JUDGMENT : 1. Rule returnable forthwith. Learned advocate Ms.Reena Kamani waives service of Rule on behalf of respondent. 2. The present petition is filed under Article 227 of the Constitution of India challenging the order passed by learned Industrial Tribunal, Jamnagar dated 18.08.2021 in Reference (IT) No.16 of 2017, whereby learned Tribunal has granted benefit of time-scale to the present respondent – workman. 3. Gist of the case is that the petitioner was appointed as a driver-cum-conductor with the respondent by an order dated 28.07.2010. He resumed his duty on 13.07.2010 and as per the terms of the appointment’s order, he was paid fixed salary for the first 5 years of service. He was terminated from the service on the ground of misconduct by an order dated 10.06.2011, therefore, reference came to be filed before learned Labour Court, Jamnagar being Reference (LCJ) No.19 of 2013 praying to reinstate the respondent with all consequential benefits and back wages. Learned Labour Court, after hearing to the parties, comes to the conclusion that without initiating the disciplinary action, order of termination was passed which is dehors the provisions of Industrial Disputes Act and therefore, award was passed directing the present petitioner to reinstate the respondent-workman without back wages and with continuity of service. The above order was passed on 08.01.2015 which was complied by the present petitioner and he was reinstated to the service on 27.04.2015. On reinstating the respondent, his basic pay scale was revised from 3500/- to 8800/- and he was ordered to entitle for all terminal benefits in view of award passed by learned Labour Court with regard to the continuity of the service. The second reference was filed by the workman being Reference No. I.T. No.16 of 2017 claiming the benefit of time-scale on completion of 5 years service, as per the condition of appointment order, from 31.07.2015 learned Labour Court has awarded the reference in favour of the respondent directing the present petitioner – corporation to grant the benefit of time-scale from 31.07.2015 i.e. on completion of 5 years service from his original appointment i.e. on 30.07.2010. The said award is subject matter of challenge before this Court. 4. Heard learned advocate Mr. Hamesh C. Naidu for the petitioner and learned advocate Ms. Reena Kamani for the respondent. 5. Learned advocate Mr. The said award is subject matter of challenge before this Court. 4. Heard learned advocate Mr. Hamesh C. Naidu for the petitioner and learned advocate Ms. Reena Kamani for the respondent. 5. Learned advocate Mr. Hamesh C. Naidu has submitted that there is a settlement which was arrived between the parties and as per Clause 20 of the Settlement, if the post is available on completion of 5 years, he can be granted benefit of time-scale. As per the appointment order Clause 5, he was appointed on ad-hoc basis for first 5 years on fix pay scale, the benefit of time-scale was espose from the settlement which was signed by recognized Union and therefore, the respondent-workman cannot claim the benefit of time-scale as an inherited right from the date of appointment. Learned advocate Mr. Hamesh C. Naidu submits that in view of the directions given by learned Labour Court granting the benefit of continuity of service, revise pay fixation was made and he was paid Rs.8,800/-. Learned advocate Mr. Hamesh C. Naidu submits that the continuity of services benefit which was given by learned Labour Court would be given notional effects to get the terminal benefits like pension, gratuity etc. 5.1 Learned advocate Mr. Hamesh C. Naidu further submits that as per the Circular dated 19.02.2015, the actual services can only be considered according to the benefit of time-scale. Learned advocate Mr. Hamesh C. Naidu has relied on the decision rendered by this Court in the case of Andhra Pradesh State Road Transport Corporation (APSRTC) V/s. Abdul Kareem and submitted that in absence of relief of i.e. consequential benefits, the workman would be entitled for the increments notionally during the period, when he was on duty or during the period, when he was out of service. Learned advocate Mr. Hamesh C. Naidu has further relied on the decision rendered by this Court in the case of Divisional Controller V/s. Jumabhai Umarbhai Gunga and submitted that there is two different reliefs which can be awarded by learned Labour Court while reinstating i.e. one is with continuity of service and the other is with consequential benefits. In absence of relief of consequential benefits, no monetary benefits can be awarded to the respondent, during the period, when he was out of service and therefore, also learned Labour Court has committed error in awarding the reference in favour of the respondent. In absence of relief of consequential benefits, no monetary benefits can be awarded to the respondent, during the period, when he was out of service and therefore, also learned Labour Court has committed error in awarding the reference in favour of the respondent. 5.2 Learned advocate Mr. Hamesh C. Naidu has further relied on the decision rendered by the High Court of Karnataka in the case of Bangalore Metropolitan Transport Corporation rep. By its Chief Law Officer V/s. Shivabasavegowds rep. By General Secy., KSRTC % BMTC United Employees Union reported in 2013 III CLR 432 and submitted that the meaning of granting the continuity of service is for the purpose of pensionary/retirement benefit and not for the other benefits like increments, promotions, special allowances etc. Learned advocate Mr. Hamesh C. Naidu submits that without considering above, learned Labour Court has awarded the reference in favour of the respondent and therefore, petition is required to be allowed and impugned order is required to be set aside. 6. This petition was vehemently opposed by learned advocate Ms. Reena Kamani who submitted that as per the appointment order, on completion of 5 years of service, he would be entitled to get the benefit of time-scale. Learned advocate Ms. Reena Kamani submits that the settlement which is tried to be put before this Court, was not placed before learned Labour Court and therefore, the same plea cannot be considered at this stage. 6.1 Learned advocate Ms. Reena Kamani further submits that the circular which is relied by learned advocate for the petitioner to show that actual service is to be counted for granting the benefits, cannot override the effect of award which was passed by the Competent Court. Learned advocate Ms. Reena Kamani further submits that the case which was relied by learned advocate for the petitioner was with regard to the unauthorized absent and in that background, the learned Courts held that monetary benefits cannot be granted in case of unauthorized absent. Learned advocate Ms. Reena Kamani submits that the simple meaning of continuity of service that service would be counted as if he was never terminated. Learned advocate Ms. Reena Kamani submits that after appreciation of the evidence in detailed, learned Labour Court has passed award in favour of the present petitioner, therefore, the same does not require any interference, and petition is required to be dismissed. Learned advocate Ms. Reena Kamani submits that after appreciation of the evidence in detailed, learned Labour Court has passed award in favour of the present petitioner, therefore, the same does not require any interference, and petition is required to be dismissed. 6.2 Learned advocate has relied on the decision rendered by the Hon’ble Apex Court in the case of Gurpreet Singh V/s. State of Punjab and others reported in (2002) 9 SCC 492 wherein it is held that once the termination was held illegal and continuity of service cannot be denied as if would deny, it would amount to fresh appointment, therefore, also the impugned order deserves to be upheld. 6.3 Learned advocate Ms. Reena Kamani has also relied on the decision rendered by the Hon’ble Apex Court in the case of K. K. Ravindran V/s. Branch Manager, New India Assurance Company Limited reported in (2015) 7 SCC 222 and submitted that without initiating the inquiry, when the order of termination was passed which was held illegal by the Court of law along with the benefit of reinstatement, if the continuity of service was ordered then respondent would entitle for benefit of time-scale on completion of 5 years. 6.4 Learned advocate Ms. Reena Kamani has further relied on the decision rendered by the Hon’ble Apex Court in the case of Deepali Gundu Surwase V/s. Mahavidyalaya (D.ED.) and others reported in (2013) 10 SCC 324 and submitted that restoring the employee to its original position which was held before dismissal, removal or termination of services that employees will be put in the same position in which he would have been put before illegal action taken by the employer. Learned advocate Ms. Reena Kamani submits that denial of time-scale benefit would amount to indirectily punishing the employees concerned and rewarding the employer by relieving him of the obligation to pay the emoluments. Learned advocate Ms. Reena Kamani submits that similarly situated persons were granted the benefit of time-scale, however, respondent was denied only on the ground that respondent has not completed actual service of 5 years. 6.5 Considering the same, learned advocate Ms. Reena Kamani has submitted that the present petition is deserved to be dismissed and the petitioner is required to be directed to grant the benefit of time-scale. 7. 6.5 Considering the same, learned advocate Ms. Reena Kamani has submitted that the present petition is deserved to be dismissed and the petitioner is required to be directed to grant the benefit of time-scale. 7. Having considered the submissions made by learned advocates for respective parties and the reasons assigned by learned Labour Court, it appears that present petitioner has tried to divert the case by putting the submission that as per the terms of settlement which was arrived between the parties only on completion of actual 5 years of service and in the event of availability of post, the benefit of time-scale can be given, it appears that this contention was never raised before learned Labour Court. Therefore, there was no opportunity to learned Labour Court to examine the aforesaid aspect and to assign the reasons. This Court would like to refer to the decision rendered by the Hon’ble Apex Court in the case of Gujarat Mineral Development Corporation V/s. Presiding Officer, Labour Court and others reported in 1986 (1) GLR 410 wherein, this Court has held that new contention cannot be permitted to be taken for the first time in the proceedings before this Court as the same would obviously amount to grave injustice to the workman who will be taken by utter surprise. The settlement which was tried to be placed before this Court, cannot be considered to be a legal point and therefore, at this stage, this Court would not go in details of the settlement as the same was not placed before learned Labour Court. 7.1 That other contention raised by learned advocate Mr. Naidu for the petitioner regarding the effect of the circular dated 19.02.2015 is concerned. On perusing the circular, more particularly, Clause No.5, it reveals that on completion of the 5 years from the date of being reinstatement in the event of termination, the service would consider for the timescale benefit from the date of reinstatement. To grant the benefit of time scale pay actual period of service is to be taken into consideration, to decide that whether this circular would be applicable or not, The merit of the present case would also require to be discussed. To grant the benefit of time scale pay actual period of service is to be taken into consideration, to decide that whether this circular would be applicable or not, The merit of the present case would also require to be discussed. Certain undisputed facts which emerges from the records is as under: (a) the letter of appointment dated 28.07.2010 specifying certain conditions at the time of appointment and to get the benefit of time scale relevant conditions are reproduced hereinbelow: “(1) You will be paid fix pay of Rs.3,500/- (Three thousands and five hundred) per month in the cadre of Driver cum Conductor. (2) You will be paid Fix Pay for 5 (five) years. Thereafter, you shall be considered for regularization as per rules, subject to availability of permanent post. (3) Weekly off will be granted to you as per rules. Moreover, if necessity of granting overtime arises as per prevalent rules, the same will be paid in accordance with the fix pay of Rs.3,500/- as per the present practice. (4) During these five years, the initial 2 (two) years will be considered as probation period as mentioned in the advertisement and during this period, if the work is not found satisfactory; or any misconduct is committed; or prevalent rules and regulations of the corporation are violated; or if you cannot satisfy your superior officers with your work; or if are found inefficient in you work, such instances will be viewed seriously and you will be terminated from service without giving any notice, during the probation or after the expiry of the probation period.” As per this, on completion of 5 years and on availability of the post, his case would consider circular appointment and as per the Condition No.4 for the period of two years, he would be considered as a probationer. (b) Admittedly, the service of the present respondent came to be terminated on 10.06.2011 within period of two year on the ground of misconduct and he challenges the said order by way of filing of reference being reference (LCJ) No.19 of 2013 i.e. after the period of two years from the date of termination. (c) Learned labour Court directed the present petitioner to reinstate the respondent – workman with continuity of service but without back wages on 08.01.2015. (c) Learned labour Court directed the present petitioner to reinstate the respondent – workman with continuity of service but without back wages on 08.01.2015. (d) Respondent was reinstated on 02.05.2015 by the present petitioner in compliance of the order passed by learned Labour Court on 02.05.2015 and considering the direction of continuity of services, his pay scale was revised from Rs.3,300/- to Rs.8,800/-. As per the Cause No.4, it was clarified that without giving any monetary benefits, he was reinstated and his service would be considered as a continuity, as per the award passed by learned Labour Court. (e) The reinstatement order passed by petitioner remains unchallenged by workman wherein certain conditions were there and he started to work with the present petitioner thereafter again in the year 2017, reference was filed being reference I.T. No. 16 of 2017 seeking the benefit of time-scale on completion of 5 years from the date of his original appointment. (f) Learned Labour Court awarded the reference in favour of the present respondent on 18.08.2021 directing the present petitioner to grant the benefit of time-scale from 31.07.2015 i.e. date of completion of 5 years of service from the date of initial appointment i.e. 30.07.2010. 8. The moot question arises for consideration before this Court is that whether continuity of the service means that respondent have completed 5 years from his original date of appointment and entitled of time scale benefit. 9. At this stage, this Court would like to refer the decision rendered by the Delhi High Court in the case of Mahabir Prasad V/s. Delhi Transport Corporation reported in 2014 LawSuit(Del) 2614 wherein it is held para Nos.16 to 21 as under. “16. The award of the Ld. Labour Court contained a direction for reinstatement with 'continuity of service'. The Supreme Court sought to clarify the law in interpreting this direction in the awards of the lower courts/tribunals in APSRTC & Anr. v. S. Narsagoud (2003) 2 SCC 212 where it was observed that; "there exists a distinction between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with benefit of continuity in service." 17. The law elucidated in Narsagoud (supra) was further discussed in APSRTC v. Abdul Kareem (2005) 6 SCC 36 wherein the Supreme Court underlined the importance of specific directions in the relief granted and held that; ".....the Labour Court specifically directed that the reinstatement would be without back wages. There is no specific direction that the employee would be entitled to all the consequential benefits. Therefore, in the absence of specific direction in that regard, merely because an employee has been directed to be reinstated without back wages, he could claim a benefit of increments notionally earned during the period when he was not on duty or during the period when he was out of service. It would be incongruous to suggest that an employee, having been held guilty and remained absent from duty for a long time, continues to earn increments though there is no payment of wages for the period of absence." 18. The Bombay High Court in Maharashtra SRTC v. Leeladhar and Anr. (2009) 121 FLR 1155 appears to have followed the above reasoning. The Kerala High Court in Board of Directors of the Venjaramood Co-operative Rubber Marketing Society Ltd. and Anr.v. M. Nazimuddin and Ors. ILR 2007 (3) Kerala 748 applied a similar reasoning and held as follows: "8. The Joint Registrar in Exhibit P-4 order has stated that the period of dismissal will he treated as period of service meaning thereby there will be continuity of service. But the order is silent as to consequential benefits...Exhibit P-4 order, so far as the case is concerned, is silent with regard to the payment of "consequential benefits" such as monetary benefits, promotion etc. In the absence of such specific stipulation in Exhibit P-4, we have to take it that "consequential benefit" has been denied but only "continuity of service" is granted." 19. In the absence of such specific stipulation in Exhibit P-4, we have to take it that "consequential benefit" has been denied but only "continuity of service" is granted." 19. J.K. Synthetics, Narsagoud and Abdul Kareem (supra) suggest that any award reinstating the employee with the term of "continuity of service" cannot be interpreted to mean that the court granted consequential reliefs or benefits and a specific direction by the court to grant such benefits upon reinstatement, is required. At the same time, the decision in Deepali Gundu Surwase (supra) discusses and assimilates a large number of previous decisions, including those rendered by three judge benches which emphasized the essential purpose of reinstating with backwages and other benefits, i.e. its restitutionary intent. An employee denied benefit of work and pay, is as much entitled to restitution in law, as a businessman whose contract is terminated capriciously. In the latter case, the courts award damages, a head which often includes damages for loss of profit, and a further interest. Similarly, a tax payer who is made to pay amounts which cannot be legitimately recovered is entitled to interest for the duration that the amounts are retained by the tax authorities. A plaintiff who sues for illegal termination of contract of service (i.e. a managerial cadre official in a private enterprise) on proof of illegal termination can succeed in getting damages. In the case of employment contract of employment, where the employee is terminated for no justifiable cause or wrongfully, surely restitution has to likewise, be complete. This Court notices that the ruling in Deepali Gundu Surwase (supra) relied on at least three larger, three judge bench rulings (Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Pvt Ltd AIR 1979 SC 75 ; Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court AIR 1981 SC 422 and General Manager, Haryana Roadways v. Rudhan Singh (2005) 5 SCC591) and held that J.K. Synthetics (supra) W.P.(C) 2216/2014 Page 11 did not correctly state the principle; J.K. Synthetics, in turn had considered Narasagoud and Abdul Kareem. The relevant discussion in Deepali Gundu Surwase (supra) is as follows: "33. The propositions which can be culled out from the aforementioned judgments are: i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. The relevant discussion in Deepali Gundu Surwase (supra) is as follows: "33. The propositions which can be culled out from the aforementioned judgments are: i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award fullback wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties W.P.(C) 2216/2014 Page 13 are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra). vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." 20. The above discussion reveals that there appeared to be no standard pattern of directing how a reinstated employee is to be given the benefit after reinstatement. In Deepali Gundu Surwase(supra), for the first time, the restitutionary principle underlying reinstatement and other benefits was spelt out and a semblance of uniformity was attempted. If that is to be kept in mind, what is apparent in this case is that the petitioner had to battle for over a decade and a half to secure justice. The Labour Court held the enquiry against him illegal; went into the material and found that the charge of misconduct was baseless. It consequently directed reinstatement without backwages. Whilst the denial of backwages is not in question, the Award directed continuity of service. If DTC's contention were to be accepted, the petitioner would stand doubly penalized for the delay in securing justice, plainly for no fault of his. The denial of 15 years' salary would result in his denial of pension, or at least a vastly diminished pension, gratuity and other terminal benefits. If these benefits are denied, the direction to grant continuity of service would be a hollow relief. Furthermore, to restore him in the pay scale at the stage of his termination would be to freeze him in a pay scale that is no longer existent, or at least unrecognizable.It is pertinent that a withholding of 2 increments for two years, with cumulative effect has been held to be a major penalty (imposable only after an enquiry) since the increments "would not be counted in his timescale of pay" in perpetuity. In other words, the clock would be set back in terms of his earning a higher scale of pay, by two scales. See Kulwant Singh v. State of Punjab, 1991 Supp (1) SCC 504. Keeping this in mind, if the petitioner were to be restored in the pay scale at the stage of his termination, it would amount to withholding several increments, and thus be equivalent to imposing a compounded major penalty. 21. Consequently, it is held that the direction to grant continuity meant that the petitioner had to be given notional increments for the duration he was out of employment, in the grade and the equivalent grade which replaced it later, till he reached the end of the pay scale. Since there is no direction to give consequential benefits, the petitioner cannot claim promotion as a matter of right; it would have to be in accordance with the rules. ACP benefits however, should be given. The notional pay fixation would also mean that he would be entitled to reckon the period between his removal and reinstatement as having been in employment for pension, gratuity, and contributions to provident fund etc. This Court directs the DTC to issue an order extending these benefits to the petitioner for the 15 year period between his dismissal in 1995 and his eventual reinstatement in 2011, within eight weeks from today. The writ petition is allowed in these terms; there shall be no order as to costs.” 10. The other decision which was relied by learned advocate Mr. Naidu for the petitioner in the case of M/s. Garrison Engineer (central), Delhi Cantt V/s. M. J. Prasad & Ors. reported in 2022 Live Law (Del) 217 wherein all the judgments relied by both the parties were considered, thereafter it was held as under: “21. Most recently, the decisions in J.K. Synthetics (supra) and Deepali Gundu (supra) were considered in two Division Bench decisions of this Court in Mahabir Prasad (supra), and Jagdish Chander (supra). In Mahabir Prasad (supra), reinstatement was directed by the Labour Commissioner, with continuity of service but without back wages. Thereafter, DTC reinstated the workman without any back wages and without any benefits on notional pay fixation, promotion, ACP, increments and withheld pension and terminal benefits also. Challenging this, the Workman claimed that since "continuity of service" was directed, he would be entitled to pension and other terminal benefits. Thereafter, DTC reinstated the workman without any back wages and without any benefits on notional pay fixation, promotion, ACP, increments and withheld pension and terminal benefits also. Challenging this, the Workman claimed that since "continuity of service" was directed, he would be entitled to pension and other terminal benefits. In this case, the Division Bench of this Court observes as under: "20. The above discussion reveals that there appeared to be no standard pattern of directing how a reinstated employee is to be given the benefit after reinstatement. In Deepali Gundu Surwase(supra), for the first time, the restitutionary principle underlying reinstatement and other benefits was spelt out and a semblance of uniformity was attempted. If that is to be kept in mind, what is apparent in this case is that the petitioner had to battle for over a decade and a half to secure justice. The Labour Court held that that the enquiry against him illegal; went into the material an found that the charge of misconduct was baseless. It consequently directed reinstatement without back wages. Whilst the denial of back wages is not in question, the Award directed continuity of service. If DTC's contention were to be accepted, the petitioner would stand doubly penalized for the delay in securing justice, plainly for no fault of his. The denial of 15 years' salary would result in his denial of pension, or at least a vastly diminished pension, gratuity and other terminal benefits. If these benefits are denied, the direction to grant continuity of service would be a hollow relief. Furthermore, to restore him in the pay scale at the stage of his termination would be to freeze him in a pay scale that is no longer existent, or at least unrecognizable. It is pertinent that a withholding of 2 increments for two years, with cumulative effect has been held to be a major penalty (imposable only after an enquiry) since the increments "would not be counted in his time-scale of pay" in perpetuity. In other words, the clock would be set back in terms of his earning a higher scale of pay, by two scales. See Kulwant Singh v. State of Punjab MANU/SC/0658/1991 : 1991 Supp (1) SCC 504. In other words, the clock would be set back in terms of his earning a higher scale of pay, by two scales. See Kulwant Singh v. State of Punjab MANU/SC/0658/1991 : 1991 Supp (1) SCC 504. Keeping this in mind, if the petitioner were to be restored in the pay scale at the stage of his termination, it would amount to withholding several increments, and thus be equivalent to imposing a compounded major penalty. 21. Consequently, it is held that the direction to grant continuity meant that the petitioner had to be given notional increments for the duration he was out of employment, in the grade and the equivalent grade which replaced it later, till he reached the end of the pay scale. Since there is no direction to give consequential benefits, the petitioner cannot claim promotion as a matter of right; it would have to be in accordance with the rules. ACP benefits however, should be given. The notional pay fixation would also mean that he would be entitled to reckon the period between his removal and reinstatement as having been in employment for pension, gratuity, and contributions to provident fund etc. This Court directs the DTC to issue an order extending these benefits to the petitioner for the 15 year period between his dismissal in 1995 and his eventual reinstatement in 2011, within eight weeks from today. The writ petition is allowed in these terms; there shall be no order as to costs." 22. Similarly, in Jagdish Chander (supra), reinstatement was directed with full back wages. Upon challenge, the High Court in an LPA had modified this order to deny back wages, but DTC had agreed to not challenge reinstatement, to grant the benefit of continuity of service and to compute pension accordingly. Thereafter, the Workman was not given ACP benefits and various other benefits. Since the Division Bench in LPA had recorded that it was upholding the award basis DTC's assurance that continuity of service would be given, the Court directed the Workman's pay scale to be fixed by notionally granting him increments and benefits under the ACP scheme. The relevant portion of this decision reads as under: "28. Therefore, what becomes clear from a perusal of the judgment in Mahabir Prasad (supra) is that reinstatement with continuity of service is the norm. The relevant portion of this decision reads as under: "28. Therefore, what becomes clear from a perusal of the judgment in Mahabir Prasad (supra) is that reinstatement with continuity of service is the norm. While in Mahabir Prasad (supra) the Labour Court had ordered reinstatement with continuity but without back wages, in the present case the Labour Court ordered both reinstatement and full back wages. The DB of this Court modified the Award only to the extent of denying the Petitioner full back wages but acknowledged that the intent of the Award was to grant the Petitioner continuity of service. This is plain from the operative portion of the order of the DB partly allowing DTC's LPA. It explained the rationale for denial of full back wages as follows: "In our considered opinion, when the corporation has agreed not to challenge the order of reinstatement, extend the benefit of continuity of service and compute the pension on the said factual backdrop… 29. The CAT, in the impugned order, erred in denying the Petitioner the benefit of continuity in service upon reinstatement and in applying the law as explained in Mahabir Prasad (supra) that while this would not entitle him to promotions, the Petitioner would upon reinstatement be entitled to the increments on the pay scale he was drawing at the time of termination of his services and further that for the purpose of gratuity and pension he would be treated as having been in service throughout. 30. The CAT erred in referring to the decision of the Supreme Court in S. Narsagoud (supra) which has been squarely dealt with and rejected by a subsequent decision of the Supreme Court in Deepali Gundu Surwase (supra). In fact, the CAT failed to take notice of the aforesaid judgments in spite of the Petitioner raising this specific point in his RA No. 39/2016. 31. For the aforementioned reasons, the impugned orders of the CAT are hereby set aside. The Respondent/DTC is directed to: i. Fix the Petitioner's pay scale by notionally granting him the increments and benefits under the ACP Scheme to which he now stands entitled." 23. As for other decisions concerning discretion in grant of reliefs when reinstatement is granted, it is important to refer to the Supreme Court decision in Rajasthan State Road Transport Corporation v. Phool Chand (Dead) through L.Rs., 2018 LLR 1169 . As for other decisions concerning discretion in grant of reliefs when reinstatement is granted, it is important to refer to the Supreme Court decision in Rajasthan State Road Transport Corporation v. Phool Chand (Dead) through L.Rs., 2018 LLR 1169 . The Supreme Court again held that grant of back wages would not be a natural consequence upon a direction of the reinstatement, and the same is based on judicial discretion. The observation of the Supreme Court is as under: "12. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board v. Jarina Bee (Smt.) MANU/SC/0462/2003 : (2003) 6 SCC 141 , G.M. Haryana Roadways v. Rudhan Singh MANU/SC/0408/2005 : (2005) 5 SCC 591 , U.P. State Brassware Corporation v. Uday Narain Pandey MANU/SC/2321/2005 : (2006) 1 SCC 479 , J.K. Synthetics Ltd. v. K.P. Agrawal and Anr. MANU/SC/0741/2007 : (2007) 2 SCC 433 , Metropolitan Transport Corporation v. V. Venkatesan MANU/SC/1414/2009 : (2009) 9 SCC 601 , Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. MANU/SC/1213/2009 : (2009) 15 SCC 327 ) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors. MANU/SC/0942/2013 : (2013) 10 SCC. 13. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent. 14. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages." 24. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages." 24. In Om Pal Singh v. Disciplinary Authority and Ors., (2020) 3 SCC 103 , a two Judge Bench of the Supreme Court again considered J.K. Synthetics (supra) and applied the same holding that consequential benefits and continuity of service as also grant of back wages is not a natural consequence of reinstatement. Thus, in Om Pal Singh (supra), J.K. Synthetics (supra) was again followed and applied. Notably, this was a case where the workman's punishment had been reduced from dismissal to reduction in time scale of pay. The Court also cited the portion of J.K. Synthetics (supra) that wherever reinstatement is granted, judicial mind should be applied to the facts to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. 25. Recently in Abhishek Kumar Singh v. G. Pattanaik, (2021) 7 SCC 613 , the facts of the case were such that the recruitment process of the U.P. Jal Nigam had been annulled, thereby terminating the services of the petitioners therein. The High Court had set aside the said order and had directed the management to provide an opportunity of hearing to the petitioners. Meanwhile, the High Court also directed the management to permit the petitioners to "work and be paid monthly regular salary". In this background, the Supreme Court, in an SLP filed by the management, observed that the judgment in Deepali Gundu (supra) was a case of wrongful termination where relief of back wages was granted. In J.K. Synthetic (supra), it was held that award of back wages was not an automatic or natural consequence of reinstatement. However, both these decisions were not considered applicable in the facts of Abhishek Kumar (supra) and ultimately not applied. 26. An analysis of the above decisions would show that J.K. Synthetics (supra) was dealing with a case where reinstatement was directed after holding that the punishment of dismissal is to be replaced with a lesser punishment. Even in such a case, the Supreme Court directed that grant of back wages and continuity of service is not automatic. In Deepali Gundu (supra), the Supreme Court was dealing with a case where the termination was quashed and full back wages was directed to be paid. Even in such a case, the Supreme Court directed that grant of back wages and continuity of service is not automatic. In Deepali Gundu (supra), the Supreme Court was dealing with a case where the termination was quashed and full back wages was directed to be paid. The manner in which Deepali Gundu (supra) has been applied by the Division Bench of this Court in Mahabir Prasad (supra) would show that it is only when there is a direction to give 'continuity of service' ACP benefits should be given. In fact, in Mahabir Prasad (supra), the Division Bench even notes that without a specific direction for 'consequential benefits', promotions cannot be claimed as a right, even though continuity of service was directed. Therefore, it recognizes a clear difference between continuity of service and consequential benefits, neither of which have been awarded in the present case. In Jagdish Chander (supra), the facts were different, as DTC had assured the Court that it would provide 'continuity of service' and then resiled. In Om Prakash (supra), a ld. Single Judge was considering a case where reinstatement was directed with immediate effect and whether in such a case regularisation ought to be given to the workman. In such a case the Court held that 'continuity of service' ought to be read into the relief of reinstatement and directed regularisation in accordance with the policy of the Management. Without going into the question as to whether J.K. Synthetics (supra) was overruled in Deepali Gundu (supra) or not, as the said issue may not arise in the present petition, it is relevant to note that in the present case, the operative portion of the order dated 17th April, 2012, passed by the Single Judge in the writ petition is as under: "xxx xxx xxx 10. The management had also contested the claim of the workman on the ground that his initial appointment was illegal and therefore, it was justified in invoking Sub-Rule 1 of Rule 5 of CCS (TS) Rules, 1965. As far as that part of the defence of the respondent is concerned, it has failed to establish the same by not adducing any evidence to show that the initial appointment of the petitioner- workman was illegal. 11. I, therefore, allow this writ petition. The impugned Award of CGIT is set aside. As far as that part of the defence of the respondent is concerned, it has failed to establish the same by not adducing any evidence to show that the initial appointment of the petitioner- workman was illegal. 11. I, therefore, allow this writ petition. The impugned Award of CGIT is set aside. The termination of services of petitioner-workman is held to be in breach of mandatory provisions of Section 25-F of Industrial Disputes Act. Now, it is well settled by the decisions of Hon'ble Supreme Court that once the termination of services of an industrial worker is found to be in violation of the mandatory provisions of Section 25-F of the Industrial Disputes Act, the termination is void ab initio. Reference in this regard can be made to one decision of the Supreme Court in the case of "Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1, Panipat", (2010) 5 SCC 497 . Resultantly, the petitioner-workman is ordered to be reinstated in service. As far as the back wages are concerned, considering all the facts and circumstances and particularly the fact that he had worked as a regular employee only for a short period, the respondent no. 1-management shall pay him only 50% of his back wages. The petition stands disposed of accordingly." 27. Recently, a ld. single judge of this Court in Thomson Reuters India Private Limited v. Ld. Presiding Officer, Labour Court [W.P. (C) 3246/2020, decided on 30th September, 2021], has also considered all the above decisions and emphasized that the nature of employment and length of service would be crucial factors in deciding the relief of reinstatement and back wages, and equities would have to be balanced. 28. In the present case, a perusal of the Statement of Claim filed by the Workman before the CGIT in I.D. No.87/87 would show that the Workman had sought the following reliefs: "It is, therefore, prayed that an award be passed in favour of the workman holding thereby that the termination of service of Shri M.J. Prashad w.e.f. 15.11.1985 was wholly illegal and Unjustified he is entitled to reinstatement in service with full backwages and continuity in proper pay-scale as a regular employee. It is further prayed that the suitable cost be also awarded as provided in section 11 (7) of the Industrial Deputes Act, 1947." 11. It is further prayed that the suitable cost be also awarded as provided in section 11 (7) of the Industrial Deputes Act, 1947." 11. Considering the above law, this Court is of the view that the continuity of service includes the period of time when the employee has worked including the paid or unpaid leave that count as a service. The meaning of consequential benefitsis that by granting the benefits, the respondent would entitle for the monetary benefits that may be awarded by employee in certain circumstances such as back wages, reinstatement, increments and seniority and other terminal benefits. By awarding relief of consequential benefits, intention of the Court would be that the employee would be treated as if they were never terminated and they are still in the service, learned Labour Court has held that the respondent would entitle for the benefit of time-scale on completion of period of 5 years from the date of his appointment without considering the fact that he did not serve for the period of 10.06.2011 to 02.05.2015. The absence of any direction to grant the consequential benefits by learned Labour Court while awarding the reference in favour of the present respondent, this Court is of the opinion that learned Labour Court has committed error by giving above direction and therefore, the same is required to be set aside. 12. There is a distinction between the order of reinstatement accompanied by simple direction for continuity of service and direction where reinstatement is accompanied with a specific relief that employee shall be entitled to all consequential benefits which necessarily flows from reinstatement or accompanied by specific direction that an employee shall be entitled to the benefit of increments during the period of absence. In absence of relief of consequential benefits learned labour court has erred in interpreting the award of continuity of service by granting the benefit of time scale from date of his initial appointment discarding the period from 10.06.2011 to 02.05.2015. It is true that continuity of service is a normal rule when the court has reintsated. In absence of relief of consequential benefits learned labour court has erred in interpreting the award of continuity of service by granting the benefit of time scale from date of his initial appointment discarding the period from 10.06.2011 to 02.05.2015. It is true that continuity of service is a normal rule when the court has reintsated. However, in absence of the relief of consequential benefits counting the service from his date of appointment for the time scale of pay in the opinion of this Court misinterpretation of the award, therefore, the respondent would be entitled for the benefit of time scale in accordance with the rules wherein, it is provided that on completion of actual service he would be entitled for the benefit of time pay scale subject to fulfilling of other conditions. In view of the above, impugned award passed by the learned labour court deserves to be set aside. 13. Resultantly, this petition is allowed by quashing and setting aside the impugned order dated 18.08.2021 passed by learned Industrial Tribunal, Jamnagar in Reference (IT) No.16 of 2017. It is clarified that petitioner would be entitled to the benefit on time scale, subject to fulfilling other conditions on completion of actual period of service of 5 years. 14. Rule is made absolute.