JUDGMENT (Prayer: Writ Petition filed under Section 226 of the Constitution of India, praying for the issuance of writ of certiorarified mandamus calling for the records of the respondents, particularly order of the second respondent dated 23.07.2011, vide Ref.No.20077/Ne-2/TNGTC(V)/T.M./2011 and quash the same, consequentially direct the respondents to provide an alternative suitable job under the respondents by considering the petitioner's representation dated 07.08.2013.) 1. The relief sought by the petitioners / legal heirs of the deceased petitioner in this writ petition is to quash the order of the second respondent dated 23.07.2011, vide Ref.No.20077/Ne-2/TNGTC(V)/T.M./2011 and direct the respondents to provide an alternative suitable job by considering the petitioner's representation dated 07.08.2013. 2. The case of the deceased petitioner is that he was selected as a driver after personal interview on 23.07.2007 sponsored through District Employment Office, Thiruvanamalai. After selection, he was sent for proper training and thereafter he joined as a driver on daily basis for salary of Rs.179/- per day as per order dated 21.08.2007. Then after completion of daily rated employment successfully under the respondents and by an order dated 21.07.2009 on a monthly salary of Rs.5,335-90-6055-100-8255 he was posted at Koyembedu Depot as driver (DR-45024) right from the date of joining, he was very sincere, honest, in his service and he discharged his duty as per the instructions of the superior without any remarks whatsoever. On 25.08.2010, he was directed to take bus trip from Chennai to Salem. After reaching Salem at two o'clock midnight, immediately he returned to Chennai and while returning from Salem to Chennai near Athur Sarvai Koot Road, there was Taurus Lorry stopped side by in the opposite direction due to tyre puncture, the petitioner immediately was forced to stopped the bus but he could not have the control over the said bus. However, he stopped the vehicle putting sudden brake and in the meantime, the bus was ridden towards Taurus Lorry on the left side and due to accident, some of the passengers including the driver have got some minor injuries and minimum damage to the bus. However, he stopped the vehicle putting sudden brake and in the meantime, the bus was ridden towards Taurus Lorry on the left side and due to accident, some of the passengers including the driver have got some minor injuries and minimum damage to the bus. However, the bus conductor namely Anbuselvam suffered major injuries and became unconscious, immediately he was taken to the hospital where he died and a case was registered by the Thalaivasal Police Station and the is same pending for enquiry, due to which the respondents have issued a suspension order for 30 days as per order dated 25.08.2010 and thereafter the deceased petitioner was deputed for the special training from 04.09.2010 at Thiruvanamalai and Villupuram for 12 days each place. While undergoing as a special trainee under the respondents, particularly under the first and second respondents, the second respondent sent a letter dated 11.11.2010 for reinstatement of his service as a driver under the respondents and he have also joined and discharged his service without any remarks for 18 working days of attendance under the respondents. In the meantime there was a domestic enquiry conducted on 14.12.2010 and therefore, he could not continue his service and he have also replied for the reasons for the said accident that took place on 25.08.2010, but either the result of domestic enquiry was supplied to the deceased petitioner nor was he permitted to resume his service after completion of the domestic enquiry under the respondents and thereby refused his employment under the respondents. Even though the deceased petitioner requested all the respondents orally and also by sending a representations, periodically from 04.09.2010 to 08.08.2013, the second respondent, however, refused an alternative employment under the respondents as per letter dated 23.07.2011 by giving so many reasons which is an self-explanatory one. 3. The learned counsel appearing for the petitioners submitted that at the time of joining his service under the respondents there was an infection in the right hand thumb finger of the deceased petitioner and thereafter the same has become serious and while the deceased petitioner was in service a small operation was performed and the thumb finger was removed subsequently. Even then the deceased petitioner was very sincere in his service and drove the vehicle without any remarks. Even then the deceased petitioner was very sincere in his service and drove the vehicle without any remarks. Then the second respondent sent a letter on 23.07.2011 to him by denying the alternative employment under the respondents and before sending such letter the second respondent had informed him to surrender the licence, for providing an alternative employment. Accordingly the deceased petitioner also surrendered his licence, but either of the respondents have considered his case as a special case for providing an alternative employment under the respondents. However, the entire family of the deceased petitioner is suffering for non-employment. Aggrieved by the aforesaid order dated 23.07.2011, the deceased petitioner has come forward with the present writ petition. 4. During the pendency of the writ petition the petitioner died on 21.12.2019. Hence, W.M.P.No.18842 of 2020 in W.P.No.24662 of 2013 was filed seeking to implead the legal representatives of the deceased petitioner and the same was ordered by this Court on 07.07.2022. 5. In support of his contentions, the learned counsel relied on the judgement of the Hon'ble Supreme Court in the case of The Workmen Of American Express International Banking Corporation vs. The Management Of American Express International Banking Corporation, reported in 1985-(LB2)-GJX-0183-SC wherein, the Hon'ble Supreme Court has held as follows: “2. The facts very briefly are that the workman joined the service of the American Express International Banking Corporation on November 4, 1974 as a typist-clerk in a temporary capacity and was employed as such, with a number of short breaks, till October 31, 1975 when his services were terminated. According to the workman excluding the breaks in service, he 'actually worked under the employer' for 275 days during the period of 12 months immediately preceding October 31, 1975 whereas according to the employer he actually worked for 220 days only. The difference between the two computations is due to the circumstance that the workman has included and counted Sundays and other paid holidays as days on which he 'actually worked under the employer', while the employer has not done so. The question for consideration is whether Sundays and other holidays for which wages are paid under the law, by contract or statute, should be treated as days on which the employee 'actually worked under the employer' for the purposes of Section 25-F read with Section 25-B of the Industrial Disputes Act. The question for consideration is whether Sundays and other holidays for which wages are paid under the law, by contract or statute, should be treated as days on which the employee 'actually worked under the employer' for the purposes of Section 25-F read with Section 25-B of the Industrial Disputes Act. Section 25-F of the Industrial Disputes Acts reads as follows:- 25-F. 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 of 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). Section 25B defines and explains what is continuous service is as follows: 25-B. 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 authorised 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 a workman has actually worked under an employer shall include the days on which- (i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the Industrial establishment; (ii) he has been on leave with full wages, earned in the previous years; (iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks. Section 16, 17 and 18 of the Delhi Shops and Establishments Act, 1954 which provide for 'close-days', 'Weekly holidays' and "Wages for the holidays' may also be extracted here and are as follows: Section 16(1) Every shop and commercial establishment shall remain closed on a close day. (2) In addition to the close day every shop and commercial establishment shall remain closed on three of the National Holidays each year as the Government may (by notification in the Official Gazette) specify. (3)(i) The Government may, by notification in the Official Gazette, specify a close day for the purposes of this section and different days may be specified for different classes of shops or commercial establishments or for different areas. (ii) Notwithstanding anything contained in Sub-section (1), the occupier of any shop or a commercial establishment may open his shop or commercial establishment on a close day, if such a day happens to coincide with a religious festival, 'or the Mahurat day', (the day of the commencement of the financial year of the establishment concerned), provided a notice to this effect has been given to the Chief Inspector at least twenty-four hours before the close day and that in lieu thereof the shop or the commercial establishment is closed on either of the two days immediately preceding or following that close day. Section 17. Every employee shall be allowed at least twenty four consecutive hours of rest (weekly holiday) in every week, which shall, in the case of shops and commercial establishments required by this Act to observe a close day, be on the close day. Section 18. No deduction shall be made from the wages of any employee on account of the close day Under Section 16 or a holiday granted Under Section 17 of this Act. If an employee is employed on a daily wage, he shall none the less be paid his daily wage for the holiday and where an employee is paid on piece rates, he shall receive the average of the wages received during the week. 5. Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief Under Section 25-F. is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. 5. Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief Under Section 25-F. is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in Section 25-B of the Industrial Disputes Act. In the present case, the provision which is of reliance is Section 25-B(2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is 'actually worked under the employer'. This expression, according to us, cannot mean those days only when me workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to Section 25-B(2) should be taken into account for the purpose of calculating the number of days on which the workmen had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression 'actually worked under the employer'. The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression 'actually worked under the employer' is capable of comprehending the days during which the workman was in employment and was paid wages-and we see no impediment to so construe the expression-there is no reason why the expression should be limited by the explanation. To give it any other meaning then what we have done would bring the object of Section 25-F very close to frustration. To give it any other meaning then what we have done would bring the object of Section 25-F very close to frustration. It is not necessary to give examples of how 25 F may be frustrated as they are too obvious to be stated.” 6. The learned counsel appearing for the respondents submitted that since the deceased employee has passed away during the pendency of the writ petition on 21.12.2019, the prayer sought by the deceased petitioner in this writ petition directing the respondents by considering his representation dated 07.08.2013 does not arise. The learned counsel further submitted that as per the direction of this Court he produced a copy of the Memo of Calculation, wherein, it is stated as follows: CALCULATION MEMO SL.No. PARTICULARS DATES 1 Date of Expired 21.12.2019 AMOUNT 2 Family Benefits fund Rs.1,50,000/- 3 Made of Computation of Gratuity [Basic + Grade pay + DA + Qualifying Service] Rs.17,656/- 4 Leave liability amount [Basic + Grade pay + DA + HRA/30 x Leave days) 2110 Rs.573/- 5 Payment of Provident Fund along with interest settled at the time of Expired Rs.56,697/- 6 Employee welfare scheme Rs.18,295/- Total Rs.2,43,221/- The amount dues as arrived above may be paid to the legal heirs of the deceased (employee). 7. Heard the rival submissions made by the learned counsel on either side and perused the materials available on record. 8. It can be seen from the records that the first petitioner was working as a driver in the respondent Corporation. While so, the respondent Corporation has issued suspension order to the first petitioner, for the accident occurred on 25.08.2010. Thereafter, he was reinstated into service by the respondents on 11.11.2010. On 14.12.2010, a domestic enquiry was conducted and after the domestic enquiry his employment was refused by the respondents. Hence he made representations before the respondents for an alternative employment however the same were refused. Aggrieved over the same he has filed this writ petition before this Court. During the pendency of this writ petition, the first petitioner has died on 21.12.2019. Therefore the legal representatives of the deceased first petitioner were impleaded as petitioners 2 to 4 in this writ petition. The deceased first petitioner was the sole bread winner of his family. After his demise, his family members are financially struggling a lot to eke out their livelihood. 9. Therefore the legal representatives of the deceased first petitioner were impleaded as petitioners 2 to 4 in this writ petition. The deceased first petitioner was the sole bread winner of his family. After his demise, his family members are financially struggling a lot to eke out their livelihood. 9. As far as this case is concerned the relief sought in this writ petition cannot be granted since the first petitioner who filed this writ petition died on 21.12.2019. However, considering the plight of the family members of deceased first petitioner this Court is of the considered view that if monetary compensation is awarded to the petitioners 2 to 4 (legal representatives of the deceased first petitioner) and an eligible person in the family of deceased first petitioner is given appointment on compassionate ground, it would meet the ends of justice. 10. Taking note of the above facts and circumstances of the case, this Court issues the following directions: (i) The respondents are directed to pay the amount which they have mentioned in the aforesaid Memo of Calculation i.e., Rs.2,43,221/- (Rupees Two Lakhs Forty Three Thousand Two Hundred and Twenty One only) as compensation to the petitioners 2 to 4 (legal representatives of the deceased first petitioner), within a period of two weeks from the date of receipt of a copy of this order. (ii) The second petitioner is directed to submit an application for compassionate ground appointment before the respondents within a period of two weeks from the date of receipt of a copy of this order. (iii) On such application being made the respondents shall consider the same, within a period of six weeks thereafter. 11. This Writ Petition is disposed of with the above directions. No costs.