V. Balakrishna Eradi, J.
1. This writ petition is directed against an award passed by the Industrial Tribunal. Calicut in I. D. No. 19 of 1965 setting aside the order passed by the petitioner company discharging from their service the 2nd respondent who was a production worker on probation and ordering his reinstatement with continuity of service and back wages.
2. The award in question was passed by the Tribunal on a petition preferred before It by the 2nd respondent under Section 33-A of the Industrial Disputes Act. 1947. The 2nd respondent had been appointed by the management as a production worker as per order dated 8-1-1964 (M-2). It was expressly stipulated in that order that the appointee was to be on probation for one year with effect from 1-1-1964 and that if his work and conduct were found to be satisfactory he will be confirmed in his appointment at the end of the probationary period. On 19-1-1965 the management terminated his services as per Ext. W.2 order by which the 2nd respondent was informed that it had been decided not to confirm his appointment. An industrial dispute, namely I. D. No. 74 of 1964, was pending adjudication at that time before the Industrial Tribunal. That dispute had been raised at the instance of certain workmen of the company concerning certain terms and conditions of their service. The 2nd respondent put in the petition under Section 33-A of the Industrial Disputes Act on the allegation that the termination of his services under Est. W-2 order during the pendency of I. D. 74/64 amounted to a violation of the provisions of Section 33 of the Industrial Disputes Act
3. The management contended before the Tribunal that the discharge of the probationer after the completion of his period of probation on the ground that be was considered unsuitable for confirmation would not amount to an alteration of the conditions of his service to his prejudice so as to constitute a violation of Section 33 of the Act and that therefore the complaint filed under Section 33-A was totally misconceived and devoid of merit.
4. The Tribunal took the view that even though a termination of the service of probationer on the very date of the expiry of the period of probation will not constitute an alteration of his conditions of service within the meaning of Section 33 of the Act, the position would he entirely different where the discharge is ordered not on the precise day on which the probationary period ends but only a few days thereafter. According to the Tribunal, in cases where the discharge is ordered subsequent to the date of expiry of the period of probation, it has jurisdiction to go into the question whether discharge was bona fide or was only a colourable exercise of the contractual power. In this view the Tribunal proceeded to hold that the order passed by the company terminating the services of the 2nd respondent offended against the provisions of Section 33 and was therefore liable to be set aside.
5. Counsel appearing for the petitioner relied on the decision of this court reported in Stanley Kendez v. Giovanola Binny 1968 Ker LJ 537 = (1969 Lab IC 37), and contended that the action taken by the management in terminating the services of an employee who had admittedly been appointed only on probation, the termination being effected after the completion of the period of probation and before his confirmation, will not constitute an alteration of the conditions of service of the employee concerned so as to amount to contravention of Section 33 of the Industrial Disputes Act. It was urged that the Tribunal had gone wrong in holding that there was a distinction between cases where the order of discharge was passed exactly on the date of expiry of the probationary period and cases where the order was passed only a few days thereafter.
6. Counsel appearing for the 2nd respondent, however, contended that the applicability of the principle laid down in 1965 Ker LJ 537 (1969 Lab IC 37), should be limited to cases where the order terminating the services of the probationer has been passed exactly at the end of the probationary period and the probationer is not continued in service for any time thereafter. According to the respondent's counsel once the period of probation expires without an order of discharge having been passed on or before the date of completion of the probationary period, the position is that the probationer would continue in service. no doubt only as a probationer, but his service cannot be terminated otherwise than for misconduct.
7. I have no hesitation to reject the respondent's contention. It is now well settled that a person appointed on probation would not ordinarily get automatic confirmation in service on the expiry of the stipulated probationary period and that if he la allowed to continue in service without any action being taken by the employer either by wav of confirmation or by way of termination he would continue only as a probationer even after the expiration of the period of probation. This has been clearly laid down by the Supreme Court in Express Newspapers, Ltd. v. Labour Court, Madras, (1964) 1 Lab LJ 9 = (AIR 1964 SC 806). The same principle has been reiterated by their Lordships in Accountant General, Madhya Pradesh v. B. P. Bhatnagar, Civil Appeal No. 548 of 19R2 (SC) where it was held:
'When, a first appointment or promotion is made on probation for a specificperiod and the employee is allowed to continue in the post after the expiry of the said period without any specific order of confirmation, he continues as a probationer only and acquires no substantive right to hold the post, If the order of appointment itself states that at the end of the period of probation, the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation which is necessary to give him such a right. When after the period of probation, an appointee is allowed to continue in the post without an order of confirmation the only possible view to take is that by implication the period of probation has been extended. Much can be said for the view that it is desirable in such cases that an express order extending the period of probation should be made, as otherwise the appointed person may be under a misapprehension about the exact position. There is however no basis for the conclusion that from the mere fact that an appointee is allowed to continue after the end of the period of probation stated In his order, he should he deemed to have been confirmed.'
The appointment order issued to the 2nd respondent (Ext. M2) does not contain any provision stating that at the end of the period of probation mentioned therein the employee would automatically stand confirmed; on the other hand it is specifically mentioned therein that he would be confirmed in the appointment only if his work and conduct were found to be satisfactory. Hence there can be no doubt that the continuance of the 2nd respondent in the service of the company after 31-12-1964 was only as a probationer and it was open to the management to decide about his suitability for confirmation and pass consequential orders either confirming him or discharging him from service.
8. It would, in my opinion, be totally meaningless !o refer to a person's employment as being on probation if the management has the right to terminate his services only on grounds of proved misconduct; it is of the very essence of the concept of probation that the person is on trial regarding his suitability for regular appointment and is liable to be discharged on being found to be unsuitable for permanent absorption. It is not therefore, possible to accept the contention put forward by the respondent's counsel that once the stipulated period of probation expires, the employee, though continuing in service only as probationer, is nevertheless immune from liability to be discharged from service on the ground of unsuitability but can only be dismissed on grounds of misconduct. In this respect, the only difference between a probationer whose term of probation has not expired and one who is continuing in service after the expiry of the stipulated period of probation without any order of confirmation having been passed, is that the former has a guaranteed period of trial namely the probationary period during which he is not liable to be discharged on the ground of unsuitability whereas the latter is liable to be discharged at any time. It must then follow that an order discharging the probationer from service would not amount to an alteration of the conditions of service even if it is passed not exactly on a date coinciding with the end of the probationary period but only a few days thereafter and that the decision in 1968 Ker LJ 537 =(1969 Lab IC 37) would equally govern both types of cases.
9. I accordingly hold that in ordering the discharge of the 2nd respondent on the ground of his unsuitability for confirmation the management has not violated the provisions of Section 33 of the Industrial Disputes Act and the complaint made by the 2nd respondent under Section 33-A was clearly misconceived.
10. The Tribunal had, therefore, nojurisdiction to go into the question of thepropriety of the action taken by the management. The original petition is allowedand the award Ext. P1 is encashed. Therewill be no direction regarding costs.