Harshadkumar Induprasad Chaturvedi vs gujarat agro industries corp. Ltd.

Honourable Mr. Justice J.B. Pardiwala

By way of this petition preferred under Articles 226 and 227 of the Constitution of India, the petitioner seeks to challenge the award passed by the Labour Court, Ahmedabad dated 10th July 2002 in Reference (LCA) No.1113/1991, whereby the Labour Court rejected the Reference of the petitioner.

Facts in brief relevant for the purpose of deciding this petition can be summarised as under:

The petitioner was appointed as Assistant (Accounts) by respondent - Corporation vide appointment order dated 2nd March 1987. The terms of appointment would suggest that the petitioner was appointed on probation for a period of six months and on satisfactory completion of service he would have been confirmed. The letter of appointment also provides that during the probation period if the services are not found to be satisfactory then the petitioner would be liable to be terminated.

It appears that the petitioner joined the services with the Corporation accepting the terms of the appointment. The Corporation being not satisfied with the overall performance of the petitioner, thought fit to terminate the services of the petitioner and accordingly vide order dated 16th September 1987 relieved the petitioner from the service of the Corporation with effect from 16th September 1987.

3.Record reveals that before taking this decision, the authority concerned took into consideration the performance appraisal report, which reads as under :

GUJARAT AGRO-INDUSTRIES CORPORATION LIMITED

PERFORMANCE APPRAISAL FOR EMPLOYEES UNDER PROBATION

PART-I

(To be filled in by administration Divn)

1) Name of Employee : Shri H.I.Chaturvedi

2) Designation : Assistant (Accounts)

3) Division/Unit to : Management Division Attached.

4) Date of Joining : 17-3-1987

5) Probation period to : 16-9-1987 expire on

Place : Ahmedabad

Date : 7-8-1987 sd/-

Manager (P&A)

PART-II

(To be filled in by Manager (Audit) & D.M. (Fin.) & sent back to administration Division atleast 15 days before expiry of probation period of the employee)

Attendance & Punctuality : Punctual

Devotion to duty : Sincere

Efficiency & Work : Requires constant performance in duty supervision/guidance assigned and as he lacks understanding of accounting procedure he is not able to carry out the work assigned efficiently.

Intelligence & general : Below average.

Physical fitness : good.

Whether any Domestic : No. enquiry pending ?

Whether any major/minor : No. punishment inflicted

Recommendation of the : Inspite of guidance Reporting Executive and close supervision he has not shown any sign of improvement during the probation period and he is not suitable for the post of Asstt (Accounts).

Place : Ahmedabad sd/-

Signature & Designation

Date : 7-9-87 of Reporting Executive.

Aggrieved by the order passed by the Corporation relieving the petitioner from services, it appears that the petitioner preferred Special Civil Application No.6321/1987 which was not entertained in view of the alternative remedy available with the petitioner. After the petition was withdrawn in 1987, almost after a period of 4 years, the petitioner raised industrial dispute which gave rise to the reference bearing Refernce (LCA) No.1113/1991.

The Reference was adjudicated and vide order dated 10th July 2002, the Labour Court, Ahmedabad rejected the Reference. At that stage, the petitioner preferred this petition challenging the award.

I have heard learned counsel Mr.Mukul Sinha appearing for the petitioner and learned counsel Ms.P.J.Davawala appearing for the respondent - Corporation.

Learned counsel for the petitioner vehemently submitted that the Labour Court as committed serious error in rejecting the Reference. He would submit that the Labour Court, except quoting citations of the Supreme Court and various High Courts, has not discussed anything as regards the legality or illegality of the termination. Learned advocate Mr.Sinha voiced serious grievance as regards the fact that the petitioner was appointed as an Accountant in the Accounts Department but was forced to work in the Audit Department and the petitioner had no sufficient experience of the audit section and, therefore, the performance which was evaluated cannot be said to be just and proper. He would submit relying on a judgment of this High Court in the case of Pradyuman Sinh Indrasinh Vs. State, that it cannot be gainsaid that some assessment of the suitability or otherwise of a person appointed on probation is necessary before it can be determined whether he should be confirmed or not. What should be the method and manner of assessment of his performance depends on the nature of the services, the function assigned, the duties to be discharged and the powers which an incumbent of the post enjoys. He would submit relying on the deposition of the witnesses examined by the Corporation that as a matter of fact relieving the petitioner on the ground that his performance was poor and was not satisfactory was a very lame excuse but the true reason was that there was no work in the department and if that is the case, it would amount to retrenchment of a workman under the guise of terminating the services of a probationer. He would submit that if it amounts to retrenchment then a procedure is to be followed as laid under the Industrial Disputes Act. He would also submit that as such there is no evidence on record to even remotely suggest that the performance of the petitioner was not satisfactory or was poor except the appraisal report which is on record. He would submit that if at all the Corporation wanted to rely on such report then the person who filled in the report and has signed the appraisal report ought to have been examined and the report should have been proved through the author of the same so that the petitioner would have got an opportunity to cross-examine the person concerned so far as the aspect of objective assessment of performance is concerned. He would submit that the appraisal report could not have been produced through another witness of the Corporation.

Per contra, learned counsel Ms.Davawala vehemently submitted that there is no merit in this petition and the same deserves to be rejected mainly on two grounds. She vehemently submitted that the petitioner''s services were terminated or rather the petitioner was relieved from service way back in 1987. Almost more than 23 years have lapsed since then. She would submit that as such there was a gross delay at the end of the petitioner in even approaching the Labour Court under the Industrial Disputes Act because even after withdrawing the petition from the High Court to avail of the remedy the petitioner requested for a reference almost after a period of 4 years i.e. in 1991. She would further submit that there is ample evidence on record to suggest that the petitioner was well conversant with the work of audit and he could not have redressed grievance after accepting the appointment that he ought not to have been placed in the Audit Department or ought not to have been assigned the work of audit. She would submit that there is evidence to suggest that the petitioner had worked at various places and had carried out the work of auditing. She would further submit that the performance appraisal report has been duly proved in accordance with law by producing the same during the course of recording of the evidence and which has been exhibited at Exh.45. She would submit that it is too late in the day for the petitioner to object admissibility of such a report because at the time when the document was being exhibited there was no objection raised by the petitioner and, therefore, at this stage the objection as regards the admissibility of the document cannot be raised. She would further submit that in any case in such type of matters, strict rules of evidence would not apply and all that the Court needs to examine is, whether any jurisdictional error is said to have been committed by the Labour Court in rejecting the reference. She also submitted that the law of probation is well-settled. A probationer would have no right to continue in service and cannot question the termination except on the ground that the same is stigmatic and based on some misconduct which has been made foundation for relieving the petitioner from the services. She submitted that the petition deserves to be rejected.

It is an undisputed fact that the appointment of the petitioner was as a probationer and the period of probation as prescribed in the letter of appointment was six months. It is also undisputed that the petitioner accepted the appointment with terms and conditions and joined the service. It is a settled position of law that during the period of probation if the employer finds that the work of the employee is not satisfactory, then in that case, it is always open for the employer to terminate the services during the period of probation. In the present case, it is evident that the work of the petitioner was not found to be satisfactory. It has been noted in the performance appraisal report that the petitioner required constant supervision and guidance as he lacked understanding of accounting procedure and was not able to carry out the work assigned efficiently. It has been further observed that inspite of guidance and close supervision, he has not shown any sign of improvement during the period of probation and is not suitable for the post of Assistant (Accounts).

This Court under Article 226 of the Constitution of India cannot go into the correctness of the evaluation or appraisal made by the authority concerned. As a matter of fact, there is no challenge as such so far as the performance appraisal report is concerned except the fact that it ought not to have exhibited and ought not to have read in evidence because it has not been duly proved in accordance with law.

To substantiate this contention, learned advocate Mr.Sinha submitted that in fact the author of this report i.e. the person who has prepared this report has not been examined and the report ought to have been produced through the author.

It is too technical a contention to be accepted. As I have earlier said that at the time when this document came to be exhibited no objection was raised and it was permitted to be read into evidence. Now at this stage this objection as regards the admissibility of a document cannot be canvassed.

I also do not find any merit in the allegation that in fact there was no work with the department and that is the reason why the petitioner''s services were terminated amounting to retrenchment.

I also do not find any cogent or convincing explanation for the delay in approaching the Labour Court after the termination.

In the overall view of the matter, I do not find any good ground to interfere and grant any relief to the petitioner.

In the above view of the matter, this petition fails and the same is hereby rejected with no order as to cost. Rule is discharged.