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IN LAW

Q: I was appointed as a clerk in the accounts department of a central government company and was placed on probation for a year. During the probation period, my appointment was terminated on the basis of the report of an alleged enquiry proceeding conducted for alleged financial irregularities on my part. I had no notice of such enquiry proceeding nor was supplied with a copy of the report. I want to challenge the termination in court. How should I proceed?

Arup Biswas, Calcutta

A:Normally a probationer’s appointment is terminable by giving notice for a period specified in the appointment letter without assigning any reason or on the ground that his / her performance has been unsatisfactory. Such termination simpliciter is difficult to challenge in court. But when the foundation of a termination order is the alleged misconduct of the probationer, an opportunity of hearing is imperative. This follows from the principle of natural justice that no person will be condemned unheard. If an employee, including a probationer, is found to have committed a misconduct in an enquiry proceeding held behind the back of the concerned person, and on that basis his appointment is terminated, the termination order stands vitiated. In this connection, you may refer to the recent Supreme Court decision reported in (2008) 2 Supreme Court Cases 479. You could file a writ petition in the appropriate high court challenging the termination order inter alia on the ground of breech of the principles of natural justice. If the service rules of the company provide for an appeal against the order before an appellate authority, you may first want to exhaust that remedy.

Q:I seek your advice on behalf of 14 workmen of a state government undertaking. We had filed a civil suit challenging the illegal termination of our services and for consequential relief, including reinstatement in service. In its defense, the government did not make any point that the suit was not maintainable or that the civil court had no jurisdiction to entertain the suit. However, the court has now held that it lacks jurisdiction to entertain the said suit and has accordingly dismissed the suit observing inter alia that the proper forum for ventilation of our grievance is the industrial tribunal. We want to know whether we should prefer an appeal against the said judgment and how far we are likely to succeed.

Name withheld

A:You have disputed the orders of termination of your services by the state government employer. Such a dispute would seem to be covered by the provisions of the Industrial Disputes Act, 1947. Please note that the civil court has no jurisdiction to entertain, try or determine any dispute covered by the said Act. The exclusive jurisdiction in respect of such disputes is that of the industrial tribunals / labour courts. Even if the civil court has passed a decree in your favour, the same would have been a nullity and of no effect. It is not material that the state government did not urge the point of lack of jurisdiction before the civil court since such a point can be taken note of by the civil court on its own. In my opinion, you are unlikely to succeed in appeal from the said judgment. You should rather take recourse to the provisions of the said Act of 1947.


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