JUDGMENT & ORDER : 1. The petitioner has challenged the award dated 8.5.2001 whereby the reference made to the Labour Court No.2, Jaipur has been answered in favour of the respondent-workman holding his termination as illegal and contrary to the provisions of Section 25-F of the Industrial Disputes Act, 1947 and directing reinstatement with 25% back wages and cost of Rs.250. 2. Counsel for the petitioner submits that the respondent-workman was although initially appointed on daily wage basis but vide order dated 29.11.1988 he was placed on probation for a period of six months on the fixed amount of Rs.400/- per month in the regular cadre and it was stipulated that if he does not perform well, his services may be dispensed with. In terms of the order of appointment on probation, services of the respondent-workman were not found to be satisfactory and therefore an order came to be passed terminating his services during probation period vide order dated 19.4.1990 whereby a cheque of an amount of Rs.1750.70 was also paid as notice and notice pay in terms of Section 25F of the Industrial Disputes Act, 1947. 3. Learned counsel for the petitioner submits that the Labour Court, while examining the said order dated 19.4.1990, has wrongly held it to be unjustified and illegal and the findings arrived at by the Labour Court are wholly perverse. It is further submitted that the Labour Court has wrongly mentioned in its award that no document was produced to show that the workman was on probation. It is submitted that Ex.1,2 & 3 placed before the Labour Court clearly mention about the respondent-workman having been appointed on probation. Further, it is submitted that the petitioner had filed writ petition challenging the order dated 19.4.1990 before the High Court in S.B. Civil Writ Petition No.1909/1990. The order dated 19.4.1990 mentions about cheque of Rs.1750.70 and the same was enclosed along with the order dated 19.4.1990 but the Labour Court has given an erroneous findings that the order dated 19.4.1990 was never received and there is no proof relating to the said document and the cheque having been received by the respondent-workman. Thus, there is perversity in the award and the award deserves to be set aside. 4. Thus, there is perversity in the award and the award deserves to be set aside. 4. Learned counsel also points out and informs the Court that an interim order was passed by this Court in the S.B.Civil Writ Petition No.1909/1990 on 24.5.1990 and the petitioners were directed to continue the respondent workman. In terms of the interim order, respondent-workman was continued with the petitioners. However, the said order was vacated by the Court while dismissing the writ petition on 18.7.1996 on the ground of alternate remedy. After dismissal of the writ petition, fresh order of termination of service of the respondent-workman was passed on 27.2.1997 after calculating the amount of pay in lieu of notice as well as compensation up to the date of passing of the order and the same was pasted at the residence of the respondent-workman who refused to accept the same. A noting of two witnesses was also recorded. It is submitted that the said document was also produced before the Labour Court who has proceeded to give a finding relating to the said notice, although there is no such reference relating to the said notice by the Labour Court. Once the termination had already been effected again on 27.2.1997, the question of reinstatement did not arise at all. 5. Learned counsel also submits that a probationer does not get the benefit of the Act of 1947 as has been held by the Apex Court in the case of M.Venugopal Vs. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. & Anr. 1994(2) SCC 323 wherein the termination of a probationer has been treated to come within ambit of Section 2(oo)(bb) of the Act of 1947 and outside the scope of definition of retrenchment. He also relied upon the law laid down by the Apex Court in the case of Escorts Limited Vs. Presiding Officer & Anr.1997(11)SCC 521 wherein relying upon the aforesaid judgment, the same view has been taken. It has been mentioned in the aforesaid judgment that if there is a term of appointment enabling the employer to terminate the service at any stage without assigning any reason, in such circumstances, termination of service under the said terms even though effected before expiry of the specific period, did not amount to retrenchment. It has been mentioned in the aforesaid judgment that if there is a term of appointment enabling the employer to terminate the service at any stage without assigning any reason, in such circumstances, termination of service under the said terms even though effected before expiry of the specific period, did not amount to retrenchment. Since there was such a term available in the appointment order, the services have been wrongfully held to be under the purview of the Act of 1947. Counsel for the petitioner also relies on the law laid down by the Supreme Court in the case of Kalyani Sharp India Ltd. Vs. Labour Court No.1, Gwalior & Anr. : 2002(9) SCC 655 . 6. Learned counsel for the petitioner further submits that although while dismissing the writ petition, this Court took a view that alternate remedy under the Act of 1947 was available, the same would not be considered as to grant jurisdiction to the Labour Court to adjudicate the issue relating to a case where a probationer’s services have been dispensed with. The said submission made earlier in the writ petition could not act as an estoppel. He also relies on the judgment of Apex Court in the case”Chiranji Lal Shrilal Goenka Vs. Jasjit Singh & Ors. : 1993(2) SCC 507 as well as in the case of B.S.N.L. Vs. M/s Telephone Cables Ltd. : 2010(1)WLC(SC)(Civil)696. 7. Per contra, learned counsel for the respondent-workman has supported the award. It is his case that the respondent-workman was appointed as a daily wager and if subsequently he has been appointed on probation, the fact that his services from 19.10.1987 were required to be counted for the purpose of retrenchment, can not be denied and the petitioners themselves had treated him within the purview of workman and therefore at the time of removing, the petitioners had calculated the amount in terms of Section 25-F of Act of 1947 as is apparent from the order dated 29.9.1988. Thus, the petitioners cannot now turn back and state that the respondent-workman was not a workman and the provisions of Section 25-F of the Act of 1947 were not applicable on him. Thus, the petitioners cannot now turn back and state that the respondent-workman was not a workman and the provisions of Section 25-F of the Act of 1947 were not applicable on him. It is his further submission that the document dated 27.2.1997, which is said to be a second termination order, also depicts compliance of provisions of Section 25-F of the Act of 1947 and thus up to 1997 the respondent-workman was always treated as a workman coming within the purview of the Act of 1947 and his removal would come within the definition of Section 2(oo) and the provision of Section 2(oo)(bb) as applicable on a probationer are not attracted and therefore, the contention of the petitioners is not made out. 8. The further contention of learned counsel for the respondent-workman is that so far as the notice and removal order dated 27.2.1997 is concerned, the same was never served upon him. The order dated 27.2.1997 is a fictitious order prepared only to deprive the respondent-workman of his right which was created in terms of the order passed by the High Court on 18.7.1996. It is further submitted that the order dated 27.2.1997 was never proved even before the Labour Court and the persons who have stated to have got it pasted on the respondent’s house were also not produced. The order dated 27.2.1997, therefore, ought to be ignored by this Court. He further supports the award passed by the Labour Court dated 8.5.2001 and submits that from 19.10.1987 up to 19.4.1990 he worked for more than 240 days in each calendar year and the order dated 19.4.1990 or the cheque in lieu thereof was never made available to him. No proof has come on record to show that the amount has been received by him and in such circumstances, the Labour Court award dated 8.5.2001 does not call for any interference. 9. Heard counsel for both the parties. 10. It is an admitted position that initially the respondent-workman was appointed on daily wages basis on 19.10.1987 and he worked on the said post. An order dated 29.11.1988 has been passed whereby he has been placed on probation with certain terms and conditions laid down therein for a period of six months. 9. Heard counsel for both the parties. 10. It is an admitted position that initially the respondent-workman was appointed on daily wages basis on 19.10.1987 and he worked on the said post. An order dated 29.11.1988 has been passed whereby he has been placed on probation with certain terms and conditions laid down therein for a period of six months. The said probation period was extended from time to time and there is also a document which was produced before the Labour Court wherein the workman himself has acknowledged that he was on probation and prayed that his probation period be extended vide letter dated 18.10.1989. It is on the said letter that his probation period was extended from 1.10.1989 to 18.10.1989 vide order dated 19.9.1989. On completion of the said period, by the order impugned dated 19.10.1989 his services were again extended up to 18.4.1990 and on 19.4.1990 on completion of the extended period, his services were dispensed with. The order was passed on 18.4.1990 and one month’s notice pay and retrenchment compensation, calculated @ 15 days working period in a month, for the period of two and half years from 19.10.1987 up to 18.4.1990, was also calculated and the cheque was enclosed. Thus, while it is correct that the order also includes retrenchment compensation in terms of Section 25-F of the Act of 1947, essentially the services were dispensed with on completion of the extending period of probation and therefore, in view of the law laid down in the case of M. Venugopal Vs. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. & Anr. (supra), Escorts Limited Vs. Presiding Officer & Anr. (supra) and Kalyani Sharp India Ltd. Vs. Labour Court No.1, Gwalior & Anr. (supra), the workman cannot be said to be retrenched in terms of Section 2(oo) as the provisions of Section 2(oo)(bb) would be attracted since the appointment of the workman for a fixed period as stipulated in the order of extension of probation. Keeping in view thereof, the order of the Labour Court holding violation of Section 25-F of the Act of 1947 did not arise. Even otherwise, this Court finds that the order dated 8.5.2001, has chosen to ignore a document which was already on record before it. Keeping in view thereof, the order of the Labour Court holding violation of Section 25-F of the Act of 1947 did not arise. Even otherwise, this Court finds that the order dated 8.5.2001, has chosen to ignore a document which was already on record before it. It has also chosen to ignore the fact that the amount as calculated for the period of work was also mentioned in the order of removal and the cheque was also enclosed alongwith the order. The same was placed before the High Court in the writ petition wherein stay was granted. Thus, the finding given by the Labour Court that the cheque and the order was never served upon the workman cannot be said to be a correct finding. Thus, the order dated 8.5.2001 suffers from perversity of findings of fact which were on record. In the circumstances, the contention raised by counsel for the respondent do not have any force and deserve to be rejected. 11. It may also be noted that the Labour Court was required to remain within the four-corners of the terms of reference made to it on 30.7.1997 and there was no occasion to examine the fresh dismissal order dated 27.2.1997 for which there was no reference. The observations relating to order dated 27.2.1997, therefore, were wholly erroneous and perversity has been crept in the order dated 8.5.2001, therefore, cannot be allowed to sustain. 12. In view of the aforesaid findings and the law, as quoted above, the writ petition is allowed and the order dated 8.5.2001 is quashed and set aside. No costs.