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CASE NO.: Appeal (civil) 5360  of  1997

PETITIONER: VIKRAMADITYA PANDEY

       Vs.

RESPONDENT: INDUSTRIAL TRIBUNAL, LUCKNOW AND ANOTHER

DATE OF JUDGMENT:       15/01/2001

BENCH: S.R.Babu,, S.V.Patil

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T

     Shivaraj V.  Patil, J.

     This  appeal  is  directed  against  the  order  dated 9.5.1996  made  by  the  Allahabad   High  Court  in   Civil Miscellaneous Writ Petition No.  14 of 1989.

     The  appellant was employed on 4.12.1981 as a clerk on ad  hoc  basis  by respondent No.  2  U.P.   Rajya  Sahkari Bhumi  Vikas  Bank  Ltd.  (for short the  Bank).   He  was serving  as  such  till 19.7.1985  continuously  with  small motivated breaks in between to ensure that the appellant did not  have  continuous  service of more than  89  days.   His services  were terminated by an oral order dated  19.7.1985. He  raised an industrial dispute challenging termination  of his  services.   Respondent No.  1  Industrial  Tribunal after  holding inquiry and on the basis of the evidence held that  termination  of  the  services of  the  appellant  was clearly  retrenchment  as defined in Section 2(S)  of  the U.P.  Industrial Disputes Act, 1947 and was also contrary to Section  6(N)  of the said Act (hereinafter referred  to  as the  State Act).  The Tribunal refused to grant relief  of reinstatement  on the ground that the regular appointment to the  post  held by the appellant could only be made  by  the U.P.   Cooperative  Institutional Service Board as per  U.P. Cooperative  Societies  Employees Service Regulations,  1975 (for  short  the Regulations) and as such he could not  be reinstated  in service as a regular employee.  However,  the Tribunal  granted benefits of retrenchment with 12% interest for  the  relevant  period.  Since the Tribunal  denied  the relief  of  reinstatement and full back wages the  appellant filed  the writ petition aggrieved by that part of the order of  the  Tribunal.   It may be stated here itself  that  the respondent  No.   2  did  not challenge  the  Award  of  the Tribunal.

     The  High Court concurred with the finding recorded by the  Tribunal that it was a case of retrenchment but was  of

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the  opinion  that no interference was called for  with  the Award  passed by the Tribunal having regard to Regulations 5 and  103.  In the view it took the High Court dismissed  the writ  petition.  Hence the aggrieved appellant is before  us in this appeal.

     The  learned  counsel  for   the  appellant   strongly contended  that the Tribunal as well as the High Court  were not  right  and committed a manifest error in  not  granting relief  of  reinstatement with back wages to  the  appellant having  held  that  the termination of the services  of  the appellant was illegal;  the Tribunal was right in taking the view  that  provisions  of  the Regulations  to  the  extent inconsistent  with  Industrial Disputes Act, 1947  or  other labour  laws will not be operative but proceeded to deny the relief  of  reinstatement and back wages on the ground  that provisions  regarding  the  manner  of  making  regular   or permanent  appointment  are  statutory   and  could  not  be violated;   hence the appellant could not be reinstated on a regular  vacancy as a regular appointment could be made only under  the  Regulations;  but the High Court  dismissed  the writ petition on a misreading of Regulation 103 holding that in  case there is any inconsistency between the  Regulations and  the Industrial Disputes Act, 1947 and any other  labour laws  for  the  time being force, the Regulations  shall  be operative.   Thus  the misreading of Regulation 103 lead  to the  wrong  conclusion by the High Court although  the  High Court rejected the argument advanced on behalf of respondent No.  2 that it was not a case of retrenchment.

     The  learned counsel for the respondent No.  2  argued supporting  the  impugned  order.   He  contended  that  the appellant was appointed on ad hoc basis for not more than 90 days  at a time and at the expiry of the period mentioned in ad  hoc appointment he ceased to be an employee of the Bank. According  to  him it was not a case of  retrenchment;   the Tribunal  and  the  High  Court were right  in  denying  the reinstatement  and back wages to the appellant in the  facts and  circumstances of the case;  in case the appellant is to be  reinstated  with full back wages when he was not at  all regular  employee,  it will result in great hardship to  the Bank  as back wages have to be paid for more than 15  years. He  lastly  submitted  that  the   appellant  could  not  be reinstated  as a regular employee when he was not a  regular employee  and any reinstatement of appellant in service will be contrary to the Regulations.

     We   have   carefully    considered   the   respective contentions  made  on behalf of the parties.  It is  not  in dispute  that  the  Award  passed by the  Tribunal  was  not challenged  by  the Bank.  The Tribunal as well as the  High Court have concurrently found that the case of the appellant was  one of retrenchment and that the appellant was  working between  the  period  4.12.1981  to  19.7.1985  with   small motivated  breaks  and that in any case he worked  for  more than 240 days in a year before termination of services.  The Tribunal in para 5 of its Award has stated thus:  -

     It  is  however evident that he worked for much  more than  240 days in an year before his service ceased.  It  is also  clear  that breaks were given and ad  hoc  appointment made  every  time for 90 days or less.  This  was  evidently done  to  stick  to  the letter of  the  law  regarding  the authority  of the bank in regard to making appointments only for  limited periods in ad hoc or temporary arrangement,  as

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specified  in the service Regulations 1975.  It is  however, clear  that services of the workman were needed as the  work was available but a continuing temporary appointment was not made  even  though  under Regulation 5(iii) of  the  Service Regulations  such longer term stop-gap appointment (and  not only  for  90 days) can be made with prior approval  of  the competent authority (the Board).  It would thus, appear that attempt  was  made confirm to the letter of law and not  its spirit  in so far as provisions regarding retrenchment under the Industrial Disputes Act go.

     The  only issue before the High Court was whether  the appellant was entitled to reinstatement in service with back wages, once the termination of his services had been held to be  illegal  and more so when the same was  not  challenged. Ordinarily,  once the termination of service of an  employee is  held  to  be wrongful or illegal the  normal  relief  of reinstatement  with full back wages shall be available to an employee;   it is open to the employer to specifically plead and  establish  that there were special circumstances  which warranted  either  non-reinstatement or non-payment of  back wages.   In  this case we do not find any such  pleading  of special  circumstances either before the Tribunal or  before the  High Court.  Since Regulation 103 of the Regulations is referred  to in the order of the Tribunal as well as in  the High  Court and it has bearing in deciding the  controversy, the focus is needed on it.  It reads:  -

     103.   The  provisions  of these regulations  to  the extent  of their inconsistency with any of the provisions of the  Industrial Disputes Act, 1947, U.P.  Dookan Aur Vanijya Adhishthan  Adhiniyam, 1962, Workmen Compensation Act,  1923 and  any  other Labour Laws for the time being in force,  if applicable   to   any  cooperative   society  or  class   of cooperative societies, shall be deemed to be inoperative.

     By  plain  reading of the said Regulation it is  clear that  in  case of inconsistency between the Regulations  and the  provisions  of the Industrial Disputes Act,  1947,  the State  Act, the Workmen Compensation Act, 1923 and any other labour  laws  for the time being in force, if applicable  to any   any  cooperative  society  or  class  of   cooperative societies,  to that extent Regulations shall be deemed to be inoperative.   In  other words, the inconsistent  provisions contained  in the Regulations shall be inoperative, not  the provisions of the other statutes mentioned in the Regulation 103.   The Tribunal in this regard correctly understood  the Regulation but wrongly refused the relief on the ground that no  reinstatement can be ordered on a regular employment  in view  of  the provisions contained in the  said  Regulation. But the High Court read the Regulation otherwise and plainly misunderstood   it   in  saying  that   if  there   is   any inconsistency  between  the Regulations and  the  Industrial Disputes  Act, 1947 and other labour laws for the time being in  force  the Regulations will prevail and  the  Industrial Disputes  Act, 1947 and other labour laws shall be deemed to be  inoperative.  This misreading and wrong approach of  the High  Court  resulted in wrong conclusion.  In the  view  it took  as to Regulation 103 the High Court proceeded to state that  even if there was retrenchment in view of Regulation 5 of  the  Regulations the Labour Court was not  competent  to direct  reinstatement of the appellant who was not recruited in terms of Regulation 5 because the Labour Court had to act

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within  the ambit of law having regard to the Regulations by which the workman was governed.  In this view the High Court declined relief to the appellant which in our view cannot be sustained.   The  Tribunal  felt   difficulty  in   ordering reinstatement  as the appellant was not a regular  employee. The appellant ought to have been ordered to be reinstated in service  once it was found that his services were  illegally terminated  in the post he was holding including its nature. Thus  in  our opinion both the Tribunal as well as the  High Court  were  not right and justified on facts and in law  in refusing  the  relief of reinstatement of the  appellant  in service with back wages.  But, however, having regard to the facts  and circumstances of the case and taking note of  the fact  that the order of termination dates back to  19.7.1985 we  think it just and appropriate in the interest of justice to grant back wages only to the extent of 50%.

     In  the result for what is stated above, we set  aside the  Award  of the Tribunal and order of the High  Court  in regard to denial of relief of reinstatement of the appellant with  back wages and direct his reinstatement in service  as he then was on the date of termination of his services, with 50%  back wages.  This appeal is allowed accordingly in  the terms stated above.  The parties to bear their own costs.