C.W.P.No.13606 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.13606 of 2009 Date of Decision:- 04.03.2010 The Divisional Forest Officer, Territorial Forest Division, Bhiwani and another ....Petitioner(s) vs. Smt.Bhateri Devi w/o Sh.Suraj Bhan ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Addl.A.G. Haryana, for the petitioner. Mr.Raj Kapoor Malik, Advocate, for the respondent. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for setting aside of the Award dated 13.3.2006 (Annexure P-1) passed by the Industrial Tribunal- cum-Labour Court, Rohtak vide which the reference has been answered in favour of workman-respondent No.1 holding her entitled to reinstatement with continuity of service and 50% back wages from the date of issuance of demand notice i.e. 23.7.2001 on the ground that her termination was in violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). Counsel for the petitioner submits that the findings recorded by the Labour Court cannot be sustained for the reason that no adverse inference could have been drawn against the petitioner-Management. He contends that no evidence was produced by the respondent-workman before the Labour Court which would substantiate her contention that she was in C.W.P.No.13606 of 2009 -2- employment with the petitioner-Management and had worked with it for the period as stated by her in the claim statement. Counsel on this basis, prays that the Award deserves to be set aside. His further contention is that the appointment of the respondent-workman was de hors the statutory rules as it is an admitted case of the respondent-workman that she was appointed as Beldar-cum-Mali on daily wage basis with the petitioner-Management and her appointment was not in accordance with the Articles 14 and 16 of the Constitution of India. On the other hand, counsel for the respondent-workman submits that the Award passed by the Labour Court is fully justified for the reason that the claim of the respondent-workman before the Labour Court was not controverted by the petitioner-Management as despite the grant of various opportunities by the Labour Court it failed to file a written statement. Even costs of Rs.500/- were imposed but despite that the petitioner-Management did not file any written statement which led to the striking off its defence as per order dated 14.12.2005. This order was never challenged by the petitioner-Management meaning thereby that the said order had attained finality. So, it does not lie in the mouth of the petitioner- Management to now contend that the appointment of the respondent- workman was de hors the statutory rules or in violation of Articles 14 and 16 of the Constitution of India. He further contends that the respondent- workman had, to her best ability, taken steps to call for the records from the petitioner-Management. An application was submitted by the workman for summoning the relevant record but despite the due service upon the petitioner-Management for production of the records, the representative in the office of the petitioner-Management, namely, Sh.Dharampal, Clerk, C.W.P.No.13606 of 2009 -3- failed to appear before the Labour Court. Thereafter, bailable warrants were issued but still, he did not appear. The records so maintained by the Management were required to be produced by it but it failed to do so despite efforts made by the respondent-workman and, thus, the adverse inference drawn by the Labour Court against the petitioner-Management is fully justified and does not call for any interference by this Court. Further, he contends that it was only the case of the petitioner-Management before the Labour Court that the appointment of the respondent-workman was not in consonance with the statutory rules. No evidence or argument was addressed by the representative of the petitioner-Management, that the appointment of the respondent-workman was in violation of Articles 14 and 16 of the Constitution of India. Thus, the said plea having not been raised before the Labour Court, cannot now be allowed to be raised by the petitioner-Management before this Court for the first time in a writ jurisdiction. His further submission is that the Award impugned in the present writ petition is dated 13.3.2006, in compliance to which the workman-respondent No.1 has already been reinstated in service with effect from 13.9.2006 and, thus, the Award already stood complied with. There is no explanation for the delay in approaching this Court after a period of 3 years and 4 months and on this ground alone, the writ petition deserves to be dismissed. I have heard counsel for the parties and have gone through the records of the case. A perusal of the Award clearly spells out that despite various opportunities granted to the petitioner-Management to file written statement and further the imposition of costs, no written statement was filed by the petitioner-Management leading to the striking off its defence vide C.W.P.No.13606 of 2009 -4- order dated 14.12.2005. The said order having not been challenged, had attained finality. As far as the records are concerned, the respondent- workman remained helpless as he had to depend upon the petitioner- Management for production of the same. In support of the claim made by the respondent-workman before the Labour Court, the evidence was required to be led by her. Accordingly, she moved an application for summoning the relevant records. The said application was allowed by the Labour Court and the records were summoned. Despite service of Sh.Dharampal, Clerk of the petitioner-Management, he failed to appear before the Court. Bailable warrants were issued as well, but still he did not come present nor were the records produced. The Labour Court, therefore, had no option but to arrive at a conclusion that the Management was intentionally withholding the records and, thus, rightly draw an adverse inference against the Management, thereby giving the benefit to the workman holding her to be in service continuously from 15.1.1988 to 31.10.1996. The findings, thus, recorded by the Labour Court are fully justified and do not call for any interference by this Court. The contention of counsel for the petitioner/Management that the appointment of the Workman was de hors the statutory rules and, therefore, is not entitled to reinstatement in service as the appointment was in violation of Articles 14 and 16 of the Constitution of India, also cannot be accepted. Counsel for the Management could not dispute the fact that this ground was neither taken in the written statement filed before the Labour Court nor any evidence was led by the Management in support of this contention or it was argued before the Court below. The only conclusion, C.W.P.No.13606 of 2009 -5- therefore, is that there was no issue on this aspect before the Labour Court and the Labour Court was,thus, not called upon to adjudicate upon this matter. The Labour Court had proceeded to decide the matter on the basis of the pleadings and evidence led by the respective parties. There being no illegality or irregularity, which had been committed by the Labour Court in passing its Award dated 30.05.2008(Annexure-P-4), no interference by this Court is called for. Counsel for the Management relies upon the judgment of Hon'ble the Supreme Court in Civil Appeal No. 229 of 2010, titled as Ramesh Kumar Versus State of Haryana, decided on 13.01.2010, wherein Hon'ble the Supreme Court had rejected the contention of counsel for the State of Haryana that the appointment of the Workman was not in consonance with the statutory Rules,and, therefore, de hors thereof and the Workman, thus, would not be entitled to reinstatement in service on the ground that the said plea was not taken either before the Labour Court or before the High Court and, therefore, was not allowed to be raised before Hon'ble the Supreme Court. He contends that this plea that the appointment of the Workman being de hors the statutory rules governing the service is being taken by the Management in the present case, in this Court State, therefore, this plea should be allowed to be raised and made the basis for denying the reinstatement of the Workman in service. This contention of counsel for the petitioner/Management again cannot be accepted for the reason that while exercising jurisdiction under Article 226 of the Constitution of India and that too when an Award under challenge is of an Industrial Tribunal/Labour Court, the jurisdiction of this Court is restricted. The writ jurisdiction is to be exercised sparingly and C.W.P.No.13606 of 2009 -6- only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. It should not be lost sight of the fact that the Court is deciding the validity of the Award passed by the Labour Court. The new plea now sought to be raised by the Management in the present writ petition, in any case, is a mixed question of fact and law, which cannot be allowed to be raised at this stage. The Award of the Labour Court having been passed on the basis of pleadings and evidence led by the respective parties, no fresh pleadings or grounds can be allowed to be taken except purely legal at the stage when writ jurisdiction of this Court is being invoked by the Management. By now it is a settled principle of law and fulfills the requirement of principles of natural justice also that if there is no pleading or raising of a contention, there is no question of substantiating such non- existing contention by evidence, the assertion, which is not pleaded, even if there is evidence to support it, cannot be examined because the other side has no notice of it and if entertained, it would tantamount to giving advantage to one of the parties, cannot be disputed. The rules of fair play demand that a party seeking to establish a contention, which, if proved, would be sufficient to deny relief to the opposite side, is required to be specifically pleaded and then proved also cannot be disputed with as, if there is no pleading, there is no question of proving something, which is not pleaded provided both the parties are aware of that position and despite the absence of pleadings both the parties have led evidence on that point and had contested that. In the absence of any pleadings before the Labour Court by the petitioner/Management and there being no evidence on the record nor any C.W.P.No.13606 of 2009 -7- issues framed on that count and even no arguments in this regard was advanced before the Labour Court by the petitioner/Management, the Labour Court, thus, did not get any opportunity to consider the issue whether reinstatement should be denied to the respondent/Workman on the ground that his initial appointment was illegal or unconstitutional. If the new plea is allowed to be raised by the petitioner before this Court that would mean opening a new case altogether, which would not be permissible in law. A writ of certiorari can be issued by this Court for correcting errors of jurisdiction committed by the inferior Court or the Tribunal . It can also be issued if the inferior Court or the Tribunal acts illegally or improperly or where the procedure adopted in dealing with the dispute is opposed to the principles of natural justice. A writ can also be issued in cases of error of law, which is apparent on the face of the record having been committed by the Court or Tribunal, but where mix questions of facts and law are involved and there is no pleadings or evidence led by the parties before the Labour Court, the same cannot be allowed to be taken or raised during the proceedings under Article 226 of the Constitution of India. Hon'ble the Supreme Court in the case of Harjinder Singh Versus Punjab State Warehousing Corporation J.T. 2010 (1) S.C. 598, has, while dealing with this very question held that similar plea as has been sought to be raised for the first time before this Court in the writ jurisdiction challenging the Award of the Labour Court cannot be allowed to be raised when in the reply filed on behalf of the Management before the Labour Court, the claim of the Workman for reinstatement in service with back wages was not considered by the Management on the ground that his initial appointment was illegal or unconstitutional. Neither any evidence was C.W.P.No.13606 of 2009 -8- produce nor any arguments was advanced in that regard and, therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the Workman by applying the new justice developed by the superior courts in recent years that the Court should not pass an Award which may result in perpetuation of illegality. Para 11.1 of the judgment reads as follows :- “11.1 A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the Corporation that termination of the appellant's service falls within the ambit of Section 2 (oo)(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of Corporation was contrary to Section 25-G of the Act which embodies the rule of last come first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs. 87,582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in C.W.P.No.13606 of 2009 -9- the reply filed on behalf of the Corporation before the Labour Court, the appellant's claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned single Judge was not at all justified in entertaining the new plea raised on behalf of the Corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family.” Counsel for the petitioner now contends that Harjinder Singh's case (supra), was decided on 05.01.2010, whereas Civil Appeal No. 229 of 2010 titled as Ramesh Kumar Versus State of Haryana, was decided by Hon'ble the Supreme Court on 13.01.2010. When two coordinate Benches decide a case, the latter judgment shall prevail over the earlier judgment. He on this basis contends that in the case of Ramesh Kumar Versus State of Haryana (supra), Hon'ble the Supreme Court has taken a C.W.P.No.13606 of 2009 -10- view that as the State of Haryana had not taken the plea that the appointment of the Workman being de hors the statutory Rules governing the service and in violation of Articles 14 and 16 of the Constitution of India, before the Labour Court and the High Court and was for the first time taken before Hon'ble the Supreme Court, the said plea could not be allowed to be raised, therefore, this Court should allow the petitioner/Management to raise this plea before this Court in the present petition. This contention of counsel for the petitioner is totally misplaced as a perusal of the judgment in the case of Ramesh Kumar Versus State of Haryana (supra), would show that the basic view, which was taken by Hon'ble the Supreme Court, was that no objection was raised by the Department before the Labour Court as also before the High Court. The relevant part of the judgment dealing with this aspect reads as follows :- “........... Though, it was contended that the initial appointment of the appellant was contrary to the recruitment rules and constitutional scheme of employment, admittedly, the said objection was not raised by the Department either before the Labour Court or before the High Court at the first instance. It was only for the first time that they raised the said issue before the High Court when the matter was remitted to it that too the same was raised only during the arguments. ..........” The observations of Hon'ble the Supreme Court as reproduced hereinabove does not confer any right on the petitioner/Management nor does it permit the petitioner/Management to take such like pleas before the High Court at the first instance. What Hon'ble the Supreme Court has C.W.P.No.13606 of 2009 -11- observed is that the plea was required to be taken before the Labour Court, but in that particular case, the plea had also not been raised before the High Court and, therefore, it was only this factual aspect, which was recorded by the Hon'ble Supreme Court. It cannot be interpreted to mean that the above observations of Hon'ble the Supreme Court gives liberty or confers any right on the petitioner/Management to take the plea at the first instance before the High Court that the initial appointment of the Workman was contrary to the recruitment Rules and constitutional scheme of employment. Harjinder Singh's case (supra), clearly settles the law on this issue and, therefore, contention raised by counsel for the petitioner/Management cannot be accepted. In any case, the plea of the Management with regard to the appointment of the Workman being de hors the Rules governing the service and in violation of Articles 14 and 16 of the Constitution of India, has been denied by the Workman in his written statement, otherwise also since this plea had not been permitted by this Court to be raised in the present writ petition at the first instance, the assertion of the Management and response thereto by the Workman shall have no consequence or bearing on the fate of the case. That apart, in compliance with the Award dated 13.3.2006 (Annexure P-1) passed by the Labour Court, which has been under challenge herein, workman-respondent No.1 stands reinstated in service with effect from 13.9.2006 and is continuing as such. The present writ petition was filed on 1.9.2009 i.e. after a delay of more than three and a half years and even more than three years from the date of reinstatement of the workman. There is no explanation forthcoming on record of this writ petition in regard to such delay in approaching this Court. This itself is a C.W.P.No.13606 of 2009 -12- good ground for not entertaining the present writ petition or interfering with the impugned Award passed by the Labour Court. Thus, finding no merit in the present writ petition, the same stands dismissed. March 04, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE