V.K. Bali, J.
1. Challenge in this appeal filed under Clause X of the Letters Patent is to the judgment of learned Single Judge recorded in Civil Writ Petition bearing No. 5392 of 1982 dated August 30, 1991, vide which learned Single Judge, while allowing the writ petition, aforesaid, set aside the award dated December 3, 1980 of the leamed Labour Court.
2. Brief facts of the case culminating into filing of this appeal reveal that appellant Munshi Ram (here-in-after referred to as 'the workman') was appointed as Octroi Mo-harir by the Municipal Committee, Sirsa, vide order dated July 21, 1979. His services were terminated on March 12, 1980. Constrained,the workman successfully sought reference under Section 10(1)(c) of the Industrial Disputes Act, 1997 (here-in-after referred to as the Act'). The Government made a reference for adjudication of the following issue by the concerned Labour Court:-
'Whether the termination of services of Shri Munshi Ram was justified and inorder? If not, to what relief is he entitled?'
3. In a statement of claim, the workman, inter alia, pleaded that he was appointed on probation on July 21, 3979 and was alleged to be found negligent for the incident occurred on March 11, 1980. No enquiry was held against him with regard to alleged negligence or unsatisfactory work. No charge sheet was ever served upon him and an order of termination came to be passed straightaway. He also pleaded that persons junior to him had since been retained. With a view to fortify the same, he named Kishan son of Sonu Ram and Subhash son of Jetha Nand, Octroi Moharirs, who were appointed after him and had since been retained in service. In reply to the statement of claim, respondent-Management, inter-alia, pleaded that the work done by the workman was not satisfactory and he was also found negligent on March 11, 1980, when the Administrator came to make a spot checking at the Octroi Post where the workman was discharging his duties. It was also pleaded that his work was not satisfactory and, therefore, his services were terminated vide order dated March 12, 1980, which was in accordance with the conditions of his appointment. In the resultant trial on the basis of the pleadings of the parties on the question referred to by the Government, parties led evidence. MW-1 Shri Ramji Lal clearly deposed that the workman had been working as Octroi Clerk and his services were terminated by the Administrator Shri Mohinder Kumar on March 12, 1980, when he was found negligent in his duties on March 11, 1980, when the Administrator inspected the Octroi Post as the workman was found to have passed without charging octroi fee and his cash collection was found in excess of Rs. 15.80 paise. In his cross-examination, MW-1 Ramji Lat admitted that the workman was not served with any show cause notice, nor any enquiry was held.
4. On the basis of the evidence and in particular the statement of MW-1 Ramji Lal, the learned Labour Court held that 'the workman was appointed on 21st July, 1979, vide Exhibit W-1 on probation for a period of one year. His services were terminated on 12th March, 1980 before the expiry of the probationary period by Exhibit W-2, whichonly mentions that the services of the workman were no longer required. This is neither in accordance with the terms and conditions of appointment as contained in Exhibit W-1 nor the order was passed after observing rules of natural justice in providing opportunity to the workman of being heard. This is a punitive order in the garb of discharge sim-plicitor as has been revealed from the statement of management witness.'
5. On the basis of the observations, as extracted above, learned Labour Court ordered reinstatement of workman with continuity of service and with full back wages. Aggrieved, the respondent-Management filed writ petition, challenging award of the Labour Court. The motion bench issued notice for January 5, 1983 and stayed operation of the award of Labour Court vide orders dated December 9, 1982. Writ was ultimately admitted on February 9, 1983 and it was further ordered that stay shall continue. During the pendency of the writ petition, workman filed an application under Section 17-B of the Industrial Disputes Act, 1947 and prayed that full wages be given to him pending proceedings in this Court. It was, inter-alia, pleaded by him that he was without job and facing acute starvation conditions and was unable to carry on and maintain himself and his aged parents and other family membeRs. Vide orders dated January 16, 1985, notice of this application was given to counsel representing the appellant-Corporation. Vide orders dated March 5, 1985 learned Single Judge, before whom the matter came up for hearing, ordered that the appellant Corporation shall pay the workman full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule with effect from August 21, 1984 when Section 17-B of the Act was enforced and also in future during the pendency of the writ petition. The ultimate result of writ has since already been indicated above.
6. Learned Single Judge after making a brief mention of facts of the case held that perusal of the facts of the case shows that the workman had been appointed on July 21, 1979 and his services had been terminated on March 12, 1980. He was on probation for a period of one year and it was during the period of probation that his services were terminated. Order of termination did not assign any reason. It was per se not passed by way of punishment. The finding that it is not in conformity with the terms of appointment cannot be sustained. A person on probation is virtually on trial. The employer is not bound to suffer an incompetent employee for the full term of probation. If the employer finds that the performance of the employee is unsatisfactory, the services can be terminated at any time during the period of probation. There was thus no violation of the terms of appointment. Furthermore, the order did not assign any reason. It was a simple order of discharge. It cannot as such be termed even as punitive.'
7. Learned counsel representing the workman vehemently contends that while setting aside the order of learned Labour Court, learned Single Judge did not examine the pleadings of the parties as also the finding returned by the learned Labour Court pertaining to dismissal of the workman on account of a particular incident of a specified date, which according to the respondent-Management was a definite misconduct on the part of the workman. The order terminating the services of the workman might have not mentioned anything in that regard but it was always open to the Court to lift the veil and find real reason resulting into terminating the services of the workman, further contends the learned counsel.
8. After hearing learned counsel representing the workman and examining the record of the case, we find considerable merit in the contention of learned counsel, noted above. Brief reference of pleadings of the parties, i.e., statement of claim of the workman made before the leaned Labour Court and the reply filed by the respondent-Management has already been made above. We have also extracted the findings of the teamed Labour Court based upon the statement of MW-1 Ramji Lal, who, it may be reiterated, clearly stated that services of the workman were terminated on accuunt of a particular incident of a particular date. The workman was found negligent in his duties on March 11, 1980, when the Administrator inspected the Octroi Post and found that theworkman had passed without charging octroi fee and his cash collection was found in excess of Rs. 15.80 paise. It may be recalled that the workman was appointed as an Octroi Moharir and in discharge of his duties, he was bound to charge octroi and not let the goods pass without charging. Further, cash collection in his possession was found in excess of Rs. 15.80 paise, which clearly implies that while passing the goods, he had not charged octroi and thus taken money unauthorisedly. These are the acts of omission arid commission. It is on the acts of the workman indulging in misconduct that his services were terminated. Based upon the pleadings and evidence led by the parties, learned Labour Court had no choice but for to return a finding that the order terminating the services of the workman may be innocuous but the same in fact and reality, came to be passed on account of the workman indulging in the activities which would amount to misconduct. Indeed, learned Labour Court returned such a finding. That being so, services of the workman could not be terminated without giving him an opportunity of hearing and holding an enquiry pertaining to his misconduct.
9. It appears to this Court that the pleadings of the parties as reflected in the statement of claim made by the workman and reply filed by the respondent-Management as also the evidence that was led before the learned Labour Court and the findings recorded on the basis thereof were not brought to the notice of learned Single Judge. We have made the observation aforesaid, as nothing at all in the impugned judgment is mentioned in that regard. So much so, even the findings of learned Labour Court, extracted above, have not been mentioned.
10. Insofar as order with regard to payment of back wages, as ordered by Labour Court is concerned, all that needs to be mentioned is that if the workman Was gainfully employed during the period of his forced idleness, it had to be proved by the appellant Corporation and in as much as there is no material available on records on that count, nothing at all was urged by counsel for the appellant on that behalf. Orders dated March 5, 1985 passed by learned Single Judge of this Court would further fortify the claim of workman with regard to back wages.
In view of the discussion made aoove, we allow this appeal, thus, setting aside theorder of learned Single Jude and restoring the one passed by learned Labour Court. Theparties are, however, left to bear their own cots.