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 Van Clerk on temporary basis for period of three months vide Annexure 'a' and his period of service was extended from time to time. He was suspended from service alongwith 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 charge sheet on 3. 11. 1969 alongwith 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 20ih September, 1969. However, the respondent No. 2 raised dispute before the Government regarding termination of his services and the Government made a reference to the Labour Court under section 10 (a) (c) read with section 12 (5) of the Industrial Dispute Act. 1917 (which will hereinafter be called 'the Act' ). THE Judge, Labour Gout, Rajasthan, Jaipur, by his order dated 12th March, 1973 gave an award in favour of the respondent No. 2 and held that "the termination of Manoharkumar (respondent No 2) from 31 101969 without proper enquiry cannot be said to be proper and legal and the reference is answered in the negative". He farther 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 'y' (at page 62 of the paper book ). By this petition under Article 226 of the Constitution, the petitioner has challenged the legality and validity of the order of the Labour Court (Annexure 'y') on the following grounds: - (1) That there are on averments of vindictiveness, unfair labour practices or mala fides against the employer: (2) That the respondent No, 2 was a temporary employee and therefor no just exception can be taken to the termination of his services simpliciter: (3) That the employee lost the con6dence 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 a in regular cadre governed by the Rajasthan Service Rules and consequently his services could be terminated by one month's notice or payment of one month's salary under Rule 23 (a) of the R. S. R.
(2.) HERE, it may be relevant to state that after the filation of the Writ application, the petitioner took hack the employee (respondent No. 2) into service by an order dated 2nd July, 1973, a copy of which has been placed on record by the employee himself and marked Exhibit R/2 In this order it is specifically mentioned in para 3 that the employee has voluntarily foregone his wages for the period from the date of suspension to the date of his joining duty which had been awarded to him by the impugned award Annexure 'y'. In light of this subsequent development, an argument has also been advanced 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. The Writ application has been opposed 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 by the R. S. R. and, therefore, his service could be terminated in the manner in which it was done. On the other hand, the contention of the employee is that even if he is treated as a temporary employee, his case would be governed by the standing orders (paras No. 17 and 18) and his services could not be 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 ). It has also been argued on behalf of the employee in the alternative that he had become a permanent servant of the petitioner and, therefore, the impugned order is justified on the ground that he was a permanent servant. I might first dispose of the alternative 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 Labour Court, a copy of which has been submitted on this record also and marked Annexure 'q'. 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 employment Annexure 'e' dated 29-9-1969 (at page 22 of the paper book) shows that the employee's term of employment was extended upto 30th September, 1969 only. 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 Labour Court's order on that basis. In support of this contention, he has relied on Mgmt. of the Northern Railway Co-operative Credit Society Ltd. , Jdpu. vs. Indu. Tribunal, Raj. , Jaipur (1) and another 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 were not accepted by the Tribunal or on the 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 grounds 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. 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 vs. State of Madhya Pradesh (2); Shankerlal vs. Union of India (3) and S. P. Vadudeva vs. State of Haryana and others (4) in support of his contention that the employee's services could be terminated without holding any enquiry. In Maheshchandra Madhosaran Srivastava vs. State of Madhya Pradesh (2) it was held that under 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 calendar 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. In Shankerlal vs. Union of India (3) 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 in 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.
(3.) IN S. P. Vasudeva vs. State of Haryana (4) their Lordships of the Supreme Court were pleased 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 a probationer or the discharge from service of a temporary servant cannot be questioned except on the basis of mala fides in the making of the order. From the aforesaid rulings relied upon by the learned counsel for the petitioner it is clear that in case of on ordinary Government servant employed on temporary basis, services could be terminated by an order of discharge simpliciter without assigning any reasons. But the important question arising for consideration is whether the same rule would apply to the employee under the Industrial Dispute 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", At this stage, I cannot fail to observe that no such objection has been taken by the petitioner in the writ petition. In this connection learned counsel for the petitioner has made reference to paras Nos. 1 and 16 of the writ petition. In para No. 1 it has been alleged that the petitioner is a 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 objections that the petitioner is not an 'industry. The mere 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 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. How 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. vs. Workman, Santi Patnaik (5) 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 reasons, 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 the contract If the discharge of the employee has been ordered by the management in the bonafide exercise of its power, the Industrial Tribunal will not interfere with it, but it is open to the Industrial Tribunal to consider whether the order of termination is mala fide 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 inference that it has been passed for ulterior motives and not in bonafide 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 was tantamount to punishment for alleged misconduct. It was further held the management was not justified in discharging the respondent from services without holding a proper enquiry. The Labour Court had taken the view that there was no proof of misconduct on the p> art of the respondent and there was no justification for termination of her services and in the face of complete absence of evidence ragard-ing unsatisfactory work of the respondent, termination of service was held to be mala fide. ;