Judgment

DWIVEDI, J.:- The Western India Match Company Limited, Bareilly (hereinafter called the Company) is governed by the Industrial Employment (Standing Orders) Act, 1946 (hereinafter called the Act). It appears that it has a separate Standing Order for the Watch and Ward Staff: According to the Standing Order there are five categories of workmen. (1) Permanent, (2) Probationer, (3) Substitute, (4) Temporary, and (5) Apprentice. A permanent workman is one "who has completed a probationary period of two months as such and is employed on a permanent post." A probationer is a workman "who is provisionally employed to fill a permanent vacancy and has not completed two months Service." (emphasis added )

2. The Company appointed one Prem Singh as a watchman on September 1, 1965. The letter of appointment states that he would be "on probation for a period of six months." We shall hereafter refer to this contract of service as a "special agreement." The period of probation expired on March 1, 1966, but he continued to serve on his post. On April 13, 1966 the Company passed an order extending the period of his probation by two months with retrospective effect from March 1, 1966. Nine days later, on April 22, 1966, the Company passed this order: "the above watchman has been discharged with effect from 1-5-1966 for the reasons mentioned below :

(1) probation period not approved, services are no longer required by the Company."

This order gave rise to an industrial dispute. The dispute was referred for adjudication by the Government of Uttar Pradesh to the Labour Court (II), Lucknow. The referring order was made on April 9, 1968. The question referred to the Labour Court is:

"Whether the employers have terminated the services of the workman Shri Prem Singh, son of Shri Bhartu, Watchman T. No. 2-47 with effect from 1-5-1966 legally and/or justifiably? If not, to what relief is the workman concerned entitled."

Prem Singh was represented before the Labour Court by the Matches Mazdoor Sangh, Bareilly. The case of the Sangh was that the employment of Prem Singh on probation for six months was in contravention of the Standing Order. It was maintained that on the expiry of two months Prem Singh automatically became a permanent workman. It was also said that during the entire period of his probation Prem Singh was never told by the Company that it was not satisfied with his work According to the Company, the term of six months, probation was valid. It was said that as his work was not found satisfactory, he was discharged.

3. The Labour Court has found that the discharge was neither male fide nor an act of victimisation for trade union activities. However, the labour Court has set aside the order of discharge and has directed his reinstatement with continuity of service and back wages. This is so because it has taken the view that the term regarding six months, probation was in contravention of the Standing Order and was invalid. It has held that on completing two months probation Prem Singh automatically became a permanent employee.

4. Shri Daphtary, counsel for the Company, has submitted that the Labour Court has gone beyond the terms of reference. It is pointed out at the Government Order of reference does not expressly empower the Labour Court to decide whether the term regarding six months probation was valid or invalid. In our view the Labour Court has not travelled beyond the terms of reference. It was called upon to decide whether the order of discharge was legal and/or justified. The validity or invalidity of the discharge obviously depended on the validity or invalidity of the term regarding six months probation. If this term was invalid the order of discharge also would obviously be invalid.

5. The next submission of Shri Daphtary is that the special agreement is not inconsistent with the Standing Order. According to the Standing Order, a workman shall not be kept on probation for more than two months. If he has worked during these two m