- (1.) This Letters Patent Appeal has been preferred against the judgment and order dated 16th April, 2009 passed by the learned Single Judge in W.P.(L) no. 2911 of 2004 whereby the petition preferred by the respondent no. 2 was allowed by the learned Single Judge, by quashing and setting-aside the award passed by the Labour Court, Deoghar, in a Reference Case no. 01 of 2002 dated 4.12.2013.
(2.) Counsel for the appellant submitted that appellant was initially appointed for six months as Stock Loading Assistant on 22nd May, 1997 and, thereafter, his period of probation was extended for one year vide letter dated 3rd December, 1997. Again services of the appellant were extended for six months vide order dated 30th November, 1998 and, thereafter, his services have been terminated with effect from 31st May, 1999. Meanwhile, two letters were also issued by the respondent Management marked as Ext. 5 and 5/a which were placed before the Labour Court, Deoghar as confidential report about this appellant which were found satisfactory and, therefore, a recommendation was made for his regularization in the services. This aspect of the matter has not at all been appreciated by the learned Single Judge and, hence, judgment and order passed by the learned Single Judge in W.P.(L) No. 2911 of 2004 dated 16th April, 2009 deserves to be quashed and set-aside. It is further submitted by counsel for the appellant that never any letter was written by the respondentManagement about dissatisfaction of the management due to the work of this appellant. On the contrary, the respondent - Management was fully satisfied with the work of this appellant and, therefore, there was recommendation for confirmation. Even in the termination order dated 31st May, 1999 (Annexure-4 to the memo of this L.P.A.) also it has not been mentioned by the respondent -Management that the work of this appellant was not up to the satisfaction. These aspects of the matter have not been properly appreciated by the learned Single Judge and, hence, judgment and order passed by the learned Single Judge in W.P.(L) no. 2911 of 2004 dated 16th April, 2009 deserves to be quashed and set-aside. Counsel for the appellant relied upon the decision rendered by the Hon'ble Supreme Court in the case of Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Limited, 2014 11 SCC 85. On the basis of the aforesaid decision it is submitted by counsel for the appellant that non-renewal of the contract of employment of this appellant tantamounts to the retrenchment of the services of this appellant under Section 2 (oo) of the Industrial Disputes Act, 1947 and, therefore, the procedure of retrenchment has to be followed under Section 25-F of the Industrial Disputes Act,1947, but, the same has not been followed and complied with. It has also been submitted by counsel for the appellant that no error has been committed by the Labour Court, Deoghar in passing an order of reinstatement with back wages. This aspect of the matter has not been properly appreciated by the learned Single Judge hence, order impugned deserves to be quashed and set-aside.
(3.) Counsel for the respondent no.2 submitted that the termination of the services of this appellant is a termination simpliciter and not termination punitive. The appellant was a probationer, his probation period was also extended and during this extended period of probation his services were terminated vide order dated 31st May, 1999, and there was no obligation on the part of the respondent no.2 to assign any reason for termination of the services of this appellant. If any reason will be given by the management then it may be converted into termination punitive , for which, an inquiry may be necessary, but, it is rightly appreciated by the learned Single Judge that during contract of services of a probationer, if his services are not extended such termination cannot be tantamount to retrenchment as per Section 2 (oo) of the Industrial Disputes Act, 1947, as it is covered by an exception carved out under Section 2 (oo) (bb) of the Industrial Disputes Act, 1947. Under this exception the case of this appellant is falling and, hence, termination of this appellant is not a retrenchment. Therefore, there is no question of procedure whatsoever arises under Section 25-F of the Industrial Disputes Act, 1947.It is however, submitted by respondent no.2 that merely because appellant has completed 240 days of the services that does not mean that the employee has right to continue in the services. In fact, during the period of probation management is always watching the working style of the probationer and management has all power, jurisdiction and authority to terminate the services of the probationer without assigning any reason. This aspect of the matter has been properly appreciated by the learned Single Judge and, hence, this Letters Patent Appeal may not be entertained by this Court. It is further submitted by counsel for the respondent no.2 that the award passed by the Labour Court, Deoghar in Reference Case no. 01 of 2002 dated 4.12.2003 is fully based upon the presumptions and surmises. Ext.5 and 5/a which were referred extensively by the Labour Court, Deoghar are of no help to this appellant because it is an internal communication. Secondly for the reason that there was only recommendation for confirmation, but, the fact remains that this appellant was never confirmed and his probation period was extended from time to time. This aspect of the matter has not been properly appreciated by the Labour Court, Deoghar. If the work of this probationer would have been found satisfactory, there was no need to extend the period of probation and hence, letters and Ext. 5 and 5/a which were referred by the Labour Court, Deoghar cannot give any presumption that work of this appellant was found satisfactory. Counsel for the respondent no.2 has relied upon the following decisions: * Life Insurance Corporation of India & anr. Vs. Raghavendra Seshagiri Rao Kulkarni, 1997 8 SCC 461 * State of Punjab & Others Vs. Sukhwinder Singh, 2005 5 SCC 569 * Gangadhar Pillai Vs. Siemens Ltd., 2007 1 SCC 533 * Ranendra Chandra Banerjee Vs.Union of India, 1963 AIR(SC) 1552 * Escorts Limited Vs. Presiding Officer and Another, 1997 11 SCC 521 * M/s. Kalyani Sharp India Ltd. V. Labour Court No.1Gwalior and another, 2002 AIR(SC) 300 On the basis of the aforesaid decisions, it is submitted by counsel for the respondent no.2 that if the services of the probationer is terminated during the period of probation then such termination never tantamounts to retrenchment and hence, even though he has worked for more than 240 days in one continuous year and as this is a termination simpliciter such probationer cannot be ordered to be reinstated with back wages. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing W.P.(L) No. 2911 of 2004 judgment dated 16th April, 2009 and hence, this Letters Patent Appeal may not be entertained by this Court.;