JUDGMENT -DESHPANDE A.P., J.:---As the same judgment and Award passed by the Judge, 2nd Labour Court, Ahmednagar in Reference I.D.A. No. 56 of 1993 dated 27-12-1999 is challenged in both these petitions, the said petitions are being disposed of by his common judgment.

2.Writ Petition No. 717 of 2001 is filed by the State of Maharashtra through the Executive Engineer, Public Works Division, Ahmednagar (hereinafter referred to as "the employer") and the Writ Petition No. 4759 of 2001 is filed by one Sayyedlal Gani Sayyed (hereinafter referred to as "the employee"). The Labour Court by its judgment and Award partly allowed the reference made under section 10 of the Industrial Disputes Act, by the Deputy Commissioner of Labour, Nashik Division, Nashik and thereby granted reinstatement with continuity of service to the employee and rejected his claim for payment of full back wages. The employer challenges the order to the extent it grants reinstatement with continuity of service to the employee and the employee has challenged that part of the order by which the entire claim for back wages is denied and rejected. The relevant facts giving rise to the controversy and which are necessary for adjudicating the issue involved in these petitions are narrated, in brief, herein below.

3.The employee was working as a Labourer in the employment of the employer and was doing the work of maintenance and repairs of the road work. It is not in dispute that the employee has rendered the service from 1-1-1983 to February 1987 and his services came to be terminated orally without issuing written order. The employee was terminated from service at the end of February 1987. He chose to file statement of claim in the year 1993 which came to be referred to the Labour Court. The Labour Court has recorded a finding of fact, on appreciation of evidence and material on record that:

"In the preceding year i.e. 1-2-1986 to February 1987 he rendered actual service 202 days. In view of Kalelkar Settlement Maharashtra Government Gazette August 24, 1967 Annexure IV(6) deals with holidays, 'The Mazdoors should continue to enjoy weekly paid holidays and 3 paid special holidays on 26th January, 15th August and 2nd October as hithertofore plus weekly off come 48 days plus 3 days.' The Kalelkar Settlement is applicable to the second party. Therefore, total days of work comes 253 days."

The Labour Court further proceeded to record a finding that the termination of the employee was in breach of section 25-F and section 25-G of the Industrial Disputes Act. Because of the delayed filing of the statement of claim, the Labour Court has denied all back wages to the employee. On the above factual position, the learned Counsel appearing for the employer has contended that the reference itself was not competent and ought to have been rejected solely on the ground of inordinate delay. The learned Assistant Government Pleader appearing for the employer has placed reliance on a judgment of the Apex Court reported in (Nedungadi Bank Ltd. v. K.P. Madhavankutty and others)1, A.I.R. 2000 S.C. 839. On the other hand, the learned Counsel appearing for the employee has contended that, the reference cannot be rejected solely on the ground of delay and has placed reliance on two judgments of the Apex Court reported in (1) (Ajab Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and another)2, 1999(I) C.L.R. 1068 and (2) (Sapan Kumar Pandit v. U.P. State Electricity Board and others)3, A.I.R. 2001 S.C.W. 2685. In the submission of the learned Counsel for the employee, the Labour Court could have at the most rejected the claim for back wages for the period for which lodging of the statement of claim was delayed i.e. from the date of termination till the year 1993. But, in his submission, the Labour Court is not justified in refusing the entire back wages i.e. from the date of termination till passing of the judgment and Award.

4.The first point that I am dealing with, is a

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