C.W.P.No.10131 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.10131 of 2009 Date of Decision:- 17.02.2010 Rameshwar Dayal Saraff ....Petitioner(s) vs. Ram Niwas and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Mukesh Kumar Verma, Advocate, for the petitioner. Mr.Ashwani Bakshi, Advocate, for respondent No.1. *** AUGUSTINE GEORGE MASIH, J. (Oral) By this order, I propose to dispose of two civil writ petitions i.e.C.W.P.No.10131 of 2009 titled as Rameshwar Dayal Saraff vs. Ram Niwas and another and C.W.P.No.10140 of 2009 Rameshwar Dayal Saraff vs. Nirmala Devi and another, wherein identical questions of facts and law are involved, as has been consented to by the counsel for the parties. For the sake of convenience, facts are being taken from C.W.P.No.10131 of 2009. Prayer in the present petition is for setting aside the Award dated 11.2.2009 (Annexure P-6) passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Gurgaon, vide which the reference made to it has been answered in favour of the workman by holding him entitled to C.W.P.No.10131 of 2009 -2- reinstatement in service with back wages to the extent of 30% on the basis of the last drawn salary. Counsel for the petitioner-Management contends that the findings recorded by the Labour Court cannot be sustained. He contends that workman-respondent No.1 was appointed against an un-sanctioned post, and the same being not in consonance with the Rules governing his service, he does not have a right of reinstatement in service. He further contends that the services of he workman were terminated on the ground that there was no work available with the Management and as such, his services were no more required. That apart, he contends that the work and conduct of the workman was not satisfactory as he misbehaved with his superiors. The second contention which has been raised by the counsel for the petitioner is that the Award passed by the Labour Court is beyond the terms of reference as the reference was with regard to the termination of the services of Ram Niwas-workman and in his demand notice, he had specifically stated that the termination of services of the workman Ram Niwas was not in accordance with the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) as Section 25-F of the Act has not been complied with. The Labour Court has proceeded to decide the case on the issue that the Management has not been able to prove that the workman was working against an un-sanctioned post and secondly, because his work and conduct was not satisfactory and even then no charge-sheet was issued nor an enquiry was held against him. He, on this basis, contends that the Award deserves to be set aside and the reference decided against the workman. On the other hand, counsel for the respondent-workman contends that the findings as recorded by the Labour Court are based upon C.W.P.No.10131 of 2009 -3- the evidence so led by the parties before it. He submits that the Management has been able to prove that one month's pay has been given to him in lieu of the notice period but that pay was merely Rs.1200/- which was not a salary to which the workman was entitled to. In any case, the workman had worked with the respondents as Peon from 19.8.1988 upto 30.3.1994 when his services were terminated. The said termination was challenged and an Award in favour of the workman was passed on 14.02.1997 and he after having initiated proceedings under Section 29 of the Act leading to the prosecution of the Management, was made to rejoin on 26.2.1998 but thereafter, his services were again terminated on 12.8.1998 without paying him retrenchment compensation and, thus, Section 25-F of the Act has not been complied with. As against the contention of the counsel for the petitioner that the appointment of the workman was not in consonance with the Rules governing his service, counsel for the respondent-workman states that this stand was never taken by the Management before the Labour Court either in their written statement or during the evidence so led before the Labour Court and, therefore, at this stage this point cannot be allowed to be raised by the Management for the first time before this Court. In support of this contention, he relies upon the judgments of the Hon'ble Supreme Court in the case of Harjinder Singh vs.Punjab State Warehousing Corporation, 2010 JT (1) 598 (SC) and in Ramesh Kumar vs. State of Haryana, (Civil Appeal No.229 of 2010) decided on 13.1.2010. He, on this basis, prays for dismissal of the writ petition. In response to the judgment cited by the counsel for the respondent, counsel for the petitioner submits that since it is a question of C.W.P.No.10131 of 2009 -4- jurisdictional one about the competence of an Authority to appoint an employee, the same can be raised at any stage and for this contention, he relies upon a Division Bench judgment of the Delhi High Court in the case of Baljeet Singh vs. Management of State Farms Management of India Ltd., 2009 (1) LLJ 63. I have heard counsel for the parties and have gone through the records of the case. It is an admitted position that the workman-respondent No.2 was initially appointed as a Peon on 19.8.1988. He continued as such till 30.3.1994 when his services were terminated. The workman challenged this termination which led to the passing of the Award dated 14.2.1997 by the Labour Court in his favour whereby he was held entitled to reinstatement in service with all service benefits. However, the workman was not put back in service, thereby forcing him to initiate punitive action against the Management under Section 29 of the Act. When the competent Authority initiated the proceedings under Section 29 of the Act, the Management called upon the workman to join duties. Accordingly, he joined his post of Peon on 26.2.1998 vide letter Exhibit MW-1/H. Hardly six months had passed when his services were again terminated on 12.8.1998 vide letter Exhibit PW1/J. The reason assigned for terminating the services of the workman was that there was no work available in the college. It was also mentioned that he was being paid one month's salary in lieu of notice i.e. Rs.1200/- vide cheque dated 12.8.1998. It is on account of the said termination of service by the Management which led to making of a reference, which read “whether the termination of services of Ram Niwas is justified and if not, to what relief he is entitled to?” Both the parties C.W.P.No.10131 of 2009 -5- submitted their pleadings before the Labour court and thereafter led their respective evidence. The Labour Court on consideration of the evidence led by the parties, passed the impugned Award dated 11.2.2009 (Annexure P-6) which is under challenge in the present writ petition. The contention of the counsel for the petitioner that the Award is beyond the reference is not acceptable. The matter referred to the Labour Court for adjudication was whether the termination of the services of Ram Niwas was justified and if not, to what relief he is entitled to? This reference brings within its ambit all aspects with regard to the termination of the service of the workman which are either legal or factual, depending upon the statutory requirements which would, thus, include the stand taken by the workman as well as the Management. It may be that in the demand notice, the claim of the workman was that his services had been terminated in violation of Section 25-F of the Act but nevertheless, when a specific stand had been taken by the Management in their written statement and in their evidence before the Labour Court that his services were terminated as the same were no longer required and his appointment was not on the sanctioned post, the Labour Court was required to adjudicate upon the same. On consideration of the evidence led by the Management and the workman, the Labour Court has come to a conclusion that the Management has failed to prove that the initial appointment of the workman or his continuance on the post of Peon was against an unsanctioned post. It has further come in cross-examination of Rajni Bali MW-1, Principal of the College, that one person had been appointed in the year 1998 against the sanctioned post of Peon, although the workman was available for being adjusted against that post. It would not be out of way to mention here that the Award dated C.W.P.No.10131 of 2009 -6- 14.02.1997 had already been passed by the Labour Court in favour of the workman holding his termination in April 1994 by the petitioner- Management as illegal and reinstating the workman in service with continuity of service. It was not the case of the Management before the Labour Court that the appointment of the workman was not in consonance with the Rules governing the service, the appointment of the workman was, thus, in accordance with the Rules governing the service. The stand of the Management has been rightly rejected that the appointment of the workman was not against a sanctioned post. That apart, the Management has failed to produce any record to suggest or prove as to whether the appointment of the respondent-workman was against an unsanctioned post. Strangely enough, the Management has not even shown or proved the total strength of staff with the Management and the break-up of the posts i.e. the sanctioned or unsanctioned posts, their number and availability or non- availability thereof. The findings, thus, recorded by the Labour Court are fully justified and do not call for any interference by this Court. The second contention as raised by the counsel for the petitioner is that the appointment of the workman-respondent was not in consonance with the Rules as the competent Authority to appoint the Peon was the Principal and not the Secretary of the petitioner-College, again cannot be accepted as this was not the stand of the Management before the Labour Court. It is not a question of jurisdiction but is a question of competence to make appointment which is a question of fact which needs to be proved on the basis of the pleadings and the evidence to be led by the respective parties and, therefore, cannot be allowed to be raised for the first time before this Court in a writ jurisdiction when the adjudication has C.W.P.No.10131 of 2009 -7- already taken place between the parties on the issues framed before the Labour Court. The judgment which has been relied upon by the counsel for the petitioner in Baljeet Singh's case (supra) would be of no help to the petitioner, in the light of the judgments of the Hon'ble Supreme Court of India in Harinder Singh's case (supra) and Ramesh Kumar's case (supra) wherein the Hon'ble Supreme Court has on this very issue held that this plea cannot be taken for the first time before the High Court after an Award has been passed by the Labour Court and that stand having not been taken before the Labour Court. The contention of the petitioner cannot, thus, be accepted. In view of the above, I do not find any merit in the present writ petitions as there is no illegality or irregularity which has been committed by the Labour Court while passing the impugned Award dated 11.2.2009 (Annexure P-6) which would call for any interference by this Court in exercise of its writ jurisdiction. Dismissed. February 17, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE