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CONTENTS

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Sentence arbitral du Travail

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Award of the Labour Court .. 324

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Notifications du Gouvernement .. 338

Government Notifications

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Annonces

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Announcements

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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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Publiée par Autorité

Published by Authority

Registered with the Registrar

of Newspapers for India

under No. 10410

Registered No. PY/44/2021-23

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18 {

No.

Poudouchéry

Mardi

Avril

2023 (28 Chaitra 1945)

No.

Puducherry

Tuesday

18th

April

2023

324

LA GAZETTE DE L’ETAT

[18 April 2023

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 18/AIL/Lab./T/2023,

Puducherry, dated 16th February 2023)

NOTIFICATION

Whereas, an Award in I.D (L) No. 09/2018, dated

20-12-2022 of the Industrial Tribunal-cum-Labour

Court, Puducherry, in respect of Dispute between the

Tmt. G. Rathika, wife of S. Vengadessaperumal, Puducherry,

against the management of M/s. Pondicherry Institute

of Medical Sciences (PIMS), Ganapathichettikulam,

Puducherry over non-employment has been received.

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947), read with

the notification issued in Labour Department’s G.O. Ms.

No. 20/9/Lab./L, dated 23-05-1991, it is hereby directed

by the Secretary to Government (Labour) that the said

Award shall be published in the Official Gazette,

Puducherry.

(By order)

P. RAGINI,

Under Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present :Tmt. V. Sofana Devi, M.L.

Presiding Officer.

Tuesday, the 20th day of December, 2022.

I.D. (L) No. 09/2018

C.N.R. No. PYPY06-000110-2018

Rathika,

W/o. Vengadessaperumal,

No. 1, Kuppam South Street,

Ganapathichettikulam,

Puducherry.

. . Petitioner

Vs.

The Personal Manager,

M/s. Pndicherry Institute of Medical

Sciences (PIMS),

Ganapathichettikulam,

Village No. 20, Kalapet,

Puducherry.

. . Respondent

This industrial dispute coming on 06-12-2022 before

me for final hearing in the presence of Thiruvalargal

G. Krishnan and R. Rajavelu, Counsel for Petitioner,

Thiruvalargal L. Sathish, S. Ulaganathan, T. Pravin,

S. Velmurugan, V. Veeraragavan and E. Karthick, Counsel

for Respondent and after hearing the both sides and

perusing the case records, this Court delivered the

following:

A W A R D

This Industrial Dispute arises out of the reference

made by the Government of Puducherry vide G.O. Rt.

No. 20/AIL/Lab./T/2018, dated 13-02-2018 of the Labour

Department, Puducherry to resolve the following dispute

between the Petitioner and the Respondent, viz.

(a) Whether the dispute raised by the Petitioner

Tmt. G. Rathika, wife of S. Vengadessaperumal,

residing

No. 1,

Kuppam

South

Street,

Ganapathichettikulam, Puducherry, against the

Management of M/s. Pondicherry Institute of

Medical Sciences (PIMS), Ganapathichettikulam,

Puducherry, over non-employment is justified or not?

If justified, what relief the Petitioner is entitled to?

(b) To compute the relief if any, awarded in terms

of money if, it can be so computed?

2. Brief facts of the case of the Petitioner averred in

the claim petition:

The Petitioner, a weaker party amongst the two

contracting parties, was appointed as Ward Secretary

in Department of Pediatrics (OPD) in the Respondent

Institution vide Appointment Order, dated 21-01-2013

for a period of two years with entitlement for grant of

probationary status and subsequently for confirmation

as provided under the Appointment Order. The post

for which the Petitioner was appointed is of permanent

nature and the said post is still in existence and

appointment on contract basis instead of appointing

on ad hoc and regular basis is illegal and is carried

on with an attempt to defeat her rights under the law.

The Respondent Management as adopted the policy

of hire and fire which is deprecated by the Hon’ble

Supreme Court in a number of judgments and it

amounts to exploiting the service of unemployed

youth.

(ii) Clause 3 of the Appointment Order provides for

monitoring of Petitioner’s performance regularly and

there was no adverse remarks in the petitioner’s

service records and she had discharged her duties

without any blemish and became entitled to

continuance in service and for confirmation/

regularization, but, the Respondent Management by

Order, dated 19-01-2015 discontinued Petitioner’s

service w.e.f. from 20-01-2015 on the ground of

non-satisfactory performance of service. The service

325

18 April 2023]

LA GAZETTE DE L’ETAT

records of the Petitioner reveals that the Respondent

Institution was fully satisfied about her work and

conduct and in spite of such satisfactory performance

the Respondent has chosen to terminate her services

on account of active participation of Petitioner’s

husband in lawful association activities which irked

the Respondent. Further, the Respondent has also

pressurized the Petitioner to advise her husband to

disassociate himself from the association activities

unpleasant to the Management which she didn’t heed.

(iii) The termination of the Petitioner’s services was

not bona fide, but, was a colourable exercise of the

power reserved to the Management under the

Appointment order. It is a well established proposition

in Industrial law that even if the Management has

power under the contract of employment or under the

Service Rules to terminate the services of an employee

that power can be exercised only for the purpose for

which it was conferred and cannot be exercised to

victimize the employee and bona fides in the exercise

of the power is absolutely essential, even if, the power

is unfettered by the terms of the contract and the form

of the order in such a case is not conclusive and the

Tribunal can go behind the order to find the reasons

which held to the order, and then consider for itself

whether the termination was a colourable exercise of

the power.

(iv) The order of termination was admittedly not

made on non-renewal of contract but based on the

alleged non-satisfactory performance of the Petitioner

without hearing her and therefore the said order

having been passed in violation of principles of

natural justice is unsustainable. The clause 6 of the

appointment order states that the Petitioner will

suo moto not entitled for continuation of employment

after the two years contract period and only in case

of requirement her case for probation will be

considered. The post held by the Petitioner is

permanent in nature and in spite of requirement she

was not considered for probation.

(v) The Respondent after passing the impugned

order, dated 19-01-2015 has shown the Petitioner as

an employee on the role in the application submitted

to the Pondicherry University for extension of

provisional affiliation for the UG & PG courses for the

academic year 2015-2016. The clause 10 of the

Appointment Order states that the Petitioner will be

governed by the Institute’s Service Rules relating to

attendance, leave, conduct and other conditions for

employment by which the terms and conditions in the

Appointment Order have been superseded by the

Service Rules of the Respondent Institution and

therefore, the appointment of the Petitioner on

contract in a permanent post and subsequent

termination are in gross violation of the Service Rules.

(vi) The Order, dated 19-01-2015 is also bad in law

being arbitrary, mala fide, unjust, improper, unlawful

and against principles of natural justice and settled

principles of law and in violation of the terms of

Appointment Order and Service Rules of the

Respondent Institution. The Petitioner prayed to set

aside the order, dated 19-01-2015 and to reinstate the

Petitioner in the Respondent Institution with full back

wages, continuity of service and other consequential

benefits. Hence the petition.

3. The brief averments of the counter filed by the

respondents are as follows:

Respondent Institution is a Multi-Speciality

Hospital and Trauma Care Centre, providing plethora

of Medical facilities and treatments to people in and

around Puducherry region. It also runs a reputed

Medical College and Nursing College. Respondent has

qualified and efficient Doctors, Nurses, Staffs,

Administrators, Faculty Members, Latest equipments,

Medical Gadgets, Best machineries, well furnished

laboratories and all the other required facilities to

facilitate best possible treatment to patients and best

education to students. Respondent has assumed

strategic importance for people of Pondicherry in

providing quality medical care in complicated fields

of medicine.

(ii) The Petitioner was appointed by Respondent

as Ward Secretary vide letter of Appointment, dated

21-01-2013 for a period of two years. But, it is

absolutely false to claim that.

(i) The Petitioner is a weaker party amongst the

two contracting parties.

(ii) The post for which Petitioner was appointed

is of permanent nature and the said post is still in

existence and appointment on contract basis

instead of appointing an ad hoc and regular basis

is illegal and is carried on with an attempt to defeat

Petitioner’s rights under the law.

(iii) The Respondent has adopted the policy of

hire and fire.

(iv) There were no adverse remarks in

Petitioner’s service records and she had discharged

her duties without any blemish and became entitled

to continuance in service and for confirmation/

regularisation.

326

LA GAZETTE DE L’ETAT

[18 April 2023

(v) Service records of Petitioner reveals that

Respondent institution was fully satisfied about her

work and conduct and in spite of such satisfactory

performance, Respondent has chosen to terminate

her service on account of active participation of

Petitioner’s husband in lawful association activities

which irked the Respondent.

(vi) Respondent has also pressurized Petitioner

to advise her husband to disassociate himself from

association activities unpleasant to management,

which she didn’t heed.

(vii) Petitioner was victimized and her

termination was not bona fide, but, was a

colourable exercise of the power reserved to the

Management under the appointment Order.

(viii) The Order of termination was admittedly

not made on non-renewal of contract, but, based

on the alleged non-satisfactory performance of the

Petitioner without hearing her and therefore, the

said Order having been passed in violation of

principles of natural justice is unsustainable.

(ix) The post held by the Petitioner is permanent

in nature and in spite of requirement she was not

considered for probation.

(x) Respondent after passing the impugned

Order, dated 19-01-2015 showed the Petitioner as

an employee on the role in the application

submitted to the Pondicherry University for

extension of provisional affiliation for the UG & PG

courses for the Academic Year 2015-2016.

(xi) The terms and conditions in the

Appointment Order have been superseded by the

Service Rules of the Respondent Institution and

therefore, the appointment of the Petitioner on

contract in a permanent post and subsequent

termination are in gross violation of the Service

Rules.

(xii) The Order, dated 19-01-2015 is also bad in

law being arbitrary, mala fide, unjust, improper,

unlawful and against principles of natural justice

and settled principles of law and in violation of the

terms of Appointment Order and Service Rules of

the Respondent Institution.

(iii) The Petitioner was admittedly engaged as Ward

Secretary. The role of an Office Secretary need not be

overemphasized as it is a common knowledge that

Secretaries must have multi-tasking abilities and must

be able to perform various clerical and non-clerical

works associated with the Chair with astuteness and

deftness. Secretaries are required to be proficient in

communication and must have interpersonal skills. He

or she must have knowledge of computers and its

applications, must have cognitive skills. Thus,

Secretary’s work is multi-dimensional and more so in

a hospital of Respondent’s magnitude where the

Secretaries are required to be affable and accommodative

to patients and their attendants. They act as a

bridging gap between the doctors, the administrative

departments of the institution, the patients, their

attenders and to other outsiders, who come in contact

with the Department through such Secretaries. Hence,

appointment of Secretaries in an institution is very

crucial and such appointment can be done only after

the candidate is throughly appraised. Respondent was

and is statutorily entitled to engage Secretaries on

probation or on fixed term contract basis to assess

their skill levels and appraise their performance during

the period of contract or probation and based on their

performance, take a considered decision regarding

continuance of their service. Therefore, though the

post of Office Secretary (in this case Ward Secretary)

is not necessarily peripheral or temporary in nature,

their engagement on contract basis for limited period

is legally and morally justified and such appointment

cannot be challenged by claiming that such jobs are

perennial in nature.

(iv) The Industrial Disputes Act too permits

Management to employ workers on fixed term basis

and there is absolutely no mandate that only jobs of

peripheral nature or temporary nature are reserved for

fixed term contracts. Hence, the thrust of the Petitioner

that her engagement as fixed term employee for a

period of two years because the job is perennial is

illegal is wholly unfounded and baseless.

(v) The Petitioner’s offer letter makes abundantly

clear in no uncertain terms that she was employed

only for a fixed term for 2 years. Clause No. 6 of the

said Appointment Order reads “You (Petitioner) will

suo moto not be entitled for continuation of

employment after the two years contract period and

only in case of requirement your case for probation

will be considered”.

7. Clause No. 3 of Petitioner’s appointment order

also mentions that “Your (Petitioner) conduct and

performance are required to be excellent ordinarily.

We (Respondent) suggest that you co-operate with

our monitoring of your performance regularly and

after a period of six months you will be evaluated

and in case of any lapses in your performance the

institutional rules will apply for your assessment

and discontinuation of our service”.

327

18 April 2023]

LA GAZETTE DE L’ETAT

(vi) Thus, the appointment order of Petitioner made

it abundantly clear that she has no right to seek

continuation of employment on completion of 2 years

of contract, irrespective of her performance or

appraisal and the discretion of continuing with

contract beyond 2 years was solely at the discretion

of Respondent. Petitioner had every option to refuse

to take up employment for fixed term of 2 years. But,

she accepted the offer of employment with full

knowledge, consent and with her eyes, ears and mind

fully open. Having accepted the terms and conditions

of her appointment and having worked for 2 years as

per terms of said appointment, she has no legal or

moral right to challenge the said contract on any

ground of unfairness or illegality.

(vii) The contention that Petitioner was a weaker

party amongst the two contracting parties is incredible

to say the least. Petitioner was well educated as she

claimed to have completed her Bachelor’s Degree in

Computer Science and MBA in Human Resource

Management. She had also claimed to have completed

few Diploma Courses and had past experience of

working in another company. It, therefore, does not

suit her to play the card of being weaker party

amongst the two contracting parties. She was under

compulsion or pressure to accept such fixed term

employment.

(viii) The Petitioner’s performance was assessed

during the period of contract and she was periodically

advised by the Respondent to improve her performance.

But, her performance was found to be below par by

the immediate superiors of Petitioner, giving her only

average score of 51.21% on 1st appraisal and 47.57%.

In fact, the superior of Petitioner has clearly observed

that Petitioner’s Secretarial skills were found to be

wanting, though she was found to be co-operative.

Thus, though there were no allegations of misconduct

against Petitioner, her performance as Secretary was

not appreciable. Hence, the Respondent was well

within its right to decide against renewing the contract

of employment on expiry of her fixed term contract,

dated 20-01-2015.

(ix) The Negative appraisal of Petitioner cannot be

termed as allegations of misconduct or stigmatic. Once

no allegations of misconduct is levelled against the

Petitioner, there is no scope for her to seek a hearing

before the decision on non-renewal of her Fixed Term

Contract is taken. Thus, the contention that Respondent

was fully satisfied about the work of Petitioner in spite

of such satisfactory performance she was terminated

on account of her husband’s Union activities is

untrue.

(x) Petitioner, by claiming that she is victimized for

her husband’s Trade Union activities is merely

attempting to twist the issue and give another

dimension. It is not out of context to mention that

Petitioner has not disclosed the name of the Union to

which her husband is member, his designation in the

said Union. She has not been able to pinpoint any

specific instances when Respondent and Petitioner’s

husband were at logger heads. There is no nexus

between non-renewal of employment contract of the

Petitioner and Union activities of her husband. In fact,

Petitioner’s husband M. Vengadesaperoumal joined

Respondent's Institution on 02-04-2022 and continues

to be employed as on date with all perks and benefits.

There are as many as 10 Unions in Respondent’s

Institution and each Union has at least a dozen officer

bearers who are active trade Union activists. It is

impish for Petitioner to claim that she has been

handpicked by Respondent to victimize her for her

husband’s trade Union activities, without there bing

any further substantiation. It is gain said that

allegation of manner. Petitioner is required to plead and

prove specific instance that makes her believe that she

was victimized and place strong and unimpeachable

evidence to prove the same. Thus, the claim of

victimization and colourable exercise of power by

Respondent is baseless.

(xi) The claim of Petitioner that after issuing a letter

of non-renewal of contract, dated 19-01-2015,

Respondent showed petitioner as an on-roll employee

in the application submitted by it to Pondicherry

University for extension of provisional affiliation for

Under Graduate and Postg Praduate courses for

Academic Year 2015 and 2016. In fact Petitioner lodged

multiple complaints to various authorities such as, The

Vice Chancellor of Pondicherry University, The

Inspector General of Police, The Senior Superintendent

of Police (Law and Order), Superintendent of Police

(North), Superintendent of Police (CID) and Kalapet

University, calling for multiple action against

Respondent. The Pondicherry University had also

sought for an explanation from Respondent by

forwarding complaint of Petitioner, dated 23-10-2015.

Respondent gave a befitting reply to Pondicherry

University on 09-11-2015 explaining in clear terms that

it submitted application to Pondicherry University on

06-01-2015 and the contract of employment with

Petitioner expired on 20-01-2015. Therefore, as on the

date of application submitted to the University on

06-01-2015, Petitioner was very much in employment

with Respondent and hence, there was no false

information given to the University. The University

was fully satisfied with the response of Respondent

and closed the complaint of the Petitioner.

328

LA GAZETTE DE L’ETAT

[18 April 2023

(xii) Respondent reiterates that it was legally and

morally right in offering fixed term contract of

employment to Petitioner which was accepted by her

without any demur and her services were discontinued

and not terminated on completion of the fixed term

contract. It was neither stigmatic termination nor

retrenchment as is being projected by the Petitioner.

(xiii) There is absolutely no industrial dispute worth

adjudication between Petitioner and Respondent as

there was only cessation of employer-employee

relationship between the Petitioner and Respondent

as on 21-01-2015 when contract of employment, dated

21-01-2013 with Petitioner expired by efflux of time.

Hence prayed for dismissal of the claim petition.

4. Point for determination:

Whether the Petitioner is entitled for an order of

reinstatement and other attendant charges, perks and

allowances as claimed in the claim petition?

5. On Point:

Petitioner herself examined as PW1 and Ex.Pl to P10

were marked. Ex.Rl is marked during cross examination

of PW1. On the Respondent side Mr. Madhusudhanan,

Senior Manager (Personnel & Administration) of the

Respondent Institution is examined as RW1. Ex.R2 to

R4 were marked.

6. On the point:

Industrial Dispute raised by the Petitioner herein

against the Respondent Management challenging an

order, dated 19-01-2015 (Ex.P3) whereby, her services

have been terminated by discontinuance of her

Contract (Ex.P1) on the ground of unsatisfactory

performance upto the level required during probation

period from the post of Secretary in the Respondent

Hospital. Thus, the Reference has been made by the

Government of Puducherry over her non-employment.

7. According to the Petitioner, she was appointed as

Ward Secretary in Department of Pediatrics (OPD) in the

Respondent Institution vide Appointment Order, dated

21-01-2013 for a period of two years with probationary

status and subsequently with the entitlement for

confirmation as provided under the Appointment Order

(Ex.Pl). The said post is of permanent nature and still

in-existence and appointment of such posts on contract

basis instead of appointed on ad hoc and regular basis

is not legal. There was no adverse remarks in the

Petitioner’s service records. But, the Respondent

Management discontinued Petitioner’s service by an

Order, dated 19-01-2015 (Ex.P3) w.e.f. 20-01-2015 on the

ground of non-satisfactory performance of her service.

8. Further, it is contended that though as per clause 6

of the Appointment Order (Ex.Pl), the Petitioner is not

entitled for continuation of employment after the two

years contract period suo moto but, in case of

requirement her service for probation will be consider.

The post held by the Petitioner is permanent in nature

and in spite of requirement she was not considered for

probation.

9. It is also added on the Petitioner side after passing

the Termination Order (Ex.P3), dated 19-01-2015, this

Petitioner was shown by the Respondent Institution as

an employee on the roll in the application submitted to

the Pondicherry University for extension of Provisional

affiliation for the UG and PG Courses for the Academic

Year 2015-2016. Further, as per clause 10 of the

Appointment Order Ex.Pl, the Petitioner will be governed

by the Institute’s service rules relating to attendance,

leave, conduct and other conditions of employment by

which the terms and conditions in the Appointment Order

have been superseded by the service rules of the

Respondent Institution. Therefore, the Appointment of

the Petitioner on contract in a Permanent post and

subsequent termination are in gross violation of service

rules.

10. The serious and strong contentions raised by the

Petitioner are that the nature of the job was perennial,

the Petitioner’s appointment was against a permanent

post, fixed term employment was a colourable exercise

of power to escape the beneficial labour legislation, the

contractual appointment for short term was employed by

the Management with malafied intentions, an unfair

labour practice in employing the Petitioner on a fixed term

contract, Management by adopting the methodology of

fixed term employment as a conductor mechanism to

frustrate the Petitioner’s rights so on and so forth. Also

claimed that there was necessity of complying with

section 25-F of ID Act since the Petitioner has completed

240 days of employment.

11. On the other hand, it is urged on the side of the

Respondent Institution that Appointment of Secretaries

in Institution like hospitals is very crucial and such

appointment can be done only after the candidate is

throughly appraised. Respondent was and is statutorily

entitled to engage Secretaries on probation or on fixed

term contract basis to assess their skill levels and

appraise their performance during the contract period or

probation period and based on their performance, take a

considered decision regarding convenience of their

service. Therefore, though the post of Office Secretary

is not necessarily peripheral or temporary in nature, their

engagement on contract basis for limited period is legally

justified and such appointment cannot be challenged by

claiming the such jobs are perennial in nature.

329

18 April 2023]

LA GAZETTE DE L’ETAT

12. It is also strongly objected on the side of the

Respondent that when the statute under section 2(oo)

(bb) of ID Act specifically permits such contracts without

laying any conditions, Petitioner cannot rewrite the

statute and introduce non-existent terms and conditions

in such statute governing contract for specific term

employment. No necessity for compliance of section 25 F

of ID Act as the non-extension of the contract of

employment after expiry of the tenure of contract does

not amount to retrenchment as per section 2(oo) (bb) of

ID Act. The employment on contract for fixed period is

very much legal and the Petitioner admitted specifically

in unconditional terms that she was employed only for a

fixed term of two years and her contract was not renewed

after the expiry of the period of contract. In this

Connection, following case-laws referred and relied upon

on Respondent side;

1. CDJ 2002 S 402

Para 12: Therefore, that if the case of termination

of the workman comes within any of the exceptions

enumerated in the section then the said termination

will not to be a case of ‘retrenchment’ within the

meaning section 2(oo).

Para 13: If such contract of employment contained

a stipulation for termination of service and the services

of the workman are terminated in accordance with that

stipulation, such termination, according to clause (bb)

would also not amount to ‘retrenchment’.

Para l4: The position was reiterated in Harmohinder

Singh v. Kharga Canteen, Ambala Cantt, (2001) 5 SCC

540.

Para 15: In such a case the question of complying

with the conditions precedent to retrenchment of

workman provided in section 25(f) of the Act will not

arise.

Since, there exists a contract of service with the terms

and conditions as noted earlier, the position is inescapable

that the case of disengagement/termination of the

workman concerned did not amount to retrenchment.

2. CDJ 2016 HC 717

Para 11. The question as to whether Chapter VA of

the Act will apply or not would be dependent on the

issue as to whether an order of retrenchment comes

within the purview of section 2 (oo) (bb) of the Act

or not. If the termination of service in view of the

exception contained in clauses (bb) of section 2 (oo)

of the Act is not a ‘retrenchment’, the question of

applicability of Chapter V-A thereof would not arise.

Para 28. It is not the law that on completion of 240

days of continuous service in a year, the concerned

employee becomes entitled to for regularisation of his

services and/or permanent status. The concept of 240

days in a year was introduced in the industrial law for

a definite purpose. Under the Industrial Disputes Act,

the concept of 240 days was introduced so as to

fasten a statutory liabilities upon the employer to pay

compensation to be computed in the manner specified

in Section 25-F of the Industrial Disputes Act, 1947

before he is retrenched from services and not for any

purpose. In the event a violation of the said provision

takes place, termination of services of the employee

may be found to be illegal, but only on that account,

his services cannot be directed to be regularized.

Direction to reinstate the workman would mean that

he gets back the same status.

Para 19. It could be seen from the aforesaid

observations that once the services of the employee

engaged on a contractual basis for a fixed period come

to an end on account of completion of the period of

contract, the same would come within the purview of

section 2 (oo)(bb) of the ID act. It has been further

held that once the period of contract was fixed and

the same was done keeping in view the nature of job,

it cannot be said that the act of the employer in

terminating the services of the appellant was actuated

by any malice. It has been further held that merely on

completion of 240 days of continuous service in a year,

the employee concerned does not become entitled for

regularisation of his services and/or permanent status.

Their Lordships have held that under the Industrial

Disputes Act, the concept of 240 days was introduced

so as to fasten statutory liabilities upon the employer

to pay compensation to be computed in the manner

specified in section 25F of the ID Act, before he is

retrenched from services and not for any other

purpose. It has been further held that in the extent of

violation of the said provision takes place, termination

of services of the employee may be found to be illegal,

but, only on that account, his services cannot be

directed to be regularised.

Para 21. It could thus be seen that while construing

the provisions of section 2(oo) (bb) read with Chapter

V-A of the ID Act, Their Lordships have consistently

held that if the contract of employment is for a fixed

period and the appointment is terminable at the end

of the period of contract, then in view of provisions

of section 2(oo) (bb) of the ID Act are applicable, the

provisions of Chapter V-A of the ID Act would not be

applicable. It has been further held that what is

important is substance of the contract and not the

form.

330

LA GAZETTE DE L’ETAT

[18 April 2023

13. I heard the learned Counsel for the parties at a

considerable length and given my thoughtful consideration

to the arguments advanced by them.

14. The said Ex.Pl offer of appointment letter, dated

21-01-2013 clearly envisaged the probation period of two

years on contract and clause 6 of Ex.P1 further provides

for the condition that petitioner is suo moto not be

entitled for continuation of employment after the two

year contract period and only in case of requirement the

case for probation will be considered. It is further in

clause 5 mentioned that the services of the Petitioner

were liable to be terminated during the probationary

period by giving one month's notice or one month’s pay

in lieu of notice by either side.

15. After traversing the entire gamut of facts and

hearing the learned Counsels for the parties, in my view,

at the heart of the dispute is the applicability of above

stated clause 6 of the offer letter of appointment, dated

21-01-2013. Reading the contents of the aforesaid

clauses in Ex.P1 make it palpably clear that it prescribed

a probation period of two years and confirmation will be

subject to Petitioner’s proficiency in the mentioned fields

and not suo moto entitled for continuance of employment

beyond two years and only in case of requirement the

case for probation will be considered.

16. The prime contention of the Petitioner that the

clause 6 itself was invalid and not applicable. The

contention is premised on the ground that the post for

which the Petitioner was appointed in of permanent

nature and the said post is still in existence and an

appointment on contract basis instead of appointing on

ad hoc and regular basis is illegal. The service

recruitment rules and service rules of the Respondent

Institution not prescribed probation and thus it is invalid.

17. There can be no manner of doubt that the

employer is entitled to engage the services of a person

on probation. During the period of probation, the

suitability of the recruit/appointee has to be seen. If, his

or her services are not satisfactory which means that he

is not suitable for the job than the employer has a right

to terminate the services as a reason thereof. Therefore,

normally services of an employee on probation would be

terminated, when he/she is found not to be suitable for

the job for which he was engaged, without assigning any

reason. The probationer is on test and if the services are

found not to be satisfactory, the employer has, in terms

of the letter of appointment, the right to terminate the

services.

18. The Hon’ble Supreme Court of India in A.P. Public

Service Commission vs. B. Sarat Chandra, (1990) 2 SCC

669 and K. Manjusree vs. State of A.P., (2008) 3 SCC 512

laid the proposition that rules of the game cannot be

changed in the midst of the game.

19. The Respondent Institution has offered appointment

to the Petitioner enumerating the service conditions in

terms of Pay Scale, tenure of service, place of posting,

etc., including clauses 3, 5, 6 and 8 specifying the

condition with respect to probationary period. Petitioner

was required to acknowledge the receipt of the letter and

acceptance of all the terms mentioned in the letter. Thus,

it cannot be said that the terms specified in the letter

were imposed on the Petitioner as a weaker party amongst

the two contracting parties and being an offer, it was

open to the Petitioner to accept or not to accept

appointment on such terms. Petitioner admittedly

accepted the offer, on the terms and conditions specified

in the offer letter, without any demur, protest or

reservation. In fact as pointed out by Respondent, in

Ex.P1. at page 2 the last two lines run thus, “please

signify your acceptance of the above terms and

conditions by signing on duplicate copy of this letter and

returning it to the Personal Manager”.

20. The Petitioner suo moto not entitled for continuation

of employment after two years period and only in case

of requirement petitioner case of probation will be

considered was in the terms of clause 6 of the offer of

appointment letter Ex.P1, dated 21-03-2013, which was

accepted by the Petitioner without any protest. The letter

was never challenged in any Court of law prior to the

order of termination impugned herein and only because

his services have been terminated, Petitioner is laying a

challenge to its validity, as an after-thought.

21. In this view of the matter, it is not open to the

Petitioner to even contend that Clauses of the offer of

appointment letter would not govern the terms and

conditions of his service or the appointment of the

Petitioner on contract in a permanent post and

subsequent termination are in gross violation of the

Service Rules.

22. Even otherwise, this contention cannot be

sustained. The Recruitment Rules are admittedly silent

on the probation period. As far as the offer of

appointment Ex.P1 is concerned, while it did mention that

period of probation would be two years but, it was

conspicuously silent on the issue of extension of the

period and did not provide that two years would be the

maximum period of probation and that the probationer

would stand automatically confirmed on expiry of the

probation period of two years. Thus, the stipulation in

the appointment letter is neither contrary to nor in

conflict with the Recruitment Rules and at the cost of

repetition, once the appointment letter was accepted by

the Petitioner without a demur and not challenged until

her services were terminated, this Court is unable to

uphold this contention of the Petitioner.

331

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23. Next point urges on the side of the Petitioner is

that there was necessity of complying with section 25-F

of ID Act since the Petitioner has completed 240 days of

employment. For which it is necessary to reproduce the

relevant provisions hereunder for better understanding;

“Section 2 (oo) of Industrial Disputes Act -

‘retrenchment’ means the termination by the employer

of the service of a workman for any reason whatsoever,

otherwise than as a punishment inflicted by way of

disciplinary action, but, does not include.

(bb) Termination of the service of the workman as

a result of the non-renewal of the contract of

employment between the employer and the workman

concerned on its expiry or of such contract being

terminated under a stipulation in that behalf contained

therein”.

24. As per section 2(oo)(bb) of the Industrial Disputes

Act provides for an exception that the termination of the

service of the workman will not be a retrenchment as a

result of the non-renewal of the contract of employment

between the employer and the workman concerned on its

expiry or of such contract being terminated under a

stipulation in that behalf contained therein, the said

section squarely applicable to this situation. In this case

in hand the Termination of the service of the workman

as a result of the Non-renewal of the contract of

employment between the Respondent herein and the

Petitioner on its expiry would come within the purview

of Section 2 (oo)(bb) of the ID Act. The learned Counsel

for the Respondent also has referred during his

arguments the following case law reported in CDJ 1992

SC 118.

Constitution of India, Article 16 - Regularisation of

services - Ad hoc appointment on a consolidated

compensation on contract basis for a limited period-

By expiry of contractual period, the right to remain in

post comes to an end- Services of respondent being

continued from time to time on ‘ad hoc’ basis for more

than a year, does not entitle her to regularisation.

25. Based on Ex.Pl Contract on Probation, the

petitioner was engaged in the Respondent Hospital in

the post of Secretary. On expiry of the contract on

probation Ex.Pl, the Petitioner was relieved from her

services from the Respondent Institution. She clearly

admitted the same during her cross examination as PW1

before this Court as, PW1 deposed during cross-

examination that “Ex.P1-[√Ω ®™m √>s ÔVÈD

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2 gı|Ô^ √Ë ÿƒFº>[ ®[≈V_ g\VD”.

26. In Purshotam Lal Dhingra vs. Union of India AIR

1958 SC 36, it was held by the Hon'ble Apex Court as

follows:

“The period of probation may in some cases be for

a fixed period, e.g., for six months or for one year or it

may be expressed simply as ‘on probation’ without

any specification of any period. Such an employment

on probation, under the ordinary law of master and

servant, comes to an end if during or at the end of

the probation the servant so appointed on trial is

found unsuitable and his service is terminated by a

notice. An appointment to officiate in a permanent post

is usually made when the incumbent substantively

holding that post is on leave or when the permanent

post is vacant and no substantive appointment has

yet been made to that post. Such an officiating

appointment comes to an end on the return of the

incumbent substantively holding the post from leave

in the former case or on a substantive appointment

being made to that permanent post in the latter case

or on the service of a notice of termination as agreed

upon or as may be reasonable under the ordinary law.

It is, therefore, quite clear that appointment to a

permanent post in Government service, either on

probation, or on an officiating basis, is, from the very

nature of such employment, itself of a transitory

character and, in the absence of any special contract

or specific rule regulating the conditions of the

service, the implied term of such appointment, under

the ordinary law of master and servant, is that it is

terminable at any time. In short, in the case of an

appointment to a permanent post in a Government

service on probation or on an officiating basis, the

servant so appointed does not acquire any

substantive right to the post and consequently cannot

complain, any more than a private servant employed

on probation or on an officiating basis can do, if his

service is terminated at any time”.

27. Thus, it is amply clear that during the period of

probation, an employee may be removed without holding

any disciplinary proceeding. The period of probation is,

truly speaking, a period of one’s trial. During this period

332

LA GAZETTE DE L’ETAT

[18 April 2023

the employee does not acquire any substantive right to

the post and consequently cannot complain anymore

than an employed on probation.

28. The next issue that arises for determination before

this Court is whether the services of an employee on

probation can be terminated without holding any

disciplinary proceeding and whether the termination of

services of an employee on probation on the ground of

non-satisfaction would ipso facto amount to termination

by way of punishment or whether the same can be held

to be termination ‘simpliciter’, with no stigma attached

to it.

29. It is the case of the Petitioner that though the

Respondent Institution was fully satisfied about her work

and conduct, it has chosen to terminate her services on

account of active participation of Petitioner’s husband

in lawful association activities.

30. Further it is contended on the side of the Petitioner

that the Order of Termination was admittedly not made

on non-renewal of contract but based on the alleged non-

satisfactory performance of the Petitioner without hearing

her and therefore, the said order passed in violation of

Principles of Natural Justice and thus, not sustainable.

31. Per contra, the learned counsel for the respondent,

contended that services of the petitioner were terminated

on expiry of the period of her probation on account of

her unsatisfactory performance and such a termination

cannot be held to be stigmatic. By way of reply, the

learned counsel for the Respondent argued that as per

clause 3 of the Appointment Order (Ex.P1), Petitioner’s

performance was assessed during the period of contract

and she was periodically advised by the Respondent to

include her performance. But, her performance was found

to be below par by the immediate superiors of the

Petitioner, giving her only average score of 51.21% of first

appraisal and 47.57%. The Superior of the Petitioner has

clearly observed Petitioner’s Secretarial skills were found

to be wanting, though she was found to be Co-operative.

There was no allegations of misconduct against the

Petitioner. But, her performance of Secretary was not

appreciable hence, the Respondent has every right to

decide against renewing the contract on expiry of her

fixed term contract, dated 20-01-2015.

32. Further, it is argued that negative appraisal of

Petitioner cannot be termed as allegations of misconduct

or stigmatic. Therefore, there is no scope for her to seek

hearing before the decision on non-renewal of her fixed

term contract is taken.

33. Further, it is contended that the claim of

victimization and colourable excise of power by the

Respondent Institution against the Petitioner is baseless.

Petitioner’s husband joined Respondent's Institution on

02-04-2002 and continues to be employed as on date with

all perks and benefits. There are 10 Unions in the

Respondent’s Institution and allegation that Respondent

Institution chosen her to victimize for her husband’s

Trade Union activities, is not acceptable without any

further substantial pleadings and proofs.

34. Further, he added with regard to the application

submitted by the Respondent Institution before the

Pondicherry University that, on 06-01-2015, the Petitioner

was very much in employment with Respondent. She was

terminated only on expiry of the contract on 20-01-2015.

Hence there was no false information given to the

University. Having accepted the fixed term contract of

employment when it was offered by the Respondent

Institution, the Petitioner has no right to challenge her

termination subsequently. It was neither stigmatic

termination nor retrenchment.

35. The learned Counsel for Respondent at the outset,

argues that the present petition cannot be entertained

as it is a settled law that an assessment of an employee

based on his performance during probation cannot be

reviewed in judicial proceedings and only procedural

violations or decision-making process is subject to

judicial scrutiny. An independent Evaluation of the

respondent Management has assessed the performance

of the Petitioner during probation on various parameters

and found her unsuitable for continuation of contract nor

for confirmation and this assessment cannot be

questioned and/or reassessed in Industrial Dispute,

which is what the Petitioner is calling upon this Court to

do.

36. On this point, Respondent side has relied upon

the some case laws mentioned hereunder in support of

his contentions:

(i) CDJ 2020 SC 381

Probationers have no indefeasible right to continue

in employment until confirmed, and they can be

relieved by the competent authority, if found unsuitable.

Its only in a very limited category of cases that such

probationers can seek protection under the principles

of natural justice, say when they are ‘removed’ in a

manner which prejudices their future prospects in

alternate fields or casts aspersions on their character

or violates their constitutional rights. In such cases

of ‘stigmatic’ removal only that a reasonable

opportunity of hearing is sine qua non.

In Parshotam Lal Dhingra vs. Union of India (AIR

1958 SC 36, a Constitution Bench opined that in short,

if, the termination of services is founded on the right

333

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LA GAZETTE DE L’ETAT

flowing from contract or the service rules, then, prima

facie, the termination is not a punishment and carried

with it no evil consequences and so Article 311 is not

attracted.

(ii) CDJ 2010 SC 058

PARA 16. It is no longer res Integra that even if

an order of termination refers to unsatisfactory

service of the person concerned, the same cannot be

said to be stigmatic. In this connection, we make a

reference to the decision of the Supreme Court in

Abhijit Gupta vs. S.N.B. National Centre, Basic

Sciences (supra), wherein, also a similar letter was

issued to the concerned employee intimating him that

his performance was unsatisfactory and therefore, he

is not suitable for confirmation.

PARA 17. In Mathew P. Thomas vs. Kerala State

Civil Supply Corporation Limited (supra) also the

concerned employee was kept on probation for a

period of two years. During the course of his

employment, he was also informed that despite being

told to improve his performance time and again there

is no such improvement. His shortfalls were brought

to his notice and consequently by order, dated

16-01-1997 his services were terminated, wherein, also

a reference was made to his unsatisfactory service. In

the said decision, the Supreme Court has held that on

the basis of long line of decisions it appears that

whether an order of termination is simpliciter or

punitive has ultimately to be decided having due

regard to the facts and circumstances of each case.

PARA 18. In Pavanendra Narayan Verma vs. Sanjay

Gandhi PGI of Medical Sciences, (2002) 1 SCC 520; this

Court had the occasion to determine as to whether the

impugned order therein was a letter of termination of

services simpliciter or stigmatic termination. After

considering various earlier decisions of this Court in

paragraph 21 of the aforesaid decision it was stated

by this Court thus:

PARA 21. One of the judicially evolved tests to

determine whether in substance an order of termination

is punitive is to see whether prior to the termination

there was (a) a full-scale formal enquiry (b) into

allegations involving moral turpitude or misconduct

which (c) culminate in a finding a guilty. If, all three

factors are present the termination has been held to

be punitive irrespective of the form of the termination

order. Conversely if, any one of the three factors is

missing, the termination has been upheld’.

(iii) CDJ 1998 SC 178

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, no correct to say that no evidence

as 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 mala fide. The Labour Court had also not held

that the satisfactory of the Management was vitiated

by mala fides. 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 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. 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 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 set aside.

37. I may reproduce the contents of the appointment

letter, dated 20-01-2013 for better appreciation of the

controversy, as under:

“With reference to your application and subsequent

discussion we had with you, we are pleased to offer

you the post of Secretary in Pondicherry Institute of

Medical Sciences for two years on contract on the

following terms and conditions”.

38. On the expiry of the contract of the said probation

period of two years, her services were terminated by an

order, dated 19-01-2015 passed by the respondents and

the relevant portion of the said letter, dated 19-01-2015

is reproduced hereby in verbatim: “On assessment of her

performance during the period of contract, it has been

found that her performance rating has not been

satisfactory up to the level required and hence, it has

been decided by the Management to discontinue her

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LA GAZETTE DE L’ETAT

[18 April 2023

contract of service on completion with effort from

20-01-2015 as per the terms and conditions of her

contract”.

39. In the said termination of Probationary order, the

respondents did not attribute any specific misconduct,

negligence, inefficiency or dereliction of duty, on the part

of the petitioner, before taking the said decision of

terminating his probation period. The only reason given

by the respondent in the termination order is that the

services of the petitioner have not been found to be

satisfactory by the Respondent Management.

40. As per the learned Counsel for the petitioner, the

termination of the petitioner was not termination

‘simpliciter’ but, was ‘stigmatic’ in nature. Order Ex.P3

discontinuance of the contract issued without hearing

her and therefore, the said order passed in violation of

principles of natural justice and thus, not sustainable.

41. Before going into this above point for discussion,

it is important for us to understand when and how, the

concept of probation was devised. In the matter of Ajit

Singh vs. State of Punjab (1983) 2 SCC 21, the Hon’ble

Supreme Court while explaining this position held that

“With the advent of security in public service when

termination or removal became more and more difficult

and order of termination or removal from service became

a subject-matter of judicial review, the concept of

probation came to acquire a certain connotation. If, a

servant could not be removed by way of punishment from

service unless he is given an opportunity to meet the

allegations if any, against him which necessitates his

removal from service, rules of natural justice postulate

an enquiry into the allegations and proof thereof this

developing master-servant relationship put the master on

guard. In order that an incompetent or inefficient servant

is not foisted upon him because, the charge of

incompetence or inefficiency is easy to make but, difficult

to prove, concept of probation was devised. To guard

against errors of human judgment in selecting suitable

personnel for service, the new recruit is put on test for a

period before he is absorbed in service or acquires a right

to the post. Period of probation gave a sort of locus

poenitentiae to the employer to observe the work, ability,

efficiency, sincerity and competence of the servant and

if, he is found not suitable for the post, the master

reserved a right to dispense with his service without

anything more during or at the end of the prescribed

period which is styled as period of probation. This

judgment has also been reiterated in the matter of State

Bank of India and Ors. vs. Palak Modi and Anr. etc., (2013)

3 SCC 607”.

42. Thus, it may well be seen that the concept of

probation has been devised only to give an opportunity

to the employer to observe the work and efficiency of

the employee for the job. In light of this, let us examine

the first issue i.e., whether an employee on probation

can be terminated without holding any disciplinary

proceeding. The position of law in this context has been

eloquently explained in the matter of Samsher Singh vs.

State of Punjab (1975) 1 SCR 814, wherein, the Hon’ble

Supreme Court held that, “before a probationer is

confirmed the authority concerned is under an obligation

to consider whether the work of the probationer is

satisfactory or whether he is suitable for the post. In the

absence of any Rules governing a probationer in this

respect, the authority may come to the conclusion that

on account of inadequacy for the job or for any

temperamental or other object not involving moral

turpitude, the probationer is unsuitable for the job and

hence, must be discharged. No punishment is involved,

in this. The authority may in some cases be of the view

that the conduct of the probationer may result in

dismissal or removal on an inquiry. But, in those cases

the authority may not hold an inquiry and may simply

discharge the probationer with a view to giving him a

chance to make good in other walks of life without a

stigma at the time of termination of probation”. Thus, it

is amply clear that during the period of probation, an

employee may be removed without holding any

disciplinary proceeding.

43. Coming to the second issue, whether the

termination of services of an employee on probation, on

the ground of non-satisfaction would ipso facto amount

to termination by way of punishment.

In Krishnadevaraya Education Trust vs. L.A.

Balakrishna (2001) 9 SCC 319, the Hon’ble Supreme

Court observed that, “There can be no manner of

doubt that the employer is entitled to engage the

services of a person on probation. During the period

of probation, the suitability of the recruit/appointee

has to be seen. If, his services are not satisfactory

which means that he is not suitable for the job, then

the employer has a right to terminate the services as

a reason thereof. If, the termination during

probationary period is without any reason, perhaps

such an order would be sought to be challenged on

the ground of being arbitrary. Therefore, naturally

services of an employee on probation would be

terminated, when he is found not to be suitable for

the job for which he was engaged, without assigning

any reason. If, the order on the face of it states that

his services are being terminated because his

performance is not satisfactory, the employer runs

the risk of the allegation being made that the order

itself casts a stigma. We do not say that such a

335

18 April 2023]

LA GAZETTE DE L’ETAT

contention will succeed. Normally, therefore, it is

preferred that the order itself does not mention the

reason why the services are being terminated. If,

such an order is challenged, the employer will have

to indicate the grounds on which the services of a

probationer were terminated. Mere fact that in

response to the challenge, the employer states that

the services were not satisfactory would not ipso

facto mean that the services of the probationer were

being terminated by way of punishment. The

probationer is on test and if, the services are found

not to be satisfactory, the employer has in terms of

the letter of appointment, the right to terminate the

services. In the instant case, the second order which

was passed terminating the services of the

respondent was innocuously worded. Even if, we

take into consideration, the first order which was

passed which mentioned that a Committee which had

been constituted came to the conclusion that the job

proficiency of the respondent was not up to the

mark, that would be a valid reason for terminating the

services of the respondent. That reason cannot be

cited and relied upon by contending that the

termination was by way of punishment”.

44. Similarly, in the decision of the Hon’ble Supreme

Court in the case of Abhijit Gupta v. S.N.B. National

Centre, Basic Sciences, (2006) 4 SCC 469, the Hon’ble

Supreme Court held as follows:

The period of probation therefore furnishes a

valuable opportunity to the master to closely observe

the work of the probationer and by the time the period

of probation expires to make up his mind whether to

retain the servant by absorbing him in regular service

or dispense with his service. Period of probation may

vary from post to post or master to master and it is

not obligatory on the master to prescribe a period of

probation, it is always open to the employer to employ

a person without putting him on probation. Power to

put the employee on probation for watching his

performance and the period during which the

performance is to be observed is the prerogative of

the employer. Further, the Hon’ble Supreme Court held

that the order of termination due to unsatisfactory

performance is a termination ‘simpliciter’ and not

‘punitive’ in nature.

45. Also, in Pavanendra Narayan Verma vs. Sanjay

Gandhi PGI of Medical Sciences (2002) 1 SCC 520, the

Hon’ble Apex Court held that, “ in order to amount to a

stigma, the order must be in a language which imputes

something over and above mere unsuitability for the

job”.

46. Again in Progressive Education Society vs. Rajendra

(2008) 3 SCC 310, the Hon’ble Apex Court upheld that,

“The law with regard to termination of the services of a

probationer is well established and it has been repeatedly

held that such a power lies with the appointing authority

which is at liberty to terminate the services of a

probationer if, it finds the performance of the probationer

to be unsatisfactory during the period of probation. The

assessment has to be made by the appointing authority

itself and the satisfaction is that of the appointing

authority as well. Unless a stigma is attached to the

termination or the probationer is called upon to show

cause for any shortcoming which may subsequently be

the cause for termination of the probationer’s service, the

management or the appointing authority is not required

to give any explanation or reason for terminating the

services except informing him that his services have been

found to be unsatisfactory”.

47. Thus, in the light of the aforesaid legal position,

it can be concluded that this issue is no more res integra

that an order of termination due to unsatisfactory

performance of the probationer, cannot be ipso facto

termed as ‘stigmatic’ or ‘punitive’ in nature. During the

probation period, an employee has to be extra careful and

diligent while discharging his assigned duties, so that

he can successfully complete his/her probation period

to get confirmation against the post he/she has been

selected for and he/she does not give any chance or

reason to his/her superiors to terminate his services. Any

kind of insufficiency, negligence, indiscipline or

misconduct can prove fatal to an employee on probation.

Before the probationer is confirmed, the authority

concerned is under an obligation to consider whether the

work of the probationer is satisfactory or whether he is

suitable for the post. If, during the period of probation,

the performance of a probationer is not found

satisfactory or suitable for a particular job, as per the

assessment of the employer, he may be terminated from

the service and such termination would be termed as

termination ‘simpliciter’ and cannot be held to be

‘punitive’ in nature.

48. The Hon’ble Supreme Court of India in Oswal

Pressure Die Casting Industry, Faridabad vs. Presiding

Officer and Anr. (1998) 3 SCC 225, while allowing an

appeal against the judgement of the High Court, against

an Award of the Labour Court, held that, “it was not open

to the High Court to sit in appeal over the assessment

made by employer of the performance of the employee.

It was further held that 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”.

336

LA GAZETTE DE L’ETAT

[18 April 2023

49. Adverting back to the facts of present case. In the

case in hand, two evaluation points have been mentioned

in the counter statement at paragraph 10, which reflect

that the Petitioner was neither diligent nor was performing

her duties satisfactorily. The same has been deposed by

the Management Witness as RW1 before this Court. On

careful perusal of the cross-examination made by the

petitioner Counsel on RW1, I could not able to find a

single question or even a suggestion made on behalf of

the petitioner that there were no such evaluation of

performance or the evaluation points mentioned in the

counter as 51.21% on 1st appraisal and 47.57% as not

correct.

50. Moreover, PW1 has admitted in her cross-

examination about the evaluation process on the

performance made by the Respondent Institution that,

“PW1

deposed

during

cross-examination

that

“ÿ√VmkVÔºk

®∫Ô^

WÆk™›]_

ºkÁÈ

ÿƒFm Internal appraisal report >BVÏ ÿƒFkVÏÔ^ ®[≈V_

g\VD. ÂV[ report ÿƒF•D HOD-•D ÷m ƒD\Õ>\V™

\V>›]uz ŒÚ xÁ≈ Appraisal ÿƒFkVÏÔ^ ®[≈V_

®™¬z ÿ>ˆBVm. Internal appraisal report ®[√m

confidential-È™ report ®[≈V_ g\VD”.

51. Rw1 deposed during cross-examination that

∂Õ>

√Ë¬ÔVÈD

÷Æ]l_

∂Õ>

ªaBˆ[

÷_ÈV>√‚ƒ›]_,

∂kÁ´

√ËloÚÕm

√‚ƒ›]_, ∂kÏÔ”¬z √Ë º�ÿÔVı| ÿ>V¶´

÷Æ]l_>V[,

∂kˆ[

Performance

\]©¨|

c^·m

®[≈V_

g\VD.

∂m>V[

Monitor

ÿƒFB©√|D

®[Æ

ÿƒV[º™[.

√Ë

]Ú©]

52. It amply demonstrates that the Respondent

Institution has a system of performance monitoring

periodically and on such monitoring process, the

Petitioner's secretarial skill were found to be

unsatisfactory. It is also mentioned in the counter that

Petitioner’s secretarial skills were found to be wanting,

though she was found to be co-operative. The same fact

has also been elucidated during cross-examinations of

PW1 and RW1, the Management side witness, which are

as follows;

PW1 deposed during cross-examination that

√ËloÕm

s|s¬Ôs_ÁÈ

®[≈V_

g\VD.

Ex.P2-s_

®[–Á¶B

√Ë

WÏkVÔ›]uz

®[≈V_ g\VD. º�√Ω Ex.P2-s_ ®[–Á¶B √Ë

WÏkVÔ›]uz

]Ú©]Ô´\VÔ

÷_ÁÈ

®[Æ

ÿƒV_o•^·m, ®[ *m zÁ≈BVÔºkV, ®[ *m

zu≈ﬂƒV‚¶VÔºkV

∂_Èm

∂k#´VÔºkV

®|›m¬ÿÔV^· xΩBVm ®[Æ ÿƒV[™V_ g\VD”.

RW1 deposed during the cross-examination that

ÿ>V¶´

∂–\]¬Ô

xΩBs_ÁÈ

®[Æ

ƒV‚E

√]Èπ¬˛≈VÏ”.

53. Hence, there was no allegations of misconduct

against the Petitioner, it is only her performance as

Secretary was not appreciable and had failed to improve

despite many periodical advise. The reasons disclosed

in the speaking order Ex.P3 were sufficient for the

respondent to have taken a decision to discontinue the

services of the Petitioner. If, the contentions raised by

the learned Counsel for the Petitioner are accepted, then

in every case of unsatisfactory performance or lack of

interest in the discharge of duties by a probationer,

setting up of an enquiry would be required, which will

defeat the very purpose and the concept of probation

as the period of probation furnishes a valuable

opportunity to the employer to closely observe and

monitor the work and efficiency of the probationer for

the job.

54. In the light of the legal position and factual matrix

discussed above, I do not find any merit in the

contentions raised by the learned Counsel for the

petitioner that without hearing the petitioner, the order

of termination Ex.P3 passed and there was a violation of

principles of natural justice. The services of an employee

on probation can be terminated without holding any

disciplinary proceeding when there is no allegation of

misconduct mentioned in the said termination order.

When there is no formal enquiry prior to the termination,

when there is no allegations attributed against the

petitioner involving moral turpitude or misconduct and

337

18 April 2023]

LA GAZETTE DE L’ETAT

which culminate in a finding a guilty. In the present case

admittedly, the termination of services of an employee

on probation was on the ground of non satisfaction,

which is not amount to termination by way of

punishment. The same can be held to be termination

‘simpliciter’, with no stigma attached to it. Therefore, the

point for determination is decided accordingly to the

effect that Petitioner is not entitled for any relief as

claimed in the claim petition.

55. In the result, the reference is decided as unjustified

and the industrial dispute is dismissed. No costs.

Dictated to the Stenographer, directly typed by

him, corrected and pronounced by me in open Court

on this the 20th day of December, 2022.

V. SOFANA DEVI,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW1

— 20-12-2021

Tmt. Rathika

List of petitioner’s exhibits:

Ex.Pl

— 21-01-2013

Photocopy of the Appointment

Order issued to the Petitioner.

Ex.P2

— 21-01-2013

Photocopy of the Order

issued by the Respondent

Institution.

Ex.P3

— 19-01-2015

Photocopy of the Order

issued by the Respondent

Institution to discontinue

Petitioner’s service.

Ex.P4

— 15-07-2015

Photocopy of the information

provided to the petitioner by

the

Affiliation

Wing,

Pondicherry University under

the RTI Act.

Ex.P5

— —

Photocopy of the Dispatch

Affiliation Wing, Pondicherry

University under the RTI

Act.

Ex.P6

— —

Photocopy of the Minutes

of the Inspection Committee

(Medical Colleges) issued

by the Affiliation Wing,

Pondicherry

University

under the RTI Act.

Ex.P7

— —

Photocopy

the

Non-Teaching Staff particulars

of the Respondent Institute

issued by the Affiliation

Wing, Pondicherry University

under the RTI Act.

Ex.P8

— 19-10-2015

Photocopy of the Complaint

sent by the Petitioner to the

Inspector-General of Police,

Puducherry.

Ex.P9

— 20-10-2015

P h o t o c o p y

o f

t h e

Acknowledgment made by

t h e

O f f i c e

o f

t h e

Inspector-General of Police,

Puducherry.

Ex.P10 — 23-10-2015

Photocopy of the Complaint

submitted by the Petitioner

to the Vice-Chancellor,

Pondicherry University.

List of respondent’s witness:

RW1

— 25-08-2022

R. Madhusudhanan, Senior

Manager

(Personal

and

Administration)

List of Respondents’s Exhibits:

Ex.R1

— —

Photocopy

the

Curriculum Vitae of the

Petitioner.

Ex.R2

— 29-10-2015

Photocopy of the letter

forwarded by Pondicherry

University, Affiliation Wing

College

Development

Council to Respondent.

Ex.R3

— 09-11-2015

Photocopy of the reply given

by the Respondent to the

Dean, College Development

Council.

Ex.R4

— 09-03-2017

Photocopy of the reply

given by the Respondent

Institution to Labour Officer

(Conciliation).

V. SOFANA DEVI,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.