Full Judgment Text
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PETITIONER:
M/S. OSWAL PRESSURE DIE CASTING INDUSTRY, FARIDABAD
Vs.
RESPONDENT:
PRESIDING OFFICER & ANR.
DATE OF JUDGMENT: 20/02/1998
BENCH:
G.T. NANAVATI, SYED SHAH MOHAMMED QUADRI
ACT:
HEADNOTE:
JUDGMENT:
THE 20TH DAY OF FEBRUARY, 1998.
Present:
Hon’ble Mr. Justice G.T. Nanavati
Hon’ble Mr. Justice Syed Shah Mohammed Quadri
Major Swarup, Ad. for the appellant
H.S. Parihar, Adv. for the Respondent.
J U D G M E N T
The following Judgment of the Court was delivered:
NANAVATI, J.
Leave granted.
The only point that arises for consideration in this
appeal is whether services of the respondent, who can be
said to have been appointed on probation, could not have
been terminated without holding an inquiry. The High Court
held that it was necessary to hold an inquiry before coming
to the conclusion that he was not suitable or fit for being
continued in service and as no such inquiry was held
termination of his services was bad.
The respondent was appointed as a helper on probation.
The appointment letter dated 14.3.1992 stated thus.
"You are appointed for a period of
4 months on probation. If you
continue in the service, this
period will automatically increase
for 4 months. This period will
further increase for 3 months if
the Management does not give you in
writing a letter of your
confirmation and during this period
or at the end, your services can be
terminated without assigning any
reason or giving any notice."
On 13.2.1993 his services were terminated by an order
which reads as under:
"You were appointed on probation in
the service on 14.3.1992 and you
are not found fit to confirm.
Therefore, your services are
terminated from today."
The termination order was challenged by the respondent
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before the Labour Court. Agreeing with the contention of the
appellant the Labour Court held that "there is no dispute
regarding the proposition of law that termination of
probationer of his service by the employer after making
over-all assessment was legal and justified". But it held
that the impugned order was not an order of discharge
simplicitor as it was stated in the order that the work of
the respondent was not found satisfactory and, therefore, it
was necessary to hold a domestic inquiry before passing that
order. It therefore, held that the termination order was bad
and ordered reinstatement with full back wages.
The appellant challenged that order before the High
Court. It was contended before the High Court that as the
respondent was appointed on probation it was not necessary
for it to hold an inquiry before terminating his services as
he was not found fit for being continued in service. The
High Court also proceeded on the basis that the respondent
was appointed on probation. But it held that his services
could not have been terminated unless his work was found to
be unsatisfactory. if further held that in order to sustain
the order it was necessary for the appellant to adduce
evidence to show that the work of the respondent was not
satisfactory. As such evidence was not led before the Labour
Court or before the High Court it held that the action of
the Management was arbitrary and not sustainable in law. The
writ petition was therefore , dismissed.
From the letter of appointment it is quite clear that
the respondent was appointed on probation. The High Court
was also inclined to take that view and for that reason it
did not uphold that part of the award of the labour Court
whereby it was held that Section 25-F of the Industrial
Disputes Act applies to the facts of the case. The High
Court did not agree with the finding of the Labour Court
that the order of termination was not an order of discharge
simplicitor as it was stated in it that "you are not found
fit to confirm" and, therefore, it was necessary to hold a
department inquiry. It however held that it was necessary
for the appellant to produce material to show that
respondent’s performance was not satisfactory and as no
such material was produced the order of termination was bad.
We find, as disclosed by the award of the Labour Court, that
the appellant had examined two witnesses, Satish Dudeja and
Om Prakash to prove that his work was not satisfactory. It
was, therefore, not correct to say that no evidence was led
by the appellant to prove that the work of the respondent
was not satisfactory. Both the witnesses had clearly stated
that he was found negligent in his work and because of his
negligence he had met with an accident in the factory
premises. It was not the case of the respondent that the
action of the employer was malafide. The Labour Court had
also not held that the satisfaction of the management was
vitiated by malafides. It had struck down the order of
termination on the ground that it was stigmatic and,
therefore, it could not have been passed without holding a
domestic inquiry. The High Court rightly did not accept that
finding. What the High Court failed to appreciate was that
it was not open to it to sit in appeal over the assessment
made by the employer of the performance of the employee.
Once it was found that the assessment made by the employer
was supported by some material and was not malafide it was
not proper for the High Court to interfere and substitute
its satisfaction with the satisfaction of the employer. The
High Court was also wrong in holding that in order to
support its satisfaction it was necessary for the appellant
to produce some reports or communication or other evidence
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to show that performance of the respondent was below the
expected norms. We find that the whole approach of the High
Court was wrong and, therefore, the order passed by it will
have to be set aside. We, therefore, allow this appeal, set
aside the judgment and order passed by the High Court and
also the award passed by the Labour Court and hold that the
impugned termination order was validly passed by the
appellant.