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Judgment
M. Venugopal, J.—The Appellant/1st Respondent/Petitioner has projected this Writ Appeal as against the order dated 03.12.2009 in W.P.
No. 6970 of 2000 passed by the Learned Single Judge in allowing the Writ Petition filed by the 1st Respondent/Bank (Employer).
The 2nd Respondent/Industrial Tribunal, in its Award dated 07.10.1999 in I.D. No. 5 of 1996 filed by the Appellant/Petitioner, has, inter alia,
held that ''the total period of employment of the Petitioner was only 9 months and thathis termination is void ab initio'' and resultantly, orderedfor
his reinstatement in service with backwages, continuityof service and other attendant benefits and accordingly,passed an Award thereto.
The Learned Single Judge, while allowing the Writ Petition filed by the 1st Respondent/Bank, has, among otherthings, observed that ''the 1st
Respondent (Appellant) wasonly a Probationer and his service was terminated duringthe time of such probation on account of
unsatisfactoryperformance. The said aspect has not been considered by theIndustrial Tribunal'' and further opined that ''the Tribunalin para 8 of the
Award rendered a factual finding that the1st Respondent (Appellant) has continuously worked for aperiod of 240 days. However, the Tribunal
omitted to notethat the period of such service was only as Probationer andthe service was terminated only during the course ofprobation.
Therefore, there is No. question of violation of Section 25-F of the Industrial Disputes Act as stated bythe Industrial Tribunal'' and resultantly, set
aside the Award dated 07.10.1999 in I.D. No. 5 of 1996 passed by the 2nd Respondent/Industrial Tribunal and consequently, allowed the Writ
Petition.
The Learned Counsel for the Appellant/1st Respondent(Petitioner in I.D. No. 5/1996) submits that the Appellantwas appointed as an
Apprentice Clerk and Trainee in the 1st Respondent/Bank as per letter dated 30.04.1982 and later,after completing the apprentice training
satisfactorily, hewas posted at Kumbakonam Branch as Clerk. While theAppellant was working in the said branch on 01.02.1983, the1st
Respondent/Bank issued an order to relieve the Appellantfrom the service of the Bank on the ground that his servicewas not satisfactory, but these
aspects have not beenappreciated by the Learned Single Judge while passingorders in the Writ Petition.
It is the contention of the Learned Counsel for the Appellant/1st Respondent that when the termination orderdated 01.02.1983 was passed by
the 1st Respondent/Bank, ithad not assigned any valid reasons and also not discussedas to how the Bank arrived at an opinion that theAppellant''s
service was not satisfactory.
Advancing his arguments, it is the contention of the Learned Counsel for the Appellant/1st Respondent that evenassuming, without admitting, the
Appellant''s service was not satisfactory, the 1st Respondent/Bank could notterminate the Appellant/Employee''s service except duringthe
probation period if the employee committed anymisconduct, without issuance of any show cause notice forany alleged misconduct. However, in
the present case, the1st Respondent/Bank passed the termination order withoutissuance of show cause notice and the same is an illegaland
arbitrary one.
Expatiating his submissions, the Learned Counsel for the Appellant/1st Respondent contends that even prior totraining period, the 1st
Respondent/Bank satisfied with theAppellant''s performance appointed him in the Branch officeand paid him the salary, included his name in the
ProvidentFund and Family Pension Scheme and as such, the question ofAppellant''s service being not satisfactory does not ariseon any score.
The Learned Counsel for the Appellant also submitsthat the Appellant was appointed at Kumbakonam Branch ofthe 1st Respondent/Bank by
means of an order dated15.05.1982 and he was paid a monthly salary of Rs. 300/-andthe 1st Respondent/Bank also received Rs. 500/-as
securitydeposit besides his name being included in Provident Fundand Family Pension Account.
In response, it is the contention of the Learned Counsel for the 1st Respondent/Bank that the Appellant/1stRespondent (Petitioner) was only a
Probationer and sincehis service to the Bank was not satisfactory and also thathis service was not required by the Bank, he was relievedfrom
service on 07.02.1983 itself as per Ex.M.6-Communication of the Bank dated 01.02.1983 and that the Learned Single Judge has rightly interfered
with the Award dated 07.10.1999 in I.D. No. 5 of 1996 passed by the 2nd Respondent/Industrial Tribunal, Chennai and allowed the Writ
Petition.
The Learned Counsel for the 1st Respondent/Bankbrings it to the notice of this Court that the Appellantfailed in the written test conducted by
the 1st Respondent/Bank twice earlier and for the third test, he had not appeared.
A perusal of Ex.M.4-First Written Test Report dated16.10.1982 shows that the Appellant had not come outsuccessfully in the written test
conducted for the UsualScale of Pay and he secured only 10%. Therefore, hisperformance was graded as very poor. Added further, as
perEx.M.4, the Appellant was informed that as a special casethe Bank is conducting one more test and in the meanwhile,he was advised to go
through the Book of instructions andJob card thoroughly. In Ex.M.5-Second Written Test Report dated 11.01.1983, the Appellant was again
informed that hehad not come out successfully in the written test conductedfor the usual scale of pay and that he secured only 25%. Assuch, his
performance was graded as poor. Here again, hewas informed that the 1st Respondent/Bank is conducting onemore test and moreover, in the
meanwhile, he was instructedto go through the Book of instructions and Job cardthoroughly. In Ex.M.3-Letter of the 1st Respondent/Bankdated
10.03.1983, the Appellant, with reference to hisletter dated 03.03.1983 praying for leave, was informedthat as per Letter dated 01.02.1983
(Ex.M.6) his servicewas No. more required by the Bank from 07.02.1983 andtherefore, they could not sanction the leave since he wasnot in
service.
It is not in dispute that the Appellant/1stRespondent was called for the interview on 29.04.1982 bythe 1st Respondent/Bank. Further, as per
Ex.M.1-AppointmentOrder dated 30.04.1982 issued by the 1st Respondent/Bank, theAppellant was appointed as Apprentice Clerk for a
temporaryperiod of five months. Ex.W.3 is the copy of the TransferOrder dated 15.05.1982 in and by which the Appellant/1st
Respondent/Petitioner was directed to report for duty atthe Kumbakonam Branch of the Bank immediately. Ex.W.8 dated18.06.1993 is the order
of the 1st Respondent/Bank addressedto the Appellant wherein the Appellant has been informedthat his request seeking employment once again
cannot be acceded to. The Appellant/1st Respondent has maderepresentations to the Chairman of the Bank as per Ex.W.11dated 10.01.1985,
Ex.W.13 dated 24.07.1986, Ex.W.17 dated12.04.1989, Ex.W.23 dated 12.03.1991, Ex.W.25 dated10.04.1993 and the General Manager of
the Bank as perEx.W.15 dated 17.02.1988, Ex.W.19 dated 20.11.1989, Ex.W.21dated 24.08.1990. Under Ex.W.8-Order of the 1st
Respondent/Bank, the Appellant was informed that his letter dated27.05.1993 was received but, it cannot be considered. Thatapart, the Bank
went to the extent of stating that theAppellant should not have any correspondence with it eitherin person or through letters and not to waste his
time andmoney.
The Appellant/1st Respondent/Petitioner in I.D. No. 5of 1996 on the file of the 2nd Respondent/IndustrialTribunal, Chennai had challenged his
non-employment as nota justifiable one and hence, prayed for his reinstatementwith backwages, continuity of service and all otherattendant
benefits. The 1st Respondent /Bank before the 2nd Respondent/Industrial Tribunal took the stand that theAppellant was taken as an Apprentice
Clerk temporarily fora period of five months on an allowance of Rs. 300/-permonth, by an order dated 30.04.1982 and he joined the Bankon
07.05.1982. The said order envisages that if theAppellant/1st Respondent completed the apprenticeshiptraining fulfilling the conditions attached
thereto satisfactorily, he would be posted as a probationary Clerkand further that the period of probation would be 12months, which could be
extended by a further period of 3months etc. According to the 1st Respondent/ Bank, theAppellant, including his apprenticeship training, hadhardly
completed 9 months of service. In short, he wasneither in continuous service for a period of one year norhe attained the status of a regular
employee in theservice of the Bank. Therefore, the ingredients of Section25-F of the Industrial Disputes Act, 1947 [relating toConditions
precedent to retrenchment of workmen] will notapply to the facts of the present case.
The plea of the 1st Respondent/Bank is that theAppellant was not in continuous service for a period of oneyear as per Section 25-B of the
Industrial Disputes Act.Also, his training as apprentice could not be considered asservice for this purpose, as the period of trainingundergone by an
apprentice will not tantamount to regularservice rendered by an Employee. In view of the fact thatthe relationship between the Apprentice and the
Employer isnot that of Master and Servant, but that of a Teacher andPupil. Excluding the Apprenticeship training period of fivemonths as per order
dated 30.04.1982, the Appellant hadhardly put in just 4 months service and that too as aProbationer. Therefore, the benefit of Section 25-F of
theIndustrial Disputes Act is of No. avail to the Appellant.
Another stand taken by the 1st Respondent/Bank, inits counter to I.D. No. 5 of 1996, is that the Appellant hadraised the industrial dispute
after an inordinate delay anda stale claim is devoid of any substance. Ex.M.6 is the Relieving Order dated 01.02.1983 issued by the 1st
Respondent/Bank to the Appellant wherein he was informedthat his service was not satisfactory and No. more requiredby the Bank and also he
was relieved from the Bank on07.02.1983 itself.
At this stage, this Court worth recalls the decision of the Hon''ble Supreme Court in Hari Singh Mann v. State of Punjab and Ors. AIR 1974
SCC 2263] at page 2264 & 2265 wherein at paragraph 12 it is observed as follows:
Termination on account ofunsatisfactory record will attract Rule 9of the Punishment Rules. It is obviousthat at the time of confirmationfitness is
a matter to be considered.The order terminating the services isunfitness for appointment at the timeof confirmation, it is not passed onthe ground of
any turpitude likemisconduct or inefficiency. To holdthat the words ""unfit to be appointed""are a stigma would rob the authoritiesof the power to
judge fitness for workor suitability to the post at the time of confirmation. Termination ofservices on account of inadequacy for the job or for any
temperamental orother defect not involving moralturpitude is not a stigma which can becalled discharge by punishment. Fitnessfor the job is one of
the mostimportant reasons for confirmation. Thefacts and circumstances do not showthat there is any stigma attached tothe order of termination.
This Court aptly points out the decision of the Hon''ble Supreme Court in M. Venugopal Vs. The Divisional Manager, Life Insurance
Corporation of India, Machilipatnam, Andhra Pradesh and another, wherein it is held as follows:
The amendments introduced inSection 48 of the Corporation Act haveclearly excluded the provisions of the Industrial Disputes Act so far as
theyare in conflict with the rules framedunder Section 48(2)(cc). The resultwhereof will be that termination of theservice of the Appellant shall not
bedeemed to be a ""retrenchment"" withinthe meaning of Section 2(oo) even ifSub-section (bb) had not beenintroduced in the said section.
OnceSection 2(oo) is not attracted, thereis No. question of application ofSection 25-F on the basis of which the termination of the service of
theAppellant during the period ofprobation is in terms of the order ofappointment read with Regulation 14 of the Regulations, which shall be
deemedto be now Rules u/s 48(2)(cc)of the Corporation Act.
In Life Insurance Corporation of India and Another Vs. Raghavendra Seshagiri Rao Kulkarni, , the Hon''ble Supreme Court has laid down as
follows:
Clause 2 of the letter ofappointment issued to the Respondentclearly stipulates that the Respondentcould be discharged from service at anytime
during the period of probation orextended period of probation, withoutany notice or without assigning anycause.
The period of probation is aperiod of test during which the workand conduct of an employee is undersecurity. If on an assessment of hiswork and
conduct during this period itis found that he was not suitable for the post it would be open to theemployer to terminate his services. Hisservices
cannot be equated with that ofa permanent employee who, on account ofhis status, is entitled to be retained in service and his services cannot
beterminated abruptly without any noticeor plausible cause. This is based onthe principle that a substantiveappointment to a permanent post in
apublic service confers substantiveright to the post and the personappointed on that post becomes entitledto hold a lien on the post. He gets
theright to continue on the post till heattains the age of superannuation or isdismissed or removed from service formisconduct etc. after
disciplinaryproceedings in accordance with therules in which he is given a fair andreasonable opportunity of being heard.He may also come to lose
the post oncompulsory retirement.
It is to be borne in mind that an Employee who isfound to be unsuitable to the need of an Employer cannot bethrust upon the unwilling
Employer. Moreover, if on anassessment of a person''s conduct during the period ofprobation if it is found that he was not suitable for thepost, it
could be open to an Employer to terminate hisservices.
In the decision District Animal Husbandry Officer Bandi and Anr. v. Judge Labour Court Kota and Anr. 2003 L.L.R. 99 : 2003 (96) F.L.R.
532], it is held that ''The termination of a Probationer by making overall assessment of his performance will not amount toretrenchment.''
The termination of a trainee having put in morethan 240 days of service will not amount to retrenchment asper the decision in Executive
Engineer Orissa Life Irrigation Division Dhankenal v. Presiding Officer LabourCourt Bhubaneswar and Ors. 2000 L.L.R. 757].
We deem it fit appropriate to cite the decision ofthe Hon''ble Supreme Court in Rajesh Kumar Srivastava v. State of Jharkhand and Ors.
(2011) 4 MLJ 894 (SC)] wherein, at paragraph 10 and 12, it is laid down as follows:
The records placed before us disclose that at the time when the impugned order was passed, the Appellant was working as a
ProbationerMunsif. A person is placed on probationso as to enable the employer to adjudgehis suitability for continuation in theservice and also for
confirmation inservice. During the period ofprobation, the action and activities ofthe Appellant are generally underscrutiny and on the basis of
hisoverall performance, a decision is generally taken as to whether hisservices should be continued and thathe should be confirmed, or he should
bereleased from service. In the presentcase, in the course of adjudging suchsuitability, it was found by theRespondents that the performance of
theAppellant was not satisfactory andtherefore, he was not suitable for thejob. The aforesaid decision to releasehim from service was taken by
theRespondents considering his overallperformance, conduct and suitabilityfor the job. While taking a decision inthis regard, neither any notice
isrequired to be given to the Appellantnor he is required to be given anyopportunity of hearing. Strictlyspeaking, it is not a case of removal as
sought to be made out by the Appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not
removal fromservice on the grounds of indisciplineor misconduct.
The order of termination passedin the present case is a fall out ofhis unsatisfactory service adjudged onthe basis of his overall performanceand
the manner in which he conductedhimself. Such decision cannot be said to be stigmatic or punitive. This is acase of termination of servicesimpliciter
and not a case of stigmatictermination and therefore, there is noinfirmity in the impugned judgment andorder passed by the High Court.
The Appellant/1st Respondent was issued withRelieving Order-Ex.M.6 dated 01.02.1983 from 07.02.1983 onthe ground that his service was
not satisfactory and nomore required by the Bank. Though the Appellant/1st Respondent had come out with an explanation that he wasprojecting
his representations to the Chairman and GeneralManager of the Bank in regard to his reemployment and thata Final Order was passed by the 1st
Respondent/Bank only on18.06.1993 Ex.W.8 and therefore, the question of limitationfor filing of the I.D. No. 5 of 1996 would not arise in
hiscase, it is to be pointed out that though the Industrial Disputes Act does not prescribe any time limit for raisingan industrial dispute or filing of a
claim petition beforethe Industrial Tribunal, we are of the considered view thatthe Appellant/1st Respondent had approached the 2nd
Respondent/Industrial Tribunal [praying for his non-employment as an unjustified one and the consequent reliefof his reinstatement with
backwages, continuity of serviceand all other attendant benefits] after a long lapse ofnearly 13 years. The plea of the Appellant that he wasmaking
representations to the authorities of the Bank and that they passed final orders only on 18.06.1993 is anunacceptable one, in the considered
opinion of this Court.As a matter of fact, the claim of the Appellant in I.D. No. 5of 1996 is only a stale or a sterile claim.
In the light of foregoing discussions and in viewof the fact that the Appellant/1st Respondent was only aProbationer and since he was relieved
from the service ofthe 1st Respondent/Bank as per Ex.M.6-Relieving Order dated01.02.1983 from 07.02.1983 without attaching any stigma,but
owing to his service to the Bank was not satisfactoryand further his service is No. more required by the Bank, wecome to an inevitable conclusion
that the termination ofthe Appellant by the Bank as per Ex.M.6 dated 01.02.1983was a valid one and the Bank could not be thrust upon inany
manner to retain the Appellant/1st Respondent. It is atermination, simpliciter, without attaching any stigma orpunitive action. Viewed in that
perspective, the LearnedSingle Judge is quite correct in setting aside the Award dated 07.10.1999 in I.D. No. 5 of 1996 on the file of theIndustrial
Tribunal, Chennai. Consequently, the Writ Appealfails.
In the result, the Writ Appeal is dismissed,leaving the parties to bear their own costs. The order ofthe Learned Single Judge dated 03.12.2009
in W.P. No. 6970 of2000, in setting aside the Award dated 07.10.1999 in I.D. No. 5 of 1996 passed by the 2nd Respondent/IndustrialTribunal,
is affirmed by this Court for the reasonsassigned in this Appeal. Consequently, connectedmiscellaneous petition is also dismissed.