- (1.) Heard Sri B.D. Mandhyan, learned Senior Advocate for the Petitioner. None appeared on behalf of private Respondent No. 2 though names of Sri Avinash Swaroop is shown in the cause list as Counsel for the Respondent.
(2.) Sri Mandhyan has challenged the impugned award insofar as relief of reinstatement and 30% back wages has been granted to the workman concerned. It is contended that since the Respondent-workman was not appointed in accordance with Regulations and he was not an employee as per the definition of "employee" under Regulation 2(e) of U.P. Agricultural Produce Markets Board (Officers and Staff Establishment) Regulations, 1984, relief of reinstatement could not have been granted in view of law laid down by the Apex Court in State of U.P. v. Neeraj Awasthi, 2006 109 FLR 625 (SC) He contended that the workman was engaged on daily wage basis for a fixed tenure of 89 days at a time and there was no vacancy on which he could be appointed therefore, relief of reinstatement could not have been allowed. A daily wage employee has no right to claim reinstatement. He submits that in case Labour Court found that retrenchment of a workman was made without following the procedure prescribed under Section 6-N of U.P. Industrial Disputes Act, 1947 (in short "Act 1947"), lump sum amount as compensation could have been awarded but no relief of reinstatement could be granted.
(3.) The real question raised by Learned Counsel for the Petitioner about relief, which ought to have been granted to workman concerned, having recorded a finding that he was terminated wrongly namely in violation of procedure prescribed in Section 6-N of the Act, 1947 whether the relief of reinstatement is automatic and necessarily has to be granted in all the cases where the termination of the workman is found invalid for violation of procedure prescribed under Section 6-N i.e. relating to retrenchment or otherwise. Fortunately, for me, this issue is no more res integra having been Considered recently by Apex Court in a chain of decisions. It has now been held that even if an order of termination or retrenchment is found faulty, invalid or in violation of Section 6-N of the Act, 1947, relief of reinstatement and back wages is neither automatic nor necessarily has to be granted in such cases. The relief of reinstatement and back wages would depend on a number of factors like nature of appointment, the period for which the employee has worked, the manner in which he was appointed or recruited, the status of the employment namely whether procedure of recruitment is restricted by some statutory provision or depend on the sweet will of the employer, the period elapsed from the date of termination, the condition of employer's industrial unit, whether it is working or closed, and so many other relevant factors. When I refer to status of employer, I mean that if an employer is a private establishment, the recruitment or appointment of its employees is not regulated by Part III of Constitution of India namely Articles 14 and 16 and the statutory rules, as is the case in respect to statutory bodies or instrumentalities of the State etc.;