JUDGMENT :

K.M. Thaker, J.

Heard Mr. Hathi, learned AGP for the petitioner and Mr.Adeshra, learned advocate for the respondent. Rule. Mr. Adeshra, learned advocate has waived service of notice of Rule on behalf of the respondent No.1. At the request of the respondent and with consent of learned AGP the petition is taken up for hearing and decision today.

2. The petitioner has brought under challenge award dated 15.10.2010 passed by the labour Court, Bhavnagar in Reference (LCB) No.246 of 2001 whereby the labour Court has directed present petitioner to reinstate the respondent herein with 20% backwages and continuity of service. The petitioner is aggrieved by the said award. Hence present petition.

3. So far as the factual background is concerned, it comes out from the record that the petitioner was engaged as class-IV employee with the respondent and he alleged that his service was terminated with effect from 1.11.1986. Aggrieved by the said action of the petitioner the respondent raised industrial dispute. The petitioner resisted the reference proceedings by filing written statement. One of the major objections against the reference proceedings which was raised by the present petitioner before the labour Court was that the dispute and consequently the reference was unsustainable and bad in law because it was raised and referred after inordinate delay of almost 15 years inasmuch as the respondent alleged that his service was terminated in November 1986 whereas the industrial dispute was raised in 2001 and was referred for adjudication vide order passed in April 2001. Another objection raised in present proceedings is that besides the order directing reinstatement the direction to pay backwages @ 20% for the entire period is unsustainable and is arbitrary inasmuch as the direction has been passed without taking in to consideration the delay caused in raising industrial dispute and the subsequent delay caused by the respondent in filing his statement of claim before the labour Court, after order of reference was made.

4. The petitioner has also assailed the award on the ground that the labour Court erred in concluding that the respondent had completed work for 240 days during his tenure. The petitioner herein had resisted the reference proceedings also on the ground that the respondent had not worked for 240 days in any year and that therefore it was not entitled to claim any relief against the petitioner. The labour Court considered the said objection and also examined the evidence available on record and passed order directing present petitioner to reinstate the respondent.

5. So far as factual background is concerned, the respondent had claimed before the labour Court that his service was illegally terminated in breach of the provisions contained under Section 25(F) (G) of the Act. He also claimed that during tenure of his service he had completed work for 240 days in each year and that therefore his service could not have been terminated without following procedure prescribed under Section 25 (F) of the Act. However before terminating his service neither any disciplinary action was taken nor any compensation was paid and the prescribed procedure under the Act was also not followed and on such ground the respondent herein challenged the action of his termination.

5.1 The petitioner resisted the reference proceeding by filing its reply. In its reply the petitioner herein claimed that the respondent was being engaged only on need basis and his engagement with the petitioner was purely temporary and on ad-hoc and need basis. It was also claimed by the petitioner before the labour Court that the respondent had not worked for 240 days and had not put 5 years service and continuous service as defined under Section 25B of the Act. It was also claimed that since the respondent was engaged on daily wage basis and on need basis, any question of applicability of Section 25F of the Act and/or for payment of compensation did not arise. The petit