IMPORTANT POINT
Where an employee has been employed on ad hoc basis for a long time with motivated breaks in between so as to see that he did not have continuous service for more than 89 days, his termination of service amounted to retrenchment within meaning of Section 2(S) of the U.P. Industrial Disputes Act and consequently he would be entitled to reinstatement with back wages.

Headnote:U.P. Industrial Disputes Act, 1947-Sections 2(S) and 6(N)-U.P. Co-operative Institutional Services Regulations, 1975-Regulation 103-Retrenchment-Reinstatement and back wages-Co-operative Bank employee-Ad hoc appointment-Employee in Service for more than 4 years-Motivated break in between to ensure that he did not have continuous service for more than 89 days-Oral termination-Amounts to retrenchment-Tribunal and High Court correct in holding termination amounted to retrenchment-Not justified in refusing reinstatement stating Regulation 103 does not permit-Regulation inconsistent with labour laws-Appellant-employee entitled to reinstatement-50% back wages awarded.
       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. (Para 6)
       By a plain reading of Regulation 103 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 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 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%. (Para 6)

JUDGMENT

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.

2. 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.

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

4. 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.

5. 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 e

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