L.P.A. No. 361 of 2011(O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh … L.P.A. No. 361 of 2011(O&M) Date of decision: 12.10.2011 Harwinder Singh ..Appellant Versus Director Animal Husbandry, Punjab and others ..Respondents Coram: Hon’ble the Acting Chief Justice Hon'ble Mr. Justice Rajiv Narain Raina Present: Mr. L.S. Padda, Advocate for Mr. R.K.Arya, Advocate for the Appellant. Mr. Amol Rattan Singh, Addl. A.G.Punjab. .. 1. To be referred to the reporters or not ? 2. Whether the judgment should be reported in the digest ? Rajiv Narain Raina,J. 1. This Letters Patent Appeal under Clause X of the Letters Patent,1919 arises out of the order passed by the learned Single Judge dated 8.4.2010 setting aside the award of the Labour Court, Gurdaspur answering the reference in favour of the appellant-workman and granting him relief of reinstatement with 50 % back wages from the date of reference, i.e., 18.9.2003 till actual reinstatement on the finding that the termination of the services of the workman was illegal and unjustified for violation of Section 25-F of the Industrial Disputes Act, 1947(for short,”the Act”. 2. The brief facts are that the appellant-workman had found employment in Class IV post on 17.7.1997 in the Department of Animal L.P.A. No. 361 of 2011(O&M) 2 Husbandry,Punjab. His services were sought to be terminated on 27.7.1999 by an order passed on 23.7.1999. It appears that the order was challenged by some colleagues before this Court and in compliance of an interim order, the petitioners in that case were reinstated to service. Since the appellant was similarly placed he was kept back in service. Those proceedings in this Court ended on 11.1.1999 which led the department to serve fresh notice on 21.10.1999 again proposing to terminate his services. The workman had filed his reply and on consideration thereof, the services of the petitioner came to be terminated finally on 11.11.1999. 3. Aggrieved by the termination order, the appellant-workman sought an industrial reference and that is how reference No.261/03 was made by the appropriate government for adjudication of the dispute by the Labour Court, Gurdaspur. On conclusion of the proceedings before the Labour Court, an award was passed, referred to above in favour of the workman. 4. The Director, Animal Husbandry, feeling aggrieved by the award of the Labour Court called it in question in CWP No.5232 of 2010 from which the present appeal arises. It was not a disputed fact that at the time of termination of services of the appellant-workman, there was non compliance of the mandatory provisions of Section 25-F of the Act inasmuch as no notice was given nor retrenchment compensation was paid. 5. Learned Single Judge has relied upon the cases of Ghaziabad Development Authority and another versus Ashok Kumar and another 2008(4) SCC 261, Mahboob Deepak versus Nagar Panchayat, Gajraula (2008)1 SCC 575, M.P. Administration Versus Tribhuwan (2007) 9 SCC 748 and State of M.P. and others Versus Lalit Kumar Verma (2007) 1 SCC 575, as also the judgment of the Hon'ble L.P.A. No. 361 of 2011(O&M) 3 Supreme Court in the case of Secretary, State of Karnataka Versus Uma Devi, 2006(4) S.C.C. 1. to hold that when a workman is not appointed as per statutory rules governing the service, he cannot be reinstated on account of violation of the provisions of Section 25-F of the Industrial Disputes Act. In the circumstances, the learned Single Judge while relying upon the decision of the Supreme Court in the case of Telecom District Manager and others Versus Kesheb Deb 2008(4) SCT 33 and a Division Bench of this Court in the case of State of Haryana v. Ishwar Singh and another, reported in 2008(3) SCT 788, has found it appropriate to mould the relief and order compensation for wrongful termination by quantifying `20000/- as a just and appropriate amount which discharges all liabilities of the respondent- department. 6. The respondent-department filed its reply to the statement of claim filed by the workman in which it took the stand that the selection and appointment of the workman was illegal, since it has been made by the officiating Deputy Director without the approval and without selection of approved selection committee. The case was not that the workman was not eligible under the rules for the post to which he was appointed. It is also not in dispute that the post was advertised in a local newspaper called “Chardikalan”. 7. When this matter came up for hearing, Mr Amol Rattan Singh, Addl. A.G. Punjab accepted notice of the petition and with the consent of parties, the main appeal itself was taken up for final hearing after condoning the delay in filing the appeal preferred by the workman. 8. The appellant has relied upon a recent decision of the Supreme Court rendered in Harjinder Singh Versus Punjab State Warehousing Corporation decided on 5.1.2010 reported in JT 2010(1) 598 (which is also reported in 2010(3) SCC 192 and AIR 2010(SC) 1116) L.P.A. No. 361 of 2011(O&M) 4 to contend that the impugned decision of the learned Single Judge is not in consonance with the law laid down therein. The Supreme Court in this exhaustive and erudite decision have traced the social philosophy behind labour laws and limits of the jurisdiction of the High Court in examining awards passed by the Labour Court and that it does not sit as an appellate Court. It has also dwelt on the issue of violation of service rules at the stage of initial appointment. 9. The argument before the learned Single Judge centered around the initial appointment of the workman being contrary to the service regulations and the court found that the award of reinstatement was not sustainable as the initial appointment itself was in violation of Articles 14 and 16. The workman had claimed only industrial rights exclusively triable by the industrial adjudicator. He made no claim for regularization of service following defect in appointment or any other service benefit. 10. In Harjinder Singh's case supra, compliance of Section 25-F of the Act at the time of retrenchment was admitted. However, it was found that the principle of equality enshrined in Section 2-G of the Act was violated and persons junior to the appellant therein were allowed to continue in service. The employer in that case had for the first time argued before the High Court that the initial engagement/appointment of the workman was illegal and therefore, there should be no award of reinstatement. The Hon'ble Supreme Court has settled the law in this case that the High Court would not be justified in entertaining a new plea 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 workman of what may be the only source of his own sustainence and that of his family, and consequently,it has been held that the High Court was not justified to entertain the plea of the correctness of the initial appointment and convert L.P.A. No. 361 of 2011(O&M) 5 the case into one of payment of compensation in lieu of reinstatement. We refer to paras 30 and 31 of the judgment in Harjinder Singh's case which can profitably be quoted below in order to determine what relief should be granted to the appellant; “30.Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalization are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only L.P.A. No. 361 of 2011(O&M) 6 source of his livelihood. 31.It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private.” 11. In the present case, Section 2-G of the Act is not involved. However, violation of Section 25-F of the Act is writ large and is established on record. Furthermore in the present case, the respondent-Department before the Labour Court took the objection with regard to the initial appointment of the workman. Notwithstanding this contention of the department, the workman's services could not be terminated without complying with Section 25-F of the Act in view of the ratio of Harjinder Singh's case. The Labour Court found that procedure for making selection was followed. There were instructions of the State Government dated 5.12.1996 in operation before the initial appointment of the appellant was made; wherein vacancies/posts including (Class IV posts as in this case) were taken out of the purview of the Subordinate Services Selection Board and selection was made permissible through duly constituted Departmental Selection Committees at the State and district level. If the officiating Deputy Director made some departure here or there, the appellant was not at fault. He had responded to a public notice and opposed himself for employment L.P.A. No. 361 of 2011(O&M) 7 and was successful. 12. In the facts and circumstances of the case, we find that the initial appointment of the appellant cannot be said to be illegal. It would at worst be irregular, therefore, capable of being cured. 13. We are constrained to say that it was the sacrosanct duty of both the State and the petitioner to have brought the said judgment in Harjinder Singh's case (supra) to the notice of the learned Single Judge but there was failure to do so. 14. We have no doubt that the appeal deserves to be allowed by setting aside the reasoning of the learned Single Judge and maintain the award passed by the Labour Court in view of the law enunciated in Harjinder Singh’s case (supra). 15. In view of the above, the appeal is allowed, the order of the learned Single judge is set aside. The award of the Labour Court would operate. No costs. (M.M.KUMAR) (RAJIV NARAIN RAINA) ACTING CHIEF JUSTICE JUDGE October 12,2011 nk