JUDGMENT
H.K. Rathod, J.
1. Heard learned advocate Mr. B.S. Supehia for the petitioner and Mr. H.D. Dave, learned AGP for the respondents. In this petition, the petitioner is challenging the award made by the labour court, Palanpur in Reference No. 171 of 1996 dated 29th May, 2000 whereby the labour court has rejected the reference filed by the petitioner workman. In this matter, rule has been issued by this court on 22nd January, 2002 and it was made returnable on 20th February, 2002. In this matter, affidavit in reply has been filed by the respondents and rejoinder thereto has also been filed by the petitioner.
2. During the course of hearing, learned advocate Mr. Supehia has submitted that according to the findings recorded by the labour court on the basis of the documents which were produced by the respondents before the labour court, it is Undisputedly clear that the petitioner workman has worked from 14th March, 1989 to 31st December, 1989, 219 days continuously and from 1st January, 1990 to 31st March, 1990, for a period of sixty days. He has submitted that if the total period of working days is taken into consideration, it would come to 279 days. He has submitted that the labour court has erred in coming to the conclusion that 240 days are required to be completed within one calender year. He has submitted that on the basis of the aforesaid erroneous conclusion, the labour court has recorded the finding that the provisions of section 25F of the Industrial Disputes Act, 1947 have not been followed because there is no question of retrenchment required to be complied with by the respondents. He has submitted that the labour court has specifically observed that the petitioner has not completed 240 days’ continuous work and he has worked for a different period and thus he has not completed continuous service and, therefore, provisions of section 25F of the Industrial Disputes Act, 1947 are not at all applicable. He has relied upon the decision in case of Mohan Lal v. Management of Bharat Electricals Ltd., reported in AIR 1981 SC 1252 and has submitted that if any employee or workman has completed 240 days work during the last 12 months preceding the date of the order of termination, then, he is entitled for the benefits of section 25F of the Industrial Disputes Act, 1947. He has submitted that section 25B is very much clear wherein the term ‘continuous service’ has been defined. Section 25F is also clear that in such circumstances, a workman is entitled to the benefit of these provisions and, therefore, according to him, the labour court has erred in coming to such conclusion and such conclusion drawn by the labour court is contrary to the provisions of law as well as the principles laid down by the apex court in the aforesaid decision. He has submitted that as regards the working days produced by the respondents, there is no dispute between the parties. Service of the petitioner was terminated with effect from 1st April, 1990 and if consider the date of termination 1st April, 1990 and then consider 12 months preceding the date of termination, then, it is clear that the petitioner workman has completed more than 240 days actual work within 12 months preceding the date of termination and, therefore, the labour court ought to have held that there is breach of the provisions of section 25F of the Industrial Disputes Act, 1947 and the action of the respondents is bad for want of compliance of section 25F of the Industrial Disputes Act, 1947. According to him, since the labour court has erred in law and facts in coming to such conclusion, the impugned award rejecting the reference of the petitioner is required to be quashed and set aside.
3. On the other hand, learned Asstt. G.P. Mr. H.D. Dave appearing for the respondent authorities has submitted that the petitioner was working in the office of the Executive Engineer, Rural Road Project Division, Palanpur and the work of the said project has already come to an end and as such, there is no work which can now be offered to the petitioner. He has submitted that the name of the petitioner was never inserted in the Muster Roll as he was working as casual labour. According to him, the petitioner was engaged as daily wager rojamdar and his name can be entered into nominal muster roll as he was engaged as casual worker and his name was not there in such register. He has submitted that according to the rules, the department is empowered to engage workers on casual basis for the purpose of job work and for that, H.R. payment is required to be made under Form No. 28 and accordingly, name of the petitioner was inserted in Form NO. 28 and he was engaged as casual worker for job work of the department and, therefore, the petitioner cannot ask for the reliefs which he has prayed in the reference before the labour court. In light of these submissions, according to him, the labour court was right in coming to the conclusion that the petitioner has not completed 240 days work within one calender year as he was being engaged by the department as and when work was available with the department. According to him, in view of these facts, the labour court was also right in coming to the conclusion that the provisions of section 25F are not applicable and the labour court has not committed any error in recording such findings and then in rejecting the reference and, therefore, this Court should not interfere with the award of the labour court in exercise of the powers under Article 226 and/or 227 of the Constitution of India.
4. I have considered the submissions made by both the learned advocates. I have also perused the impugned award made by the labour court. Upon perusal of the award in question, para 5 in particular, in para 5, page 9 of the award, on the basis of the record produced by the respondent, the labour court has observed that the second party workman has worked for 219 days from 14.3.89 to 31.12.1989 and from 1.1.1990 to 31.3.90, for a period of sixty days. Therefore, it is clear that from 14.3.1989 to 31.3.1990, the petitioner has worked for a period of about 279 days. Now, the date of termination of service of the petitioner is 31st March, 1990. Not only that, in para 7 of the affidavit in reply filed by the respondent, internal page 3 of the affidavit in reply, the deponent has given the working days of the petitioner from 14.3.1989 to 31.3.1990 which is reproduced as under :
“7. I say that the petitioner has worked as under during the period from 14.3.1989 to 31.3.1990.
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Period Total days days Remarks ----------------------- days on not on From To of the duty duty period ------------------------------------------------------------ 14.3.89 20.4.89 38 26 12 21.4.89 20.5.89 30 23 7 21.5.89 20.6.89 31 27 4 21.6.89 20.7.89 20 23 7 21.7.89 20.8.89 31 21 10 21.8.89 20.9.89 31 23 8 21.9.89 20.10.89 30 21 9 21.10.89 20.11.89 31 20 11 21.11.89 20.12.89 30 24 6 21.12.89 31.12.89 11 11 - -------------------------- 293 219 74 ========================== 21.12.89 20.1.90 31 24 7 21.1.90 28.2.90 39 25 14 1.3.90 31.3.90 31 22 9 -------------------------- 101 71 30 --------------------------
5. Therefore, in view of the above chart, in reality, there was not even a single day’s break in the service of the petitioner workman and the petitioner was in continuous service from 14th March, 1989 to 31st March, 1990 and considering both total days of actual working, it would come to 279 days as per para 7 of the affidavit in reply filed on behalf of the respondent. Now, the term ‘continuous service’ has been defined as per section 25B of the Industrial Disputes Act, 1947. As per sub section (1) of section 25B of the Industrial Disputes Act, 1947, a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal or a lock out or a cessation of work which is not due to any fault on the part of the workman. As per sub section (2) of section 25B of the Act, where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under the employer –
(a) for a period of one year if the workman, during a period of twelve calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than
(i) one hundred and ninety days in the case of a workman employed below ground in mine and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months,if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than
(i) ninety five days in the case of a workman employed below ground in a mine and
(ii) one hundred and twenty days in any other case.
6. Meaning thereby, if the workman was not in continuous service within the meaning of sub clause (1) of section 25B of the Act, then, if he has completed 240 days’ continuous service during the period of twelve calender months preceding the date with reference to which the calculations to be made has actually worked under the employer, then, he shall be deemed to be in continuous service. The provisions in this regard are very much clear that 240 days’ actual working during the period of twelve calendar months preceding the date of termination is enough for considering continuity in service. Therefore, looking to the definition of ‘continuous service’ as per section 25B of the Industrial Disputes Act, 1947, it is clear that the petitioner was in continuous service of the respondent for a period of more than 240 days preceding the date of termination. Now, conditions precedent to retrench a workman have been prescribed under section 25F of the Industrial Disputes Act, 1947. As per section 25F of the Act, no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the conditions specified in sub clause (a), (b) and (c) of section 25F are complied with. Therefore, question is whether the workman has worked continuously for a period not less than one year under the employer or not and if the answer is in the affirmative, then, the workman is entitled for the protection under section 25F of the Industrial Disputes Act. Therefore, in the facts and circumstances of the case and also reading section 25F in light of the definition of the term ‘continuous service’ as per section 25B of the Act, the question would be whether the respondent employer has complied with the conditions precedent to retrenchment of the petitioner workman as prescribed under section 25F of the Act or not. Considering these two sections and looking to the facts of the present case, it is clear that the petitioner has worked with the respondent for not less than one year and he has actually worked for a period of 279 days during the one calendar year preceding the date of termination and, thus, the workman has satisfied the ingredients of section 25B of the Industrial Disputes Act, 1947 and, therefore, he is entitled for the protection under section 25F of the Act. This aspect has been considered by the apex court in case of Mohan Lal versus Management of M/s. Bharat Electronics Ltd. reported in AIR 1981 SC 1253. In para 14, 15 and 16, the apex court has observed as under :
“14. We have already extracted Section 25B since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in Surendra Kumar Verma versus Central Government Industrial cum Labour Court, New Delhi (1980) 4 SCC 443 : (AIR 1981 SC 422) Chinnappa Reddy, J., after noticing the amendment and referring to the decision in Sur Enamel and Stamping Works (P) Ltd. case (AIR 1963 SC 1914) held as under (at p.426 of AIR):
“These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year. ”
In a concurring judgment Pathak, J. agreed with this interpretation of section 25-B(2). Therefore, both on principle and on precedent, it must be held that section 25B(2) comprehends a situation where a workman is not in a employment for period of 12 calendar months but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backward from the relevant date i.e. the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25B and Chapter VA.
15. Reverting to the facts of the case, admittedly, the appellant was employed and was on duty from December 6, 1973 to October 19, 1974 when his service was terminated. The relevant date will be the date of termination of service i.e. October 19, 1974. Commencing from that date and counting backwards, admittedly, he had rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within Section 25-B(2)(a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter VA.
16. Appellant has thus satisfied both the eligibility qualifications prescribed in section 25F for claiming retrenchment compensation. He has satisfactorily established that his case is not covered by any of the excepted or excluded categories and he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As precondition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service.”
7. I have considered the ratio laid down by the apex court in the aforesaid decision. Recently also, this aspect has been considered by the apex court that once section 25F has been violated, the order of termination would become ab initio void. Therefore, the view taken by the labour court that the petitioner workman is not entitled to the benefits under section 25F of the Act is absolutely erroneous view and is also contrary to the principles laid down by the apex court. At the time of termination of service, one month’s notice or notice pay in lieu thereof has not been paid and the retrenchment compensation has also not been paid by the respondent to the petitioner. Thus, provisions of section 25F have not been complied with by the respondent and, therefore, order of termination would become non-est. This aspect has also been examined by the apex court in case of Mohan Lal (supra). In para 17 of the report, the apex court has observed as under :
“17. The last submission was that looking to the record of the appellant this court should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance CO. Ltd. v. P.P. Chopra (1979) 3 SCR 343 : (AIR 1970 SC 1401), it was held that the Court before granting reinstatement must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an effective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the Courts in the field of social justice and we do not propose to depart in this case. ”
8. Similarly, recently also, the apex court has considered this aspect in para 16 of the decision in case of Management of M.C.D. v. Prem Chand Gupta reported in AIR 2000 SC 454. Para 16 of the said decision is reproduced as under :
“16. To recapitulate, it is a well established fact on the record of this case that the respondent workman though initially appointed for one year from 5.5.1964 on a temporary post of section officer (civil) was continued in service after expiry of that year. His very appointment order of 5.5.1964 mentioned that he could be considered for confirmation after one year of satisfactory service. Even though he was never confirmed, the appellant corporation did not terminate his services but continued him in service. Not only that but on 1.10.1964 after giving a short break in service and he was reappointed against a vacant post caused by termination of service of another employee. Thus, at least from 1.10.1964, even though in temporary service, he continued to work on a vacant permanent post of section officer (civil) and continued to serve as such for further 18 months upto 29.4.1966 when he was visited with the impugned termination order. By that time, he had completed not less than 240 days of continuous service for one calendar year immediately preceding 29.4.1966 i.e. from 1.4.1965 to 29.4.1966. Consequently, Section 25F of the I.D. Act 1947 got squarely attracted in his case, it reads as follows :
’25-F. Conditions precedent to retrenchment of workman.- no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice.
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay (for every completed year of continuous service) or any part thereof in excess of six months; and
(c) notice in prescribed manner is served on the appropriate Government (or such authority as may be specified by appropriate Government by notification in the Official Gazette.)’
It is not in dispute between the parties that these requirements were not complied with by the appellant corporation while terminating the respondent workman’s service. The Labour Court rightly held accordingly. However, having so held on facts, the labour court found that section 25F would not apply for the reason that the respondent workman’s services were not terminated because of his being an excess staff. The said reasoning of the Labour Court ran parallel to the earlier decisions of this Court which had taken such a view on interpretation of Section 25F But the said line of reasoning no longer held the field in the light of the later decisions of this Court. In the case of The State Bank of India v. Shri N.Sundara Money (1976) 1 SCC 822 : (AIR 1976 SC 1111 : 1976 Lab IC 769), a three Judge Bench of this Court interpreting section 25F read with section 2(oo) of the ID Act, speaking through Krishna Iyer J.in para 9 of the report clearly laid down that in section 2(oo) the word “termination for any reason whatsoever ” is the key word. Whatever the reason, every termination spells retrenchment. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. The said decision of the three Judge Bench was approved by a Constitution Bench of this Court in the case of Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh (1990) 3 SCC 682. In view of this settled legal position, therefore, it must be held that termination of services of the respondent workman on 29.4.1966 which was admittedly not by way of punishment clearly amounted to retrenchment attracting Section 25F of the I.D. Act.”
9. In view of the observations made by the apex court in aforesaid decisions and in the facts of the present case, order of termination of the services of the petitioner is violative of section 25F of the Act and, therefore, it is non est and as a result thereto, the petitioner is entitled for the relief of reinstatement with back wages normally.
10. Now, the question is that once the termination order has been held to be violative of section 25F of the Industrial Disputes Act, 1947 and the petitioner has been held to be entitled for relief of reinstatement, the question that arise is as to whether the petitioner would become entitled to relief of back wages for the intervening period or not. In the facts of the present case, service of the petitioner was terminated on 1st April, 1990. He worked with the respondents upto 31st March, 1990. The dispute was raised by the petitioner on 24th September, 1990 which was referred by the concerned authority to the labour court for adjudication. The matter remained pending before the labour court for a period of about ten years or so and then, on the aforesaid erroneous findings and conclusions, reference was rejected by the labour court and, therefore, the petitioner approached this Court by way of this petition. Thus, more than ten years have gone. For such delay, no fault can be found either with the petitioner or with the respondent. The respondent is a State authority. It is also required to be considered that from 1989 to 1990, the petitioner has actually worked for a period of 279 days and in view of the technical breach of section 25F of the Industrial Disputes Act, 1947, he is becoming entitled for reinstatement. Therefore, the question is that a whether a person who has worked for a period of about one year or so could be granted back wages for such a long period is a question for consideration of this Court. Similar situation was before the apex court in case of Management of M.C.D. versus Prem Chand Gupta reported in AIR 2000 SC 454. In para 18 and 19 of the decision, the apex court has observed as under :
“18. We have now reached the stage for considering appropriate relief to be granted in the light of our findings on point no. 2. Once it is held that termination of the respondent workman on 29.4.1988 was null and void being violative of section 25F of the I.D. Act, the logical consequence would be that he would be entitled to be reinstated in service with continuity and in normal course would be entitled to full back wages. However, in our view on the peculiar facts of this case, it will not be appropriate to grant full back wages to the respondent workman even though he will be entitled to be reinstated in service of the appellant Corporation with continuity and all further consequential benefits on that score, save and except the grant of full back wages, as indicated hereinbelow.
19. The reasons for non granting full back wages from the date of his termination of 29.4.1966 till actual reinstatement pursuant to the present order can now be indicated. Firstly, for no fault of the contesting parties, the litigation has lingered on for more than three decades. The termination order was as early as on 29.4.1966 and after 33 years and more it is being set aside. To saddle the appellant corporation and its exchequer, which is meant for public benefit, with full back wages for entire period would be too harsh to the appellant Corporation. It is the delay in disposal of cases in the Courts that has created this unfortunate situation for both the sides. Respondent workman is also not at fault as he was clamoring for justice for all these years. However, this delay in Court proceedings for no fault of either side permits us not to burden the appellant Corporation, being a public body, with full back wages for the entire period of respondent workman’s unemployment, especially when for no fault of either side actual work could not be taken from the respondent workman by the appellant corporation. It is true that the respondent workman was always willing to work but he could not be permitted to work so long as the termination order stood against him. The Labour Court as well as the learned Single Judge upheld that order. Only the Division Bench set aside that order. This Court at SLP Stage itself while granting leave stayed reinstatement order on 17.11.1997. two more years since elapsed during the pendency of this appeal before this Court. All these factors together point in the direction of not saddling the appellant corporation a public body with the burden of entire full back wages to be granted to the respondent workman after the passage of 33 years since his order of termination. The second reason is that the respondent workman for all these years could not have remained totally unemployed though there is no clear evidence that he was gainfully employed and was so well off that he should be denied complete back wages. But keeping in view the fact that for all these long years fortunately the respondent workman had survived and has still two more years to reach the age of superannuation as we are told, not granting him full back wages on the peculiar facts of this case, would meet the ends of justice. We, therefore, following order.
1. The impugned order of the Division Bench of the High Court in so far as it holds that the termination order of the respondent workman dated 29.4.1966 was violative of rule 5 of the relevant rules is set aside.
2. However, the final order passed by the High Court ordering reinstatement of the respondent workman with continuity of service is upheld on the alternative ground holding termination of services of the respondent workman on 29.4.1966 to be violative of section 25F of the I.D. Act.
3. So far as back wages are concerned, the impugned order of the High Court is modified by directing that the respondent workman will be entitled to get 50 per cent of back wages from the date of his termination i.e. from 29.4.1966 till his actual reinstatement in service of the appellant corporation with continuity of service. The respondent wormkan will also be entitled to all other consequential benefits including increments in the available time scale and revisions of the time scale, if any, and also further service benefits as per the rules and regulations of the appellant Corporation being treated to have been in continuous service of the appellant Corporation from 29.4.1966 all through out till reinstatement. The appellant Corporation shall reinstate the respondent workman with continuity of service within eight weeks from today and will also pay 50 per cent back wages as directed hereinabove within that period. The appellant corporation will grant all other consequential benefits to the respondent workman in light of this judgment. Appeal stands allowed as aforesaid with no order as to costs in the facts and circumstances of the case.”
11. I have heard the learned advocates for both the parties on the aspect of back wages. Both the learned advocates have fairly left it at the discretion of this Court to grant reasonable back wages. Considering the facts and circumstances of the case, I have considered this aspect of the matter. I have also kept in mind that the petitioner herein has worked for about a year or so and thereafter his service has been terminated. He was temporarily engaged and the matter remained pending for about more than ten years before the labour court and then before this Court for no fault either on the part of the petitioner or on the part of the respondent which is a State authority. Therefore, as per my opinion, respondent being a State, should not be saddled with the liability of full back wages for such an intervening period and in view of the principles laid down by the apex court as regards back wages in the aforesaid decision, as per my opinion, it would be just and proper if the respondents are directed to reinstate the petitioner in service with continuity of service and with 50 per cent of the back wages for the intervening period.
12. Accordingly, for the reasons recorded above, this petition is allowed. Award made by the labour court concerned in Reference No. 171 of 1996 dated 29th May, 2000 is hereby quashed and set aside. It is directed to the respondent to reinstate the petitioner with continuity of service with 50 per cent of the back wages for intervening period from the date of termination till the date of actual reinstatement. Respondent is further directed to reinstate the petitioner in service with continuity of service within two months from the date of receipt of copy of this order and to pay the back wages to the petitioner for the intervening period at the rate of 50% per cent within three months from the date of receipt of this order. Said Reference is accordingly allowed in aforesaid terms. Rule is made absolute accordingly with no order as to costs.