Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7 OF 2019
[Arising out of SLP (C) No. 17975 of 2014]
Management of the Barara
Cooperative Marketingcum
Processing Society Ltd. ... Appellant
Versus
Workman Pratap Singh … Respondent
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is directed against the final
judgment and order dated 21.02.2014 passed by the
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2019.01.02
16:47:20 IST
Reason:
High Court of Punjab & Haryana at Chandigarh in
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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.
3. Few relevant facts need mention hereinbelow to
appreciate the short controversy involved in this
appeal.
4. 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.
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5. 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.
6. 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.
7. 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
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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.
8. 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.
9. 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.
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10. 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.
11. 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 employerthe appellant.
12. Heard Mr. Ajay Kumar, learned counsel for the
appellant and Mr. Shish Pal Laler, learned counsel
for the respondent.
13. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
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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.
14. 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.
15. 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.
16. 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
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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.
17. 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.
18. 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 when the employer decides to fill
up the vacancies in their set up by recruiting
persons. It provides for issuance of notice to
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retrenched employee prescribed therein in that
behalf.
19. 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.
20. 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
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service as contemplated under Section 25(H) of the ID
Act.
21. 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.
22. 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
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employee already in service. Such act does not
amount to filling any vacancy.
23. 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.
24. 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.
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25. 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.
………………………………..J.
(ABHAY MANOHAR SAPRE)
..………………………………J.
(INDU MALHOTRA)
New Delhi,
January 02,2019
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