:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 434 OF 2008 The Managing Director, Bhagini Nivedita Co-operative Bank Ltd., Pune ..Petitioner Vs. Smt. Sandhya Sathe and anr. ..Respondents Mr. S.M. Paranjape for petitioner. Mr. N.A. Kulkarni for respondent no.1. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : January 28, 2008. Date : January 28, 2008. Date : January 28, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Paranjape the learned counsel for the petitioner-bank. Mr. Nitin Kulkarni the learned counsel appears for respondent no.1. Respondent No.2 is not a necessary party and hence be deleted forthwith. 2. The respondent no.1 cameto be appointed as Sweeper-cum-Messenger as per the appointment order dated 12/8/1996 and for a period of one year with :2: effect from 26/8/1996 to 25/8/1997 and came to be posted at the Nigadi Branch. By order dated 11/4/1997 (Exh.29) she was transferred from the Nigadi Branch to Head Office of the petitioner-bank with effect from 15/4/1997 and again from Head Office to Narayan Peth Branch she was transferred by the order dated 19/1/1998 (Exh.32) with effect from 21/1/1998. Surprisingly, on 26/8/1997 (Exh.30) the bank issued an order appointing her on probation in the same post for Sweeper-cum-Messenger and she was informed that she would be on probation for a period of six months. This order was issued because as per the Bank her performance during the preceding one year on temporary appointment was found to be satisfactory. However, on 23/2/1998 the Bank issued an order terminating the services of the respondent no.1 with effect from 25/2/1998. At the same time a fresh appointment order was issued on 27/2/1998 (Exh.34) appointing the respondent no.1 on probation for a period of three months with effect from 2/3/1998 and as per the order dated 1/6/1998 (Exh.36) her services came to be terminated with effect from 2/6/1998. :3: 3. The last termination order dated 2/6/1998 came to be challenged before the Labour Court in Application (BIR) No. 3 of 1998 and after hearing both the parties the said application came to be allowed by the Labour Court vide its judgment and order dated 22/8/2005. The Labour Court declared that the termination of the respondent no.1 with effect from 2/6/1998 was illegal and she was directed to be reinstated on her original post with continuity of service and payment of 50% backwages from the date of of the termination till reinstatement. Being aggrieved by this order of the Labour Court, the bank filed Appeal (BIT) No.1 of 2006 and the respondent no.1 being aggrieved by the order of the Labour Court to the extent of denying 50% of backwages, filed Appeal (BIR) No.2 of 2006. The learned Member of the Industrial Court at Pune was pleased to dismiss the appeal filed by the Bank i.e. Appeal (BIR) No.1 of 2006, whereas Appeal (BIR) No.2 of 2006 filed by the respondent no.1 came to be allowed. 4. In this petition the bank has challenged the judgment and order of the Industrial Court allowing :4: Appeal(BIR) No.2 of 2006 and thus the bank’s grievance is limited to the order of payment of full backwages. 5. In this regard Mr. Paranjape relied upon the decision of the Supreme Court in the case of General Manager, Haryana Roadways vs. Rudhan Singh [2005 II CLR 1055]. Mr. Paranjape admitted that the Model Standing Orders under the BIR Act are applicable to the petitioner-bank and as per the said Model Standing Orders there is no provision for extension of probationary period. If the probationer’s service at the end of the probationary period of six months is found to be unsatisfactory, the bank has the right to discontinue at the end of the probationary period, but at the same time the bank cannot issue a fresh order of probation on 27/2/1998. 6. In the instant case the Labour Court has, therefore, recorded a finding that the evidence of Mrs.Shaila Joshi and Mrs. Vijaya Garibe as well as the documentary evidence on record vide list Exh.46 did make out a case of termination without compliance of Section 25F of the Industrial Disputes Act, 1947. :5: In addition, the confidential reports at Exhs.49 and 50 were considered. The first CR at Exh.49 was for the period of six months of initial probation and it only stated "unsatisfactory work", whereas the next CR at Exh.50 was for the extended period of three months of probation in which the assessment was "average work". At the same time the appointment order on probation at Exh.30 issued for the first time clearly indicated that the respondent’s performance during the one year of her tenure on temporary basis was found to be satisfactory. Under these circumstances, there is no reason to find fault with the view taken by the Labour Court and the bank being aware of the same has not raised serious challenge to the order passed by the Labour Court. 7. Mr. Kulkarni the learned counsel for the respondent no.1, on taking instructions, stated that if the respondent is reinstated and is paid 50% backwages as per the order passed by the Labour Court, she is willing to give up her claim for the remaining 50% backwages, as directed by the Industrial Court. This offer made by the respondent no.1 is fair and it :6: clearly indicates that the respondent no.1 is keen to get into the employment of the bank as Sweeper-cum-Messenger without insisting upon full backwages. 8. Hence, the petition is disposed off by directing the Bank to reinstate the respondent no.1 as per the order of the Labour Court and to pay 50% backwages from the date of termination till the date of reinstatement. The respondent no.1 also undertakes not to claim the remaining 50% backwages as directed by the Industrial Court. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)