Jai Singh v. State of Haryana

Mr. D.S. Nalwa, Addl. A.G. Haryana, for respondents No. 1, 2, 3, and 5. Mr. Rakesh Nagpal, Advocate, for respondent No. 4. AUGUSTINE GEORGE MASIH, J. (ORAL). The prayer in the present writ petition is for setting aside of the Order dated 14.05.2008 (Annexure-P-11), passed by respondent No. 2, vide which the reference sought by the petitioner through his demand notice dated

12.02.2008 (Annexure-P-9), had been rejected on the ground that he had prayed for reinstatement in service with full back wages and continuity of service, whereas this Court in C.W.P. No. 14430 of 2001, preferred by the petitioner, challenging his order of retrenchment dated 04.09.2001 (Annexure- P-3), was dismissed, holding therein that the petitioner had been paid his dues as per provisions of 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”) and he had been retrenched in accordance with law. Counsel for the petitioner contends that the petitioner after dismissal of the writ petition, i.e., CWP No. 14430 of 2001, by this Court, C.W.P. No. 218 of 2010. -2- vide Order dated 18.09.2001, attained right of employment on a decision taken by the competent authority to revive the Society. The said Society started its business again in the year 2003-2004. Despite of that, the petitioner was not re-employed, rather junior persons to the petitioner were re-employed, who were also retrenched alongwith the petitioner. He, therefore, contends that through demand notice dated 12.02.2008 (Annexure-P-9), the petitioner, as a matter of fact, had sought re-employment from the date persons junior to him were re-employed in the light of revival of the respondent No. 4/Society. The respondent No. 2 had not appreciated the demand made by the petitioner in his demand notice dated 12.02.2008 (Annexure-P-9) in its right perspective and had merely looked at the request made for reinstatement of the petitioner with full back wages and continuity of service and taking that alone into consideration had proceeded to reject the demand and declined the reference, vide Order dated 14.05.2008 (Annexure-P-11). He on this basis prays that the impugned Order deserves to be set aside and the reference of dispute be directed to be made to the Labour Court for adjudication on the question of re-employment of the petitioner from the date junior persons to him were re- employed by respondent No. 4/Society. On the other hand, counsel for respondents submit that since the petitioner had made a specific prayer with regard to reinstatement with full back wages and continuity of service and had also referred to in the said demand notice that his retrenchment, vide Resolution dated 25.09.2001 by respondent No. 4/Society was not in accordance with law, the Order dated

14.05.2008 (Annexure-P-11) was rightly passed by the competent authority. I have heard counsel for the parties and have gone through the records of the case. C.W.P. No. 218 of 2010. -3- Primarily, the claim of the petitioner, as is apparent from paras-5, 6, and 7 of the demand notice dated 12.02.2008, is with regard to his re- employment from the date persons junior to him were so re-employed. Paras- 5, 6, and 7 read as follow :- “5. That it is pertinent to mention here that it was decided in the resolution dated 25.09.2001 that the addressee No. 2 will be bound to re-employ the retrenched employee as per their seniority list, if the Society starts its business again in future. The Society started its business in year 2003/04 but the addressee No. 2 never called the worker for re-employment. However, the Government of State of Haryana issued a circular notification No. 13-Const-Art-309-2006 dated 21.06.2006 to re- employ the employees who were retrenched during the period from 01.03.2000 to 01.03.2005. The worker was not re- employed as per this notification because the worker was retrenched on 25.09.2001, so same is an exercise of unfair labour practice and in violation of Section 25-H of the I.D. Act.

6. That the Management re-employed the junior most persons in service even if they belong to Class-IV groups as and when the Society restarted its business, but the worker was never called for reinstatement in service.

7. That the worker requested the Management many times to reconsider his case for re-employment with all benefits through written request. The Deputy Registrar Cooperative Societies, Kurukshetra, while exercising the powers of addressee No. 1 wrote a letter to addressee No. 3, vide his letter No. Steno/URK/2757, dated 29.12.2006 to re-employ the worker as per Government instructions and as per resolution dated

25.09.2001 because the junior most persons to the worker were re-employed after re-start of the business of the Society in the year 2003-04. The Assistant Registrar wrote a letter to the addressee No. 2 to do the needful vide his letter 81 dated

08.01.2007, but nothing has been done in his favour so far.” C.W.P. No. 218 of 2010. -4- Although, in the prayer clause, it has been prayed by the petitioner that he be reinstated with full back wages and continuity of service, but as a matter of fact, and as has been stated by counsel for the petitioner, the petitioner is only seeking re-employment and not reinstatement in service. Counsel for the petitioner has further not disputed the fact that his earlier retrenchment, vide Resolution dated 25.09.2001, had been upheld by this High Court in C.W.P. No. 14430 of 2001, vide Order dated 18.09.2001 (Annexure- P-4). In view of the above, the real claim, which the petitioner had raised through demand notice dated 12.02.2008 (Annexure-P-9), is with regard to his claim for re-employment with all benefits as junior persons to him have been re-employed by respondent No. 4/Society. Respondent No. 2 had not looked into this aspect of the claim made by the petitioner in his demand notice and primarily relied upon the prayer clause to pass the impugned Order dated

14.05.2008 (Annexure-P-11). In view of the above, the present writ petition is allowed, impugned Order dated 14.05.2008 (Annexure-P-11) is hereby set aside. A direction is issued to respondent No. 2 to reconsider the claim in the light of the above observations of this Court and pass appropriate orders in accordance with law within a period of two months from the date of receipt of certified copy of this Order. May 21, 2010. sjks. (AUGUSTINE GEORGE MASIH) JUDGE