IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:28.06.2011 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.A.No.2682 of 2010 and M.P.No.1 of 2011 R.Krishnamoorthy .. Appellant /Respondent-1 V. 1.The Tamil Nadu Mercantile Bank Limited, No.57, V.E. Road, Tuticorin – 628 002. ..Respondent/Appellant 2.The Presiding Officer, Industrial Tribunal, Chennai. .. Respondent/Respondent 2 PRAYER: Appeal filed under Clause 15 of Letters Patent against the order passed by the Learned Single Judge in W.P.No.6970 of 2000 dated 03.12.2009. Petition presented under Article 226 of the constitution of India praying for a writ of Certiorari to call for the records connected with I.D.No.5/1996 on the file of the second respondent and quash the award dated 7.10.99. For Appellant : Mr.C.Prakasam For 1st Respondent : Mr.Sanjay Mohan for M/s.Ramasubramaniam Associates For 2nd Respondent : Court JUDGMENT M.VENUGOPAL,J. The Appellant/1st Respondent/Petitioner has projected this Writ Appeal as against the order dated 03.12.2009 in W.P.No.6970 of 2000 passed by the Learned Single Judge in allowing the Writ Petition filed by the 1st Respondent/Bank (Employer). 2.The 2nd Respondent/Industrial Tribunal, in its Award dated 07.10.1999 in I.D.No.5 of 1996 filed by the Appellant /Petitioner, has, inter alia, held that 'the total period of employment of the Petitioner https://hcservices.ecourts.gov.in/hcservices/ was only 9 months and that his termination is void ab initio' and resultantly, ordered for his reinstatement in service with backwages, continuity of service and other attendant benefits and accordingly, passed an Award thereto. 3.The Learned Single Judge, while allowing the Writ Petition filed by the 1st Respondent/Bank, has, among other things, observed that 'the 1st Respondent (Appellant) was only a Probationer and his service was terminated during the time of such probation on account of unsatisfactory performance. The said aspect has not been considered by the Industrial Tribunal' and further opined that 'the Tribunal in para 8 of the Award rendered a factual finding that the 1st Respondent (Appellant) has continuously worked for a period of 240 days. However, the Tribunal omitted to note that the period of such service was only as Probationer and the service was terminated only during the course of probation. Therefore, there is no question of violation of Section 25-F of the Industrial Disputes Act as stated by the Industrial Tribunal' and resultantly, set aside the Award dated 07.10.1999 in I.D.No.5 of 1996 passed by the 2nd Respondent/Industrial Tribunal and consequently, allowed the Writ Petition. 4.The Learned Counsel for the Appellant/1st Respondent (Petitioner in I.D.No.5/1996) submits that the Appellant was appointed as an Apprentice Clerk and Trainee in the 1st Respondent/Bank as per letter dated 30.04.1982 and later, after completing the apprentice training satisfactorily, he was posted at Kumbakonam Branch as Clerk. While the Appellant was working in the said branch on 01.02.1983, the 1st Respondent/Bank issued an order to relieve the Appellant from the service of the Bank on the ground that his service was not satisfactory, but these aspects have not been appreciated by the Learned Single Judge while passing orders in the Writ Petition. 5.It is the contention of the Learned Counsel for the Appellant/1st Respondent that when the termination order dated 01.02.1983 was passed by the 1st Respondent/Bank, it had not assigned any valid reasons and also not discussed as to how the Bank arrived at an opinion that the Appellant's service was not satisfactory. 6.Advancing his arguments, it is the contention of the Learned Counsel for the Appellant/1st Respondent that even assuming, without admitting, the Appellant's service was not satisfactory, the 1st Respondent/Bank could not terminate the Appellant/Employee's service except during the probation period if the employee committed any misconduct, without issuance of any show cause notice for any alleged misconduct. However, in the present case, the 1st Respondent/Bank passed the termination order without issuance of show cause notice and the same is an illegal and arbitrary one. 7.Expatiating his submissions, the Learned Counsel for the Appellant/1st Respondent contends that even prior to training period, the 1st Respondent/Bank satisfied with the Appellant's performance appointed him in the Branch office and paid him the salary, included his name in the Provident Fund and Family Pension Scheme and as such, the question of Appellant's service being not satisfactory does not https://hcservices.ecourts.gov.in/hcservices/ arise on any score. 8.The Learned Counsel for the Appellant also submits that the Appellant was appointed at Kumbakonam Branch of the 1st Respondent/Bank by means of an order dated 15.05.1982 and he was paid a monthly salary of Rs.300/- and the 1st Respondent/Bank also received Rs.500/- as security deposit besides his name being included in Provident Fund and Family Pension Account. 9.In response, it is the contention of the Learned Counsel for the 1st Respondent/Bank that the Appellant/1st Respondent (Petitioner) was only a Probationer and since his service to the Bank was not satisfactory and also that his service was not required by the Bank, he was relieved from service on 07.02.1983 itself as per Ex.M.6- Communication of the Bank dated 01.02.1983 and that the Learned Single Judge has rightly interfered with the Award dated 07.10.1999 in I.D.No.5 of 1996 passed by the 2nd Respondent/Industrial Tribunal, Chennai and allowed the Writ Petition. 10.The Learned Counsel for the 1st Respondent/Bank brings it to the notice of this Court that the Appellant failed in the written test conducted by the 1st Respondent/ Bank twice earlier and for the third test, he had not appeared. 11.A perusal of Ex.M.4-First Written Test Report dated 16.10.1982 shows that the Appellant had not come out successfully in the written test conducted for the Usual Scale of Pay and he secured only 10%. Therefore, his performance was graded as very poor. Added further, as per Ex.M.4, the Appellant was informed that as a special case the Bank is conducting one more test and in the meanwhile, he was advised to go through the Book of instructions and Job card thoroughly. In Ex.M.5- Second Written Test Report dated 11.01.1983, the Appellant was again informed that he had not come out successfully in the written test conducted for the usual scale of pay and that he secured only 25%. As such, his performance was graded as poor. Here again, he was informed that the 1st Respondent/Bank is conducting one more test and moreover, in the meanwhile, he was instructed to go through the Book of instructions and Job card thoroughly. In Ex.M.3-Letter of the 1st Respondent/Bank dated 10.03.1983, the Appellant, with reference to his letter dated 03.03.1983 praying for leave, was informed that as per Letter dated 01.02.1983 (Ex.M.6) his service was no more required by the Bank from 07.02.1983 and therefore, they could not sanction the leave since he was not in service. 12.It is not in dispute that the Appellant/1st Respondent was called for the interview on 29.04.1982 by the 1st Respondent/Bank. Further, as per Ex.M.1-Appointment Order dated 30.04.1982 issued by the 1st Respondent/Bank, the Appellant was appointed as Apprentice Clerk for a temporary period of five months. Ex.W.3 is the copy of the Transfer Order dated 15.05.1982 in and by which the Appellant/1st Respondent/Petitioner was directed to report for duty at the Kumbakonam Branch of the Bank immediately. Ex.W.8 dated 18.06.1993 is the order of the 1st Respondent/Bank addressed to the Appellant wherein the Appellant https://hcservices.ecourts.gov.in/hcservices/ has been informed that his request seeking employment once again cannot be acceded to. The Appellant/1st Respondent has made representations to the Chairman of the Bank as per Ex.W.11 dated 10.01.1985, Ex.W.13 dated 24.07.1986, Ex.W.17 dated 12.04.1989, Ex.W.23 dated 12.03.1991, Ex.W.25 dated 10.04.1993 and the General Manager of the Bank as per Ex.W.15 dated 17.02.1988, Ex.W.19 dated 20.11.1989, Ex.W.21 dated 24.08.1990. Under Ex.W.8-Order of the 1st Respondent/ Bank, the Appellant was informed that his letter dated 27.05.1993 was received but, it cannot be considered. That apart, the Bank went to the extent of stating that the Appellant should not have any correspondence with it either in person or through letters and not to waste his time and money. 13.The Appellant/1st Respondent/Petitioner in I.D.No.5 of 1996 on the file of the 2nd Respondent/Industrial Tribunal, Chennai had challenged his non-employment as not a justifiable one and hence, prayed for his reinstatement with backwages, continuity of service and all other attendant benefits. The 1st Respondent /Bank before the 2nd Respondent/Industrial Tribunal took the stand that the Appellant was taken as an Apprentice Clerk temporarily for a period of five months on an allowance of Rs.300/- per month, by an order dated 30.04.1982 and he joined the Bank on 07.05.1982. The said order envisages that if the Appellant/1st Respondent completed the apprenticeship training fulfilling the conditions attached thereto satisfactorily, he would be posted as a probationary Clerk and further that the period of probation would be 12 months, which could be extended by a further period of 3 months etc. According to the 1st Respondent/ Bank, the Appellant, including his apprenticeship training, had hardly completed 9 months of service. In short, he was neither in continuous service for a period of one year nor he attained the status of a regular employee in the service of the Bank. Therefore, the ingredients of Section 25-F of the Industrial Disputes Act, 1947 [relating to Conditions precedent to retrenchment of workmen] will not apply to the facts of the present case. 14.The plea of the 1st Respondent/Bank is that the Appellant was not in continuous service for a period of one year as per Section 25-B of the Industrial Disputes Act. Also, his training as apprentice could not be considered as service for this purpose, as the period of training undergone by an apprentice will not tantamount to regular service rendered by an Employee. In view of the fact that the relationship between the Apprentice and the Employer is not that of Master and Servant, but that of a Teacher and Pupil. Excluding the Apprenticeship training period of five months as per order dated 30.04.1982, the Appellant had hardly put in just 4 months service and that too as a Probationer. Therefore, the benefit of Section 25-F of the Industrial Disputes Act is of no avail to the Appellant. 15.Another stand taken by the 1st Respondent/Bank, in its counter to I.D.No.5 of 1996, is that the Appellant had raised the industrial dispute after an inordinate delay and a stale claim is devoid of any substance. Ex.M.6 is the Relieving Order dated 01.02.1983 issued by the 1st Respondent/Bank to the Appellant wherein he was informed that his service was not satisfactory and no more required by the Bank and also he was relieved from the Bank on 07.02.1983 itself. https://hcservices.ecourts.gov.in/hcservices/ 16.At this stage, this Court worth recalls the decision of the Hon'ble Supreme Court in Hari Singh Mann V. State of Punjab and others [AIR 1974 Supreme Court Cases 2263] at page 2264 & 2265 wherein at paragraph 12 it is observed as follows: "12.Termination on account of unsatisfactory record will attract R. 9 of the Punishment Rules. It is obvious that at the time of confirmation fitness is a matter to be considered. The order terminating the services is unfitness for appointment at the time of confirmation, it is not passed on the ground of any turpitude like misconduct or inefficiency. To hold that the words "unfit to be appointed" are a stigma would rob the authorities of the power to judge fitness for work or suitability to the post at the time of confirmation. Termination of services on account of inadequacy for the job or for any temperamental or other defect not involving moral turpitude is not a stigma which can be called discharge by punishment. Fitness for the job is one of the most important reasons for confirmation. The facts and circumstances do not show that there is any stigma attached to the order of termination." 17.This Court aptly points out the decision of the Hon'ble Supreme Court in M.Venugopal V. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. and another [(1994) 2 Supreme Court Cases 323] wherein it is held as follows: "The amendments introduced in Section 48 of the Corporation Act have clearly excluded the provisions of the Industrial Disputes Act so far as they are in conflict with the rules framed under Section 48(2)(cc). The result whereof will be that termination of the service of the appellant shall not be deemed to be a "retrenchment" within the meaning of Section 2(oo) even if sub-section (bb) had not been introduced in the said section. Once Section 2(oo) is not attracted, there is no question of application of Section 25-F on the basis of which the termination of the service of the appellant during the period of probation is in terms of the order of appointment read with Regulation 14 of the Regulations, which shall be deemed to be now Rules under Section 48(2)(cc) of the Corporation Act." 18.In Life Insurance Corporation of India and another V. Raghavendra Seshagiri Rao Kulkarni [(1997) 8 Supreme Court Cases 461 at page 462], the Hon'ble Supreme Court has laid down as follows: "Clause 2 of the letter of appointment issued https://hcservices.ecourts.gov.in/hcservices/ to the respondent clearly stipulates that the respondent could be discharged from service at any time during the period of probation or extended period of probation, without any notice or without assigning any cause. The period of probation is a period of test during which the work and conduct of an employee is under security. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post. He gets the right to continue on the post till he attains the age of superannuation or is dismissed or removed from service for misconduct etc. after disciplinary proceedings in accordance with the rules in which he is given a fair and reasonable opportunity of being heard. He may also come to lose the post on compulsory retirement." 19.It is to be borne in mind that an Employee who is found to be unsuitable to the need of an Employer cannot be thrust upon the unwilling Employer. Moreover, if on an assessment of a person's conduct during the period of probation if it is found that he was not suitable for the post, it could be open to an Employer to terminate his services. 20.In the decision District Animal Husbandry Officer, Bandi and another V. Judge, Labour Court, Kota and another [2003 L.L.R. Page 99 : 2003 (96) F.L.R. Page 532], it is held that 'The termination of a Probationer by making over all assessment of his performance will not amount to retrenchment.' 21.The termination of a trainee having put in more than 240 days of service will not amount to retrenchment as per the decision in Executive Engineer, Orissa, Life Irrigation Division Dhankenal V. Presiding Officer, Labour Court, Bhubaneswar and others [2000 L.L.R. Page 757]. 22.We deem it fit appropriate to cite the decision of the Hon'ble Supreme Court in Rajesh Kumar Srivastava V. State of Jharkhand and Others [(2011) 4 MLJ 894 (SC)] wherein, at paragraph 10 and 12, it is laid down as follows: https://hcservices.ecourts.gov.in/hcservices/ "10.The records placed before us disclose that at the time when the impugned order was passed, the appellant was working as a Probationer Munsif. A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. During the period of probation, the action and activities of the appellant are generally under scrutiny and on the basis of his overall performance, a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. In the present case, in the course of adjudging such suitability, it was found by the respondents that the performance of the appellant was not satisfactory and therefore, he was not suitable for the job. The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard, neither any notice is required to be given to the appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. 12.The order of termination passed in the present case is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such decision cannot be said to be stigmatic or punitive. This is a case of termination of service simpliciter and not a case of stigmatic termination and therefore, there is no infirmity in the impugned judgment and order passed by the High Court." 23.The Appellant/1st Respondent was issued with Relieving Order- Ex.M.6 dated 01.02.1983 from 07.02.1983 on the ground that his service was not satisfactory and no more required by the Bank. Though the Appellant/1st Respondent had come out with an explanation that he was projecting his representations to the Chairman and General Manager of the Bank in regard to his reemployment and that a Final Order was passed by the 1st Respondent/Bank only on 18.06.1993 Ex.W.8 and therefore, the question of limitation for filing of the I.D.No.5 of 1996 would not arise in his case, it is to be pointed out that though the Industrial Disputes Act does not prescribe any time limit for raising an industrial dispute or filing of a claim petition before the Industrial Tribunal, we are of the considered view that the Appellant/1st Respondent had approached the 2nd Respondent/Industrial https://hcservices.ecourts.gov.in/hcservices/ Tribunal [praying for his non-employment as an unjustified one and the consequent relief of his reinstatement with backwages, continuity of service and all other attendant benefits] after a long lapse of nearly 13 years. The plea of the Appellant that he was making representations to the authorities of the Bank and that they passed final orders only on 18.06.1993 is an unacceptable one, in the considered opinion of this Court. As a matter of fact, the claim of the Appellant in I.D.No.5 of 1996 is only a stale or a sterile claim. 24.In the light of foregoing discussions and in view of the fact that the Appellant/1st Respondent was only a Probationer and since he was relieved from the service of the 1st Respondent/Bank as per Ex.M.6- Relieving Order dated 01.02.1983 from 07.02.1983 without attaching any stigma, but owing to his service to the Bank was not satisfactory and further his service is no more required by the Bank, we come to an inevitable conclusion that the termination of the Appellant by the Bank as per Ex.M.6 dated 01.02.1983 was a valid one and the Bank could not be thrust upon in any manner to retain the Appellant/1st Respondent. It is a termination, simpliciter, without attaching any stigma or punitive action. Viewed in that perspective, the Learned Single Judge is quite correct in setting aside the Award dated 07.10.1999 in I.D.No.5 of 1996 on the file of the Industrial Tribunal, Chennai. Consequently, the Writ Appeal fails. 25.In the result, the Writ Appeal is dismissed, leaving the parties to bear their own costs. The order of the Learned Single Judge dated 03.12.2009 in W.P.No.6970 of 2000, in setting aside the Award dated 07.10.1999 in I.D.No.5 of 1996 passed by the 2nd Respondent/Industrial Tribunal, is affirmed by this Court for the reasons assigned in this Appeal. Consequently, connected miscellaneous petition is also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Sgl To 1.The Tamil Nadu Mercantile Bank Limited, No.57, V.E. Road, Tuticorin – 628 002. 2.The Presiding Officer, Industrial Tribunal, Chennai. +1cc to M/s. S.Ramasubramaniam Associates Sr 38178 +1cc to M/s.C.Prakasam, Advocate Sr 37669 UG(CO) km/7.7. W.A.No.2682 OF 2010 https://hcservices.ecourts.gov.in/hcservices/