DR. MUKUNDAKAM SHARMA, CJ (ORAL):

C.M. No.402/2008 (exemption)

Exemption allowed subject to all just exceptions. Application stands disposed of.

LPA 13/2008 and CM Nos. 400/2008(delay) and 401/2008(stay).

1. This appeal is directed against the judgment and order dated 18th April, 2007 passed by the learned Single Judge dismissing the writ petition of the appellant and upholding the award passed by the Central Government Industrial Tribunal-cum-Labour Court-II, New Delhi(hereinafter called the Tribunal).

2. The respondent was initially employed on 26th June, 1982 as a Wireman on muster roll and was posted in the Asian Games, Electrical Division-I, CPWD, Nehru Stadium, New Delhi. His services were terminated but the appellants themselves reinstated the respondent with effect from 23rd November,1991 with full back wages and all the consequential benefits. The respondent is a qualified Electrician with a Diploma from ITI, and he has also licence of Wireman, Grade-II. There were about 50 workers working in his category as Wiremen, who were junior to him, who have been regularized. Specifically the case of Shri Hari Shankar was pleaded, who although was junior to the respondent and was appointed on the muster roll with effect from 30th June, 1982, his services were regularized in the time scale with effect from 31st March, 1993. The respondent, therefore, raised a claim that he too should be regularised in service as a workman with effect from 31st March, 1993, the date from which the services of his junior, namely, Shri Hari Shankar were regularised.

.3. The aforesaid dispute was referred to the Central Government Industrial Tribunal-cum-Labour Court-II, New Delhi for the purpose of adjudication and decision on the following terms:-Whether the action of the management of CPWD in not regularising the services of the workman Shri Davinder Singh, Wireman w.e.f. 31.3.1993 the date from which the services of his junior Shri Shankar were regularised is legal and justified If not, to what relief the workman is entitled and from which date.

4. The parties filed their written statement on the basis of which evidence was allowed to be led. After receiving evidence the learned Industrial Adjudicator proceeded to decide the matter on the basis of the evidence available on record. The learned Industrial Adjudicator passed his award on 13th June, 2006 holding that the action of the appellant management CPWD in not regularising the services of the respondent Shri Davinder Singh, Wireman w.e.f. 31st March, 1993 is neither legal nor justified and also that he is entitled to be regularized w.e.f. 31st March, 1993, i.e., the date on which the services of his junior Shri Hari Shankar were regularised. The learned Industrial Adjudicator also directed that the respondent should be paid all his arrears which accrued to him on his regularisation w.e.f. 31st March, 1993.

5. The appellant being aggrieved by the aforesaid award challenged the legality of the same before the learned Single Judge by filing a writ petition, which was considered and dismissed on the ground that the plea that is sought to be raised by the appellant, that there is no scheme at present under which the respondent could be regularised, was never pleaded nor raised at any stage of the case and, therefore, a new plea cannot be allowed to be raised in the writ petition.

6. Counsel appearing for the appellant has drawn our attention to the aforesaid orders passed by the learned Single Judge and has submitted before us that the said findings are contrary to the available records. He has specifically drawn our attention to one of the contentions which was raised before the Industrial Adjudicator to the effect that in the reference proceedings the plea was raised by the appellant that the services of the respondent could not be regularised as the Ministry of Finance had imposed a ban on filling up of the posts. Therefore, a plea was raised before the learned Single Judge which in fac