Full Text
JUDGMENT
SATISH KUMAR Appellant
For the Appellant : Mr Anuj Aggarwal, Adv. For the Respondent : Mr Amiet Andlay, Adv.
COl^M:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED, ACTING
CHIEF JUSTICE
HON'BLE MR. JUSTICE VIBHU BAKHRU
C.M.No. \(i29SI2^\3(exemptions)
Exemptions are allowed subject to all just exceptions.
C.M.NO. 10294/2013ra^e/Qv; l^'or the reasons stated in the application, the delay in filing the appeal is condoned.
The application is disposed of.
L.P.A.No.472/2013 ^
1. This Letters Patent Appeal is directed against the judgment dated LPA ^0.472/2013 Page I of[6] 2013:DHC:8511-DB 2- 26.02.2013 delivered by a learned Single Judge ofthis Court in W.P.(C) No.5340/2000. The appellant was worlcing on probation with the respondent. He was on probation for a period of two years and while on probation, his services were "terminated" by an office order dated 08.06.1990 which was to the following effect: "OFFICE QRJ3ER In continuation ofControl Message dated 2.6.90, the probation period of Driver 7/48 Satish Kumar is hereby terminated with immediate effect."
2. Two points had been raised before the Industrial Tribunal. Those were that the termination was stigmatic and that the same, in any event, amounted to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the said Act') and since the provisions ofSection 25F ofthat Act had not been complied with, the termination was bad. The Industrial Tribunal rendered its award dated 11.10.1999 and held against the appellant on both counts. The Tribunal held that no stigma was attached to the tennination of the services of the appellant, who was on probation and that the termination of the services during probation did not amount to retrenchment.
3. While it is true that in the writ petition challenging the said award, the appellant had taken both the points, however, it appears that only the point of stigma was argued before the learned Single Judge. The point pertaining to the termination amounting to retrenchment was not argued on behalf of the appellant. The learned Single Judge has examined the entire case from the point of view as to whether the termination order was LPA No.^72/2(m Page 2 of[6] ~ 3. stigmatic or not and he has come to the conclusion that. it was not. Consequently, the writ petition was dismissed.
4. As regards the issue of whether the termination order was stigmatic or not, we agree with the learned Single Judge and find no reason to differ from him in his conclusion that the order was not stigmatic. A plain reading of the order would indicate the same.
5. However, before us, the learned counsel for the appellant sought to raise the issue of the termination amounting to retrenchment and argued that since the provisions of Section 25F of the said Act have not been complied with, the termination was bad. The learned counsel for the appellant has placed reliance on a Constitution Bench decision of the Supreme Court in the case ofPunjab Land Development and Reclamation Corporation Ltd. Vs. Presidins Officer, Labour Court, Chandisarh & Ors.: (1990) 3 SCC 682. The learned counsel submitted that the Supreme Court considered the question as to whether the word "retrenchment" in Section 2(oo) of the said Act had to be understood in its narrow, natural and contextual meaning or in its wider literal meaning. He drew our attention to the case of one of the appellants before the Supreme Court in C.A.No.686 (NL) of 1982 where the services of the workman had been terminated during his period of probation. The Labour Court had taken the view that the termination amounted to retrenchment and that the provisions of Section 25F of the Act not having been complied with, the termination was illegal. The Supreme Court upheld this view ofthe Labour Court. The learned counsel for the appellant submitted that the said decision was clearly in his favour.
6. However, we do not agree. The Supreme Court in Punjab Land LPA No.472/2013 P"ge ^ of[6] Development (Supra) had analysed the provisions of Section 2(oo) ofthe said Act in the following manner:
7. The Supreme Court finally held as undcr:- "81. Applying the above reasonings; principles and precedents, to the definition in s. 2(oo) ofthe Act, wc hold that "retrenchment" means the tennination by the employer of the service of a worlanan for any reason whatsoever except those expressly excluded in the section." (underlining added) LPA No.472/2()l[3] • ^
8. Fiom the above, it is clear that retrenchment means termination by the employer of the services of a workman for any reason whatsoever "except those expressly included in the section". For the point oftime, when the Supreme Court was considering the cases before it, Section 2(oo)(bb) was not in vogue. However, the Supreme Court had noticed that provision because when the judgment was rendered, the amendment had been brought about and clause (bb) had been introduced. After examining the same and analysing it in detail, the Supreme Court came to the conclusion that every termination by an employer of the services of a workman would amount to retrenchment except in those cases which were expressly excluded by the said Section 2(oo) of the said Act itself Insofar as the present case oftermination is concerned, we are ofthe opinion that it falls under the exception carved out in Section 2(oo)(bb) of the said Act inasmuch as the contract of employment of the appellant itself contained the stipulation whereunder his services could be terminated without assigning any reason during the probation period.
9. We may also notice another decision of the Supreme Court which was pointed out by the learned counsel for the appellant in the case of Kalyani Sharp India Ltd. Vs. Labour Court No.l, Gwalior & Anr.: (2002) 9 see 655. The Supreme Court observed as under: "6. The order of employment itself clearly sets out the terms thereafter which makes it clear that the facility of providing training to him could be put to an end at any time without assigning any reason whatsoever and his services could be regularised only on satisfactory completion of his training. If these clauses are read together, it is clear he was under probation during the relevant time and if his sei-vices are not LPA No.472/2ni[3] / satisfactoi-y, the same could be put an end to. It is clear that the respondent had been appointed as a Trainee Service Technician and for a period he had to undergo the training to the satisfaction of the appellant and if his work was not satisfactory during that period the facility could be withdrawn at any time and he would be regularised only on completion of his training. Thus the respondent's sei-vices were terminated before expiry of the probationary period. In such a case, question of issue of notice before terminating the service as claimed by the respondent does not arise, liscorts' Case [(1997) 11 see 521: 1998 SCC (L&S) 235] is identical with the present case. Following the said decision and for the reasons stated therein these appeals are allowed. The order made by the High Court affirming the award made by the Labour Court is set aside and the claim made by the respondent is dismissed."
10. These obsei-vations also fortify the view that we have taken. For all these reasons, we do not find any merit in the appeal. The same is dismissed.
BADAR DUm^.Z AHMED, ACJ JULY 12, 2013 'anb' LPA No.472/2013 VfBI-IU:BAKiI.RU, J Page 6 of[6]