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Judgment
Arun Madan, J.—The petitioner who is Chief Personnel Manager now designated as Chief Manager, Indian Relation & Human Resources, Carona Sahu Co. Ltd., has moved this Court by way of filing the instant writ petition challenging the impugned order dated January 15,1986 of the Authority constituted under the Rajasthan Shops and Commercial Establishments Act, 1958 (hereinafter referred to as ''the Authority'') whereby, the Authority had directed reinstatement in services of the petitioner-company of respondent No. 1 with backwages w.e.f. the date of termination i.e. August 8,1984 with all consequential benefits on the grounds inter alia that the Respondent No. 1 was appointed as a probationer and since during the probationary period, his services were not found satisfactory, no reason was required to be assigned by the Management of the petitioner-Company before terminating his services.
The facts giving rise to the filing of the instant writ petition briefly stated are that the petitioner-Company is a private limited company having its registered office at Bombay and its retail shops all over India and also at Sriganganagar in Rajasthan and hence is amenable to writ jurisdiction of this Court. The Respondent No. 1 was given appointment in terms of the order dated December 6, 1983 as a Helper in the Company w.e.f. December 1, 1983 on probation basis initially for a period of 3 months to start with. The terms and conditions of the service were duly incorporated in the appointment order itself vide Exh. 1 to the writ petition. In Clause (1) of the appointment the Respondent No. 1 was on probation initially for a period of 3 months w.e.f. the date of appointment. During the said period, the services of the said employee could be terminated at any time without assigning any reason whatsoever and without notice or payment in lieu of such notice. The period of probation could be extended at the discretion of the management but, in any case the said extension was not to exceed for a period beyond six months as reckoned w.e.f. the date of appointment. The initial salary of Respondent No. 1 was fixed at Rs. 175/- per month besides dearness allowance and other allowances as admissible to other employees of the petitioner-Company. The appointment of the Respondent No. 1 was to be strictly governed by the Standing Orders and the rules as applicable to the retail outlets of the petitioner-Company. The initial period of probation of Respondent No. 1 of 3 months w.e.f. December 6, 1983 had come to an end on February 29, 1984 which was further extended by another 3 months w.e.f. March 1, 1984 to May 3,1984 vide Exh. 2 on the record. Since the services of the said respondent were not found satisfactory, the petitioner-company did not prefer to extend his probationary period beyond six months as envisaged under the Rules and his services were terminated vide order dated July 16, 1984 vide Exh. 3 on the record. The perusal of the said document which is a letter addressed to the Respondent No. 1 by the Chief Personnel Manager of the petitioner company indicates that the performance of the said employee was under constant watch and observance of the management and since his services were not of the requisite standards inspite of having been given one chance to improve his services notwithstanding one extension already granted, consequently, his services stood terminated w.e.f. August 1, 1984 and he was directed to be relieved from his duties accordingly.
Being aggrieved by the said order of termination, the Respondent No. 1 challenged the impugned-order of termination by filing the claim petition u/s 28-A of the Rajasthan Shops & Commercial Establishments Act, 1958 (hereinafter referred to as ''the Act of 1958'') before the Authority constituted under the said Act. The questions which were formulated by the Authority for consideration, are as under--
(1) Whether the management of the petitioner-company was justified in terminating the services of the Respondent No. 1 without prior intimation or notice and without having been served at least one month''s prior notice and whether such termination tantamounts to violation of Section 28-A of the Act ?
(2) if, the termination is held illegal then, to what relief Respondent No. 1 shall be entitled as against the petitioner-Company?
The learned Authority after giving detailed hearing to both the parties, recorded its finding against the petitioner-Company by observing that since the services of Respondent No. 1 were terminated without any prior show cause notice having been served on him and since no reason was assigned by the petitioner-Company for terminating his services, the employee having served the management of the petitioner-Company continuously for a period of 6 months w.e.f. the date of appointment even if, within the probationary period which was not extended beyond 6 months, the impugned-order of termination was quashed and set-aside with a further direction to the Management to reinstate Respondent No. 1 in service of the petitioner-Company with backwages w.e.f. August 1, 1984.
Being aggrieved by the said order, the petitioner-Company has come up before this Court by way of instant writ petition. Before I deal with the relative contentions as advanced by the learned counsel for the parties during the course of hearing of this petition on October 23,1997 and which is now being finally disposed of by this order, I deem it appropriate to discuss the provisions of Section 28-A of the Act, which is, as under--
"28-A, Notice of Dismissal or discharge by employer--(1) No employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than 6 months except for a reasonable cause and after giving such employee at least one month''s prior notice or on paying him one month''s wages in lieu of such notice :
Provided that such notice shall not be necessary where the services of such employee are dispensed with for such misconduct, as may be defined in the rules made by the State Government in this behalf, and supported by satisfactory evidence recorded at an enquriy held for the purpose in the prescribed manner.
(2) Every employee so dismissed or discharged may make a complaint in writing in the prescribed manner to a prescribed authority within 30 days of the receipt of the order of dismissal or discharge on one or more of the following grounds, namely--
(a) that there was no reasonable cause for dispensing with his services; or (b) that no notice was served upon him as required by Sub-section (1); or (c) that he had not been guilty of any misconduct :
Provided that the prescribed authority may condone delay in filing such a complaint if it is satisfied that there was sufficient cause for not making the complaint within the prescribed time.
(3) The prescribed authority shall cause a notice to be served an the employer relating to the said complaint, record briefly the evidence produced by the parties, hear them and make such enquiry as it may consider necessary and thereafter pass orders in writing giving reasons therefor.
(4) While passing an order under Sub-section (3), the prescribed authority shall have power to give relief to the employee by way of reinstatement or by awarding money compensation or by both.
(5) The decision of the prescribed authority under this section shall be final and binding both on the employer and the employee."
From the perusal of the said provisions of Section 28-A of the Act, it is abundantly clear that--
(i) That no employee shall be dismissed, removed or discharged from his services of a management who comes within the ambit of the definition of "employer" under Definition Clause 2(6) of the Act of 1958 if he has continuously served the management or an establishment for a period not less than 6 months as reckoned w.e.f. the date of appointment ;
(ii) That atleast one month''s prior notice or wages in lieu of such notice showing cause be given to an employee;
(iii) That no such notice shall be necessary if the services of such an employee have been dispensed with by the establishment for such misconduct as defined in the rules framed by the State Government in this regard and if it is supported by a satisfactory evidence recorded at Departmental Enquiry in a prescribed manner for the purpose as envisaged under the Act of 1958.
From the perusal of Section 28-A of the Act, it is also apparent that there is no provision in the Act of 1958 which speaks of an automatic confirmation of an employee on the expiry / completion of the probationary period of 6 months. Thus, the management has always the prerogative to terminate the services of an employee who is appointed as a Probationer for a period of 3 months which may be extended from time to time not exceeding the period of 6 months as contemplated by the Legislature u/s 28-A of the Act of 1958. It is further apparent that the services of a probationer do not entail automatic confirmation after expiry of probationary period since another order has to be passed for confirmation that too after the conduct of an employee/probationer is found satisfactory but in the instant case since the conduct of the respondent probationer was not found satisfactory; the petitioner-company did not extend the probationary period of the Respondent No. 1 and terminated his services and the said order of termination is not open to challenge on the ground that prior show cause notice or opportunity of hearing has not been given to such an employee. I am of the view that the provision of one month''s notice or one month''s wages in lieu of such notice is available only to those employees who are confirmed in the service of an establishment as a regular/permanent employee and this safeguard is not available to a probationer and the service of such an employee being temporary in nature and being not a confirmed employee in the establishment, can always be terminated with or without notice as per the law which is so settled on the subject. It is further not necessary for an establishment to intimate the cause or reason required for dispensing with the services of a probationer since no permanent right or lien is vested with such an employee to claim the continuity in services of the Company by virtue of being a temporary employee of the establishment.
I have heard the learned counsel for the parties at length, examined their rival claims and contentions and also perused the relevant documents on record. At the outset, I would like to refer to the terms and conditions of the appointment order of Respondent No. 1 dated December 6,1983 (Exh. 1), which reads, as under--
"You will be on probation for a period of three months from the date of appointment. During this period your services are liable for termination at any time without assigning any reason whatsoever and without notice or payment in lieu of notice. The period of probation may be extended at the discretion of the management. The period of probation will not exceed one year at the most."
In view of the above condition as referred to in the appointment order itself, it is apparent that no vested right to claim continuity in services of the petitioner- Company or to claim automatic confirmation beyond the probationary period of six months, in all would arise in favour of an employee unless his services are regularised by a specific order of confirmation passed by the competent Authority. Respondent No. 1 was appointed initially for a period of 3 months on probation w.e.f. December 6,1983 which was extended by another 3 months vide extension order dated March 13,1984 (Exh. 2) and Respondent No. 1 had in all rendered the services to the petitioner-company for a period of 6 months w.e.f. his date of appointment and the probationary period came to an end on May 31, 1984 beyond which it was not extended. Since the services of Respondent No. 1 were not found satisfactory by the management of the petitioner-company, the company did not prefer to extend the probationary period of Respondent No. 1 beyond the period of 6 months and accordingly, took the decision to terminate the services of the Respondent No. 1 immediately on the expiry of probationary period on August 1, 1984, itself from which date, he was directed to have been relieved from his duties.
During the course of hearing, Mr. R.K. Singhal, learned counsel for Respondent No. 1 has vehemently contended at the bar that the petitioner-company has grossly violated the provisions of the Act of 1958 more particularly, Section 28-A of the Act of 1958 which prohibits an employer from dismissing or discharging an employee from his service who has been continuously working in such and employment for a period not less than 6 months and that too after giving him atleast one month''s prior notice or wages in lieu of such notice. Learned counsel further contended that the Standing Orders and the Rules of the petitioner-company are subject to the provisions of Section 28-A of the Act of 1958. He further contended that in the absence of non-extension of the probationary period beyond May 31, 1984, the Respondent No. 1 shall be deemed to have been automatically confirmed in services of the petitioner-company and hence it was not open to the petitioner-company to have terminated the services of the Respondent No. 1 vide impugned order dated July 16, 1984 (Exh. 3) even according to the terms of the agreement or contract.
The aforesaid contentions have been strongly controverted by the learned counsel for the petitioner-company on the ground that a probationer does not have a vested right of confirmation on the expiry of his probationary period nor it can be construed as deemed confirmation since no specific order had been passed by the petitioner-company confirming the services of Respondent No. 1 in the management of the petitioner-company, hence he had no corresponding right to claim automatic confirmation. Learned counsel for the petitioner further contended that since the conduct to Respondent No. 1 was not found satisfactory, therefore, the management had every right to terminate his services. In support of his contention, learned counsel for the petitioner placed reliance on WLR (Raj.) 1997 Part-I January to April, page 75 : Murlidhar v. District and Sessions Judge, Alwar ; 1971 (2) SLR 679 : D.T.T.C.M. Pillai v. The Indian Institute of Technology, Guindy, Madras ; RLW 1977 259 : Raptakos, Brett and Co. Ltd. v. B.D. Harsha.
In the matter of Murlidhar v. District and Sessions Judge, Alwar (supra), this Court had occasion to deal with an identical case where the petitioner who was a temporary employee in District & Sessions Judgeship of Alwar District and who was appointed as a daily wager initially for a period of 3 months and, thereafter, his services were extended from time to time and finally not extended beyond September 30, 1993, therefore his services were terminated. The said employee challenged his termination on the grounds inter-alia that the impugned-order of termination did not contain any reason for alleged termination since no opportunity for explaining his case was given to him and no enquiry officer was appointed nor any Departmental Enquiry was conducted in pursuance of show cause notice served on him and hence, in absence of the enquiry officer and the enquiry report, the alleged termination of the petitioner was illegal, malafide and he questioned the legality of the impugned-order before this Court. After giving detailed hearing to the learned counsel for the parties and relying on the Division Bench judgment of the Bench at Jaipur in the matter of Sangita Pathak v. High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Special Appeal No. 404/1991 decided on April 5, 1995, which has been relied upon and followed in the matter of Murlidhar v. District & Sessions Judge, Alwar (supra), it was held that it was not open to the said earning employee to challenge termination since the very appointment of the petitioner was temporary in nature. The appointment being temporary in nature and on probation and hence it was always open to the competent authority to take into consideration the entire service record including the conduct of the said employee which was duly considered by this Court and was not found satisfactory on prima-facie view of the matter and hence it was not open to the said employee to challenge the legality of her termination from services of the High Court as PBX Operator. It was further held by this Court that the impugned-order of termination does not suffer either from malice in fact or malice in law and was neither arbitrary nor unconstitutional and hence it does not require any interference by this Court. In my view, the ratio of the aforesaid decision of this Court as well as of the Apex Court in the matter of Dr. T. CM. Pillai v. IIT Madras are fully attracted to this case. A Probationer whose appointment is temporary in nature and whose services are not found satisfactory during the probationary period, there is no embargo on the Department/Establishment to dispense with the services of such an employee if on over all view of the matter his performance has not been found satisfactory. In my view, there are many factors which have to be taken into consideration before confirming an employee who is on probation. A probationer doesn''t have an automatic right of confirmation since his conduct is under constant watch of his immediate superiors and appointment on probation does not (sic.) entail automatic or vested right of confirmation and such an employee always stands to the risk of losing his services in the event of a single act of misconduct of misdemeanor and hence the legality of the impugned-order of termination cannot be made a subject-matter of challenge on the ground that it is violative of Section 28-A of the Act of 1958 as referred to above or for any other ground as so contended by the learned counsel for the petitioner.
Learned counsel for Respondent No. 1 has also placed reliance upon the decisions of this Court in the matter of Panchayat Samiti Balesar v. Viram Singh and 1992 (2) Anr. WLR (Raj.) 210 and in the matter of Raj Ratan Dadhich v. Kota Open University and Ors. WLR (Raj.) 1992 (2) 828 as well as the judgment of the Apex Court in the matter of D.K. Yadav Vs. J.M.A. Industries Ltd., In my view the ratio of the aforesaid decisions are not attracted to this case for the reason that a private employer is entitled to the same safeguards against an employee just as an employer in a public sector undertaking or of an autonomous body strictly under the control and supervision of the Central or State Government. On the contrary the case of a permanent employee stands on a different footing who is entitled to certain safeguards which are permissible by virtue of a legislation against an employer, likewise, the employer is also entitled to corresponding safeguards as against an employee. The principles of natural justice, equity and fair play would be attracted only in those cases provided, the employee is able to set-up a good case calling for interference of the Court on merits and not otherwise. The question with regard to the relief of reinstatement with back wages in the sphere of administrative law would be available only in those exceptional cases where an employee is able to establish arbitrariness, malice or violation of any rules or Standing Orders on the part of the employer and this defence is not open to an employee to urge as a matter of principle to be applied in each and every case.
As a result of above discussion, I am of the view that the learned Authority has very erroneously passed the impugned-order dated January 15, 1986 directing reinstatement of Respondent No. 1 in the services of the petitioner-company and the said Authority constituted under the Act of 1958, has grossly overlooked not only the provisions of the Act but has also not taken into consideration that the appointment of the said Respondent No. 1 was only of a status of a probationer and since his services were not found satisfactory by the petitioner- company, the same were not extended beyond the probationary period of six months as envisaged under the rules, and consequently stood terminated by the petitioner company vide the impugned order dated July 16, 1984. Hence, no vested right to claim continuity in services of the petitioner-company or to claim right of automatic confirmation has arisen in favour of the said respondent.
Consequently, the writ petition is allowed. The impugned-order dated January 15, 1986 passed by the Authority constituted under the Rajasthan Shops & Commercial Establishments Act, 1958 in case S.A. No. 26/1984 is quashed and set-aside being arbitrary, illegal and contrary to the rules and other relevant provisions of the Act as referred to above.
There will be no order as to costs.