JUDGMENT : K.M. THAKER, J. Heard Mr. Chauhan, learned advocate for Mr. Munshaw, learned advocate for the petitioner and Mr. Anish learned advocate for Mr. Chari, learned advocate for the respondent. 2. In present petition the petitioner has challenged award dated 4.5.2006 passed by learned Industrial Tribunal in Complaint No. 4 of 2003 in Reference No. 28 of 2001 whereby learned Labour Court has directed the petitioner to reinstate the respondent i.e. original claimant on his original post with continuity of service. 3. So far as factual background is concerned, it has emerged from the record of present petition that present respondent invoked Section 33 of Industrial Disputes Act, 1947 (hereinafter referred to as the “I.D. Act”) and filed complaint against present petitioner with the allegation that the dispute / reference seeking regularization in service was pending and that despite pendency of the said dispute / reference the corporation illegally terminated his service without following procedure prescribed by law i.e. without seeking permission or approval from the learned Tribunal, as contemplated under Section 33 of the I.D. Act. Learned tribunal adjudicated the complaint. It appears that despite notices issued by the learned tribunal the corporation did not care to file reply and did not lead any evidence before learned tribunal. Ultimately learned tribunal was compelled to decide the complaint in absence of reply by the corporation. Learned tribunal found that during pendency of the dispute / reference the service of the complainant was terminated which amount to breach of Section 33 of the Act and that therefore the corporation's action is illegal. Having reached such conclusion learned tribunal passed award dated 4.5.2006 with abovementioned directions. 4. Mr. Chauhan, learned advocate for the petitioner could not dispute the fact that the corporation had not filed any reply before learned tribunal and / or did not lead any evidence before learned tribunal. He, however, submitted that in view of the fact that the claimant had worked with the corporation on purely adhoc and temporary basis inasmuch as for the period from 1985 to 2003 the claimant had worked only for 41 days on daily-wage basis (i.e. for 4 days in 1991, 22 days in 1994, for 3 days in 1995 and for 12 days in 1998) the direction passed by the learned tribunal are not justified and that therefore the award may be set aside. Except said submission any other submission is not urged by learned advocate for the petitioner. 5. Mr. Anish, learned advocate for the respondent did not make any submission on merits. He merely submitted that though the Court had directed the petitioner vide order dated 29.4.2010 to pay last drawn wages in accordance with Section 17B of the I.D. Act the corporation failed to pay last drawn wages in accordance with said order dated 29.4.2010 passed in Civil Application No. 1693 of 2009. He submitted that there is no error in the award. He has not raised any other submission on merits. 6. I have considered the material available on record of the petition. I have also considered the award passed by learned tribunal and whatever little submissions, as mentioned above, put forwarded by the learned advocates for the parties. 7. From the award and from the details mentioned by the claimant in his statement of claim it has emerged that the relevant facts are not in dispute. From the factual details which are recorded by the learned tribunal in the award it has emerged that :- (a) according to his own claim in statement of claim, the claimant was engaged on casual, temporary and adhoc basis and he was not permanent employee; (b) the claimant alongwith other workmen and through union, raised industrial dispute with the demand for regularization in service; (c) the said demand itself established that the claimant and other workmen were not regular and permanent employees of the corporation; (d) the said dispute was referred to adjudication by appropriate government, to the learned tribunal at Bhavnagar; (e) the said dispute of daily wagers was registered as Reference No. 28 of 2001; and (f) it appears that in the said Reference No. 28 of 2001 the union filed its statement of claim in September 2001. 8. It also appears that the learned tribunal had issued notice about said reference case to the corporation and that the notice was duly served to the corporation. It also appears that despite service of notice of proceedings by learned tribunal the claimant did not appear before learned tribunal and did not file reply before learned tribunal until 2004. While said reference No. 28 of 2001 was pending before learned tribunal the corporation allegedly discontinued respondent from service by oral instruction dated 21.8.2001. It also appears that despite service of notice of proceedings by learned tribunal the claimant did not appear before learned tribunal and did not file reply before learned tribunal until 2004. While said reference No. 28 of 2001 was pending before learned tribunal the corporation allegedly discontinued respondent from service by oral instruction dated 21.8.2001. Therefore the claimant invoked provision under Section 33-A of the Act read with section 33 of the Act and filed complaint against termination of his service. The said complaint was registered as Complaint No. 4 of 2003 in Reference No. 28 of 2001. In the said complaint proceedings the learned tribunal issued notice to the corporation however corporation did not care to appear before learned tribunal and did not care to file reply before learned tribunal until November 2004. 9. Therefore, learned tribunal closed stage of corporation's reply in the said complaint case and adjourned the proceedings to 23.2.2005. Even during the period from November 2004 to February 2005 the corporation did not care to file reply. Therefore, the complainant prayed that the corporation's right to file written statement may be closed. Therefore, learned tribunal passed order in February 2005 and closed the stage / right to file reply. Learned tribunal also proceeded to record evidence of the claimant because the corporation did not care to file reply or to lead evidence. 9.1 The complainant filed affidavit in lieu of chief examination which was taken on record at Exh. 12. It appears that the claimant was subjected to cross examination by learned advocate of the corporation. He conducted cross examination without reply from the corporation. 9.2 It appears that subsequently in February 2006 the corporation submitted application (exh.17) with request to the learned tribunal to reopen its right to file written statement. It also appears that learned tribunal accepted said application and reopened the right / stage to file reply for the corporation. 9.3 Even after said opportunity the corporation did not care to file reply and also did not care to lead any evidence. 9.4 Consequently learned tribunal proceeded to hear the submissions by the claimant. 9.5 So as to grant opportunity to make submission the tribunal adjourned the proceedings on 4.4.2006 however on the said date also the corporation did not make submission to oppose the claim. 9.4 Consequently learned tribunal proceeded to hear the submissions by the claimant. 9.5 So as to grant opportunity to make submission the tribunal adjourned the proceedings on 4.4.2006 however on the said date also the corporation did not make submission to oppose the claim. 9.6 Therefore learned tribunal proceeded to pass award in the complaint on the basis of material which was available on record. 10. Above-mentioned facts bring out that the corporation did not contest the reference on merits inasmuch as it did not file reply against the statement of claim filed by the workmen and it also did not lead any evidence to support its case and to controvert case of the workmen. 11. Besides above mentioned undisputed facts, certain other relevant and important facts, which are also undisputed, have emerged from the record. They are : [a] undisputedly, a dispute/reference with regard to the claim/demand for regularization of service of workman engaged on/working on daily wage basis was referred to learned Tribunal and the said dispute was registered by learned Tribunal, Bhavnagar as Reference (IT) No.28 of 2001. The appropriate government passed order of reference with regard to the said demand/dispute by the workman/daily-wagers on 21.3.2001; [b] after the said order of reference was passed by the appropriate government and while the dispute/demand for regularization of service of persons engaged on daily-wage basis was pending by way of Reference (IT) No.28 of 2001, the corporation, allegedly, discontinued service of present claimant by oral instruction on 21.8.2001; [c] it is not in dispute that present respondent was one of concerned workmen in the said reference No.28 of 2001. According to the observations in the impugned award, name of present respondent appeared at serial No.8 in the order of reference which culminated into Reference No.28 of 2001. According to the observations in the impugned award, name of present respondent appeared at serial No.8 in the order of reference which culminated into Reference No.28 of 2001. Thus, undisputedly, present respondent happened to be one of the concerned workmen in the reference; [d] despite such facts, the service of the respondent herein i.e. one of the concerned workmen in the reference, came to be orally discontinued by the corporation on 21.8.2001; [e] Therefore, the claimant invoked provision under Section 33A read with Section 33 of the Act and claimed that the corporation committed breach of Section 33 and therefore, he is entitled for reinstatement with all consequential benefits; [f] as mentioned above, the corporation did not contest the reference on merits, inasmuch as despite service of notice, it did not file reply. When, in light of subsequent application by the corporation, learned Tribunal re-opened the stage of pleadings and allowed opportunity to the corporation to file reply, it again failed to file reply opposing the complaint. The corporation also did not lead any evidence to controvert the evidence of workman or to supports its case. 12. Under the circumstances, the learned Tribunal considered the case of the workman that during pendency of the reference seeking regularization of service of daily-wagers, the corporation discontinued his service without following procedure prescribed under Section 33 of the Act and therefore, the termination of his service is illegal. 13. From above mentioned facts, it has emerged that, undisputedly, the dispute/demand seeking regularization of service of daily wagers was pending before the learned Tribunal since March 2001 and that undisputedly, the name of present respondent appeared in the order of reference at serial No.8 and, consequently, he was concerned workman before the learned Tribunal in the said reference case. During the pendency of the said reference case, the corporation allegedly discontinued the service of the claimant. 14. In this view of the matter, the case of the respondent herein original complainant would stand covered by the decision of Hon'ble Apex Court in case of The Bhavnagar Municipality v. Alibhai Karimbhai & Ors. [ AIR 1977 SC 1229 ], wherein Hon'ble Apex Court observed, inter alia, that :- “12. Before we proceed further we should direct our attention to the subject matter of the industrial dispute pending before the Tribunal. [ AIR 1977 SC 1229 ], wherein Hon'ble Apex Court observed, inter alia, that :- “12. Before we proceed further we should direct our attention to the subject matter of the industrial dispute pending before the Tribunal. It is sufficient to take note of the principal item of the dispute, namely, the demand of the respondents for conversion of the temporary status of their employment into permanent. To recapitulate briefly the appellant employed daily rated workers to do the work of boring and hand pumps in its Water Works Section. These workers have been in employment for over a year. They claimed permanency in their employment on their putting in more than 90 days' service. They also demanded two pairs of uniform every year, cycle allowance at the rate of Rs. 10/- per month, Provident Fund benefit and National Holidays and other holidays allowed to the other workers. While this particular dispute was pending before the Tribunal, the appellant decided to entrust the work, which had till then been performed by these workers in the Water Works Section, to a contractor. On the employment of the contractor by the Municipality for the self-same work, the services of the respondents became unnecessary and the appellant passed the orders of retrenchment. It is, therefore, clear that by retrenchment of the respondents even the temporary employment of the workers ceased while their dispute before the Tribunal was pending in order to improve that temporary and insecure status. 13. Retrenchment may not, ordinarily, under all circumstances, amount to alteration of the conditions of service. For instance, when a wage dispute is pending before a Tribunal and on account of the abolition of a particular department the workers therein have to be retrenched by the employer, such a retrenchment cannot amount to alteration of the conditions of service. In this particular case, however, the subject matter: being directly connected with the conversion of the temporary employment into permanent, tampering with the status quo ante of these workers is a clear alteration of the conditions of their service. They were entitled during the pendency of the proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication. They were entitled during the pendency of the proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication. And if the appellant wanted to effect a change of their system in getting the work done through a contractor instead of by these temporary workers, it was incumbent upon the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to retrenchment of their services. The alteration of the method of work culminating in termination of the services by way of retrenchment in this ease has a direct impact on the adjudication proceeding. The alteration effected in the temporary employment of the respondents which was their condition of service immediately before the commencement of the proceeding before the Tribunal, is in regard to a matter connected with the pending industrial dispute. 15. That, however, does not conclude the matter. The Tribunal was clearly in error in not adjudicating the complaint on the merits. It is well settled that in a complaint under section 32A, event if the employer is found to have contravened the provisions of section 33, the Tribunal has to pronounce upon the merits of the dispute between the parties.' The order passed in an application under section 33A is an award similar to one passed in a reference under section 10 of the Act. The award passed has to be submitted to the Government and the same has to be published under section 17 of the Act. For the purposes of the Act the complaint under section 33A takes, as it were, the form of a reference of an industrial dispute by the appropriate authority and the same has to be disposed of in a like manner. The Tribunal has committed an error of jurisdiction in declining to adjudicate the matter and to make its award on the merits as required under the law. The High Court was, therefore, not right in dismissing the writ application of the appellant in limine. We should also. observe that, in the absence of adjudication on the merits by the Tribunal, the High Court was not right in holding that the retrenchment by the appellant was "a gross act of victimisation".” 15. The High Court was, therefore, not right in dismissing the writ application of the appellant in limine. We should also. observe that, in the absence of adjudication on the merits by the Tribunal, the High Court was not right in holding that the retrenchment by the appellant was "a gross act of victimisation".” 15. In view of the said decision by Hon'ble Apex Court, the service of the claimant, who allegedly worked with the corporation at the relevant time as daily wager, could not have been terminated without following procedure prescribed by Section 33 of the Act. However, the corporation allegedly discontinued service of the claimant/daily-wager w.e.f. 21.8.2001 by oral order. Such termination of present respondent's service occurred during pendency of reference No.28 of 2001. Therefore, the learned Tribunal held that the said termination is illegal and in violation of Section 33 of the Act. 16. In view of the decision by Hon'ble Apex Court in case of Bhavnagar Municipality (supra), the said finding and conclusion by learned Tribunal, ordinarily, cannot be faulted. 17. When breach of Section 33 is established, the complainant would be entitled for consequential benefits. 17.1 In this context, it would be appropriate to take into account observations by Hon'ble Apex Court in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma & Ors. [ AIR 2002 SC 643 ], wherein Hon'ble Apex Court has observed, inter alia, that :- “13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further any employer who contravenes the provisions of Section 33 invites a punishment under S.31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs.1000/- or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in other way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in other way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman. 14. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman. 14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this 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. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33A challenging the order granting approval on any of the grounds available to him. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. 15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment. 16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33A. There is nothing in Sections 31, 33 and 33A to suggest otherwise even reading them together in the context. These Sections are intended to serve different purposes.” 18. In view of the said observations by Hon'ble Apex Court, the findings and conclusions by learned Tribunal in present case cannot be faulted. If the proceedings before the learned Tribunal had proceeded in normal course, this Court would not hesitate or would not pause to consider justification of the directions by learned Tribunal in impugned award. 19. However, from the material available on record of present case, it has, prima facie, emerged that original complainant i.e. present respondent worked with the corporation only for 41 days and that too intermittently with large breaks/hiatus during the period between 1991 to 2004, inasmuch as according to the corporation, the original complainant worked only for 4 days in 1991 and for 22 days in 1994. In the interregnum, i.e. in 1992 and 1993, the complainant was never engaged and he did not work with the corporation. In 1995, the complainant worked with the corporation for only 3 days and thereafter, during 1996, 1997 and 1998, the complainant was never engaged by the corporation and he never worked with the corporation and thereafter, he worked for 12 days in 1999. Thus, in all, the complainant worked for 41 days. Another relevant aspect which has emerged from the document placed on record of this petition by the corporation (Annexure-C, Page-28) is that the complainant last worked in August 1999 with the corporation and thereafter he did not work with the corporation and he was not engaged by the corporation. It is pertinent that the complainant has not disputed said details/facts. Any contrary evidence is not placed on record. There is nothing on record to persuade this Court to disbelieve or reject the details/facts placed on record by the petitioner. 20. Above mentioned details, translates into the fact that at the time when the appropriate government passed order of reference in March 2001 which culminated into Reference (IT) No.28 of 2001, the claimant was not in service with the petitioner corporation and he was not engaged by the corporation since August 1999. Under the circumstances if the facts mentioned in document at Annexure-C are correct, then, prima facie, the provision under Section 33 of the Act would not be applicable and would not be attracted in present case. 21. However, from the award, it has emerged that the corporation had not filed even written statement/reply before the learned Tribunal in the said complaint No.4 of 2003 and the corporation did not lead any evidence before the learned Tribunal. 21.1 The details about the dates for which the claimant was engaged with the corporation i.e. the days when he worked with the corporation were not available/were not placed on record before the learned Tribunal. 21.2 The details that the claimant had not worked with the corporation and he was never engaged after 1999 was not available/was not placed on record before the learned Tribunal. 22. The said document which reflects such details is placed on record for the first time before this Court. 23. Almost 10 years have passed since learned Tribunal passed the award which is impugned in present petition. 22. The said document which reflects such details is placed on record for the first time before this Court. 23. Almost 10 years have passed since learned Tribunal passed the award which is impugned in present petition. Before that, the proceedings remained pending before the learned Tribunal for 3 years, i.e. from 2003 to 2006. During the said period of 3 years, the corporation neither filed reply nor did it lead evidence before the learned Tribunal and did not place the said details on record before the learned Tribunal. 24. At the same time, the complainant did not take any steps for almost 2 years after his alleged termination. It is not in dispute that the claimant did not place on record the termination order. He alleged that his service was terminated on 21.8.2001 by oral order. Thereafter, for almost 2 years, i.e. until 2003, the complainant did not take any action against alleged termination and filed the complaint for the first time in 2003 against the termination which allegedly took place in August 2001. 25. The facts which emerge from Annexure-C of present petition is also compelling, inasmuch as the complainant seems to have worked with the corporation in 1991 (for 4 days), in 1994 (for 22 days), in 1995 (for 3 days) and in July-August, 1999 (for 12 days). Having regard to all these facts, this Court would have remanded the case to learned Tribunal for fresh consideration. However, the fact that almost 10 years have passed since the learned Tribunal passed the award, holds the Court back from remanding the case to learned Tribunal, more particularly in view of the fact that the learned Tribunal had granted additional opportunity to the corporation by recalling the order whereby its right to file reply and lead evidence was closed. Even after such opportunity, the corporation did not file reply and did not lead any evidence. In that view of the matter, this Court is reluctant to remand the proceedings before the learned Tribunal. 26. The Court is of the view that instead of remanding the proceedings, it would be appropriate to modify the award and directions passed by learned Labour Court in such manner that equity can be balanced. 27. In that view of the matter, this Court is reluctant to remand the proceedings before the learned Tribunal. 26. The Court is of the view that instead of remanding the proceedings, it would be appropriate to modify the award and directions passed by learned Labour Court in such manner that equity can be balanced. 27. Having regard to the facts discussed above and overall circumstances of the case as well as the directions passed by learned Tribunal, more particularly the fact that in the award, the learned Tribunal has not recorded any reason or justification for passing the order directing the corporation to treat claimant's service continuous the direction granting continuity of service is not sustainable and deserves to be set aside. Therefore, said direction is set aside, more particularly in view of the fact that the claimant, at the time of alleged termination, was not regular and permanent workman and for some period, he was intermittently engaged as daily-wager. 28. As mentioned above, the direction granting backwages is not clearly spelt out from the order. Therefore, to avoid any confusion or controversy or conflict it is clarified that if such direction had been passed – or if it is passed – then such direction i.e. the direction to pay backwages – at any rate – would not be sustainable. The facts of present case does not warrant order directing payment of backwages. Such direction, assuming that such direction is passed, would deserve to be set aside. Accordingly set aside. 29. The direction to reinstate the claimant on his original post i.e. as daily wager is not disturbed. 30. In the result, following order is passed :- [a] The petition is partly allowed. [b] The impugned award is partly set aside and modified. [c] The direction to reinstate the complainant on his original post, i.e. as daily wager, is not disturbed. [d] Therefore, the corporation shall reinstate the complainant on his original post as daily wager. [e] The direction granting continuity of service is set aside. [f] Any direction with regard to backwages is not spelt out clearly, however, with a view to avoiding any complication or dispute (which may be raised in light of incomplete observation in the award), it is clarified that the workman is not entitled for backwages. 31. Before concluding, it is necessary to deal with the grievance made by the learned advocate for the respondent. 31. Before concluding, it is necessary to deal with the grievance made by the learned advocate for the respondent. Learned advocate for the respondent relied on the order dated 29.4.2010 passed in Civil Application No.1693 of 2009 and submitted that the corporation has not complied the said direction. 32. Any details with regard to alleged non-compliance of the order is not available on record of present petition. Any affidavit disclosing alleged failure is not placed on record. Therefore, at this stage, any direction with regard to said grievance cannot be passed. It is, however, clarified that if the corporation has not complied the direction vide order dated 29.4.2010, then, it would be open and permissible to the respondent herein to take out appropriate proceedings in accordance with law against the said alleged failure. With aforesaid observations, clarifications and direction, present petition stands disposed of. Orders accordingly. Rule is made absolute to the aforesaid extent. Order accordingly.