JUDGMENT : [Abdul Moin, J.] 1. Heard learned counsel for the petitioners and Shri O. P. Srivastava, learned Senior Advocate, assisted by Shri Kaushlendra Yadav, learned counsel for the respondent no. 2. 2. The instant petition has been filed challenging the judgement and award dated 16.05.2017 published on 03.04.2018, a copy of which is annexure 1 to the petition. By the said order the Central Government Industrial Tribunal cum Labour Court, Lucknow (hereinafter referred to as the learned Tribunal) in Industrial Dispute No. 25 of 2003 has held the oral termination order of the workman Shri Manjeet Singh/respondent no. 2 (hereinafter referred to as the workman) with effect from 01.09.2001 to be illegal and unjustified and he has been directed to be reinstated with effect from 01.09.2001 alongwith 50% of the backwages. 3. The case set forth by the petitioners is that a claim petition was filed before the learned Tribunal by the workman, a copy of which is annexure 2 to the petition, contending that despite he having worked continuously from 10.12.1998 to January 2000 and thereafter from February 2000 to May 2000 and from June 2000 to August 2001, his services have been dispensed with on 01.09.2001. In support of his claim the workman filed various documents including the logbooks, the working in the shape of gate passes and the documents to show running of the vehicle to prove that he had worked in the aforesaid period. 4. The claim was contested by the petitioners herein on various grounds including the ground that the workman was not an employee of the B.S.N.L. rather had been engaged through a contractor and his working was also disputed. 5. The learned Tribunal by means of the impugned award was of the view that as the workman has worked from December 1999 to November 2000 and from June 2000 to December 2000 as such he has worked for 280 days and 270 days respectively as per the logbooks, that the duties performed by the workman have been corroborated by the witnesses adduced before the learned Tribunal and that the management could not muster the courage to specifically deny the truthfulness or authenticity of the documents and consequently directed for the reinstatement of the workman with effect from 01.09.2001 alongwith 50% of the back-wages after holding the oral termination of the workman to be illegal and unjustified. 6. 6. Being aggrieved the instant petition has been filed. 7. Learned counsel for the petitioner has primarily argued on three grounds namely: (a) that the learned Tribunal in paragraph 21 of its award has indicated that the workman has worked from December 1999 to November 2000 and from June 2000 to December 2000 and the total working has been indicated as 280 days and 270 days but by no stretch of imagination can the working of the aforesaid period result in two separate workings of 280 days and 270 days respectively, (b) the learned Tribunal has directed for reinstatement of the workman without indicating the reasons which have prevailed upon the learned Tribunal for directing for reinstatement in as much as it is settled position of law that reinstatement of a workman who has worked for only a short period of time cannot be directed automatically and (c) as per Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, 1947) the condition precedent to retrenchment of workmen are that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched while the words ‘continuous service’ would mean the service upto the alleged termination of the workman, in this case 01.09.2001 meaning thereby that the continuous working upto 31.08.2001 was to be considered by the learned Tribunal but the learned Tribunal has only indicated about working from December 1999 till December 2000 and as such the continuous service upto 31.08.2001 has not even been considered by the learned Tribunal while passing the impugned award. 8. 8. Elaborating the same learned counsel for the petitioner contends that so far as ground (a) is concerned the learned Tribunal had suo motu made correction in the award vide order dated 10.09.2018 which has been brought on record as annexure CA 1 to the counter affidavit filed by the workman whereby the period of the workman now stands corrected to read as working from December 1999 to November 2000 and from June 2000 to December 2000 which would also not correctly render the recording of two separate workings of 280 days and 270 days respectively and as such it is apparent that the said number of working days have erroneously been recorded by the learned Tribunal which reflects patent non application of mind on the part of the learned Tribunal. 9. So far as ground (b) is concerned, reliance has been placed on the judgement of Hon’ble the Apex Court in the case of District Development Officer and another vs Satish Kantilal Amrelia reported in (2018) 12 SCC 298 to argue that the Apex Court has categorically laid down that short working of a workman would not result into an automatic reinstatement order rather a workman can always be compensated in terms of money in case his retrenchment or termination has been found to be illegal. 10. As regards ground (c) reliance has been placed on the judgment of Hon’ble the Apex Court in the case of Municipal Corporation, Faridabad vs Siri Niwas reported in (2004) 8 SCC 195 to hold that the Apex Court has held that the words ‘continuous service’ are contained in Section 25B of the Act 1947 and that a workman has to show his continuous working during a period of 12 calendar months preceding the date with reference to which calculation is to be actually made. 11. On the basis of the aforesaid three grounds it is contended that the learned Tribunal has patently erred in law in passing the impugned award and as such the impugned award merits to be set aside. 12. On the other hand, Shri O. P. Srivastava, learned Senior Advocate, appearing for the respondent no. 1 argues that before the learned Tribunal various documents had been placed by the workman including the logbooks, the working in the shape of gate passes and documents indicating the running of the vehicle which incidentally were never denied by the management. 12. On the other hand, Shri O. P. Srivastava, learned Senior Advocate, appearing for the respondent no. 1 argues that before the learned Tribunal various documents had been placed by the workman including the logbooks, the working in the shape of gate passes and documents indicating the running of the vehicle which incidentally were never denied by the management. He argues that this aspect of the matter has been considered by the learned Tribunal in paragraph 21 of its award wherein the learned Tribunal has categorically held that the concerned officers of the management have miserably failed to discharge their duties and could not muster courage to specifically deny the truthfulness or authenticity of the documents relied upon by the workman. 13. It is also argued that once all the documents were available before the learned Tribunal and the documents were never denied by the management, as found specifically recorded in paragraph 20 of the award of the learned Tribunal, as such, even if the learned Tribunal has committed an error in determining the number of days of working of the workman the same can not and will not resile from the fact that the workman has worked from December 1998 to August 2001 and as such the presumption is of he having rendered 240 days of service right upto his illegal termination on 01.09.2001 which would entitle the workman to being reinstated in service. 14. So far as the erroneous working having been indicated by the learned Tribunal in paragraph 21 of its award, the argument of learned Senior Advocate is that before the learned Tribunal, reliance had been placed on various documents to indicate the continuous working of the workman from December 1998 till August 2001 and as such even in case the learned Tribunal has committed an error while indicating the working days of the workman the same cannot be held against him. 15. 15. As regards of there being no automatic reinstatement on account of the short working, learned Senior Advocate has placed reliance on the judgement of the Apex Court in the case of State of Uttarakhand and others vs Raj Kumar reported in (2019) 14 SCC 353 to contend that the Apex Court while considering its earlier judgement in the case of Bharat Sanchar Nigam Limited vs Bhurumal reported in (2014) 7 SCC 177 has categorically laid down a caveat to there being no automatic reinstatement which would not be applicable where there could be cases where daily wager is found to have been illegally terminated on the ground of unfair labour practice or in violation of principles of last come first go vis a vis the juniors to him being retained in service or certain juniors having been regularised and in such circumstances, the workman can be reinstated despite his short working. 16. Placing reliance on the averments contained in the counter affidavit which has been filed in the instant petition it is contended that various juniors of the workman have been regularised in service and as such there is no error in learned Tribunal having directed for reinstatement of the workman. 17. Heard learned counsel for the parties and perused the record. 18. From the arguments as raised by learned counsel for the contesting parties and perusal of record it emerges that the respondent no. 2 workman filed an application before the learned Tribunal contending that he has been illegally terminated from service on 01.09.2001. He claimed benefit of the provisions of Act 1947. Further he filed various documents before the learned Tribunal including logbooks, his working in the shape of gate passes and various other documents to show that he was driving a vehicle on behalf of the petitioners. He claimed continuous working from 10.12.1998 till the alleged illegal termination on 01.09.2001. The petitioners contested the claim and denied that there was continuous working of the workman or for that matter the workman was an employee of the petitioners rather they contended that he had been engaged through a contractor. 19. He claimed continuous working from 10.12.1998 till the alleged illegal termination on 01.09.2001. The petitioners contested the claim and denied that there was continuous working of the workman or for that matter the workman was an employee of the petitioners rather they contended that he had been engaged through a contractor. 19. The learned Tribunal after considering the documents on record and also considering that there was no rebuttal on the part of the petitioners of the said documents, was of the view that as the workman has worked from December 1999 to December 2000 and from June 2000 to December 2000 as such his workings is 280 days and 270 days and thus would be entitled for the benefit of the provisions of the Act 1947 in as much as the working was more than 240 days in a year and thus the oral termination on 01.09.2001 cannot be said to be legal and justified and thus by means of the impugned award directed for reinstatement of the workman with effect from 01.09.2001 alongwith 50% of the back wages. 20. Challenging the award the first ground which has been taken by the petitioners is that the learned Tribunal after considering the working of the workman including the logbooks and other documents was of the view that the workman has worked from December 1999 to November 2000 and from June 2000 to December 2000 and his working has been indicated to be 280 days and 270 days i.e. more than 240 days but even if on the face of the working, as recorded by the learned Tribunal, the period from December 1999 to November 2000 and from June 2000 to December 2000 is to be counted at most it may amount to 280 days but by no stretch of imagination would the other period of working i.e. 270 days emerge and consequently there has been patent non application of mind on the part of the learned Tribunal. 21. While examining the said ground what the Court finds is that learned Tribunal has specifically recorded the working of the workman from December 1999 to November 2000 and from June 2000 to December 2000 and the total working has been indicated as 280 and 270 days. 21. While examining the said ground what the Court finds is that learned Tribunal has specifically recorded the working of the workman from December 1999 to November 2000 and from June 2000 to December 2000 and the total working has been indicated as 280 and 270 days. The award has been corrected suo-motu by the learned Tribunal vide its order dated 10.09.2018 whereby the working now reads as December 1999 to November 2000 and from June 2000 to December 2000. Even if the working, as corrected by the learned Tribunal through the order dated 10.09.2018 is seen at its face value by no stretch of imagination can it be said that the same would result in separate days of working i.e. 280 days and 270 days as has been recorded by the learned Tribunal as there is clear overlapping of the period of working / double counting from June 2000 to November 2000. Needless to mention that the said working has been recorded by the learned Tribunal on the basis of the documents as were before it. Considering there is a fallacy in recording of the said dates and clear double counting as such the first ground taken by the petitioner while challenging the impugned awarded finds favour with this Court and this Court records that there being patent non application of mind on the part of the learned Tribunal while recording the number of days of working by the workman. 22. So far as the second ground taken by the petitioners is concerned i.e. the learned Tribunal having directed for reinstatement of the workman without indicating the reasons thereto, reliance has been placed upon the judgement of Hon’ble the Apex Court in the case of Satish Kantilal Amrelia (supra). The Apex Court in the said judgement has held as under : “12. The Apex Court in the said judgement has held as under : “12. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, findings of the Labour Court, the manner in which the respondent fought this litigation on two fronts simultaneously, namely, one in Civil Court and the other in Labour Court in challenging his termination order and seeking regularization in service, which resulted in passing the two conflicting orders one in respondent's favour (Labour Court) and the other against him (Civil Court) and lastly, it being an admitted fact that the respondent was a daily wager during his short tenure, which lasted hardly two and half years approximately and coupled with the fact that 25 years has since been passed from the date of his alleged termination, we are of the considered opinion that the law laid down by this Court in the case of Bharat Sanchar Nigam Limited vs Bhurumal [ (2014) 7 SCC 177 ] would aptly apply to the facts of this case and we prefer to apply the same for disposal of these appeals. 13. It is apposite to reproduce what this Court has held in the case of Bharat Sanchar Nigam Limited (supra): "33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/ or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)17]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied." 23. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied." 23. From perusal of the aforesaid judgement it emerges that the Apex Court has categorically held that where there is a short working of the workman (in the case of Satish Kantilal Amreila the working was 2 and 1/2 years) then the law laid down by the Apex Court in the case of Bhurumal (supra) would be applicable i.e. in case of short working, order of reinstatement and the back wages would not be automatic instead workman should be given monetary compensation to meet the ends of justice. 24. Here the Court may hasten to add that the learned Senior Advocate for the respondents has placed reliance on the judgement of the Apex Court in the case of Rajkumar (supra) which was passed considering the earlier judgement of the Apex Court in the case of Bhurumal (supra) to argue that as juniors to the workman have been regularised in services as such there is no error in the learned Tribunal having directed for reinstatement of the workman. 25. The said argument of learned Senior Advocate is attractive on the face of it but what the Court finds is that learned Tribunal while directing for reinstatement of the workman has not considered that the alleged juniors of the workman have been regularised in service or retained in the service rather the learned Tribunal, upon finding the alleged termination to be illegal, has directed for automatic reinstatement of the workman. Even if considering the alleged working of the workman, as per his case before the learned Tribunal of he having worked continuously from 10.02.1998 to August 2001 the same would amount to alleged working of 2 years and 8 months and consequently the law laid down in the case of Satish Kantilal Amrelia (supra) would be squarely applicable in as much as there would not be automatic reinstatement on the short working of the workman. Thus this ground taken by the petitioners also finds favour with the Court. 26. Thus this ground taken by the petitioners also finds favour with the Court. 26. As regards the third ground taken by the petitioners for challenging the award of the learned Tribunal that there has been no continuous service of the workman prior to his alleged termination, the Court would now consider the judgment of Hon’ble the Apex Court in the case of Siri Niwas (supra) over which reliance has been placed by the learned counsel for the petitioners. In the case of Siri Niwas (supra) the Apex Court has held as under: “For the said purpose it is necessary to notice the definition of 'Continuous Service' as contained in Section 25-B of the Act. In terms of sub-Section (2) of Section 25-B that if a 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 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on 17.5.1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5.8.1994 to 16.5.1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the Award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25-B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case.” 27. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case.” 27. From a perusal of the judgement of Siri Niwas (supra) it emerges that Hon’ble the Apex Court while considering the definition of the words “continuous service” has considered Section 25B of the Act 1947 and has held that in terms of sub Section (2) of Section 25B of the Act 1947 if a workman, during a period of 12 actual months preceding the date with regard to which calculation is given, has actually worked under the employer for 240 days then he will be deemed to be in continuous service for a period of one year. 28. In this case the alleged termination of the workman took place on 01.09.2001 while his working has been considered by the learned Tribunal (as corrected on 10.09.2018) from December 1999 to December 2000 meaning thereby that the services upto 31.08.2001 have not been considered by the learned Tribunal for calculating the continuous service of the workman. Thus once the alleged continuous service of the workman right upto 31.08.2001 has not been considered by the learned Tribunal consequently it cannot be said that the petitioners have violated the provisions of the Act 1947. Thus this ground also finds favour of the Court. 29. Keeping in view the aforesaid discussion, the writ petition is allowed. The impugned award dated 16.05.2017 published on 03.04.2018, a copy of which is annexure 1 to the petition, is set aside. The matter is remitted to the learned Tribunal to pass a fresh order on merits. As the matter is pending since long as such let an order be passed within a period of six months from the date of receipt of certified copy of this order after hearing all the parties concerned.