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My Notepad NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

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lGOeMQgAHOcha Jaw arharlal Nehr

MANU/MP/0156/2

MANU/MP/0156/2000 Equivalent Citation: (2002)IVLLJ602MP, 2001(1)MPLJ591 IN THE HIGH COURT OF MADHYA PRADESH W.P. No. 4406/1999 Decided On: 09.10.2000 Appellants: Jawarharlal Nehru Krishi Vishwa Vidyalaya and Ors. Vs. Respondent: Presiding Officer, Labour Court and Anr. Hon'ble Judges: R.S. Garg, J. Subject: Labour and Industrial Catch Words Mentioned IN Acts/Rules/Orders: Industrial Disputes Act, 1947 - Section 25A, Industrial Disputes Act, 1947 - Section 25F Cases Referred: Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd. and Anr., AIR 1997 SC 2698, 1997 (10) SCC 599 : 1998-I-LLJ-343; Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors., AIR 2000 SC 839, 2000 (2) SCC 455, 2000-I-LLJ-561

Case Note : Labour & Industrial Retrenchment - Section 25F of the Industrial Disputes Act Respondent No. 2 was appointed as casual labour by petitioner After sometime, service of respondent No. 2 were abandoned Respondent No. 2 approached Labour Court and claimed reinstatement and backwages Labour Court held that as respondent No. 2 worked for more than 240 days, therefore, before his removal, notice under Section 25F of the Act was required to be given As no such notice had been given and no roper procedure followed, Labour Court directed reinstatement of petitioner with 50% backwages Hence, present petition Petitioner contended that respondent No. 2 was casual labour and engaged as seasonal labour, as and when the requirement arose Thus, not covered under Section 25F of Act - Whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of appropriate Government thereon shall be final Held, considering total circumstances and nature of the work involved in petitioner-organization, it could not be held that the petitioner's industrial establishment is not engaged in any seasonal work - From statements, return and attending circumstances it would clearly appear that works are of regular and continuous nature - Under these circumstances termination of services without any notice despite continuity of work and job requirement would amount to unfair labour practice and violative of Section 25F of Act - Requirement prescribed by Section 25F(b) is condition precedent and retrenchment of workman for non-compliance with said condition would render impugned retrenchment invalid and inoperative Thus, impugned order of retrenchment was invalid and unjustified and liable to be set aside and respondent No.2 entitled to be reinstated Labour & Industrial Backwages - Whether respondent No. 2 entitled to get full backwages? Held, from facts it established that respondent No. 2 himself not made any application for grant of backwages for period initiating from date of his retrenchment till filing of application before conciliation officer - Ordinarily, on reinstatement back wages may be awarded, but while awarding the relief of back wages Court should not be oblivious of facts and required to see conduct of workman - If workman on first available opportunity does not approach competent authority then later on, he cannot be permitted to claim any relief - Principle of no work, no pay apply Thus, in present case, respondent No. 2 does not deserve any back wages prior to period of making of application for conciliation and entitled to get 50% backwages Petition, accordingly, dismissed ORDER R.S. Garg, J. 1. By this petition under Article 227 of the Constitution of India, the petitioners seek to challenge the legality, validity, correctness and propriety of the award (Annexure P-1) dated June 22, 1999 granted by the Labour Court, Rewa in case No. 24/1. D. Act/98/Reference under which the petitioners have been directed to reinstate the respondent No. 2 in services with 50% of the back wages. 2. The petitioners submit that petitioner No. 1 is a University established under the Madhya

Pradesh Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam, 1963 and the petitioner No. 2 is the Principal of the Agriculture College, Rewa. The object of the petitioner University as stated is to provide education in agriculture and other allied sciences, so also research in agriculture and allied sciences which include field extension programme and such other research activities. According to the petitioners the University is required to carry out agricultural operations and development of floriculture programme for which it needs casual labour during sowing and harvesting period. According to them during sowing and harvesting season the labourers are engaged on daily wages from time to time and when the said operations are over the labour is removed. It is further submitted that the respondent No. 2 was engaged as casual labour, in the year 1983 and continued to work upto 1987. According to them the respondent No. 2 worked as seasonal labour till the month of April 1987 and thereafter the respondent No. 2 was not awarded any work, rather he abandoned the seasonal work. The petitioners submit that the respondent No. 2 after abandoning the work made an application before the local M.L.A. who vide his letter dated October 11, 1994 addressed to Dean, Agriculture College, made the recommendations in favour of the respondent No. 2. All of a sudden on June 22, 1996 the respondent No. 2 made an application before the Labour Commissioner, Rewa to draw the reconciliation proceedings. The petitioner No. 2 submitted his reply and denied the claim of the respondent No. 2. The competent authority vide its notification dated January 16, 1998 made a reference to the Labour Court, Rewa. The terms of the reference are contained in Annexure P. 6. The petitioners and the respondent No. 2 submitted their claim before the Labour Court, The respondent No. 2 submitted that he worked upto 1989 and as the provisions of Section 25F of the Industrial Disputes Act, 1947 were not observed in their true spirit, his removal tantamounted to illegal retrenchment therefore, he was entitled to be reinstated with full back wages. 3. The petitioners inter alia pleaded that the respondent No. 2 was a casual labour or he was engaged as a seasonal labour as and when the requirement arose therefore and as the respondent No. 2 had earlier admitted that he worked with the University upto 1987 therefore, his changed version that he worked till 1989 was per se false, therefore, no relief could be given to the respondent No. 2. The parties led the evidence before the Labour Court. The respondent No. 2 in support of his claim submitted that in some of the years he worked for more than 240 days in a calendar year therefore, and as his removal amounted to retrenchment, he deserves to be reinstated. The petitioners contested the application on all possible grounds and examined an Associate Professor who appeared with the record and stated before the Labour Court that the respondent No. 2 did not work for 240 days or more in any calendar year. 4. The Labour Court after appreciating the evidence led by the parties recorded a finding of fact that the respondent No. 2 worked in the year 1984 for 295 days, in the year 1985 for 343 days, in the year 1986 for 173 days and in the year 1987 for 89 days. The Labour Court found that the respondent No. 2 had worked for more than 240 days in the year 1984 and 1985, therefore, before his removal notice under Section 25F of the Industrial Disputes Act was required to be given to the respondent No. 2. Holding, removal to be illegal retrenchment, it directed reinstatement of the respondent No. 2 and further ordered payment of 50% back wages. Being aggrieved by the said award the petitioners have filed this petition. 5. Submissions of Shri P.N. Dubey learned counsel for the petitioners are that respondent No. 2 did not work for more than 240 days and as he was a seasonal labour and was not in continuous

service he was not required to be given a notice under Section 25F of the Act. Placing reliance upon the judgment of the Supreme Court in the matter of Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd. and Anr., MANU/SC/0726/1997 : AIR 1997 SC 2698 : 1997 (10) SCC 599 : 1998-I-LLJ-343, it is submitted that if some employee was doing seasonal work then termination of his services after the work was over would not amount to retrenchment. Placing further reliance on the judgment of the Supreme Court in the matter of Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors., MANU/SC/0049/2000 : AIR 2000 SC 839 : 2000 (2) SCC 455 : 2000-I-LLJ-561 it is submitted that though for making a reference under Section 10 of the Act no time limit is prescribed but that does not mean that power can be exercised at any point of time. According to him when the respondent No. 2 on his own showing was removed from service in the year 1987 or as further alleged by him in the year 1989 then neither an application in the year 1996 was maintainable nor the respondent No. 2 would be entitled to say that he deserves an order in his favour, It is also submitted that in fact there was no Industrial Dispute. It is lastly submitted by Shri Dubey that assuming the reinstatement is validly ordered then too the respondent No. 2 would not be entitled to back wages right from 1987 to January 16, 1998 when the competent authority made the reference. 6. Shri Sudhanshu Singh learned counsel for the respondent No. 2 submitted that as respondent No. 2 worked for more than 240 days in 1984 and 1985, he would certainly be deemed to be in continuous service and as removal of respondent No. 2 was contrary to the provisions of Section 25F the respondent No. 2 was rightly ordered to be reinstated. He farther submits that as the petitioners did not raise the question of limitation before the Labour Court or before the Conciliation Officer, they cannot be allowed to raise this question for the first time of proceedings under Article 227 of the Constitution of India. According to him if the question of limitation was raised before the Labour Court, respondent No. 2 could lead evidence and. show to the Labour Court that for particular reason, application for reconciliation could not be made. He further submits that the award granted by the Labour Court is justifiable and the judgments on which strong reliance has been placed by the petitioners are distinguishable on the facts. 7. I have heard the parties at length and have perused the record. 8. From Annexure P. 2 filed by the petitioners it would clearly appear that in the year 1984 and 1985 the respondent No. 2 worked for 295 and 343 days respectively. In the year 1986 and 1987 he worked for 173 and 89 days respectively. In view of Annexure P. 2 it is proved that respondent No. 2 worked for 295 and 343 days in the years 1984 and 1985 respectively. 9. Section 2(k) defines an "industrial dispute". An industrial dispute means; any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. The allegations of Respondent No. 2 about wrongful termination, removal or retrenchment would certainly amount to an industrial dispute. 10. Section 2(oo) says '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 (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill health." 11. Section 2(s) defines "workman" as under: "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceedings under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person(i) who is subject to the Air Force Act 1950, or the Army Act 1950, or the Navy Act, 1957; or (ii) who is employed in the police service or as an officer or other employee of a prison, or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." 12. For appreciation of the rival contentions it would also be necessary to refer to the provisions of Section 25A of the Act. Section 25A reads as under: "25-A. Applications of Sections 25C, 25E. - (1) Sections 25C, 25E inclusive shall not apply to industrial establishments to which Chapter V-B applies, or(a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or (b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently.

(2) if a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final." 13. When a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final." 14. In the context of Section 25A(2) the explanation "seasonal" and intermittent" would appear to indicate that it should be seasonal or intermittent under normal conditions. The expression "intermittent" as distinct from "seasonal" would also appear to imply seasonal or otherwise intermittent. If a party wants to raise a question that the industrial establishment is of a seasonal character or work is performed therein only intermittently then the party raising the question may make an application under Section 25A(2) to the State Government and on such an application being moved the State Government would be duty bound to decide the question whether the establishment is of seasonal character or work was performed only intermittently. 15. In the reply filed by the petitioners (Annexure P. 5) before the Labour Court it was submitted that the respondent No. 2 was a daily rated labour and looking to the load of the work he was appointed as contingency seasonal and not as a peon or chowkidar. It was also submitted that such contingency or seasonal labourers were required to work in the fields for harvesting, sowing, milking the cows, cattle maintenance and maintenance and guarding of premises of the college. It was also submitted by them that contingency daily rated labourers were not issued any appointment order but were orally employed: with the availability of the work, labour came and went. 16. From a perusal of the reply it does not appear that the work done by the petitioner/College was of seasonal nature or the labour was working / intermittently. In absence of a plea that the industrial establishment is of a seasonal character or work was performed in the industrial establishment only intermittently the petitioners in these proceedings cannot be allowed to say that the industrial establishment is of a seasonal character or the work is performed therein only intermittently. The nature of the work referred in the reply in (Annexure P. 5) does not show that it is of a seasonal character nor by any stretch of imagination it can be held that the work is performed in the industrial establishment only intermittently. Milking of the cow, maintenance of the cattle, maintenance and security of the college premises cannot be said to be work of seasonal character nor it can be said that the work is performed therein only intermittently. 17. In the matter of Anil Bapurao (supra) the Supreme Court observed that the work done in a sugar factory is seasonal work therefore, termination of the services of workmen after the work was over did not amount to retrenchment. The Supreme Court after recording a positive finding that crushing of sugarcane and manufacturing of sugar were seasonal business, it further held that principles of the Industrial Disputes Act would have no application. The case of Anil Bapurao is certainly distinguishable on facts. 18. In the matter of Nedungadi Bank Ltd. (supra) the Supreme Court observed that it would be incorrect to say that once a reference has been made under Section 10 of the Act a Labour Court

has to decide the same and High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. The Supreme Court further observed that an administrative order which does not take into consideration statutory requirements or travels outside that is certainly subject to judicial review limited though it might be. The Supreme Court further observed that powers of the Government to make a reference under Section 10 are unfettered and even if no time limit is prescribed it would not mean that power can be exercised at any point of time. According to the Supreme Court stale disputes cannot be referred. 19. The facts in the matter of Nedungadi Bank Ltd. (supra) were that the workman worked with the bank as a clerk for about 10 years. Certain disciplinary proceedings were initiated against him and on conclusion of the inquiry he was served with a memo to show cause as to why punishment of dismissal from service be not awarded to him in the light of the grave misconduct proved against him. The workman admitted his guilt and prayed for mercy. Considering the circumstances of the case he was dismissed from service with effect from August 11, 1972. The workman filed an appeal to the Board of Directors of the Bank. He expressed his unconditional regret and prayed that the capital penalty of dismissal from service be not imposed on him. His appeal, however was dismissed on January 30, 1973. The said workman for a period of 7 years did not do anything but all of a sudden served a notice on the bank contending that he was discriminated because two other employees of the bank under similar situation were reinstated in service of the bank. The workman made an application before the State Government on May 24, 1979 under Section 10 of the Act. It was rejected by the State Government on the ground that appropriate Government in relation to the Bank was the Central Government. On October 31, 1980 the workman moved the Assistant Labour Commissioner of the Central Government for relief, who by his order dated March 11, 1981 held that there was no scope for formal proceedings under the Act since the matter was one which arose way back in 1972. The workman thereafter filed a writ petition in the High Court complaining that the Central Government did not pass any order in the matter. The High Court by its order directed the Assistant Labour Commissioner to send his report under Section 12(4) of the Act to the Central Government. In pursuance of the order of the High Court, the Assistant Labour Commissioner sent his report to the Central Government for consideration. The Central Government declined to make any reference under Section 10 of the Act by order dated January 1, 1983. Being aggrieved, the workman filed another writ petition in the High Court which was disposed of by the High Court with a direction to Central Government to re-examine the matter. This order of the High Court was challenged by the bank in writ appeal. The Appellate Bench upheld the order of the learned single Judge and observed that the question of delay and the claim being stale or belated are also relevant factors to be taken into consideration in the matter of making an appropriate reference. The High Court required the Central Government to consider all the aspects of the matter objectively and take a decision on the question as to whether the dispute should be referred under Section 10 of the Act. The Central Government thereafter made the reference. This time bank felt aggrieved and challenged the reference by filing a writ petition which was allowed by the learned single Judge but on appeal filed by the workman, the Division Bench upheld the validity of the reference. The bank aggrieved by the order of the Division Bench took up the matter to the Supreme Court. From the perusal of the above facts it would clearly appear that the question of claim being delayed or staled was raised time and again before the reference was made and even after the reference was made. The Bank although was contending that the claim was delayed and stale therefore, no reference could be made. In the

present case no question appears to have been raised either before the conciliation officer or before the Labour Court that the claim made by the workman was unnecessarily delayed or was a stale one. The petitioners did not challenge the making of the reference before this Court or any other authority. The petitioners took part in the proceedings before the Labour Court and according to their wisdom did not raise the question of the claim being belated or stale. Under such circumstances it cannot be argued that the question of delay or the claim being stale can be raised in these proceedings. 20. True it is that powers under Section 10 cannot be exercised at any point of time and reopen the matter which had since been settled. It is also observed by the Supreme Court that power is to be exercised reasonably and in a rational manner. In the matter of Nedungadi Bank (supra) the Supreme Court in relation to exercise of powers under Section 10 of the Act and about the stale claim has observed as under MANU/SC/0049/2000 : "6. Law does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of the case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act, in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from services were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex-facie bad and incompetent." "7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehended after lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become industrial dispute and appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute. Central Government lacked power to make reference both on the ground of delay in invoking power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. Bank was justified in thus moving the High Court seeking an order to quash the reference in question." 21. The said judgment in the matter of Nedungadi Bank (supra) certainly was on different facts. There, a disciplinary action was taken and the appeal filed by the workman stood dismissed. The workman did not say that his removal/termination was illegal, he came with the case that as

in the similar circumstances two other employees, were retained by the bank, the said workman was entitled to be reinstated. That was not a case where said workman was seeking enforcement of any statutory right. He was seeking reinstatement simply on the ground of parity and not on the ground of illegal retrenchment or of his statutory rights. If a person does not challenge an order which was adverse to his interest for long years and allows all concerned to believe that such person has accepted the correctness of the said order then the question of delay would certainly assume importance but the said principle would not be applicable to a case where somebody makes a complaint that his statutory rights were infringed and under the given set of circumstances he is entitled to be reinstated. 22. For considering whether petitioner was in continuous service or not it would be profitable to refer to Section 25B of the Act. Section 25B of the Industrial Disputes Act, 1947 reads as under: "25-B. Definition of continuous service: For the purpose of this Chapter. (1) 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: (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." 23. Sub-section (2) of Section 25B clearly provides that 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, 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 240 days if his case is not covered under Section 2(a)(i). From Annexure P. 2 it clearly appears that the respondent No.

2 did work for a period of more than 240 days in the years 1984 and 1985. Applying the principles of Section 25B, I have no hesitation in holding that the respondent No. 2 was in continuous service of the industrial establishment. 24. Section 25F of the Industrial Disputes Act read as under: "25-F. Conditions precedent to retrenchment of workmen. - 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 the prescribed manner is served on the appropriate Government (or such authority as may be specified by appropriate Government by notification in the Official Gazette)." 25. If a workman has been in continuous service for not less than one year under an employer he shall not be retrenched by that employer until the said 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. The workman at the time of the retrenchment is required to be paid 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 notice in the prescribed manner is served on the appropriate Government or such authority as notified by the appropriate Government. Undisputedly in the present case no notice was given to the respondent No. 2 nor he was paid any retrenchment compensation nor any notice in the prescribed manner was served on the appropriate Government. 26. Catena of the authorities say that non-compliance of Section 25F renders the retrenchment invalid. The Courts have gone to the extent of saying that if a workman/daily wager is retrenched to give way to accommodate candidates sponsored by employment exchange and there is non-compliance of Section 25F then such retrenchment would be invalid. Termination of services amounting to retrenchment and not covered by any of the exceptions of Section 2(oo), and, if the compensation is not paid to the workman in terms of Section 25F, order of termination would be bad. The legal position is very clear. If the services of an employee are terminated in violation of Section 25F of the Industrial Disputes Act, 1947, the order would be bad and void ab initio and such a workman/employee would be entitled to continuity of service. 27. The case of the petitioner that the petitioner establishment is of a seasonal character should not detain this Court unnecessarily because the work against which the respondent No. 2 was appointed, as said by the petitioners, was not of specified seasonal nature nor of fixed duration

nor it did cease to exist on date of termination of the services of the employee. From the statements, return and the attending circumstances it would clearly appear that works are of regular and continuous nature. Under these circumstances termination of services without any notice despite continuity of work and job requirement would amount to unfair labour practice and violative of Section 25F of the Act. The requirement prescribed by Section 25F(b) is a condition precedent. The retrenchment of the workman for non-compliance with the said condition would render the impugned retrenchment invalid and inoperative. 28. Taking into consideration the totality of the circumstances and nature of the work, I am unable to hold that the petitioner's industrial establishment is engaged in any seasonal work. I am also unable to hold that the State Government was unjustified in making the reference or the Labour Court was unjustified in entertaining the reference. Termination of services of Respondent No. 2 was wrongful retrenchment and because of non compliance of the mandatory provisions of Section 25F of the Act, the respondent No. 2 is entitled to be reinstated. 29. The question still is as to whether the back wages should have been awarded in favour of the employee/workman. The respondent No. 2 as it appears from the records, worked upto the year 1987, though before the Labour Court he asserted that he worked upto 1989. Right from 1987 till June 22, 1996 he did not make any application to the conciliation officer. Ordinarily, on reinstatement back wages may be awarded, but while awarding the relief of back wages a Court should not be oblivious of the facts. A Court is required to see whether the conduct of the workman entitles him to back wages. If a workman on the first available opportunity does not approach a competent authority then he cannot be permitted to say that though for all those years he himself did not do anything but still he is entitled to be paid his back wages. In a case of absolute non action on the part of a workman, principle of no work - no pay will squarely apply. 30. Taking into consideration the totality of the circumstances, I am of the opinion that the respondent No. 2 does not deserve any back wages prior to the period of making of the application for conciliation, i.e. June 22, 1996. The respondent No. 2 would be entitled to 50% back wages from June 26, 1996. 31. It is made clear that this Court is not passing any order in relation to the regularisation or confirmation of the respondent No. 2. This Court has simply held that termination of respondent No. 2 was illegal retrenchment. No costs.

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