JUDGMENT Anil Kumar Srivastava-II, J. 1. Instant appeal has been preferred by the appellant- petitioner challenging the judgment and order dated 17.9.2015 passed by learned single judge in WP(S/S) No. 4239 of 2004, Mata Prasad v. U.P. State Bridge Corporation Limited and Others wherein the learned single judge has dismissed the writ petition. Appeal was admitted on 28.10.2015 on limited issue. Order dated 28.10.2015 is as under : - Heard learned counsel for the appellant. Admit. The appellant has come up questioning the correctness of the judgment of the learned Single Judge dated 17th September 2015 on several grounds. We are not inclined to entertain the appeal on two of the grounds namely the impact of the Labour Court award against the appellant and secondly the benefits arising out the judgment dated 15th July, 1993 in the case of Vineet Kumar Srivastava & others v. U.P. State Bridge Corporation & others, W.P. No. 5319(SS) of 1991. Learned counsel for the Bridge Corporation has rightly pointed out that Clause 9 of the scheme as formulated by the High Court in the said judgment does not entitle the petitioner to claim re-engagement. However, we find from the pleadings and that has been noticed by a learned Single Judge that the appellant had raised a third claim relating to engagement of persons who were junior to the appellant and they were being retained and reengaged. This issue has been noticed by the learned Single Judge but has not been answered. Learned counsel for the appellant has invited the attention of the Court to the Paragraph 5 of the writ petition as well as his reply in Paragraph 6 of the counter affidavit of the respondent and Paragraph 7 of the rejoinder affidavit to contend that this issue required adjudication even if the other grounds raised by the appellant were not available. Prima facie, we do not find any finding having been recorded by the learned Single Judge on this issue. Learned counsel for the Bridge Corporation, if he so chooses, file an appropriate affidavit confined to this issue only, explaining categorically as to in what manner those persons who have been referred to by the appellant in the aforesaid paragraphs have been engaged and in what capacity in preference to the appellant as the contention of the appellant is that Article 14 has been violated. The affidavit be filed within three weeks. The affidavit be filed within three weeks. The appeal shall come up after three weeks for disposal. No grounds for stay is made out. The prayer for stay is rejected. 2. Factual matrix of the case shows that the petitioner was engaged as a helper (Gr.D) w.e.f. 01.11.1984 in U.P. Stage Bridge Corporation. Since then petitioner was continuously working on daily wages till 01.8.1986. He was retrenched w.e.f. 01.8.1986 without giving any notice of retrenchment, although the work was available. Juniors to the petitioner namely Aslam, Abu shah, Puranmasi and Iqbal etc were retained. 3. A writ petition No. 5358 of 1993 was filed by petitioner for quashing the impugned award dated 21.8.1991 passed by Industrial Tribunal - II Lucknow and to reinstate the petitioner in service w.e.f. 01.8.1986. Benefit of judgment passed by this Court in W.P. No. 5319 (S/S) of 1991, Vineet Kumar Srivastava v. U.P. State Bridge Corporation and Others, decided on 15.7.1993, was claimed wherein a scheme was formulated by the Court. W.P. No. 5358 of 1993 was allowed vide order dated 22.01.2004. Opposite parties were directed to consider the case of petitioner in the light of judgment in Vineet Kumar Case. Opposite party did not give the benefit to the petitioner on the ground that he has accepted the retrenchment compensation. Rule 16 of the Industrial Dispute Rules was violated. Juniors to the petitioner were retained. 4. Learned single judge has held that the award against the petitioner is still valid. Since the claim of the petitioner has already been denied by the Labour Court and no relief can be granted to him. 5. Learned counsel for the petitioner -appellants submits that in case of Vinit Narain Srivastava (Supra) a scheme was formulated. In para 6 of the counter affidavit filed by the opposite par ty it is admitted that juniors to the petitioner namely, Puranmasi, Abu Shah were retrenched and again taken in service. It is specifically admitted in para 3 of the short counter affidavit dated 23.12.2015 that the appellant Abu Shah and Puranmasi were retrenched. Thereafter Abu Shah and Puranmasi were constantly approaching the authorities for re-engagement. On availability of work they were re-engaged in the unit of the corporation where the work was available but the appellant never contacted any authority to re-engage him. It is submitted that the same statement was made by the petitioner before the Labour Court. Thereafter Abu Shah and Puranmasi were constantly approaching the authorities for re-engagement. On availability of work they were re-engaged in the unit of the corporation where the work was available but the appellant never contacted any authority to re-engage him. It is submitted that the same statement was made by the petitioner before the Labour Court. It is further submitted that the petitioner was not required to contact the authorities, rather they should have given a notice to the petitioner-appellant on availability of work as provided under Rule 43 of U.P. Industrial Disputes Rules 1957. it is further submitted that since junior to the petitioners were re-employed, it shows that the work was available but the petitioner was not re-engaged. 6. Per contra, learned counsel for the opposite party submits that this plea was not raised before the learned single judge that the juniors to the petitioner were engaged after retrenchment and the petitioner was not given any opportunity. It is further submitted that the petitioners have pressed only clause 9 of the scheme as formulated in the Vinit Narain Srivastava case. They have not pressed their claim on the point No. 2 of the scheme. It is further submitted that the petitioner has waived the right to claim the benefit of point No. 2 of the scheme. 7. As we have noticed in our order dated 28.10.2015 that a third claim relating to engagement of persons who were junior to the appellant and were retrenched and reengaged was also raised by the petitioner before the learned single judge. Learned single judge has noticed this p lea but has not answered the same. Petitioner cannot be precluded to raise the same plea in the appeal as the plea was raised by him before the learned single judge but no finding was recorded by the learned single judge. It cannot be presumed or accepted that the petitioner appellant has waived or not pressed his right on this count. 8. In para 5 of Writ Petition it is stated that the retrenchment of the petitioner from 01.8.1986 was totally illegal and arbitrary and also malafide. No prior notice of retrenchment was given, although, the work was available and juniors to the petitioners namely Aslam, Abu Shah and Puranmasi and Iqbal etc have been retained. 9. 8. In para 5 of Writ Petition it is stated that the retrenchment of the petitioner from 01.8.1986 was totally illegal and arbitrary and also malafide. No prior notice of retrenchment was given, although, the work was available and juniors to the petitioners namely Aslam, Abu Shah and Puranmasi and Iqbal etc have been retained. 9. This paragraph has been answered in the counter affidavit in the following terms: - “That the contents of paragraph 5 of the writ petition are misconceived and wrong and the same are denied. The retrenchment of the petitioner was upheld by the Industrial Tribunal in Adjudication Case No. 57/1988 and the award dated 24.08.1991 has also not been interfered with by this hon’ble Court in writ petition No. 5358 (SS) of 1995 and consequently it is wrong on the part of the petitioner to allege that the retrenchment of the petitioner was illegal, arbitrary and malifide. The allegations that the work was available and junior to the petitioner namely Aslam, Abu Shah, Puranmasi and Iqbal etc have been retained is also misconceived, misleading and untenable in as much as in the evidence before the Labour Court it was accepted by the petitioner that the said persons were also retrenched by the Corporation. A true copy of the statement given by the petitioner in evidence before the Industrial Tribunal is being annexed as Annexure No. CA-1 to this counter affidavit.” 10. In para 7 of the rejoinder affidavit again it was specifically mentioned that the juniors to the petitioner are still working. 11. In the short counter affidavit of the opposite party in paragraph No. 3 it is stated that : - “That along with the appellant, Sri Abushah and Sri Puranmasi was also retrenched by the U.P. State Bridge Corporation Limited. After retrenchment the said persons were constantly approaching the authorities of the Corporation for their re-engagement and on availability of work, the said persons were re-engaged in the Unit of the Corporation where the work was available. The appellant never contacted any authority of the Corporation to re-engage him. The appellant never submitted any application nor consented for his re-engagement in the service of the Corporation.” 12. The appellant never contacted any authority of the Corporation to re-engage him. The appellant never submitted any application nor consented for his re-engagement in the service of the Corporation.” 12. In view of the averments made in the pleadings if we go through judgment of the Vineet Kumar case (supra) point No. 2 of the scheme provides as under : - “When the work in any unit/division/circle or project came to an end, opposite parties would offer employment to the retrenched employee in the same trade in which they had been engaged on the basis of seniority.” 13. Rule 43 of the U.P. Industrial Disputes Rules, 1957 reads as under : - “43. Re-employment of retrenched workmen.- (1) At least ten days before the date on which any vacancies are to be filled in his industrial establishment, an employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and shall also send intimation thereof to everyone of the retrenched workmen eligible to be considered therefor, by registered post or personal delivery to the address given by the workman concerned at the time of retrenchment or at any time thereafter : Provided that where the number of such vacancies is less than the number of the retrenched workmen, it shall be sufficient if intimation is sent by the employer individually to such number of senior-most amongst the eligible workmen as is not less than double the number of the vacancies : Provided further that where the vacancy is of a duration of less than one month, there shall be no obligation on the employer to send intimation of such vacancy to individual retrenched workmen: Provided further that if a retrenched workman does not offer himself for re-employment in spite of having received such intimation the employer may not intimate to him the vacancies that may be ffilled on any subsequent occasion. (2) Unless there are good reasons to the contrary, an employer shall re-employ retrenched workmen in order of their seniority as shown in the list maintained under Rule 42.” 14. (2) Unless there are good reasons to the contrary, an employer shall re-employ retrenched workmen in order of their seniority as shown in the list maintained under Rule 42.” 14. It was held in Ajay Pal Singh v. Haryana Warehousing Corporation, 2015 (145) FLR 425 by the Hon’ble Apex Court that Section 25 H of Industrial Disputes Act, 1947 is couched in wide language and is capable of application to all ‘retrenched workmen’ and not merely those covered under Section 25 F of the Act [refer Central Bank of India v. S. Satyam, 1996 (74) FLR 2063 (SC)]. Further it was held in para 15 of the judgment that in case if an employer proposes to employ any person, it is mandatory on the part of the employer to give an opportunity to the retrenched workmen who offer themselves to re-employment and such workmen who offer themselves for re-employment shall have preference over other persons. The provisions of Section 25 H is in conformity with Article 14 and 16 of the Constitution of India. 15. Relying upon the judgment of Ajay Pal Singh (supra) in Durgapur Casual Workers’ Union and Others v. Food Corporation of India and Others (2015) ACJ 240 Hon’ble the Apex Court has held that the provisions of Section 25 H are in conformity with articles 14 and 16 of the Constitution of India, though the aforesaid provisions are not attracted in the matter of re-employment of retrenched workmen in private industrial establishment and undertakings. In that view of the matter it was further held that the workmen who were retrenched were rightly taken in the services of the Corporation. Admittedly, no plea was taken by the Corporation either before the State Government or before the Tribunal that the initial appointment of workmen were illegal or they were appointed through back door means. In Central Bank of India v. S. Satyam and Others, 1997 (1) U.P. LBEC 329 it was held by the Hon’ble Apex court in para 10 that : - “10. The next provision is Section 25-H which its couched in wide language and is capable of application to all retrenched workmen, not merely those covered by Section 25-F. It does not require curtailment of the ordinary meaning of the word ‘retrenchment’ used therein. The next provision is Section 25-H which its couched in wide language and is capable of application to all retrenched workmen, not merely those covered by Section 25-F. It does not require curtailment of the ordinary meaning of the word ‘retrenchment’ used therein. The provision for re-employment of retrenched workmen merely gives preference to a retrenched workman in the matter of re-employment over other persons. It is enacted for the benefit of the retrenched workmen and there is no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman.” 16. It is nowhere case of the opposite party that the petitioner-appellant was not engaged in accordance with law or rules or it was a back door entry. 17. Rule 43 of the Industrial Disputes Rules, 1957 specifically requires that an intimation of vacancies shall be sent to the retrenched workmen who is eligible to be considered therefor. It is a mandatory provision. Compliance of the same should be made. It was held in Nazir Ahmad v. King Emperor, AIR 1936 Privy Council 253 that “where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. The same view was re-asserted in Babu Verghese and Others v. Bar Council of Kerala 1999 (3) SCC 422 . 18. When a mandatory provision is made for sending an intimation of the vacancy to the retrenched employee then it was incumbent upon the opposite party to communicate the petitioner-appellant. Rule 43(2) further provides that unless there are good reasons to the contrary employer shall re-employ retrenched workmen in order of their seniority as shown in the list maintained under Rule 42. In the short counter affidavit of the opposite party it is admitted that the juniors to the petitioner namely Abu Shah and Puranmasi were also retrenched along with the appellant and Opposite party has made an attempt to justify its action to re-employ the juniors of the appellant by stating that after retrenchment the said persons were constantly approaching the authorities of the Corporation for the re-engagement and on the availability of work the said persons were re-engaged in the unit of the corporation where the work was available. The appellant never contacted any authority nor submitted any application. The appellant never contacted any authority nor submitted any application. Compliance of Rule 43 has not been made by the opposite party. No notice was served upon the appellant offering him re-employment, rather juniors of the appellant were re-employed which is against the spirit of the Act and Rules. Opposite party should have given a notice to the appellant. If appellant did not make any offer to accept the same only then it could be said that the appellant was not willing and he was not given any re-engagement. Hence, the opposite parties have failed to explain as to how the juniors to the appellant were re-engaged. Re-engagement of the juniors to the appellant is against the scheme as formulated in Vineet Narain and point No. 2 as well as Rule 43 of the Industrial Disputes Rules 1947. 19. Learned Single Judge although has referred this plea but did not recorded any finding on the issue which is against law. Accordingly, judgment passed by learned single judge is liable to be set-aside and is accordingly set-aside. Writ petition of the appellant is allowed. Impugned order dated 27.5.2004 passed by opposite party is quashed. Opposite parties are directed to reinstate the petitioner with all consequential benefits but the petitioner will not be entitled for the wages during the period he has not worked.