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Himachal Pradesh High Court · body

2007 DIGILAW 101 (HP)

H. P, STATE ELECTRICITY BOARD v. JOGINDER SINGH

2007-04-18

RAJIV SHARMA

body2007
JUDGMENT Rajiv Sharma, J.—The present petition has been filed against Annexure P-l, dated 4.2.1998 whereby the approapriate Government had made reference under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act") to the Presiding Officer Labour Court-cum-Conciliation Officer, Industrial Tribunal for adjudication. 2. The minimal facts necessary for the adjudication of this petition are that the respondent No. 1 has raised a demand notice to the Conciliation Officer of the Labour Department on 1.8.1996. The District Employment Officer-cum-Conciliation Officer, Nahan looked into the matter and tried to settle the dispute amicably, but the dispute could not be settled amicably. The District Employment Officer-cum-Conciliation Officer sent the failure report under Section 12 (4) of the Industrial Disputes Act, 1947 to Labour Commissioner, Himachal Pradesh. The Labour Commissioner after examining the matter had decided to refer the issue of dispute to the Presiding Officer, Labour Court-cum-Industrial Tribunal, Himachal Pradesh for adjudication as under:— "Whether the termination of the services of Shri Inder Dass and 16 other workers by the Executive Engineer, Nahan Division, HPSEB, Nahan District Sirmour, H.P. without notice and without payment of due compensation is justified and legal. If not, to what service benefits and damages the said workers are entitled?" 3. The first hearing before the Labour Court was 31.8.1998 and thereafter 2.11.1998, 28.12.1998, 3.4.1999, 11.6.1999, 7.9.1999, 29.10.1999, 27.12.1999, 7.4.2000, 26.6.2000, 6.9.2000, 8.11.2000, 19.2.2001, 19.6.2001, 18.7.2001, 26.9.2001 and thereafter on 27.2.2002. 4. The petitioner-Board during the pendency of adjudication of the reference approached this Court seeking quashing of Annexure P-l, dated 4.2.1998. This Court stayed the operation of Annexure P-l on 25.2.2002. The order dated 25.2.2002 was modified on 29.4.2002 to the effect that the proceedings before the Presiding Judge of the Labour Court inter se the parties shall continue, but final order shall not be passed by the Labour Court fill further orders of this Court. 5. The respondents No. 1 and 2 have filed replies to the writ petition. 6. I have heard the learned Counsel appearing for the parties. The main argument of Mr. Shrawan Dogra appearing on behalf of the petitioner-Board is that the reference could not be made after a period of three years since the services of respondent No. 1 were terminated on 31.3.1995. Mr. 6. I have heard the learned Counsel appearing for the parties. The main argument of Mr. Shrawan Dogra appearing on behalf of the petitioner-Board is that the reference could not be made after a period of three years since the services of respondent No. 1 were terminated on 31.3.1995. Mr. Dogra has further argued that there was no Industrial Dispute within the meaning of Industrial Disputes Act at the time of making reference of the State. Per contra, the learned Counsel appearing on behalf of respondents No. 1 and 2 have argued that the reference has been made after the conciliation has failed and on the basis on the failure report submitted by the Conciliation Officer, the order has been passed by the Labour Commissioner after due application of mind. It is further urged by the learned Counsel appearing on behalf of respondents that Industrial Dispute existed on the date of making the reference, i.e., on 4.2.1998. 7. I have considered the pleadings of the parties and am of the confirmed opinion that the reference made by the State is in accordance with law. The .Industrial Dispute existed at the time of the reference vide Annexure P-l. The legal position has been settled by the Honble Supreme Court as held in 2001 (6) SCC (222) titled "Sapan Kumar Pandit v. U.P. State Electricity Board and others". The relevant Paras are reproduced as under:— "9. Hence the real test is, was the industrial dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Governments power to make a reference would have extinguished. On the other hand, if the answer is in positive terms the Government could have exercised the power whatever be the range of the period which lapsed since the inception of the dispute. That apart, a decision of the Government in this regard cannot be listed on the possibility of what another party would think whether any dispute existed or not The Section indicates that if in the opinion of the Government the dispute existed then the Government could make the reference. The only authority which can form such an opinion is the Government. If the Government decides to make the reference there is a presumption that in the opinion of the Government there existed such a dispute. 10. In considering the. The only authority which can form such an opinion is the Government. If the Government decides to make the reference there is a presumption that in the opinion of the Government there existed such a dispute. 10. In considering the. Factual position whether the dispute did exist on the date of reference the Government could take into account factors, inter alia, such as the subsistence of conciliation pro ceedings were commenced after a long period. But such conciliation proceedings are evidence of the existence of the industrial dispute. It is an admitted fact that on the date of reference in this case the conciliation proceedings were not conducted. If so, it cannot be said that the dispute did. not exist on that day." 8. On the basis of material placed on record, the Labour Commissioner has rightly referred the matter to the Labour Court. The functions being discharged by the appropriate Government while referring the matter is an administrative function and not a judicial or quasi-judicial function and that in performing that administrative function, the Government could not delve with the merits of the dispute. The dispute as raised is only to be adjudicated upon by the Labour Court on the basis of reference made. The reference was made by the competent authority on 4.2.1998 and thereafter the matter was listed in the Labour Court on various dates as mentioned hereinabove, but the petitioner-Board has chosen^ to approach this Court by way of the present petition only on 10th January, 2002. The order of reference is valid in the eyes of law. 9. , Therefore, the writ petition is dismissed and the Labour Court is directed to adjudicate upon the reference as per Annexure P-l and to answer the same within a period of one month from today. Interim order dated 29.4.2002 is vacated. 10. Before parting with the judgment, I direct that it will be open to the petitioner-Board to take plea of limitation during the course of adjudication and the Presiding Officer of the Labour Court-cum-Industrial Tribunal is directed to frame issue to this effect and permit the parties to lead evidence. Writ petition dismissed.