H. K. RATHOD, J. ( 1 ) HEARD learned advocate Mrs. D. T. Shah for petitioner and learned advocate Mr. H. S. Munshaw appearing on behalf of respondents. ( 2 ) THE petitioner workman has challenged the award passed by the Labour Court, Rajkot in Reference No. 1563 of 1986 dated 15. 12. 1992 wherein the reference has been rejected by the Labour Court. Learned advocate Mrs. D. T. Shah has submitted that the Labour Court has committed gross error in relying Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 (for short the Act ). She also submitted that there was no oral evidence lead by the respondents before the Labour Court to justify the termination and therefore Labour Court has committed gross error in rejecting the case of the petitioner. She also pointed out that periodical appointment was given and initial appointment was dated 14. 4. 1984 which was prior to the amendment of Section 2 (oo) (bb) of the Act. According to her submission Section 2 (oo) (bb) came into force on 18. 8. 1984 and therefore, initial appointment which was made by the respondent, if it is outside the scope of Section 2 (oo) (bb) the subsequent extension cannot be clubbed together for applying Section 2 (oo) (bb) of the Act. She also submitted that before the Labour Court no witness was examined on behalf of the respondents. The oral evidence of the workman remained unchallenged before the Labour Court and there is no contrary or counter evidence lead by the respondents. She also submitted that before the Labour Court the petitioner workman has stated that after his termination new employees were recruited by the respondents. Even that evidence is also mentioned in cross-examination of the workman. Against that there is no evidence lead by the respondents that no other persons were appointed or fresh appointments were given to any employees. She also emphasized the observations made by the Labour Court to the effect that it was undisputed position before the Labour Court that no employee was available from due process of selection at the time when the service of the petitioner was terminated. Therefore, Mrs. She also emphasized the observations made by the Labour Court to the effect that it was undisputed position before the Labour Court that no employee was available from due process of selection at the time when the service of the petitioner was terminated. Therefore, Mrs. D. T. Shah has submitted that Labour Court has committed gross error in rejecting the reference of the petitioner and termination come within Section 25 (F) of the Act as a retrenchment before amendment under Section 2 (oo) (bb) of the Act and therefore respondent shall have to comply the provisions of Section 25 (F) of the Act. The said provision has undisputedly not complied and therefore, order of termination is bad, illegal and ab initio void and the petitioner is entitled the relief of reinstatement with full back wages of the interim period. ( 3 ) LEARNED advocate Mr. H. S. Munshaw appearing on behalf of respondent has submitted that against the claim of the petitioner written statement was submitted by the respondent and contention was raised that petitioner was appointed on periodical basis by giving particular appointment order with some condition that his service will come to an end on a particular date. Therefore, there is no need to comply with Section 25 (F) of the Act. Because that periodical appointment has come to an end by efflux of time and therefore under Section 2 (oo) (bb) of the Act that cannot be considered to be a retrenchment and then Section 25 (F) is not necessary to be complied with by the respondents. Therefore, according to his submission Labour Court has rightly appreciated the documentary evidence which were on record and rightly rejected the reference of the petitioner. For that Labour Court has not committed any error. However, he relied upon the affidavit-in-reply and the annexed documents which are with the affidavit-in-reply. Mr. Munshaw has also pointed out that appointment orders were produced by the petitioner before the Labour Court as well as before this Court. Against the affidavit-in-reply petitioner workman had filed written statement which has also been taken on record. Learned advocate Mr. Munshaw has submitted that on 31. 7. 1985 when period has come an end, the service of the petitioner was terminated and even subsequently, the office was also closed by the respondent. Against the affidavit-in-reply petitioner workman had filed written statement which has also been taken on record. Learned advocate Mr. Munshaw has submitted that on 31. 7. 1985 when period has come an end, the service of the petitioner was terminated and even subsequently, the office was also closed by the respondent. He also emphasized that advertisement was issued by the respondent for the post of Technical Assistant and the workman had applied in response to the said advertisement but there was delay in submitting the application, therefore his application was not entertained and not considered by the respondents. Accordingly this fact has been communicated to the petitioner by the respondents. Therefore, in short, his submission is that Labour Court has not committed any error while rejecting the reference. ( 4 ) I have considered the submissions made by both the learned advocates. I have also perused the documents which are annexed to the petition as well as reply of the respondents. ( 5 ) THE question is that, as per the appointment order, initially the petitioner was appointed on 16. 4. 1984 in the pay scale of Rs. 290-480 at Public Health Scheme Sub-Division No. 1 Porbandar at Junagadh Office for a temporary period of six months. This appointment order was issued by the respondents in response to the application submitted by the petitioner on 19. 3. 1984. Thereafter, the said appointment order was again extended up to 31. 1. 1985 by order dated 12. 11. 1984. At this stage it is necessary to note that order dated 16. 4. 1984, considering the six months period came to an end on 16. 10. 1984. But subsequent order was served to the petitioner dated 12. 11. 1984. As to what had happened between 16. 10. 1984 to 12. 11. 1984; whether the workman remained in service or he not; whether the relationship was continued or not; whether the periodical appointment was continued or not, is not clear. By order dated 12. 11. 1984 the service of the petitioner was extended with retrospective effect, meaning thereby, from 16. 10. 1984, the said extension has been given after a period of one month. Thereafter on 30. 1. 1985 when the second order came to end, again the period was extended up to 31. 7. 1985 or till the availability of the selected candidate, which ever is earlier in point of time. 10. 1984, the said extension has been given after a period of one month. Thereafter on 30. 1. 1985 when the second order came to end, again the period was extended up to 31. 7. 1985 or till the availability of the selected candidate, which ever is earlier in point of time. The workman was examined before the Labour Court vide exhibit-17 and he was cross-examined by the present respondent. Initially, the workman was appointed in Junagadh Sub-Division, thereafter he was transferred vide exhibit-14 at Porbandar where he remained up to 31. 7. 1985. According to the deposition of the workman when his service was terminated, new persons were recruited by the respondent but, at that occasion petitioner was not called by the respondent. Learned advocate Mr. Munshaw, in the midst of the dictation has pointed out that in his evidence the workman has admitted that he had worked in scarcity relief work and, therefore, the subsequent submission that scarcity relief work is not an industry and the Division Bench of this Court judgement will rely and, therefore, respondent is not an Industry and therefore entire reference is bad. Against that Mrs. D. T. Shah has submitted that the scarcity work was after the termination and not during the period of service. In deposition vide exhibit-17 the workman was working in scarcity work after the termination and not prior to the termination. Therefore, submission of Mr. Munshaw at this stage that workman was lastly working in scarcity work with the respondent, cannot be accepted in light of the oral evidence of the workman and there is no other counter oral evidence by respondent before the Labour Court. ( 6 ) THE question is whether Labour Court is right in applying Section 2 (oo) (bb) of the Act to the facts of the present case or not. It is clear that initial appointment of the petitioner is dated 16. 4. 1984 prior to the amendment of Section 2 (oo) (bb) of the Act. This amendment is not having any retrospective effect with a view taken by the Division Bench of this Court in case of BHARAT HEAVY ELECTRICALS LTD. V. R. V. KRISHNARAO, 1989 (2) GLH 1 . 4. 1984 prior to the amendment of Section 2 (oo) (bb) of the Act. This amendment is not having any retrospective effect with a view taken by the Division Bench of this Court in case of BHARAT HEAVY ELECTRICALS LTD. V. R. V. KRISHNARAO, 1989 (2) GLH 1 . The relevant observation made by the Division Bench of this Court in paragraph 7 of the said judgement is quoted as under:"then remains the question of its retrospectivity if at all by a necessary implication. In the settings of judicial history centering round interpretation of the then existing clauses of Section 2 (oo) aforesaid, it cannot be said that sub-clause (bb) was retrospective even by necessary implication. It is now well settled that if the provision is merely declaratory, it may be retrospective. But if it is a remedial provision, it is prospective unless it is expressly made retrospective by the legislature, or it is to be so held by necessary implication. In this connection, it is profitable to look at the decision of the Supreme Court in the case of Central Bank of India v. Their workmen, AIR 1960, SC 12 which was cited by Mr. Patel for the petitioner in support of his contention. At page 27, it was observed in para 29 of the report that for modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law or the meeting or effect of any statute. Such Acts are usually held to be retrospective". It has been observed that "a remedial Act on the contrary, is not necessarily retrospective; it may be either enlarging or restraining and it takes effect prospectively, unless it has retrospective effect by express terms or necessary intendment". It is clearly found on the facts of the present case that by imparting this clause (bb) in the exclusion clauses of Section 2 (bb) legislature wanted to restrict the meaning of the term retrenchment as interpreted by the Supreme Court in the light of the prior existing provisions of Section 2 (bb) of the defining term retrenchment. Consequently, such a substantive provision imposing additional restriction on the meaning of the term retrenchment cannot be construed to be retrospective by necessary intendment. Consequently, such a substantive provision imposing additional restriction on the meaning of the term retrenchment cannot be construed to be retrospective by necessary intendment. It being purely remedial measure and seeking to displace series of decisions of the Supreme Court on the point, must be held to be prospective in nature and will apply to only those terminations which take place after this provision was brought on the statute book. Contention No. 1 of Mr. Patel to the contrary is, therefore, rejected. Before parting with this discussion, it is profitable to mention that the Patna High Court has also taken the same view in the case of Arun Kumar v. Union of India, 1986 Lab. I. C. 251. We respectfully concur with the said view. CONTENTION No. 2: So far as this contention is concerned, it must be noted that the petitioner did not submit before the Labour Court that the action of the petitioner in dispensing with the services of the respondent-workman was not retrenchment as per unamended definition of the term of retrenchment because it was a penal action. It is now well settled that a point, especially the point raising mixed question to law and facts which is not canvassed before the lower authority cannot be raised for the first time before the High Court in proceedings under Article 227 of the Constitution. If any authority were needed, it is supplied by a decision of the Division Bench of this Court in the case of G. M. D. C. V. PRESIDING OFFICER, LABOUR COURT AND OTHERS, 1986 GLH 148 = XXXVII (1) G. L. R. 410 which in its turn is based on a number of Supreme Court decisions on the point. It has to be kept in view that whether decision of the petitioner in striking off the name of the respondent-workman from the muster-roll was penal in nature or not is a mixed question of law and facts. Such a contention having not been canvassed before the Labour Court and its decision having not been invited on the matter, cannot, therefore, be permitted to be raised for the first time before us. Such a contention having not been canvassed before the Labour Court and its decision having not been invited on the matter, cannot, therefore, be permitted to be raised for the first time before us. " ( 7 ) THE second question is that if the contention of the respondent is that if the appointment is periodical, then such periodical appointment must have to be come to an end on the date on which the first order has come to an end. This is not the case here. The first appointment is dated 16. 4. 1984 whereas the second order is dated 12. 11. 1984. According to the terms of six months the first order comes to an end on 16. 10. 1984, therefore, in between there was no order of appointment of the petitioner but by restrospective effect by order dated 12. 11. 1984 the extension was given to the petitioner. Therefore, such extension is exactly not a periodical appointment as specified by the respondent. It was a continuous service of the petitioner with the respondent but by periodical appointment order having a retrospective effect, issued by respondent. Therefore, according to my opinion on two grounds; one is initial appointment dated 16. 4. 1984 is outside the scope of Section 2 (oo) (bb) of the Act and there was no subsequent extension in time on the date on which the period came to end but workman was remained in service, extension was having retrospective effect. Therefore, that is considered to be a continuous service and cannot be considered to be a periodical appointment as pointed out by the learned advocate Mr. H. S. Munshaw and similar aspect has been considered by the Labour Court, Rajkot. Therefore, according to my opinion the view taken by the Labour Court that in case of termination of the present petitioner Section 2 (oo) (bb) is applicable is contrary to the provisions of Section 2 (oo) (bb) of the Act itself and also contrary to the law laid down by the Division Bench of this Court in the case referred above. ( 8 ) NOW two aspects are required to be examined by this Court. ( 8 ) NOW two aspects are required to be examined by this Court. One is that whether respondent has justified the termination of the petitioner before the Labour Court or not and whether in place of the petitioner new persons were recruited at that occasion and whether any opportunity was given to the petitioner by respondents or not. From the record it is a clear case that, on 31. 7. 1985 when the service of the petitioner come to an end while working at Porbandar, at that time, selected candidates were not available and, therefore, why the period was not extended though the work was in existence and it is not the case of the respondent that work was not in existence when the service of the petitioner was terminated. There is no such iota of evidence lead by the respondents before the Labour Court that his period come to end and even there is no work in existence and therefore service was terminated by the respondent. At the time when service of the petitioner was terminated new persons were recruited, no opportunity was given to the petitioner. It is not the case of the respondent that opportunity was given to the petitioner. That also violate Section 25 (H) and even Article 14 of the Constitution of India. Therefore, on that ground also the order of termination is required to be set aside. This fact has been ignored by the Labour Court though it was on record. In the oral evidence of the workman no counter to the said deposition of the workman by the respondent before the Labour Court. The respondent has filed written statement wherein no evidence has been lead. The entire fact was examined by the Labour Court on the basis of the documentary evidence in absence of oral evidence. The second question is, what is the justification to terminate the service of the petitioner; there is nothing on record to justify the termination. Merely periodical appointment is given and period come to end, that cannot itself become a legal or valid termination. When termination is challenged by the employee then it is also the duty of the respondent or the employer to justify such termination. If the termination is not justified that itself is arbitrary and contrary to law. According to the respondent one Mr. When termination is challenged by the employee then it is also the duty of the respondent or the employer to justify such termination. If the termination is not justified that itself is arbitrary and contrary to law. According to the respondent one Mr. Godia was appointed in October, 1985 at Junagadh but service of the petitioner was terminated at Porbandar and not at Junagadh. There was no justification as to whether the work was over, project was over or office is closed. There is even no indication in the termination order which is given by the respondent to the petitioner. The real facts altogether are different. The service of the petitioner was terminated not because of the efflux of time, not because work is not available, not because the project was over, not because the office is closed; but the service of the petitioner was terminated because the petitioner remained absent w. e. f. 4. 3. 1985 and therefore the notice was served to the petitioner workman calling the explanation from the petitioner by the Deputy Executive Engineer, Porbandar that why he remained absent without prior permission and whatever the report was submitted is not proper, and therefore, he should have to explain the absent for a period for which the report was submitted by the petitioner. Then, a telegram was received by the respondent from Rajkot office to terminate the service of the petitioner on 31. 7. 1985 and immediately the service has been terminated by order dated 31. 7. 1985 on the basis of the said instructions from the Superintending Engineer, Rajkot by telegram dated 30. 7. 1985. Therefore, looking to the record it appears that though the work was in existence, there was no appointment to the project. Therefore, considering these aspects, according to my opinion there was no justification from the respondent to terminate the service of the petitioner, no opportunity was given to the petitioner after his termination when fresh hand has been recruited or appointed by the respondent. Therefore, on both the count the termination order is bad. The judgement of the Bombay High Court has been misunderstood by the Labour Court. Therefore, on both the count the termination order is bad. The judgement of the Bombay High Court has been misunderstood by the Labour Court. The Bombay High Court has rightly observed that; if the employer is resorted to contractual employment as a device to simply take it out of the principle Clause 2 (oo), irrespective of the fact that work continues or the nature of duties which the workman was performing are still in existence, such contractual engagements will have to be treated on the anvil of fairness, propriety and bonafides. This observation has been totally ignored by the Labour Court and Labour Court has not applied its mind in respect of the facts which are on record. Labour Court has simply taken up the matter being a technical matter being covered under Section 2 (oo) (bb) of the Act and, being periodical appointments. How the Labour Court has come to conclusion that order of termination is just effective and proper, whether any evidence is produced by the respondent to come to such a conclusion when there was evidence of the workman which has been totally disregarded by the Labour Court while passing the order of rejection, therefore, according to my opinion there is an apparent error committed by the Labour Court while rejecting such reference and the finding of the Labour Court is baseless and perverse and, therefore, interference by this Court is necessary. ( 9 ) IN view of above discussion, Section 2 (oo) (bb) of the Act is not applicable. Therefore termination of petitioner is retrenchment within the meaning of Section 2 (oo) (bb) of the Act. It is not in dispute that provision of Section 25 (F) is not followed by respondent. At the time of termination one month notice is not given and in lieu thereof one month pay is not paid. Retrenchment compensation is also not paid. The petitioner who remained in continued service with the respondent from 16. 4. 1984 to 31. 7. 1995 more than 12 months and completed continuous service of 240 days within the meaning of Section 25 (B) of the Act. Retrenchment compensation is also not paid. The petitioner who remained in continued service with the respondent from 16. 4. 1984 to 31. 7. 1995 more than 12 months and completed continuous service of 240 days within the meaning of Section 25 (B) of the Act. Therefore, when condition precedent of Section 25 (F) is violated at the time of termination of petitioner then order of termination which amounts to retrenchment is ab initio void as held by the Apex Court in the case of MOHAN LAL V. THE MANAGEMENT OF M/s BHARAT ELECTRONICS, LTD. , AIR 1981 SC 1253 . Relevant observations made by the Apex Court in para 14 and 16 are quoted as under:"we have already extracted Section 25b since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in Surendra Kumar Verma v. Central Government Industrial-cum-Labour Court, New Delhi, (1980) 4 SCC 443 : ( AIR 1981 SC 422 ) Chinnappa Reddy, J. , after noticing the amendment and referring to the decision in Sur Enamel and Stamping Works (P) Ltd. case ( AIR 1963 SC 1914 ) held as under: "these changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year. "in a concurring judgement Pathak J. agreed with this interpretation of Section 25b (2 ). Therefore, both on principle and on precedent it must be held that Section 25 (B) (2) comprehends a situation where a workman is not in employment for period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i. e. the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of Section 25 (B) and Chapter VA. APPELLANT has thus satisfied both the eligibility qualifications prescribed in Section 25f for claiming retrenchment compensation. He has satisfactorily established that his case is not covered by any of the excepted or excluded categories and he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As precondition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service. " ( 10 ) IN respect to the oral evidence of the workman who has admitted before the Labour Court that he was earning during the interim period about more than Rs. 250. 00 by doing miscellaneous work, therefore, considering this deposition of the workman and there was no say of the respondent about the gainful employment of the petitioner workman, according to my opinion petitioner workman is entitled the 50% back wages of interim period on the basis of the oral evidence. ( 11 ) IN result, present petition is allowed. Order passed by the Labour Court in Reference No. 1563 of 1986 dated 15. 12. 1992 is hereby quashed and set aside with a direction to the respondents to reinstate the petitioner workman in service with continuity of service as if his services have never been terminated by the respondents and to pay 50% back wages of the interim period from the date of termination till the date of actual reinstatement of the petitioner. It is further directed to the respondents to reinstate the petitioner workman within a period of one month from the date of receiving copy of this order and to pay 50% back wages of interim period from the date of termination till the date of actual reinstatement within a period of three months from the date of receiving the copy of this order. ( 12 ) IN view of the above observations and directions, present petition is allowed, rule is made absolute, No order as to costs. .