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Himachal Pradesh High Court · body

2010 DIGILAW 789 (HP)

Jagdish Chand v. Managing Director, H. R. T. C.

2010-05-04

KURIAN JOSEPH, R.B.MISRA

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JUDGMENT : KURIAN JOSEPH, J. 1. Whether a probationer terminated from service without appropriate enquiry is entitled to reinstatement with continuity in service is the question to be considered in this case. 2. This LPA is at the instance of the first Respondent in CWP No. 476/1999. The said writ petition was filed by the Himachal Road Transport Corporation, challenging Annexure P-5, award passed by the Presiding Judge, Labour Court, Shimla. 3. Short facts- The workman was appointed by the H.R.T.C. as per Annexure P-1, order of appointment dated 23.10.1990. The appointment order shows that the post was purely temporary on year to year basis and that the service was liable to be terminated at any time without assigning any reason. It was also a condition of appointment that "he will be on probation for a period of two years to start with. In case his work and conduct during the probation is in the opinion of appointing authority not satisfactory, his service shall be liable to be dispensed with without any notice... 4. Petitioner joined service in October, 1990. He was issued Annexure P-2, a show-cause notice dated 17.2.1992, asking as to why he should not be removed from service under the provisions of law. The charge is that while he was working as conductor, when the bus was checked by the Inspector, it was found that the 21 passengers were traveling without ticket in the bus and that an amount of Rs. 27/- had already been collected from the passengers. The reply is not on the file. However, it is submitted that the workman had denied the allegation. Be that as it may, as per Annexure P-2, proceedings dated 7.7.1992, service of the Petitioner was dispensed with. The order reads as follows: Whereas Sh. Jagdish Chand. IV Conductor s/o Sh. Ghamiri Ram has been appointed as Conductor vide office order No. 1910.14 dated 16.10.1990. Whereas Sh. Jagdish Chand-IV, Conductor was kept on probation as per condition-x of his appointment order No. 1910 dated 16.10.1990 and the work and conduct of the said Sh. Jagdish Chand-IV, Conductor was perused from time to time and he was cautioned to discharge his duties honestly and sincerely but he failed to show any improvement. Whereas a show-cause notice No. 8136 dated 17.2.1992 has been served upon the said Sh. Jagdish Chand-IV, Conductor was perused from time to time and he was cautioned to discharge his duties honestly and sincerely but he failed to show any improvement. Whereas a show-cause notice No. 8136 dated 17.2.1992 has been served upon the said Sh. Jagdish Chand-IV, Conductor and defence reply received from him dated 30.3.1992 and due opportunity of personal hearing afforded to him on 8.5.1992. And whereas the undersigned carefully went through the performance record of the said Sh. Jagdish Chand-IV, Conductor and after due consideration of the facts have finally arrived at the conclusion that the work and conduct of Sh. Jagdish Chand, Conductor has not been satisfactory during the period of probation and he is not fit to be retained in the service of HRTC. Hence, the undersigned in exercise of powers vested in him in recruitment and promotion Regulation procedures of 1983 under Clause 8 (Part-3 certain condition of services Para (2) hereby dispense with the services of Sh. Jagdish Chand-IV, Conductor with immediate effect. 5. The workman pursued the matter under the provisions of Industrial Disputes Act, 1947, leading to Annexure P-4, award. The Labour Court held that the termination was wrong since no inquiry with regard to the allegation was conducted and that the same has cast stigma on the Petitioner. Therefore, the following relief was granted:- 16. Keeping in view the aforesaid findings and discussions, I hold that the termination of the Petitioner is illegal and unjustified and therefore, the petition is accepted subject to cost of Rs. 500/-. However, the Petitioner remained out of job from July, 1992 onwards, the Petitioner is entitled to the back wages of 40% till reinstatement. Let a copy of this award be sent to the Government of H.P. for its publication. 6. That award was challenged by the HRTC before this Court and the learned Single Judge found that the workman having been issued a show-cause notice and opportunity having been given to him and since the workman failed to improve his performance, employer was justified in dispensing with the service during the probation period. 6. That award was challenged by the HRTC before this Court and the learned Single Judge found that the workman having been issued a show-cause notice and opportunity having been given to him and since the workman failed to improve his performance, employer was justified in dispensing with the service during the probation period. "Office order terminating his services has also indicated that his performance was judged after going through the record and it was found that the work and conduct of the Respondent has not been satisfactory during the period of probation and is not fit to be retained in the service." Hence, it was held by the learned Single Judge that there was no stigma in such circumstances and thus the award was set aside. 7. Learned Counsel for the workman in the appeal vehemently contends that the learned Single Judge was not justified in going into the merits of the case since the award does not suffer from any perversity We have no quarrel with the settled proposition that unless the award is perverse or unreasonable, in exercise of the power under Articles 226/227, the High Court may not ordinarily interfere with the award passed by the Labour Court. 8. However, going by the relief granted to the workman by the Labour Court, it is apparent that the award is perverse since reinstatement with back wages to the extent of 40% has been granted. Even if it is to be held that the termination of the probationer, without conduct of any inquiry in the facts and circumstances of the case is wrong, the relief could only have been a declaration to that regard and deemed reinstatement, and liberty should have been granted to the employer to pass appropriate orders with regard to confirmation of the employer on the completion of the period of probation. To that extent, the Appellant is justified in seeking modification. 9. Accordingly, we set aside the judgment of the learned Single Judge and hold that termination of the workman-probationer, without conduct of an inquiry in the facts and circumstances as stated in the show-cause notice, is illegal. Consequently, the workman shall be deemed to have continued in service. However, it will be open to the Respondent Corporation to pass appropriate orders with regard to the continuanance of the Petitioner on completion of the stipulated period of probation as per the appointment order. Consequently, the workman shall be deemed to have continued in service. However, it will be open to the Respondent Corporation to pass appropriate orders with regard to the continuanance of the Petitioner on completion of the stipulated period of probation as per the appointment order. Consequential orders in the light of the declaration as above shall be passed by the Respondent Corporation within a period of one month from the date of production of the copy of this judgment along with the copy of appeal. Order accordingly.