VIKRAMADITYA PANDEY Vs. INDUSTRIAL TRIBUNAL II

JUDGEMENT

(1.) The petitioner's case, inter alia, was that the petitioner was appointed on ad-hoc/temporary basis from time to time with the Respondent No. 2. His service was terminated with effect from July 19, 1985. No written termination order was felt necessary since his service was ad-hoc temporary. The termination was not the result of any punishment on account of misconduct. Therefore, the termination being termination simpliciter, amounts to retrenchment within meaning of Section 2 (s) of the U.P. Industrial Disputes Act (hereinafter referred to as the U.P. Act). Inasmuch as the petitioner was in continuous employment within the meaning of Section 2(g) of the U.P. Act and, as. such, is entitled to retrenchment compensation and one month's notice pay in lieu thereof. Neither any notice nor any notice pay in lieu thereof nor any retrenchment compensation was paid to the petitioner. Therefore, the termination was violative of Section 6-N of the U.P. Act read with Section25-F of the Industrial Disputes Act (hereinafter referred to as the Central Act). Out of the said termination, a dispute was raised by the petitioner. Upon reference being made, Adjudication Case No. 28 of 1987 was registered before the Industrial Tribunal (II) U.P. Lucknow. The petitioner filed his claim by means of a written statement submitted in the said case, which is Annexure-2 to the writ petition. The Respondent No. 2 had also filed its written statement, which is Annexure-3 to the writ petition. Rejoinder statement of the petitioner is filed as Annexure-4 to the writ petition. In the course of proceeding witnesses were examined. By an award dated October 18, 1987 the said Adjudication Case No. 28 of 1987 was disposed of. The said award is annexure-7 to the writ petition. In the said award though the Tribunal had found that the petitioner was in continuous service within the meaning of Section 2(g) of U.P. Act and that the termination amounts to retrenchment, but the Tribunal refused to pass an order for reinstatement with back wages. On the other hand it had directed payment of compensation assessed for years of service alongwith the notice pay as due on July 19, 1985 together with interest payable thereon calculated at the rate of 12% per annum till the date of payment. It is this award dated October 18, 1988 passed in Adjudication Case No. 28 of 1987, has been impugned by the petitioner, by means of present writ petition.

(2.) The Respondent No. 2 on the other hand has made out a case in the Counter affidavit that the petitioner was appointed on ad-hoc basis from time to time on the basis of his applications for limited period specified in each contract of employment. On the expiry of each such appointment the petitioner has to make fresh application for fresh appointment and each time fresh ad-hoc appointment of limited duration was given. Since the period of appointment was limited, therefore, such appointment stood automatically terminated in terms of stipulation contained in the; order of appointment on the expiry of stipulated period. Therefore, there was no termination of employment of the petitioner, which would come within purview of 'retrenchment'. It was further contended that such ad-hoc appointment was made while awaiting recruitment through the Board, according to the Regulation of recruitment and that process of recruitment was continuing during the period when the petitioner was given appointment. Therefore, even assuming but not admitting it was a case of retrenchment, then again there cannot be any question of reinstatement with back wages in view of Regulation-5 of U.P. Co-operative Societies Employees Service Regulations, 1975 (hereinafter referred to as the said regulation). Therefore, the present writ petition should be dismissed.

(3.) Ms. Suman Sirohi led by Sri K.P. Agarwal, learned counsel for the petitioner contends that the order of termination amounts to retrenchment within the meaning of Section 2(s) of U.P. Act attracting the consequences of Section 6-N of the U.P. Act which is mandatory. The non-compliance of those provisions makes the order of termination liable to be set aside. When such an order is set aside the natural consequence is of reinstatement with back wages and the Labour Court has no alternative but to pass such an order of reinstatement with back wages. The Labour Court had found that the petitioner had worked for more than 240 days in a year and was in continuous service within the meaning of Section 2(g) of U.P. Act. Since the Tribunal had found in favour of the petitioner it ought to have granted the relief, as claimed. Therefore, by means of present writ petition only that part of the order of the Tribunal by which reinstatement with back wages has been refused, has been challenged. Ms. Suman Sirohi, learned counsel for the petitioner, supports the findings of the learned Tribunal. She leads me to para-5 of the Award wherein the learned Tribunal had found that the Respondent No. 2 had been following unfair labour practice, though purporting to follow regulations for recruitment in letters without the spirit. Therefore, it was incumbent upon the Tribunal to order for reinstatement with back wages.