JUDGMENT : S.N. Prasad, J. The award dated 21.12.1991 passed in I.D. Case No. 36 of 1988 is under challenge whereby and where under, the reference has been answered in favour of the workman holding therein that the termination of service of the workman w.e.f. 10.11.1986 is neither legal nor justified and accordingly the workman has been held entitled to be reinstated in service with full back wages. 2. Brief facts of the case of the workman is that he was appointed vide order No.6146 dated 24.8.1985 as substitute Conductor and subsequently he was appointed as per Order No.2400 dated 7.4.1984 allowed to continue till 22.2.1985. Again appointed vide order dated 14.6.1985, allowed to continue till 26.1.1987. On 24.1.1987 his service was terminated after expiry of the term and while doing so, no reasonable opportunity was given to him to explain the matter and no enquiry was held, hence action of the management is illegal and motivated. 3. While on the other hand, case of the management is that the workman was appointed as substitute Conductor, it was extended under various office orders till 10.11.1986. His service was terminated w.e.f. 10.11.1986 and the conductors who joined after him were transferred and they are still continuing in service. He has not been paid 15 days average pay and one month’s pay in lieu of one month prior notice to such termination of service. His retrenchment is not due to surplus staff. His juniors are still continuing in service and the management has not followed the procedure mentioned in Section 25-G of the Industrial Disputes Act, 1947 and as such the termination is not sustainable and accordingly he is entitled to be reinstated with full back wages. Further case of the management is that he workman was appointed temporarily as substitute Conductor for a period of 30 days vide office order dated 24.8.1985 in the suspension vacancy of Sri K.C. Sahu. His service was extended and he was adjusted in different leave and suspension vacancies from time to time. Ultimately his service was terminated w.e.f. 10.11.1986 on the report of checking staff on the allegation that he was carrying some adults and children passengers without ticket in Bus ORX-4403 on 11.9.1986. He was paid 15 days wages and one month pay towards retrenchment compensation. Ultimately his service was terminated w.e.f. 10.11.1986 on the report of checking staff on the allegation that he was carrying some adults and children passengers without ticket in Bus ORX-4403 on 11.9.1986. He was paid 15 days wages and one month pay towards retrenchment compensation. He was not appointed on regular vacancy and is not entitled to get the benefits under Section 25G of the I.D. Act, 1947. 4. The workman being aggrieved with the action of the management has raised a dispute which culminated into a reference having been made by the appropriate Government to the effect as follows:- “Whether the termination of services of Sri Sarat Chandra Das a workman of M/s. OSRTC, Balasore w.e.f. 10.11.1986 by the District Transport Manager (A), Balasore is legal and/or justified? If not, to what relief is Sri Das is entitled?” 5. The Labour Court has answered the reference by holding therein that the termination of service of the workman is illegal and unjustified and directed to be reinstated in service with full back wages. 6. The Management being aggrieved with the award is before this Court by way of this writ petition on the ground that the finding is perverse as because the petitioner right from the first day of engagement was engaged under the leave vacancy for a period of 30 days and he was engaged time to time for the period of 30 days and as such he cannot be said to be an employee working under the regular establishment or he cannot be said to be rendered his service continuously for a period of 240 days. The other ground has been taken that the provision of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 is applicable for the reason that the petitioner was engaged under a contract for a specific period, hence termination of the workman is not coming under definition of Section 2(oo) of the I.D. Act, but the Labour Court has not appreciated this aspect of the matter. The further ground has been taken that the provision of Section 25G is not attracted in the facts and circumstances of this case as because the workman was not working under the regular establishment rather he was appointed on temporary basis created due to suspension of one regular Conductor namely Sri K.C. Sahu. 7. The further ground has been taken that the provision of Section 25G is not attracted in the facts and circumstances of this case as because the workman was not working under the regular establishment rather he was appointed on temporary basis created due to suspension of one regular Conductor namely Sri K.C. Sahu. 7. While on the other hand, learned counsel representing the workman has submitted that there is no infirmity in the award rather the Labour Court has passed the award after taking into consideration the fact that the workman has performed duty continuously for a period of more than 240 days and as such the provision of Section 25F of the I.D. Act is applicable, hence the order of reinstatement has been passed. He has further submitted that the statutory provision as contained in Section 25G of the I.D. Act has not been followed since the persons junior to him are allowed to continue in service while his service have been dispensed with and after taking into consideration this aspect of the matter the award has been passed, hence there is no infirmity in the same, as such no interference has been warranted by this Court. We have heard learned counsel for the parties at length and perused the documents available on record. 8. Before appreciating the arguments, it is necessary to refer the provisions of Sections 25F, 25B, 2(oo)(bb) and 25G of the Industrial Disputes Act, 1947 which has got bearing with the issue involved in this case. Section 25F which speaks as follows:- “25F. We have heard learned counsel for the parties at length and perused the documents available on record. 8. Before appreciating the arguments, it is necessary to refer the provisions of Sections 25F, 25B, 2(oo)(bb) and 25G of the Industrial Disputes Act, 1947 which has got bearing with the issue involved in this case. Section 25F which speaks as follows:- “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 indicting the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such , 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 [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].” From perusal of provision as contained in Section 25F i.e., the conditions precedent to retrenchment of workmen has been stipulated therein and in case of violation of the same, the compensation is to be paid to the workman. The conditions precedent is that the 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 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. 9. Continuous service has been defined under Section 25B which speaks as follows:- “25B. 9. Continuous service has been defined under Section 25B which speaks as follows:- “25B. Definition of continuous service-(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 note less than- (i) ninety-five days, in the case of workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. From perusal of provision as contained in Section 25B which stipulates that 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. 10. Retrenchment has been defined under Section 2(oo)(bb) which speaks as follows:- 2(oo)(bb). 10. Retrenchment has been defined under Section 2(oo)(bb) which speaks as follows:- 2(oo)(bb). “retrenchment” means the termination by the employer of this service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include- (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. From perusal of Section 2(oo)(bb) which stipulates the definition of retrenchment which 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 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. 11. Thus, under the exception clause i.e., under Section 2(oo)(bb), retrenchment cannot be said to be done in the 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 provided that such termination of service has been excluded from the definition of retrenchment. Procedure for retrenchment has been defined under Section 25G of the I.D. Act, 1947 which speaks as follows:- “25G. Procedure for retrenchment-Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.” From perusal of the provision as contained in Section 25G, it is evident that this provision castes an obligation to follow the procedure prescribed therein and the conditions to be satisfied by an employee is that the workman should belong to a particular category of workman in that establishment and there should be no agreement between the employer and the workman contrary to the procedure of ‘last come first go’. In other words, if there is an agreement between the employer and the workman making an exception to the rule, the rule would not apply. 12. The doctrine of ‘last come first go’ has to be borne in mind only with respect to different categories of workmen working in an industrial establishment and not to the whole of the industrial establishment. In the light of these legal positions, the case in hand is to be considered. 13. The fact which is not in dispute in this case is that the workman joined in his service on 24.8.1985 temporarily as substitute Conductor for a period of 30 days as would be evident from Annexure-1 i.e., the appointment order with the condition that his service can be terminated at any time earlier than the period of appointment within 7 days notice or 7 days pay in lieu thereof, the said appointment order has been marked as Ext.A. Subsequently the appointment of the workman was extended by various appointment orders which are marked as Exts. B and C. he was again appointed under Exts. D, E, F, G and H. His last extension order of service is Ext.J. His service was terminated w.e.f. 10.11.1986 as per Ext.K. The gradation list was prepared by the management as per Ext.L. The name of the workman is found at Sl. No.2 of Ext.L. 14. The Labour Court after taking into consideration the fact that the workman has been completed 240 days of continuous service, hence there is violation of Section 25G read with Section 25F of the i.D. Act, hence passed an award answering the reference directing the management to reinstate him with full back wages, the said award is under challenge by the management. 15. We have examined the finding given by the Labour Court in the award and from its perusal, it is evident that the Labour Court has reached to a conclusion that there is violation of Provision of Section 25G of the I.D. Act as because the persons like Somanath Parida, Laxminarayan Mohanty and Aswini Kumar Sahu were continued in service who were juniors to the workman and hence the principle of ‘last come first go’ has not been followed. 16. 16. There is no dispute about the fact that the workman was appointed for a specific period by way of contractual engagement to fill up substitute vacancy created by suspension of Sri K.C. Sahu. There is no dispute about the fact that the service of the workman has been extended from time to time but ultimately he was terminated w.e.f. 10.11.1986. 17. In the facts and circumstances of this case, it is to be examined as to whether the workman is coming under the purview of retrenchment as per the stipulation made under Section 25F and as per the definition of retrenchment prescribed under Section 2(oo)(bb) and the definition of continuous service as provided under Section 25B of the I.D. Act. Continuous service has been defined under Section 25B which provides that 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. 18. Section 25F stipulates the provision to be followed which is mandatory in nature in case of retrenchment and the retrenchment has been defined under Section 2(oo) which 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 which is relevant for the present case i.e., the provision as contained in Section 2(oo)(bb) which stipulates that the 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. Thus, in the light of these provisions, it is to be seen as to whether the workman will be said to be in continuous service so that he may be said to be retrenched within the meaning of Section 2(oo) and also it is to be seen as to whether he is coming under exception clause i.e., under Section 2(oo)(bb) of the I.D. Act. 19. 19. We, on examination of the appointment letter, have found that the engagement of the workman was for a period of 30 days initially against leave vacancy by way of substitute Conductor on account of suspension of one namely Sri K.C. Sahu and he was allowed to continue in service from time to time but he has committed some irregularity in course of discharging his duty and thereafter he was terminated from service as per the terms and conditions mentioned in the appointment letter which stipulates a condition that the service can be terminated at any time by giving 7 days notice in advance to the workman. 20. The Labour Court without appreciating this aspect of the matter has gone into the fact that there is violation of Section 25F and 25G of the I.D. Act, hence passed an award answering the reference in favour of the workman. 21. We, on examination of the material available on record along with the statutory provision as discussed above, have found that the Labour Court has not passed the award while answering the reference in favour of the workman in right perspective for the following reasons:- (i) The Labour Court has taken into consideration the violation of provision of Section 25G of the I.D. Act. It is because of the reason that juniors have been allowed to continue, hence there is applicability of the provision of Section 25G and accordingly the order has been passed in favour of the workman while passing the order by applying the statutory provision as contained in Section 25G of the I.D. Act. It is because of the reason that juniors have been allowed to continue, hence there is applicability of the provision of Section 25G and accordingly the order has been passed in favour of the workman while passing the order by applying the statutory provision as contained in Section 25G of the I.D. Act. The Labour Court has not appreciated the fact that the other workers who were the substitute Conductors having been appointed temporarily to perform their duty by way of creation of vacancies due to suspension or for any reasons of regular conductors likewise the workman has been appointed, in this situation if a person has been engaged against the substituted vacancy created due to suspension of a regular employee and if the regular employee resume his duty, whether such employee who has been appointed as substitute Conductor has got a right to remain in service, the answer will be in negative because the appointment made due to creation of vacancy in the instant case by virtue of reason that one Sri K.C. Sahu, regular Conductor has been suspended and due to suspension the post has fallen vacant, for the purpose of smooth functioning, the service of the workman has been taken by issuance of appointment letter with a specific condition that the appointment is only for a period of 30 days who will be terminated by giving 7 days notice without assigning any reason and the workman has accepted the offer of appointment but however he was allowed to continue further period and remain in service till 10.11.1986 but the fact remains that he was engaged as a substitute Conductor by way of creation of vacancy due to suspension of one Sri K.C. Sahu and other exigency and as such he cannot be said to be regular employee, meaning thereby his appointment is said to be for a specific period as would be evident from the order of appointment and by taking into consideration the offer of appointment, there is no dispute about the fact that the case of the workman is not coming under the definition of ‘retrenchment’ as per the definition provided under Section 2(oo) of the I.D. Act rather he is coming under the purview of Section 2(oo)(bb) of the I.D. Act, as such he cannot be said to be entitled to get benefit of the provision of Section 25F of the I.D. Act, 1947. (ii) So far as the finding given with respect to violation of Section 25G of the I.D. Act is concerned, Section 25G stipulates a condition that the principle of ‘last come first go’ is to be followed and according to the award this principle has not been followed as because the juniors to the workman has been allowed to continue in service while terminating the service of the workman which is in violation of Section 25G but while dealing with this issue the Labour Court has not examined the fact with respect to the case of Somanath Parida, Laxminarayan Mohanty and Aswini Kumar Sahu who have also been appointed in the leave vacancy under the management. There might be a situation that the vacancy against which these three persons have been engaged, the regular employees might not have resumed their duties as on date while in case of the workman the suspended employee Sri K.C. Sahu has come to resume his duty and the date he resumed his duty the vacancy against which the present workman has been engaged, his tenure of service has come to an end due to specific condition mentioned in the order of engagement to the effect that “he is hereby appointed as a substitute Conductor temporarily in the suspension vacancy of Sri K.C. Sahoo, Conductor for a period of 30 days with effect from 19.8.1985 i.e., from the date he is actually engaged in duty by the S.S.M., Balasore or till joining of Sri Sahoo whichever is earlier in the consolidated pay of Rs.622/-. Meaning thereby the engagement of the workman was up to the date till Sri K.C. Sahoo resumed his duty, hence the Labour Court while coming to conclusion regarding violation of Section 25G of the I.D. Act ought to have examined this aspect of the matter before holding the violation of Section 25G of the I.D. Act but without examining this aspect of the matter, the Labour Court has come to the finding that there is violation of Section 25G which according to us, is not based upon sufficient evidence. 22. The Labour Court has further taken into consideration that the workman being not engaged on a regular post and worked for a specific period had no right to hold regular post, his disengagement cannot be considered arbitrary and his retrenchment cannot be considered under Section 25G. 22. The Labour Court has further taken into consideration that the workman being not engaged on a regular post and worked for a specific period had no right to hold regular post, his disengagement cannot be considered arbitrary and his retrenchment cannot be considered under Section 25G. In this respect reference needs to be made the judgment rendered by the Hon’ble Supreme Court in the case of Manager, R.B.I Vs. Gopinath Sharma and another reported in AIR 2006 SC 2614 at para-26 and 27, it has been held as follows:- “26. The case of The Haryana State Agricultural Marketing Board Vs. Subhash Chand and another, 2006 (3) SCC 393, relates to the disengagement of casual employees. The question arose was as to whether the provisions of Section 25G are to be complied with. In this case, the respondent was appointed on contractual basis by the appellant during paddy seasons on consolidated wages. Upon termination of the services, the respondent raised an industrial dispute. The appellant took the stand that the respondent was employed only for 208 days during the previous year whereas the respondent contended that he had worked for 356 days. The Labour Court held that the termination was violative of Section 25G of the I.D. Act and hence an unfair labour practice. The appellant filed a writ petition against the decision of the Labour Court which was dismissed by the High Court. Setting aside the decision of the Labour Court, the High Court held Fifth Schedule to the I.D. Act inapplicable and hence dispensing with the engagement of the respondent cannot be said to be unwarranted in law. 27. xxx xxx If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.” On the basis of the reasons mentioned hereinabove, the finding given by the Labour Court with respect to Issue No.1 is not justified. 23. 23. So far as the finding concerned with the Issue No.2 whereby and where under the relief has been granted to the petitioner holding him to be reinstated in service with full back wages for the reason that there is violation of Section 25G of the I.D. Act, 1947 but this finding also is not proper for the reason that when we have already come to conclusion that there is no violation of Section 25G of the I.D. Act, hence the workman cannot be said to be entitled to be reinstated with full back wages. Accordingly, this finding is not sustainable. 24. Now, question arises that when the workman has completed 240 days of regular service as has been found by the Labour Court since there is no dispute about the fact that the workman has got employment from 24.8.1985 till 10.11.1986, hence he has completed 240 days of continuous service and as such before retrenchment he is to be paid the retrenchment compensation as per the provision contained in Section 25F of the I.D. Act. 25. We, on examination of the award, have found that the evidence has been laid by the Management Witness No.1 that the workman has been paid one month retrenchment compensation and was paid to the workman before termination of his service, however the workman has not admitted this aspect of the matter but no evidence has been laid by the workman in this regard and this specific stand has not been rebutted as would be evident from the management witness no.1, however it has come that the management has not given six months pay as retrenchment compensation but that is not the provision under Section 25F of the I.D. Act rather the provision under Section 25F is to give one month notice in writing or the workman has been paid in lieu of such notice, wages for the period of the notice and the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay in excess of six months and as such the specific stand made by the management witness no.1 in this regard has not been disproved and even in this case there is no reason to direct the management to pay retrenchment compensation as because before retrenchment the provision of Section 25F of the I.D. Act has been followed. 26. 26. It further transpires from the award that the Labour Court has gone into the fact with respect to the irregularities committed by the workman by observing therein that no enquiry has been conducted and as such the termination is not sustainable, but this finding according to us is also not sustainable in the eye of law for the reason that the nature of engagement of the workman which is purely temporary in nature against the substitute vacancy and if an employee working temporarily under a substitute vacancy commits any irregularity, there is no reason to conduct a regular departmental proceeding since regular departmental proceeding is meant for regular employee working under the regular establishment and if the employee is not working under the regular establishment, the terms and conditions of the offer of appointment will take the field and taking into consideration this aspect of the matter the management has dispensed with the service of the workman by following the terms and conditions of offer of appointment and the Labour Court without appreciating this aspect of the matter has gone into the fact that a regular enquiry ought to have been conducted before order of termination. According to us, for the reasons stated herein above, this finding is not sustainable in the eye of law. 27. We are conscious of the fact that the High Court sitting under Article 226 of the Constitution of India should not assume the power of appellate court in the garb of judicial review as has been held by the Hon’ble Supreme Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan and others reported in AIR 1964 SC 477 and M/s. Pepsico India Holding Pvt. Ltd. Vs. Krishna Kant Pandey, (2015) 4 SCC 270 . But in case of perversity or error apparent on the face of record, High Court certainly can interfere with the finding in order to correct the miscarriage of justice exercising the said power. 28. Taking this case coming under the exception as has been stated hereinabove, we have got no hesitation in holding that the award is not sustainable in the eye of law. Accordingly, the award dated 21.12.1991 passed in I.D. Case No. 36 of 1988 is hereby quashed. Accordingly, the writ petition stands allowed.