IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 7518 of 2009 Date of Decision : March 02, 2010. The Divisional Forest Officer (Territorial), Bhiwani, and another. ...... Petitioners. Versus. Sh. Lalman and another ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Addl. A.G. Haryana, for the petitioners. Mr. Deepak Sonak, Advocate, for respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). The prayer in the present writ petition is for setting aside of the Award dated 04.01.2008 (Anneuxre-P-1), wherein the reference has been answered in favour of the respondent/Workman (hereinafter referred to as “the Workman”), holding him entitled to reinstatement on his previous post with continuity and 50% back wages from the date of demand notice, i.e., 28.05.2001. Counsel for the petitioner/Management (hereinafter referred to as “the Management”) submits that the Award passed by the Labour Court is not sustainable in the light of the fact that it was the specific stand of the Management that the Workman had abandoned his job. The conduct of the Work itself suggests and proves that the Workman was not interested in the job and, as a matter of fact, abandoned the same as the demand notice is dated 28.05.2001, which is after almost a period of five years from the date of his alleged termination. He submits that it is the specific case of the Management before this Court in the present writ petition that the appointment of the C.W.P. No. 7518 of 2009. -2- Workman was de hors the statutory rules governing the service and, therefore, he would not be entitled to reinstatement in service. He on this basis contends that the present writ petition deserves to be allowed and the impugned Award be set aside. On the other hand, counsel for the Workman submits that adverse inference has been drawn by the Labour Court for non production of the relevant records. He contends that the period of 12 months from the date of his termination, i.e., 30.06.1996, was from July, 1985 till June, 1996. These muster rolls for complete period were not produced by the Management despite the same having been summoned by the Labour Court. Non production of records has led to drawing of adverse inference against the Management. A finding has been returned by the Labour Court that the Workman had completed 240 days in service in the 12 preceding months. It is an admitted position that the services of the Workman was terminated without any notice, notice pay, or retrenchment compensation. In this view of the matter, the finding returned by the Labour Court that the provisions of Section 25-F of the Act have been violated, is fully justified. As regards contention of counsel for the petitioner that the appointment of the Workman was de hors the statutory rules governing the service, counsel for the Workman submits that this ground was neither pleaded nor any evidence was produced by the Management before the Labour Court, which would suggest that the appointment of the Workman was not in consonance with the statutory rules governing the service. This ground cannot be allowed to be taken in the present writ petition for the first time and, therefore, 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. C.W.P. No. 7518 of 2009. -3- There is a specific finding given by the Labour Court by drawing an adverse inference for non production of summoned records by the Management beyond June, 1996, despite specific assertion made by the Workman that he had worked with the Management till 1996 as Baildar. It is also not in dispute that the records beyond June, 1996 , were summoned by the Labour Court. The Management had also admitted that the records were available with it after June, 1996, but the the reason assigned by the witness for non production of the records is that the name of the Workman was not mentioned therein. The Management has to comply with the order of the Labour Court, when a particular record is summoned by it. The Management does not have the power or jurisdiction to determine as to which summoned record should be produced or would be relevant and applicable to the case. Once a direction is issued to the Management for production of the records and when the said records are available with it, the Management is required to produce the same. Non production of the records without any reasonable justification cannot be accepted. The reason given in the present case is that the name of the Workman does not find mention in the subsequent records beyond June, 1996, is not a justifiable reason for non production of the records. The Management cannot take over the jurisdiction of the Court within its domain to make decisions for itself whether to produce the summoned records or not. That function has been assigned to the Court, which would on the basis of produced records determine as to whether the same would be worth consideration, relevant, and helpful or not to the case in hand. The adverse inference, therefore, drawn by the Labour Court against the Management is in accordance with law and, therefore, cannot be faulted with. The finding returned on such adverse inference drawn by the Labour Court, is fully justified. C.W.P. No. 7518 of 2009. -4- It is an admitted case of the Management that neither any termination order, any notice, nor pay in lieu of notice was given or any compensation was paid to the Workman. Rather the case of the Management was that the Workman had abandoned his job, but no evidence in support of this contention was produced/led by the Management. The onus to prove the same was on the Management, which it utterly failed to discharge. The Management has not stated that the work had come to an end or that the same work was not available for the Workman, which he was performing. In those circumstances, the order of reinstatement of the Workman in service, is fully justified and does not call for any interference. 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 04.01.2008 (Annexure-P-1), 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 C.W.P. No. 7518 of 2009. -5- 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 Management in the present case in this Court, 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. C.W.P. No. 7518 of 2009. -6- 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 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 C.W.P. No. 7518 of 2009. -7- 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 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 C.W.P. No. 7518 of 2009. -8- 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 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 C.W.P. No. 7518 of 2009. -9- 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 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 C.W.P. No. 7518 of 2009. -10- 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. It has been brought to the notice of the Court that in compliance with the Award dated 04.01.2008 (Annexure-P-4), passed by the Labour Court, respondent No. 1 already stands reinstated in January,2008 and is continuing in service as such. The present writ petition was preferred by the Management on 23.04.2009, 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 02, 2010. sjks.