Letters Patent Appeal No.603 of 2010 (O&M) 1 IN THE HIGHCOURT OF PUNJAB AND HARYANA, CHANDIGARH Letters Patent Appeal No. 603 of 2010 (O&M) Date of Decision: 07.12.2010 Kirpal Singh ..Appellant Versus Superintending Engineer Mechanical Circle, RSD Shahpur Kandi and another ..Respondents CORAM: HON’BLE MR. JUSTICE M.K.KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present:- Mr. K.S.Kapur, Advocate for the appellant. Mr. Suvir Sehgal, Addl. Advocate General, Punjab for respondent No.1. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest.? M.M.KUMAR, J. 1. The instant appeal filed under clause X of the Letters Patent is directed against judgment dated 26.3.3009 rendered by the learned Single Judge setting aside award dated 6.5.1993 passed by the Labour Court, Gurdaspur. The Labour Court in its award has answered the reference in favour of the workman-appellant holding him entitled to reinstatement with continuity of service with full back wages from the date of demand notice which was issued on 12.10.1988 till the date of reinstatement. The basic reason, which weighed with the learned Single Judge, for setting aside the award granting relief of reinstatement as well as back wages is that initially, appointment of the workman was not in accordance with the statutory rules as the post was not advertised and no selection process was undertaken. In support of the aforesaid Letters Patent Appeal No.603 of 2010 (O&M) 2 view, the learned Single Judge has placed reliance on the judgments of Hon’ble the Supreme Court in Ghaziabad Development Authority and another Vs. Ashok Kumar and another, 2008 (4) SCC 261, Mehboob Deepak Vs. Nagar Panchayat, Gajraula (2008) 1 SCC 575, M.P. Administration Vs. Tribhuwan, (2007) 9 SCC 748 and other authorities. Accordingly. a sum of Rs.15,000/- was assessed as compensation in lieu of his retrenchment without payment of any back wages. 2. We have heard learned counsel for the parties at length and are of the view that the learned Single Judge has fallen in an error by accepting the contention of the management-respondent that appointment of the workman-appellant was in contravention of Articles 14 and 16 (1) of the Constitution, inasmuch as no selection process by considering the competing claims of eligible persons for the post of Dumper Operator was undertaken. Our view is based on the facts that before the Labour Court there were no pleadings, no evidence, no finding and therefore, it would not be possible for the management-respondent to raise such an issue for the first time before the writ court. 3. At this stage, it would be appropriate to advert to the findings recorded by the Labour Court. In para 7 of the award, the Labour Court has held that the workman-appellant had completed more than one year continuous service immediately preceding the date of his termination. There was non-compliance of the provision of Section 25-F of the Industrial Disputes Act, 1947 because apart from one month pay, the amount equal to fifteen days' average pay for Letters Patent Appeal No.603 of 2010 (O&M) 3 every completed year of continuous service was not paid which was mandatory to be paid under the statutory provision. The management-respondent failed to pay that amount to the workman- appellant. The management-respondent also made an attempt to raise an issue with regard to delay in making the claim by the workman-appellant. The Labour Court rejecting the contention concerning and has held that there was sufficient explanation for the workman-appellant for the delay in approaching the Labour Court. It is, thus, evident that from paras 7 and 8 or any other para of the award of the Labour Court that no issue with regard to an illegal entry into the service has been raised. There are neither any pleadings nor evidence adduced by the parties on any such issue. In somewhat similar circumstances, the Hon’ble Supreme Court in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192 has set aside the view taken by this Court because it was based on the assumption that the workman was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 (1) of the Constitution. Without any issue having been raised before the Labour Court, Their Lordships of Hon’ble the Supreme Court held in the following para 14 of the judgment, which reads as under: .......... “Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs.87,582 by assuming that the appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While Letters Patent Appeal No.603 of 2010 (O&M) 4 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 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 overturn 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.” 4. A perusal of the aforesaid observations made by Hon'ble the Supreme Court would show that in the absence of any pleadings before the Labour Court with regard to back door entry or non- compliance of the provisions of Articles 14 and 16 (1) of the Constitution or Rules applicable for recruitment and evidence adduced before the Labour Court, it was not possible for the learned Single Judge to assume such facts and set aside the award on that account. Letters Patent Appeal No.603 of 2010 (O&M) 5 5. It is further pertinent to mention that in para 21 of its judgment, Hon’ble the Supreme Court also cautioned the High Courts about their Socio economic duty that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals as set out in the Preamble of the Constitution and the provisions contained in part IV thereof in general and Articles 38, 39 (a) to (e) 43 and 43-A in particular which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also to ensure that workers get their dues. Therefore, the view of the learned Single is not sustainable in the eyes of law. 6. For all the aforesaid reasons, judgment dated 26.3.2009 passed by the learned Single Judge is hereby set aside. Award of the Labour Court dated 6.5.1993 (P-1) is restored and the workman- appellant is held entitled to reinstatement and back wages from the date of the award passed by the Labour Court which is dated 6.5.1993. Appeal is disposed of in the above terms. ( M.M.KUMAR ) JUDGE 7.12.2010 VK ( RITU BAHRI ) JUDGE