JUDGEMENT Rajiv Sharma, Judge (Oral): Petitioner was engaged on muster roll basis in the month of May, 1997. He was retrenched in the month of September, 1998. The case of the petitioner, in a nut-shell, is that he had completed 240 days preceding his retrenchment in a block of twelve calendar months. Petitioner also filed a miscellaneous application bearing No. 3381 of 2000 before the learned erstwhile Himachal Pradesh Administrative Tribunal to establish that the persons junior to him were retained while retrenching him in September, 1998. The respondents have not chosen to file any reply to this application. 2. Mr. P.M. Negi, learned Deputy Advocate General has taken the Court through the mandays chart. A bare perusal of mandays chart reveals that the petitioner had completed only 227 days in a block of twelve calendar months before his retrenchment. However, fact of the matter is that four persons, namely, Sh. Pyare Lal, Sh. Vishan Dass, Sh. Lekh Ram and Sh. Anil Kumar, who were junior to the petitioners, were retained while the petitioner’s services were terminated. It is settled law by now that in order to get benefit under Sections 25-G & H, it is not necessary to establish that the workman had completed 240 days in a block of 12 calander months. 3. Their Lordships of the Hon’ble Supreme Court in Mohan Lal Versus The Management of M/s. Bharat Electronics Limited, AIR 1981 SC 1253 have held as under: “10. It was, however, urged that Section 25F is not attracted in this case for an entirely different reason. Mr. Markenday contended that before Section 25F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied. According to him unless the workman has put in continuous service for not less than one year his case would not be governed by Section 25F. That is substantially correct because the relevant provision of Section 25F provides as under : “25F. According to him unless the workman has put in continuous service for not less than one year his case would not be governed by Section 25F. That is substantially correct because the relevant provision of Section 25F provides as under : “25F. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until –(a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service; (b) the workman has been paid, at the time of retrenchment, compensation which, shall be equivalent of fifteen days’ average pay (for every completed year of continuous service) or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate government by notification in the Official Gazette).”Before a workman can complain of retrenchment being not in consonance with Section 25F, he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. Section 25B is the dictionary clause for the expression ‘continuous service’. It reads as under : “25B. Section 25B is the dictionary clause for the expression ‘continuous service’. It reads as under : “25B. (1) a workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than -(i) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. Explanation - For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which-(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment :(ii) he has been on leave with full wages, earned in the previous years; (iii) he has been, absent due to temporary disablement caused by accident arising out of and in the course of his employment; and(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.11. Mr. Mr. Markenday contended that clauses (1) and (2) of Section 25B provide for two different contingencies and that none of the clauses is satisfied by the appellant. He contended that subsection (1) provides for uninterrupted service and sub-section (2) comprehends a case where the workman is not in continuous service. The language employed in sub-sections (1) and (2) does not admit of this dichotomy. Sub-sections (1) and (2) introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter VA. Sub-section (1) provides a deeming fiction in that where a workman is in service for a certain period he shall be deemed to be in continuous service for that period even if service is interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the part of the workman. Situations such as sickness, authorised leave, an accident, a strike not illegal, a lockout or a cessation of work would ipso facto interrupt a service. These interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which would be deemed to be uninterrupted would be continuous service for the period for which the workman has been in service. In industrial employment or for that matter in any service, sickness, authorised leave, an accident, a strike which is not illegal, a lockout, and a cessation of work not due to any fault on the part of the workman, are known hazards and there are bound to be interruptions on that account. Sub-section (1) mandates that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter VA be deemed to be continuous service. That is only one part of the fiction. 12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. That is only one part of the fiction. 12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in clause (a) of sub-section (2). The conditions are that commencing the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter VA. It is not necessary for the purposes of sub-section (2) (a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub-section (1) his case would be governed by sub-section (1) and his case need not be covered by sub-section (2). Sub-section (2) envisages a situation not governed by sub-section (1). And sub-section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in sub-section (2) (a) it is necessary to determine first the relevant date, i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in sub-section (2) (a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in Section 25F. On a pure grammatical construction the contention that even for invoking sub-section (2) of Section 25B the workman must be shown to be in continuous service for a period of one year would render sub-section (2) otiose and socially beneficial legislation would receive a setback by this impermissible assumption. The contention must first be negatived on a pure grammatical construction of sub-section (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render sub-section (2) otiose. The language of sub-section (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it. But as Mr. Markenday referred to some authorities, we will briefly notice them. 13. In Sur-Enamel & Stamping Works (P) Ltd. v. Their Workmen. (1964) 3 SCR 616 : (AIR 1963 SC 1914) referring to Section 25B as it then stood read with Section 2 (eee) which defined continuous service, this court held as under (at p. 1917 of AIR) :“The position therefore is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of Section 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a Period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a Period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workman have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements of Section 25B would not be satisfied by the mere fact of the number of working days being not less than 240 days.” If Section 25B had not been amended, the interpretation which it received in the aforementioned case would be binding on us. However, Section 25B and Section 2 (eee) have been the subject-matter of amendment by the Industrial Disputes (Amendment) Act, 1964. Section 2 (eee) deleted and Section 25B was amended. Prior to its amendment by the 1964 Amendment Act, S. 26B read as under : “For the purposes of Sections 25C and 25F a workman who during the period of 12 calendar months has actually worked in an industry for not less than 240 days, shall be deemed to have completed one year of continuous service in the industry.” 14.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 (at p. 426 of AIR) :“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 judgment Pathak J. agreed with this interpretation of Section 25B (2). Therefore, both on principle and on precedent it must be held that Section 25B (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 25B and Chapter VA.” 4. There is violation of the principle of “last come first go”. However, if the petitioner had not completed 240 days preceding his retrenchment, he was required to be given the benefit of Section 25-G of the Industrial Disputes Act, 1947. In normal circumstances, this Court ought to have relegated the petitioner to avail the appropriate remedy provide under the Industrial Disputes Act, 1947, however, in the present case, since the petitioner had proved undisputedly that four persons who were junior to him were retained while retrenching him, that to without following the provisions of Section 25-G of the Industrial Disputes Act, 1947, this Court had decided to adjudicate this matter itself. The petitioner belongs to a lower strata of the society and it will take not less than three to four years to get the matter adjudicated upon on the basis of the reference made by the State Government. 5. Mr. K.B. Khajuria, learned counsel for the petitioner has strenuously argued that since the retrenchment of the petitioner is void ab initio, he is entitled to back wages, continuity in service and seniority. However, the Court is of the considered view that the petitioner can be held entitled to continuity in service and seniority and so far as back wages are concerned, it is not automatic. 6. However, the Court is of the considered view that the petitioner can be held entitled to continuity in service and seniority and so far as back wages are concerned, it is not automatic. 6. Their Lordships of the Hon’ble Supreme Court in P.V.K. Distillery Limited versus Mahendra Ram, (2009) 5 SCC 705 have held that even though the termination may be unjustifiable and illegal, it itself does not create a right of reinstatement with full employment benefits and full back wages. Their Lordships have held as under: “18. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. 20. In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. [Western India Match Co. Ltd. v. Third Industrial Tribunal, West Bengal, 1978 Lab IC 179 (SC).] 27. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages.” 7. Accordingly, in view of the observations made hereinabove, the writ petition is allowed. The respondents are directed to re-instate the petitioner forthwith with continuity in service and seniority. However, the petitioner is not held entitled to back wages since no material has been placed on record that he was not gainfully employed during this period. No costs. ************************************************************************