Conciliation: Simulation Script

Session Opening

Meghana: Good afternoon to all present here. I am Meghana, Conciliator on Record for the
current industrial dispute. Let’s start with todays Proceedings CC No. 162/2022 between Mr.
Pradeep and M/s Euro Production Private Limited. Parties, please introduce yourselves.

Naivedhya: I am Naivedhya, General Secretary of the Employees Union of M/s Euro Production
Private Limited and I represent Mr. Pradeep in this Matter.

Divyashree: I am Divyashree, working as General Manager, Human Resource Relations in M/s

Euro Production Private Limited. I represent my Company in the current matter.

Meghana: Great, let’s start with the proceedings. I have gone through the Statements submitted
by both the parties in detail along with Supporting documents. Now, I request Ms. Naivedhya to
start.

Naivedhya: Thank you Sir, I have been employed and working with M/s. Euro Production
Private Limited for the last 7 years. Meanwhile, I am Also the General Secretary of the
Employees Union of M/s Euro Production Private Limited for the last 2 months. Mr. Pradeep is a
bonafide employee of the of the Public Utility Service Company M/S Euro Production pvt. Ltd.
at Rajajinagar, Bangalore- 560010. He had joined Euro Production Pvt. Ltd. on April 2nd 2022
with the understanding that he could be on a probationary period of 3 months. The company by
its letter of June 10th 2022, terminated his service. The letter stated that “We regret to terminate
your services with immediate effect in terms of clause (1) of your appointment fetter dated 2nd
April 2022. Despite being within the probationary period, he was terminated from the
employment, without receiving any notice or explanation from the company. Such a termination
is considered to be unfair on the part of the company. However, I feel that it is not justified in the
part of the company to discharge him from service without holding a proper enquiry and that
there is no evidence adduced on behalf of the manager to show that the work was unsatisfactory.
If the work was not satisfactory then the management should have charge sheeted and dealt with
according to the rules of natural justice and also denied the opportunity to show cause for the
discharge. However, in this case the management has failed to observe the above said
requirements and hence forth with all the facts stated, I request you to consider these facts in the
light of equity in order to render fair and equitable justice by reinstating Mr. Pradeep and also
recompensate him for the terminated period.

Meghana: Thank you Madam Naivedhya, I would now request Ms. Divyashree to deliberate
your position on the stated facts.

Divyashree: Much obliged, Sir., like to depose the following facts, Mr. Pradeep was appointed
on as an assistant manager on probation in terms of an appointment letter dated 2nd April 2022.
Clause (1) of the appointment read as follows: “You will serve a probationary period of 3
months. The company has right to terminate your services during the period of probation or
before confirmation in writing without notice and without assigning any reasons whatsoever. It is
contended that the employee having been appointed only as a probationer, the termination of his
services for unsatisfactory work was well within the rights of the management. This probationary
period is typically mean to access employers’ stability, capability and performance for the role.
However due to alleged incapability in handling assigned task company decided to terminate his
employment. With these fact management of M/S Euro Production pvt. ltd. requests the
conciliator to uphold the decision made by the company for the goodwill of the company.

Meghana: Ms. Naivedhya , what do you have to say in this regard?

Naivedhya: Sir, in what circumstances can an employee’s services be terminated was considered
in The Management of U.B. Dutt & Co. v. Workmen of U.B. Dutt & Co... In that case it was of
the opinion that even in a case of this kind the requirement of bonafide is essential and if the
termination of service is a colorable exercise of the power or as a result of victimization or unfair
labour practice the industrial tribunal would have jurisdiction to intervene and set aside the
termination. Further it held that where the termination of service is capricious, arbitrary or
unnecessarily harsh on the part of the employer judged by normal standards of a reasonable man
that may be cogent evidence of victimization or unfair labour practice.
In Express newspapers ltd. v. Labour court, Madras, for the proposition that the appellant was
not justified in discharging the respondent from service without holding a proper inquiry and that
there was no evidence adduced on behalf of the management to show that the work of the
probationer was unsatisfactory. It is urged that in the instant case the terms of appointment gave
power to the employer to terminate the services of the employee even before the period of
probation expired without assigning any reason. While there may be some justification on the
terms of the appointment in that case for the court to observe that the employer had no right to
terminate the services before the expiry of 3 months, it makes no difference to the principle that
the employer cannot terminate the services even of a probationer on any grounds which have not
been recognized as a justification for such a termination. That’s all and I rest my submission.

Award

Meghana: Thank you very much for your detailed submissions. I am here to make an award in
conclusion of the proceedings.

Terms of Reference/ Issues Whether the termination of the probationer is legal and justified?

Where an employer employee an employee on probation on express terms that he can terminate
the probation whenever he likes, the circumstances under which it can be done?

In case it is held that the discharge was improper what is the relief to which the employee would
be entitled to?

Before deliberating any of the issues listed above let me look into the impact of the changing
social welfare legislation.

I represent the government which is the part of the execution body, a constitutional creation. We
consider various aspects while settling any disputes. Due to the changing times the jurisprudence
covering social welfare legislations also changes and has evolved in a better form in the present
era.

There can’t be strict legislations to the economic orders and thereby we need to understand and
respond to the new global order.
Therefore, a balance must be there between the interests of the parties in keeping the harmonious
relations between the parties to the disputes.

In Utkal Machinery Ltd.’s case AIR 1966 SC 1051 the terms of the employment of the
probationer were similar to the one which we are considering in this case, namely, that during the
probationary period the services of the employee could be terminated without any notice or
without assigning any reason. If the discharge of the employee has been ordered by the
management in bonafide exercise of its power, the tribunal will not interfere with it, but it is
open to the industrial tribunal to consider whether the order of termination is malafide or whether
it amounts to victimization of the employee or an unfair labour practice or is so capricious or
unreasonable as would lead to the inference that it has been passed for ulterior motive and not in
bonafide exercise of power arising out of the contract.

In what circumstances can an employee’s services be terminated was considered in The

Management of U.B. Dutt & Co. v. Workmen of U.B. Dutt & Co... In that case it was of the
opinion that even in a case of this kind the requirement of bonafide is essential and if the
termination of service is a colorable exercise of the power or as a result of victimization or unfair
labour practice the industrial tribunal would have jurisdiction to intervene and set aside the
termination. Further it held that where the termination of service is capricious, arbitrary or
unnecessarily harsh on the part of the employer judged by normal standards of a reasonable man
that may be cogent evidence of victimization or unfair labour practice.

In Express newspapers ltd. v. Labour court, Madras, for the proposition that the appellant was
not justified in discharging the respondent from service without holding a proper inquiry and that
there was no evidence adduced on behalf of the management to show that the work of the
probationer was unsatisfactory.

It is urged that in the instant case the terms of appointment gave power to the employer to
terminate the services of the employee even before the period of probation expired without
assigning any reason. While there may be some justification on the terms of the appointment in
that case for the court to observe that the employer had no right to terminate the services before
the expiry of 3 months, it makes no difference to the principle that the employer cannot terminate
the services even of a probationer on any grounds which have not been recognized as a
justification for such a termination.

Hence, for all the reasons stated and discussed herein above, I pass the following award,
Therefore, from the above said instances and examining the justifications given it is concluded
that it is a clear case of victimization and hence, is directed to reinstate the employee with back
wages from the date of termination.