Probationers Are 'Workmen' Under Industrial Disputes Act; S. 17B Wages Non-Recoverable Even If Termination Upheld: Delhi High Court

The Delhi High Court has held that while a probationary employee falls within the definition of a 'workman' under Section 2(s) of the Industrial Disputes Act, 1947, the termination of a probationer without a full-scale formal departmental inquiry is legally valid if the order is one of termination simpliciter and non-stigmatic.A Bench of Chief Justice DK Upadhyaya and Justice Tejas Karia modified a previous Single Judge order, holding that the industrial law does not draw a distinction between permanent and temporary employees with respect to their status as workmen.The HC was hearing an intra-court appeal filed by Sarita Tiwari, a Trainee Aircraft Maintenance Engineer (AME), whose services were terminated by M/S Deccan Charters Pvt Ltd in 2007 while she was still on probation. Although a reference was made to her alleged misbehaviour and insubordination; however, no formal disciplinary inquiry was conducted.The Central Government Industrial Tribunal had previously found the termination to be unjustified and illegal, directing reinstatement with full backwages. However, the Single Judge subsequently interfered with the award, holding that the termination was a termination simpliciter. Crucially, the Single Judge also held that, as the employee was a probationer, she was not a 'workman' within the meaning of the 1947 Act.While upholding the validity of the termination, the Division Bench set aside the Single Judge's finding regarding the status of a probationer. The Court clarified that the mere mention of misbehaviour in the termination order does not, in itself, render the termination punitive.Relying on the Supreme Court's decision in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (2002), the Court reiterated the "form" test and the "substance" test, distinguishing motive from foundation.The Bench observed that to determine if an order is punitive, the Court must see if there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. In the present case, since these factors were missing, the reported misbehaviour merely furnished a motive for termination, not a basis. "The language which occurs in the order terminating the services... does not lead us to conclude that the said order was punitive, as the reported misconduct, misbehaviour, insubordination and non-punctuality are the factors which apparently motivated the respondent to terminate her services, and such reported misconduct is not the foundation of the order", the Bench observed.The Court also held that in terms of the definition of 'workman' occurring in Section 2(s) of the Act, there is no distinction between a permanent employee and a temporary employee in industrial law."The finding recorded by learned Single Judge in the impugned judgment and order to the effect that the appellant is not a 'workman' is set aside", the Court thus ordered.Furthermore, the Bench also addressed the issue of wages under Section 17-B of the Act. It affirmed that the employer is liable to pay last drawn wages during the pendency of proceedings in the High Court, and such amounts are non-recoverable even if the termination is eventually upheld.Accordingly, the appeal was allowed in part only to the extent of the 'workman' status and the protection of Section 17-B wages.Appearance: Mr. Rishi Raj Singh, Adv. with Appellant in person; Mr. Praveen Kumar and Mr. Rishi Raj, Advs. for RespondentCase title: Sarita Tiwari v. M/S Deccan Charters Pvt LtdCitation: 2026 LiveLaw (Del) 116Case no.: LPA 706/2019Click here to read order

Probationers Are 'Workmen' Under Industrial Disputes Act; S. 17B Wages Non-Recoverable Even If Termination Upheld: Delhi High Court

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