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2012 Supreme(Del) 1721
IN THE HIGH COURT OF DELHI AT NEW DELHI
P.K. BHASIN, J.
Delhi Transport Corporation - Petitioner
Versus
Sh. R.K. Tiwari & Anr. - Respondents
W.P. (C) 3841/2000
Decided On : 19th July, 2012
Mr. Sarfaraz Khan, Advocate
Mr. Atul T.N., Advocate for Respondent-2
Termination of a probationer's services does not require an enquiry and does not amount to retrenchment under the Industrial Disputes Act.
Headnote:
Termination - Industrial Dispute - DRTA(Conditions of Appointment & Service) Regulations, 1952 - [Regulation 9] - [Section 25-F of the Industrial Disputes Act] - [Oil and Natural Gas Commission and Ors. Vs. Dr. Md. S. Iskender Ali, (1980) 3 SCC 428], [Shamsher Singh and Anr. v. State of Punjab, 1974 (1974)IILLJ465SC], [Parshotam Lal Dhingra v. Union of India, (1958) ILLJ 544 SC], [State of U.P. v. Ram Chandra Trivedi, 1977] [State of Maharashtra v. Veerappa R. Saboji and Anr., 1979] [Radhey Shyam Gupta vs. UP State Agro Industries Corporation Ltd. & Anr., JT 1998(8) SC 585], [State of UP and Ors. Vs. Ashok Kumar, (2005) 13 SCC 652], [M. Venugopal vs. Divisional Manager, (1994) 2 SCC 323]
Fact of the Case:
The respondent no. 2-workman, a conductor, was terminated during his probation period for selling used tickets. The Industrial Tribunal ordered his reinstatement, which was challenged by the petitioner-management.
Finding of the Court:
The court found that termination of a probationer's services does not require an enquiry and does not amount to retrenchment. The termination was held to be valid and not stigmatic or punitive.
Issues: Whether termination of a probationer's services requires an enquiry and amounts to retrenchment under the Industrial Disputes Act.
Ratio Decidendi: The court relied on various judgments to establish that termination of a probationer's services does not require an enquiry and does not amount to retrenchment.
Final Decision: The writ petition was allowed, and the Industrial Tribunal's award was set aside.
P.K.BHASIN, J:
In this writ petition the petitioner-management (DTC) assails the correctness of the award dated 11th January, 1999 passed by the Industrial Tribunal whereby the petitioner-management was directed to reinstate the respondent no. 2-workman, who was employed with it as a conductor and whose services were terminated during the period of his probation, with all consequential benefits.
2. The respondent no. 2 was appointed as a conductor by the petitioner on 16th, April, 1985 and his appointment was purely temporary. He was put on probation for a period of one year. On 29th July, 1985 while he was on duty on a DTC bus the checking officials of DTC intercepted that bus and during checking they found that the respondent no.2-workman had sold one used ticket of Re.1/- denomination to one of the passengers travelling in his bus and respondent no. 2 himself was found to be in possession of another used ticket of Re. 1 which was also meant to be resold. The respondent no.2 is stated to have accepted his fault and had assured not to repeat such a thing in future.
3. The petitioner-management, however, did not take a chance and terminated the services of the respondent no.2 workman in exercise of its power under clause 9(a)(1) of the DRTA(Conditions of Appointment & Service) Regulations, 1952(hereinafter to be referred to as Regulation 9) vide order dated 23rd, August,1985. Feeling aggrieved, the respondent no. 2 raised an industrial dispute which came to be referred for adjudication to the Industrial Tribunal.
4. The petitioner-management contested the claim of the respondent no. 2 and it had justified the termination of his services by taking a plea that he being on probation his services could be terminated without assigning any reason as per Regulation 9.
5. The Industrial Tribunal after trial answered the reference in favour of the respondent no. 2-workman and consequently his reinstatement in service was ordered. It was held in the impugned award that the termination of the services of respondent no. 2-workman was illegal since no enquiry was held against him nor any evidence was adduced by the petitioner – management before the tribunal to justify his termination.
6. Feeling aggrieved by the award of the industrial tribunal this writ petition was filed by the petitioner-management. It was contended by the learned Counsel for the petitioner-DTC that since respondent no. 2 was on probation when his services were terminated there was no necessity of either holding any enquiry against him nor was compliance of Section 25-F of the Industrial Disputes Act required to be done since the termination of the services of a probationer did not amount to retrenchment.
7. Mr. Atul T.N, learned counsel for respondent no.2-workman, on the other hand, contended that there is no scope for any interference by this Court in the award under challenge since no perverse conclusion had been arrived at by the Tribunal since admittedly no enquiry was held against the workman before getting rid of him and the same was necessary even if he was removed from service when he was still a probationer. It was contended that an industrial workman who enjoys certain privileges under the Industrial Disputes Act has to be dealt with in accordance with the provisions of this Act even if he happens to be a probationer.
8. In view of the fact that there is no dispute about the fact that services of respondent no. 2-workman were terminated when he was a probationer as per his contract of employment all that needs to be seen is as to whether an employer is required to conduct any enquiry against such an employee when some kind of misconduct on the part of the probationer is brought to the notice of the Disciplinary Authority during the period of probation and also whether the termination simpliciter of a probationer amounts to retrenchment or not.
9. Answers to these two legal questions are to be found in the judgments of the Hon’ble Supre
