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1989 Supreme(Mad) 46
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE VENKATASWAMI
T. R. Balaji - Appellant
Versus
Management of Indian Bank and Another - Respondents
Writ Appeal No. 1462/88
Decided On : 20 January 1989
An employer is entitled to terminate the services of a probationer if the employer has lost confidence in the probationer.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 12(3) - TERMINATION OF SERVICES - PROBATIONER - NON-DISCLOSURE OF INFORMATION - VALIDITY - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 12(3) - SETTLEMENT BETWEEN MANAGEMENT AND EMPLOYEES' UNION - EFFECT - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 12(3) - TERMINATION OF SERVICES - PROBATIONER - NON-DISCLOSURE OF INFORMATION - MATERIALITY - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 12(3) - TERMINATION OF SERVICES - PROBATIONER - NON-DISCLOSURE OF INFORMATION - PUNISHMENT - PROPORTIONALITY - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 12(3) - TERMINATION OF SERVICES - PROBATIONER - NON-DISCLOSURE OF INFORMATION - INTERFERENCE BY COURT - SCOPE.
Fact of the Case:
The appellant, a probationary employee of the respondent bank, failed to disclose information regarding a relation (father's stepbrother) in the service of the bank. The bank, invoking Clause 2 of the Terms and Conditions of the Appointment Order, terminated the appellant's services.
Finding of the Court:
The court held that the bank was justified in terminating the appellant's services. The court found that the appellant had suppressed material information and that the bank had lost confidence in him. The court also held that the impugned order was not by way of punishment and that the question of interfering with the punishment did not arise.
Issues: 1. Whether the bank was justified in terminating the appellant's services for non-disclosure of information regarding a relation in the service of the bank? 2. Whether the impugned order was by way of punishment and whether the court could interfere with the punishment?
Ratio Decidendi: 1. The court held that the bank was justified in terminating the appellant's services because the appellant had suppressed material information and the bank had lost confidence in him. The court relied on the Division Bench judgment in K. Palanikumar v. Indian Bank, (1982-I-LLJ-4), which held that an employer is entitled to terminate the services of a probationer if the employer has lost confidence in the probationer. 2. The court held that the impugned order was not by way of punishment and that the question of interfering with the punishment did not arise.
Final Decision: The court dismissed the writ appeal.
Venkataswami, J.
When the writ appeal came up for admission, notice of motion was ordered, Mr. Venkataraman, learned counsel appearing on behalf of Messrs. Aiyer and Dolia for the respondents.
2. The writ appeal is directed against the Order of Swamikkannu, J. in Writ Petition No. 4868/1981 dated 17th August 1988 declining to interfere with the Order of the 1st respondent Management dated 16th December 1980 in and by which the Management has terminated the services of the appellant.
3. The learned Judge has elaborately set out the facts leading to the filing of the writ petition. Hence we do not propose to repeat the same except to state the minimum facts necessary for appreciation the contentions raised by the learned counsel on both sides.
4. The appellant was initially recruited temporarily as a sub-staff (Peon) on 4th April 1977. Later on, by virtue of a settlement between the Management and the Employees' Union of the Bank entered into under Section12(3) of the Industrial Disputes Act, the appellant who was recruited as a temporary sub-staff, was appointed to the post and put on probation for a period of six months from 18th June 1980. It is common ground that the appellant failed to disclose against Column No. 7 in the Form of Application and also against Column - in the Service Joining Report information regarding a relation (father's stepbrother) in the service of the Bank. On coming to know of this failure on the part of the appellant, the respondent-Management, invoking Clause 2 of the Terms and Conditions of the Appointment Order, has passed the impugned Order of Termination.
5. Chellenging the Order of Termination, the appellant preferred Writ Petition No. 4868 of 1981. That Writ Petition came up for hearing before Swamikkannu, J., who, by his detailed Order, following a Division Bench judgment of this Court in K. Palanikumar v. Indian Bank reported in (1982-I-LLJ-4), a case more or less identical facts and arising out of an order of termination terminating the services of a probationer passed by the same Management, namely, Indian Bank, dismissed the writ petition. Aggrieved by the Order of the learned Judge, the present writ appeal has been filed. In fact, after hearing the learned counsel on both sides, we reserved judgment on 21st December 1988. However, at the request of the learned counsel for the appellant again the appeal was posted for further arguments and the matter was adjourned on more than one occasion, to find out whether the Management will agree for appointing the appellant afresh. Ultimately, the learned counsel appearing for the Management expressed the inability for giving appointment to the appellant. Hence we are dealing with the case on merits.
6. Miss Vaigai, learned counsel appearing for the appellant, submitted that the Division Bench judgment relied on by the learned single Judge is distinguishable on facts and in any event, there are subsequent judgments taking slightly a different view. According to the learned counsel, in the case on hand, the employment was on the basis of a settlement between the Employee's Union and the Management and, therefore, the failure to disclose the name of the relation in the employment of the Bank will not give the Management the power to invoke Clause 2 of the Order of Appointment. It is also submitted that the non-disclosure/assuming suppression is not material so as to attract the penalty of termination from service. In any event, the appellant was only a sub-staff (peon) and in the case dealt with by the Division Bench, the employee was a clerk, and therefore, the theory of loss of confidence was invoked in that case and the same cannot be applied to the facts of this case. Lastly, learned counsel submitted that in any event this Court can interfere with the punishment imposed and can award a lesser punishment if this Court is satisfied that the contention that the punishment awarded by the Management was not commensurate with the gravity of the
