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1992 JLJ 665
R.C. Lahoti and S.K. Chawla, JJ.
Mukhtyar Singh v. Food Corporation of India & others
M.P. No. 489 of 1989; Decided on 8.8.1992.
(2) Industrial Disputes Act, 1947 - S. 11A -- no domestic enquiry held by employer before termination or dismissal of employee -Labour Court or Tribunal may give opportunity to employer to justify the action-employee may also be asked to adduce evidence in rebuttal-employee cannot be re-instated simply because no enquiry or a defective enquiry was held. AIR 1965 SC 1603 and AIR 1973 SC 1227 followed. [Paras 9 to 11
(3) Industrial Disputes -- employer may dismiss or discharge his employee without conducting any enquiry -before Tribunal he may justify his action on evidence. [Para 14
(4) Industrial Disputes Act, 1947 - S. 11A - employees service terminated without enquiry - employer can show misconduct of the employee before Labour Court by adducing evidence justifying his action of termination.
With respect to an innocuous order of termination of a workman it was open to an employer in such a case, when the matter went before the Labour Court, to show that the order was really a punitive order based on misconduct of the employee and to adduce evidence before the Labour Court in justification of the order. 1992 JLJ 461 relied on.
The petitioner in the present writ petition contends that the termination order should be held to be illegal precisely because it was a cloak for punitive action and not preceded by any enquiry. Even with respect to such innocuous termination orders, the above decision recognises the right of the employer to show that it was really an act of disciplinary action founded on misconduct of the employee and to adduce evidence before the Labour Court in justification of the order. [Para 15
(5) Industrial Disputes Act, 1947 – S. 2 (oo) - termination by way of punishment -not retrenchment. [Para 17
(6) Industrial Disputes Act, 1947 -- Ss. 2 (oo) sub-Cl. (bb) and 25F -employee‘s services terminated under second part of sub- clause (bb) in accordance with stipulation of service condition - - it being excepted category is not retrenchment -conditions of S. 25F need not be fulfilled.
In the present case, our attention was drawn by the respondents to stipulation numbered (ii) in the petitioner‘s letter of appointment (Annexure P-11), which is to the effect that during the period of probation the petitioner shall be liable to be discharged from service by giving him a notice of 30days or pay and allowances in lieu thereof. The petitioner‘s service was terminated under this stipulation contained in the contract. The termination therefore, fell within second part of sub-Clause (bb) of Clause (oo) of section 2 of ID Act, 1947 and being one of the excepted categories was outside the ambit of retrenchment. If it was not retrenchment, there was no question of fulfilling of any of pred`requisites of a retrenchment. The termination was in the circumstances not invalid. 1985 LIC 1833 relied on. [Para 22
¼1½ Hkkjr dk lafo/kku && vuq- 311 ¼2½ && fdlh deZpkjh dh inP;qfr && /;ku nsus ;ksX; ;g gS fd D;k mica/k vFkok mlls ln`‘k fdlh mica/k dk izR;{k vfrØe.k gqvk vFkok ughaA , vkb vkj 1984 ,l lh 636] , vkb vkj 1984 ,l lh 1110] 1988 ts ,y ts 164] , vkb vkj 1976 ,l lh 338] , vkb vkj 1980 ,l lh 42] , vkb vkj 1985 ,l lh 603] , vkb vkj 1991 ,l lh 1310] , vkb vkj 1991 ,l lh 1490] ¼1991½ 1 ,l lh lh 691 rFkk , vkb vkj 1992 ,l lh 496 izHksfnrA ¿ iSjk 7 ,oa 11À
¼2½ vkS|ksfxd fookn vf/kfu;e] 1947 && /kkjk 11d && fu;kstd }kjk deZpkjh dh lsok lekfIr vFkok mls gVk, tkus ds iwoZ dksbZ ?kjsyw tk¡p ugha djkbZ xbZ && Je U;k;ky; vFkok vf/kdj.k fu;kstd dks dkjZokbZ U;k;ksfpr Bgjkus ds fy, volj ns ldrk gS && deZpkjh ls Hkh [kaMu dk lk{; nsus ds fy, dgk tk ldrk gS && deZpkjh ek= bl dkj.k ls iqu% LFkkfir ugha fd;k tk ldrk fd tkap ugha dh xbZ Fkh vFkok tk¡p =qfViw.kZ FkhA , vkb vkj 1965 ,l lh 1603 rFkk , vkb vkj 1973 ,l lh 1223 vuqlfjrA ¿ iSjk 9 ls 11À
¼3½ vkS|ksfxd fookn && fu;kstd vius deZpkjh dks fcuk dksbZ tkap lapkfyr fd, inP;qr vFkok lsoksUeqDr dj ldrk gS && vf/kdj.k ds le{k og vius vfHkdk;Z dks lk{; }kjk U;k;ksfpr Bgjk ldrk gSA ¿ iSjk 11À
¼4½ vkS|ksfxd fookn vf/kfu;e] 1947 && /kkjk 11d && deZpkjh dh lsok fcuk tk¡p djk, lekIr dh xbZ && fu;kstd Je U;k;ky; ds le{k lsok lekfIr ds vius vfHkdk;Z dks U;k;ksfpr Bgjkrs gq, lk{; nsdj deZpkjh dk vopkj nf‘kZr dj ldrk gSA
fdlh deZdkj dh lsok lekfIr ds gkfu jfgr vkns‘k ds laca/k esa tyc ekeyk Je U;k;ky; ds le{k vk,] fu;kstd dks ,sls ekeys esa ;g vuqKkr Fkk fd og n‘kkZ, fd vkns‘k deZpkjh ds vopkj ij vk/kkfjr okLro esa naMkRed vkns‘k ;k rFkk vkns‘k dks U;k;ksfpr Bgjkus ds fy, Je U;k;ky; ds le{k lk{; izLrqr djsA 1992 ts ,y ts 461 voyafcrA
bl fjV ;kfpdk esa ;kph dk izfrokn gSA fd lsoklekfIr ds vkns‘k dks izferr% blfy, voS/k Bgjk;k tkuk pkfg, D;kasfd og naMkRed dkjZokbZ ds fy, ,d cgkuk Fkk rFkk mlls iwoZ dksbZ tk¡p ugha djkbZ xbZA ,sls gkfu jfgr lsok lekfIr vkns‘kks ds Hkh laca/k esa] Åij mfYyf[kr fofu‘p; fu;kstd ds bl vf/kdkj dks ekU;rk nsrk gS fd og n‘kkZ, fd og deZpkjh ds vopkj ij vk/kkfjr okLro esa vuq‘kklukRed dkjZokbZ dk dk;Z rFkk vkns‘k dks U;k;ksfpr Bgjkus ds fy, Je U;k;ky; ds le{k lk{; izLrqr djsA ¿ iSjk 15À
¼5½ vkS|ksfxd fookn vf/kfu;e] 1947 && /kkjk 2¼.k .k½ && naM }kjk lsok lekfIr && N¡Vuh ugha gSA ¿ iSjk 17À
¼6½ vkS|ksfxd fookn vf/kfu;e] 1947 && /kkjk 2¼.k .k½ mi[kaM ¼[k [k½ rFkk 25p && lsok ‘krZ ds vuqca/k ds vuqlkj mi[kaM ¼[k [k½ ds f}rh; Hkkx ds v/khu deZpkjh dh lsok lekIr dh xbZ && og viokfnr izoxZ gksus ds dkj.k N¡Vuh ugha gS && /kkjk 25p dh ‘krksZa dh iwfrZ vko‘;d ughaA
bl ekeys esa] izR;FkhZx.k }kjk gekjk /;ku ;kph ds fu;qfDr i= ¼mikca/k ih &11½ ds vuqca/k Øekafdr ¼2½ dh vkjs vkdf"kZr fd;k x;k] tks fd b l vk‘k; dk gS fd ifjoh{kk dh dkykof/k ds nkSjku 30 fnu dh lwpuk vFkok mlds cnys esa osru rFkk HkRrs ;kph dks nsdj mlds lsoksUeqDr fd;k tk ldsxkA ;kph dh lsok lafonk esa vrfoZ"V bl vuqca/k ds v/khu lekIr dh xbZ FkhA vr%] lsok lekfIr vkS|ksfxd fookn vf/kfu;e] 1947 dh /kkjk 2ds [kaM ¼.k .k½ ds mi[kaM ¼[k [k½ ds nwljs Hkkx ds v/khu vkbZ rFkk viokfnr izoxksZa esa ls ,d gksus dkj.k N¡Vuh dh ifjf/k ds ckgj Fkha tc og N¡Vuh ugha Fkh rc N¡Vuh dh fdlh Hkh iwokZis{kkvksa dh iwfrZ dk dksbZ iz‘u gh ugha FkkA bu ifjfLFkfr;ksa esa lsok lekfIr vfof/kekU; ugha FkhA 1985 ,y vkb lh 1833 voyafcrA ¿ iSjk 22À
S.K. Chawla, J. -1. The petitioner in this petition challenges the order of termination of his service, claiming re- instatement with back wages.
2. The petitioner Mukhatyar Singh was appointed Assistant Grade III (Accounts) in Sports Quota, vide letter of appointment dated 30.12.1987 (Annexure P-11) by Senior Regional Manager, Food Corporation of India, Bhopal (respondent No.2 herein). He was posted at Gwalior and joined his duties on 31.12.1987, vide Annexure P-12. His appointment was on probation for one year, which could be extended by a further period not exceeding one year. His services were, however, terminated with immediate effect on payment of one month's salary in lieu of notice- period, vide termination order dated 15.11.1988, Annexure P-17. It will thus be seen that petitioner remained in service for a little less than one year.
3. The case of the petitioner is that his termination was arbitrary, illegal and unconstitutional. No enquiry was held regarding any allegations against him, nor was he given any opportunity of giving an explanation. The termination order was penal in nature and against Service Rules of the Food Corporation of India. Hence, it deserves to be quashed. At any rate, activities of the Food Corporation of India are covered within the ambit of the expression "industry" as defined in section 2 (j) of the Industrial Disputes Act, 1947. The petitioner was "workman" and had worked for more than 240 days before his termination. His termination amounted to retrenchment. But since his retrenchment did not fulfil the three essential valid conditions given in section 25-F of the Industrial Disputes Act, 1947, viz., one month's notice in writing indicating reasons for his retrenchment, payment of retrenchment compensation according to measure given in Clause (b) and notice in the prescribed manner to the appropriate Government, his retrenchment was void ab initio and on this ground also the petitioner deserves to be reinstated.
4. The case of the respondents is that a letter was received from Member Secretary, Sports Promotion Board, F.C.I. Head-Quarters, New Delhi, dated 9.5.1988 (Annexure R-I) informing inter alia that in the FCI Athletic Meet held in New Delhi in February 1988, the petitioner representing the West Zone had withdrawn from 5000 metres run and had also failed to complete 10,000/- metres run. His performance at the Athletic Meet was unsatisfactory and it was suggested that no useful purpose would be served by allowing him to continue in the Food Corporation of India. The respondents having reached satisfaction about the unsuitability of the petitioner, the services of the petitioner were terminated before his probation period was over. The termination was done in accordance with terms and conditions given in his appointment order and also in accordance with Regulation 15 of FCI (Staff) Regulations, 1971, providing that an employee could be discharged from service before his probation period was over without assigning any reason by giving him notice of 30 days or pay and allowances in lieu thereof. The petitioner was not entitled to any further compensation. There was no question of making any kind of formal enquiry against the petitioner or to issue him any charge-sheet or to offer him any opportunity of hearing, since the termination of the petitioner was discharged from his service in accordance with terms and conditions of his appointment and also in accordance with the said Regulations.
5. The two questions that need to be addressed are: Whether termination order (Annexure P-17) worded innocuously and casting no stigma was, what the petitioner calls, illegal, void and unconstitutional ? Secondly, whether the said termination, at any rate, amounted to retrenchment and the same was void ab initio as it did not fulfil the mandatory conditions laid down in section 25-F of the Industrial Disputes Act, 1947?
6. Learned counsel for the petitioner argued that petitioner was really punished fo
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