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2013 DIGILAW 282 (PNJ)

Jai Singh v. Presiding Officer, Labour Court

2013-03-01

RAJIV NARAIN RAINA

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JUDGMENT : Rajiv Narain Raina, J 1. The services of the petitioner were dispensed with on 4.9.2001 following an order passed winding up the Cheeka Cooperative Marketing-cum-Processing Society Limited, Cheeka (for short “Society”). It is not disputed that at the time of retrenchment, the petitioner had put in more than 28 years of service with the Society. The petitioner admits that retrenchment compensation was paid by bank draft. However, salary in lieu of one month's notice was paid through cheque. Therefore, it is urged that there was no simultaneous compliance of section 25F of the Industrial Disputes Act, 1947 (for short “the Act”). 2. Aggrieved by the retrenchment order, the petitioner had filed CWP No. 14430 of 2001 before this Court which was dismissed by the Division Bench on 18.9.2001. The argument raised was that the Administrator of the Society had no jurisdiction to order retrenchment. This Court recorded in the order that the Society had an outstanding liability of Rs. 35,00,000 towards the salaries of the employees as against an income of Rs. 30,000 per month from rent of godown. An amount of Rs. 74,354 by bank draft dated 3.9.2001 and a cheque in a sum of Rs. 5,311 towards notice pay stood paid to the petitioner. The Administrator of the Society who ordered the retrenchment was appointed u/s 33 of the Haryana Co-operative Societies Act, 1984 (for short “Societies Act”). 3. Clause 4 of Section 33 of the Societies Act provides that the administrator shall, subject to the control of the Registrar and to such instructions as he may time to time give, have powers to exercise all or any of the functions of the Committee or of any officer of the society and take all such actions as may be required in the interest of the society. 4. Thereafter, several litigations ensued at the hands of the petitioner revolving around payment of salary dues prior to retrenchment which need not be adverted to for decision in the present matter which calls in question an award of the Labour Court, Ambala, in reference No. 32 of 2011 relating to termination of service. The dispute referred was with respect to the legality and validity of the retrenchment effected on 25.9.2001 vide resolution dated 26.7.2001. The dispute referred was with respect to the legality and validity of the retrenchment effected on 25.9.2001 vide resolution dated 26.7.2001. There was, however, a condition in the resolution which led to the retrenchment that in case the society is revived, the workman shall be re-employed on the same post, which condition actually vocalizes the industrial right of re-entry u/s 25H of the Act. 5. It was the case of the workman before the Labour Court that the Society had been revived in the year 2003 but he was not recalled to resume work. He, therefore, prayed for reinstatement from the date of revival. The respondent-society took the plea in defence that the post on which the workman was last employed stood abolished by the same resolution dated 26.7.2001. The post last held by the petitioner was indisputably of Record Keeper/Daftry. On revival of the Society, the post of Record Keeper/Daftry was not revived as it was not felt necessary to do so. Instead, the petitioner was offered the post of Truck Cleaner vide letter No. 140 dated 4.4.2005. The petitioner did not accept the offer. If the post of Record Keeper remained abolished then the petitioner would apparently have no enforceable right of re-entry u/s 25H of the Act. Alternative job offered was not to his liking. The petitioner cannot insist on revival of the post nor can the Court act in aid of it, being a matter of policy and cadre review. 6. If the Society was revived in 2003 and the offer of alternative employment was made on 4.4.2005 then the petitioner would then be faced with the further predicament that the demand notice was served on 29.1.2009 raising the dispute belatedly. Though no limitation is prescribed for seeking reference u/s 10(1)(c) of the Act, yet the petitioner could have taken effective steps immediately on revival of the Society in 2003. The management has pleaded that no juniors in the category of the petitioner were re-employed. It was denied that Sh. Sardara, Gurbaksh, Mukhtiyar, Gurmail, Ram Saroop, Jai Parkash, Ram Pal and several other persons named are/were junior to the petitioner. I have heard Mr. Rajinder Goyal, learned counsel for the petitioner at length. He has been unable to persuade me that the petitioner has a right to reinstatement as claimed. It was denied that Sh. Sardara, Gurbaksh, Mukhtiyar, Gurmail, Ram Saroop, Jai Parkash, Ram Pal and several other persons named are/were junior to the petitioner. I have heard Mr. Rajinder Goyal, learned counsel for the petitioner at length. He has been unable to persuade me that the petitioner has a right to reinstatement as claimed. The retrenchment on 25.9.2001 has been affirmed as legal and valid in the challenge thereto laid by the petitioner in CWP No. 14430 of 2001. There can be little doubt that at the time of retrenchment the provisions of Section 25F of the Act were complied with and retrenchment compensation stood paid through draft and cheque. There is no substance in his argument that there was no simultaneous compliance in offering amounts through two negotiable instruments both of which were duly accepted. It is not the case of the petitioner that the amounts offered were not credited into his accounts. If there was some dispute in respect of unpaid salary of Rs 72,000, the same could be claimed either under the Payment of Wages Act, 1936 or u/s 33-C (2) of the Industrial Disputes Act, 1947 or through a suit or better still to have laid claim on it at the time of filing of CWP No. 14430 of 2001. Therefore, the principle of Order 2 Rule 2 of the CPC would also come into play. The challenge to the retrenchment order dated 25.9.2001 was to my mind clearly barred by res-judicata. The only right which remains to be examined is the one u/s 25-H of the Act. The petitioner has not made out a case for preferential treatment over other persons in terms of Section 25-H of the Act for re-employment. He was offered alternative employment as Truck Cleaner which he refused to accept. Since the post of Record Keeper/Daftry continues to remain abolished, he would have no right of re-employment so long as that position obtains. No Merit. Dismissed. No costs.