Mahinder Singh v. M/S. India Airlines Ltd. - (High Court of Delhi) (05 Sep 2016)

An express order of confirmation is imperative to give the employee a substantive right to post

MANU/DE/2388/2016

Service

Appellant was initially appointed as a driver on temporary basis. By letter dated 29th June, 1987 Appellant was given regular appointment on post of driver. He was to remain on probation for a period of one year initially with further stipulation that such probation period could be extended or alternatively his services may be terminated if performance was not found satisfactory. While the Appellant was on probation, his services were terminated in terms of Clause 4 of the appointment letter vide termination letter. Against termination of his services, Appellant raised an industrial dispute which was referred to Industrial Tribunal which held that there was violation of Section 25-F of Industrial Disputes Act. Hence, management was directed to reinstate Appellant with continuity of services and full back wages. Said award was challenged by management by filing writ Petition which was allowed and order of industrial tribunal was set aside.

Termination of service of a probationer in terms of stipulation contained in contract of employment does not tantamount to “retrenchment” within meaning of Section 2(oo) of Act since it is covered by clause (bb) of Section 2(oo) of the Act. Thus, Section 25-F of the Act does not get attracted in such cases.

An express order of confirmation is imperative to give the employee a substantive right to post and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation, it is difficult to hold that he should be deemed to have been confirmed.

An order of confirmation is required to be passed. The Division Bench has clearly flawed by associating the words `if confirmed' with the entitlement of the age of superannuation without appreciating that the use of the said words as a fundamental qualifier negatives deemed confirmation.”

In instant case also, Appellant was not conferred with status of confirmed employee. From Clause 4 of letter of appointment, it cannot be inferred that after expiry of period of probation for a period of one year, Petitioner got status of a confirmed employee. Since, he was still on probation, and in terms of Clause 4 of Appointment Letter, his services have been terminated in view of his „unsatisfactory performance‟ same does not tantamount to „retrenchment‟ within meaning of Section 2(oo) of Act.

Relevant : Escorts Limited vs. Presiding Officer & Anr., (1997) 11 SCC 521, M. Venugopal vs. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. and Anr., (1994) 2 SCC 323, Kalyani Sharp India Ltd. vs. Labour Court No.1 Gwalior & Anr., (2002) 9 SCC 655

Tags : PROBATION TERMINATION