Allahabad High Court
Secretary, Krishi Utpadan Mandi Samiti vs Presiding Officer, Labour Court, Ashok ... on 16 November, 2007
Equivalent citations: 2008(1)AWC920
Author: Janardan Sahai
Bench: Janardan Sahai
JUDGMENT Janardan Sahai, J.
1. The Krishi Mandi Utapadan Samiti has filed this petition challenging the award of the labour court dated 3.2.07 reinstating the respondent No. 2 who was a Mandi Asstt. The question referred for adjudication to the labour court was whether the termination of the services of the respondent No. 2 was valid. According to the respondent No. 2 he was given appointment on 19.2.96 as Mandi Asstt. on daily wage basis for a period of 89 days after advertisement of vacancies and due selection and that he worked continuously till 30.11.97 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 Samity was that the respondent was a workman on daily wages and that the provisions of Section 6N of the U.P. Industrial Disputes Act were not applicable to the case as the termination of the services 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. I 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 appointment 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 retrenchment. 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 approach 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.
3. 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 dehors 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 dehors 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 standards. 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 dehors 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.
4. Sri Mandhyan has placed before me the U.P. 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 appointed 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 appointed along with him had been regularised. The labour court has also considered 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 reason 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 contained 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). Termination of services of every kind other than the excepted ones is retrenchment vide S.M. Nilajkar v. Telecom Distt. Managefr 2003(4) 50 SCC 27. The definition of retrenchment under Section 2 (s) of the U.P. Act is the same as the unamended definition of retrenchment in the Central Act, there being no provision like Clause (bb) under the UP. Industrial Disputes Act. The result therefore is that the termination 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 existed for some time as to whether the definition under the U.P. Act would prevail or that under the Central Act has now been settied by the apex court in U.P. State Sugar Corporation v. Om Prakash Upadhya 2003, SCC (L & 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.
5. We may now turn to the question as to whether the services of the 2nd respondent were terminated in accordance with law. The finding of the labour court is that the workman had completed 240 days continuous service in a calendar year and therefore the provisions of Section 6N of the U.P. Industrial Disputes Act were applicable. The labour court has referred to the admission of Udham Singh the employer's witness that no notice or retrenchment compensation was paid to the workman. It has also referred to the admission made by the witness that no seniority list of daily wagers was prepared. If the principle of last come first go is to be followed as is envisaged under Section 6 P of the U.P. Industrial Disputes Act, such a list would be necessary to determine the interse seniority. The finding of the labour court is that other workmen appointed along with the 2nd respondent have been regularised. It is not in dispute that the procedure provided under Section 6N was not followed. The requirement for the applicability of Section 6N is that the workman was in continuous service for not less than a year, The term "continuous service" has been defined under Section 2(g) of the U.P. Industrial Disputes Act, 1947. A workman who has worked for 240 days in a calendar year shall be deemed to have been in continuous service for a year under that provision. The finding of fact recorded by the labour court on the basis of oral and documentary evidence is that the workman had completed more than 240 days of continuous service. This finding has not been shown to be vitiated by any error of law.
6. It may be noticed that the pre requisite for the application of Section 6N is continuous service for not less than a year and not the existence of any post. Even the concept of continuous service as defined in Section 2(g) does not contemplate the existence of any post. What is required to be seen is that the workman has put in 'continuous service'. He is then entitled to the protection of Section 6N. The provisions of Section 6N would be applicable if a workman has put in continuous service irrespective of the fact whether there was or was not a post. This follows from the fact that retrenchment in ordinary parlance though its connotation under the definition in the Act is wider is a measure to get rid of surplus labour. It is therefore implicit in an action of retrenchment that the establishment is burdened by a work force of surplus labour a situation in which retrenchment is commonly resorted to. By Section 6N the legislature has laid down the pre conditions to be complied with for a valid termination of the services of such surplus labour.
7. Section 6 N provides that no workman to whom the section applies shall be retrenched unless one month's notice or pay in lieu thereof and retrenchment compensation is paid to him. The proviso to Clause (a) of Section 6N dispenses with the requirement to give notice where the agreement specifies a date for the termination of service but does not exempt the employer from payment of the retrenchment compensation. This provision makes the legislative intent quite clear that even in fixed term appointments no action of retrenchment can be resorted to under the U.P. Act without payment of compensation. The legislature has frowned upon non compliance of the provisions of the Act by making it an offence punishable by imprisonment or fine if no other punishment is provided. The consequence of a retrenchment without payment of compensation was considered by a three Judge Bench of the apex court in Gammon India v. Niranjan Das 1984 (48) FLR 310 and it was held that such termination of service was void. In State of Karnataka v. Uma Devi upon which Sri Mandhyan placed reliance it was held that an appointment de hors the rules gives birth to no legal consequences. There is no reason then why the same principle be not applied indeed with greater force to the termination of services made de hors the service rules, such termination being altogether void. The consequence of applying this principle to a case of illegal retrenchment is that there would in such a case be no termination of services at all and that continuity of services stands maintained in the eyes of law. In such a case therefore there is really no question of any reinstatement to the post. The logical corollary of the fiction that the termination of service was void is that the workman continues to be in engagement until his services are legally discontinued. However, as the relief of reinstatement with continuity of service is discretionary it has been said in decided cases that it cannot be granted as a matter of course. In para 43 of the Reports in Uma Devi's case the apex court no doubt held that a contractual appointment comes to an end at the end of the contract and "if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued" but having said that the apex court did not say that such discontinuance could be made in disregard to the statutory rules that may have been framed to govern the termination of services of such employees. In Uma Devi's case the apex court was not considering the effect of bye passing of the statutory safeguards to the workman's services provided by the Industrial statutes. The principle laid down in Uma Devi's case that an appointment dehors the service rules gives birth to no legal rights cannot be mechanically applied to take away the protection given to a workman by the Industrial statutes. In a recent decision in UP. State Electricity Board v. Pooran Chandra Pandey Civil Appeal No. 3765 of 2001 decided on 9.10.07 a two Judge Bench of the apex court (Hon, M. Katju and A.K. Mathur, JJ.) has given a word of caution against courts mechanically applying Uma Devi's case. This is what the learned Judges said: "We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi's case (supra) is being applied by courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Pertoleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the Precedential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's case (supra) inapplicable to the facts of that case." While in view of the apex court's decisions the invalidity of an appointment is to be kept in mind while considering the question of nature of the relief to be granted this angle of approach cannot be overemphasised and mechanically applied while dealing with cases of workmen under the labour legislation. Workmen engaged in an industry constitute a class in themselves. Their position cannot be compared with that of public servants. A public servant has privileges and enjoys a security of tenure for greater than a workman has under the Industrial Disputes Act. It has therefore been said that correspondingly the legality of a public servant's entry into service by bye passing the selection procedure under the constitutional scheme should also be examined when he claims protection of the constitutional provisions or protection under the service Rules of the Corporation which provide some special security against termination of his services. The rationale of the principle is that one who claims a protection provided by a statute against termination of his services must also show that he has gained his appointment in the manner contemplated by the statute. When however an employee of a corporation who is a workman within the meaning of the Industrial Disputes Act claims protection of the provisions of the Industrial Disputes Act against termination of his services he is not claiming the benefit of the special safeguards provided by the statutory rules of the Corporation or of the constitutional provisions. In such a case therefore the question whether his entry into the service was according to the selection procedure under the statutes of the Corporation or not is not of much importance. When an employee who is a workman does not claim the protection of the statutory rules of the Corporation but of the provisions such as of Section 6N of the U.P. Industrial Disputes Act what has to be seen is whether the preconditions for the applicability of that section exist. Section 6N of the U.P. Industrial Disputes Act does not lay down the validity of the appointment a precondition for its application. The question of looking into the validity of the appointment therefore is not of much significance for the application of Section 6N, That question may however arise if an employee of a Corporation whether a workman or not claims the applicability of the special provisions of the statutory rules of the Corporation which provide safeguard against the termination of his services. Even in such a case Uma Devi's decision cannot be mechanically applied as held by the apex court in Pooran Chand Panday's case (supra). While applying the industrial statutes the angle of social security cannot be lost sight of. In enacting Section 6N the object of the legislature was to provide some compensation to the workman who had put in the requisite minimum length of service to mitigate the hardship caused on account of sudden unemployment and to enable him to find out an alternative job. Retrenchment compensation is a temporary life support system to the workman removal of which could be fatal to him. The object of its payment has no connection to the validity of the appointment. In State of U.P. v. Neeraj Awasthi , a decision cited by Sri Mandhyan, it was held relying upon the definition of 'employee' in the service regulations that persons employed on daily wages, work charged or on part time basis are not employees within the meaning of the definition, 'Ad hoc' employees too were treated as not being ' employees'. The proposition that in the case of such persons the compliance of other Acts or Rules has be made has been thus stated in para 36. "We may assume that for meeting the exigencies of situations it may be possible for the Committee or the Board to appoint a person on ad hoc basis. Such ad hoc employees, however, being not" employees" within the meaning of provisions of the Act and the Regulations, a legal relationship between the employer and the employee would not come into being. As no legal relationship of employer and employee comes into being, evidently, such persons do not derive any status. They a fortiori derive no legal right to continue in service subject, of course, to compliance with the provisions of any other Act or the Rules conferring certain benefits to them." The other Acts and Rules conferring certain benefits to them of which reference was being made in the passage just quoted would undoubtedly include benefits of retrenchment compensation under Section 6N of the U.P. Industrial Disputes Act. The position has been made clear in para 47 of the judgment in the following words" If the employees are workmen within the purview of the U.P. Industrial Disputes Act, they are protected thereunder." It appears that the word 'employee' used in this paragraph has been used in its ordinary meaning and not in the sense of the special definition under the Regulations. Reading together paras 36 and 47, it appears that persons who are not employees under the special definition but are workmen are also entitled to the protection of Section 6N. The position has been made clear in Nagar Mahapalika v. State of U.P. (2006) 2 SAC 273 a decision of the apex court in the following words" An appointment made in violation of the provisions of the Adhiniyam is void. The same however although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purposes of determination of the question whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief ". The validity of the appointment is therefore not a precondition for the applicability of Section 6N.
8. The recent decisions of the apex court hold that putting in continuous service within the meaning of Section 25B does not itself entitle the workman to be regularised in service nor confers upon him any right to permanency. For regularisation of service the existence of a post may be necessary but not a single decision of the apex court has been cited that for the applicability of Section 6N the existence of a post is necessary. At this stage notice may be taken of two decisions of the apex court cited by Sri Mandhyan. In M.P. Housing Board v. Manoj Srivastava , it was held that if there is no post no regularisation could be ordered. In that case the labour court had given its award on the basis that the respondent had worked satisfactorily for six months in terms of a clause in the standing orders and had acquired the right of becoming permanent. It was in this context that the apex court observed that a daily wager does not hold a post unless he is appointed in terms of the Act and the Rules framed thererunder. In M.P. State Agro Industries Development Corporation Ltd. v. S.C. Pandey the labour court had given an award that the workman was entitled to regularisation under the standing orders. It was held by the apex court that his appointment itself was void having been made by the Branch Manager who was not the competent authority. In State of U.P. v. Neeraj Awasthi a case which has been considered above a blanket order was passed by the mandi samiti for termination of the services of all the employees appointed during a particular span of time viz from 1.4.96 to 30.10.97. In the present case however the appointment was made on 19.2.96 a date which does not fall within the period referred to in Neeraj Tripathi's case. The question principally involved in that case was about the jurisdiction of the High Court to issue directions for framing a scheme for regularisation of the employees of the Mandi Samiti. It was held that daily wagers are not employees of the Mandi Samiti in view of the definition of 'employee' in Regulation 2(e) which excludes daily wagers- and work charged and part time employees and therefore there is no question of regularisation of their services. We have seen that a claim for regularisation or permanency has little to do with the applicability of Section 6N. These cases therefore do not help the petitioner.
9. The other cases cited by Sri Mandhyan may now be considered. In Punjab State Electricity Board v. Darabara Singh , the apex court was considering a case of termination of service of a seasonal employee in terms of the Industrial Disputes Act, 1947. The definition of retrenchment under Section 2 (oo) (bb) was applied and it was held that it was an engagement for a specific period and was not a retrenchment. In Municipal Council v. Raj Kumar 2006(3) SCC 81, the definition of retrenchment in Section 2(oo) (bb) was applied. It was held in that case that the respondent himself did not claim that his appointment was made in accordance with the rules. Haryana State F.C.C.W. Store Ltd. v. Ram Niwas and Anr. was a case under the Industrial Disputes Act, 1947 and the definition of retrenchment was considered in the context of Section 2(oo) (bb). These decisions are based on Section 2(oo) (bb) of the Industrial Disputes Act, 1947 and are not applicable as the definition of retrenchment under Section 2(s) of the U.P. Industrial Disputes Act is quite different.
10. In State of M.P. v. Arjun Lal Rajak , it was found that the office in which the workman was posted had been closed and there was also a finding that the workman was gainfully employed. It was held that the daily wager does not hold any post and instead of reinstatement a sum of Rs. 10,000/- was granted as compensation. The decision is distinguishable as the office itself where the workman was appointed was closed. It is well settled that where an office itself has been abolished or where the industry is dead there can be no question of reinstatement.
11. Reliance was placed upon Avadh Narain Pandey v. State of U.P. 2006(6) ADJ 453. In that case the labour court itself had it appears declined the relief of reinstatement on the totality of circumstances including the fact that the services of the workman were not satisfactory. The labour court awarded Rs. 6,000/- as compensation which was raised by the High Court to Rs. 15,000/-. The case was decided on its own facts. The questions which are involved in this case were not involved for consideration there.
12. In Pramod Kumar v. Presiding Officer 2005 (2) UPLBEC 1982 the workman was employed in different departments of the same Bank and it was held relying upon certain decisions of the apex court that different departments would be treated as different employments and the employee could not be given benefit of continuous service under Section 25F of the Act. It was found that the different broken periods in which the workman had worked would not constitute continuous service for the purposes of Section 25F. The case is therefore distinguishable.
13. Youth Hostel Agra v. Presiding Officer, Labour Court, 2006(8) ADJ 525 is also not applicable. In that case it was held that the Youth Hostel was not an Industry. In view of this finding the provisions of Section 6N were inapplicable. The further observations that Section 6N applies only to those workmen in any industry who are properly appointed on a sanctioned post appears to be obiter.
14. Reliance is also placed upon the decision of the apex court in 2006(2) SAC 273, Nagar Mahapalika v. State of U.P. and Ors. That was a case of an employee of U.P. Nagar Mahapalika governed by the provisions of U.P. Nagar Mahapalika Adhiniyam and in that case it was held that though reinstatement with back wages can be granted for non compliance of the provisions of Section 6N but it is not to be granted automatically or as a matter of course. It was found that the respondents were appointed on adhoc basis as apprentices but their appointment was not as per the Adhiniyam. In para 25 of the reports it was observed that the respondents were appointed for assessment work which was periodical in nature and their services could not have been continued even though the requirement was over. In the context of these facts the relief of reinstatement was refused. This case is therefore distinguishable.
15. Himanshu Kumar Vidyarth and Ors. v. State of Bihar and Ors. is not applicable because not only was the appointment found to be de hors the service rules but more importantly It was found that the termination of the services was not retrenchment within the meaning of Section 25F of the Industrial Disputes Act. The case therefore does not apply.
16. In State of U.P. and Ors. v. Sarv Jeet and Anr. (2006 )1 SAC 715 it was held that it was neither proved that the appointment was made against any post nor that the workman had put in continuous service of 240 days and therefore Section 6N was inapplicable.
17. In Kamla Nehru Memorial Hospital, Allahabad v. Presiding Officer, Labour Court and Anr. (2005) 2 SAC 657, the status of the employee as a workman in view of the nature of his duties was itself under challenge and it was held by this Court that the labour court erred in not allowing evidence to be led on the point. No doubt this Court did not rest its decision on that ground and held that the finding of the labour court that the disengagement without notice was violative of Section 6N was erroneous because the proviso to Clause (a) of Section 6N exempts such notice in the case of fixed term appointments but it appears that the question of non payment of retrenchment compensation and its effect was not involved in that case for there is no discussion in the judgment upon that point. It also appears from the judgment that the Hospital had not appointed any one on the post of security incharge in place of the retrenched employee and the job of security work had been entrusted to a private agency. In the present case there is nothing to show that the post of Mandi Sahayak has been abolished
18. On the other hand there are decisions very closely applicable to the facts of the case. In Special Leave Petition No. 4752 of 2004 in Krishi Mandi Utapadan Samity. v. Vimal Kumar Sharma a puller/peon employed in the Mandi Samiti had worked for a period of about one year and eight months on daily wages. His services were terminated without following the procedure under Section 6N. The apex court held that the dispensation of his services was illegal and directed reinstatement. In R.M. Yellati v. Asstt. Engineer 2006 (108) FLR 213 the employee was appointed on daily wages. His services were terminated without following the procedure of Section 25F of the Industrial Disputes Act, 1947. The labour court directed his reinstatement with 50 percent back wages. The Division Bench of the High Court however set aside the award. The apex court allowed the appeal and ordered reinstatement with 50 percent back wages and also directed that his name would be restored on the roll of daily wage employees with notional seniority. In State of Punjab v. Anil Kumar 2007 (113) FLR 946, the respondent had worked as a daily wager for specific periods totalling about three years between 1981 and 1985. The Labour Court ordered his reinstatement with 40 percent back wages. The High Court found that the workman had put in 240 days service and did not interfere. Before the apex court an objection was raised that in view of Section 2(oo) (bb) he was not entitled to reinstatement. The apex court however maintained the order for reinstatement but set aside the order for payment of back wages on the ground that the workman had moved the labour court belatedly after 13 years. These decisions of the apex court are applicable to the facts of this case. They are all cases of daily wagers whose reinstatement was upheld. It may be noticed that all the decisions cited by Mr. Mandhyan with the exception of the constitutional Bench judgment in Uma Devi's case are decisions of two Judges. The decision in Gammon India ( Supra), holding that a retrenchment without payment of retrenchment compensation is void ab initio and the decision in Yellathi's case (supra) in which the apex court reinstated a daily wager with 50 percent back wages are decisions by a bench of three judges. As regards the contention of Mr. Mandhyan that now ten years have elapsed and the workmen cannot be reinstated after such a long period of time, it is sufficient to say that nothing has been shown to indicate that there was delay in the part of the workmen in moving the machinery. The effect of the decision in Gammon India is that the termination of services for non compliance of Section 6N is ab initio void. The effect of Uma Devi's case is that an invalid act gives rise to no legal consequences. No doubt in Uma Devi's case their Lordships were considering the question in the context of the effect of an appointment made de hors the service rules but the principle would have application equally if not with greater force where a termination of services is made de hors the statutory provisions of the Industrial Disputes Act, for the employer cannot take advantage of his own wrong of non compliance of the statutory requirements, Even in Nagar Mahapalika v. State of U.P. (supra) (a decision of two Judges) where the appointment was found to be void the relief for reinstatement was refused not on the ground of the invalidity of the appointment but for other reasons. It was however held that reinstatement cannot be granted as a matter of course. The consequence of applying the decisions in Gammon India and Uma Devi's cases is that there has been no legal termination of the services of the workman and in law the continuity of his services stands maintained. However the relief of reinstatement with declaration that the workman continues in service is a discretionary relief. These may be circumstances which may disentitle the workman to the grant of such relief. There would be such cases where there is inordinate delay on the part of the workman in moving the machinery of law and it would be unjust to thrust his services upon the employer in changed circumstances or where the workman has been gainfully employed and payment of compensation may meet the ends of justice or where the industry is dead or in deep financial trouble. It is with reference to such circumstances that it can be said that reinstatement with continuity of service should not be granted as a matter of course. In the present case there is a finding of the labour court that the workman was not gainfully employed. There is nothing to show that the Mandi Samiti is in financial trouble or running into lasses or that the post of Mandi Sahayak has been abolished. In these circumstances the direction of the labour court to reinstate the workman appears to be just and proper. The petition lacks merit and is dismissed.