Tapan Kumar Dutt, J. - (1.) The writ petitioners/appellants filed the writ petition challenging the award dated 31.10.1986 passed by the First Industrial Tribunal, West Bengal and also for not giving effect to the letter dated 07.04.1988 issued by the Assistant Labour Commissioner, West Bengal.
(2.) The issue before the Tribunal was whether the termination of the service of respondent No. 4 is justified and what relief, if any, is he entitled to. The Tribunal held that the action of the company, i.e., the writ petitioner/ appellant, in terminating the service of the respondent No. 4 is illegal and unjustified and that the respondent No. 4 is entitled to reinstatement with full back wages and other benefits to which he would have been entitled to had he been service with effect from 01.04.1982. The Hon'ble First Court by order dated 02.05.2002 dismissed the writ petition which was filed by the appellants by holding that the Tribunal after hearing the parties and examining materials on record, including the evidence on record, held that the respondent No. 4 was a workman within the meaning of the Industrial Disputes Act. 1947 and that the Tribunal rightly held that the writ petitioner/ appellant had failed to establish that the respondent No.4 had been appointed on probation and that such findings of facts cannot be interfered with in proceedings under Article 226 of the Constitution of India and that there are no grounds for interference with the findings of facts arrived at by the Tribunal. The Hon'ble First Court was also pleased to note that the writ petitioner/appellant did not adduce any documentary evidence to substantiate its contention that the respondent No.4 had been appointed on probation and that the Tribunal did not consider the oral evidence adduced by the writ petitioner/appellant in this regard creditworthy. Challenging such order dated 2nd May, 2002 passed by the Hon'ble First Court, the present appeal has been filed by the writ petitioner/appellant.
(3.) In this case the respondent No. 4 joined service on 05.11.1981. A notice of termination of his service dated 30.03.1982 was issued by the writ petitioners/appellants and according to the respondent No. 4 such notice did not contain any reason. The respondent No. 4 wrote a letter dated 03.04.82 to the appellant/petitioner seeking reinstatement in his service without any loss of pay and in the said letter he took the stand that he was not appointed as a workshop mechanic on probation. According to the respondent No. 4 he was never on probation. The respondent No.4 issued another letter in May, 1982 but the management remained silent and at last the dispute was referred to the Labour Commissioner, West Bengal. The conciliation proceedings failed and ultimately the dispute was referred to the Tribunal for adjudication. The company, that is the appellant, filed a written statement along with the list of documents and stated that the order of reference was bad and not maintainable in law and that the respondent No. 4, at the material time was an employee of the company, but he was not a workman within the meaning of the said Act of 1947 and he was employed mainly in a rnanagerial/adrninistrative capacity and his terms and conditions of service are quite different from those of the workmen under employment of the company. According to the appellant, the respondent No. 4 was appointed as a probationary works assistant in the management cadre on a consolidated salary of Rs. 600/- per month and he worked till 03.04.1982 when his services were terminated on account of his inadequacy for the job. According to the appellant at the time of interview the respondent No. 4 was categorically told that on appointment he will have to serve minimum probationary period of 6 months before being considered for confrimation and the respondent No. 4 accepted his such terms. The appellants' stand is that the respondent No. 4 during his tenure of 5 months' service under the appellants failed to give satisfactory service and it was found that he was not suitable for the post for which he was appointed. The Tribunal found that it appears from the termination letter dated 30.03.1982 that the services of the respondent No. 4 was terminated with effect from 01.04.1982 without assigning any reason. It appears from the materials on record that a dispute was raised as to in which capacity the respondent No. 4 was appointed and also whether or not the respondent No. 4 was appointed on probation. It further appears that there was no formal letter of appointment but it is the case of the company that at the time of interview the respondent No. 4 was told that on appointment he will have to serve minimum probationary period of 6 months' service before being considered for confirmation. The Tribunal came to the conclusion that the company failed to establish that the respondent No. 4 was appointed on probation for a period of 6 months. It appears from the award passed by the Tribunal that it was argued on behalf of the appellants before the Tribunal that there is no designation of any person employed in the jute mills, like mechanic but the Tribunal held that there is no evidence in this regard. The Tribunal relied upon the termination letter and held that in such letter the designation of the respondent No. 4 has been shown as workshop mechanic. The Tribunal also held that in the absence of any appointment letter being issued by the company the contentions raised on behalf of the company, that is the appellants, have got no substance. The Tribunal also held that the company failed to produce any document to show that the respondent No. 4 was vested with any managerial power or that he acted in managerial/administrative capacity. The Tribunal also held that the respondent No. 4 has no paper to prove that he was appointed as a permanent workshop mechanic, even though the respondent No.4 has taken the stand that he was a workshop mechanic. The Tribunal held that in the instant case admittedly no enquiry was held before the services of the workman concerned were terminated and the workman concerned was not given any chargesheet by the company before termination of his services. Ultimately, the Tribunal found that the action of the appellants in terminating the services of the respondent No. 4 without assigning any reason and without holding any enquiry on the basis of any chargesheet was mala fide and it amounted to victimization and unfair labour practice The Tribunal also found that the company failed to prove that the respondent No. 4 was appointed on condition that he was to serve a minimum probationary period of 6 months before being considered for confirmation and that the company also failed to establish the respondent No. 4 was in a managerial/administrative capacity. The Tribunal also found that the company also failed to establish that the respondent No. 4 was not suitable for the job. The Tribunal held that the respondent No. 4 was appointed as workshop mechanic as would appear in the letter of termination dated 30.03.1982 and that the respondent No. 4 is a workman within the meaning of the provisions of section 2(s) of the Industrial Disputes Act. The Tribunal held that the terms and conditions of service of the respondent No. 4 were not forthcoming and the allegations made in the written statement of the company being unsubstantiated the plea raised by the company is untenable. The Tribunal observed that if the work of the respondent No. 4 was not satisfactory as alleged by the company then in that event the respondent No. 4 should have been chargesheeted and dealt with according to the rules of natural justice but that has not been done in the instant case and the respondent No. 4 was not given any opportunity to know as to why his services were terminated. The Tribunal held that the company has failed to establish that the services of the respondent No. 4 were terminated during the probationary period. In such circumstances, the Tribunal passed the award dated 31.10.1986 as already indicated above.;