- (1.) This order shall dispose of four connected writ petitions bearing Nos. 8223, 9025, 8864 and 7606 of 1992 as in all the petitions there is same short question of law. Facts are, however, being extracted from Civil Writ Petition No. 8223 of 1992 titled as Shyam Sunder v. Chandigarh Industrial & Tourism Development Corporation Limited, Chandigarh, 1994 4 SCT 342
(2.) Even though the case of the petitioner is that he was appointed as a Waiter by the respondent-Corporation on 1st June, 1990 and was placed on probation for a period of one year which could also be extended and that the probation period was not extended and order of termination was passed after a period of two years on 15th June, 1992. The case of the respondent-Corporation is that the petitioner was appointed on 1st June, 1990 and he joined his duties on 8th June, 1990. An order was passed on 25th July, 1991 in which it was specifically expressed that the work of the petitioner was not satisfactory and that being so, the period of his probation was extended upto 14th November, 1991. The said period was once again extended for another year with effect from 7th June, 1991 and on 6th June, 1992. Deputy Manager recommended further extension of period of probation. His services were terminated on the ground that his work was not satisfactory. The counsel appearing for the petitioner contends that even though the facts as given in the written statement with regard to the appointment and extension of period of probation of the petitioner are accepted to be true, the services of the petitioner being governed under the Industrial Employment (Standing Order) Punjab (Chandigarh 1st Amendment) Rules, 1973, the period of probation could not be extended for more than one year and inasmuch as the petitioner had already worked for more than a year, the respondent-Corporation could not proceed in pursuances of the resolution passed by it (Annexure P-3) whereby the Corporation had approved period of probation of one year which could be extend further. With a view to appreciate the controversy as also the contention, as noticed above, it shall be useful to notice provisions of rule 3(b) of the Industrial Employment (Standing Orders) Punjab (Chandigarh 1st Amendment) Rules, 1973. The same reads thus : "A 'probationer' is a workman who is provisionally employed to fill a vacancy in permanent post and has not been confirmed as permanent in accordance with these standing orders. Ordinarily the period of probation shall be six months, but it may be extended by a period of three months at a time at the discretion of the management if the management considers it necessary in any case to further adjudge the work and merits of a workman. The maximum probation period shall, however, in no case extend beyond one year." Sub-Clause (iii) of Rule 3(b) reads thus :- "If a workman continues in service on the expiry of 13th (thirteenth) month of service, he shall be deemed to have been automatically confirmed in his appointment." At this stage, it would be useful to notice the provisions contained in Resolution Annexure P-3. The same reads as follows : "All the directly recruited persons shall be on probation for a period of one year in the first instance, which may be further extended for another year at the discretion of the appointing authority in case the work of the probationer is found to be unsatisfactory by it during first year."
(3.) The only question that requires adjudication in the matter is as to whether the provisions contained in Rule 3(b) of 1973 Rules should hold the field or the Resolution Annexure P-3, would apply in working out the maximum period of probation. To persuade this Court to hold that the provisions contained in Industrial Employment (Standing Order) Punjab (Chandigarh 1st Amendment Rules, 1973, shall have precedence, the learned Counsel for the petitioner relies upon Western India Match Co. Ltd v. Workmen, 1973 AIR(SC) 2650; U.P. State Electricity Board and another v. Hari Shanker Ram & another, 1979 AIR(SC) 65 and Workmen of Dewan Tea Estate and others v. Their Management, 1964 AIR(SC) 1458. In Western India Match Co. Ltd.'s case it was held : "It is now well settled that the employer cannot enter into an agreement with a workman which is inconsistence with the Standing Orders of the Company. The terms of the Standing Orders would prevail over the corresponding terms in the contract of service. While the Standing Orders are in force, it is not permissible for the employer to seek their statutory modifications so that there can be one set of standing orders in respect of certain employees and another for the rest. In other words the employer cannot enforce simultaneously the standing orders regulating the classification of workmen and a special agreement with an individual workman settling his categorisation." In U.P. State Electricity Board's case , it was held as under : "The Industrial Employment (Standing Orders) Act is a special law in regard to the matters enumerated in the schedule and the regulations made by the Electricity Board under the Electricity (Supply) Act with respect to any of those matters are of no effect unless such regulations are either notified by the Government under section 13-B or certified by the Certifying Officer under Section 5 of the Industrial Employment (Standing Orders) Act. In regard to matters in respect of which no regulations have been made by the Board, have not been notified by the Governor or in respect of which no regulations have been made by the Board, the Industrial Employment (Standing Orders) Act continues to apply. Therefore in the instant case, the regulation made by the Electricity Board under Section 79(c) of the Electricity (Supply) Act with regard to age of superannuation having been duly notified by the Government under Section 13-B of the Act of 1946, the regulation shall have effect notwithstanding the fact that it is a matter which could be the subject matter of Standing Orders under the Industrial Employment (Standing Orders) Act." It was further held that the Industrial Employment (Standing Orders) Act deals with a specific subject, namely the Conditions of Service, enumerated in the Schedule of Workmen in Industrial establishments. xx xx xx The provisions of the Standing Orders Act must prevail over the Act in regard to the matters to which the Standing Orders Act applies." In Workman of Dewan Tea Estate's case it was held : "Standing Orders of the Dewan Tea Estate which were duly certified under the Industrial Employment (Standing Orders) Act (1946) and which came into force in 1950 became part of the statutory terms and conditions of services between the industrial employer and his employees. If the Standing Orders thus became part of the statutory terms and conditions of service, they would govern the relations between the parties unless, of course, it can be shown that any provision of the Industrial Disputes Act is inconsistent with the Standing Orders.";