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2005 DIGILAW 138 (DEL)

D. T. C. v. RANDHIR SINGH

2005-02-04

MUKUL MUDGAL

body2005
MUKUL MUDGAL, J. ( 1 ) THIS writ petition challenges the Award dated 24th March, 2004 passed in I. D. No. 157/97 by the Labour Court No. VII. Delhi (in short the labour Court ) by which the reinstatement of the respondent/workman was granted but 50% of the back wages were denied. ( 2 ) BY the impugned award the Tribunal recorded the following findings:- (A) that after appointing the workman on probation for one year the management/petitioner adopted the practice of appointing the workman for a limited period of three months each after giving him an artificial break of three months. (B)THAT the workman/respondent has thus worked with the management for 5 years; (C) that the testimony of the management s witness, MW-1/1 itself shows that the workman was appointed on regular scale of pay on probation for one year and completed one year and completed one year without any complaint; (D) that the workman was thus given ten different spells of re-appointment; (E) that the practice of not confirming the workman on his service in spite of the management having nothing adverse against him is mala fide: (F)THAT this conduct of the management led to the denial of benefit to the workman of regular job on his successful completion of probation: (G)THAT the management in its cross-examination had admitted that the workman, respondent herein was terminated on the ground of his remaining absent during the extension period; (H)THAT the management had also admitted that the workman worked with the management for 300 days per year including breaks in service and (I)THAT no charge-sheet was issued to hold any enquiry termination nor any terminal benefits were paid to the workman. There is no flaw in the aforesaid findings of fact of the Labour Court so as to warrant any interference under Article 226 of the Constitution particularly in view the conduct of the petitioner/ dtc in treating its workman of Class-IV belonging to the weaker sections continuously for over 5 years. This discloses an attitude which is not becoming of a State owned organization like the DTC. ( 3 ) MR. Malik, the learned counsel, appearing on behalf of the petitioner has cited a judgment in Registrar, High Court of Gujarat and Anr. Vs. C. G. Sharma reported as 2004 suppl. 1 AD (S. C.) 183 and in particular has relied upon the para 26 thereof which reads:- "26. ( 3 ) MR. Malik, the learned counsel, appearing on behalf of the petitioner has cited a judgment in Registrar, High Court of Gujarat and Anr. Vs. C. G. Sharma reported as 2004 suppl. 1 AD (S. C.) 183 and in particular has relied upon the para 26 thereof which reads:- "26. A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that sub-rule 4 of Rule 5 of the is in pari material with the Rule which was under consideration in the case of State of Maharashtra Vs. Veerappa Saboji and Anr. (Supra) and we find that even if the period of two years expires and the probationer is allowec to continue after a period of two years, automatic confirmation cannot: be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or pre-condition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work if found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the arguments advanced by learned counsel for the respondent on this aspect has no merits and no legs to stand. The learned Single Judge and the learned judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the said of two years and on the expiry of the said period of two years, the confirmation order can be passed by only if there is vacancy and the work is found to be satisfactory. The rule also does not say that the two years period of probation, as mentioned in the rule, is the Maximum period of probation and the probation cannot be extended beyond the period of two years. The rule also does not say that the two years period of probation, as mentioned in the rule, is the Maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent. " in my view the aforesaid judgment of the hon ble Supreme Court has dealt with an issue of automatic confirmation after the completion of the two years probation period and involved an interpretation of a particular rule. The Labour Court in the present case has only held that the respondent/workman was continued in employment for five years and was regularly employed and he had completed one year service without complaint and or enquiry. Since there is no established complaint against the respondent/workman nor any lack of vacancy has been pleaded by the petitioner/management the premises underlying in the above judgment of c. G. Sharma s case (supra) do not exist in the present case. Consequently the above judgment in C. G. Sharma s case (supra) is not applicable in the facts of the present case. ( 4 ) ACCORDINGLY there is no merit in the writ petition which stands dismissed in limine with no order as to costs. .