Indian Veterinary Re... v. Central Government I...

1. Petitioner's case is that the impugned award is liable to be quashed. Tribunal has failed to consider the implication of S. 2(oo)(bb) of the Industrial Disputes Act. It is stated that respondent 2 was a probationer and for his unsatisfactory work, he could be discharged from the service which could not attract provisions of S. 25F of the Industrial Disputes Act. Tribunal is said to have acted beyond his jurisdiction. It is further contended that the Tribunal has no jurisdiction to proceed with the case, same was to be transferred to the Central Administrative Tribunal under S. 29 of the Act. The Industrial Tribunal ceased to have its jurisdiction with effect from 15 May 1987, on the matter. Respondent 2 had no right to hold the post. His services could be terminated without any notice. Respondent 2 is not entitled to get any protection under the Constitution or under the Industrial Disputes Act. Termination of service of respondent 2 was not due to his misconduct but was only for his unsatisfactory work.

2. Respondent 2 was said to have been appointed on probation on 15 May 1978, as T-1 (Laboratory Assistant) at the petitioner's institution. Respondent 2's period of probation was extended by one year. His work and conduct were not found satisfactory. Hence, his services were terminated on 12 May 1981. Of course, respondent 2 is said to have raised a dispute under the provisions of Industrial Disputes Act which was referred for adjudication by the Central Government to the Central Government Industrial Tribunal/Labour Court, Kanpur, on 2 January 1987. Petitioner filed his written statement before the Tribunal in pursuance of the summons. Respondent 2 has stated that he was not informed that his period of probation was extended. He would be deemed to have been confirmed after the expiry of the period of probation. He was a workman. Neither he was paid one month's pay nor retrenchment compensation before the issuance of the impugned order. Service rules applicable to him were not complied with, therefore, the termination of service was illegal. He has also challenged the recording of adverse remarks against him which according to him was outcome of personal bias and prejudice by Dr. M.C Prasad under whom he was working. Before the Tribunal petitioner has denied all these charges. Petitioner made an attempt before the Tribunal that conduct and work of respondent 2 were not satisfactory during the period of probation, therefore, his period of probation was extended and after that his services were terminated. However, Tribunal issued an award against the petitioner on 31 May 1988, which was published on 17 June 1988, and the petitioner is said to have received the copy of the award on 29 September 1988.

3. It is further submitted that Government of India had issued a notification under S. 14(2), dated 20 April 1987, which conferred jurisdiction on the Central Administrative Tribunal in respect of dispute relating to service matters of I.C.A.R All the cases pending on that day before the Industrial Tribunal were liable to be transferred to the Central Administrative Tribunal under S. 29 of the Central Administrative Tribunal Act, therefore, the award was without jurisdiction. As a probationer, respondent 2 has no right to the post, therefore, award is bad.

4. Counter-affidavit is filed by the respondent 2. He has denied the averments raised by the petitioner in this petition, and has submitted that Tribunal's award is according to law. It is also denied that the Tribunal has lost the jurisdiction, it is submitted that the Tribunal had the jurisdiction to pass the award and this ground was not taken before the Tribunal at any time. Services of respondent 2 are said to have been terminated without any justifiable cause and the said termination is wrong.

5. I have heard the learned counsel for the parties at some length. The point of lack of jurisdiction of the Industrial Tribunal to decide the dispute referred to it by the Central Government was on second look not pressed by the learned counsel for the petitioner so vehemently. He had referred to S. 14 of the Central Administrative Tribunal Act which defines the jurisdiction, power and authority of the Central Administrative Tribunal but bar of jurisdiction is contained in S. 28 of the Act. It creates a bar of jurisdiction of the Tribunal and Court in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service or persons appointed to any service or post except the matters which are before the Supreme Court and Industrial Tribunal, Labour Court or other authority constituted under Industrial Disputes Act or any other corresponding law for the time being in force. Section 28 itself provides that the jurisdiction of Industrial Tribunal is not barred. In those cases in which jurisdiction of the Tribunal or Court is barred matters pending before them are to be transferred to the Central Administrative Tribunal. However, before reading S. 28, learned counsel for the petitioner did realise that his objection was not sustainable. Omission of Cl.(b) in S. 2 of the Act also would not affect the jurisdiction of the Industrial Tribunal to hear the matters which arise out of the Industrial Disputes Act.

6. Therefore, it is held that Industrial Tribunal had the jurisdiction to decide the matter and there is no error in the award of the Tribunal on the ground of lack of jurisdiction.

7. On merits it was contended by the learned counsel for the petitioner that respondent 2 could not get protection under the provisions of Industrial Disputes Act because his termination of service was as a result of non-renewal of the contract of employment on its expiry. It is stated that respondent 2 was appointed on probation for one year, therefore, he could be terminated during the probation. If there is no renewal of contract his services are liable to be terminated, that would not amount to retrenchment as envisaged in S. 2(oo) (bb) of the Industrial Disputes Act.

8. It is true that respondent 2 was appointed on probation but he was not employed for a fixed term, therefore, the provision of law referred to by the learned counsel for the petitioner would not come into play. Retrenchment means the termination by the employer of the services of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. Respondent 2 had not been punished also. Once there is retrenchment of service for any reason whatsoever which does not fall within the exception of S. 2(oo) (a)(b)(c), the termination amounts to retrenchment. Learned Counsel for the petitioner has not been able to show from the record that respondent 2 was appointed for a fixed term or for a specified term under the contract of employment. In that case on the expiry of the term or on the expiry of period of contract employer is not bound to renew the contract or extend the term as the case may be. So it would not amount to retrenchment. Learned counsel for respondent 2 has relied on an authority of Supreme Court Karnataka State Road Transport Corporation, Bangalore and M. Boraiah v. Sheikh Abdul Khader [1984 — I L.L.N 230]. The Supreme Court has considered the ambit of S. 2(oo) and exceptions made to the said section. It is held that termination of service of an employee during the probation amounts to retrenchment and if a retrenchment is to be made it is necessary to follow the provisions of S. 25F of Industrial Disputes Act. If those provisions are not complied with retrenchment is to be set aside. In the present case the provision of S. 25F has not been followed, therefore, retrenchment of respondent 2 even though he was on probation will be bad. Admittedly, these provisions have not been followed, therefore, retrenchment of respondent 2 becomes invalid.

9. Learned counsel for the petitioner has referred to an authority reported in Sushil Kumar Pandey v. Director, Valvikas Seva Evam Paushtik Ahar [1993 (66)) F.L.R 381], to show that there was no infirmity in the order of retrenchment, therefore, the impugned award was bad. From reading the judgment it transpires that the petitioner had not raised any industrial dispute, he had filed this writ petition on the ground that his termination from service was against the provisions of S. 25F of the Industrial Disputes Act.

10. He had prayed for regularisation of his services also. The writ petition was dismissed because one of the contention of his appointment letter was that his service can be terminated any time without any notice. However, he was paid wages for the days for which he had worked. Similar authority reported in Krishna Lal v. Surendra Bahadur Singh (vide supra).

11. A workman engaged on probation is not necessarily appointed for a fixed term or for a specified period. In case of fixed term appointment, appointment order shall say so. A person who is appointed on probation without fixing any term is not appointed for a fixed term nor is he appointed for a specified work unless it is proved that his appointment was for a specified work or for a fixed term.

12. As a probationer respondent 2 could be retrenched only after the provisions of S. 25F is complied with. The short question which falls for consideration in this case is whether respondent 2's retrenchment is valid without following the provisions laid down in S. 25F of the Industrial Disputes Act. Petitioner submits that, that section was not required to be followed. This contention is not acceptable and needs to be rejected. Respondent 2 was appointed on probation. Provisions of S. 25F, is therefore, applicable to him. He could not be retrenched without following this provision. The award has been issued on this ground by the Labour Court which does not suffer from any infirmity or illegality. The result is that the award is held to be valid and cannot be set aside in this writ petition.

13. As a result of the aforesaid discussion, the writ petition has no merit and is dismissed with costs.