IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 2605 of 2009. Date of Decision : April 26, 2010. The Divisional Forest Officer, Social Forestry Division, Bhiwani now The Divisional Forest Officer (Territorial), Bhiwani. ...... Petitioner . Versus. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak, and another ..... Respondents . C.W.P. No. 3252 of 2009. Date of Decision : April 26, 2010. The Divisional Forest Officer (Territorial), Bhiwani ...... Petitioner . Versus. Sh. Ishwar, and another ..... Respondents . C.W.P. No. 4359 of 2009. Date of Decision : April 26, 2010. Divisional Forest Officer (Territorial), Rohtak ...... Petitioner . Versus. Smt. Nirmala, and another ..... Respondents . C.W.P. No. 2665 of 2009. Date of Decision : April 26, 2010. Divisional Forest Officer (Territorial), Rohtak. ...... Petitioner . Versus. Shri Jagbir Singh and another ..... Respondents . C.W.P. No. 2605 of 2009 and others. -2- CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Addl. A.G. Haryana, for the petitioner(s) (in all the petitions). Mr. Rakesh Nehra, Advocate, for respondent/Worklady/Workman No. 1/2 (in all the petitions). AUGUSTINE GEORGE MASIH, J. (ORAL). By this Order, I propose to dispose of C.W.P. No. 2605 of 2009 titled as The Divisional Forest Officer, Social Forestry Division, Bhiwani now the Divisional Forest Officer (Territorial), Bhiwani Versus The Presiding Officer, Labour Court, Rohtak, and another, C.W.P. No. 3252 of 2009 titled as The Divisional Forest Officer (Territorial), Bhiwani Versus Sh. Ishwar, and another, C.W.P. No. 4359 of 2009 titled as Divisional Forest Officer (Territorial), Rohtak Versus Smt. Nirmala, and another, and C.W.P. no. 2665 of 2009 titled as Divisional Forest Officer (Territorial), Rohtak Versus Shri Jagbir Singh and another, as counsel for the parties have stated that common questions of law and the pleadings involved in the present writ petitions are same. In these writ petitions, the challenge has been put to the Award passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which the references had been answered in favour of the Worklady/Workman, holding them entitled to reinstatement in service with continuity thereof and 50% back wages from the date of demand notice. Counsel for the petitioner has, while referring to the facts in C.W.P. No. 2605 of 2009 submitted that the respondent/Worklady as per her assertion before the Labour Court, was appointed as a Beldar-cum-Mali on daily wage basis on 15.07.1985 and continued to work with the petitioner/Management till 31.03.2000. The respondent/Worklady was terminated from service on 01.04.2000 without any notice or notice pay nor retrenchment compensation was paid to her in violation of Section 25-F of the C.W.P. No. 2605 of 2009 and others. -3- Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”). On the basis of these assertions, the demand notice was preferred by the respondent/Worklady on 13.11.2000 (Annexure-P-2). As the petitioner/Management could not produce the records as summoned by the Labour Court on an application moved by the respondent/Worklady and it was stated by WW-2/Ramesh Kumar, o/o DFO Bhiwani, that he could not find the records summoned despite search nor could he produce the same in future, the Labour Court had proceeded to draw an adverse inference against the petitioner/Management and held that the respondent/Worklady had continuously worked from 15.07.1985 to 31.03.2000 and as the Management Witness had not disputed that no notice was served or notice pay paid nor retrenchment compensation was paid to her at the time of termination, thus, there was violation of the provisions of Section 25-F of the Act. Since there was non compliance of the provisions of Section 25-F of the Act, the respondent/Worklady was held entitled to reinstatement in service with continuity thereof and 50% back wages from the date of demand notice, i.e., dated 13.11.2000 (Annexure-P-2). On the passing of the Award, the same having not been found to in accordance with law, the present writ petition has been preferred by the petitioner. Counsel for the petitioner contends that the appointment of the respondent/Worklady was de hors the statutory Rules, governing the service and in violation of Articles 14 and 16 of the Constitution of India and, therefore, the respondent/Worklady was not entitled to reinstatement in service on the previous past with continuity thereof. His submission is that even if the adverse inference, as had been drawn by the Labour Court, is taken to be in accordance with law as the petitioner/Management had failed to produce the summoned records, which were relevant for the adjudication of C.W.P. No. 2605 of 2009 and others. -4- the case, but still for claiming reinstatement in service, the respondent/Worklady was required to contend that the work still existed and since no such assertion had been made by the respondent/Worklady in her demand notice or claim statement, no reinstatement in service could have been granted by the Labour Court. He contends that merely because Section 25-F of the Act had been violated by the petitioner/Management would not ipso facto entitle the respondent/Worklady to be reinstated in service. For reinstatement, the Labour Court was required to go into the nature of the appointment, the availability of the post as also the availability of the work with the petitioner/Management, which factors have not been taken into consideration by the Labour Court in reinstating the respondent/Worklady. Even if the termination of the services of the respondent/Worklady was not in accordance with the provisions of Section 25-F of the Act, the respondent/Worklady at the most would be entitled to compensation for the period she had put in work with the petitioner/Management. In support of this contention, counsel for the petitioner/Management relies upon the judgments of Hon'ble the Supreme Court in the case of Madhyamik Shiksha Parishad, U.P. Versus Anil Kumar Mishra and others 2005 SCC (Labour and Service) 628, Municipal Council, Sujanpur Versus Surinder Kumar 2006 SCC (L/S) 967, and Haryana Urban Development Authority Versus Om Pal 2007 (2) SCC (L/S) 255. He on this basis contends that the Award passed by the Labour Court deserves to be set aside and cannot be sustained. On the other hand, counsel for respondent/Worklady contends that the respondent/Worklady in her demand notice dated 13.11.2000 (Annexure-P-2) had specifically claimed reinstatement in service. In response to the claim statement filed by the respondent/Worklady, the C.W.P. No. 2605 of 2009 and others. -5- petitioner/Management had in para-7 of the reply stated that the services of the respondent/Worklady were never terminated by the petitioner/Management. He on this basis contends that since the specific stand of the petitioner/Management was that it had not terminated the services of the Worklady, but she had herself not come at work on her own, this itself shows that the work was available with the petitioner/Management. He contends that the petitioner/Management is a Department of Forest and work is always available with it. Even in the present writ petition preferred by the petitioner/Management, it has not been pleaded that there is/was no work available with it, which would show that the contention of counsel for the petitioner/Management is without any basis. He submits that the petitioner/Management had before the Labour Court not pleaded that the appointment of the Worklady was de hors the statutory Rules, governing the service or in violation of the Articles 14 and 16 of the Constitution of India. He contends that this plea cannot be allowed to be raised in the present writ proceedings, preferred by the petitioner/Management challenging the Award. I have heard counsel for the parties and have gone through the records of the case. The first contention of counsel for the petitioner/Management that the appointment of the respondent/Worklady was not in consonance with the statutory Rules, governing the service and in violation of Articles 14 and 16 of the Constitution of India and, therefore, is not entitled to reinstatement in service, suffice it to say that the said plea cannot be allowed to be taken in the present writ petition, preferred under Article 226 of the Constitution of India, where the Award passed by the Labour Court is under challenge. Similar plea as has been raised by counsel for the petitioner/Management was considered by this Court in C.W.P. No. 7227 of 2009 titled as Executive Engineer C.W.P. No. 2605 of 2009 and others. -6- National Highway PWD(B/R) Versus Shri Suresh Kumar and another, decided on 02.03.2010, wherein it was held as follow :- “ The contention of counsel for the petitioner/Management that the appointment of the Workman was de hors the statutory rules and, therefore, is not entitled to reinstatement in service as the appointment was in violation of Articles 14 and 16 of the Constitution of India, also cannot be accepted. Counsel for the Management could not dispute the fact that this ground was neither taken in the written statement filed before the Labour Court nor any evidence was led by the Management in support of this contention or it was argued before the Court below. The only conclusion, therefore, is that there was no issue on this aspect before the Labour Court and the Labour Court was, thus, not called upon to adjudicate upon this matter. The Labour Court had proceeded to decide the matter on the basis of the pleadings and evidence led by the respective parties. There being no illegality or irregularity, which had been committed by the Labour Court in passing its Award dated 30.05.2008 (Annexure-P-4), no interference by this Court is called for. Counsel for the Management relies upon the judgment of Hon'ble the Supreme Court in Civil Appeal No. 229 of 2010, titled as Ramesh Kumar Versus State of Haryana, decided on 13.01.2010, wherein Hon'ble the Supreme Court had rejected the contention of counsel for the State of Haryana that the appointment of the Workman was not in consonance with the statutory Rules, and, therefore, de hors thereof and the Workman, thus, would not be entitled to reinstatement in service on the ground that the said plea was not taken either before the Labour Court or before the High Court and, therefore, was not allowed to be raised before Hon'ble the Supreme Court. He contends that this plea that the appointment of the Workman being de hors the statutory rules governing the service is being taken by the C.W.P. No. 2605 of 2009 and others. -7- Management in the present case, in this Court State, therefore, this plea should be allowed to be raised and made the basis for denying the reinstatement of the Workman in service. This contention of counsel for the petitioner/Management again cannot be accepted for the reason that while exercising jurisdiction under Article 226 of the Constitution of India and that too when an Award under challenge is of an Industrial Tribunal/Labour Court, the jurisdiction of this Court is restricted. The writ jurisdiction is to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. It should not be lost sight of the fact that the Court is deciding the validity of the Award passed by the Labour Court. The new plea now sought to be raised by the Management in the present writ petition, in any case, is a mixed question of fact and law, which cannot be allowed to be raised at this stage. The Award of the Labour Court having been passed on the basis of pleadings and evidence led by the respective parties, no fresh pleadings or grounds can be allowed to be taken except purely legal at the stage when writ jurisdiction of this Court is being invoked by the Management. By now it is a settled principle of law and fulfills the requirement of principles of natural justice also that if there is no pleading or raising of a contention, there is no question of substantiating such non-existing contention by evidence, the assertion, which is not pleaded, even if there is evidence to support it, cannot be examined because the other side has no notice of it and if entertained, it would tantamount to giving advantage to one of the parties, cannot be disputed. The rules of fair play demand that a party seeking to establish a contention, which, if proved, would be sufficient to deny relief to the opposite side, is required to be specifically pleaded and then proved also cannot be disputed with as, if there is no pleading, there is no question of proving something, which is not pleaded provided both the parties are aware of that position and despite the C.W.P. No. 2605 of 2009 and others. -8- absence of pleadings both the parties have led evidence on that point and had contested that. In the absence of any pleadings before the Labour Court by the petitioner/Management and there being no evidence on the record nor any issues framed on that count and even no arguments in this regard was advanced before the Labour Court by the petitioner/Management, the Labour Court, thus, did not get any opportunity to consider the issue whether reinstatement should be denied to the respondent/Workman on the ground that his initial appointment was illegal or unconstitutional. If the new plea is allowed to be raised by the petitioner before this Court that would mean opening a new case altogether, which would not be permissible in law. A writ of certiorari can be issued by this Court for correcting errors of jurisdiction committed by the inferior Court or the Tribunal . It can also be issued if the inferior Court or the Tribunal acts illegally or improperly or where the procedure adopted in dealing with the dispute is opposed to the principles of natural justice. A writ can also be issued in cases of error of law, which is apparent on the face of the record having been committed by the Court or Tribunal, but where mix questions of facts and law are involved and there is no pleadings or evidence led by the parties before the Labour Court, the same cannot be allowed to be taken or raised during the proceedings under Article 226 of the Constitution of India. Hon'ble the Supreme Court in the case of Harjinder Singh Versus Punjab State Warehousing Corporation J.T. 2010 (1) S.C. 598, has, while dealing with this very question held that similar plea as has been sought to be raised for the first time before this Court in the writ jurisdiction challenging the Award of the Labour Court cannot be allowed to be raised when in the reply filed on behalf of the Management before the Labour Court, the claim of the Workman for reinstatement in service with back wages was not considered by the Management on the ground that his initial appointment was illegal or unconstitutional. Neither any evidence was produce nor any arguments was advanced in that regard and, therefore, the Labour Court did not get any C.W.P. No. 2605 of 2009 and others. -9- opportunity to consider the issue whether reinstatement should be denied to the Workman by applying the new justice developed by the superior courts in recent years that the Court should not pass an Award which may result in perpetuation of illegality. Para 11.1 of the judgment reads as follows :- “11.1 A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the Corporation that termination of the appellant's service falls within the ambit of Section 2 (oo)(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of Corporation was contrary to Section 25-G of the Act which embodies the rule of last come first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs. 87,582/- by assuming that 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 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 C.W.P. No. 2605 of 2009 and others. -10- 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.” Counsel for the petitioner now contends that Harjinder Singh's case (supra), was decided on 05.01.2010, whereas Civil Appeal No. 229 of 2010 titled as Ramesh Kumar Versus State of Haryana, was decided by Hon'ble the Supreme Court on 13.01.2010. When two coordinate Benches decide a case, the latter judgment shall prevail over the earlier judgment. He on this basis contends that in the case of Ramesh Kumar Versus State of Haryana (supra), Hon'ble the Supreme Court has taken a view that as the State of Haryana had not taken the plea that the appointment of the Workman being de hors the statutory Rules governing the service and in violation of Articles 14 and 16 of the Constitution of India, before the Labour Court and the High Court and was for the first time taken before Hon'ble the Supreme Court, the said plea could not be allowed to be raised, therefore, this Court should allow the petitioner/Management to raise this plea before this Court in the present petition. This contention of counsel for the petitioner is totally misplaced as a perusal of the judgment in the case of Ramesh Kumar Versus State of Haryana (supra), would show that the basic view, which was taken by Hon'ble the Supreme Court, was that no objection was raised by the Department before the Labour Court as also before the High Court. The relevant part of the judgment dealing with this aspect reads as follow :- “........... Though, it was contended that the initial appointment of the appellant was contrary to the recruitment rules and constitutional scheme of employment, admittedly, the said objection was not raised by the Department either before the Labour Court or before the High Court at the first instance. It was only for C.W.P. No. 2605 of 2009 and others. -11- the first time that they raised the said issue before the High Court when the matter was remitted to it that too the same was raised only during the arguments. ..........” The observations of Hon'ble the Supreme Court as reproduced hereinabove does not confer any right on the petitioner/Management nor does it permit the petitioner/Management to take such like pleas before the High Court at the first instance. What Hon'ble the Supreme Court has observed is that the plea was required to be taken before the Labour Court, but in that particular case, the plea had also not been raised before the High Court and, therefore, it was only this factual aspect, which was recorded by the Hon'ble Supreme Court. It cannot be interpreted to mean that the above observations of Hon'ble the Supreme Court gives liberty or confers any right on the petitioner/Management to take the plea at the first instance before the High Court that the initial appointment of the Workman was contrary to the recruitment Rules and constitutional scheme of employment. Harjinder Singh's case (supra), clearly settles the law on this issue and, therefore, contention raised by counsel for the petitioner/Management cannot be accepted. In any case, the plea of the Management with regard to the appointment of the Workman being de hors the Rules governing the service and in violation of Articles 14 and 16 of the Constitution of India, has been denied by the Workman in his written statement. Otherwise also since this plea had not been permitted by this Court to be raised in the present writ petition at the first instance, the assertion of the Management and response thereto by the Workman shall have no consequence or bearing on the fate of the case.“ In view of the above, the contention as raised by counsel for the petitioner/Management cannot be accepted and is hereby rejected. The second contention raised by counsel for the petitioner/Management is that merely because a finding had been recorded by the Labour Court that the services of the respondent/Worklady were C.W.P. No. 2605 of 2009 and others. -12- terminated in violation of Section 25-F of the Act, would not entitle the Worklady for automatic reinstatement in service with all consequential benefits, cannot be disputed with on principles. The judgments which have been relied upon by counsel for the petitioner/Management do hold the same as has been contended by counsel for the petitioner/Management. However, in the given facts and circumstances of the case, the Labour Court has rightly granted the relief of reinstatement in service with continuity thereof and 50% back wages. The said relief cannot be said to be without any basis. It is true that the claim for reinstatement has to be made by the respondent/Worklady. She had pleaded in her demand notice and in the claim statement that the provisions of the Industrial Disputes Act, 1947, have been violated entitling her to reinstatement in the service. The moment, claim for reinstatement was made by the respondent/Worklady in the claim statement and in the evidence led by the Worklady, it comes on record that the reinstatement had been claimed by the Worklady for non compliance of the provisions of the Industrial Disputes Act, 1947. The onus as far as the Worklady is concerned stands discharged. In case, no work was available with the petitioner/Management, it is for the petitioner/Management to plead the non availability of work. In the present case, it had neither been pleaded by the petitioner/Management before the Labour Court nor before this Court that no work was available to reinstate the respondent/Worklady. As a matter of fact, the stand of the petitioner/Management before the Labour Court was that the services of the Worklady were not terminated at all, but she had chosen not to report for duty and had not come at work on her own. This clearly shows that the work was available with the petitioner/Management from the date of her alleged termination. Even at the stage of final arguments before the Labour Court, it was not the stand of the petitioner/Management C.W.P. No. 2605 of 2009 and others. -13- that no work was available and, therefore, reinstatement could not be granted. Even in this Court, the petitioner/Management has not pleaded that they do not have the work to reinstate the respondent/Worklady. The Labour Court had taken into consideration the fact that she had been out of service and granted only 50 per cent of the back wages, that too from the date of demand notice, which is fully justified. The contention of counsel for the petitioner/Management that the Labour Court should have taken into consideration the factors essential for reinstatement, i.e., nature of appointment, availability of work and similar aspects. The Labour Court does not act on its own, but is dependent on the evidence led by the parties. In case, the petitioner/Management would have taken such a stand