IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 6023 of 2009 Date of Decision : March 04, 2010. The Executive Engineer, Public Health Division No. 1, Bhiwani, now Public Health Engg. Division No. 1, Bhiwani. ...... Petitioner. Versus. Rambir s/o Shri Chandgri Ram, r/o VPO Haluwas Teh. and District Bhiwani and others ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Addl. A.G. Haryana, for the petitioner. Mr. Sandeep Thakan, Advocate, for respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). The prayer in the present writ petition for setting aside of the Award dated 29.08.2008 (Annexure-P-5), passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak, vide which the Award had been answered in favour of the respondent No. 1/Workman (hereinafter referred to as “the Workman”), holding him entitled to reinstatement in service with continuity thereof and 40% back wages from the date of demand notice i.e. 01.11.1997. Counsel for the petitioner/Management (hereinafter referred to as “the Management”) submits that adverse inference, which had been drawn by the Labour Court for non production of the records, is based on the assumption that the records were available with the Management, but were not produced by it. He contends that, as a matter of fact, the records were summoned through a workman witness, namely, Mahabir Singh/WW1, SDC o/o Public Health, Division No. 4, Bhiwani, and he had not produced the C.W.P. No. 6023 of 2009. -2- relevant records and had further given an explanation that the old records were not preserved and the same were not available. He on this basis contends that since the summoned records had not been produced by the workman witness, adverse inference could not have been drawn, but it is only when the Management Witness does not produce the relevant records that adverse inference may be drawn against the Workman. Shri P.C. Goyal, SDE, Public Health, Bhiwani, appeared before the Labour Court as MW-1 and had produced the working details, according to which the Workman had not completed 240 days in service in 12 preceding months from the date of his termination. He further contends that these working details were prepared on the basis of muster rolls maintained by the Management. The second submission he puts forth is appointment of the Workman was de hors statutory Rules and, therefore, reinstatement of the Workman could not be ordered by the Labour Court as the appointment was in violation of Articles 14 and 16 of the Constitution of India. His further submission is that even if there is violation of the provisions of the Industrial Disputes Act, the Workman would, at the most, be entitled to compensation for the period he had worked with the Management and not reinstatement in service. On this basis he contends that the present writ petition deserves to be allowed. On the other hand, counsel for the Workman submits that the adverse inference, drawn by the Labour Court, is fully justified as the workman witness was only deposing on the basis of records. He was summoned by the Court on an application moved by the Workman for production of the records to substantiate his contention, which he had made in the claim statement. He has been termed as a workman witness, but was an official, who was deposing on the basis of records and he had come there not C.W.P. No. 6023 of 2009. -3- on the asking of the Workman but on the summoning of the Court as a witness to produce the records. His further contention is that as the records, which is maintained by the Management, was not produced, the conclusion drawn by the Labour Court is justified and does not call for any interference by this Court. As regards the contention that the appointment of the Workman was de hors the statutory Rules, he contends that this plea was neither taken by the Workman before the Labour Court in its pleadings nor any evidence was led in this regard or any arguments raised before the Labour Court and, therefore, at this stage it cannot be allowed to be raised for the first time. He on this basis contends that the Award passed by the Labour Court deserves to be upheld. I have heard counsel for the parties and have gone through the records of the case. As is apparent from the Award passed by the Labour Court, the Workman had moved an application for production of records, which are maintained by the Management. It is an admitted position that the Workman was a daily wager labourer and, therefore, was neither given appointment letter nor the termination order. The records are maintained by the Management. To support his contention, which the Workman had made in this claim statement, the Workman depends on the records, which is maintained by the Management, which as per the statute was the bounder duty of the Management to maintain. The Workman has in exercise of his diligence summoned the relevant records from the Management. The said application was allowed. Accordingly, on a summon issued by the Court, Mahabir Singh, SDE, o/o Division No. 4, Bhiwani, appeared before the Labour Court. He had deposed that he had not brought the summoned C.W.P. No. 6023 of 2009. -4- records. He had given an explanation that the old records are not preserved and the same are not available. This fact was found to be incorrect as MW-1/P.C. Goyal, SDE, Public Health, Bhiwani, had appeared before the Labour Court as a Management Witness and stated that the records were being maintained by them. He had further placed on record the working details of the Workman on the basis of muster rolls. This apparently makes it clear that the records were intentionally withheld by the Management despite a direction issued by the Labour Court for production of the records summoned by the Workman. Had the Management been so sure of the working details, as has been submitted by it before the Labour Court, they would not have shied away from producing the muster rolls itself. In this background, the conclusions drawn by the Labour Court are fully justified and the adverse inference was the only result, which has rightly been taken by the Labour Court and benefit granted to the Workman. Therefore, the contention of counsel for the Management that it is only, if the Management Witness does not produce the records, that adverse inference can be drawn, cannot be accepted. 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 the plea that the appointment of the Workman being de hors C.W.P. No. 6023 of 2009. -5- the statutory rules governing the service is being taken by the Management in the present case, in this Court, thus, 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 fulfils 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 C.W.P. No. 6023 of 2009. -6- 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 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 C.W.P. No. 6023 of 2009. -7- 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 produced nor any arguments was advanced in that regard and, therefore, the Labour Court did not get any 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 C.W.P. No. 6023 of 2009. -8- 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 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 C.W.P. No. 6023 of 2009. -9- 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 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 C.W.P. No. 6023 of 2009. -10- 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. It has been brought to the notice of the Court that in compliance with the Award dated 29.08.2008 (Annexure-P-5), passed by the Labour Court, respondent No. 1 already stands reinstated in 2008 and is continuing in service as such. The present writ petition was preferred by the Management on 27.03.2009, i.e., after the workman had been reinstated in service. The equity also is in favour of the Workman, which would further dissuade this Court to interfere in otherwise a well reasoned and justified Award passed by the Labour Court. Finding no merit in the present petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE March 04, 2010. sjks.