1 W.P.No.5768.98 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5768 OF 1998 Shri Sarjerao Ramchandra Jagtap ... Petitioner v/s 1. The Chairman, Krishna Sahakari Sakhar Karkhana Ltd. & anr. ... Respondents Mr.A.R.Belge i/by Mr.S.S.Pakale for the petitioner. Nobody present for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 18TH AUGUST, 2010 ORAL JUDGMENT: 1. This petition has been preferred against the order of the Labour Court in Complaint (ULP) No.262 of 1990 and of the Industrial Court in Revision (ULP) No.157 of 1994. 2. The facts giving rise to the present petition are as follows:- 2 W.P.No.5768.98 The petitioner was appointed as a Tracer in the respondent Karkhana. The appointment order was issued on 28.11.1988 after considering the petitioner’s qualifications. It stipulated that the petitioner’s appointment was on probation for six months and that if his service was found to be unsatisfactory, the period of probation would either be extended or his services would be terminated. The petitioner continued to work there till a notice was issued to him on 19.5.1989 stating that his services were no longer required by the Karkhana and that he had been relieved from service with immediate effect. Aggrieved by this action of the respondents, the petitioner preferred Complaint (ULP) No. 262 of 1990 under Section 28 read with Item 1(a), (b) and (d) of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The Labour Court found that the complaint was barred by limitation but that the delay could be condoned. The Labour Court also held that the unfair labour practices complained of by the petitioner had not been established. According to the Labour Court, the petitioner was appointed as a probationer and, therefore, could be terminated from service at any point of time prior to the probation period coming to an end. The Labour Court relied on the judgment of the Supreme Court in the case of K.A.Barot v/s State of Gujarat, reported in 1992 1 C.L.R. 343. It distinguished an earlier judgment of 3 W.P.No.5768.98 the Supreme Court in the case of Western India Match Co. Ltd. v/s The workmen, reported in 1973 (27) S.C. F.L.R. 288. According to the Labour Court, since the judgment in the case of Western India Match Co. Ltd. (supra) was earlier in point of time, the later judgment was required to be followed. The Labour Court further concluded that the provisions of Section 25F were not applicable since the petitioner had worked only for 5 months and 21 days. The Labour Court therefore dismissed the complaint. 3. The revision application filed by the petitioner met with the same fate. 4. The translation of Clause 3 of the appointment letter issued to the petitioner on 24.11.1988 runs as under:- “Your probation period will be of six months from the date of your reporting for duty. During the said period, if your work is not found to be satisfactory, then either your probation period will be extended or you will be removed from the service.” 5. By the order of termination dated 19.5.1989, the petitioner was informed that his services were no longer required by the Sugar Factory (in short, Karkhana) and he 4 W.P.No.5768.98 was therefore being relieved after office hours on 19.5.1989. Thus, his services had been terminated prior to the six month period coming to an end. 6. The learned advocate for the petitioner submits that both the Labour Court and the Industrial Court have committed an error while dismissing the complaint. According to him, the petitioner was appointed in service in accordance with the rules and on probation. He points out that the Certified Standing Orders applicable to the respondent Karkhana have been certified under the Bombay Industrial Relations Rules, 1947. They stipulate that an employee is deemed to be permanent when he completes a probation period of three months. According to the learned advocate, the appointment letter which was in breach of the Certified Standing Orders cannot prevail over the Certified Standing Orders. He points out that although the appointment letter was issued mentioning that the probationary period would be for six months, the respondents could not have issued such an appointment letter since the Certified Standing Orders stipulate only three months. He relies on the judgment in the case of Western India Match Co. Ltd. (supra) in support of his submission. The learned advocate has attempted to distinguish the judgment in the 5 W.P.No.5768.98 case of K.A.Barot (supra) on which the Labour Court relied, by contending that the facts in that case were different and that there was no deeming fiction in the Standing Orders by which the workman could be deemed to be permanent. 7. Since the respondents have not bothered to appear before this Court, the matter has proceeded in their absence. 8. Clause (2)(a) of the Certified Standing Orders applicable to the Karkhana certified under the Bombay Industrial Relations Rules stipulate as follows:- “Clause (2)(a): “Permanent employee” means an employee who has been appointed as such in writing by the Managing Director and includes an employee who has completed a probationary period of three months and/or whose appointment has been confirmed in writing by the Managing Director. The Probationary period may, however, be extended by the managing Director in writing, for reasons to be recorded, by a further period of three months only, before or at the end of which the employee concerned shall be confirmed reverted or sent away. Explanation: Any employee employed continuously for three consecutive seasons, if he is a seasonal employee and in other cases employed continuously for not less than six months, otherwise than as a temporary employee, a casual employee, a substitute or an apprentice, shall be deemed to be a permanent employee.” 6 W.P.No.5768.98 Under Section (2)(c) probationer has been defined as follows: “Section (2)(c):- “Probationer” means an employee who s provisionally appointed in writing by the Managing Director to fill permanent vacancy or posting and has not been made permanent or confirmed in service.” 9. Standing Order (2)(a) clearly and unambiguously provides that the probationary period should be three months and it is only in case the respondents record reasons in writing that the Managing Director can extend the period of probation by a further period of three months. A workman would then at the end of such period be confirmed or reverted or terminated from service. The Standing Order provides that a permanent employee is one who has completed a probationary period of three months and/or whose appointment has been confirmed in writing by the Managing Committee. Thus, this Rule contemplates that when a person is appointed on probation for three months there must be a letter confirming him in service. The deeming fiction is contained in the Explanation to the Standing Order. If a probationer is employed for not less than six months, he shall be deemed to be permanent. Thus a person may be appointed on probation for three months after which his term of probation can either be extended or 7 W.P.No.5768.98 continued if his work is unsatisfactory, by another three months. At the end of six months he shall be deemed to be a permanent employee. In the event the Managing Director finds at the end of three months that the employee should be confirmed, he must issue an order in writing to that effect. 10. In the present case, the management has not chosen to confirm the workman after three months. Standing Orders (2)(c) provides that a probationer is one who is provisionally appointed in writing in a permanent vacancy and who has not been made permanent or confirmed in service. The submission of the learned advocate that the workman must be deemed to be permanent after he completes three months in service is without any basis. In the case of Western India Match Co. Ltd. (supra), an employee was appointed on probation for a period of six months although the Standing Orders provided for a probationary period of two months. The period of probation expired after which the Company passed an order extending the period of his probation for two more months with retrospective effect. It appears that the services of the employee were terminated as his work during the probation period was not found to be satisfactory. The dispute was raised by the workman which was preferred for adjudication. The Supreme Court held that the inconsistent 8 W.P.No.5768.98 part of the special agreement, that is the letter of appointment, cannot prevail over the Standing Orders as long as the Standing Orders are in force. It is in these circumstances that the Supreme Court has held that the termination of service was illegal as there was no material on record to show that the work performed by the workman was unsatisfactory. It was, therefore, held that the order of discharge was arbitrary. The Standing Order in the Western India Match Co. Ltd. case is not the same as the Standing Order applicable in the present case. It does not require workman to be confirmed in service by a letter to that effect, whereas in the present case, such a condition is stipulated in the Standing Order applicable. Assuming the work of the petitioner was not in fact satisfactory, it is not necessary for an employer to continue a workman on probation till he is confirmed in service. It is always open for an employer to decide whether the workman should be relieved from service during the period of probation in accordance with law. In the present case, both the Labour Court and Industrial Court have rightly held that there must be an order in writing confirming the petitioner in service. It is true that the period of probation mentioned in the appointment order exceeded the period that mentioned in the Standing Order. However, it is now well settled that unless there is an order in writing, 9 W.P.No.5768.98 confirming an employee in service as a permanent employee, he continues to be on probation. The judgment in the case of K.A.Barot (supra) has been found applicable by both the Labour Court and the Industrial Court to the facts in the present case. 11. I see no reason to differ with the view taken by the Labour Court and the Industrial Court. The Certified Standing Orders which are applicable are unambiguous. The deeming fiction comes into play only if the workman has been employed as a probationer for six months. In the present case, the workman has worked for less than this period and therefore cannot be deemed to be a permanent employee. In my opinion, therefore, the order of the Labour Court and the Industrial Court must be upheld. The orders are not perverse, requiring this Court to interfere under Article 227 of the Constitution of India. 12. Writ petition dismissed. Rule discharged. 13. No order as to costs. ..... 10 W.P.No.5768.98