High Court · 2012

Order

This Writ Petition is filed seeking to issue a Writ of Certiorari calling for the records in I.D.No.2 of 1998 on the file of the Industrial Tribunal-I, Hyderabad, and quash the award, dated 16.02.1999, passed therein and also to direct respondent No.2-bank to reinstate the petitioner into service with full back wages and all other benefits. The petitioner raised an industrial dispute in I.D.No.2 of 1998 before the Industrial Tribunal-I, Hyderabad. By the the Tribunal impugned award, dated 16.02.1999, dismissed the said I.D. Questioning the same, the present Writ Petition is filed. The case of the petitioner before the Industrial Tribunal was that she was directed by respondent No.2- bank to undergo training for a period of one month at Staff Training College, Hyderabad, and she completed the same successfully.

After that, she was appointed as a Clerk on probation, vide orders, dated 04.09.1973, in Vijayawada Main Branch of Syndicate Bank and she was served with another appointment order in Form-‘S’ under the provisions of Andhra Pradesh Shops and Establishments Act, 1966. Thereafter, she was transferred to Buchinghampet Branch, Vijayawada, on or about 19.01.1974. Her probation was extended by three months from 12.03.1974 as per the order, dated 04.03.1974. Further, it was her case that during her service, she worked with all sincerity and efficiency, and her performance was to be reviewed by the end of the probation period i.e., 11.06.1974. She was waiting for her confirmation in the services of the Bank as a Clerk, but she was illegally stopped from service by proceedings, dated 30.05.1974, intimating that she would be relieved from the services of the Bank with effect from 11.06.1974, without assigning any reasons thereof.

The Manager of the Buchinghampet Branch, Vijayawada, issued a memo, dated 11.05.1974, indicating that he had preconceived and determined mind as against the confirmation of the petitioner. Aggrieved by the same, she sent number of representations, but in vain. She has also sent a legal notice through her advocate on 15.04.1993, demanding for her reinstatement and payment of back wages, in turn, that her the Local Manager of found unsatisfactory during her performance was therefore, her services were probation period and terminated with effect from 11.06.1974. Thereafter, she sent representations and reminders protesting against the said observations, but her representations were not considered.

It was her further case that she was not given an opportunity of being heard before termination of her services. Therefore, she raised the industrial dispute. the Bank replied It was her further case that her appointment was governed by various provisions of the Andhra Pradesh Shops and Establishments Act,1966 as well as Industrial Disputes Act, 1947 (for short ‘the I.D. Act”), which provides for issuance of show cause notice, charge sheet, etc., but the bank did not do so. Hence, the observations made by the Local Manager, Joint Staff Controller, are said to be arbitrary. The original proceedings, dated 11.05.1974, of the Local Manager, serving the proceedings of the Bank, dated 30.05.1974, is a clear act of colourable exercise of administrative power, amounting to punitive proceedings causing a stigma to the petitioner, without due enquiry into the matter, which is unsustainable.

The request of the petitioner for reinstatement was not considered by the Bank. Hence, she approached the Conciliation Officer, but it ended in failure, which resulted in this Industrial Dispute. Her further case was that there was no delay on her part in referring the dispute and therefore, the alleged delay is not a ground for denial of justice to her. It was her further case that the I.D.Act protects her, but the bank authorities did not follow the same, and that stopping her illegally from the services amounts to illegal dismissal, which is not supported on facts or on law, and the proceedings, dated 30.05.1974, as well as 15.05.1993, of the Bank are null and void and liable to be set aside.

A detailed counter-affidavit is filed by respondent No.2-Bank contending that the bank dispensed with the services of the petitioner in the year 1974 at the end of the extended period of probation. The appointment order clearly shows that her services will be terminated without assigning any reasons at any time during probation, giving one month’s notice or salary in lieu of the notice. Initially, she was appointed for a period of six months on probation with a clause that the bank may extend the period of probation to a maximum period of nine months. During her probation period, the Management was not satisfied with her performance. Accordingly, she was served with a letter, dated 30.05.1974, intimating that her services will be dispensed with effect from 11.06.1974 i.e., at the end of the probation period as per the terms and conditions of her appointment order.

She was paid one month’s salary in lieu of the notice period. Accordingly, she was relieved of her services after office hours on Industrial 11.06.1974. Subsequently, she raised dispute after 20 years. Respondent No.2-bank submitted detailed remarks to the Government of India, Ministry of Labour, vide letter, dated 12.04.1994, that the dispute raised by the petitioner is hit by delay and laches. Taking the same into account, the Government of India closed the matter. Thereafter, the Government of India reopened and referred the dispute without looking into any legal aspects and limitation/laches. Therefore, the reference itself is liable to be dismissed on the ground of delay and laches. the

The further contention of respondent No.2-bank was that the services of the petitioner were dispensed with during her probation period in terms of the appointment order, and that too, after paying one month’s salary in lieu of the notice. Hence, the Bank fulfilled the terms and conditions at the time of her termination, as per the appointment order. There is no merit in the dispute raised performance of the petitioner was found not satisfactory. However, the bank issued memos and also extended her probation period for three more months, in spite of that, there was no improvement and she was not at all showing any interest in the work in spite of the notice. Therefore, the bank decided not to confirm her services. the petitioner. Right the beginning, to which The further contention of respondent No.2-bank was that whenever a candidate’s performance is appraised during the probation period, invitation of disciplinary action or conducting the enquiry does not arise. It is admitted that the petitioner issued a legal notice to the bank on the bank gave a reply on 15.04.1993, 15.05.1993. It is contended that the petitioner sent the said notice after a lapse of 19 years, and that itself indicates how diligent she is even in her personal work. The petitioner misconstrued the legal provisions as well as the provisions of the enactment. The petitioner is not entitled to the reliefs claimed for and accordingly, sought for dismissal of the said I.D. In support of her case, the petitioner got herself examined as W.W-1 and marked Exs.W-1 to W-35, while respondent No.2-bank examined its officer as M.W-1 and marked Exs.M-1 to M-7. Having regard to the pleadings of the parties and also the evidence on record, the Industrial Tribunal framed the following points for consideration: - “Whether the action taken by the Management in the services of terminating the petitioner-Smt S.Ramadevi is legal and justified and if not, what relief the petitioner is entitled to?” The Tribunal observed that the said reference, under Section 10(1)(d) of the I.D. Act, arises out of the termination of services of Smt S.Ramadevi, who was employed as a Clerk on probation in Vijayawada Main Branch of Syndicate Bank on the terms and conditions in Ex.W-5-apointment incorporated 04.09.1973. order, While answering the aforesaid points, the Industrial Tribunal negatived the claim of the petitioner in paragraph Nos.38 and 39 of the impugned award, and dismissed the I.D., which reads as under: - “Hence, I conclude on consideration of various contentions of the parties and the material placed on record that there are no grounds to hold that the action of the Management in terminating the services of the petitioner, S.Ramadevi, in question, with effect from 11.06.1974 is not justified. The point is answered accordingly. In the result, an award is passing holding that the petitioner is not entitled to relief of reinstatement as the action of the respondent in terminating the services of the petitioner is legal, justified and for sufficient reasons and not motivated or biased and as no stigma is attached in terminating her services. Learned counsel for the petitioner contended that the impugned award passed by the Industrial Tribunal is not in accordance with law. As regards the finding of the Tribunal that that there is a delay of 20 years on the part of the petitioner in approaching the authorities and the same is fatal to the claim of the petitioner, he contended that in case of workman, even if he approaches the Labour Court belatedly, the ground of delay can never be a point for consideration because the I.D. Act does not prescribe any limitation for the purpose of entertaining the claim petitions filed by the workman. He further contended that the termination of services of the petitioner amounts to retrenchment within the meaning of Section 2(o) (o) of the I.D. Act and the same is void ab initio due to violation of Section 25-F of the I.D. Act as she worked for more than 240 days i.e., from 04.09.1973 to 11.06.1974, which is however, disputed by respondent No.2-bank. Learned counsel for the petitioner relied on the judgments of the Supreme Court in Santosh Gupta V. State [2] , and Mohan Lal V. Bharat Electronics Ltd Bank of India [1] Corpn. of Madras V. M.K.Buhari [3] . the petitioner, even He further contended that there is violation on the part of respondent No.2-bank in not following Section 25-F of the I.D. Act. He submitted that in lieu of termination of retrenchment services of compensation was not paid to her. Therefore, the Writ Petition is filed for setting aside the impugned award of the Industrial Tribunal and consequently, for a direction to respondent No.2-bank to reinstate the petitioner into service with full back wages and all other benefits. On learned the other hand, Ms B.Uma Devi, Standing Counsel appearing for respondent No.2-Bank, would submit that the Industrial Tribunal framed the issues for consideration, discussed the issues adverting to the evidence on record and the arguments advanced from either side and concluded that the petitioner is not entitled for any relief and consequently, the claim of the petitioner was negatived in the impugned award rightly. She further submits that neither there is any perversity nor illegality in the impugned award so as to call for interference by this Court under Article 226 of the Constitution of India. She further the petitioner approached the authorities concerned after a lapse of 19 years for redressal of her grievance and that, no reasons contended are forthcoming for such abnormal delay and as such, it is fatal to her case. In support of her contention, she relied upon the judgment of the Supreme Court in Nedungadi [4] Bank Ltd V. K.P.Madhav Kutty She further contended termination of services of the petitioner from respondent No.2-bank does not amounts to retrenchment within the meaning of Section 2(o)(o) of the Act, therefore, Section 25-F of the I.D. Act does not apply to the instant case and the same is rightly held by the Industrial Tribunal. In support of her contention she relied upon the decision of the Supreme in M.Venugopal V. Divnl. Manager, LIC of India, Court Machilipatnam. [5] She contended that the petitioner was terminated during the period of probation since she has not improved her performance for the better administration in spite of giving cautions by the Management through memos on several occasions. As such, as per the terms and conditions of her appointment order, she was terminated from the services of respondent No.2-bank, which in no way causes any stigma to her and it is only a termination simplicitor. Therefore, Section 25-F of the I.D. Act is not attracted. In support of her contention, she relied on the decision of the Supreme Court in Governing Council of Institute of Oncology, Bangalore V. Kidwai Memorial Dr.Pandurang Godwalkar [6] . Having regard to the facts and circumstances of the case, the points that arise for consideration in the present Writ Petition are as follows: - (1) Whether the Industrial Tribunal was right in there was the conclusion coming inordinate delay of 19 years on the part of the petitioner in approaching the authorities? (2) Whether the termination of services of the petitioner by respondent No.2-bank amounts to retrenchment within the meaning of Section 2(o) (o) of the I.D. Act? (3) Whether Section 25-F of the I.D. Act would attract in the facts and circumstances of the case? (4) Whether the impugned award suffers from any legal infirmity or perversity? the case are The undisputed facts of respondent No.2-bank issued a notification in the year 1971 calling for the applications with a view to fill up certain vacancies of the post of Clerk, in response to which, the petitioner submitted an application. In the interview conducted by respondent No.2-bank on 18.01.1971, the petitioner was selected to the post of Clerk. Accordingly, she was sent a letter, dated 12.06.1973, to the effect that she was selected to undergo training for a period of one month. After completion of the training, she was given appointment order, dated 04.09.1973, and was put on probation for a period of three months. Thereafter, by orders, dated 04.03.1974, her probation period was extended for three more months with effect from 12.03.1974. Subsequently, by proceedings, dated 11.06.1974, she was terminated from the services of respondent No.2-bank on the ground that her services were not satisfactory. Issue No.1: As seen from the record, it is not in dispute that the petitioner was intimated by respondent No.2-bank through its proceedings, dated 30.05.1974, that she would be relieved from its services on 11.06.1974. After receiving the said proceedings, there was no response from the petitioner. But, after a lapse of 19 years on 15.04.1993, the petitioner got issued a legal notice to respondent No.2-bank demanding for her reinstatement with full back wages, which is marked as Ex.W-10. The reply, dated 15.05.1993, issued by respondent No.2-bank, to the said notice stating that there is a delay of 19 years on the part of the petitioner in approaching the authorities concerned and as such, it is not tenable, was marked as Ex.W-11. No doubt, in the Industrial Disputes Act, 1947, there is no provision prescribing the period of limitation for approaching the Industrial Tribunal by an aggrieved workman, but the reasonableness of response of a workman to be considered. to his/her grievance is a matter In the instant case, it is not as if after the petitioner approached the authorities concerned for redressal of her grievance under the provisions of the I.D. Act, any substantial delay had caused on the part of the officials in considering the matter, right from the Labour Officer (Conciliation Officer) till adjudication of the I.D. by the Industrial Tribunal. On the other hand, the delay is wholly attributable to the petitioner herself in approaching the authorities concerned. The petitioner was terminated from services of respondent No.2-bank with effect 11.06.1974. She slept over the matter for nearly 19 years and got issued legal notice-Ex.W-10 to respondent No.2- legal notice, no bank on 15.04.1973. acceptable reasons have been assigned for such an inordinate delay. the said In [7] In Asst. Exec. Engineer Vs. Shivalilnga , where there was delay of 9 years in approaching the Labour Court, the Supreme Court held that such a delay on the part of the workman in approaching the authorities disentitles the workman from making any claim. Therefore, I am of the considered view that the Industrial Tribunal has not committed any illegality in coming to the conclusion that there is inordinate delay on the part of the petitioner in pursing the matter. Issue No.2 and 3: Section 2(o)(o) of the I.D. Act defines the word “retrenchment” as follows: - “retrenchment “means the termination by the employer of the service of a workman for any reasons whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include – (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (b)(b) termination of the service of the workman as a result of the non-renewal of the contract of the employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill-health.” Section 2(o)(o) to Section 2 (o) of the I.D. Act was inserted by Act 43 of 1953 with effect from 24.10.1953. Section (b)(b) was inserted by Act 49 of 1984 with effect from 18.08.1984. Therefore, as rightly submitted by the learned Standing Counsel for the petitioner the termination of the services of the petitioner from respondent No.2-bank was in the year 1974, i.e., much prior to the exceptions incorporated under Clause (b)(b) to Section 2 (o) of the I.D. Act. Therefore, the proceedings, dated 30.05.1974, of respondent No.2-bank, terminating the petitioner from its services does not fall within the meaning of clause (b)(b) to Section 2(o) of the I.D. Act amounting to retrenchment. In the instant case, the petitioner services were terminated by virtue of clause No.6 of the order of appointment, which reads as under: - “If your work, conduct and progress are found in all aspects satisfactory, you may be confirmed in the service of the Bank otherwise your services will be dispensed with.” Having regard to the said clause, in the instant case, it is on record to show that the petitioner was given an opportunity to improve her calibre and performance during the period of probation, but ultimately, as there was no improvement, she was terminated from the services of respondent No.2-bank. As such, the termination of the services of the petitioner is only what is called “termination simplicitor” without causing any stigma, and the same is also in terms of the order of appointment. In that view of the matter also, as rightly held by the Industrial Tribunal the termination of the petitioner from the services respondent No.2-bank nomenclatured as “retrenchment”. cannot Further, the contention of the learned counsel for the petitioner that as the petitioner had worked 240 days in a year, terminating her from the services of respondent No.2-bank, without following the procedure contemplated under Section 25-F of the I.D. Act amounts to illegal termination/retrenchment holds no water because the order of termination of the petitioner is in accordance with the terms and conditions mentioned in her order of appointment. That apart, the petitioner was also issued notice on 30.05.1974 intimating that she would be relieved from the services of respondent No.2-bank on 11.06.1974 and she was also paid one month salary in lieu of notice of termination. Therefore, it cannot be said that respondent No.2-bank has not followed the procedure contemplated under Section 25-F of the I.D. Act. Issue No.4: Admittedly, in the instant case, the petitioner was appointed to the post of Clerk after completion of her training and her appointment was subject to confirmation. Initially, she was kept under probation for a period of three the period of probation was years and extended for a further period of three more months, giving her an opportunity to improve her performance. thereafter, Probation does not confer any right to the employee unless and until it is confirmed. Therefore, always the employer is at liberty to terminate the services of the employee if such an employee does not satisfy the conditions of employment during the course of his/her probation. In the instant case, admittedly, an opportunity was afforded to the petitioner to improve her calibre and performance by extending the period of probation by three more months over and above the initial probation period of three months. In such an event, the petitioner was expected to discharge her duties with application of mind on all the aspects knowing the impact of her services in dealing with the transactions. But, she failed to improve her calibre and performance. Therefore, as per clause No.6 of her order of appointment, dated 04.09.1973, the petitioner was terminated from the services of respondent No.2-bank vide proceedings, dated 30.05.1974. In that view of the matter, I am of the considered view that the impugned order the Industrial Tribunal holding that proceedings, dated 30.05.1974, of respondent No.2-bank terminating the petitioner from its services as legal, does not suffer from any illegality or perversity. Further, the Industrial Tribunal had considered each and every aspect on record, and after giving opportunity to the petitioner to defend her case, passed the impugned award, which does not suffer from any legal infirmity. Also it is not the case where the principles of natural justice have been violated. For the foregoing reasons, this Court is of the view that the impugned award does not call for any interference by this Court under Article 226 of the Constitution of India. The Writ Petition is, accordingly, dismissed. There shall be no order as to costs. is devoid of merits and 13th September 2012 DR ___________________ JUSTICE G.CHANDRAIAH [1] [2] [3] [4] [5] [6] [7] (1980) 3 SCC 340 (1981) 3 SCC 225 (2000) 9 SCC 496 AIR 2000 SC 839 AIR 1994 SC 1343 AIR 1993 SC 392 2002 (1) Suppl LLJ 457