United Agencies v. Presiding Officer — 1996 DIGILAW 596 (PAT)

Judgment M.Y. Eqbal, J. In the instant case, the petitioner has challenged the award dated 23rd June 1994 passed by the presiding Officer, Labour Court Patna in Reference Case No. 41 of 1990 whereby and where under the Labour Court held that the termination of service of respondent no. 2 was illegal and invalid because of non-compliance of the provisions of Section 25-F of the Industrial Disputes Act, (hereinafter to be referred to as the 'said Act'). By the said award the Presiding Officer further held that instead of re-instatement, the employee, respondent no. 2 was entitled to 3.33 years of his salary, inclusive of other allowances and also to get his full back wages till the date of award of the Labour Court. 2. The petitioner who is an Establishment deals with whole-sale business of kerosin Oil and fertilizer having its Office at Patna. According to the petitioner the respondent no. 2 applied for his appointment as a driver of Tank Lorry and was appointed initially for a period of one year on 11th May 1987. He was entrusted to drive the Tank Lorry No. BPZ 2433. The term or appointment was duly accepted by him. After completion of probationary period of one year it was further extended for another year i.e. upto 10th May 1989. According to the petitioner, Management, the respondent no. 2 stated absenting from duty from 1st January 1989, without any information and/or without getting any leave sanctioned. The petitioner by registered letter dated 31 at January 1989 informed respondent no. 2 about his absence without any information. He was directed to join his duty within a week. The registered letter was received by him but even then he did not join nor did he send any information. The management again wrote a letter dated 21st April 1989 to the General Secretary, Bihar Tankers Association and informed him about his absence from 1st January 1989. The Management's further case was that again by a letter dated 20th April 1989, the respondent no 2 was directed to join his duty but he refused to receive the letter. Having no alternative, the Management on the date when his extended probationary period concluded i.e. 10th May 1989, terminated his service One month's salary was also sent to him by demand draft According to the Management, during the period of his absence the respondent no. Having no alternative, the Management on the date when his extended probationary period concluded i.e. 10th May 1989, terminated his service One month's salary was also sent to him by demand draft According to the Management, during the period of his absence the respondent no. 2 was gainfully employed and be was plying his own tank lorry purchased in partnership with another person. He after a long period, reported for duty which was not accepted by the Management. The concerned respondent thereafter raised an industrial dispute which was conciliated and having no settlement, between the parties arrived at, the dispute was referred for adjudication under Section 10 (1) (c) of the said Act, to the Presiding Officer. Labour Court Patna. The dispute referred to is quoted here-in-below : "Whether the termination of service of Dhup Lal Mahto, Driver, is proper and justified? If not, should he be given compensation ? " 3. On receipt of Notification of reference notices were issued to the parties who eventually appeared and filed their written statement. The case of respondent no. 2 (hereinafter to be referred to as the 'workman') before the Presiding Officer was that he was initially appointed in the year 1971 and was Posted at Calcutta Office of the Management. In the month of January 1985, he was transferred to Patna Branch where he started working with sincerity after assuming his charge. According to him, his elder brother namely, late Paras Nath Mahto fell ill in the month or January 1989 for whose treatment he took leave from the Manager of the petitioner. The workman alleged that it took about four months in the treatment of his brother who ultimately died on 14th April 1989. Thereafter the workman himself fell. The workman further took the plea that he had been applying for extension of leave but was not receiving any reply thereof from the Management side. When the workman is said to have recovered from his illness, he reported for his duty on 1st May 1989 but he was not allowed to join by the Manager on the plea that his joining would be accepted only after obtaining orders from the Management. The workman kept on waiting and when ultimately he was not allowed to join even after further four months, he approached the Welfare Minister who forwarded his application for sympathetic consideration. The workman kept on waiting and when ultimately he was not allowed to join even after further four months, he approached the Welfare Minister who forwarded his application for sympathetic consideration. In the mean while, the workman was served notice of the Management in ‘Hindustan’ daily newspaper dated 20th September 1989 that his services had been terminated by the Management on account of his continued absence for six months. The workman's further case was that before termination of his services, no charge sheet was issued nor he was given opportunity to defend himself. The impugned order of termination was alleged to be violative of Section 25F of the said Act, as no notice or pay in lieu thereof or compensation Will given to the workman, as contemplated in the said Act. The Labour Court formulated the following issued for determination, (i) Has the workman been able to prove his employment under the management since the year 1971 or whether he for the first time entered into the employment of the Management on 11.5.87 as a Lorry Driver as has been pleaded by the latter? (ii) Has the workman remained in continuous service of one year i.e. of 240 days in a year of 12 calendar months preceding termination of his service and it so, whether the Management has complied with the provisions of Section 25F of the Act, or not? (iii) To what relief or relief’s, if any, is the workman entitled ? 4. So far as the 1st issue was concerned, the Labour Court considered the evidence, both oral and documentary and came to a finding that the workman entered into service on 11th May 1987, particularly on the basis of Ext. B & C. With regard to the 2nd issue, the Labour Court gave a finding that the workman served the Management continuously for a period of more than one year and six months till 1st January 1989. However, the Labour Court took a view that the removal of the workman from his employment shall be treated as 'Retrenchment' and there fore, it was violative of Section 25F of the laid Act. In this regard, the Labour Court put heavy reliance on the decision of Punjab Land Development and Reclamation Corporation Ltd. and others v. Labour Court, Chadigarh and others, 1990(3)SCC 682. The Labour Court, therefore, held that the termination of service was illegal and invalid. 5. In this regard, the Labour Court put heavy reliance on the decision of Punjab Land Development and Reclamation Corporation Ltd. and others v. Labour Court, Chadigarh and others, 1990(3)SCC 682. The Labour Court, therefore, held that the termination of service was illegal and invalid. 5. While deciding as to what relief the workman was entitled, the Labour Court, on the submission made by the workman that he was ready to forego the claim of reinstatement, if he is adequately compensated in lieu thereof, held that in stead of reinstatement the workman was entitled to 3.33 years of his salary, inclusive of other allowances besides full back-wage till the date of the order. While granting this relief, the Labour Court relied upon a decision of the Supreme Court in the case of O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and others reported in AIR 1987 SC 111 . 6. Mr. K.N. Gupta, appearing on behalf of the Management assailed the findings arrived at by the Labour Court, as being erroneous in law as also on fact.. The learned counsel submitted that in view of the conditions laid down in the letter of appointment, the removal of the workman from service cannot and shall not amount to retrenchment. The learned counsel further submitted that the Labour Court failed to consider that the case of the workman was fully covered by Section 2 (oo) (bb) of the said Act, as introduced by amending Act, No. 49 of 1984 The learned counsel then submitted that in the appointment letter itself, there was a condition that during the period of probation the service of the petitioner was liable to be terminated, if it was not found satisfactory by the Management, The learned counsel referring the condition mentioned in the letter of appointment submitted that the impugned order of termination does not amount to retrenchment. In this regard, learned counsel relied upon a decision if the case of Kartar Singh v. The State of Haryana and others reported in 1995 Vol. 87, Factories General Report 414 Mr. K.N. Gupta, learned counsel appearing on behalf of petitioner then assailed the order of the Labour Court on the question of grant of compensation. The learned counsel submitted that the Labour Court totally misconstrued the decision of the apex Court in O.P. Bhandari (Supra) by awarding compensation in lieu of reinstatement as also the entire back wages. K.N. Gupta, learned counsel appearing on behalf of petitioner then assailed the order of the Labour Court on the question of grant of compensation. The learned counsel submitted that the Labour Court totally misconstrued the decision of the apex Court in O.P. Bhandari (Supra) by awarding compensation in lieu of reinstatement as also the entire back wages. Learned counsel then submitted that admittedly the age of superannuation in the service of Management was 58 years. The Management in its written statement filed before the Presiding Officer, a copy of which is Annexure-2 to the writ application, categorically stated in paragraph 17 that the workman attained the age of 58 years which was the age of superannuation under the Management Service Rules. From that view point also the workman was neither entitled neither to be reinstated nor to receive any compensation. The learned counsel referred to the evidence led by the Management to that effect which was not controverter by the workman. The Labour Court failed to consider this aspect of the matter, while awarding compensation to workman. The learned counsel therefore, submitted that in that view of the matter, the impugned order passed by the Labour Court was contrary to law, facts and evidence on the record and is liable to be set aside. 7. Mr. Alok Kumar Sinha, learned counsel appearing on behalf of workman first of all drew my attention to the defence taken by the Management that the workman abandoned his service. The learned counsel, therefore, submitted that if the termination was on account of aburdament of service, then Section 25F of the Act, shall he attracted and for non-compliance thereof, the order of termination cannot be said to be legal and in accordance with law. The learned counsel submitted that the plea of the workman that he completed continuous service of 240 days was not disputed by the Management. The learned counsel made an alternative argument that in the letter of termination, there was no mention of any of the conditions contained in the letter of appointment. Even the unsatisfactory service of the workman was not mentioned in the letter of termination. The Management, therefore, cannot be allowed to take the plea that the service was terminated in terms of contract of employment and, therefore, it was saved by Clause 2 (bb) of the said Act. Even the unsatisfactory service of the workman was not mentioned in the letter of termination. The Management, therefore, cannot be allowed to take the plea that the service was terminated in terms of contract of employment and, therefore, it was saved by Clause 2 (bb) of the said Act. The leaned counsel then submitted that Section 2 (oo) (bb) of the Act, does not give a blanket power to the Management to terminate the service which would amount to violation of principle of natural justice, as the principle of natural justice must be deemed to be in the clause contained in the letter of appointment. In this regard the learned counsel relied upon a decision of the Supreme Court in D.K. Yadav M/s J.M.A Industries Ltd, reported in AIR 1993 SCW 1995 . The leaned counsel then submitted that if the service of the workman was terminated on account of continued absence without any leave, then such unauthorised absence will amount to misconduct. Referring to Ext-D, the learned counsel submitted the, if it was a misconduct on the part of the workman, their in absence of any enquiry, the order of termination cannot be sub-stained in law, Repelling the argument of the petitioner's counsel the learned counsel for the workmen submitted that the question of age of superannuation, as pointed out by the Management as 58 years, does not apply in the case of the workman, inasmuch as the workman was taken in the employment at the age of 60 years. 8. Before appreciating the submission advanced on behalf of both the parties, it would be necessary to look into the relevant provisions of the said Act. The work-retrenchment as defined under Section 2 (oo) of the said act, before amendment, reads as under : Section 2 (oo) “Retrenchment” means the termination by the employer of the service of workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action, but does not include. (a) Voluntary retrenchment of the workman, or (b) retirement of the workman on reaching the age of superannuation, if the contract of the 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. (a) Voluntary retrenchment of the workman, or (b) retirement of the workman on reaching the age of superannuation, if the contract of the 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. After amendment of the definition, by Amendment Act, 1984, the definition of the work-"retrenchment" reads as under : (a) Voluntary retrenchment of the workman; or (b) retirement of the workman on reaching the age of superannuation, If the contract of the employment between the employer and the workman concerned contained a stipulation in that behalf; (bb) Termination of service of a workman as a result of non-renewal of the contract of the 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. Section 25-F of the said Act, reads as under : Section 25-F Conditions precedent to retrenchment of workmen-No workman employed in any industry that 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 for the termination of service; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen day's average pay for every, completed year of continuous service of 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. 9. The letter of appointment has been brought on record by the writ petitioner by filing supplementary affidavit which is Annexure 6. 9. The letter of appointment has been brought on record by the writ petitioner by filing supplementary affidavit which is Annexure 6. There was no dispute that by virtue of this letter dated 11th May 1987 (Annexure 6), the petitioner was appointed on probation for one year, with a clause of extension for a further period of one year. The said appointment letter contains the conditions of service. The condition nos. 1, 2 and 3 are most relevant for the purpose of deciding the question in this writ application. The said clause reads as follows: (1) Yah kiapka Niyojan 12 Mah ke parikshan par Hoga. Yah parikshan kal yadi Avashyak hua to 12 Man ke Liye age Badhaya ja Sakta Hai. (2) Yah ki agar prambhuk parikshan kal ya badhaye gaye parikahan kal men apka karya vyavashapan ki dristi me santosh janak paya jayega to apko prambhik pari kshan kal ya badhaye gaye parikshan kal ki samapti ke bad sthayee (confirm) kiya ja sakta hai sthayee (confirm) karne ka adesh likhit Hoga yadi Apka koi likhit adesh nahin milta hai to aisee sthiti men apki sethayee (confirm) Nahin mani jayegi balki, yan mana jayega ki apka parikihan kal badh gaya hai. (3) Yah ki apke prambhik parikshan kal ya badhaye gaye parikshan kal ke Dauran Bhi vyavasthapan apke karya ke star ke sambandh men nirnay le sakta Hai, agar wah apekshit star ka nahin paya jayega to apki sevayen us samay bhi samapt ki ja sakti hai. 10. The question for consideration is as to whether in view of the condition of service as quoted hereinabove, the termination of service of the petitioner is said to have been served by Section 2 (oo) (bb) of the said Act. Admittedly, the petitioner was appointed for a period of one year on 11th May 1987 and he was entrusted to, drive Tank Lorry. The condition of appointment was duly accepted by him. It is also admitted case of the parties that after completion of one year the period of probation was extended for another, one year upto 10th May 1989. It was also not disputed that the petitioner started absenting from duty from 1st January 1989. Because of his absence, the Management decided to terminate his service with effect from 1st January 1989 i.e. from the date when he remained absent. It was also not disputed that the petitioner started absenting from duty from 1st January 1989. Because of his absence, the Management decided to terminate his service with effect from 1st January 1989 i.e. from the date when he remained absent. The Labour Court applying the ratio decision of the Supreme Court in Panjab Land Development and Reclamation Corporation Ltd. (Supra) held that such type of termination amounted to retrenchment and, therefore, held to be illegal for non-compliance of the provisions of Section 25-A of the said Act. 11. In my opinion the Labour Court completely faded to appreciate that in the case before the Supreme Court, the termination of service of a workmen was prior to the amendment made in the definition of the work retrenchment i.e. prior to 18th August 1984. The apex Court took notice of the exception provided under the said definition and observed as under : "When we analyse the mental process in drafting the definition of “retrenchment”, in Section 2 (oo) of the Act, we find that firstly it is to mean the termination by the employer of the service of a workman for any reason whatsoever. Having said so, the Parliament proceeds to limit it by excluding certain types of termination, namely termination as a punishment inflicted by way of disciplinary action. The other types of termination excluded were (a) voluntary retrenchment; or (b) retrenchment of the workman on reaching the age of superannuation, if the contract of employment between the employer and the workman concerned contains a stipulation on that behalf; or (c) termination of service of a workman on the ground of continued ill-health. Had the Parliament of envisaged only the question of termination of surplus labour alone in mind, there would arise no question of excluding (a) (b) and (c) above. The same mental process was evident when Section 2(oo) was amended inserting another exclusion clause (bb) by the Amending Act, 49 of 1984 with effect from August 18, 1984. Had the Parliament of envisaged only the question of termination of surplus labour alone in mind, there would arise no question of excluding (a) (b) and (c) above. The same mental process was evident when Section 2(oo) was amended inserting another exclusion clause (bb) by the Amending Act, 49 of 1984 with effect from August 18, 1984. Termination of the service of workman as a result of non-renewal of the contract of employment between the employer and the workman concerned on its expiry of such contract being termination under the stipulation in that behalf contained therein.” 12 In M. Venugopal v. The Divisional Manager, Life Insurance Corporation of India Machilipatnam, Andhra Pradesh and another reported in AIR 1994 SC 1343 , the question for consideration before their lordships was as to whether the termination of service of a probationer without any notice in terms of the contract of employment will be illegal for non-compliance of provisions of Section 25-A of the said Act, in the case before the Supreme Court, the appellant was appointed as Development Officer by the Life Insurance Corporation of India on probation for a period of one year from 23rd May 1984 to 22nd May 1985. This period was extended for a further period of one year from 23rd May 1985 to 22nd May 1986. Clauses 3 to 6 of the order of appointment dealt with the Code of conduct to be followed and clause 11 dealt with the confirmation. According to the service condition the confirmation of service was dependent upon the fulfilment of minimum business. Before expiry of the extended period of probation the service of the appellant was terminated on 9th June 1986. The appellant filed a writ application before High Court questioning the legality of the aforesaid order of termination. The learned single Judge quashed the said order holding that as the appellant shall be deemed to be the workman within the meaning of the Act, the termination of his service will amount to retrenchment within the meaning of Section 2 (oo) of the Act, which was null ahdvoid in view of non-compliance of the provisions of Section 25-F of the Act. On appeal being filed by the Corporation, a Division Bench of the High Court took the view that because of clause (bb) which was introduced in Section 2 (oo) of the Act, with effect from 18th August 1984 the termination of the appellant from service by the Corporation within the period of probation shall not amount to retrenchment within the meaning of Section 2 (oo). The appellant then preferred appeal before the Supreme Court. Their Lordships dismissing the appeal observed in paragraphs 7 and 9 as under : Para-7: Clause 11 of the order of appointment specifically said that on appellant's satisfactorily completing the period of probation and on his observance and compliance with all the condition set out in the said letter of appointment, he "will be confirmed in the services of the Corporation.....” In that very clause, it was farther said that the confirmation of the appellant was dependent inter alia upon the fulfilment of the minimum business guarantee set out in para 10 of the said order of appointment. According to the Corporation, as admittedly the appellant did not reach the minimum target fixed in Clause 10 of the order of appointment and his service was found not to the satisfaction of tile competent authority, the contract of employment was terminated under a stipulation in that behalf contained" in the order of appointment itself and as such covered by Clause (bb) of S. 2 (oo) of the Act. Para 9: Regulation 14 aforesaid has to be read as a statutory term of the contract of employment between the Corporation and the appellant. The order of appointment had fixed a target in respect of the performance of the appellant, which admittedly the appellant failed to achieve within the period of probation which was extended upto two years. As such the Corporation was entitled not to confirm the appellant in terms of the order of appointment and to terminate his service during the period of probation without any notice in terms of Regulation 14 (4) aforesaid, Clauses 10 and 11 of the order of appointment alone with Regulation 14 shall be deemed to be stipulation of the contract of employment, under which the service of the appellant has been terminated. Any such termination, even if the provisions of the Industrial Disputes Act, were applicable in the case of the appellant, shall not be deemed to be “retrenchment” within the meaning of S.2 (oo), having been covered by exception (bb), Before the introduction of Clause (bb) in Section 2 (oo), there were only three exceptions so far termination of the service of the workman was concerned which had been excluded from the ambit of retrenchment (a) voluntary retirement; (b) retirement on reaching age of superannuation; and (c) on ground of continued ill health. This Court from time to time held that the definition of "retrenchment" being very wide and comprehensive in nature shall cover, within its ambit termination of service in any manner and for any reason, otherwise than as a punishment inflicted by way of disciplinary action. The result was that even discharge simpliciter was held to fall within the purview of the definition of "retrenchment". (State Bank of India V.N. Sundars Money, AIR 1976 SC 1111 : (1976) (1) SCC 822, Santosh Gupta Vs. State Bank of Patiala, AIR 1980 SC 1219 : ( 1980 (3) SCC 340 . Now with the introduction of one more exception to Section 2 (oo) under clause (bb), the Legislature has excluded from the purview of the "retrenchment" (i) termination of the service of the workman as Ii result of the nonnewal of the contract of employment between the employer and the workman concerned on its expiry : (ii) such contract being terminated under a stipulation in that behalf contained in contract of employment. It need not be impressed that if in the contract of employment to such stipulation is provided or prescribed, then such contract shall not be covered by clause (bb) of S. 2 (oo). In the present case, the termination of service of the appellant is as a result of the contract of employment having been terminated under the stipulations specifically provided under Regulation 14 and the order of the appointment of the appellant. In this background the non-compliance of the requirement of S.25-F shall not vitiate or nullify the order of termination of the appellant". 13. A similar question arose in a can before the Punjab and Haryana High Court in Kartar Singh (Supra). In this background the non-compliance of the requirement of S.25-F shall not vitiate or nullify the order of termination of the appellant". 13. A similar question arose in a can before the Punjab and Haryana High Court in Kartar Singh (Supra). The question for consideration before the Court as to whether the termination of service of the petitioner who was appointed as a clerk on probation for a period of two years, as he failed to show improvement in his walk will amount to "retrenchment". The Court after considering an the decisions of various High Court and the Supreme Court, including the case of Punjab Land Development and Reclamation Corporation Ltd. (Supra) held that after addition of Clause (bb) in Section 2 (oo) of the Industrial Disputes Act, by the Industrial Dispute Amendment Act, 1984 a particular category of termination of service has been taken out from the definition of "retrenchment". In the said judgment their Lordship observed : "In the case of petitioner the conditions incorporated in the letter of appointment which appropriately be termed as a contract of employment between him and respondent no. 2 clearly provide for termination of service during the period of probation without any notice and without any reason. It is therefore, clear to us that in brining about an end to the employment of the petitioner during the period of probation the employer was not required to give any notice or pay compensation to the petitioner in terms of Section 25-F of the Act. Termination of service of the petitioner is covered by clause (bb) of Section 2 (oo) of the Act, and, therefore, it cannot be declared as invalid on the ground of alleged violation of Section 25-F of the Act." 14. In the instant case, as I have already noticed, the petitioner's appointment was for a period of one year which was extended for another period of one year expiring on 10th May 1989. Before the expiry of the probation period the petitioner’s service was terminated. From the contract of employment which is Annexore-6 to the supplementary affidavit tiled by the Management, it is apparent that there was a specific condition that if at any time, the service of the petitioner was not found satisfactory, and then it shall be terminated. Before the expiry of the probation period the petitioner’s service was terminated. From the contract of employment which is Annexore-6 to the supplementary affidavit tiled by the Management, it is apparent that there was a specific condition that if at any time, the service of the petitioner was not found satisfactory, and then it shall be terminated. Admittedly, the workman remained absent from 1st January 1989 and before the expiry of extended period of probation his service was terminated. In this view of the matter, I am of the opinion that after the insertion of clause (bb) to Section 2 (oo) of the Act, the category of termination of service has been taken out from the definition of “retrenchment”. This category embodied within its termination of service of a workman as a result of non renewal of contract of employment or termination of contract of employment under the stipulation in that behalf contained in the contract itself. Therefore, after August 1984 when Clause 2 (bb) was inserted in the definition of retrenchment under Section 2 (oo), termination of service of a workman brought about in accordance with the conditions specified in the contract of employment will not be treated as "retrenchment" within the meaning of Section 2 (oo) of the said Act. The award of the Labour Court, therefore holding that the termination of service of the petitioner was illegal for non-compliance of Section 25-F or the said Act, cannot be sustained in law. J, therefore, hold that the termination of service by the Management was not violative of any provisions of the said Act. 15. The Labour Court then after holding that the termination was illegal, awarded compensation equivalent to 3.33 years salary in lieu of reinstatement and also full back wages. The aware of the Labour Court with regard to compensation is also not in accordance with law. 16. Although it is not necessary to go into the correctness of the award given the Labour Court with regard to compensation in view of my finding that the termination was not illegal but because of wrong approach taken by the Labour Court, I think it proper to correct the same. 16. Although it is not necessary to go into the correctness of the award given the Labour Court with regard to compensation in view of my finding that the termination was not illegal but because of wrong approach taken by the Labour Court, I think it proper to correct the same. The Labour Court relying upon the decision of O.P. Bhandari (supra) has had that in lieu of reinstatement the workman was entitled to set 3.33 years of his salary, inclusive of other allowances, apart from full back-wages till the date of the award along with allowances and benefits. In other words, in lieu of reinstatement the Labour Court not only awarded compensation equivalent to 3.33 years salary but also awarded full back-wages from the date of terminal ion of service till the date of the award and other allowances and benefits. In my opinion the Labour Court misunderstood the decision of the Supreme Court in O.P. Bhandari (Supra) case. In that case, the apex Court while taking the view that it was a fit case for granting compensation in lieu of reinstatement was considering the quantum of compensation payable to the employee. It was held that compensation equivalent to 3.33 years salary (including allowance as admissible) on the basis of last pay and allowances drawn by the appellant would be reasonable amount to award in lieu of re instatement. The labour Court according to me has not correctly reed the operative portion of the judgment of the apex Court. For better appreciation, the operative portion of the judgment is quoted here-in-below :- Para-10: (I) "The respondent Corporation shall re-instate the appellant with full back-wages (including usual allowances), or, at its option. (II) The respondent Corporation shall pay to the appellant :- (i) Salary, including usual allowances for the period commencing from the date of termination of his service under the impugned order till the date of payment of compensation equivalent to 3.33 years Salary, including usual allowances to him" . 17. (II) The respondent Corporation shall pay to the appellant :- (i) Salary, including usual allowances for the period commencing from the date of termination of his service under the impugned order till the date of payment of compensation equivalent to 3.33 years Salary, including usual allowances to him" . 17. From the reading of the operative portion of the judgment of the apex Court, it is clear that in case of reinstatement, the workman would be entitled to full back-wages (including usual allowance) and in a case where compensation is paid in lieu of reinstatement, then the workman will be entitled to salary (including usual allowances) for the period commencing from the date of commencement of service till the date of payment of compensation equivalent to 3.33 years salary (including usual allowances). 18. Be that as it may, as I have held that the termination of the respondent workman cannot be said to be illegal for non-compliance of Section 25-F of the said Act, the workman is not entitled to get any compensation or salary whatsoever. 19. In the result, this writ application is allowed and the award passed by the Labour Court is set aside. In the fact of the case, there shall be no order as to costs. Application allowed.