CWP No. 2718 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2718 of 2010 Date of decision: 14.05.2010 Rakesh Kumar son of Om Parkash ...... PETITIONER VERSUS Additional District and Sessions Judge-cum-Presiding Officer, Labour Court, Gurgaon and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. M.K.Verma, Advocate, for the petitioner. Mr. D.S.Nalwa, Addl. A.G. Haryana, for respondents No. 2 to 4. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present writ petition is for setting aside of the Award dated 06.01.2009 (Annexure P-6), vide which although the learned Labour Court, Ambala has held that the workman had completed more than 240 days in service in 12 preceding months from the date of his termination but has proceeded to hold that Sections 25-F to H of the Industrial Disputes Act would not be applicable to the claim of the petitioner as his termination would be covered by the exception (bb) to Section 2 (oo) of the Industrial Disputes Act. CWP No. 2718 of 2010 2 Counsel for the petitioner contends that the petitioner was appointed as a part-time Water Carrier on 07.09.1994 in the office of the Sub-Divisional Education Officer, Pehowa. He continued to serve the respondents as part-time Water Carrier till his services were terminated on 31.03.2001. He contends that it is an admitted position that the petitioner was appointed on the basis of sponsoring of the name of the petitioner through the Employment Exchange and thereafter holding of an interview. His contention is that as the respondents have admitted that the workman had completed more than 240 days in service in 12 preceding months from the date of his termination and while terminating his services, no notice or pay in lieu thereof or retrenchment compensation was paid to him, the termination of the services of the workman thus is in violation of Section 25-F of the Industrial Disputes Act. His further contention is that the petitioner is entitled to reinstatement in service as there was no specific stand taken by the respondents that the appointment of the petitioner was dehors the statutory Rules and, therefore, the said ground taken by the Labour Court while depriving the petitioner of the benefit of reinstatement and bringing it within the ambit of exception 2 (oo) (bb) of the Industrial Disputes Act, cannot be sustained. He, on this basis, contends that the petitioner deserves to be reinstated in service. In support of this contention, counsel for the petitioner relies upon the judgments of the Hon'ble Supreme Court in the cases of Bachhaj Nahar vs. Nilima Mandal, 2009 (2) Law Herald (SC) 745, Ramesh Kumar vs. State of Haryana, 2010 (1) Law Herald (P&H) 487 (SC), Harjinder Singh vs. Punjab State Warehousing Corporation, 2010 (2) Law Herald (SC) 1002 and Krishan Singh vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), 2010 (2) Law Herald (SC) 1057. CWP No. 2718 of 2010 3 On the other hand, counsel for respondents No. 2 to 4 submits that the services of the petitioner were terminated as per the directions of the Government as there was no sanctioned post in the office of Sub- Divisional Education Officer, Pehowa. As a matter of fact, the said office stood abolished by the Government and the work of the same was being looked after by the Block Education Officer, Pehowa and Distrcit Education Officer, Kurukshetra. No fresh person was employed in place of the petitioner-workman and no persons junior to the petitioner were retained in service, as alleged. His further contention is that at the time of arguments before the Labour Court, the specific plea was taken that the appointment of the petitioner was not on regular basis and he was appointed after issuance of an advertisement and following the other provisions with respect to the written test or interview as in the case of public employment. He contends that the Labour Court has rightly held the appointment of the petitioner dehors the statutory Rules and also since the office of the Sub- Divisional Education Officer stood abolished and the termination of the services of the petitioner was in accordance with his terms of appointment, the findings recorded by the Labour Court are fully justified which do not call for any interference by this Court. I have heard the counsel for the parties and have gone through the records of the case. Counsel for the petitioner has read over the evidence of the Management Witness and his cross-examination. On this basis, he has asserted that the office of the Sub-Divisional Education Officer was not abolished, rather as a matter of fact, merged with the office of the Block Education Officer, Pehowa and Distrcit Education Officer, Kurukshetra. Even if this contention of the counsel for the petitioner is accepted, it would CWP No. 2718 of 2010 4 go without saying that the work, which was being handled in the office of the Sub-Divisional Education Officer, Pehowa where the petitioner was performing his duties as a part-time Water Carrier, came to an end. It is not the case of the petitioner that after the termination of the services of the petitioner, another part-time Water Carrier was appointed in his place. No suggestion to this effect was put to the Management Witness, namely, Rajbir Singh, Block Officer, Pehowa (MW- 1) Nothing has been placed on record which would suggest that the persons junior to the petitioner were retained in service and as a matter of fact, since he was appointed in a particular office i.e. Sub-Divisional Education Officer, Pehowa where there was no sanctioned post, it cannot be held that Section 25-H of the Industrial Disputes Act stood violated. Same would be the position with regard to the reinstatement of the workman. In the absence of the post, the petitioner cannot be put back in service merely because Section 25-F of the Industrial Disputes Act was violated at the time of the termination of his services. The specific stand of the Management before the Labour Court was that there was no sanctioned post, on which the petitioner was appointed in the office of the Sub-Divisional Education Officer, Pehowa. The work which was being handled by the Sub-Divisional Education Officer, Pehowa stood merged with the office of Block Education Officer, Pehowa and Distrcit Education Officer, Kurukshetra. Meaning thereby that the employees on part-time basis working in the office of the Sub-Divisional Education Officer, Pehowa could not be continued in service. Accordingly, their services were terminated. That being so, the claim of the petitioner for reinstatement cannot be accepted. CWP No. 2718 of 2010 5 As regards the contention of the counsel for the petitioner that there was no pleading with regard to the appointment of the petitioner being dehors the statutory Rules or in violation of Articles 14 and 16 of the Constitution of India, suffice it to say that in the absence of there being any post available, even if such a plea was not taken by the Management before the Labour Court, it would not entitle him to the benefit of reinstatement when there was no post available on which he can be put back in service. The Management, as is apparent from the Award passed by the Labour Court, did press into service at the time of arguments the point that the appointment of the petitioner was not in accordance with the statutory Rules governing the service. If that be so and it not being the case of the petitioner that his appointment was in accordance with and in consonance with the statutory Rules governing the service, the ratio of the judgments, on which reliance has been placed by the counsel for the petitioner, cannot be made applicable to the case in hand. In the case of Harjinder Singh vs. Punjab State Warehousing Corporation (supra), the Hon'ble Supreme Court had held that the plea of the appointment of the petitioner being dehors the statutory Rules and in violation of Articles 14 and 16 of the Constitution of India, would not be permitted to be taken in the High Court for the first time. The Hon'ble Supreme Court, in para No. 11, has held as follows:- “11. xxx xxx xxx While doing so, the learned Single Judge failed to notice that in 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 CWP No. 2718 of 2010 6 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.” Similar is the position in the case of Ramesh Kumar vs. State of Haryana (supra), where the plea with regard to the appointment of the petitioner being dehors the statutory Rules was taken by the State before the Hon'ble Supreme Court for the first time. The judgment in the case of Krishan Singh vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) (supra) would not be of any help to the petitioner where again no reinstatement could be granted because the post being not available as in the case in hand. The petitioner was appointed as a part-time Water Carrier on 07.09.1994 and he continued as such till 31.03.2001. Admittedly he completed more than 240 days in service in 12 preceding months from the date of his termination. No retrenchment compensation, notice or pay in CWP No. 2718 of 2010 7 lieu thereof was given to the petitioner at the time of termination of his services, which is mandated under Section 25-F of the Industrial Disputes Act for retrenchment to be in accordance with law. Thus, the termination of the services of the petitioner is in violation of Section 25-F of the Industrial Disputes Act. Since there is no post available with the respondents at the place where the petitioner was appointed nor is there any evidence on record that such a post was available in the office of the Block Education Officer, Pehowa and District Education Officer, Kurukshetra, the petitioner cannot be granted the relief of reinstatement in service. In the light of the judgment of the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshev Deb, 2008 (4) SCT 33 and a Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788, the workman shall, however, be entitled to compensation to settle the equities between the parties as it has been held that for termination of the service in violation of Section 25-F of the Industrial Disputes Act, when a workman cannot be reinstated he would be entitled to compensation. Keeping in view the nature of appointment of the petitioner i.e part-time Sweeper which was from 07.09.1994 to 31.03.2001, the petitioner is held entitled to a compensation of Rs. 50,000/- to be paid to the petitioner within a period of two months from the date of receipt of a certified copy of this order. Disposed of accordingly. ( AUGUSTINE GEORGE MASIH ) JUDGE May 14, 2010 pj