Toyota Kirloskar Auto Parts vs Niranjana K P - Labor Dispute

## Unlock Advanced Research with PRISM AI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

• Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc -... Upgrade to Premium [Cites 38, Cited by 0 ] ### Karnataka High Court

M/S Toyota Kirloskar Auto Parts (P) Ltd vs Mr. Niranjana K P on 27 February, 2026

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

-1-
NC: 2026:KHC:12554
WP No. 46195 of 2017

          HC-KAR

            IN THE HIGH COURT OF KARNATAKA AT BENGALURU
              DATED THIS THE 27TH DAY OF FEBRUARY, 2026
                                   BEFORE
            THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
                   WRIT PETITION NO. 46195 OF 2017 (L-RES)
          BETWEEN:
              M/S TOYOTA KIRLOSKAR AUTO PARTS (P) LTD
              PLOT NO. 21,
              KIADB INDUSTRIAL AREA
              ABBANAKUPPE VILLAGE,
              BIDADI, RAMANAGARA DISTRICT,
              RAMANAGARA 562109.
              REP BY ITS
              VICE PRESIDENT
                                                    ...PETITIONER
          (BY SRI.S.S NAGANAND., SR.ADVOCATE FOR
              SRI. B C PRABHAKAR.,ADVOCATE)
          AND:
             MR. NIRANJANA K P
             S/O. PUTTARAJAIAH,
             KURUBARAHALLI,
             BILAGUMBA POST,
             KASABA HOBLI,

Digitally
signed by B RAMANAGARA TALUK AND DISTRICT
LAVANYA ...RESPONDENT
Location: (BY MISS.AVANI CHOKSHI.,ADVOCATE)
HIGH THIS WP FILED UNDER ARTICLES 226 & 227 OF THE
COURT OF
KARNATAKA CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
LEADING TO THE PASSING OF THE AWARD DATED 18.8.2017
PASSED BY THE III ADDL. LABOUR COURT, BENGALURU, IN
I.D.30/2014 AT ANNEX-N;QUASH THE AWARD DATED
18.8.2017 PASSED BY THE III ADDL. LABOUR COURT,
BENGALURU IN I.D.30/2014 AT ANNEX-N.

               THIS PETITION, COMING ON FOR DICTATING ORDERS,
          THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
                            -2-
                                           NC: 2026:KHC:12554
                                       WP No. 46195 of 2017

HC-KAR

CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

                  ORAL JUDGMENT This petition is filed by the management challenging

the impugned award dated 18.08.2017, passed by III

Additional Labour Court, Bengaluru in Industrial Dispute

No.30 of 2014, whereby the Labour Court has allowed the

claim petition filed by the workman under Section 10 (4A) of the Industrial Disputes Act, 1947 (for short, 'the Act of

1947'), the termination order dated 27.05.2014 came to

be set aside and the management was directed to

reinstate the workman to his original place with continuity

of service, full back wages and all other consequential

benefits within thirty days from the date of the award.

1. Brief facts are as under:

The petitioner is a private limited company,

registered under the Companies Act, 1956. It is engaged

in the manufacture of automobile components. The

company employs approximately 358 workmen in its

factory in various activities. The service conditions of the -3- NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

petitioner's workmen are governed by the certified

standing orders of the factory.
3. The respondent has undergone apprenticeship

training in the designated trade of fitter from 13.10.2007

to 12.10.2008. Thereafter, more than a year, the

respondent was engaged in Temporary Support Member

(TSM) vide order dated 08.05.2010. At the time of

engagement of the respondent as TSM, it was specifically

mentioned that his engagement is only for a period of six

moths and after which, his period would cease to be TSM.

The nature of work, which claims to have been given only

on temporary basis, was accepted by the workman. He

was relieved from the service on 09.11.2010 after the

period of six months.

1. The respondent was again engaged on a fresh

contract basis as TSM for another period of six months

from 10.11.2010 to 09.05.2011. Again he was enrolled

from 08.08.2011 to 07.02.2012. Thereafter, due to -4- NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

exigencies of work, he was again taken on a fresh contract

basis for a period of six months i.e., from 08.02.2012.

1. This being the state of affairs, the respondent

orally submitted his candidature to the post of team

member trainee. On the same day, he was interviewed,

selected as team member trainee and issued an

appointment order on 26.05.2012 for a period of one year

from 28.05.2012 to 27.05.2013. Upon completion of the

training period of one year, the respondent was appointed

against the vacancy as team member on 27.05.2013 on

probation for a period of one year.

1. The performance of the respondent during the

probationary period was found to be not satisfied.

Thereafter, issued a caution letter dated 11.01.2014

describing five areas of concern. A reply was submitted

regretting the incident and tendered apology. After an

overall assessment of the performance of the respondent

during the period of probation, it was found to be -5- NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

unsatisfactory. Hence, the petitioner/management did not

confirm the services. Accordingly, the respondent has

been relieved from the service from the closing hours of

27.05.2014.

1. The respondent thereafter filed an application

under Section 10(4A) of the Industrial Disputes

(Karnataka) Act, 1988 before the III Additional Labour

Court, Bengaluru alleging that he was illegally terminated

and sought for reinstatement along with other benefits.

1. Based on the pleadings of both the parties,

i.e., the workman and the management, the Labour Court

framed the following issues for consideration:

"1. Whether the first party proves that his order
of termination dated 27.5.2014 is illegal and
quite arbitrary?

1.  Whether the I party further proves that the
   

   said termination is in violation of Sec 33 of I.D. Act?

2.  Whether the II party justified the order of
   

   termination of the low performance of the I
   party?

3.  Whether the I party is entitled for the relief
   

   sought for?

4.  What order?"
   

   -6- NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

1. In order to prove the case, evidence was let by

both sides. On behalf of the management, one Sri Vijay

H.V., the Assistant Manager, HR in the management was

examined as M.W.1 and got marked Exs.M.1 to 10. The

workman examined himself as W.W.1 and got marked

Exs.W.1 to 120. On the basis of the material placed on

record by both the parties, the Labour Court set aside the

order of termination dated 27.05.2014 passed by the

petitioner/management and directed the management to

re-instate the respondent to his original place of work with

continuity of service, full back wages and all other

consequential benefits.

1. It is this award of the Labour Court that is

questioned by the petitioner/management of setting aside

the termination and re-instating the workman with full

back wages and other consequential benefits. -7-

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

1. It is the vehement contention of the learned

Senior Counsel Sri S.S. Nagananda on behalf of learned

counsel Sri B.C. Prabhakar for the petitioner/management

that the Labour Court has misdirected itself and has come

to a wrong decision that the management has dismissed

the respondent by way of punishment which is totally

contrary to the concept of termination of a probationer for

unsatisfactory service. It is further contended that the

Labour Court has committed foundational error in the case

by totally ignoring that the object of probationary

employment is to assess the performance of a probationer

during the period of probationary period and non-

confirming of a probationer would not amount to

punishment. Learned Senior Counsel also contends that

the Labour Court has committed a serious error in not

taking note of the legal position that the probationer is

entitled to confirmation only if his service during the

period of probation is satisfactory and he is found suitable

for the post. Further, the Labour Court has committed a -8- NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

gross error in not considering that the termination so

made by the petitioner is simpliciter and by no stretch of

imagination, it could be termed as a stigmatic order, which

is completely overlooked by the Labour Court. It is also

contended that the Labour Court has seriously erred that

the non-confirmation of the respondent would amount to

retrenchment which is in violation of Section 25-F of the

Act of 1956.

1. It is further contended by the learned Senior

Counsel that the Labour Court has failed to take into

consideration the catena of judgments of the Hon'ble

Court. The Hon'ble Apex Court held that termination of a

probationer for unsuccessful completion of period of

probation would not amount to retrenchment. It is also

contended that once it is found by the employer that the

probationer is not proper and suitable for the post, on the

basis of overall assessment made by the employer, it

would not be proper for the Courts to interfere in re-

instatement, as the Labour Courts are not sitting over the -9- NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

assessment of an employee by the employer, which is the

error committed by the Labour Court in the present case

on hand. It is also contended that non-confirmation of the

respondent is in violation of Section 33(2)(b) of the Act of

1956, is totally perverse and is unsustainable for the

reason that in the present case, the respondent/workman

is not dismissed for misconduct, his termination is

simpliciter on the ground of unsuccessful completion of the

service period which does not amount to stigmatic order.

1. Learned Senior Counsel further contends that

the respondent/workman was appointed provisionally as

TSM vide order dated 27.05.2013 on probation for a

period of one year. As a probationer, he was liable to be

terminated without assigning any reason. Therefore, on

the basis of overall assessment, regarding the suitability of

the workman, and having found that he was not suitable

to the post and performance of the respondent was not

satisfactory, caution letter was issued, to which, a reply by

• 10 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

way of apology is tendered to correct himself. Despite

giving sufficient opportunity, as no improvement was

shown in his performance and on the basis of quarterly

assessment, after giving caution notice to the respondent,

terminated from the service. It is further contended that

the respondent was taken as a probationer on temporary

appointment due to exigencies of work and not against the

sanctioned vacancies which he was also aware, so also

TSM is for a limited period. Therefore, the

respondent/workman was always on probation irrespective

of a length of service he put in and his engagement cannot

be construed as employment against a sanctioned post.

The question of victimization or malafides cannot be

attached to the management. Therefore, the Labour Court

has committed serious illegalities and the award passed by

the Labour Court suffers from perversity and serious legal

infirmities. Hence, the same requires to be set aside and

quashed.

• 11 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

1. Learned counsel for the petitioner in support of

his case, relied on the following judgments:

i. Governing Council of Kidwai Memorial
Institute of Oncology, Bengalore Vs. Dr.
Pandurang Godwalkar and another [Air
1993 SC 392];

ii. Krishnadevraya Education Trust and
Another Vs. L.A. Balakrishna [(2001) 9
SCC 319];

iii. Pavanendra Narayan Verma Vs. Sanjay
Gandhi PGI of Medical Sciences and
another [(2002) 1 SCC 520],

iv. [M. Venugopal Vs. Divisional Manager, Life
Insurance Corporation of India Laws (SC)
1994 1 56] and

v. Chandra Prakash Shahi Vs. State of U.P.
and Others [(2000) 5 SCC 152]
15. Per contra, learned counsel Ms.Avani Chokshi,

appearing for the respondent/workman vehemently

contends that there is no illegality, perversity or

arbitrariness in the award passed by the Labour Court and

in view of the victimization of the respondent/workman

and the management found adopting unfair labour

practice, terminating the services of the

• 12 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

respondent/workman and the same having been proved

and established by way of material evidence, the Labour

Court has rightly come to the conclusion that such

termination is illegal, unjustified, invalid, unreasonable and

improper and consequently, quashed and set aside the

same, which does not call for interference.

1. Learned counsel further contends that the

reason for termination according to the management was

simpliciter termination and there was no stigmatic order,

whereas the respondent/workman has taken a contention

before the Labour Court that the termination was on the

basis of the alleged misconduct as per the caution letter

given by the management dated 11.01.2014 and therefore

when that being the case, the management ought to have

filed an application under Section 33(2)(b) of the Act of

1. It is also contended by the learned counsel for the

respondent that being an employee, there was no

alternative remedy except to give an undertaking to the

management though the workman had not committed any

• 13 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

misconduct and such a situation was created by the

management. It is further contended that the

management had not conducted any enquiry with regard

to the alleged non-satisfactory work of the

respondent/workman but there were various disputes

pending before the Conciliation Officer as well as the

Labour Court between the workman and the management.

Learned counsel further contends that apparently the

management has not obtained any permission for approval

either under Section 33(1) (b) or 33(2) (b) of the Act of

1956 either from the Conciliation Officer or Tribunal. It is

also relevant to take note that the respondent/workman

was taking an active role in the lawful agitation for the

illegalities committed by the management and in view of

the said involvement of the petitioner in such agitation

against the management, he has been removed from the

service with a malafide intention which is a clear case of

victimization and unfair labour practice, and the same is

correctly decided and held by the Labour Court in its

• 14 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

award. It is further contended that the

petitioner/management had retained the services of the

some of the workers who were junior to the respondent

herein as per Exs.W.54 and 58. Hence, it is contended that

the award passed by the Labour Court directing the

management to reinstate the service of the

respondent/workman along with continuity of service with

full back wages and all other consequential benefits is

legal, justified and the same does not call for interference.

Hence, she prays to dismiss the petition.

1. Learned counsel for the respondent in support of his case, relied on the following judgments:

i. Mahendra Singh Dhantwal v/s Hidustan
Motors Ltd and other 5 reported in (1976)
IV SCC, page No.606.

ii. Gujarat Steel Tubes Ltd. v/s Gujarat Steel
Tubes Mazdoor Sabha, reported in 1980 SCC
L and S, page No.197.

iii. Jaipur Zilla Sahakari Bhoomi Vikas Bank
Ltd. v/s Ramgopal Sharma and Others reported in 2002, 1LLJ (SC) page No.834.

iv. Regional Manager State Bank of India v/s
Rajaram reported in 2004 VIII SCC page
No.164.

• 15 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

v. Harjinder Singh v/s Punjab State Ware
Housing Corporation reported in 2010 II LLJ
(SC) page No.309.
vi. Bhilwala Dugdh Utpadak Sahakari S. Ltd.

v/s Vinod Kumar Sharma dead by LRs and
Others reported in 2011 IV LLJ (SC) Page
No.292.

vii. Tarmbak Rubber Industries Ltd. v/s
Nashik Workers Union and others reported
in (2003) VI SCC page No.416.

viii. Durgapur Casual Workers Union and
Others v/s Food Corporation of India and
Others reported in (2015) V SCC, page No.

786.

 ix. [State of Rajasthan v/s Rameshwar Lal](https://indiankanoon.org/doc/1241995/) reported in 1996 (I) LLJ 888 (S.C).

x. Ramaprasad v/s State of Rajasthan
reported in 1993 (I) LLJ 766 (Division
Bench)
xi. Dipti Prakash Banerjee v/s
Sathyendranath Bose National Centre reported in (1999) 3 SCC 60. 18. I have heard learned counsel for the petitioner

and learned counsel for the respondent.

1. The point that arises for consideration before

this Court is:

Whether the award passed by the Labour
Court is illegal, arbitrary and deserves to be
set aside?

• 16 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR
20. It is not in dispute that the management had

appointed the respondent-workman under designation of

Temporary Support Member (TSM) and his services were

extended from time to time. It is also not in dispute that

respondent-workman having completed training period,

the service of the respondent was taken on probation for a

period of one year from 28.05.2013. The workman was

attending meetings convened against the management

with regard to unfair labour practice. The agitation against

the management with regard to alleged unfair labour

practices was not liked by the management and was not

taken in good taste. Pursuant thereto, management got

issued a caution letter on 11.01.2014, making certain

allegation against the respondent-workman. After having

issued letter, obtained a reply apology from the workman,

pursuant to which the workman was terminated from the

service on the ground of his probation having ended on

27.05.2014 by paying one month salary.

• 17 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

1. It is the case of the management that the

termination is simpliciter, as the workman was on

probation and therefore his service could be terminated at

any time during the period of probation. It is contended

that the termination of the workman is a simpliciter

termination and does not cause any stigmatic order of

termination.

1. On the contrary, the contention taken by

respondent-workman is that he was initially taken as an

apprentice and underwent training for the trade of Fitter

and thereafter appointed as Temporary Support Member

(TSM) on the basis of contract and after completion of the

training period, as the vacancy existed, the workman was

appointed and put on probation. The respondent-workman

has taken a plea that the termination order passed on

27.05.2014 is illegal and arbitrary.

1. Apparently, it is seen that the respondent-

workman was taken on probation on 28.05.2013 and

• 18 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

appointed as a team member. Thereafter, he ought to

have been confirmed, rather his services were terminated.

The Labour Court has come to the conclusion that the

petitioner-management is involved in unfair labour

practice, as the respondent was taken into service and

terminated and thereafter, reinducted once again and

several times he was appointed after break of service. The

Tribunal has also come to the conclusion on the basis of

the evidence adduced by the management that the break

service of the respondent was artificial one. It is seen that

the respondent was taken into service on several

occasions and appointed by giving breaks, which is

admitted by the management itself as artificial one, would

certainly constitute unfair labour practice.

1. The judgment of Hon'ble Apex Court in the case

of Trambak Rubber Industries (supra) would be

relevant for consideration, which has been relied by the

Labour Court while passing the impugned order. In the

facts of the present case, it is not in dispute that the

• 19 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

respondent-workman was taken several times into

employment by providing appointment order and all these

times he was taken as a trainee on probation and

thereafter, he was appointed as TSM. In view of his

participation in the activities against the management for

unlawful activities, he has been terminated, which

amounts to unfair labour practice. With regard to non

performance of respondent-workman, the caution letter

having been issued and thereafter termination of service

of the workman, is not satisfactory and not acceptable, in

view of the fact that after having taken the workman on

several occasions, he has been terminated on the ground

of non performance. In my humble opinion, he had

actively participated in the agitation by other workman

against the management and having participated in the

meeting conducted against the management. Therefore,

the order of termination by the petitioner-management is

not a justifiable order and the Labour Court has rightly

come to the conclusion that the said order does not reflect

• 20 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

any reasonableness and any appropriate material having

not been placed to sustain the order or termination, the

order of Labour Court in my opinion does not call for

interference.

1. It is relevant to note that the respondent-

workman was taking active role in a lawful agitation

against the management and also the services of some of

the workmen, who were juniors to the respondent were

retained, as per Ex.W-54 to 58. Hence, it is seen that the

termination of respondent-workman is for the reason that

he had started taking active role in the lawful agitation

against the management and the management felt

threatened due to the presence of respondent-workman

and terminated his service, which is illegal and amounts to

unfair labour practice and victimization as rightly held by

the Labour Court.

• 21 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

1. It would be relevant to extract paragraph

Nos.51 to 52 and 55 in the case of Gujarat Steel Tubes (supra) wherein Hon'ble Apex Court held as under:

"51. Many situations arise where courts have been
puzzled because the manifest language of the
termination order is equivocal or misleading and
dis-missals have been dressed up as simple
termination. And so, judges have dived into
distinctions between the motive and the
foundation of the order and a variety of other
variations to discover the true effect of an order of
termination. Rulings are a maze on this question
but, in sum, the conclusion is clear. If two factors
co-exist, an inference of punishment is reasonable
though not inevitable. What are they?

1. If the severance of service is effected, the first condition is fulfilled and if the foundation or causa causans of such severance is the servant's mis-conduct the second is fulfilled. If the basis of foundation for the order of termination is clearly not turpitudinous or stigmatic or rooted in misconduct or visited with evil pecuniary effects, then the inference of dismissal stands negated and vice versa. These canons run right through the disciplinary branch of master and servant jurisprudence, both under Article 311 and in other cases including workmen under managements. The law cannot be stultified by verbal haberdashery because the court will lift the mask and discover the true face. It is true that decisions of this Court and of the High Courts since Dhingra case have been at times obscure, if cited de hors the full facts. In Samsher Singh case the unsatisfactory state of the law was commented upon by one of us, per Krishna Iyer, J., quoting Dr. Tripathi for support: (SCC p. 889, paras 160, 161)

In some cases, the rule of guidance has been stated
to be the substance of the matter' and the 'foundation' of
the order. When does 'motive' trespass into 'foundation'?
When do we lift the veil of 'form' to touch the 'substance'?
When the Court says so. These 'Freudian' frontiers obviously
fail in the work-a-day world and Dr. Tripathi's observations
in this context are not without force. He says:

• 22 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

As already explained, in a situation where the order
of termination purports to be a mere order of discharge
without stating the stigmatizing results of the departmental
enquiry a search for the 'substance of the matter will be
indistinguishable from a search for the motive (real,
unrevealed object) of the order. Failure to appreciate this
relationship between motive (the real, but unrevealed
object) and form (the apparent, or officially revealed object)
in the present context has led to an unreal interplay of
words and phrases wherein symbols like 'motive, 'substance'
'form' or 'direct parade in different combinations without
communicating precise situations or entities in the world of
facts.

The need, in this branch of jurisprudence, is not so
much to reach perfect justice but to lay down a plain test
which the administrator and civil servant can understand
without subtlety and apply without difficulty. After all,
between 'unsuitability' and 'misconduct 'thin partitions do
their bounds divide'. And, over the years, in the rulings of
this Court the accent has shifted, the canons have varied
and predictability has proved difficult because the play of
legal light and shade has been baffling. The learned Chief
Justice has in his judgment, tackled this problem and
explained the rule which must govern the determination of
the question as to when termination of service of a
probationer can be said to amount to discharge simpliciter
and when it can be said to amount to punishment so as to
attract the inhibition of Article 311.

1. What is decisive is the plain reason for the discharge, not the strategy non-enquiry or clever avoidance of stigmatising epithets. If the basis is not misconduct, the order is saved. In Murugan Mills, this Court observed:

The right of the employer to terminate the services of
his work-man under a standing order, like Clause 17(a) in
the present case, which amounts to a claim "to hire and fire"

an employee as the employer pleases and thus completely
negatives security of service which has been secured to
industrial employees through industrial adjudication, came
up for consideration before the Labour Appellate Tribunal in Buckingham Carnatic Co. Ltd. v. Workers of the Company. The matter then came up before this Court also in Chartered
Bank v. Chartered Bank Employees Union, and the Management of U. B. Dutt & Co. v. Workmen of U. B. Dutt &
Co. wherein the view taken by the Labour Appellate Tribunal
was approved and it was held that even in a case like the
present the requirement of bona fides was essential and if
the termination of service was a colourable exercise of the

• 23 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

power or as a result of victimisation or unfair labour practice
the industrial tribunal would have the jurisdiction to
intervene and set aside such termination. The form of the
order in such a case is not conclusive and the tribunal can
go behind the order to find the reasons which led to the
order and then consider for itself whether the termination
was a colourable exercise of the power or was a result of
victimisation or unfair labour practice. If it came to the
conclusion that the termination was a colourable exercise of
the power or was a result of victimisation or unfair labour
practice it would have the jurisdiction to intervene and set
aside such termination."
27. Paragraph No.68 of the said judgment, reads as
under:

"68. Before we leave this part of the case, a reference to
some industrial law aspects and cases may be apposite
though a little repetitive. Standing orders certified for an
industrial undertaking or the model Standing Orders framed
under the Industrial Employment Standing Orders Act provide for discharge simpliciter, a term understood in
contradistinction to punitive discharge or discharge by way
of penalty. It is not unknown that an employer resorts to
camouflage by garbing or cloaking a punitive discharge in
the innocuous words of discharge simpliciter. Courts have to
interроsе in order to ascertain whether the discharge is one
simpliciter or a puniitive discharge and in doing so, the veil
of language is lifted and the realities perceived. In the initial
stages controversy raised was whether the Court/tribunal
had any jurisdiction to lift such a veil. Prob and panetrate so
as to reveal the reality, but this controversy has been shut
at rest by the decision in Western India Automobile
Assosication v. Industrial Tribunal, Bombay. The wide scope
of the jurisdiction of industrial tribunal/court in this behalf is
now well established . If standing orders or the terms of
contract permit the employer to terminate the services of
his employee by discharge simpliciter without assigning, it
would be open to him to take recourse to the said term or
condition and terminate the services of his employee. But,
when the validity of such termination is challenged in
Industrial adjudication it would be competent to the
industrial tribunal to enquire whether the impugned
discharge has been effected in the bona fide exercise of the
power conferred by the terms of employment. If the
discharge has been ordered by the employer in bona fide
exercise of his power, then the industrial tribunal may not
interfere with it; but the words used in the order of
discharge and the form which it may have taken are not
conclusive in the matter and the industrial tribunal would be

• 24 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

entitled to go behind the words and form and decide
whether the discharge is a discharge simpliciter or not. If it
appears that the purported exercise of power to terminate
the services of the employee was in fact the result of the
misconduct alleged against him, then the tribunal would be
justified in dealing with the dispute on the basis that,
despite its appearance to the contrary the order of discharge
is in effect an order of dismissal. In the exercise of this
power, the court/tribunal would be entitled to interfere with
the order in question (see Assam Oil Co. v. Its Workmen¹).
In the matter of an order discharge of an employee as
understood within the meaning of the Industrial Disputes Act the form of the order and the language in which it is
couched are not decisive. If the industrial court is satisfied
that the order of discharge is punitive or that it amounts to
vicitmisation or unfair labour practice it is competent to the
court/tribunal to set aside the order in a proper case and
direct reinstatement of the employee (see Tata Oil Mills Co.
Ltd. v.Workmen's). The form used for terminating the
service is not conclusive and the tribunal has jurisdiction to
enquire into the reasons which led to such termination. In
the facts of the case it was found that Standing Orders
provided that an employee could ask for reasons for
discharge in the case of discharge simpliciter. Those reasons
were given before the tribunal by the appellant, viz., that
the respondent's services were terminated because he
deliberately resorted to go-slow and was negligent in the
discharge of his duty. It was accordingly held that the
services of the employee were terminated for dereliction of
duty and go-slow in his work which clearly amounted to
punishment for misconduct and, therefore, to pass an order
under Clause 17(a) of the Standing Orders permitting
discharge simpliciter in such circumstances was clearly a
colourable exercise of power to terminate services of a
workman under the provisions of the Standing Orders. In
these circumstances, the tribunal would be justified in going
behind the order and deciding for itself whether the
termination of the respondent's services could be sustained
(vide Management of Murugan Mills Ltd. v. Industrial
Tribunal, Madras). This view was affirmed in Tata
Engineering & Locomotive Co. Ltd. v. S. C. Prasad, After approving the ratio in Murugan Mills case, this Court in L.
Michael v. M/s. Johnson Pumps India Ltd. observed that the
manner of dressing up an order did not matter. The slightly
different observation in workman of Sudder Office,
Cinnamare v. Management was explained by the Court and
it was further affirmed that since the decision of this Court
in Chartered Bank v. Chartered Bank Employees' Union ' it
has taken the consistent view that if the termination of
service is a colourable exercise of power vested in the

• 25 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

management or is a result of victimisation or unfair labour
practice, the court/tribunal would have jurisdiction to
intervene and set aside such termination. It was urged that
a different view was taken by this Court in Munichpal
Corporation of Greater Bombay v. P. S. Malvenkar. The
employee in that case was discharged from service by
paying one month's wages in lieu of notice. This action was
challenged by the employee before the Labour Court and it
was contended that it was a punitive discharge. The
Corporation con-tended that under Standing Order 26 the
Corporation had the power to dis-charge but there was an
obligation to give reasons if so demanded by the employee.
The Corporation had also the power to discharge by way of
punishment. The Court in this connection-observed as
under:

Now one thing must be borne in mind that
these are two distinct and independent powers
and as far as possible neither should be construed
so as to emasculate the other or to render it
ineffective. One is the power to punish an
employee for misconduct while the other is the
power to terminate simpliciter the service of an
employee without any other adverse
consequence. Now, proviso (i) to clause (1) of
Standing Order 26 requires that the reason for
termination of the employment should be given in
writing to the employee when exercising the
power of termination of service of the employee
under Standing Order 26. Therefore, when the
service of an employee is terminated simpliciter
under Standing Order 26, the reason for such
termination has to be given to the employee and
this provision has been made in the Standing
Order with a view to ensuring that the
management does not act in an arbitrary manner.
The management is required to articulate the
reason which operated on its mind in terminating
the service of the employee. But merely because
the reason for terminating the service of the
employee is required to be given - and the reason
must obviously not be arbitrary, capricious or
irrelevant - it would not necessarily in every case
make the order of termination punitive in

• 26 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

character so as to require compliance with the
requirement of clause (2) of Standing Order 21
read with Standing Order 23. Otherwise, the
power of termination of service of an employee
under Standing Order 26 would be rendered
meaningless and futile, for in no case it would be
possible to exercise it. Of course, if misconduct of
the employee constitutes the foundation for
terminating his service, then even if the order of
termination is purported to be made under
Standing Order 26, it may be liable to be regarded
as punitive in character attracting the procedure
of clause (2) of Standing Order 21 read with
Standing Order 23, though even in such a case it
may be argued that the management has not
punished the employee but has merely terminated
his service under Standing Order 26."
28. Paragraph Nos.7 and 8 in the case of Trambak
Rubber Industries (supra) read as under:]
"7. The learned Senior Counsel for the appellant has
contended that it was not open to the High Court to
appreciate the evidence and take its own view on the crucial
factual aspects emerging in the case. The learned counsel
also submitted that there is no legal error apparent on the
face of the order passed by the Industrial Court and
reminded us of the proposition that even a grossly
erroneous finding of fact reached by the Tribunal cannot be
interfered with by the High Court in exercise of its
jurisdiction under Articles 226/227 of the Constitution of
India. In this context, the learned counsel has endeavoured
to draw support from the observations in Syed Yakoob v.
K.S. Radhakrishnan.

1. We are of the view that the High Court has not transgressed the limitations inherent in the grant of the writ of certiorari. The High Court had rightly perceived the patent illegality in the impugned award warranting interference in exercise of its writ jurisdiction. The High Court is right in pointing out that the material evidence, especially the admissions of the witness examined on behalf of the management were not considered at all. Moreover, the conclusions reached are wholly perverse and do not reasonably follow from the evidence on record. For instance, the fact that no appointment letters were issued or filed

• 27 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

 does not possibly lead to the conclusion that the
 management's version must be true. Similarly, if the
 Workers' Unions had taken the stand that antedated
 appointment letters were issued describing the employees
 as trainees after the dispute had arisen, it is difficult to
 comprehend how that would demolish the case of the Union
 that the persons concerned were really employed as
 workmen (helpers) but not as trainees. The Industrial Court
 makes a bald observation that there was no satisfactory
 evidence on record to suggest that these persons were
 employed by the respondents as "regular" employees at any
 point of time. This bald conclusion/observation, as rightly
 pointed out by the High Court, ignores the material evidence
 on record. In fact, the evidence has not been adverted to at
 all while discussing the issues. There was total non-
 application of mind on the part of the Tribunal to the crucial
 evidence. The management's witness categorically stated
 that the workers concerned were engaged in production of
 goods and that no other workmen were employed for
 production of goods. In fact, one of the allegations of the
 management was that they adopted go-slow tactics and did
 not turn out sufficient work. According to the Industrial
 Court, the fact that the "trainees" were employed for
 performing the regular nature of work would not by itself
 make them workmen. The question then is, would it lead to
 an inference that they were trainees? The answer must be
 clearly in the negative. No evidence whatsoever was
 adduced on behalf of the management to show that for
 more than one and half years those persons remained as
 "trainees" in the true sense of the term. It is pertinent to
 note the statement of the management's witness that in
 June-July 1989, the Company did not have any permanent
 workmen and all the persons employed were trainees. It
 would be impossible to believe that the entire production
 activity was being carried on with none other than the so-
 called trainees. If there were trainees, there should have
 been trainers too. The management evidently came forward
 with a false plea dubbing the employees/workmen as
 trainees so as to resort to summary termination and deny
 the legitimate benefits. On the facts and evidence brought
 on record, the conclusion was inescapable that the appellant
 employer resorted to unfair labour practice. There would
 have been travesty of justice if the High Court declined to
 interfere with the findings arbitrarily and without reasonable
 basis a reached by the Industrial Court."

• 28 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

Paragraph Nos.23 to 25, 38 and 42 to 47 of Dipti
Prakash Banerjee (supra) read as under:

"23. In the present case before us, the order of termination
dated 30-4 1997 is not a simple order of termination but is a
lengthy order which we have extracted above. It not only
says that performance during probation is not satisfactory
but also refers to a letter dated 30-4-1996 by which the
period of probation was extended by six months from 2-5-
1996, and to letters dated 17-10-1996 and 31-10-1996. It
concludes by saying that the appellant's "conduct,
performance, ability and capacity during the whole
probation" was not satisfactory and that he was considered
"unsuitable" for the post for which he was appointed.

1. The contention for the appellant is that if the appellant is
   to seek employment elsewhere, any new employer will ask
   the appellant to provide the copies of the letters dated 30-4-
   1996, 17-10-1996 and 31-10-1996 referred to in the
   impugned order and that if the said letters contain findings
   which were arrived at without a full-fledged departmental
   enquiry, those findings will amount to stigma and will come
   in the way of his career.

2. In the matter of "stigma", this Court has held that the
   effect which an order of termination may have on a person's
   future prospects of employment is a matter of relevant
   consideration. In the seven-Judge Bench decision in
   Samsher Singh v. State of Punjab Ray, C.J. observed that if
   a simple order of termination was passed, that would enable
   the officer to "make good in other walks of life without a
   stigma". It was also stated in Bishan Lal Gupta v. State of
   Haryana that if the order contained a stigma, the
   termination would be bad for "the individual concerned must
   suffer a substantial loss of reputation which may affect his
   future prospects".

3. Under this point, two aspects of the case fall for
   consideration, firstly, whether the impugned order is
   founded on any conclusions arrived at by the employer as to
   his misconduct or whether the termination was passed
   because the employer did not want to continue an employee
   against whom there were some complaints. The second
   aspect is whether there is any stigma in the order of
   termination or in the documents referred to in the
   termination order.

1. As pointed out in Bishan Lal Gupta v. State of Haryana an ordinary enquiry by a show-cause might be sufficient for the purpose of deciding whether the probationer could be

• 29 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

 continued, but where the findings regarding misconduct are
 arrived at without conducting a regular departmental
 enquiry, then the termination order will be vitiated. The
 learned Senior Counsel for the respondent relied upon [Hindustan Paper Corpn. v. Purnendu Chakrobarty](https://indiankanoon.org/doc/295671/) where it
 was held that for termination of a "lien", no detailed enquiry
 was necessary and that if that be the position, termination
 of probation stands on a lesser footing. But the case turned
 upon a special rule [in that case](https://indiankanoon.org/doc/295671/) which specifically provided
 that for "termination of a lien", a regular enquiry was not
 necessary. That case cannot therefore be of any assistance
 to the respondents.

1. We do not find anything objectionable in the third letter
   dated 31-10-1996 but the second letter, as stated above, is
   clearly objectionable.

2. For the aforesaid reasons, the impugned order is liable
   to be set aside.

3. Learned Senior Counsel for the respondent submitted on
   the basis of State of Haryana v. Jagdish Chander that
   merely because an order of termination was set aside on
   grounds of lack of opportunity, it was not necessary to direct
   reinstatement and back wages. Reliance in Jagdish Chander case was placed upon Managing Director, ECIL V. B.
   Karunakar, It is true that such an order not granting
   reinstatement or back wages was passed in Jagdish Chander case following Karunakar case But it has to be noticed that
   in Karunakar case there was a regular departmental enquiry
   but the enquiry report was not given to the officer. This
   Court directed the report to be given and set aside the
   proceedings from that stage and stated that no order for
   reinstatement or back wages need be passed at that stage. But in cases like the present where no departmental enquiry
   whatsoever was held, Karunakar case in our view, cannot be
   authority. As to back wages, on facts, the position in the
   present case is that there is no material to say that the
   appellant has been gainfully employed, The appellant is,
   therefore, entitled to reinstatement and back wages till date
   of reinstatement from the date of termination and to
   continuity service. Point 4 is decided accordingly.

4. For the aforesaid reasons, the appeal is allowed, the
   judgments of Division Bench and learned Single Judge of the
   High Court are set aside, the impugned order of termination
   is quashed, and the appellant is hereby directed to be
   reinstated with back wages till the date of reinstatement and
   continuity of service. It will be open to the respondents to
   take such action as they may deem fit in accordance with

• 30 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

 law against the appellant. The appeal is allowed as stated
 above. There will be no order as to costs."

1. It would be relevant to extract paragraph No.9

of the judgment in the case of [Regional Manager, State

Bank of India](https://indiankanoon.org/doc/89509191/) (supra) which reads as under:

"9. It appears that the High Court as well as the Labour
Court had proceeded on a fundamental misconception as to
the nature of the right available to the respondent. The
respondent was employed for a fixed period of 91 days.
Assuming that such an employee could be called a
temporary employee for the purposes of the Sastry Award,
the requirement as to service of notice of 14 days, would, in
cases where an employee has been appointed for a fixed
tenure, amount to an emargo on the employer terminating
the services prior to the expiry of such period without giving
a 14 days' notice. The non-giving of the notice would not
mean that the employee would thereby continue to serve
beyond the period for which he was originally appointed.
The exception to this principle is when an employee is
appointed temporarily for successive fixed tenures with
artificial breaks in between so as to deny the employee the
right to claim permanent appointment. This action would be
an unfair labour practice within the meaning of the phrase in Section 2(ra) of the Act. Section 2(ra) says that unfair
labour practice means any of the practices specified in the Fifth Schedule to the Act. The Fifth Schedule to the Act contains a list of unfair labour practices which have been
classified under two heads, namely: (I) on the part of the
employer and trade unions of employers, and (II) on the
part of the workmen and trade unions of workmen. The
principle that we have referred to earlier finds place in Item
10 of Part I under which
"to employ workmen as 'badlis', casuals or
temporaries and to continue them as such for years, with
the object of depriving them of the status and privileges of
permanent workmen"
is an unfair labour practice. In other words, before an
action can be termed as an unfair labour practice it would be
necessary for the Labour Court to come to a conclusion that
the badlis, casuals and temporary workmen had been
continued for years as badlis, casuals or temporary
workmen, with the object of depriving them of the status

• 31 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

 and privileges of permanent workmen. To this has been
 added the judicial gloss that artificial breaks in the service of
 such workmen would not allow the employer to avoid a
 charge of unfair labour practice. However, it is the continuity
 of service of workmen over a period of years which is
 frowned upon. Besides, it needs to be emphasised that for
 the practice to amount to unfair labour practice it must be
 found that the workman had been retained on a casual or
 temporary basis with the object of depriving the workman of
 the status and privileges of a permanent workman. There is
 no such finding in this case. Therefore, Item 10 in List I yof
 the [Fifth Schedule to the Act](https://indiankanoon.org/doc/500379/) cannot be said to apply at all to
 the respondent's case and the Labour Court erred in coming
 to the conclusion that the respondent was, a in the
 circumstances, likely to acquire the status of a permanent
 employee. Furthermore, both the High Court and the Labour
 Court appeared to have proceeded on the basis that the
 appointment of Ram Kumar after the employment of the
 respondent ceased, also on casual basis, was an unfair
 labour practice. If this view is to be upheld the respondent's
 appointment in place of Sooraj would equally be an unfair
 labour practice and therefore unsustainable."

1. In the case of Harjinder Singh (supra), where

it relied upon the case of [Syed Yakoob v. K. S.

Radhakrishnan and Others](https://indiankanoon.org/doc/484719/) reported in AIR 1964 SC

477, Hon'ble Supreme Court at paragraph No.12 has held

as under:

"12. Another serious error committed by the
learned Single Judge is that he deeded the writ
petition by erroneously assuming that the
appellant was a daily wage employee. This is ex
facie contrary to the averments contained in the
statement of claim filed by the workman that he
was appointed in the scale of Rs. 350-525 and the
orders dated October 3, 1986 and February 25,
1987 issued by the concerned Executive Engineer
appointing the appellant as Work Munshi in the

• 32 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

pay scale of Rs. 355-525 and then in the scale of
Rs. 400-600. This was not even the case of the
Corporation that the appellant was employed on
daily wages. It seems that attention of the learned
Single Judge was not drawn to the relevant
records, else he would not have passed the
impugned order on a wholly unfounded
assumption that the appellant was a daily wager."
31. In the light of the aforementioned judgments

and evidence of the management, the workman having

been appointed several times by the petitioner and finally

as TSM, having participated in active lawful agitation

against the management, termination order was issued,

though contended to be non stigmatic, cannot be accepted

and has rightly not been accepted by the Labour Court, as

any exercise of the management to terminate the services

of workman in whatsoever manner or form, cannot be

accepted, as it is victimization and would attract the unfair

labour practice, so also a clear case of colorable exercise

of power.

1. Having considered the materials placed on

record and evidence adduced by the parties, the same

• 33 -

NC: 2026:KHC:12554 WP No. 46195 of 2017 HC-KAR

having been appreciated and well considered by the labour

Court, I do not find any good ground or cogent reason to

interfere with the award rendered by the Labour Court.

1. Accordingly, I pass the following:

ORDER

(a) The Writ Petition is dismissed.

(b) The impugned award dated 18.08.2017,

passed by III Additional Labour Court,

Bengaluru in Industrial Dispute

No.30/2014 is hereby affirmed.
Sd/-

(PRADEEP SINGH YERUR)
JUDGE

List No.: 19 Sl No.: 1
RSP/NJ