LPA No. 1356 of 2011 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 1356 of 2011 (O&M) Date of Decision: September 27, 2011 Malkiat Singh …Petitioner Versus The Presiding Officer and others ...Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Arun Takhi, Advocate for the appellant. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against judgment dated 26.05.2011 rendered by the learned Single Judge upholding the award dated 08.11.2010 (P-8) passed by the Industrial Tribunal and Labour Court, Union Territory, Chandigarh (for brevity 'the Labour Court'). The Labour Court has found that the order of termination against the appellant-petitioner dated 10.09.2002 (P-3) did not suffer from any legal infirmity. The aforesaid findings have been upheld by the learned Single Judge. 2. It is appropriate to mention that the appellant-petitioner was appointed as Driver on 24.08.2001 (P-1) and as per terms and conditions of the appointment letter, he was to be on probation for a LPA No. 1356 of 2011 (O&M) -2- period of two years. However, his services were terminated during the period of probation on 10.09.2002 for the reason that his conduct during the period of probation was found to be blameworthy, inasmuch as while plying the bus on an assigned route he deviated therefrom on his own. The learned Single Judge also found that he suppressed the material fact at the time of seeking appointment because his services were earlier dispensed with by the Transport Department of Union Territory. The learned Single Judge after considering the submission made by the appellant-petitioner came to the conclusion that the termination during the probation period on account of concealment of his earlier termination and unsatisfactory work and conduct during the period of probation would constitute a valid basis to discharge him from service. Accordingly, the order of termination has been upheld. 3. Mr. Arun Takhi, learned counsel for the appellant- petitioner has argued that the allegation made by the respondent that he took the bus deviating from the route given to him, in fact would amount to an act of misconduct, as has also been indicated by the learned Single Judge. According to the learned counsel, in such like cases, even for a probationer, holding of an enquiry is obligatory as per the provisions of Article 311(2) of the Constitution. In support of his submission, learned counsel has placed reliance on two judgments of Hon'ble the Supreme Court rendered in the cases of Anoop Jaiswal v. Government of India AIR 1984 SC 636 and Dipti Prakash Banerjee v. Satyendra Nath Bose National LPA No. 1356 of 2011 (O&M) -3- Centre for Basic Sciences, AIR 1999 SC 983. 4. Having heard learned counsel for the appellant-petitioner and perusing the paper book, we are of the considered view that the opinion expressed by the learned Single Judge as well as by the Labour Court in its award is squarely within four corner of law and it does not warrant any interference of this Court. A perusal of the discharge order dated 10.09.2002 (P-3) would show that the services of the appellant-petitioner have been ordered to be discontinued with immediate effect being no longer required. It is well settled that if an order of discharge passed in respect of a probationer ex facie does not disclose any misconduct then such termination cannot be regarded as stigmatic. In other words, the termination is not founded on a misconduct requiring the employer to hold a regular departmental enquiry by satisfying the conditions laid down in Article 311(2) of the Constitution. Once the order is not ex facie stigmatic or founded on any misconduct then no occasion would arise for us to conclude that a regular departmental enquiry was necessary. For the aforesaid proposition, we draw support from a Constitution Bench judgment of Hon'ble the Supreme Court in the case of State of U.P. v. Kausal Kamal Kishore 1991 (1) SLR 606. In that case, despite the fact that an enquiry in respect of a temporary employee had been initiated, the employer resorted to termination by dropping enquiry and passing an order simpliciter dispensing with the service of the employee. In such a situation, their Lordships of Hon'ble the Supreme Court held that Article 311(2) of the LPA No. 1356 of 2011 (O&M) -4- Constitution would not be attracted. Accordingly, we find that the appeal is devoid of merit and the same is liable to be dismissed. 5. For the reason aforementioned, this appeal fails and the same is dismissed. 6. Keeping in view the dismissal of appeal on merit, we do not wish to pass any order on the application seeking condonation of delay of 10 days in filing of the appeal. (M.M. KUMAR) ACTING CHIEF JUSTICE (GURDEV SINGH) JUDGE September 27, 2011 Atul