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Karnataka High Court
MANAGEMENT, INDIAN INSTITUTE OF horticultural RESEARCH (ICAR), BANGALORE - Appellant
Versus
K.SHASHIKALA indian COUNCIL OF AGRICULTURAL RESEARCH - Respondent
Decided On : 02-17-05
W.P. : 28490 of 2003
INDIAN COUNCIL OF AGRICULTURAL RESEARCH (TEMPORARY SERVICE) RULES, 1965
Rule 5 -Termination of probationer -Termination on ground of unsatisfactory work -Serious allegations made against employer to prove unsatisfactory work -Certain documents produced -Their author not examined -No credence can be placed on -Employer failing to prove that, termination is not arbitrary or that, its action is legal and justified -Held, order of reinstatement proper.
Termination during period of probation
LABOUR AND SERVICES -Termination during period of Probation -Powers of employer - Jurisdiction of court to interfere with.
[Mohan Shantanagoudar, J]: If it appears that the purported exercise of the power to terminate the service of the employee was in fact the result of the misconduct alleged against her, then the Tribunal will be justified in dealing with the dispute on the basis of the facts to find out as to whether the order in question is really an order of discharge simpliciter. The exercise of power in question to be valid must always be bona fide. If the bona fides of the said exercise of power are challenged, then the Industrial Tribunal would be entitled to interfere with the order in question.
Jurisdiction of Industrial Tribunal
ADMINISTRATIVE TRIBUNALS ACT, 1985 - Section 28(b) -Jurisdiction of Industrial Tribunal -Saving of -Effect.
[Mohan Shantanagoudar, J]: It is not in dispute that the petitioner is a society registered under the provisions of Societies Registration act. The petitioners main contention before the Tribunal was that in view of the constitution of Central Administrative Tribunal, all the service matters of ICAR are to be adjudicated only by the Administrative Tribunal and that therefore, the Industrial Tribunal or Labour Court has no jurisdiction to decide such matters. There cannot be any dispute that the service matters pertaining to the establishment of the petitioner can be adjudicated before the Central Administrative Tribunal. But in view of the express provision made under Section 28(b) of the administrative Tribunals Act, 1985, the jurisdiction of the Industrial Tribunal/Labour Courts is saved. In pursuance to the saved provision under Section 28(b) of the Administrative Tribunals Act, 1985, the workman has got two avenues to choose for getting her grievances redressed i.e., (a) Central Administrative Tribunal, (b) the Industrial Tribunal/Labour Court.
( 1 ) BY the impugned award, the Central Government Industrial tribunal-cum-Labour Court, Bangalore (hereinafter referred to as 'tribunal' for short) allowed the reference in C. R. No. 10 of 2001 and set aside the order of termination passed by the Director General, Indian institute of Horticultural Research, Indian Council of Agricultural research ('icar') (hereinafter referred to as 'management' for short) and consequently, directed the 'management' to reinstate the workman-respondent herein to her original post which she was holding on the date of termination with full back wages and continuity of service.
( 2 ) THE records disclose that the workman-respondent was appointed to the post of T-6 (Technical Officer/librarian) on 17-3-1992 in the establishment of Indian Institute of Horticultural Research (ICAR) on a temporary basis. She was put on probation for a period of two years, which was extended from time to time. Ultimately, her services were terminated by order dated 29-6-1996 under Rule 5 of the ICAR (Temporary Service) Rules, 1965. The workman-respondent raised industrial Dispute before the conciliation officer against the order of termination on various grounds. As the conciliation proceedings failed, the Central Government referred the matter to the Tribunal' for adjudication of the dispute. The dispute, which was referred to the 'tribunal', is as under: "whether the action of the 'management' of Indian Institute of horticultural Research, Bangalore in terminating the services of smt. K. Shashikala, Ex-Librarian (T-6) is legal and justified? If not, to what relief Smt. K. Shashikala is entitled?"
( 3 ) THE workman examined herself as M. W. 1 and got marked 9 documents in support of her case. On behalf of the 'management', an assistant working in the Administrative Department of the establishment of 'management' was examined as M. W. 1 and 9 documents were got marked. After appreciating the oral and documentary evidence adduced by the parties and after hearing, the tribunal set aside the order of termination and directed the 'management' to reinstate the workman to her original post, which she was holding on the date of termination.
( 4 ) SRI S. V. Shastry, learned Counsel appearing on behalf of the management-petitioner made three-fold submissions. Firstly, he contended that the petitioner establishment is not an "industry" and that the respondent is not the "workman" as defined under the provisions of the Industrial Disputes Act, 1947 ('act' for short ). Secondly, he contended that the respondent is governed by the provisions of the indian Council of Agricultural Research (ICAR) (Temporary Service) rules, 1965 (hereinafter referred to as 'rules' for short) and therefore, the provisions of the I. D. Act is not applicable; that as the petitioner establishment is a Central Government undertaking, the respondent-workman shall have to approach the Central Administration tribunal for getting her grievances redressed. Thirdly, he contended that since the respondent-workman was still under probation, the termination order issued against her is an order of discharge simpliciter and that therefore, no enquiry need be held against the respondent; that the discharge of a probationer under the Rules without any stigma to her employment does not amount to termination and consequently, the dispute itself is not maintainable. On these grounds, he prayed for setting aside the award passed by the 'tribunal'.
( 5 ) PER contra, Sri N. G. Padake, learned Counsel appearing on behalf of the respondent-workman vehemently contended that the petitioners' establishment is an industry and that the respondent is the workman. The contention of the petitioner that the petitioners' establishment is not an industry, was not taken either before the conciliation proceedings or before the Labour Court; Such a contention is taken for the first time before this Court; that the petitioners' establishment is a society registered
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