IMPORTANT POINT
Termination during probation does not require a show cause notice unless it is punitive in nature, as per the Sales Promotion Employees (Condition of Service) Act, 1976, and relevant case laws.

JUDGMENT :

Raja Vijayaraghavan, J.

This appeal is preferred assailing the judgment dated 6.12.2022 in W.P.(C) No. 18575/2022 passed by a learned Single Judge of this Court whereby the award dated 3.2.2022 passed by the Industrial Tribunal in I.D. No. 4/2019 ordering the reinstatement of the 1st respondent in service with continuity of service and payment of backwages with effect from the date of termination of service was set aside. The 1st respondent, who is the workman, has come up in appeal.

2. Short facts that are required to be stated for deciding the appeal are as under. For the sake of ease and clarity, the parties shall be referred to as Workman and Management.

a) In the claim statement before the Tribunal, the worker contended as under:

He was appointed by the Management as a Business Executive in their establishment by order dated 31.3.2018 and he continued to work as such till 31.5.2018. His service was blemishless and there was no case that the workmen had committed any act of indiscipline or misconduct. The Management, without stating any reason and without furnishing him an opportunity to show cause, terminated his service with effect from 31.5.2018, by serving a letter of termination. He contended that the order of termination was illegal and unjustifiable.

b) In their counter-statement, the Management contended that they are a Company engaged in the production and marketing of machinery in therapeutic segments. The workman was appointed as a ‘Probationary Business Executive’ on 31.03.2018 to carry out sales promotion. In the offer of appointment, it was made clear that the workman would be on probation for a period of 6 months, which could be extended by a further period of 6 months. The service of the workman could be terminated if the same was unsatisfactory. It is stated that the service was terminated on 31.05.2018 during the period of his probation. No notice was required to be issued for terminating the service of a probationer. The workman was not issued an order in writing confirming him as a worker of the company. It was by invoking the provisions of clause 9(ii)(b) of the appointment letter that the service was terminated. It was contended that the worker was in service only for a period of two months and it was when it was found that there was no marked improvement in his performance that his service was terminated.

c) The Tribunal framed necessary issues for consideration. The workman was examined as WW1 and Exts.W1 and W9 were marked on his side. On the side of the Management, the Area Business Manager was examined as MW1, and on their side, M1 to M3 were marked.

d) The Tribunal, after evaluation of the evidence, came to the conclusion that no acceptable evidence was adduced by the Management to the effect that a letter of appointment detailing the period of probation was served on the workman by them and he accepted it voluntarily. The contention of the workman that the Management had given placement to him without any probationary period was accepted. It was also held that no opportunity was granted to show cause and that the termination of the appointment without service of notice was bad under law. Holding so, the notice dated 31.5.2018 discontinuing probation of the workman was set aside and the workman was held entitled to reinstatement in service. Backwages due to the worker consequent to the order passed by the Tribunal were also ordered to be paid. The above award was challenged by the management in the writ petition.

e) The learned Single Judge relied on the Sales Promotion Employees (Condition of Service) Act, 1976, and noted that as per Rule 22 (1) of the Rules, the letter of appointment is required to be issued in Form A. As per the provisions of the Rules, the probation was to be for a period of six months which could be further extended by six months at the discretion of the employer, and within such time, the service could also be terminated. It was also held that there was no need for issui