The completion of 240 days of continuous service triggers the employer's obligation under Section 25(f) of the Industrial Disputes Act. The discretion to grant back wages lies with the Labour Court, and lack of pleading or proof of not being gainfully employed does not preclude the grant of back wages.

JUDGMENT

Rajbir Sehrawat, J. (Oral) - This is a petition filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of Certiorari for quashing the award dated 28.10.2014 (Annexure P-3), passed by respondent No.1.

2. The facts in brief, as pleaded in the present petition and as submitted by the counsel for the petitioner, are that the respondent No.2-workman had asserted that he had worked with the petitioner-employer from March, 2000 till March, 2005. However, on 14.03.2005 the service of the petitioner was terminated. The respondent-workman was aggrieved against the termination of his service. He raised the industrial dispute.

3. The conciliation having failed, the appropriate government had referred the dispute to the Labour Court. That reference has been answered against the petitioner-employer and in favour of the respondentworkman. It is against that award, the present petition has been filed by the petitioner-employer.

4. Carrying forward the arguments, the counsel for the petitioner-employer has submitted that, in fact, the respondent-workman had joined the service with the petitioner-employer on 18.09.2000. The respondent-workman had voluntary resigned from service of the petitioner-employer on 14.03.2005. Since, it was a voluntary resignation, therefore, the termination of service of the respondent was not covered in the definition of 'retrenchment' as defined by Section 2(oo) of the Industrial Disputes Act, 1947 (for short, the Act). However, the Labour Court has held the termination of service to be the retrenchment and has passed the award in favour of respondent-workman on a wrong presumption created by the Labour Court on the ground that the respondent-workman was not confronted with the resignation letter during his cross-examination. It is further submitted that the said document, in fact, was exhibited before the Labour Court as Ex.MW1/2. The said document bears the thumb impression and signatures of the respondent-workman. Therefore, the Labour Court should have accepted the version put up by the petitioner-employer and the reference should have been answered against the respondent-workman. The counsel for the petitioner has relied upon the judgment rendered by Hon'ble the Supreme Court in the case of M.P. State Electricity Board Versus Jarina Bee, 2003(3) S.C.T. 625, and rendered by Delhi High Court in the case of Thankur Singh Rawat and others Versus Jagjit Industries Ltd., (2006) ILLJ 755 Del, to contend that the Labour Court has wrongly granted full back wages with continuity of service; despite the fact that the petitioner had not even asserted in the claim statement that he was not gainfully employed after the date of submission of the resignation. Therefore, the award passed by the Labour Court deserves to be set aside in toto. In any case, the respondent-workman is not entitled to any back wages.

5. On the other hand, the counsel for the respondent No.2-workman has submitted that the respondent-workman had never submitted any resignation. The service of the respondent-workman was wrongly terminated by the petitioner-employer without complying with the provisions of law. Hence, the Labour Court has rightly passed the award in favour of the respondent-workman. The counsel for the respondent-workman has further submitted that so far as the resignation is concerned, the respondent-workman was not confronted with any such letter during his termination. Therefore, the said document cannot be relied upon by the petitioner-employer. Moreover, even during the examination of the witness of the petitioner-employer, the respondentworkman had disputed the authenticity of the said document, as such. It was specifically suggested to the witness of the petitioner-employer that the said document had been created by the petitioner-employer after the testimony of the respondent-workman before the Labour Court was over. Despite that, the petitioner-employer has not taken any steps to prove