C.W.P No.869 of 1999 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.869 of 1999 Date of Decision: 04.08.2009 Surinder Singh .....Petitioner Versus The Presiding Officer, Labour Court, Jalandhar and others ....Respondents Present: Ms. Alka Chatrath, Advocate for the petitioner. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. (ORAL) 1. The workman, who was appointed in the Market Committee, Kapurthala on 04.07.1986, was regularized in his post on 07.07.1987. The appointment was also approved subsequently by the Punjab State Agriculture Marketing Board on 29.03.1988. Notwithstanding the regularization of the petitioner, another person Hardyal Singh, who had been originally employed on 15.04.1986 on temporary basis had obtained an award from the Labour Court directing reinstatement. Puporting to act on legal advice, the Market Committee decided to comply with the award of the Labour Court and proceeded to terminate the services of the regular employee on the ground that there was no post available if Hardyal Singh was to be reinstated. 2. This order of termination was challenged by means of suit C.W.P No.869 of 1999 -2- No.11 of 1989 before the Sub Judge 1st Class, Kapurthala for a declaration that the termination was bad and illegal. The suit was dismissed. The appeal preferred to the Appellate Court was also dismissed but the Appellate Court had directed that if any vacancy occurred in the Committee of the defendants, the plaintiff should be appointed first to the post because he had served the defendants for a period of more than three years and had exhausted the fruitful years of his youth. This judgment of the Appellate Court was again challenged by the petitioner before the High Court. The High Court dismissed the suit, however, granted a liberty to the petitioner to secure any relief from Labour Court, if so advised. 3. The journey to the Labour Court was begun on a fortuitous observation from the Hon'ble High Court that he could have a remedy before the Labour Court. The party who had opted to a declaratory suit could not have legitimately claimed any relief before the Labour Court to run counter to the decree of the Civil Court. The proceedings stood for four years, before the Labour Court rejected the claim of the workman not on the ground that the reference itself was not maintainable or that the Civil Court's decree had concluded the issue between the parties but on the ground that the engagement must be treated as for a specified period and the removal from service did not amount to retrenchment and was excepted under Section 2(oo) (bb) of the Industrial Disputes Act. This award of the Labour Court is in challenge before this Court. 4. Once the Civil Court had considered the issue of termination and had held the termination to be not vitiated, it shall not C.W.P No.869 of 1999 -3- permissible for the petitioner to have again opted for a remedy before the Labour Court. The direction which the Appellate Court had given for being considered when there was a vacancy, was really in the nature of a direction which the workman was entitled to under Section 25-H of the Industrial Disputes Act. The order of termination, if it was bad in any way, it was bad that it did not follow either the procedure prescribed under Section 25-F of granting the benefits as stipulated therein or it did not follow Section 25-G which sets out the procedure that “when any workman in an industrial establishment is to be retrenched and he belonged to a particular category of workman in that establishment, the employer shall ordinarily retrench the workman, who was the last person to be employed." If the petitioner was last person and therefore, he had to be retrenched, even the right under Section 25-H shall not be lost to him. This was precisely the right which was protected by the Appellate Court. 5. Learned counsel for the petitioner states that vacancies did arise subsequently and the respondents have appointed even persons who had been retrenched subsequently after his retrenchment. However, according to the learned counsel no benefit under Section 25-H was possible in view of the pendency of the writ petition before this Court. 6. The award of the Labour Court is, under the circumstances, set aside and the protection granted by the Civil Court in the decree issued by the Additional District Court, Kapurthala in Civil Appeal No.118 and 132 of 1990 is affirmed. This is not to state that the writ petition is a proceeding against the decree of Civil Court but it is a re- C.W.P No.869 of 1999 -4- affirmation of the right which was protected by the Civil Court decree. The petitioner shall be entitled to apply to the respondent Nos.1 to 3 for grant of re-employment in the manner provided under Section 25- H. Learned counsel appearing for the petitioner also states that at the time when the workman was terminated from service, no compensation as provided under Section 25-F was granted to him. A direction is also issued under this order that respondents shall pay the benefits as prescribed under Section 25-F of the Industrial Disputes Act with interest @ 7.5% per annum from the date of his termination till the date of payment. The respondents shall consider the application without taking any plea of limitation. 7. The writ petition is disposed of in the above terms. (K. KANNAN) JUDGE August 04, 2009 Pankaj*