JUDGMENT [ENTITY], J.
1. This writ petition is directed against the award of the Labour Court, Allahabad, dated 7.11.1983 by which the Labour Court was pleased to set aside the order terminating the service of [ENTITY], who was working as an amin with the [ENTITY], Ajuha, Allahabad (hereinafter referred to as the '[ENTITY]'). He was directed to be reinstated to the post from which he was terminated and be paid uptodate emoluments from the date of order of termination till the date of reinstatement and awarded a cost of Rs. 200/- to be paid to the workman. The Chairman and Secretary of the [ENTITY] filed this petition being aggrieved by the Judgment and award of the Labour Court seeking its quashing by a writ of certiorari.
2. The State Government referred the dispute to the Labour Court to the effect whether the [ENTITY] was justified in terminating the services of the Respondent No. 2, Shri [ENTITY]. If not, to what relief the Respondent No. 2 would be entitled to. It was pleaded in the written statement by Respondent No. 2, Sri [ENTITY], that he was appointed by an order dated 6.12.1972 on the post of amin. His service was suddenly terminated by the order dated 16.3.1980 without any notice or payment of retrenchment compensation to him. It was also pleaded that persons junior to him were retained while his service was terminated. It is admitted that Shri [ENTITY] was appointed as amin on 6.12.1972. However, it is stated that the appointment was purely on temporary basis under the terms of contract which could be terminated with one month's notice or pay in lieu thereof. It was categorically stated in the written statement by the petitioner that the service of Sri [ENTITY] was terminated in accordance with condition No. 6 of the appointment letter. One month's pay in lieu of notice was offered to him which he had refused. Thus, it was stated that the case was not covered under provisions of [SECTION] of the [ACT] (hereinafter referred to as the 'Act'). It was alleged that Shri [ENTITY] was not a workman and reference to the Labour Tribunal was illegal, the provisions of the [ACT] was applicable to the case of Sri [ENTITY], he being a public servant within the meaning of the said Act. The appeal filed by Sri [ENTITY] before the Director of the [ENTITY] was dismissed, hence the reference made by the State to the Labour Court was not competent. Learned counsel for the petitioner admitted that Sri [ENTITY] was a temporary servant whose service was terminated by simple order of termination causing no stigma against him. There was no motive behind the termination order. At the time of appointment given to respondent [ENTITY], there was no rules framed by the [ENTITY]. It was in accordance with the bye-laws of 1983 and condition No. 4 of the bye-laws of the [ENTITY] which provided one month's notice or one month's salary in lieu thereof. The learned counsel for the petitioner cited [PRECEDENT]. The Full Bench decision of the Madhya Pradesh High Court cited by the learned counsel for the petitioner has no application to the facts and circumstances of the present case. The said case was never referred by the Government of the State under the provisions of the Act. The service of an employee of the Central Co-operative Bank in the said case was terminated by an order simpliciter without any stigma after payment of one month's salary in lieu of notice. Several other submissions were made in that case about the motive in the mind of the employer at the time of issuing the letter of termination. The facts and circumstances of the said case has no relevance to the present case. Another case cited is [PRECEDENT]. The facts and circumstances of the case referred by the learned counsel has also no relevance to the present case. It also related to an order terminating service of a temporary employee under the terms of contract without any stigma in the order of termination. Thus, in my opinion, this case law does not support the case of the petitioners. The other case cited by the learned counsel for the petitioner is [PRECEDENT]. This case law is also not applicable to the case in hand. The controversy in the case cited was about the applicability of provisions of [SECTION] of the [ACT] to the probationer employee. The learned counsel for the petitioner has not been able to cite any other case law which may be of any assistance in dividing the petitioner's case on the points canvassed by him.
3. One copy of the judgment of the Division Bench in [CASE NUMBER] was filed as annexure to the writ petition by the petitioner. In the case cited the President of the [ENTITY], Kurara, Hamirpur had terminated the service of an amin-cum-auctioneer of the said Samiti. In that case also the termination was without stigma on payment of one month's salary in lieu of one month's notice. In the said case, the only point was to the effect that whether the service of a temporary employee could be terminated after payment of one month's salary in place of one month's notice legally and the Division Bench of this Court dismissed the said writ petition on the ground that in pursuance of the condition in the appointment letter, the service could legally be terminated after, paying one month's salary in place of one month's notice. The major emphasis of the learned counsel for the petitioner is that the said case also related to a [ENTITY] and service of an amin was terminated after one month's salary in pursuance of the terms and conditions of the appointment letter and the validity of the said order of termination was upheld by the Division Bench of this Court. It is worthwhile to mention that in the said case also neither there was any reference under the provisions of the [ACT] nor the questions now raised in the present writ petition were ever raised or considered. The subsequent decision of the Supreme Court and our Court have now laid such law which covers the case of the respondent, and the judgment and award of the Labour Court has to be judged in the light of the Judgments of the Supreme Court and case law of our Court. The judgment of the Division Bench of our Court of 1976 (supra) cited by the learned counsel for the petitioner is, thus, of no assistance.
4. The learned counsel for the respondent Sri [ENTITY] cited Brij Kishore Shukla and Ors. v. State of [ACT]. 1986 (52) FLR 631. The Division Bench in the said case considered the termination of a daily wage workman working at the [ENTITY] whose service was terminated by the simple order of termination. The Division Bench after considering the cases of the Supreme Court and other Courts held that the provisions of [SECTION] of the Act includes as employee of the [ENTITY]. After relying on [PRECEDENT] it was held that the [ENTITY] is also conducting an industry within the meaning of [SECTION] of the Act and the employee was covered within the definition of 'workman'. The case law cited by the learned counsel for the respondent fully covers the controversy about the applicability of the [ACT] to the present case.
5. Learned Counsel for the respondents cited [PRECEDENT]. The Hon'ble Supreme Court in this case held that if a workman continues working even after appointment as a temporary hand at the time of termination of his service, it would be necessary for the employer to make payment of retrenchment compensation. The provision of [SECTION] of the [ACT]. [ACT] would not exclude the workman from being covered within the definition of workman simply on account of the facts and circumstances of some condition in the appointment letter, or on the ground that the appointment was made under the statutory agreement. Similar view was taken in Santosh [ENTITY] v. State of Patiala 1980 (40) FLR 373: 1980 (2) LLJ 72 (SC). The Hon'ble Supreme Court was pleased to hold that the discharge of the workman on the ground that she did not pass the test which would enable her to continue in service amounting to retrenchment within the meaning of [SECTION] and, therefore, the requirement of [SECTION] of the [ACT] had to be complied with. Number of other cases were also cited by the learned counsel for the petitioner and I consider it not necessary to repeat all the case laws cited for forming my final view that provisions of [SECTION] would be applicable to the present case and the reference made by the State Government in this matter before the Labour Court is fully competent and I do not find any error of law, jurisdiction or such legality which may call for any interference in the Judgment and award under consideration.
6. The last part of the argument of the learned counsel for the petitioner is about the legality of the order of reinstatement with the condition of payment of the entire back salary to the respondent Sri [ENTITY]. Learned counsel for the petitioner cited [PRECEDENT]. The Division Bench of the Hon'ble Supreme Court considered the facts and circumstances of the particular case before them. The Supreme Court in the said case maintained the order of reinstatement of the workman but the back wages was held to be not payable to him. The workman in the said case was a Warehousing Manager Gr.II working with the State Warehousing Corporation who was charged with the misappropriation of Corporation's fertilizer and a criminal case was registered and prosecution was done. The workman was acquitted by the Criminal Court on the ground that the prosecution failed to produce the evidence to substantiate the charges framed against him, thus, acquitted. It was on the writ petition of the workman after Judgment in the criminal case before the High Court that the reinstatement was directed with back wages by the High Court. The Supreme Court no doubt after finding that the termination order was not passed in accordance with staff regulation or after payment of two month's salary in lieu thereof, still passed the order of reinstatement and directed that the back wages shall not be paid to the workman. There is no consideration of the further facts and circumstances in the judgment which may indicate under what special circumstances the back wages were not allowed to the workman. The learned counsel for the respondent, Sri [ENTITY], cited the Judgment of the Constitutional Bench of the Hon'ble Supreme Court reported in [PRECEDENT]. The said Constitutional Bench of the Supreme Court after considering the earlier decision of [PRECEDENT] and other decisions of [PRECEDENT] and [PRECEDENT] held that:
It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after each protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his own and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule .
7. In the present case it has not been shown by the evidence that the respondent Sri [ENTITY] was in any way gainfully employed during the period he was out of employment and litigating. The principle of law as settled by the Hon'ble Supreme Court regarding consideration of back wages is binding on this Court and I consider that there is no scope for argument for the petitioner that the respondent, Sri [ENTITY] is not entitled to any back wages.
8. After hearing the learned counsel for the parties, I do not find any error of law or jurisdiction in the judgment and award of the Labour Court impugned in the present writ petition, The writ petition is, therefore, dismissed. The interim order dated 16.2.1984 and 18.2.1985 are discharged. The parties shall bear their own costs.