JUDGMENT 1. - Heard learned counsel for the parties. 2. The appellant has raised two fold contention before us in this appeal which arises out of judgment passed by the learned Single Judge on 18.2.02 dismissing the appellant's writ petition. 3. The respondent Akeel Ahmed was appointed as daily rated workman at the I.C.A.R. establishment on 26.2.87 and his services were terminated on 19.1.88. No compliance of the provisions of Industrial Disputes Act, particularly chapter 5A of the Act, was made, is not in dispute. 4. In the first instance the petitioner filed writ petition challenging the termination order after more than 4 years of his termination in the year 1992 interalia on the ground that the termination was in violation of provisions of Industrial Disputes Act. The said Writ petition No. 4791/92, was dismissed on 10.3.98, Akeel Ahmed v. Union of India . The learned Single Judge has dismissed the writ petition while holding that the petitioner ought to approach alternative remedy in the Industrial Disputes Act in the first instance and directed the petitioner to approach the appropriate Govt. without invoking the conciliation by approaching the Conciliation Officer. The court also directed that in case the reference is made by the appropriate Govt. to the Industrial Tribunal/Labour court, the Tribunal is requested to conclude the dispute expeditiously. 5. Thereafter on raising the industrial dispute the State Govt. by its notification dated 7.4.99 referred the question about the legality of the termination of the services of the respondent No. 1 to the labour court, Jodhpur. 6. The parties joined issue about the legality of the termination interalia on two grounds. Firstly that the respondent workman had not actually worked for more than a year and has also not actually worked for 240 days during the 12 calendar months immediately preceding the alleged relevant date of termination, therefore, the provisions of Section 25F did not apply. It was also the case of the workman that apart from violation of Section 25F the termination was also in violation of 25G of the Industrial Dispute Act in as much as the workman appointed after him had been continued in service whereas his services were brought to an end.* Alternatively the appellant before us had also taken a plea that services of the respondent No. 1 workman during his employment under appellant was not satisfactory and, therefore, his services were not continued. The allegations about unsatisfactory working raised before the Tribunal was that he was not keeping and giving the correct account of the counter of the canteen where he was employed and, therefore, he was removed from the canteen services. He had been given many opportunities by taking him away from the services during this period and in no case he had completed 240 days of actual working. About the identity of the petitioner a doubt was also raised in as much as according to the employer name of the father of the petitioner in the muster roll is Faiaz Ahmed whereas in the claim petition the workman has named his father as Abdul Afeez. 7. The Tribunal found that the respondent workman was engaged physically actually for 222 days and it was admitted by witness of the employer that in these 222 days and weekly and paid holidays are not included. Thus, considering that weekly holidays and paid holidays are to be included for the purpose of computing actual working days during 12 calendar months immediately preceding the relevant date in terms of Section 25B(2) of the Act, it was found as a fact by the Tribunal that the workman has actually worked for more than 240 days. Consequently he fulfilled the condition of being in continuous employment for one year in terms of Section 25B(2) of the Act 1947. 8. As it was not in dispute that the provision of Section 25F has not been complied with the termination was found to be invalid. About the contention of the employer that services of the petitioner were terminated on account of unsatisfactory work relating to the concealment and not giving the account of canteen correctly, the Tribunal found that no inquiry was conducted since the same was not done. The termination on that basis cannot be sustained. About the contention of the employer that services of the petitioner were terminated on account of unsatisfactory work relating to the concealment and not giving the account of canteen correctly, the Tribunal found that no inquiry was conducted since the same was not done. The termination on that basis cannot be sustained. However, it has not been made the basis of finding that the termination in as much as on this finding the employer could have demanded an inquiry to be conducted by the Tribunal itself to sustain the termination on the ground of alleged mis conduct but the Tribunal rested its decision solely on the basis of the violation of Section 25 F The Tribunal also found that there was a violation of Section 25G.With these findings an award was made for reinstatement of respondent with 25% back wages with effect from the date of reference until the date of reinstatement. 9. This award dated 15.4.01 was not interfered with by the learned Single Judge considering it to be finding of fact and not liable to be interfered with in exercise of extra ordinary jurisdiction. 10. The same contention has been raised before us by the learned counsel for the appellant. 11. So far as the finding that the respondent workman has not actually worked for 240 days during the 12 calendar months immediately preceding the date of termination is a finding of fact arrived at on correct application of principle as enunciated by the Hon'ble Supreme Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, 1985(4) SCC 71 and Management of Standard Motor products of India Ltd. v. A. Parthsarathy and another, 1985(4) SCC 78 . The contention to the contrary raised by the learned counsel for the appellant cannot be sustained. Moreover, we have noticed above that it was admitted by the witness of the appellant that the actually working days admitted by them to be 222 does not include weekly holidays and paid holidays. 12. So far as the question of alleged misconduct is concerned, undoubtedly the appellant could have claimed an Inquiry Into the alleged misconduct by the tribunal but there does not appear to be any material to suggest that such request was made to the Tribunal for giving such an opportunity, therefore, no fault in the award can be found. 12. So far as the question of alleged misconduct is concerned, undoubtedly the appellant could have claimed an Inquiry Into the alleged misconduct by the tribunal but there does not appear to be any material to suggest that such request was made to the Tribunal for giving such an opportunity, therefore, no fault in the award can be found. It Is also true that if non-submission of accounts and furnishing of wrong accounts is considered to be foundation of termination of respondent's services, it is apparent that the same has been brought about in breach of principle of natural justice without holding an inquiry by invoking the power of termination. 13. On the findings of the Tribunal the termination order can neither be sustained under Industrial Disputes Act If it is taken to be termination simpliciter nor as an order to be punitive, beyond the provisions of chapter 25F of the Industrial Disputes Act, having been made in principles of natural justice. 14. Be that as it may learned counsel for the appellant has laid great stress that the award of reinstatement has been made without taking into consideration the attending circumstances which has made the award apparently imbalanced causing the great injustice to the appellant at the cost of public exchequer. In this connection learned counsel for the appellant has referred to the fact that the petitioner has barely worked with the appellant less than 8 months, he was only a daily wager employee and his reinstatement would result in giving him backdoor entry for temporary service for a very limited period which is the position not approved by the Hon'ble Supreme Court. He also pointed out that the respondent has been vigilent in raising the dispute about the termination. He has come for the first time after 4 years of termination of. services, the remedial measures could have been taken immediately and the petitioner appellant could have got the records straight and followed the procedure in accordance with law and passed the appropriate order well within time. For this lapse procedure such a short term employee on dally rated ought not to foisted upon them. 15. services, the remedial measures could have been taken immediately and the petitioner appellant could have got the records straight and followed the procedure in accordance with law and passed the appropriate order well within time. For this lapse procedure such a short term employee on dally rated ought not to foisted upon them. 15. Keeping all the submission in focus, learned counsel for the respondent has urged In consultation with the respondent No. 1 who was present in person In the court, that termination having been held to be in violation of Section 25F, he was otherwise entitled to be considered for appointment on priority basis according the Section 25J of the Industrial Disputes Act which overrides all the other agreements, terms of employment and law unless they provide more beneficial terms and of course except him accept constitutional provisions, he was entitled to be given job on the priority soon after his termination by way of retrenchment. In the totality of circumstances, he has stated before the court that he shall not claim continuity of service or the back wages and his reinstatement be considered as fresh appointment in the same status in which he was employed at the time of termination. 16. In view of the aforesaid we deem it just and proper to dispose of this appeal by directing the appellant, in modification of award of the Tribunal, that the appellant shall reinstate the respondent No. 1 with effect from the date of the award. However the respondent shall not be entitled to any back wages prior to date of award nor continuity of service which has been foregone by him. This order shall be implemented as far as possible within one month.Appeal disposed of modifying order of single judge and award as above. *******