Isabella Mariam

The High Court of Delhi Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia modified a Single Judge’s order in a dispute arising from the discharge of a probationary employee by a private employer, where the termination letter referred to alleged misbehaviour and insubordination. The Bench held that industrial law does not differentiate between permanent and temporary staff for determining “workman” status and found that a probationer can fall within the Industrial Disputes Act definition. At the same time, it upheld the employer’s action, holding that a probationer’s services may be ended without a full departmental inquiry when the order is termination simpliciter and non-stigmatic. The Court also sustained directions on payment of last-drawn wages during the pendency period, without recovery of sums already paid.

The dispute arose from the termination of a trainee aircraft maintenance engineer who was appointed on probation by a private aviation company. The employee’s services were terminated during the probation period through an order stating that despite prior warnings, misbehaviour and insubordination with superiors had been observed. Aggrieved, the employee raised an industrial dispute, following which the Central Government Industrial Tribunal-cum-Labour Court held the termination to be illegal and directed reinstatement with full back wages and continuity of service.

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The employer challenged the award before the High Court, where a Single Judge set aside the award, holding that the termination was simpliciter and that the employee, being a probationer, was not a “workman” under the Industrial Disputes Act, 1947. However, the Single Judge directed that wages paid under Section 17-B of the Act during pendency of proceedings should not be recovered.

The employee preferred an intra-court appeal contending that the termination order was stigmatic and punitive, that no inquiry had been conducted despite allegations of misconduct, and that probationary status did not exclude her from the definition of “workman.” The employer defended the Single Judge’s decision, relying on settled law relating to termination of probationers and the distinction between motive and foundation for termination.

The Division Bench examined whether the termination order amounted to punitive dismissal or termination simpliciter. Referring extensively to precedent, the Court observed that “whenever a probationer challenges his termination, the court’s first task will be to apply the test of stigma or the ‘form’ test.” It further stated that if the order survives this test, “the ‘substance’ of the termination will have to be found out.”

The Court recorded that the warning letters and the communication seeking explanation did not amount to a full-scale inquiry and “neither any full scale formal inquiry was instituted into the allegation of misconduct nor any finding of guilt was recorded.” Applying the settled test, the Bench observed that “if any one of the three factors is missing, the termination has been upheld as termination simpliciter.”

On the language of the termination order, the Court stated that "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"

With respect to stigma, the Bench relied on authoritative precedent and recorded that “a termination order which explicitly states what is implicit in every order of termination of a probationer’s appointment is also not stigmatic.”

On the issue of workman status, the Court observed that the Single Judge relied only on Single Bench decisions and stated that “there is no distinction between a permanent employee and a temporary employee in industrial law” so long as the nature of duties falls within Section 2(s) of the Act.

Regarding Section 17-B wages, the Bench observed that entitlement “does not arise from the interim order but flows from the statute itself” and “the employer has no right to recover the amount already paid even if the termination is ultimately upheld.”

The Court directed that “the order terminating the services of the appellant dated 09.08.2007 is upheld. The finding recorded by the learned Single Judge that the appellant is not a ‘workman’ is set aside.”

“The directions issued by the learned Single Judge in respect of the entitlement of the appellant for payment of amount of wages in terms of Section 17-B of the Industrial Disputes Act are upheld. The amount of wages as directed by the learned Single Judge vide order dated 21.02.2019 in terms of Section 17-B of the Act shall be paid to the appellant, if it has not already been paid, till the date of the decision of the writ petition i.e. till 22.08.2019, within a period of six weeks from today failing which the amount shall be recovered as arrears of land revenue. In case any amount in terms of Section 17-B of the Act has already been paid to the appellant, the same shall not be recovered.”

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“The impugned order dated 27.08.2019 passed by the learned Single Judge stands modified to the aforesaid extent and the appeal, along with the pending application, stands disposed of,” and “there shall be no order as to costs.”

Advocates Representing the Parties

For the Appellant: Mr. Rishi Raj Singh, Advocate, with the appellant appearing in person

For the Respondent: Mr. Praveen Kumar, Advocate, Mr. Rishi Raj, Advocate

Case Title: Sarita Tiwari v. M/s Deccan Charters Pvt. Ltd.
Neutral Citation: 2026: DHC:636-DB
Case Number: LPA 706/2019
Bench: Chief Justice Devendra Kumar Upadhyaya, Justice Tejas Karia