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PETITIONER: M/S. OSWAL PRESSURE DIE CASTING INDUSTRY, FARIDABAD

       Vs.

RESPONDENT: PRESIDING OFFICER & ANR.

DATE OF JUDGMENT:       20/02/1998

BENCH: G.T. NANAVATI, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:               THE 20TH DAY OF FEBRUARY, 1998. Present:              Hon’ble Mr. Justice G.T. Nanavati              Hon’ble Mr. Justice Syed Shah Mohammed Quadri Major Swarup, Ad. for the appellant H.S. Parihar, Adv. for the Respondent.                       J U D G M E N T      The following Judgment of the Court was delivered: NANAVATI, J.      Leave granted.      The only  point that  arises for  consideration in this appeal is  whether services  of the  respondent, who  can be said to  have been  appointed on  probation, could  not have been terminated  without holding  an inquiry. The High Court held that  it was necessary to hold an inquiry before coming to the  conclusion that he was not suitable or fit for being continued in  service  and  as  no  such  inquiry  was  held termination of his services was bad.      The respondent  was appointed as a helper on probation. The appointment letter dated 14.3.1992 stated thus.      "You are  appointed for a period of      4  months   on  probation.  If  you      continue  in   the  service,   this      period will  automatically increase      for  4  months.  This  period  will      further increase  for 3  months  if      the Management does not give you in      writing   a    letter    of    your      confirmation and during this period      or at the end, your services can be      terminated  without  assigning  any      reason or giving any notice."      On 13.2.1993  his services  were terminated by an order which reads as under:      "You were appointed on probation in      the service  on 14.3.1992  and  you      are  not   found  fit  to  confirm.      Therefore,   your    services   are      terminated from today."      The termination  order was challenged by the respondent

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before the Labour Court. Agreeing with the contention of the appellant the  Labour Court  held that  "there is no dispute regarding  the   proposition  of  law  that  termination  of probationer of  his service  by the  employer  after  making over-all assessment  was legal  and justified".  But it held that the  impugned order  was  not  an  order  of  discharge simplicitor as  it was  stated in the order that the work of the respondent was not found satisfactory and, therefore, it was necessary to hold a domestic inquiry before passing that order. It therefore, held that the termination order was bad and ordered reinstatement with full back wages.      The appellant  challenged that  order before  the  High Court. It  was contended  before the  High Court that as the respondent was  appointed on  probation it was not necessary for it to hold an inquiry before terminating his services as he was  not found  fit for  being continued  in service. The High Court  also proceeded  on the basis that the respondent was appointed  on probation.  But it  held that his services could not  have been terminated unless his work was found to be unsatisfactory.  if further held that in order to sustain the order  it was  necessary for  the  appellant  to  adduce evidence to  show that  the work  of the  respondent was not satisfactory. As such evidence was not led before the Labour Court or  before the  High Court  it held that the action of the Management was arbitrary and not sustainable in law. The writ petition was therefore , dismissed.      From the  letter of  appointment it is quite clear that the respondent  was appointed  on probation.  The High Court was also  inclined to  take that view and for that reason it did not  uphold that  part of  the award of the labour Court whereby it  was held  that Section  25-F of  the  Industrial Disputes Act  applies to  the facts  of the  case. The  High Court did  not agree  with the  finding of  the Labour Court that the  order of termination was not an order of discharge simplicitor as  it was  stated in it that "you are not found fit to  confirm" and,  therefore, it was necessary to hold a department inquiry.  It however  held that  it was necessary for  the   appellant  to   produce  material  to  show  that respondent’s   performance was  not satisfactory  and as  no such material was produced the order of termination was bad. We find, as disclosed by the award of the Labour Court, that the appellant  had examined two witnesses, Satish Dudeja and Om Prakash  to prove  that his work was not satisfactory. It was, therefore,  not correct to say that no evidence was led by the  appellant to  prove that  the work of the respondent was not  satisfactory. Both the witnesses had clearly stated that he  was found  negligent in his work and because of his negligence he  had met  with  an  accident  in  the  factory premises. It  was not  the case  of the  respondent that the action of  the employer  was malafide.  The Labour Court had also not  held that  the satisfaction  of the management was vitiated by  malafides. It  had struck  down  the  order  of termination  on  the  ground  that  it  was  stigmatic  and, therefore, it  could not  have been passed without holding a domestic inquiry. The High Court rightly did not accept that finding. What  the High  Court failed to appreciate was 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 malafide it was not proper  for the  High Court  to interfere and substitute its satisfaction  with the satisfaction of the employer. The High Court  was also  wrong in  holding  that  in  order  to support its  satisfaction it was necessary for the appellant to produce  some reports  or communication or other evidence

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to show  that performance  of the  respondent was  below the expected norms.  We find that the whole approach of the High Court was  wrong and, therefore, the order passed by it will have to  be set aside. We, therefore, allow this appeal, set aside the  judgment and  order passed  by the High Court and also the  award passed by the Labour Court and hold that the impugned  termination   order  was  validly  passed  by  the appellant.