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2019 Supreme(Del) 2049
IN THE HIGH COURT OF DELHI AT NEW DELHI
J.R. Midha, J.
M/S Deccan Charters Private Limited - Appellant
Vs.
Sarita Tiwari - Respondent
Writ Petition (Civil) No. 3422 of 2014; Civil Miscellaneous No. 7040 of 2014, 30976 of 2019
Decided On : 27-08-2019
Praveen Kumar, Advocate, Rishi Jain, Advocate
Termination of a probationer's service during the extended probation period does not amount to retrenchment under the Industrial Disputes Act.
Headnote:
Probationer - Labour Dispute - Industrial Disputes Act, Section 2(oo)(bb), Section 2(s) - M. Venugopal v. Divisional Manager, (1994) 2 SCC 323; Escorts Limited v. Presiding Officer, (1997) 11 SCC 521; Kalyani Sharp India Ltd. v. Labour Court No. 1 Gwalior, (2002) 9 SCC 655; Mahinder Singh v. Indian Airlines Ltd., 2016 SCCOnLineDel 5008 - The court discussed the termination of a probationer's service and its classification under the Industrial Disputes Act, emphasizing that termination during the probation period does not amount to retrenchment. The court referred to various cases to establish that termination during the probation period is not considered retrenchment under the Act.
Fact of the Case:
The petitioner challenged the ex-parte award of the Labour Court, contesting the reinstatement with full back wages awarded to the respondent. The respondent, appointed as 'Trainee AME,' was terminated during the extended probation period. The Labour Court held the termination to be illegal and granted reinstatement with full back wages and continuity of service to the respondent.
Finding of the Court:
The court found that the respondent, being a probationer, was not a 'workman' within the definition of Section 2(s) of the Industrial Disputes Act. The termination during the extended probation period did not amount to retrenchment under Section 2(oo)(bb) of the Act. The court set aside the award of the Labour Court granting reinstatement with back wages to the respondent.
Issues: The issues revolved around the legality of the termination of the respondent's service during the extended probation period, the classification of the respondent as a 'workman' under the Industrial Disputes Act, and the applicability of the provisions related to retrenchment.
Ratio Decidendi: The court held that the termination of a probationer's service during the extended probation period does not amount to retrenchment under the Industrial Disputes Act. The court relied on precedents such as M. Venugopal v. Divisional Manager, Escorts Limited v. Presiding Officer, Kalyani Sharp India Ltd. v. Labour Court No. 1 Gwalior, and Mahinder Singh v. Indian Airlines Ltd. to support its decision.
Final Decision: The writ petition was allowed, and the award of the Labour Court granting reinstatement with back wages to the respondent was set aside. However, the amount paid by the petitioner to the respondent under Section 17-B of the Industrial Disputes Act was not to be recovered.
JUDGMENT :
J.R. Midha, J.
The petitioner has challenged the ex-parte award of the Labour Court whereby the Labour Court awarded reinstatement with full back wages to the respondent.
2. The petitioner appointed the respondent as "Trainee AME" on 01st August, 2006 at a monthly salary of Rs. 15, 000/-. The terms of the appointment of the respondent are contained in the appointment letter dated 01st August, 2006. Clause D of the appointment letter provides that the respondent shall be on probation for three months from the date of joining and she shall be deemed to continue on probation until confirmed in writing and such period, after initial period of probation, shall be deemed to be an extension of probation. Clause E of the appointment letter provides that the respondent's services can be terminated during the probation or extended probation by giving seven days notice in writing and payment in lieu thereof. Clauses D and E of the appointment letter are reproduced hereunder:
"(D) You will be on probation for a period of three months from the date of your joining. Until confirmed in writing, you shall be deemed to continue on probation and any such period after initial period of probation shall be deemed to be extension of probation.
(E) During the period of your probation or extended probation your contract may be terminated by either side without assigning any reason thereof and by giving seven days notice in writing or payment in lieu thereof."
(Emphasis supplied)
3. The job profile of the respondent was training oriented. The job profile of the respondent is given in para 3(a) of the writ petition which has not been disputed by the respondent in corresponding para 3(a) of reply on merits in the counter affidavit. The relevant portion of para 3(a) of the writ petition is reproduced hereunder:
"3(a) ... The job profile of Respondent was training oriented and she was supposed to do following things:
(i) Follow the good maintenance practice as per (Airworthiness Advisory Circular) AAC No.3 of 2000 Date: 3rd February, 2000.
(ii) Be familiar with current regulations (CAR, AAC, AIC, Aircraft Rules etc.), quality control cum quality assurance manual, maintenance system manual and engineering organisation manual.
(iii) Familiarise with AMM, IPC, WDM, CMM, SB, SILs, AD.
(iv) To learn about the basics of aircraft system since she was not having sufficient knowledge of Avionics.
(v) Read and understand the avionics equipment installed on aircraft, their functions and testing procedures.
(vi) Understanding the aircraft system block diagrams, wiring diagrams and troubleshoot guides.
(vii) To assist the Engineer for carrying out the scheduled/unscheduled inspection on aircraft Avionics system.
(viii) Have proper knowledge of tools/test equipment and should have thorough knowledge to use/operate them.
(ix) Keep the test equipment, tools and equipment clean, neat and tidy.
(x) Ensuring the required tools, test equipments and required literatures/documents/procedures/task cards are available for the work.
(xi) Understand the safety requirements and follow it while working on aircraft.
(xii) Carry out the work as per concerned AME's instructions;
(xiii) Removal and installation of avionics equipment as and when required under supervision.
(xiv) Securing of panels, clearing of tools, personal belongings from the aircraft and ensuring no loose articles left behind.
(xv) Providing support to carry out defect analysis and rectification.
(xvi) Keeping record of work carried out by the individual under supervision by maintaining the personal logbook duly signed by the Engineer concerned."
(Emphasis Supplied)
4. According to the petitioner, the respondent's performance was not satisfactory and therefore, she was not confirmed; on 13th October, 2006 i.e. within the initial period of probation, a warning letter was issued to the respondent that she was not punctual in reporting to the office and had little interest in work; on 07th August, 2007, the petitioner issued a show ca
