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2005(1) Supreme 818
Supreme Court of India
(From Punjab and Haryana High Court)
N. Santosh Hegde & S.B. Sinha, JJ.
Municipal Committee, Sirsa —Appellant
versus
Munshi Ram —Respondent
Civil Appeal No. 21 of 2003
Decided on 4-2-2005
Counsel for the Parties :
For the Appellant : Ajay Kumar and Manoj Swarup, Advocates.
For the Respondent : A.S. Nahra, Sr. Advocate, Mahabir Singh, Ajay Pal, Gagandeep Sharma and Amitveer Singh, Advocates.
Held : If the order of termination indicates that it is a termination simplicitor and does not cast any stigma on the employee by the said order of termination the mere fact that there was an inquiry into his conduct earlier would not by itself render the termination invalid. Applying the said principle, if we see that the order of termination in the present case is an order of discharge simplicitor. But in the course of the inquiry, the Labour Court noticed that on an earlier day, there was some incident where the administrative officer found some lacunae in the working of the respondent but based on that no charge-sheet was served nor inquiry was conducted. However, the appellant came to the conclusion that it is not in its interest to continue respondent’s services, hence, discharged him. In the background, the mere fact that there was a misconduct on the part of the respondent which was not enquired into ipso facto does not lead to the conclusion that the order of the termination is colourable and in fact is a punitive order. (Para 10)
There was some sort of misconduct, as noticed in the evidence of the witnesses of the management in the cross-examination, the same could not be used as evidence by the Labour court or by the Appellate court for coming to the conclusion that an order of termination which is otherwise simplicitor in nature is motivated by any consideration other than the decision of the management as to the satisfactory nature of the workman concerned. (Para 16)
As noticed above in the instant case, the respondent having been appointed as a probationer and his working having been found not to the satisfaction of the employer, it was open to the management to terminate his services. Assuming that there was an incident of misconduct or incompetency prior to his discharge from service, the same cannot be ipso facto be termed as misconduct requiring an inquiry. It may be a ground for the employer’s assessment of the workman’s efficiency and efficacy to retain him in service, unless, of course, the workman is able to satisfy that the management for reasons other than efficiency wanted to remove him from services by exercising its power of discharge. (Para 17)
On the facts of this case, we are satisfied that the incident referred to in the evidence of the management’s witness does not give rise to a conclusion that the discharge of the respondent was a colourable exercise, with a collateral intention of avoiding an inquiry. Nor does the order of discharge carry any stigma. Hence, the Labour Court as well as the Appellate bench of the High Court have erred in coming to a contra conclusion. (Para 18)
Judgment
Santosh Hegde, J.—The appellant is a municipal committee which had appointed the respondent on probation for a period of one year as ‘Octroi Moharrir’. The letter of appointment dated 21.07.1979 inter alia stated that services of respondent can be terminated without assigning any cause at any time during the period of probation. By a letter dated 12.03.1980, the service of the respondent was terminated during the period of probation. The said letter of termination read thus;
“Shri Munshi Ram, Octroi Municipal Committee, Sirsa is hereby discharged from the duty as no longer is required by Municipal Committee, Sirsa with immediate effect.
Sd/-
Administrator
Municipal Committee,
Mahabir Sirsa”
2. The said termination/discharge gave rise to a labour dispute raising the following issue;
“Whether the termination of services of Shri Munshi Ram was justified and in order? If not, to what relief he is entitled?”
3. The Labour Court by its order dated 19.06.1982 made an award holding that the termination was neither justified nor in order and the workman is entitled to reinstatement with continuity of services and with full back wages.
4. The said award came to be challenged in the Writ Petition before a learned Single Judge of the High Court of Punjab & Haryana at Chandigarh. The learned Single Judge by his order dated 30.08.1991 allowed the writ petition and set aside the award of the Labour Court. While doing so, it observed;
“He was on probation for a period of one year and it was during the period of probation that his services were terminated. The order of termination did not assign any reason... a person on probation is virtually on trial. The employer is not bound to suffer an incompetent employee for the full term of probation.”
5. This order of learned Single Judge came to be challenged by the respondent in Writ Appeal before the same Court. The Appellate bench of the said High Court observed that during the course of the inquiry before the Labour Court, a witness had admitted that on 11.03.1980 when the Administrator inspected the octroi post he had found that the respondent had allowed certain vehicles carrying goods to go without charging of octroi fees and contrary to the rules he was found in possession of excess money to the extent of Rs. 15.80. From the record it was found that immediately after the said instance in question the services of the respondent came to be terminated. Therefore, concurring with the findings of the Labour Court, the Appellate bench held that the order of discharge, though termed as discharge simplicitor, was in reality a colourable exercise of termination without holding an inquiry and it agreed with the Labour Court and restored its award.
6. Against the said order of the Appellate bench of the High Court, the appellant is now before us in this appeal.
7. The question for our consideration is on the facts and circumstances of this case was the termination of the respondent was punitive or is a discharge simplicitor? On reading of the order of discharge it is clear that it is a discharge simplicitor, but the evidence as came on record shows that there was some act of negligence on the part of the respondent which was noticed by the officer of the appellant, hence, the Labour Court as well as the Appellate bench came to the conclusion that it was a termination in the guise of discharge.
8. In the above factual back drop, we would like to examine whether the Labour Court was justified in setting aside the order of discharge made by the appellant.
9. Law on this question by now is well settled. This Court in the case of Krishnadevaraya Education Trust & Anr. vs. L.A. Balakrishna [(2001) 9 SCC 319] while considering the similar situation held thus;
“There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he
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