Case: Management of Brooke Bond India Private Limited Vs. Y.K. Gautam

1. The respondent was appointed by the appellant as a salesman on probation in terms of an appointment letter of September 15, 1965, end on the same day joined the service. Clause (l) of the letter of appointment read as follows :"You will serve a probationary period of six months this period of probation may be extended by a further period of three months or more in suitable cases in the absolute discretion of the company. The Company has the right to terminate your services during the period of probation or the extended period of probation or before confirmation in writing without notice and without assigning any reasons whatsoeverAfter the agreement which captained the above Clause was signed, the respondent was immediately directed by the appellant by another letter of the same date, namely September 15, 1965, to proceed to Bhilwara for the initial training of a salesman and report to Mr. Agarwal. He was further directed to keep a diary and note the important points of the days working and was required to furnish to the appellant a training report every. In compliance with these directions he went and joined at Bhilwara, and on November 24, 1965, he was asked to go and take charge at Swai Madhopur where he fell ill. On December 8, 1965 he asked for leave for one month December 1, 1965 and again on January 1, 1966, he applied for further leave for one month enclosing a medical certificate. On January 4, 1966, the appellant asked the respondent his present state of health and the probable date he intended to resume duty2. The Company by its letter of January 10, 1966, terminated the services of the respondent. The letter said :3. The Tribunal relied on two cases of this Court namely, Utkal Machinery Ltd. v. Miss Santi Patnaik, (l966) 1 Lab LJ 398 = AIR 1966 SC 1051   and Express Newspapers Ltd. v. Labour Court, Madras, (1964) 1 Lab LJ 9 = AIR 1963 SC 806  , for the proposition that the appellant was not justified in discharging the respondent from service without holding a proper Inquiry and that there was no evidence adduced on behalf of the management to show that the work of the probationer was unsatisfactory. It referred to the adverse reports of N. K Patwardhan, P. I. Sonwaney and A. N. Bose, the Area Manager, which were not communicated to the respondent, but instead he was given an independent charge on November 24, 1965, at Swai Madhopur after these reports were made. The Tribunal after observing that if the work of the respondent was not satisfactory he would have beend and dealt with according to rules of natural justice, came to the conclusion that the respondents services were terminated before the expiry of the period of probation, without giving him any opportunity to show cause for his discharge, and that since the services of the respondent were terminated during his probationary period when he was ill without any inquiry, it was unjustified and illegal and accordingly the order of termination dated January 10, 1966, was set aside. The appellant was directed to reinstate the respondent to his farmer job within one month from the date of publication of the award with continuity of service and pay him full back wages from the date of discharge till the date of reinstatement. It further directed that after reinstatement. It shall be within the Companys right to confirm him or not for valid and genuine reasons by bona fide exercise of its power. It is this award which has been challenged before us by special leave.

Reasoning:
9. The respondent before he was employed by the appellant was, according to his averment, employed as Assistant Manager in Tea Estate, Darjeeling from May 15, 1957 to October 20, 1961, that he left that job for a better job as Manager, Ganeshilal and Sons, Jalpaiguri where he worked from November 1, 1961 to September 15, 1964. He also left this job and served as the Superintendent of the Third National Agricultural Fair, Ahmedabad, organised by Bharat Krishak Samaj from October 1, 1964 to May 30, 1965. On the conclusion of the Fair he joined service in Aquasol Products, Vatva as Sales Manager from June 1, 1965 to August 30, 1965 where he was drawing a salary of Rs. 400/per month. Then he had applied for a job in the appellants Company as salesman and was appointed as such after he had given a written examination, appeared at an interview and was found medically fit. The case of the respondent was that he was persuaded to join the appellant Company by Malhotra the Divisional Sales Manager and that even though he had enquired several times from the said Malhotra about the terms and conditions of service he was not told about them but was assured that written terms and conditions of service were of no consequence and that he would get a permanent job in the Company after the completion of training. On such assurances the respondent left the job of Sales Manager with M/s. Aquasol Products and joined the service of the appellant on September 15, 1965. But to his great surprise he was made to sign the letter of appointment which put him on probation. He wrote to the Company on the same day stating thus :"It is most unfortunate that the letter of appointment along with a movement order No. P. I. S. CSP dated the 15th September, 1965, proved beyond my expectation and I very frankly write to state that I would have never joined duties had the appointment letter Seen issued to me earlier. Since I have already resigned there was no alternative left but to sign...........""However on your assurance I am proceeding to Bhilwara as directed vide your letter No. PTS : CST dated the 15th September, 1965Please confirm in writing whether I am trainee or probationer. Please reply at your earliest."When the respondent did not receive any reply to his letter of the 15th September, he again wrote a letter on September 24, 1965, seeking confirmation regarding his status as a trainee. He further wrote that as assured by the appellant, and in the absence of any confirmation by the appellant, he believed that he had been appointed in the capacity of a permanent salesman and had been sent only for training. Both these letters were sent under Certificate of Posting. But the appellant denied that it had received those letters. Whether it did or did not receive the letter is not of great significance except for the fact that these letters show that the respondent was clearly disappointed on his being appointed as a probationer when he was expecting to be appointed as a permanent salesman, although he did not mind being under training in that capacity. The allegation that he was induced to accept the job by Malhotra has been denied by Malhotra and there is no reason not to accept his denial, nor, as the Tribunal has found, the respondent having accepted the terms of appointment mentioned in the appointment letter can be permitted to say that the conditions of service laid down in the letter of appointment are not applicable to him merely because he signified his protest in his letter dated September 15, 196510. From the record it is apply rent that the appellant had made confidential enquiries from the erstwhile employers of the respondent by its letters dated September 16, 1965, i.e. from the, The Third National Agricultural Fair, Ahmedabad organised by the Bharat Krishak Samaj; from M/s Aquasol Products, Vatva and from M/s Goenka and Company, Darjeeling In reply to these enquiries the latter firm in their letter of November 24, 1965, stated that the respondent worked as a trainee at their different tea estates from May 10, 1958 to October 21, 1958 and had left of his own accord, and in respect of the respondents suitability for work they considered it as a matter best known to the appellant and they were unable to make any comment. In so far as The Third National Agricultural Fair is concerned, they stated on September 24, 1965, that the appointment of the respondent was purely on temporary basis for the duration of the Fair, that he was in charge of the Establishment Section in particular and general supervision of office and stores, that his services were terminated on the closure of the Fair finally at Ahmedabad, and that he carried out those duties quite satisfactorily. It was also stated that during the short period of the respondents service with the Third National Agricultural Fair, the respondent was found to be quite responsible arid hardworking with initiative. M/s Aquasol Products also certified on September 26, 1965, that the respondent left the service for his own better prospects, that his general conduct and efficiency were satisfactory and that regarding his suitability to handle the responsibility of stock and cash to the tune of over Rs. 4,000/it would be very much premature to say anything as the respondent was with them for a very short period. These replies to the references made to the respondents previous employers show that the respondents work with them was satisfactory and that he was efficient11. As against this the appellant Company has produced three reports of its officersExts. A, B and Cto show that the respondents work, while employed with it, was not satisfactory and that he would not be an asset to the Company. Exhibit Areport of N. R. Patwardhan dated November 16, 1965, shows that the respondent was weak in accounts work that he had to explain to the respondent in detail about compilation of weekly sheets, that the respondent was not able to prepare other returns correctly and that the respondent did not know what was called Debit Notes and Credit Notes. None of these sheets prepared by the respondent was produced. Exhibite report of P. T. Sonwaney dated November 15, 1965, shows that the respondent had poor approach to dealers and hot tea shops, was weak in pushing, sales talk not proper, was very slow in cash memo preparation and panel display, was not a very keen and enthusiastic worker, required a lot of guidance and frequent checking. It was, however, admitted that none of the customers had complained about his work Exhibit C, the report of Mr. A. N. Bose dated November 22. 1965, shows that the work of the respondent was much below the mark, his approach to dealers very faulty and perfunctory that he was slow and displayed no enthusiasm or interest. Shri Bose said that he talked with the respondent on alit masters touching on his work and it appeared that the respondent had not taken to his work seriously and that he felt that he was wasting his talents in doing the job. At the end of this report there is an endorsement Discussed with D. S. M. i.e. with Malhotra who was the Divisional Sales Manager. According to the evidence it is only after these reports, the Last of which was on September 22, 1965, that the appellant Company decided that the respondent was not suitable for the job and his services should be terminated12. The training of the respondent seems to have been completed by the first week of November 1965 and the assessment of the officers of the Company was in respect of five weeks work. It appears from the letter of September 15, 1965, and also from the evidence that the trainee had submitted weekly reports and that he had submitted five weekly reports. The sixth report which the respondent says he submitted with the endorsement of Agarwal has not been admitted by the appellant. The endorsement of Agarwal dated November 4, 1965, on that report is as follows :"Shri Gautam has completed his training period. During his short stay he had occasions to work independently. He is hard working and takes keen interest. He is fair at accounts. He will prove an asset to our organisation."Agarwal denies this endorsement on Ext. T. When his signature was shown to him, he said: "It does not tally with that of A to B. I have never signed such a document." According to Agarwal all the weekly reports are handwritten and since the respondent was to come to Ajmer, the sixth weeks report was handed over to him personally. Inn he admitted that he used to put his signature on the report prepared by the trainee after having gone through it, that he did not put any other remark on it but that he used also to prepare separate report on the trainee. According to him, the respondent after completing his six weeks training went to Ajmer13. It is, however, significant that on November 24, 1965, the Company asked the respondent to proceed to Swai. Madhopur to take over the depot from B. M. Moti, Permanent Salesman, who was granted annual leave effective from the date he was free from the M. D. and C. D. chargeThis letter is signed by A. N. Bose and he admits that he wrote this letter. In his evidence he further states that he had asked Gautam to proceed to Swai Madhopur and work there as salesman on November 24, 1965. This letter would clearly indicate that even after the adverse report given by Bose against the respondent two days before, Bose was willing to entrust the respondent with responsible work and put him in independent charge of one of the important stations of the appellant Company, with the full confidence that with the experience the respondent had of working independently at Ajmer the sales would increase. In view of this letter the respondents advocate alleges that the three reportsExts. A, B and Chave been got up subsequently which suggestion was made to all the three officers when they were examined before the Tribunal. They of course denied that the reports were fabricated subsequently. In any case it is quite clear that the respondent appears to have been frustrated on knowing that his appointment was on probation when he was expecting to be appointed on a permanent basis and having burnt his boats in leaving his earlier job where he was drawing Rs. 400/per month, he might have given initially the impression of being not very satisfied, but that Bose did not consider it as of any significance is clear, because within two days after the report Ext. C he was prepared to entrust him with responsible work. The reportsExts. A, B andC,in our view, mostly emphasise the lack of enthusiasm of the respondent. In so far as his not being conversant with the accounts etc. is concerned, if the accounts sent by him were in fact not properly kept; about which there is no evidence, and even if Agarwals endorsement on the sixth weekly report is held not proved, there was nothing to show that he would not learn during the next three or four months to keep proper accounts The Company also does not say that the respondent was not ill or that he was malingering. It appears that he was suffering from typhoid and after recovering from typhoid he produced a medical certificate to show that he was suffering from lumbago14. Taking the evidence as a whole one is left with the impression that the stand of the appellant Company that the respondent was not suitable for the job is not made out having regard to its action two days later of entrusting the respondent with an independent charge of a potential area with full expectation that the sales of that area would increase. In these circumstances the order of the appellant Company dated January 10, 1966 is capricious and unreasonable and the termination is not justified. The Tribunals award cannot, therefore, be assailedIn these circumstances, this Court agreed with the High Court which set aside the award reinstating the workman. The Court however noted that counsel for the employer had on their behalf stated that they were prepared to pay ex gratia six months salary to the workman over and above the amount due to him was not made in lieu of any right which the workman had. The case before us is not one where the post held by the respondent can he said to tee one of trust, nor can it be said that the employer had lost confidence in the respondent. The direction of the Tribunal is, in our view, quite reasonable. The appellant on reinstatement will have an opportunity of watching the work of the respondent and will have the right and freedom to make up its mind as to whether the services of the respondent should be retained or dispensed with on justifiable grounds.