C.W.P. No.17287 of 2004 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.17287 of 2004 Date of Decision: 15.10.2009 The management S.D. High School for Boys, Nabha, District Patiala .....Petitioner Versus Presiding Officer Labour Court, Patiala and another ...Respondents Present: Mr. Chetan Mittal, Sr. Advocate with Mr. Vishal Garg, Advocate for the petitioner. Ms. Anu Chatrath, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J.(ORAL) 1. The award in challenge by the management is a direction for reinstatement with continuity of service while still not allowing claim of back wages to the workman. The dispute that stood referred to the Labour Court was an alleged illegal termination made by the management on a person, who had been appointed to a sanctioned post in a private school. The appointment order had been issued on 08.01.1996 and the order was read as to be in conformity with Punjab Private-Managed Recognized Schools Employees (Security of Service) Rules, C.W.P. No.17287 of 2004 -2- 1981. The order stipulated that as per the rules, the incumbent would be on probation for one year and that if he did not complete his probation period successfully, his services would be terminated without serving him any notice. The contention of the workman was that he was continued till 07.01.1997 and he was not permitted to continue in employment. This according to the workman constituted illegal termination. 2. The Labour Court examined the issue from the point of view that it was a sanctioned post and the order of appointment must be understood as a regular appointment and the termination could not have been effected at all. The Labour Court reasoned that the management did not terminate the services of the worker because the respondent did not have the post but because the respondent found some weakness in him. It further stated that the fact that they employed the expression that the services were not extended, it meant that the post had not been abolished. 3. To say the least, the reasoning of the Labour Court is wholly erroneous and quite off the mark. The issue was never whether the post existed or not. The issue was whether the workman could complain that the service as having been terminated was in violation of the provisions of the Industrial Disputes Act. It is an admitted case that the appointment took place on an express order in a privately managed recognized school to which the provisions of the Punjab Privately-Managed C.W.P. No.17287 of 2004 -3- Recognized Schools Employees (Security of Service) Act, 1979 applied. An attempted forceful contention of the learned counsel appearing for the workman was that the rules themselves did not apply for a non-teaching staff and that class IV employees would not be governed by the rules. The learned counsel would make reference to the appendix that sets out different classes of persons that were controlled by the Act and according to her, the particular class to which he had been appointed does not find express in the schedule. The contention regarding the non- applicability of the Act and the rules are again, in my view, wholly misplaced. The Principal Act of 1979 had been passed to provide for security of service to employees of privately managed recognized schools in the State of Punjab. Employee is defined under Section 2(c) as follows: “ 'employee' means any person employed on an aided post in any privately managed recognized school for hire or reward (whether the terms of employment be express or implied) and for the purposes of any proceedings under this Act in relation to any employment dispute includes the person dismissed or removed from service but does not include a part time employee.” Section 2 (c) makes it clear that a person employed on an aided post in any privately managed recognized school for hire or C.W.P. No.17287 of 2004 -4- reward, shall be termed an employee and he shall be governed by the provisions of the Act. It makes no distinction between teaching or non-teaching staff or a Principal or a Class IV employee. The rules which are framed under the Act, which are The Punjab Privately-Managed Recognized Schools Employees (Security of Service) Rules, 1981 refer to the application of rules through Rule 3 which states:- “These rules shall apply to all the employees employed on aided posts but shall not apply to:- (i) persons appointed on part time basis against aided posts; (ii) persons re-employed on aided posts; and (iii) a person employed on aided post previously held by an employee under suspension.” 3. The appendix which is contained under the rules is in the context of Rule 6 that details of qualifications of the categories of persons and it has nothing to do with the applicability of rules themselves. The appendix merely sets out the qualifications for certain classes of persons and is not an exhaustive list in themselves. It is not even meant to be exhaustive for, wherever specific qualifications are necessary to certain posts such qualifications have been laid down in the appendix. The applicability of the rules will have to be seen only through the prism of Rule 3 of above rules. The contention of the C.W.P. No.17287 of 2004 -5- learned counsel, therefore, that the rules are not applicable is not worthy of acceptance. It indeed is even contrary to terms of his engagement which states in clause 8 of the appointment order that rules are applicable. 4. As regards the persons who were on probation, Rule 8 is relevant:- “Probation.- (1) Persons appointed to the aided posts shall remain on probation for a period of one year: Provided that in the case of an appointment by transfer any period of work in equivalent or higher rank prior to appointment to an aided post may, in the discretion of the appointing authority, be allowed to count towards the period of probation. (2) If in the opinion of the appointing authority, the work or conduct of a person during the period of probation is not satisfactory, it may dispense with his services. (3) On the completion of the period of probation of a person, the appointing authority may,- (a) if his work or conduct has, in its opinion, been satisfactory,- (i) confirm such person from the date of his appointment, if appointed against a regular vacancy; or (ii) confirm such person from the date from which a regular vacancy occur if appointed against a temporary vacancy; or (iii) declare that he has completed his period of probation satisfactorily if there is no regular vacancy; or (b) If his work or conduct has not been, in its opinion, satisfactorily, it may- (i) dispense with his services; or (ii) extend his period of probation by six months at a time and thereafter pass such orders as it could have passed on the expiry of the original period of probation: Provided that the total period of probation including extension, if any, shall not exceed two years.” The above rule in clause 2 states that if in the opinion of the C.W.P. No.17287 of 2004 -6- appointing authority, the work or conduct during the period of probation is not satisfactory, it may dispense with his services. The complaint, however, of the learned counsel is that if the services were not satisfactory, a specific order must have been issued stating that the services were not satisfactory. Learned counsel also reads clause 3(b) to mean that whenever the conduct is not found to be satisfactory, there should have been extension. I do not see any meaning of the same for, clause b(i) states that if the conduct is not satisfactory, it may dispense with the services or extend the period of probation for another six months. This only means that normally the period of probation shall be only one year. The extension if it is ever done, it could be only done in an instance where the conduct is not found to be satisfactory. This again does not mean in every case where the conduct is not satisfactory, the appointing authority must provide for an extension for another six months. The above option is still available for the management to dispense with services in the light of what is provided under Rule 8 (3) (b) (i). 5. The complaint of the workman that the termination of the workman was not done with the permission from the Education Department is again without any substance for, such a permission is not contemplated for extending the period of probation. A person, who is on probation and whose probation is not extended is not a person, who could be said to be dismissed or C.W.P. No.17287 of 2004 -7- removed as contemplated under Section 4 of the Principal Act. In Ajit Singh Vs. State of Punjab (1983) 2 SCC 217, explaining the legal status of a probationer and the effect of non-extension of probtation, the Hon'ble Supreme Court said, "power to put the employee on probtation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer. Period of probtation may vary from post to post or master to master and it is not obligatory on the master to prescribe a period of probation. It is always open to employer to employ a person without putting him on probation. The employer will have discretion in this matter subject to rules by which appointment is governed, otherwise the rule would be counter-productive. Period of probation gives a sort of locus poenitentiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found suitable to the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. Such termination of service of a probation will not originally and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to." The term dismissal or removal is invariably seen only when the termination of service operates as a retrenchment or in the form of C.W.P. No.17287 of 2004 -8- retrenchment in the context of applicability of the Industrial Disputes Act. The non-extension of period of probation will not operate as a dismissal to require the sanction of the educational authorities. 6. The learned counsel states that without any express order that the workman's conduct was not satisfactory, the termination was not proper. If it was not in writing, it is rather a matter of procedure than an essential requisite in law. The fact is that the workman was seeking for a reference treating the non- employment as constituting a retrenchment and an adjudication that was required to be made was whether the termination was justified or not. It does not lie in the mouth of the workman to contend that there was no retrenchment at all. It was the workman himself who treated the non-extension of his service as constituting a termination and it is, therefore, incomprehensible as to how it could be contended by the fact that there was no written order that the termination did not take effect. 7. There were materials placed on record by the management that the conduct of the workman was not satisfactory during the probation. He had remained absent on 28.08.1996 without previous sanction for which the management had sought an explanation (P-9) but the workman did not care to reply. There was a complaint against him for damaging property (P-10). His representation for regularization (P-11) had evolved a C.W.P. No.17287 of 2004 -9- response for assessment of his quality of work that led to the Headmaster recording to a finding that the work and conduct were not satisfactory and he was not keeping cordial relations with staff. The Managing Committee had also considered the note and recorded a minutes that he was not fit to be regularized (P-12). There was nothing brought on record that the attitude of the management was either vindictive or mala fide. 8. The Labour Court has totally misconstrued the provisions of the Act and the character of employment of a person being appointed on probation. The reasoning of the Labour Court is wholly unacceptable and the award is untenable. It is accordingly set aside and the writ petition is allowed. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE October 15, 2009 Pankaj*