IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
WA NO. 466 OF 2023

AGAINST THE JUDGMENT IN WP(C) NO.18575 OF 2022 OF HIGH

COURT OF KERALA

APPELLANT/RESPONDENT NO.1 IN W.P.(C:

SRI.RANJITH CHANDRAN,
LEKSHMI HOUSE, P.O. KANNIKULANGARA, PUTHENCHIRA,
THRISSUR, PIN - 680682.

BY ADVS.
SMRUTHI SASIDHARAN
V.P.BRIJESH
ASWATHY AMBY

RESPONDENTS/PETITIONER & RESPONDENT NO.2 IN W.P.(C):

1 SENIOR GENERAL MANAGER-H.R.D (FIELD),

INTAS PHARMACEUTICALS LIMITED, CORPORATE OFFICE,
NEAR SOLA BRIDGE, SG HIGHWAY, THALTTEGE,
AHAMEDABAD-380054, GUJARATH.

2 THE INDUSTRIAL TRIBUNAL,

THRISSUR, PIN - 679576

BY ADVS.
M.GOPIKRISHNAN NAMBIAR
E.K.NANDAKUMAR (SR.)(N-23)
K.JOHN MATHAI(K/413/1984)
JOSON MANAVALAN(J-526)
KURYAN THOMAS(K/131/2003)
PAULOSE C. ABRAHAM(MAH/58/2006)
RAJA KANNAN(K/356/2008)

SRI M GOPIKRISHNAN NAMBIAR, FOR PARTY RESP.

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON

20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No. 466/2023 2

CR”
JUDGMENT

Raja Vijayaraghavan, J.

This appeal is preferred assailing the judgment dated 6.12.2022 in

W.P.(C) No. 18575/2022 passed by a learned Single Judge of this Court

whereby the award dated 3.2.2022 passed by the Industrial Tribunal in

I.D. No. 4/2019 ordering the reinstatement of the 1st respondent in

service with continuity of service and payment of backwages with effect

from the date of termination of service was set aside. The 1st

respondent, who is the workman, has come up in appeal.

2. Short facts that are required to be stated for deciding the

appeal are as under. For the sake of ease and clarity, the parties shall be

referred to as Workman and Management.

a) In the claim statement before the Tribunal, the worker

contended as under:

He was appointed by the Management as a Business Executive in

their establishment by order dated 31.3.2018 and he continued to work

as such till 31.5.2018. His service was blemishless and there was no case

that the workmen had committed any act of indiscipline or misconduct.

W.A.No. 466/2023 3

The Management, without stating any reason and without furnishing him

an opportunity to show cause, terminated his service with effect from

31.5.2018, by serving a letter of termination. He contended that the

order of termination was illegal and unjustifiable.

b) In their counter-statement, the Management contended that

they are a Company engaged in the production and marketing of

machinery in therapeutic segments. The workman was appointed as a

‘Probationary Business Executive’ on 31.03.2018 to carry out sales

promotion. In the offer of appointment, it was made clear that the

workman would be on probation for a period of 6 months, which could be

extended by a further period of 6 months. The service of the workman

could be terminated if the same was unsatisfactory. It is stated that the

service was terminated on 31.05.2018 during the period of his probation.

No notice was required to be issued for terminating the service of a

probationer. The workman was not issued an order in writing confirming

him as a worker of the company. It was by invoking the provisions of

clause 9(ii)(b) of the appointment letter that the service was terminated.

It was contended that the worker was in service only for a period of two

months and it was when it was found that there was no marked

improvement in his performance that his service was terminated.

W.A.No. 466/2023 4

c) The Tribunal framed necessary issues for consideration. The

workman was examined as WW1 and Exts.W1 and W9 were marked on

his side. On the side of the Management, the Area Business Manager

was examined as MW1, and on their side, M1 to M3 were marked.

d) The Tribunal, after evaluation of the evidence, came to the

conclusion that no acceptable evidence was adduced by the Management

to the effect that a letter of appointment detailing the period of probation

was served on the workman by them and he accepted it voluntarily. The

contention of the workman that the Management had given placement to

him without any probationary period was accepted. It was also held that

no opportunity was granted to show cause and that the termination of

the appointment without service of notice was bad under law. Holding

so, the notice dated 31.5.2018 discontinuing probation of the workman

was set aside and the workman was held entitled to reinstatement in

service. Backwages due to the worker consequent to the order passed

by the Tribunal were also ordered to be paid. The above award was

challenged by the management in the writ petition.

e) The learned Single Judge relied on the Sales Promotion

Employees (Condition of Service) Act, 1976, and noted that as per Rule

22 (1) of the Rules, the letter of appointment is required to be issued in

W.A.No. 466/2023 5

Form A. As per the provisions of the Rules, the probation was to be for a

period of six months which could be further extended by six months at

the discretion of the employer, and within such time, the service could

also be terminated. It was also held that there was no need for issuing

any show cause notice before disengagement from service. The fact that

no fresh appointment order was issued to the workman while he was a

probationer and prior to termination was also noted. Holding so, the

award passed by the Tribunal was set aside.

3. Smt.Sruthy Sasidharan, the learned counsel appearing for

the appellant, submitted that the Tribunal had rightly considered the

question as to whether the order of termination is mala fide or whether it

amounts to victimization or unfair trade practice. It is submitted that

based on the evidence let in, the Tribunal noted that the termination of

the appellant was without issuing a show cause and seeking his

explanation. According to the learned counsel, the offer of appointment

given by the management and marked as Ext.W1 would not disclose that

his appointment would be on probation. Furthermore, the signature of

the workman was not secured by the management in the said letter of

appointment.

4. In response, Sri. E.K. Nandakumar, the learned Senior

W.A.No. 466/2023 6

counsel appearing for the respondent as assisted by Sri. Jaimohan

submitted that the respondent was a probationer and was appointed in

terms of the Sales Promotion Employees (Conditions of Service) Act,

1976, and the Rules framed thereunder. It is pointed out by the learned

senior counsel that as per Section 5 of the Act, the Management was

bound to issue an appointment order in accordance with Rule 22(1) of

the Rules and in Form No. A. In the case on hand, the workman was

appointed on probation basis for a period of six months, and his service

was found unsatisfactory, the same was terminated within two months.

According to the learned Senior Counsel, the probation period is insisted

to determine the work, ability, sincerity, efficiency, and competence of the

probationer and if he is found not suitable for the post, the management

is having the right to dispense with his service without anything more

during or before the end of the prescribed period. In the case on hand,

the discharge of the workman was discharge simpliciter and was not

punitive. Only in cases where the termination is punitive after a finding

of misconduct pursuant to an enquiry that there is a requirement to issue

show cause and call for the objection. It is submitted by the learned

Senior counsel that the initial order of appointment as a probationer was

not followed up with an appointment order and if that be the case, the

observation of the Tribunal that the claimant was a proper workman and
W.A.No. 466/2023 7

not a probationer cannot be accepted.

5. We have considered the submissions advanced and have

gone through the records.

6. We find from the records that the workman was appointed

on 31.3.2018 and the letter of appointment is dated 10.4.2018. There is

no dispute that he was discharged from service on 31.5.2018. Ext.P1 is

the offer of appointment. It is clearly stated therein that a detailed

appointment order containing the terms and conditions will be issued

later on joining the service. Ext.P2 is a letter of appointment issued on

10.4.2018. Clause 9(ii)b of Ext.P2 deals with the period of probation and

it says that the management reserves the right to terminate the service

of a workman at any time during the period of probation.

7. The Tribunal refused to accept Ext.P2 on the ground that it

did not contain the signature of the workman. What is obvious that

Ext.P2 is an appointment letter issued in accordance with Section 5 r/w.

Rule 22(1) and (2) of the Sales Promotion Employees (Conditions of

Service) Act, 1976. Ext.P2 was in fact obtained by the workman under

the Right to Information Act. Except for Exts.P1 and P2, no other

documents concerning the appointment of the workman were before the

Tribunal. As the workman had worked in the company for a period of

W.A.No. 466/2023 8

two months on the strength of Ext.P2, the said document could not have

been ignored by the Tribunal for mere want of signature. It is also

relevant to note that Ext.P2 was not superseded by a fresh appointment

order. The Management had also produced before the Tribunal, Exts.P9

to P11 appointment orders issued to similarly placed employees wherein

the period of probation has been mentioned.

8. The Tribunal proceeded under the belief that the workman

was a permanent employee in spite of the fact that there were no records

to substantiate the said aspect. However, the fact remains that in the

order of appointment based on which the workman had commenced his

service, it has been explicitly mentioned that he has to complete the

probation to the satisfaction of the management. Now the question is

whether, the Management has violated the provisions of any law by

terminating the services of a probationer.

9. In Progressive Education Society v. Rajendra1, the

Apex Court has held that the appointing authority has the power to

terminate the services of a probationer upon finding his performance to

be unsatisfactory during the period of probation unless stigma is attached

to the termination of the probationer.

1
AIR 2008 SC 1442
W.A.No. 466/2023 9

10. In Unit Trust of India v. T. Bijaya Kumar Patra2, the

Apex Court lucidly pointed out that for ascertaining whether an order of

termination of service during probation is stigmatic in nature, firstly it has

to be seen whether the order suffers from bias, prejudice or mala fides.

The next question is whether the impugned order is intended to penalise

the probationer and finally it needs to be ascertained as to whether the

order is based upon the suitability or otherwise of the probationer arising

from unsatisfactory probationary performance. It was finally held that an

order of termination on the basis of unsatisfactory performance of the

probationer cannot be said to be of a stigmatic nature.

11. In Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I.

of Medical Science3, it was held that the termination of a probationer

would be a termination simpliciter, and would not be stigmatic in nature

unless the order of termination imputes something over and above the

mere unsuitability for the job.

12. In State of Orissa v. Ram Narayan Das4, it was held that

a probationer was liable to be discharged under the terms of his

appointment at any time during the period of his probation since the

probationer has no right to the post held by him.

2
1993 (1) LLJ 240
3
2002 (1) SCC 520
4
AIR 1961 SC 177 ,
W.A.No. 466/2023 10

13. In Ajith Singh v. State of Punjab5, it was held that the

period of probation gives time and opportunity to the employer to watch

the work, ability, efficiency, sincerity, and competence of the servant and

if he is found not suitable for the post, the master reserves the 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. If an

enquiry or an assessment is done with the object of finding out any

misconduct on the part of the employee and for that reason, his services

are terminated, then it would be punitive in nature. On the other hand, if

such an enquiry or an assessment is aimed at determining the suitability

of an employee for a particular job, such termination would be

termination simpliciter and not punitive in nature.

14. In the case on hand, no enquiry has been conducted to find

out whether the petitioner was guilty of any misconduct, negligence,

inefficiency or other disqualification. Only if such an enquiry is conducted,

is there any requirement to show cause and call for his explanation. The

Management had merely decided that the workman need not be

confirmed after a few months of service and such a discharge is

discharge simpliciter, and no show cause is required to be issued.

5
[(1983) 2 SCC 217]
W.A.No. 466/2023 11

15. We are, therefore, of the view that the Management had

acted within the framework of the rules and law as rightly held by the

learned Single Judge while overturning the findings of the Tribunal.

This Writ Appeal is dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V
JUDGE

sd/-
P.M.MANOJ
JUDGE
PS/21/6/2024
W.A.No. 466/2023 12

APPENDIX OF WA 466/2023

PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF THE AWARD IN I.D.NO 4/2019

DATED 3/2/2022 OF THE INDUSTRIAL
TRIBUNAL, THRISSUR