JUDGMENT : 1. Heard Mr. PN Choudhury, the learned counsel for the writ petitioner and Mr. N Mohammad, the learned counsel for the respondent No. 4. I have also heard Mr. N Goswami, the learned State Counsel who appears for the respondent Nos. 1, 2 and 3. 2. This writ petition is filed by the Management of M/s The Lily Hotel assailing the Judgment and Award dated 20.06.2017 passed by the Labour Court, Guwahati in Reference Case No. 7 of 2016 by which, the termination of the Workman (respondent No. 4) was held to be illegal and the Management (writ petitioner) was directed to reinstate him with full back wages. Be it stated herein that the dispute being found to be an Industrial Dispute, a reference was made to the Labour Court by the respondent No. 2 vide Notification dated 06.12.2016 on the following two issues :- (i) Whether Management of M/S Lily Hotel was justified in terminating the service of Shri Debasis Borpujari and also not paying his earned wages as per his demand? (ii) If not, whether he is entitled for reinstatement with full back wages? 3. After considering the above two issues, the Labour Court vide its Judgment and Award dated 20.06.2017 decided the first part of Issue No.1 in the negative and the second part in the positive. Issue No. 2 was decided in the positive and payment was directed to be made to the respondent No. 4 within a period of 3 months. In other words, the termination of respondent No. 4 was held to be illegal and the petitioner was directed to reinstate him with full back wages. 4. Brief fact of the case is that the respondent No. 4 submitted his resume for employment with the petitioner on 19.01.2016 and he was interviewed on the same day. Upon perusal of his resume, he was allowed to join service w.e.f. 20.01.2016 as Sales Executive on trial and observation basis for a period of 3 months on a fixed monthly salary of Rs. 12,000/- and fuel allowance of Rs. 2,000/-. On 13.02.2016, because of his misconduct with other fellow employees of the establishment, his service was discontinued with immediate effect. 5. The respondent No. 4 therefore, made a statement of claim complaint before the Assistant Labour Commissioner, Assam at Ulubari, Guwahati and following which, discussions were held on 20.05.2016 and 08.06.2016. 12,000/- and fuel allowance of Rs. 2,000/-. On 13.02.2016, because of his misconduct with other fellow employees of the establishment, his service was discontinued with immediate effect. 5. The respondent No. 4 therefore, made a statement of claim complaint before the Assistant Labour Commissioner, Assam at Ulubari, Guwahati and following which, discussions were held on 20.05.2016 and 08.06.2016. Claim of the respondent No. 4 is that he was illegally terminated from service without any notice. He was simply debarred from attending duties w.e.f. 13.02.2016. The petitioner in terminating his service did not follow any procedure and for which, he remained unemployed. As such, the petitioner is liable to pay him wages amounting to Rs. 2,93,472/- (Rupees Two Lakhs Ninty Three Thousand Four Hundred Seventy Two) only. The respondent No. 4 also contends that there cannot be any negotiation or settlement on the amount due to him as he was receiving a monthly salary of Rs. 62,000/- in addition to a sum of Rs. 5000/- as fuel allowance. 6. Against the claim, the petitioner filed a counter statement contending inter-alia that the respondent No. 4 joined the establishment on 20.01.2016 and was terminated from services on 13.02.2016 due to misconduct. He worked for 21 days and was paid a monthly salary of Rs. 14,000/-. 7. The conciliation proceeding between the parties ended in failure and a failure report dated 08.06.2016 was made. Consequently, a reference was made to the Labour Court vide notification dated 06.12.2016 by framing two issues as already mentioned herein above. Both the rival parties filed their respective written statements before the Labour Court. The respondent No. 4 examined himself as his own witness and he was cross examined by the representative of the petitioner. The petitioner on the other hand examined four witnesses viz; Mr. Abdul Rahman Khan, Shri Prakash Pandey, Aminur Islam and Sri Jitendra Singh. 8. Mr. Abdul Rahman Khan, General Manager of the petitioner as Management Witness-1 in his examination-in-chief, filed by way of an affidavit stated that the respondent No. 4 was appointed as Sales Executive on 20.01.2016 on trial and observation basis for a period of 3 months with a fixed monthly salary of Rs. 12,000/- and Rs. 2,000/- as fuel allowance. 8. Mr. Abdul Rahman Khan, General Manager of the petitioner as Management Witness-1 in his examination-in-chief, filed by way of an affidavit stated that the respondent No. 4 was appointed as Sales Executive on 20.01.2016 on trial and observation basis for a period of 3 months with a fixed monthly salary of Rs. 12,000/- and Rs. 2,000/- as fuel allowance. By referring to the resume of the respondent No. 4 dated 19.01.2016 (Exhibit-2), he contended that the endorsement in the back of the resume clearly established the fact that the respondent No. 4 was employed under the Management w.e.f. 20.01.2016 till 13.02.2016. The Management not being satisfied with the service of the respondent No. 4 and also because of his ill-treatment to his fellow employees of the Management, decided to discontinue his service. He was asked to come to the office on 15.02.2016 for settlement of accounts and to receive his salary for the period he had worked. The respondent No. 4 was well intimated the reason for his discontinuance in service and was paid his salary for the month of January which was duly received by him. He stated that the Management was ready and willing to pay him the wages w.e.f. 01.02.2016 to 13.02.2016. In his cross examination, MW-1 stated that interview of the respondent No. 4 was first taken by two persons and thereafter, he came to him with Prakash Pandey i.e. MW-2. After seeing his bio-data and talking with the Managing Director, he wrote behind his resume that he was selected for Sales Executive and giving his date of joining as 20.01.2016 with salary of Rs. 12,000/- plus Rs. 2,000/- as fuel charges. He further stated that there was no participant from Human Resource Department in the selection process and the respondent No. 4 personally did not face the Managing Director. He further stated that he came to know about the Complaint dated 15.02.2016, lodged by the respondent No. 4 before the Assistant Labour Commission and vide his Letter dated 19.02.2016, he wrote a letter to the Labour Inspector clarifying the termination of the respondent No. 4. He also stated that since the respondent No. 4 was not confirmed in his employment, he did not serve him any notice before his termination. He was only engaged by the Company on trial basis and therefore, no domestic enquiry was conducted. 9. He also stated that since the respondent No. 4 was not confirmed in his employment, he did not serve him any notice before his termination. He was only engaged by the Company on trial basis and therefore, no domestic enquiry was conducted. 9. Sri Prakash Pandey, Sales Manager as Management Witness-2 in his examination-in-chief filed through an affidavit stated that the respondent No. 4 was appointed as Sales Executive on 20.01.2016 on trial/observation basis for a period of 3 (three) months and his salary was fixed at Rs. 12,000/- (Rupees Twelve Thousand) only per month along-with fuel allowance of Rs. 2000/- (Rupees Two Thousand) only per month. While appointing him as Sales Executive, the General Manager of the Hotel endorsed on the back of his resume dated 19.01.2016, allowing him to join duty on 20.01.2016 and the excerpts from the attendance register of the petitioner made it abundantly clear that he was employed under the Management w.e.f. 20.01.2016 till 13.02.2016. He stated that he appeared before the Conciliation Officer on behalf of the Management and offered to pay the respondent No. 4 his salary from 01.02.2016 to 13.02.2016 for the service rendered by him but he refused to accept the same. The reason for his discontinuance was due to his misbehavior with his colleagues and other employees of the Management. He was verbally warned but he was adamant and he remained the same. Therefore, the Management had no option but to ask him to settle the accounts and discontinue his services. In his cross examination, he stated that on 13.02.2016 after consultation with the Management, he decided to terminate the service of the respondent No. 4. No domestic enquiry prior to such termination was carried out. He further stated that the respondent No. 4 was engaged on trial basis as a trainee. Prior to his termination, he received regular complaints from his colleagues and the other Departments. 10. Aminur Islam, Credit Manager of the hotel was examined as Management Witness-3 and his examination-in-chief was also by way of an affidavit. According to him, the respondent No. 4 was appointed as Sales Executive on 20.01.2016 and during a short span of his employment, he often misbehave with him by using abusive language while demanding his salary. He stated that after the respondent No. 4 left the establishment, he could perform his job well. According to him, the respondent No. 4 was appointed as Sales Executive on 20.01.2016 and during a short span of his employment, he often misbehave with him by using abusive language while demanding his salary. He stated that after the respondent No. 4 left the establishment, he could perform his job well. In his cross-examination, he stated that he cannot say the date on which the respondent No. 4 had misbehaved with him. Further, he also admitted that he did not mention in his affidavit that the respondent No. 4 received Rs. 12,000/- per month as his salary. 11. Sri Jitendra Singh, Security In-charge of the hotel was examined as Management Witness-4. In his deposition, also in the form of an affidavit, he stated that he was overall in control of the security of the entire hotel. As per the procedure followed by the hotel, all employees were required to put their signature on the register while entering into the hotel premises and also while leaving. The employees were also physically checked while entering the hotel. The respondent No. 4 while entering the hotel used to bring along with him things which were not permitted in the hotel and while putting his signature in the register, he used to quarrel with him as he used to enter the wrong time in the register. When he raised objection to the action of the respondent No. 4, the respondent No. 4 would throw the attendance register at his face and forcibly take things which were not permitted into the hotel. In his cross examination, he stated that he did not make any report to the Police against the threat or misbehavior of the respondent No. 4. He stated that CCTV cameras were installed at security check point and the incident as alleged may or may not have been filmed by the CCTV camera. In his cross examination, MW-4 reiterated what he stated in his examination-in-chief. 12. The respondent No. 4 in his examination-in-chief stated that he joined M/S The Lily Hotel in the year 2015 w.e.f. 20.01.2015. No appointment letter was issued to him as the Management said that it was not their practice. According to him, on the verbal intimation made to him by the Human Resource Manager and the Managing Director of the Hotel, his joining at the establishment as Sales Development Representative was confirmed. No appointment letter was issued to him as the Management said that it was not their practice. According to him, on the verbal intimation made to him by the Human Resource Manager and the Managing Director of the Hotel, his joining at the establishment as Sales Development Representative was confirmed. For the first six months, his salary was fixed at Rs. 25,000/- per month. After completion of six months service, his salary was enhanced to Rs. 62,000/-, in view of his qualification of MBA in Marketing Management. Additionally, he was given a sum of Rs. 5,000/- as fuel allowance. He also stated that he reported directly to the Managing Director of the hotel and he worked towards improving the revenue prospects and brand merchandising of the establishment. His job profile had nothing to do with day to day sales/revenue collection. His work day was spent on visiting claimants to get business and he has no direct contact with the hotel guests. On 15.02.2016, he made a complaint before the Assistant Labour Commission, Guwahati regarding his illegal removal from service by the Hotel Management w.e.f. 13.02.2016. On 19.02.2016, the Labour Inspector issued a letter to the Management seeking comments with regard to the complaint submitted by him and also to furnish a copy of his appointment letter on or before 01.03.2016. However, the Management did not respond in time. Subsequently, a reminder was sent and pursuant to which, MW-1 gave a reply stating that the reason for his termination was due to indecent behavior with the guests of the hotel. However, MW-2, 3 & 4 in their evidence stated that he was terminated due to his quarreling with his colleagues and therefore, there was contradiction between the version of the Management Witness and the reply given by MW-1 to the Labour Inspector. He further stated that during the enquiry cum discussion held in the office of the Assistant Labour Commission on 20.05.2016 and during the conciliation proceeding held in the same office on 04.07.2016, he claimed that his date of joining was 20.01.2015 with a salary of Rs. 25,000/- and after a period of six months, his salary was enhanced to Rs. 62,000/- per month with Rs. 5,000/- as fuel allowance. 25,000/- and after a period of six months, his salary was enhanced to Rs. 62,000/- per month with Rs. 5,000/- as fuel allowance. He also stated that he has not received his salary since 20.01.2016 and therefore, the Management was liable to pay him his full back wages from the said date @ Rs. 62,000/- per month as salary and Rs. 5,000/- as fuel allowance. 13. The respondent No. 4 in his cross examination stated that he was a Law Degree holder and he submitted a complaint before the Assistant Labour Commission regarding his illegal termination from service. He did not put forward any allegation of retrenchment in his complaint. He did not file before the Court any document to show that he joined the hotel on 20.01.2015 as Sales Development Representative and he continued as such till he was terminated. He also stated that he did not file any document to show that his salary was initially Rs. 25,000/- per month and subsequently, after six months, it was enhanced to Rs. 62,000/-. He denied the fact that he work in a hotel for less than a month i.e., w.e.f. 20.01.2016 to 12.02.2016. He also denied the suggestion that he never raise any objection to the statement of MW-1 with regard to his salary being Rs. 12,000/- per month and fuel allowance of Rs. 2,000/- as written by MW-1 at the backside of his resume. 14. From the above analysis and perusal of the materials available on record, it is seen that there is no appointment order issued to the respondent No. 4. The General Manager of the Management in the back side of the resume of the respondent No. 4 wrote that he was selected for Sales Executive on a salary of Rs. 12,000/- plus fuel allowance of Rs. 2,000/- and the date of joining will be 20.01.2016. This noting was exhibited as Exhibit - 2(i) by Mr. Abdul Rahman Khan, MW-1. The attendance register wherein, the respondent No. 4 entered his signature w.e.f. 20.01.2016 upto 12.02.2016 was also exhibited by MW-1 as Exhibit Nos. 3 & 4. His deposition in his examination-in-chief by way of an affidavit was neither shaken nor falsified by the workmen during his cross examination. Therefore, the findings of the Labour Court in this regard is only justified. 15. 3 & 4. His deposition in his examination-in-chief by way of an affidavit was neither shaken nor falsified by the workmen during his cross examination. Therefore, the findings of the Labour Court in this regard is only justified. 15. Moving on to the claim and finding that the termination was illegal and not sustainable, it may be seen that at the time when the service of the respondent No. 4 was discontinued, he was under probation and on trial basis. From the evidence led by the MW- 1 to 4, it is clear that he failed to abide with the norms of the hotel and that he was off and on engaged in altercations with the staff of the hotel. It was therefore, decided by the Manager to discontinue his service and the discontinuance of his service during the probation or trial period on account of unsuitability and under the circumstance in my considered view cannot be said to be illegal. The contradictions sought to be projected by the workman also cannot be of any assistance to him as he was only a probationer or was engaged on a trial basis. Under the circumstance, his entitlement will be to his salary and fuel allowances between the period 20.01.2016 and 13.02.2016. The amount of Rs. 2,93,472/- claimed by the workman is without any basis and was rightly rejected by the Labour Court. The Apex Court in the case of Range Forest Officer Vs. S.T. Hadimani reported in (2002) 3 SCC 25 held that in a case where the entitlement to Section 25-F of the Industrial Disputes Act, 1947 is concerned, the onus of proving that the workmen completed the requisite length of continuous service preceding his termination was on the workman himself and that the affidavit of the workman with such claim was found to be insufficient. The ratio of S.T. Hadimani (Supra), in my considered view squarely applies to the present case as well. The respondent No. 4 failed to show and establish that he was employed with the Management since 20.01.2015 with a salary of Rs. 25,000/- for the first six months and thereafter, Rs. 62,000/- with Rs. 5,000/- as fuel allowance. 16. Upon considering the case in its entirety, I find that the respondent No. 4 is not entitled to reinstatement with full back wages as held by the Labour Court in its Judgment and Award dated 20.06.2017. 25,000/- for the first six months and thereafter, Rs. 62,000/- with Rs. 5,000/- as fuel allowance. 16. Upon considering the case in its entirety, I find that the respondent No. 4 is not entitled to reinstatement with full back wages as held by the Labour Court in its Judgment and Award dated 20.06.2017. However, he will be entitled to his dues from the date he joined his service upto the date when his service was discontinued i.e., w.e.f. 20.01.2016 to 13.02.2016. The impugned Judgment and Award of the Labour Court is therefore interfered with and modified as indicated herein above. The amount due to the respondent No. 4 shall be paid by the petitioner within 15 days from the date of receipt of a certified copy of the Order. 17. With the above observations and directions, the writ petition stands disposed of.