JUDGMENT V. K. Mehrotra, J. - Hari Om Singh, who is the third respondent in this petition under Article 226 of the Constitution filed by the U. P. State Road Transport Corporation, was employed on October 26, 1969 as a Junior Booking Clerk for the period ending November 24, 1959 in the erstwhile U. P. Government Roadways. His temporary appointment was extended from time to time but ultimately by order dated February 28, 19/1 his services were terminated as his work and conduct was not found to be satisfactory. On the representation made by Singh, he was given another chance and was appointed afresh on temporary and ad hoc basis by order of August 24, 1971. This appointment was subject to his passing a written test and approval of the Selection Committee. One of the conditions of his appointment was that bis services could be terminated by a months notice on either side or one months pay in lieu thereof. 2. With effect from June 1972 U. P. State Road Transport Corporation was created under Section 3 of the Road Transport Corporation Act, 1950 in place of the U. P. Government Roadways. By a notification dated June 30, 1972 published in the U. P. Gazette dated July 13, 1972, issued under Section 34 of the Road Transport Corporation Act, the assets and liabilities of the Roadways were taken over by the Corporation. The General Manager and other officers of the Corporation were to exercise the powers delegated by the Government of U. P. to the Transport Commissioner, U. P. and other officers subordinate to him immediately prior to June 1, 1972. The General Manager was the appointing authority of Junior Booking Clerk. He was redesignated as the Regional Manager in the Corporation. 3. Singh was asked to appear before the Selection Committee on December 22, 1973 but was not approved. However, on compassionate ground he was permitted to continue. By an order of August 27, 1975 he wa3 to continue on temporary ad hoc basis for the period ending September 30, 1975, On being asked to do so again, Singh appeared before the Selection Committee afresh on September 26, 1975. This time also he was not approved. The Selection Committee directed that his services be terminated on expiry of last extension which was to come to an end on September 30, 1975. This time also he was not approved. The Selection Committee directed that his services be terminated on expiry of last extension which was to come to an end on September 30, 1975. Consequently, by an order dated September 2, 1975 his services were terminated. A copy of the order is Annexure 7 to the writ petition Singh has filed a counter-affidavit in this petition and has taken the stand that he was appointed as Booking Clerk on October 26, 1969 in a permanent capacity and continued in service without any break upto September 30. 1975. 4. As industrial dispute was raised by Singh by making an application to the Regional Conciliation Officer. No settlement could be arrived at which led to a reference by the State Government on May 3i, 1977 of the following dispute for adjudication (Adj. Case No. 28 of 1977) to the Labour Court, Agra under Section 10(i)(c) of the Industrial Disputes Act, 1947. "Kya seva yojakon ke dwara apne shramik Sri Hari Om Singh son of Sri Vireudra Bahadur Singh ka dinank 1-10-1975 se prathak kiya jana uchit tatha/athwa vaidhanik hai Yadi nahin, to sambandhit sharamik keya labh/chahti purti pane ka adhikari bai tatha anya kis vivran shahit ?" 5. The Corporation took the plea that the fixed term appointment of Singh came to an end on September 30, 1975 and that his temporary service were terminated with effect from that the date by tender of a months pay in lieu of notice on September 29, 1975. The case set up by Singh was that his services were illegally terminated without following the provisions of Section 25-F of the Industrial Disputes Act, 1947. Two persons appeared as witnesses on behalf of the Corporation before the Labour Court while Singh examined himself as a witness. By an award dated August 17, 1979, published in the U. P. Gazette of September 9, 1978, the Labour Court directed reinstatement of Singh holding that though the appointment of Singh was purely temporary and there was no question of his being made permanent, the order of termination was bad because retrenchment compensation had not been paid in terms of Section 25-F of the Act. The Labour Court directed reinstatement of Singh (without awarding back wages) making it clear that Singh was to continue in temporary capacity and would not be taken to be in a permanent post unless his services were approved by the Selection Committee. Further the seniority of persons who had been appointed on a permanent post on probation would not be affect by the reinstatement of Singh it may be observed that the case was concluded ex parte against the Corporation as some costs, which it had to pay, had not been paid inspite of sufficient time being granted with the warning that if the costs are not paid, the case will be heard ex parte. A copy of the award is Annexure 12 to the writ petition. 6. Sri S. K. Sharma, appearing for the Corporation, submitted in the first place, that non-payment of costs by the employer, namely, the Corporation did not entitle the Labour Court to proceed ex parte against it and the award stood vitiated on this ground alone. The conclusion of proceeding ex parte against the Corporation was violative of the principle of natural justice. 7. Section 11 of the Act deals with the procedure and powers of Conciliation Officer, Boards, Courts and Tribunals. Sub-sections (3) and (7) of this section read thus: Section 11. - Procedure and powers of Conciliation Officers, Boards, Courts and Tribunals (1) .... .... ..... (2)..... ....... ...... (3) Every Board, Court, Labour Court, Tribunal, and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit, in respect of the following matters, namely (a) Enforcing the attendance of any person and examining him on oath ; (b) Compelling the production of documents and material objects ; (c) issuing commissions for the examination of witnesses; (d) in respect of such other matters as may be prescribed ; and every inquiry or investigation by a Board, Court Labour Court, Tribunal or National Tribunal shall be deemed to be a judicial proceeding within the meaq-ing of Sections 193 and 228 of the Indian Penal Code (45 of 1860). (7) Subject to pay any rules made, under this Act, the costs of and incidental to, any proceedings before a Labour Court, Tribunal or National Tribunal shall be in the discretion of full power to determine by and to whom and to what extent aDd subject to what conditions, if any, such costs are to be paid, and to give all necessary directions for the purposes aforesaid and such costs may, on application made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as an arrear of land revenue." 8. Rule 24 of the Industrial Disputes (Central) Rules, 1957 is in the following terms ; Rule 24. - Power of Boards, Courts, Labour Courts, Tribunals and National Tribunals - In addition to the powers conferred by the Act, Boards, Courts, Labour Courts, Tribunal and National Tribunal shall have the same powers as are vested in Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely - (a) discovery and inspection ; (b) granting adjournment; (c) reception of evidence taken on affidavit, and the Board, Court, Labour Court, Tribunal or National Tribunal may summon and examine any persons whose evidence appears to it to be material and shall be deemed to be Civil Court within the mean- ing of Sections 480 and 482 of the Code of Criminal Procedure, 1898." 9. This rule is akin to Rule 21 of the U.P. Industrial Disputes Rules. 10. Relying upon the aforesaid provisions Sri K.P. Agarwal appearing for the workman Sangh, urged that it was open to the Labour Court to require costs to be paid by the Corporation and on failure of the Corporation to do so, proceed ex parte against it. He has urged that by virtue of Rule 24 quoted above the Labour Court was entitled to subject the grant of adjournment to payment of costs as it had the same powers as are vested in the Civil Court under the Code of Civil Procedure when trying a suit. 11. Section 35-B of the Code of Civil Procedure, according to Sri Agarwal, entitled the court to dissociate the Corporation from further participation in the proceedings on its failure to make payment of the costs required to be paid by the Corporation. 11. Section 35-B of the Code of Civil Procedure, according to Sri Agarwal, entitled the court to dissociate the Corporation from further participation in the proceedings on its failure to make payment of the costs required to be paid by the Corporation. The argument further is that Order XVII, Rules 1 and 2 of the Code of Civil Procedure entitled the Labour Court to grant adjournment on payment of costs. 12. Neither in the award of the Labour Court nor in the affidavits exchanged between the parties in this Court is there any indication of the occasion on which costs were imposed on the Corporation or the result which was to follow non-payment of costs. The provision of Order XVII, Rules 1 and 2, C. P. C. may undoubtedly empower the Labour Court to grant adjournment subject to payment of costs but there is nothing in these provisions to enable the Court to proceed ex parte against any of the contending parties before it for non-payment of costs. Section 35-B requires the Court to record its reasons while making an order requiring a party to pay costs on the adjournment sought by it for taking steps or placing evidence or on any other ground and then alone, in the event of non-payment of costs on the date next, following the date of such order, can and party be precluded from iuitber prosecuting its case, before the Court. The award of the Labour Court mentions in paragraph 6 that : "On the date fixed for arguments the representative of the workman urged that costs in the case have (not) been paid by the employers. The employers were given sufficient time to pay the cost with the warning that in case the cost was not paid the case will be heaid ex parte.'" and in the opening part of paragraph 7 that: "Costs remaining unpaid ex parte proceedings were ordered and the case is being concluded ex parte. have looked into the evidence on record and found." These lecitais do not indicate that at any stage the Court passed an order of the nature envisaged by Section 35 B C. P. C. This provision is clearly intended to ensure due despatch m the conduct of a case by a party and provides for compensatory costs being imposed upon a party which is found delaying the disposal of the suit. It is obvious that it is a penal provision which should be resorted to in exceptional cases. The reasons tor an order contemplated by Section 35-B should be reliable to the object sought to be ensured by introduction of the provision and where, as in the present case, it is not possible to find out from the Award itself that at any anterior stage, prior to the direction to proceed ex parte against the Corporation, a reasoned order within the ambit of Section 35-B, C. P. C. was passed, it would be difficult to uphold an tx parte award against it. 13. The award of the Labour Court, in terms, says that the court has proceeded ex parte against the Corporation for non-payment of costs. The fact that the corporation was not heard is implicit in these observations. It is clear from the observations contained in paragraph 6 of the award, quoted above, that the objection about non-payment of costs was raised by the representative of the workman at the stage of argument. Labour Court, thereafter, decided to proceed ex parte against the Corporation. Obviously, the corporation was denied hearing at this stage. This undoubtedly would be in breach of the principles of natural justice and Sri Sharma is right in his submission in that respect. 14. The Labour court has placed reliance upon the decision of the Supreme Court in the State Bank of India v. Shri N. Sundara Money, (1976) 32 FLR 19. In that case the order of appointment of the respondent stated that it was a purely temporary one for a period of days but could be terminated earlier and also that unless terminated earlier, would automatically cease at the expiry of the period. He was appointed by the Stats Bank of India off and on between July of, 1973 and August 29, 1973. The intermittent breaks notwithstanding his total number of days of employment answered the test of demand continuous service and both the sides accepted that factual situation. The Supreme Court took the view that the termination of the service of respondent amount to retrenchment within the meaning of Section 2 (oo) of the Act which necessitated compliance with Section 25-F of the Act. This view has been reiterated by the Supreme Court again in L. Robert D'Souza v. The Executive Engineer, Southern Railway and another, 1982 (44) FLR 250 . This view has been reiterated by the Supreme Court again in L. Robert D'Souza v. The Executive Engineer, Southern Railway and another, 1982 (44) FLR 250 . It was observed in paragraph 7 in this case : Therefore, we adopt as binding the well settled position in law that if termination of service of a workman is brought about for any reason whatsoever, it would be retrenchment except if the case faitis within any of the excepted categories i.e. (1) termination by way of punishment inflicted persunt to disciplinary action, (iii) 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 (iv) termination of the service on the ground of continued ill-health Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in Section 2 (oo)." More pointed, akin to the present case, is the decision of the Supreme Court in Santosh Gupta v. State Bank of Patiala, 1980 (40) FLR 373 where it was held that discharge for failure to pass a test which would have resulted in the confirmation of Santosh Gupta in her service, would also amount to retrenchment within the meaning of that term in Section 2 (oo). 15 The case of the petitioner before the Tribunal was that the service of Hari Om Singh was terminated on giving him a months pay in lieu of notice on September 28 1975 with effect from September 30. 1975 when his fixed term of appointment came to end. This appears from the written statement hied on behalf of the petitioner The same stand was reiterated in the rejoinder statement held on behalf of the petitioner. The workman referred to Section 25-F of the Industrial Disputes Act in paragraph 7 of his written statement. That Section reads thus i "25-F. Conditions precedent to retrenchment of workman. This appears from the written statement hied on behalf of the petitioner The same stand was reiterated in the rejoinder statement held on behalf of the petitioner. The workman referred to Section 25-F of the Industrial Disputes Act in paragraph 7 of his written statement. That Section reads thus i "25-F. Conditions precedent to retrenchment of workman. - No workman employed in any industry who has been in continuous service for not less than one year under, an employer shall be retrenched by that employer until : (a) the workman has been given one months 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 specified a date for the termination of service : (b) The workman has been paid, at the time of reternchment, compensation which shall be an 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 Govern ment or such authority as may be specified by the appropriate Government by notification in the official gazette." 16. What is necessary for applicability of this provision is that the workman should be "in continuous service for not less than one year under au employer". Section 25-B defines continuous service for the purpose of Chapter V-A (in which Section 25-F occurs) thus "25-B. Definition of continuous service. What is necessary for applicability of this provision is that the workman should be "in continuous service for not less than one year under au employer". Section 25-B defines continuous service for the purpose of Chapter V-A (in which Section 25-F occurs) thus "25-B. Definition of continuous service. - For the purposes of this Chapter, (1) a workman shall be said to be in continuous service for a period if he is, for a period in uninterrupted service, including service which may be interrupted on account of sickness or authorised struce wmcn 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 meaoiag 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 - (1) one hundred and ninety days in the case of a workman employed below ground in a mine ; and (2) two hundred and forty days in any other case : ...................." 17. A look at the impugned award reveals that no finding is contained therein on the question whether Hari Om Singh was in continuous service for the purposes of Section 25-F. The award is also silent on the question whether the services had been terminated in terms of the contract of service, without any penal consequence, so that the relief of payment of the amount that may be due to Hari Om Singh under the Industrial law would be the proper relief. Reliance has been placed by Sri Sharma on the decision of the Supreme Court in the case of State of Haryana and another v. Rattan Singh, (1977) 34 FLR 264 . In that case the services of Rattan Singh, who was a Conductor in the Haryana Roadways, were terminated. It was found to be simple termination by the Supreme Court. Reliance has been placed by Sri Sharma on the decision of the Supreme Court in the case of State of Haryana and another v. Rattan Singh, (1977) 34 FLR 264 . In that case the services of Rattan Singh, who was a Conductor in the Haryana Roadways, were terminated. It was found to be simple termination by the Supreme Court. The Supreme Court directed that all that was due to Rattan Singh under the Industrial law as an employee when his services were terminated without penal consequence apart from the salary for the period that he has worked - shall be paid to him. 18. The petitioner was not heard by the Labour Court. The question of relief of compensation, in lieu of the order of reinstatement was probably not considered by the Labour Court on this account. The Labour Court felt that the invalidity of the order of termination, on account of non-compliance with the requirement of Section 25-F of the Act, necessarily was to result in an order of instatement. However, this aspect need not be pursued further as the award is liable to be quashed otherwise. The Labour Court has not recorded any finding about the tact whether Hari Om Singh was in continuous service for a period of not less than one year for purposes of Section 25-F of the Industrial Disputes Act so as to hold the termination of his services to be a retrenchment. It has also proceeded ex parte without indicating in its order any reasons, germane to the decision for doing so. The award cannot be upheld. 19. In consequence, the petition succeeds. The award dated August 17, 1978 of the Labour Court, Agra in adjudication case No. 28 of 1977 between Hari Om Singh and the U. P. State Road Transport Corporation is quashed. The parties are however, left to bear their own costs.