JUDGMENT - Dr. D.Y. CHANDRACHUD, J.:---These proceedings under Article 226 of the Constitution of India are directed against an Award of the Presiding Officer of the First Labour Court at Bombay delivered on 18th October, 1995. By the Award, the Labour Court has directed the petitioner to reinstate the first respondent in service with effect from 7th February, 1995 with continuity of service and with 50 per cent back wages together with consequential benefits. Pursuant to an interim order passed in the writ petition on 22nd February, 1996, the first respondent was offered work by the petitioner and he has now worked for nearly five years. The workman has drawn wages at the rate of Rs. 3,500/- per month while differential wages of Rs. 6,500/- per month have been directed to be deposited in Court. 2. In the statement of claim which was filed by the first respondent in the reference to adjudication before the Labour Court, the first respondent claimed that he was a workman employed as a Clerk-cum-Typist with the petitioner from 26th December, 1981 until 6th March, 1985 when his services came to be dispensed with. The workman made a grievance of the fact that during the course of his employment he had been given breaks in service by the employer from time to time with the mala fide intention of avoiding the grant of continuity of service and to deprive him of the benefits under the Industrial Law. According to the first respondent he was appointed as a Clerk-cum-Typist initially between 26th December, 1981 and 27th June, 1982. Thereafter, after a break of about seven days he was reappointed from 5th July, 1982 until 8th October, 1983. Thereafter he was again reappointed from 6th February, 1984 to 7th September, 1984. The workman contended that he was thereafter again continued in service from 13th December, 1984 until 6th March, 1985 when his services came to be terminated. According to the workman, he had thus been in for service over for a period of three and a half years during which he had been given breaks in service intermittently. In the claim which was filed in the reference, a grievance was made of the fact that the services of the first respondent were terminated without giving him any show cause notice, without assigning reason and without holding an enquiry. In the claim which was filed in the reference, a grievance was made of the fact that the services of the first respondent were terminated without giving him any show cause notice, without assigning reason and without holding an enquiry. A reference was made to the fact that after the services of the first respondent came to be terminated the employer had engaged three or four other persons. 3. In the written statement which was filed on behalf of the employer before the Labour Court, it was sought to be submitted that the first respondent had been engaged in temporary employment from time to time depending upon the exigencies of work. According to the employer, the workman had been engaged because the frequent failure of computers required the company to adopt manual calculations. There is no dispute about the fact that the workman had worked between the period 31 August, 1983 to 20th September, 1983, 3rd October, 1983 to 8th October, 1983; 6th February, 1984 to 7th September, 1984 and 30th December, 1984 to 6th March, 1985. In paragraph 22 of the written statement the employer stated that it bore no ill will towards the workman and that if any temporary vacancy arose in future, the Management would be willing to give the workman employment on the same basis. At the present stage, it must also, be noted that the employer expressly sought to contend that the workman had not put in 240 days of continuous service and that he was not entitled, therefore, to receive notice or pay in lieu thereof under the provisions of the Industrial Disputes Act, 1947. It was also pleaded in the written statement that according to the Management, the workman was not fit for employment in a permanent post due to his poor general knowledge and lack of knowledge of business correspondence. 4. The Industrial Court by its order dated 18th October, 1985 has granted reinstatement though with 50 per cent back wages. The Industrial Court has noted that a Chart, Exh-U-30, was filed on behalf of the workman in which it was stated that the workman had worked a total of 267 working days during the period 7th March 1984 to 6th March 1985. This was inclusive of Saturdays, Sundays and other weekly holidays. The Industrial Court has noted that a Chart, Exh-U-30, was filed on behalf of the workman in which it was stated that the workman had worked a total of 267 working days during the period 7th March 1984 to 6th March 1985. This was inclusive of Saturdays, Sundays and other weekly holidays. Relying upon the judgment of the Supreme Court in (The Workman of American Express International Banking Corporation v. The Management of American Express International Banking Corporation)1, reported in 1986 Bank.J. (S.C.)89, the Industrial Court held that Sundays and other holidays would necessarily have to be taken into consideration in computing whether the workman had rendered service of 240 days. The Industrial Court held that the employment of the workman in the present case was a continuous employment and he was not a casual worker. In the circumstances, the Industrial Court came to the conclusion that the workman was entitled to the inclusion of Sundays and other holidays in computing the period of 240 days. The Industrial Court has come to the conclusion that the approach of the employer in the present case was mala fide in that while on the one hand it was sought to be contended in the written statement that the Company bore no ill will against this employee and was willing to offer him temporary employment, it was, on the other hand, contended that he was not fit for employment in a permanent post. The Industrial Court was of the view that if the work of the first respondent in the present case was unsatisfactory the company would have not continued to appoint him from time to time on a temporary basis. In the circumstances, the claim that the workman was not suitable for permanent employment was rejected and it was held that the termination of service was punitive and illegal. Relief as aforesaid has consequently been granted to the workman. 5. Before evaluating the submissions which have been urged in the present case on behalf of the contesting parties, it would be necessary to notice at the out set that there is no dispute about the dates between which the first respondent worked with the employer. During the course of the cross-examination he has admitted the fact that he was initially appointed as an apprentice and that the period of apprenticeship came to an end on 29th August, 1983. During the course of the cross-examination he has admitted the fact that he was initially appointed as an apprentice and that the period of apprenticeship came to an end on 29th August, 1983. He had thereafter worked from 3rd October, 1983 to 8th October, 1983; 6th February, 1984 to 7th September, 1983 and 30th December, 1984 until 6th March, 1985. There is again no dispute about the fact that the workman has rendered work during the aforesaid period. On behalf of the workman a Chart was filed before the Industrial Court in which for determining whether he had worked continuously for a period of one year immediately prior to the date of the termination, the number of days for which he was in service between March 1984 until the termination on 7th March 1985 was set out. The workman had rendered 267 days of service. I am of the view that the Industrial Court was justified in coming to the conclusion that the Sundays which intervened during the period when the workman worked with the petitioner are not liable to be excluded in computing whether he had completed service over a period of 240 days. It is now a well settled principle of law following the decision of the Supreme Court in American Express case (supra) that the expression 'actually worked' does not connote only those days when the workman had worked with “hammer, sickle or pen”. The Supreme Court held that the period of actual work must comprehend those days during which he was in the employment of the employer and for which he had been paid wages either under a contract of service or under the statute or standing orders. In the present case after the first respondent completed his apprenticeship with the petitioner, he was employed over a length of time between February 1984 and September, 1984 and again between December 1984 and March 1985. Having regard to the length of time over which the appointment was made a extended and the nature of the appointment it would be improper to discard the intervening Sundays in computing the period of 240 days. There is no infirmity in the order passed by the Industrial Court which holds that this was not a casual but a continuous employment. The factory being closed on Sundays, there was no occasion to report for work on Sundays. There is no infirmity in the order passed by the Industrial Court which holds that this was not a casual but a continuous employment. The factory being closed on Sundays, there was no occasion to report for work on Sundays. However, having regard to the continuous nature of employment during the period over which the workmen worked in the present case, the Award of the Industrial Court does not call for interference under Article 226. 6. That being the position, the workman was in the present case clearly entitled to the beneficial provisions of section 25-F of the Industrial Disputes Act, 1947. The workman was in the present case in continuous service of one year within the meaning of section 25-B of the Industrial Disputes Act. The workman had actually worked for a period not less than 240 days during that period. There is no dispute about the fact that the services of the workman were dispensed with without any notice or compensation. The termination was in the circumstances clearly unlawful. The consequences under the Model Standing Orders would consequentially follow. 7. The learned Counsel appearing on behalf of the employer sought to submit that no case had been made out by the workman or even pleaded to the effect that he had actually worked for 240 days. This submission cannot be acceded to. The material part of the statement of the claim has already been referred to hereinabove. The workman had set out the relevant dates during which he had been in service with the employer. In fact, even the defence of the employer was that the workman had not completed 240 days of service. In the written statement, the employer placed a Chart setting out the days for which, according to the employer, the workman had worked. Parties had clearly joined issue on the question as to whether the workman had completed continuous service of one year within the meaning of section 25-B of the Act. As already noticed, a Chart Exh-U-30 had ben submitted on behalf of the workman before the Industrial Court. The Industrial Court has accepted the claim of the workman of his having completed continuous service of 240 days. The Court has held that the termination of service without complying with the mandatory provisions of law was unlawful. As already noticed, a Chart Exh-U-30 had ben submitted on behalf of the workman before the Industrial Court. The Industrial Court has accepted the claim of the workman of his having completed continuous service of 240 days. The Court has held that the termination of service without complying with the mandatory provisions of law was unlawful. There is a clear finding of the Industrial Court which is reflective of the fact that the case of the employer as contained in the Chart at Exh-U-30 was accepted by the Court. In these circumstances, there is no substance in the submission which has been urged on behalf of the employer. The present case is hence not akin to the one which came up for consideration before a learned Single Judge of this Court in (S.H. Kelkar and Company Ltd. v. Khasaba K. Jadhav)2, reported in 1997(II) C.L.R. 649. There was in that case a complete absence of pleading or proof that the workman had completed continuous service of one year, as defined in section 25-B, during the preceding twelve calendar months. The learned Counsel appearing on behalf of the employer, however, submitted that the Industrial Court was in error in coming to the conclusion that the termination of service was in the present case mala fide. I find some justification in this submission. The employer had in para 27 of the Written Statement contended that if the Court held that the termination of service was not proper, the workman should not be given reinstatement as in the opinion of the Management he was not fit for employment in a permanent post. This was allegedly due to his poor general knowledge and lack of knowledge of business correspondence. In this context it was sought to be submitted that he may be awarded compensation instead. The employer, however, submitted that there was no ill will towards the workman and when any temporary vacancy arises the management would be willing to provide work to the workman. These averments do not, in my view, establish a case of mala fide. It is well settled that in order to establish a case of mala fides, the facts must be pleaded and proved with a degree of precision. The case of the employer was that while he was willing to provide temporary work to the workman concerned, the workman was not fit for permanent appointment. It is well settled that in order to establish a case of mala fides, the facts must be pleaded and proved with a degree of precision. The case of the employer was that while he was willing to provide temporary work to the workman concerned, the workman was not fit for permanent appointment. During the course of the examination the witness for the employer has deposed to the fact that it was the policy of the company that only graduates should be taken as permanent employees and that at the material time the workman was not a graduate. Having regard to the facts and circumstances in the present case, I am of the view that the Industrial Court erred in holding that the termination of services was mala fide or that it was punitive. The termination was unquestionably illegal because the mandatory provisions of section 25-F were not complied with. That is, however, quite different from holding that the employer had committed an act which was motivated by mala fides. 8. In so far as the grant of appropriate relief is concerned, it must be recorded that an earnest effort has been made by the learned Counsel for the parties to settle the matter and after arguments were heard, the case was adjourned so to enable the learned Counsel to explore a possible settlement. The learned Counsel appearing on behalf of the workman has stated before the Court that the workman is willing to accept compensation in lieu of reinstatement. The learned Counsel appearing on behalf of the employer stated that the petitioner is willing to pay to the workman reasonable compensation in lieu of reinstatement. On receiving instructions, Mr. Cama the learned Counsel appearing on behalf of the employer has stated that the employer is willing to offer a lump-sum settlement for an amount of Rs. 6 lakhs to the workman inclusive of the amount which has been deposited by the employer pursuant to the interim orders dated 22nd February, 1996 and 29th November, 1996 passed by this Court. The learned Counsel appearing on behalf of the workman has stated that the first respondent is willing to accept an amount of Rs. 6.50 lakhs as compensation in lieu of reinstatement. I am of the view that the grant of compensation in lieu of reinstatement in the amount of Rs. 6.50 lakhs would subserve the ends of justice. The learned Counsel appearing on behalf of the workman has stated that the first respondent is willing to accept an amount of Rs. 6.50 lakhs as compensation in lieu of reinstatement. I am of the view that the grant of compensation in lieu of reinstatement in the amount of Rs. 6.50 lakhs would subserve the ends of justice. This amount has been calculated thus: Pursuant to the order of the Division Bench dated 22nd February, 1996 passed at the interim stage, the employer was given the liberty to allot work to the workman and to calculate wages due to the workman as on the date of the Award and to pay the same to him against a receipt. Pursuant thereto the workman has in fact worked with the petitioner continuously since February 1996. Thereafter, by an order dated 29th November, 1996 passed in terms of minutes in Notice of Motion No. 310 of 1960 the employer was directed to deposit an amount of Rs. 6000/- per month in the Court towards the differential wages. It is common ground between the learned Counsel that an amount of Rs. 3,500/- per month has been paid to the workman in the present case as salary. The balance of Rs. 6,500/- per month was required to be deposited in the Court. The learned Counsel appearing on behalf of the employer informed the Court that the salary to which a similarly placed clerk in the service of the petitioner would be entitled would have been approximately Rs. 9,000/- per month. The difference between what the respondent has actually been paid for work rendered and the figure of Rs. 9,000/- is Rs. 5,500/- per month. Calculated for a period of 64 months, the respondent would be entitled to receive approximately Rs. 3.5 lakhs. The workman is entitled to this amount because it reflects the differential in wages for the period during which he has actually worked in the service of the employer. Over and above this amount, compensation in lieu of reinstatement is required to be computed. I am of the view that the compensation should be quantified, in the facts and circumstances of the case, at Rs. 3 lakhs which would approximately work out to three years salary at the rate of Rs. 9,000/- per month. Over and above this amount, compensation in lieu of reinstatement is required to be computed. I am of the view that the compensation should be quantified, in the facts and circumstances of the case, at Rs. 3 lakhs which would approximately work out to three years salary at the rate of Rs. 9,000/- per month. As already noted, the learned Counsel for the respondent stated that the respondent has agreed to accept compensation in lieu of reinstatement and to the payment of Rs. 6.50 lakhs in full and final settlement. The learned Counsel appearing on behalf of the petitioner submitted that he is authorised to agree to the payment of Rs. 6 lakhs and that, therefore, any amount over and above the said figure may be made by an order of the Court. In the circumstances of the present case, therefore, I consider it fit and proper in the interests of justice to modify the order of reinstatement with 50 per cent back wages passed by the Industrial Court. In lieu of reinstatement, it is directed that the workman would be paid an amount of Rs. 6.50 lakhs in full and final settlement. The first respondent would be at liberty to withdraw the amount which has already been deposited in the Court by the petitioner. The amount which is payable over and above the amount which the first respondent has withdrawn so as to make a total figure of Rs. 6.50 lakhs shall be paid by the petitioner to the first respondent within a period of four weeks from today. The petitioner agrees to carry out necessary documentation so as to ensure that the first respondent is granted a spread over for the purposes of the Income Tax. The learned Counsel appearing on behalf of the petitioner has also stated that all necessary steps would be taken to ensure the release of the provident fund that is due and payable to the first respondent. In view of the present order, the learned Counsel appearing on behalf of the first respondent states that the complaint filed by the first respondent before the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 withdrawn. In view of the present order, the learned Counsel appearing on behalf of the first respondent states that the complaint filed by the first respondent before the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 withdrawn. The learned Counsel appearing on behalf of the petitioner has stated that the salary of the petitioner for the month of May 1999 shall be paid within a period of two weeks from day. In the circumstances, the writ petition shall stand disposed of in terms of the aforesaid directions. There shall be no order as to costs. Order accordingly. -----