SUDARSHAN RAJPOOTversusU.P. STATE ROAD TRANSPORT CORPORATION

                    [2014] 13 S.C.R. 957


                  SUDARSHAN RAJPOOT                                A
                               v.
     U.P. STATE ROAD TRANSPORT CORPORATION
          · (Civil Appeal Nos.10353-10354 of 2014)
                      NOVEMBER 18, 2014                            B
    . [V. GOPALA GOWDAAND C. NAGAPPAN, JJ.]
     Labour Laws:
      Uttar Pradesh Industrial Disputes Act, 1947 - ss. 2(s),
6-N, 6-R and 6-Q -Appellant-workman employed as driver
with the respondent-Corporation - While on duty, due to            C
technical fault in the vehicle, the vehicle met with an accident
- Workman also sustained grievous injuries - Name of the
workman struck-off from the rolls of post of driver and removed
from the services - Industrial dispute raised - Labour court
held that termination of services of the workman was contrary      D
to law and directed his reinstatement without break in service
with all consequential reliefs-High Court set aside the award
of reinstatement and consequential reliefs and held that the
workmen was only entitled to consolidated compensation
calculated from the date of his engagement till the date of        E
his disengagement - On appeal, held: The workman was
engaged on permanent basis- In view of Schedule V, entry
 10 of central Industrial Disputes Act, the Corporation is
prohibited from engaging the workman as a casual or
temporary workman on permanent basis - The workman had             F
rendered service more than 240 days in a calendar year until
his termination- Thus his engagement on contractual basis
is statutorily prohibited - The same amounts to unfair labour
practice u/s. 2(ra) and is punishable u/s. 25U of the central
Act - The termination order amounts to retrenchment- Non-          G
compliance of the statutory provisions u/ss. 6-N, 6-R and 6-
Q has rendered the termination order void ab inito in law -
The labour court was justified in passing award of
reinstatement with consequential benefits- The High Court
                                                                   H
                             957
958      SUPREME COURT REPORTS                [2014] 13 S.C.R.


A erroneously set aside the award by interfering with findings
  of fact in exercise of its supervisory jurisdiction u/Arts 226
  and 227 of the Constitution - The injuries sustained by the
  workman are employment injuries suffered during the course
  of employment - Therefore, the Corporation is ·statutorily
B obliged u/s. 47 of Persons with Disabilities Act, 1995 to
  provide alternate equivalent job to the workman- Industrial
  Disputes Act, 1947 - ss. 2(ra), 25T, and 25U, Schedule \/,
  Entry No. 10 - The Persons with Disabilities (Equal
  Opportunities, Protection of Rights, and Full Participation)
c Act, 1995 - s. 47 - Constitution of India, 1950 -Arts. 226
  and 227.
        Allowing the appeals, the Court
        HELD: 1.1 The respondent-Corporation has neither
  produced documentary evidence nor showed before the
D Labour Court that the appellant-workman was appointed
  on contract basis. The fact that he deposited Rs.20001-
  towa rds security amount with the respondent-
  Corporation indicates that he was working as a Driver
  on a permanent basis. In view of the Schedule V, entry
E No.10 of the Industrial Disputes Act, 1947 the respondent-
  Corporation is prohibited from engaging the appellant-
  workman as a badli, casual or temporary workman to
  work on permanent basis. The fact that he had been
  continuously working for more than 3 years and he had
F rendered more than 240 days of service as the driver in
  a calendar year until his termination order and yet he
  being engaged on a contractual basis in the respondent-
  Corporation is statutorily prohibited. The same amounts
  to an unfair labour practice as defined uls. 2(ra) rlw. s.
G 25T, which action of the Corporation is punishable uls.
  25U of the Industrial Disputes Act. At the time of
  termination his juniors were working on permanent
  basis. Therefore, the same is another added fact to
  accept the plea of the appellant-workman by the Labour
H Court that he was appointed as a permanent workman

                                                                   f-
      SUDARSHAN RAJPOOT v. U.P. STATE ROAD                   959
           TRANSPORT CORPORATION

in the respondent-Corporation as a driver. [Paras 16 and A
17][970·B-E][971-E-F]
       1.2 The employer-EW1 admitted that the appellant-
workman was appointed on permanent basis in the post
of driver. The finding of fact was recorded by the Labour
Court accepting the evidence of EW-1 that the appellant- B
workman has worked continuously from 11.3.1997 to
29.07.2000 in the respondent-Corporation. Therefore, the
Labour Court has rightly come to conclusion and held
that the appellant-workman has rendered more than 240
days continuous service from the date of his C
appointment till the date of passing the termination order.
[Para 18][972-A-C]
       1.3 The words mentioned as "contractual driver"
in the termination order to strike off the name of the
workman from the contract employees roll, does not D
automatically prove that he has worked as the driver on
contract basi.s in the respondent-Corporation.
[Para 19][972-D-E]
       1.4 The finding of fact recorded by the Labour Court
in its award, on proper appreciation of undisputed facts E
and evidence on record, has been rightly held that the
termination order amounts to retrenchment and non-
compliance of the statutory provisions under Sections
6-N, 6-R and 6-Q of the U.P. Industrial Disputes Act has
 rendered the order of termination void ab initio in law. F
Therefore, the Labour Court was justified in passing the
 award of reinstatement after setting aside the order of
termination and awarded consequential benefits such
 as back-wages from the date of termination, till the date
 of reinstatement and further direction to pay future salary . G
 to the appellant-workman. [Para 20][972-E-G]
       1.5 In the order of termination, it is alleged that on
 account of negligent driving of the bus by appellant-
 workman, the accident of the vehicle happened, the said
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960       SUPREME COURT REPORTS              [2014] 13 S.C.R.


A allegation was neither proved in the inquiry required to
  be conducted nor producing evidence before the
  Labour Court by the respondent-Corporation. Therefore,
  the High Court has failed to examine the above vital
  aspec:ts of the case, and erroneously interfered with the
B award passed by the Labour Court in exercise of its
  extraordinary and supervisory jurisdiction under Articles
  226 &. 227 of the Constitution of India. This exercise of
  power is contrary to the law. [Para 21][972-H; 973-A·B]
         1-farjinder Singh v. Punjab State Warehousing
C        Corporation (2010) 3 SCC 192 : 201 O (1)
         SCR 591 - relied on.
         1.6 The reliance placed upon the decision of this
   Court on *Uma Devi case by the High Court to reverse
   the finding of fact recorded in the award in favour of the
 D workman in answering the points of dispute in the
   negative, is not tenable in law. *Uma Devi case does not
   denude the Industrial and Labour Courts of their
   statutory power to order permanency of the workers who
   have been victims of unfair labour practice on the part
 E of the employer. [Para 22][974-C·D]
         Maharashtra State Road Transport Corpn. &Anr.
         v. Casteribe Rajya Parivahan Karmchari
         Sanghata (2009) 8 SCC 556; Hari Nandan
         Prasad & Anr. v. Employer llR to Management of
 F       Food Corporation of India & Anr. (2014) 7 SCC
         190: 2014 (2) SCR 955; U.P. Power Corporation
         v. Bijli Mazdoor Sang (2007) 2 SCC 755 - relied
         on.
         •secretary, State of Karnataka & Ors. v. Uma Devi
 G
         & Ors. (2006) 4 SCC 1 : 2006 (3) SCR 953 - held
         i1r1applicable.
         UC v. D.J. Bahadur(1981) 1SCC315: 1981 (1)
         SCR 1083 - referred to.                    ·
 H
      SUDARSHAN RAJPOOTv. U.P. STATE ROAD                      961
           TRANSPORT CORPORATION

      1.7 Under Section 2(z) of the U.P. Industrial Disputes   A
Act, "workman;' whether daily wage, casual and
temporary workman or permanent workmen, all are
workmen for the purpose of the Act. There is no
classification of workmen such as permanent, temporary
or casual. The classification of workmen either in the         B
Recruitment Rules & Regulations or under the Model
Standing Orders framed by the State Government under
the Industrial Employment (Standing Orders) Act, 1946,
are applicable to the Respondent-Corporation in the
absence of service regulations framed by it.                   c
[Para 27][979-F-H]
      1.8 It has been proved that the appellant-workman
sustained injuries in the accident that occurred on
account of the mechanical defect of the vehicle involved
 in the accident. The plea taken by the respondent-            D
 Corporation that the order of termination was passed
 against the appellant-workman as the accident occurred
 on account of negligent driving of the vehicle by the
 appellant-workman, is not proved by the respondent-
 Corporation in order to justify the same. [Para 28]           E
 [980-D-E]
     Punjab Land Development and Reclamation
     Corporation Ltd., Chandigarh v.Presiding Officer,
     Labour Court, Chandigarh 1990 (3) SCR 111 -
     followed.                                                 F
     Chief Conservator of Forests and Anr. v.
     Jagannath Maruti Kondhare & Ors (1996) 2 SCC
     293: 1995 (6) Suppl. SCR 259; New Maneck
     Chowk Spg. & Wvg. Co. Ltd. v. Textile Labour
     Assn. AIR 1961 SC 867 : 1961 SCR 1; Delhi                 G
     Cloth & General Mills Ltd v. Shambhu Nath
     Mukherjee & Ors. (1977) 4 SCC 415 : 1978
     (1) SCR 591; L. Robert D'souza v. Executive
     Engineer, Southern Railway & Anr (1982)1 SCC
      645 : 1982 (3) SCR 251 - relied on.                       H
962         SUPREME COURT REPORTS              [2014] 13 S.C.R.


A          State Electronics Development Corporation Ltd.
           v. Mamni (2006) 9 SCC 434 : 2006 (1) Suppl.
            SCR 638 - referred to.
           2. Denial of back wages to an employee, who has
      suffered due to an illegal act of the employer would
B     amount to indirectly punishing the concerned employee
      and rewarding the employer by relieving him of the
      obligation to pay back wages including the emoluments.
      Therefore, the appellant-workman should be paid full
      back-wages by the respondent-Corporation.
C     [Para 29)[981~G-H; 982-A-B]
           Deepali Gundu Surwase v. Kranti Junior
           Adhyapak Mahavidyalaya (D. Ed) and Ors. (2013)
           10 SCC 324: 2013 (9) SCR 1 ·relied on.
           3. Having regard to the finding of fact recorded by
0     the Workmen's Compensation Commissioner while
      determining the claim under the Workmen's
      Compensation Act, the appellant-workman sustained
      grievous injuries to his legs which is an employment
      injury suffered during the course of employment in the
E     respondent-Corporation.Therefore, the respondent-
      Corporation is statutorily obliged u/s. 47 of the The
      Persons with Disabilities (Equal Opportunities,
      Protection of Rights, and Full Participation) Act, 1995 to
      provide alternate equivalent job to the appellant-
 F    workman in place of the post of the driver.[Para 30]
      [982H8-C; 983-F-G]
           Bhagwan Dass & Anr v. Punjab State Electricity
            Board (2008) 1 SCC 579: 2008 (1) SCR 32
           relied on.
G
                          Case law reference:
      2006 (1) Suppl. SCR 638          referred to Para 9
      1995 (6) Suppl. SCR 259          relied on     Para 16
      2010 (1) SCR 591                 relied on     Para 21
 H
      SUDARSHAN RAJPOOT v. U.P. STATE ROAD                    963
           TRANSPORT CORPORATION

(2009) 8 sec 556                   relied on        Para 22   A
2006 (3) SCR 953           held inapplicable        Para 22
2014 (2) SCR 955            relied on               Para 24
(2001) 2 sec 755            relied on               Para 24
1981 (1) SCR 1083           referred to             Para 24   B
1961 SCR 1                  relied on               Para 24
1978 (1) SCR 591            relied on               Para 26
1982 (3) SCR 251            relied on               Para 26
1990(3) SCR 111             followed                Para 26
                                                              c
2013 (9) SCR 1              relied on               Para 29
2008 (1) SCR 32             relied on               Para 30
    CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
10353-10354 of 2014.
      From the Judgment and Order dated 05-03-2008 and        D
03-08-2010 of the High Court of Judicature at Allahabad in
Civil Misc. Writ Petition No. 21553(C) of 2005 and in Civil
Misc. Review Application No .. 93051 of 2008 in Civil Misc.
Writ Petition No. 21553(C) of 2005.
     Sudhir Kulshreshtha, Adv. for the Appellant.             E
     Pradeep Misra, Daleep Kumar Dhayani, Suraj Singh,
Advs. for the Respondent.
     The Judgment of the Court was delivered by
     V. GOPALA GOWDA, J. 1. Leave granted.                    F
      2. These civil appeals are directed against the impugned
judgment and orders dated 5.3.2008 and 3.8.2010 passed in
Civil Misc. Writ Petition No. 21553(C) of 2005 and Civil Misc.
Review Application No. 93051 of 2008 by the High Court of
Judicature atAllahabad. Vide order dated 05.03.2008 the High G
Court allowed the writ petition filed by the respondent- U.P.
State Road Transport Corporation (in short 'the respondent-
Corporation') and quashed the award dated 31.05.2004
passed by the Labour Court and held that the appellant-
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964        SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A workman would be entitled to consolidated damages/
  compensation equivalent to the retrenchment compensation
  calculated from the date of his engagement till the date of his
  disengagement. The Review Application of the Corporation
  was rejected.
B        3. Brief facts in nutshell are stated hereunder for the
  purpose of appreciating rival legal contentions with a view to
  find out as to whether the impugned judgment is required to
  be interfered with or not by this Court in exercise of its appellate
  jurisdiction.
c        4. On 11.03.1997 the appellant-workman Sudarshan
  Rajpoot was appointed to the post of Driver at Azad Nagar
  Depot, Kanpur, in the respondent-Corporation. On 07.06.1999
  the appellant-workman was driving a vehicle bearing No.UAN
  8582 on the Deora to Kanpur route, when all of a sudden the
D steering became free due to the iron ball of the tyre being
  damaged and he lost control over the vehicle. As a result of
  which the vehicle met with an accident and the appellant-
  workman broke both his legs. He was admitted in Lucknow
  Medical College and his treatment continued till 09.08.2000.
E On 10.8.2000, he presented himself for duty with a fitness
  certificate, when he was told orally that his name was struck
  off from the rolls of post of driver and has been removed from
  the services of the Corporation. No order of termination from
  his services was served upon the appellant-workman on that
F day. It is the case of the appellant-workman that he had worked
  for more than 240 days continuously in a calendar year from
  the date of his appointment till the date of his termination from
  the services of the resppndent-Corporation.
         5. The appellant-workman raised an industrial dispute
G before the Conciliation Officer questioning the correctness of
  the order of termination dated 29.07.2000 under the provisions
  of the U.P. Industrial Disputes Act, 1947 (for short "the U.P.l.D,
  Acf').

 H
    SUDARSHAN RAJPOOT v. U.P. STATE ROAD                      965
 TRANSPORT CORPORATION [V. GOPALA GOWDA, J.]

      The State Government of Uttar Pradesh, which is the A
appropriate State Government under the U.P.l.D.Actto make
an order of reference to either the Labour Court or Industrial
Court for adjudication of the industrial dispute between the
workman and their employer, exercised its statutory powers
under Section 4-K of the U.P.1.DAct and referred the dispute B
to the Labour Court vide its order No. 483-85 KR (Branch
Secretary) CP493/2000 dated 9.4.2001 to adjudicate the
following point of dispute whether the termination of services
of the appellant-workman by the respondent-Corporation vide
order dated 29. 7.2000 is proper and valid? If not then whether c
the concerned appellant-workman is entitled to receive interest/
compensation?
      6. The said order of reference was registered as·
Industrial Dispute No.52 of 2001 by the Labour Court. The
Labour Court has adjudicated the dispute, after affording an D
opportunity to the parties and rejected the plea of the
respondent-Corporation that the appellant-workman was
working on contract basis. Further, the LabourCourt adverted
to an undisputed fact that the order of termination was not
preceded by any departmental inquiry required to be conducted E
by the Corporation. It was also noted by the Labour Court that
no evidence on record was adduced before it to prove the
allegation made in the order of termination that the accident
occurred on account of the negligence on the part of the
appellant-workman.                                             F
    · 7. The Labour Court has held that the workman had
worked for more than 240 days in a calendar year and that he
was removed from his post on 29.07.2000 by the Corporation
without any valid reasons. In the order of termination, it has
been specifically stated that his name was struck off from the G
contract roll. The finding of fact recorded by the Labour Court
on appreciation of the pleadings and evidence on record was
that the termination of the services of the appellant-workman
was contrary to law and accordingly set aside the same &
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966            SUPREME COURT REPORTS              [2014) 13 S.C.R.


A passed an Award. The Corporation was directed to reinstate
   the appellant-workman without any break in service in the post
   of driver and pay all his dues, salary etc. from the date of
   termination of his services and also further directed to the
   Corporation to continue to pay in future also.
B         8. The said award was challenged by the respondent-
   Corporation before the High Court questioning the correctness
   of the findings of fact inter a/ia, contending the finding recorded
   by the Labour Court in its Award that the appellant-workman
   was a permanent employee of the Respondent-Corporation
c without there being any evidence on record and therefore, the
   same is erroneous in law. Reliance was placed on the decision
   of this Cou1t in the case of Secretary, State of Karnataka &
  -Ors. v. Uma Devi &Ors. 1 in the matter of appointment of the
   appellant-workman as he was appointed on temporary/
D contractual basis.
          9. The High Court has set aside award of reinstatement
   and consequential reliefs granted by the Labour Court in its
   Award after referring to the decisions of this Court in the cases
   of Haryana State Electronics Development Corporation
E Ltd. v. Mamni 2• The High Court held that the appellant-
    workman was entitled to consolidated damages/compensation
    equivalent to the retrenchment compensation calculated from
    the date of the workmen's engagement till the date of his
    disengagement.
                                                                         •
F         10. The correctness of the impugned Judgment and order
    of the High Court is questioned by the appellant-workman
    before this Court by raising various questions of law and urging
    various grounds in support of the same and prayed for
    restoration of the award passed by the Labour Court.
G         11. The legal questions raised in this appeal are that the
    High Court has failed to consider Section 6R of the U.P.l.D.
    Act, where the effects of la·ws inconsistent with Sections 6J to
    6Q are dealt with. Sections 6N and 6Q (which are equivalent
                   sec 1
                                                                         -
                                                                         -
      1
          (2006) 4
 H    2    (2006) gsec 434
                                                                         ~
    SUDARSHAN RAJPOOTv. U.P. STATE ROAD      . 967
 TRANSPORT CORPORATION [V. GOPALA GOWDA, J.]

to Sections 25F and 25H of the Industrial Disputes Act, 1947r A
have an overriding effect on all laws, as such non-compliance
of mandatory provisions of Sections 6N and 60 rendered the
order of termination passed against the appellant void ab initio
in law. The conditions precedent as laid down under Section
6-N of the U. P. I. D. Act for retrenchment of workmen have not B
been complied with though the appellant-workman has put in
continuous service of more than 240 days in a calendar year
from the date of appointment till the date of his termination
passed by the Respondent-Corporation. Non-consideration
of this important legal aspect of the case by the High Court c
while setting aside the finding of facts recorded by the Labour
Court in its Award that the order of the respondent-Corporation
terminating the services of the appellant-workmar.i & non-
compliance of mandatory provision of Section 6-N of the U.P.l.D.
Act, rendered the order of termination void ab initio in law.       D
        12. It has been contended by the learned counsel for the
appellant-workman that the High Court has erred in placing
reliance upon the decision of this Court in Uma Devi case
(supra), which was distinguished in as much as the said case
is not applicable to the case on hand for the reason that the E
appellant-workman is a "workman" as defined under Section
2(z) of the U.P.1.D. Act and the respondent is the Statutory
Corporation which is an undertaking of the State Government
and therefore, it is an instrumentality of the State Government,
it will come within the definition of "Industry" as defined under · F
Section 2(k) of the U.P.1.D. Act. Therefore, the said provisions
of the U. P. I. D. Act are applicable to the appellant-workman as
he is a "workman" as defined under Section 2(z) of the U.P.l.D.
Act and Section 2(s) of the l.D. Act, 1947.
        13. Further, it is contended that the High Court has failed G
to consider the ''.Unfair Labour Practice" as defined under
Section 2(ra) of the l.D. Act, 1947 read with Sections 25T and
25U and V Schedule of the I. D. Act. Para 10 of the V Schedule
of the l.D. Act prohibits the employer to employ workmen as
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968          SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A  badlis, casuals or temporaries and to con:inue them as such
   for years in the Corporation, with the object of depriving them
   of the status and privileges of permanent workmen is
   prohibited. It is further contended that the respondent-
   Corporation is liable for penal action under the provisions of
 B Section 25U of the 1.0. Act. In support of the above contention,
   reliance was placed on 3 Judge Bench decision of this Court
   in the case of Chief Conservator of Forests and Anr. v.
      Jagannath Maruti Kondhare &Ors 3•
         14. On the other hand, the learned counsel appearing on
 C behalf of the respondent-Corporation sought to justify the
   correctness of the finding and reasons recorded by the High
   Court in the impugned judgment. Alternatively, it is contended
   that even.if the order of termination is bad in law, the workman
   who. is working on the contract basis is not entitled for
 0 reinstatement with full back-wages as per the view taken by
   this Court in several decisions. Therefore, the learned counsel
   for the respondent-Corporation submits that the impugned
   judgment and order need not be interfered with by this Court
   in exerclse of its appellate jurisdiction.
 E       15. With reference to the above said rival legal
   contentions the following substantial questions would arise for
   our consideration:
         i. Whether the High Court is justified in passing the
               impugned judgment, order and reversing the award
 F             passed by the Labour Court?
          ii. Whether the order of termination passed against the
               .appellant-workman amounts -to retrenchment as
                defined underSection.2(s)ofthe U.P.l.D.Act, 1947?
 G       .
         .iii. Whether non-compliance  .    of the statutory provisions
                under Sections 6-N and 6-Q of the U.P.l.D. Act which
              . are analogous with 25-F and 25-H respectively of the
                1.0. Act, 1947 renders the order of termination void ab
                inifio in law?
 H '(1996) 2 sec 293
    SUDARSHAN RAJPOOT v. U.P. STATE ROAD                            969
 TRANSPORT CORPORATION [V. GOPALA GOWDA, J.]

      iv. What relief the appellant-workman is entitled to?         A
      16. To answer the above substantial questions of law it
is necessary for this Court to extract the order of termination
passed by the Assistant Regional Manager of the Corporation,
which reads thus:
            "OFFICE OF ASSISTANT REGIONAL                           B
                           MANAGER,
          U.P. TRANSPORT CORPORATION, AZAD
                         NAGARDEPOT
          Letter No.ARM/A. Ngr/Bus Accident 0582/2000/3591          C
          dated 29.7.2000
                        OFFICE ORDER
      On 7.6.1999 vehicle bearing No. 8582 which had met
      an accident which was being driven on 7.6.1999 by Shri
      Sudharshan Raj put contractual driver and conductor Shri      D
      Kamta Prasad on Deoria to Kanpur route and accident
      occurred on the way at 1:30 a.m. in the night at village
      Palhari, Barabanki near Police Station Safdarganj and
      due to negligent driving of the driver, department suffered
      heavy loss.                                                   E
      Hence in order to meet departmental loss, forfeiting
      security of driver Shri Sudharsan Raj put, I pass the order
     to struck off his name from the contract roll with an
      immediate effect. His name be struck off from contract F
      roll.
                                                Sd/(lllegible)
                                                 (Sad Sayed)
                                  Assistant Regional Manager,
                                          Azad Nagar, Depot" G
                                  (emphasis laid by this Court)
      In the aforesaid order of termination it is specially
mentioned that the appellant-workman was appointed as a
driver on contractual basis. It has been further stated that the
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970        SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A  accident occurred on 07.06.1999 due to the negligent driving
   of the appellant-workman resulting in heavy loss to the
   department of the respondent-Corporation. In order to meet
   the departmental loss, security amount of driver was forfeited
   and Assistant Regional Manager had struck off the name of
 B the appellant-workman from the contract employees roll with
   immediate effect. The respondent-Corporation has neither
   produced documentary evidence nor showed before the
   Labour Court that the appellant-workman was appointed on
   contract ba8is. The fact that he deposited Rs.2000/- towards
c  security amount with the respondent-Corporation indicates that
   he was working as the Driver on a permanent basis. In view of
   the Schedule V, entry No. 10 of the l.D. Act, 194 7 the
   respondent-Corporation is prohibited from engaging the
   appellant-workman as a badli, casual or temporary workman
 o to work on permanent basis. The fact that he had been
   continuously working for more than 3 years and he had
   rendered more than 240 days of service as the driver in a
   calendar year until his termination order and yet he being
   engaged on a contractual basis in the respondent-Corporation
 E is statutorily prohibited. The same amounts to an unfair labour
   practice as defined under Section 2(ra) read with Section 25T,
   which action of the Corporation is punishable under Section
   25U of the 1.0. Act. This legal position is settled by this Court
   in Chief Conservator of Forest case (supra) wherein it was
 F held as under:-
          "22 ..... ln our opinion, it would be permissible on facts of
          a particular case to draw the inference mentioned in the
          second part of the item, if badlis, casuals or temporaries
          are continued as such for years. We further state that the
 G        present was such a case in as much as from the materials
          on record we are satisfied that the 25 workmen who went
          to Industrial Court of Pune (and 15 to Industrial Court,
          Ahmednagar) had been kept as casuals for long years
          with the primary object of depriving them the status of
 H        permanent employees in as much as giving of this status
    SUDARSHAN RAJPOOTv. U.P. STATE ROAD                           971
 TRANSPORT CORPORATION [V. GO PALA GOWDA, J.]

      would have required the employer to pay the workmen A
      at a rate higher than the one fixed under the Minimum
      Wages Act. We can think of no other possible object as,
      it may be remembered that the Pachgaon Rarwati
      Scheme was intended to cater to the recreational and
      educational aspirations also of the populace, which are B
      not ephemeral objects, but par excellence permanent.
      We would say the same about environment-pollution-
      care work of Ahmednagar, whose need is on increase
       because of increase in pollution. Permanency is thus writ
       large on the face of both the types of work. If, even in c
      such projects, persons are kept in jobs on casual basis
       for years the object manifests itself; no scrutiny is required.
       We, therefore, answer the second question also against
       the appellants."
       17. In the absence of the documentary evidence to justify D
the plea taken by the Respondent-Corporation that the
appellant-workman was a contract employee in the order of
termination it remained as a plea and not a proven fact of
assertion. Therefore, the appellant-workman is considered to
be permanent workman. Further, the appellant-workman has E
clearly stated in his affidavit before the High Court that at the
time of termination his juniors were working on permanent
basis. Therefore, the same is another added fact to accept
the contention of the appellant-workman by the Labour Court
that he was appointed as a permanent workman in the F
respondent-Corporation as a driver.
        18. The reference of the industrial dispute to the Labour
Court regarding the justification of the order of termination
passed against the appellant-workman was made by the State
Government in exercise of its statutory power under the U.P.l.D. G
Act. The burden to justify the same lies on the respondent-
Corporation, the same has not been discharged by producing
cogent evidence on record before the Labour Court. Therefore,
the finding of fact recorded by the Labour Court while answering
                                                                    H
972        SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A the point of dispute referred to it by placing reliance upon the
  evidence of the employer-EW1 wherein he admitted that the
  appellant~workman was appointed on permanent basis in the
  post of driver at Azad Nagar Depot of the respondent-
  Corporation. The finding of fact was recorded by the Labour
B Court accepting the evidence of EW 1 that the appellant-
  workman has worked continuously from 11.3.1997 to
  29.07.2000 in the respondent-Corporation. Therefore, the
  Labour Court has rightly come to conclusion and held that the
  appellant-workman has rendered more than 240 days
c continuous seNice from the date qf his appointment till the date
  of passing the termination order.
        19. It is the case of retrenchment as the termination of
  the appellant from his seNices is otherwise for misconduct, in
  view of the admitted fact mentioned in the order of termination
D that his name was struck off from the contract roll. Merely
  because the words mentioned as "contractual driver" in the
  termination order dated 29. 7 .2000 to strike off his name from
  the contract employees roll does not automatically prove that
  he has worked as the driver on contract basis in the
E respondent-Corporation.
        20. The finding.of fact recorded by the Labour Court in
  its award on proper appreciation of undisputed facts and
  evidence on record, has been rightly held that the termination
  order amounts to retrenchment and non compliance of the
F statutory provisions under Sections 6-N, 6-R and 6-Q of the
  U.P.l.D.Act has rendered the order of termination void ab initio
  in law. Therefore, the Labour Court was justified in passing
  the award of reinstatement after setting aside the order of
  termination and awarded consequential benefits and such as
G back-wages from the date of termination till date of
  reinstatement and further direction to pay future salary to the
  appellant-workman.
        21. In the order of termination, it is alleged that on account
  of negligent driving of the bus by appellant-workman the
H accident of the vehicle happened, the said allegation was
       SUDARSHAN RAJPOOT v. U.P. STATE ROAD                           973
    TRANSPORT CORPORATION [V. GO PALA GOWDA, J.]

neither proved in the inquiry required to be conducted nor            A
producing evidence before the Labour Court by the
respondent-Corporation. Therefore, the High Court has failed
to examine the above vital aspects of the case on hand and
erroneously interfered with the award passed by the Labour
Court in exercise of its extraordinary and supervisory                B
jurisdiction under Articles 226 & 227 of the Constitution of India.
This exercise of power is contrary to the law laid down by this
Court in the case of Harjinder Singh v. Punjab State
 Warehousing Corporation4, wherein this Court held thus:-
        "17. Before concluding, we consider it necessary to C
        observe that while exercising jurisdiction under Articles
        226 and/or 227 of the Constitution in matters like the
        present one, the High Courts are duty bound to keep in
        mind that the Industrial Disputes Act and other similar
        legislative instruments are social welfare legislations and D
        the same are required to be interpreted keeping in view
        the goals set out in the preamble of the Constitution and
        the provisions contained in Part IV thereof in general and
        Articles 38, 39(a) to (e ), 43 and 43A in particular, which
        mandate that the State should secure a social order for E
        the promotion of welfare of the people, ensure equality
        between men and women and equitable distribution of
        material resources of the community to sub-serve the
        common good and also ensure that tl"'1e workers get their
        dues. More than 41 years ago, Gajendragadkar, J, opined F
        that "the concept of social and economic justice is a living
        concept of revolutionary import; it gives sustenance to
        the rule of law and meaning and significance to the ideal
        of welfare State" - State of Mysore v. Workers of Gold
        Mines AIR 1958 SC 923."                                      G
     Therefore, we have to hold that the High Court has
erroneously exercised its supervisory jurisdiction under Articles
226 & 227 of the Constitution of India, in interfering with the
4   (201 O) 3 sec 192
                                                                      H
974       SUPREME COURT REPORTS                  [2014] 13 S.C.R.
      •
A findings offact recorded in the award by the Labour Court and
  setting aside the same and in lieu of the s9me it awarded
  retrenchment compensation from the date of appointment till
  the date of disengagement. The impugned Judgment and order
  passed by the High Court is not only erroneous but suffers
B from error in law as it has failed to follow the principles laid
  down by this Court in the above case. Therefore, the same is
  liable to be set aside.
         22. Further, the reliance placed upon the decision of this
  Court on Uma Devi (supra) case by the High Court to reverse
C the finding of fact recorded in the award in favour of the workman
  in answering the points of dispute in the negative, is not tenable
  in law in view of the judgment of this Court in Maharashtra
  State, Road Transport Corpn. & Anr. v. Casteribe Rajya
  Parivahan Karmchari Sanghatan5, wherein, this Court after
D adverting to Uma Devi's case (supra) at para 36, has held
   that the said case does not denude the Industrial and Labour
   Courts of their statutory power under Section 30 read with
   Section 32 of the MRTU and PULP Act to order permanency
   of the workers who have been victims of unfair labour practice
E on the part of the employer under Item 6 of the Schedule IV
   where the posts on which they have been working exist. Further,
   this Court held that Uma Devi's case cannot be held to have
   overridden the powers of Industrial and Labour Courts in
   passing appropriate order under Section 30 of the MRTU and
F PULP Act, once unfair labour practice on the part of the
   employer under Item 6 of the Schedule IV is established.
          23. We are of the opinion that the view taken in
   Maharashtra State Road Transport Corpn. & Anr.(supra)
   at para 36 after distinguishing Uma Devi's case is the
G plausible view. Therefore, we have to hold that the finding of
   the High Court in setting aside the finding of fact recorded by
   the Labour Court in its award by applying Uma Devi case
   (supra) is wholly untenable in law. Therefore, the same is set
   ~&S'M gsE<;;wrt.
H
       SUDARSHAN RAJPOOT v. U.P. STATE ROAD                    975
    TRANSPORT CORPORATION [V. GOPALA GOWDA, J.]

      24. This Court in the later judgment in the case of Hari A
Nandan Prasad & Anr. v. Employer llR to Management of
Food Corporation of India & Ant. 6, after adverting to the law
laid down in U.P. Power Corporation v. Bijli Mazdoor Sangh 7
and Maharashtra State Road Transport Corpn. & Anr.
(supra) wherein Uma Devi's case is adverted to in both the B
cases, held that on a harmonious reading of the two judgments,
even when there are posts available, in the absence of any
unfair labour practice the Labour Court cannot give direction
for regularisation only because a worker has continued as daily-
wage worker/ad hoc/temporary worker for number of years. C
Further, such a direction cannot be given when the worker
concerned does not meet the eligibility requirement of the post
in question as per the recruitment rules. It was held at para 32
in the Hari Nanda Prasad case (supra) as under:-
        "32. However, the Court in Maharashrtra SRTC case D
        also found that the factual position was different in the
        case before it. Here the post of cleaners in the
        establishment were in existence. Further, there was a
        finding of fact recorded that the Corporation had indulged
        in unfair labour practice by engaging these workers on E
        temporary/casual/daily-wage basis and paying them
        paltry amount even when they were discharging duties
        of eight hours a day and performing the same duties as
        that of regular employees."
     Further, Hari Nandan Prasad & Anr. (supra) referred        F
at para 36, the case of LIC v. D.J. Bahadur8 in which the
relevant para 22 of LIC (supra) case extracted as under:-
        "36 ...... "22. The Industrial Disputes Act is a benign
        measure which seeks to pre-empt industrial tensions,
        provide the mechanics of dispute resolutions and set up G
        the necessary infrastructure, so that the energies of the
        partners in production may not be dissipated in .
a (2014) 7 sec 190
1
    (2007) 2 sec 755                                            H
8
    (1981) 1 SCC315
976           SUPREME COURT REPORTS                  [2014) 13 S.C.R.


A          counterproductive bcittles and the assurance of industrial
           justice may create a climate of goodwill."
           In order to achieve the aforesaid objectives, the Labour
           Courts/Industrial Tribunals are given wide powers not only
           to enforce the rights but even to create new rights, with
 B         the underlying objective to achieve social justice. Way
            back in the year 1950 i.e. immediately after the enactment
           of Industrial Disputes Act, in one of its first and celebrated
           judgment in the case of Bharat Bank Ltd. V. Employees
           of Bharat Bank Ltd.[1950) LLJ 921,948-49 (SC) this
 C         aspect was highlighted by the Court observing as under:
           "61 ....... ln settling the disputes between the employers
            and the workmen, the function of the tribunal is not
            confined to administration of justice in accordance with
            law. It can confer rights and privileges on either party
 D          which it considers reasonable and proper, though they
            may not be within the terms of any existing agreement. It
            has not merely to interpret or give effect to the contractual
            rights and obligations of the parties. It can create new
            rights and obligations between them Which it considers
 E          essential for keeping industrial peace."
            And again at para 37, observing that the aforesaid
      sweeping power conferred upon the Tribunal is not unbridled
      and is circumscribed by this Court in New Maneck Chowk
      Spg. & Wvg. Co. Ltd. v. Textile Labour Assn. 9, the relevant
 F    para 6 of which is extracted as under:-
            "37 ... ."6 . ... This, however, does not mean that an
            Industrial Court can do anything and everything when
            dealing with an industrial dispute. This power is
            conditioned by the subject-matter with which it is dealing
 G
            and also by the existing industrial law and it would not be
            open to it while dealing with a particular matter before it
            to overlook the industrial law relating to that matter as
            laid down by the legislature or by this Court."
 H    9
          AIR 1961SC867
    SUDARSHAN RAJPOOTv. U.P. STATE ROAD                                 977
 TRANSPORT CORPORATION [V. GOPALAGOWDA, J.]

      38. It is, thus, this fine balancing which is required to be      A
      achieved while adjudicating a particular dispute, keeping
      in mind that the industrial disputes are settled by
      industrial adjudication on principle of fair play and justice."
       25. In view of the aforesaid statement of law laid down
by this Court after adverting to the powers of the Industrial           B
Tribunal and the Labour Court as interpreted by this Court in
the earlier decisions referred to supra, the said principle is
aptly applicable to the fact situation of the case on hand, for
the reason that the Labour Court recorded a finding of fact in
favour of the workman that the termination of services of the           C
appellant herein is not legal and valid and further reaffirmed
the said finding and also clearly held that the plea taken in the
order of termination that he was appointed on contract basis
as a driver is not proved by producing cogent evidence. Further,
we hold that even if the plea of the employer is accepted,              D
extracting work though of permanent nature continuously for
more than three years, the alleged employment on contract
basis is wholly impermissible. Therefore, we have held that it
amounts to an unfair labour practice as defined under 2(ra) of
the 1.0. Act, 1947 read with Sections 25Twhich is prohibited            E
under Section 25U,ChapterVC of the LO.Act, 1947. We have
to hold that the judgment of the High Court in reversing the
award is not legal and the same is set aside by us.
       26. Further, the conditions precedent to the retrenchment
of workmen under Section 6-N of the U.P.l.D.Act have not been           F
satisfied before terminating the services of the appellant-
workman in the case on hand. Section 6-N of the U.P.l.D. Act
 states as follows:
       "6-N. Conditions precedent to retrenchment of workman.-
       No workman employed in any industry who has been in              G
       ccn~•~uous service for not le:>s than one year under an
       employer shall be retrenched by that emp!oyer until,-.
       The workman has bee11 given one month's notice in
       writing indicating the reasons for re~:·mchment and the
                                                                        H
978           SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A             period of notice has expired or the workman has been
              paid in lieu of such notice wages for the period of the
              notice;
            Provided that no such notice shall be necessary if the
            retrenchment is under an agreement which specifies a
B           date forthe termination of service; the workman has been
            paid, at the time of retrenchment, compensation which
            shall be equival~nt to fifteen days' average pay for every
            completed year of service or any part thereof in excess
            of six months; and Notice in the prescribed manner is
C           served on the State Government."
            Thus, non-compliance with the mandatory provisions
      under Section 6-N of the U.P.1.D. Act rendered the retrenchment
      of the workman void ab initio in law. This position of law is well
      settled by this Court in the case of Delhi Cloth & General
D     Mills Ltdv. Shambhu Nath Mukherjee & Ors 10 which states
      as under:-
            "On the face of it. the order striking off the name of the
            workman from the rolls on August 24. 1965, is clearly
            erroneous. No order. even under section 27(c) of the
 E          Standing Orders. could have (1) [19571SCR335. been
            passed on that date. The clause in the Standing Orders
            reads as follows:-
               "If any workman absents for more than eight
               consecutive days his services shall be terminated and
 F
               shall be treated having left the service without notice".
            The workman last attended work on 14th August, 1965.
            15th August was a public holiday. He was, therefore,
            absent from work only from 16th of August. So even under
G
            the Standing Orders the workman was not absent for
            "more than eight consecutive days" on 24th August, 1965.
            The order is, therefore, clearly untenable even on the
            basis of the Standing Orders. It is not necessary to
            express any opinion in this appeal whether "eight
 H    10
           (1977)4 SCC415
    SUDARSHAN RAJPOOTv. U.P. STATE ROAD                               979
 TRANSPORT CORPORATION [V. GOPALAGOWDA, J.]

        consecutive days" in the Standing Orders mean eight           A
        consecutive working days. Striking of the name of the
        workman from the rolls by the management is termination
        of his service. Such termination of service is retrenchment
        within the meaning of section 2(00) of the Act. There is
        nothing to show that the provisions of section 25F (a)        B
        and (b) were complied with by the management in this
        case. The provisions of section 25F(a). the proviso apart.
        and (b) are mandatory and any order of retrenchment, in
        violation of 'these two peremptory conditions precedent.
        is invalid."                                                  C
                                    (emphasis laid by this Court)
        This position of law was also reiterated in L. Robert
D'souza v. Executive Engineer, Southern Railway &Anr11
and approved by the Constitution Bench of this Court in Punjab
Land Development And Reclamation Corporation Ltd., D
Chandigarh (supra). Therefore, the Labour Court has rightly
set aside the order of termination by the respondent-
Corporation while adjudicating the point of dispute which has
been referred to it by the Sta.te Government, the same is
perfectly legal and valid and therefore it should not have been       E
interfered with by the High Court in exercise of its Supervisory
Jurisdiction.
      27. Under Section 2(z) of the U.P.l.D. Act, "workman"
whether daily wage, casual· and temporary workman or
permanent workmen, all are workmen for the purpose· of the F
U.P.l.D. Act. There is no classification of workmen such as
permanent, temporary or casual under the U.P.l.D. Act. The
classification of workmen either in the Recrnitment Rules &
Regulations or under the Model Standing Orders framed by
the State Government under the Industrial Employment G
(Standing Orders) Act, 1946, are applicable to the
Respondent-Corporation in the absence of service regulations
framed by the respondent-Corporation.
11
     (1982)1 sec 645
                                                                      H
980            SUPREME COURT REPORTS               [2014] 13 S.C.R.


A       28. Further, the alleged misconduct of negligent driving
  of thEl vehicle by the appellant-workman on the date of the
  accident, the argument advanced by the respondent-
  Corporation is falsified by documents produced by the
  workman in CA-1 and CA-2 of the counter affidavit filed before
B the High Court wherein it is specifically pleaded by the
  appellant-workman that he got severe injuries in the accident
  due to mechanical defect of the vehicle which is admitted by
  the Assistant Regional Manager of the respondent-
  Corporation. Annexures CA-1 and CA-2 and the
c Commissioner for Workmen's Compensation under the
  Employees Compensation Act, 1923, treated the appellant-
  workrnan to be a workman under the provisions of Employees
  Compensation Act, 1923 and passed an order on 8.1.2000 in
  favour of the appellant-workman. The said order became final
o and was not challenged by the respondent-Corporatio.n. This
  clearly proves the fact that the appellant-workman sustained
  injuries in the accident that occurred on account of the
  mechanical defect of the vehicle involved in the accident. The
  plea taken by the respondent-Corporation that the order of
E termination was passed against the appellant-workman as the
  accident occurred on account of negligent driving of the vehicle
  by the appellant-workman is not proved by the respondent-
  Corporation in order to justify the same. This aspect of the
  matter has not been discussed either by the Labour Court or
F by the High Court.
         29. Further, it is important for us to examine another
  aspect of the case on hand with respect to reinstatement, back-
  wages and the qther cons~quential benefits to be awarded in
  favour of the appellant-workman. In the case of Deepali Gundu
 G Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.
   Ed) and Ors. 12, after referring to three Judge Bench Judgments
      with regard to the principle to be followed by the Labour Courts/
      Industrial Tribunals to award back-wages if order of termination/

 H    12
           (2013)10 sec 324
    SUDARSHAN RAJPOOTv. U.P. STATE ROAD                                981
 TRANSPORT CORPORATION [V. GOPALA GOWDA, J.]

dismissal is set aside, law has been laid down in this regard          A
by this Court as under:-
      "17. The very idea of restoring an employee to the position
      which he held before dismissal or rE?moval or termination
      of service implies that the employee will be put in the
      same position in which he would have been but for the            B
      illegal action taken by the employer. The injury suffered
      by a person, who is dismissed or removed or is
      otherwise terminated from service cannot easily be
      measured in terms of money. With the passing of an
      order which has the effect of severing the employer              C
      employee relationship, the latter's source of income gets
      dried up. Not only the concerned employee, but his entire
      family suffers grave adversities. They are deprived of the
       source of sustenance. The children are deprived of
       nutritious food and all opportunities of education and          D
       advancement in life. At times, the family has to borrow
       from the relatives and other acquaintance to avoid
       starvation. These sufferings continue till the competent
       adjudicatory forum decides on the legality of the action
       taken by the employer. The reinstatement of such an             E
       employee, which is preceded by a finding of the
       competent judicial/quasi judicial body or Court that the
       action taken by the employer is ultra vires the relevant
       statutory provisions or the principles of natural justice,
       entitles the employee to claim full back wages. If the           F
       employer wants to deny back wages to the employee or
       contest his entitlement to get consequential benefits, then
       it is for him/her to specifically plead and prove that during
       the intervening period the employee was gainfully
       employed and was getting the same emoluments. Denial             G
       of back wages to an employee, who has suffered due to
       an illegal act of the employer would amount to indirectly
        punishing the concerned employee and rewarding the
       employer by relieving him of the obligation to pay back
     . wages including the emoluments.                                  H
982          SUPREME COURT REPORTS                     [2014] 13 S.C.R.


A            Therefore, keeping in mind the principles laid down by
      this Court in the above case, we are of the opinion that the
      appellant-workman should be paid full back-wages by the
      respondent-Corporation.
          . 30. Since the drder of termination is set aside, having
B     regard to the finding of fact recorded by the Workmen's
      Compensation Commissioner while determining the claim
      under the Workmen's Compensation Act, the appellant-
      workrnan sustained grievous injuries to his legs which is an
      employment injury suffered during the course of employment
C     in the respondent-Corporation. In the matter of the rights and
      protection of the appellant-workman we refer to the decision
      of this Court in the case of Bhagwan Dass & Anr v. Punjab
      State Electricity Board13:-
             "4. Here .... It may further be noted that the import of
D            Section 47 of the Act was considered by this court
             in Kuna/ Singh vs. Union of India & Anr. [2003 (4)
             sec 524] and in paragraph 9 of the decision it was
             observed and held as follows :
               Chapter VI of the Act deals with employment relating to
E              persons with disabilities, who are yet to secure
               employment. Section 47, which falls in Chapter VIII, deals
               with an employee, who is already in service and
               acquires a disability during his service. It must be borne
               in mind that Section 2 of the Act has given distinct and
F              different definitions of disability and person with
               disability. It is well settled that in the same enactment if
              two distinct definitions are given defining a word/
               expression, they must be understood accordingly in
               terms of the definition. It must be remembered that a
G              person does not acquire or suffer disability by choice.
              An employee, who acquires disability during his service,
               is sought to be protected under Section 47 of the Act
               specifically. Such employee, acquiring disability, if not
               protected, would not only suffer himself, but possibly all
H
    SUDARSHAN RAJPOOTv. U.P. STATE ROAD                            983
 TRANSPORT CORPORATION [V. GOPl;\LA GOWDA, J.]

      those who depend on him would also suffer. The very          A
      frame and contents of Section 47 clearly indicate its
      mandatory nature. The section further provides that if
      an employee after acquiring disability is not suitable for
      the post he was holding, could be shifted to some other
      post with the same pay scale and service benefits; if it     B
      is not possible to ·adjust the employee against any post
      he will be kept on a supernumerary post until a suitable
      post is available or he attains the age of
      superannuation, whichever is earlier. Added to this no
      promotion shall be denied to a person merely on the          c
      ground of his disability as is evident from sub-section
      (2) of Se.ction 47. Section 47 contains a clear directive
      that the employee shall not dispense with or reduce in
      rank an employee who acquires a disability during the
      service. In construing a provision of a social beneficial    D
      enactment that too dealing with disabled persons
      intended to give them equal opportunities, protection
      of rights and full participation, the view that advances
      the object of the Act and serves its purpose must be
      preferred to the one which obstructs the object and          E
      paralyses the purpose of the Act. Language of Section
      47 is plain and certain casting statutory obligation on
      the employer to protect an employee acquiring
      disability during service."
      Therefore, the respondent-Corporation is statutorily         F
obliged under Section 47 of The Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full
Participation)Act, 1995 to provide alternate equivalent job to
the appellant-workman in place of the post of driver. Therefore,
we direct accordingly.                                             G
     31. In the result, the impugned Judgment and orders are
set aside. The appeals are allowed. The respondent-
Corporation is directed to reinstate the appellant-workman with
50% back-wages from the date of termination till the date of
                                                                   H
984          SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A the Award of tl}e Labour Court and further award 100% back-
  wages from the date of Award of the Labour Court till the date
  of reinstatement with all conseque:ntial reliefs and other
  monetary benefits including the continuity of service in an
  alternative eq1.,1al job with the same pay-scale as that of a driver.
B It is needless to state that the back-wages shall be calculated
  as per the provisions of pay scales revised to the employees
  of the~ respondent-Corporation from time to time. The
  respondent-Corporation is further directed to comply with the
  order within 4 weeks from the date of receipt of the copy of
c this Judgment. There shall be no order as to costs.
      Kalpana K. Tripathy                               Appeals allowed.