IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. NO. 857 OF 2010 DATE OF DECISION : OCTOBER 07, 2010. Dev Chand …Appellant Versus Presiding Officer, Industrial Tribunal-cum-Labour Court-II, Gurgaon, and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. P.K. Mutneja, Advocate, for the appellant. Ms. Mamta Singhwal Talwar, AAG Haryana. 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 15.02.2010, passed by the learned Single Judge of this Court while disposing of the writ petition filed by the workman-appellant. 2. Facts in detail are not being recounted and it is suffice to mention that the workman-appellant was appointed as a Chowkidar in September, 1993. On account of non payment of salary, he raised the demand for payment of salary for the month of September, 1995, and November, 1995 to July, 1996, which was not paid. However, his services were firstly terminated on 01.10.1995. Thereafter, he was taken back in service on 01.11.1995 and continued working as such till July, 1996. He was not paid wages for the period from November, 1995 to July, 1996, and on demand being raised by him, his services L.P.A. No. 857 of 2010 were again dis-continued. After a gap of about nine months, the workman-appellant was taken back in service to perform the duties of a Prcaharak from 01.04.1997, where he worked upto 30.09.1997. Again, he was not paid wages for the whole period and on demand being raised, his services were dis-continued. 3. Before the Labour Court, statement of claim was filed by the workman-appellant on 22.08.2000 and the defence of the establishment-respondent was struck off on 26.03.2004. Accordingly, no plea much less the plea of employing the workman- appellant in contravention of the statutory rules and constitutional requirement of Articles 14 and 16 (1) of the Constitution were not raised. However, despite absence of the pleadings, the Labour Court held against the workman-appellant and opined that the workman- appellant was employed on the post of Chowkidar and later on, on the post of Pracharak without complying with the requirement of statutory rules and Articles 14 and 16 (1) of the Constitution. 4. The learned Single Judge placing reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Harjinder Singh v. Punjab State Warehousing Corporation, JT 2010 (1) SC 598, held that if a party to the dispute raises a contention, then it has to be initially pleaded and then prove by adducing evidence. In the absence of any pleading no evidence could be taken into account as a proof of an un-pleaded fact. The learned Single Judge found that the evidence of the establishment-respondent having been struck off due to non filing of the written statement to the statement of claim 2 L.P.A. No. 857 of 2010 entered by the workman-appellant and no plea is deemed to have been raised by the establishment-respondent, therefore, the findings recorded by the Labour Court to the effect that the appointment of the workman-appellant was not in consonance with law, could not be sustained and the learned Single Judge set aside those findings. 5. However, the learned Single Judge found that the workman-appellant did not complete 240 days preceding the date of termination in 12 months. However, the aforesaid finding would not be sustainable as the workman-appellant had worked from September, 1993 to 30.09.1995. The first termination of the workman-appellant was on 01.10.1995. However, he was re- employed on 01.11.1995 and he continued working till July, 1996. It is apparent that at the time of first termination on 01.10.1995, the workman-appellant had apparently completed more than 240 days. Likewise in the second spell from 01.11.1995 to July, 1996, again the workman-appellant had completed more than 240 days, therefore, it could not be argued that the workman-appellant had not completed 240 days preceding the dates of termination. However, in order to put an end to the whole controversy and in the interest of industrial peace, we passed an order on 16.09.2010, asking the establishment- respondent through their counsel to pay some lump sum amount to the workman-appellant in lieu of his reinstatement. The order dated 16.09.2010 reads as under :- “During the course of arguments, Mr. P.K. Mutneja, learned counsel for the appellant has argued that provisions of Section 25F of the 3 L.P.A. No. 857 of 2010 Industrial Disputes Act, 1947, were required to be complied with and nothing has been paid to the appellant-workman in lieu of retrenchment compensation or one month's salary before order of retrenchment. According to the learned counsel, the learned Single Judge has merely asked the respondents to pay the arrears of salary for which the workman-appellant had worked. The retrenchment of the workman without paying salary itself is unfair labour practice and, therefore, the compensation in the aforesaid terms was required to be paid. Having heard learned counsel, we are of the view that ends of justice would be met if some lump sum amount is paid to the workman-appellant because the learned Single Judge has pointed out that his appointment as Chowkidar or later as Pracharak was not consistent with the provisions of law as merely it was a back door entry. Faced with this situation, learned State counsel requests for some time to seek instructions so as to make offer of lump sum amount. List again on 23.09.2010.” 6. However, the learned State counsel placed on record a letter dated 06.10.2010, sent by the Principal Chief Conservator of Forests, Haryana, Panchkula, to the effect that the department would pay the retrenchment compensation to the workman-appellant for a period of three years as per the requirement of Industrial Disputes Act, 1947. 7. Having heard learned counsel for the parties and keeping in view the totality of facts and circumstances, we are of the view that 4 L.P.A. No. 857 of 2010 for the sake of industrial peace, the workman-appellant may be paid a sum of Rs. 20,000/- in addition to the direction issued by the learned Single Judge for payment of his arrear of salary. It is pertinent to mention that the learned Single Judge has held that the workman- appellant is entitled to wages for August and September, 1995; November 1995 to July 1996, and March 1997 to September, 1997. The order of the learned Single Judge is clarified that the workman- appellant shall be entitled to wages at the rates at which he was drawing on the relevant dates. Accordingly, the establishment- respondents are directed to calculate the wages at the aforesaid rates and pay the arrears of wages within a period of three months from the date of receipt of copy of this order, failing which the workman- appellant shall be entitled to interest @ 12% per annum. Likewise, he shall also be paid a sum of Rs. 20,000/- in addition to the wages as full and final settlement of his all claims. 8. The appeal stands disposed of in above terms. (M.M. KUMAR) JUDGE (RITU BAHRI) October 07, 2010 JUDGE sjks. 5