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Judgment
M. Sathyanarayanan, J.—The appellants 1,3 to 29, 31 and 32 are the writ petitioners and the appellants 33 to 40 are the L.Rs. of deceased
second and 30th writ petitioners and challenging the dismissal W.P. No. 7026 of 1997 under which the award of the Labour Court dated
20.9.1996 came to be confirmed, had filed this writ appeal.
The facts as culled out from the award passed by the Labour Court and the writ petition are briefly stated as hereunder:
For the sake of convenience, array of parties as referred to in the writ petition is adopted in this writ appeal also.
The writ petitioners 1 to 6 and 7 to 30 were probationers and they raised Industrial Disputes by filing petitions u/s 2A(2) of the Industrial Disputes
Act, 1947 regarding their non-employment by the first respondent management viz., M.R.F. Limited, Ichiputhur, Vellore District.
The petitioners, in I.D. No. 982/93, 985/93, 986/93, 1025/93, 1026/93, 1048/93, 1111/93, 1201/93 and 1202/93 were taken as an
Apprentices and the remaining 30 petitioners were employed as Probationers in the respondent''s establishment. According to the writ petitioners,
they were all employees as casual labourers for several years on a meagre salary. At the relevant point of time, there were 500 permanent
workmen and about 100 Apprentice/Probationer workmen which constitute 20% of the total work force. The practice prevails in the first
respondent company is that initially the permanent workmen is taken as a casual labourer and he should serve in that capacity that is daily rated
weekly paid employee and after serving for about 1-1/2 years, he will be given an order of appointment describing him as apprentice though he
worked as the same as that of permanent workman. Initially, the period of apprenticeship is for 6 months and 1 year which is periodically extended
many times at the whims and fancies of the management. After that, the concerned workman will be given an appointment order describing him as
probationer. The period of probation also will be extended endlessly many times and the concerned person will not know as to when he will
become permanent. The probationer will perform the same work as that of the permanent workman though they are paid weekly wages as casuals
apprentice and probationer and the management is routinely doing that to exploit the workmen with lesser wages and to deny various benefits
conferred under the relevant statutes.
In August 1991, 70 workmen were placed under suspension which led to series of agitations against the victimising actions of the management
and after talks, the management agreed to the withdraw suspension order against 70 workmen except 2 and also agreed to drop disciplinary action
against all the workmen. However, the wages were not disbursed which again led to protest by workmen and the management declared lockout
on 21.9.1992. Further, the management dismissed all the permanent workmen and in the case of apprentices and probationers, they were
terminated from service under the guise of efflux of time as provided in the order of appointment. There were about 300 apprentices were
terminated between August 1991 and October 1992 and 70 workmen were placed under suspension. 39 Apprentices/Probationers had raised the
above said Industrial Disputes.
Before the Labour Court, it has been contended by the writ petitioners that the management resorts to contractual employment as a device to
circumvent Sub-clause (oo) of Section (2) of the Industrial Disputes Act and the termination of the services of the petitioners in those cases
amounts to retrenchment within the meaning of Section 2(oo) of the Act. Further, the respondent management have not complied with the
mandatory requirement of Section 25F of the Industrial Disputes Act by paying retrenchment compensation to those petitioners. The orders of
termination were purely because of victimisation as they were members of M.R.F Workers Union and the termination of apprentices/probationers
are opposed to the statute and therefore, they prayed for reinstatement with continuity of service and back-wages.
The respondent management filed its counter before the Labour Court contending that 9 petitioners were appointed as Apprentices and
remaining 30 were appointed as probationers and in their appointment orders, it has been specifically indicated that the apprenticeship/probation
was for a fixed time and the company was at liberty to determine the apprenticeship at any time without assigning any reasons or notice. The writ
petitioners having clearly understood the terms of the appointment order and after accepting the terms and conditions joined as
apprentices/probationers and their performances were evaluated and since it was found to be unsatisfactory, their Apprenticeship/Probation period
was extended to find out their suitability or other wise for employment subject to the same terms and conditions of their original orders of
appointment. On completion of apprenticeship period, 30 petitioners were taken on probation and in their appointment order also, it has been
clearly indicated that the management is at liberty to determine the probationary service at any time without assigning any reason or notice. The
services of 30 persons who were taken as probationers was also evaluated on their over all performance and was found to be unsatisfactory and
therefore, the management was left with no other option except to relieve them as and when their probationary service came to an end
automatically by efflux of time. The respondent management denied the averments that the petitioners have been victimised because of their
membership to M.R.F Workers Union. It is further contended by the respondent/management that Section 25F of the I.D Act, is not attracted to
the facts of the case and in view of the provisions of Section 2(oo) of the said Act, it is not the case of retrenchment. It is also contended by the
respondent/management that they are not under obligation to pay compensation since the petitioners were only apprentices/probationers,
management has got every right to terminate their services without any notice or retrenchment compensation in terms of their respective
appointment order. The period of apprenticeship/probation came to an automatic end by efflux of time. Therefore, the management prayed for
dismissal of the Industrial Disputes raised by the petitioners. The writ petitioners who are the petitioners in the said Industrial Disputes were filed
their additional counter.
In the trial of the Industrial Dispute Cases on behalf of the workmen one Mr. Sundar was examined as Workmen Witness 1 and on their side,
Exs. W.1 to W.22 were marked. On behalf of the management, one Mr. Sundar rajan was examined as M.W.1 and on their side, Exs.M.1 to
M.7 were marked.
The Labour Court formulated the following points for determination:
Whether the determination of 9 petitioners engaged by the respondent as Apprentices consequent to the completion of apprenticeship period is
justified?
Whether the 30 petitioners who were relieved at the end of the probationary period is justified?
To what relief the petitioners are entitled?
On consideration of oral and documentary evidences, the Labour Court held that the petitioners are only apprentices/probationers and their
services were not determined on a single day, but spread over for a period of two years which was also evidenced under Ex.M7/termination
order. The Labour Court further found that the termination of the petitioners will come u/s 2(oo)(bb) of the Industrial Disputes Act and there was
no victimisation involved. The Labour Court on an over all consideration of the materials available on record, found that the services of 9
apprentices ranged from 1 to 2-1/2 years and the services of 30 probationers ranged from 2-1/2 years to 5-1/2 years including the period of
apprenticeship and their service is continuous. Therefore, it has awarded compensation at the rate of Rs. 10,000/- each to those petitioners who
had put in service of 2 years and below and Rs. 15,000/- each to those who had put in service of 2 years and above and below 3 years and Rs.
20,000/- each to those who had put in service of 3 years and above and below four years and Rs. 25,000/- each to those who had put in service
more than four years in respect of the petitioner in I.D. No. 1026 of 1993 the Labour Court found that his non-employment is not justified and for
the length of service rendered by him it awarded compensation of Rs. 20,000/-.
Challenging the vires of the said orders, writ petitions were filed and this Court vide order dated 3.11.2003, had found that the assessment of
evidence on the part of the Labour Court was proper and therefore it is not open to the High Court to sit in appeal over the assessment made by
the employer of the performance of the employee. This Court for the said reasons, had dismissed the writ petition and confirmed the award passed
by the Labour Court and the present writ appeal is preferred against the same.
Heard Mr. V.Prakash, learned senior counsel appearing for the appellants and Mr. Sanjay Mohan, learned Counsel appearing for the first
respondent/management.
The learned senior counsel would submit that though the word ""Apprentice"" has not been defined in the Industrial Disputes Act 1947, it has
been defined in Section 2(aa) of the Apprentices Act 1961 and as per the definition, ""Apprentice"" means a person who is undergoing
apprenticeship training in pursuance of a contract of apprenticeship. The learned senior counsel has also invited the attention of this Court to the
definition ""workman"" as defined in Section 2(s) of the Industrial Disputes Act 1947 and a perusal of the said definition indicates that it makes no
difference between permanent employee and temporary employee or a casual employee. The learned senior counsel appearing for the appellant
further submitted that the first respondent management under the guise of labelling the appellants as apprentices and probationers, extracted the
work as that of the regular employee and employed them continuously and therefore, they have to be treated as workmen and consequently they
are entitled to the protection u/s 25N, 25F and 2(oo) of the Industrial Disputes Act. The learned senior counsel made a submission that the true
nature of the employment of the appellants to be looked into leaving out the nomenclature and if that exercise is done, the claim of the appellants
would definitely be upheld and they are entitled to reinstatement with consequent benefits and back-wages.
The learned senior counsel has also took the attentions of this Court to the findings of the Labour Court especially with regard to the evidence
of M.W.1 and Ex. M3 series and submitted that the Labour Court has failed to assess the documents which are part of Ex. M3 and also admission
on the part of M.W.1 that as per Ex.M2 settlement apprentices were paid wages as per piece rate and also incentive. However, it is not found in
the Ex.M2 settlement. M.W.1 deposed that there is no mention about the Appraisal report in Ex.M2 settlement and the appointment orders in
Ex.M4 and M5 and he also denied the suggestion that Ex.M3 has been created for the purpose of the case. M.W.1 further deposed even though
some of the petitioners were refused to receive the appointment orders, no action has been taken against them and some of them were also
appointed as probationers. M.W.1 further deposed that the target were also fixed for the appellants/writ petitioners and they were conferred with
benefit under E.S.I Act also. M.W.1 specifically denied the suggestion that the probationers and trainees were removable from service on account
of their misconduct.
It was also submitted by the learned senior counsel for the appellants that the appellants are workmen the first respondent and the management
failed to follow Section 25N of the Industrial Disputes Act and the order of termination simpliciter is unsustainable as the said orders were
stigmatic. Since the first respondent management failed to follow Section 25N of the Industrial Disputes Act, a legal fiction has been created in their
favour and therefore the appellants are deemed to be in service. It is further submitted by the learned senior counsel appearing for the appellants
that since M.W.1 is not the author of Ex.M3 series, the Labour Court has committed a grave error in placing reliance upon it. Moreover, Section
2(oo) of the Industrial Disputes Act is not applicable to the case of the appellants, in view of the fact that they are workmen. The learned senior
counsel further made a submission that even as per the provisions of the Tamil Nadu Conferment of Status to Workmen Act, the appellants are
entitled to succeed. Since the findings of the Labour Court are perverse and on mis-appreciation of evidence, the award is liable to be interfered
with and the order in dismissing the writ petition per se unsustainable and therefore, it warrants interference in this writ appeal according to the
learned senior counsel appearing for the appellants.
In support of his submissions, the learned senior counsel appearing for the appellants, has cited the following decisions:
Management Utkal Machinery Ltd. Vs. Workmen, Miss Shanti Patnaik,
1973 I LLJ 454 The Management of Brooke Bond India (Private) Ltd. v. Y.K.Gautam
Gujarat Bank Worker''s Union Vs. Jamnagar Dist. Co-operative Bank Ltd.,
Workmen Vs. Williamson Magor and Co. Ltd. and Another,
Dilip Hanumantrao Shirke and others Vs. Zilla Parishad Yavatmal and others,
Kalyani Sharp India Ltd. Vs. Labour Court No. 1, Gwalior and Another,
2003 (3) LLN 834 Trambak Rubber Industries, Ltd. v. Nashik Workers Union and Ors.
National Small Industries Corporation Ltd. Vs. The Presiding Officer, I Additional Labour Court and V. Lakshminarayanan,
In Management Utkal Machinery Ltd. Vs. Workmen, Miss Shanti Patnaik, , the discharge of probationer during the period of probation came
up for consideration and the Hon''ble Supreme Court of India held that if the validity of the termination is challenged in an Industrial adjudication, it
would be competent for the Industrial Tribunal to enquire whether the order of termination has been effected in the bona fide exercise conferred by
the contract and if such discharge has been ordered by the management in the bona fide exercise of its power, the Industrial Tribunal will not
interfere with it. But it is open to the Tribunal to consider whether the order of termination is mala fide and whether it amounts to victimisation of
employer or of unfair labour practice and such an event, it is open to the industrial Tribunal to interfere with the order of the management of every
relief to the employee.
In 1973 I LLJ 454 The Management of Brooke Bond India (Private) Ltd. v. Y.K. Gautam, the question of terminating the probationer without
opportunity to show cause against his discharge and the jurisdiction of the Tribunal to interfere with the order of termination came up for
consideration. In that case, the management challenged the order of the Tribunal wherein it set aside the order of termination and ordered
reinstatement of the workman. The management preferred appeal before the Hon''ble Supreme Court of India and the Hon''ble Supreme Court of
India, on taking into consideration the facts of the case and taking into consideration the Judgment reported in 1964 I L.L.J. 587 Assam Oil
Company Ltd., v. Its Workmen, held as follows:
There can, therefore, be no doubt that the Tribunal can, in a case where an industrial dispute is raised, go into the question of the validity of the
order of termination, even in the case of a probationer whose services have been dispensed with before the probation expired without assigning
any reasons. What has, therefore, to be seen is whether the action of the appellant is mala fide or whether it amounts to victimisation of the
employee or is an unfair labour practice, or is so capricious or unreasonable as would lead to the inference that it has been passed for ulterior
motive and is not in bona fide exercise of the power arising out of the contract. It is, therefore, necessary to examine the evidence.
In Gujarat Bank Worker''s Union Vs. Jamnagar Dist. Co-operative Bank Ltd., , wherein the Gujarat High Court held that the order of
termination of a probationer which is penal in nature, can be interfered by the Labour Court. The Gujarat High Court held that so far as the
Industrial jurisprudence is concerned, the Labour Court and Tribunal were bound, in view of settled legal position, to x-ray the order of termination
as a bounden duty and discover its true nature, attendant circumstances.
In Workmen Vs. Williamson Magor and Co. Ltd. and Another, , the question of victimisation came up for consideration and the Hon''ble
Supreme Court of India held that the interpretation of the word ""victimisation"" in the normal meaning of being the victim of unfair and arbitrary
action and held on the facts of the said case that there was victimisation of the suspended workman.
In Dilip Hanumantrao Shirke and others Vs. Zilla Parishad Yavatmal and others, ., the scope of Section 2(oo)(bb) and Section 25F of the
Industrial Disputes Act came up for consideration and it has been held that the letter of appointment providing fixed tenure cannot be the sole basis
to determine whether Sub-clause (bb) of Section 2(oo) is attracted. Nature of employment, nature of duties and type of job should be considered
and the amended Sub-clause (bb) to the Section 2(oo) of the Industrial Disputes Act would apply only to cases where the work ceases with
employment or post itself ceases to exist or such other analogous cases where contract employment is fair, proper and bona fide and the Labour
Court has got jurisdiction to examine each and every case and protect the workmen against exploiting employees.
In Kalyani Sharp India Ltd. Vs. Labour Court No. 1, Gwalior and Another, , the validity of the termination of service of a probationer without
notice u/s 25F of Industrial Disputes Act and also with raising of the new plea that the the termination of the services of workman did not attract
Section 25F of the ID Act came up for consideration. In the said case, the respondent herein who was working as a Trainee Service Technician
remain absent from work and the Labour Court as well as High Court held that the order of termination was in violation of Section 25F of the
Industrial Disputes Act and the management contended that the said provision was was not applicable to the present case in view of Section 2(oo)
(bb) of the said Act as it was not a case of retrenchment. The management raised an objection that the said plea raised only in the course of the
arguments which had been neither raised in the memo of oaths and nor before the Courts below. The Hon''ble Supreme Court has rejected the
said preliminary objection on the ground that the appellant''s argument emerges from the documents which the respondent had relied upon before
the Labour Court to show about his employment and the termination of service.
2003 3 LLN 834 (SC) Trambak Rubber Industries, Ltd. v. Nashik Workers Union and Ors., where the entire production activity was carried
out only by trainees having more than 1-1/2 years and in the absence of trainers, such trainees were workmen, the Hon''ble Supreme Court held
that summary termination of their services amounts to unfair labour practice intended to deny them the legitimate benefits.
National Small Industries Corporation Ltd. Vs. The Presiding Officer, I Additional Labour Court and V. Lakshminarayanan, , the meaning of
Apprentice and Apprenticeship training and his removal from service in violation of Section 25F of I.D. Act came up for consideration. The
management preferred appeal challenging the order of Labour Court, wherein the order of termination was set aside and he was ordered to be
reinstated and this Court taken note of the facts that the concerned workman was working as casual workman on full time basis and there can be
no estoppel against the person who accepted his designation as an Apprentice, as Industrial Law recognised that workers and employer did not
stand on an equal bargaining position. However, this judgment was challenged by way of an appeal before the Hon''ble Supreme Court of India in
the decision reported in National Small Industries Corpn. Ltd. Vs. V. Lakshminarayanan, , wherein it has been held that if the respondent therein
was accepted to be a ""workman"", given his contractual tenure, his case would come within Section 2(oo)(bb) of the Industrial Disputes Act.
By the said decision the judgment reported in National Small Industries Corporation Ltd. Vs. The Presiding Officer, I Additional Labour Court
and V. Lakshminarayanan, . was set aside.
The learned senior counsel appearing for the appellant based on the decisions would submit that though the nomenclature says that the
petitioners are apprentices/probationers, they were employed for long period of time and done the work of regular permanent workmen and since
they became the members of the Trade Union, they were victimised and under the guise of terms of appointment order, they were terminated,
which was in violation of Section 25F and Section 2(oo) of the Industrial Disputes Act and therefore the impugned orders passed by the Tribunal
as well as by this Court in Writ Petition are liable to be set aside and the appellants are to be reinstated with consequent service benefits and back-
wages.
Per contra, Mr. Sanjay Mohan, learned Counsel appearing for the first respondent management would contend that the arguments advanced
by the learned senior counsel appearing for the appellants are beyond the scope of points for determination framed by the Labour Court and no
issue has been framed relating to the fact that whether the appellants are really apprentices/probationers. Even in the grounds of writ appeal, no
whisper has been made about the fact whether the appellants are apprentices or probationers and even during the cross-examination of M.W.1
also no specific question has been made as to their status. But in the absence of any such plea either before the Labour Court or in the writ
petition, it is not open to the appellants to raise a new plea for the first time in this appeal is the contention of the learned Counsel appearing for the
first respondent management.
The learned Counsel appearing for the first respondent further submitted that the appellants raised Industrial Disputes invoking Section 2A(2)
of the ID Act and the Section in which the said provision is limited in scope. As regards the submissions made by the learned Counsel appearing
for the appellants that the appellants were victimised, it is submitted by the learned Counsel appearing for the first respondent management that not
on a single day the services of the appellants were terminated but it spread over between August 1991 and September 1992 and the Trade Union
continue to be in existence even today and therefore, the contention that since the appellants became members of the Trade Union they were
victimised, lacks substance and merit. The attention of this Court was also invited to the oral evidence of M.W.1 wherein he deposed that the
services of some probationers were also confirmed. Our attention was also drawn to the contents of Ex.M3 series wherein according to the
learned Counsel appearing for the first respondent that periodical performance of the appellants were appraised and entries made in a bona fide
manner based on the work performance of the concerned individual. It is submitted that the satisfaction of the management with regard to the work
performance cannot be substituted by the Labour Court.
It is further submitted by the learned Counsel appearing for the first respondent that since the findings of the Labour Court are based upon
careful analysis and appreciation of oral and documentary evidences, this Court in exercise of powers under Article 226 of the Constitution of
India/Clause 15 of the Letters Patent, cannot act as an appellate authority to sit over the findings. It is also the submission of the learned Counsel
appearing for the first respondent that the findings of the Labour Court cannot said to be perverse or based upon no evidence and therefore on that
ground also, no interference is warranted in the impugned orders.
In support of his submissions, the learned Counsel appearing for the first respondent has placed reliance upon the following decisions:
1965 I LLJ 77 (Mad) Premajam v. University of Kerala and Ors.
1998 (2) L.L.N.67 (SC) Oswal Pressure Die Casting Industry, Faridabad v. Presiding Officer and Anr.
State of Punjab and Others Vs. Sukhwinder Singh,
Bharat Heavy Electricals Ltd. Vs. Anil and Others,
Muir Mills Unit of N.T.C. (U.P) Ltd. Vs. Swayam Prakash Srivastava and Another,
Gangadhar Pillai Vs. Siemens Ltd.,
Deputy General Manager, Export Import Bank of India Vs. Presiding Officer, Industrial Tribunal and Another,
In 1965 I LLJ 77 (Mad) Premajam v. University of Kerala and Ors., confirmation of Probationer came up for consideration and it was held
that a probationer could not claim automatic confirmation on the expiry of the period of probation unless the appointment order provides that the
appointee shall stand confirmed in the absence of any order to the contrary. If he is allowed to continue in service after the expiry of the period of
probation, he would continue only as a probationer. It has been further held that when the order terminating the service of a probationer was not
by way of punishment but was by way of discharge for having been found in the opinion of the employer unsuitable for confirmation, it could not be
interfered with unless it is perverse or arbitrary.
In 1998 (2) L.L.N.67 (SC) Oswal Pressure Die Casting Industry, Faridabad v. Presiding Officer and Anr., the management preferred appeal
against the order of the High Court which confirmed the order of the Labour Court holding that the discharge of termination was not an order of
discharge simpliciter but stigmatic and domestic enquiry was, therefore necessary before passing an order that Section 25F of the Industrial
Disputes Act apply to the case. The Hon''ble Supreme Court held that it was not open to it to sit in appeal over the assessment made by the
employer of the performance of the employee. Once it was found that the assessment made by the employer was supported by some material and
was not mala fide it was not proper for the high Court to interfere and substitute its satisfaction with the satisfaction of the employer.
In State of Punjab and Others Vs. Sukhwinder Singh, , the discharge of a probationer Constable remaining continuously absent without holding
any formal departmental enquiry or preliminary fact-finding enquiry, came up for consideration and it has been held that the Probationer is generally
on test and has no right to the post and the probation period gives the employer time and opportunity to watch the probationer''s performance and
to dispense with his service for want of suitability for the post.
In Bharat Heavy Electricals Ltd. Vs. Anil and Others, ., Section 2-A, 2(l) of the Industrial Disputes Act 1947 came up for consideration and it
has been held as follows:
There is a difference between an individual dispute which is deemed to be an industrial dispute u/s 2A of the said 1947 Act on one hand and an
industrial dispute espoused by the union in terms of Section 2(l) of the said 1947 Act. An individual dispute which is deemed to be an industrial
dispute u/s 2-A concerns discharge, dismissal, retrenchment or termination whereas an industrial dispute u/s 2(l) covers a wider field. It includes
even the question of status. This aspect is very relevant for the purpose of deciding this case. In the case of Radhey Shyam and Another Vs. State
of Haryana and Another, it has been held after considering various judgments of the Supreme Court that, Section 2-A contemplates nothing more
than to declare an individual dispute to be an industrial dispute. It does not amend the definition of industrial dispute set out in Section 2(k) of the
Industrial Disputes Act, 1947 (which is similar to Section 2(l) of the said 1947 Act). Section 2-A does not cover every type of dispute between an
individual workman and his employer. Section 2-A enables the individual worker to raise an industrial dispute, notwithstanding, that no other
workmen or union is a party to the dispute. Section 2-A applies only to disputes relating to discharge, dismissal, retrenchment or termination of
service of an individual workman. It does not cover other kinds of disputes such as bonus, wages, leave facilities etc.
In Muir Mills Unit of N.T.C. (U.P) Ltd. Vs. Swayam Prakash Srivastava and Another, , the termination of service of probationer during
probation period for unsatisfactory work came up for consideration and it has been held that such termination is permissible, it cannot be said to be
stigmatic though the termination order may refer to probationer''s service as being ""not satisfactory"". The services of probationer can be terminated
at any time before confirmation, provided that such termination is not stigmatic and in case non-stigmatic termination, principles of audi alteram
partem are not applicable and in the said case probation agreement also provided for date of termination of service.
In Gangadhar Pillai Vs. Siemens Ltd., , the employment of badlis, casuals or temporary workmen and continuous for years in the said
categories came up for consideration as to whether it amounts to unfair labour practice. The Hon''ble Supreme Court of India in the said decision
has also considered Section 2(oo)(bb) of the Industrial Disputes Act and held that the burden of proof of unfair labour practice is on the workmen
and once the period of contract is fixed and the same is done keeping in view the nature of the job, it cannot be said that the act of the employer in
terminating service is actuated by any malice. The Hon''ble Supreme Court of India further held that in the decision determination of question as to
whether an unfair labour practice has been resorted to is essentially a question of fact and that the appointment in the said case was given on terms
that bring the case squarely within the ambit of Section 2(oo)(bb) of the I.D. Act, wherein the term of the contract was fixed on the basis of nature
of job.
In Deputy General Manager, Export Import Bank of India Vs. Presiding Officer, Industrial Tribunal and Another, , it has been held that the
termination of employee''s service during probation, stating it was not satisfactory, during the period of probation, cannot said to be stigmatic. It
has been further held in the said decision that whenever probationer challenges his termination the Court''s first task will be to apply the test of
stigma or the ''form'' test and if the order survives this examination the ''substances'' of the termination will have to be found out.
This Court has carefully considered the submissions made by the learned senior counsel appearing for the appellant and the learned Counsel
appearing for the first respondent and also perused the typed set of documents and also considered the decisions cited by them and keeping the
principles laid down in those decisions, this Court is of the view that the award of the Labour Court as confirmed by this Court in writ petition
warrants no interference. A perusal of Ex.M3 series would reveal that the performance of the appellants were periodically reviewed by the
different supervisors and they were given opportunities to improve their performance and the period spread over in some cases more than four
years. Simply because that the appellants were retained as apprentices or probationers for quite some time, does not mean that they have been
exploited by asking them to do work of the permanent workmen. The order of appointment has also indicated that the period of
apprenticeship/probation for a fixed time and the management was at liberty to determine the apprenticeship at any time without assigning any
reasons or notice. It is not the case of the appellants that they have been mislead to sign those agreements and the said contract was unilateral one.
The appellants having aware of the contents of the same, had signed it without any prejudice or murmur and also worked in that capacity and in
spite of ample opportunities given to them by the management to improve their performance, it was not up to the satisfaction of the management.
Therefore, the management in terms of the appointment order, had terminated their services. The plea of victimisation raised by the learned
Counsel appearing for the appellants in the opinion of this Court lacks substance and merit for the reason that even as on date, the Trade Union is
in existence and that the question of victimisation is being purely a question of fact, this Court cannot re-appreciate the evidence on that aspect.
Moreover the service of the appellants were not terminated on a single day but it spread over for a period of nearly four years as seen from Ex.M7
termination orders. This Court has also analysed Ex.M3 series and found that the entries with regard to the performance of work done by the
appellants and others were periodically reviewed by different supervisors and they recorded their findings with regard to their performance. This
Court cannot sit over the decision of the management with regard to the appraisal of the performance on the part of the management. Even then, in
view of the submissions made by the learned senior counsel appearing for the appellants we have perused Ex.M3 series and found that there are
no infirmity with regard to the appraisal of the performance done by the management.
As regards the contention of the learned Counsel appearing for the appellants that since the appellants are deemed to be workmen, their
services cannot be terminated without due enquiry, and in terms of Section 2(oo) of the Industrial Disputes Act, we are of the opinion that in the
case on hand Section 2(oo)(bb) of the Industrial Disputes Act come into operation. As per terms of the appointment order the term of the contract
was fixed on the basis of the nature of the job and therefore, it cannot be termed as mala fide so as to deprive the appellants the benefit of
termination status. This Court in the judgment reported in Deputy General Manager, Export Import Bank of India Vs. Presiding Officer, Industrial
Tribunal and Another, , has considered the question of termination of employees on the ground of non-satisfactory performance and after
consideration of the earlier judgments on the said point has upheld the claim of the management holding that the impugned order of termination is
not in any way stigmatic. The said decision in our considered opinion squarely applicable to the facts of the present case. That apart the services of
the appellants governed by contract of employment and the same is not opposed to the principles of public policy and not void. The decision relied
on by the learned senior counsel appearing for the appellants laid down the proposition of law for which, there cannot be any difference of opinion.
The facts of the present case would clearly exhibit that the orders of termination were passed purely based on the terms of agreement and after
assessing the performance of the appellants. The Labour Court has also considered the entire materials in proper perspective and upheld the
orders of termination and also awarded compensation. The learned Judge while dismissing the writ petition, has also independently applied his
mind to the relevant materials and found that the award passed by the Labour Court warrants no interference.
This Court has also considered the relevant materials including the oral testimony of M.W.1 and Ex.M3 series and independently satisfied with
the reasons stated by the Labour Court as well as by the learned Judge. It is to be remembered at this juncture that this Court in exercise of
powers under Article 226 of the Constitution of India and Clause 15 of Letters Patent cannot act as an appellate forum to re-appreciate the
evidence. However, in view of the persistent plea made by the learned senior counsel appearing for the appellant, we have also perused the
materials that were placed before the Labour Court and found that there is no illegality or error apparent on the face of the record in the award
passed by the Labour Court as confirmed by the learned Judge of this Court in the writ petition. We further hold that the termination of service
after expiry of probation period on review of work cannot be termed as illegal and it will not amount to retrenchment and therefore it squarely
comes within the ambit of Sub-clause (bb) of Section 2(oo) of the Industrial Disputes Act.
In the result, the writ appeal is dismissed confirming the order passed in W.P. No. 7026 of 1997 and the award passed in I.D. No. 982 of
1993 passed by the second respondent. But in the circumstances, there will be no order as to costs.