The Management of Monierkhal Tea Estate vs The Presiding Officer, Labour Court and Another

K. Lahiri, J.—What is the security or tenue of services of the workmen on probation in the tea estates of Assam governed by ''the Certified Standing Orders'' delineating their condition of services and the terms of the employment? Whether the services of a workman on probation for six months could be terminated by the employer within the probationary period or trial period? Whether a probationer on completion of the maximum period of probation is confirmed in the post, if the standing order so provides? What is the contour of the employer''s power to terminate the services of a probationer during the period of probation or at the end of the period of probation? These are the precise questions posed in this writ application under Article 226 of the Constitution by the management directed against the impugned award dated 5.11.76 made by the Labour Court, Gauhati in Reference Case No. 29 of 1973. By the impugned award the Labour Court has set aside the orders of termination of two workmen, one during the period of probation and the other after he had completed his probationary period, and directed reinstatement with back wages.

The factual matrix relevant for the purpose of this case: M/s. Monierkhal Tea Estate is owned by Sonai River Tea Company Limited. The management appointed Dr. D.K. Saha as an Assistant Medical Officer of the Tea Estate w.e.f. 9.6.72 after holding an interview. It was stipulated in the letter of appointment that the period of his probation would be for six months and if the could satisfy the Management with Jus work he would be offered a permanent appointment. The management also appointed Shri S.K. Paul as the Third Factory Babu w.e.f, 16.8.1972. His period of probation was also for six months and it was stipulated that if he could satisfy the Management with his work be would be made permanent. Both the appointments were made by the Manager in accordance with the provisions of "the Standing Orders". Dr. Saha completed the probationary period of six months on 9.12.72. After the period of probation was over the Manager of the Estate by his letter dated 16.12.1972, terminated the incursions of Dr. Saha w.e.f December 31, 1972, which is extracted below:

SONAI RIVER TEA CO. LTD.

Monierkhal Tea Estate, P.O. Monierkhal, Dist. Cacher, Date : 16th December, 1972

Name: Shri D.K. Saha, Designation : A.M.O., Monierkhall Tea Estate

Dear Sir,

As the Director of this Company advised me to discharge you from the Co''s service.

I regret to inform you that your services is no longer required by this company with effect from 31st December, 1972

Yours faithfully. sd/- K.M. Paul, Manager

The services of Shri S.K. Paul, the other workman were terminated by the Manager by his letter dated 16.12.1972 which is extracted berein below:

The 16th Decr./72

Name-Shri S.K. Pal, Designation-3rd Factory Babu, Monieerkh-lal Tea Estate,

Dear Sir,

As the Director of this Company advised me to discharge you from the Co''s scrvice,

I regret to inform you that your service is no longer required by this Company with effect from 31st December, 1972.

Yours faithfully, Sd/-K.M. Paul Manager

It is seen from the letter of termination of Shri S.K. Paul that his services were terminated before he had completed the probationary period of six months. Insofar as Dr. Saha is concerned his services wars terminated after he had completed the probationary period of six months. The purport of the termination is that one of the Directors of the Company had advised the Manager to discharge them from their services and, accordingly, the Manager informed the workmen that their services were no longer required. The Indian Tea Employees'' Union representing the workmen of the Tea Estate espoused the causes of workmen and claimed that the orders of termination of the workmen were illegal, wrongful and without jurisdiction. The orders were in breach of the terms of "the Standing Orders'''' governing the job security or the condition of services of the workmen. An industrial dispute was raised and ultimately the Government referred the following disputes to the Labour Court, Gauhati for adjudication:

(1) Whether the management of Monierkhal T.E. are justified in terminating services of Shri S.K. Paul 3rd Factory babu and Dr. D.K. Saha, A.M.O. from their services:

(2) If not, are the above-named workmen entitled to re-instatement or any other relief in lieu thereof?

The case was registered and the parties were asked to file written statements. The management filed its written statement and claimed that the reference was not maintainable, it was barred by estoppel, waiver and acquiescence. It claimed that the workmen were appointed on probation and their services were terminated as they were not required by the management, The Union representing the workmen claimed that the workmen were appointed on probation for six months and all along they rendered satisfactory services and accordingly the termination of their services were illegal. The Union claimed that even the appointing authority, namely the Manager was fully satisfied with their works and, accordingly, issued two certificates to them, which were filed before the Tribunal and marked here as Annexures ''8'' and 9'' to the writ petition. The Manager who was the in-charge of the Tea Estate certified that Dr. Saha was well-experienced doctor, bad good rapport with all and there was no complaint against him from any quarter. The workman was diligent, energetic and honest. The Manager regretted that be bad to issue the order of discharge as ordered by the Director, but he was not aware of the cause which impelled Director to terminate the services. Insofar as Shri S.K. Paul, the other workman was concerned the Manager stated that the workman was gentle, honest and be he bad no hesitation to recommend the workman to anyone who desired to employ a young person for factory work. The Manager also expressed that be bad to serve the letter or termination as advised by the Director of the Company but be was not aware of the cause of the termination of the workman. The claim of the Union was that the termination of the services of Dr. Saha after he bad completed the period or probation was invalid and illegal. Insofar" as Shri S.K. Paul was concerned the case of union was that the order was illegal because his services were terminated before the expiry of the fixed probationary period of six months. It was contended that there was "no justifiable cause" for terminating his services. The parties adduced no oral evidence. On behalf of the Union seven documents were put in evidence and on admission by the Management they were marked Annexures 1 to 7. The documents include the letters of appointment, the letters of termination of services of the workmen as well as the certificates issued by the Manager.

Upon hearing both the parties the Labour Court held that there was no evidence to show that the reference was not maintainable or barred by estoppel, waiver and acquiescence. It held that on 16.8.72 Shri Paul was appointed as Third Factory Babu on probation for six months on condition that be would made permanent if be could ''satisfy the management with his work''. The period of probation was to expire on 15.2.73 but his services were terminated on 31.12.72, before the expiry of the period of probation and that too without any "justifiable cause". It held that the management sever claimed that the service of the workmen were unsatisfactory or be was unfit to be confirmed. The claim of the management was that it could terminate the services of the probationer at any time was rejected. The Labour court found that there was no material to show that the work of the concerned workman was unsatisfactory and/or he was unsuitable for the job. Accordingly it held that the termination of services of Shri Paul was unwarranted and without any cause while the workman was rendering satisfactory services to the management and that the management was not justified in terminating fall services.

Insofar as the termination of doctor Saha was concerned it held that the services of the workman were terminated 23 days after the completion of his probationary period. While considering the question of validity of the orders terminating the services of the workman, the Labour Court took into consideration Clause 1 of the Standing Orders and held that a probationer who bad completed the probationary period of six months in the roll of the Tea Estate became a permanent workman and admittedly Dr. Saha had completed the specified period of his probation and, as such, he became permanent; in accordance with the terms and conditions of the "Standing Orders". It held that the services of Dr. Saha were not terminated on the ground that his services were unsatisfactory but on irrelevant consideration. The certificates issued by the Manager supported the claim of the workmen that they bad rendered satisfactory services, accordingly, the Labour Court declared the orders of termination as illegal, unjust and arbitrary. Thereafter, the Labour Court considered whether the workman were entitled to reinstatement and/ or any other relief and reached the conclusion that when the orders of termination were illegal the workmen were entitled to reinstatement and there was no plausible ground not to reinstate them. I also had that the workmen were entitled to full back wages with all benefits to which they were entitled to from the date of termination of their services till their reinstatement. The management filed this writ petition on 3.6.76. The Petitioner obtained a Rule and also an order from the High Court that pending disposal of the rule the implementation of the award should be stayed.

Mr. A.R. Banerjee, learned Counsel for the Petitioner has contended that the orders terminating the services of the workmen were "termination simpliciter" which the Management could exercise at any time and for any cause. Learned Counsel submits that the services of the workmen were found to be unsatisfactory and/or they ware found unsuitable by the management. The next contention is the Labour Court in holding that Dr. Saha became a permanent workman after he had completed the period of probation. The Labour Court erred in overlooking the provisions of Clause 1(b) of the Standing Orders while reaching the conclusion that Dr. Saha became a permanent workman. The other contention is that Dr. Saha has already crossed the age of superannuation and as such the award of the Labour Court directing his reinstatement can not be implemented. The last submission is that the certificates issued by the Manager to the workmen should not have been relied on and acted upon by the Labour Court as the Management had dismissed the Manager and the latter issued the certificates just on the eve of his dismissal. These are the only submissions made by learned Counsel for the Petitioner-Management.

It is the common case of the parties that the job security and condition of services of the workmen of the Tea Estates in Assam are governed by the Standing orders duly certified under the Industrial Employment (Standing Orders) Act, 1946. It is also the admitted position that under Clause 14 of the Standing Orders the Manager of the Tea Estate is personally responsible for the proper and faithful observance of the Standing Orders. There is no wrangle at the bar that the doctrine of absolute freedom of contract by the employer has yielded to the higher claim of social justice. The right of the employer to dismiss a workman is controlled by the law to well-recognised limit in order to guarantee security of tenure to the Industrial workmen. It is too late in the day to assert absolute freedom of an employer to impose any condition which he likes on Labour. The theory of ''Shire and fire" which allows free scope under the doctrine of ''laissez faire'' no longer holds the field. The inherent powers or the employer''s right to terminate the services of workman are controlled by the Industrial or Labour laws. the letters and spirit of the Constitution and the new jurisprudence structured by the Supreme Court.

Who is a probationer, and what are his Job security specified by the certified "standing orders" framed under the Indus, trial Employment "standing Order" Act, 1946 applicable to the Tea Estate? The "Standing Orders" classify five catogories of workmen- (1) Permanent; (2) Probationer; (3) Casual; (4) Temporary and (5) Leavner and stipulate the terms of employment and conditions of services of the workman. The relevant segments of the Standing orders are extracted:

Classification of workers.

(a) A permanent worker is one who resides upon the tea estate and whose name is entered in the estate roll of workers and includes any person who has completed a probationary period of 6 months in the same or any other occupation in the industrial establishment, including breaks due to stickness, accident, leave, lockout, strike (not illegal strike) or involuntary closure of the establishment,

(b) A Probationer is a workman who is provisionally employed to fill a permanent vacancy post and has not completed 6 months services therein.

(Emphasis supplied)

It is thus seen that a probationer is a workman who is provisionally employed to fill a permanent vacancy post and has not completed six month of service therein. It implies that "the trial period'''' or period of probation is for six months. There is no reserved power of the employer to extend the period. Clause 1(a) bespeaks that a probationer, on completion of the probationary period of six months, statutorily acquires the status of a permanent workman. At the completion of the period of probation the services of a probationer may be terminated, if he is not found suitable or lit for the job on the basis of the assessment of his work during the trial period. If at the completion of the period of probation the services of the workman are net terminated on the aforesaid ground and he is allowed to continue in the post the workman is statutorily recognised as a permanent workman under Clause 1(a). It appears that the Standing Orders forbid the extension of period of probation beyond the fixed time end therefore, if a workman is allowed to continue in the post, on completion of the maximum period of probation, the provisions of Clause 1(a) of the Standing Orders indicate that he acquires the status of a permanent workman. These are the conclusions drawn on scrutiny of the terms of the Standing Orders governing the conditions of services of a probationer employed in a tea estate.

Is it correct that the Employer can terminate the services of probationer at any time and for any cause? Is it correct that the Labour Court can not adjudicate the validity of the termination of the services of a probationer when the management claims that it was termination simpliciter? Whether, in the instant case, the order, of termination were on account of inadequacy for the job or for any temperamental or relevant reasons for holding that the probationers/workmen were unsuitable for jobs'' Could the Employer terminate the services of the probationer ''''for any reasons" during the fixed period of probation and/or after the probationer had completed the period of probation? Is the award of reinstatement with full back wages bad, Illegal and without jurisdiction for any justifiable reasons? To answer the questions posed by the Petitioner ii is necessary to consider as to who is probationer and what are his protections provided in the Standing Orders and what is the law laid down by the Supreme Court touching the rights of the employers to terminate the service of a probationer.

A workman on probation must show that he is capable of performing the required duties of the job or the position before be will be considered as permanently employed in such position. In fact, the employee/workman is on trial, his competence and suitability remaining to be finally determined by the employer. The employer can discharge a probationer or may not confirm him in the permanent post if be is found to be incompetent or unsuitable and on no other consideration. The factors relevant to determine the job adequacy can be the basis for discharging a probationer or for not confirming him in the permanent post. Indeed, if a probationer is incompetent or unsuitable for the jot or incapable of performing the required duties of the job or the position, he should not be retained or confirmed for the well-being of the industry and the Nation.

When the period or probation is for a fixed period, say, six months, his services can not be terminated by the employer before the expiry of the fixed probationary period except on the ground of mis-conduct or other sufficient grounds on which the services of a permanent workman can be terminated, At the end of the fixed period of probation the employer may terminate the services of a probationer if his work is unsatisfactory or he is found to be unsuitable for the post, in the absence of anything to the contrary contained in the service condition or the Standing Orders a probationer continues to be a probationer. However, if the service conditions or the Standing Orders expressly or impliedly provide that on completion of probationary period a probationer shall be confirmed in the permanent vacancy post the workman acquires the status of a permanent workman in terms of the statutory provisions contained in the Standing Orders/the Service rules. These principles have been laid down by the Supreme Court in (1) The Management of the Express Newspapers (Private) Ltd. Madurai Vs. The Presiding Officer,Labour Court, Madurai and Another, (2) Agra Electric Supply Co. Ltd. Vs. Sri Alladdin and Others, (3) G.S. Ramaswamy and Others Vs. Inspector-general of Police, Mysore, ; State of Uttar Pradesh Vs. Akbar Ali Khan, (5) State of Punjab Vs. Dharam Singh, (6) Accountant General, Madhya Pradesh v. Beni Prasad Bhainagar C.A. 458 of 1962 decided by the Supreme Court on 22.1.64 1964 SCN p. 8 Item-5; (7) D.A. Lyall v. Chief Conservator of Forest C.A. No. 259/63, decided by the Supreme Court on February 24, 1965 (8) Sukhbans Singh Vs. State of Punjab, In State of Punjab v. Dharam Singh (Supra No. 5) it has been held, that where the Standing Orders/the Service conditions fix a definite time beyond which the probationary period cannot be extended and the probationer is allowed to continue in that post after completion of the maximum period of probation it is permissible to draw an inference that the workman allowed to continue in the post has been confirmed in the permanent post, by implication. it has further been held that when the period of probation is fixed the workman has a guaranteed period to satisfy his competence and suitability during the whole period. His services cannot be terminated during the probationary period except on the ground of mis-conduct or other sufficient ground on which the servers of permanent workmen may be terminated vide, (9) Management Utkal Machinery Ltd. Vs. Workmen, Miss Shanti Patnaik, . Their Lordships have further held that when the validity of the termination of services of a probationer is challenged it would be open to the Industrial Tribunal to X-ray the order and discover its true nature to find cut whether the order of termination was bonafide exercise of the power of the employer or not. The view has been reiterated in (10) The Management of The Management of Brooke Bond India (Private) Ltd. Vs. Y.K. Gautam, . In Gautam (supra No. 10) the letter of appointment granted absolute discretion to the employer to extend the period of probation for a further period of three months and it also provided that the employer had the right to terminate the services of the probationer.

during the period of probation or during the extended period of probation or before confirmation in writing without notice and without assigning reasons whatsoever,

The services of the probationer were terminated within the period of probation. The employer produced no evidence to show that the work of the probationer was unsatisfactory. The order of termination was set aside, Their Lordships relied on Utkal Machinery (supra No. 9) and held that the termination was capricious, unreasonable and unjustified. However, it is pertinent to note that their Lordships have observed that on reinstatement of the workman, whose services bad been terminated during the probationary period, the employer should have an opportunity of watching his work and should have the right and freedom to make up its mind as to whether the services of the workman should be retained or his services should be dispensed ''on justifiable grounds''''. The period of probation specified in the Standing Orders cannot be extended by the employer. It would not be valid in law as the Standing Orders have statutory force -vide Agra Electric Supply Company (supra No. 2). To sustain the validity of an order terminating the services of a probationer in terms of the Standing Orders the employer has to specifically plead that during the probationary period the work of the probationer was found to be unsatisfactory and/or he has found to be unsuitable for the job-vide''(11) Western India Match Company Ltd. Vs. Workmen, It is thus seen that when the order of termination has been challenged before the Labour Court or Tribunal it is within its jurisdiction to consider as to whether the termination is in violation of the clause of the Standing Orders. The Tribunal can go into the substance and validity of the order of terminator, It is the burden of the management to show that the order was rendered in bonafide exercise of the powers of the employer-Vide (12) The Management of U.B. Dutt and Co. Vs. Workmen of U.B. Dutt and Co., (13) The Tata Oil Mills Co., Ltd. Vs. Workmen and Another, (14) The Tata Engineering and Locomotive Co. Ltd. Vs. S.C. Prasad and Another,

In the instant case as alluded to, the service conditions of the probationers are governed by the terms of the certified Standing Orders. The Standing Orders provide a fixed period of probation, i.e., six months. Before the Labour Court the plea of the employer was that in exercise of the managerial right they could terminate the services of the probationers within, the period of probation or even after the completion of the said period, and, for any reason whatsoever. In view of the law laid down by the Supreme Court we are constrained to bold that a probationer can not be discharged or his services can not be terminated during the fixed period of probation except on the ground of misconduct, which is not the case of the Management. The services of the probationer can not be terminated except on "justifiable ground" i.e., his inadequacy for the job or for any other temperamental or other relevant reasons not connected with moral turpitude. The letters of termination of the services of the workmen do not show that they were unsuitable for the jobs. No evidence or material was placed before the tribunal to show that the terminations were on account of inadequacy for the jobs or any other temperamental or cogent reasons for holding that the probationers were unsuitable. It is interesting to note that the services of the workmen were terminated by "a director" and the manager acted on his dictation. There is nothing to show that the said Director was authorised to adjudge suitability or job adequacy of the workmen. There is no material to show that the director was objectively satisfied that the workmen were unsuitable for the jobs. In the instant case, the manager of the tea estate was the appointing authority. He was in-charge of the tea estate. He was the competent person to decide suitability or job adequacy of the workmen. The orders of termination are not bused on bit satisfaction but that of someone else, who is not authorised by the Standing Orders to determine whether the workmen/probationers should be retained or their services were to be terminated, In any view of the matter, no material was placed by the management to show that the workmen were unsuitable for the jobs and accordingly, the Labour Court was justified in holding that the orders of termination were colourable, unjustified, capricious and unreasonable. Further, when the workmen contested the validity of the orders of termination it was the burden of the management to show that the works of the probationers were unsatisfactory which they have totally failed to show and accordingly, the Labour Court was justified in setting aside the orders of termination. It bas been urged that the certificates which were issued by the Manager showing that the workmen were competent and suitable for the jobs ought not to have been acted upon by the Labour Court. This point that the certificates were issued by the manager when he was dismissed or about to be dismissed by the employer was not taken before the Labour Court. Even if the certificates are not taken into consideration it goes without saying that the management bad failed to produce any material to show that the services of the workmen were unsatisfactory. There is no material to show that the certificates issued by the manager were false. Only before this Court the point bas been taken up but no material bas been placed before us to show that the certificates issued by the Manager contained incorrect statements. The management should have produced concrete material to show that the works of the workmen were unsatisfactory, which the management bas miserably failed to show before the Labour Court as well as this Court. We are of the opinion that even if the certificates are not taken into consideration the findings of Labour Court must be sustained inasmuch as the management had failed to discharge its burden that the service of the workmen were unsatisfactory, it was not even pleaded by the management before the Labour Court that the works of the workmen were found unsatisfactory. As such, the contention that the award is bad because the Labour Court relied on the certificates cannot be sustained at this end. We are also constrained to hold that the management could not terminate the services of the workmen at any time or for any cause. We also hold that the management did not plead that the services of the workmen were found unsatisfactory and/or they were unsuitable for the jobs. No evidence was produced to that effect. The plea was that the employer could terminate the services of the workmen at any time and without any cause. As such, the contention fails. Admittedly, the services of Shri Paul (3rd Factory Babu) were terminated before he could complete the fixed term of his probation and that too without any justifiable ground. We are constrained to hold that the service of the probationer could not be terminated during the probationary period except on the ground of misconduct, which is not the case of the management. In result we hold that the findings of the Labour Court that the services of Shri Paul were terminated in violation of the terms of the Standing Orders is valid and legal.

The contention of Mr. Banerjee, learned Counsel for the Petitioner that the Labour court erred in law in holding that Dr. Saha became a permanent workman after be bad completed the period of probation for six months is untenable in view of the law laid down by the Supreme Court and Clauses 1(a) and (b) of the Standing orders. It is revealed from Clause 1(a) that after the expiry of six months, the probationer is treated as "a permanent workman" under the Standing Orders. In Western India Mach Co. Ltd.(supra No. 11), (15) Salem Erode Electricity Distribution Company Ltd. Vs. Salem Erode Electricity Distribution Co. Ltd. Employees Union, State of Punjab v. Dharam Singh, (supra No. 5), (16) Avery India Limited Vs. The Second Industrial Tribunal, West Bengal and Others, (17) The United Provinces Electric Supply Co. Ltd., Allahabad Vs. Their Workmen, it has been ruled that where the Standing orders/the Service Rules fixes n definite time or period of probation beyond which it can not be extended and the probationer is allowed to continue in the post, it is permissible to draw an inference that the workman who is allowed to continue in the post bas been confirmed therein by implication. The reason is that when the Standing orders forbid extension of the probationary period beyond the fixed terra, the employer is forbidden to treat a workman as a probationer beyond the said period in violation of the statutory rules or the Standing Orders. It cannot be presumed that the extension bas been made by the employer in breach of the Standing orders or the service Rules.

It follows, therefore, that a workman allowed to continue in the post bas been confirmed. However, in the instant case the position is mom secured as Clause 1(b) of the Standing order clearly manifests that the period of probation is for six months. It cannot be extended. Clause 1(a) unequivocally states that a workman who has completed the probationary period of six months acquires the status of a permanent workman. The right is recognised by the statutory Standing orders. We are of the opinion that a probationer acquires the status of a permanent workman, if he is allowed to continue in the post even without any express order of confirmation. The view finds support from a Special Bench decision of this Court in the Management of Dekorai Tea Estate v. Presiding Officer ILR 1974 Gau. 199. While construing the provisions of Clauses 1(a) and (b) of the very same Standing Orders it has been held that after the expiry of the probationary period of six months a probationer acquires the status of a permanent workman. It bas been ruled that even when the workman consented to continue as a probationer after six months of probationary period he acquired the status of permanent workman after the expiry of period of probation, if he was allowed to work in the post. It has been held any other view would be violative of the express provisions of the service conditions of the workman enshrined in the Standing Orders, and, it would be against the established policy. We are bound by the decision of the Supreme Court as well as a larger Bench decision of this Court. Accordingly, we hold that the labour court was justified in holding that Dr. Saha became n permanent workman after the expiry of his probationary period when the management allowed him to continue in the post.

The last contention of Mr. Banerjee, learned Counsel for the Petitioner is that the award of reinstatement with full back wages is bad in law. Plain common sense dictates that the removal of an order terminating the services of workman must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order bas never been in existence, and, accordingly, the workmen are entitled to reinstatement and back wages. There may be exceptional circumstances which might make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full bank wages say, where the industry might have closed down or might be in severe financial doldrums or the workmen concerned might have secured better or other employment elsewhere and soforth. In such situations, there is vestige of discretion left in the court to make appropriate consequential orders. This is the law laid down by the Supreme Court in (18) Buckingham and Carnatic Co. Ltd. v. Workers (1951) XI LLJ 314 (L.A.T.) : (1951)3 F.J.R. 265 ; (19) The Punjab National Bank Ltd. Vs. Its Workmen, (20) Assam Oil Company Vs. Its Workmen, (21) Samnuggur Jute Factory Co. Ltd. v. Their Workmen (1964) I LLJ 634 (SC) (22) Dommur Duliang Tea Estate v. The Workmen, C.A. No, 516 of 1966 decided by the Supreme Court on 26.10.1967 (23) Ruby General Insurance Co. Ltd. Vs. Shri P.P. Chopra, (24) Hindustan Steels Ltd., Rourkela Vs. A.K. Roy and Others, (25) The Management of Panitole Tea Estate Vs. The Workmen, (26) Francis Klein and Co. (P) Ltd. Vs. Their Workmen and Another, (27) : AIR 1971 SC 2414; (27) Workmen of Assam Match Co. Limited v. Labour Court (1913) XI LLJ 279 ; (28) Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, In view of the law laid down by the Supreme Court and in the absence of any evidence before the Labour Court that it was impossible or wholly inequitable to direct reinstatement with full back wages the Labour Court was justified in making the award of reinstatement with full back wages. However, before us it has been contended that Dr. Saha has already reached the age of superannuation, accordingly, be can not be reinstated If Dr. Saha has in the meantime reached the age of superannuation he must be given all back wages and the retiral benefits to which he is entitled. This is the award and the award never directed that Dr. Saha should be allowed to continue in the services even after he had reached the age of superannuation. If, in fact, Dr. Saha has reached the age of superannuation the management shall pay full back wages and grant him all retiral benefits. This is the award.

There is but one aspect which we must make very clear. On more than one occasion their Lordships have stated that where the service of the probationers are dispensed with during the period of probation and the Industrial court finds the termination as illegal it can award reinstatement with back wages. However, the right and freedom of the employer to make up its mind as to whether the services of the probationer should be retained or dispensed with "on justifiable ground", at the expiry of the probationary period can not be taken away vide. The The Management of Brooke Bond India (Private) Ltd. Vs. Y.K. Gautam, The Industrial court should not take away the legitimate right and freedom of the employer to make up its mind at the conclusion of the probationary period whether the probationer should be retained or his services should be dispensed with on justifiable ground after scanning the nature and quality of his work during the probationary period, In the instant case, the services of Shri Paul were terminated during the period of probation. By the impugned order the workman has been reinstated with full back wages. The workman is entitled to the reliefs. However, Shri Paul was appointed on 16.8.72 for a period of six months which was to expire on 15.2.73. However, his services were terminated on 31.12.72. As such, be bad to serve as a probationer for one month and 15 days more. After Shri Paul works for one month and 15 days the management shall surely have the right to determine hit job adequacy and/or suitability. He may be allowed to continue is the post or his services may be confirmed expressly or he may be expressly appointed as a permanent workman or his services may be dispensed with "on justifiable grounds" and on no other ground.

For the foregoing reasons we bold that there is no merit in the application and, accordingly, it is dismissed with coat of Rs. 500/- payable by the Petitioner to the Union.