Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2642 (HP)

Ashok Kumar v. SCL Infratech Ltd.

2016-12-13

TARLOK SINGH CHAUHAN

body2016
Tarlok Singh Chauhan, J. Since common questions of law and facts arise for consideration in these petitions, they were heard together and are being disposed of by this common judgment. 2. The petitioners were appointed as Electrician and Welder by respondent No. 1 on 01.07.2009 and 01.06.2009, respectively. The petitioners had completed 120 days as per Section 25-B of the Industrial Disputes Act, 1947 (for short ‘Act’) and worked till 13.04.2010 whereafter their services were terminated by respondent No. 1. The action of the respondent was assailed before the learned Industrial Tribunal-cum-Labour Court (for short ‘Tribunal’) upon the reference being made by the appropriate government which reads thus:- “Whether termination of the services of Shri Ashok Kumar (Electrician) C/o CITU office near District Hospital Reckong Peo, District Kinnaur, H.P. by the management of M/s SCL Infratech Ltd., Tidong-Hydro Electric Project, Kinnaur District Kinnaur H.P. w.e.f. 13.04.2010 without following the provisions of the Industrial Disputes Act, 1947 as alleged by the above named workman is legal and justified? If not, to what back wages, service benefits and relief the above named worker is entitled to form the concerned management.” 3. Similar reference was made in CWP No. 1872 of 2016 and instead of the name of Ashok Kumar the name of the petitioner Ashwani Kumar appears therein and his designation has been shown as Welder. Rest of the contents of the reference are absolutely the same. 4. The learned Tribunal upheld the termination of the petitioners by concluding that their services had been terminated during the period of probation, and therefore, there was no requirement of either giving any notice or paying any compensation in terms of Section 25-F of the Act as the same did not amount to retrenchment. 5. These awards have been assailed by the petitioners on the ground that the said findings are factually and legally incorrect and contrary to the terms and conditions of their appointment letters. 6. The respondent has filed reply and obviously supported the award passed by the Tribunal. In addition thereto, it has been averred that even while the petitioners were in service, their performance was not at all satisfactory and they would always shirk from their work and availed unnecessary leave and always indulged in activities which were detrimental to the interest and in addition would hamper the progress of the work of the respondent. In addition thereto, it has been averred that even while the petitioners were in service, their performance was not at all satisfactory and they would always shirk from their work and availed unnecessary leave and always indulged in activities which were detrimental to the interest and in addition would hamper the progress of the work of the respondent. It is further averred that the petitioners and their two co-workers would quarrel with the local residents in drunken condition and despite several warnings, they did not restrain from such activities. I have heard learned counsel for the parties and have gone through the material placed on record. 7. Before going to the merits of the award, it would be necessary to refer to the appointment letters which, save and except, name and designation of the petitioners is verbatim the same and reads as under:- “Sub: Appointment Letter With reference to the discussions you had with us, we are pleased to appoint you in our organization as a Electrician at our TIDONG Project. The following terms and conditions will be applicable to you during your service with the company. (1) Place of posting: TIDONG PROJECT in Himachal Pradesh as a Electrician and you will be reporting the General Manager. (2) Nature of Duties: All electrical works and other function delegated from time to time. (3) Remuneration: Rs.6,000/- (Rupees Six Thousand Only) per month all told. (4) Termination: You will be on probation for a period of Six months and during this period if your services are not satisfactory, your services can be terminated without any notice and without assigning any reason. After completion of probation period this appointment shall be terminated by either party on giving 1 months notice in writing or on payment/deposit of salary in lieu thereof. (5) Date of Joining: Ist July, 2009. (6) Rules and regulations You will not enter into any activity which shall be detrimental to the interests of the company or hamper the progress of work. If found defaulter your services shall be liable for termination without any notice You will be governed by the rules and regulations of the company as may be introduced/changed from time to time. Your appointment will commence from the date of your joining the duty. If found defaulter your services shall be liable for termination without any notice You will be governed by the rules and regulations of the company as may be introduced/changed from time to time. Your appointment will commence from the date of your joining the duty. As a token of your acceptance please acknowledge receipt of this appointment letter on the duplicate copy and we take this opportunity to extend warm welcome to our Organization/Group and look for mutual and enriching association. With best wishes, Yours faithfully, For SCL Infratech Limited. Sd//- Balbir Chand (General Manager)” 8. Adverting to the findings recorded by the learned Tribunal that the petitioners were on probation, the same in the teeth of the appointment letter is obviously perverse as the petitioners were appointed on 01.07.2009 and 01.06.2009, respectively and on account of their probation period being only for six months, the same had ended on 01.12.2009 and 01.01.2010, respectively. 9. Further a perusal of Clause-4 clearly goes to indicate that after completion of the probation period, the services of the petitioners could only be terminated by the respondent giving one month’s notice in writing, which procedure admittedly has not been followed in instant cases. 10. The learned counsel for the respondent would however argue that the services of the petitioners have, in fact, been terminated as their activities were detrimental to the interest of the Company and was hampering the progress of work. 11. Admittedly, this is not the finding recorded by the learned Tribunal below and even otherwise, the respondent has failed to place on record any document whereby the petitioners were ever called upon to improve their conduct or confronted with any material reflecting adversely upon their conduct. 12. Even during the course of hearing, the contesting respondent has failed to show any material which would adversely comment upon the working or conduct of the petitioners. Evidently, no such material was placed either before the learned Tribunal or before this Court. 13. Even if it is assumed that the respondent had some grievance regarding the working and conduct of the petitioners, the least that was expected of it was to at least afford a reasonable opportunity, which would include duty to disclose the material adverse to the employee even if there was no statutory rule to this effect. This would have at least ensured compliance with the basic principles of natural justice. 14. This would have at least ensured compliance with the basic principles of natural justice. 14. It is more than settled that rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a delinquent employee is treated fairly in proceedings, which may culminate in imposition of punishment including dismissal, termination or removal from service. 15. A perusal of the letter of termination goes to indicate that the services of the petitioners have been terminated by invoking para 6 of the appointment letter, which means that their services have been terminated because their activities were found to be detrimental to the interest of the company or found to be hampering the progress of work, which unfortunately is not the conclusion arrived at by the learned Tribunal below. 16. Further, it has to be borne in mind that the right to contract in industrial matter is no longer an absolute right and statute dealing with the industrial matters abound with restrictions on the absolute right to contract. 17. The doctrine of “hire and fire” is now completely abrogated both by statute and by industrial adjudication and even where the services of the employee are terminated by an order of discharge simplicitor, the legality and propriety of such an order can always be challenged in Industrial Tribunal. These restrictions on the absolute right to contract are imposed evidently because security of employment is more regarded as one of the necessities for industrial peace and harmony and the contentment. It brings about a pre-requisite of social justice. 18. After independence, more and more statutes have been enacted, which require a reasonable cause for dispensing with the services of an employee by an order of discharge simplicitor. If reasons for discharging an employee are furnished to the employee concerned, he not only has the satisfaction of knowing why his services are dispensed, it becomes easier for him in appropriate cases to challenge the order on the ground that it is either not legal or proper, which in absence of knowledge of those reasons may be difficult if not impossible for him to do so. 19. The hounding fear of resurrection of the ghost of “hire and fire”, doctrine has long been laid to rest. 19. The hounding fear of resurrection of the ghost of “hire and fire”, doctrine has long been laid to rest. The hire and fire theory is not legally permissible and such archaic doctrine have long been held to be ultra vires to the provisions of the constitution and also contrary and inconsistent with public policy. 20. Having said so, I find merit in these petitions and the same are accordingly allowed. The order passed by the learned Industrial Tribunal-cum-Labour Court is set aside and the petitioners are ordered to be re-instated in service. As this Court is not in a position to hold an inquiry as to whether the petitioners during this period were totally unemployed, therefore, I am of the considered view that the ends of justice would be served in case the petitioners are ordered to be re-instated in service alongwith 50% back wages. The respondent No. 1 is directed to re-engage the petitioners within four weeks from the receipt of the copy of this order, failing which would be liable to pay interest at the rate of 9% per annum on the aforesaid amount till the actual payment thereof. 21. The petitions are accordingly allowed in the aforesaid terms, leaving the parties to bear their own costs.