Termination of service of a probationer in terms of the stipulation contained in the contract of employment does not tantamount to 'retrenchment' within the meaning of Section 2(oo) of the Industrial Disputes Act since it is covered by clause (bb) of Section 2(oo) of the Act. An express order of confirmation is required to confer the status of a confirmed employee.

SUNITA GUPTA, J.

1. Mahinder Singh, in this intra court appeal impugns the judgment of learned Single Judge dated 13th November, 2013 passed in WP(C) No. 7875/2001 titled as M/s. AIR India Ltd. vs. Mohinder Singh & Anr. whereby the award dated 19th July, 2001 passed by the Industrial Tribunal-III directing reinstatement of appellant-workman with continuity of service and full back wages was set aside and the writ petition filed by the respondent-management was allowed.

2. The facts in detail have been set out in the judgment of the learned Single Judge. Hence, we are not repeating the same except where necessary.

3. The appellant was initially appointed as a driver on temporary basis by the respondent on 29th July, 1986. The temporary appointment was extended from time to time for a period of 1 to 3 months. By the letter dated 29th June, 1987 the appellant was given regular appointment on the post of “driver” pursuant to his application and subsequent interview in a regular pay scale of Rs.480-14-620-16-700-18-754. He was to remain on probation for a period of one year initially with further stipulation that such probation period could be extended or alternatively his services may be terminated if performance was not found satisfactory. The relevant clause 4, as contained in the appointment letter dated 29th June, 1987, reads as under:-

“You will be on probation for a period of one year initially. If during such probationary period, your services are not found satisfactory, the period of probation may be extended or, alternatively, your service may be terminated.”

4. By the order dated 10th August, 1988, while the appellant was on probation, his services were terminated in terms of Clause 4 of the appointment letter vide termination letter which reads as under:-

“From:

COMPANY SECRETARY

& CHIEF MANAGER CORPORATE

AFFAIRS VAYUDOOT LTD.(HQRC)

SAFDARJUNG AIRPORT

NEW DELHI – 110003

To

MR. MOHINDRA SINGH

VAYUDOOT NEW DELHI

Ref. PF/HQ/Pers./2111 10-8-88

This has reference to your appointment letter No. PF/HQ/Pers/1489 dt. 29-6-87 for the post of Driver.

As per the clause no. 4 of the above mentioned letter, due to unsatisfactory performance your services are hereby being terminated with immediate effect.

SD/

(AMOD SHARMA)

CC: RM (HR)

SUPERVISOR (M.T.)

PERSONAL FILE”

5. Against the termination of his services, the appellant raised an industrial dispute which was referred to the Industrial Tribunal which held that there was violation of Section 25-F of the Industrial Disputes Act. Hence, the management was directed to reinstate the appellant with continuity of services and full back wages. The said award was challenged by the management by filing WP(C) No. 7875/2001 which was allowed and the order of the industrial tribunal was set aside.

6. The cornerstone of the submission of the learned counsel for the appellant is the Division Bench judgment in the case of Delhi Cantonment Board vs. Central Govt. Industrial Tribunal & Ors., 129 (2006) DLT 610. By placing reliance on this decision, learned counsel for the appellant submitted that in the industrial law there is no distinction between a permanent employee and a temporary employee and the learned Single Judge fell in error in following the judgment of a Single Judge in the case of Mahesh Chand vs. Management of M/s. LE Meridian, 2013 LLR 899. The conclusion arrived at by learned Single Judge was on an erroneous ground that the appellant was still on probation even though the probation period had already expired and, therefore, termination of his services did not amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act. On the other hand, the submission of learned counsel for the respondent/management was that the judgment in the case of Delhi Cantonment Board (supra) did not take into consideration the earlier judgments rendered by the Supreme Court in Kalyani Sharp India Ltd. vs. Labour Court No.1 Gwalior & Anr., (2002) 9 SCC 655; Escorts Limited vs. Presiding Offic