Invalid appointment of a probationer contrary to model standing orders renders the termination illegal if it does not comply with the provisions of the U. P. Act.

( 1 ) THE questions that arise for consideration in this petition are whether an appointment of a probationer contrary to model standing orders is invalid appointment, if so. its effect ; whether clause (bb) of Section 2 (oo) of the Industrial Disputes Act, 1947. (Central Act) is applicable in state of Uttar Pradesh; whether a probationer can be terminated or discharged from the service without complying the provisions of the Section 6n of the U. P. Industrial Disputes Act, 1947 (U. P. Act): whether termination or discharge of a probationer after expiry of maximum probationary period amounts to retrenchement; whether the workman is entitled for reinstatement and back wages ?

( 2 ) THE petitioner appointed Dhanvir Singh the respondent No. 1 on 1. 1. 1987 as an Office assistant on probatation for a period of six months. The appointment letter mentioned that if the work of the respondent is found satisfactory, he would be absorbed in the factory and if it is not found satisfactory, then his service could be terminated even earlier than six months. It further provided that the probationary period could be extended by another six months. The probationary period of the petitioner was extended by another six months w. e. f. 1. 7. 1987 by order passed on 26. 6. 1987. The workers of the petitioners concern went on strike from 10. 12. 1987 till 16. 2. 1988. The respondent Joined the strike and did not attend his duties during this period. The Works Manager of the petitioners company passed an order on 15. 3. 1988 that as the work of the respondent was not satisfactory during the probationary period, he was discharged from the service w. e. f. 16. 3. 1988. The respondent raised industrial dispute. The State government exercising powers under Section 4-K of the U. P. Industrial Disputes Act, 1947 [in brief the U. P. Act) made a reference to the Labour Court, U. P. , Rampur, the respondent No. 2. It was registered as Adjudication Case No. 50 of 1991. The respondent No. 2 by its award dated 31. 10. 1991. published on 24. 3. 1992 accepted the claim of respondent and 31. 10. 1991, published on 24. 3. 1992 accepted the claim of respondent and held that the termination of respondent from the service was illegal, the respondent was entitled for reinstatement with all benefits of service which he would have received had he been on work. The petitioner challenged the award dated 31. 10. 1991 by means of this writ petition. This Court on 19. 5. 1992 passed an interim order and stayed the operation of the award to the extent that it granted back wages to the respondent. It directed that the respondent would be paid future wages from the month of June ,1992 and It shall be open to the petitioner to take or not to take work from the respondent.

( 3 ) I have heard Sri Shashi Kant Gupta the learned counsel for the petitioner and Sri Ashok Khare the learned senior counsel assisted by Sri S. D. Shukla for the respondent No. 1 and Sri Atul mehra brief holder State of U. P. appearing for the respondent No. 2.

( 4 ) SRI Shashi Kant Gupta, the learned counsel for the petitioner has urged that clause (bb) has been added in Section 2 (oo) of the Industrial Disputes Act, 1947 (in-brief Central Act) by amending Act No. 49 of 1984, w. e. f 18. 8. 1994. Under Clause (bb) a probationer can be discharged from the service. He placed reliance on the decisions of the Apex Court in M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Andhra Pradesh and another. AIR 1994 SC 1343 and State of Rqjasthan v. Rameshwar Lal Gahlot, 1999 (77) FLR 38. He also relied on Division Bench decision of this Court in Smt. Pushpa Agarwal v. Regional inspectress of Girls Schools, 1st Region Meerut and another, 1995 (70) FLR 20 and the decision of Karnataka High Court in C. M. Jitendra Kumar v. The Management Bharat Earth Movers Ltd. and another 1985 L/c 1833. He further urged that respondent was appointed on probation and his probationary period was exten