SHINGHAL, J. - (1.) THIS is an appeal against the judgment of a learned Single Judge dated October 12,1971, by which he has quashed the award (Ex. 10) of the Regional Labour Commissioner dated July 3/4, 1969, as arbitrator.
(2.) APPELLANT Kamal Kishore Goyal was appointed as office assistant in the Ajmer branch of Union Co-operative Insurance Society Ltd. , hereinafter referred to as "the Society", by order Ex. 1 dated December 2, 1959. He was to draw a consolidated salary of Rs. 135/- per month, and the appointment was on probation for a period of six months in the first instance. The Society reserved the right to increase the period of probation and the appointment was terminable during the period of probation without assigning any reason. The appellant was, however, to continue in service after the expiry of the period of probation. He expressed a desire to work as a field officer, and wanted to be given a trial in that capacity. This led to the making of order Ex. 3 dated October 6, 1967. The Divisional Manager made a reference, in that order, to the earlier letter of the appellant "showing his desire to work as Field Officer at Bikaner", and to the discussion with the appellant, and stated that although the appellant's performance was very poor when he was posted at Nagour, the Society was giving him a chance once again. It was stated further that while the Society did not want to increase its cost from the very beginning, the appellant's salary would be revised if his work was found satisfactory. A direction was given in the order that the Branch Manager, Ajmer, should relieve the appellant by October 15, 1967 and direct him to go over to Jaipur for further instructions as he was to proceed to Bikaner. Letter Ex. 4 was simultaneously addressed to the appellant by the Divisional Manager on October 6, 1967 in which reference was made to his letter of October 4, showing his "desire to go to Bikaner to work in field". The appellant was informed that he was being sent to Bikaner on the "same salary", but an assurance was given that the question of increase in the salary would be thought over after seeing his performance. He was further informed that the decision to send him to Bikaner was final and that, if he did not agree to it, the Society would have to consider whether it should continue his services. He was asked to get ready by October 15, 1967 to go wherever he was posted in Rajasthan. The appellant, it appears, did not comply with the order of the Divisional Manager, and that led to the making of order Ex. 5 dated October 16, 1967 by which the Divisional Manager informed him that the Society was constrained to terminate his services with effect from October 16, 1967 and that he might collect his dues from the Ajmer office on any working day. The appellant felt aggrieved against the termination of his service by the a fore said order Ex. 5 dated October 16, 1967, and raised an industrial dispute. It was ultimately referred to the Regional Labour Commissioner (Central) for arbitra tion. He gave his award Ex. 10 dated July 3/4, 1969. It was held in the award that as the period of probation expired on 31-5-1967 and the appellant continued in employment thereafter upto October 1967, he "stood confirmed in that appointment by implication". It was also held that the management had "not acted bona fidely" and that the impugned order (Ex. 5) of termination of the appellant's service was illegal and unjustified and the appellant would be deemed to be in the continuous employment of the Society as an office assistant and would be taken back immediately and paid "all back wages etc. ". The Society felt aggrieved against the award and filed a writ petition on January 16, 1970. It was pleaded, inter alia, that (i) the award suffered from an error apparent on the face of the record inasmuch as the appellant could not be held to be a confirmed employee of the Society, (ii) there was not an iota of evidence in support of the Arbitrator's finding that the Society had not acted bona fide, and (iii) the Arbitrator erred in holding that the Society did not have the right to transfer the appellant to Bikaner or to appoint him as a field officer when he had himself expressed the desire to work in that capacity at that place. The learned Single Judge disposed of the writ petition by his impugned judgment dated October 12, 1971. He examined the Arbitrator's finding that the petitioner was a confirmed office assistant and, after considering rule 8 of The Union Co-operative Insurance Society's Service Rules & Regulations and paragraph 27 (v) of the Conditions of Employees in the Society, he held that the Arbitrator committed an obvious error in holding that the appellant automatically became a confirmed office assistant. The learned Judge took note of the fact that the performance of the appellant in the service of the Society was not satisfactory and, in that connection, he particularly noticed the further fact that it was not the case of the parties that the initial salary of the field officer was Rs. 200/- and the denial to give it to the appellant infringed his right and justified the refusal on his part to work as a field officer. The learned Single judge in fact held that even though the appellant's performance in the service of the Society was not satisfactory, the management was inclined to help him in continuing in service and agreed to appoint him as a field officer at his request. He accordingly held|that the inference drawn by the Arbitrator about the absence of bona fides on the part of the Society was uncalled for and that the management was well within its rights in terminating the service of the appellant during the probationary period. That was why the learned Single Judge quashed the award by his judgment dated October 12, 1971 against which the present appeal has been directed. Mr. Mridual, learned counsel for the appellant, has not challenged the finding of the learned Single Judge that the appellant did not stand confirmed automatically as an employee of the Society and that, on the other hand, he continued to be on probation without any right to a post in the service of the Society. We shall therefore examine the arguments which have been advanced before us with due regard to this basic fact which is now not in controversy. It has been argued by the learned counsel for the appellant that order Ex. 5 dated October 16, 1967, by which the appellant's service was terminated with effect from that date, was not a bona fide order because it was not permissible for the learned Single Judge to disturb that finding of the Arbitrator as it was a pure question of fact and did not suffer from any error of law apparent on the face of the record. It has been urged that while the appellant no doubt wanted to be posted as a field officer, because that was a higher post, it was not permissible for the Society to compel him to take up that post on the lesser salary which he was drawing as office assistant, and that as order Ex. 4 had the effect of compelling him to accept, the learned Single Judge committed an error of law in disturbing the Arbitrator's finding of fact regarding lack of bona fides on the part of the management. The learned counsel has pointed out that the Arbitrator's finding could not be disturbed by the learned Single Judge merely because he took a different view of the evidence yearing on it. Reference in this connection has been made to the decisions in Kaushalya Devi vs. Bachittar Singh (l), Agnani (W. M.) vs. Badri Das (2), Syed Yakoob vs. K. S. Radhakrishan (3) Express Newpapers (P) Ltd. vs. Labour Court (4), Agra Electric Supply Company Ltd. vs. Alladin (5) and Bihar State Road Transport Corporation vs. State of Bihar (6 ). 8. In order to appreciate the argument of the learned counsel, which has been made with reference to the plea of mala fides mentioned in paragraph 17 of the appellant's statement of claim (Ex. 8) dated March 17, 1969, it is necessary to examine the plea and the evidence bearing on it. The relevant paragraphs, to which our attention has been invited, are Nos. 6, 17 and 19. It has been stated in paragraph 6 that instead of posting him to Bikaner of any other place in Rajasthan the management of the Society terminated the services of the appellant with effect from October 16, 1967. Reference in this connection has been made to the aforesaid letter Ex. 5 dated October 16, 1967 by which his services were terminated. Then it has been stated in paragraph 17 that "the termination had not been inflicted on the appellant in regular course, but it is the outcome and result of the management's mala fide towards him as would be quite evident from the chain of the correspondence exchanged between workman and the management". It has father been stated, in par. graph 19, that that though "in form" the order appears to be of "termination simplicities", in reality it was a "cloaked (sic) dismissal for misconduct". There is thus nothing in the statement of claim to show that the petitioner raised the plea of mala fides on the basis of any particulars or details, and all that his learned counsel has been able to urge before us is that it has been established by the "chain" of letters. We have examined the so called "chain" of letters referred to in paragraph 17 of the statement of claim. The learned counsel for the appellant has urged before us that the "chain" consists of letters Exs. 2,3, 4 and 5. Letter Ex. 2 is dated August 29, 1967. Under it the appellant was informed by the Branch Manager that it had been found that he was in the habit of avoiding office work as well as the instructions which were given from time to time, "particularly in the case of (his) leaving head quarters on 26th August, without prior permission" or leave application. That letter does not show that any penalty was imposed, or was proposed to be imposed, on the appellant, for he was merely directed to report in the office of the Divisional Manager at Jaipur for further instructions. There is thus nothing in the letter to show that there was lack of bona fides on the part of the management of the Society in issuing it. It may also be mentioned that the appellant has not led any evidence which could show that the issue of the letter was due to lack of bona fides on the part of the Branch Manager or any officer of the Society. Letter Ex. 3 dated October 6, 1967 was issued by the Divisional Manager, and we have made a reference to it already. It appears from the letter that the appellant had addressed a letter showing his desire to work as a field officer at Bikaner. It shows further that although the Divisional Manager took note of the fact that the appellant's performance was very poor at Nagaur, he decided to give him a chance once again. Reference was also made to the question of appellant's emoluments in that letter, and it was stated that if his work was found satisfactory, his salary would be revised. It was directed that the appellant may be relieved by October 15, and asked to go to Jaipur for further instructions as he was to proceed to Bikaner. We do not find anything in the letter to justify the plea of lack of bona fides on the part of the management. The Divisional Manager addressed letter Ex. 4 dated October 6 1967 directly to the appellant, and, he again made a reference in it, to the appellant's letter showing his desire to go to Bikaner to work in the field. It was clarified that he would have to go to Bikaner on the same salary "in the present circumstances" but the question of increasing the salary would be thought over after seeing his performance. It was clarified that if the appellant did not agree, the management would consider whether it should continue his services. He was accordingly asked to be ready by October 15, 1967 to go wherever he was posted in Rajasthan. The letter does not contain anything which could be said to justify the plea of lack of bona fides on the part of the management of the Society. It is also significant that it is not the case of the appellant, and has not been urged by his learned counsel, that he was willing to abide by the instruction contained in letter Ex. 4, or that he wrote back in reply, or otherwise informed the management, that, while he was not willing to work as a field officer, he was willing to serve as an office assistant. In these facts and circumstances, there is nothing wrong if the management issued letter Ex. 5 dated October 15, 1967 informing the appellant that they were constrained to terminate his service with effect from October 16, 1967, and that he could collect his dues on any working day during office hours. We have considered the cumulative effect of all these letters also, and we are unable to think that it could sustain the plea of mala fides referred to in paragraph 17 of the statement of claim. As has been observed in "judicial Review of Administrative Action" by S. A. De Smith, second edition, at page 313, the burden of proving abuse of power is not lightly discharged, especially if bad faith is alleged.
(3.) IT may also be mentioned that the appellant did not state the particulars or the details in support of his allegation regarding mala fides. That was a serious infirmity, without which it was not possible for the Arbitrator to examine and uphold the plea. That the particulars and details in support of an allegation of mala fides are necessary, does not require much argument because it is, for obvious reasons, impossible to examine a bald plea. This has been held to be so in J. L. Nair vs. State of Punjab (7), R. L. Butail vs. Union of India (8), State of Haryana vs. Rajindra Sareen (9 ). IT is therefore the allegations regarding mala fides or lack of bona fides which can be examined when such a plea is taken, and as the particulars and datails of the allegation have not been given, there was really no justification for the finding of lack of bona fides recorded by the Arbitratcor. Thus when the appellant has not found it possible to give the particulars and the details in support of his plea, and has not been able to sustain it by any evidence at all, there is nothing wrong if the learned Single Judge has taken the view that the inference about the absence of bona fides on the part of the management drawn by the Arbitrator was uncalled for. The appellant's learned counsel has invited our attention to paragraph 2 of the reply (Ex. 9) to the statement of claim were the Society has stated that the appol-lant expressed his inability to go to Bikaner unless his salary was increased, and that the Society had no alternative but to terminate his service as he was a more probationer. It has been argued that this by itself was sufficient to establish the plea of lack of bona fides. We have already examined the relevant letters in which the question of salary was mentioned by the management, and we have given our reasons for holding that they do not go to show lack of bona fides on the part of the management of the Society. It may also be mentioned that, as has been held by their Lordships of the Supreme Court in Jagdish Mitter vs. Union of India (lo), if, while defending the plea of mala fides, the authority concerned makes reference to certain facts justifying the order of discharge, and these facts relate to the misconduct, negligence or inefficiency of the employee, it can not logically be said that in view of the plea thus made it should be held that the order of discharge was the result of the considerations set out in the plea. It is significant that it was not the case of the appellant that he was being compelled to go and serve outside Ajmer, in a different capacity, on the same emoluments. His case has been stated in paragraphs 6, 17 and 19 to which reference has been made already, and no more. The learned Single Judge has expressly taken note of the fact that it was "not the case of the parties that the initial salary of the field officer was Rs, 200/- and, therefore, the denial of the management to give that start had infringed the right of Shri Goyal and he was justified to refuse to join as field officer". The learned Judge has gone on to state that the appellant's learned counsel could not place anything on the record which could enable him to judge whether the attitude of the management in taking him on the same salary on the post of field officer was wholly unjustified. As has been stated, the petitioner was informed by letter Ex. 4 that the question of increasing his salary would be examined after seeing his performance as a field officer, and the petitioner did not think it necessary to apply for permission to continue on the post of office assistant. There is, as we have stated, no evidence at all in support of the plea of mala fides. In all these facts and circumstances, there is no justification for the appellant that it was not open for the learned Single Judge to set aside the finding of lack of bona fides given by the Arbitrator. ;