Anil Kumar vs Punjabi University, Patiala & Ors.

KIRTI SINGH, J. (ORAL)

The present writ petition has been filed under Articles 226/227 of the Constitution of India for quashing the Award dated 26.09.2016 (Annexure P-1) passed by the Presiding Officer, Industrial Tribunal, Patiala in Reference No. 133/2013, and for quashing the termination order dated 15.11.2007 (Annexure P-4) issued by respondent No. 1.

The pleaded facts of the case are that the petitioner was appointed as a Data Entry Operator-cum-Clerk by respondent No. 1 vide letter dated 20.10.2006 and joined service with respondent No. 2 on 23.10.2006. He worked continuously upto 17.07.2007. On 18.07.2007 he proceeded on casual leave to visit his family at Patiala and thereafter sought leave without pay for one month, citing domestic circumstances and his own illness, in support whereof a medical certificate was furnished. The petitioner remained on leave from 18.07.2007 to 07.11.2007. On 08.11.2007, when the petitioner sought to resume duty, he was not permitted to join and was directed to obtain a fresh posting order from respondent No.1. Despite repeated requests, no such posting order was issued to him. In the meantime, respondent No.1 had issued a one month notice dated 24.08.2007 to the petitioner in terms of Clause 8 of his appointment letter, and thereafter issued order No. 27843 dated 15.11.2007 (Annexure P-4), terminating his services with effect from 24.09.2007.

The petitioner had earlier filed a civil suit for declaration against non-issuance of a posting order, during the pendency of which respondent No. 1 disclosed the fact of his termination. The petitioner withdrew the suit on 24.07.2012, reserving liberty to seek an appropriate remedy. He thereafter raised an industrial dispute vide demand notice dated 28.12.2012, which culminated in Reference No. 133/2013 before the ld. Industrial Tribunal, Patiala.

On an appreciation of the evidence, the ld. Tribunal held termination of the petitioner’s service, during the probation period strictly in terms of the contract of employment, fell within the exclusionary clause of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 and did not amount to retrenchment. Consequently, Section 25-F was held not to be attracted, and the reference was answered against the workman.

Learned counsel for the petitioner contends that the impunged Award suffers from non-application of mind, that the notice and termination order were never validly served upon the petitioner, having been sent by ordinary post, and that the termination order dated 15.11.2007, purporting to take effect from 24.09.2007, has an impermissible retrospective operation, contrary to the settled law.

Per contra, learned counsel for respondents No.1 and 2 has opposed the writ petition and has supported the Award dated 26.09.2016.

I have heard learned counsel for the parties and perused the record.

It is well settled that the jurisdiction of this Court under Articles 226/227 of the Constitution of India, while examining an award passed by the ld. Labour Court/Industrial Tribunal, is supervisory and not appellate in nature. This Court does not sit as a court of appeal over the findings of fact recorded by the ld. Tribunal, nor does it re-appreciate the evidence to substitute its own view for the one taken by the ld. Tribunal. Interference is warranted only where the finding recorded is shown to be perverse, based on no evidence, or arrived at by ignoring material evidence on record, and not merely because another view is possible.

Tested on the aforesaid parameters, the finding of the ld. Tribunal that the petitioner's services were terminated strictly in terms of Clause 8 of the appointment letter, is a finding of fact founded on the appointment letter Ex.W3 itself. Trite to say that once the termination is referable to the terms of the contract of employment and falls within the exclusionary clause of Section 2(oo)(bb) of the Industrial Disputes Act, 1947, it does not amount to retrenchment, and the requirement of compliance with Section 25-F, including issuance of a charge sheet or holding of an enquiry, does not arise.

On the question of service, the dispatch registers Ex.M8 and Ex.M10 were proved before the ld. Tribunal to show that both the one month notice dated 24.08.2007 and the termination order dated 15.11.2007 were despatched to the address of the petitioner, and the petitioner in his own cross-examination admitted the correctness of that address. In the absence of any stipulation in the appointment letter requiring service by registered post alone, the mode of despatch by ordinary post, duly recorded in the dispatch register and corroborated by the postal charges reflected therein, cannot by itself be treated as no service, particularly when the correctness of the address stands admitted by the petitioner himself.

As regards the plea of retrospective operation, the notice dated 24.08.2007 itself carried the stipulation that the employment would stand terminated on expiry of one month from the date of notice, or on payment of salary in lieu thereof. The termination, therefore took effect on expiry of the notice period, that is, on 24.09.2007, and the order dated 15.11.2007 merely recorded this position. It does not purport to terminate the petitioner for any period predating the notice itself. The principle relied upon by the petitioner is attracted where an employer seeks to terminate a workman with effect from a date preceding the issuance of any notice or order altogether, which is not the factual situation in the present case.

Learned counsel for the petitioner has not been able to point out any perversity in the appreciation of evidence by the ld. Tribunal, nor has he been able to demonstrate that the finding recorded is based on no evidence. No case for interference in the exercise of writ jurisdiction is made out.

In view of the aforesaid discussion, this Court finds no merit in the present writ petition. The Award dated 26.09.2016 passed by the ld. Industrial Tribunal and the consequent termination order dated 15.11.2007 (Annexure P-4), do not warrant any interference.

The present writ petition is accordingly dismissed. Pending application(s), if any, also stand disposed of.