JUDGMENT : Paresh Upadhyay, J. Heard Mr. Dipak R. Dave, learned advocate for the petitioner and Mr. Vishal Patel, learned A.G.P. for the respondent-authorities. 2. By way of this petition, the petitioner has challenged the award dated 31.07.2006 passed by the Labour Court, Himmatnagar whereby the learned Labour Court has rejected the Reference of the petitioner workman. It is the case of the petitioner that petitioner was serving with the respondent authorities since 01.07.1989 as watchman. 3. As per the case of the petitioner, he was given quarter and he was working with the office of the respondent continuously until he was orally terminated on 30.05.1999. The respondent raised industrial dispute which came to be referred to the Labour Court, Himmatnagar for adjudication. Before the Labour Court, the respondent appeared and contested the case of the petitioner. It is the case of the respondent that petitioner was serving as daily wager as and when work was available. The respondent stated that petitioner never worked continuously and that too 240 days in any year during his service with the respondent. It is the case of the respondent that petitioner has voluntarily abandoned the service and has left the work at his own with effect from 01.10.1998. It was accordingly prayed that Reference be rejected. 4. After examining the documentary evidence and oral evidence, the Labour Court came to the conclusion that the petitioner has worked only for 194 days in a year preceding to his termination, i.e. in the year 1998. As per the case of the respondent, there is no evidence to show that after 01.10.1998 the petitioner has worked with the respondent. The Labour Court has found that after the scheme was over, along with other daily wagers, petitioner stopped coming on duty and accordingly, it is held by the Labour Court that there is no evidence to show that from 30.05.1999 the petitioner has been terminated from service and accordingly rejected the Reference. 5. Learned advocate Mr. Dipak R. Dave appearing for the petitioner has contended that undisputedly the petitioner has worked continuously from 01.07.1989 to 01.10.1998, i.e. almost for nine years. If it is the case of the respondent that petitioner has voluntarily left the services, then it was incumbent for the respondent to call the petitioner for joining the service. 5. Learned advocate Mr. Dipak R. Dave appearing for the petitioner has contended that undisputedly the petitioner has worked continuously from 01.07.1989 to 01.10.1998, i.e. almost for nine years. If it is the case of the respondent that petitioner has voluntarily left the services, then it was incumbent for the respondent to call the petitioner for joining the service. No letter or notice has been issued to the petitioner by the respondent calling upon him to resume duty. If at all it is the case of abandonment of service, then the respondent could not have taken any objection with regard to joining of service by the petitioner. Moreover, at no point of time, either before the Conciliation Officer or before the Labour Court, the respondent ever pleaded that they are ready and willing to provide work to the petitioner since they have not terminated the service of the petitioner. It is further contended by learned advocate for the petitioner that as per Exhibit 16, which is a summary of working days produced on behalf of respondent, in a year which precedes termination of the petitioner, i.e. 01.10.1997 to 30.09.1998, petitioner has worked for 235 days. If one includes Sundays and holidays in the said list, then easily it can be said that petitioner has worked for more than 240 days. Learned advocate for the petitioner placed reliance in this regard on the decision of Hon'ble the Supreme Court in case of Workmen of American Express International Banking Corporation v. Management, reported in (1985) 4 SCC 78 . It is further contended that even otherwise also, looking to the fact that since the petitioner has put in more than nine years of continuous service, it was not required for the petitioner to show that he has worked 240 days in a year preceding to his alleged termination. The learned advocate has placed reliance on the judgment of this Hon'ble Court in the case of Gujarat State Forest Development Corporation reported in 2006 JX (Gujarat) 405 and 2000 (2) GLR 1558 . It is contended that Section 25B(1) and Section 25B(2) are two independent clauses. If the case of the petitioner falls within clause 25B(1), then it is not necessary for the petitioner to show that he has worked for 240 days in a year preceding to his alleged termination. It is contended that Section 25B(1) and Section 25B(2) are two independent clauses. If the case of the petitioner falls within clause 25B(1), then it is not necessary for the petitioner to show that he has worked for 240 days in a year preceding to his alleged termination. The learned advocate for the petitioner has also relied upon the judgment of Hon'ble Supreme Court in case of Anoop Sharma reported in (2010) 5 SCC 497 and Hajinder singh reported in (2010) 3 SCC 192 to contend that when there is violation of Section 25F, full relief is required to be granted to the petitioner. Learned advocate for the petitioner has also contended that factually one Malabhai G. Makwana, who was appointed along with the petitioner when came to be terminated, in his Reference, the Labour Court awarded reinstatement, but without back-wages and in a petition filed before this Hon'ble Court against the said award, a statement was made on behalf of the respondent that workman has been granted all the benefits and therefore, no order was invited. It is contended that when similarly situated person viz. Malasinh G. Makwana has been reinstated, there was no reason to discriminate the petitioner and he is also required to be reinstated in service. 6. On the other hand, learned Assistant Government Pleader Shri Patel for the respondent authorities contended that petitioner has not completed 240 days of service in a year preceding to his alleged termination. The petitioner has failed to prove his case of oral termination dated 30.05.1999. On the contrary, petitioner has abandoned the service with effect from 01.10.1998. It is further contended that Reference has been made on the basis of so-called oral termination dated 30.05.1999 and no oral or documentary evidence has been adduced or produced by the petitioner to prove his case. It is stated that petitioner being daily wager can not claim work as a matter or right when the scheme for which the petitioner was engaged has completed. It is further contended that case of Makwana Malasinh is totally different inasmuch as he has completed 240 days of service and therefore, the Labour Court granted reinstatement and consequently he was granted reinstatement by the respondent. It is contended that this plea was not taken by petitioner before Labour Court, hence can not be considered. It is further contended that case of Makwana Malasinh is totally different inasmuch as he has completed 240 days of service and therefore, the Labour Court granted reinstatement and consequently he was granted reinstatement by the respondent. It is contended that this plea was not taken by petitioner before Labour Court, hence can not be considered. It is further contended that in view of judgment of Hon'ble the Supreme Court in case of Workmen of American Express (supra), only paid Sundays and holidays can be considered for counting 240 days. In this case, it is not established on record that petitioner was granted benefit of paid Sundays. Learned Assistant Government Pleader has placed reliance upon the judgment of Division Bench of Punjab & Haryana High Court in case of Ram Gopal v. Presiding Officer and another reported in 2013 LLR 132 to contend that when there is no material on record to show that petitioner was paid for Sundays, Sundays can not be computed for 240 days for the purpose of Section 25F of the Industrial Disputes Act, 1947. Learned Assistant Government Pleader has further contended that judgment reported in case of Gujarat State Forest Development Corporation (supra) and Moti Ceramics (supra) are not helpful to the petitioner inasmuch as facts therein are totally different and Section 25B(1) can not be taken into consideration in isolation of Section 25B(2). It is further contended that petitioner has not shown that he was in continuous service as per Section 25(B)(1). It is further contended that there is nothing on record to show that the service of the petitioner was interrupted because of cessation of work on the part of the respondent. It is not the case of the petitioner that he has approached the respondent and he has not been given the work. It is further argued that it is not the case of the petitioner that 240 days are not completed because of the fault of the employer. It is further submitted that Labour Court has rightly come to the conclusion that there is no breach of section 25(F) of Industrial Disputes Act. Learned Assistant Government Pleader has, therefore, urged to reject the petition. 7. It emerges from the facts of the case that it is undisputed that petitioner has worked with the respondent from 14.06.1989 to 30.09.1998 as per Exhibit 16-statement of working days produced on record. Learned Assistant Government Pleader has, therefore, urged to reject the petition. 7. It emerges from the facts of the case that it is undisputed that petitioner has worked with the respondent from 14.06.1989 to 30.09.1998 as per Exhibit 16-statement of working days produced on record. Thus, the petitioner has worked right from 1989 till 1998 with the respondent. Merely because the petitioner was not allowed to complete 240 days in last preceding year of his termination, respondent can not contend that they are not bound to follow provision of Section 25F of the Industrial Disputes Act, 1947. As is held by this Court in case of Gujarat State Forest Development Corporation (supra) and Moti Ceramics (supra), Section 25B(1) and Section 25B(2) are two independent clauses. If workman demonstrates before the Court that he has worked continuously for a year, then he is not required to establish that he has completed 240 days of service in that year. As per settled position of law, it also transpires that as per Section 25B sub clause (1) thereof, the workman can be said to be in continuous service for a period if he has, for that period, completed uninterrupted service including the service which may be interrupted on account of sickness or authorised leave or accident or strike which is not illegal or lock out or cessation of work which is not due to any fault on the part of the workmen. Therefore, as per the definition of the term 'continuous service', it is clear that if the workman remains in service continuously but if his service is interrupted because of cessation of work which is not due to the fault on the part of the workman then, the workman must be considered to be in service of the employer. Therefore, as per the definition of the term 'continuous service', it is clear that if the workman remains in service continuously but if his service is interrupted because of cessation of work which is not due to the fault on the part of the workman then, the workman must be considered to be in service of the employer. Here, it was not the case of the petitioner Company that during the period from 1975 to 1982, the services of the workman herein was interrupted by the petitioner Company for some reason and the relationship between the workmen and the employer has come to an end and, therefore, if the workman remained in continuous service and for some days if the employer is not able to provide work to the workman, it can not be said to be the fault on the part of the workman and hence the said period for which the work was not provided by the employer, then, the workman can be said to have remained in service because his service was not terminated during this period and, therefore, he is deemed to be in service and the relationship of master and servant was continuing between them and, therefore, accordingly to my view, the provisions of Section 25B sub clause (1) of the Industrial Disputes Act shall take care of such situation where, if the workman is unable to get 240 days' work in a year but he was not provided work by the employer and he remained in service during this period if his service is not terminated and continued to remain in service excepting the days on which he was not provided the work which amounts to cessation of work which is not due to any fault on the part of the workman, according to my view, in such a situation, the workman must be considered to be in continuous service and then if the workman is satisfying and proved to be in continuous service within the meaning of sub clause (1) of Section 25B of the Industrial Disputes Act, then, sub clause (2) thereof is not required to be established by the workman for getting benefit under Section 25F of the Industrial Disputes Act. Sub clause (2) of Section 25B is an exception of sub clause (1). 8. Sub clause (2) of Section 25B is an exception of sub clause (1). 8. In this case, even it is not the case of the respondent authorities that they have terminated the petitioner, it is also not the case of the respondent that petitioner had, during the period July 1989 to September 1998 ever left the work. It is further not the case of the respondent authorities that during the said period employer-employee relationship between the petitioner and respondent came to an end. In view of the settled position of law as referred above, if the workman is unable to get 240 days work in a year but he was not provided work by the employer and he remained in service during this period and if his service is not terminated and continued in service except the days on which he was not provided work, it amounts to cessation of work which is not on account of fault, on the part of the workman. Even after all these years of service, when the case of the respondent is with regard to abandonment of service, the respondent can not refuse employment to the petitioner. Moreover, the petitioner has worked from July, 1989 to 30.09.1998 with the respondent. It is not the case of the respondent that work of the petitioner has interrupted because of his fault. In fact, from the document (Exh. 16), it clearly emerges that petitioner has worked right from 1989 until 1998 and there was no fault on the part of the petitioner, that is to say any cessation of work on the fault of the petitioner. The above two authorities, therefore, with equal force apply in favour of the petitioner. 9. One more factor which is required to be taken into consideration is that undisputedly one Malsing G. Makwana, who was serving with the respondent has been reinstated in service by the respondent. Thus, there is a breach of Section 25(G) and 25(H) of Industrial Disputes Act. There is nothing on record to show that either the scheme is closed or that no work is available which can be offered to the respondent. As per the case of the respondent, said Shri Makwana was working since the year 1989 and was terminated in the year 1993. The Labour Court found that said Shri Makwana has completed 240 days of service and accordingly granted reinstatement without backwages. As per the case of the respondent, said Shri Makwana was working since the year 1989 and was terminated in the year 1993. The Labour Court found that said Shri Makwana has completed 240 days of service and accordingly granted reinstatement without backwages. Though the respondent challenged the said award of Labour Court before this Court by preferring Special Civil Application No. 16272 of 2004, during the pendency of the petition, in view of no stay granted against reinstatement, award of the Labour Court was implemented and accordingly the petition stands disposed of. In view of this fact, when the petitioner has worked upto 1998, i.e. five years more than said Shri Makwana, there is no justifiable reason for the respondent not to reinstate the petitioner in service. 10. It clearly emerges that respondent has without following any procedure of law and more particularly Sections 25(F), 25(G) and 25(H) of Industrial Disputes Act, terminated the service of the petitioner and thereafter claimed that petitioner has abandoned the service. The Labour Court has not appreciated this aspect in its true perspective. Merely on the ground of shortfall of five days, petitioner could not have been denied relief. 11. For the reasons recorded above this petition is required to be allowed at least qua reinstatement. It is held that the petitioner is entitled for reinstatement in service, with continuity of service. So far back-wages is concerned, since the petitioner has not worked for all these period and even otherwise also, learned advocate for the petitioner has not pressed with regard to back-wages aspect, it is not in the interest of justice to award any back-wages to the petitioner. The petition is accordingly partly allowed. The award of the Labour Court, Himmatnagar, dated 31.07.2006 is hereby quashed and set aside. The petitioner is declared entitled to reinstatement, with continuity of service, however, without any backwages. Reinstatement shall be effected within a period of two months from today. Rule is made absolute to the above extent. No order as to costs. Petition partly allowed.