CWP No. 2331 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2331 of 2010 Date of decision: 24.02.2010 Gurdeep Singh s/o Jagtar Singh ...... PETITIONER VERSUS The Presiding Officer, Labour Court, Gurdaspur and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Arun Gosain, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present writ petition is for setting aside of the Award passed by the Presiding Officer, Labour Court, Gurdaspur dated 19.08.2009 (Annexure P-5), vide which although a finding has been given that the termination of the service of the workman was in violation of Section 25-F of the Industrial Disputes Act ( for short 'the Act') but the reinstatement of the service of the workman has been denied on the ground that the initial appointment of the workman was dehors the statutory CWP No. 2331 of 2010 2 Rules as he was a back door entrant in service. Further the reason assigned for non-granting of reinstatement is the non-availability of work as there was no vacant post available with the respondents, on which the workman could be put back in service and was thus granted compensation of Rs. 7,000/- for 292 days service he had rendered with the respondents. Counsel for the petitioner contends that the Award passed by the Labour Court cannot be sustained as there was no specific stand taken by the respondents that the service of the petitioner was not in accordance with the statutory Rules governing the service. He relies upon the judgment of the Hon'ble Supreme Court in the case of Harjinder Singh vs. Punjab State Warehousing Corporation, JT 2010 (1) SC 598 in support of his contention that the Court would not interfere in case no such plea of the appointment of the workman being dehors the statutory Rules, is taken before the Labour Court. He further contends that once a finding has been given by the Labour Court that the service of the petitioner was terminated in violation of Section 25-F of the Act, the petitioner should have been reinstated in service and, therefore, the Award passed by the Labour Court cannot be sustained. His further contention is that in any case, if the workman cannot be reinstated in service, the workman could be granted the higher compensation than what has been granted by the Labour Court. For this, he relies upon the judgments of the Hon'ble Supreme Court in the cases of Jagbir Singh vs. Haryana State Agriculture Marketing Board and another, 2009 (3) SCT 790 as also Faridan vs. State of U.P. , 2009 (6) Law Herald (SC) 3873. I have heard the counsel for the petitioner and have gone through the records of the case. CWP No. 2331 of 2010 3 The contention, as raised by the counsel for the petitioner, that since the respondents have not taken a plea before the Labour Court with regard to the appointment of the petitioner being not in consonance with the statutory Rules would debar the Court from taking into consideration this aspect while denying the workman the right of reinstatement, although apparently appears to be very attractive and the reference of the judgment of Harjinder Singh (supra) thus indicate such a position in law, however, when the said judgment is taken into consideration and gone through in detail, it clearly specifies that it was a case where neither the stand was taken by the respondents before the Labour Court with regard to the initial appointment of the workman being illegal or unconstitutional nor any evidence was led by the respondents in this regard and no argument was advanced before the Labour Court on this question. The Hon'ble Supreme Court, in those circumstances, had held that the said plea could not be allowed to be taken for the first time before the High Court. In the present case, the Management has although not taken the stand in the written statement yet has placed on record the documents, which are appointment letters of the workman, which specify that he has been appointed on a fixed term basis for 89 days. Thereafter, a specific argument has been raised by the Authorized Representative of the respondents that the appointment of the workman was dehors the statutory Rules governing the service and his appointment was for a specified period. The respondents have also been able to prove that there was no vacancy available with them, on which the workman could be put back in service. CWP No. 2331 of 2010 4 It was not the case of the workman before the Labour Court that his appointment was in consonance with the statutory Rules and no assertion to that effect was made before the Court. No evidence has been led by the petitioner to prove that the stand, which has been taken before the Labour Court with regard to his appointment being not in consonance with the statutory Rules, was incorrect. In this view of the matter and in the light of the judgments of the Hon'ble Supreme Court, the contentions, as raised by the counsel for the petitioner, cannot be sustained with regard to his plea that the Award deserves to be set aside for the reason that the plea of his appointment being not in consonance with the statutory Rules, was not taken by the Management in their written statement to the claim submitted by the workman. As regards the contention of the counsel for the petitioner that although the workman may not be entitled to reinstatement in service but would be entitled to enhanced compensation as the compensation, which has been granted to the workman, is merely Rs. 7,000/-, a perusal of the Award clearly shows that the workman had only worked for 292 days with the Management, for which the compensation of Rs. 7,000/- has been granted to the workman. In the judgment, which has been relied upon by the counsel for the petitioner i.e. Faridan (supra), the period, for which the workman has worked with the respondents, has not been mentioned. In the other case, the Hon'ble Supreme Court has although taken into consideration the length of service but it cannot be taken as a precedence as it depends upon case to case and nature of appointment and the procedure which is adopted by the respondents and the reason to terminate the service of the workman. CWP No. 2331 of 2010 5 In the present case, it is not in dispute that the workman was appointed on 89 days basis and fresh appointment was to be given to him after the period it come to an end. Since the workman had only worked on 89 days basis for a specific term with breaks in service, although the case would fall under Section 2 (oo) (bb) of the Act but no finding to that effect has been returned by the Labour Court and benefit of compensation has been granted. The petitioner has been granted adequate compensation, which does not call for any interference by this Court. Dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE February 24, 2010 pj