Letters Patent Appeal No.1083 OF 1996 ***************** Against the Judgment and Order dated 12.09.1996 passed in C.W.J.C. No.782 of 1995. ------------ DHUPLAL MAHTO---------------------------------(Appellant) Versus STATE OF BIHAR & ORS--------------------(Respondents) ------------ Counsel for the appellant: Mr. Alok Kr. Sinha, -------Advocate. Mr. Indrajeet Bhushan-----Advocate. Counsel for the respondent: Mr. K.N. Gupta--------------Advocate Mr. Satyendra K. Prasad…Advocate Counsel for the State: Mr. Debanjan Choudhary--J.C. to S.C.-III. P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. There is no dispute that on 10th of May, 1987 the appellant was a Probationer Driver engaged as such by the respondent/employer for plying a Tank-lorry. There is also no dispute that the appellant did not report for duty since 1st January, 1989. Lastly, there is also no dispute that by a letter dated 10th of May, 1989 the probation of the appellant was brought to an end. In this letter it was stated that since the appellant remained absent without intimation from 1st of January, 1989, despite requests made to report for duty, his probation is being put to an end. 2 2. Severance of relationship between the appellant and the respondent was referred for adjudication under Section (10) (i) (c) of the Industrial Disputes Act, 1947. The dispute, as was referred, is as follows: “Whether termination of service of Dhup Lal Mahto, Driver, is proper and justified? If not, should he be given compensation?” 3. After the pleadings were completed, issues were framed and one of them was “Has the workman remained in continuous service of one year i.e., of 240 days in a year of 12 Calendar months preceding termination of his service and if so, whether the Management has complied with the provisions of Section 25-F of the Act?”. The Labour Court, after evidence was tendered, held, which is not in dispute, that the appellant worked for 240 days in a year of 12 Calendar months preceding termination of service and further that the management has not complied with the provisions of Section 25-F of the Act and accordingly, resolved the dispute as was referred to it in favour of the appellant. 4. Before the Labour Court it was contended by 3 the respondent/employer that the respondent/employer, having had sold off the Tank-lorry, is not in Tank-lorry business, and, accordingly, can not accord reinstatement to the appellant. Accepting such contention, the Labour Court directed the respondent employer to pay compensation equivalent to 3.33 years‟ salary including usual allowances to the appellant in lieu of reinstatement. 5. The respondent/employer challenged the order of the Labour Court by filing a writ petition. The writ Court found that as on the date of putting to an end the engagement of the appellant the word „retrenchment‟, as defined in Section 2(00) of the Act, did not include termination of service of a workman, as a result of non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein. The Writ Court found as a fact, which is not in dispute and as was found on facts by the Labour Court, that the appellant was engaged on probation on 11th May, 1987 for one year extendable by a period of another one year and that the probation of the appellant was 4 extended by one year up to 10th of May, 1989. The Writ Court found, on facts thus gathered, that on the date of putting to an end the probation of the appellant i.e., on 10th of May, 1989, the probation i.e., the contract of employment in such capacity between the appellant and the respondent/employer, stood terminated and accordingly, such termination is outside the purview of the word „retrenchment‟ requiring compliance of Section 25-F of the Act. 6. Before us it was stated on behalf of the appellant,as was also contended before the Writ Court and before the Labour Court, that taking into account the length and breadth of the case, the conclusion would be that the employment of the appellant was terminated on the ground that the appellant has abandoned his employment. Alternatively, it was urged that the probation of the appellant was put to an end because the appellant remained absent since 1st January, 1989, but allegedly without information. It was contended that in the first case termination of service could only be effected after giving an opportunity to the appellant to show and establish that it was not abandonment, 5 but circumstances compelled the appellant not to report for duty during the period in question. In the second circumstance, it was contended that since before the Labour Court a case of abandonment had been made out by the respondent/employer, despite there were pleadings and evidence, there is no finding that the allegation that the appellant did not inform is true and if information was given by the appellant, then the contention in the letter of termination dated 10th May, 1989 would stigmatize the appellant and in both cases the result would be same i.e., a direction for reinstatement. 7. The letter of appointment, an accepted piece of evidence, suggests authority of the respondent/employer to put to an end the probation of the appellant if the respondent/employer is satisfied that the service as rendered by the appellant is not up to the standard. It was contended that the letter dated 10th May, 1989 read with the subsequent public notification would amply demonstrate that it was not failure on the part of the appellant to achieve the expected standard, but it was his remaining absent from 1st January, 1989, which caused 6 termination of engagement of the appellant. Even if we accept what the learned counsel for the appellant has submitted, the conclusion would be the same, as admittedly the probation of the appellant expired on 10th May, 1989 and unless the appellant had discharged duties on 11th May, 1989, as a driver, which the appellant did not, the contract of employment of the appellant as a probationer, as contained in the appointment letter, automatically stood terminated on and from the mid night of 10-11th of May, 1989. As aforesaid termination of service of workman, as a result of non-renewal of the contract of employment between the employer and the workman is outside the purview of retrenchment as defined in the Act. The contract of employment between the appellant and the respondent/employer would have stood renewed for perpetuity provided the appellant had worked or had shown interest to work on 11th May, 1989. 8. In the circumstances, the appeal fails and the same is dismissed. Patna High Court, The 1sSeptember, 2008. Mkr./NAFR (Barin Ghosh, J.) (C.M. Prasad, J.)