JUDGMENT K. M. THAKER, J. The Petitioner, Deputy Executive Engineer, Kadi Taluka Panchayat (herein after referred to as the petitioner Panchayat) has brought under challenge award dated 8 April, 1991 passed by the learned Labour Court in Reference No.1307 of 1986 (newno.114/86) whereby the learned Labour Court has directed the petitioner Panchayat, to reinstate three workmen, Mr. A.M. Kureshi, Mr. C.J. Patel and Mr. R.J. Thaker (herein after referred to as the “concerned workmen”) from amongst various other workmen also concerned in the aforesaid reference. The learned Labour Court has also granted continuity of service as well as benefit of back wages with effect from 20 February, 1990. Aggrieved by the said award and directions, the petitioner Panchayat is before this Court. 2. A union named Municipal and Panchayat Employees Union raised Industrial dispute on behalf of the several work charge workmen of the petitioner Panchayat, alleging inter alia, that the workmen concerned in the dispute were illegally terminated in February 1977. The said dispute was referred for adjudication to the Labour Court by order of Reference dated 26.5.1986. The said order of reference, culminated into Reference no.1307 of 1986 which was subsequently renumbered as reference No.114 of 1986. It transpires from the record that during pendency of the reference proceedings, only aforesaid three persons (Mr. A.M. Kureshi, Mr. C.J. Patel and Mr. R.J. Thaker i.e. the concerned workmen out of several other workmen for whom reference was made) appeared before the Labour Court and prosecuted the Reference. Hence, the Labour Court has rejected the reference with regard to the other workmen and restricted the reference and the award to the concerned 3 workmen. Consequently, present petition is also restricted to the directions concerning the concerned three workmen. 2.1. On behalf of the workmen the Union claimed before the Labour Court that the concerned workmen were employed by the petitioner Panchayat since about seven years. The Union also claimed that the workmen were engaged and working as Gangman and after continuous service of about seven years, they were illegally terminated with effect from 23 February, 1977. The Union alleged breach of Sections 25 (F) and 25 (G). On such allegations the Union prayed for, on behalf of the concerned workmen, reinstatement with consequential benefits. 2.2. The reference was contested by the petitioner Panchayat. The Union alleged breach of Sections 25 (F) and 25 (G). On such allegations the Union prayed for, on behalf of the concerned workmen, reinstatement with consequential benefits. 2.2. The reference was contested by the petitioner Panchayat. In the written statement (Exhibit 8) it was asserted by the petitioner Panchayat that the concerned persons were engaged on temporary basis as work-charge employees (oilmen) and they were being engaged on need basis. It was also asserted by the petitioner Panchayat that in view of the change in the system of operations no work was available for the concerned workmen and they had become surplus hence they were not being engaged. It was claimed that since power operated engines were installed, the need for engaging helper (oilmen) came to an end. The petitioner Panchayat opposed the reference also on the ground of delay of almost eight years in raising the dispute. 2.3. During the proceedings, deposition of Mr. Kureshi, Mr. Patel and Mr. Thaker were recorded below exhibit 10, 11 and 12. It emerges from the award that in their respective oral evidence, the concerned workmen claimed that they were engaged since 1970 and they were illegally terminated with effect from 23.02.1977. They also claimed that before termination neither any notice was served nor any notice amount was paid nor any procedure for terminating the service was followed. 2.4. After examining the oral evidence and other material on record the Labour Court came to the conclusion that the concerned workmen were terminated by way of retrenchment and the procedure prescribed under Section 25 (F) was not followed. The learned Court held that the termination was illegal and directed the petitioner Panchayat to reinstate the concerned three workmen with continuity of service and to pay back-wages w.e.f. 20.2.1990. The said conclusion and the directions are challenged by the petitioner Panchayat. 3. Heard Mr. Jani learned Advocate for the petitioner Panchayat and Mr. Pathak learned Advocate for the concerned workmen. 3.1. Mr. Jani, assailed the award and submitted that the award is passed without evidence to support or justify the conclusions and directions. He submitted that the respondents were engaged on “work charge” basis and they worked intermittently, when required. He also submitted that the respondents were not recruited on any vacant and sanctioned post after following the procedure. He urged that the award maybe set aside. 3.2 On the other hand, Mr. He submitted that the respondents were engaged on “work charge” basis and they worked intermittently, when required. He also submitted that the respondents were not recruited on any vacant and sanctioned post after following the procedure. He urged that the award maybe set aside. 3.2 On the other hand, Mr. Pathak, learned Advocate for respondents submitted that the respondents had worked for more than 7 years and that they were regularly working. He also contended that the petitioner did not prove that the workmen had not worked for 240 days and that therefore, the conclusions and directions by the learned Labour Court are just and correct and this court may not interfere with the directions. 3.3. Mr. Jani, made a rejoinder and submitted that even after the interim order, the respondents did not report for work. Mr. Pathak, however, vehemently opposed the said claim of Mr. Jani and submitted that the petitioner did not give appointment and work to the respondents despite the direction. 4. Mr. Pathak has also submitted that the matter is covered by the judgment of the Hon'ble Apex Court passed in the case of Punjab Land Development and Reclamation Corporation Ltd. Chandigarh Versus Presiding Officer, Labour Court, Chandigarh and Others, (1990 (3) Supreme Court Cases 682). It deserves to be noted that in the facts of the case the said decision of the Hon'ble Apex court is not applicable. In the said judgment the Hon'ble Apex Court addressed the issue, as observed in Para-14 of the said judgment, whether on proper construction of the definition of retrenchment in Section 2(oo) of the Act it means termination by the employer of the service of workmen as a surplus labour for any reason whatsoever or it means termination by the employer of the service of a workman for any reason whatsoever otherwise than as punishment. Whereas in present case, as the discussion demonstrates, the issue is not whether the respondents' termination was retrenchment or not. Whereas in present case, as the discussion demonstrates, the issue is not whether the respondents' termination was retrenchment or not. The issues on hand are (a) whether in the matter of public employment (in local authority) when appointment is made only on work-charge basis and it is not shown that it was made in vacancy in sanctioned post and after following rules and procedures, whether direction for reinstatement with continuity of service would be justified; and (b) whether in the facts of present case and in view of the absence of relevant and necessary evidence (in particular, the absence of evidence that the concerned workmen had worked for 240 days in the preceding 12 months coupled with the absence of evidence that they were appointed on vacant posts after following recruitment procedure) or on the basis of the type and quantity material which was available on record, the learned trial court was justified in directing the petitioner Panchayat to reinstate the respondents and in also granting continuity of service as well as back-wages from 20th February, 1990.] 5. The Labour Court has, in the impugned award, noticed and recorded that though the concerned workmen alleged that other workmen were engaged after their termination, none of the three workmen could mention name of any person who was, according to their allegations, engaged subsequent to their termination. Thus, there was no evidence which could establish that any other and/or junior persons were engaged after their termination for similar work and in their place or position. 5.1. It also emerges from the award that the Labour Court has recorded the details of the dates of the phases during which the concerned workmen were engaged. It is pertinent that the details of the phases during which the concerned workmen were engaged show that the concerned workmen were not in uninterrupted service and they were being engaged intermittently and in different phases. However, on the basis of such details, which merely gave starting and closing dates of the phases during which the concerned workmen were engaged and not the exact number of days for which they were engaged in each phase, the Labour Court assumed that the workmen had worked continuously and on that premise the learned court concluded that the termination of concerned workmen without payment of compensation amounted to breach of section 25 (F). 6. 6. It deserves to be noted at the outset that there is no material on record to show that the concerned workmen were engaged after following procedure of selection and recruitment and/or that they were engaged in view of existing vacancy in the sanctioned posts and it is not the case urged or asserted even by the concerned workmen. From the perusal of award it appears that the workmen did not produce cogent evidence to show that before engaging them the procedure for selection and recruitment was followed. It also does not come out from record that advertisement for the posts was given and/or names from employment exchange were called for. It also does not emerge that the workmen proved that they were engaged in existing vacancy. 6.1. On the other hand it is not in dispute that the concerned workmen were engaged as “work charge” employees and they were working only on “workcharge” basis. 6.2. Another important feature of the case, which also deserves to be mentioned at the outset, is that any material which can establish the relevant factual aspect that the concerned workmen had actually worked continuously for 240 days in the span of 12 months preceding alleged date of termination, is also not available on record and is not shown even during the hearing of present petition. 7. It is in backdrop of these main features, besides other relevant factual and legal aspects, that the impugned award has to be examined. 8. While the learned Labour Court has recorded the details about the phases during which the respondent workmen were engaged by the petitioner Panchayat, the details about their actual working days in preceding 12 months are not taken into account. Actually, such details are not available on record, and the learned Labour Court has failed to notice the absence or has overlooked the relevance and effect of the absence of such details-evidence. It emerges from the award that without such details and despite absence of cogent evidence on this count, the learned court has proceeded to assume that the concerned workmen had worked for 240 days. 8.1. It emerges from the award that without such details and despite absence of cogent evidence on this count, the learned court has proceeded to assume that the concerned workmen had worked for 240 days. 8.1. It deserves to be mentioned at this stage that though such observation by the learned court gives an impression that the said observation is recorded on the basis of some material (i.e. a statement submitted by the Panchayat), however, it comes out on perusal of the award and the record of the Petition, that the statement merely reflected the duration of the span or phases during which the concerned workmen were engaged, but it does not contain the details of actual working days during each year or during each phase, much less during the period of 12 months preceding the date of termination. In view of the fact that the concerned workmen were being engaged only on “workcharge” basis, such clear and specific evidence was all the more relevant and necessary. 8.2. It is pertinent that from the reading of the award it does not emerge that the concerned workmen had given any categorical evidence that they had worked for 240 days in the span of 12 months preceding the termination, though it was relevant and necessary in view of the nature and status (i.e. workcharge) of their engagement. Also during the hearing of the petition the respondents could not demonstrate that such details were available on the record of the learned Labour Court. 8.3. In the absence of such details, one can not venture to reach a conclusion regarding actual workdays put-in by the workman and in such situation it is also hazardous to conclude or presume that breach of Section 25 (F) was committed while terminating the concerned workmen. For arriving at such conclusion, what is really necessary is the evidence, from the side of the concerned workman, that he/they had actually worked for 240 days during the 12 months preceding the date of alleged termination. 8.4. Mr. For arriving at such conclusion, what is really necessary is the evidence, from the side of the concerned workman, that he/they had actually worked for 240 days during the 12 months preceding the date of alleged termination. 8.4. Mr. Pathak submitted that the petitioner Panchayat should have given evidence before the learned trial court about the working days of concerned workmen but in absence of any assertion or denial by the petitioner Panchayat about the actual working days of the concerned workmen, the finding of the learned Labour Court that the concerned workmen were in continuous employment and the conclusion that since the retrenchment compensation was not paid before effecting termination, Section 25 F was breached cannot be faulted. 8.5. In view of the decisions referred to herein-below the said submissions of Mr. Pathak is misconceived and cannot be entertained. 8.6. In the decision in case of Rajasthan State Ganga Nagar S. Mills Ltd. V/s State of Rajasthan, (2004(8) SCC, Page No.161) the Hon'ble Apex Court observed (in Para-6) that : “It was the case of the workmen that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Renge Forest Officer V/s S.T. Hadimani....: (Emphasis supplied) In present case the situation as regard the relevant material is, as compared to the facts in the aforesaid case, much more wanting (for the concerned workmen) inasmuch as from the perusal of the award, it emerges that the concerned workmen did not lead evidence (as in the cited case) that they had worked for 240 days in the year preceding their termination. In the said case such material (workman's affidavit) was not regarded, by the Hon'ble Apex Court, as sufficient evidence for any Court to come to the conclusion about workman's working in a year. 8.7. Subsequently in the case of Ranip Nagar Palika V/s Babugi Gabhaji Thakore (2008 (Vol. In the said case such material (workman's affidavit) was not regarded, by the Hon'ble Apex Court, as sufficient evidence for any Court to come to the conclusion about workman's working in a year. 8.7. Subsequently in the case of Ranip Nagar Palika V/s Babugi Gabhaji Thakore (2008 (Vol. II) GLH, PageNo.45), in Para-11 of the judgment, the Hon'ble Apex Court has observed : “.....In Batala Co-operative Suger Mills Ltd. V/s Sowaran Singh (2005 (8) SCC 25), it was held as follows : “So far as the question of onus regarding working for more than 240 days is concerned, as observed by this court in Range Forest Officer V/s S.T. Hadimani ( 2002 (3) SCC 25 ), the onus is on the workman”. (Emphasis supplied) Then, after referring (in Paras 12 to 14) to the decisions in Municipal Corporation, Fariadabad V/s Siri Niwas and Manager, Reserve Bank of India, Banglore V/s Mani and Ors. and the case of Surendranagar District Panchayat V/s Dehyabhai Amarsingh and also the decisions in Range Forest Officer V/s S.T. Hadimani as well as ONGC and another V/s Shyamal Chandra Bhowmik and also the case of R.M. Yelltti V/s Assistant Executive Engineer, the Hon'ble Apex Court has observed (in Para 15) that : “It was held in all these cases that the burden of proof lies on the workmen to show that he had worked continuously for 240 days for the preceding one year and it is for the workmen to adduce evidence apart from examining himself to prove the factum of being an employment of the employer”. The said observations also bring in focus what is necessary to be proved is “worked continuously for 240 days for the preceding one year”. Meaning thereby what is relevant and necessary is not merely 240 days' work but working for 240 days in the preceding 12 months. 8.8. In view of the legal position as aforesaid, the burden to establish that (i) they were in employment with the petitioner Panchayat and (ii) that they had actually worked continuously for 240 days in the 12 months immediately preceding the alleged date of termination, was on the concerned workmen. However, in present case the award does not reflect that the concerned workmen had led any cogent evidence to establish the relevant fact before the learned Trial Court, yet the learned trial court has assumed that they had worked for 240 days. However, in present case the award does not reflect that the concerned workmen had led any cogent evidence to establish the relevant fact before the learned Trial Court, yet the learned trial court has assumed that they had worked for 240 days. Such assumption seems to have been made on the basis of sketchy information that the concerned workmen were engaged during 1972-1977, however it is overlooked that they were being engaged on work-charge basis and the exact evidence showing their actual working was not available on record, though in view of the fact that they were being engaged on work-charge, such evidence was very much necessary. The workmen did not give or did not get such evidence on record except claiming that they worked during 1972 to1977. On the other hand it is on record that there were “breaks” (i.e. gaps between two span of engagement). However, the factum of the “breaks” in their working are not taken into account which would have, otherwise, shown that the concerned workmen were not in uninterrupted service. Not only this, the learned trial court has rested at the said assumption without considering the issue viz. “whether the working for 240 days was put-in by the concerned workmen in the preceding years or not”. 8.9. In view of absence of such relevant evidence the learned Trial Court is not justified in arriving at a conclusion that the employer had committed breach of Section 25 (F) while terminating the concerned workmen. Such conclusion would not be just and proper in absence of relevant evidence. 9. Further, assuming that the learned trial court is justified in its assumption that the concerned workmen had worked continuously for 240 days then also the learned Court is not justified in ignoring (i) that work for 240 days alone can not lead to or justify the conclusion about breach of Section 25(F), and (ii) that what is really necessary is the learned Labour Court's conclusion and satisfaction based on evidence that the concerned workmen had worked for 240 days during 12 months immediately preceding the date of termination (which, however, is not the conclusion in present case) and (iii) that in present case there is absence of such evidence. 9.1. 9.1. Besides this, in view of the fact that the concerned workmen were being engaged intermittently on need/work-charge basis, it is necessary and appropriate to note at this stage that in case of Halvad Nagarpalika V/s Jani Dipakbhai Chandravadanbhai and Ors. (2003 (4) GLR, Page No. 3229) the Hon'ble Division Bench has observed (in Para-12) as follows :- “Mr. Vyas has further relied on the decision of the Hon'ble Supreme Court in the case of Himanshu V/s State of Bihar and others (1997 (4) SCC, 391), wherein the main grievance of the petitioner was that termination of the service was in violation of Section 25 (F) of the Industrial Disputes Act, 1947. The Hon'ble Supreme Court has observed that the persons, whose services were terminated, were not appointed to the posts in accordance with rules, but were engaged on the basis of need of work. They were temporary employees working on daily-wages and in these circumstances, their disengagement from service could not be construed to be a retrenchment under the Industrial Disputes Act. It was further held by the Hon'ble Supreme Court that the concept of retrenchment, therefore, cannot be stretched to such extent as to cover the said employees. While negativing the contention of the petitioners in that case that the termination of their services was arbitrary, the Hon'ble Supreme Court has held that, “they were only daily-wage employees and had no right to the posts, and hence, their disengagement was not arbitrary”. (Emphasis supplied) The Hon'ble Division Bench further observed in the same paragraph of the judgment that: “....When their appointments were made without following due procedure of statutory rules or the recruitment policy, it is immaterial as to whether they have completed the services of 240 days in a year or not”. As observed earlier the Hon'ble Supreme Court has held that, “the provisions of Section 25 (F), cannot be invoked in the case of daily-waged employees whose appointments are without following the due procedure laid down in the statutory rules or recruitment policies. When there is no permanent sanctioned posts, no direction can be given to authorities to absorb the daily-waged employees by creating new posts......” (Emphasis supplied) It needs to be noted that while making the award, more particularly while directing the petitioner Panchayat to reinstate the concerned workmen with continuity of service, the learned Labour Court has not taken into consideration the aforesaid aspects. 10. On the strength of the said conclusion (rather assumption) which, in view of this court, is erroneous and unsustainable for want of cogent evidence, the learned Labour Court has directed the petitioner to reinstate the concerned workmen. 10.1. However, even if it were to be assumed only for the sake of examining the award that the concerned workmen had worked for 240 days and/or that they had actually worked for 240 days in the preceding 12months then also in present case where the question is about public employment i.e. employment with a “local authority” the impugned directions viz. reinstatement and that too coupled with the benefit of continuity of service would not be in consonance with the legal position explained by the Hon'ble Apex Court and such directions would not be justified or sustainable in absence of any material, as in the present case, on record to even suggest, let alone conclusively demonstrate, that the concerned workmen were selected and recruited in accordance with applicable regulations, after issuing advertisement inviting names from employment exchange, after following the prescribed procedure for selection and in existing vacancy of sanctioned establishment. The relevance and importance of the said aspect and evidence unfolds and becomes clear from the decisions of the Hon'ble Apex Court. 10.2. In the decision in the case of Mahboob Dipak V/s Nagar Panchayat, Gajuralla, reported in (2008 (1) SCC Page-575), the Hon'ble Apex Court has observed, (in Para 7 and 8) that : “7. The factors which are relevant for determining the same, inter alia, are : (i) whether in making the appointment, the statutory rules, if any, had been complied with; (ii) the period he had worked; (iii) whether there existed any vacancy; and (iv) whether he obtained some other employment on the date of termination or passing of the award. 8. The respondent is a local authority. The terms and conditions of employment of the employees are governed by a statute and statutory rules. No appointment can be made by a local authority without following the provisions of the recruitment rules. Any appointment made in violation of the said rules as also the constitutional scheme of equality as contained in Articles 14 and 16 of the Constitution of India would be a nullity”. (Emphasis supplied) It is pertinent to note that appointment made in violation of rules is, as held by the Hon'ble Apex Court, nullity. 10.3. Any appointment made in violation of the said rules as also the constitutional scheme of equality as contained in Articles 14 and 16 of the Constitution of India would be a nullity”. (Emphasis supplied) It is pertinent to note that appointment made in violation of rules is, as held by the Hon'ble Apex Court, nullity. 10.3. In this context it is appropriate to also refer to Para 15 to 18 of the decision of the Hon'ble Apex Court in Municipal Council, Sujanpur V/s Surendra Kumar (2006 (5) SCC Page 173) : “15. Apart from the aforementioned error of law, in our considered opinion, the Labour court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11-A of the said act being discretionary in nature, the Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically. 16. For the said purpose the nature of the appointment, the purpose for which such appointment was made, the duration/tenure of work, the question whether the post was a sanctioned one, being relevant facts, must be taken into consideration. 17. It is not disputed that the appointment of the respondent was not in a sanctioned post. Being a “State” within the meaning of Article 12 of the Constitution of India, the appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of the constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law.....” 10.4. In the facts of this case it is apposite to refer to the decisions in the case of Anwar Khan R. Makarani V/s State of Gujarat (2002 (1) GLH 16), Amreli Municipality V/s Gujarat Pradesh Municipal Employees Union (2004 (Vol.2) GLH 692). In the facts of this case it is apposite to refer to the decisions in the case of Anwar Khan R. Makarani V/s State of Gujarat (2002 (1) GLH 16), Amreli Municipality V/s Gujarat Pradesh Municipal Employees Union (2004 (Vol.2) GLH 692). In the case of Anwar Khan R. Makarani (supra), while considering the case of the workmen appointed as work-charge clerk on 29 days basis and continued for sometime, it has been observed, after citing ratio of various other decisions referred to in the judgment, that the workmen whose employment remained outside the regular set-up and on a particular job or work, as distinguished from being against any vacancy, would not be entitled for reinstatement upon his termination in terms of the last appointment order nor would he be entitled for regularization. 10.5. While in the case of Amreli Municipality V/s Gujarat Pradesh Municipal Employees Union (supra), the Hon'ble Full Bench has observed, in Para 12.1.6. that :- “.....It is, thus, clear that recruitment in local bodies is being governed by recruitment rules and established procedure and any appointment de hors these norms is per se illegal. Therefore, it would amount to regularization of back-door entries which had vitiated from the very inception. As held by the Apex Court in Ashwinikumar's case (supra), services of employees who have continued for long time can be regularized provided the initial entry must be made against available vacancies by following rules and regulations governing such industry. We, therefore, see merit in the submission advanced on behalf of the petitioners-local bodies”. (Emphasis supplied) In Para 12.1.15 the Court has observed :- ?(i) the Labour Court/Industrial Tribunal has no jurisdiction to issue direction or pass and any order for regularizing services of employees upon municipality or local authority without their being any sanctioned set-up and no person can be regularized if such a person had entered service without following selection process under trial of daily rated employee”. (Emphasis supplied) 10.6. In Talwara Co-operative Credit and Service Society Ltd. V/s Sushil Kumar (2008 (9) SCC, Page 486) the Hon'ble Apex Court has observed (in Para-8) that : “Grant of relief of reinstatement, it is trite, is not automatic. Grant of back wages is not also automatic. (Emphasis supplied) 10.6. In Talwara Co-operative Credit and Service Society Ltd. V/s Sushil Kumar (2008 (9) SCC, Page 486) the Hon'ble Apex Court has observed (in Para-8) that : “Grant of relief of reinstatement, it is trite, is not automatic. Grant of back wages is not also automatic. The Industrial Courts while exercising its powers under Section 11(A) of Industrial Disputes Act, are required to strike a balance in a situation of this nature for the said purpose, certain relevant factors, as example nature of service, the mode and manner of recruitment, are namely whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned etc. should be taken into consideration.” (Emphasis supplied) 10.7. Since in present case, as the record reveals, there was no material on record to lead the learned Court to the conclusion that the concerned workmen were (i) engaged on vacant and sanctioned post; and (ii) that they were engaged in accordance with and after following the prescribed procedure for selection and recruitment, there was no basis or justification to make the impugned direction granting (a) reinstatement (b) continuity of service (c) back-wages. When the appointment itself were de hors the norms, it would be void in law (see Municipal Council, Sujanpur) and per se illegal (see Amreli Municipality). As held in Mahbob Dipak (supra) no appointment can be made by local authority without following rules and appointment made in violation of rules would be nullity. The impugned directions, therefore, would not be justified or sustainable. 11. On reading the impugned award it also becomes clear that the learned Labour Court has, almost mechanically and without addressing the aforesaid aspects and without ascertaining the factual background in respect of the twin requirements noted above, proceeded to grant direction to reinstate the3 concerned workmen and that too with the benefit of continuity of service. 12. In the facts of this case and in view of the material available and/or lacking on the record and in light of the decisions of the Hon'ble Apex Court and this Court, I am of the view that in the backdrop of the set of facts as obtaining on the record of present case the direction for reinstatement with continuity of service would not be justified. 13. 13. It also follows from the foregoing discussion that, in view of the facts obtaining in present case there are sufficient reasons to interfere with the learned Court's direction asking the petitioner Panchayat to reinstate the concerned three workmen with continuity of service. Therefore, in view of the facts of this case, I am inclined to interfere with the direction granting reinstatement and continuity of service. 13.1. Having noted that the impugned conclusions and directions are not justified and sustainable, the question arises about appropriate relief in the petition. 13.2. Ordinarily, where it is found that the conclusions and directions by the learned Trial Court are not sustainable, the same will have to be set aside. 13.3. However, I can not be unmindful about or oblivious to the other relevant aspects and the attending circumstances, including-rather particularly-the interim order passed in this petition at the time of admission of the petition. 13.4. On 28.10.1991 interim order was passed. By the said order, while granting the interim relief this Court, inter alia, directed that :- “The three concerned workmen mentioned in Annexure-A will be offered employment as fresh daily wager helpers without prejudice to the rights and contentions of the respondent in the present petition. The petitioners will pay to the concerned workmen on that basis the amount equivalent to the minimum of time scale of wages payable to a regular helper by adding thereto the admissible allowances and dividing the amount by 26 days. Having worked out the daily wages accordingly, it will be paid to the concerned workmen for the number of days they work as such. The concerned workmen have agreed to work on that basis without prejudice to their rights and contentions in the present petition........ In view of this interim arrangement, the award passed by the trial court will remain stayed during the pendency of this petition and the aforesaid interim arrangement only will operate between the parties without prejudice to the rights and contentions of both the parties”. 13.5. It is pertinent to not that the said directions have remained in operation unchallenged, since last about 17-18 years. 14. On this count Mr. Jani for the petitioner Panchayat, has submitted, that the Panchayat had invited the concerned workmen for work after the interim order. The said version is, however, disputed by the respondents. 13.5. It is pertinent to not that the said directions have remained in operation unchallenged, since last about 17-18 years. 14. On this count Mr. Jani for the petitioner Panchayat, has submitted, that the Panchayat had invited the concerned workmen for work after the interim order. The said version is, however, disputed by the respondents. It is another matter that there is serious differences between the parties about the subsequent event viz. employing the concerned workmen pursuant to and as per the interim order. However, what emerges is the fact that the petitioner Panchayat was obliged to engage the concerned workmen as fresh daily-wage workmen and that the Panchayat claims that it has complied with the said direction by inviting the workmen for work. Mr. Jani learned Advocate for the petitioner, however, supplemented this submission by adding that after the interim order was passed one of the concerned workmen viz. Mr. Patel died in August 1994 i.e. after about three years and another concerned workman has crossed age of superannuation in 2004. 15. According to its own claim, the petitioner had, at the relevant time, accepted the interim order and had even acted on it. Hence, in view of this peculiar set of facts attached to this case and after almost 17 years since the date of interim order, I am not persuaded to disturb the position which has operated (after the interim order) since 28.10.1991. 16. Therefore, instead of setting aside the impugned direction granting reinstatement, which ordinarily I should, I am rather inclined; in the facts of present case, to modify the same in terms of the interim order dated 28.10.1991. Thus, the direction regarding reinstatement shall stand modified in terms of the said interim order dated 28.10.1991. 17. However, I am not persuaded to maintain the direction granting benefit of continuity of service. Hence, the direction regarding continuity of service is hereby set aside. 18. This lives behind the direction regarding back-wages. On this count also the learned Trial Court has not taken into account the relevant factors. 18.1. The only aspect considered by the learned Labour Court is the delay on the part of workmen in initiating the proceedings and further delay in tendering the Statement of Claim in view of which the learned trial court has denied the benefit of back-wages until the date on which the Statement of Claim was filed. 18.1. The only aspect considered by the learned Labour Court is the delay on the part of workmen in initiating the proceedings and further delay in tendering the Statement of Claim in view of which the learned trial court has denied the benefit of back-wages until the date on which the Statement of Claim was filed. However, any other relevant factors have not been taken into account. 19. It deserves to be noted on this count that the Hon'ble Apex Court in the case of Talwara Cooperative Credit and Service Society Ltd. (supra), has observed that : “grant of relief of reinstatement, it is trite, is not automatic. Grant of back-wages is also not automatic....” (Emphasis supplied) In case of Municipal Council, Sujanpur V/s Surinder Kumar (2006 (5) SCC Page 173), the Hon'ble Apex Court has (in para 15) observed that : “....Only because relief by way of reinstatement with full back-wages would be lawful, it would not mean that the same would be granted automatically.” (Emphasis supplied) In para 16 of the judgment the Hon'ble Apex Court also observed that : “For the said purpose, the nature of appointment, the purpose for which such appointment had been made, the duration/tenure of work, the question whether the post was a sanctioned one, being the relevant facts, must be taken into consideration.” (Emphasis supplied) 20. It has been submitted by the learned Counsel for the petitioner Panchayat that the subsequent conduct (i.e. subsequent to the order of interim relief) of the concerned workmen would demonstrate that the concerned workmen were not interested in actual reinstatement or in working with the Panchayat which is evident from the fact that when the petitioner Panchayat, after the court passed order of interim relief coupled with directions, had addressed letters to the concerned workmen asking them to report for work but none of them reported for work. 20.1. Mr. Pathak learned counsel for the concerned workmen has vehemently opposed the said submissions and stated that the workmen had, after the order of interim relief, reported for work but they were not employed. Mr. Pathak also submitted that the workmen had addressed several letters and even filed complaint before the competent authority but that too did not yield any result from petitioner's end. He also submitted that the workmen had to file a contempt petition as well. He, however, did not dispute the submissions of Mr. Mr. Pathak also submitted that the workmen had addressed several letters and even filed complaint before the competent authority but that too did not yield any result from petitioner's end. He also submitted that the workmen had to file a contempt petition as well. He, however, did not dispute the submissions of Mr. Jani regarding sad demise of one of the concerned workmen (viz. Mr. C.J. Patel) and superannuation of another workman (viz. Mr. A.M. Kureshi). 20.2. Mr. Jani submitted that while it is true that the workmen filed contempt petition against the petitioner Panchayat, however, the fact that it was in 2006 i.e. almost 15 years after the Interim order, goes to show that the contempt proceedings were initiated only with a view to keeping the issue alive. 21. There is, thus, deep, wide and strong differences between the parties on this count. Be that as it may. Those issues and controversies are not relevant for the purpose on hand since they relate to the post-award period and in this petition the court would not entertain and/or enter into such disputed facts. The issue to be considered is about back-wages i.e. for the period prior to and up to the date of award. For the subsequent period both the sides have their own remedies which they can, if so advised, pursue. 21.1. Coming back to the issue of back-wages it needs to be recalled that after considering the aspect of delay alone (in initiating the proceedings and then in tendering the Statement of Claim) the learned Labour Court has directed payment of full back-wages w.e.f. 20th February, 1990, however while dealing with the issue of back-wages other relevant aspects have not been considered by the learned Labour Court. 22. The Hon'ble Apex Court has, in various decisions, enumerated the factors which need to be taken into account while deciding the issue regarding back-wages. In the decision in the case of Correspondent, S.T. Michael's Teacher's Training Institute V/s V.N. Karpaga Mary and Others ( 2008 (7)SCC 388 ), the Hon'ble Apex Court, while considering the contentions against the order granting back-wages, referred-in Para 17 to the judgment in the case of Haryana Roadways V/s Rudhan Singh, reported in (2005 (5) SCC page 596), wherein the Hon'ble Apex Court has observed (in Para-8 of the said/referred judgment) that : “8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year”. (Emphasis supplied) 23. The Hon'ble Apex Court, in the case of U.P. State Brassware Corporation Ltd. and others V/s Uday Narain Pandey, reported in (2006 (1) SCC Page-479) has observed (in Para 22) that : “No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act.” (Emphasis supplied) While granting direction regarding back-wages the learned Labour Court has not taken into account the factors which the Hon'ble Apex Court has considered as relevant aspects to be taken into account while awarding back-wages. The petitioner's objection is, therefore, justified. However, the question is whether in exercise of power under Article 226 or 227, this court should, in facts of the case, interfere? 24. In present case the impugned award is made on 8 April, 1991. Thus, so far as back-wages is concerned, the period in question is of about 14months (i.e. from 20.2.1990 to 8.4.1991). 24.1. In this regard, its needs to be kept in focus at this stage that the dispute is, now, almost 32 years old inasmuch as the concerned workmen were terminated in 1977. 24.2. Since the date of award also almost 18 years have passed. Now after 18 years this court is required to consider whether grant of back-wages for period totaling to 14 months was proper and justified and/or should it be upheld or not. 24.3. It also deserves to be kept in focus that one of the three workmen has died, the other one has crossed the age of superannuation and the 3rd workman is awaiting an end to the trying times. 24.4. It is not in dispute that the service of the concerned workmen were not terminated for any misconduct. It is also not in dispute that their work-charge and intermittent engagement was discontinued upon they becoming additional hands after change in system of operations but before termination they had, though intermittently and as a result of irregular appointment, worked for about 7 years with the petitioner Panchayat. 25. It is also not in dispute that their work-charge and intermittent engagement was discontinued upon they becoming additional hands after change in system of operations but before termination they had, though intermittently and as a result of irregular appointment, worked for about 7 years with the petitioner Panchayat. 25. Upon taking into account the cumulative effect of all the aforesaid and such other aspects, particularly the aspects mentioned in Paras 19, 22 to 24.4, in juxtaposition with the fact that the total period for which back-wages have been awarded is of 14 months, I am not inclined to interfere with the said direction after lapse of 32 years from the date of disputed termination. Hence the said direction is not interfered with. It is however, clarified that the approach of the learned trial court in addressing, approaching and deciding the issue regarding back-wages (i.e. without considering any of the relevant aspects and factors) is not inconsonance with legal position discussed above hence t is not acceptable and is not approved and this court's disinclination in interfering with the direction for back-wages is not to be construed as approval for such approach and the said direction. It is only because of peculiar set of facts of this case that the court is not disturbing the said direction. 26. As an upshot of the foregoing discussion the direction granting continuity of service is set-aside and the direction granting reinstatement is modified in terms of the interim order dated 28.10.1991 i.e. instead of reinstatement with continuity as per award the engagement would be as fresh daily wage helpers whereas the direction granting back-wages for 14 months is not disturbed. The petition is, accordingly, partly allowed. Rule made absolute to the aforesaid extent. There shall, however be no costs. (SBS) Petition partly allowed.