- (1.) JANARDAN Sahai, J. The Krishi Utapadan Mandi Samiti has filed this petition challenging the award of the labour Court dated 3. 2. 2007 reinstating the respondent No. 2 who was a Mandi Asstt. The question referred for adjudica tion to the labour Court was whether the termination of the services of the respon dent No. 2 was valid. According to the respondent 2 he was given appointment on 19. 2. 96 as Mandi Asstt. on daily wage basis for a period of 89 days after adver tisement of vacancies and due selection and that he worked continuously till 30. 11. 1997 when his services were illegally terminated without complying with the provisions of Section 6-N of the U. P. Industrial Disputes Act. He claimed that he had worked for more than 240 days in a calendar year having thus been in continuous service. The case of the Mandi Samiti was that the respondent was a workman on daily wages and that the provisions of Section 6-N of the U. P. Indus trial Disputes Act were not applicable to the case as the termination of the ser vices of a daily wager is covered by the provisions of Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 and is not retrenchment. The labour Court found that the respondent No. 2 had worked for more than 240 days in a calendar year and the provisions of Section 6-N of the U. P. Industrial Disputes Act having not been complied with the termination of his services was illegal. It was also found that the workman was not gainfully employed. Yet the labour Court has not granted back wages. The workman however has not filed any writ petition against the award.
(2.) 1 have heard Sri B. D. Mandhyan learned Sr. Counsel assisted by Sri Kumar Anish Counsel for the petitioner and Sri D. B. Yadav counsel for the workman. Before me were put forward by Sri Mandhyan all sorts of legal grounds which the employer advances for defending an action of retrenchment. The ap pointment Of the 2nd respondent was de hors the service rules and gives birth to no legal rights and the Mandi Samiti which itself had made those illegal appointments can say so because there is no estoppel against the statute. The 2nd respondent was a daily wager hence the provisions of Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 were applicable to him and there was no retrench ment. A daily wager does not hold a post and hence no order of reinstatement could be passed even if his services were illegally terminated. A pragmatic ap proach should be adopted in such cases by awarding lump sum compensation. The adjudication case started in 2002 while the services of the 2nd respondent were terminated in 1997 and now that about ten years have elapsed there is no justification for reinstating the workman and restoring a position that existed many years ago. Where there are two sets of service rules one relating to recruitment and the other relating to retrenchment, thus begins the argument the court has to give effect to both the sets of rules and if the appointment is de-hors the service rules it gives rise to no legal consequences. From the arguments advanced on behalf of the Mandi Samiti it is immediately noticeable that it has put forward an almost irreconcileable stand on the question of the effect of an appointment de hors the service rules on the one hand and that of a termination of services de hors the service rules on the other hand-both actions being those of the Mandi Samiti itself but actions which the Mandi Samiti wants to be judged by different stan dards. While it is submitted that a workman whose appointment is invalid being de hors the service rules cannot claim even the minimal statutory immunity from an action of retrenchment illegally made without one month's notice or pay in lieu thereof or without payment of the survival benefits in the form of retrenchment compensation which is no more than 15 days wages for every year of service rendered and all humane considerations that the workman was unemployed and his family has been reduced to the brink of starvation are drowned in the cold logic of the flow of the irresistible consequences of an invalid appointment, the stand of the Mandi Samiti when it comes to defending a termination de hors the statutory rules giving rise to a wholly void order is that a pragmatic approach should be adopted and the workman cannot be reinstated to burden the industry. It is difficult to appreciate this apparent, double standard.
(3.) SRI Mandhyan has placed before me the U. R Agricultural Produce Market Committees (Centralised) Service Amendment Regulation, 1991 which govern the recruitment to class D posts, the category in which the post of Mandi Sahayak also falls. The Regulations provide that the Selection Committee of Group D posts shall consist of the Regional Dy. Director (Admn.), one officer nominated by the Director and the Secretary. Before the labour Court the respondent stated that he had applied for the post against vacancies and that he was interviewed by the Mandi Up Nideshak Ram Das and three other persons and he was given an appointment letter for 89 days and that at the time there were about 270 posts of Mandi Sahayak vacant. He also stated that other workmen who had been ap pointed along with him had been regularised. The labour Court found that the appointment of the 2nd respondent was made after advertisement of the vacancies and after due selection and interview and that other persons who had been ap pointed along with him had been regularised. The labour Court has also consid ered the statement of Udham Singh who had been examined on behalf of the Mandi Samiti and found that the version of the 2nd respondent was not rebutted. In the writ petition the petitioner has not filed the copy of the written statement of the parties nor the statement of the witnesses. What has been stated in the petition regarding the appointment of the 2nd respondent is that it was made on daily wages for a period of 89 days which is not envisaged under the service rules and there is no post of Mandi Sahayak available and that there was no appointment letter issued to him and the appointment was in violation of the order passed by the Directorate office, as also of the Regulations of 1984 and of the notification dated 2. 9. 92. No material has been filed by the petitioner to indicate what was the total number of sanctioned posts. Moreover the finding of fact recorded by the labour Court is that the procedure for selection was followed. This finding is one of fact and there is nothing to show that it is vitiated. I am therefore of the view that the appointment of the 2nd respondent was not made de hors the service rules. The stand of the Mandi Samiti is that the provisions of Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 are applicable and that the termination of the services of the 2nd respondent who was a daily wager was not illegal. A daily wager it is said holds no post, his engagement is purely contractual. It begins and comes to an end from day to day. Section 2 (oo) of the Industrial Disputes Act before its amendment in 1984 defined retrenchment to include termination of services for any reason whatsoever other than as a measure of punishment by disciplinary action. The definition also excluded voluntary retirement, retirement on attaining the age of superannuation or termination of service on ground of continued ill health. Every termination of service not covered under the exceptions contained in the definition was retrenchment. A daily wager is engaged on day to day basis and though his services can be discontinued at any time such discontinuation was also covered under the definition as the words "for any rea son whatsoever" were all encompassing. Section 2 (oo) was amended in the year 1984 and a clause (bb) was added. Under this clause (bb) the termination of the services of a workman on the ground of non-renewal of a contract of service which has come to an end or a termination made in accordance with a condition con tained in the contract of service is not retrenchment. The petitioner thus claimed before the labour Court that the termination of the service of a daily wager whose engagement can be discontinued at any time would therefore not be covered under the definition of retrenchment after the introduction of clause (bb ). Termina tion of services of every kind other than the excepted ones is retrenchment vide S. M. Nilajkar v. Telecom Distt. Manager, 2003 (4) SCC 27. The definition of re trenchment under Section 2 (s) of the UP. Act is the same as the unamended definition of retrenchment in the Central Act, there being no provision like clause (bb) under the U. P. Industrial Disputes Act. The result therefore is that the termi nation of services of a daily wager would also be included in the definition of retrenchment under the U. P. Industrial Disputes Act. The controversy which ex isted for some time as to whether the definition under the U. P. Act would prevail or that under the Central Act has now been settled by the apex Court in U. P. State Sugar Corporation v. Om Prakash Upadhya, 2003 SCC (L and S) 77 and it has been held that the U. P. Act would prevail. The contention of the petitioner that Section 2 (oo) (bb) would be applicable in this case has therefore no merit.;