JUDGMENT : A.J. Shastri, J. 1. The petitioner is a company engaged in manufacturing soda ash. By way of this petition, the petitioner is challenging the legality, validity and propriety of the impugned award dated 30.9.2002 as well as the impugned order dated 21.7.2005 passed by the learned Presiding Officer of the Labour Court, Junagadh in Reference (LCJ) No. 1793 of 1988 and the Review Application No. 4 of 2002 (New Number). 2. While challenging the impugned orders passed by the learned Presiding Officer, a case is put up by the petitioner that respondent was engaged in a month of February, 1987 precisely on 2.2.1987 for a period of one year as a Sweeper on the basis of probation. The appointment letter dated 1.2.1987 is also stipulating certain conditions upon which the respondent came to be appointed. It is the case of the petitioner that said tenure of probation came to be extended for a period of further 3 months upon the request of respondent - workman with a view to give a chance to improve. However, the situation having not been improved from the side of respondent - workman, the petitioner company was constrained to put an end to the services of the respondent - workman and it is this discontinuance is made the subject matter of reference before the Labour Court. A reference was registered before the Labour Court being Reference (LCJ) No. 1793 of 1988 (Old) - Reference No. (LCJ) No. 1314 of 1990 (New). 3. A reference was made before the Additional Labour Commissioner, Porbandar on 11.7.1988 under Section 10(1) of the I.D. Act, 1947 wherein, the industrial dispute was generated by respondent - workman for seeking reinstatement with back wages and it is this dispute which has been referred to the learned Presiding Officer of the Labour Court for adjudication. During that process, the respondent - workman submitted the claim statement at Exh. 4 wherein, it has been contended by respondent - workman that in fact, the respondent - workman was working in the petitioner's company from 20.7.1985 at a monthly salary of Rs.532/- and without any cause or without any fault on the part of the respondent - workman, the services of the respondent - workman came to be put an end to on 2.5.1988. It has also been contended by respondent workman that while discontinuing the respondent workman, no procedure is followed nor any opportunity of hearing was given and discontinuance is palpably illegal and thereby, requested to reinstate to the original post with all consequential benefits. 4. The petitioner company submitted the detail reply vide Exh. 9, inter-alia, contending that the respondent - workman was appointed as probationer. It was also submitted that the work of the respondent - workman was not satisfactory. Still, however, with a view to give one more chance, said tenure of probation came to be extended for a period of 3 months. But, then having not improved, the petitioner company was constrained to put an end to the services vide letter dated 30.4.1988. It was also contended by the petitioner company that while discharging the services of the respondent - workman, whatever lawful benefit which was amenable to the respondent - workman was sent through money order but, the same came to be returned back and said amount is kept aside at unpaid account of the company. It was also, inter-alia, contended by the petitioner company in reply at Exh. 9 that in fact, the petitioner had not been appointed as peon on 20.7.1985. The fact of probation is not brought to the notice of the Court and thereby, prayed to the Labour Court to dismiss the reference with cost. 5. In the said reference, vide Exh. 18 the documentary evidence was brought to the notice of the Labour Court and vide Exh. 21, oral evidence was adduced and ultimately, vide Exh. 25, a pursis came to be filed by respondent - workman to close the stage of evidence on his part. As against the said material, the petitioner company has submitted a list of documents vide Exh. 23 and vide Exh. 32, oral evidence was adduced in the form of deposition by examining one witness, namely, Shri Mehulkumar Kanjibhai and vide Exh. 46, another witness, namely, Shri Bimalkumar Bhatt also came to be examined and the petitioner has then given a closure pursis. 23 and vide Exh. 32, oral evidence was adduced in the form of deposition by examining one witness, namely, Shri Mehulkumar Kanjibhai and vide Exh. 46, another witness, namely, Shri Bimalkumar Bhatt also came to be examined and the petitioner has then given a closure pursis. On the basis of said documentary material and the evidence recorded before the proceedings, the respondent - workman had given the written arguments and the learned Presiding Officer of the Labour Court has heard the main reference by framing issues which are reflected at Page-17 of the petition (internal page-5 of the award of the Labour Court). The learned Presiding Officer of the Labour Court, after hearing both the sides, subsequently, by award dated 30.9.2002 partly allowed the reference by directing the petitioner company to reinstate the respondent - workman to its original post with continuity and back wages to the extent of 25% from the date of discontinuance till the reinstatement and cost of Rs.500/- was ordered to be paid by the petitioner. It is against this final award passed by the learned Presiding Officer of the Labour Court, the petitioner company has brought the present petition before this Court challenging the legality and validity of the same. Initially, this Court had passed an order on 24.10.2005 admitting the petition and in the meantime, ad-interim relief in terms of Para.7(B) subject to compliance of provisions of Section 17B of the I.D. Act, 1947 came to be granted and in this background, the petition came up for final hearing before this Court. 6. In the background of these particulars, the petitioner company has assailed the orders. Representing the petitioner - company, Mr. Kunal Naik, learned advocate appearing for Trivedi & Gupta Advocates has submitted that respondent - workman was never in services either as permanent or temporary. But his services was kept pursuant to the appointment letter dated 2.2.1987. Mr. Naik submitted that while appointing the respondent - workman on probation, certain conditions were engrafted in the order of appointment which the respondent - workman has willingly accepted and in respond thereto, not only he had put the signature on it but, has also undisputedly accepted at the relevant point of time. Mr. Mr. Naik submitted that while appointing the respondent - workman on probation, certain conditions were engrafted in the order of appointment which the respondent - workman has willingly accepted and in respond thereto, not only he had put the signature on it but, has also undisputedly accepted at the relevant point of time. Mr. Naik, learned advocate has drawn attention of this Court to relevant Condition No. 2, which reads, thus; "Condition No. 2 - You will be on probation for a period of 12 months from the date of your joining. The probation period is liable to be extended at the sole discretion of the Management. Confirmation of your service will not be deemed to have taken place unless you are informed to this effect in writing. During the probation period, initial or extended your services are liable to be terminated at any time without assigning any reason or without notice or compensation in lieu of notice." 6.1 In the background of this fact, Mr. Naik, learned advocate has submitted that there was a specific stipulation contained in the order of appointment that the services of the respondent - workman would be terminated without assigning any reason or notice or even compensation in lieu of notice if any contingency arises. Learned advocate has further submitted that the petitioner found the work of respondent - workman unsatisfactory. While receiving the communication in view of the fact that since the respondent - workman requested to grant some opportunity to improve, though the order of discontinuance was passed on 1.2.1988, the said probation period was extended for a further period of 3 months by keeping the communication dated 1.2.1988 under abeyance. But, still however, no improvement found by the petitioner company, as a result of which vide communication dated 30.4.1988 it was constrained to inform the respondent - workman that his services are no longer required as there is no improvement during the period of probation. 7. In view of this position emerging from the record, Mr. Naik learned advocate for the petitioner submitted that the learned Presiding Officer of the Labour Court has not appreciated this material aspect in its true spirit. 7. In view of this position emerging from the record, Mr. Naik learned advocate for the petitioner submitted that the learned Presiding Officer of the Labour Court has not appreciated this material aspect in its true spirit. It was also contended by the learned advocate for the petitioner that while seeking reference and while submitting the claim statement, conveniently the respondent - workman has not clarified about his status as a probationer but, simply has conveyed that since July, 1985 he is continuously working in the company and therefore, the factum of his probation which is never under dispute was not brought to the notice of the learned Presiding Officer in its true spirit and therefore, in the absence of any such clarification, the respondent - workman has not approached the learned Presiding Officer with clean hands. It was also submitted by learned advocate for the petitioner that a specific case was put-forth before the Labour Court by submitting the reply to the claim statement and in Para.6 of the said reply, it was categorically stated that the respondent - workman was appointed as a Sweeper w.e.f. 2.2.1987 and since the services were found unsatisfactory, he was discontinued and the probation period was not extended. Learned advocate further submitted that unsuitability is not to be treated as a misconduct and therefore, question of inquiry or granting of any opportunity does not arise. It is also contended that order of discontinuance was passed on unsuitability of the respondent - workman and therefore, it was merely a simpliciter termination which would not permit the respondent - workman to claim as a matter of right to assail. It is in this background, learned advocate for the petitioner has submitted that the award passed by the Labour Court is based upon non-application of mind and the position of a probationer is not examined and the material which was adduced to substantiate has not been considered and in the background of that, learned advocate submitted that finding arrived at by the learned Presiding Officer is perverse to record and therefore, the award deserves to be quashed and set aside. 8. Mr. 8. Mr. Naik, learned advocate further submitted that it is settled position of law propounded by series of decisions and therefore, discontinuance of tenure of probation, no inquiry is required to be made nor any opportunity is required to be granted and to substantiate this contention, he has relied upon three decisions of the Supreme Court in case of K.V. Krishnamani v. Lalit Kala Academy, reported in (1996) 5 SCC 89 , Chaitanya Prakash & Anr. v. H. Omkarappa, reported in (2010) 2 SCC 623 and M. Venugopal v. Divisional Manager, LIC of India, Machilipatnam, A.P. & Anr., reported in (1994) 2 SCC 323 wherein, the Supreme Court has propounded that discontinuance of probationer cannot be treated as retrenchment and therefore, compliance of Section 25(F) of the I.D. Act, 1947 is not required. It is in the background of this fact, learned advocate for the petitioner submitted that the award passed by the learned Presiding Officer is unjust, improper, invalid, perverse and suffers from the vice of non-application of mind and thereby, requested the Court to quash and set aside the same. 9. In another decision in case of M. Venugopal (supra), the Supreme Court was considering an order of appointment which was made as a fixed target in respect of performance and the employee failed to achieve within the period of probation, said fixed target during the period of probation which ultimately led to discontinuance of the said workman and dealing with such situation in the context of Regulation 14.4, the Supreme Court propounded that any such termination, even if provisions of the I.D. Act, 1947 were applicable in case of appellant, shall not be deemed to be 'retrenchment' within the meaning of Section 2(oo) of the I.D. Act, 1947 having been covered by exception 2(bb) of the I.D. Act, 1947 and therefore, analyzing such situation the Supreme Court held that non-compliance of requirement of Section 25(F) shall not vitiate or nullify the order of termination in the aforesaid context. Relevant extract contained in that case in Para.9 is reproduced, thus; "9. Regulation 14 aforesaid has to be read as a statutory term of the contract of employment between the Corporation and the appellant. The order of appointment had fixed a target in respect of the performance of the appellant which admittedly the appellant failed to achieve within the period of probation which was extended up to two years. Regulation 14 aforesaid has to be read as a statutory term of the contract of employment between the Corporation and the appellant. The order of appointment had fixed a target in respect of the performance of the appellant which admittedly the appellant failed to achieve within the period of probation which was extended up to two years. As such the Corporation was entitled not to confirm the appellant in terms of the order of appointment and to terminate his service during the period of probation without any notice in terms of Regulation 14(4) aforesaid. Clauses 10 and 11 of the order of appointment along with Regulation 14 shall be deemed to be stipulations of the contract of employment under which the service of the appellant has been terminated. Any such termination, even if the provisions of the Industrial Disputes Act were applicable in the case of the appellant, shall not be deemed to be "retrenchment" within the meaning of Section 2(oo), having been covered by exception (bb). Before the introduction of clause (bb) in Section 2(oo), there were only three exceptions so far as termination of the service of the workman was concerned, which had been excluded from the ambit of retrenchment (a) voluntary retirement; (b) retirement on reaching the age of superannuation; and (c) on ground of continued 111-health. This Court from time to time held that the definition of "retrenchment" being very wide and comprehensive in nature shall cover, within its ambit termination of service in any manner and for any reason, otherwise than as a punishment inflicted by way of disciplinary action. The result was that even discharge simpliciter was held to fall within the purview of the definition of "retrenchment". (State Bank of India v. N. Sundara Money, Santosh Gupta v. State Bank of Patiala.) Now with introduction of one more exception to Section 2(oo), under clause (bb) the legislature has excluded from the purview of "retrenchment" (i) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry; (ii) such contract being terminated under a stipulation in that behalf contained in contract of employment. It need not be impressed that if in the contract of employment no such stipulation is provided or prescribed, then such contract shall not be covered by clause (bb) of Section 2(oo). It need not be impressed that if in the contract of employment no such stipulation is provided or prescribed, then such contract shall not be covered by clause (bb) of Section 2(oo). In the present case, the termination of service of the appellant is as a result of the contract of employment having (1976) 1 SCC 822 : 1976 SCC (L & S) 132 : AIR 1976 SC 1111 and (1980) 3 SCC 340 : 1980 SCC (L & S) 409 : AIR 1980 SC 1219 328 been terminated under the stipulations specifically provided under Regulation 14 and the order of the appointment of the appellant. In this background, the non-compliance of the requirement of Section 25-F shall not vitiate or nullify the order of termination of the appellant." 10. To meet with these contentions, Mr. K.R. Dave, learned advocate appearing for respondent No. 1 has submitted that learned Presiding Officer of the Labour Court has properly applied his mind and has examined the material on record in detail and has passed the well reasoned order which does not call for any interference in exercise of jurisdiction under Article 226 of the Constitution of India. It has also been pointed out by Mr. Dave that in fact, in reality, the respondent - workman was working since 1985 and the learned Presiding Officer has rightly upheld that there is a violation of Section 25(F) of the I.D. Act, 1947 and therefore, the order of reinstatement with back wages is just and proper. It was contended by Mr. Dave that in reality, a device is adopted by the petitioner company to give an artificial break to the services of the respondent - workman and it is in this background, unfair labour practice is adopted by the petitioner company and therefore, exercise of jurisdiction by the learned Presiding Officer is just and proper and therefore, the order impugned does not call for any interference. While contending this, Mr. Dave has relied upon a decision of the Supreme Court in case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd. reported in 2014 CJ (SC) 325 and another decision of this Court in case of Pankaj Suresh Lalwani & Ors. While contending this, Mr. Dave has relied upon a decision of the Supreme Court in case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd. reported in 2014 CJ (SC) 325 and another decision of this Court in case of Pankaj Suresh Lalwani & Ors. v. Kandla Port Trust, reported in 2013 CJ (SC) 687 and contended that the device adopted by the petitioner company be appreciated in light of the aforesaid decisions and the award and order passed by the learned Presiding Officer may not be disturbed. 11. In the background of aforesaid submissions made by learned advocates for the parties, the question emerges is whether the learned Presiding Officer of the Labour Court has rightly exercised jurisdiction or not and secondly, in the background of these facts and the finding whether this Court should exercise jurisdiction under Articles 226/227 of the Constitution. A bare look of the record clearly indicates that there is a specific appointment order in writing signed by the respondent - workman which reflects that he came to be appointed as a probationer and undisputedly, this letter of appointment is signed and accepted by the respondent workman without any demur and this appointment letter contained specific stipulation as stated above, namely, Condition No. 2. It is also emerging from the record specifically that on finding work of the respondent - workman unsatisfactory, an order came to be passed on 1.2.1988 informing the respondent - workman that his services are no longer required w.e.f. 1.2.1988. But, then it is on account of request made by the respondent - workman to give one chance to improve, said order is kept by the petitioner company in abeyance for extending the period of probation for a further period of 3 months. This communication is also not in dispute and the respondent - workman ha worked during that 3 months. Upon extension of his probation period, a fact is emerging clearly that subsequently the petitioner finding it not proper to extend the period of probation as there seems to be no improvement, the petitioner company has put an end to the services of the respondent - workman. Upon extension of his probation period, a fact is emerging clearly that subsequently the petitioner finding it not proper to extend the period of probation as there seems to be no improvement, the petitioner company has put an end to the services of the respondent - workman. Now, this relevant material is very much part of the record of the Labour Court and there was a specific contention raised by the petitioner company in its reply to the proceedings which makes it clear that controversy pertaining to prior period was unnecessarily gone into by the learned Presiding Officer. Even learned Presiding Officer ought to have analyzed the evidence adduced before him in respect of this issue related to probation. Though the evidence is suggestive of the fact, still it appears that no attention is drawn and this as such resulting into perversity while arriving finding in the final award. A fact is to be noticed that the respondent - workman while raising an industrial dispute has appeared to have concealed the material fact about his appointment as a probationer and further fact is that about past services prior to appointment, the respondent as probationer, there was no material substantiated by respondent. It appears from the overall reading of the final award that past period was not seriously dealt with at all by the learned Presiding Officer nor even the respondent - workman has adduced anything to substantiate that his earlier period of so called services is in continuance of this appointment on the basis of probation and therefore, ultimately, what has to be examined before the Presiding Officer is that discontinuance of the respondent as a probationer was justified or not. The Labour Court having not examined the issue before it from that background, it appears that this material aspect has completely been overlooked by the learned Presiding Officer, though part of the record. It appears that the award passed by the learned Presiding Officer is perverse to the material on record. 12. This takes the Court to the decision cited by the petitioner company in case of K.V. Krishnamani (supra) wherein, almost in similar set of circumstances, the Supreme Court held that if the workman is not found satisfactory, the inquiry is not to be undertaken and the termination simpliciter can never be the subject matter of the inquiry. 12. This takes the Court to the decision cited by the petitioner company in case of K.V. Krishnamani (supra) wherein, almost in similar set of circumstances, the Supreme Court held that if the workman is not found satisfactory, the inquiry is not to be undertaken and the termination simpliciter can never be the subject matter of the inquiry. In a said brief decision, the Supreme Court has observed in Para.4 that during the probation period, services were found not satisfactory and the said circumstances does not constitute foundation but motive to terminate the services. The very object of probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, certainly it has got power to discontinue the services. The relevant extract of Para.4 deserves to be noted hereinafter: "4. It is contended by the appellant that since the averments made in the counter would constitute foundation for dismissal for misconduct, an enquiry in this behalf was required to be made. On the other hand, it is contended by the respondent that during the probation the appellant did not acquire any right to the post. If on being found suitable he was regularized only then he would have acquired the right to continue in the post. During probation, it was found that his services were not satisfactory and reasons were given in support thereof. Thus they do not constitute foundation but motive to terminate the services. We find force in the contention of the respondent. They have explained that the driving of the staff car was not satisfactory and that, therefore, they have terminated the services of the appellant during probation. The very object of the probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, it certainly has power to terminate the services of the employees. Under these circumstances, it cannot but be held that the reasons mentioned constitute motive and not foundation for termination of service. Therefore, we hold that the High Court has not committed any error of law." 12.1 Here, while considering this decision, it is no longer in dispute that present case is also pertaining to discontinuance on the basis of unsatisfactory work which has no foundation but a motive and therefore, this decision of the Supreme Court takes care of the situation prevailing in this case also. 13. 13. Another decision which has been brought to the notice of the Court is in case of Muir Mills Unit of NTC (UP) Ltd. v. Swayam Prakash Srivastava, reported in (2007) 1 SCC 491 wherein also, while dealing with tenure of probationer and his position in employment, the Supreme Court has propounded that discontinuance on the basis of unsatisfactory work cannot be treated as stigmatic and therefore, the principle of audi alteram partem are not required to be observed. So much so his discontinuance cannot be treated as retrenchment. In that case, a specific contention was raised in Para.26 that termination of a workman comes under the definition of 'retrenchment'. But then while examining the case on hand, the Supreme Court has gone through the appointment letter and found that Mill had reserved all rights to discharge respondent No. 1 from service of the Mill without assigning any reason and without any notice. In that context, it is held that since it is open for the employer to put an end of the services of the petitioner. Relevant observations are in Para 41, 43, 44, 45 and 46 which read, thus; "41. The perusal of the appointment order becomes useful here for addressing the issue whether the High Court failed to appreciate that the award of the Labour Court was perverse as it directed the reinstatement with back wages of a probationer whose services had been discontinued upon completion of the probationary period on account of unsatisfactory work "MUIR MILLS UNIT OF NATIONAL TEXTILE CORPORATION (U.P) Ltd. SUBSIDIARY OF NATIONAL TEXTILE CORPN. Ltd. NEW DELHI (A GOVERNMENT OF INDIA UNDERTAKING) Post Box No. 33, Civil Lines, Kanpur-208 001 Dated: 4th June, 1982 Ref No. Sri. Swayam Prakash Srivastava, S/o Sri. Hori Lal Srivastava, 21/8, Safed Colony, Juhi Kanpur Dear Sir, With reference to your application dated 24.05.1982 and subsequent interview you had with us on 27.05.1982, we have pleasure in offering you the post of Legal Assistant in the pay scale of Rs.330-10-380-EB-12-500-EB-15-560/- with a starting basic pay of Rs.330/- (Rupees Three hundred Thirty only) per month with effect from the date of your joining the Mills, on the following terms and conditions:- 1. 2. 3. You will be on probation for a period of one year from the date of your joining the Mills. 2. 3. You will be on probation for a period of one year from the date of your joining the Mills. The probation period of one year can be extended or curtailed at the discretion of the appointing authority. In the event of your failure to complete the said probationary period satisfactorily, you may render yourself liable to be discharged from the service of the Mill without assigning any reasons and without any notice. During the period of probation, you can resign from the service of the Mill without giving any notice. Unless a letter is issued to you to the effect that you have completed your probation satisfactorily, the probation period shall be deemed to have been extended. No increment shall be granted to you unless you have completed the said probationary period satisfactorily and a letter to this effect has been issued to you. 4. After you having completed the probation satisfactorily, your services can be terminated by the appointing authority on giving you one month's notice or pay in lieu thereof. If you wish to resign from the service of the Mill, you will have to give one month's notice or pay in lieu thereof to the Mill. 5. 6. Your employment will be governed by all the rules and regulations, terms and conditions of service, administrative orders and/or standing orders presently in force or as may be framed, amended, altered or extended from time to time and as applicable to the employees of the Mills. 7-11 12. On attaining the age of 58 years, you shall have no claim to be continued in the service of the Mill thereafter and your services shall come to an end automatically. 13. 14. Yours faithfully (for) Muir Mills Unit of NTC (UP) Ltd. (A.L. MATHUR) General Manager" 43. It is clear from the clause in the appointment letter and the termination letter that, the Mill had reserved all rights to discharge from the service of the Mill the respondent No. 1 without assigning any reasons and without any notice. 44. Also in the case of Registrar, High Court of Gujarat & Anr v. C.G. Sharma, (2005) 1 SCC 132 , it was observed that an employee who is on probation can be terminated from services due to unsatisfactory work. 45. 44. Also in the case of Registrar, High Court of Gujarat & Anr v. C.G. Sharma, (2005) 1 SCC 132 , it was observed that an employee who is on probation can be terminated from services due to unsatisfactory work. 45. This Court's decision in the case of P.N. Verma v. Sanjay Gandhi PGI of Medical Studies (supra), can be referred to in this context, where it was held by this court that, the services of a probationer can be terminated at any time before confirmation, provided that such termination is not stigmatic. This Court in State of Madhya Pradesh v. VK Chourasiya, 1999 SCC (L&S) 1155 also has held that in the event of a non-stigmatic termination of the services of a probationer, principles of audi alteram partem are not applicable. 46. We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of respondent No. 1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of respondent No. 1 was in any manner stigmatic. The decision in the case of MP State Electricity Board v. Jarina Bee (Smt) (supra), this court held that payment of full back wages was not the natural consequence of setting aside an order of reinstatement. In the instant case, though the termination was as far back as in 1983, the Industrial Adjudicator has not given any finding on unemployment. This Court in a recent case of State of Punjab v. Bhagwan Singh, (2002) 9 SCC 636 has held that even if the termination order of the probationer refers to the performance being 'not satisfactory' such an order cannot be said to be stigmatic and the termination would be valid." 14. In that very judgment, the Supreme Court has also considered and dealt with Section 2(oo) of the I.D. Act, 1947 and found that even under Section 6-N, no notice shall be necessary if retrenchment is under an agreement which specifies a date of termination of service. But sum and substance of this judgment on the ground of unsuitability, during the course of probation period, the services can be put an end to without assigning any reason or without grant of any opportunity. But sum and substance of this judgment on the ground of unsuitability, during the course of probation period, the services can be put an end to without assigning any reason or without grant of any opportunity. Here, in case on hand before this Court, there is a specific stipulation contained in cl.2 of the appointment letter which has been accepted by the respondent - workman and therefore, the aforesaid decision is also of relevance to justify the conclusion arrive at here. 15. In another decision reported in Chaitanya Prakash (supra), the Supreme Court was confronted with the situation whether the termination of service is simpliciter or punitive. In this decision, the company had resolved to discontinue the services of a probationer officer which led to the initiation of proceeding before the Court which ultimately reached to the Supreme Court and dealing with such a situation, the Supreme Court has observed that terminating service of a respondent during probation for unsatisfactory work cannot be said to be stigmatic and thereby, the action of the company was upheld. Relevant paragraph Nos. 18 to 22 of the said decision are worth to be taken note of which reads, thus:- "18. It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In this connection, we make a reference to the decision of the decision of the Supreme Court in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences (supra), wherein also a similar letter was issued to the concerned employee intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. We have considered the ratio in light of the facts of the said case and we are of the considered opinion that the basic facts of the said case are almost similar to the one in hand. There also, letters were issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. There also, letters were issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. In the result, a letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination. 19. In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd., (supra) also the concerned employee was kept on probation for a period of two years. During the course of his employment he was also informed that despite being told to improve his performance time and again there is no such improvement. His shortfalls were brought to his notice and consequently by order dated 16.01.1997 his services were terminated, wherein also a reference was made to his unsatisfactory service. In the said decision, the Supreme Court has held that on the basis of long line of decisions it appears that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. 20. In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 ; this court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this court in paragraph 21 of the aforesaid decision it was stated by this Court thus:- "21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld." 21. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld." 21. In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e. whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers v. Allahabad Bank, (1996) 4 SCC 504 ; where it is stated thus:- "14....... As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service." 22. In our considered opinion, the ratio of the above-referred decisions are squarely applicable to the facts of the present case. The respondent was time and again informed during the probation period about his deficiencies and was given ample opportunities to improve them. Therefore, enough precautions were taken by the appellants to see that the respondent improved his performance and such an opportunity was provided to him. But such advices and opportunity were totally misplaced as the respondent considered the same as unnecessary encroachment and interference in his work and wrote back rudely in an intemperate language." 16. From the aforesaid view expressed by the Supreme Court, one fact is clearly emerging that as soon as the workman or the concerned employee is appointed on probation and if the employer is finding it that the work is not to the level of satisfaction, the probation period can be permissible not to extend and the same is not to be treated as effective termination. The background of the present case is clearly establishing that respondent - workman was appointed as probationer, so much so his tenure was extended upon his request for a further period of 3 months and thereafter, the petitioner company was compelled not to extend the period. The background of the present case is clearly establishing that respondent - workman was appointed as probationer, so much so his tenure was extended upon his request for a further period of 3 months and thereafter, the petitioner company was compelled not to extend the period. The learned Presiding Officer has misdirected himself in not looking at this material on record and therefore, the award based upon such material is nothing but based upon a clear error of jurisdiction which requires this Court to correct. 17. Mr. Dave, learned advocate appearing for the respondent No. 1 has placed reliance upon the decision of the Supreme Court reported in Bhuvesh Kumar Dwivedi (supra) and tried to contend that previously the respondent - workman was in the service and thereafter, his services came to be converted into probation and then, by giving artificial break, this device is adopted. Here, in the present case, it is not in dispute that order of appointment is not signed by the respondent - workman. It is also not in dispute that the extension is based upon the request of the respondent - workman himself and it is also not in dispute that since the work was not improved, tenure was not extended and therefore, the reliance which has been placed on this decision appears to be in the background of different set of circumstance and therefore, deserves to be treated as not applicable. It is settled position of law that if the facts are different which would make substantial difference in applying the precedent and therefore, in the background of this situation, this Court is of the opinion that the decision based upon a different concept altogether, the same is not applicable. 18. Another decision which has been brought to the notice of this Court reported in Pankej Suresh Lalwani (Supra) wherein also, the background of fact is altogether in a different context. The concerned employee of that particular case was appointed on sanctioned vacant post in accordance with the relevant Recruitment Rules and was treated as daily wager and therefore, in that case the factum of employment was altogether on a different position and therefore, same may not be helpful to the respondent - workman. 19. The concerned employee of that particular case was appointed on sanctioned vacant post in accordance with the relevant Recruitment Rules and was treated as daily wager and therefore, in that case the factum of employment was altogether on a different position and therefore, same may not be helpful to the respondent - workman. 19. Considering the aforesaid set of circumstance and the proposition of law laid down by the Supreme Court, it appears to this Court that since the core issue involved in the case is not examined in its true perspective by the learned Presiding Officer of the Labour Court, the award based upon lacks application of mind and perverse to the material on record and therefore, same deserves to be set aside. To arrive at such a conclusion on the basis of examination of material on record, an independent assessment of the documentary as well as oral evidence that respondent - workman has no right to claim the relief as a matter of right nor is amenable to the provisions of Section 25(F) of the I.D. Act, 1947. While arriving at this conclusion, it is kept in mind by this Court that in exercise of powers under Section 227 of the Constitution of India, if there is any patent perversity in the order of the Tribunal or where there is a gross and manifest failure of justice, the Court can certainly exercise jurisdiction to correct the mistake committed by the court below. In view of this proposition having been found that the learned Presiding Officer of the Labour Court has patently committed an order, the Court is constrained to pass this order. 20. Though from the material on record it appears that this petition is basically under Article 227 of the Constitution of India, however, if it is to be treated as a petition under Article 226 of the Constitution of India then also, in view of the background of facts and material on record and the principle laid down by series of decisions, no different conclusion is possible to be taken and therefore, irrespective of Article 227 or Article 226 of the Constitution of India, this Court is constrained to take the view which is expressed hereunder. 21. Hence, the award dated 21.7.2005 is ordered to be quashed and set aside. Consequently, the order of review dated 21.7.2005 is also set aside. 21. Hence, the award dated 21.7.2005 is ordered to be quashed and set aside. Consequently, the order of review dated 21.7.2005 is also set aside. The present petition is allowed accordingly. Rule is made absolute to the aforesaid extent.