The Executive Engineer, Mechanical Division, HP PWD, Dhalli, Shimla-12 and The Superintending Engineer, Mechanical Circle, HP PWD, Dhalli, Shimla-12 vs Shri Bhagat Ram

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 15.5.2007, passed by the learned Single Judge, whereby he dismissed the writ petition filed by the State and upheld the award passed by the learned Labour Court.

Briefly stated the facts of the case are that the respondent-workman had served a demand notice upon the employer claiming that he was entitled to be regularized as Clerk/Complaint Attendant. Since the reconciliation had failed, a reference was made by the State to the Labour Court in the following terms:

Whether the demand raised by the Pradhan, Him Shakti P.W.D. Karamchari Sangh vide demand notice dated 25.8.98 for regularization of Shri Bhagat Ram, ex-worker as Complaint Attendant w.e.f. 1.1.97 from the Executive Engineer, Mechanical Division, H.P.P.W.D. Dhalli, Shimla-171 012 by serving in different capacities on daily wages for 10 years and further his demand for quashing the order of the employer, dated 10.3.98 is legal and justified. If yes, to what relief of service benefits and amount of compensation, Shri Bhagat Ram is entitled?

The learned Labour Court entered into a reference and the State was proceeded against ex-parte on 20.8.2001. The learned Labour Court thereafter decided the reference and passed an award on 9.1.2004, whereby it accepted the claim of the workman that he was entitled to be regularized as Clerk/Complaint Attendant instead of work charged Beldar.

The State filed an application for setting aside the ex-parte award, which was dismissed by the learned Labour Court on 20.5.2005. Thereafter, the writ petition was filed by the State, in which the main challenge was to the order dated 20.5.2005, whereby the learned Labour Court had rejected the application filed by the State for setting aside the ex-parte order.

We have perused the judgment of the learned Single Judge and it appears that all that was argued was that the State was wrongly proceeded against ex-parte and in any event there were good grounds to set aside the ex-parte award. The learned Single Judge rightly held that the finding on the issue whether the State was rightly proceeded against ex-parte or not is a finding of fact and does not amount to a jurisdictional error.

Shri Vivek Singh Thakur, learned Additional Advocate General has contended before us that even on the basis of material on record of the learned Labour Court, the relief could not have been granted to the workman and he was only entitled to regularization at the lowest post of Beldar. We find that such an argument was never raised before the learned Single Judge. The challenge before the learned Single Judge was only with regard to setting aside of the ex-parte award. Even in the grounds of appeal it has not been stated that such an argument was raised before the learned Single Judge. Even if such argument had been raised and not answered by the learned Single Judge then the proper remedy was to approach the learned Single Judge. The Apex court has repeatedly held that when certain arguments are noticed in the judicial record, if a party contends that some of the contentions have not been noticed, it must approach the Judge before whom such contentions were raised before it can be permitted to raise such grounds in appeal.

In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. No costs.