LPA No. 796 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA 796 No. of 2010 (O&M) Date of decision 13 .7.2010 Haryana State Industrial Development Corporation Ltd (now HSIIDC) ......Appellant Versus Presiding Officer, Industrial Tribunal cum Labour Court, Hisar and another ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. Kamal Sehgal ,Advocate for the appellant 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The instant appeal filed under Clause X of the Letters Patent by the management- Haryana State Industrial Development Corporation Ltd (HSIDC) is directed against judgement dated dated 4.12.2009 passed by the learned Single Judge in CWP No. 14691 of 2003. There were two issues before the learned Single Judge. The first issue was whether the principle of audi alteram partem will be attracted when on the second application made by the workman, reference has been made without notice to the management after the first application has been declined. The second issue pertains to violation of principle of 'last come first go' and violation of Section 25 G of the Industrial Disputes Act, 1947. On the first issue, the learned Single Judge placed reliance on a judgement of Hon'ble the Supreme Court rendered in the case of Sultan Singh v. State of Haryana (1996) 2 SCC 66 and held that the State Government was required to form an opinion whether the industrial dispute LPA No. 796 of 2010 (O&M) 2 existed or not. It was then to decide whether to refuse or make reference. In case it decides to make a reference there was no requirement of law to record or communicate the reasons for doing so because the finding of making reference was only administrative and not quasi judicial. On the second question, the learned Single Judge in para 5 has held as under: “5. As regards the contention of the Management that the junior workman in an other unit who was retained could not be stated to be in violation of Section 25-G, it is also liable to be rejected. The test invariably is, whether the post is transferable. The management was bound under the Industrial Dispute Rules to maintain a common seniority list. It is an admitted case that the workman who had been originally employed in Chickanwas had been transferred to Sirsa and in that transferred place a person who had joined subsequently, and hence a junior to him, had been retained. The termination of the workman who was senior and at the same time, retaining the services of the junior clearly breached the mandate of Section 25-G. The Labour Court had come to a correct conclusion in that regard and the decision for reinstatement under circumstances was therefore justified. The decision of the Labour Court fully accords with law and there is no scope for interference with the same.” Mr. Kamal Sehgal, learned counsel for the management- HSIDC has argued on issue no. 2 that the project at Chickanwas was completed and the workman- respondent was transferred to a new project of the management- HSIDC at Sirsa and Julana. The services of the workman were retrenched LPA No. 796 of 2010 (O&M) 3 on completion of construction work of Industrial Shed at Chickanws after due compliance of the provisions of Section 25 F of the Act. Having heard the learned counsel, we are of the considered view that there is no merit in the submission. A perusal of the reply to the statement of claim filed by the management- HSIDC does not show any pleading to the effect that services rendered by the workman- respondent are on two different projects. On the contrary the stand taken is that the workman- respondent has worked with the management- HSIDC from 1995 to 1999 and the following table from para 2 of the written statement on merits is reproduced: S.No. Year Number of days 1 1995 206 2 1996 249 3 1997 204 4 1998 345 5 1999 142 In view of the above, the appeal does not merit admission and the same is dismissed. (M.M.Kumar) Judge (A. N. Jindal ) 13.7.2010 Judge okg