JUDGMENT : K.M. Thaker, J. Heard learned advocates for petitioner and respondent. 2. In present petition, the petitioner District Panchayat has challenged the award dated 13.03.2008 passed by learned Labour Court, Jamnagar in Reference (LCJ) No.141 of 1997 whereby the learned Labour Court has directed the petitioner to reinstate the respondent on his original post with 20% back wages. 3. So far as the factual background is concerned, it has emerged that the present respondent i.e. the original claimant raised industrial dispute with the allegations that opponent Panchayat illegally terminated his service on 20.03.1994 without following procedure prescribed by law. He also alleged violation of statutory provisions including under section 33 of the Industrial Disputes Act, 1947. 4. With such allegations, the petitioner raised industrial dispute. Appropriate government referred the dispute for adjudication to the learned Labour Court, Jamnagar. The Order of reference culminated into Reference (LCJ) 141 of 1997. In the statement of claim before the learned Labour Court, the claimant alleged that he joined the service with the opponent Panchayat in June, 1988 and at the relevant time he was working as Hamal and his salary was Rs.33 per day and that the opponent Panchayat illegally terminated his service on 20.03.1994. According to the claimant, his service was terminated illegally and arbitrarily and in violation of principle of natural justice as well as statutory provisions and without payment of retrenchment compensation. He also alleged that though his service was terminated person junior to him were continued in service and that, therefore, the termination of his service is illegal. With such allegations, he demanded that he should be reinstated in the service with all benefits. 5. Opponent Panchayat contended that the allegations by the claimant including the allegation with regard to date of joining incorrect and not admitted by the Panchayat. It was also contended by the Panchayat that the claimant was only temporary employee engaged on adhoc basis and that Reference is not maintainable because the claimant raised the dispute almost 3 years after he was discontinued from service. The Panchayat also contended that the claimant was engaged on temporary, adhoc and daily wage basis and that, therefore, he had no right to continue in service. The Panchayat also contended that the claimant was engaged on temporary, adhoc and daily wage basis and that, therefore, he had no right to continue in service. The Panchayat also contended that the service was discontinued in light of the instruction and direction issued by Government vide Circular dated 14.10.1994 to discontinue the practise of engaging person on daily wage basis. With such submission, the Panchayat opposed the demand by the claimant. 6. Upon conclusion of pleadings by both the sides, learned Labour Court received evidence, oral and documentary, from both sides. When the parties closed their respective evidence, learned Labour Court heard submission and thereafter passed impugned award with above mentioned directions. 7. Ms. Khyati Hathi, learned advocate for the petitioner Panchayat submitted that the learned Labour Court failed to appreciate that Reference would not be maintainable in view of the delay in raising dispute. She also submitted that service of the claimant was terminated in view of the instruction by Government to discontinue the practise of engaging the worker on daily wage basis. She submitted that claimant was engaged only on temporary basis for casual work and that, therefore, he had no right to continue in service. However, the learned Labour Court failed to appreciate this aspect and committed error in directing the Panchayat to reinstate the claimant. She submitted that learned Labour Court also committed error in awarding back wages. According to learned advocate for petitioner, the award should be set aside. 8. According to the respondent there is no error in the decision by the learned Labour Court. Learned advocate for respondent would submit that the service of claimant was terminated without following any procedure prescribed by law and that though the claimant had worked for more than 12 months and also worked for more than 240 days neither retrenchment compensation was paid nor any such procedure was followed and even principle of natural justice was violated and that, therefore, there is no justification in challenge against the award. 9. I have considered rival submission and also considered the material available on record and I have also examined the award which is impugned in the present petition. 10. Though the petitioner disputed respondent's date of joining with Panchayat, it is not in dispute that the claimant worked with the Panchayat and that claimant was engaged by Panchayat for more than 12 months. 11. 10. Though the petitioner disputed respondent's date of joining with Panchayat, it is not in dispute that the claimant worked with the Panchayat and that claimant was engaged by Panchayat for more than 12 months. 11. It is not in dispute that at the time when the claimant's service was discontinued, the Panchayat had not paid retrenchment compensation and/ or it had not conducted domestic inquiry against the claimant for any alleged misconduct. It is also not in dispute that at the time when the claimant's service was discontinued the Panchayat had not prepared and displayed the seniority list as contemplated under Rule 81 of ID (Gujarat Rules) 1966. It is also not in dispute that the claimant had submitted an application demanding production of Pay Register and attendance Register so as to establish the fact that he had worked for more than 240 days. The application was submitted on the premise that the Panchayat had not given attendance card and/ or any document with the help of which he can establish the fact and details about attendance. 12. Learned Labour Court has recorded in the Award that the Panchayat neither filed any reply against the said Application nor placed on record any documents. 13. In this background, learned Labour Court has recorded findings of fact that the claimant had worked for more than 12 months with the Panchayat and he worked for more than 240 days and despite such fact the Panchayat had not followed the procedure prescribed under Section 25(B) of the Act and/or prescribed under Rule 81 of the Industrial Disputes (Gujarat Rules) and consequently the termination of claimant's service was illegal and in breach of statutory provisions. In this view of the matter, there is no reason or no basis to interfere with the findings of fact recorded by the learned Labour Court. 14. There is another perspective to this matter. It has emerged from the record that according to the claimant he had raised the demand for regularisation of service. It appears that claim and dispute was raised by the claimant on the ground that though he had worked for many years in Panchayat, however, his service is not regularised. With such allegations, demand for regularisation and confirmation in service was raised. The said demand was pending consideration/conciliation before the Conciliation Officer at the time when the service of the claimant came to be discontinued. With such allegations, demand for regularisation and confirmation in service was raised. The said demand was pending consideration/conciliation before the Conciliation Officer at the time when the service of the claimant came to be discontinued. 15. In this view of the matter, provision under Section 33 of the Industrial Disputes Act would be attracted. Section 33 of Industrial Disputes Act reads as under: "[33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings (1) During the pendency of any conciliation proceeding before b[an arbitrator or] a conciliation officer or a Board or of any proceeding before a Labour 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 workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, b[or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman], (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman; Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) Notwithstanding anything contained in subsection (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation. For the purposes of this subjection, a 'protected workman', in relation to an establishment, means a workman who, being b [any member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognised as protected workmen, for the purposes of subsection (3) shall be one per cent, of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board c [an arbitrator, a] Labour Court, Tribunal or National Tribunal under the proviso to subsection (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and passed [within a period of three months from the date of receipt of such application;] such order in relation thereto as it deems fit.] e [Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing extend such period by such further period as it may think fit. Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this subsection had expired without such proceedings being completed.] 16. Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this subsection had expired without such proceedings being completed.] 16. The said provision contemplate that if any dispute is pending before the conciliation officer or Labour Court or Industrial Tribunal then the service of the employee cannot be terminated without seeking or approval as the case may be, from the Conciliation Officer or Labour Court or Tribunal. If service of employee is terminated without seeking approval or permission, as the case may be, then such termination would be illegal. In this case reference can be made to the observation made by the learned Labour Court in case of Bhavnagar Municipality v. Alibhai Karimbhai and others, ( AIR 1977 SC 1229 ). 17. The fact that conciliation proceedings with regard to the claimant's demand for regularisation of service was pending when the service of claimant was terminated is not disputed by the Panchayat. 18. According to the learned advocate for Panchayat when the Reference was pending before the learned Labour Court, the claimant had withdrawn the demand in view of the fact that his service was already terminated. However, the fact that at the time when the claimant's service was terminated the conciliation proceedings were pending, is not denied by the panchayat. 19. Under the circumstances, Section 33 would be attracted in the present case because the Panchayat undisputedly did not seek permission or approval and did not comply with the condition under Section 33 and, therefore, the petitioner's action against the respondent is hit by violation of Section 33. 20. In light of the decision of Hon'ble Apex Court in case of Bhavnagar Municipality v. Alibhai Karimbhai and others the action of the petitioner Panchayat is unsustainable. Therefore, learned Labour Court's decision on this court cannot be faulted. 21. On overall view of the petition and for above discussed reasons, the final conclusion by learned Labour Court that the claimant's service was terminated illegally and in violation of statutory provision is correct and justified and the said conclusion cannot be faulted. 22. In this background, question of appropriate relief would arise. 23. Learned Labour Court having regard to the fact that the claimant was terminated in violation of Statutory provision, considered it appropriate to direct the petitioner to reinstate the claimant. 22. In this background, question of appropriate relief would arise. 23. Learned Labour Court having regard to the fact that the claimant was terminated in violation of Statutory provision, considered it appropriate to direct the petitioner to reinstate the claimant. Having regard to the fact that in present case it is established that the claimant's service was terminated in breach of Section 25(F) and Section 33 of the Industrial Disputes Act, the said decision by learned Labour Court cannot be said to be unjustified or arbitrary and cannot be faulted. Thus, there is no justification to disturb said decision. 24. Besides this, at the time of hearing of this petition, the learned advocate for the petitioner submitted that pursuant to the award, the claimant is already reinstated by the Panchayat and as of now the claimant is in service with the Panchayat. This is an additional reason for not interfering with the direction to reinstate the claimant. 25. This brings in picture the issue with regard to the direction to pay 25% back wages. 26. On examining of the impugned award it has emerged that learned Labour Court has failed to take into account relevant circumstances which should be considered while deciding the claim for back wages. Merely because the termination is found to be illegal, direction to pay back wages, should not follow mechanically and direction to back wages should be based on proper and objective consideration of relative facts and circumstances. From present award it comes out that the learned Labour Court has not considered relevant factors for determining justification or otherwise with regard to claim for back wages. The Award suffers from error of non-application of mind to the relevant facts and circumstance and relevant factors for deciding the issue e.g. the fact claimant was engaged on adhoc and daily wage basis for temporary and casual work. Further, the total tenure of service of the claimant was hardly 5 years and he raised dispute after 3 years and that, therefore, the direction to pay 20% back wages is not sustainable. In view of such facts, the decision to pay 20% back wages is not justified. In view of this Court, there is not justification to grant back wages and in light of the facts and circumstances of present case the said direction cannot be sustained. In view of such facts, the decision to pay 20% back wages is not justified. In view of this Court, there is not justification to grant back wages and in light of the facts and circumstances of present case the said direction cannot be sustained. Consequently, following order is passed: The challenge against the direction to reinstate the workman is not accepted. Learned Labour Court's Award and direction so far as direction to reinstate the claimant is concerned, is not disturbed and said part of award and direction is confirmed. Further, so far as the direction to pay 20% back wages is concerned, said direction is hereby set aside. Accordingly, the petition is partly allowed. Rule is made absolute to the aforesaid extent.