Full Judgment Text
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IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of Decision: 27 August, 2019
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+ W.P.(C) 3422/2014 & CM No.7040/2014 & 30976/2019
M/S DECCAN CHARTERS PRIVATE LIMITED ..... Petitioner
Through: Mr. Praveen Kumar, Advocate.
versus
SARITA TIWARI ..... Respondent
Through: Mr. Rishi Jain, Advocate.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
J U D G M E N T
1. The petitioner has challenged the ex-parte award of the Labour Court
whereby the Labour Court awarded reinstatement with full back wages to
the respondent.
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2. The petitioner appointed the respondent as “Trainee AME” on 01
August, 2006 at a monthly salary of Rs.15,000/-. The terms of the
appointment of the respondent are contained in the appointment letter dated
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01 August, 2006. Clause D of the appointment letter provides that the
respondent shall be on probation for three months from the date of joining
and she shall be deemed to continue on probation until confirmed in writing
and such period, after initial period of probation, shall be deemed to be an
extension of probation. Clause E of the appointment letter provides that the
respondent’s services can be terminated during the probation or extended
W.P.(C) 3422/2014 Page 1 of 12
probation by giving seven days notice in writing and payment in lieu thereof.
Clauses D and E of the appointment letter are reproduced hereunder:
“D) You will be on probation for a period of three months from the
date of your joining. Until confirmed in writing, you shall be deemed
to continue on probation and any such period after initial period of
probation shall be deemed to be extension of probation.
E) During the period of your probation or extended probation
your contract may be terminated by either side without assigning any
reason thereof and by giving seven days notice in writing or payment
in lieu thereof.”
(Emphasis supplied)
3. The job profile of the respondent was training oriented. The job
profile of the respondent is given in para 3(a) of the writ petition which has
not been disputed by the respondent in corresponding para 3(a) of reply on
merits in the counter affidavit. The relevant portion of para 3(a) of the writ
petition is reproduced hereunder:
“3(a) … The job profile of Respondent was training oriented and she
was supposed to do following things:
i) Follow the good maintenance practice as per (Airworthiness
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Advisory Circular) AAC No.3 of 2000 Date: 3 February, 2000.
ii) Be familiar with current regulations (CAR, AAC, AIC, Aircraft
Rules etc.), quality control cum quality assurance manual,
maintenance system manual and engineering organisation manual.
iii) Familiarise with AMM, IPC, WDM, CMM, SB, SILs, AD.
iv) To learn about the basics of aircraft system since she was not
having sufficient knowledge of Avionics.
v) Read and understand the avionics equipment installed on
aircraft, their functions and testing procedures.
vi) Understanding the aircraft system block diagrams, wiring
diagrams and troubleshoot guides.
vii) To assist the Engineer for carrying out the
scheduled/unscheduled inspection on aircraft Avionics system.
viii) Have proper knowledge of tools/test equipment and should
have thorough knowledge to use/operate them.
W.P.(C) 3422/2014 Page 2 of 12
ix) Keep the test equipment, tools and equipment clean, neat and
tidy.
x) Ensuring the required tools, test equipments and required
literatures/documents/procedures/task cards are available for the
work.
xi) Understand the safety requirements and follow it while working
on aircraft.
xii) Carry out the work as per concerned AME‟s instructions;
xiii) Removal and installation of avionics equipment as and when
required under supervision.
xiv) Securing of panels, clearing of tools, personal belongings from
the aircraft and ensuring no loose articles left behind.
xv) Providing support to carry out defect analysis and rectification.
xvi) Keeping record of work carried out by the individual under
supervision by maintaining the personal logbook duly signed by the
Engineer concerned.”
(Emphasis Supplied)
4. According to the petitioner, the respondent’s performance was not
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satisfactory and therefore, she was not confirmed; on 13 October, 2006 i.e.
within the initial period of probation, a warning letter was issued to the
respondent that she was not punctual in reporting to the office and had little
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interest in work; on 07 August, 2007, the petitioner issued a show cause
notice to the respondent on the complaint made by Senior AME who
informed the management that the respondent misbehaved with him when he
was giving maintenance tips to the respondent to improve her work standard,
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and the petitioner terminated her service on 09 August, 2007. The
respondent raised an industrial dispute which was referred to the Labour
Court.
5. The Labour Court held the termination of the respondent to be illegal.
The Labour Court granted reinstatement with full back wages and continuity
of service along with the consequential benefits to the respondent.
W.P.(C) 3422/2014 Page 3 of 12
6. Learned counsel for the petitioner urged at the time of the hearing that
the respondent was on probation and was not a ‘ workman‟ within the
definition of Section 2(s) of the Industrial Disputes Act; that the appointment
letter clearly provides that the probation would continue unless the
confirmation is in writing; the appointment letter provides that the services
during the probation period can be terminated by seven days’ notice; and
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on 07 August, 2007, the respondent misbehaved with Senior AME when he
was giving maintenance tips to the respondent to improve her work standard.
It was further submitted that there is no infirmity in the termination of the
respondent. Reliance is placed on Management of M/s. Otis Elevator
Company (India) Ltd. v. Presiding Officer, Industrial Tribunal-III, 2003
(68) DRJ 528 and Raj Kumar Kaushik v. The Bharat Scouts and Guides ,
(2017) 239 DLT 173.
7. Learned counsel for the respondent urged at the time of the hearing
that the respondent is a workman within the meaning of Section 2(s) of the
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Industrial Disputes Act; the notice dated 07 August, 2007 was issued to her
as one of the senior staff, with malice and intention to hurt her financially
and mentally, instigated his junior to issue the show cause notice; one week
time was given to the respondent to file the reply but instead of waiting for
the reply and without affording an opportunity or time to reply to the notice
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dated 07 August, 2007, the petitioner terminated her service on 09
August, 2007 in total disregard of the principles of natural justice; and there
was no infirmity in the award of reinstatement with back wages granted by
the Labour Court.
W.P.(C) 3422/2014 Page 4 of 12
8. Section 2(oo)(bb) of Industrial Disputes Act reads as under:-
“ Section 2(oo) - “retrenchment” means the termination by the employer of
the service of a workman for any reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary action, but does not include -
(a) ………………………………..
(b) ………………………………..
(bb) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and the
workman concerned on its expiry or of such contract being terminated
under a stipulation in that behalf contained therein; or
(c) ………………………………….”
9. The law with respect to the termination of the service of a probationer
is well settled that the probationer is not a workman within the meaning of
Section 2(s) of the Industrial Disputes Act and the service of a probationer
can be terminated during the period of probation in terms of the appointment
and such termination does not amount to retrenchment within the meaning of
Section 2 (oo) of the Industrial Disputes Act.
10. In M. Venugopal v. Divisional Manager, (1994) 2 SCC 323, the
service of the workman was terminated during the extended probation
period. The Supreme Court held that the termination before the expiry of the
period of probation fell within the ambit of Section 2(oo)(bb) of the
Industrial Disputes Act and it did not constitute retrenchment.
11. In Escorts Limited v. Presiding Officer, (1997) 11 SCC 521, the
workman was appointed on temporary basis for a period of two months. The
terms of appointment enabled the employer to terminate the services at any
stage without assigning any reason. The Supreme Court held that the
termination of service under the said term, even though effected before the
expiry of the specified period, did not amount to retrenchment.
W.P.(C) 3422/2014 Page 5 of 12
12. In Kalyani Sharp India Ltd. v. Labour Court No. 1 Gwalior, (2002) 9
SCC 655, the trainee was terminated during the period of probation. The
Supreme Court held that there was no infirmity in termination of trainee on
probation. The relevant portion of the said judgment is reproduced 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 to 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 services are not
satisfactory, 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 services 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. Escorts' case (supra) 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.”
13. In Mahinder Singh v. Indian Airlines Ltd., 2016 SCC OnLine Del
5008, the Division Bench of this Court following M. Venugopal (supra),
Escorts Limited (supra) and Kalyani Sharp India Ltd. (supra) held that the
termination of service of a probationer in terms of the stipulation contained
in the contract of employment does not amount to " retrenchment " within the
meaning of Section 2(oo) of the Industrial Disputes Act since it is covered
by clause (bb) of Section 2(oo) of the Act and Section 25-F of the Act does
W.P.(C) 3422/2014 Page 6 of 12
not get attracted in such cases. Relevant portion of the said judgment is
reproduced hereunder:
“14. In view of the aforesaid judgments of the Supreme Court
governing the field it can be safely culled out that termination of
service of a probationer in terms of the stipulation contained in
the contract of employment does not tantamount to
“retrenchment” within the meaning of Section 2(oo) of the Act
since it is covered by clause (bb) of Section 2(oo) of the Act.
Thus, Section 25-F of the Act does not get attracted in such
cases.”
(Emphasis Supplied)
14. In Mahinder Singh (supra), the Division Bench rejected the
workman’s contention that he would be treated as deemed confirmed
employee as his probation period had come to an end and the same was not
extended further. The Division Bench held that the workman was not a
confirmed employee. Relevant portion of the said judgment is reproduced
hereunder:
“15. The submission of learned counsel for the appellant that the
probation period of the appellant came to an end on
31.5.1988/28.6.1988 as the same was not extended further is bereft of
any merit as there is nothing in the terms of the letter of appointment
from which it can be construed that after expiry of the period of
probation, the appellant would be treated as a „deemed confirmed
employee‟.
16. Substantially similar question arose in Head Master, Lawrence
School Lovedale v. Jayanthi Raghu, AIR 2012 SC 1571 In that case,
the first respondent i.e. Jayanthi Raghu was appointed on the post of
Mistress with effect from 01.09.1993. It was stipulated in the letter of
appointment that she would be on probation for a period of two years
which may be extended for another one year, if necessary. In
November, 1995, while she was working as a Mistress in the
appellant's school, as alleged, she had received some amount from
one Nathan. A meeting was convened on 09.09.1997 and in the
W.P.(C) 3422/2014 Page 7 of 12
proceedings, certain facts were recorded. The said allegations though
treated „stigmatic‟ by Ld. Single Judge, yet the Division Bench on a
studied scrutiny of the factual scenario, opined that the same do not
cast any „stigma‟. However, the Division Bench, concurred with the
ultimate conclusion of the Ld. Single Judge on the basis that by virtue
of the language employed in Rule 4.9 of the Rules of Lawrence
School, Lovedale (Nilgiris), she had earned the status of a confirmed
employee having satisfactorily completed the period of probation and,
therefore, her services could not have been dispensed with without
holding an enquiry.
Rule 4.9 was to the following effect:
“4.9 All appointments to the staff shall ordinarily be made on
probation for a period of one year which may at the discretion
of the Headmaster or the Chairman in the case of members of
the staff appointed by the Board be extended up to two years.
The appointee, if confirmed, shall continue to hold office till
the age of 55 years, except as otherwise provided in these
Rules. Every appointment shall be subject to the conditions
that the appointee is certified as medically fit for service by a
Medical Officer nominated by the Board or by the Resident
Medical Officer of the School.”
17. The fulcrum of the controversy was whether the appellant school
was justified under the Rules treating the respondent teacher as a
probationer and not treating her as a deemed and confirmed
employee. The Supreme Court referred to the following earlier
decisions operating in the field:
“10. ……In Sukhbans Singh v. State of Punjab, AIR 1962 SC
1711, the Constitution Bench has opined that a probationer
cannot, after the expiry of the probationary period, automatically
acquire the status of a permanent member of the service, unless of
course, the rules under which he is appointed expressly provide
for such a result.
11. In G.S. Ramaswamy v. Inspector-General of Police,
Mysore3, AIR 1966 SC 175 another Constitution Bench, while
dealing with the language employed under Rule 486 of the
Hyderabad District Police Manual, referred to the decision in
Sukhbans Singh (supra) and opined as follows:-
W.P.(C) 3422/2014 Page 8 of 12
“It has been held in that case that a probationer cannot
after the expiry of the probationary period automatically
acquire the status of a permanent member of a service,
unless of course the rules under which he is appointed
expressly provide for such a result. Therefore even though
a probationer may have continued to act in the post to
which he is on probation for more than the initial period of
probation, he cannot become a permanent servant merely
because of efflux of time, unless the Rules of service which
govern him specifically lay down that the probationer will;
be automatically confirmed after the initial period of
probation is over. It is contended on behalf of the
petitioners before us that the part of r. 486 (which we have
set out above) expressly provides for automatic
confirmation after the period of probation is over. We are
of opinion that there is no force in this contention. It is true
that the words used in the sentence set out above are not
that promoted officers will be enable or qualified for
promotion at the end of their probationary period which
are the words to be often found in the rules in such eases;
even so, though this part of r. 486 says that “promoted
officers will be confirmed at the end of their probationary
period”, it is qualified by the words “if they have given
satisfaction”. Clearly therefore the rule does not
contemplate automatic confirmation after the probationary
period of two years, for a promoted officer can only be
confirmed under this rule if he has given satisfaction.”
12. In State of Uttar Pradesh v. Akbar Ali Khan, AIR 1966 SC
1842, another Constitution Bench ruled that if the order of
appointment itself states that at the end of the period of probation,
in the absence of any order to the contrary, the appointee will
acquire a substantive right to the post even without an order of
confirmation. In all other cases, in the absence of such an order or
in the absence of such a service rule, an express order of
confirmation is necessary to give him such a right. Where after the
period of probation, an appointee is allowed to continue in the
post without an order of confirmation, the only possible view to
take is that by implication, the period of probation has been
W.P.(C) 3422/2014 Page 9 of 12
extended, and it is not a correct proposition to state that an
appointee should be deemed to be confirmed from the mere fact
that he is allowed to continue after the end of the period of
probation.
13. In State of Punjab v. Dharam Singh, AIR 1968 SC 1210, the
Constitution Bench, after scanning the anatomy of the Rules in
question, AIR 1966 SC 1842 AIR 1968 SC 1210 addressed itself to
the precise effect of Rule 6 of the Punjab Educational Service
(Provincialised Cadre) Class III Rules, 1961. The said Rule
stipulated that the total period of probation - including extensions,
if any, shall not exceed three years. This Court referred to the
earlier view which had consistently stated that when a first
appointment or promotion is made on probation for a specific
period and the employee is allowed to continue in the post after
the expiry of the period without any specific order of confirmation,
he should be deemed to continue in his post as a probationer only
in the absence of any indication to the contrary in the original
order of appointment or promotion or the service rules. Under
these circumstances, an express order of confirmation is
imperative to give the employee a substantive right to the post and
from the mere fact that he is allowed to continue in the post after
the expiry of the specified period of probation, it is difficult to hold
that he should be deemed to have been confirmed. When the
service rules fixed a certain period of time beyond which the
probationary period cannot be extended and an employee
appointed or promoted to a post on probation is allowed to
continue in that post after completion of the maximum period of
probation without an express order of confirmation, he cannot be
deemed to continue in that post as a probationer by implication. It
is so as such an implication is specifically negatived by the service
rule forbidding extension of the probationary period beyond the
maximum period fixed by it.”
18. Thereafter, it was held as under:
“The status of confirmation has to be earned and conferred. Had
the rule making authority intended that there would be automatic
confirmation, Rule 4.9 would have been couched in a different
language. That being not so, the wider interpretation cannot be
placed on the Rule to infer that the probationer gets the status of a
W.P.(C) 3422/2014 Page 10 of 12
deemed confirmed employee after expiry of three years of
probationary period as that would defeat the basic purpose and intent
of the Rule which clearly postulates “if confirmed”. A confirmation,
as is demonstrable from the language employed in the Rule, does not
occur with efflux of time. As it is hedged by a condition, an affirmative
or positive act is the requisite by the employer. In our considered
opinion, an order of confirmation is required to be passed. The
Division Bench has clearly flawed by associating the words „if
confirmed‟ with the entitlement of the age of superannuation without
appreciating that the use of the said words as a fundamental qualifier
negatives deemed confirmation.”
19. In the instant case also, the appellant was not conferred with the
status of confirmed employee. From Clause 4 of the letter of
appointment, it cannot be inferred that after expiry of period of
probation for a period of one year, the petitioner got the status of a
confirmed employee. Since, he was still on probation, and in terms of
Clause 4 of the Appointment Letter, his services have been terminated
in view of his „unsatisfactory performance‟ same does not tantamount
to „retrenchment‟ within the meaning of Section 2(oo) of the Act.”
(Emphasis Supplied)
15. In Kamal Kumar v. J.P.S. Malik, Presiding Officer, 1998 (45) DRJ,
Management of M/s Otis Elevator Co. (India) Ltd. vs. Presiding Officer,
Industrial Tribunal-III, 2003 LLR 701, R. Kartik Ramchandran v.
Presiding Officer, Labour Court , 2006 LLR 223 and Raj Kumar Rastogi v
P.O. Labour Court-X ,
(2015) 221 DLT 242, this Court held that a trainee/
probationer was not a workman within the meaning of Section 2(s) of the
Industrial Disputes Act.
16. In the present case, the respondent was a “Trainee AME” on
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probation for a period of three months from the date of joining i.e. 01
August, 2006. Clause D of the appointment letter provides that the petitioner
shall be deemed to continue on probation until confirmed in writing and
such period, after initial period of probation, shall be deemed to be extension
W.P.(C) 3422/2014 Page 11 of 12
of probation. Clause E of the appointment letter provides that the service of
the petitioner can be terminated without assigning any reason during the
probation or extended probation period. Admittedly, the respondent has not
been confirmed in writing and therefore, the respondent shall be deemed to
be on extended probation period. Following the principles laid down in the
aforesaid judgments, this Court is of the view that the petitioner is not a
workman within the definition of 2(s) of the Industrial Disputes Act and
there is no infirmity in her termination during the extended probation period.
17. The writ petition is allowed and the impugned award of the Labour
Court granting reinstatement with back wages to the respondent is set aside.
However, the amount paid by the petitioner to the respondent under Section
17-B of the Industrial Disputes Act shall not be recovered.
18. The pending applications are disposed of.
J.R. MIDHA, J.
AUGUST 27, 2019
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W.P.(C) 3422/2014 Page 12 of 12