on 28.9.95. The said order of the learned Single Judge was subjected to Special Appeal No. 659/95 which was allowed on 23.05.1996. The said appeal was decided with the following findings:- ``However, we are of the opinion that the Court is entitled to lift the veil and find out the truth in matters where workmen are sought to be terminated from service under the garb of termination of probation. It will be seen in the present case that the petitioner was in the continuous employment of the Corporation for more than 240 days. Just a few days prior to the order of termination the petitioner was appointed as probationer on 8.6.85 and the termination order was passed on 12.6.85. Factually the petitioner was appointed as probationer by an order on 20th May ``85 and he joined his service on 8th June ``85 which services were terminated on 12th June ``85. The respondent Corporation has, thus, decided that the probation is unsa-tisfactory just in four days. We have, therefore, no hesitation in holding that the order of termination in effect is an order of retrenchment and not an order terminating probation and, therefore, the order of the learned Single Judge is unsustainable. Even if this order of termination is construed to be an order of punishment, this aspect will have to be gone into by the Labour Court. We are, therefore, of the opinion that interest of justice will be served if the matter is re-manded to the learned Labour Court for appropriate adjudication in accordance with law. Hence, we order that the petitioner be allowed, the order passed by the learned Single Judge, as also by the learned Labour Court is set aside. The learned Labour Court is directed to re-hear the matter after giving reasonable opportunity of showing their cause to both the parties and then adjudicate all the questions raised before it by both the parties in accordance with law. (6). The learned Labour Court is directed to re-hear the matter after giving reasonable opportunity of showing their cause to both the parties and then adjudicate all the questions raised before it by both the parties in accordance with law. (6). On remand, the trial Court referring to the aforesaid decision of the Division Bench found that the workman has completed 240 days of service during 12 calendar months preceding the termination of his services and was entitled to protection under Sec. 25-F and admittedly the conditions of Section 25-F had not been complied with by the employer in the present case, therefore, the retrenchment was invalid. It was found by the Labour Court on considering evidence before it that the misconduct alleged against the workman has not been proved and even if such misconduct was proved, when after the acts and omissions of misconduct which related to period prior to making appointment on regular basis on probation, the petitioner was appointed on regular basis on probation, it must be deemed that such misconduct was condoned and no punishment could have been imposed in respect thereof. (7). I am of the opinion, that it was case of the employer that the order was not punitive termination of service but it was a termination simplicitor which did not have protection of Sec. 25-F because it was by way of terminating service during probation without counting the services rendered prior to that and that Labour Court agreed with the contention of the employer that it is a case of termination simplicitor the employer is estopped from challenging such finding. The Labour Court rightly disagreed with the contention of employee about excluding the services rendered prior to appointment on probation as a result of a binding decision of this Court in Special Appeal No. 659/95 between the parties and found such retrenchment invalid being in violation of Sec. 25-F. Even otherwise what is required for fulfilling the condition for invoking the provisions of Sec. 25-F of the Industrial Disputes Act 1947 is that the workman ought to have been employed for the requisite period under the same employer. It is not conditioned that employed during the requisite period has to be of same character. The Award of reinstatement, in my opinion is unexceptionable. It is not conditioned that employed during the requisite period has to be of same character. The Award of reinstatement, in my opinion is unexceptionable. It was a finding of the Division Bench that the petitioner was in continuous employment of the Corporation for more than 240 days and it was also the finding of the Division Bench ``We have, therefore, no hesitation in holding that the order of termination in effect is an order of retrenchment and not an order terminating probation and, therefore, the order of the learned Single Judge is unsustainable. The fact that because the workman has apprehended the order to be punitive and raised a claim on that basis and the employer has denied the contention of the workman that the order to be punitive has also raised a plea that even if the order is held to be punitive, he may be given an opportunity to prove the misconduct, would not alter the situation if on the employers own contention the termination simplicitor is found to be invalid being in breach of the provisions of the Industrial Disputes Act. The fact that the employer erroneously assumed the actual period of service only during the period after appointment on probation as eligible period by ignoring the past service in another capacity would not detract from fact that the workman infact was employed prior to termination of service for the requisite period that was continuous for more than 240 days as per the finding recorded by the Division Bench and that it was a case of retrenchment as contended by the employer. Such termination having been tested on the alter of Sec. 25-F and having been found to be invalid at that, it is not permissible to retrace from the principal contention raised by the employer while denying the claim of workman. (8). It was not necessary to have gone into the alternative plea of punitive nature of the order. Such termination having been tested on the alter of Sec. 25-F and having been found to be invalid at that, it is not permissible to retrace from the principal contention raised by the employer while denying the claim of workman. (8). It was not necessary to have gone into the alternative plea of punitive nature of the order. The fact that the Division Bench of this Court has not examined the validity of retrenchment and remanded the case to the Labour Court for the purposes of deciding all issues including on the basis of the order being punitive would neither take away the effect of the finding recorded by the Division Bench between the parties which would remain binding between the parties at all subsequent stages of the proceedings and the examination of the dispute between the parties on that anvil. It is clearly discernible from the order of Division Bench that on the one hand the Court finding it to be a case of termination simplicitor and retrenchment, did not pronounce upon its validity as retrenchment, on the other it also expressed its opinion about order of termination having been made within few days of working after probation, the apparent reason appeared to be a cloak. Hence even if the termination as retrenchment was found to be valid, it would have required enquiry in second aspect. I am of the opinion that once the impugned order of termination by treating it to be a case of termination simplicitor, it faltered on the touchstone of provisions of Industrial Disputes Act, the termination order must fail and the order of reinstatement cannot be interfered with. Thereafter the question whether termination is punitive, as alleged by workman contrary to tenor and assertion of employers contention was of academic importance. (9). Moreover, I am further of the opinion that on the facts found by the Labour Court about which there is no dispute that the alleged acts and omissions of misconduct had been during period prior to offering appointment on probation by order dated 20.05.1985. Such employee could not have been subjected to any punishment in respect of such misconduct once the employer inspite of such past misconduct decides to offer him appointment on probation. For the purpose of adjudging the satisfactory conduct of the employee on probation, his conduct as an employee after such employment only is relevant. Such employee could not have been subjected to any punishment in respect of such misconduct once the employer inspite of such past misconduct decides to offer him appointment on probation. For the purpose of adjudging the satisfactory conduct of the employee on probation, his conduct as an employee after such employment only is relevant. Conduct prior to appointment on probation cannot be foundation of adjudging satisfactory nature of performance during probation. The two are contradictory in term, nor it could be made a foundation for terminating services thereafter by way of punishment. In the facts of present case, it was not open for the employer to utilise the conduct of the workman prior to giving him appointment on probation basis to be made a ground for termination after he was given appointment on probation. Whether for terminating probation or for inflicting punishment. Therefore, for this reason also, I am of the opinion that the opportunity which was required by the petitioner to prove the alleged misconduct would be an exercise of futility, even if the action was held to be punitive and alleged acts were proved. (10). In these circumstances, so far as petition filed by the employer is concerned, I find no substance and it is hereby dismissed. (11). Coming to the petition filed by the employee., Mr. Mehta appearing for the workman has confined his claim to the extent the Award has denied the benefit of continuity of service for the purposes of pay fixation and promotion during the continuity of service under the order under Award. In the ordinary course of event when a termination is found to be invalid, employee is reinstated with full backwages unless other surrounding circumstances required a different order to be made. In the present case, fact remains that the order of termination was found to be invalid by the Labour Court as far back as on 17.2.92, in pursuance of which infact he has been reinstated on 26.6.92. The order of learned Single Judge in setting aside of the Award on the ground that termination of service during probation for unsatisfactory conduct was not upheld by the Division Bench. The order of learned Single Judge in setting aside of the Award on the ground that termination of service during probation for unsatisfactory conduct was not upheld by the Division Bench. The Division Bench instead of itself deciding the question of validity of termination of service has remanded the matter back to the Tribunal, which has again resulted in the same finding in favour of the workman, notwithstanding finding it to be a case of termination simplicitor as contended by the employer held it to be invalid on the anvil of Section 25-F of the Industrial Disputes Act and ordered reinstatement with direction about the financial benefits to flow therefrom to extend ordered by it. The continuity of service was also ordered by the Labour Court in its earlier Award as well as the Award under challenge, I see no justification for denying the benefit of continuity of service for the purposes of pay fixation and promotions as and when falling due on basis of continuity of service. The two parts of the award operate in contradiction. (12). In this case, reliance has been placed by the learned counsel on a decision of this Court in 1993(3) WLC 249 (1) wherein the Court found that awarding continuity of service and withholding grade increments and not counting relevant period for seniority is unjustified. This decision fully fortifies the conclusions to which I have reached. (13). Accordingly, the petitioner of the employee is allowed and the Award under challenge is modified by deleting the condition that the continuity of service shall not be counted for the purposes of pay fixation and promotion and ordering that the continuity of service shall be counted for all purposes without entitling him to any arrears of backwages except to the extent permitted under the Award. (14). There shall be no orders of costs as to these petitions.