The defendant's failure to deliver the goods constituted a breach of contract.

( 1. ) THIS writ petition came up for hearing before a Division Bench of this court on 23-1-2009 and the Division Bench vide its order dated 23-1-2009 has referred this case to Full Bench, as the Division Bench was of the opinion that the question whether once the termination order is struck down on the ground that it is in violation of Section 25-F of Industrial Dispute Act (for short "the act") then the Court has to strike on the illegality and direct reinstatement. ( 2. ) THE gist of the question, referred to the Full Bench is whether once the

termination order is struck down by holding the same to be violative of section 25-F of the Act, it is mandatory for the Court to strike on the illegality and direct reinstatement.

( 3. ) THE Apex Court in the case of M/s. Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others, AIR 1979 sc 75, has laid down in Paragraph 9 of the judgment that:-

"it is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus, the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the laws proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. "

( 4. ) THUS, in the aforesaid judgment, the Apex Court has held that once the termination order is set aside by holding it to be illegal, the natural consequences of striking down of the order of termination would be reinstatement with full back wages.

( 5. ) ANOTHER judgment referred by the Apex Court in which the Apex court has considered this aspect of matter is in the case of Mohan Lal Vs. The management of M/s. Bharat Electronics Ltd. , AIR 1981 SC 1253. The Apex court in Para 17 of the aforesaid judgment had held that:-

"if the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. "

( 6. ) SIMILAR is the view of the Apex Court in the case of Vikramaditya pandey Vs. Industrial Tribunal and another, AIR 2001 SC 672, wherein the Apex court in Para 6 of the judgment has laid down that:-

"once the termination of his service had been held to be illegal a