Bakshish Kumar v. Additional District and Sessions Judge-cum-Presiding Officer, Labour

As regards the contention of the counsel for the petitioner that there was no pleading with regard to the appointment of the petitioner CWP No. 2733 of 2010 5 being dehors the statutory Rules or in violation of Articles 14 and 16 of the Constitution of India, suffice it to say that in the absence of there being any post available, even if such a plea was not taken by the Management before the Labour Court, it would not entitle him to the benefit of reinstatement when there was no post available on which he can be put back in service. The Management, as is apparent from the Award passed by the Labour Court, did press into service at the time of arguments the point that the appointment of the petitioner was not in accordance with the statutory Rules governing the service. If that be so and it not being the case of the petitioner that his appointment was in accordance with and in consonance with the statutory Rules governing the service, the ratio of the judgments, on which reliance has been placed by the counsel for the petitioner, cannot be made applicable to the case in hand. In the case of Harjinder Singh vs. Punjab State Warehousing Corporation (supra), the Hon'ble Supreme Court had held that the plea of the appointment of the petitioner being dehors the statutory Rules and in violation of Articles 14 and 16 of the Constitution of India, would not be permitted to be taken in the High Court for the first time. The Hon'ble Supreme Court, in para No. 11, has held as follows:- “11. xxx xxx xxx 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 CWP No. 2733 of 2010 6 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.” Similar is the position in the case of Ramesh Kumar vs. State of Haryana (supra), where the plea with regard to the appointment of the petitioner being dehors the statutory Rules was taken by the State before the Hon'ble Supreme Court for the first time. The judgment in the case of Krishan Singh vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) (supra) would not be of any help to the petitioner where again no reinstatement could be granted because the post being not available as in the case in hand. The petitioner was appointed as a part-time Sweeper on

07.09.1994 and he continued as such till 31.03.2001. Admittedly he completed more than 240 days in service in 12 preceding months from the date of his termination. No retrenchment compensation, notice or pay in lieu thereof was given to the petitioner at the time of termination of his services, which is mandated under Section 25-F of the Industrial Disputes Act for retrenchment to be in accordance with law. Thus, the termination of CWP No. 2733 of 2010 7 the services of the petitioner is in violation of Section 25-F of the Industrial Disputes Act. Since there is no post available with the respondents at the place where the petitioner was appointed nor is there any evidence on record that such a post was available in the office of the Block Education Officer, Pehowa and District Education Officer, Kurukshetra, the petitioner cannot be granted the relief of reinstatement in service. In the light of the judgment of the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshev Deb, 2008 (4) SCT 33 and a Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788, the workman shall, however, be entitled to compensation to settle the equities between the parties as it has been held that for termination of the service in violation of Section 25-F of the Industrial Disputes Act, when a workman cannot be reinstated he would be entitled to compensation. Keeping in view the nature of appointment of the petitioner i.e part-time Sweeper which was from 07.09.1994 to

31.03.2001, the petitioner is held entitled to a compensation of Rs. 50,000/- to be paid to the petitioner within a period of two months from the date of receipt of a certified copy of this order. Disposed of accordingly. May 14, 2010 ( AUGUSTINE GEORGE MASIH ) JUDGE CWP No. 2733 of 2010 8