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2006 DIGILAW 2973 (PNJ)

Prabhu Ram v. State Of Haryana

2006-07-22

JASBIR SINGH, VINOD K.SHARMA

body2006
Judgment , J. 1. By way of present writ petition the petitioner has challenged the order passed by the Special Secretary, Haryana Government, Labour Department, Chandigarh, refusing to refer the dispute raised by the petitioner to the labour Court. 2. The case set up by the petitioner is that he was appointed as an operator with M/s. Tightwell fastners on 5 October, 1996. He worked with due diligence and in accordance with the discipline of the establishment. However, his services were verbally terminated on 26 Juno, 2003 by informing him that the lathe machine on which he was working had been sold off. Against this action of the management, the petitioner raised an industrial dispute by serving a demand notice under section 2a of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ). Copy of the demand notice was sent to the Labour-cum-Conciliation Officer, rohtak, and on his demand. the conciliation proceedings were commenced by the Labour-cum-Conciliation Officer and it was held by him that no conciliation was possible and a failure report was submitted to the State Government on 19 November, 2003. The Special Secretary, Haryana Government, exercising the powers of Government, refused to refer the industrial dispute raised by the petitioner to the Labour Court, vide order, dated 29 december 2003, a copy of which, has been placed as Annexure P4 with the writ petition. The reason for rejection was that on enquiry it was revealed that the services of the petitioner had been terminated in accordance with the provisions of the Act after payment of retrenchment compensation. It was further noticed that as the petitioner was appointed for a specific job, the same had come to an end. 3. The petitioner thereafter made an application for reconsideration of order (Annexure P4) and after the submission of the said application, the Labour commissioner, Haryana, held a conciliation meeting on 17 February, 2004, but the said application was rejected vide order, dated 22 July 2004, copy of which is attached as Annexure P8. The said application was rejected by a non-speaking order by mentioning therein as under: "your above representation was enquired into and there being no fact, fit for consideration, it was felt that there is no necessity to change the earlier decision of the Government. " 4. The said application was rejected by a non-speaking order by mentioning therein as under: "your above representation was enquired into and there being no fact, fit for consideration, it was felt that there is no necessity to change the earlier decision of the Government. " 4. The written statement has been filed by the Joint labour Commissioner, Haryana, on behalf of respondent No.1, wherein it has been stated that it was open to the appropriate Government to examine the alleged industrial dispute to find out whether the same should be referred to the Labour court for adjudication or riot. It is further the case of respondent No.1 that when the dispute appears to be frivolous, then the same deserves to be declined. So the stand of the respondent No.1 is that as there existed no industrial dispute, it rightly refused to refer the case to the Labour Court for adjudication. 5. The stand of the employer-respondent No.2 in its written statement is that the petitioner had not come to the Court with clean hands and has misstated the facts. It has been stated therein that his services were retrenched by the management by complying with the provisions of the Act. It has been further pleaded that he was only appointed on ad hoc basis on 27 September, 1997 and after brake in service he was appointed as a turner on 1 july 1998. It was also stated that the appointment letter was given to the petitioner. It is the case of the respondent-management that the petitioner had refused to accept the retrenchment notice and thereafter notice along with retrenchment compensation and a notice of pay and allowances, was sent to the petitioner through registered post at his address given by him. On these averments, it is pleaded that the writ petition being without merit should be dismissed. 6. Sri Sudhir Mittal, learned counsel for the petitioner, con tended that the orders Annexures P4 and P8 are liable to be set aside, as it was not open to the State Government to go into the merits of the ease and refuse the reference. It was for the labour Court to go into the merits of the respective claims of the parties to decide the dispute on merits. It was for the labour Court to go into the merits of the respective claims of the parties to decide the dispute on merits. For the said purpose, he placed reliance on the judgments of Honble the Supreme Court reported in (1) Mathew Areeparmatil and others V/s. State of bihar and others, (1985) 2 SCC 102; (2) Telco Convoy Drivers Mazdoor Sangh and another V/s. State of Bihar and others, 1989 (2)LLN 718; (3) Dhanbad Colliery Karamchari Sangh V/s. Union of India and others, 1991 Supp. (2) SCC 10; (4) Sharad Kumar V/s. Government of NCT of Delhi and others, 2002 (2) LLN 871 ; and a Division Bench Judgment of this Court in jagmal Singh and others V/s. State of Haryana and others in C. W. P. No.12920 of 2003, decided" on 29 may 2004, wherein it has been held that it is not open to the State Government to adjudicate upon the merits of the case and it is only to prim a facie see whether there exists an industrial dispute for making reference to the Labour Court. 7. Learned counsel for the respondents contended that it was open to the State Government to see whether there existed an industrial dispute. The appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute, when there was no dispute existing or even apprehended. For the said purpose, reliance was placed on the judgment of the Honble Supreme Court in Nedungadi Bank, ltd. V/s. K. P. Madhavankutty and others, 2000 (2) LLN 21 and also the judgment of the Honble Supreme court in Secretary Indian Tea Association V/s. Ajit kumar Barat and others, 2000 (2) LLN 25. 8. We have considered the contentions raised by the respective counsel for the parties and find that in the case in hand the State Government had entertained the merits of the case to hold that the retrenchment was valid as the provisions of the Act were complied with. In our opinion, this cannot be sustained, as it was not within the purview of the state Government to look into the merits of the case. Rather, it was for the Labour Court to see-whether retrenchment was valid. In our opinion, this cannot be sustained, as it was not within the purview of the state Government to look into the merits of the case. Rather, it was for the Labour Court to see-whether retrenchment was valid. In the present case, there was no dispute between the parties that this was a case of retrenchment and, therefore, it was for the Labour Court to see whether retrenchment was valid or not. It was not open to the state Government to reject the reference on this basis. The Honble Supreme Court in the cases referred to above, has also been pleased to hold that the Stale Government is only to see prima facie the existence of the dispute and it is only in the case where exists no dispute that reference can be refused. 9. Accordingly, we allow the writ petition and set aside the impugned orders Annexures P4 and P5. We direct respondent No.1 to make a reference of the dispute raised by the petitioner to an appropriate Labour Court within two months from today. No order as to costs. Petition allowed.