LPA No.1040 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. LPA No.1040 of 2009 in in CWP No.5120 of 1992 Date of decision: 21.10.2009 The Haryana State Federation of Consumer Cooperative Whole Sale Stores Ltd.(CONFED). ..Appellant. vs. The Presiding Officer Labour Court, Chandigarh and another. ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR. --- Present: Mr.Vijay Pal, Advocate, for the appellant. -- J.S.KHEHAR,J. (Oral) Through the instant Letters Patent Appeal the appellant i.e., the Haryana State Federation of Consumer Cooperative Whole Sale Stores Ltd. (hereinafter referred to as “the CONFED”) has preferred this Letters Patent Appeal, so as to impugn the order passed by a learned Single Judge of this Court dated 30.1.2009 while disposing of CWP No.5120 of 1992. The first contention advanced by the learned counsel for the appellant emerges from section 2(oo)(bb) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). Based on the aforesaid provision, it is the vehement contention of the learned counsel for the appellant, that the respondent-workman was appointed for a specific period of six months commencing from 24.4.1987 to 23.10.1987. Based on the aforesaid express tenure of appointment, it is the contention of the learned counsel for the appellant, that the provisions of section 25-F of the Act, LPA No.1040 of 2009 2 could not have been invoked by respondent as the action of dispensing the services of the respondent-workman on 23.10.1987 cannot be treated and termed as retrenchment. Although the aforesaid contention seems to be attractive on first blush, it is conceded by the learned counsel for the appellant, that the respondent-workman was engaged repeatedly from 2.3.1985 to 23.10.1987 for periods of 89 days and 180 days with notional breaks. In view of the above, it is apparent, that the action of the appellant in engaging the services of the respondent-workman for the specified period depicted above (24.4.1987 to 23.10.1987) was with the pointed aim of depriving the respondent-workman of the benefit of section 25-F of the Act. This action of the appellant obviously amounts to an unfair labour practice. In view of the above, it is not possible for us to accept the contention raised by the learned counsel for the appellant based on section 2(oo)(bb) of the Act. The second contention advanced by the learned counsel for the appellant was based on a notice issued in the Tribune dated 23.11.1987 whereby it is alleged that the respondent-workman was actually issued a cheque in the sum of Rs.664.40 in lieu of one month wages and a further sum of Rs.1016.60 as retrenchment compensation under section 25-F of the Act. It is, therefore, the contention of the learned counsel for the appellant, that the mandatory provisions of section 25-F of the Act, were duly complied with whilst retrenching the respondent-workman from service. It is not possible for us to accept the instant contention on account of the fact, that the learned Single Judge while disposing of CWP No.5120 of 1992, categorically observed that no such defence was raised by the appellant before the Labour Court. This factual position is not LPA No.1040 of 2009 3 disputed by the learned counsel for the appellant. The issue canvassed is obviously a mixed question of law and fact. Since the fact on the basis of which the instant issue was canvassed was not a part of the defence raised by the appellant before the Presiding Officer, Labour Court, Chandigarh, the same cannot be raised at this juncture. Even otherwise, we find no merit in the instant submission. It has now been repeatedly held, that retrenchment compensation payable under section 25-F of the Act, has to be simultaneous with the retrenchment of the employee. Undisputedly, the respondent- workman was retrenched on 23.10.1987. Even if the submission of the learned counsel for the appellant is accepted, it is apparent that the notice issued by the appellant to the respondent-workman is dated 23.11.1987 i.e., well after the retrenchment of the respondent-workman. In the aforesaid view of the matter, we find no justification to entertain the instant claim raised by the appellant. The third submission advanced by the learned counsel for the appellant is, that the Presiding Officer, Labour Court, Chandigarh, awarded back wages to the tune of 70% to the respondent-workman. It is submitted, that the aforesaid determination rendered by the Labour Court has been upheld by this Court. It is the vehement contention of the learned counsel for the appellant, that not more than 50% back wages should have been awarded to the respondent-workman. We have considered the last submission advanced by the learned counsel for the appellant, as has been noticed above. We do not find any merit in the instant contention as well. It cannot be overlooked that the appellant-management had an opportunity to remedy the situation when the respondent-workman issued a demand notice. At that juncture, the management ought to have paid retrenchment LPA No.1040 of 2009 4 compensation, as well as, wages in lieu of the notice period. It however chose to contest the claim of the workman. Second opportunity was available to the management during conciliation proceedings. Yet again, the management contested the claim of the respondent-workman. The third opportunity came in the way of the management when the dispute raised by the respondent-workman, was referred to for adjudication to the Presiding Officer, Labour Court, Chandigarh. Yet again, it was the adament attitude of the management in not accepting its mistake that led the workman to contest his claim by leading evidence. Having succeeded in the same, it is improper for us to deny him the wages awarded to him. No other submission besides those noticed in the foregoing paragraphs, was advanced at the hands of the learned counsel for the appellant. For the reasons recorded hereinabove, we find no merit in this appeal, and the same is accordingly dismissed. An application has also been filed by the appellant for condonation of 140 days' delay in filing the main appeal. Since the main appeal itself has been dismissed on merits, we find no justification in passing any order for the disposal of the aforesaid application. Dismissed. ( J.S.Khehar) Judge ( Mehinder Singh Sullar) Judge October 21, 2009 rk