C.M. Lodha, J.
1. The petitioner is a Rajasthan Government Undertaking for supply of milk to the city of Jaipur. It is alleged by the petitioner that it is under the Animal Husbandry Department of the Rajasthan Government, though this fact is denied by the non-petitioner No. 2 Manoharkumar, who is the contesting respondent in this case. The respondent No. 2 Manoharkumar was appointed as a Van Clerk on temporary basis for a period of three months vide Annecure. 'A' and his period of service was extended from time to time. He was suspended from service along with three other employees by the order dated 26.7.1969 (Annexure 'F') by the General Manager of the petitioner undertaking on account of a complaint having been received from Sawai Man Singh Hospital, Jaipur about adulteration of milk. Thereafter his services were terminated with effect from 31.10.1969 vide Annexure 'O' dated 30.9.1969. It appears that after the termination of his services, he was served with a chare-sheet on 3.11.1969 along with a statement of allegations and he submitted his reply on 26.11.1969. It is further alleged by the petitioner that a preliminary enquiry was also held on 20th September, 1969. However the respondent No. 2 raised a dispute before the Government regarding termination of his service and the Government made a reference to the Labour Court under Section 10(a)(c) read with Section 12(5) of the Industrial Disputes Act, 1947 (which will hereinafter be called 'the Act'). The Judge, Labour Court, Rajasthan Jaipur, by his order dated 12th March, 1974 gave an award in favour of the respondent No. 2 and held that 'the termination of Manoharkumar (respondent No. 2) from 31.10.1969 without proper enquiry cannot be said to be proper and legal and the reference is answered in the negative.' He further directed that the respondent No. 2 be reinstated from the date of suspension with full back wages and continuity of service as admissible to him under the certifying standing orders of the industry. A copy of this award has been placed on record and marked Annexure 'T' (at page 62 of the paper book). By this petition under Article 226 of the Constitution, the petitioner challenged the legality and validity of the order of the Labour Court (Annexure 'F') on the following grounds:
(1) That thee are no averments of vindictiveness, unfair labour practices or malafides against the employer.
(2) That the respondent No. 2 was a temporary employee and therefore no just exception can be taken to the termination of his services employer.
(3) That the employee lost the confidence of the management and therefore, the employer cannot be compelled to take him back in service.
(4) That the employee was a temporary Government servant in a regular (sic) governed by the Rajasthan Service Rules and could be terminated by one month's salary under Rule 23(a) of the RSR.
2. Here, it may be relevant to state that after (sic) of the writ application, the petitioner took back the employee (respondent No. 2) into the service by an order dated 2nd July, 1973, a copy of which has been placed in record by the employee himself and marked Exhibit R/2. In this order it is specifically mentioned in para 8 that the employee has voluntarily (sic) his wages for the period from the date of his joining duty which dad been awarded to him by the imougned award Annexure 'Y'. In light of this subsequent development, an argument his also been adv arced on behalf of the petitioner that the employee cannot now claim wages for the period from the date of suspension to the date of his being taken on duty again in accordance with the impugned award.
3. The writ application has been apposed by the respondent No. 2, who will hereinafter be called 'the employee'. A written reply has also been filed. The main argument advanced on behalf of the petitioner is that the employee is a temporary one and is governed on behalf of the petitioner is that the employee is a temporary one and is governed by the RSR and, therefore, his service could be terminated in the manner in which it was done. On the other hand, the contention of the improvee is that even it he is treated as a temporary employee, his case would be governed by the Standing Orders (para No. 17 and 18) and his services could not he terminated without holding inquiry into his conduct and finding him guilty under para 18 of the Standing Orders; a copy of which has been placed on record by the employee (at page 90 of the paper book).
4. It has also been argued on behalf of the employee in the alternative that he had become a permanent (sic) of the petitioner and therefore, the impugned order is justified on the ground that he was permanent servant.
5. I might first dispose of the alternative that argument advanced by the learned Counsel for the employee that the employee was a permanent servant. It may be pointed out that this ground was not taken before the Labour Court and that is why there is no reference to it in the impugned award. Learned Counsel urges that the ground was taken in para No. 4(1) of the statement of claim filed by the employee before the Labor Court, a copy of which has been submitted on this record also and marked Annexure 'O'. However, it appears to me that the plea is not at all specific nor it contains the reasons as to why the petitioner should be treated as a permanent employee. The relevant para reads thus 'that the petitioner (employee) was appointed on 1.6.1968 as lower Division Clerk and he joined duty on 4.6.1968 and, therefore, the petitioner is a permanent employee whose services were illegally terminated'. No order treating the employee as a permanent one has been placed on record and the latest order extending employee's period of employee period of employment Annexure 'N' dated 29.9.1969 (at page 22 of the paper book) show that the employee's term of employment was extended upto 30th September, 1969 only.
6. Learned Counsel for the employee contended that even though the employee did not take up the plea of being a permanent employee before the Labour Court, he could do the same before this Court and justify the Labor Court order on that basis. In support of this contention, he has relied on Mgmt. of the Northern Railway Cooperative Credit Society Ltd., Jodhpur v. Industrial Tribunal, Rajasthan, Jaipur and Anr. Supreme Court Labour Judgments (1950-67) Vol. 1171. It was held in this case that before the Supreme Court respondent is entitled to support the decision of the Tribunal setting aside the order of his removal from service even on grounds which may not have been taken notice of by the Tribunal but which were apparent on the face of the record. Suffice it to say that the around in the present case is not apparent on the face of the record. I am, therefore unable to permit the employee to rely on this ground for the first time in this Court.
7. The employee, therefore, must be treated as a temporary employee and the case must be decided on that basis. Learned Counsel for the petitioner has relied upon Maheshchandra Madhosaran Srivastava v. State of Madhya Pradesh 1975 (2) SLR 545, Shankerlal v. Union of India 1974 WLN 112 and S.P. Vasudava v. State of Haryana and Ors. : 2SCR184 in support of his contention that the employee's services could be terminated without holding any enquiry.
8. In Maheshchandra Madhosaran Srivastava v. State of Madhya Pradesh 1975 SLR 545 it was held that under the M.P. Civil Services (General Conditions of Service) Rules, 1961, the services of a probationer continuing in service beyond three years could be terminated on the expiry of a notice of one calender month given in writing by either side and it is difficult to say that at the end of three years the person concerned must be deemed to be confirmed.
9. In Shankerlal v. Union of India 1974 WLN 112 it was observed that it has to be decided on the facts and circumstances of each case whether the misconduct of the officer is a mere motive for the order of termination of the service or whether it is the very foundation of the order. Applying this test to that case it was observed that the departmental enquiry did not proceed beyond the stage of service of charge-sheet followed by the appellant's explanation thereto but no finding was recorded and no conclusion was arrived at the enquiry. In this view of the matter, it was held that the alleged misconduct of the appellant who was a temporary servant was not the foundation of the impugned order of termination of his services.
10. In S.P. Vasudeva v. State of Haryana and Ors. : 2SCR184 their Lordships of the Supreme Court were pleated to observe that it would be better for all concerned to lay down that the reversion of a probationer from a higher to a lower post, or the discharge of probationer or the discharge from service of a temporary servant cannot be questioned except on the basis of malafides in the making of the order.
11. From the aforesaid rulings relied upon by the learned Counsellor the petitioner it is clear that in case of an ordinary Government servant employed of, temporary basis, services could be terminated by an order of discharge simplicities without assigning any reasons. But the important question arising for consideration is whether the same rule would apply to the employee under the Industrial Disputes Act. However, before I address myself to this aspect of the matter, I would like to dispose of the contention raised by the learned Counsel for the petitioner that the petitioner is not an 'industry'.
12. At this stage, I cannot fail to observe that no such objection has been taken by the petitioner in the writ petitions. In this connection learned Counsel for the petitioner has made reference to paras No. 1 and 6 of the writ petition. In para No. 1 it has been alleged that the petitioner is Rajasthan Government Undertaking for the supply of milk to the city of Jaipur and is under the Animal Husbandry Department of the Rajasthan Government. In para No. 16 it has been stated that the employee is a temporary Government servant in the regular cadre governed by R.S.R. Thus it is clear that there is no such objection that the petitioner is not 'industry'. The mere fact that the petitioner is a Government Undertaking cannot mean that it cannot be an 'industry', as the Government can also own an industry. Even before the Labour Court no such objection was taken. Nothing has been pointed out to me how the petitioner is not an industry. 'Industry' has been defined in Section 2(j) of the Act as follows:
2(j) 'Industry' means any business, trade, undertaking, manufacture or calling of employers; and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen.
It is not the contention on behalf of the petitioner that the petitioner does not fall under this definition. The contention, that the petitioner is not an 'industry' is therefore over ruled.
13. Now the law governing the cases of employees under the Act seems to be well settled by a string of decisions of the Supreme Court. In Management of Utkal Machinery Ltd. v. Workman, Shanti (sic) Supreme Court Labour Judgments (1950-67) 2968 it was held that if the validity of the termination of an employee appointed on probation on the basis of a contract that during the probation period the services of the employee could be terminated without assigning any reason is challenged in an industrial adjudication, it would be competent to the Industrial Tribunal to enquire whether the order of termination has been effected in the bonafide exercise of the employer's power conferred by he contract. If the discharge of the employee has been ordered by the management in the bonafide exercise of is power, the Industrial Tribunal will not interfere with but it is open to the Industrial Tribunal to consider whether the order of termination is malafide or whether it amounts to victimisation of an employee or an unfair labour practice or is so capricious-or unreasonable as, would lead to the interference that. It has been passed for ulterior motives and not in bona fide exercise of the power arising out of the contract. In such a case, it is open to the Industrial Tribunal to interfere with the order of termination by the management and to afford proper relief to the employee. In that case the employee was discharged according to the management for unsatisfactory work and it was held that her discharge wag tantamount to punishment for alleged misconduct. It was further held that the management was not justified in discharging the respondent from service without holding a proper enquiry. The Labour Court had taken the view that there, was no proof of misconduct on the part of the respondent and there was no justification for termination of her services and in the face of complete absence of evidence regarding unsatisfactory work of the respondent, termination of service was held to be malafide.
14. Learned Counsel for the employee has also relied on Goela Engineering and Woollen Works, Panipat v. The Labour Court, Rohtak and Ors. L & I Cases (1970) (Vol. 3) 111 State Transport Controller Orissa v. The Presiding officer Industrial Tribunal, Orissa AIR 1936 Orissa 109, Madan Mohan Prasad v. State of Bihar and Ors. 1973 (1) SLR 630 & the Management of Brooke Bond India (Private) Ltd. v. Y.K. Gautam AIR 1973 SC 1587.
15. In The Management of Brooke Bond India (Private) Ltd. v. Y.K. Gautam AIR 1973 SC 1587 it was held that even in case of a probationer whose services have been terminated without assigning any reasons in accordance with the terms of the contract, the Industrial Tribunal can go into the question of validity of the order of termination and it has to be seen whether the action of the employer is not in bonafide exercise of the power arising oat of the contract.
16. The latest case oh the point is resported in L. Michael and Anr. v. Johnson Pumps Ltd. : (1975)ILLJ262SC , wherein after a detailed discussion of the earlier authorities of the Supreme Court Krishana Iyer J speaking for the Court observed as fallows:
Needless to say, this Court recognised the power of the Tribunal to go behind the for on of the order, look at the substance and aside what may masquarade as termination simpliciter, if on reality it cloaked a dismissal for misconduct as a colourable exercise of power by this managements. The Court related that ah Industrial employer cannot 'hire and fire' his workman on the basis of an unfettered right under the contract of employment.
xx xx xxThe law is simply this : The Tribunal has the power and, indeed, the duty to X Ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because be is an evil to be eliminated But if the management, to cover up the inability to establish by an enquiry, illegitimately but ingeniously parses an innocent-looking order of termination simpliciter, such action is bad and is liable to be set aside.
17. Now in the present case from the narration of facts as given above it is clear that the petitioner wanted to get rid of the employee as he was suspected to have misconducted himself in adulterating the milk which was entrusted to him for delivery to the SMS Hospital at Jaipur. Even in the order of termination of his services it is mentioned that his services had been terminated on account of his wok being unsatisfactory. The management also wanted to hold an enquiry into the employee's conduct but the enquiry was launched after the order of termination had been passed. It is thus clear that the order of termination was not passed by the management bonafide in exercise of its powers to terminate the services of the employee by an order of discharge simpliciter. The finding arrived at by the Tribunal in connection, therefore, cannot be said to be (sic) Paras No. 17 and 18 of the standing orders relied upon by the employee also lead to the conclusion that the services of even a temporary employee can be terminated only for sufficient leasons and not at the sweet will of the management.
18. At this siege, I may also dispose of the contention raised in the writ petition that the employee lost the confidence of the management and, therefore, the management could not be compelled to take him back to service. This contention is negative by the act of the management itself during the pendency of this writ petition as the petitioner has taken back the employee into its services. But apart from that the petitioner is only a Lower Division Clerk and cannot be said to be holding a past of trust. In this view of the matter the award of the Tribunal reinstating him in service was justified.
19. As a matter offset, it appears that what the petitioner in aggrieved of is not the order of reinstatement but the direction for award of wages from the date of suspension to the date of taking him back in service. The petitioner ban put on record the application dated 28-5-1973 submitted by the employee to the management wherein he has agreed to fore go his claim under the award for wages from the date of suspension to the date of resumption. It is submitted that this subsequent fact may be taken into consideration and appropriate relief may be granted to the petitioner on that basis. On the other band, the learned Counsel for the employee has urged that the application dated 28.5.1973 alleged to have been submitted by the employee is a forged one, inasmuch as the signature contained therein purporting; to be of the employee is not genuine. It is also urged that objection in this respect can be taken by the petitioner when the employee takes out proceedings for recovery of the money due to him under the award. It appears to me that it is not a fit cape in which his Court should take into consideration the subsequent events alleged to have taken place after the institution of this writ petition, as they involve enquiry into facts. More over, it is stated in the application dated 28.6.73 relied upon by the petitioner that the employee had agreed to forego his wages on account of the deplorable plight in which he had been placed and the financial stringency he had experienced. However, I do not wish to make any observation on the merits of the contentions raised on behalf of either party in this respect and leave them to agitate the matter before the appropriate authority as and when the question of recovery of money due to the employee under the award is taken up.
20. With these observations, this writ application is dismissed. But in the circumstances of the case, I leave the parties to bear their own costs.