1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2599 OF 2008 Central Provident Fund Commissioner, New Delhi and others ..Petitioners. Vs. Sunil G. Salunke ..Respondent. .... Smt. S.V. Bharucha with Mr. Suresh Kumar for the Petitioners. None for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 6th October, 2008. P.C. : 1. The Respondent was appointed as a Safaiwala in the office of the Regional Provident Fund Commissioner by a letter of appointment dated 29th September, 1993. The memorandum of appointment states that the appointment was temporary. However, clause (2) provides that the workman was to be on probation for a period of two years. Under clause (8) the appointment was liable to be terminated by one month's notice on either side. The appointment was provisional subject to the verification of his antecedents and it was specified that if any declaration given or 2 information furnished by the candidate proved to be false or if the candidate is found to have willfully suppressed material information, he was liable to be removed from service. 2. While applying for appointment, the Respondent had filled up an attestation form and in clause (12) thereof stated inter alia that he had never been arrested; that there was no prosecution against him nor had he been convicted of any offence. On 25th May, 1995 the Assistant Provident Fund Commissioner was informed by the Police Commissioner for the City of Pune that a criminal complaint had been registered against the Respondent vide register No. 79/91 under the provisions of Sections 337, 504 and 506(2) of the Penal Code at Wanowrie Police Station and was pending before the Court as Case No. 138 of 1991. The services of the workman were terminated on 24th October, 1996 in exercise of powers conferred by Rule 8(3) of the Employees' Provident Fund (Staff and Conditions of Service) Regulation 1962 read with sub rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. 3 3. The workman sought a reference to adjudication. The Petitioners were served but failed to file their written statement. On 10th February, 2003 the Labour Court granted reinstatement with full backwages and consequential benefits. An application for setting aside the ex parte award was filed on 20th April, 2004 in which it was stated that a copy of the award had been received on 4th June, 2003. The Labour Court dismissed the application for condonation of delay holding that upon the publication of the award, the Court had been rendered functuous officio. The award, it may be noted, had been published on 1st May, 2003. The workman thereupon moved a complaint of unfair labour practices and the Industrial Court by its order dated 27th January, 2005 allowed the complaint and directed the implementation of the award. The order of the Industrial Court was then challenged before this Court in a petition under Article 226. The Writ Petition was disposed of by a Learned Single Judge of this Court (Hon'ble Mr. Justice B.H. Marlapalle) on 20th February, 2008. This Court noted that unless the Petitioners were to challenge the ex parte 4 award, there could be no occasion for the Industrial Court to pass any other order on the complaint of unfair labour practices. The Petition was dismissed but with the clarification that this would not preclude the Petitioners from challenging the ex parte award in appropriate proceedings. Accordingly the present proceedings have been instituted under Article 226 of the Constitution of India. Counsel appearing for the Petitioners submitted that the workman was a probationer. The Labour Court has adverted to the letter of appointment dated 29th September, 1993 and ex facie even a bare perusal of the order was sufficient to indicate that the services of the workman could have been dispensed with, with one month's notice. 4. There is merit in the submission. The Labour Court in its award has adverted to the order of appointment dated 29th September, 1993. Clause 8 of the appointment order specifies that the services of the workman could be dispensed with after furnishing a notice of one month. The appointment of the probationer was subject to verification of antecedents and there 5 was an express condition to the effect that in the event that the candidate was proved to have suppressed material information, he was liable to be removed from service. In the present case, in the attestation form which was filed by the candidate he had failed to disclose that a criminal prosecution against him for offences under Section 337, 504 and 506(2) of the Penal Code was pending. But quite apart from the pendency of the criminal prosecution and even on the face of the award as it stands, the Labour Court was not justified in granting reinstatement to the workman to his original post with continuity of service and full backwages. As a probationer the workman had no vested right to a permanent appointment. There is absolutely no discussion whatsoever on the aspect of backwages as well in the award. 5. At the stage of admission on 20th June, 2008 this Court issued notice with a direction that the notice shall indicate that the Petition shall be heard and finally disposed of at the stage of admission. The Respondent has not appeared despite notice. 6 6. In these circumstances, the Petition will have to be allowed and is accordingly allowed. The award of the Labour Court dated 10th February, 2003 is quashed and set aside. Reference (IDA) 496 of 2000 shall stand restored to the file of the Third Labour Court, Pune. The Petitioners are permitted to file their written statement within a period of eight weeks from today. The proceedings shall be listed before the Labour Court for directions on 8th December, 2008. The Labour Court shall proceed to hear the reference and endeavour to dispose it of expeditiously. The Petition shall stand allowed in the aforesaid terms. It is clarified that the observations in this judgment shall not preclude the Labour Court from dealing with all the issues which arise in the reference on merits, since these observations are confined to the legality off the ex parte award. There shall be no order as to costs. *****