MANU/GJ/0631/2020

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Civil Application Nos. 20894 and 21570 of 2017
Decided On: 06.03.2020
Appellants: Balubha Ashabhai Manek and Ors.
Vs.
Respondent: Gujarat Water Supply and Sewarage Board and Ors.
Hon'ble Judges/Coram:
Biren Vaishnav, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Mukesh T. Mishra
For Respondents/Defendant: H.S. Munshaw, D.G. Chauhan and Ronak D. Chauhan
JUDGMENT
Biren Vaishnav, J.
1 . Rule returnable forthwith. Mr. D.G. Chauhan and Mr. H.S. Munshaw, learned
advocates waives service of notice of Rule for the concerned respondents.
2. With the consent of the parties, the matters are taken up for final hearing.
3 . In both these petitions, under Article 226 of the Constitution of India, the
petitioners have prayed for a direction that the respondents be directed to grant them
the benefits of Government Resolution dated 17.10.1988 together with the arrears on
the basis of the respective awards passed by the labour Court granting them the
benefit of reinstatement.
4. Facts of Special Civil Application No. 20894 of 2017 are as under:
4.1. The petitioners were appointed as Daily Wagers with the respondent
establishment in the year 1992. On their services being terminated illegally,
the petitioners raised industrial dispute which was registered as Reference
(LCJ) No. 60 of 1995 and Reference (LCJ) No. 61 of 1995. The labour Court
passed the award dated 24.6.2004, by which, it was directed that the
petitioners be reinstated on their posts without back wages.
4.2. The award was challenged by the respondent-Board by filing Special
Civil Application Nos. 14375 and 14376 of 2004. This Court, by a judgment
and order dated 19.6.2016 rejected both the petitions. The petitioners were
reinstated in service on 26.11.2016.
4.3. A notice was addressed by advocate of the petitioners to the respondent
on 16.7.2017 asking the respondents to comply with the order of the labour
Court by paying full wages from the date of the award i.e. from 24.6.2004 till
26.11.2016. The notice was responded to by the respondent holding that the
petitioners are not entitled to such benefits and also the benefit of the
Government Resolution dated 17.10.1988.
5. Facts of Special Civil Application No. 21570 of 2017 are as under:

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 5.1. The petitioners joined services of the Bhanvad Panchayat in the year
1983. On termination of their services in the year 1989, the petitioners raised
a dispute before the labour Court. Reference (LCB) No. 219 to 226 of 1989
was registered. The labour Court passed an award dated 17.1.2000 directing
the respondent to reinstate the petitioners on their original post with back
wages.
5.2. The Panchayat challenged the award of the labour Court by filing Special
Civil Application No. 6017 of 2000. By an order dated 24.8.2005, this Court
set aside the order of back wages. However, the rest of the award was not
disturbed. The petitioners were reinstated on 26.11.2006. Based on the
award, they have claimed the benefit of a resolution dated 17.10.1988.
6. Mr. T.R. Mishra, learned counsel for the petitioners has appeared on behalf of the
petitioners in both the petitions and submitted as under:
6.1. As far as Special Civil Application No. 20894 of 2017 is concerned, Mr.
Mishra would submit that the petitioners were appointed in 1982 and
reinstated on 26.11.2016. On reading the operative portion of the award, it
was clear that the petitioners were directed to be reinstated on their original
post without back wages. The award specifically did not deny continuity of
service. As far as Special Civil Application No. 21570 of 2017.
6.2. Mr. Mishra would submit that the award specifically stated reinstatement
with back wages. Both the awards clearly indicate that for all purposes, the
petitioners were required to be treated as continuous in service when the
action of the employer in terminating their services was declared as illegal.
He would submit that once there is an award of the reinstatement and, there
is no express denial of continuity, it is inferred that the benefit of continuity
has been so granted. The petitioners in both the petitions, therefore, should
be treated as continuous in service since their date of initial appointment
and, therefore, be entitled to the benefits of the resolution dated 17.10.1988.
7 . Mr. Mishra, would rely on a decision in Special Civil Application No. 7593/2004
dated 24.2.2015 and submit that within 30 days from the date of the award, the
awards become enforceable, therefore, as held by the decision, the petitioners are
entitled to be treated as continued in service from their initial date of appointment.
7.1. Reliance was also placed on a decision in a group of petitions being
Special Civil Application No. 1563 of 1992 and allied matters dated
31.3.2013 in which, this Court though considering the benefits of the
Government Resolution dated 17.10.1988 categorically held that in view of
the decision of this Court in the case of State of Gujarat v. Mahendrakumar
Bhagwandas reported in MANU/GJ/0239/2011 : 2011(2) GLR 1290 (Letters
Patent Appeal No. 958 of 2001 and cognate matters, dated 18.03.2011), the
petitioners were entitled to the benefits of the Government Resolution dated
17.10.1988. The decision was confirmed by the division bench and,
therefore, when orders were placed on record to similarly situated employees
being granted such benefits, who joined subsequent to the petitioners, there
was no reason for the petitioners being denied such benefits.
7.1.1. In support of his submission, Mr. Mishra relied on the following
decisions:
(1) Nandkishore Shravan Ahirrao v. Kosan Industries (P) Ltd. of
Hon'ble Supreme Court decided on 1.1.2020 in Civil Appeal Nos.

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 201-202 of 2020. He relied on the relevant portion of the judgment
to submit that when the labour Court awards the reinstatement,
continuity of service would follow as a matter of law unless
expressly denied.
(2) Letters Patent Appeal No. 174 of 2017 dated 11.7.2018 decided
by the Division Bench of this Court in the case of State of Gujarat v.
Govindbhai Ukabhai Parmar. He would submit that when there was
an award of reinstatement without continuity of service, the Court
relied on a decision of the Hon'ble Supreme Court in the case of
Gurpreet Singh v. State of Punjab reported in MANU/SC/0226/2002 :
2003 SCC (L & S) 20 categorically observed that when there is
specific reference regarding continuity of service, when termination
has been found to be illegal and reinstatement is ordered, the
petitioners are entitled to the benefit of Government Resolution
dated 17.10.1988.
(3) A decision dated 03.12.2018 in Special Civil Application No.
15294 of 2017 in the case of Ashwinbhai Maganbhai Bhalodiya v.
State of Gujarat, wherein this Court held that once the award of the
labour Court directing reinstatement is confirmed, it will be implicit
in such award that continuity is granted.
(4) Vasantika R. Dalia v. Baroda Municipal Corporation reported in
MANU/GJ/0057/1997 : 1997(3) GLR 1879 also was pressed into
service to submit that when the relief of reinstatement is granted and
continuity of service is not specifically denied, the employer cannot
deny the benefit of continuity of service.
(5) Reliance was also placed in the decision of the Director General
ICMR v. D.K. Jain reported in MANU/SC/7249/2007 : 2007 AIR SCW
2408 wherein the concept of "reinstatement was explained."
(6) He also placed reliance on a decision of the Division Bench of
this Court in Letters Patent Appeal No. 306 of 2008 dated 03.05.2018
in the case of Zonal Manager, State Bank of India v. Modi
Rajeshkumar Shantilal for interpretation of Section 25(B) of the
Industrial Disputes Act.
(7) He also placed reliance on decisions of Hon'ble Supreme Court in
the case of Gauri Shanker v. State of Rajasthan reported in
MANU/SC/0455/2015 : 2015(12) SCC 754 and Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya reported in
MANU/SC/0942/2013 : 2013 (10) SCC 324.
(8) He also placed reliance on a decision in the case of Brijesh
Kantilal Somaiya v. Chief Officer of Division Bench, this Court dated
12.03.2018 in Letters Patent Appeal No. 735 of 2017 and other allied
matters, wherein, all these decisions have been considered and when
in the facts of those cases, the learned Single Judge had granted
continuity of service, the Division Bench had categorically held that
once retrenchment is proved to be contrary to law, continuity
automatically must follow.
8. For the respondent in the respective petitions, Mr. D.G. Chauhan, learned counsel
and Mr. H.S. Munshaw have argued.

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 9. Mr. D.G. Chauhan, learned counsel in Special Civil Application No. 20894 of 2017
submitted that when the award of the labour Court is read, it is evident that the
reference was only with respect to the petitioners being granted reinstatement. There
was no relief sought for the benefits of the Government Resolution dated 17.10.1988.
It is well settled that no relief can be granted beyond the terms of reference.
9.1. That the petitioners had worked only for 17 months and 25 months
respectively. After the award dated 24.6.2004, they were reinstated in the
year 2016. They were out of service for a long period of 22 years and,
therefore, cannot get the benefit of that period and be granted the benefit of
Government Resolution dated 17.10.1988.
9.2. Even the issue raised before the labour Court would suggest that dispute
was only with regard to the termination. The award expressly denied
continuity of service. It is now not open for the petitioners to interpret the
award and submit that there is implicit continuity. They have not prayed for
modification of the award. Mr. Chauhan, would distinguish the judgments
cited by Mr. Mishra submitting that the judgments would not apply to the
case on hand, namely those in Special Civil Application No. 7593 of 2004
and Special Civil Application No. 1563 of 1992.
9.3. Relying on Government Resolution dated 17.10.1988, he would draw
the attention of the Court to the condition No. 3 which specifically stated that
for counting the period of service, the number of actual working days have to
be taken into account and being not in service for a period of 22 years from
1994 to 2016, the benefit of the Government Resolution dated 17.10.1988
cannot be granted.
9.4. Mr. Chauhan, in support of his version, relied on a decision of Division
Bench of this Court in Letters Patent Appeal No. 492 of 2016 dated 12.7.2016
in the case of Executive Engineer v. Dudabhai Khemabhai Makwana. Mr.
Chauhan has also relied on following decisions:
(1) Decision of Hon'ble Supreme Court in the case of Rajasthan
S.R.T.C. v. Ladulal Mali reported in MANU/SC/1457/1996 : 1996(8)
SCC 37 and submitted that the executing Court cannot go behind the
decree and, therefore, once there is no express benefit of continuity
of service, petitioners cannot claim continuity.
(2) He relied on A.P. SRTC v. Narsagoud reported in
MANU/SC/0027/2003 : 2003(2) SCC 212 (Para 9 and 10) and
Andhra Pradesh State Road Transport Corporation v. Abdul Kareem
reported in MANU/SC/0448/2005 : 2005(6) SCC 36 to submit that
once there is an award of reinstatement without continuity of
service, that period cannot be treated to be continuous so as to be
made eligible for the benefit of Government Resolution dated
17.10.1988.
(3) Reliance was placed on the decision of Hon'ble Supreme Court in
the case of Rajasthan State Road Transport Corporation v. Shyam
Biharilal Gupta reported in MANU/SC/0552/2005 : 2005(7) SCC 406
to submit that when there is no back wages, that period cannot be
treated as continuous.
(4) In accordance with the decision of State of Gujarat v. PWD
Employees Union reported in MANU/SC/0681/2013 : 2013 SCC 12

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 only when actual number of working days are to be taken same
cannot apply to the benefit of the petitioners.
(5) The judgment of Gurpreet Singh v. State of Punjab reported in
MANU/SC/0226/2002 : 2002 SCC (9) 492 is not binding because it is
only an order.
(6) He has also relied on a decision of Hon'ble Supreme Court in the
case of The State of Gujarat v. PWD & Forest Employees Union dated
15.2.2019 in Civil Appeal Nos. 1684-1686 of 2019 and submitted
that actual number of working days are to be counted.
1 0 . Mr. Munshaw, learned counsel would also support the submission of Mr.
Chauhan and further add that the petitioners of Special Civil Application No. 21570 of
2017 are not entitled to the benefit of Government Resolution dated 17.10.1988.
10.1. Relying on the affidavit, he would submit that the petitioners were
engaged for scarcity relief and were not a permanent employee. He also
relied on a decision dated 12.7.2016 of Division Bench in Letters Patent
Appeal No. 492 of 2016 produced together with the affidavit-in-reply. The
petitioners were out of employment from 1989 to 2016 and such benefit
cannot be included. He further said that the judgments relied upon by Mr.
Mishra annexed with the petition i.e. Special Civil Application No. 7588 of
2004 and in Special Civil Application No. 1162 of 2005 confirmed by the
Division Bench in Letters Patent Appeal No. 553 of 2017 would not apply.
10.2. Considering the submissions made by the respective counsels, reading
both the awards, which are the subject matter of interpretation before this
Court, as far as the award in Special Civil Application No. 20894 of 2017 is
concerned, the same is with regard to the reinstatement without back wages.
In Special Civil Application No. 21570 of 2017, it is with regard to the
reinstatement with back wages. True it is that there is no mention in the
aforesaid awards about continuity of service. Reading of the awards would
indicate that the petitioners had approached the labour Court on their
services being terminated in breach of the provisions of Section 25(F) of the
Industrial Disputes Act. Specific findings of fact have been recorded in the
awards that the petitioners had completed 240 days in each year of service
prior to their termination. This mandated the respondents to follow the
provisions of Section 25(F) of the Act. It is in these facts that the labour
Court directed the respondent-employer to reinstate the workmen.
10.3. The concept of reinstatement has been the subject matter of
interpretation in the decision of the Hon'ble Supreme Court of D.K. Jain
(Supra) wherein the Hon'ble Supreme Court held as under in paragraph No.
11.
1 1 . The expression 'reinstatement' has been defined in 'Advanced
Law Lexicon' by P. Ramanatha Aiyar, (at page 4030) to mean:
"Reinstatement means that a man is put back in his job.
Reinstatement can only arise if a man is dismissed or
removed from service or if otherwise his service has been
terminated and he is brought back to service. Hemanta
Kumar Bhattacherjee v. Union of India,
MANU/WB/0056/1958 : AIR (1958) Cal. 239, 241
[Constitution of India, Art. 311].

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 Therein it is further stated:
"The word 'reinstatement' in the context of Rule 16.5 of the
Punjab Police Rules can refer only to the resumption of
service for the purpose of grant of increments. The said rule
has no bearing on qualifying service for compulsory
premature retirement. Chamba Singh v. State of Punjab,
MANU/SC/0632/1997 : AIR (1997) SC 2455, Service Laws."
Based on its distinction in advance law lexicon what is made out is that
reinstatement can only arise if there is a dismissal or removal. The
termination from service is set aside.
10.4. In the case of Gurpreet Singh (Supra), the Hon'ble Supreme Court was
faced with a situation where on a suit being filed challenging the order of
termination, the Court finds that the termination was bad, the decree was
passed of reinstatement. However, continuity of service was also denied. In
paragraph No. 3 of the decision, the Hon'ble Supreme Court has held as
under:-
"3. Having heard the learned counsel for the parties and on
examining the materials on record, we fail to understand how the
continuity of service could be denied once the plaintiff is directed to
be reinstated in service on setting aside the order of termination. It
is not a case of fresh appointment, but it is a case of reinstatement.
That being the position, direction of the High Court that the plaintiff
will not get continuity of service cannot be sustained and we set
aside the part of the impugned order. So far as the arrears of salary
is concerned, we see no infirmity with the direction which was given
by the lower appellate court taking into account the facts and
circumstances including the fact that the suit was filed after a
considerable length of time. That part of the decree denying the
arrears of salary stands affirmed and this appeal stands allowed in
part to the extent indicated above."
It was categorically held that once there is reinstatement in service and the
order of termination is set aside, continuity of service has always to be
inferred.
10.5. This Court in the case of Vasantika R. Dalia (Supra) where the
petitioner was terminated and on a reference made to the labour Court, the
labour Court had granted reinstatement without back wages. The employer
had come to the Court challenging the order of the labour Court. The petition
was summarily dismissed. Even the employees' petition, claiming back wages
was also not entertained. Since the order of reinstatement was not being
implemented, the workmen had to come to the Court by filing a contempt
petition. The petitioner was reinstated but the wages for the period of delay
were paid. Nothing was said in the award in positive terms with regard to
continuity of service. The Court held that once a relief of reinstatement is
granted and back wages have been denied, there is no relief denying
continuity of service. It is implicit in the award that continuity has been
granted.
10.6. In the two decisions (1) Nandkishore Shravan Ahirrao v. Kosan
Industries (P) Ltd. (Supra) by Hon'ble Supreme Court & another dated
11.7.2018 in Letters Patent Appeal No. 174 of 2017 decided by the Division

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 Bench of this Court in the case of State of Gujarat v. Govindbhai Ukabhai
Parmar (Supra), this Court in Special Civil Application in the case of
Ashwinbhai Maganbhai Bhalodiya (Supra) also took a similar view and the
Court held that the entire service right from the initial date of appointment
needs to be granted giving the benefit of Government Resolution dated
17.10.1988. Paragraph Nos. 4 to 6 of order dated 03.12.2018 is Special Civil
Application No. 15294 of 2017 read as under:
"4. Learned advocate for the petitioner submitted that once the
Labour Court had directed the reinstatement of the petitioner and the
said judgment and award was confirmed by the High Court, implicit
in such direction would be the grant of continuous service. It was
submitted that the continuity of service is not considered for the
petitioner. The reasoning of the authorities, as submitted by the
learned advocate for the petitioner, was erroneous when five years
period is calculated from 05.11.2011 and not from the date of
joining which was required to be considered as continuity was
granted.
4.1. On the other hand, learned Assistant Government Pleader
wanted to submit that though the Labour Court had directed
reinstatement of the petitioner and pursuant to which the petitioner
was reinstated in service, there was no express order by the Labour
Court to treat the services of the petitioner continuous. It was
therefore sought to be justified that the five years period was
considered accordingly and the benefits under resolution dated
17.10.1988 could be extended on that basis only.
5 . The Labour Court in its judgment and award though directed
reinstatement of the petitioner, did not expressly confer the benefits
of continuity of service. Therefore, the moot question is whether the
services of the petitioner could be treated as continuous and on that
basis the benefits of resolution dated 17.10.1988 including the
benefits of pay fixation etc. could be granted to the petitioner.
5.1. In Nanjibhai Madhabhai vs. State of Gujarat, being Special Civil
Application No. 2192 of 2017, decided as per the judgment dated
24.07.2018, the very question was considered namely when the
Labour Court did not explicitly mentioned continuity of service but
the reinstatement was directed, whether the direction of the Labour
Court would meant grant of continuity of service.
5.2. In Vasantika R. Dalia Vs. Baroda Municipal Corporation
[MANU/GJ/0057/1997 : 1998(2) LL J 172], this Court was posed to
interpret the judgment and award of the Labour Court which granted
the relief of reinstatement to the workmen. The relief of backwages
was denied and the relief of continuity of service was not denied
specifically and that in the relief of reinstatement granted, the word
'continuity' was not mentioned. The Court observed to lay down that
"It may be straightaway observed that once the relief of
reinstatement is granted, the continuity of service is a direct
consequence rather inherent in the relief of this nature". It was held
that when the relief of reinstatement was granted and the continuity
of service was not specifically denied, the workman has to be
relegated to the same position as was held by it at the time of

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 termination. When the order of termination was found to be void, the
petitioner, it was held, would be entitled to hold the relief of
reinstatement with continuity where there was no mention of specific
denial to such continuity.
5.3. The Supreme Court in Gurpreet Singh Vs. State of Punjab and
others [MANU/SC/0226/2002 : 2002 (92) FLR 838], held that once
the plaintiff was directed to be reinstated in service upon setting
aside of the order of termination, continuity of service could not be
denied. The Court observed that the case was not of fresh
appointment but it was one of reinstatement and that being the
position, it was observed that the High Court was in error in denying
the continuity of service.
5.4. When the award of the Labour Court had not expressly denied
the continuity is to be interpreted as per the principles of law laid
down by the Supreme Court in Gurpreet Singh (supra), the concept
of continuity could not be distinguished for the purpose of granting
any other service benefits. Learned Assistant Government Pleader
made a failed attempt to submit that the continuity for the purpose
of granting benefits under Resolution dated 17.10.1988 may be
treated differently. Any such distinction would be artificial
distinction.
5.5. Thus and therefore, even though the judgment and award of the
Labour Court had not expressly granted the continuity, at the same
time it did not deny the continuity in any expressed terms. The grant
of continuity would have to be read with the order of reinstatement.
The petitioner would be entitled to be treated continuous in service
upon reinstatement. Resultantly, the petitioner would be entitled to
be granted the benefits of Resolution dated 17.10.1988 accordingly
by reckoning his services as continuous from the date of his initial
appointment.
6. In view of above, the stand of the respondents in calculating five
years and the continuity of service of the petitioner with effect from
the date of judgment and award of the Labour Court and to treat the
completion of five years as on 04.11.2016 for extension of benefits
under Resolution dated 17.10.1988 is based on erroneous
interpretation and application of the judgment and award of the
Labour Court. Once the continuity would flow from the judgment and
award, all the benefits to the petitioner including pay fixation would
be granted to the petitioner in consideration of such continuity from
the beginning of the requisite completion of length of service for the
purpose of resolution dated 17.10.1988 would have to be counted in
that way."
10.7. By the decision dated 11.7.2018, the Division Bench of this Court in
the case of State of Gujarat v. Govindbhai Ukabhai Parmar rendered in
Letters Patent Appeal No. 174 of 2017 relying on the decision of Hon'ble
Supreme Court in the case of Gurpreet Singh (Supra) held as under:
"8. The undisputed fact in the present appeal is that the respondent
workman was terminated from the service in the Year 1988 and his
termination was quashed and set aside by the award dated

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 12.01.2007. The Labour Court had directed the present appellants to
reinstate the present respondent workman without backwages on his
original post, however, no specific reference was made regarding
continuity of service. The Apex Court in the case of Gurpreet Singh
(Supra) has specifically observed that once the termination is set
aside, the workman will be entitled for continuity of service since the
same is not fresh appointment, but it is a case of reinstatement.
Accordingly, the workman was reinstated by the order dated
06.10.2008 on his original post, and thereafter, also, it is undisputed
fact he was conferred the benefit of regular pay scale till he retired
on 13.11.2013 after rendering 5 years of service.
9 . It is no more res integra that, as per Resolution dated
17.10.1988, the workman would be entitled to pension and other
retirement benefits after completion of 10 years of service. In
present case, the termination of the workman is found to be illegal
and he was reinstated in service and was also paid regular pay scale.
Thus, he was forced to remain unemployed for the interregnum
period. The Labour Court, after examining the documents on record,
has given a specific finding that the workman had worked for 12
years before his termination and he had also completed 240 days
service. Thereafter, he was reinstatement on 06.10.2008 and till his
retirement on 30.11.2013, he had completed 5 years. The learned
Single Judge has allowed the writ petition and has only directed the
Pension Fixation Authority to pass appropriate orders of fixation in
accordance with law and it is further directed to forward the papers
in that regard to the Pension Sanctioning Authority, who after receipt
of the same, shall pass appropriate orders. The learned single judge
has only given a direction to the appellants to pass appropriate
orders to fix the pension in accordance with law. This Court does not
find any illegality or infirmity in such directions of passing
appropriate orders for fixing the pension."
10.8. Even the Hon'ble Supreme Court in the case of Nandkishore Shravan
Ahirrao (Supra) held that when there is reinstatement by an award of the
labour Court, continuity of service would follow as a matter of law.
1 1 . When the conjoint purview of these decisions is undertaken, what clearly
emerges is that in a situation where the labour Court awarded reinstatement with or
without back wages, implicit it is, in reading the awards that the labour Court has
come to the conclusion that the termination of the petitioner was ineffective and
since it was in violation of provisions of the Industrial Tribunal Act, the reinstatement
was directed. Continuity, would, therefore naturally follow. Once, continuity is read
into the awards passed by the labour Court, the entire period of service right from
the date of initial appointment, till the date of reinstatement has to be treated as
continuous and uninterrupted.
12. In the case of the petitioners in both these petitions, the contentions raised by
the learned counsels for the respective parties that the petitioners have been out of
service in the interregnum for a period of 22 years and 7 years respectively pales into
insignificance, once continuity has been so implicitly granted by the awards of the
labour Court. Continuity of service has to be read in such award as so held by the
decisions relied and referred hereinabove.
1 3 . The judgments cited by Mr. D.G. Chauhan in the case of Rajasthan S.R.T.C.

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 (Supra) and A.P. SRTC (Supra) would not apply to the facts of the present case. In
these decisions, the terminations were based on the misconduct of such employees.
They were found to be absent from service and, their services were terminated. On
reinstatement, when it came for consideration whether their period of absence are to
be treated for benefit of increment, it was in such context that the Hon'ble Supreme
Court observed in the negative. It was not the case of termination simplicitor in
violation of the provisions of Section 25(F) of the Act. The judgments would,
therefore, not be applicable to the case on hand.
14. The concept of an executing Court going behind the decree, therefore, also in no
manner be found applicable.
1 5 . Coming to the alternative argument of learned counsel Mr. Chauhan and Mr.
Munshaw on interpreting the Government Resolution dated 17.10.1988 and
contention that since for a long period they were out of service, such period cannot
be so counted. This submission also deserves to be rejected.
1 6 . The Government Resolution dated 17.10.1988 for the purposes of granting
benefits for computing the period of treating a workman in continuous service falls
back to support its case on the provisions of Section 25(B) of the Industrial Tribunal
Act. Reading Section 25(B) which is reproduced hereunder would indicate that the
workman shall be deemed to be in continuous service for the period if his service is
uninterrupted. If there is interruption for no fault of his, such interruption cannot be
termed as a 'break in service.' Keeping these provisions in mind, therefore, which
form the basis of granting the benefits of Government Resolution dated 17.10.1988,
the petitioners have to be treated to be in continuous service from their initial dates
of appointment and granted the benefits of the Government Resolution dated
17.10.1988.
"Sec. 25-B. Definition of continuous service.-For the purposes of this
Chapter-
i. 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 authorised 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;
ii. 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 an employer-
(a) for a period of one year, if the workman, during a period
of twelve 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. one hundred and ninety days in the case of a workman
employed below ground in a 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

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 worked under the employer for not less than-
(i) ninety-five days, in the case of workman employed below
ground in a mine; and (ii) one hundred and twenty days, in
any other case.
Explanation:-For the purpose of clause (2), the number of
days on which a workman has actually worked under an
employer shall include the days on which-
(i) he has been laid-off under an agreement or as permitted
by standing orders made under the Industrial Employment
(Standing Orders) Act, 1946 (20 of 1946), or under the Act
or under any other law applicable to the industrial
establishment;
(ii) he has been on leave with full wages, earned in the
previous years;
(iii) he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment; and
(iv) in the case of a female, she has been on maternity
leave; so, however, that the total period of such maternity
leave does not exceed twelve weeks."
17. The decision in the case of Dudabhai Khemabhai Makwana (Supra) of Division
Bench in Letters Patent Appeal No. 492 of 2016 set out by Mr. Munshaw and Mr.
Chauhan is therefore not applicable.
18. The Division Bench of this Court in the case of Brijesh Kantilal Somaiya (Supra)
had an occasion to deal with the decisions rendered in the case of Gauri Shanker
(Supra) and Deepali Gundu Surwase (Supra) in context when there is illegal
termination, continuity of service can be denied. The relevant portion (Paragraph
Nos. 9 to 9.7) of the decision dated 12.03.2018 in Letters Patent Appeal No. 735 of
2017 read as under:
"9 Heard learned counsels for the parties and perused the record of case.
9.1. In the case of Hari Nandan Prasad [supra], the Apex Court observed as
under:
"It is clear from the reading of the aforesaid judgments that the
ordinary principle of grant of reinstatement with full back wages,
when the termination is found to be illegal is not applied
mechanically in all cases. While that may be a position where
services of a regular/permanent workman are terminated illegally
and/or malafide and/or by way of victimization, unfair labour
practice etc. However, when it comes to the case of termination of a
daily wage worker and where the termination is found illegal
because of procedural defect, namely in violation of Section 25F of
the Industrial Disputes Act, this Court is consistent in taking the view
in such cases reinstatement with back wages is not automatic and
instead the workman should be given monetary compensation which
will meet the ends of justice. Rationale for shifting in this direction is

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 obvious."
9.2. With regard to applicability of law laid in the case of Umadevi vs.
Secretary, State of Karnataka [MANU/SC/1918/2006 : (2006)4 SCC 1],
applicability of above decision of the Constitution Bench of the Apex Court
was considered in the case of Maharashtra State Road Transport case [AIR
2007 SC 2776] that decision in the case of Umadevi [supra] would not be
binding to industrial or labour courts and in the context of submissions made
by learned counsel for the employer referring to another judgment in the
case of U.P. Power Corporation vs. Bijli Mazdoor Sangh & Ors.
MANU/SC/7304/2007 : (2007) 5 SCC 755 whereby law laid down in the case
of Umadevi [supra] equally applies to Industrial Tribunal and Labour Court,
the Apex Court in para 22 relied on underline message contained in Umadevi
[supra] to the effect that regularization of a dailywager, who has not been
appointed after undergoing the proper selection procedure etc. was
impermissible as it was violative of Article 14 of the Constitution of India and
this principle predicated on Article 14 would apply to the industrial tribunal
as well. However, any such underline message in the case of Umadevi would
not deter the Industrial Tribunal/Labour Court from issuing such direction,
which the industrial/labour courts otherwise possess, having regard to the
provisions of the ID Act, 1947 specifically conferring such powers. Then in
the context of unfair practice under Items 5 to 9 of the Schedule IV to the
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 [MRTU and PULP Act] pari materia of which Schedule V of
ID Act, 1947 under Section 2(ra) of ID Act, 1947 pertaining to Unfair Labour
Practices, law laid down about powers of the Industrial Court of first in
deciding the complaint and issuing direction so conferred under Sections 30
and 32 of the MRTU & PULP Act were wider and affirmative. Barring the
power to direct the authorities to create posts even issuance of order of
permanency of workers, who have been victims of unfair labour practice on
the part of the employer under Item 6 of Schedule IV of the MRTU & PULP
Act held to be unaffected by Umadevi [supra] provided unfair labour practice
on the part of the employer is established. Thereafter, in para 29, the Apex
Court reconciled the law laid down in both the cases U.P. Power Corporation
[supra] and Umadevi [supra] and held that law laid down in those cases is
not contradictory to each other, but at the same time powers that may be
exercised by the Industrial/Labour courts are subject to exercise of sound
discretion in a fact situation for the relief in question, the Apex court found
qua appellant No. 2, who was not given benefit of circular dated 06.05.1987
though similarly situated employees were given the benefit including
regularization, and he was declared to be entitled to receive such benefits.
9.3. In another decision on the same line in the case of Bharat Sanchar
Nigam Limited [supra], termination of service of workman was found without
compliance of Section 25F of the ID Act, 1947 it was held that principle of
grant of reinstatement with full backwages, when termination was found
illegal ordinarily applies but such principal is not to be applied mechanically
in all cases and may be applied where services of regular /permanent
workman are terminated illegally, malafide or by way of victimization, by
applying unfair labour practice, but in case of services of dailywagers who
are terminated illegally for some procedural defect monetary compensation
will be just relief and not reinstatement with backwages as such employee
has no right to seek regularization and lumpsum compensation can be
awarded depending on facts and circumstances of each case.

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 9.4. Reliance is also placed on the decision of the Apex Court in the case of
Sudarshan Rajpoot [supra] where the Apex Court agreed with law laid down
in the case of Hari Nandan Prasad [supra] and also in the case of
Maharashtra State Road Transport Corporation [supra] and relief of
reinstatement, backwages and continuity of service would follow only in the
cases where unfair labour practice is established on the part of the employer.
In this judgment, the Apex Court almost considered all such decisions on the
point right from Bharat Bank Ltd. v. Employees [MANU/SC/0030/1950 : AIR
1950 SC 188] to Hari Nandan Prasad [supra]. The Apex Court mainly
concerned with the relationship between employer and employee whether it
was permanent or contractual and it was found that the workman was
working on permanent basis and was not contractual employee and junior
working on permanent basis were continued and permanent basis and further
considering the provisions of U.P. Industrial Disputes Act, 1947 and Section
6N providing conditions precedent to retrenchment of workman and also
addressed to unfair practice and scope of judicial review and burden of
proof, has held that it was an employer to justify termination of service. In
paras 25, 25.1 and 25.2 of the above judgment the Apex Court referred to
the case of Hari Nandan Prasad [supra] and noticed as under:
"25 This Court in the later judgment in the case of Hari Nandan
Prasad v. Food Corporation of India, after adverting to the law laid
down in U.P. Power Corpn. Ltd. v. Bijli Mazdoor Sangh and
Maharashtra SRTC wherein Uma Devi's case is adverted to in both
the cases, held that on a harmonious reading of the two judgments,
even when there are posts available, in the absence of any unfair
labour practice the Labour Court cannot give direction for
regularisation only because a worker has continued as daily-wage
worker/ad hoc/temporary worker for number of years. Further, such
a direction cannot be given when the worker concerned does not
meet the eligibility requirement of the post in question as per the
recruitment rules.
25.1. It was held at para 32 in Hari Nanda Prasad case as under:"
32. However, the Court in Maharashtra SRTC case also found that
the factual position was different in the case before it. Here the post
of cleaners in the establishment were in existence. Further, there
was a finding of fact recorded that the Corporation had indulged in
unfair labour practice by engaging these workers on
temporary/casual/daily-wage basis and paying them paltry amount
even when they were discharging duties of eight hours a day and
performing the same duties as that of regular employees."
25.2. Further, Hari Nandan Prasad [MANU/SC/0103/2014 : (2014)7 SCC
190] referred at para 36, LIC v. D.J. Bahadur [MANU/SC/0305/1980 :
(1981)1 SCC 315] is extracted a under: [Hari Nandan Prasad case]
"36......"22. The Industrial Disputes Act is a benign measure which
seeks to preempt industrial tensions, provide the mechanics of
dispute resolutions and set up the necessary infrastructure, so that
the energies of the partners in production may not be dissipated in
counterproductive battles and the assurance of industrial justice may
create a climate of goodwill." [D.J. Bahadur case, SCC P. 334, per
Krishna Iyer, J.] In order to achieve the aforesaid objectives, the

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 Labour Courts/Industrial Tribunals are given wide powers not only to
enforce the rights but even to create new rights, with the underlying
objective to achieve social justice. Way back in the year 1950 i.e.
immediately after the enactment of Industrial Disputes Act, in one of
its first and celebrated judgment in the case of Bharat Bank Ltd. v.
Employees of Bharat Bank Ltd. [MANU/SC/0030/1950 : AIR 1950 SC
188] this aspect was highlighted by the Court observing as under:
[AIR P. 209, PARA 61]
"61. ....... In settling the disputes between the employers
and the workmen, the function of the tribunal is not confined
to administration of justice in accordance with law. It can
confer rights and privileges on either party which it
considers reasonable and proper, though they may not be
within the terms of any existing agreement. It has not
merely to interpret or give effect to the contractual rights
and obligations of the parties. It can create new rights and
obligations between them which it considers essential for
keeping industrial peace."
9.5. The Apex Court, referring to its earlier decision in the case of Deepali
Gundu Surwase [supra] with respect to reinstatement, backwages and other
consequential benefits to be awarded in favour of workman, in para 32 held
as under:
"32 Further, it is important for us to examine another aspect of the
case on hand with respect to reinstatement, backwages and the other
consequential benefits to be awarded in favour of the appellant
workman. In the case of Deepali Gundu Surwase [supra] v. Kranti
Junior Adhyapak Mahavidyalaya ]MANU/SC/0942/2013 : (2013)10
SCC 324], after referring to three Judge Bench Judgments with
regard to the principle to be followed by the Labour Courts/Industrial
Tribunals to award backwages if order of termination/dismissal is set
aside, law has been laid down in this regard by this Court as under:
[SCC p. 344, para 22] "22 The very idea of restoring an employee to
the position which he held before dismissal or removal or
termination of service implies that the employee will be put in the
same position in which he would have been but for the illegal action
taken by the employer. The injury suffered by a person, who is
dismissed or removed or is otherwise terminated from service cannot
easily be measured in terms of money. With the passing of an order
which has the effect of severing the employer employee relationship,
the latter's source of income gets dried up. Not only the concerned
employee, but his entire family suffers grave adversities. They are
deprived of the source of sustenance. The children are deprived of
nutritious food and all opportunities of education and advancement
in life. At times, the family has to borrow from the relatives and
other acquaintance to avoid starvation. These sufferings continue till
the competent adjudicatory forum decides on the legality of the
action taken by the employer. The reinstatement of such an
employee, which is preceded by a finding of the competent
judicial/quasi judicial body or Court that the action taken by the
employer is ultra vires the relevant statutory provisions or the
principles of natural justice, entitles the employee to claim full back

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 wages. If the employer wants to deny back wages to the employee
or contest his entitlement to get consequential benefits, then it is for
him/her to specifically plead and prove that during the intervening
period the employee was gainfully employed and was getting the
same emoluments. Denial of back wages to an employee, who has
suffered due to an illegal act of the employer would amount to
indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages
including the emoluments. Therefore, keeping in mind the principles
laid down by this Court in the above case, we are of the opinion that
the appellant workman should be paid full backwages by the
respondent Corporation."
9.6. That law on sections 2(oo), 25F and 25B is no more res integra in view
of judgment of the Apex Court in the case of Mohan Lal v. The Management
of M/s. Bharat Electronics Ltd. [MANU/SC/0327/1981 : AIR 1981 SC 1253] in
which the Apex Court extensively considered about the same. Paras 6 to 14
of the above judgment, read as under:
"6 If on October 19, 1974, the appellant was not on probation and
assuming maximum in favour of the respondent that he was a
temporary employee, could termination of his service. even
according to the respondent, not as and by way of punishment but a
discharge of a temporary servant, constitute retrenchment within the
meaning of section 2(oo), is the core question. Section 2(oo) reads
as under:
"2(oo) "retrenchment" means the termination by the
employer of the service of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by way
of disciplinary action, but does not include (a) voluntary
retirement of the workman;
or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation
in that behalf;
or
(c) termination of the service of a workman on the ground of
continued ill health."
7. Niceties and semantics apart, termination by the employer of the
service of a workman for any reason whatsoever would constitute
retrenchment except in cases excepted in the section itself. The
excepted or excluded cases are where termination is by way of
punishment inflicted by way of disciplinary action, voluntary
retirement of the workman, retirement of the workman on reaching
the age of superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation in that
behalf, and termination of the service of a workman on the ground of
continued ill-health. It is not the case of the respondent that
termination in the instant case was a punishment inflicted by way of

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 disciplinary action. If such a position were adopted, the termination
would be ab initio void for violation of principle of natural justice or
for not following the procedure prescribed for imposing punishment.
It is not even suggested that this was a case of voluntary retirement
or retirement on reaching the age of superannuation or absence on
account of continued ill-health. The case does not fall under any of
the excepted categories. There is thus termination of 525 service for
a reason other than the excepted category. It would indisputably be
retrenchment within the meaning of the word as defined in the Act.
It is not necessary to dilate on the point nor to refer to the earlier
decisions of this Court in view of the later two pronouncements of
this Court to both of which one of us was a party. A passing
reference to the earliest judgment which was the sheet anchor till the
later pronouncements may not be out of place. In Hariprasad
Shivshankar Shukla v. A.D. Divikar, MANU/SC/0069/1956 : 1957
SCR 121: (AIR 1957 SC 121] after referring to Pipraich Sugar Mills
Ltd. v. Pipraich Sugar Mills Mazdoor Union, MANU/SC/0064/1956 :
1956 SCR 872: (AIR 1957 SC 95) a Constitution Bench of this Court
quoted with approval the following passage from the aforementioned
case (at page 126 of AIR):
"But retrenchment connotes in its ordinary acceptation that
the business itself is being continued but that a portion of
the staff or the labour force is discharged as surplus age and
the termination of services of all the workmen as a result of
the closure of the business cannot therefore be properly
described as retrenchment."
This observation was made in the context of the closure of an
undertaking and being conscious of this position, the question of the
correct interpretation of the definition of the expression
'retrenchment' in section 2(oo) of the Act was left open. Reverting to
that question, the view was reaffirmed but let it be remembered that
the two appeals which were heard together in Shukla's case were
cases of closure, one Barsi Light Railway company Ltd., and another
Shri Dinesh Mills Ltd., Baroda. With specific reference to those
cases, in State Bank of India v. Sundara Money,
MANU/SC/0315/1976 : (1976)3 SCR 160:
(MANU/SC/0315/1976 : AIR 1976 SC 1111) Krishna Iyer, J. speaking
for a three Judge bench interpreted the expression 'termination ....
for any reason whatsoever' as under (at page 1114 of AIR):
"A breakdown of S. 2(oo) unmistakably expands the semantics of
retrenchment. 'Termination...for any reason whatsoever' are the key
words.
Whatever the reason, every termination spells retrenchment. So, the
sole question is has the employee's service been terminated? Verbal
apparel apart, the substance is decisive. A termination takes place
where a term expires either by the active step of the master of the
running out of the stipulated term. To protect the weak against the
strong this policy of comprehensive definition has been effectuated.
Termination embraces not merely the act of termination by the
employer, but the fact of termination howsoever produced. May be,

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 the present may be a hard case, but we can visualise abuses by
employers, by suitable verbal devices, circumventing the armour of
Section 25F and section 2(oo). Without speculating on possibilities,
we may agree that 'retrenchment' is no longer terra incognita but
area covered by an expansive definition. It means 'to end, conclude,
cease'. In the present case the employment ceased, concluded,
ended on the expiration of nine days automatically may be, but
cessation all the same. That to write into the order of appointment
the date of termination confers no moksha from section 25F(b) is
inferable from the proviso to section 25F(1). True, the section
speaks of retrenchment by the employer and it is urged that some
act of volition by the employer to bring about the termination is
essential to attract section 25F and automatic extinguishment of
service by effluxion of time cannot be sufficient."
It would be advantageous to refer to the facts of that case to
appreciate the interpretation placed by this Court on the relevant
section. State Bank of India appointed the respondent by an order of
appointment which incorporated the two relevant terms relied upon
by the Bank at the hearing of the case. They were: (I) the
appointment is purely a temporary one for a period of 9 days but
may be terminated earlier, without assigning any reason therefor at
the Bank's discretion; (ii) the employment, unless terminated earlier,
will automatically cease at the expiry of the period i.e. 18.11.1972.
It is in the context of these facts that the Court held that where the
termination was to be automatically effective by a certain date as set
out in the order of appointment it would nonetheless be a
retrenchment within the meaning section 2(oo) and in the absence of
strict compliance with the requirements of section 25F, termination
was held to be invalid. Continuing this line of approach, in Hindustan
Steel Ltd. v. The Presiding Officer, Labour Court, Orissa and Ors., a
bench of three judges examined the specific contention that the
decision in Sundara Money's case runs counter to the construction
placed on that section by a Constitution Bench and, therefore, the
decision is per incuriam. This Court analysed in detail Shukla's case
and Sundara Money's case and ultimately held that the Court did not
find anything in Shukla's case which is inconsistent with what has
been held in Sundara Money's case. In reaching this conclusion it
was observed that in Shukla's case the question arose in the context
of closure of the whole of the undertaking while in Hindustan Steel's
case and Sundara Money's case the question was not examined in
the context of closure of whole undertaking but individual
termination of service of some employees and it was held to
constitute retrenchment within the meaning of the expression. This
question again cropped up in Santosh Gupta v. State Bank of Patiala.
Rejecting the contention for reconsideration of Sundara Money's case
on the ground that it conflicted with a Constitution Bench decision in
Shukla's case and adopting the ratio in Hindustan Steel's case that
there was nothing in the two aforementioned decisions which is
inconsistent with each other and taking note of the decision in Delhi
Cloth and General Mills Ltd. v. Shambu Nath Mukerjee wherein this
Court had held that striking off the name of a workman from the
rolls by the management was termination of service which was
retrenchment within the meaning of section 2(oo), the Court held
that discharge of the workman on the ground that she had not

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 passed the test which would enable her to obtain confirmation was
retrenchment within the meaning of section 2(oo) and, therefore, the
requirements of section 25F had to be complied with. It was pointed
out that since the decision in Shukla's case, the Parliament stepped
in and introduced section 25FF and section 25FFF by providing that
compensation shall be payable to workman in case of transfer or
closure of the undertaking, as if the workmen had been retrenched.
The effect of the amendment was noticed as that every case of
termination of service by act of employer even if such termination
was as a consequence of transfer or closure of the undertaking was
to be treated as 'retrenchment' for the purposes of notice,
compensation, etc. The Court concluded as under:
"Whatever doubts might have existed before Parliament
enacted Sections 25FF and 25FFF about the width of section
25F there cannot be any doubt that the expression
'termination of service for any reason whatsoever' now
covers every kind of termination of service except those not
528 expressly provided for by other provisions of the Act
such as sections 25FF and 25FFF." Reverting to the facts of
this case, termination of service of the appellant does not
fall within any of the excepted, or to be precise, excluded
categories. Undoubtedly therefore the termination would
constitute retrenchment and by a catena of decisions it is
well settled that where prerequisite for valid retrenchment as
laid down in section 25F has not been complied with,
retrenchment bringing about termination of service is ab
initio void. In State of Bombay and Ors. v. The Hospital
Mazdoor Sabha and Ors., this Court held that failure to
comply with the requirement of section 25F which prescribes
a condition precedent for a valid retrenchment renders the
order of retrenchment invalid and inoperative. In other
words, it does not bring about a cessation of service of the
workman and the workman continues to be in service. This
was not even seriously controverted before us.
10. It was, however, urged that section 25F is not attracted in this
case for an entirely different reason. Mr. Markendaya contended that
before section 25F is invoked, the condition of eligibility for a
workman to complain of invalid retrenchment must be satisfied.
According to him unless the workman has put in continuous service
for not less than one year his case would not be governed by section
25F. That is substantially correct because the relevant provision of
section 25F provides as under:
"25F. "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;
Provided that no such notice shall be necessary if the
retrenchment is under an agreement which specifies a date

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 for the termination of service;
(b) the workman has been paid, at the time of retrenchment,
compensation which shall be equivalent of fifteen days'
average pay (for every completed year of continuous
service) or any part thereof in excess of six months;
and
(c) notice in the prescribed manner is served on the
appropriate Government (or such authority as may be
specified by the appropriate government by notification in
the Official Gazette)."
Before a workman can complain of retrenchment being not
in consonance with section 25F, he has to show that he has
been in continuous service for not less than one year under
that employer who has retrenched him from service. Section
25B is the dictionary clause for the expression 'continuous'.
It reads as under;
"25B (1) a workman shall be paid 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 authorised leave or an accident or a
strike which is not illegal, or a lockout or a cessation of
work which is not due to any fault on the part of the
workman;
(2) 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 an employer(a) for a period of one year, if the
workman, during a period of twelve 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) one hundred and ninety days in the case of a
workman employed below ground in a 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.
Explanation: For the purposes of clause (2), the number of
days on which a workman has actually worked under an
employer shall include the days on which (i) he has been
laid off under an agreement or as permitted by standing
orders made under the Industrial Employment (Standing
Orders) Act, 1946, or under this Act or under any other law
applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the
previous years;

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 (iii) he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment; and
(iv) in the case of a female, she has been on maternity
leave; so, however, that the total period of such maternity
leave does not exceed twelve weeks.
11. Mr. Markendaya contended that clauses (I) and (2) of
section 25B provide for two different contingencies and that
none of the clauses is satisfied by the appellant. He
contended that subsection (I) provides for uninterrupted
service and subsection (2) comprehends a case where the
workman is not in continuous service. The language
employed in subsections (1) and (2) does not admit of this
dichotomy. Subsections (1) and (2) introduce a deeming
fiction as to in what circumstances a workman could be said
to be in continuous service for the purposes of Chapter VA.
Subsection (1) provides a deeming fiction in that where a
workman is in service 531 for a certain period he shall be
deemed to be in continuous service for that period even if
service is interrupted on account of sickness or authorised
leave or an accident or a strike which is not illegal or a
lockout or a cessation of work which is not due to any fault
on the part of the workman. Situations such as sickness,
authorised leave, an accident, a strike not illegal, a lockout
or a cessation of work would ipso facto interrupt a service.
These interruptions have to be ignored to treat the workman
in uninterrupted service and such service interrupted on
account of the aforementioned causes which would be
deemed to be uninterrupted would be continuous service for
the period for which the workman has been in service. In
industrial employment or for that matter in any service,
sickness, authorised leave, an accident, a strike which is not
illegal, a lockout and a cessation of work not due to any
fault on the part of the workman, are known hazards and
there are bound to be interruptions on that account.
Subsection (I) mandates that interruptions therein indicated
are to be ignored meaning thereby that on account of such
cessation an interrupted service shall be deemed to be
uninterrupted and such uninterrupted service shall for the
purposes of Chapter VA be deemed to be continuous service.
That is only one part of the fiction.
12. Subsection (2) incorporates another deeming fiction for
an entirely different situation. It comprehends a situation
where a workman is not in continuous service within the
meaning of subsection (1) for a period of one year or six
months, he shall be deemed to be in continuous service
under an employer for a period of one year or six months,
as the case may be, if the workman during the period of 12
calendar months just preceding the date with reference to
which calculation is to be made, has actually worked under
that employer for not less than 240 days. Subsection (2)
specifically comprehends a situation where a workman is not

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 in continuous service as per the deeming fiction indicating in
subsection (1) for a period of one year or six months. In
such a case he is deemed to be in continuous service for a
period of one year if he satisfies the conditions in clause (a)
of subsection (2). The conditions are that commencing the
date with reference to which calculation is to be made, in
case of retrenchment the date of retrenchment, if in a period
of 12 calendar months just preceding such date the
workman has rendered service for a period of 240 days, he
shall be deemed to be in continuous service for a period of
one year for the purposes of Chapter VA. It is not necessary
for the purposes of subsection (2) (a) that the workman
should be in service for a period of one year. If he is in
service for a period of one year and that if that service is
continuous service within the meaning of subsection (1) his
case would be governed by subsection (1) and his case need
not be covered by subsection (2). Subsection (2) envisages
a situation not governed by subsection (1). And subsection
(2) provides for a fiction to treat a workman in continuous
service for a period of one year despite the fact that he has
not rendered uninterrupted service for a period of one year
but he has rendered service for a period of 240 days during
the period of 12 calendar months counting backwards and
just preceding the relevant date being the date of
retrenchment. In other words, in order to invoke the fiction
enacted in subsection 2(a) it is necessary to determine first
the relevant date, i.e., the date of termination of service
which is complained of as retrenchment. After that date is
ascertained, move backward to a period of 12 months just
preceding the date of retrenchment and then ascertain
whether within the period of 12 months, the workman has
rendered service for a period of 240 days. If these three
facts are affirmatively answered in favour of the workman
pursuant to the deeming fiction enacted in subsection 2(a) it
will have to be assumed that the workman is in continuous
service for a period of one year and he will satisfy the
eligibility qualification enacted in section 25F. On a pure
grammatical construction the contention that even for
invoking subsection (2) of section 25B the workman must be
shown to be in continuous service for a period of one year
would render subsection (2) otiose and socially beneficial
legislation would receive a set back by this impermissible
assumption. The contention must first be negatived on a
pure grammatical construction of subsection (2). And in any
event, even if there be any such thing in favour of the
construction, it must be negatived on the ground that it
would render subsection (2) otiose. The language of
subsection (2) is so clear and unambiguous that no
precedent is necessary to justify the interpretation we have
placed on it. But as Mr. Markandaya referred to some
authorities, we will briefly notice them.
1 3 . In Sur Enamel and Stamping Works (plaintiff) Ltd. v.
Their Workmen, MANU/SC/0158/1963 : (1964)3 SCR 616:

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 (MANU/SC/0158/1963 : AIR 1963 SC 1914) referring to
Section 25B as it then stood read with Section 2(eee) which
defined continuous service, this court held as under (at p.
1917 of AIR):
"The position therefore is that during a period of
employment for less than 11 calendar months these two
persons worked for more than 240 days. In our opinion that
would not satisfy the requirement of section 25B. Before a
workman can be considered to have completed one year of
continuous service in an industry it must be shown first that
he was employed for a period of not less than 12 calendar
months and, next that during those 12 calendar months had
worked for not less than 240 days. Where, as in the present
case, the workmen have not at all been employed for a
period of 12 calendar months it becomes unnecessary to
examine whether the actual days of work numbered 240
days or more. For, in any case, the requirements of section
25B would not be satisfied by the mere fact of the number of
working days being not less than 240 days." If section 25B
had not been amended, the interpretation which it received
in the aforementioned case would be binding on us.
However, section 25B and section 2(eee) have been the
subject-matter of amendment by the Industrial Disputes
(Amendment) Act, 1964. Section 2(eee) was deleted and
section 25B was amended. Prior to its amendment by the
1964 amendment Act, section 25B read as under:
"For the purposes of ss. 25C and 25F a workman who during
the period of 12 calendar months has actually worked in an
industry for not less than 240 days, shall be deemed to have
completed one year of continuous service in the industry."
1 4 . 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 and Ors. v. Central Government Industrial-cum-
Labour Court, New Delhi, MANU/SC/0316/1980 : (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
(MANU/SC/0158/1963 : 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 534 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

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 have been in the service of the employer for one
whole year."
In a concurring judgment Pathak J. agreed with this
interpretation of section 25B(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 employment for a 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 backwards 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.
[emphasis supplied]
9.7. The above judgment still holds the field and the Apex Court reiterated
the above, in the case of Surendranagar District Panchayat v. Dahyabhai
Amarsinh [MANU/SC/1548/2005 : (2005)8 SCC 750] and Gauri Shanker
[supra]. In the case of Gauri Shanker [supra], the Apex Court revisited all
earlier decisions in the cases of [1] Jasmer Singh v. State of Haryana
[MANU/SC/0026/2015 : (2015)4 SCC 458], [2] Gauri Shanker v. State
[MANU/RH/0093/2014], State of Rajasthan v. Gauri Shanker [WP (C) No.
4253 of 2002, order dated 18.11.2013], [4] Harjinder Singh v. Punjab State
Warehousing Corpn. [[MANU/SC/0060/2010 : (2010)3 SCC 192], [5] Madan
Pal Singh v. State of U.P. [[MANU/SC/0012/2000 : (2000)1 SCC 683], [6],
Samishta Dube v. City Board, Etawah [MANU/SC/0144/1999 : (1999)3 SCC
14], [7] H.D. Singh v. RBI [MANU/SC/0217/1985 : (1985)4 SCC 201], [8]
Gopal Krishnaji Ketkar v. Mohd. Haji Latif [MANU/SC/0168/1969 : AIR 1968
SC 1413], [9] Biltu Ram v. Jainandan Prasad [Civil Appeal No. 941 of 1965],
[10] Syed Yakoob v. K.S. Radhakrishnan [MANU/SC/0184/1963 : AIR 1964
SC 477], [11] State of Mysore v. Workers of Gold Mines
[MANU/SC/0110/1958 : AIR 1958 SC 923] and held that nonproduction of
muster rolls by the employer, adverse inference can be drawn and that scope
of judicial review i.e. interference under Article 226 and 227 of the
Constitution of India, High Court erred in interfering with the award of
reinstatement and future salary. In the facts of these appeals also, findings
of the Labour Court are supported by evidence with sufficient and cogent
reasons and the writ court had no reason and material on record to persuade
and convince the this court to differ with and set aside the findings of the
Labour Court. Once such findings of the Labour Court are held not to be
interfered with, consequently taking away continuity and/or backwages by
the learned Single Judge is not sustainable. The Apex Court in paras 20, 22,
23 and 24 held as under:
"20 It is not in dispute that the workman was employed with the
respondent Department in the year 1987 and on the basis of material
evidence adduced by both the parties and in the absence of the non-
production of muster rolls on the ground that they are not available,
which contention of the respondent Department is rightly not
accepted by the Labour Court and it has recorded the finding of fact
holding that the workman has worked from 1.1.1987 to 1.4.1992.
The Labour Court has drawn adverse inference with regard to non

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 production of muster rolls maintained by them, in this regard, it
would be useful to refer to the judgment of this Court in the case of
Gopal Krishnaji Ketkar v. Mohd Haji Latif & Ors.
[MANU/SC/0168/1969 : AIR 1968 SC 1413] wherein it was held
thus: [AIR p. 1416, para 5]:
"5. ........ Even if the burden of proof does not lie on a party
the Court may draw an adverse inference if he withholds
important documents in his possession which can throw
light on the facts at issue. It is not, in our opinion, a sound
practice for those desiring to rely upon a certain state of
facts to withhold from the Court the best evidence which is
in their possession which could throw light upon the issues
in controversy and to rely upon the abstract doctrine of onus
of proof. In Murugesam Pillai v. Gnana Sambandha Pandara
Sannadhi [MANU/PR/0053/1916 : (1916017)44 IA 98], Lord
Shaw observed as follows:
"A practice has grown up in Indian procedure of those in
possession of important documents or information lying by,
trusting to the abstract doctrine of the onus of proof, and
failing, accordingly, to furnish to, the, Courts the best
material for its decision. With regard to third parties, this
may be right enough they have no responsibility for the
conduct of the suit but with regard to the parties to the suit
it is, in their Lordships' opinion an inversion of sound
practice for those desiring to rely upon a certain state of
facts to withhold from the Court the written evidence in their
possession which would throw light upon the proposition."
This passage was cited with approval by this Court in a
recent decision Biltu Ram & Ors. v. Jainandan Prasad & Ors.
In that case, reliance was placed on behalf of the defendants
upon the following passage from the decision of the Judicial
Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh
[MANU/PR/0010/1915 : (191415) 42 IA 202]: [Investigating
Agency p. 206]
"But it is open to a litigant to refrain from producing any
documents that he considers irrelevant; if the other litigant
is dissatisfied it is for him to apply for an affidavit of
documents and he can obtain inspection and production of
all that appears to him in such affidavit to be relevant and
proper. If he fails so to do, neither he nor the Court at his
suggestion is entitled to draw any inference as to the
contents of any such documents." 21 xxx 22 The learned
single Judge of the High Court has exceeded his jurisdiction
under Articles 226 and 227 of the Constitution of India as
per the legal principles laid down by this Court in the case of
Harjinder Singh [MANU/SC/0060/2010 : (2010)3 SCC 192]
wherein this Court has held thus: [SCC p. 205, para 21]:
"21 Before concluding, we consider it necessary to observe
that while exercising jurisdiction under Articles 226 and/or
227 of the Constitution in matters like the present one, the

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 High Courts are duty bound to keep in mind that the
Industrial Disputes Act and other similar legislative
instruments are social welfare legislations and the same are
required to be interpreted keeping in view the goals set out
in the preamble of the Constitution and the provisions
contained in Part IV thereof in general and Articles 38, 39(a)
to (e), 43 and 43A in particular, which mandate that the
State should secure a social order for the promotion of
welfare of the people, ensure equality between men and
women and equitable distribution of material resources of
the community to subserve the common good and also
ensure that the workers get their dues. More than 41 years
ago, Gajendragadkar, J, opined that:
"10 the concept of social and economic justice is a living
concept of revolutionary import; it gives sustenance to the
rule of law and meaning and significance to the ideal of
welfare State" State of Mysore v. Workers of Gold Mines
[MANU/SC/0110/1958 : APR 1958 SC 923]"
The said principle has been reiterated by this Court in
Jasmer Singh v. State of Haryana [MANU/SC/0026/2015 :
(2015)4 SCC 458].
24. Therefore, in view of the above said case, the learned
single Judge in exercise of its powers under Articles 226 and
227 of the Constitution of India erroneously interfered with
the award of reinstatement and future salary from the date
of award till date of reinstatement as rightly passed by the
Labour Court recording valid and cogent reasons in answer
to the points of dispute holding that the workman has
worked from 1.1.1987 to 1.4.1992 and that noncompliance
of the mandatory requirements under sections 25F, 25G and
25H of the Act by the respondent Department rendered its
action of termination of the services of the workman as void
ab initio in law and instead the High Court erroneously
awarded a compensation of Rs. 1,50,000/- in lieu of
reinstatement. The learned single Judge and the Division
Bench under their supervisory jurisdiction should not have
modified the award by awarding compensation in lieu of
reinstatement which is contrary to the well settled principles
of law laid down in catena of cases by this Court."
19. Highlighting the judgments of the Hon'ble Supreme Court in the case of Deepali
Gundu Surwase (Supra) where this Court had an occasion to trace the history of the
decisions, the reproduction was made. The Division Bench of this Court, looking to
the relevant portion of the decision of Deepali Gundu Surwase (Supra) held that
Section 25(B) introduces a deeming fiction as to in what circumstances a workman
could be said to be in continuous service for the purposes of Section 25(B).
20. Considering the decision in the case of Deepali Gundu Surwase (Supra), it is
evident that the Hon'ble Supreme Court in Paragraph No. 38 culled out the
proposition based on the earlier decisions and held that when there is a wrongful
termination, reinstatement with back wages and continuity is a normal way. The
Court specifically held that the observations made in J.K. Synthetics Ltd. v. K.P.

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 Agarwal reported in MANU/SC/0741/2007 : 2007(2) SCC 433 that on reinstatement,
the employee cannot claim continuity of service as of right, is contrary to the ratio of
the judgments of three Judges bench.
21. Keeping this position of law in mind, it is explicitly clear that the petitioners are
the beneficiaries of the award of the labour Court and implicitly the benefit of
continuity of service has to be read in such awards. Their past services have to be
treated as services for the purposes of granting them the benefits of Government
Resolution dated 17.10.1988 and their tenure during which they were out, cannot be
taken to be their disqualification qua denying the benefits of Government Resolution
dated 17.10.1988.
22. In view of above, both these petitions are allowed. Rule is made absolute to the
aforesaid extent. Direct Service is permitted.
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