VERMA, J. - (1.) THE facts givingrise to this D. B. Special Appeal lie in a narrow compass. Respondent No. 2,k. G. Thanvi,entered the service under the appellants as Junior Inspector on probation vide order dated January 10,1979 which had come into effect on 18. 12. 1978. THE initial period one year and it was liable to be extended for a further period of one year. If no confirmation order was passed on the expiry of the period of probation, the services were to stand terminated automatically.
(2.) THE performance of the respondent-Inspector came to be reviewed during the period of probation and it was found that respondent failed to achieve requisite targets. Hence, in pursuance of the terms of employment the services of the respondent No. 2 were terminated vide order dated 09. 02. 1980 received by the respondent No. 2 on 14. 02. 1980. It appears that the respondent -No. 2 preferred a departmental appeal against termination of his services upon which his case was reviewed and he was taken back in service by an order dated 23. 04. 1980 and it was, inter-alia, ordered that he shall remain in service on a further extended period of probation with effect from the date he rejoined service namely, from 05. 05. 1980. It appears that services of respondent No. 2 were terminated again on the grounds that (i) he failed to pass the licenciate examination, which was a condition precedent for being confirmed and , (ii) his business performance was not upto mark. This was done after periodically apprising and fore-warning the respondent Inspector. This termination was effected by order dated 30. 09. 1981. Respondent No. 2 was duly paid notice pay of Rs. 500/- and bonus of Rs. 521/ -. Respondent No. 2 raised an industrial reference after a considerable delay. Due conciliation, proceedings, took place and duly failed and the following question was referred, to the Central Industrial Disputes Tribunal,jaipur for adjudication: - "whether the action of the New India Assurance Company Limited Jaipur in terminating services of Shri Krishan Gopal Thanvi, Junior Inspector w. e. f. 19. 10. 1981 is justified? If not, to that relief the workman concerned is entitled?" Respondeat workman filed his statement of claim disputing the validity of the order terminating his services before the Tribunal. The employers (appellants) contested the claim by filing a proper reply. They inter-alia relied upon the two grounds upon which termination was based and they urged that services of the workman respondent were terminated since he failed to discharge his functions satisfactorily during the period of extended probation. The Tribunal did agree with the contentions of the employers that the workman had failed to achieve the prescribed targets and had also failed to pass the prescribed examination. But, it was of the view that workman had completed 240 days of service and hence sec. 25-F of the Industrial Disputes Act came into play and since there was non-compliance with the provisions of this section, the termination amounted to retrenchment and was bad in law for non-payment of retrenchment benefits payable under the said provision. The Tribunal therefore, gave an award directing reinstatement of the workman in service. However, he was not awarded back wages w. e. f. 19. 10. 1981 to November,1988 on the ground that workman raised the industrial dispute with delay. The tribunal directed that workman shall be deemed to be in continuous service w. e. f. the date of impugned retrenchment and workman would be entitled to notional fixation and ancillary benefits, but for the salary for the aforesaid period.
(3.) AGGRIEVED, employers filed S. B. Civil Writ Petition No. 1688 of 1992 challenging the direction of reinstatement of the workman also on the ground that terminaion of the services of the workman did not amount to retrenchment within meaning of Sec. 2 (oo) (bb) of the Industrial Disputes Act; any invalidity in termination order stood ceased by introduction of the said provision which came into force on 18. 08. 1984 i. e. much before the impugned award was passed. Reliance was placed upon a judgment of Kerala High Court in this regard rendered in Samson Jayasingh Vs. Malayalam Plantations Ltd. (1 ). It was contended that in this view of the matter, the award deciding reinstatement of the respondent workman was bad. Learned Single Judge, who heard the petitioner, was of the view that introduction of clause 2 (oo) (bb) in the Industrial Disputes Act was not retrospective and was prospective and hence this provision could not be pressed into service by the employers for upholding the validity of the impugned retrenchment order. Learned Single Judge considered the ruling rendered by the Kerala High Court and did not feel persuaded to accept the ratio of the said decision. Learned Single Judge observed: - "no doubt,the Kerala High Court's decision as has been cited by Shri Dalip Singh fully supports the arguments raised in this regard by him that the termination of the respondent workman should be treated to be effective from 18. 08. 1984 instead of 30th September,1981, but with all respects, I do not find myself to be in agreement with the view taken by the Kerala High Court in the aforesaid decision. The Kerala High Court, itself in the aforesaid case of Samson Jayasingh Vs. Malayalam Plantations Ltd (supra) has noted in para 10 that had this sub-clause i. e. (bb) been there on the statute book at the relevant time, the employee's services would be liable to be terminated otherwise than by retrench-ment,for admittedly he was appointed only on probation, subject to his appointment being terminated on his failure to satisfactorily complete the probation. But the insertion of the sub-clause by the amendment of 18th August,1984 was not with retrospective effect and was inserted to over-come the principle laid down by the Supreme Court in State Bank of India Vs. Sunderamony (1976-II LLN 5) and other cases to the effect that, even when a person was appointed only for a specific period or where the order of appointment specifically stated that at the end of a specific period his appointment was liable to be terminated,he was entitled to be retained in service untill duly retrenched in terms of s. 25 F and further that this principle' was negatived,though prospectively, by the statutory amendment which came into force- form 18. 08. 1984. Having noted as above, the Kerala High Court has taken the view that,al-though,the services of employee had been terminated for bonafide reasons by the management by an order which, as the law was then understood, was an invalid order,and, therefore, the employee was entitled to be treated as if he was nationally in service, that position could validly continue only until the Legislature finally clarified the law so as to negative the principle laid down by the Supreme Court. Accordingly, the order of termination, which until the date of insertion of sub. cl. (bb) to S. 2 (oo)remained ineffective, revived itself in full force, although prospectively, as from 18. 08. 1984. In my opinion, this reason given by the Kerala High Court runs counter to the basic tenets of the interpretation of statute and amounts to read the amendment dated 18th August,1984 as a post validating provision or an amendment having the effect of validating the orders which were otherwise invalid till the amendment came into force. Such could never be and was not the intention of the legislature. Had it been so, nothing prevented the Legislature from giving retrospective effect to this amendment. If an order is invalid at the time when it is passed, it can not attain the validity on account of subsequent amendment unless that amendment is given retrospective effect or unless a piece of legislation is enacted in the nature of validating Act and to have the effect of validation. Besides this, the view taken by the Kerala High Court also runs counter to the basic principle that the validity of an order is to be examined with reference to to law which was existing on the statute book at the time when the order was passed and the validity of such order cannot be examined with reference to a subsequent amendment. If the view taken by the Kerala High Court is taken to be the correct view, it would result in all the invalid orders ofretrenchment of this nature passed prior to 18th August,1984 to attain validity frorm 18. 08. 1984. It would have been a different matter altogether, had the petitioner company passed another order of termination against the respondent workman on or after 18. 08. 1984; but on the basis of the prospective amendment dated 18th August,1984 the validity can not be injected into the invalid orders passed prior to 18. 08. 1984. Strictly speaking, in the face of the provisions of Sec. 25f if an order is passed without following the conditions precedent and pre-requisite under Sec. 25 F of the Industrial Disputes Act, it is an order which is ab-initio null and void and for all intent and purposes, such orders are to be taken as non-est orders and, no order which is null and void, or non-est order can be made to attain validity on the strength of a prospective amendment. For all these reasons, I respectful disagree with the view taken by the Kerala High Court and the argument raised by Shri Dalip Singh on that basis is hereby rejected. " Now, in this special appeal, the employers assail the correctness of the view proposed by the learned Single Judge of this Court and it is contended that once clause (bb) of S. 2 (oo) had been inserted in the Industrial Disputes Act, the alleged invalidity in the retrenchment order stood cured and on the date the tribunal gave the impugned award, reinstatement could not have been ordered in view of the amended provisions. Reliance is placed upon the Kerala decision (supra ). ;