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Gulam Mohd. Gulam Mustafa Salod Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberW.P. No. 1434 of 1981
Judge
Reported in[1985(51)FLR318]; (1994)IIILLJ810Bom
ActsIndustrial Disputes Act, 1947 - Sections 2 and 25F; Constitution of India, 1950 - Articles 141 and 144
AppellantGulam Mohd. Gulam Mustafa Salod
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateS.S. Pakale and ;J.G. Gadkari, Advs.
Respondent AdvocateK.R. Bulchandani, Adv. for Respondent No. 1 and ;U.J. Makhija, Adv. for Respondent No. 2
DispositionPetition allowed
Excerpt:
.....- appellant appointed on probation terminated from services - order of termination challenged - termination of probationer amounts to retrenchment - in present case provisions of retrenchment not complied with to terminate petitioner - termination order not sustainable. - - the initial one year period of probation was extended by the second respondent for further six months with effect from 1st january 1976. it is about the time when the said extended period of six months was to end, that the petitioner received memorandum dated 6th may 1976 to the effect that the petitioner had failed to show improvement in his area of performance and hence his services were terminated with immediate effect. on failure report the state government made reference to the presiding officer, first..........those which have been embodied in the definition; discharge from employment or termination of service of a probationer would also amount to retrenchment'.the stand of the employer there as that of the employer here, was that as the termination was on account of unsatisfactory performance during the period of probation,the same did not amount to retrenchment. this contention was rejected by the supreme court holding ____ to reiterate ___that :'..... termination of service of a probationer would also amount to retrenchment'.7. in the above ruling, the supreme court referred to its own earlier ruling in santosh gupta v. state bank of patiala : (1980)iillj72sc and quoted therefrom as under:-'if the definition of 'retrenchment' is looked at unaided and unhampered by precedent, one is at.....
Judgment:

S.C. Pratap, J.

1. The petitioner was employed as Airport Ticket Clerk with the Director General, Civil Aviation in the year 1968. He was on deputation with respondent No.2, International Airport Authority of India with effect from 1st April 1972. By letter of appointment dated 26th June 1975 respondent No.2 purported to appoint the petitioner as Airport Ticket Clerk with respondent No.2 with effect from 28th Jan. 1975 on terms and conditions mentioned in the said letter one of which as embodied in clause 3 thereof, was that the petitioner would be on probation for a period of one year from 1st January 1975 but which period may be extended or reduced depending upon his performance, attendance and bearing. Under the said clause further, if the petitioner's work was found satisfactory during the said period he may be confirmed. The initial one year period of probation was extended by the second respondent for further six months with effect from 1st January 1976. It is about the time when the said extended period of six months was to end, that the petitioner received memorandum dated 6th May 1976 to the effect that the petitioner had failed to show improvement in his area of performance and hence his services were terminated with immediate effect.

2. The petitioner thereupon approached the Union representing workmen employed by respondent No.2. The Union raised dispute in the matter of the petitioner's reinstatement. The Assistant Commissioner, Central (II) Bombay, submitted his report to the Ministry of Labour Government of India, on or about 2nd July 1976. Considering the said report the Central Government informed the petitioner that no action is being taken thereon as the Central Government was not the appropriate Government in relation to the International Airport Authority of India-respondent No.2 herein. The Union thereupon approached the Commissioner of Labour, Government of Maharashtra, for conciliation proceedings. On failure report the State Government made reference to the Presiding Officer, First Labour Court which by its award dated 30th March 1981 held that it had no jurisdiction to entertain the dispute since the reference was not made by the appropriate Government, which appropriate Government, ac- cording to the Labour Court, was not the State Government but the Central Government. The reference made by the State Government was thus held to be incompetent. Hence this petition.

3. The relief claimed in this petition is for setting aside not the above award but the order dated 6th May 1976 (Exhibit 'E') terminating the petitioner's services and for directing his reinstatement with continuity of service and full back wages. The Petitioner's learned Counsel submitted, and rightly so, that it is not necessary to challenge the impugned award and drive the petitioner back to the Labour Court, when it is open to him to challenge directly before this Court by way of the instant writ petition the impugned order terminating the petitioner's services. This inter alia because respondent No.2 International Airport Authority of India is a State within the meaning of Article 12 of the Constitution. In these circumstances merits or demerits of the award apart, this petition was heard on the merits of the impugned order terminating the petitioner's services.

4. And, on the merits it was at the outset contended by the petitioner's learned Counsel that the petitioner was neither in fact nor in law a probationer but was a permanent employee. He was appointed initially as long back as in the year 1968 with the Director-General of Civil-Aviation. He was in continuous service at all relevant times. With effect from 1st April 1972 he was sent on deputation with respondent No.2. There was in the circumstances no question of issuing to him a fresh letter of appointment as done by respondent No.2. The petitioner being, therefore, according to the learned Counsel, not a probationer but a permanent employee, the impugned order was liable to be struck down because it seeks to terminate the petitioner's services without any disciplinary enquiry, without any opportunity and without following the appropriate procedure. The : petitioner was, however, so submitted his learned Counsel, willing to have the merits of the impugned order adjudicated on the basis and assumption that he was a probationer. This was because in either event ___ permanent or probationer ___ the said order was unsustainable.

5. In view of the above, this Court need not go into the petitioner's status ___ permanent or probationer at the relevant time. This question is left expressly open. Incidentally, however, reference may be made to Clause (f) of Sub-section (1) of Section 12 of the International Airport Authority of India Act, 1971. The said clause runs as under:-

'every employee holding any office under the Central Government immediately before such day solely or mainly for or in connection with such affairs of the airport as are relevant to the functions of the Authority under this Act shall be treated at on deputation with the Authority but shall hold his office in the Authority by the same tenure and upon the same terms and conditions of service as respects remuneration, leave, provident fund, retirement or other terminal benefits as he would have held such office, if the Authority had not been constituted and shall continue to do so until the Central Government, either on its own motion or at the request of the Authority, with the concurrence of the Central Government duly absorbs such employee in its regular service, whichever is earlier'.

Plain reading of this clause shows that the petitioner employed initially by the Director General of Civil Aviation in 1968 shall after his deputation with the second respondent in April 1972 hold his office....

'by the same tenure and upon the same terms and conditions of service as respects remuneration, leave, provident fund, retirement or other terminal benefits as he would have held such office, if the Authority had not been constituted'.

The petitioner, who was undisputedly in the service of the Director-General of Civil Aviation from 1968 and on deputation with the second respondent from 1st April 1972, could not, therefore, speaking prima-facie, have been issued the letter dated 26th June 1975 purporting to appoint him afresh and as if a direct recruit and on probation. It is not necessary, however, to pursue this appeal and question any further. As indicated, it is left open.

6. Proceeding then on the basis and assumption that the petitioner is a probationer the legality and validity of the impugned order of 6th May 1976 may now be considered. This order is one of termination simpliciter of a probationer's services for his unsatisfactory performance. And this undisputedly without payment of retrenchment compensation. Question then is whether such termination is legal and valid. Now, as will presently be seen, this question is no longer res-integra. In circumstances similar hereto, the Supreme Court in Management of Karnataka State Road Transport Corporation, Bangalore v. Boraiah M and Anr. : (1984)ILLJ110SC held:

'..... retrenchment as defined in Section 2(oo) of the Industrial Disputes Act covers every case of termination of service except those which have been embodied in the definition; discharge from employment or termination of service of a probationer would also amount to retrenchment'.

The stand of the employer there as that of the employer here, was that as the termination was on account of unsatisfactory performance during the period of probation,the same did not amount to retrenchment. This contention was rejected by the Supreme Court holding ____ to reiterate ___that :

'..... Termination of service of a probationer would also amount to retrenchment'.

7. In the above ruling, the Supreme Court referred to its own earlier ruling in Santosh Gupta v. State Bank of Patiala : (1980)IILLJ72SC and quoted therefrom as under:-

'If the definition of 'retrenchment' is looked at unaided and unhampered by precedent, one is at once struck by the remarkably wide language employed and particularly by the use of the words 'termination.... for any reason whatsoever'. The definition expressly excludes termination of service as a 'punishment inflicted by way of disciplinary action'. The definition does not include, so it expressly says, voluntary retrenchment of the workman or retrenchment of the workman on reaching the age of superannuation or termination of the service of the workman on the ground of continuous ill health ..... ..... ..... ..... ..... .....

In our view if due weight is given to the words 'the termination by the employer of the service of a workman for any reason whatsoever' and if the words 'for any reason whatsoever' are understood to mean what they plainly say, it is difficult to escape the conclusion that the expression 'retrenchment' must include every termination of the service of a workman by an act of the employer'.

It would thus be clear that every form of termination not falling within the excepted category and within the definition of retrenchment under Section 2(oo) of the Industrial Disputes Act would amount to retrenchment. Termination of service even of a probationer, therefore, amounts to retrenchment. In the present case therefore even assuming, what is denied, that the petitioner was a probationer, termination of his services amounts to his retrenchment. Once this conclusion is reached, and it must be so reached following the ruling supra of the Supreme Court, it is being undisputed that the requirements of Section 25(F) of the Industrial Disputes Act have here not been complied with. In the absence of such compliance, the impugned order cannot be sustained. The same is liable to be set aside.

8. Mr. Makhija learned Counsel for the second respondent, contended, however that if the termination is held to be bad only because Section 25F is not complied with, the said respondents are ready and willing to comply therewith here and now. Consequently the relief of reinstatement and back wages may not be granted to the petitioner. It is not possible to accept this submission. The consequences of non-compliance of Section 25F, as laid down by Supreme Court in Mohanlal v. Bharat Electronics Ltd. : (1981)IILLJ70SC , is thus:

'.... .... .... .... .... .... where pre-requisite for valid retrenchment, as laid down in Section 25F had not been complied with, retrenchment bringing about termination of service was ab initio void'.

Such then is the drastic squatter of the invalidity of the impugned order. Being in breach of Section 25F the order is ab initio void. Besides, the conditions for a valid retrenchment are conditions precedent. Post facto willingness to comply or even compliance can be of no avail. In the circumstances, it must follow that the petitioner is entitled to reinstatement with full back wages as if there was in the eyes of law no valid termination at all.

9. Mr. Makhija for the second respondent next contended that the legal position as a result of the Supreme Court s decision in the case of Management of Karnataka State Road Transport Corporation supra was not the legal position when the order impugned herein was made and, therefore, the same is not liable to be set aside. I am afraid even this contention must fail. The law declared by the Supreme Court must 5 be held and must be taken to have always been the law. The Supreme Court's interpretation of Sections 2(oo) and 25F of the Industrial Disputes Act must be held to have always been the correct law. Therefore, short 10 of the doctrine of prospective overruling which has no application here the petitioner cannot be deprived of the benefit to which he is otherwise pre-eminently entitled to.

Hence Order:

10. This petition thus succeeds and the same is allowed. The impugned order dated 6th May, 1976 (Exhibit 'E') is set aside and quashed. The second respondent is directed to forthwith reinstate the petitioner with continuity of service and full back wages with all the consequential benefits flowing therefrom.

11. Rule is made absolute in terms aforesaid but, in the circumstances, with no order as to costs.

12. At the request of the second respondent's learned Counsel Mr. Makhija this order is stayed tilt and inclusive of 31st August 1985.


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