IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B.CIVIL SPECIAL APPEAL (W) NO.92/2010 STATE OF RAJASTHAN & ANR. Vs. KHEMA RAM & ANR. Date of Order : : 02.12.2010 HON’BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON’BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr.L.K.Purohit AGC for the appellants. Mr.Vijay Mehta, for the respondent. ****** This intra court appeal has been preferred questioning the legality of the order dated 23.10.2008, passed in Civil Writ Petition No.1402/2003. The employee raised the Industrial Dispute No.128/2000 in which award dated 28.09.2002 was passed by the Labour Court, Jodhpur. The Labour Court held that the termination of the services of the employee was illegal being in violation of the mandatory condition precedent for a valid retrenchment under Section 25 F of the Industrial Disputes Act. The submission that the workman was engaged for the purpose of famine relief which has been exempted from the application of Industrial Disputes Act was not accepted. In view of the specific findings recorded by the labour court that workman was not engaged in famine relief, Industrial Disputes Act was having application. Dissatisfied with the decision rendered, this intra court appeal has been preferred. [1] Learned Addl. Government Advocate submitted that the workman had rendered the services only for 240 days in the preceding year and this fact was not in dispute, but since he was engaged for the purpose of famine relief, Industrial Disputes Act has no application in this case. Even if termination of the employee was illegal and void, since termination was made in 1988 and reference as sought in Year 2000 awarding of back wages was illegal. Mr.Vijay Mehta, learned counsel appearing on behalf of respondent has supported the order passed by the Single Bench and has submitted that there was clear violation of Section 25 F of the Industrial Disputes Act consequently, retrenchment was illegal and void. The employee is ready to forgo the back wages part of the award. Hence, the intra court appeal deserves to be dismissed. After hearing learned counsel for the parties, we are of the opinion that equities can be settled on denial of back wages to the employee as admittedly he has completed 240 days of service in the preceding year though termination of his services could not have been ordered without following the provisions of Section 25 F of the Industrial Disputes Act. However, since there was delay in approaching the Tribunal, therefore, it was not proper to award the back wages in the instant case. It is further not disputed that provisions of Section 17 B of the Industrial Disputes Act is being complied with after the date of passing of the award. In the facts and circumstances of the case, we are setting aside the part of award with respect to grant of back wages awarded by the [2] labour court. The compensation is not general rule in such cases it was not a case of loss of confidence consequently we are not inclined to award the compensation instead of reinstatement since the employee is getting the amount under Section 17 B and in the facts and circumstances of the instant case we are not inclined to make interference in reinstatement part of the award passed by the Labour Court . Consequently, the intra court appeal is partly allowed. The award passed by the Labour Court with respect to the back wages is hereby set aside. Mr. Mehta learned counsel for the respondent submitted that employer may ask for recovery of amount paid under Section 17 B of the Industrial Disputes Act as back wages. We clarify that the employer shall not recover the amount paid under Section 17 B of the Industrial Disputes Act. No costs. (KAILASH CHANDRA JOSHI), J. (ARUN MISHRA), C.J. Mamta [3]