JUDGMENT Rakesh Tiwari, J.
1. The petitioner- Chhata Sugar Company Limited is a subsidiary unit of the U.P. State Sugar Corporation Limited. It manufactures white crystal sugar by vaccum pan process. The petitioner has challenged the award dated 15.12.1997 passed by the Labour Court, Agra in Adjudication Case No. 29 of 1998.
2. By the impugned award, the labour court has held that termination of services of respondent No. 2 w.e.f. 26.3.1977 is illegal and has awarded reinstatement with full back wages from the date of the award.
3. The factual matrix, in brief are that respondent No. 2 was initially engaged as Driver, purely on temporary basis, w.e.f. 16.1.1975 pursuant to his application dated 16.1.1975 in leave vacancy of one Sukh Ram Singh on a consolidated salary of Rs. 250/- per month. He continued to work in the leave vacancy vide order dated 4.10.1976 and was thereafter appointed on probation for a period of one year. The letter of appointment is as under :-
" Order Shri Devi Lal is hereby appointed 'DRIVER' in this company on a probation of one year, at a consolidated salary of Rs. 250/- p.m. He will be governed by the Company's rules framed from time to time. He is required to join his duty within a week of the receipt of this order after submitting a certificate from either Tahsildar or S.D.M regarding his place of residence.
Sd/-
(K.P.Singh) Executive Director"
4. At the time of appointment, the factory of petitioner-company was already under construction which had started in the year 1974 and continued till February, 1978. The factory was commissioned during season 1977-78 and period of trial was 27.2.1978 to 27.5.1978. Commercial production commenced in May, 1979.
5. The services of the workman, according to the petitioner, were not satisfactory and he was rude to his superior authorities. Therefore, his services were dispensed with w.e.f. 26.3.1977. The order of termination is as under :-
^^vkns'k Jh gksjh yky dks bl dk;kZy; esa i= la- ,e-,[email protected],[email protected]@204&, fn- 4&10&76 }kjk MªkbZoj ds in ij fu;qDr fd;k x;k ijUrq izFke ijh{k.k o"kZ esa mUgsa MªkbZoj ds dk;Z esa vlQy o v;ksX; ik;k x;k gS A cj ckj Jh gksjhyky dks ekSf[kd o fyf[kr psrkouh nsus ds ckotwn Hkh mUgksaus vius dk;Z esa o vkpj.k esa lq/kkj ugha fd;k A mUgsa vius dk;Z ds izfr vR;Ur ykijokg o vf/kdkfj;ksa dks vHknz <ax ls izfrmRrj nsrs gq, ik;k x;k gS A vr% Jh gksjhyky dks dk;kZy; dh lsokvks ls o MªkbZoj in ls fnukad 26-3-77 ls fu"dkf"kr fd;k tkrk gS A g- ¼enu xksiky ik.Ms½ vf/k'kk"kh funs'kd**
6. Aggrieved by his order of termination of services, the respondent No. 2 raised an industrial dispute which was referred to the Labour Court for adjudication and was registered as Adjudication Case No. 197 of 1979 and was later on again registered as Adjudication Case No. 29 of 1981.
7. The petitioner-compny raised a preliminary objection before the Labour Court that it was not an industry when the dispute was raised, primarily because the factory was still under construction and had not commenced production, as such, it could not be said to be existing or a running concern. The Labour Court rejected the objection of the petitioner by order dated 7.7.1980 holding that it was an industry. The order of the Labour Court was challenged by the petitioner in Civil Misc. Writ Petition No. 8561 of 1990 which was dismissed vide order dated 25.8.1983 holding that it was not a fit case for interference at that stage in exercise of writ jurisdiction. In the meantime, U.P. State Sugar Corporation Limited was declared a sick concern by Board of Industries and Financial Reconstruction vide order dated 4.9.1997.
8. The next contention of the counsel for the petitioner is that under the provisions of Section 22 of the Sick Industrial Companies (Special) Provisions Act, 1985, no coercive measure can be initiated against a sick company. In this regard, counsel for the petitioner has placed reliance on a decision in Shree Chamundi Mopeds Ltd. v. Shurch of South India Trust Association, Madras- A.I.R. 1992 SC-1439, wherein, in paragraph 12 of he Report, the apex court has held as under :-
"..... It could not be the intention of the Parliament in enacting the said provision to aggravate the financial difficulties of a sick industrial company while the said matters were pending before the Board of the Appellate Authority by enabling a sick industrial company to continue to incur further liabilities during this period. ..."
9. It is then contended that the engagement of respondent No. 2 was ceased during his period of probation on account of his unsatisfactory work, which is not stigmatic. It was urged that he had not acquired the status of a workman and had no lien on the post during the period of probation and that construction activity, during which the respondent-workman was engaged, could not be deemed to be an activity connected with sugar manufacturing It was lastly stated that provisions of Industrial Employment Standing Orders or Model Standing Orders under the Industrial Standing Orders Act, 1946 or the Certified Standing Orders in the above circumstances would not be applicable to him.
10. Counsel for the respondents submits that from a perusal of the appointment letter, it is evident that respondent No. 2 was appointed as driver in the COMPANY and NOT in the FACTORY or unit, hence it is immaterial that the factory was under construction or not. He further submits that it is also evident from the letter of appointment that the services of the workman were governed by the rules of the company, as such, the question of applicability of Standing Orders is not germane to the controversy involved in the petition.
11. The petitioner had not pleaded before the Labour Court that the company had been declared sick for taking any benefit of Section 22 of the Sick Industrial Companies (Special) Provision Act, 1985 hence such plea cannot be taken now, for the first time in the writ petition.
12. The workman was engaged in 1975 as a driver in the company and not in the factory hence contention of the petitioner that establishment was not in existence is misconceived. His services have been admittedly terminated in 1977 during the period of probation. A perusal of termination letter shows that termination of service was due to unsatisfactory performance of work/duty. It also refers to instances of being rude to officers. However, the termination of service was based only on unsatisfactory performance of duty and not on any misconduct. The order of termination was order simplicitor, hence neither any enquiry nor opportunity was required. I am strengthened in my view by judgment of Hon'ble Supreme Court in Mathew P. Thomas v. Kerala State Civil Supply Corporation Limited - A.I.R. 2003 S.C-1789 wherein also the employee was a probationer and his services had been terminated for unsatisfactory work and not on any misconduct referred to in the termination order. In H.F. Sangati v. Registrar General, High Court of Karnataka and Ors. 9(2001)3 SCC- 117 the apex court while considering the discharge of a probationary Munsif held that where the order of termination of a probationer does not cast any stigma on the employee nor is it punitive, there is no requirement to comply with the principles of natural justice, much less to hold any formal proceedings of enquiry before making the order. In Municipal Committee Sirsa v. Munshi Ram - A.I.R 2005 S.C.-762 it has been held that management would be justified in terminating the services of a probationer where work was not to the satisfaction of the employer; that such termination would be discharge simplicitor even though there was an incident of misconduct or incompetency prior to his discharge from service. It would not ipso-facto lead to the conclusion that order of termination was colourable and punitive order even when the order refer that misconduct and no charge sheet was issued nor enquiry was conducted. It was held that :-
"... In the background, the mere fact that there was a misconduct on the part of the probationer which was not enquired into ipso factor would not lead to the conclusion that the order of the termination is colourable and in fact is a punitive order. It may be a ground for the employer's assessment of the workman's efficiency and efficacy to retain him in service, unless, of course, the workman is able to satisfy that the management for reasons other than efficiency wanted to remove him from service by exercising its power of discharge."
13. The Labour Court has lost sight of the fact that respondent No. 2 was a probationer and not a workman. His probation had not matured into an appointment in the company as a workman. In Krishnadevaraya Education Trust and Anr. v. L.A. Balakrishna - 2001 AIR SCW -253 it was held that 'the probationer is a on test and if the services are found not to be satisfactory, the employers has in terms of the letter of appointment the right to terminate the services'.
14. For the reasons stated above, the writ petition is allowed. Impugned award dated 15.12.1997, Annexure 6 to the writ petition is quashed. No order as to costs.