C.A.V. JUDGMENT 1. These writ appeals under section 4 of the Karnataka High Court Act, 1961 arise from three batches of petitions which were directed against the common award and order dated 19.8.2011 of the Industrial Tribunal, Bangalore in Industrial Dispute No.145/2010. For the sake of convenience, the appellants herein are hereinafter described as ‘the employers’ or “BESCOM’’ and 13 workmen concerned are described as ‘the workmen’. All the parties having been duly represented, delay in filing of the appeals having been condoned and learned Advocates appearing on either side having requested for and agreed to hearing of the appeals for final disposal, they are heard in extenso at the admission stage. 2. The industrial dispute regarding termination of service of the workmen by the employers from 01.03.2010 was referred to the Tribunal by the Government, specifying the dispute to be as to whether it was lawful for the management to terminate the services of the workmen, while the conciliation proceedings were pending. By the award dated 19.08.2011, impugned before learned single Judge of this Court, the order as under was made by the Industrial Tribunal. “The Reference is disposed off with a direction to the second party No.1/BESCOM to provide future employment of the grade of Assistants, whenever vacancy arises, in the event the first party workmen applying for the said post/vacancies in terms of the Notification. This order shall be complied by adhering to the reservation policy of the Government of India and by relaxing age restriction. The seniority list of the first party workmen shall be maintained while providing them regular employment. The date of their entry into service on ad hoc basis shall be considered only for the purpose of calculating terminal benefits. They are not entitled for any back wages.” 3. The challenge to above award and order of the Tribunal by the employers as well as the workmen was resolved by the impugned order dated 05.02.2013 of learned single Judge on the basis of a joint memo of settlement dated 02.02.2013, which read as under: “The respondents humbly submit that, in the background of the orders of the Hon’ble Industrial Tribunal, and the directions of this Hon’ble Court to explore a compromise before the ‘Lok Adalat’, we are positively inclined to absorb the petitioners, in the permanent cadre, but for the fact that the existing rules do not provide for such absorption. However, if that difficultly is removed by an order of this Court to absorb them notwithstanding anything we are ready to obey such orders readily as Assistant/Junior Meter Reader irrespective of the petitioners qualification without any consequential benefits, and continuity of service in the interest of justice. The petitioners and respondents are agreed to withdraw the cases”. On the basis of the above memo, learned single Judge directed that, as a one time measure, the workmen shall be absorbed as Assistant/Junior Meter Reader without consequential benefits, continuity of service and back wages within six weeks, without it being a precedent in other cases. 4. The appellants-employers have now called into question the above order of learned single Judge on the plea that no mandamus could have been issued to absorb the workmen in service in contravention of the Regulations and in view of the law declared by the Hon’ble Supreme Court in a series of decisions. It is pleaded that, even if the parties have agreed upon the terms of compromise, the Court could not have accepted such terms and issued mandamus to perpetuate an illegality. The appellants are also stated to have filed applications (I.A. I & II of 2013) seeking recalling of the impugned order dated 05.02.2013, but learned single Judge was pleased to dismiss the applications on 24.04.2013. That Order dated 24.04.2013, holding that the Chief General Manager of the BESCOM had signed the joint memo with a bona fide intention to settle the dispute and had not committed any illegality or misconduct or violation of any Regulations of the BESCOM, is also challenged in the other set of writ appeals [Nos.5678 to 5703/2013]. The main ground in those appeals is that learned single Judge ignored the affidavit of the Chief General Manager stating that he did not place the matter before the Board of Directors, prior to signing the joint memo and the signing was an inadvertent mistake. It is contended that if officers of the company were allowed to take decision or enter into contract that binds the company without prior approval of its Board of Directors, it will violate Section 291 of the Companies Act, 1956 and would seriously affect the functioning of the company. 5. After reference to decision of the Apex Court in Secretary, State of Karnataka Vs. 5. After reference to decision of the Apex Court in Secretary, State of Karnataka Vs. Umadevi [ 2006(3) SCC 1 ], it is further contended for the appellants that when a compromise goes against public policy, prescription of a statute or a mandatory direction of the Court, it would be ineffective and no mandamus or direction could have been issued to perpetuate an illegality. As against that, learned counsel appearing for the workmen submitted that, as the workmen had signed the joint memo dated 02.02.2013 for settlement and did not propose to renege on agreed terms, they have not filed their appeals; but in case the appeals were to be entertained by taking into consideration the other contentions of the employers, the grounds taken by the workmen in their original petitions may also be considered and appropriate final orders may be made in these appeals. Parties on both sides having agreed on such course of action, the appeals are heard on all the grounds agitated before this Court, as regards legality and justifiability of the original orders of termination of service and relief, if any, required to be granted to the workmen concerned. 6. There is no dispute about the facts that the appellant-BESCOM is a Government Company engaged in distribution and supply of power in the designated area within the State of Karnataka; and the respondent-workmen were engaged on contract basis for working in “Soujanya Counters” opened for better services to consumers. Such employees were initially engaged in service of the appellant during the first half of the year 2003 after issuing notification in that regard, inviting applications from eligible candidates. Even as the service of such employees, including the respondent-workmen was proposed to be terminated upon expiry of the period of contract in the year 2004, the workmen approached this Court by way of WP No.15333/2004 and 26044/2004 on 31.03.2004, with a prayer to absorb them in service as permanent employees. This Court issued an interim order to maintain status quo on 07.04.2004. Those petitions were disposed by order dated 03.07.2009 with an order directing the appellant-employer to consider representation of the workmen regarding absorption in service. Pursuant to that order, the appellant decided the representation by order dated 28.01.2010, rejecting the representation and simultaneously terminating their services with effect from 01.03.2010. 7. Those petitions were disposed by order dated 03.07.2009 with an order directing the appellant-employer to consider representation of the workmen regarding absorption in service. Pursuant to that order, the appellant decided the representation by order dated 28.01.2010, rejecting the representation and simultaneously terminating their services with effect from 01.03.2010. 7. Therefore, the workmen raised an industrial dispute before the Additional Labour Commissioner and Conciliation Officer on 04.02.2010, demanding engagement of the workmen in the running of Soujanya Counters. Their services were, however, dispensed with on 01.03.2010. Thereafter, the work carried on in Soujanya Counters was awarded to another institution on contract basis and a tender-notice was also published for award of the contract on 06.03.2010, pursuant to which the contract was awarded to Golden Detective Services for the period from 01.04.2010 to 28.02.2011. The failure report of the conciliation proceeding was submitted on 22.06.2010 and the Industrial Dispute in the following terms was referred on 09.07.2010 to the Industrial Tribunal for adjudication. The agreed true translation of the terms of reference of the industrial dispute read as under: “The managements of KPTCL, Corporate Office, Cauvery Bhavan, Bangalore-9 and Bangalore Electricity Supply Company, Corporate Office, K.R. Circle, Bangalore-1 have, inspite of obtaining from S. Jyothi, R. Srinivasa, H.T. Puttachamma, S. Suresh, C.N. Sumathi, R. Venugopal, D.T. Arun Kumar, N.S. Shivamahadevaiah, A. Muniraju, P. Prakash, M.C. Raja Ramesh Babu, Anil K. Biradar, Sujatha Patil, continuous service without providing facilities applicable to permanent employees during the pendency of conciliation proceedings, terminated them from employment from 01.03.2010. Is this lawful? 2. If it is not so, what relief are the workmen entitled to?” 8. Upon the dispute in the above terms being referred to the Industrial Tribunal, Bangalore, and being registered therein as ID No.145/2010, the Tribunal adjudicated on the basis of pleadings and evidence of the parties and culled out the following three issues, besides the main points of reference; “1. Whether this reference is invalid by the reason of the dispute relating to discharge, termination or dismissal and the grant of relief to such workmen having been referred to this Industrial Tribunal, despite, such subject being not included in III Schedule which bestows jurisdiction on the Industrial Tribunal? 2. Whether the Management of the second party proves that non-existing dispute has been referred to this Tribunal for adjudication? 3. 2. Whether the Management of the second party proves that non-existing dispute has been referred to this Tribunal for adjudication? 3. In addition to the points of dispute whether the first party workmen are entitled to reliefs claimed for in the statement of demands submitted before this Tribunal?” 9. The Tribunal has, in its award dated 19.08.2011 decided the above issue No.1 with the finding that the reference had not become invalid only for the reason that the nature of the dispute did not fall under any category enumerated from Sl.Nos.1 to 10 of the III Schedule. The second issue is also decided in the negative with the opinion that the dispute took the character of an industrial dispute and could not be thrown away only for the reason that it was not espoused by a trade union. The third issue was also decided in the negative on the basis that the case of the workmen fell under the exception clause (bb) of sub-section (oo) of section 2 of the Industrial Disputes Act, 1947. Then, on appreciation of the facts of the case, the Tribunal held that there was no element of illegality in the action of the employer, but granted the relief of direction to BESCOM to provide future employment of the grade of Assistants to the workmen whenever vacancy arises and the workmen applies in terms of the notification notifying the vacancies. The BESCOM was also directed to maintain seniority list of the workmen and the date of their entry into service on ad hoc basis was directed to be considered only for the purpose of calculating terminal benefits. The award made in these terms was called into question by parties on either side, and the petitions in that regard were disposed by the order dated 05.02.2013, based on written consent terms dated 02.02.2013, and that order as well as the order dated 24.04.2013 dismissing the applications to recall that order are impugned in these appeals. 10. The above backdrop of facts and the course of litigation clearly indicate that, while the original terms of reference were about legality of termination of service of the workmen after continuous service and during pendency of conciliation proceedings, the Tribunal deviated from proper adjudication thereof and granted relief which was meaningless and uncalled for, while justifying and legalizing the termination of service in issue. As seen earlier, although the original appointments of the workmen were purely on contract basis and for the purpose limited by the express terms of the contracts, the workmen had in fact continued in service by series of successive back to back orders. The total period of such service of each of the workmen concerned, till 31.03.2004 was as under: Sl. No. Name of the Workman Period of Service from (upto 31.03.2004) No. of Orders/ Contracts Total Period of Service (in Months/Days) 1 S.A. Jyothi B.A., 13.01.2000 10 48 months, 13 days 2 R. Srinivasa B.E., 13.01.2000 10 48 months, 13 days 3 H.T. Puttuchamma B.A. 13.01.2000 10 48 months, 13 days 4 S. Suresh B.Com., 13.01.2000 10 48 months, 13 days 5 C.N. Sumathi 13.01.2000 10 48 months, 13 days 6 R. Venugopal B.Com., 13.01.2000 10 48 months, 13 days 7 D.T. Arun Kumar B.A., 13.01.2000 10 48 months, 13 days 8 N.S. Shiva Madaiah B.A. 01.03.2001 8 35 months, 10 days 9 A. Muniraju B.A., 21.01.2003 3 13 months, 10 days 10 P. Prakash M.A., 21.01.2003 3 13 months, 10 days 11 M.C. Raja Ramesh Babu B.Com., 20.05.2002 5 29 months, 22 days 12 Anil K. Biradar 12.06.2002 5 28 months, 29 days 13 D. Sujatha Patil 21.02.2003 3 12 months, 7 days The above details are provided on a memo submitted by BESCOM before this Court and the common format of the contract, similarly provided by BESCOM, clearly stipulated in Clause (5) of the contract as under: “5. That the said candidate of the Soujanya counter shall not have any claim or right for continuation in the service or for permanency or for any preference in the KPTCL Service.” As seen earlier in paragraph 6 hereinabove, the workman continued in the service of BESCOM from 01.04.2004 till the decision in W.P.Nos.15333/2004 and 26044/2004, and thereafter till 01.03.2010, under the interim order to maintain status quo and without any express contract stipulating the conditions of service. It is not the case of any of the parties that during the pendency of the aforesaid proceedings before this Court and operation of the interim relief to maintain status quo, any attempt was made either to improve or change the conditions of service or to terminate the services continued at the fixed salary of Rs.3,000/- to Rs.3,500/- per month. It is not the case of any of the parties that during the pendency of the aforesaid proceedings before this Court and operation of the interim relief to maintain status quo, any attempt was made either to improve or change the conditions of service or to terminate the services continued at the fixed salary of Rs.3,000/- to Rs.3,500/- per month. Therefore it could be inferred that the conditions of service and the status of the workmen remained frozen for the period of last six years of their service, which was otherwise continued. The issue that necessarily arises for deciding legality of the termination would be as to whether the termination was ‘retrenchment’ and whether the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short ‘the Act’) applied in the above facts. The other major issue arising from the terms of reference itself was as to whether the termination was legal during pendency of the conciliation proceedings. 11. Although the Tribunal touched upon these issues and alluded to the case law cited before it, it held in the impugned award that it was not the case of termination but of non-renewal of contract, and that the discharge of the workmen pursuant to letter dated 28.01.2010 was anterior to the conciliation proceedings and hence no illegality was committed. These conclusions have to be examined on the touch-stone of relevant provisions of the I.D. Act which may be quoted for easy reference as under: “Section 2. These conclusions have to be examined on the touch-stone of relevant provisions of the I.D. Act which may be quoted for easy reference as under: “Section 2. Definitions – In this Act, unless there is anything repugnant in the subject or context, - (g) “employer” means – (i) in relation to any industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; (ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority; (j) “industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen; (ka) “Industrial establishment or undertaking” means an establishment or undertaking in which any industry is carried on: Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then, - (a) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate industrial establishment or undertaking; (b) if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking; (oo) “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include – (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill-health; CHAPTER V A LAY-OFF AND RETRENCHMENT 25A. Application of sections 25C to 25E.– (1) Sections 25C to 25E inclusive shall not apply to Industrial Establishments to which Chapter VB applies, or – a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently. (2) ……… Explanation.- In this section and in sections 25C, 25D and 25E, “industrial establishment” means- (i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948); or (ii) a mine as defined in clause (j) of section 2 of the Mines Act, 1952 (35 of 1952); or (iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951). 25B. Definition of continuous service.– For the purposes of this Chapter,- (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 authorized leave or an accident or a strike which is not illegal, or a lock-out 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 workman has actually worked under an employer shall include the days on which (i) to (iv) ……… 25F. Conditions precedent to retrenchment of workmen 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; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to 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 for such authority as may be specified by the appropriate government by notification in the Official Gazette. 25H. Re-employment of retrenched workmen.– Where any workman are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for reemployment shall have preference over other persons. 25J. Effect of Laws inconsistent with this Chapter.– (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946): Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act. (2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter. CHAPTER V C UNFAIR LABOUR PRACTICES 25T. Prohibition of unfair labor practice No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labor practice. 25U. Penalty for committing unfair labor practices Any person who commits any unfair labor practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.] CHAPTER VI PENALTIES 26 to 30A …… 31. Penalty for other offences.– (1) Any employer who contravenes the provisions of section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. (2) Whoever contravenes any of the provisions of this Act or any rule made thereunder shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with fine which may extend to one hundred rupees. CHAPTER VII MISCELLANEOUS 33. (2) Whoever contravenes any of the provisions of this Act or any rule made thereunder shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with fine which may extend to one hundred rupees. CHAPTER VII MISCELLANEOUS 33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labor Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall - (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending; (2) ……… (3) ……… (4) ……… (5) ……… THE FIFTH SCHEDULE UNFAIR LABOUR PRACTICES I- On the part of employers and trade unions of employers 1 to 9. ……… 10. To employ workmen as “badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen. 11 to 16. ……… 12. Before deciding upon applicability of the above statutory provisions in the facts of the present case, it may be noted that the Tribunal has, in the impugned Award relied upon a decision of this Court in Ms. S. Pushpa and others Vs. Government of Karnataka and others, 2004 (4) Kar. L.J. 594 for excluding the present case from the definition of ‘retrenchment’ by virtue of the provisions of Section 2 (oo) (bb). In the facts of that case before the learned single Judge, it was found that the workmen concerned were engaged to work for a period of six months, on ad hoc and contract basis by the same company i.e., BESCOM and the workmen had worked on similar successive contracts from the year 1998 till the end of the year 2003. They had to be discharged on computerization of the work which the workmen were employed to do. They had to be discharged on computerization of the work which the workmen were employed to do. The Tribunal found that the workmen were not appointed against any sanctioned or vacant posts and their appointments were not regular for being de hors the Regulations, as applicable. The Court further found that it was a case of nothing but non-renewal of the contract of employment. The material on record showed that there existed no job and no vacancy on account of computerization, and therefore, it was not possible for the Court to provide relief, as pleaded by the workmen. The Court further found, on the basis of the material on record, that the workmen were not working in a factory and the place of their work could not be termed as ‘an industrial establishment’, warranting compliance of Section 25N of the Act. It was held that, if illegal appointments were made or illegal entries were created, such appointees could not be regularized by the Court, and hence directions were issued only to draw a scheme for giving to the workmen an opportunity of applying for employment, as and when vacancy would arise in future. It needs to be noted that in the judgment as aforesaid, the argument that if the workmen were having record of successive appointments on contract basis, it amounted to unfair labour practice, was not addressed or dealt with and the provisions of Section 25J, 25T and 25U were not noticed. 13. As seen earlier, in the facts of the present case the workmen had put in continuous service under different appointment orders or the contracts of service upto 31.03.2004 under the express stipulation that the workmen shall not have any claim or right for continuation in the service and on that basis it was contended, and accepted by the Tribunal, that it was a case of non-extension or non-renewal of the contract of service under a stipulation in that behalf. However for the same period of service, it is argued for the workmen that, such continuation in service under separate orders and contracts of a fixed term amounted to an unfair labour practice punishable under Section 25U, in view of the intention, expressed in the stipulation itself, of depriving the workmen of the status and privileges of permanent workmen. However for the same period of service, it is argued for the workmen that, such continuation in service under separate orders and contracts of a fixed term amounted to an unfair labour practice punishable under Section 25U, in view of the intention, expressed in the stipulation itself, of depriving the workmen of the status and privileges of permanent workmen. Although in a given case such argument may be accepted, but in the facts of the present case, that issue was neither agitated nor examined by the Tribunal, nor was there the opportunity to agitate that issue before learned single Judge. It may yet be observed that, in view of the scheme of the related provisions of the Act viz., sections 2 (oo) (bb), 25F, 25J, 25T, 25U and the entry No.10 in the Fifth Schedule of the Act, the stipulation in a contract of service to deprive a person of his right to be permanent and successive issuance of such orders or contracts may not be held to be legal on account of being an offence. However, in the present case, it is a matter of fact on record that even after 31.03.2004 the workmen had been continued in service without issuing any fresh orders of appointment or execution of any contract for the subsequent term. Therefore, it is difficult to conclude that the stipulation in respect of the term of contract continued to operate. And even assuming for the sake of argument that the employer continued to have the right to terminate the contract of service at any time without notice, they never even attempted to exercise that right by resolving to terminate the service of the workmen or making an application to the Court to modify the interim relief and permit termination of service of the workmen. Therefore, there is no reason to assume that the workmen continued in service only on account of the order of interim relief to maintain status quo, or that, even after continuous service of six years subsequent to 01.04.2004, the last contract of service, which expired on 31.03.2004 continued to operate and it was a case of non-renewal of contract or expiry of such contract. The conclusion of the Tribunal in that regard in its award is patently wrong and perverse. The conclusion of the Tribunal in that regard in its award is patently wrong and perverse. Accordingly, continuation in service of the workmen during the six years preceding the date of termination was continuous service as envisaged in Section 25B of the Act and the provisions of Section 25F of the Act were attracted at the time of termination of service. 14. Chapter VA of the Act was amended by Act No.32 of 1976 with effect from 05.03.1976 with the effect that the provisions of sections 25C to 25E shall not apply to industrial establishments to which Chapter VB applies and the phrase “industrial establishment” is defined for that purpose. The result is that, in any case the provisions of sections 25F to 25J continue to apply to all the industrial establishments or undertakings as defined in Section 2(ka). The provisions of Section 25F are titled as ‘Conditions precedent to retrenchment of workmen’, indicating that, without compliance with those conditions, there can be no termination of service for any reason whatsoever, in the eye of law. The exceptions carved out from the definition of ‘retrenchment’ in Section 2 (oo) have to be strictly interpreted for being exceptions to the general rule and the wider definition of ‘retrenchment’. As seen earlier, the termination of service in the facts of the present case being not covered by the exception clause prescribed in Section 2 (oo) (bb), in absence of any continuing contract with the specific stipulation, it amounted to retrenchment, which could not take effect unless and until the conditions contained in Section 25F were complied with. In absence of even an attempt to comply with those conditions or even a plea in that regard, the termination of service in question was outright illegal and non est. Consequently, the workmen continued in service in the eye of law. The provisions of Section 25J giving an over-riding effect to the provisions of Chapter VA of the Act must be given its full effect and hence the pleas that there was no post or work for the workmen or that the workmen continued only on account of an interim order of the Court cannot be countenanced to defeat the provisions of Section 25F and Section 25J of the Act. Similarly, the pleas that the workmen were employed on specific jobs in Soujanya counters and that the services in those counters were decided to be outsourced could also not defeat the said statutory and mandatory provisions of the Act. As held in Pramod Jha and Others Vs. State of Bihar [ (2003) 4 SCC 619 para 10] even payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment. 15. The other aspect touching on the legality of termination, as distinguished from justifiability of the termination relates, by the terms of reference itself, to the termination of service during pendency of conciliation proceedings. In the facts of the present case, the termination of service was effected on 01.03.2010 by order dated 28.01.2010, rejecting the representation of the workmen. According to the provisions of Section 20 read with Rules 9 and 10 of the Industrial Disputes (Karnataka) Rules, 1957, where the Conciliation Officer received any information about an existing or apprehended industrial dispute, which does not relate to public utility service, and he considers it necessary to intervene in the dispute, he shall give formal intimation in writing to the parties concerned, declaring his intention to commence conciliation proceedings with effect from such date as may be specified. In the facts of the present case, the industrial dispute was raised before the Conciliation Officer on 04.02.2010 and the notice for holding the conciliation proceeding was issued to the employer on 23.02.2010, holding the first meeting for conciliation on 26.02.2010. Thus admittedly and in view of the express terms of reference, as on 01.03.2010 the conciliation proceedings were pending in respect of the service conditions of the workmen and the termination of service during pendency of such proceeding was in violation of the provisions of Section 33 of the Act, and in fact it was an offence punishable under Section 31 of the Act. For the purpose of application of Section 33, the date of alteration of the conditions of service, during the pendency of conciliation proceedings, is material, and the date on which decision to effect such alteration is irrelevant. As held in M/s. North Brook Jute Co. Ltd., and Another Vs. For the purpose of application of Section 33, the date of alteration of the conditions of service, during the pendency of conciliation proceedings, is material, and the date on which decision to effect such alteration is irrelevant. As held in M/s. North Brook Jute Co. Ltd., and Another Vs. Their Workmen ( AIR 1960 SC 879 ), the conditions of service do not stand changed, either when the proposal is made or the notice is given but only when the change is actually effected. Therefore, the reasoning and finding of the Tribunal based on the date of decision dated 28.01.2010 and not the date of alteration of condition of service which was 01.03.2010, was obviously incorrect and illegal. As held by the Bombay High Court in Dalanvalan Imarat Bandhkam & Patbandhare Kamgar Union Vs. The State of Maharashtra & Ors. [ 1993 (3) LLJ 744 ], after reference to judgment of the Apex Court in the Bhavnagar Municipality Vs. Alibhai Karimbhai & others ( AIR 1977 SC 1229 ), once the conclusion is reached that there was breach of Sec.33(1)(a), it is only a short hop therefrom to the conclusion that there is an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act in view of the judgment of the Supreme Court in S.G. Chemicals and Dyes Trading Employee’s Union Vs. S.G. Chemicals and Dyes Trading Ltd. & Anr. (1986 I CLR 360). Therefore, the workmen were held to be entitled to the consequential reliefs of reinstatement and back wages for the period of their unemployment. In Bhavnagar Municipality (supra), daily rated workmen had raised an industrial dispute and the subject matter of the dispute was connected with the conversion of temporary workmen into permanent workmen. During the pendency of that dispute, the municipality had removed the concerned workmen from service, and the Supreme Court opined that such tampering with status quo ante of those workers was a clear alteration of the conditions of their service and the alteration was in regard to a matter connected with the pending industrial dispute and thus there was contravention of Section 33(1)(a) of the Industrial Disputes Act. As held by the Constitution Bench of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. As held by the Constitution Bench of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and others [ (2002) 2 SCC 244 ], in the context of Section 33(2)(b) of the Act, an order discharging the workmen remains inchoate till an approval of the authority under the said provision is granted. In other words, the relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequently the employee would be deemed to have continued in service entitling him to all the benefits available. That being the legal position, there would be no need of a separate or specific order for his reinstatement. These observations made in the context of the provisions of Section 33 (2) (b), wherein ex post facto approval is required, may apply with greater force in the cases falling under the provisions of Section 33 (1) (a) and (b) of the Act, where prior and express permission in writing of the authority before which the proceedings are pending is prescribed. Thus, the termination of service of the workmen was illegal and non est on the second count as well. 16. In view of the clear finding and conclusion that termination of services of the workmen was not only illegal on two counts, but it was void and non est and even amounted to punishable offences, the issue as to whether the termination was justifiable, pales into insignificance. Then the third issue which has to be addressed is as to what relief the workmen were entitled to. 17. It was argued for the employer, on the basis of the observations of the Apex Court in Incharge Officer and another Vs. Shankar Shetty [ (2010) 9 SCC 126 ], that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact-situation even though the termination of an employee is in contravention of the prescribed procedure, and compensation instead of reinstatement would meet the ends of justice in the given facts of the case. Peculiar facts obtaining in the present case ought to be considered for obviating further complications, disputes and litigations. Peculiar facts obtaining in the present case ought to be considered for obviating further complications, disputes and litigations. Learned counsel for BESCOM also submitted that, since 2004, BESCOM was planning and preparing for outsourcing the services rendered at Soujanya Counters and, as a matter of policy, not to expand its permanent set-up of workmen where the workmen concerned herein could be posted and their services could be regularized for permanent absorption. On the other hand, it was argued for the workmen that after more than eight years of continuous service on fixed wages and apparently exploitative conditions of service, the workmen were entitled in equity and in law to be absorbed on permanent basis, so as to be employed on reasonable conditions of service at par with the other regular employees of BESCOM. It was also contended that the workmen were originally inducted into service on the basis of their qualification and after following the process of selection. Therefore, they cannot be treated as back-door entrants with the stigma of having entered into service in violation of Articles 14 and 16 of the Constitution or in violation of any specific recruitment Rules. 18. Relying upon Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma [ (2005) 2 SCC 363 ], it was submitted that as far as the question of determining entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed; the initial burden is on him and if he placed materials in that regard, the employer can bring on record, the materials to rebut the claim. According to the three Judge Bench decision of the Apex Court in General Manager, Haryana Roadways Vs. Rudhan Singh [ (2005) 5 SCC 591 ], a host of factors like the manner and method of selection and appointment, the 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. 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 with the qualification possessed by him, he may not be in a position to get another employment. Another important factor, which requires to be taken into consideration is the nature of employment. It is recently held in Deepali Gundu Survase Vs. Kranti Junior Adhyapak Mahavidyalaya (2013 AIR SCW 5330), that the cases in which the competent Court or Tribunal finds that the employer had acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. The Courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrong doings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 19. Unfortunately, in the facts of the present case, during the course of proceedings before the Tribunal and the High Court, the parties have mixed the issue related to the legality or otherwise of termination of service with the issue related to absorption and placement of the workmen in regular employment of BESCOM. Whereas, adjudication of an industrial dispute has to be confined to the dispute referred to the Tribunal and the terms of reference, and in the instant case, as the only dispute referred for adjudication was regarding legality of termination of service of the workmen, it was wholly improper and impermissible to bring into consideration extraneous pleas, leading the Tribunal and the Court to grant reliefs which were not within the scope of adjudication. The provisions of sub-section (4) of Section 10 of the Act clearly provide that the tribunal shall confine its adjudication to the points referred and matters incidental thereto. The provisions of sub-section (4) of Section 10 of the Act clearly provide that the tribunal shall confine its adjudication to the points referred and matters incidental thereto. Therefore, it is necessary to confine the consideration of grant of relief to the industrial dispute which was referred and which was required to be legally adjudicated. 20. In view of the findings and conclusion recorded hereinabove about the legality of the action of termination of services of the workmen and the legal consequences thereof, the workmen have to be held to have continued in the service of BESCOM, in the absence of a valid and effective order of termination. Hence, in the absence of any evidence led by the BESCOM to disbelieve assertion of the workmen that they remained unemployed after the admitted and illegal termination of their service on 01.03.2010, an order of their reinstatement with full back wages has to follow. It has to be noted here that the demand and dispute related to the conditions of service, absorption or parity in service with the comparable employees who are in regular employment of BESCOM was not part of the terms of reference and hence, those claims could not be adjudicated and no relief could be granted on that basis. Thereafter, the issue of passage of time, non availability of post and work for the workmen and policy of the employer of not running the Soujanya Counters by the staff employed by it, need to be considered for a just and proper award of reliefs to the aggrieved parties. It is an undisputed fact that BESCOM does not have regular posts or even recruitment Rules for selection and appointment of employees to be employed in the offices which were opened as a part of Soujanya scheme. Therefore, an order to reinstate the workmen on their original posts or in the regular establishment of BESCOM would be practically unworkable and may result into fresh order of termination and successive rounds of litigation. It is trite and well-settled that the primary purpose of industrial adjudication is to ensure industrial peace by settling the dispute on a just and fair basis, having regard to the prevailing conditions in the industry, the statutory provisions and the Constitutional ideology explicit and implied in the preamble of the Constitution and the Directive Principles of State Policy. 21. It is trite and well-settled that the primary purpose of industrial adjudication is to ensure industrial peace by settling the dispute on a just and fair basis, having regard to the prevailing conditions in the industry, the statutory provisions and the Constitutional ideology explicit and implied in the preamble of the Constitution and the Directive Principles of State Policy. 21. In view of the facts, circumstances and submissions narrated hereinabove and in order to do complete justice and to bring the litigation to a quietus, it is found to be necessary and in the interest of justice to direct appellant-BESCOM to pay to the workmen concerned full back wages at the rate last drawn by them and also to pay to them all the terminal benefits due as on the date of payment as if their services were then being terminated afresh, in compliance with the provisions of Section 25-F of the Industrial Dispute Act, after continuous service from the date of their entry into service till the date of payment. The workmen shall also be entitled to any other statutory benefits such as gratuity or any other terminal benefits to which they may be entitled under the Rules and Regulations of BESCOM as may be applicable to the workmen, as on the date of their termination of service now on payment of all such compensation and benefits. It is clarified that unless and until the amounts of terminal benefits as aforesaid are paid to the workmen, they shall be deemed to be in continuous service of BESCOM and back wages and terminal benefits shall be calculated and paid accordingly. Each of workmen shall also be paid by BESCOM the sum of Rs.3,000/-, by way of costs. They shall also be entitled to the statutory benefit accruing to them under Section 25H of the I.D. Act. All the appeals stand disposed of with the order in the aforesaid terms, even as no argument on other issues and contentions in the appeals are agitated or pressed.