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Full Case Details
ABHAY MANOHAR SAPRE, J. – 1. Leave granted.
- This appeal is directed against the final Signature Not Verified judgment and order dated
21.02.2014 passed by the Digitally signed by ANITA MALHOTRA Date: 2019.01.02 High
Court of Punjab & Haryana at Chandigarh in 16:47:20 IST Reason:
L.P.A. No. 317 of 2010 whereby the Division Bench of the High Court dismissed the appeal
filed by the appellant herein and affirmed the judgment dated 26.11.2009 passed by the Single
Judge of the High Court in CWP No.15066 of 2006 by which the respondent herein was
ordered to be reinstated into service with back wages. - Few relevant facts need mention hereinbelow to appreciate the short controversy involved
in this appeal. - The appellant is the Cooperative Marketing Society. The respondent was working with the
appellant as a Peon from 01.07.1973. The appellant terminated the services of the respondent
on 01.07.1985. The respondent, therefore, got the reference made through the State to the
Labour Court to decide the legality and correctness of his termination order. - By award dated 03.02.1988, the Labour Court held the respondent’s termination as bad in
law and accordingly awarded lump sum compensation of Rs.12,500/ to the respondent in lieu
of reinstatement in service. - The appellant and respondent both were aggrieved by the award and filed writ petitions
before the High Court to challenge the legality and correctness of the award passed by the
Labour Court. The High Court, however, dismissed both the writ petitions. The respondent
then accepted the compensation, which was awarded by the Labour Court. - In the year 1993, the respondent filed a representation to the appellant praying therein that
since the appellant has recently regularized the services of two peons on 01.01.1992 vide their
resolution dated 02.08.1993, therefore, he has become entitled to claim reemployment in the
appellant’s services in terms of Section 25 (H) of the Industrial Disputes Act, 1947
(hereinafter referred to as “the ID Act”). The appellant, however, did not accept the prayer
made by the respondent. - This led to making of an industrial reference to the Labour Court by the State at the
instance of the respondent for deciding the question as to whether the respondent is entitled to
claim reemployment in the appellant’s services in terms of Section 25 (H) of the ID Act.
225 - The Labour Court answered the reference against the respondent and in appellant’s favour.
In other words, the Labour Court held that the respondent was not entitled to claim any
benefit of Section 25 (H) of the ID Act to claim reemployment in the appellant’s services on
the facts stated by the respondent in his statement of claim. - The respondent felt aggrieved and filed writ petition in the High Court. The Single Judge
by order dated 26.11.2009 allowed the writ petition and set aside the award of the Labour
Court. The High Court directed reemployment of the respondent on the post of Peon in the
appellant’s services. The appellant employer felt aggrieved and filed appeal before the
Division Bench. - By impugned order, the Division Bench dismissed the appeal and upheld the order of the
Single Judge, which has given rise to filing of the present appeal by way of special leave in
this Court by the employer the appellant. - Heard Mr. Ajay Kumar, learned counsel for the appellant and Mr. Shish Pal Laler, learned
counsel for the respondent. - Having heard the learned counsel for the parties and on perusal of the record of the case,
we are inclined to allow the appeal and while setting aside the orders of the High Court
(Single Judge and the Division Bench) restore the award of the Labour Court. - In our considered opinion, there was no case made out by the respondent (workman)
seeking re employment in the appellant’s services on the basis of Section 25 (H) of the ID
Act. - In the first place, the respondent having accepted the compensation awarded to him in lieu
of his right of reinstatement in service, the said issue had finally come to an end; and Second,
Section 25 (H) of the ID Act had no application to the case at hand. - Section 25(H) of the ID Act applies to the cases where employer has proposed to take into
their employment any persons to fill up the vacancies. It is at that time, the employer is
required to give an opportunity to the “retrenched workman” and offer him reemployment and
if such retrenched workman offers himself for reemployment, he shall have preference over
other persons, who have applied for employment against the vacancy advertised. - The object behind enacting Section 25(H) of the ID Act is to give preference to retrenched
employee over other persons by offering them reemployment in the services when the
employer takes a decision to fill up the new vacancies. - Section 25(H) of the ID Act is required to be implemented as per the procedure prescribed
in Rule 78 of the Industrial Disputes (Central) Rules, 1957 (hereinafter referred to as “the ID
Rules”) which, in clear terms, provides that Section 25(H) of the ID Act is applicable only
226
when the employer decides to fill up the vacancies in their set up by recruiting persons. It
provides for issuance of notice to retrenched employee prescribed therein in that behalf. - So, in order to attract the provisions of Section 25(H) of the ID Act, it must be proved by
the workman that firstly, he was the “retrenched employee” and secondly, his exemployer has
decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference
over those persons, who have applied against such vacancies for a job while seeking reemployment in the services. - The case at hand is a case where the respondent’s termination was held illegal and, in
consequence thereof, he was awarded lump sum compensation of Rs.12,500/ in full and final
satisfaction. It is not in dispute that the respondent also accepted the compensation. This was,
therefore, not a case of a retrenchment of the respondent from service as contemplated
under Section 25(H) of the ID Act. - That apart and more importantly, the respondent was not entitled to invoke the provisions
of Section 25 (H) of the ID Act and seek re employment by citing the case of another
employee (Peon) who was already in employment and whose services were only regularized
by the appellant on the basis of his service record in terms of the Rules. - In our view, the regularization of an employee already in service does not give any right
to retrenched employee so as to enable him to invoke Section 25 (H) of the ID Act for
claiming re employment in the services. The reason is that by such act the employer do not
offer any fresh employment to any person to fill any vacancy in their set up but they simply
regularize the services of an employee already in service. Such act does not amount to filling
any vacancy. - In our view, there lies a distinction between the expression ‘employment’ and
‘regularization of the service”. The expression ‘employment’ signifies a fresh employment to
fill the vacancies whereas the expression ‘regularization of the service’ signifies that the
employee, who is already in service, his services are regularized as per service regulations. - In our view, the Labour Court was, therefore, justified in answering the reference in
appellant’s favour and against the respondent by rightly holding that Section 25(H) of the ID
Act had no application to the facts of this case whereas the High Court (Single Judge and
Division Bench) was not right in allowing the respondent’s prayer by directing the appellant
to give him reemployment on the post of Peon. - In view of the foregoing discussion, the appeal succeeds and is accordingly allowed.
Impugned order is set aside and the award of the Labour Court is restored.
